                          STATE OF MICHIGAN

                            COURT OF APPEALS



L. Z. McCOY,                                                         UNPUBLISHED
                                                                     January 21, 2016
               Plaintiff-Appellant,

v                                                                    No. 323423
                                                                     Kalamazoo Circuit Court
LAUREL HEALTH CARE COMPANY OF                                        LC No. 2013-000436-CZ
GALESBURG, d/b/a LAURELS OF
GALESBURG,

               Defendant-Appellee.


Before: BECKERING, P.J., and GLEICHER and M. J. KELLY, JJ.

PER CURIAM.

        In this employment dispute, plaintiff, L. Z. McCoy, appeals by right the trial court’s order
granting the motion for summary disposition by defendant, Laurel Health Care Company of
Galesburg, which does business as Laurels of Galesburg (Laurel Health). Because the trial court
did not err when it dismissed McCoy’s claims against Laurel Health, we affirm.

        Laurel Health operates a nursing home. In 2004, it hired McCoy to work at its home as a
certified nurse’s assistant. McCoy worked in a section of the home with residents who suffer
from various mental deficiencies. His job included helping the residents move and perform basic
activities, such as getting out of bed or using the bathroom. McCoy was a good worker, but had
repeated problems with attendance. From November 2004 to September 2011, McCoy received
37 written warnings for being absent or tardy. Patricia Wright, Laurel Health’s assistant director
of nursing, testified at her deposition that by March 5, 2012, McCoy had eight unexcused
absences within one year, which was a ground for terminating his employment under Laurel
Health’s employee handbook. Wright’s supervisor told Wright to place McCoy on probation
rather than terminate his employment. So, on March 5, 2012, Wright formally placed McCoy on
a 90-day probation and warned him that he would be let go if he had one more unexcused
absence during that time.

       Later that same month, McCoy injured his right knee while assisting a resident. He
reported his injury to his supervisor, Helen Butcher. An incident report was made and given to
Laurel Health’s human resources employee, Melisa Allred. Allred submitted a claim for
worker’s compensation as soon as she received the report. The pain from the injury increased, so
McCoy visited Arnis Pone, a doctor at Bronson Hospital. Dr. Pone concluded that McCoy could

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work, but placed him on restricted duty. Throughout April 2012, McCoy visited doctors several
more times and his restrictions increased. Laurel Health eventually assigned McCoy to office
work on the basis of his restrictions.

       On May 10, 2012, McCoy did not go to work because his car broke down. According to
Laurel Health, it terminated McCoy’s employment on May 16, 2012, because he had an
unexcused absence within his period of probation.

       In September 2012, McCoy sued Laurel Health for disability discrimination under the
Americans with Disabilities Act (ADA), 42 USC 12101 et seq., and for unlawful retaliation
under the Worker’s Disability Compensation Act (WDCA), MCL 418.101 et seq.1 It was
McCoy’s position that Laurel Health wrongfully terminated his employment.

        In June 2014, Laurel Health moved for summary disposition under MCR 2.116(C)(10).
In its motion, Laurel Health presented evidence that it terminated McCoy’s employment because
he had an unexcused absence while on probation. In support of its motion, Laurel Health also
presented—in relevant part—evidence that it did not count absences that resulted from McCoy’s
injury and that it had accommodated his restrictions.

       In response, McCoy argued that he could establish a claim under the ADA because there
was evidence that Laurel Health terminated his employment because he had become disabled;
namely, he cited evidence that Wright told him he would not be getting worker’s compensation.
This evidence, he maintained, also supported his claim that he was terminated in retaliation for
making a worker’s compensation claim.

       In August 2014, the trial court issued an opinion and order granting Laurel Health’s
motion. The trial court determined that Laurel Health properly supported its motion for
summary disposition of the claims at issue. It then summarized the evidence and stated that
McCoy presented no evidence that would permit an inference that Laurel Health’s reason for
terminating him was a mere pretext for unlawful discrimination premised on his disability,
gender, or assertion of a right to worker’s compensation. For that reason, in addition to other
reasons, the trial court determined that Laurel Health was entitled to summary disposition.

       McCoy then appealed in this Court.

      This Court reviews de novo a trial court’s decision on a motion for summary disposition.
Grandberry-Lovette v Garascia, 303 Mich App 566, 572; 844 NW2d 178 (2014).

        Under the ADA an employer may not “discriminate against a qualified individual on the
basis of disability in regard to job application procedures, the hiring, advancement, or discharge
of employees, employee compensation, job training, and other terms, conditions, and privileges
of employment.” 42 USC 12112(a); see also 42 USC 12111(2). Discrimination includes a


1
  McCoy also alleged various other claims, but later abandoned them. We have, therefore,
limited our analysis accordingly.


