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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

EDWARD GLADSTON

ROSARIO PRAGASAM, 

Plaintiff, CIVIL ACTION NO. 09-11660

v. DISTRICT JUDGE PAUL D. BORMAN

REHAB CARE GROUP, MAGISTRATE JUDGE VIRGINIA M. MORGAN

INCORPORATED, TRACY 

HUFF, and JANE DOE 1-2,

Defendants.

 /

REPORT AND RECOMMENDATION TO

GRANT DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (D/E #16)

I. Introduction

This is a pro se action in which the plaintiff alleges that defendants retaliated against him

in violation of the Michigan Whistleblowers’ Protection Act, M.C.L. § 15.361 et seq. The

matter comes before the court on defendants Rehab Care Group, Incorporated (“Rehab Care

Group”) and Tracy Huff’s Motion for Summary Judgment (D/E #16). Plaintiff filed a response

in opposition to defendants’ motion (D/E #18) and defendants filed a reply to that response (D/E

#19). On December 23, 2009, this court recommended that defendants’ motion be granted on

the basis that plaintiff failed to produce any evidence demonstrating that there was a genuine

issue of material fact and defendants were entitled to judgment as a matter of law (D/E #28). 

Plaintiff objected to that report and recommendation (D/E #32-45) and, on May 10, 2010, the
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According to his amended complaint, plaintiff has filed a separate action against Ciena

Health Care Management in state court as well. (Amended Complaint, p. 5)

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Honorable Paul D. Borman issued an order returning this matter to this court so that the court

could consider plaintiff’s evidence (D/E#77). Following that return, defendants filed a second

reply brief in support of their motion for summary judgment (D/E#85) and a hearing was held on

July 14, 2010, at which plaintiff appeared by phone. For the reasons discussed below, this court

now recommends that defendants’ motion be GRANTED and that summary judgment be

entered in favor of defendants Rehab Care Group and Huff. Additionally, because the Jane Doe

defendants have not been identified, not been served and would be entitled to summary judgment

on the same basis as the named defendants if they were part of this case, this court also

recommends that the case be dismissed in its entirety. 

II. Background

Plaintiff originally filed this action in state court and, on May 1, 2009, defendants

removed the case to federal court on the basis of diversity jurisdiction (D/E #1). Following the

removal, this court granted a motion for more definite statement filed by defendants and ordered

plaintiff to file an amended complaint (D/E #12).

On July 8, 2009, plaintiff filed an amended complaint (D/E #13). In that amended

complaint, plaintiff asserts that he is a licensed physical therapist and that, on August 11, 2008,

he began working for defendant Rehab Care Group. (Amended Complaint, ¶ 1) At that time,

plaintiff was also working full-time at Ciena Health Care Management (“Ciena”). (Amended

Complaint, ¶ 1)1

 Plaintiff also asserts that, in November of 2008, Ciena changed plaintiff’s work

hours and Rehab Care Group notified plaintiff that he could only work part-time. (Amended
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Complaint, ¶ 2) Plaintiff alleges that defendant Huff, an employee of Rehab Care Group,

informed plaintiff that could not work as a full-time physical therapist because he was “working

on an Employment authorization document.” (Amended Complaint, ¶ 2) Plaintiff also alleges

that he sent Huff a letter from his immigration attorney stating that plaintiff could work full-time,

but Huff never responded. (Amended Complaint, ¶ 3).

According to plaintiff’s amended complaint, on November 25, 2008, Huff informed

plaintiff that a patient had made an allegation that plaintiff had billed the patient without

providing any services. (Amended Complaint, ¶ 4) However, when Huff interviewed the

patient, the patient denied the allegation. (Amended Complaint, ¶ 5) Plaintiff asked Huff if the

investigation was meant to harass plaintiff into resigning, but Huff said no. (Amended

Complaint, ¶ 5) 

Plaintiff also alleges that he complained to Huff that he was being harassed and

discriminated against by his co-workers, but Huff said she could not do anything and denied his

request for a transfer. (Amended Complaint, ¶¶ 6-8) Plaintiff further alleges that he was

assigned more challenging patients and reduced work hours in order to lessen plaintiff’s

productivity. (Amended Complaint, ¶ 9)

