                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 14a0257n.06

                                                 No. 12-2203                                         FILED
                                                                                              Apr 04, 2014
                             UNITED STATES COURT OF APPEALS                              DEBORAH S. HUNT, Clerk
                                  FOR THE SIXTH CIRCUIT


BARBARA SAULTER,                                                  )
                                                                  )
       Plaintiff-Appellant,                                       )          ON APPEAL FROM THE
                                                                  )          UNITED STATES DISTRICT
                  v.                                              )          COURT FOR THE EASTERN
                                                                  )          DISTRICT OF MICHIGAN
DETROIT AREA AGENCY ON AGING,                                     )
                                                                  )
       Defendant-Appellee.                                        )
                                                                  )



BEFORE: MOORE and GRIFFIN, Circuit Judges; and SARGUS, District Judge.*

       GRIFFIN, J., delivered the opinion of the court in which MOORE and SARGUS, JJ.,
       concurred, except as to the issue discussed in Part V. MOORE, J., delivered a
       separate opinion on that issue, in which SARGUS, J., joined. Part V of GRIFFIN,
       J., opinion represents a dissent.

       GRIFFIN, Circuit Judge.

       Plaintiff Barbara Saulter appeals the district court’s order granting defendant Detroit Area

Agency on Aging’s (“DAAA’s”) motion for summary judgment and dismissing in its entirety her

employment discrimination action alleging violations of state and federal law. For the reasons that

follow, we affirm in part and reverse in part.




              *
                The Honorable Edmund A. Sargus, Jr., United States District Judge for the Southern District of
     Ohio, sitting by designation.
No. 12-2203, Saulter v. Detroit Area Agency


                                                I.

       The DAAA is a Michigan non-profit corporation that provides a wide array of services to

senior citizens in the Detroit area. The services include home care, employment workshops and

training, health-insurance counseling, and management of the Detroit Meals on Wheels program,

which provides annually over 600,000 home-delivered meals to seniors at nearly forty different

congregate sites. In order to provide these services, DAAA is completely dependent on federal and

state funding, as well as some private fundraising. Consequently, DAAA’s budget fluctuates based

upon the amount of available funds designated for its programs.

       In September 2006, DAAA hired Barbara Saulter, a registered dietician (“RD”), as its

nutrition service manager. In this capacity, she oversaw the Meals on Wheels and Medicaid Waiver

programs. Saulter was in regular contact with the two vendors that prepared the meals. Saulter’s

duties included reviewing menus and ensuring that the vendors were in compliance with their

contractual obligations and the regulatory standards of both the state and federal governments.

       During her employment, Saulter dealt with numerous instances of noncompliance by these

vendors, including the use of inappropriate and unsanitary utensils, health-code violations,

substandard food and meal preparation, and failed deliveries. Even though, by Saulter’s own

admission, DAAA supervisors followed up on her incident reports and most violations were

corrected, she nonetheless claimed that “expressing [her] concerns [to DAAA administrators]

seemed to, at times, fall on deaf ears.” And although Saulter did not report these violations to

anyone outside of the agency, she felt that “something needed to be done. Some additional outside

help or something needed.” Saulter testified that her reports were sometimes changed by her

                                              -2-
No. 12-2203, Saulter v. Detroit Area Agency


supervisors and violations were omitted from the final report; on other occasions, she was asked to

edit her reports and eliminate certain portions, although she could not recall or give specific

examples of such alterations or omissions.

       In 2008, the Office of Services to the Aging (“OSA”), which partially funded the Meals on

Wheels program, directed that the congregate meal sites should become self-managed, meaning that

DAAA no longer would have its employees on site serving the meals and managing the daily

operations. In addition, issues involving contract compliance between DAAA and the sites were

eventually turned over to DAAA’s contract management department. Thus, Saulter’s supervision

of the sites effectively ended in October 2009.

       In the fall of 2009, DAAA implemented “Zero-Based Budgeting,” an administrative review

of each department and all individual positions, in an effort to increase efficiency and lower costs

due to budgetary constraints. As part of this initiative, each employee was required to document

their individual job responsibilities and assign time factors to each duty. In November, DAAA

President and CEO Paul Bridgewater announced to the staff that changes would be made to more

closely align future funding with services.

       The formal review of Saulter’s position indicated that she was burdened with too many

administrative tasks. In December 2009, with Saulter’s support, DAAA hired a senior nutrition

assessor to supervise the other nutrition assessors and perform the administrative duties that

consumed much of Saulter’s time. In addition, responsibility for coordinating the holiday Meals on

Wheels program was now shared by several departments. Consequently, by the end of 2009, Saulter

had very few administrative responsibilities left.

                                                  -3-
No. 12-2203, Saulter v. Detroit Area Agency


       On December 29, 2009, Saulter requested and began a medical leave of absence, citing the

stress of taking care of her aging father, severe intestinal pain, and sinus problems in her requisite

documentation for approval of the leave under the Family and Medical Leave Act (“FMLA”), 29

U.S.C. § 2601 et seq. In January 2010, she notified DAAA by telephone of her intention to file for

short-term disability in order to extend her leave and of her belief that her condition was work-

related. Grace Grabreck, DAAA’s human resources manager, sent Saulter the necessary application

forms in early February 2010.

       During Saulter’s absence, DAAA began to implement departmental and positional

realignment pursuant to its Zero-Based Budgeting review. The reorganization was agency-wide,

impacting department directors as well as lower-level employees. Substantial restructuring occurred

in the community access, care management, and common services departments. Gale Simmons, vice

president of community services, concluded that all of Saulter’s remaining duties were being

adequately covered while she was on leave, but in light of OSA guidelines that required an RD (but

not necessarily a DAAA employee) to approve the menus at the congregate meal sites, DAAA

sought a temporary independent contractor to fill this role during Saulter’s extended leave. In the

meantime, DAAA relied upon the two vendors’ RDs to perform—free of charge—the meal planning

and to prepare the educational materials for the congregate sites.

       By March 2010, Simmons determined that as a result of DAAA’s reorganization efforts,

DAAA no longer needed a full-time nutrition service manager because “the pieces of responsibility

. . . had been assigned elsewhere.” In memoranda dated March 24, 2010, both Simmons and Gloria

Hicks Long, DAAA’s senior vice president and chief operating officer, made recommendations to

                                                -4-
No. 12-2203, Saulter v. Detroit Area Agency


Bridgewater concerning the agency-wide restructuring. Their recommendations included, inter alia,

the elimination of Saulter’s position in favor of a part-time independent-contractor RD in light of

changes in the community services department, the transfer of congregate-site management

monitoring functions to the contract management department, the addition of a senior nutrition

assessor position, and the addition of a director of healthy aging position. On March 29, 2010,

Simmons, Long, and Grabreck jointly sent a memorandum to Bridgewater in which they reaffirmed

these reasons to eliminate Saulter’s position. They suggested that, pending a release from her

doctor, “Saulter will be invited to apply for the [i]ndependent [c]ontractor arrangement.”

       One day later, on March 30, 2010, Bridgewater notified Saulter by letter of the decision to

eliminate her position as of April 9, 2010, and replace it with an independent contractor RD.