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refusal to make “reasonable accommodations” for a qualified individual’s impairments. 42 USC
12112(b)(5). A “qualified individual” is “an individual who, with or without reasonable
accommodation, can perform the essential functions of the employment position that such
individual holds or desires.” 42 USC 1211(8). A “reasonable accommodation may include . . .
job restructuring, part-time or modified work schedules, reassignment to a vacant position, . . .
and other similar accommodations.” 42 USC 1211(9)(B).

        “A plaintiff alleging a violation of the ADA carries the burden of proving a prima facie
case.” Peden v Detroit, 470 Mich 195, 202; 680 NW2d 857 (2004). To establish a prima facie
case, McCoy had to establish that he was disabled, was qualified to perform the essential
functions of his job, and that Laurel Health discriminated against him solely because of his
disability. Collins v Blue Cross Blue Shield of Mich, 228 Mich App 560, 568-569; 579 NW2d
435 (1998). “[O]nce the plaintiff has presented a prima facie case, the burden shifts to the
employer to rebut the plaintiff’s evidence.” Peden, 470 Mich at 203. This “burden-shifting
approach” was adopted by the United States Supreme Court in McDonnell Douglas Corp v
Green, 411 US 792, 802-805; 93 S Ct 1817; 36 L Ed 2d 668 (1973), and applies where a plaintiff
alleges discrimination under the ADA. Raytheon Co v Hernandez, 540 US 44, 49, 53-54; 124 S
Ct 513; 157 L Ed 2d 357 (2003).

        Under the burden-shifting approach, after the plaintiff presents a prima facie case of
discrimination and the employer presents “a neutral explanation” for its treatment of the plaintiff,
it must be determined “whether there was sufficient evidence from which a jury could conclude
that” the employer made its employment decision based on the plaintiff’s “status as disabled
despite [the employer’s] proffered explanation.” Id. at 53. With regard to the ADA, “[t]o raise a
genuine issue of material fact on the validity of an employer’s explanation for an adverse job
action, the plaintiff must show” that (1) the defendant’s proffered reason was untrue; (2) that the
proffered reason did not actually motivate the defendant’s employment decision; or (3) that the
proffered reason was insufficient to motivate the action. Kocsis v Multi-Care Mgt, Inc, 97 F3d
876, 883 (CA 6, 1996).

         There is no dispute that the ADA applied to Laurel Health and, for purposes of this
appeal, we shall assume that McCoy was disabled. See 42 USC 12102(1)(A). There is also no
dispute that he was qualified to perform the essential functions of his job. The fact that McCoy
was placed on restricted duty as a result of his knee injury did not render him unqualified
because his impairment was temporary and Laurel Health could make reasonable
accommodations until his impairment improved. See 42 USC 12112(b)(5)(A), (B); 42 USC
12111(9)(B). There is no material dispute that Laurel Health accommodated McCoy’s work
restrictions by having him perform office work. See Cehrs v Northeast Ohio Alzheimer’s
Research Ctr, 155 F3d 775, 783 (CA 6, 1998). Because his impairment was temporary and he
was able to continue working with reasonable accommodations, McCoy was qualified to perform
the essential functions of his job. Collins, 228 Mich App at 568.




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        McCoy argues that he established a question of fact with regard to the third element of
his prima facie case and that this same evidence establishes a question of fact with regard to
pretext. He argues that the close temporal proximity between his injury and his termination
shows that Laurel Health terminated him because of his disability. He cites decisions that
address an employer’s alleged retaliation in response to an employee’s exercise of rights under
various acts, such as the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq. But,
McCoy does not allege retaliation under the ADA. Moreover, even where relevant in retaliation
claims, “a temporal relationship, standing alone, does not demonstrate a causal connection
between” the exercise of rights and termination. West v Gen Motors Corp, 469 Mich 177, 186;
665 NW2d 468 (2003). And, McCoy offers no other evidence of discrimination, as discussed
below.

        He argues that, immediately before he was terminated, Wright told him that his claim for
worker’s compensation benefits related to his knee injury had been denied. McCoy maintains
that this statement shows that Laurel Health felt unconstrained to terminate his employment on
the basis of his disability after his claim had been denied. Wright admitted making the statement
but said she did so for the purpose of informing him that his May 10 absence was not excused by
his knee injury. Nothing in this statement suggests that Laurel Health—through Wright—
terminated McCoy’s employment out of desire to discriminate against him by reason of his knee
injury. See 1300 LaFayette East Coop, Inc v Savoy, 284 Mich App 522, 525; 773 NW2d 57
(2009) (stating that a question of fact exists when reasonable minds can differ on the conclusions
to be drawn from the evidence). Any such inference does not follow from the statement—it
would be mere speculation. Libralter Plastics, Inc v Chubb Group of Ins Cos, 199 Mich App
482, 486; 502 NW2d 742 (1993) (“A conjecture is simply an explanation consistent with known
facts or conditions, but not deducible from them as a reasonable inference”).

