Lauri Huffman v. Speedway LLC , 621 F. App'x 792 ( 2015 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0481n.06
Nos. 14-1668/2468
FILED
UNITED STATES COURT OF APPEALS Jul 01, 2015
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
LAURI HUFFMAN, )
)
Plaintiff-Appellant, )
)
ON APPEAL FROM THE
v. )
UNITED STATES DISTRICT
)
COURT FOR THE EASTERN
SPEEDWAY LLC, )
DISTRICT OF MICHIGAN
)
Defendant-Appellee. )
)
Before: BOGGS and KETHLEDGE, Circuit Judges; and BLACK, District Judge.*
BOGGS, Circuit Judge. Plaintiff-Appellant Lauri Huffman appeals the grant of summary
judgment to her former employer, Defendant-Appellee Speedway LLC. Speedway attempted to
place Huffman on Family Medical Leave Act (FMLA) leave rather than accommodating the
pregnancy-related work restrictions that her doctor identified. Huffman was unwilling to take
leave, and refused to return FMLA paperwork. In response, Speedway terminated her
employment for job abandonment, as she would neither fulfill the reasonable requirements of her
job nor take the various types of leave offered to her. Huffman filed an action against Speedway
for violation of the FMLA and for pregnancy discrimination under Michigan’s Elliott-Larsen
Civil Rights Act. The district court granted summary judgment to Speedway. We affirm.
*
The Honorable Timothy S. Black, United States District Judge for the Southern District of Ohio, sitting
by designation.
Nos. 14-1668/2468, Huffman v. Speedway
I. Background
Huffman worked at Speedway’s Vassar, Michigan store from July 2011 to May 2013. She
was initially hired as a customer-service representative and was promoted to shift leader in
November 2011. A shift leader’s duties include ensuring the completion of each task listed on
the Exceptional Customer Experience (ECE) worksheet. Huffman would occasionally work at
the store alone and so would have to complete these tasks by herself.
In November 2012, Huffman became pregnant and notified Speedway shortly thereafter. On
March 6, 2013, she presented Store Manager Jennifer Francis with a note from Dr. Walter Yee,
her OB/GYN, indicating that she was unable to work any shift longer than 8 hours and must have
a 15-minute break every 4 hours. Francis forwarded the note to Speedway’s Human Resource
Director Richard Farran, who approved the requested accommodations. On April 3, 2013,
Huffman missed work due to pregnancy-related hip pain. Dr. Yee examined Huffman on that
date for the pain and instructed her in writing to refrain from “activities that may cause [her] to
fall or drop something on [herself].” Huffman relayed this instruction to Francis, who forwarded
the information to Farran.
Acting on Farran’s directions, Francis followed up with Huffman to discuss specific tasks
that Huffman was uncomfortable performing because of her pregnancy. Huffman identified the
following tasks to Francis, which Francis forwarded to Farran via email:
 Taking out trash
 Leaning into the bottle-return bin
 Climbing ladders
 Continuous bending and squatting
 Standing for long periods of time
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 Lifting heavy objects, including soda crates, propane tanks, and tea urns
Speedway directed Huffman to return to Dr. Yee on April 10 and have him evaluate her
ability to perform job tasks. On a “Fitness for Duty” form, Dr. Yee recommended that Huffman
limit herself to “LIGHT MEDIUM WORK,” which meant that she should lift no more than 20
pounds and no more than 10 pounds on a frequent basis. Huffman could bend, squat, kneel,
stand, and walk for short periods of time, but she should not climb. Huffman agreed that she was
unable lift objects weighing over 20 pounds and could not climb. Dr. Yee also worked with
Huffman to identify specific tasks on the ECE worksheet that “may be avoided for the duration
of [Huffman’s] pregnancy”:
 Making “Speedy Tea” available each shift
 Sanitizing the “Speedy Tea” urn each day
 Cleaning coolers and cooler doors each shift
 Checking and emptying the inside and outside trash each shift
 Stocking the outside area each shift
 Cleaning baseboards each Monday
 Cleaning walls and windows each Sunday
 Cleaning the restroom each Sunday
 Cleaning cooler floor, door frames, and “under product” each Sunday
Huffman admitted that there were aspects of each task that she was unable to perform and that
“they wouldn’t get done” when she worked a shift alone.
Farran reviewed Dr. Yee’s recommendations and determined that Speedway could not
accommodate Huffman. Acting on Farran’s direction, Francis told Huffman on April 11, 2013,
that she could not return to work until she no longer had the restrictions identified by Dr. Yee.
