UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

TONI JOHNSON,

Plaintiff,

v.

HENRY FORD HEALTH SYSTEM,

Defendant.

 /

Case No. 09-cv-11003

HONORABLE STEPHEN J. MURPHY, III

OPINION AND ORDER GRANTING DEFENDANT’S 

MOTION FOR SUMMARY JUDGMENT (docket no. 16)

Plaintiff Toni Johnson has sued Defendant Henry Ford Health System (“Henry Ford”)

for wrongful termination of employment under federal and state statutes, as well as for

violation of her rights under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§

2601, et seq. Johnson claims Henry Ford discriminated against her, eventually firing her,

because she was pregnant. Henry Ford argues Johnson was fired because she falsified

her employment application, the punishment for which is immediate termination. Johnson

also claims Henry Ford interfered with her FMLA rights and eventually retaliated against

her for asserting her rights. Henry Ford denies these claims as well. Discovery in this case

has closed and Henry Ford moved for summary judgment on all counts. For the reasons

stated below, the Court will grant summary judgment in favor of Henry Ford. 

FACTS

The facts in the case are undisputed unless otherwise noted. The case begins with

two employment applications Johnson submitted; one in 1999 and one in 2005. On June

15, 1999, Johnson completed and signed an employment application with the Henry Ford

Wyandotte Hospital (“HF Wyandotte”). Johnson dep. p. 34; 1999 application, Def Mot. Ex.
2

B. Johnson indicated on the application that she preferred to work at HF Wyandotte, but

also marked “yes” after the question “May we refer your application to other HFHS

Facilities?” "HFHS" refers to Henry Ford Health System. Johnson checked the boxes for

“Henry Ford Hospital,” “Henry Ford Medical Group,” and “Henry Ford Wyandotte Hospital”

under the heading, “Business Units (check all of interest).” Johnson testified that by

checking the boxes, she understood those were places where should could become

employed as a result of completing the single application. Johnson dep. p. 36.

In the heading of the 1999 application, the words “Henry Ford Health System”

appeared in a logo next to the words “Henry Ford Wyandotte Hospital.” The application

also asked "How were you referred to HFHS?" She responded by writing "Ad." The same

day she completed the application, Johnson also signed a “Memorandum of

Understanding” authorizing the investigation of her past employment. Def. Mot. Ex. C. The

Memorandum also contained the same “Henry Ford Health System” logo in the heading.

Id. The term “Henry Ford Wyandotte Hospital” did not appear once in the Memorandum

and any reference to “Henry Ford” in the Memorandum was a reference to “Henry Ford

Health System.”

On June 28, 1999, after Johnston had been hired as a student X-ray Technician, she

completed a “New Hire Data Sheet” listing her personal information as well as an

emergency contact. Def. Mot. Ex. E. This document also contained the same “Henry Ford

Health System” logo that appeared on the Application and Memorandum of Understanding.

On July 15, 1999, Johnson was fired for poor attendance and because, on her final

day of work, she did not call and did not report to work. Letter of July 19, 1999, Def. Mot.

Ex. F.

More than six years later, on August 17, 2005, Johnson completed and signed an
3

employment application with Defendant Henry Ford. 2005 Application, Def. Mot. Ex. G.

The application’s heading contained the same logo with the words “Henry Ford Health

System” that appeared on the HF Wyandotte application and the Memorandum of

Understanding she signed in 1999. Johnson testified that she knew that her failure to

provide truthful information on the form could subject her to discipline or termination if and

when she were hired. Johnson dep. p. 63. The application asked, “Have you ever worked

at Henry Ford Health System?” Johnson checked the box indicating “No.” The section

titled “Employment History” instructed the applicant to “List all employers” and did not

qualify the instruction in any way, implying that all employers were to be listed, no matter

how remote the employment. Johnson did not list HF Wyandotte as a former employer

despite her brief period of employment there in 1999. 

Henry Ford hired Johnson in September 2005 as a CT Technician / Radiographer

assigned to the Radiology Department at Henry Ford Hospital Emergency Room. Johnson

was expected to work five consecutive 12-hour shifts from 7:00 pm to 7:00 am, followed

by a five-day break. Johnson dep. p. 68. Johnson also voluntarily worked overtime when

available. Id. pp. 69-70.

