Jennifer Latowski v. Northwoods Nursing Center , 549 F. App'x 478 ( 2013 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a1047n.06
No. 12-2408
FILED
Dec 23, 2013
UNITED STATES COURT OF APPEALS
DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
JENNIFER LATOWSKI, )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
NORTHWOODS NURSING CENTER, ) COURT FOR THE EASTERN
) DISTRICT OF MICHIGAN
Defendant-Appellee. )
__________________________________________ )
OPINION
Before: MOORE and McKEAGUE, Circuit Judges, and HELMICK, District Judge.*
KAREN NELSON MOORE, Circuit Judge. This case stems from the termination of
Jennifer Latowski, a certified nursing assistant (“CNA”), after her physician imposed a lifting
restriction during her pregnancy. Latowski alleged violations of Title VII of the Civil Rights Act
of 1991 (“Title VII”), as amended by the Pregnancy Discrimination Act (“PDA”), 42 U.S.C.
§ 2000e, the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq., the Family and
Medical Leave Act (“FMLA”), 29 U.S.C. § 2615, and related state claims. She argued that her
employer, Northwoods Nursing Center (“North Woods”), discriminated against her by requiring her
to obtain a doctor’s note stating she had no work restrictions when it learned she was pregnant and
terminating her when her doctor imposed a restriction. The district court granted summary judgment
*
The Honorable Jeffrey J. Helmick, United States District Judge for the Northern District of
Ohio, sitting by designation.
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Latowski v. Northwood Nursing Center
in favor of North Woods. We find sufficient evidence that North Woods discriminated against
Latowski on the basis of her pregnancy, and therefore we REVERSE the district court’s grant of
summary judgment as to Latowski’s pregnancy discrimination claims. We find no evidence that
North Woods discriminated on another basis or otherwise interfered with her statutory rights, and
therefore we AFFIRM the district court’s grant of summary judgment as to Latowski’s disability
discrimination and FMLA interference claims.
I. BACKGROUND
In July 2007, Latowski accepted a job as a CNA at North Woods. Latowski assisted nursing
home residents with daily living activities, such as showering, dressing, eating, drinking, and
ambulating, and provided companionship. Throughout her employment with North Woods,
Latowski passed four essential functions tests, including one administered on September 9, 2008.
Nothing in the record suggests that she performed her duties less than competently.
During the summer of 2008, Latowski became pregnant. After North Woods became aware
of her pregnancy on September 26, 2008, ward clerk Maurine Roberts requested that Latowski
obtain a doctor’s note stating that she had no employment restrictions pursuant to North Woods’
policy that employees get a note whenever North Woods learned of “anything medical.” R. 29-4
(Roberts Dep. at 7) (Page ID #258). Latowski contacted her doctor and requested a note confirming
that she had no restrictions. She continued to work her regularly scheduled shifts until October 1,
when her doctor faxed a note to North Woods stating “only restriction no lifting over #50.” R. 32-15
(Doctor’s Note) (Page ID #410); R. 32-18 (EEOC Charge) (Page ID #428–35). After receiving the
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note, Judy Doyle, Direct of Health Care Services, informed Latowski that she could no longer work
because North Woods would accommodate only restrictions resulting from work-related incidents.
R. 32-18 (EEOC Charge) (Page ID #432). Doyle explained that North Woods could be “liable if
something happened to [Latowski’s] baby.” R. 32-19 (Doyle Statement) (Page ID #440–41). Doyle
informed Latowski that she could continue working if her doctor lifted the restrictions and
encouraged her to speak to her doctor or seek a second opinion, but Doyle also opined that a doctor
would not lift the restrictions because Latowski’s past miscarriages likely made her pregnancy “high
risk.” Id.
When Latowski attempted to report for her scheduled shift on the evening of October 2, the
on-duty nurse informed Latowski that she had “resigned” and escorted her off the premises. R. 32-
18 (EEOC Charge) (Page ID #432–33). On October 15, Doyle contacted Latowski to explain
FMLA eligibility. Latowski informed Doyle that she did not wish to use her FMLA leave during
her second trimester because she would still be pregnant when her FMLA eligibility expired. Aaron
Woods, the Administrator of North Woods, accepted Latowski’s “resignation” as of October 17 in
a letter explaining that North Woods would “not accommodate a non-work related restriction.” R.
