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Jones v. Progressive Casualty Insurance Co.

United States District Court, E.D. Kentucky, Southern Division, London

September 24, 2019

KENTON JONES, Plaintiff,
v.
PROGRESSIVE CASUALTY INSURANCE COMPANY, et al., Defendants.

          OPINION & ORDER

          ROBERT E. WIER, UNITED STATES DISTRICT JUDGE

         A variety of protections extend to employees after on-the-job injuries. Employers must navigate such safeguards before getting an injured employee back to work. The success of the efforts comes down to effective communication between all involved parties. Crossed wires sparked this suit.

         Employer and employee were never on the same page. The parties’ clumsy dialogue led to a premature return to work and, ultimately, a termination. Plaintiff solely blames his former employer, now adverse litigant, for the bungling. Defendant attributes fault entirely to Plaintiff’s alleged deception and shirking. As the Court sees the record, the truth lies somewhere in the middle. Defendant’s team did not adequately broadcast (or even comprehend) Plaintiff’s FMLA status or account for schematic protections in bringing Plaintiff back on board. But Plaintiff, whether through unintentional misstatements or willful deceit, gave Defendant ample grounds to fire him. Accordingly, the Court, at this summary judgment stage, dismisses most of Plaintiff’s voluminous claim slate, but sees a record that, under the applicable standards, does not wholly absolve Defendant of liability as a matter of law.

         1. BACKGROUND

         On December 19, 2016, Plaintiff Kenton Jones fell while inspecting a cattle trailer for his job as a Claims Adjuster for Defendant Progressive.[1] See DE 60-9 at 14 (December 20, 2016, Jones e-mail). The tumble injured Jones’s shoulder and back. See DE 60-10 at 2 (Rockcastle Cty. Regional Hosp. Records). A treating physician excused Jones from work until December 26, 2016. Id. at 5. At a December 28, 2016, follow-up, Dr. Carol McFadden (a nurse practitioner) authorized Jones, with certain restrictions, to return to work immediately. See DE 60-13 at 1 (Baptist Health Workers’ Comp Form). A week later, Dr. McFadden marginally reduced these restrictions. Id. at 2. Jones had vacation anyway until January 2. See DE 60-11 (December 12, 2016, Jones e-mail).

         On January 5, 2017, Progressive, on McFadden’s certification, approved Jones for Family and Medical Leave Act (“FMLA”) leave from December 19, 2019, to January 31, 2017. See DE 64-1 (FMLA Approval Notice). However, on several occasions in early January, Progressive employees contacted Jones regarding a return to work. On January 2, 2017, Jones’s supervisor John Watson e-mailed: “I had received a notification that you would be back today? Any update you can provide?” DE 60-9 at 21. Jones advised that he was awaiting medical paperwork and that “they have taken me off work longer than expected.” Id. at 20 (Jan. 2, 2017, Jones e-mail to Watson). The next day, Progressive Leave Specialist Sharon Kemp e-mailed Jones: “I just wanted to make sure that you have made it back to work.” Id. at 22. On the morning of January 5, 2017, Kemp called Jones and advised that Progressive HR Consultant Jennifer Liebler believed that the Company could accommodate Dr. McFadden’s restrictions. See Id . at 31 (Jan. 5, 2017, Kemp e-mail memorializing call). Jones, who typically did field not desk work, raised doubts about any accommodations given that the injury limited use of his dominant hand. Id. Kemp advised that she would reach back out to Jones after confirming with HR and would “get him back to work as early as tomorrow.” Id. Later that day, Kemp e-mailed notice that Progressive was “able to accommodate” Dr. McFadden’s restrictions and that it would “expect” Jones to return to normal working hours the next morning. Id. at 33 (e-mail). Jones did not (at that time) receive Kemp’s afternoon message. See DE 64-20 (Jones’s recording of Jan. 17, 2017, call) at 02:30 (Jones denying receiving Progressive communications on the afternoon of Jan. 5, 2017).