On January 14, 2009, plaintiff allegedly informed his supervisor at Ciena that he was

making a complaint to the government over unethical therapy practices and, on January 20,

2009, plaintiff took a leave of absence from both of his jobs. (Amended Complaint, ¶¶ 10-11) 

Plaintiff asserts that he resigned from Ciena on February 2, 2009. (Amended Complaint, ¶ 13)

On February 12, 2009, plaintiff allegedly made verbal and written complaints to both

state and federal agencies with respect to unethical therapy practices used by Rehab Care Group. 
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(Amended Complaint, ¶ 14) According to plaintiff, he emailed Huff that same day to inform her

of the complaint and to seek permission to start working again. (Amended Complaint, ¶ 14) 

Plaintiff alleges that Huff emailed plaintiff on February 27, 2009, told him that his services were

not needed, and informed him that he had been laid off (Amended Complaint, ¶ 15)

Plaintiff claims that he repeatedly sought to work for Rehab Care Group after that date,

but he was told there was no job available. (Amended Complaint, ¶¶ 16-20) According to

plaintiff, he was told there was no job despite the fact that Rehab Care Group was advertising a

physical therapist position on the internet and plaintiff was willing to switch locations. 

(Amended Complaint, ¶¶ 16) Plaintiff was also told to stop contacting Huff. (Amended

Complaint, ¶ 20)

Plaintiff claims that, through their above actions, defendants violated the Michigan

Whistleblowers’ Protection Act, M.C.L. § 15.361 et seq., by retaliating against him for filing a

complaint with the government. 

On October 30, 2009, defendants Rehab Care Group and Huff filed the motion for

summary judgment pending before the court (D/E #16). In that motion, those defendants argue

that they are entitled to summary judgment because plaintiff cannot establish a prima facie case

of retaliation under Michigan’s Whistleblowers’ Protection Act.

On November 19, 2009, plaintiff filed a response to defendants’ motion for summary

judgment (D/E #18). In that response, plaintiff argues that genuine issues of material fact are in

dispute and that defendants’ motions should be denied.

On November 24, 2009, defendants filed a reply to plaintiff’s response (D/E #19). In that

reply, defendants reiterated their earlier arguments.
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On December 23, 2009, this court recommended that defendants’ motion be granted on

the basis that plaintiff failed to produce any evidence demonstrating that there was a genuine

issue of material fact and defendants were entitled to judgment as a matter of law (D/E#28). 

On January 6, 2010, plaintiff filed objections to the Magistrate Judge’s Report and

Recommendation (D/E #32-45.) Those objections included arguments on the motion for

summary judgment and exhibits plaintiff claimed to have filed with his original responses, in

addition to charges of bias against this court and a request that this court be removed the case. 

Defendants filed a response to plaintiff’s objections (D/E #52) and plaintiff filed a reply to that

response (D/E #63). 

On May 10, 2010 Judge Borman issued an order returning this matter to this court

pursuant to Fed. R. Civ. P. 72(b)(3) (D/E#77). Specifically, Judge Borman returned this matter

in order for this court to consider as evidence the exhibits plaintiff field in support of his

objections to the earlier report and recommendation:

It appears to the Court, given Plaintiff’s careful reference by

number in his responsive brief (Dkt. No. 18) to the very exhibits

that he now attaches to his Objections to the Magistrate Judge’s

Report and Recommendation (Dkt. Nos. 36-45), that Plaintiff had

assembled these exhibits and believed he had filed them in support

of his claims in his response to Defendants’ motion for summary

judgment. Given Plaintiff’s pro se status, and his obvious effort to

collect and provide evidence in support of his claims, the Court

will allow Plaintiff to submit these untimely filed exhibits as

evidence in support of Plaintiff’s response to Defendants’ motion

for summary judgment.

[D/E #77, p. 2]

On May 25, 2010, this court issued a notice of briefing and oral argument (D/E #80). 