32-20 (Woods Letter) (Page ID #444).
On November 12, 2008, Latowski filed her EEOC charge. While she was at North Woods
to pick up her personnel records, Woods and Rick Ackerman, North Woods’ co-owner and manager,
met with Latowski and again discussed FMLA leave with her. During this discussion, Woods and
Ackerman posed hypotheticals as to what might happen later in Latowski’s pregnancy and
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commented that her “belly would be in the way.” R. 32-2 (Latowski Dep. at 87, 120) (Page ID
#340, 344).
On March 16, 2011, Latowski filed a pro se complaint in the United States District Court for
the Eastern District of Michigan. After obtaining assistance of counsel, Latowski filed an amended
complaint alleging pregnancy discrimination in violation of Title VII, the PDA, and the Michigan
Elliott-Larsen Civil Rights Act (“ELCRA”), Mich. Comp. Laws § 37.2202; disability discrimination
in violation of the ADA and the Michigan Persons with Disabilities Civil Rights Act (“PWDCRA”),
Mich. Comp. Laws § 37.1202; and FMLA interference.1 R. 17 (Am. Compl.) (Page ID #105–14).
On February 28, 2012, North Woods moved for summary judgment on all claims. A
magistrate judge recommended granting summary judgment, R. 38 (Report and Recommendation
at 17) (Page ID #547), and the district court adopted the Report and Recommendation. R. 40 (D.
Ct. Op.) (Page ID #596-619). The district court reasoned that North Woods’ policy was “pregnancy-
blind” and that no evidence suggested that North Woods “harbored discriminatory animus towards
Plaintiff’s pregnancy.” Id. at 13–14, 16–17 (Page ID #608–09, 611–12). The district court also
concluded that, even “[d]rawing all reasonable factual inferences in Plaintiff’s favor, she is not
correct that a genuine issue of fact exists regarding a prima facie case of indirect pregnancy
discrimination” because Latowski was not “qualified” pursuant to North Woods’ pregnancy-blind
policy barring employees with non-work related restrictions from continuing to work. Id. at 18–19
1
Latowski also alleged breach of fiduciary duty under ERISA, but dropped the claim during
summary judgment proceedings.
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(Page ID #613–14). Furthermore, Latowksi could not show a causal nexus between her pregnancy
and her termination because the male comparator she identified was not treated more favorably,
having been given the same option to take FMLA leave. Id. at 15 (Page ID #610).
The district court also concluded that Latowski had not raised a genuine issue of fact
regarding her claim for disability discrimination under the “regarded as” prong of the ADA because
North Woods’ actions were motivated by its neutral policy, not a perception that Latowski was
disabled. Id. at 21 (Page ID #616). Finally, the district court concluded that Latowski’s FMLA
interference claim was unripe because she never sought to use her leave. Id. at 23 (Page ID #618).
The district court adopted the magistrate judge’s recommendations and granted North Woods’
motion for summary judgment on all claims. Id.
II. STANDARD OF REVIEW
We review de novo a district court’s order granting summary judgment. Tysinger v. Police
Dep’t of Zanesville, 463 F.3d 569, 572 (6th Cir. 2006). Summary judgment is proper “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 dispute is ‘genuine’ only if based on evidence upon
which a reasonable jury could return a verdict in favor of the nonmoving party. A factual dispute
concerns a ‘material’ fact only if its resolution might affect the outcome of the suit under the
governing substantive law.” Tysinger, 463 F.3d at 572 (internal citations omitted). We must view
all facts and evidence, and draw all reasonable inferences, in favor of the nonmoving party. Lindsay
v. Yates, 578 F.3d 407, 414 (6th Cir. 2009).
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III. PREGNANCY DISCRIMINATION
Latowski argues that North Woods discriminated against her on the basis of her pregnancy
when it required her to obtain a doctor’s note and then terminated her after her doctor imposed a
lifting restriction. Under Title VII, an employer may not “discharge any individual, or otherwise
. . . discriminate against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1).
Discrimination “on the basis of sex” includes discrimination “because of or on the basis of
pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth,
or related medical conditions shall be treated the same for all employment-related purposes . . . as
other persons not so affected but similar in their ability or inability to work.” 42 U.S.C. § 2000e(k).