         On Friday, January 6, 2017, Liebler called Jones to confirm the Company accommodations and relayed Progressive’s expectation that Jones return in a light-duty role on Monday, January 9. DE 64 (Pl.’s Resp.) at 4; DE 60-9 at 39 (Jan. 6, 2017, Liebler e-mail memorializing call). Jones advised Liebler that he was unable to return on January 9, 2017, because of an intervening personal trip to Arizona. DE 64 at 4. Thus, Liebler (seeded with doubt) advised that Progressive would expect Jones back on January 11. Id . Liebler quietly began a probe that day. See DE 60-9 at 2 (Liebler notes).

         When Jones returned on January 11 for light duty, his supervisor (Watson) sent him eleven requirements for the modified role. DE 64-15 (Watson e-mail to Jones: “Light Duty Assignment Requirements / Expectations”). Progressive’s daily expectations included, as relevant here, that Jones: (1) e-mail Watson each day at 8:30 to confirm he was at work, (2) complete a spreadsheet tracking “each claim” Jones worked on, and (3) send Watson the updated spreadsheet each day by 5:15. DE 64-15. The same day, Liebler, Watson, and (Watson’s supervisor) Christopher Leissner interviewed Jones about certain perceived discrepancies in Jones’s Arizona trip explanation and the resulting delay in his return to work. DE 60-9 at 7 (Liebler notes). Though Leissner and Watson later corroborated much of Liebler’s narrative, Jones disputes many statements that Liebler’s January 11 notes attribute to him.

         Progressive worried that Jones had deceptively avoided a work return. The Company perceived that Jones actively misled it with respect to his work release status. Further, Jones planned a private Arizona trip-thus intending to be away-while the Company worked to bring him back into the office. Jones either did not promptly disclose the trip or was dodgy on the details and sequence. Jones knew Kemp was confirming the Progressive accommodations for him on January 5, with intent that he return to work on January 6. Despite that, he said nothing to Kemp about going to Arizona. Further, on January 6, Jones gave the impression, a misdirecting one, that he was in or en route to Arizona. His plane did not depart Kentucky until hours after his conversation with Liebler on January 6 (and he arrived in Cincinnati the night before the Liebler call).

         Liebler investigated based on her recollection of the January 11 call. Jones provided his January 4, 2017, booking information for a 2:26 p.m., January 6, 2017, flight from Cincinnati, Ohio, to Phoenix, Arizona. DE 60-9 at 53 (Jan. 13, 2017, Jones email to Liebler); id. at 55 (image reflecting itinerary). On January 17, 2017, the same Progressive team conducted a second phone interview, which Jones secretly recorded. See DE 64-20 (Jones’s recording). On the call, Liebler focused primarily on perceived Jones lies regarding his ticket purchase and Arizona departure dates. Id. Jones maintained, throughout, that he did not lie and suggested that any discrepancies were simply a result of misremembering, unintentional misstatements, or because he was “caught off guard.” See, e.g., id. at 16:35 & 18:00. Progressive, unpersuaded, ultimately terminated Jones for lack of integrity during the January 17 call. Id. at 16:00. Jones vowed to sue.

         Based on these events and certain subsequent Progressive conduct, [2] Jones seeks recovery under thirteen separate theories. See DE 25 at 4–11 (Amended Complaint). He alleges: FMLA interference (Count I); FMLA retaliation (Count II); intentional (Count III) and negligent (Count IV) infliction of emotional distress; negligence/vicarious liability (Count V); breach of contract (Count VI); conversion (Count VII); a KRS 337.385 wage violation (Count VIII); Kentucky workers’ compensation retaliation (Count IX); interference with contract (Count X); wrongful use of administrative proceedings (Count XI); negligence per se (Count XII); and punitive damages (Count XIII). Id. Progressive pursues summary judgment on each claim. DE 60 (Motion). The motion is fully briefed and ripe for review. DE 64 & 69 (Response & Reply).