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Nos. 14-1668/2468, Huffman v. Speedway
Farran also told Francis to offer Huffman unpaid FMLA leave if she was eligible or else offer
her unpaid personal leave. Though Huffman objected, Francis forwarded a leave-of-absence
request to Leave Processor Jennifer Garret. Garret determined that Huffman was qualified for
FMLA leave, but needed Huffman to complete paperwork to process the request. Garret emailed
Huffman on April 16, 2013, asking her to return the necessary FMLA paperwork by May 4,
2013. Huffman received the paperwork on April 16 and emailed Farran to tell him that she
objected to being forced to take leave and that she would not fill out the paperwork.
Huffman also called Garret on April 16, 2013, to explain that she was not yet ready to go on
leave. Garret told Huffman that, if Huffman exhausted her twelve-week FMLA leave, she could
apply for additional personal leave. But Garret did not provide any guarantees as to whether the
personal-leave request would be approved or whether Huffman would be able to keep her shift-
leader position after returning from leave. Garret also told Huffman that Speedway could not
accommodate her pregnancy-related work restrictions and that Huffman could be terminated for
job abandonment if she did not return the FMLA paperwork. After April 16, 2013, Huffman
began to use vacation days so that she could continue to receive paychecks.
On May 7, 2013, three days after the FMLA-request deadline, Garret sent Huffman the
following letter:
On 4/16/13, a leave packet was sent to you for completion in connection with
your Request for a Leave of Absence. As stated in the packet, your leave
paperwork was due back to the Leave Department by 5/4/13. As of today, your
paperwork has not been received. As such, FMLA leave for this period is denied.
You may still be eligible for a personal leave of absence, but you must return your
completed leave packet by 5/17/13. If Speedway does not receive your
completed leave packet by this date, your employment may be terminated.
Huffman received the letter on May 14, 2013, but did not reply. Speedway terminated
Huffman’s employment for job abandonment on May 29, 2013.
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Nos. 14-1668/2468, Huffman v. Speedway
On June 4, 2013, Huffman filed a complaint in federal district court against Speedway,
alleging (1) violation of her rights under the FMLA by forcing her to take involuntary leave and
(2) pregnancy discrimination under Michigan state law. The district court analyzed Huffman’s
involuntary-leave claim under the interference theory of FMLA liability, and dismissed that
claim as being unripe. The court also granted summary judgment to Speedway on the
pregnancy-discrimination claim because it found that Huffman failed to present direct evidence
of discrimination, and the only indirect evidence that Huffman presented was inadmissible
hearsay.1 Huffman timely appealed under Case No. 14-1668. Huffman then filed a Hirsch
remand motion before the district court so that the court could consider her FMLA claim under
the retaliation theory of FMLA liability.2 The district court denied that motion, and Huffman
filed a second appeal under Case No. 14-2468. We have consolidated Huffman’s two appeals.
II. Standard of Review
We review de novo a district court’s grant of summary judgment. Minadeo v. ICI Paints,
398 F.3d 751, 756 (6th Cir. 2005). Summary judgment is proper where, drawing all reasonable
factual inferences in favor of the non-moving party, no genuine issue of material fact exists and
the moving party is entitled to judgment as a matter of law. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986); Fed. R. Civ. P. 56(a).
1
The district court initially declined to exercise supplemental jurisdiction over Huffman’s state-law
pregnancy-discrimination claim. Speedway moved the district court to reconsider, pointing out that it had original—
rather than supplemental—jurisdiction over the claim because the parties were diverse, Huffman had pleaded
diversity jurisdiction, and the amount in controversy exceeded $75,000. The district court granted Speedway’s
motion, heard the pregnancy-discrimination claim on the merits, and granted summary judgment to Speedway.
2
Federal Rule of Civil Procedure 60(b) provides that a court could relieve a party from final judgment
because of an “excusable litigation mistake” or “a substantive mistake of law or fact in the final judgment or order.”
Cacevic v. City of Hazel Park, 226 F.3d 483, 490 (6th Cir. 2000) (internal quotation marks omitted). A district court
generally lacks jurisdiction to hear a Rule 60(b) motion while an appeal is pending. Post v. Bradshaw, 422 F.3d
419, 421 (6th Cir. 2005). But under First Nat’l Bank of Salem, Ohio v. Hirsch, an appellant seeking Rule 60(b)
review could “file his motion in the District Court. If that court indicates that it will grant the motion, the appellant
should then make a motion in [the court of appeals] for a remand of the case in order that the District Court may
grant the motion[.]” 535 F.2d 343, 346 (6th Cir. 1976) (internal quotation marks omitted). If the district court
denies the Hirsch motion, “the appeal will be considered in regular course.” Ibid.