In May 2007, prompted by Johnson’s frequent absences from work (13 days in a

single month, four of which were consecutive), her immediate supervisor, Cliff Cavender,

called Johnson at home to find out if she was okay and if she needed an extended period

of leave. Cavender dep. pp. 34, 66. At that time, Johnson and Cavender discussed

Johnson’s frequent absence at work and Johnson told Cavender she was pregnant. Id. p.

67. Cavender immediately suggested that Johnson apply for FMLA leave. Id. pp. 67-68.

Soon after the conversation with Cavender, Johnson submitted a request for FMLA

leave. She completed a leave request form and submitted it along with an FMLA
4

“Certification of Health Care Provider” completed by her physician. Def. Mot. Ex. J. Her

physician indicated the duration of Johnson’s “condition” and probable date of her

“incapacity” was from May 18, 2007 to June 6, 2007. She would be evaluated on a weekly

basis for further recommendations. Her physician also noted that it would be necessary

for Johnson to work only intermittently from May 18, 2007 until six weeks postpartum. Id.

On June 6, 2007, Johnson submitted a second “Certification of Health Care Provider”

completed by her physician, which extended the duration of incapacity under her initial

request to June 19, 2007, but indicated “N/A” to the question of whether Johnson would

require intermittent work only. Around June 25, 2007, Johnson’s physician completed and

submitted a “Return to Work / School Letter” noting that Johnson could return to work on

June 25, 2007, but was prohibited from lifting in excess of 25 pounds until December 12,

2007. Def. Mot. Ex. L. This was the only restriction on her return to work. Id.; Johnson

dep. p. 135. 

Plaintiff testified that she believes she may have submitted a second request for FMLA

leave, but cannot recall for certain whether she ever actually did so. She also does not

recall how much time she requested, what her physician told her about the second request,

or whether she ever formally submitted a second request. Johnson dep. pp. 126-29.

Johnson testified that she sent Cavender an email about a request, but was apparently told

she could not take leave because she had not completed new paperwork for the request.

Johnson has produced no documentation about a second request for FMLA leave. Id. at

129. 

After returning to work on June 25, 2007, Johnson made a request to a clinical

supervisor for shorter shifts or less work days per week. Johnson dep. p. 142; Cavender

Dep. p. 52. There is no evidence of a medical or pregnancy-related basis for Johnson’s
5

request for shorter hours or less days, and Johnson admits that the only medical restriction

required by her physician when she returned was a weight lifting restriction. Johnson dep.

p. 135. Cavender sought to modify Johnson’s schedule, but was unable to do so because

of staffing needs and patient care demands. Cavender dep. p. 52. Shift assignments were

made on the basis of seniority of the different CT Technicians. Johnson dep. p. 92.

Johnson testified that of the approximately ten other CT Technicians that worked in her

area, Johnson ranked third or fourth from the bottom in terms of seniority. Id. p. 117.

Johnson also had requested, in response to an email to all the CT Technicians

regarding the open position, that she be transferred to the Henry Ford West Bloomfield

Clinic and assume her same position. She requested the position because it would reduce

the number of consecutive days she would have to work, albeit reducing her overall weekly

hours. Johnson dep. p. 108. Cavender responded to Johnson’s request stating that he

was unable to place her at the West Bloomfield Clinic due to her restriction on lifting

anything over 25 pounds, which prohibited her from working alone. Def. Mot. Ex. N. The

West Bloomfield position required the CT Technician to work alone. Id. 

Johnson disputes Cavender’s reason for denying her the position, instead claiming

that Cavender wanted to keep Johnson in her position in the Henry Ford Hospital

Emergency Room because there was no one else to train newly-hired CT Technicians.

Johnson dep. p. 112. Despite claiming in her deposition that she requested fewer hours

and days because of her pregnancy, Johnson repeatedly requested overtime and admitted

that she requested and was granted overtime on various occasions. Id. pp. 163-65.