Bridgewater requested that Saulter immediately contact Grabreck and Simmons to discuss these

changes. On the same date, Saulter filed an application for mediation or a hearing with the Michigan

Workers’ Compensation Agency to initiate a workers’ disability compensation claim, citing

“[e]xcessive hours and assignments; along with job stress caused nervous system injury with

functional overlay.” She returned to work from her medical leave on April 5, 2010.

       Upon her return, Saulter met with Long, Grabreck, and Simmons. They informed plaintiff

about the part-time independent contractor RD position that was being created and encouraged her

to apply. DAAA also anticipated the creation of a new position entitled “Director of Wellness” to

handle nutrition and healthy aging issues. Saulter discussed the possibility of interviewing for this

position once it was formalized, and she submitted her resume indicating her interest in both

positions. By e-mail, she requested updates on the hiring process for these positions.

                                                -5-
No. 12-2203, Saulter v. Detroit Area Agency


         The restructuring and reduction-in-force decisions were made known to the entire DAAA

staff in a memorandum from Long, on behalf of Bridgewater, issued on April 9, 2010. In addition

to Saulter’s position, DAAA also eliminated the following positions: Vice President of Community

Access, Wait List Management in Community Access, Support Staff in Community Access, Director

of Planning and Provider Development, and Director of Community Access, and shifted other

employees to different departments. The memo noted that “Ms. Saulter is considering the

Independent Contractor position.” Bridgewater made the recommendation to the DAAA Board of

Directors that they should enter into an independent contractor agreement with an RD in an amount

not to exceed $8,500 for the period of May 1, 2010 to September 30, 2010. The RD would provide

menu approval, nutrition education, and additional food service consultations.

         Saulter and other applicants interviewed for the independent-contractor RD position.

Ultimately, however, DAAA opted to continue using the vendors’ RDs to perform the required

services and did not hire anyone for this position.

         In early May 2010, Grabreck scheduled an interview with Saulter for the director of wellness

position, but she subsequently cancelled it because DAAA’s executive team had reassessed its needs

and determined that it did not need a wellness director. Instead, DAAA used its funding to create

an entirely different position that focused on business development. Although Grabreck never

personally notified Saulter about this position because of its very different requirements, the position

was openly advertised and five or six candidates were interviewed. Saulter never applied. The

position was filled in July 2010 by a candidate who had prior extensive experience working in this

field.

                                                 -6-
No. 12-2203, Saulter v. Detroit Area Agency


       On July 8, 2010, Saulter filed a state-court complaint in Wayne County Circuit Court

alleging violations of Michigan’s Whistleblowers’ Protection Act (“WPA”) and Worker’s Disability

Compensation Act (“WDCA”). She then amended her complaint to bring additional claims for

violations of state and federal discrimination laws, including the Michigan Elliott-Larsen Civil

Rights Act (“ELCRA”), the Americans with Disabilities Act (“ADA”), and the FMLA.

       Defendant removed the case to federal court and moved for summary judgment on all counts.

On August 31, 2012, the district court issued a written opinion and order granting summary

judgment in favor of DAAA and dismissing the case in its entirety. Saulter now appeals the district

court’s judgment with respect to her WPA, WDCA, and FMLA claims; she does not challenge the

dismissal of her ADA and ELCRA claims.

                                                  II.

       We review the district court’s grant of summary judgment de novo and its findings of fact

for clear error. U.S. ex rel. Wall v. Circle C Const., L.L.C., 697 F.3d 345, 350 (6th Cir. 2012).

Summary judgment is appropriate when, viewing the facts and drawing all inferences in the light

most favorable to the nonmoving party, “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.” Id. at 351 (internal citation

and quotation marks omitted). “A genuine issue of material fact exists when there is sufficient

evidence for a trier of fact to find for the non-moving party[;]” however, “[a] ‘mere scintilla’ of

evidence . . . is not enough for the non-moving party to withstand summary judgment.” Id. (citations

and internal quotation marks omitted).




                                                 -7-
No. 12-2203, Saulter v. Detroit Area Agency


                                                  III.

                                                   A.

       Saulter alleges in Counts I and II of her first amended complaint that DAAA violated

Michigan’s WPA by (1) terminating her employment after she reported violations of governmental

regulations and standards by vendors who delivered food to the agency’s senior clientele; and (2)

failing to interview and/or employ her for certain positions after her termination, thus committing

a “continuing violation” of the WPA. The WPA provides in relevant part:

       An employer shall not discharge, threaten, or otherwise discriminate against an
       employee regarding the employee’s compensation, terms, conditions, location, or
       privileges of employment because the employee, or a person acting on behalf of the
       employee, reports or is about to report, verbally or in writing, a violation or a
       suspected violation of a law or regulation or rule promulgated pursuant to law of this
       state, a political subdivision of this state, or the United States to a public body, unless
       the employee knows that the report is false, or because an employee is requested by
       a public body to participate in an investigation, hearing, or inquiry held by that
       public body, or a court action.

M.C.L. § 15.632.

       The WPA “establish[es] a cause of action for an employee who has suffered an adverse

employment action for reporting or being about to report a violation or suspected violation of the

law” by either their employer or fellow employees. Whitman v. City of Burton, 831 N.W.2d 223,

229 (Mich. 2013). Its underlying purpose is the protection of the public, by in turn “protecting the

whistleblowing employee and by removing barriers that may interdict employee efforts to report

violations or suspected violations of the law.” Dolan v. Continental Airlines/Continental Express,

563 N.W.2d 23, 26 (Mich. 1997) (footnote omitted).




                                                  -8-
No. 12-2203, Saulter v. Detroit Area Agency


        In order to establish a prima facie case under the WPA, “a plaintiff need only show that (1)

he or she was engaged in protected activity as defined by the act, (2) he or she suffered an adverse

employment action, and (3) a causal connection exists between the protected activity and the adverse

employment action.” Whitman, 831 N.W.2d at 229 (footnote omitted). The causation element is

at the core of the dispute in the instant case. “[T]he evidence presented will be sufficient to create

a triable issue of fact if the jury could reasonably infer from the evidence that the employer’s actions

were motivated by retaliation.” Shaw v. Ecorse, 770 N.W.2d 31, 40–41 (Mich. Ct. App. 2009) (per

curiam) (citation and internal quotation marks omitted). However, “‘circumstantial proof must

facilitate reasonable inferences of causation, not mere speculation.’” Id. at 40 (quoting Skinner v.

Square D Co., 516 N.W.2d 475, 480 (Mich. 1994)).

        “To prevail, [a] plaintiff ha[s] to show that his employer took adverse employment action

because of plaintiff’s protected activity, [not] . . . merely . . . that his employer disciplined him after

the protected activity occurred.” West v. Gen. Motors Corp., 665 N.W.2d 468, 472 (Mich. 2003).

Thus, a plaintiff must show more than simply a coincidence in time between the adverse

employment action and the protected activity—temporal proximity, standing alone, does not suffice

to establish causation. Debano-Griffin v. Lake Cnty., 828 N.W.2d 634, 639 (Mich. 2013); West, 665

N.W.2d at 472–73. However, “temporal proximity, coupled with some other indication of

termination on the basis of a protected activity, can satisfy the causation element.” Kuhn v.

Washtenaw Cnty., 709 F.3d 612, 629–30 (6th Cir. 2013) (citing Henry v. City of Detroit, 594

N.W.2d 107, 112–13 (1999)).