Pursuant to that notice, plaintiff’s response to defendants’ motion to summary judgment was due
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June 9, 2010 and defendants’ reply was due June 16, 2010. Additionally, oral argument was set

for June 23, 2010 at 10:30 a.m.

On June 9, 2010, at 11:31 p.m. plaintiff e-filed a request for extension of time pending

before the court (D/E #82). In that request, plaintiff requested an additional twenty-one (21)

days to file his response to defendants’ motion for summary judgment. As support for that

request, plaintiff repeated his allegations of bias and fraud on the part of this court while also

stating that the investigation into this court’s actions are ongoing. Plaintiff further asserted that

Judge Borman is harassing plaintiff by again referring this case to this court. Plaintiff also

argued that he needs the additional time to research the relevant legal issues.

On June 10, 2010, defendants filed a response to plaintiff’s request for additional time

(D/E #83). In that response, defendants argued that plaintiff waited until the “eleventh hour” to

file an inflammatory “Notice” requesting additional time and that granting the request would be

inappropriate given how long this case as been on the court’s docket and the outlandish nature of

the notice itself.

On June 15, 2010, this court denied plaintiff’s request for extension of time (D/E #84). 

Specifically, this court denied the request on the basis that plaintiff unduly delayed in bringing

his request and failed to offer sufficient reasons why the court should afford him more time. 

This court also noted that plaintiff was not prejudiced by the denial of additional time because he

had already filed a response to as defendants’ motion for summary earlier and his exhibits, which

he claimed to have attached earlier, were now before the court.

On June 16, 2010, defendants filed a second reply brief in support of their motion for

summary judgment (D/E#85). In that second reply brief, defendants argue that plaintiff’s
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exhibits were never produced during discovery, were untimely submitted, and do not create

triable issue of fact. Defendants also argue that Rehab Care Group had legitimate,

nondiscriminatory reasons for plaintiffs treatment that plaintiff cannot rebut.

On June 21, 2010 this court received an oral request by plaintiff to adjourn oral argument

on defendants motion for summary judgment. Plaintiff indicated to the case manager that, due

to a medical condition, he was unable to travel and wanted the hearing adjourned. Plaintiff was

asked to fax his request to chamber or place it on the record, which he said he could not do until

the evening. Plaintiff never faxed such a request, but the court still granted his request and

adjourned the oral argument to July 14, 2010 (D/E #87).

On July 12, 2010, after 4:00 p.m., plaintiff called the court to request another

adjournment. Plaintiff was advised to submit the same in writing and, at 11:30 p.m. on July 12,

2010, plaintiff e-filed a request to adjourn the hearing set for July 14, 2010 (D/E #88). In that

request, plaintiff cited health issues and physical hardships in traveling 1200 miles back to

Michigan from St. Louis, where he now lives. No doctor’s note or office notes from his alleged

July 7, 2010 consult were attached. Similarly, no physician was identified. Plaintiff also

repeated his objections to this court holding the hearing instead of the district court. 

On July 13, 2010, defendants filed a response in opposition to another adjournment (D/E

#89). That same day, after considering all the facts and circumstances of plaintiff’s request, this

court denied plaintiff’s request for a second adjournment (D/E #90). In particular, this court

relied upon the lateness of the request, the absence of proof regarding the health of plaintiff, the

previous submissions, and the nature of the motion hearing. The court did, however, permit

plaintiff to appear by telephone. On July 14, 2010, the hearing took place.
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III. Standard of Review

Defendants move for summary judgment pursuant to Fed. R. Civ. P. 56(b). That rule

states that “[a] party against whom a claim, counterclaim, or cross-claim is asserted or a

declaratory judgment is sought may, at any time, move without or without supporting affidavits

for a summary judgment in the party’s favor as to all or any part thereof.” Summary judgment is

appropriate where “the pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).