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Nos. 14-1668/2468, Huffman v. Speedway
A district court’s denial of a Hirsch motion is “essentially a denial of a motion under Fed. R.
Civ. P. 60(b).” Bovee v. Coopers & Lybrand C.P.A., 272 F.3d 356, 360 (6th Cir. 2001). “We
review for abuse of discretion a district court’s decision to deny a Rule 60(b) motion for relief
from judgment.” JPMorgan Chase Bank, N.A. v. First Am. Title Ins. Co., 750 F.3d 573, 584 (6th
Cir. 2014). We also review a district court’s evidentiary rulings for abuse of discretion. Gen.
Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997). Under the abuse-of-discretion standard, we
reverse “only if we have a definite and firm conviction that the trial court committed a clear error
of judgment.” JPMorgan Chase Bank, 750 F.3d at 584 (internal quotation marks omitted).
III. Analysis
A. Violation of the FMLA
Huffman’s Amended Complaint alleges that Speedway
used FMLA against Plaintiff in an unlawful manner (conditioning her employment on
having to apply for FMLA leave when she did not need to), such as to cause her the
loss of her job and the denial of the opportunity to use FMLA when she would have
needed FMLA leave at a later time after the delivery of her child, in violation of the
Act.
Huffman further alleges that Speedway “violated [her] rights under the FMLA by terminating
[her] employment for her refusal to take leave under the Act.”
“The FMLA entitles an eligible employee to as many as twelve weeks of [unpaid] leave
during any twelve-month period if the employee has a serious health condition that makes the
employee unable to perform the functions of the position of such employee.” Chandler v.
Specialty Tires of Am. (Tennessee), Inc., 283 F.3d 818, 825 (6th Cir. 2002) (internal quotation
marks omitted). A “period of incapacity due to pregnancy” can qualify as a “serious health
condition.” 29 C.F.R. § 825.115(b). “An employee is unable to perform the functions of the
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Nos. 14-1668/2468, Huffman v. Speedway
position” if she is “unable to perform any one of the essential functions of the employee’s
position.” Id. § 825.123(a).
There are two theories of FMLA liability against employers: the interference theory and the
retaliation theory. The interference theory arises from 29 U.S.C. § 2615(a)(1), which states that
“[i]t shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the
attempt to exercise, any right provided in this subchapter.” The retaliation theory arises from
§ 2615(a)(2), which provides that “[i]t shall be unlawful for any employer to discharge or in any
other manner discriminate against any individual for opposing any practice made unlawful by
this subchapter.” The district court interpreted Huffman’s complaint to have alleged a claim
under only the interference theory and dismissed that claim as being unripe. Huffman argues on
appeal that she stated both an interference claim and a retaliation claim.
1. Interference Claim
We turn first to Huffman’s interference claim. Huffman argues that Speedway violated her
rights under the FMLA by forcing her to take involuntary FMLA leave. While being forced to
take unpaid leave has an effect similar to being suspended without pay, the statute does not grant
employees the right to be free from suspension. Several of our sister circuits have therefore held
that involuntary FMLA leave does not directly injure an employee’s FMLA rights. See e.g.,
Walker v. Trinity Marine Products, Inc., 721 F.3d 542, 544–45 (8th Cir. 2013) cert. denied, 134
S. Ct. 1293 (2014); Foster v. New Jersey Dep’t of Transp., 255 F. App’x 670, 671 n.1 (3d Cir.
2007); Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 175 (2d Cir. 2006).
We nonetheless recognize that involuntary FMLA leave has the potential to indirectly
interfere with an employee’s FMLA rights. An employer who forces an employee who does not
have a job-restricting serious health condition—i.e., an employee who remains capable of
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Nos. 14-1668/2468, Huffman v. Speedway
performing all essential job duties—to take FMLA leave may improperly exhaust the twelve
weeks of leave to which the employee is statutorily entitled each year. See Wysong v. Dow
Chem. Co., 503 F.3d 441, 449 (6th Cir. 2007); see also Hicks v. Leroy’s Jewelers, Inc., No. 98–
6596, 2000 WL 1033029, at *3–4 (6th Cir. July 17, 2000). But the injury to the employee’s
FMLA rights would remain inchoate unless she develops a serious health condition within a year
and requests FMLA leave. If the employer were to grant the employee the full twelve weeks of
leave to which she is entitled—i.e., not counting the previous involuntary FMLA leave against
her annual limit—the employee would not suffer a cognizable injury under the FMLA.