At oral argument, Latowski conceded that North Woods’ policy is facially nondiscriminatory. Thus,
we need not address whether she could have proved discrimination by using the policy as direct
evidence of discriminatory motive. However, pregnancy discrimination claims may also be
analyzed using the same indirect evidence proof framework as other sex discrimination claims
brought pursuant to Title VII.2 Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 658 (6th Cir.
2000). Under the indirect evidence framework, the plaintiff first has the burden of proving a prima
facie case of discrimination; if she is successful, the burden then shifts to the defendant to articulate
a legitimate, nondiscriminatory reason for its actions; finally, the plaintiff has the opportunity to
2
We analyze ELCRA claims under the same framework as Title VII claims. See Sutherland
v. Mich. Dep’t of Treasury, 344 F.3d 603, 614 n.4 (6th Cir. 2003). Therefore, Latowski’s ELCRA
claim rises or falls with her pregnancy discrimination claim.
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prove that the proffered reason is pretextual. McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802–05 (1973). “On a motion for summary judgment, a district court considers whether there is a
sufficient evidence to create a genuine dispute at each stage of the McDonnell Douglas inquiry.”
Cline, 206 F.3d at 661. Latowski has provided sufficient evidence both to establish a prima facie
case and to demonstrate that North Woods’ policy of prohibiting any employees with restrictions
from working is pretext for discrimination.
A plaintiff can establish a prima facie case of pregnancy discrimination by showing that “(1)
she was pregnant, (2) she was qualified for her job, (3) she was subjected to an adverse employment
decision, and (4) there is a nexus between her pregnancy and the adverse employment decision.”
Id. at 658. The parties do not contest that Latowski has established the first and third elements of
the prima facie case: she was pregnant and her termination was an adverse employment decision.
Despite the district court’s conclusion to the contrary, Latowski has also established the
second element of the prima facie case by demonstrating that she was qualified for her job. “For
purposes of the prima facie case analysis, a plaintiff’s qualifications are to be assessed in terms of
whether he or she was meeting the employer’s expectations prior to and independent of the events
that led to the adverse action.” Tysinger, 463 F.3d at 573. North Woods has not provided any
evidence suggesting that Latowski’s job performance was unsatisfactory before she became
pregnant, and indeed she passed several “essential functions” tests administered by North Woods
both before and after becoming pregnant.
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Latowski also provided sufficient evidence to demonstrate a nexus between her pregnancy
and her termination. A plaintiff can prove the fourth element of the prima facie case through
comparison to “another employee who is similarly situated in her or his ability or inability to work
[and] received more favorable benefits.” Ensley-Gaines v. Runyon, 100 F.3d 1220, 1226 (6th Cir.
1996). Latowski has presented evidence that North Woods treated other CNAs with similar lifting
restrictions more favorably by assigning them to “light duty.” R. 32-23 (Employee Comparison)
(Page ID #453–55). Although these employees differed from Latowski because their medical
conditions were work-related, they were similarly situated in their ability to work because they were
placed under lifting restrictions of up to fifty pounds.3 Therefore, Latowski has presented sufficient
evidence to establish a prima facie case of pregnancy discrimination.
North Woods has responded with a legitimate, nondiscriminatory reason for removing
Latowski from the work schedule and ultimately terminating her employment: North Woods utilizes
an economics-based policy of refusing to accommodate restrictions arising from injuries incurred
outside the workplace. Therefore, Latowski has the burden of proving that North Woods’ policy is
pretext for discrimination. “A plaintiff can demonstrate pretext by showing that the proffered reason
(1) has no basis in fact, (2) did not actually motivate the defendant’s challenged conduct, or (3) was
3
Under the ordinary Title VII analysis, employees who were restricted because of work-
related injuries would be inappropriate comparators because they are not similarly situated in all
respects. However, the Ensley-Gaines court recognized that the PDA altered the Title VII analysis
for pregnancy discrimination claims: “While Title VII generally requires that a plaintiff demonstrate
that the employee who received more favorable treatment be similarly situated in all respects, the
PDA requires only that the employee be similar in his or her ability or inability to work.” 100 F.3d
at 1226 (internal quotation marks and citation omitted).