In late August 2007, Johnson contacted Employee Services to discuss the problems

she was having with Cavender in not scheduling her for shorter shifts and for not

transferring her to the West Bloomfield Clinic. Johnson dep. p. 90; Saoud dep. p. 32.
 1

 Johnson testified, however, that Cavender had confronted her about her prior

employment at a Henry Ford Health facility. Johnson told Cavender that she did not

remember working there but did not believe her. Cavender then showed Johnson a

“printout” demonstrating her prior employment. He told her “he could fire [her] for that”

and that he would be watching her. Johnson dep. pp. 149-50. Cavender denies this

conversation ever took place and denies he had any knowledge of Johnson’s earlier

employment before being informed of it by Saoud. Cavender dep. pp. 47-49.

6

Johnson’s complaint was routed to Kathy Saoud, Senior Employee Relations

Representative, who called Johnson a couple of times in September and left messages.

Saoud dep. p. 33. When Saoud finally spoke with Johnson, Johnson indicated that she

was not being treated fairly, that she had weight and hour restrictions, and that her

supervisor was aware of the restrictions but refused to accommodate her. Id. p. 34. Saoud

offered to set up at meeting with Johnson, Cavender, and Saoud to discuss the matter

further. Id. p. 35. After speaking with Johnson, Saoud called Cavender to better

understand Johnson’s complaint. Cavender told Saoud that scheduling was done by

seniority and indicated that Johnson had a restriction on weight, but not hours. Id. pp. 37-

38. Saoud called Johnson back and arranged a meeting. Johnson did not attend the

meeting as scheduled. Id. p. 46; Johnson dep. p. 90. 

Prior to the meeting, Sauod attempted to verify Johnson’s seniority status since it was

relevant for the scheduling of CT Technician shifts. Saoud dep. p. 39. She researched

Johnson’s record in PeopleSoft, Henry Ford's payroll system, and discovered that Johnson

had previously worked at HF Wyandotte and was fired for attendance problems. Id. p. 51.

When Saoud brought this information to Cavender’s knowledge, Cavender said he would

never have hired Johnson had he known.1

 Id. p. 52. Saoud pulled Johnson’s original

application to validate whether she had indicated on the application if she ever worked at

a Henry Ford Health System facility and saw that Johnson had answered “No” to that

question. Id. p. 57. Giving Johnson the benefit of the doubt, Saoud pulled Johnson’s HF
7

Wyandotte application thinking perhaps Johnson did not know HF Wyandotte was a Henry

Ford Health System facility. Saoud reviewed the application, which clearly stated “Henry

Ford” and concluded that Johnson had falsified the application. Id. According to Saoud,

Henry Ford maintains a policy and practice of terminating employees whom it learns

provided false information on an employment application. Id. p. 53-54. Indeed, falsifying

an application is automatic grounds for discharge. Id.

Sauod communicated her findings and conclusions to Mike Davis, Manager of

Radiology, and Cavender’s supervisor. Davis determined that Johnson had falsified her

application, was dishonest, and terminated Johnson on that ground. Sauod dep. p. 61;

Johnson dep. p. 179. Cavender himself did not make the decision to fire Johnson, nor did

he have any input in the decision or contact Johnson about the decision. Cavender dep.

pp. 71-72, 74-75. The decision was Davis’s. Saoud dep. p. 61.

PROCEDURAL HISTORY

Johnson originally filed her complaint in the Wayne County Circuit Court alleging that

Henry Ford discriminated against her in violation of federal and state law. On March 13,

2009, Henry Ford timely removed the case to this Court pursuant to 28 U.S.C. § 1441 and

the Court’s original jurisdiction over claims involving a federal question, 28 U.S.C. § 1331.

Removal was proper because the Court has original jurisdiction over Johnson’s Title VII

claim and supplemental jurisdiction over her state law discrimination claim. 28 U.S.C. §§

1331, 1367.

Upon stipulation of the parties and order of the Court, Johnson was granted leave to

file an amended complaint. In her amended complaint, Johnson added one count of

violation of her rights under the FMLA. On November 24, 2009, Henry Ford moved for

summary judgment on all three of Johnson’s claims. The Court held a hearing on the
8

motion on January 26, 2010. At the close of the hearing, the Court took the motion under

advisement. 