         II. STANDARD

         A court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A reviewing court must construe the evidence and draw all reasonable inferences from the underlying facts in favor of the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 106 S.Ct. 1348, 1356 (1986); Lindsay v. Yates, 578 F.3d 407, 414 (6th Cir. 2009). Additionally, the court may not “weigh the evidence and determine the truth of the matter” at the summary judgment stage. Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2511 (1986).

         The burden of establishing the absence of a genuine dispute of material fact initially rests with the moving party. Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2553 (1986) (requiring the moving party to set forth “the basis for its motion, and identify[] those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ’ which it believes demonstrate an absence of a genuine issue of material fact”); Lindsay, 578 F.3d at 414 (“The party moving for summary judgment bears the initial burden of showing that there is no material issue in dispute.”). If the moving party meets its burden, the burden then shifts to the nonmoving party to produce “specific facts” showing a “genuine issue” for trial. Celotex Corp., 106. S.Ct. at 2253; Bass v. Robinson, 167 F.3d 1041, 1044 (6th Cir. 1999). However, “Rule 56(c) mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp., 106 S.Ct. at 2552; see also Id . at 2557 (Brennan, J., dissenting) (“If the burden of persuasion at trial would be on the non-moving party, the party moving for summary judgment may satisfy Rule 56’s burden of production in either of two ways. First, the moving party may submit affirmative evidence that negates an essential element of the nonmoving party’s claim. Second, the moving party may demonstrate to the Court that the nonmoving party’s evidence is insufficient to establish an essential element of the nonmoving party’s claim.” (emphasis in original)).

         A fact is “material” if the underlying substantive law identifies the fact as critical. Anderson, 106 S.Ct. at 2510. Thus, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. A “genuine” issue exists if “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Id. at 2511; Matsushita Elec. Indus. Co., 106 S.Ct. at 1356 (“Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’”) (citation omitted). Such evidence must be suitable for admission into evidence at trial. Salt Lick Bancorp v. FDIC, 187 F. App’x 428, 444–45 (6th Cir. 2006).

         III. DISCUSSION

         A. FMLA Claims

         Jones alleges two distinct FMLA theories: interference, [3] DE 25 at ¶¶ 20–24, and retaliation, [4] id. at ¶¶ 25–28. The Sixth Circuit provides the essential claim elements:

To prevail on an interference claim under the FMLA, an employee must show: “(1) he was an eligible employee; (2) Defendant was an employer subject to the FMLA; (3) he was entitled to leave under the FMLA; (4) he gave his employer notice of his intention to take FMLA leave; and (5) Defendant denied him FMLA benefits to which he was entitled.Romans v. Mich. Dep’t of Human Servs., 668 F.3d 826, 840 (6th Cir. 2012) (citation omitted). To establish a prima facie case of retaliation under the FMLA, [a plaintiff] “must show that (1) he engaged in an activity protected by the Act; (2) Defendant took an adverse employment action against him; and (3) that there was a causal connection between the protected activity and the adverse employment action.” Id. at 842 (citation omitted).

Hodnett v. Chardam Gear Co., Inc., 749 F. App’x 390, 393–94 (6th Cir. 2018). Absent direct evidence, the prevailing McDonnell Douglas burden-shifting framework applies to FMLA retaliation and interference claims. See Groening v. Glen Lake Cmty. Sch., 884 F.3d 626, 630 (6th Cir. 2018) (Plaintiff “offers circumstantial evidence to support this [retaliation] claim, so we apply the McDonnell Douglas burden-shifting framework.”); Mullendore v. City of Belding, 872 F.3d 322, 327 (6th Cir. 2017) (“[A] plaintiff’s success in establishing her prima facie [interference] case does not create a strict liability regime for employers[.]”). Under this rubric, an employer confronting a facially valid claim may proffer “a legitimate reason unrelated to the exercise of FMLA rights for engaging in the challenged conduct.” Grace v. USCAR, 521 F.3d 655, 670 (6th Cir. 2008). A plaintiff must rebut an employer’s qualifying proffer “by a preponderance of the evidence.” Id. The employee must, alternatively, show that the explanation “(1) has no basis in fact, (2) did not actually motivate . . ., or (3) was insufficient to warrant the challenged conduct.” Mullendore, 872 F.3d at 328 (quotation marks and citation omitted).