                                                   -9-
No. 12-2203, Saulter v. Detroit Area Agency


       Under the McDonnell Douglas1 burden-shifting framework applied by the Michigan courts

to WPA claims based on circumstantial evidence, like the case before us, “[o]nce a plaintiff

establishes a prima facie case, a presumption of [retaliation] arises because an employer’s adverse

action is more likely than not based on the consideration of impermissible factors . . . if the employer

cannot otherwise justify the adverse employment action.” Debano-Griffin, 828 N.W.2d at 638–39

(citations and internal quotation marks omitted). “The employer, however, may be entitled to

summary disposition if it offers a legitimate reason for its action and the plaintiff fails to show that

a reasonable fact-finder could still conclude that the plaintiff’s protected activity was a ‘motivating

factor’ for the employer’s adverse action.” Id. at 639. “A plaintiff must not merely raise a triable

issue that the employer’s proffered reason was pretextual, but that it was a pretext for unlawful

retaliation.” Id. (citation, internal quotation marks, and brackets removed).

       In recent years, the Michigan Supreme Court has clarified several important aspects of the

WPA. In Brown v. Mayor of Detroit, 734 N.W.2d 514 (Mich. 2007), the court held that “[t]he WPA

does not require that an employee of a public body report violations or suspected violations to an

outside agency or higher authority to receive the protections of the WPA [and] [f]urther, the WPA

does not provide that an employee who reports violations or suspected violations receives the

protections of the WPA only if the reporting is outside the employee’s job duties.” Id. at 518. And

in Whitman, the Michigan Supreme Court “clarif[ied] that a plaintiff’s motivation is not relevant to

the issue whether a plaintiff has engaged in protected activity and proof of any specific motivation

is not a prerequisite to bringing a claim under the WPA.” Whitman, 831 N.W.2d at 234. “[A]s long

              1
                  McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–03 (1973).

                                                     - 10 -
No. 12-2203, Saulter v. Detroit Area Agency


as a plaintiff demonstrates a causal connection between the protected activity and the adverse

employment action, the plaintiff’s subjective motivation for engaging in the protected activity in the

first instance is not relevant to whether the plaintiff may recover under the act.” Id. at 233.2

                                                         B.

        Citing Jennings v. Cnty. of Washtenaw, 475 F. Supp. 2d 692, 710 (E.D. Mich. 2007), and

Bush v. Detroit Sch. Dist., No. 268362, 2006 WL 2685088, at *4–5 (Mich. Ct. App. Sept. 19, 2006)

(unpublished), the district court held that the WPA does not apply where an employee reports

suspected violations as part of his or her required duties. Following these cases, the court held that

Saulter was not engaged in a protected activity when she reported the multiple vendor violations to

the DAAA during the course of her employment because her goal was not to alert the public of the

vendors’ wrongdoings; rather, it was simply part of her compliance with her job duties.

        The basic issue of protected activity aside, the district court further opined that Saulter failed

to present sufficient evidence of causation to establish a prima facie case. Although Saulter argued

that she was terminated shortly after she reported the vendors’ irregularities, the court held that the

temporal connection alone was insufficient to establish causation where Saulter did not present any

additional evidence linking her reporting of the vendors’ violations to her termination. The district

court noted that “DAAA management readily followed up on Saulter’s concerns throughout the

years, indicating no hostility against these types of reports.” Alternatively, even assuming arguendo


               2
                 In so holding, the Michigan Supreme Court expressly repudiated oft-cited dicta from its prior
      decision in Shallal v. Catholic Soc. Serv. of Wayne Cnty., 566 N.W.2d 571, 579 (Mich. 1997), in which
      the court held that “[t]he primary motivation of an employee pursuing a whistleblower claim must be a
      desire to inform the public on matters of public concern, and not personal vindictiveness,” and suggested
      that the employee must act “out of an altruistic motive of protecting the public.” Whitman, 831 N.W.2d
      at 233 (footnote, citation and internal quotation marks omitted).

                                                       - 11 -
No. 12-2203, Saulter v. Detroit Area Agency


that Saulter established a prima facie case, the court held that DAAA presented a legitimate, non-

retaliatory reason for her discharge—implementation of the Zero-Based Budgeting plan and the

resultant extensive reorganization of the agency, which impacted not only Saulter but many other

employees as well. The district court cited Saulter’s dearth of evidence that this reason was offered

as a mere pretext for discriminatory conduct and held, therefore, that DAAA was entitled to

summary judgment on Saulter’s WPA claim.

       As a preliminary matter, we agree with Saulter that the district court erred as a matter of law

when it concluded that an employee does not engage in a protected activity under the WPA by

reporting unlawful conduct to her employer in the course of her normal job duties. This premise is

no longer valid following the Michigan Supreme Court’s explicit statement in Brown that “[t]he

statutory language renders irrelevant whether the reporting is part of the employee’s assigned or

regular job duties.” Brown, 734 N.W.2d at 518; see also Podzikowski v. Twp. of Albert, No. 296083,

2011 WL 3132893, at *5 (Mich. Ct. App. July 26, 2011) (unpublished), and Vandyke v. Leelanau

Cnty., No. 286775, 2010 WL 624382, at *6 (Mich. Ct. App. Feb. 23, 2010) (unpublished) (both

recognizing that under Brown’s interpretation of the WPA, there is no requirement that the reporting

employee must be acting outside the regular scope of his or her employment). Thus, the district

court’s reliance on Jennings and Bush to conclude that plaintiff was not engaged in protected

activity is misplaced.

       Moreover, the fact that Saulter’s “main goal was not to alert the public of the vendors’

wrongdoings[,]” as determined by the district court, is no longer a valid component of the “protected

activity” equation under Whitman, 831 N.W.2d at 233 (“[H]aving a specific primary motivation is

                                               - 12 -
No. 12-2203, Saulter v. Detroit Area Agency


neither a prerequisite for bringing a WPA claim nor a factor to be considered in determining whether

a plaintiff had engaged in protected conduct.”).

        Nonetheless, we agree with the district court that Saulter has failed to establish the causation

requirement of a prima facie case, despite Saulter’s protestations to the contrary. Saulter argues that

the evidence establishes that her years of attempting to enforce vendor compliance with health code

regulations was met with resistance by DAAA. She claims that after citing health code violations

by the vendors, she was told by her supervisors that upper management wanted her to rewrite and

eliminate portions of her reports, and when she refused to do so, her evaluations were changed by

someone else in the agency. Saulter maintains that she “openly indicated” to DAAA that OSA

should become involved, because it would find the long record of violations unacceptable. Saulter

conjectures that as a result of her actions, “maybe the company [DAAA] viewed me as a

troublemaker[.]”

        However, Saulter’s generalized allegations are speculative, lacking in detail, and fail to

adequately substantiate her claim that she was viewed negatively as a whistleblower by DAAA and

terminated as a result. During her deposition, Saulter, when asked to review her reports and identify

what specific content had been changed or omitted, was unable to do so. Simmons’ uncontradicted

testimony, on the other hand, indicates that the editing process was benign and simply a matter of

prioritization:

        When [Saulter] would go out and do the annual assessment and she would write up
        her report with the items that she had observed and she cited, I would then sit down
        with contract management, and we would make a determination as to what would be
        the best course of action to address each of the concerns that she raised. If it was
        something that had been an ongoing issue, then it would be put in the assessment

                                                 - 13 -
No. 12-2203, Saulter v. Detroit Area Agency


       letter that would go to the head of [the vendor]. If it was something that hadn’t been
       an ongoing issue, but was a concern that was noted and needed some type of action,
       we might say bring this up in the weekly meeting with Valley and have them correct
       it through that process. If bringing it up in the weekly meetings that didn’t get
       addressed, then we would send a letter indicating whatever the concerns were and
       they would need to be addressed that way.