DISCUSSION

I. Summary Judgment Standard

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment

“should be rendered if the pleadings, the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any material fact and that the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56 (c). In considering a motion

for summary judgment, the court must construe the evidence and draw all reasonable

inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986). The central issue is "whether the evidence presents a

sufficient disagreement to require submission to a jury or whether it is so one-sided that

one party must prevail as a matter of law." Jones v. Potter, 488 F.3d 397, 403 (6th Cir.

2007) (citation omitted).

The moving party has the burden of demonstrating that there is no genuine issue of

material fact regarding the existence of an essential element of the nonmoving party's case

on which the nonmoving party would bear the burden of proof at trial. Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986); Martin v. Ohio Turnpike Comm’n, 968 F.2d 606, 608 (6th

Cir. 1992). A fact is “material” if proof of that fact would have the effect of establishing or

refuting an essential element of the cause of action or a defense advanced by the parties.

Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984). A dispute over a material fact

is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Accordingly,

when a reasonable jury could not find that the nonmoving party is entitled to a verdict, there
9

is no genuine issue for trial and summary judgment is appropriate. Feliciano v. City of

Cleveland, 988 F.2d 649, 654 (6th Cir. 1993).

In opposing a motion for summary judgment, the nonmoving party must do more than

raise some doubt as to the existence of a fact; it must produce evidence that would be

sufficient to require submission of the issue to a jury. “The mere existence of a scintilla of

evidence in support of the plaintiff's position will be insufficient; there must be evidence on

which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252.

II. Analysis

A. Discrimination Claims

Johnson claims Henry Ford discriminated against her on the basis of her pregnancy

in violation of 42 U.S.C. § 2000e-2(a)(1) and Mich. Comp. Laws § 37.2202(1)(a). These

statutes prohibit an employer from discriminating against an employee because of the

employee's sex. Discrimination on the basis of sex includes discrimination on the basis of

pregnancy. 42 U.S.C. § 2000e(k); Mich. Comp. Laws § 37.2201(d); see also Cline v.

Catholic Diocese of Toledo, 206 F.3d 651, 658 (6th Cir. 2000) (“Thus, a claim of

discrimination on the basis of pregnancy must be analyzed in the same manner as any

other sex discrimination claim brought pursuant to Title VII.”) (internal quotation and citation

omitted). Claims brought under both statutes are generally analyzed using the same

analytical framework, and Michigan courts follow federal civil rights case law to interpret

them. Sutherland v. Mich. Dept. of Treasury, 344 F.3d 603, 614 n.4 (6th Cir. 2003); see,

e.g., Lulaj v. Wackenhut, Corp., 512 F.3d 760, 765 n.1 (6th Cir. 2008) (considering federal

law in analyzing pregnancy discrimination claim brought under Michigan statute); Sniecinski

v. Blue Cross & Blue Shield of Mich., 469 Mich. 124, 666 N.W.2d 186, 192-95 (2003). 

In the absence of any direct evidence of discrimination, to defeat summary judgment,
10

a plaintiff may make a showing of discrimination by circumstantial evidence using the

approach set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1979). Johnson

v. Univ. of Cincinnati, 215 F.3d 561, 572 (6th Cir. 2000); Hazle v. Ford Motor Co., 464

Mich. 456, 462 (2001). Under this approach, a plaintiff must first establish a prima facie

case of discrimination. Johnson, 215 F.3d at 572. If the plaintiff is able to do so, a

mandatory presumption of discrimination arises and the burden of production -- but not of

persuasion -- shifts to the defendant to articulate a legitimate, nondiscriminatory reason for

the employment action. Id. at 572-73. If the defendant meets its burden of production, the

burden shifts back to the plaintiff to demonstrate that the proffered reason is merely a

pretext for unlawful discrimination. Id. at 573. The plaintiff must come forward with

evidence that the defendant's reason for the employment action is false, but need not

present independent evidence that the proffered reason is a pretext. A plaintiff's prima

facie case, combined with sufficient evidence to find that the employer's asserted

justification is false, may allow the jury to conclude the employer unlawfully discriminated,

which would preclude summary judgment. Sutherland, 344 F.3d at 615; Town v. Mich. Bell

Telephone Co., 455 Mich. 688, 698 (1997).