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insufficient to warrant the challenged conduct.” Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th
Cir. 2000). Latowski asserts that North Woods’ policy is so absurd that it could not have actually
motivated the decision to terminate her employment.4
A policy is not necessarily pretext for discrimination merely because we find it ill-advised:
“The law does not require employers to make perfect decisions, nor forbid them from making
decisions that others may disagree with.” Hartsel v. Keys, 87 F.3d 795, 801 (6th Cir. 1996).
However, “the reasonableness of an employer’s decision may be considered to the extent that such
an inquiry sheds light on whether the employer’s proffered reason for the employment action was
its actual motivation.” See Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 576 (6th Cir. 2003)
(en banc); see also In re Lewis, 845 F.2d 624, 633 (6th Cir. 1988) (“The more questionable the
employer’s reason, the easier it will be for the jury to expose it as pretext.”). A reasonable jury
could easily conclude that North Woods’ business decision—to implement a policy terminating
otherwise qualified workers whose doctors imposed any restrictions arising from non-workplace
4
Latowski also argues in passing that North Woods did not in fact consistently employ a no-
restrictions policy because it discussed the possibility of accommodations with other pregnant
employees: North Woods explained to Amanda J., another CNA, that it could not continue to allow
her to work after she received a pregnancy-related lifting restriction because it could not “eliminate
risk to [her] and residents while allowing [her] to perform the essential functions of [her] position,”
even with accommodations. R. 32-22 (Amanda J. Documents) (Page ID #450). However, North
Woods discussed accommodations with Amanda J. in 2010, after it changed its policy to
accommodate pregnancy-related restrictions in the same way that it accommodates work-related
restrictions. Thus, the letter is not relevant to whether North Woods consistently applied its policy
at the time Latowski became pregnant.
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injuries, even if those restrictions do not limit the employees’ ability to competently perform their
jobs — is so lacking in merit as to be a pretext for discrimination.
In addition to exposing the absurd results of North Woods’ policy, Latowski has identified
several statements made by North Woods administrators that reveal discriminatory animus against
pregnant women:
! When Latowski inquired as to why she had been removed from the work
schedule, Doyle admonished Latowski that she “wouldn’t want to lose [her]
baby.” R. 32-19 (Doyle Statement at 1) (Page ID #440).
! The next day, after Latowski asked for a copy of North Woods’ policy, Doyle
explained that North Woods “would be liable if something happened to her baby
and we had allowed her to work against her doctor’s advice.” Id. at 2 (Page ID
#441).
! When Latowski returned to North Woods after her termination to obtain a copy
of her personnel file, Ackerman commented that CNAs might have to lift patients
weighing in excess of 150 pounds, “which could have exceeded [Latowski’s] safe
lifting capacity and jeopardized her health or that of her unborn child.” R. 32-21
(Woods Memo at 2) (Page ID #447).
! At the same meeting, Ackerman told Latowski that her “belly would be in the
way, and that [she] was unable to perform [her] job functions because of the
pregnancy.” R. 32-2 (Latowski Dep. at 120) (Page ID #344).
! Doyle and Wells both explained that the policy of requiring a doctor’s note from
pregnant employees was motivated by the desire to “know that the employee is
able to work safe for her and her child.” R. 29-6 (Woods Dep. at 11–12) (Page
ID #274); R. 32-4 (Doyle Dep. at 14) (Page ID #357).
North Woods argues that these comments are stray remarks that, when taken in context, are merely
attempts to explain North Woods’ policy. Appellee Br. at 23–24. To the contrary, the comments
were made by persons in managerial positions and they are directly related to the decision to
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terminate her employment. Thus, they are relevant to support an inference that the application of
North Woods’ policy was pretext for discrimination.
The comments identified by Latowski were all made by either the decision maker in
Latowski’s termination or a high-level North Woods manager. Doyle, after applying the no-
restrictions policy, was the first North Woods administrator to make the decision to remove
Latowski from the work schedule. And, though Ackerman and Woods did not participate directly
in the decision to terminate Latowski’s employment, they were “in a position to shape the attitudes,
policies, and decisions” of other managers and employees as executives at North Woods.
Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 355 (6th Cir. 1998); see also Risch v.
Royal Oak Police Dep’t, 581 F.3d 383, 393 (6th Cir. 2009) (“Discriminatory statements made by
individuals occupying managerial positions can be particularly probative of a discriminatory
workplace culture.”); Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509, 546 (3d Cir.
