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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

KELLY ELIAS,

Plaintiff, Case No. 09-13527

HON. GEORGE CARAM STEEH

vs.

PITT, MCGEHEE, PALMER,

RIVERS & GOLDEN, P.C., et al., 

Defendants.

__________________________________/

ORDER ACCEPTING IN PART AND REJECTING IN PART REPORT AND

RECOMMENDATION, GRANTING DEFENDANTS’ MOTION TO DISMISS [#12] AND

DISMISSING ACTION WITHOUT PREJUDICE

I. INTRODUCTION 

On May 19, 2010, Magistrate Judge Mona K. Majzoub filed a report and

recommendation recommending that the court grant defendants’ motion to dismiss as to

plaintiff’s discrimination claim under the Michigan Persons With Disabilities Civil Rights Act,

MICH. COMP. LAWS §37.1101 et seq. (PWDCRA), and deny defendants’ motion to dismiss

with respect to plaintiff’s claim under the Family and Medical Leave Act, 29 U.S.C. § 2601

et seq. (FMLA), discrimination claim under the Americans with Disabilities Act, 42 U.S.C.

§ 12101 et seq. (ADA), and retaliation claim under the PWDCRA. On June 2, 2010,

defendants filed objections to the report and recommendation.

Plaintiff, proceeding pro se, filed the instant action on September 4, 2009 against
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her former employer, Pitt McGehee Palmer Rivers & Golden (PMPRG), two of its partners,

and the office administrator alleging that she was continually harassed, written up, and

verbally abused due to her need to take time off to care for her disabled daughter. Plaintiff

claims that between September of 2006 through September of 2007 she was needed at

numerous court appearances relating to her four year old daughter, who was the victim of

a sex crime by a family friend. Plaintiff claims that her daughter began suffering from

severe separation anxiety in March of 2007. Plaintiff claims that she was ultimately

terminated in retaliation for taking time off to care for her daughter in violation of the FMLA

and the PWDCRA, and discriminated against due to her association with her disabled child

in violation of the ADA and the PWDCRA. 

On March 5, 2010, the defendants filed a motion to dismiss requesting that plaintiff’s

complaint be dismissed in its entirety because none of her claims allege sufficient facts to

state a claim upon which relief may be granted. Upon review of the parties’ briefs, the

report and recommendation, and defendants’ objections, the court concludes that plaintiff’s

complaint should be dismissed. However, the court will permit the plaintiff to file an

amended complaint to address the deficiencies in the FMLA claim as more fully described

below.

II. ANALYSIS 

A. Standard of Review 

The standard of review to be employed by the court when examining a report and

recommendation is set forth in 28 U.S.C. § 636. This court “shall make a de novo

determination of those portions of the report or specified proposed findings or
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recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)©. This court “may

accept, reject or modify, in whole or in part, the findings or recommendations made by the

magistrate.” Id. 

B. FMLA 

Defendants object to the magistrate judge’s conclusion that plaintiff’s complaint

provides defendants with fair notice of her claim under the FMLA. Defendants argue that

plaintiff’s allegation that PMPRG is “an employer whom honored the meaning of the Family

and Medical Leave Act[]” is insufficient to establish that PMPRG is an employer within the

meaning of the FMLA. 

The FMLA entitles an employee to take up to twelve weeks of unpaid leave without

fear of termination “[i]n order to care for the spouse, or a son, daughter, or parent, of the

employee, if such spouse, son, daughter, or parent has a serious health condition.” 29

U.S.C. § 2612(a)(1)©. The FMLA defines an employer as “any person . . . who employs 50

or more employees.” 29 U.S.C. § 2611(4)(A)(I). “Plaintiff has the burden of presenting

evidence sufficient to show that Defendant is a covered “employer” as that term is defined

by Congress in the FMLA.” Nichols v. All Points Transp. Corp. of Mich., Inc., 364 F. Supp.

2d 621, 627 (E.D. Mich. 2005). The FMLA defines a serious health condition as “an illness,

injury, impairment or physical or mental condition that involves–(A) inpatient care in a

hospital, hospice or residential medical care facility; or (B) continuing care by a health care

provider.” 29 U.S.C. § 2611(11). 

 Here, plaintiff’s complaint alleges that defendants had a duty under the FMLA to

“provide plaintiff with up to 12 weeks of leave for a serious health condition which rendered
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plaintiff unable to perform the functions of her position and/or in order to care for a daughter

who has a serious health condition. . . [and] an obligation to provide plaintiff with the ability

to take her leave time on an intermittent or reduced leave schedule.” Compl. ¶ 44. Rule

8(a)(2) of the Federal Rules of Civil Procedure requires a short and plain statement of the

claim demonstrating that the plaintiff is entitled to relief. Fed. R. Civ. P. 8(a)(2). “However,

a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

Inasmuch as plaintiff does not state that PMPRG employed fifty or more employees, her

claim lacks sufficient factual allegations to survive as it is. In this regard, the court should

also consider unique pleading requirements for pro se litigants. “A document filed pro se

is ‘to be liberally construed’ and ‘a pro se complaint, however inartfully pleaded, must be

held to less stringent standards than formal pleadings drafted by lawyers.’” Erickson v.