Since there is no direct evidence of discrimination in this case, Johnson must begin

her opposition to summary judgment by establishing a prima facie case of discrimination.

Henry Ford concedes, for purposes of this motion only, that Johnson can establish a prima

facie case of discrimination. Def. Mot. p. 12 n.7. Henry Ford then assumes the burden of

establishing a legitimate, nondiscriminatory basis for firing Johnson. Henry Ford claims it

fired Johnson for her failure to disclose her 1999 employment with HF Wyandotte on her

2005 Henry Ford application. Providing false information on an employment application

provides legitimate, nondiscriminatory grounds for termination for purposes of satisfying the
11

defendant's burden of production. See, e.g., Fullman v. Potter, 480 F. Supp. 2d 782, 791-

92 (E.D. Pa. 2007) (lying on employment application is legitimate reason for termination);

Marchoni v. Bd. of Ed. of City of Chicago, 341 F. Supp. 2d 1036, 1047 (N.D. Ill. 2004) (false

answer on teaching certification application provided legitimate, nondiscriminatory grounds

for termination). 

Furthermore, the 2005 application explicitly warned the applicant that a failure to

provide true and accurate information would be grounds for later termination. Def. Mot. Ex.

G. Johnson also testified she understood that she could be terminated for failing to provide

true information on her application. Johnson dep. p. 63. Finally, Henry Ford has a policy

and practice of terminating those employees whom it later learns provided false information

on their applications. Saoud dep. pp. 53-54. Henry Ford has met its burden of articulating

a legitimate and nondiscriminatory reason for firing Johnson.

Since Henry Ford has satisfied its burden of production, the burden shifts to Johnson

to produce sufficient evidence from which a jury could reasonably find the employer’s

proffered reason was a pretext for discrimination. Pretext can be established by showing

the defendant’s reason: 1) had no basis in fact; 2) did not actually motivate the decision to

terminate; or 3) was insufficient to warrant the decision to terminate. Abdulnour v.

Campbell Soup Supply Co., 502 F.3d 496, 502 (6th Cir. 2007). Johnson attempts to

demonstrate pretext in a couple of these ways. 

First, Johnson argues that Henry Ford's proffered reason for firing her had no basis

in fact. See id. at 502. She argues she did not lie on the 2005 Henry Ford application.

She claims HF Wyandotte is not a “Henry Ford Health System” facility such that her failure

to check the "yes" box to the question "Have you ever worked at Henry Ford Health

System?" was not a lie. Johnson claims that Henry Ford conducts business under a variety
12

of different entities registered with the State of Michigan, none of which include "Henry Ford

Wyandotte Hospital." Johnson’s argument does not persuade; the argument does not

demonstrate that Henry Ford's proffered reason had no basis in fact. The Henry Ford

Health System name and logo appeared numerous times on every document Johnson

signed in relation to her employment applications in 1999 and 2005. Moreover, Johnson

does not challenge Henry Ford’s position that the information on her application was false,

but rather claims she forgot she previously worked for HF Wyandotte. Johnson dep. pp.

50-51. Johnson’s failure to remember her prior employment, however, does not make her

representation on the application any less false. In any event, Johnson's failure to identify

her employment at HF Wyandotte in the “Employment History” was an unequivocally false

representation in and of itself, and had absolutely nothing to do with the corporate structure

of Henry Ford Health System Johnson claims complicates the issue. 

Johnson has presented no evidence that an innocent mistake on an application, like

the one she claims she made, has ever been excused by Henry Ford. The absence of any

such evidence, considered together with the evidence in the record that Henry Ford's policy

on such matters, prevents Johnson from creating a factual issue regarding pretext.