         1. Interference

         As to the interference claim elements, Progressive disputes only the fifth. Specifically, Defendant contends that it gave Jones all statutorily required leave. DE 61-1 at 18–20. In response, Jones claims Progressive: (A) “chilled” his exercise of FMLA rights, (B) disciplined him for using FMLA time, and (C) forced him to return work during FMLA leave. DE 64 at 17–19. For various reasons, the Court rejects the first two theories but accepts the last.

         “Chilling”

         “Interfering with the exercise of an employee’s rights would include, for example, not only refusing to authorize FMLA leave, but discouraging an employee from using such leave.” 29 C.F.R. § 825.220.[5] However, the mere possibility that “an employer’s conduct might ‘chill’ use of FMLA leave is not enough[.]” Bonfiglio v. Toledo Hosp., No. 3:16CV2163, 2018 WL 5761220, at *12 (N.D. Ohio Nov. 1, 2018). Jones needed to offer proof that Progressive’s conduct “in fact, caused h[im] or any other employee to refrain from requesting or using” such leave. Id. (citation and quotation marks omitted); see also Saroli v. Automation & Modular Components, Inc., 405 F.3d 446, 454-55 (6th Cir. 2005). Because Jones fails to show any actual discouragement, his “chilling” theory fails. See Ragsdale, 122 S.Ct. at 1161 (The FMLA remedies provision “provides no relief unless the employee has been prejudiced by the violation[.]”).

         For instance, Jones alleges that it was “impossible for him to comply with all of his employer’s contradictory requests” and that Kemp, Liebler, & Watson had “wildly different ideas about when and why Mr. Jones should return to work[.]” DE 64 at 17. True or not, Jones fails to connect either contention to actual repression of his FMLA use. Jones has always claimed that he came back to work as soon as he received an unequivocal direction to do so, i.e., after Liebler explicitly confirmed that Progressive could accommodate his restrictions and would expect him back on January 11, 2017. See DE 64 at 4 (listing pre-return communications); DE 60-2 at 18 (Jones confirming that if they “told me to come back under these restrictions, then I would have come back”); DE 64-20 at 02:00 (Jones explaining that he did not advise Sharon Kemp that he could not return on January 5, 2017, because Kemp never confirmed that Progressive could accommodate his restrictions). Thus, whether or not Jones was confused about when Progressive expected him to return, there is no evidence that such a misunderstanding truncated his time off. Mix ups on Progressive’s end, if anything, extended (from Jan. 4 to Jan. 11) Jones’s leave.[6] Because Jones failed to produce any evidence that Progressive policies or conduct actually “chilled” his FMLA use, Defendant is entitled to summary judgment on this theory.[7] See Archey v. AT&T Mobility Servs. LLC, No. CV 17-91-DLB-CJS, 2019 WL 1434654, at *7 (E.D. Ky. Mar. 29, 2019) (“Plaintiff points to no evidence showing that she was deterred from pursuing FMLA leave as a result of AT&T’s conflicting policies. . . . Therefore, the Court rejects this aspect of Plaintiff’s FMLA-interference claim.”).

         Discipline

         Jones also fails to establish that alleged “retaliatory conditions” after he returned to work denied him any benefits he was owed. First, the FMLA scheme permits employers to offer a “light duty assignment while [an employee is] recovering from a serious health condition.” 29 C.F.R. § 825.220(d) (emphasis added). Progressive, through Watson, expressly tapped Jones’s revised responsibilities as “Light Duty Assignment Requirements / Expectations[.]” DE 64-15 (Watson 1/11/17 e-mail to Jones). Second, and given Jones’s claim that he was physically unable to perform his normal job responsibilities, [8] see DE 60-2 at 16 (Dep. at 16), the FMLA gave Plaintiff no right to reinstatement to his prior role (or, for that matter, any other position)-at least at that time. See, e.g., 29 C.F.R. § 825.2169(c) (“If the employee is unable to perform an essential function of the position because of a physical or mental condition . . . the employee has no right to restoration to another position under the FMLA.”); Hoge v. Honda of Am. Mfg., Inc., 384 F.3d 238, 245–46 (6th Cir. 2004) (“[T]he right to restoration does not arise unless the returning employee is able to perform the essential functions of the position or an equivalent.”). Put simply, Progressive, by assigning modified light-duty responsibilities, did not deny Jones any “FMLA benefits to which he was entitled.” Romans, 668 F.3d at 840.