Therefore, an involuntary-leave interference claim “ripens only when and if the employee seeks
FMLA leave at a later date, and such leave is not available because the employee was wrongfully
forced to use FMLA leave in the past.” Wysong, 503 F.3d at 449 (emphasis added); see also
Latowski v. Northwoods Nursing Ctr., 549 F. App’x 478, 488 (6th Cir. 2013) (“Because
Latowski never sought to take FMLA leave in 2009, her claim never ripened and she cannot
prove a prima facie case of FMLA interference.”). In this case, Huffman never requested FMLA
leave and so her involuntary-leave claim remains unripe. Accordingly, the district court properly
dismissed Huffman’s involuntary-leave claim.
2. Retaliation Claim
Huffman’s second appeal argues that the district court abused its discretion in declining to
address her FMLA claim under a retaliation theory. Though her Amended Complaint does not
specifically allege retaliation, “a plaintiff ha[s] not waived a claim based on [either the retaliation
or] the interference theory where the complaint alleged general violations of [the FMLA] that
could apply both to interference and retaliation claims.” Morris v. Family Dollar Stores of Ohio,
Inc., 320 F. App’x 330, 335 (6th Cir. 2009). Therefore, “ambiguity on a plaintiff’s [FMLA]
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complaint does not . . . ‘box plaintiffs into one theory or the other.’” Ibid. (quoting Wysong,
503 F.3d at 446). However, if the “essence” of a plaintiff’s FMLA claim falls under only one of
the two theories, the district court does not err in confining its analysis to only that theory.
Seeger v. Cincinnati Bell Tel. Co., LLC, 681 F.3d 274, 283 (6th Cir. 2012).
Huffman’s complaint was neither general nor ambiguous. She specifically stated an
involuntary-leave claim under the interference theory, alleging “denial of the opportunity to use
FMLA when she would have needed FMLA leave at a later time.” Though she also alleged that
Speedway terminated her for her “refusal to take leave,” that allegation did not state a retaliation
claim. Because involuntary leave cannot by itself violate the FMLA, opposing involuntary leave
is not protected conduct under the statute. Therefore, termination for refusing involuntary leave
is not retaliation. Huffman expressly articulated an interference claim and failed to allege a
retaliation claim. Accordingly, the district court did not abuse its discretion denying Huffman’s
Hirsch remand motion.
B. Pregnancy Discrimination
Huffman brought a pregnancy-discrimination claim under Michigan’s Elliott-Larsen Civil
Rights Act (Elliott-Larsen Act), which prohibits workplace pregnancy discrimination. M.C.L.
§§ 37.2201(d); 37.2202(1). A plaintiff may prove discrimination using direct or indirect
evidence. Sniecinski v. Blue Cross & Blue Shield of Mich., 666 N.W.2d 186, 192 (Mich. 2003).
1. Direct Evidence
Direct evidence is “evidence which, if believed, requires the conclusion that unlawful
discrimination was at least a motivating factor in the employer’s actions.” Ibid. (internal
quotation marks and citations omitted); see also Amini v. Oberlin College, 440 F.3d 350, 359
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Nos. 14-1668/2468, Huffman v. Speedway
(6th Cir. 2006). Huffman points to the FMLA paperwork that Speedway filled out and sent to
her and to Speedway’s leave policy as direct evidence of discrimination.
The FMLA paperwork that Garret filled out identified Huffman’s reason for requiring
FMLA leave as “birth of a child.” Huffman argues that “birth of a child” misidentified the
reason for FMLA leave because Huffman had not yet given birth and Speedway’s policy
categorized “[a]ny period of incapacity due to pregnancy” as a type of “serious health
condition.” According to Huffman, this shows that “Speedway was trying to invent reasons to
place Huffman on leave,” and therefore Speedway must have had an ulterior motive.
Appellant’s Br. (14-1668) at 37–38. But “birth of a child” was not a misidentification of the
reason for Huffman’s FMLA leave because Speedway’s policy states that “FMLA leave may
begin prior to the birth of your child if you are unable to work due to medical reasons.”
Therefore, pregnancy-related reasons for FMLA leave can be categorized both as “birth of a
child” and as “serious health conditions” in the context of Speedway’s FMLA policy.
Even if Speedway had misidentified the reason for Huffman’s FMLA leave, the
paperwork would not be direct evidence because we are not required to conclude that Speedway
acted with discriminatory motive. The existence of an ulterior motive that Speedway was trying
to cover up with an “invented reason” must be inferred. A second inference is required to
conclude that the ulterior motive was pregnancy discrimination.