1992) (“When a major company executive speaks, ‘everybody listens’ in the corporate hierarchy.”
(citation omitted)). Thus, there is at least a genuine issue of fact regarding whether Doyle,
Ackerman, and Woods played a meaningful role in the decision to terminate Latowski’s
employment. See Wells v. New Cherokee Corp., 58 F.3d 233, 238 (6th Cir. 1995).
These remarks are also substantively relevant to show discriminatory animus because they
were made directly in relation to Latowski’s termination. “[I]solated and ambiguous comments are
too abstract, in addition to being irrelevant and prejudicial, to support a finding of . . .
discrimination.” Phelps v. Yale Sec., Inc., 986 F.2d 1020, 1025 (6th Cir. 1993) (internal quotation
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Latowski v. Northwood Nursing Center
marks and citation omitted). However, the comments identified by Latowski are neither isolated nor
ambiguous. Instead, they were made directly to Latowski and directly in relation to the decision to
terminate her employment. See Wohler v. Toledo Stamping & Mfg. Co., No. 96-4187, 1997 WL
603422, at *3 (6th Cir. Sept. 30, 1997) (finding employer comments relevant because they were
directed at the employee during “a conversation specifically addressing the decisional process which
led to [the employee’s] discharge”). Indeed, Doyle’s comments regarding the danger to Latowski’s
unborn baby were made during the discussion in which Latowski first learned that she had been
terminated.5 And the later comments by Woods and Ackerman, though made after the decision to
terminate Latwoski had already been finalized, directly explained their reasons for maintaining the
policy that mandated Latowski’s termination. See Cooley v. Carmike Cinemas, Inc., 25 F.3d 1325,
1331–32 (6th Cir. 1994) (concluding that a reasonable jury could have found pretext from employer
comments that “were not made in the context of [the employee’s] termination” because they
“help[ed] to reveal [a supervisor’s] state of mind and reflect a deep-rooted, ongoing pattern that is
anything but isolated”). Furthermore, “we do not view each discriminatory remark in isolation, but
are mindful that the remarks buttress one another as well as any other pretextual evidence supporting
an inference of discriminatory animus.” Ercegovich, 154 F.3d at 356. Taken together, the
5
These comments are not rendered harmless because they were motivated by compassion or
concern for Latowski and her unborn child’s health. In International Union, United Automobile,
Aerospace & Agricultural Implement Workers of America, UAW v. Johnson Controls, Inc., 499 U.S.
187 (1991), the Supreme Court found policies motivated by such “fetal protection” justifications to
be discriminatory. Thus, a company’s “fear of prenatal injury, no matter how sincere,” cannot
justify discrimination against an employee who is capable of doing her job. Id. at 207.
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comments made by various members of the North Woods administration raise the inference that
North Woods’ policy was merely pretext for discriminatory animus against pregnant women.
Latowski has provided sufficient evidence to prove a prima facie case and to demonstrate
that North Woods’ purported reason for terminating her employment was pretext for discrimination.
We therefore reverse the district court’s grant of summary judgment in favor of North Woods on
Latowski’s pregnancy discrimination claims and remand for further proceedings consistent with this
opinion.
IV. DISABILITY DISCRIMINATION
Latowski also argues that North Woods discriminated against her on the basis of a perceived
disability. The ADA prohibits discrimination “against a qualified individual on the basis of
disability in regard to . . . the hiring, advancement, or discharge of employees . . . and other terms,
conditions, and privileges of employment.”6 42 U.S.C. § 12112(a). A prima facie case of
discrimination under the ADA requires the plaintiff to show that (1) she is disabled, (2) she is
otherwise qualified for the job, with or without reasonable accommodation, and (3) she was
discriminated against because of her disability. Talley v. Family Dollar Stores of Ohio, Inc., 542
F.3d 1099, 1105 (6th Cir. 2008). A person is “disabled” under the ADA if she has “(A) a physical
or mental impairment that substantially limits one or more of the major life activities . . . ; (B) a
6
Michigan’s PWDCRA “substantially mirrors the ADA, and resolution of a plaintiff’s ADA
claim will generally, though not always, resolve the plaintiff’s PWDCRA claim.” Donald v. Sybra,
Inc., 667 F.3d 757, 764 (6th Cir. 2012). On the facts presented in this case, there is no reason that
Latowski’s discrimination claim should fare differently under the state law; therefore, her PWDCRA
and ADA claims rise and fall together.