         Jones’s alternative “discipline” theory, based on Progressive’s investigation into the validity of his leave, is also fatally flawed. As with his “chilling” theory, Jones does not tether the investigation to any specific impairment of his FMLA rights. Jones does not claim (and no evidence suggests) that but for the investigation he would have requested additional time-off. Further, in the Sixth Circuit, “employers are permitted to investigate their employees for wrongdoing, including wrongdoing related to protected leave.” Groening, 884 F.3d at 631 (quoting Dendinger v. Ohio, 207 F. App’x 521, 527 (6th Cir. 2006) (“We have repeatedly held . . . that neither an internal investigation into suspected wrongdoing by an employee nor that employee’s placement on paid administrative leave pending the outcome of such an investigation constitutes an adverse employment action.”)). Progressive did no more.

         In sum, Progressive’s modification of Jones’s duties after his return was consistent with an FMLA authorized light-duty position. Given Jones’s undisputed health status at the time, Progressive did not deny Plaintiff any FMLA entitlement by failing to restore him to his prior role. Nor did Progressive’s investigation regarding dishonesty- i.e., a “lawful, non-retaliatory bas[is] for termination”-itself interfere with Jones’s FMLA rights. Seeger v. Cincinnati Bell Tel. Co., LLC, 681 F.3d 274, 284 (6th Cir. 2012); see Kitts v. Gen. Tel. N., Inc., No. 2:04-CV-173, 2005 WL 2277438, at *11 (S.D. Ohio Sept. 19, 2005) (“[N]othing in the FMLA prohibits an employer from investigating allegations of dishonesty[.]”). Finally, Plaintiff offers no rebuttal for Progressive’s non-FMLA explanations for the investigation or light-duty modifications. Grace, 521 F.3d at 670 (“[I]nterference with an employee’s FMLA rights does not constitute a violation if the employer has a legitimate reason unrelated to the exercise of FMLA rights for engaging in the challenged conduct.” (quotation marks and citation omitted)).[9] Jones’s discipline-based interference theories fail as a matter of law.

         “Forced” Return to Work

         Jones offers little to build on the conclusory assertion that Progressive forced him to return to work on January 11. See DE 64 at 19. Nonetheless, the Court finds the full record amply supportive, and the theory survives summary judgment. The key question, under the relevant regulation, is whether Progressive “coerced” Jones to return on light duty by, e.g., making acceptance “a condition of employment.” 29 C.F.R. § 825.220(d). An employer may offer an employee on FMLA leave a light-duty return, but the employer may not demand that such employee accept. Id. (authorizing “an employee’s voluntary and uncoerced acceptance (not as a condition of employment) of a light duty assignment”); Stein v. Atlas Indus., Inc., 730 F. App’x 313, 317 (6th Cir. 2018) (“Stein is correct that an employer may not require that an employee return to work once cleared for light duty if the employee has unexhausted FMLA leave.”).

         For proof on the issue, Jones relies on two sub-theories. First, he construes Watson’s purported admission that Jones’s termination was a result of absence on a (subsequently approved) FMLA day as proof that acceptance of light duty was mandatory. DE 64 at 15. Next, Jones argues that nobody from Progressive explicitly told him that he could continue his FMLA leave rather than accept the light-duty assignment. Id. Progressive, in reply, contends that Watson made no such concession and that Jones purportedly admitted that he returned to work voluntarily. DE 69 at 1–3.