Nor is Speedway’s leave policy direct evidence of discrimination. The policy provides
that an employee who is unable to perform job functions due to a serious health condition should
be given a leave of absence and does not differentiate between conditions that are pregnancy-
related and those that are non-pregnancy-related. “Pregnancy-blind policies of course can be
tools of discrimination. But challenging them as tools of discrimination requires evidence and
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Nos. 14-1668/2468, Huffman v. Speedway
inference beyond such policies’ express terms.” Reeves v. Swift Transp. Co., 446 F.3d 637, 641
(6th Cir. 2006), abrogated on other grounds by Young v. United Parcel Serv., Inc., 135 S. Ct.
1338 (2015).
2. Indirect Evidence
Under the indirect-evidence framework, Huffman must proceed using the McDonnell
Douglas burden-shifting approach. Sniecinski, 666 N.W.2d at 193 (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973)). This approach allows “a plaintiff to present a rebuttable
prima facie case on the basis of proofs from which a factfinder could infer that the plaintiff was
the victim of unlawful discrimination.” DeBrow v. Century 21 Great Lakes, Inc., 620 N.W.2d
836, 837 (Mich. 2001). To establish a prima facie case of pregnancy discrimination, Huffman
must establish that she was “(1) a member of a protected class, (2) subject to an adverse
employment action, (3) qualified for the position, and that (4) others, similarly situated and
outside the protected class, were unaffected by the employer's adverse conduct.” Town v.
Michigan Bell Tel. Co., 568 N.W.2d 64, 68 (1997). The parties dispute the fourth element only.
Huffman argues that she satisfies the fourth element because Speedway accommodated
another employee, Chelsea Genovese, for a knee injury that restricted Genovese’s work duties.
Appellant’s Br. at 47. But the only evidence that she presents in support of this allegation is her
own testimony that she heard about Genovese’s injury and accommodation from three former
co-workers at the Vassar, Michigan store, one of whom was Genovese.3 The district court held
that the co-workers’ statements were inadmissible hearsay. See Fed. R. Evid. 801. Huffman
argues on appeal that the statements were admissible under the party-admission exception to
hearsay because all three declarants were Speedway employees.
3
In her deposition, Huffman referred to Genovese as “Genovieve.”
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In diversity cases, the admissibility of evidence is governed by the Federal Rules of
Evidence. Laney v. Celotex Corp., 901 F.2d 1319, 1320 (6th Cir. 1990). Under Federal Rule of
Evidence 801(d)(2)(D), an out-of-court statement is not hearsay if it is offered against a party
and “was made by the party’s agent or employee on a matter within the scope of that relationship
and while it existed.” (Emphasis added). Because the declarants did not work in Speedway’s
human-resources department and were not involved in making accommodation decisions, their
statements did not concern a matter in the scope of their employment. See Jacklyn v. Schering-
Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 927 (6th Cir. 1999).
Huffman cites Back v. Nestlé USA, Inc., 694 F.3d 571 (6th Cir. 2012), to argue that “the
fact that none of these Speedway employees were tied to the actual decision-making is
inconsequential as to whether or not [their statements] were party admissions.” Oral Argument
at 13:47, Huffman v. Speedway, No. 14-1668 (6th Cir. argued June 11, 2015). Huffman is
mistaken. Back involved the out-of-court statement of a human-resources director about the
termination of an employee. 694 F.3d at 577. Even though the director was not involved in the
specific termination decision that was the subject of his out-of-court statement, we held that his
statement was a party admission because termination decisions generally fell within the scope of
his employment. Ibid.; see also Carter v. Univ. of Toledo, 349 F.3d 269, 276 (6th Cir. 2003).
In contrast, accommodation decisions and other human-resource issues were not within the scope
of employment of any of Huffman’s declarants. Their statements therefore were not party
admissions, and so the district court did not abuse its discretion in excluding these statements as
hearsay. See Jacklyn, 176 F.3d at 927 (“Hearsay evidence may not be considered on summary
judgment”).
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While Speedway’s decision to place a pregnant worker with significant work restrictions
on involuntary leave may appear harsh, Huffman presents neither direct nor indirect evidence
that Speedway did not treat all of its workers with job-restricting health conditions with equal
severity. Therefore, she fails to establish a prima facie claim of pregnancy discrimination.
IV. Conclusion
Huffman’s FMLA claim fails because she never exercised her right to take medical leave
under the Act. Her pregnancy-discrimination claim fails because she presents no evidence of
discriminatory motive. Accordingly, we AFFIRM the district court’s judgment.
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