In deciding a motion for summary judgment, the court must view the evidence and draw

all reasonable inferences in favor of the non-movant. See Matsushita Electric Industrial Co.,

Ltd. et al. v. Zenith Radio Corp., et. al., 475 U.S. 547, 587, 106 S.Ct. 1348, 1356 (1986); see also

B.F. Goodrich Co. v. U.S. Filter Corp., 245 F.3d 587, 591-92 (6th Cir. 2001). The moving party

bears the initial burden of demonstrating the absence of a genuine issue of material fact. Once

the moving party has carried his burden, the party opposing the motion “must come forward with

specific facts showing that there is a genuine issue for trial.” Matsushita, 475 U.S. at 587, 106

S.Ct. 1348. The opposing party cannot merely rest upon the allegations contained in his

pleadings. Rather, he must submit evidence demonstrating that material issues of fact exist. 

Banks v. Wolfe County Bd. of Educ., 330 F.3d 888, 892 (6th Cir. 2003); Fed. R. Civ. P. 56(e). 

“Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587, 106 S.Ct. 1348

(quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 289, 88 S.Ct. 1575,

1592 (1968)).
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This court would also note that, while defendants assert that plaintiff failed to participate

in the discovery process, defendants never filed a motion to compel any discovery.

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IV. Discussion

As a preliminary matter, this court would note that defendants first argue that the court

should strike and otherwise disregard plaintiff’s evidence because plaintiff failed to engage in

any discovery whatsoever and he did not produce any evidence until his objections to this court’s

report and recommendation, which was nearly two months after the close of discovery and after

plaintiff’s response to the summary judgment motion was filed. However, defendants made the

same argument in their response to plaintiff’s objections and that argument was clearly rejected

by Judge Borman.2

 Judge Borman ordered that this matter be returned to this court so that

plaintiff’s evidence could be considered and, consequently, the evidence will be considered.

Plaintiff’s whistleblower claim is brought under M.C.L. § 15.362, which states: 

An employer shall not discharge, threaten, or otherwise

discriminate against an employee regarding the employee’s

compensation, terms, conditions, location, or privileges of

employment because the employee, or a person acting on behalf of

the employee, reports or is about to report, verbally or in writing, a

violation or a suspected violation of a law or regulation or rule

promulgated pursuant to law of this state, a political subdivision of

this state, or the United States to a public body, unless the

employee knows that the report is false, or because an employee is

requested by a public body to participate in an investigation,

hearing, or inquiry held by that public body, or a court action. 

“To establish a prima facie case under that statute, a plaintiff must show that (1) the plaintiff was

engaged in protected activity as defined by the act, (2) the plaintiff was discharged or

discriminated against, and (3) a causal connection exists between the protected activity and the

discharge or adverse employment action.” West v. General Motors Corp., 469 Mich. 177,
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183-184, 665 N.W.2d 468, 471 - 472 (2003) (citing Chandler v. Dowell Schlumberger, Inc., 456

Mich. 395, 399, 572 N.W.2d 210 (1998); Shallal v. Catholic Social Services of Wayne Co., 455

Mich. 604, 610, 566 N.W.2d 571 (1997)). 

 Defendants argue that plaintiff cannot establish a prima facie case of retaliation and,

therefore, they are entitled to summary judgment. As discussed above, the party seeking

summary judgment bears the initial burden of demonstrating the absence of a genuine issue of

material fact as to an essential element of the nonmoving party’s claim. Street v. J.C. Bradford

& Co., 886 F.2d 1472, 1479 & n. 12 (6th Cir. 1989) (citations omitted). The movant need not

submit “affidavits or other similar materials negating the [nonmovant’s] claim.” Celotex, 477

U.S. at 323, 106 S.Ct. 2548. It need only identify portions of the record that demonstrate the

absence of a genuine issue of material fact. Mt. Lebanon Pers. Care Home, Inc. v. Hoover

Universal, Inc., 276 F.3d 845, 848 (6th Cir. 2002) (citing Celotex, 477 U.S. at 323, 106 S.Ct.

2548). 

Here, defendants have not submitted any evidence negating plaintiff’s claims, but they do

identify specific portions of the record that demonstrate the absence of a genuine issue of

material fact. As asserted by defendants, plaintiff did not engage in any discovery and he has no

evidence that he was engaged in protected activity, that he suffered an adverse action, or that

there was a causal connection between plaintiff’s alleged protected activity and his termination. 