       So not every item that was ever noted was immediately flagged as this is an
       assessment that had to go in the assessment letter. There were different ways of
       addressing the issues. . . . If there were other issues that came up during the course
       of the year, then we would communicate that to them in writing.

       Although Saulter asserts that she conveyed to DAAA her intent to contact OSA about the

vendor violations, her nebulous testimony in this regard—that she felt “additional outside help” was

needed to correct vendor violations and that “something needed to be done”—falls far short of

establishing that she reported, or was about to report, these issues to OSA, or that DAAA was

objectively aware of her intent to do so. Kuhn, 709 F. 3d at 629. Critically, there is no concrete

evidence that DAAA supervisors ever reacted negatively to Saulter’s reports or that DAAA believed

she would report the vendor violations to another public body in a manner objectionable to DAAA

so as to generate hostility or retaliation. Saulter provides no explanation as to why DAAA would

frown upon or dissuade her from performing her job, allow vendor violations to persist, or allow its

vendors to escape accountability for issues of noncompliance rather than rectifying these problems.

       To the contrary, as the district court found, the evidence shows that DAAA took her concerns

seriously. The record is replete with examples of vendor issues flagged by Saulter that were in turn

addressed promptly by DAAA through direct contact with the vendors. Saulter readily admitted that

in those situations where she identified issues with the vendors, DAAA management followed up

on her concerns. Alexander and Simmons both testified that during Saulter’s tenure with DAAA,

                                               - 14 -
No. 12-2203, Saulter v. Detroit Area Agency


she performed her job well and whenever she raised issues about the vendors, they pursued these

matters and never asked Saulter to refrain from reporting any problems in her evaluations. Likewise,

Paul Bridgewater characterized Saulter as an effective employee. He testified:

       Q.       Over the years, Ms. Saulter authored a number of memos in which she was
       critical of several areas of performance of vendors such as Valley and Unique. Did
       you see any of those memos?

       A.      I saw some of those memos.

       Q.      Do you recall any of them?

       A.      Yes, I recall some of those memos.

       Q.   Do you recall how you—what was your reaction when you saw those
       memos?

       A.      I thought that’s what we had her to do is to monitor those contracts and cite
       [the vendors] for anything that they were not doing based on the contract agreement.

       Q.      Did you ever believe that [Saulter] was overreaching in the performance of
       her duties?

       A.      No. I think . . . we wanted to make sure that she got the best out of those
       contractors, and again, living up to the contract. And I thought that as long as she
       kept folks’ feet to the fire, that we [were] going to get a good product, so.

       Q.      You know anybody at DAAA that share[d] that view?

       A.      I would hope everybody else in the whole organization shared that view.
       Because, again, I think the key is that that’s what we hired our contractor compliance
       officers to do across the board in the sense of—and certainly there is no expectation
       that our providers are on target all the time. But I think that there were instances that
       there are problems and that’s what we want, do corrective action. So, no, I did not
       have any problem with Barbara managing those contracts.

       Q.    Did it ever come to your attention that Barbara was considering notifying
       OSA of the continuing violations of those contracts?



                                                - 15 -
No. 12-2203, Saulter v. Detroit Area Agency


       A.      Nope. I was never aware of that.

       Q.     Would you have considered her notification to OSA a part of her—a
       reasonable part of her job activities?

       A.      We would hope that all of the corrective actions would [take] place internally.
       I respected Barbara as a professional and I would hope that—and I understand her
       professionalism, and I was under the impression that those issues and problems were
       being handled and resolved. . . . I did not nor did Barbara ever communicate to me
       verbally or written that she was having difficulties getting issues resolved within her
       responsibilities.

       In sum, there is no evidence in the form of conduct or statements to suggest that DAAA

management considered Saulter to be a troublesome whistleblower or that the decision to eliminate

her position and discharge her was motivated by resentment over her reporting or being about to

report the vendors’ violations of regulations and health standards. Because Saulter has merely

shown that she was terminated after the protected activity occurred, not because of it, she has failed

to satisfy the causation element of a prima facie case under the WPA. West, 665 N.W.2d at 472–73;

see also Buell v. Grand Blanc Twp., No. 303696, 2012 WL 3020795, at *4 (Mich. Ct. App. July 24,

2012) (unpublished) (affirming the grant of summary judgment in favor of the defendant township

where there was no evidence that the township was reacting to or relying on the plaintiff’s reporting

activity when it disciplined and eventually discharged the plaintiff for financial reasons). For this

reason, the district court did not err in granting summary judgment in favor of DAAA on Count I

of her first amended complaint.

       Moreover, even if we assume for the sake of argument that Saulter has surpassed the prima

facie hurdle, her WPA claim nonetheless fails for want of evidence of pretext. Significantly, “[t]he




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No. 12-2203, Saulter v. Detroit Area Agency


fact that a plaintiff engages in a ‘protected activity’ under the [WPA] does not immunize [her] from

an otherwise legitimate, or unrelated, adverse job action.” West, 665 N.W.2d at 473.

       Here, DAAA articulated a facially legitimate business reason for Saulter’s discharge—its

Zero-Budgeting agency reorganization. See Shah v. NXP Semiconductors USA, Inc., 507 F. App’x

483, 492 (6th Cir. 2012) (“Evidence of an employer’s business restructuring, which may include the

elimination of jobs or termination of otherwise competent employees . . . satisfies the employer’s

burden of producing a legitimate, non-discriminatory reason for a plaintiff’s termination.”); Coleman

v. Sun Finan. Grp., 85 F.3d 628, 1996 WL 253880, at *3 (6th Cir. 1996) (table decision) (“[W]hen

ruling on similar [discrimination] claims under Michigan law, we have held that one legitimate

business reason for an employer to discharge an employee is corporate reorganization or reduction

in force.”) (citing La Grant v. Gulf & Western Mfg. Co., Inc., 748 F.2d 1087, 1090 (6th Cir. 1984)).

       Saulter, then, bears the burden of showing that DAAA’s proffered reason “was not the true

reason, but was only a pretext for the discharge.” Roulston v. Tendercare (Michigan), Inc.,

608 N.W.2d 525, 530 (Mich. Ct. App. 2000) (per curiam). Pretext may be established in three

separate ways, by showing that the proffered reason (1) had no basis in fact, (2) was not the actual

reason, or (3) was insufficient to justify the decision. Debano-Griffin, 828 N.W.2d at 640–41. “The

soundness of an employer’s business judgment, however, may not be questioned as a means of

showing pretext.” Id. at 641 (citation and internal quotation marks omitted).

       Saulter has not expressly advanced any of these avenues of rebuttal in her argument before

either the district court or this court, but she maintains that there was no economic necessity

justifying the reorganization. As evidence that the reorganization was merely a pretext for an illicit

                                                - 17 -
No. 12-2203, Saulter v. Detroit Area Agency


motive, Saulter directs our attention to the fact that in 2010, DAAA had more funding

(approximately $600,000) than in previous years; DAAA increased the number of enrollees in some

of its programs; several managers received pay increases; and new staff was hired throughout the

agency.