Johnson also argues that her incorrect answer on her application did not actually

motivate the decision to fire her. Abdulnour, 502 F.3d at 502. The only evidence Johnson

offers for this argument is her own testimony that Cavender knew of Johnson's prior

employment, chose not to fire her at the time he discovered it, but later fired her when she

was pregnant. Since Cavender did not fire Johnson when he learned of her prior

employment with HF Wyandotte, Johnson argues, a jury could find that the decision to fire

her was motivated by her pregnancy. This argument fails because even assuming that

Cavender was aware of Johnson’s earlier employment and did nothing, Cavender was not
 2

 Even if Cavender did have the conversation with Johnson, participated in, and was

responsible in part for, firing her, his decision not to fire her at the time would have been

justified by Henry Ford's policy. Johnson testified that Cavender told her he was aware

she had worked at HF Wyandotte in 1999. Importantly, Johnson testified that Cavender

did not tell Johnson he was aware that she had falsified her application or that she had

been fired from HF Wyandotte. Johnson dep. pp. 149-50. Prior employment at another

Henry Ford Health System facility is not grounds for automatic nondiscriminatory

termination. Additionally, termination from a prior Henry Ford Health System facility is

not grounds for automatic termination. A supervisor could choose to retain the

employee in those situations. Omitting prior employment with another Henry Ford

Health System facility from a subsequent application, however, is grounds for automatic

termination. Saoud dep. pp. 53-54.

 3 Henry Ford admitted at the hearing on the motion that Davis knew Johnson was

pregnant when he decided to fire her. Davis's mere knowledge of Johnson's

pregnancy, without more, however, is not sufficient evidence from which a jury could

reasonably reject Henry Ford’s explanation and infer that it intentionally discriminated

against Johnson. See Johnson v. Kroger Co., 319 F.3d 858, 866 (6th Cir. 2003). If the

employer's mere knowledge was enough to raise an issue of pretext, the third step of

the McDonnell Douglas burden-shifting approach would, in many cases, be rendered a

nullity, as most employers are at least aware of the qualifying medical condition of their

employees.

13

the Henry Ford official responsible for firing her.2 Mike Davis made the decision to, and did

in fact, fire Johnson when he learned she falsified her employment application. There is

simply no evidence that Davis’s decision to fire Johnson was motivated, even in part, by

her pregnancy. Rather, the uncontroverted evidence is that as soon as Davis learned of

the false information on the application, he decided to fire Johnson. Saoud dep. p. 61.3

In summary, there is no evidence from which a reasonable jury could conclude that

Henry Ford fired Johnson because it harbored any discriminatory animus, and not because

she provided false information on her employment application. Accordingly, Henry Ford

is entitled to summary judgment on Johnson’s federal and state discrimination claims.

B. FMLA Claims

Johnson claims Henry Ford violated her rights under the FMLA. The Sixth Circuit

recognizes two theories of recovery under the FMLA. An employee who takes FMLA leave
14

may recover from her employer if the employer (1) denies the employee his or her FMLA

rights (29 U.S.C. § 2615(a)(1)), or (2) retaliates or discriminates against the employee for

exercising those rights (29 U.S.C. § 2615(a)(2)). Wysong v. Dow Chem. Co., 503 F.3d

441, 446 (6th Cir. 2007). Here, Johnson claims Henry Ford both interfered with her FMLA

rights and retaliated against her for exercising or attempting to exercise her rights. Henry

Ford is entitled to summary judgment on both theories of recovery.

1. Interference Claim

Johnson claims Henry Ford interfered with her FMLA rights by firing her. First Amend.

Comp. ¶ 63. The FMLA prohibits an employer from, “interfer[ing] with, restrain[ing], or

deny[ing] the exercise of or the attempt to exercise, any right provided under th[e] [FMLA]."

29 U.S.C. § 2615(a)(1). To establish an FMLA interference claim, a plaintiff must establish

that: 1) the plaintiff is an eligible employee; 2) the defendant was an employer under the

FMLA; 3) plaintiff was entitled to leave under the FMLA; 4) the plaintiff gave notice of her

intention to take leave under the FMLA; and 5) the defendant denied the plaintiff FMLA

benefits. Walton v. Ford Motor Co., 424 F.3d 481, 485 (6th Cir. 2005). 