        McCoy also argues that Laurel Health’s inability to identify the individual who
specifically decided to terminate him and the fact that McCoy did not violate the employee
handbook regarding absences shows that Laurel Health terminated his employment for an
improper reason and that attendance was merely a pretext. Although there is no indication in the
record as to the identity of the individual who effected McCoy’s termination, that does not
suggest that whoever did must have held a discriminatory animus or that the proffered reason
was merely pretext. Likewise, whether he violated a particular provision of the employee
handbook is not relevant under the facts of this case. Laurel Health asserted that it terminated
McCoy’s employment because he was absent without a valid excuse on May 10, 2012, when his
probation was still in effect. McCoy did not dispute that he was on probation and documentary
evidence showed that he was placed on probation before his injury. Accordingly, he cannot
show that the proffered reason (an additional absence during probation) was a mere pretext by
arguing that, when calculated in the way that he prefers, he did not really have eight absences
within the past year. In sum, McCoy failed to establish a question of fact regarding the third
element of his prima facie case or regarding pretext. Savoy, 284 Mich App at 525. The trial
court did not err when it determined that Laurel Health was entitled to have McCoy’s ADA
claim dismissed. Grandberry-Lovette, 303 Mich App at 572.




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        McCoy also argues that the trial court erred in granting Laurel Health’s motion on his
claim of retaliation under the WDCA. Under MCL 418.301(13), an employer may not discharge
an employee “because the employee filed a complaint or instituted or caused to be instituted a
proceeding under this act or because of the exercise by the employee on behalf of himself or
herself or others of a right afforded by this act.” MCL 418.301(13). Although the WDCA does
not define the term “right,” this Court has held that the WDCA “affords an injured employee a
right to seek reasonable, needed medical services for injuries that arise in the course of
employment.” Cuddington v United Health Servs, 298 Mich App 264, 274; 826 NW2d 519
(2012).

       To establish a prima facie case of retaliation under the WDCA, an employee who
       has suffered a work-related injury must present evidence: (1) that the employee
       asserted a right to obtain necessary medical services or actually exercised that
       right, (2) that the employer knew that the employee engaged in this protected
       conduct, (3) that the employer took an employment action adverse to the
       employee, and (4) that the adverse employment action and the employee’s
       assertion or exercise of a right afforded under MCL 418.315(1) [establishing an
       employer’s duties under the WDCA] were causally connected. [Id. at 275.]

Where a plaintiff presents circumstantial rather than direct evidence of retaliation, this Court
examines the claim according to the burden-shifting approach already discussed. Id. at 276.

         There is no dispute that McCoy “suffered a work-related injury.” Id. at 275. There is
also evidence that he exercised his “right to obtain necessary medical services” and that Laurel
Health knew that he had. Id. And, there is no dispute that Laurel Health “took an employment
action adverse to” him when it terminated his employment. Id. at 275, 277. However, McCoy
failed to present evidence that his exercise of his rights under the WDCA was “causally
connected” to Laurel Health’s termination of his employment. Id. Without explanation, McCoy
argues that the evidence supporting his claim for disability discrimination supports his claim for
retaliation. “Insufficiently briefed issues are deemed abandoned on appeal.” Etefia v Credit
Technologies, Inc, 245 Mich App 466, 471; 628 NW2d 577 (2001). To the extent that he intends
to argue that the temporal proximity between his injury and his termination, Laurel Health’s
failure to identify who decided to terminate him, and the fact that he allegedly did not violate the
employee handbook are proof of retaliation, we conclude that they are not. Although temporal
proximity between the exercise of protected activity and an employer’s adverse employment
action can support a finding of retaliation, “a temporal relationship, standing alone, does not
demonstrate a causal connection between” McCoy’s exercise of rights and his termination.
West, 469 Mich at 186. Any inference of discriminatory animus or pretext from the absence of
information regarding the individual who decided to terminate him or from the fact that he
allegedly did not violate the employee handbook is mere speculation. Libralter Plastics, Inc,
199 Mich App at 486. Nor does Wright’s statement that his claim for worker’s compensation
was denied create a question of fact. There is simply no way a reasonable person could conclude
from Wright’s statement that Laurel Health terminated McCoy because he exercised his rights
under the WDCA. Id.; Savoy, 284 Mich App at 525. McCoy failed to establish a question of
fact with regard to the existence of a causal connection between his exercise of rights under the
WDCA and his termination, or with regard to pretext; therefore, the trial court properly
dismissed this claim. Grandberry-Lovette, 303 Mich App at 572.

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       McCoy has not established any error in the trial court’s decision to grant Laurel Health’s
motion for summary disposition.

       Affirmed.

                                                           /s/ Jane M. Beckering
                                                           /s/ Elizabeth L. Gleicher
                                                           /s/ Michael J. Kelly




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