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record of such an impairment; or (C) [is] regarded as having such an impairment.” § 12102(1). An
individual is “regarded as” disabled if an employer “mistakenly believes that an employee has a
physical impairment that substantially limits one or more major life activities or . . . mistakenly
believes that an actual, nonlimiting impairment substantially limits one or more of an employee’s
major life activities.” Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 704 (6th Cir. 2008) (quoting
Sutton v. United Air Lines, 527 U.S. 471, 489 (1999)). “The regarded-as-disabled prong of the ADA
‘protects employees who are perfectly able to perform a job, but are rejected because of the myths,
fears and stereotypes associated with disabilities.’” Id. at 703 (quoting Gruener v. Ohio Cas. Ins.
Co., 510 F.3d 661, 664 (6th Cir. 2008)).
Because pregnancy is not a disability under the ADA, North Woods’ belief that Latowski
was pregnant cannot support her “regarded as” claim. See Spees v. James Marine, Inc., 617 F.3d
380, 396 (6th Cir. 2010). However, “a potentially higher risk of having a future miscarriage[] could
constitute an impairment” on which to base a “regarded as” claim. Id. Nonetheless, Latowski is
unable to prove that North Woods regarded her as disabled because she has provided no evidence
that any North Woods employee believed she was unusually susceptible to miscarrying. As
evidence that she was regarded as disabled, Latowski relies on Doyle’s assertion that a doctor was
unlikely to remove lifting restrictions if he considered Latowski’s pregnancy to be “high risk.” R.
32-19 (Doyle Statement) (Page ID #440–41). This statement, when read in context, merely shows
that Doyle was guessing, based on the information Latowski provided to her, why a physician might
have imposed restrictions on Latowski and whether those restrictions might be lifted. Cf. Spees, 617
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F.3d at 396 (concluding that an employer regarded a pregnant employee who had experienced
complications during prior pregnancies as disabled because the employer expressed concern about
her working and directed her to obtain a doctor’s note limiting her to light duty work). They do not
establish that Doyle herself, or any other North Woods administrator, considered Latowski
susceptible to miscarriages.
Latowski has not presented evidence that North Woods regarded her as disabled, and thus
she cannot establish the first element of the prima facie case. Therefore, we affirm the district
court’s grant of summary judgment to North Woods on the disability discrimination claims.
V. FMLA INTERFERENCE
Finally, Latowski argues that she was terminated in violation of her FMLA rights. “It shall
be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to
exercise, any right provided under [the FMLA].” 29 U.S.C. § 2615(a)(1). A plaintiff may establish
a prima facie case of FMLA interference by showing five elements: (1) she was an eligible
employee, (2) the defendant was a covered employer under the FMLA, (3) she was entitled to leave,
(4) she gave notice of her intent to take leave, and (5) the employer denied her FMLA benefits to
which she was entitled. Walton v. Ford Motor Co., 424 F.3d 481, 485 (6th Cir. 2005). An employer
denies an employee FMLA benefits when it “forces an employee to take FMLA leave when the
employee does not have a ‘serious health condition’ that precludes her from working.” Wysong v.
Dow Chem. Co., 503 F.3d 441, 449 (6th Cir. 2007). However, a claim made on this basis “ripens
only when and if the employee seeks FMLA leave at a later date, and such leave is not available
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because the employee was wrongfully forced to use FMLA leave in the past.” Id. Latowski was
terminated, at the latest, on October 17, 2008, see R. 32-20 (Termination Ltr.) (Page ID #444), and
she was therefore no longer employed in early 2009, at the time she would have taken FMLA leave
for the birth of her son. 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. Therefore, we affirm
the district court’s grant of summary judgment in favor of North Woods on the FMLA interference
claim.
VI. CONCLUSION
For the foregoing reasons, we REVERSE the district court’s grant of summary judgment
to North Woods on Latowski’s pregnancy discrimination claims and AFFIRM the district court’s
grant of summary judgment on Latowski’s disability discrimination and FMLA interference claims.
16