Here, Henry Ford argues that it did not interfere with any of Johnson’s FMLA rights

because it granted every request she made. The record indicates Johnson submitted one

request in May 2007. Def. Mot. Ex. J. Two separate medical certifications were submitted

in support of that request. Id.; Def. Mot. Ex. K. The second certification indicated

intermittent leave was no longer required. Henry Ford granted this request and gave

Johnson time off from work. Johnson testified she does not recall whether she ever

formally submitted a second request for leave under the FMLA. Johnson dep. pp. 223-24.

She further testified that no one from Henry Ford ever told her they were denying any

request for FMLA she had made. Id. p. 225. If Johnson cannot even recall whether she
15

submitted a second request, a jury would surely have no basis for concluding that Johnson

more likely than not submitted a request. Without evidence that Johnson gave notice of

her intention to take leave under the FMLA, Johnson cannot establish a case for FMLA

interference.

Johnson claims she did in fact provide notice of an intent to take leave even though

she did not submit a request form. She argues that she scheduled an appointment with

Saoud to discuss work accommodations and that such accommodations would reasonably

include another FMLA leave. Johnson contends therefore that her request for a meeting

was sufficient to establish she requested FMLA leave. Pl. Resp. Br. p. 14. The Court

disagrees. "To invoke the protection of the FMLA, an employee must provide notice and

a qualifying reason for requesting the leave." Walton, 424 F.3d at 486 (quoting Brohm v.

JH Props., Inc., 149 F.3d 517, 523 (6th Cir. 1998)). "The critical question is whether the

information imparted to the employer is sufficient to reasonably apprise it of the employee's

request to take time off for a serious health condition." Id. (internal quotation omitted).

Johnson testified she requested a meeting because she wanted to discuss Cavender's

failure to accommodate her with a more favorable work schedule. Johnson dep. p. 90.

There is no reason, however, that Henry Ford should have anticipated that Johnson was

going to make another request for FMLA leave in the near future. Henry Ford was aware

only that Johnson had a weight lifting restriction, not a restriction on the hours she could

work while pregnant. See Return to Work Letter of June 26, 2007, Def. Mot. Ex. L. The

fact that Johnson regularly requested and was granted overtime during the same period

further demonstrates that Henry Ford was unaware of any impending request for FMLA

leave. Johnson dep. pp. 163-64. No jury could reasonably construe Johnson's request for

a meeting with Saoud as reasonable notice to Henry Ford of a request for FMLA leave.
16

Accordingly, Johnson cannot create a genuine issue of material fact with respect to the

notice element of her FMLA interference claim.

Even assuming Johnson could establish she gave notice of her intent to take a second

FMLA leave, such that Henry Ford was aware of a request, Johnson cannot demonstrate

that Henry Ford interfered with her rights because Henry Ford would have fired her

regardless of her request and leave. Generally, an employee exercising FMLA rights has

no greater protection against termination for non-FMLA reasons than he or she did before

exercising those rights. 29 U.S.C. § 2614(a)(3)(B); Arban v. West Pub. Corp., 345 F.3d

390, 401 (6th Cir. 2003). Therefore, “an employee lawfully may be dismissed, preventing

[her] from exercising [her] statutory rights to FMLA leave or reinstatement, but only if the

dismissal would have occurred regardless of the employee's request for or taking of FMLA

leave.” Arban, 345 F.3d at 401. It is Henry Ford’s policy to terminate employees who

submit false information on an employment application. A supervisor has no discretion to

excuse such conduct and to retain the employee. Saoud dep. p. 53. Thus, even had

Johnson submitted a second request and taken FMLA leave, she would have been fired

anyway for falsifying her application. Johnson has provided no evidence demonstrating

that Henry Ford failed or refused to follow this policy. Without any evidence, a jury would

be compelled to conclude Henry Ford would have fired Johnson regardless of whether she

requested, and was later granted, FMLA leave. Accordingly, Johnson cannot demonstrate

the existence of a genuine issue of material fact as to whether Henry Ford wrongfully

interfered with her FMLA rights. Henry Ford is therefore entitled to judgment on Johnson's

FMLA interference claim. 