         Both sides make too much of ambiguous deposition statements. Watson’s statement hardly amounts to an admission that Progressive fired Jones because he failed to show up while on FMLA leave. Given the full deposition context, the Court finds that Watson’s statement provides no more than a scintilla of evidence that the identified January 2 absence drove Progressive’s termination decision. See Staunch v. Continental Airlines, Inc., 511 F.3d 625, 628–29 (6th Cir. 2008) (“It is not sufficient for the party opposing summary judgment to present a ‘mere scintilla’ of evidence; the evidence must be such that a reasonable jury could find in her favor.”). Watson broadly stated on several occasions that Jones was terminated for dishonesty. DE 69-1 at 4 (Dep. at 24); id. at 9 (Dep. at 49). Watson, having already testified that he did not remember specific dates, merely confirmed what a document reflected, i.e., that he believed Jones was supposed to be at work on January 2. See DE 64-16 at 4 (Dep. at 54); id. at 5 (Dep. at 25); DE 69-1 at 7 (Dep. at 39). Jones treats this one-off statement from an admitted date-amnesic manager as indicative directly of intent. The Court is unpersuaded.

         The communications indicate that Watson believed Jones was supposed to be back on January 2, 2017. DE 60-9 at 21 (Jan. 2, 2017, Watson e-mail to Jones: “I had received a notification that you would be back today? Any Update you can provide?”).[10]However, nothing about the tone of Watson’s communication or Jones’s response suggests that either believed a January 2, 2017, return was mandatory. See Id . (Jan. 2, 2017, Jones e-mail to Watson: “Mr. Wats[, ] Hello sorry I was waiting to get the paperwork back from the Doctor they have taken me off work longer than expected[.]”). Plaintiff, himself, attributed Watson’s e-mail query to the end of a vacation that Jones scheduled pre-injury. See DE 69-2 at 4 (Jones Dep. at 98).

         Finally, the Court notes that as of January 5, 2017, Jennifer Liebler (who ultimately initiated Progressive’s investigation) “suggested] that [Progressive] accommodate the light duty request as of now” and anticipated that if such work ran dry Progressive would “send him back out until he’s released to full duty[.]” DE 60-9 at 27 (Jan. 5, 2017, Liebler e-mail). In short, the full record conclusively shows that a January 2 return was not a condition of Jones’s employment. Three days later, Progressive was contemplating a light-duty accommodation and, indeed, directed Jones to return on light duty more than a week after his January 2 absence.

         However, contrary to Progressive’s reading, Jones’s testimony (along with Progressive’s overtures) is hardly unequivocal as to a January 11, 2017, voluntary return. Jones stated that he would have returned if Progressive “told” him to come back and would have done whatever Progressive “told [him] to do[.]” DE 60-2 at 18 (Dep. at 117). Given workplace power dynamics, a manager’s unvarnished directive carries inherent coercive import.[11] Logically, an employee receiving a superior’s directions faces, at least, implied consequences (up to and including termination) for failure to comply. In other words, despite Progressive’s portrayal, Jones did not concede that his return was voluntary. Indeed, Jones explicitly claimed Progressive forced him “to come back to work[.]” DE 60-2 at 29 (Dep. at 180).