By identifying those areas where there is an absence a genuine issue of material fact, and where

defendants would be entitled to judgment as a matter of law, defendants have met their initial

burden of demonstrating the absence of a genuine issue of material fact as to an essential element
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of the nonmoving party’s claim. See Mt. Lebanon Pers. Care Home, Inc., 276 F.3d at 848 (citing

Celotex, 477 U.S. at 323, 106 S.Ct. 2548).

Once defendants met their initial burden, the burden shifts to plaintiff to “come forward

with specific facts showing that there is a genuine issue for trial.” Matsushita, 475 U.S. at 587,

106 S.Ct. 1348. In doing so, plaintiff cannot merely rest upon the allegations contained in his

pleadings and he must submit evidence demonstrating that material issues of fact exist. Banks,

330 F.3d at 892; Fed. R. Civ. P. 56(e).

With respect to the protected activity element of plaintiff's retaliation claim, plaintiff

submitted parts of two purported emails. The first email, dated February 12, 2009 and sent at

6:48 a.m., is titled “Official Complaint” and was sent to defendant Huff. In that email, plaintiff

states that he made “a complaint to the Government agency about some unethical therapy

practices followed by Rehab Care groups at Boulevard Temple, Detroit Michigan.” (Plaintiff’s

Exhibit 5, attached as part of D/E#36) The second email, dated February 12, 2009 and sent at

6:06 p.m., is titled “Health Care Fraud” and was sent to HHSTips@oig.hhs.gov. (Plaintiff’s

Exhibit 10, attached as part of D/E #37) Exhibit 10 is only one page, but there is writing on it

stating that it is seven pages. The contents of the page are descriptions of medicare guidelines. 

Viewing that evidence and drawing all reasonable inferences in favor of plaintiff, as the

court must, Matsushita Electric Industrial Co., Ltd., 475 U.S. at 587, plaintiff has failed to

demonstrate the existence of a genuine issue of material fact. Plaintiff did notify Huff that he

filed a complaint to a government agency, but there is no evidence of such protected activity. 

Plaintiff’s second e-mail is incomplete, according to the writing on it, and it does not

demonstrate that any complaint was made. Moreover, the second email was sent after plaintiff
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notified Huff of his complaint, which suggests that it is not the complaint referenced in the

notification. That timing and the incomplete nature of the second email are especially significant

because plaintiff has another ongoing case for retaliation against Ciena, his other employer in

state court. Looking at the record in this case as a whole, a rational trier of fact could not find

that plaintiff engaged in protected activity and no genuine issue for trial with respect to the first

element of plaintiff’s claim. Accordingly, defendants’ motion for summary judgment should be

granted.

With respect to the adverse action element of plaintiff's retaliation claim, plaintiff

provides an email from Tracey Huff to him stating that plaintiff was being laid off. (Plaintiff’s

Exhibit 9, attached as part of D/E #37) Viewing that evidence and drawing all reasonable

inferences in favor of plaintiff, plaintiff has demonstrated that a genuine issue of material fact

exists with respect to the adverse action element of his retaliation claim. 

With respect to the causation element of plaintiff's retaliation claim, plaintiff argues that

he was laid off because of the complaint he made. In support of that argument, plaintiff points to

a February 20, 2009 letter from Rosalyn Calhoun, an employee is Rehab Care’s Human

Resources Department. (Plaintiff’s Exhibit 4, attached as part of D/E #36) In that letter,

Calhoun acknowledges that plaintiff has taken a leave of absence and requests that plaintiff

notify his supervisor at least one week before he intends to return to work. Plaintiff also points

to his February 12, 2009 email to Huff, in which he requested a return to work. (Plaintiff’s

Exhibit 5, attached as part of D/E#36) Similarly, plaintiff provides a February 26, 2009 email he

sent to Huff, in which he again states that he would like to start his job at Boulevard Temple. 