Pardus, 551 U.S. 89, 90 (2007) (internal citation omitted.) Additionally, PMPRG could have

presented documentation establishing that it is not an employer as defined under the

FMLA. At that point, the court could have converted its motion to a motion for summary

judgment and required plaintiff to submit evidence to the contrary. For these reasons, the

court will allow plaintiff to amend her pleading to allege with specificity that PMPRG is an

employer subject to the FMLA, if she believes facts exist to conclude that PMPRG falls

within the definition of employer under the Act. 

Further, the court notes that the magistrate judge did not address defendants’

alternate argument that plaintiff failed to allege that either she or her daughter suffered from

a “serious medical condition”. In response to defendants’ motion to dismiss, plaintiff

submitted doctor’s notes that she supplied to defendants during her employment. These
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doctors notes reveal that in March and November of 2007, plaintiff suffered from sinusitis

and a migraine headache. This does not demonstrate that plaintiff suffered from an illness

requiring inpatient care at a hospital nor that her illness required continuing care from a

health care provider. See 29 U.S.C. § 2611(11). Similarly, plaintiff alleges that her

daughter suffered from severe separation anxiety and that she provided defendant

McGehee with documentation from her daughter’s therapist. These factual allegations are

not enough to equate to an illness requiring “inpatient care” or “continuing care from a

health care provider,” as required by the FMLA. The FMLA entitles eligible employees to

a total of 12 workweeks of leave “because of a serious health condition” or “in order to care

for a [] daughter [who] has a serious health condition.” 29 U.S.C. §2612(a)(1)(C)-(D).

Therefore, plaintiff has failed to allege “sufficient factual matter, accepted as true, to ‘state

a claim to relief that is plausible on its face.’” Ashcroft, 129 S. Ct. at 1949. 

Plaintiff’s claim under the FMLA is dismissed. However, because plaintiff is

proceeding pro se, the court will give her an opportunity to amend her complaint in order to

allege sufficient facts (1) describing facts sufficient to conclude a serious health condition

entitled her to protection, and (2) demonstrating that PMPRG is an employer within the

meaning of the FMLA. 

C. ADA 

In her complaint, plaintiff alleges that “she was harassed, written up and verbally

abused on a regular basis over her need for time off to care for her disabled daughter.”

Defendants object to the magistrate judge’s conclusion that these allegations state a claim

of “association discrimination” under the ADA. 

Plaintiff’s claim arises under §12112(b)(4), which prohibits an employer from
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discriminating against “a qualified individual because of the known disability of an individual

with whom the qualified individual is known to have a relationship or association.” 42

U.S.C. §12112(b)(4). There is a scarcity of law on this provision of the ADA, however in

an unpublished decision, the Sixth Circuit Court of Appeals adopted the Tenth Circuit Court

of Appeals’ decision in Den Hartog v. Wasatch Academy, 129 F. 3d 1076, 1085 (10th Cir.

1997), which set forth the elements a plaintiff must satisfy to establish a claim under §

12112(b)(4). See Overley v. Covenant Transport, Inc., 178 Fed. Appx. 488, 493 (6th Cir.

April 27, 2006). Specifically, plaintiff must demonstrate that (1) she was qualified for the

position; (2) she was subject to an adverse employment action; (3) she was known to have

a relative with a disability; and (4) the adverse employment action occurred under a

circumstance that raises a reasonable inference that the disability of the relative was a

determining factor in the decision. Id. 

Plaintiff has not provided sufficient facts to state a claim that is plausible on its face.

Plaintiff’s claim fails on the last prong of this test because she has not alleged any facts that

raise a reasonable inference that her daughter’s disability was the determining factor

behind any adverse employment decision. Plaintiff alleges that “she was harassed, written

up and verbally abused on a regular basis over “ her time off. An employee who files a

claim under §12112(b)(4) is not protected to the same extent as a disabled employee

because an employer has no duty to reasonably accommodate an employee based on his

or her association with a disabled person. Overley, 178 Fed. Appx. at 493 (citing 29

C.F.R. Pt. 1630, App. (§ 1630.8); Den Hartog, 129 F. 3d at 1084-85). The Seventh Circuit

Court of Appeals has explained the circumstances under which an employee may be

afforded protection under §12112(b)(4). See Larimer v. IBM Corp., 370 F.3d 698, 700 (7th
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Cir. 2004). The Larimer court held:

Three types of situation are, we believe, within the intended scope of the

rarely litigated (this is our first case) association section. We’ll call them

‘expense,’ ‘disability by association,’ and ‘distraction.’ They can be illustrated

as follows: an employee is fired (or suffers some other adverse personnel

action) because (1) (‘expense’) his spouse has a disability that is costly to the

employer because the spouse is covered by the company’s health plan; (2a)

(‘disability by association’) the employee’s homosexual companion is infected

with HIV and the employer fears that the employee may also have become

infected, . . .; (2b) another example of disability by association) one of the

employee’s blood relatives has a disabling ailment that has a genetic

component and the employee is likely to develop the disability as well (maybe

the relative is an identical twin; (3) (‘distraction’) the employee is somewhat

inattentive at work because his spouse or child has a disability that requires

his attention, yet not so inattentive that to perform to his employer’s

satisfaction he would need an accommodation, . . . the right to an

accommodation, being limited to disabled employees, does not extend to a

nondisabled associate of a disabled person.