         Jones’s testimony does not stand alone. Progressive employees repeatedly cast Jones’s return as a flat expectation and never presented continued leave as an option. See, e.g., DE 60-9 (Liebler Declaration at 4 “he is supposed to return to work”); id. at 31 (Kemp 1/5/17 email-“When I spoke with [Jones] today I told him that . . . if we can accommodate we would expect you back to work immediately.”); id. at 33 (Kemp 1/5/17 email to Jones-“We are able to accommodate your restrictions . . . [and] will expect your return to work to your normal hours tomorrow at your local office.”). In truth, it seems that FMLA coverage and related strictures were not on the Progressive team’s radar in coordinating Jones’s return. See, e.g., Id . at 23 (Liebler 1/5/17 email to Kemp- “[everything we have in hand indicates that [Jones] was supposed to be back to work on 1/2/17”). [The dearth of FMLA references in the investigative file is confirming. See generally id.] Rather, (and as Defendant contends) Liebler, Kemp, and Watson “expected” Jones to follow his doctor’s restrictions, “returning to work when the provider certified that he could do so, consistent with workers’ compensation laws.” DE 61-1 at 20; DE 60-9 at 39 (Liebler 1/6/17 email-“I spoke to Kenton briefly this morning. I informed him that the business can accommodate . . . and he is expected to return to work.”); DE 64-20 at 6:30 (Liebler on 1/17/17 call-“you actually left after I informed you of the requirement to return to light duty” (emphasis added)). The problem (for Progressive) is, an employee that “no longer qualifies] for payments from [ ] workers’ compensation” remains “entitled to continue on unpaid FMLA leave[.]” 29 C.F.R. § 825.702(d)(2) (emphasis added). Likely because of the workers’ comp focus, Progressive never advised Jones of this entitlement or phrased return as a no-strings option. See, e.g., DE 60-9 at 7 (Liebler notes from 1/11/17 call: describing Jones’s leave as “time off work recently related to his worker’s [sic] comp incident from 12/19”). From the tenor of the various communications a jury could (reasonably) conclude that Progressive, relying on workers’ comp standards, forced Jones to return, despite conflicting FMLA counter-options.

         Further, as the Court views this discrete aspect of the claim, Progressive offers no “legitimate reason unrelated to the exercise of FMLA rights for engaging in the challenged conduct.” Grace, 521 F.3d at 670. Again, Progressive “expected Mr. Jones to” return “to work . . . consistent with workers’ compensation law.” See DE 61-1 at 20. The applicable regulations bar setting such an “expectation” (carrying inherent employer-authority freight) wholly based on workers’ comp status. In other words, the FMLA scheme anticipated (and forbade) Progressive’s reliance on the proffered rationale. Thus, the Court finds that the “reason” Progressive offers for this particular conduct is not “legitimate[.]” Grace, 521 F.3d at 670; see also Arban v. West Pub. Corp., 345 F.3d 390, 401 (6th Cir. 2003) (“Because the issue is the right to an entitlement, the employee is due the benefit if the statutory requirements are satisfied, regardless of the intent of the employer.”).

         Jones, as to his return to work, offered sufficient proof to reach a jury as to each interference claim element. Specifically, a juror could reasonably conclude, based on this record, that Progressive coerced (mandated) Jones’s return to a light-duty role. Certainly, there is no proof Progressive extended an option. Per Liebler “I wanted to ensure he understood that we would expect him back to work on [1/11].” DE 60-9 at 7. Under McDonnell Douglas, Progressive’s failure to offer a legitimate, non-FMLA explanation means that Jones had no burden to show pretext; with no step three trigger, the Court’s analysis ends here. Jaszczyszyn v. Advantage Health Physician Network, 504 F. App’x 440, 448 (6th Cir. 2012). Jones made out a prima facie case, had no rebuttal obligation, and is entitled to a trial on the distinct forcible-return aspect of his interference claim.

         2. Retaliation

         Initially, Plaintiff’s allegations supporting his retaliation and interference theories were, excepting his ultimate termination, coextensive. See DE 25 at ¶¶ 24, 28. However, Jones, in Response, abandons all but Progressive’s light-duty modifications to and termination from his job as predicates for the retaliation claim. See DE 64 at 20–21.[12]

         Prima Facie Case

         Jones first claims that Watson’s deposition testimony constitutes direct evidence of retaliation and that he thus needs no further proof to make out a valid claim. DE 64 at 20; see also Demyanovich v. Cadon Plating & Coatings, L.L.C., 747 F.3d 419, 432 (6th Cir. 2014) (“If an employee successfully presents direct evidence that the employer acted with discriminatory motive, ‘the burden shifts to the employer to prove by a preponderance of the evidence that it would have made the same decision absent the impermissible motive.’” (citation omitted)). The Court, for multiple reasons, disagrees.