(Plaintiff’s Exhibit 8, attached as part of D/E #37) Additionally, plaintiff provides a copy of a
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Defendants also argue, on the basis of Huff’s affidavit, that Rehab Care Group had a

legitimate, nondiscriminatory reason for their treatment of plaintiff. However, Huff’s affidavit

repeatedly states that plaintiff was not reassigned because he was unavailable for work due to his

personal leave of absence (Affidavit of Tracy Huff, ¶¶ 7-8,10) while plaintiff’s emails to Huff

demonstrate that he wanted to return to work (Plaintiff’s Exhibit 5, attached as part of D/E#36;

Plaintiff’s Exhibit 8, attached as part of D/E #37). Given that factual dispute, summary

judgment is inappropriate on that basis. 

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postcard. (Plaintiff’s Exhibit 14, attached as D/E #38) That postcard states that Rehab Care

currently has openings for occupational and physical therapist.

According to plaintiff, the above evidence demonstrates that he was laid off because of

the complaint he had made. Plaintiff argues that, while plaintiff repeatedly sought work and was

willing to switch locations, he was laid off and told there were no jobs available, despite the fact

that Rehab Care Group was advertising an open physical therapist position on the internet. 

However, even viewing that evidence and drawing all reasonable inferences in favor of

plaintiff, plaintiff has failed to demonstrate that a genuine issue exists with respect to causation. 

The letter from Calhoun is dated after his alleged protected activity, but it still acknowledges that

plaintiff could return to work. Additionally, the postcard plaintiff provided is undated and it

does not provide that location of the open positions. Moreover, while plaintiff states that he was

willing to switch locations, the only requests he makes in the record are for a return to his

position at Boulevard Temple and, in defendant Huff’s affidavit, she states that plaintiff’s

assignment at Boulevard Temple had ended. (Affidavit of Tracy Huff, ¶¶ 6, 8, 10-11) Given

that evidence, no rational trier of fact could find that defendants laid plaintiff off because of his

alleged protected activity and defendants are therefore entitled to summary judgment on that

basis.3
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As discussed above, while plaintiff’s evidence demonstrates that a genuine issue of

material fact exists with respect to the adverse action element of plaintiff’s retaliation, no

rational trier of fact could find for plaintiff with respect to the protected activity and causation

elements of plaintiff’s claim. Accordingly, defendants are entitled to judgment as a matter of

law and their motion for summary judgment should be granted. 

V. Conclusion

For the reasons discussed above, the court recommends that defendants’ motion be

GRANTED and that summary judgment be entered in favor of defendants Rehab Care Group

and Huff. Additionally, because the Jane Doe defendants have not been identified, not been

served and would be entitled to summary judgment on the same basis as the named defendants if

they were part of this case, this court recommends that the case be dismissed in its entirety.

The parties to this action may object to and seek review of this Report and

Recommendation, but are required to act within fourteen (14) days of service of a copy hereof as

provided for in 28 U.S.C. § 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific

objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140

(1985); Howard v. Secretary of HHS, 932 F.2d 505, 508 (6th Cir. 1991); United States v.

Walters, 638 F.2d 947, 949-50 (6th Cir. 1981). The filing of objections which raise some issues,

but fail to raise others with specificity, will not preserve all the objections a party might have to

this Report and Recommendation. Willis v. Secretary of HHS, 931 F.2d 390, 401 (6th Cir.

1991); Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). 

Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this

magistrate judge.
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Within fourteen (14) days of service of any objecting party’s timely filed objections, the

opposing party may file a response. The response shall be no more than 20 pages in length

unless, by motion and order, the page limit is extended by the court. The response shall address 

each issue contained within the objections specifically and in the same order raised.

S/Virginia M. Morgan 

Virginia M. Morgan

United States Magistrate Judge

Dated: August 18, 2010

 

PROOF OF SERVICE

The undersigned certifies that the foregoing document was served upon counsel of record and plaintiff via

the Court’s ECF System and/or U. S. Mail on August 18, 2010.

s/J. Johnson 

Case Manager to

Magistrate Judge Virginia M. Morgan