       However, these facts, considered separately or in combination, do not create a genuine issue

of material fact on the question of pretext. The uncontroverted evidence before the district court

showed that the Zero-Based Budgeting plan, at least a year in the making, was a comprehensive

reorganization of all DAAA departments to address not only long-term budgetary restrictions, but

to improve efficiency as well. Saulter’s cited facts neither speak to the cost savings realized from

the reallocation of resources nor to the goal of improving performance by shifting tasks and, albeit

at Saulter’s and other employees’ expense, eliminating several positions and transferring

departmental duties. Moreover, as previously noted, the part-time independent contractor RD and

director of wellness positions that Saulter applied for never materialized because DAAA determined

that the former was best filled by the vendors’ own RDs, and the latter position was not needed.

Although Saulter contends that she was not considered for the newly-created business development

post, she never applied for this publicized position.

       “[A] plaintiff cannot simply show that the employer’s decision was wrong or mistaken, since

the factual dispute at issue is whether discriminatory animus motivated the employer, not whether

the employer is wise, shrewd, prudent, or competent.” Debano-Griffin, 828 N.W.2d at 640 (citation

and internal quotation marks omitted). Saulter has submitted nothing to show that DAAA’s given

reason for her discharge was not real, unworthy of credence, or otherwise pretextual. Consequently,

                                               - 18 -
No. 12-2203, Saulter v. Detroit Area Agency


there is insufficient evidence from which a reasonable jury could conclude that retaliation because

of her protected activities under the WPA was DAAA’s true reason for the adverse employment

decision. Cf. Hamilton v. Starcom Mediavest Group, Inc., 522 F.3d 623, 630 (6th Cir. 2008)

(affirming the grant of summary judgment in favor of the employer in an ERISA retaliatory

discharge suit where there was no evidence that the stated reason for the employee’s discharge, a

massive reorganization and the hiring of more experienced candidates, was pretextual); Campbell

v. Washington Cnty. Pub. Library, 241 F. App’x 271, 277 (6th Cir. 2007) (holding in context of

FMLA retaliation claim that “[the] evidence cannot show that the Library juggled around positions

merely to camouflage [the plaintiff’s] adverse employment action as a reorganization. Indeed, the

reorganization had an impact on almost every part of the Library system, took careful planning, and

led to the demotion of another employee and a reduction of the Library’s hours.”); Upshaw v. Metro.

Nashville Airport Auth., 207 F. App’x 516, 520–21 (6th Cir. 2006) (holding that a former

metropolitan airport employee whose position was eliminated as part of an airport reorganization

failed to show that the reorganization, which increased employees but had begun years earlier to

streamline operations and increase cost-effectiveness, was merely a pretext to strip him of his civil-

service protections); Schuch v. Savair, Inc., 118 F. App’x 16, 23 (6th Cir. 2004) (affirming summary

judgment in favor of employer in ADEA discrimination suit because the elimination of the plaintiff’s

position as part of a cost-saving reorganization effort was a legitimate, nondiscriminatory reason for

his termination and the fact that the employer “might have chosen to reduce costs in a number of

different ways [rather than terminate the plaintiff’s employment] . . . does not establish that a cost-




                                                - 19 -
No. 12-2203, Saulter v. Detroit Area Agency


reduction effort was not the actual reason for [his] termination”). Accordingly, Saulter has failed

to create a genuine issue of material fact on her retaliation claim under the WPA.

                                                 C.

       In Count II of her amended complaint, Saulter alleges that DAAA’s failure to interview

and/or employ her in certain positions after her termination constitutes a “continuing violation” of

the WPA. The continuing violations doctrine allows discriminatory acts that occur outside of the

statute of limitations to be actionable in certain instances where the act is not a discrete

discriminatory act, and tolls the applicable limitations period until a reasonable person would have

become aware of the facts supporting the claim of discrimination. Nat’l R.R. Passenger Corp. v.

Morgan, 536 U.S. 101 (2002); Sumner v. Goodyear Tire & Rubber Co., 398 N.W.2d 368, 376–80

(Mich. 1986). Pursuant to this theory, plaintiff contends that DAAA’s allegedly retaliatory actions

were part of a continuing course of conduct—“[t]he string of denials of opportunities to [her],

including the contractual dietician position, [w]ellness director, and [p]rogram [d]evelopment

director” are each actionable because they are “acts involving the same type of discrimination;

recurring, and pervasive to the point of indicating [she] should no longer attempt to assert her right

to do business or work for DAAA”—thereby expanding the WPA’s ninety-day limitations period

set forth in M.C.L. 15.363(1).

       As accurately pointed out by the district court, Saulter’s “continuing violations” claim suffers

from several infirmities, not the least of which are the Michigan Supreme Court’s repudiation of the




                                                - 20 -
No. 12-2203, Saulter v. Detroit Area Agency


doctrine in employment discrimination cases,3 and again, the same lack of causation evidence that

defeats her WPA retaliatory discharge claim in Count I of her amended complaint. We therefore

affirm the district court’s grant of summary judgment on Count II.

                                                         IV.

       In Count III, Saulter alleges that DAAA violated Michigan’s WDCA by retaliating against

her for filing a workers’ disability compensation claim. The WDCA prohibits an employer from

“discharg[ing] an employee or in any manner discriminat[ing] against 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.” M.C.L. § 418.301(13) (formerly M.C.L. § 418.301(11)).

       Saulter claims that “[t]he adverse personnel actions taken against [her] . . . were occasioned

by considerations of [her] filing of a workers compensation claim.” While on FMLA leave in

January 2010, Saulter indicated in a voicemail to DAAA that she believed her medical condition was

work related. In response, on February 12, 2010, Grabreck sent Saulter a form to initiate a workers’

compensation claim. The decision to eliminate Saulter’s position was made on March 24, 2010,



              3
                 Although the Michigan courts have applied the continuing violations doctrine to WPA claims,
     see Phinney v. Perlmutter, 564 N.W.2d 532, 551–52 (Mich. Ct. App. 1997), its application is now doubtful
     in light of the Michigan Supreme Court’s decision in Garg v. Macomb Cnty. Cmty. Mental Health Servs.,
     696 N.W.2d 646, 662 (Mich. 2005), in which the court broadly declared that “the ‘continuing violations’
     doctrine is contrary to the language of [the Michigan Civil Rights Act, M.C.L. 600.5805] and . . . therefore,
     . . . the doctrine has no continued place in the jurisprudence of this state.” The Garg court did not
     explicitly overrule Phinney, but in subsequent decisions, the Michigan Court of Appeals has extended that
     prohibition to WPA claims. See Wajer v. Outdoor Adventures, Inc., No. 294985, 2011 WL 240697, at *1
     (Mich. Ct. App. Jan. 25, 2011) (unpublished), and Moyer v. Comprehensive Rehabilitation Center, Inc.,
     No. 292061, 2010 WL 3604680, at *3 (Mich. Ct. App. Sept. 16, 2010) (unpublished); see also Jones v.
     City of Allen Park, 167 F. App’x 398, 404–05 (6th Cir. 2006) (observing in the context of a WPA claim
     that the viability of the continuing violations doctrine in Michigan has been called into doubt since the
     Garg decision).