         First, true direct retaliation evidence is a narrow set:

“Direct evidence is composed of only the most blatant remarks, whose intent could mean nothing other than to discriminate on the basis of some impermissible factor.” [Umani v. Michigan Dep’t of Corr., 432 F. App’x 453, 458 (6th Cir. 2011)]. It is “‘evidence from the lips of the defendant proclaiming his or her . . . animus.’” Diebel v. L & H Res., LLC, 492 F. App’x 523, 526 (6th Cir. 2012) (quoting Smith v. Chrysler Corp., 155 F.3d 799, 805 (6th Cir. 1998)).

Hannon v. Louisiana-Pac. Corp., No. 3:17-CV-00922, 2018 WL 6102940, at *4 (M.D. Tenn. Nov. 21, 2018); see Demyanovich, 747 F.3d at 432 (“Direct evidence does not require a factfinder to draw any inferences in order to conclude that the challenged employment action was motivated at least in part by prejudice against members of the protected group. The evidence must establish not only that the plaintiff’s employer was predisposed to discriminate on the basis of FMLA leave, but also that the employer acted on that predisposition.” (quoting DiCarlo v. Potter, 358 F.3d 408, 415 (6th Cir. 2004)). Second, as previously discussed, Watson’s isolated statement, even under a Jones-favorable light, presents, at best, a bare scintilla of evidence that Jones lost his job for missing work on January 2, 2017. See also DE 64-16 at 5 (Watson Dep. at 25: “I’m not going to be able to recall specific dates.”). Third, contrary to Plaintiff’s argument, Watson never said that Jones was fired “for his use of FMLA[.]” DE 64 at 20. Fourth, as Plaintiff himself argues, Watson’s deposition revealed, if anything, a disregard for or disinterest in Jones’s FMLA leave-this is obviously (and logically) inconsistent with FMLA discrimination. See DE 64 at 22 (“Watson . . . knew that Mr. Jones was on FMLA, but did not care as to how that entitlement affected his decision to terminate Mr. Jones.”). In short, Jones’s direct evidence theory has no merit. Audi AG v. D'Amato, 469 F.3d 534, 545 (6th Cir. 2006) (The summary judgment standard “does not allow, much less require, that we draw strained and unreasonable inferences in favor of the nonmovant.” (quoting Willis v. Roche Biomedical Laboratories, Inc., 21 F.3d 1368, 1380 (5th Cir. 1994)).

         Turning to the circumstantial theory, Progressive does not dispute that Jones “engaged in an activity protected by the Act” or, at least as to the termination, that it “took an adverse employment action” against Jones.[13] Hodnett, 749 F. App’x at 394. Certainly, Jones applied for leave. See DE 64-9 at 6 (Certification of Serious Condition). He did not recall this act, but the document exists. Indeed, Progressive processed it and approved leave through the end of January 2017. See DE 64-1 (Designation Notice). Thus, Jones invoked anti-retaliation protection by invoking the Act.

         Rather, Defendant disputes whether Plaintiff has shown a nexus “between the protected activity” and either predicate act. Id. Progressive modified Jones’s duties the day he returned from FMLA leave and fired him less than a week later. “A plaintiffs burden in establishing a prima facie case is not intended to be an onerous one.” Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 315 (6th Cir. 2001). For present purposes, Progressive’s challenged conduct came soon enough after Jones’s leave to satisfy Plaintiffs causation burden. Tinsley v. Caterpillar Fin. Servs., Corp., No. 18-5303, 2019 WL 1302189, at *6 (6th Cir. Mar. 20, 2019) (“[I]f the adverse employment action closely follows the protected activity, then temporal proximity alone is sufficient to satisfy the causation prong[.]”); see also Grace, 521 F.3d at 677 (barring consideration of employer’s rationale for prima facie purposes). Thus, Progressive needed to offer a legitimate, non-FMLA, explanation for its conduct.

         Pretext & Honest Belief

         As to Jones’s modified responsibilities, Progressive asserts that it merely crafted a light-duty role for Plaintiff consistent with his doctor’s orders. As to termination, Progressive contends that it fired Jones after a thorough investigation revealed that he lied in violation of ...


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