Larimer v. IBM Corp., 370 F.3d 698, 700 (7th Cir. 2004). The facts supporting plaintiff’s

claim do not suggest that her daughter’s disability was the reason behind defendants’

alleged misconduct. Rather, plaintiff specifically states that defendants refused to

accommodate her schedule as it related to her daughter. See Overley, 178 Fed. Appx. at

494 (employer “ha[s] no duty under the ADA to adjust [plaintiff]’s work schedule or allow

her to miss work to care for her daughter.”); see also, Erdman v. Nationwide Insurance Co.,

582 F. 3d 500, 510 (3d Cir. 2009) (“[T]he association provision does not obligate employers

to accommodate the schedule of an employee with a disabled relative.”). The court

therefore sustains defendants’ objection and rejects the magistrate judge’s conclusion that

plaintiff has stated an association discrimination claim under the ADA. Plaintiff’s ADA claim

is therefore dismissed.

D. PWDCRA

The court accepts and adopts the magistrate judge’s conclusion that plaintiff’s
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complaint fails to state a claim of discrimination under the PWDCRA. Plaintiff’s claim that

she is a qualified individual based on her association with a disabled person is insufficient

to state a discrimination claim under the PWDCRA. See MICH. COMP. LAWS § 37.1102; §

37.1103(d)(I). The magistrate judge also concluded that plaintiff stated a claim for

retaliation under the PWDCRA. Defendants object to the magistrate judge’s conclusion as

to plaintiff’s PWDCRA retaliation claim.

It is unlawful in Michigan for “a person . . . [to] retaliate or discriminate against a

person because the person has opposed a violation of this act, or because the person has

made a charge, filed a complaint, testified, assisted, or participated in an investigation,

proceeding or hearing under this act.” MICH.COMP.LAW § 37.1602. In order to state a claim

for unlawful retaliation, plaintiff must allege that: (1) she engaged in protected activity; (2)

that this was known by the defendant; (3) that the defendant took an employment action

adverse to the plaintiff; and (4) that there was a causal connection between the protected

activity and the adverse employment action. See Aho v. Mich. Dep’t of Corr., 263 Mich.

App. 281, 288-89; 688 N.W. 2d 104 (2004). 

The magistrate judge relied on plaintiff’s allegations that defendant Pitt was aware

that she had filed a Michigan Employment Security Commission charge and subsequently

backdated the cancellation of her medical coverage. These allegations do not state a claim

for retaliation under the PWDCRA. Plaintiff does not allege that her claim for

unemployment benefits asserted a violation of the PWDCRA. Plaintiff’s allegations lack

the requisite facts to state a claim, specifically that she alleged a violation of the PWDCRA

in the submission of her claim for unemployment benefits. 

Additionally, to the extent the magistrate judge relies on the allegation that plaintiff
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filed an allegation with the Equal Employment Opportunity Commission (EEOC), such an

allegation cannot support a claim for retaliation under the PWDCRA. Plaintiff states that

subsequent to her termination she filed an EEOC charge “arising out of her termination

from employment alleging a violation of the []the Michigan Persons with Disabilities Civil

Rights Act . . . .” Compl., ¶ 31. While this may be protected activity under the PWDCRA,

plaintiff cannot establish the requisite casual connection between her protected activity and

the adverse employment action because at the time she filed the EEOC charge, she had

already been allegedly terminated from employment. Thus, plaintiff has failed to allege

sufficient facts to state a claim for relief that is plausible on its face. The court sustains

defendants’ objection and rejects the magistrate judge’s conclusion that plaintiff has stated

a retaliation claim under the PWDCRA. 

III. CONCLUSION

For the reasons set forth above, the magistrate’s May 19, 2010 report and

recommendation is accepted in part and rejected in part. 

Defendants’ motion to dismiss [#12] is GRANTED.

Plaintiff’s complaint is dismissed without prejudice. 

Plaintiff shall file an amended complaint setting forth sufficient factual allegations to

state a claim under the FMLA no later than December 3, 2010. In the event such an

amended complaint is not filed by that date, this dismissal shall be with prejudice.

IT IS SO ORDERED. 

Dated: November 10, 2010

S/George Caram Steeh 

GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE
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CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

November 10, 2010, by electronic and/or ordinary mail and

also to Kelly Elias at 6226 N 47th Drive, Glendale, AZ 85301.

S/Josephine Chaffee

Deputy Clerk