                                                        - 21 -
No. 12-2203, Saulter v. Detroit Area Agency


almost one week before Saulter actually filed her workers’ compensation claim on or about

March 30, 2010.

        As is the case with other discrimination statutes such as the WPA, the Michigan courts apply

the same prima facie requirements and utilize the McDonnell Douglas burden-shifting framework

in cases alleging unlawful retaliation under the WDCA. Cuddington v. United Health Servs., Inc.,

826 N.W.2d 519, 525 (Mich. Ct. App. 2012) (per curiam).

        Here, the district court granted summary judgment in favor of DAAA on Saulter’s WDCA

count for three reasons: first, the decision to eliminate her position was made before she filed her

claim for workers’ compensation; second, she provided no evidence of a causal connection in any

event; and third, the WDCA retaliation provisions did not apply to job rejections that occurred after

Saulter’s termination as an “employee.”

        On appeal, the parties continue to dispute the district court’s multiple bases for its

ruling—particularly whether Saulter’s WDCA claim is foreclosed under Michigan law because it

is based on the employer’s anticipation of the filing of a workers’ compensation claim, i.e., Saulter’s

position was terminated before she formally filed the claim with the State.4 However, even if we

generously give Saulter the benefit of the doubt on this issue, she has not fulfilled her prima facie

burden of demonstrating that the filing of her comp claim was a “significant factor” in her



               4
                See Cuddington, 826 N.W.2d at 527 (“[A] cause of action for retaliatory discharge cannot be
      based on the anticipated exercise of a right afforded under the Act.”); Griffey v. Prestige Stamping, Inc.,
      473 N.W.2d 790, 792 (Mich. Ct. App. 1991) (MCL 418.301(13) “prohibit[s] discharge in retaliation for
      having filed a workers’ compensation claim, not for the anticipated filing of such a claim”); Wilson v.
      Acacia Park Cemetery Ass’n, 413 N.W.2d 79, 83 (Mich. Ct. App. 1987) (“[R]etaliatory discharge premised
      upon the employer’s anticipation of a future claim does not state a legally cognizable cause of action
      [under the WDCA].”).

                                                        - 22 -
No. 12-2203, Saulter v. Detroit Area Agency


termination. MacDonald-Bass v. J.E. Johnson Contracting, Inc., 493 F. App’x 718, 727 (6th Cir.

2012) (per curiam) (citing Truthan v. Butterworth Health Corp., Nos. 211803, 212507, 1999 WL

33327165, at *3 (Mich. Ct. App. Dec. 17, 1999)).

       Saulter concedes that “the record lacks an admission from [DAAA] as to the relationship of

the workers’ compensation filing and the adverse employment action[],” but she nonetheless argues

that “[t]he timing coupled with the elimination of all opportunities for [her] to have a business

relationship with DAAA is sufficient to permit the trier of fact to reject the proffered reasons of

[DAAA] and infer discrimination.” We respectfully disagree. The present circumstances parallel

MacDonald-Bass and Truthan, in which the courts held that a temporal connection coupled with

merely the plaintiffs’ subjective belief regarding retaliation does not constitute sufficient evidence

of causation. MacDonald-Bass, 493 F. App’x at 728–29; Truthan, 1999 WL 33327165 at *3.

Likewise, here, Saulter has not lived up to her obligation under Fed. R. Civ. P. 56(c)(1)(A) to “cit[e]

to particular parts of materials in the record, including depositions, documents, . . . affidavits or

declarations . . . showing that the materials cited do not establish the absence . . . of a genuine

dispute[,]” and hence she has not established a prima facie case. Even if we presume that she has,

her failure to come forth with actual examples of DAAA’s retaliatory animus to counter its

legitimate business justification for terminating her position dooms her claim. We conclude that the

district court’s grant of summary judgment in favor of DAAA on Count III was not erroneous.




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No. 12-2203, Saulter v. Detroit Area Agency


                                                 V.

       I respectfully dissent, however, from my colleagues’ conclusion that the district court erred

in granting summary judgment with respect to Saulter’s FMLA claim. In Count VI of her first

amended complaint, she alleges that DAAA violated the FMLA by “including, but not limited to,

eliminating the position of Plaintiff while she was on Family Medical Leave, and refusing

continuation of employment of Plaintiff in any capacity.”

       Under the FMLA, an eligible employee who takes FMLA leave “shall be entitled, on return

from such leave—(A) to be restored by the employer to the position of employment held by the

employee when the leave commenced; or (B) to be restored to an equivalent position with equivalent

employment benefits, pay, and other terms and conditions of employment.” 29 U.S.C. § 2614(a)(1).

“If an employer interferes with the FMLA-created right to medical leave or to reinstatement

following the leave, a violation has occurred.” Arban v. West Publ’g Corp., 345 F.3d 390, 401 (6th

Cir. 2003). “The right to reinstatement guaranteed by 29 U.S.C. § 2614(a)(1) is the linchpin of the

entitlement theory because the FMLA does not provide leave for leave’s sake, but instead provides

leave with an expectation [that] an employee will return to work after the leave ends.” Edgar v. JAC

Prods., Inc., 443 F.3d 501, 507 (6th Cir. 2006) (internal quotation marks omitted). Saulter’s claim

that DAAA failed to reinstate her following her medical leave is an interference claim under the

FMLA (also referred to as an entitlement claim). See 29 U.S.C. § 2615(a)(1) (“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 this subchapter.”).




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No. 12-2203, Saulter v. Detroit Area Agency


       “To prevail under the interference theory [of the FMLA], the employee must establish the

following: (1) he was an eligible employee; (2) the defendant is an employer; (3) the employee was

entitled to leave under the FMLA; (4) the employee gave the employer notice of his intention to take

leave; and (5) the employer denied the employee FMLA benefits to which he was entitled.” Wysong

v. Dow Chem. Co., 503 F.3d 441, 447 (6th Cir. 2007) (internal quotation marks, citations, and

alterations omitted). We repeatedly have held that “[a]n employer’s intent is not directly relevant

to the entitlement inquiry.” Grace v. USCAR, 521 F.3d 655, 670 (6th Cir. 2008). Nonetheless, the

right to reinstatement is not absolute, and “employers are permitted to ‘deny restoration to

employment’ if they can ‘show that an employee would not otherwise have been employed at the

time reinstatement is requested.’” Edgar, 443 F.3d at 507 (quoting 29 C.F.R. § 825.216(a)).

Accordingly, “an employer need not restore an employee who would have lost his job or been laid

off even if he had not taken FMLA leave.” Hoge v. Honda of Am. Mfg., Inc., 384 F.3d 238, 245 (6th

Cir. 2004). This is because the FMLA provides that the right to restoration “shall [not] be construed

to entitle any restored employee to . . . any right, benefit, or position of employment other than any

right, benefit, or position to which the employee would have been entitled had the employee not

taken the leave.” 29 U.S.C. § 2614(a)(3)(B).

       We recently held that it is appropriate to apply the McDonnell Douglas burden-shifting

analysis when an employer seeks to prove that it would have terminated the employee’s position

regardless of whether she took FMLA leave. See Donald v. Sybra, Inc., 667 F.3d 757, 762 (6th Cir.