2. Retaliation Claim
 4 To be sure, Johnson did engaged in protected activity when she requested FMLA

leave the first time, when Cavender suggested she take leave. Henry Ford granted this

request and Johnson does not claim otherwise. This first request is not the basis of her

instant claim for FMLA retaliation.

17

Johnson also claims that Henry Ford fired her in retaliation for exercising or attempting

to exercise her FMLA rights. First Amend. Compl. ¶ 69. An employer is prohibited from

discriminating against an employee for using FMLA leave, nor can an employer use the

taking of FMLA leave as a negative factor in employment actions. Arban, 345 F.3d at 403;

29 U.S.C. § 2615(a)(2); 29 C.F.R. § 825.220 (c). This prohibition includes retaliatory

termination for taking or requesting FMLA leave. Arban, 345 F.3d at 403.

An FMLA retaliation claim based solely upon circumstantial evidence of unlawful

conduct is evaluated according to the burden-shifting framework set forth in McDonnell

Douglas v. Green, 411 U.S. 792 (1973). See also Daugherty v. Sajar Plastics, Inc., 544

F.3d 696, 707 (6th Cir. 2008). To establish a prima facie case of FMLA retaliation, the

plaintiff must establish that: 1) she engaged in an activity protected by the FMLA; 2) that

the exercise of her protected rights was known to the defendant; 3) that defendant

thereafter took an employment action adverse to the plaintiff; and 4) that there was a

causal connection between the protected activity and the employment action. Arban, 345

F.3d at 404.

Johnson cannot establish a prima facie case of retaliation because she cannot show

that she engaged in any protected activity under the FMLA.4

 Johnson alleges in her

complaint at paragraph 65 that she requested FMLA leave in order to deal with her

pregnancy. Johnson, however, has produced no evidence she actually made this request.

As stated above, in the Court's discussion of Johnson's FMLA interference claim, Johnson

testified that she could not recall whether she ever formally submitted a second request for
18

leave under the FMLA, Johnson dep. pp. 223-24, and there can accordingly be no jury

finding that such a request was made and rejected. Additionally, Henry Ford never told her

they were denying any request she made, id. at 225, and there is on this basis no way for

a jury to conclude that an FMLA request was rejected.

Assuming then that Johnson would testify at trial that she did in fact submit a second

request, such that she has demonstrated a prima facie case of retaliation, the burden of

production would shift to Henry Ford to justify her termination and firing with a legitimate

and non-retaliatory reason. See Bryson v. Regis Corp., 498 F.3d 561, 570 (6th Cir. 2007).

As discussed above, Henry Ford does offer such a reason: that Johnson falsified her

employment application by failing to indicate that she had worked for HF Wyandotte, a

Henry Ford Health System facility, in 1999. Again, this is sufficient to carry Henry Ford's

burden. The burden shifts back to Johnson to demonstrate that Henry Ford's legitimate

and nondiscriminatory reason is a pretext for unlawful discrimination, and in the view of the

Court, Johnson has not carried her burden of showing a genuine issue of material fact as

to pretext. At best, Johnson has demonstrated a temporal proximity between her second

request and termination. This proximity, in and of itself, however, is insufficient to support

a finding of pretext. Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 317 (6th Cir.

2001). In sum, Johnson has not met her burden of establishing a genuine issue of material

fact that Henry Ford's reason for discharging her was pretextual. Henry Ford is therefore

entitled to summary judgment on Johnson's FMLA retaliation claim. 

CONCLUSION AND ORDER

For the reasons stated above, the Court will grant summary judgment in favor of

Henry Ford on all of Johnson’s claims.

WHEREFORE, it is hereby ORDERED that Henry Ford's motion for summary
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judgment (docket no. 16) is GRANTED and judgment will be entered in favor of Henry

Ford.

SO ORDERED. 

s/Stephen J. Murphy, III 

STEPHEN J. MURPHY, III

United States District Judge

Dated: February 9, 2010

I hereby certify that a copy of the foregoing document was served upon the parties and/or

counsel of record on February 9, 2010, by electronic and/or ordinary mail.

Alissa Greer 

Case Manager