2012). Thus, “an employer may prove it had a legitimate reason unrelated to the exercise of FMLA

rights for terminating the employee” and “the plaintiff [can] rebut the employer's reason by showing

                                                - 25 -
No. 12-2203, Saulter v. Detroit Area Agency


that the proffered reason had no basis in fact, did not motivate the termination, or was insufficient

to warrant the termination.” Id. (citing Grace, 521 F.3d at 670). “[T]he law in this circuit is clear

that temporal proximity cannot be the sole basis for finding pretext.” Id. at 763.

       The district court granted summary judgment to DAAA on Saulter’s FMLA claim because

“[e]ven if Saulter is able to establish a prima facie case, the DAAA contends that the termination

of her position was part of a legitimate economic decision that would have occurred even if she had

not been on leave [and] Saulter has not presented any evidence with which to rebut this proffered

explanation[.]” (R. 18, ID 400-01). I agree with the district court’s finding.

       DAAA has advanced its agency-wide reorganization as a legitimate reason for its decision

not to restore Saulter to her position upon her return from FMLA leave. See Madry v. Gibraltar

Nat’l Corp., 526 F. App’x 593, 597 (6th Cir. 2013) (“We have previously found that the

restructuring of a business was a legitimate, nondiscriminatory reason for terminating an employee

who had incidentally taken FMLA leave.”) (citing Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d

309, 315 (6th Cir. 2001)); see also Roll v. Bowling Green Metalforming, LLC, 457 F. App’x 458,

461–62 (6th Cir. 2012) (holding in FMLA that decision to terminate employee as part of a company-

wide reduction-in-force was not pretextual under the FMLA).

       Saulter has not produced evidence sufficient to convince a trier of fact that the restructuring

would not have occurred and her position would not have been eliminated if she had not taken leave.

Although she again cites DAAA’s increased funding, its hiring of employees, and pay increases to

management during the course of the reorganization as evidence undermining DAAA’s budgetary

justification for her discharge, broader goals were involved in the comprehensive agency-wide

                                               - 26 -
No. 12-2203, Saulter v. Detroit Area Agency


reorganization, and it is inappropriate to second guess an employer’s business judgment as a means

of establishing pretext. See Madry, 526 F. App’x at 597 (“Reducing labor costs and improving

efficiency are valid business reasons for conducting layoffs, even when the degree to which such

actions are motivated by economic hardship is debatable.”) (citing Aldridge v. City of Memphis, 404

F. App’x 29, 37–39 (6th Cir. 2010); Gatch v. Milacron, Inc., 111 F. App’x 785, 791 (6th Cir. 2004)).

       Grace Grabreck testified in her deposition that the decision to eliminate Saulter’s position

was “a business decision, not specifically addressed to Ms. Saulter . . . due to the budget cuts.”

Although Gail Simmons testified that the decision to eliminate Saulter’s position crystalized in

March 2010 while Saulter was on FMLA leave, the redistribution of Saulter’s job functions began

long before she started her FMLA leave as part of the reorganization rollout. By the time she

requested medical leave, Saulter’s responsibilities had been reduced considerably. As indicated in

the many directives and memoranda that were admitted into evidence, the drastic changes that were

made to the agency were ongoing during 2009 and 2010 and transpired before, during, and after

Saulter’s FMLA leave. The impact of these changes was not isolated to only Saulter, and there is

no specific evidence, other than temporal proximity, to suggest that Saulter’s FMLA leave

precipitated her termination.

       Because Saulter has not provided sufficient evidence to survive summary judgment on her

FMLA interference claim, I would affirm the district court’s dismissal of Count VI.




                                               - 27 -
No. 12-2203, Saulter v. Detroit Area Agency


                                               VI.

       The judgment of the district court is affirmed as to Saulter’s WPA and WDCA claims.

However, for the reasons set forth below in the separate opinion by Judge Moore, joined by Judge

Sargus, the district court’s grant of summary judgment on Saulter’s FMLA interference claim is

reversed and remanded for further proceedings.




                                              - 28 -
No. 12-2203, Saulter v. Detroit Area Agency




       KAREN NELSON MOORE, Circuit Judge, joined by Judge Sargus, concurring in part

and delivering the opinion of the court with respect to Part V. We concur in Judge Griffin’s

opinion except as to Part V. We believe that Saulter has presented sufficient evidence to establish

a genuine dispute whether she would have been terminated had she not taken FMLA leave.

Accordingly, we reverse the district court’s grant of summary judgment as to Saulter’s FMLA

interference claim and remand for further proceedings.

       The FMLA entitles eligible employees to a leave period of up to twelve weeks in a twelve-

month period when “a serious health condition . . . makes the employee unable to perform the

functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D). An employee who takes

leave under the FMLA is entitled to return to his previous position or an equivalent position in terms

of compensation and benefits. 29 U.S.C. § 2614(a). An employer violates the FMLA when it

interferes with the employee’s right either to take FMLA leave or to return to work when leave

expires or is no longer necessary. See Arban v. West Publ’g Corp., 345 F.3d 390, 401 (6th Cir.

2003). However, “employers are permitted to ‘deny restoration to employment’ if they can ‘show

that an employee would not otherwise have been employed at the time reinstatement is requested.’”

Edgar v. JAC Prods., Inc., 443 F.3d 501, 507 (6th Cir. 2006) (quoting 29 C.F.R. § 825.216(a)); see

also 29 U.S.C. § 2614(a)(3)(B). Thus, if an employee “would have lost his job or been laid off even

if he had not taken FMLA leave,” an employer does not violate the FMLA by terminating that

employee while he is on leave. Hoge v. Honda of Am. Mfg., Inc., 384 F.3d 238, 245 (6th Cir. 2004).




                                                - 29 -
No. 12-2203, Saulter v. Detroit Area Agency


       To prove a claim of FMLA interference, a plaintiff may use the burden-shifting framework

articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Donald v. Sybra, Inc.,

667 F.3d 757, 762 (6th Cir. 2012) (applying the McDonnell Douglas analysis when an employer

sought to prove that it would have eliminated the employee’s position regardless of whether she took

FMLA leave).1 First, the employee must prove a prima facie case of FMLA interference by

establishing the following: “(1) he is an eligible employee; (2) the defendant is an employer; (3) the

employee was entitled to leave under the FMLA; (4) the employee gave the employer notice of his

intention to take leave; and (5) the employer denied the employee FMLA benefits to which he was

entitled.” Wysong v. Dow Chem. Co., 503 F.3d 441, 447 (6th Cir. 2007) (internal citations and

quotation marks omitted). The employer then has the opportunity to justify its actions by


       1
          Notwithstanding the fact that Donald is binding on this panel, Donald wrongly concluded,
in our view, that the Sixth Circuit applies the McDonnell Douglas burden-shifting framework to
interference claims under the FMLA. The regulations implementing the FMLA, which “must be
given considerable weight,” Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 86 (2002), place
the burden on the employer to demonstrate that it would have terminated the plaintiff regardless of
whether she took FMLA leave. See 29 C.F.R. § 825.216(a) (“An employer must be able to show
that an employee would not otherwise have been employed at the time reinstatement is requested
in order to deny restoration to employment. . . . An employer would have the burden of proving that
an employee would have been laid off during the FMLA leave period, and, therefore, would not be
entitled to restoration.” (emphasis added)). Accordingly, if we were to decide the issue de novo,
we would be inclined to conclude, as have the Third, Eighth, Ninth, Tenth, and Eleventh Circuits,
that the burden-shifting framework does not apply to FMLA interference claims. See Sommer v. The
Vanguard Grp., 461 F.3d 397, 399 (3d Cir. 2006) (“Because the FMLA is not about discrimination,
a McDonnell-Douglas burden-shifting analysis is not required.”); Sanders v. City of Newport,
657 F.3d 772, 780 (9th Cir. 2011); Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 963
(10th Cir. 2002); Throneberry v. McGehee Desha Cnty. Hosp., 403 F.3d 972, 979–80 (8th Cir.
2005); Parris v. Miami Herald Publ’g Co., 216 F.3d 1298, 1301 n.1 (11th Cir. 2000). However,
because “[a] panel of this Court cannot overrule the decision of another panel” in a published
opinion, we are bound to follow the holding in Donald. Salmi v. Sec’y of Health & Human Servs.,
774 F.2d 685, 689 (6th Cir. 1985).

                                                - 30 -
No. 12-2203, Saulter v. Detroit Area Agency


articulating a legitimate, non-discriminatory reason for denying FMLA benefits. If the employer

can do so, the employee has the burden of demonstrating that the justification proffered by the

employer is pretextual.

       Saulter alleges that the Detroit Area Agency on Aging (“DAAA”) interfered with her

exercise of her FMLA rights by eliminating her position while she was on FMLA leave and refusing

to reinstate her or to place her in a comparable position upon her return. R. 1-4 (Am. Compl. ¶ 47)

(Page ID #31). The district court concluded that DAAA was entitled to summary judgment on

Saulter’s FMLA claim because she failed to “present[] any evidence with which to rebut [DAAA’s]

proffered explanation” for eliminating her position, namely the reorganization of many positions

within the agency to achieve greater efficiency and economy. R. 18 (D. Ct. Order at 15–16) (Page

ID #400–01). Upon reviewing the evidence in the record at summary judgment, we cannot agree

with the district court’s conclusion. There is a genuine dispute of material fact regarding whether

DAAA’s termination of Saulter “would have occurred regardless of the employee’s request for or

taking of FMLA leave,” Arban, 345 F.3d at 401, and whether DAAA’s proffered reason for

terminating her is pretextual.2

       DAAA supervisors gave testimony that supports the conclusion that Saulter’s position would

not have been eliminated had she not taken FMLA leave. Saulter’s FMLA leave began on

December 29, 2009, but Gale Simmons, a director at DAAA, testified that she did not contemplate

eliminating Saulter’s position until after Saulter was on leave:


       2
      DAAA does not argue that Saulter cannot prove the elements of her prima facie case of
FMLA interference.

                                               - 31 -
No. 12-2203, Saulter v. Detroit Area Agency


       Q. Now, did I understand you earlier to say that there came a point in time when you
       were convinced or persuaded that a position by Barbara Sa[ul]ter could be
       eliminated?
       A. Yes.
       Q. I want you to tell me, first of all, when was the first time you had any discussion
       about that position, and with whom.
       ...
       A. . . . [W]hat started that line of thinking about that process was it was probably in
       late January or early February when Mr. Bridgewater stopped by my office and
       asked how things were going in the nutrition area since we were without a manager.
       And I replied that it was going along; we were doing okay. And he seemed a little
       bit surprised by my answer and asked, so if it’s going okay, then what’s Barbara
       going to do when she gets back.
       Q. So this would have been January of 2010?
       A. Yes, January, February.
       Q. Had you had any discussions with anybody at DAAA or anywhere else about
       eliminating that position before January of ’10?
       A. No.
       Q. Did you have any belief prior to that time, that there was any reason to eliminate
       the position before that?
       A. No.
       Q. Had you ever contemplated eliminating the position before that?
       A. No.

R. 13-20 (Simmons Dep. at 18–20) (Page ID #201) (emphasis added). Simmons also stated that she

reached the conclusion that DAAA would not need a registered dietitian on staff only in March

2010, “when we were working with the RD at our vendors, and they were providing the services of

an RD. . . . [This was] when it became apparent that maybe we didn’t need one on staff because this

arrangement was working.” Id. at 26 (Page ID #203).

       Further indicating that Saulter’s position may not have been eliminated had she not taken

leave is the fact that, as part of DAAA’s efforts to restructure (“Zero-Based Budgeting”), the agency

hired an additional assessor to help Saulter because she had more responsibilities than a single

employee could reasonably handle. R. 13-19 (Alexander Dep. at 22–23) (Page ID #188).

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No. 12-2203, Saulter v. Detroit Area Agency


Additionally, although Grabreck stated in her deposition that she believed the decision to eliminate

Saulter’s position was “a business decision . . . due to the budget cuts,” R. 15-15 (Grabreck Dep. at

26) (Page ID #329), Saulter points to the fact that DAAA’s revenues increased by over $600,000

in 2009. R. 15-14 (Revenue/Expense Forecast) (Page ID #317).

       On one view of the facts, DAAA redistributed Saulter’s responsibilities after she began her

FMLA leave as part of its ongoing restructuring effort, an action it would have undertaken whether

she had taken leave or not. Indeed, “the restructuring of a business [may be] a legitimate,

nondiscriminatory reason for terminating an employee who had incidentally taken FMLA leave.”

Madry v. Gibraltar Nat’l Corp., 526 F. App’x 593, 597 (6th Cir. 2013) (citing Skrjanc v. Great

Lakes Power Serv. Co., 272 F.3d 309, 315 (6th Cir. 2001)). However, drawing all inferences in

Saulter’s favor, the facts could also demonstrate that her responsibilities were redistributed after she

took FMLA leave in an effort to cover necessary functions during her absence. On this view of the

facts, Saulter had a right to return to her former position or a comparable position: “On return from

FMLA leave, . . . [a]n employee is entitled to . . . reinstatement even if the employee has been

replaced or his or her position has been restructured to accommodate the employee’s absence.”

29 C.F.R. § 825.214 (emphasis added). Simmons’s deposition testimony that she did not consider

eliminating Saulter’s position until after she had redistributed Saulter’s job functions to

accommodate for her absence is the kind of specific evidence necessary to support the inference that

Saulter’s termination was precipitated by her leave. It is not simply evidence of temporal proximity

between the time of leave and the time when Saulter was terminated; rather, it is evidence showing

that the person who eliminated Saulter’s position was prompted to do so by the redistribution of

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No. 12-2203, Saulter v. Detroit Area Agency


responsibilities that occurred because of Saulter’s leave. Accordingly, viewing the evidence in the

light most favorable to Saulter, we conclude that there is a genuine dispute of material fact regarding

whether, had Saulter not taken FMLA leave, DAAA would have redistributed her responsibilities

and concluded it was more efficient to eliminate her position. See Breneisen v. Motorola, Inc.,

512 F.3d 972, 978 (7th Cir. 2008) (holding that plaintiff’s denial-of-reinstatement claim survived

summary judgment when the evidence suggested that the employer “simply replaced [plaintiff] or

restructured his position to accommodate his absence”). Summary judgment on the FMLA claim

was not warranted.

       Therefore, we REVERSE the district court’s grant of summary judgment in favor of DAAA

as to Saulter’s FMLA interference claim and REMAND for further proceedings consistent with this

opinion.




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