Bimberg v. Elkton-Pigeon-Bay Port Laker Schools

860 F. Supp. 2d 396, 25 Am. Disabilities Cas. (BNA) 1478, 2012 WL 489051, 2012 U.S. Dist. LEXIS 18785
CourtDistrict Court, E.D. Michigan
DecidedFebruary 15, 2012
DocketCase No. 11-10198
StatusPublished

This text of 860 F. Supp. 2d 396 (Bimberg v. Elkton-Pigeon-Bay Port Laker Schools) is published on Counsel Stack Legal Research, covering District Court, E.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bimberg v. Elkton-Pigeon-Bay Port Laker Schools, 860 F. Supp. 2d 396, 25 Am. Disabilities Cas. (BNA) 1478, 2012 WL 489051, 2012 U.S. Dist. LEXIS 18785 (E.D. Mich. 2012).

Opinion

OPINION AND ORDER GRANTING DEFENDANT SUMMARY JUDGMENT

THOMAS L. LUDINGTON, District Judge.

The Americans with Disabilities Act, among its protections, prohibits employers from discriminating against employees because of their “relationship or association” with a disabled individual. 42 U.S.C. § 12112(b)(4). In pertinent (if somewhat cumbersome) part, the Act provides that employers are prohibited from “excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.” Id.

Alleging association discrimination, Plaintiff Cynthia Bimberg has brought suit against her former employer, Defendant Elkton-Pigeon-Bay Port Laker Schools. Defendant forced Plaintiff to resign her position as a school bus driver, she contends, because of the known disability of her husband, who was diagnosed with brain cancer. Defendant responds that it terminated the employment relationship not because of Plaintiffs association with a disabled person, but because she did not meet the attendance requirements of her job. After Plaintiffs year-long unpaid leave ended, she did not return to work.

Defendant now moves for summary judgment. EOF No. 12. Under the Act, as interpreted by the Sixth Circuit, if an employee “violates a neutral employer policy concerning attendance ... he or she may be dismissed even if the reason for the absence or tardiness is to care for the [disabled] spouse.” Stansberry v. Air Wis. Airlines Corp., 651 F.3d 482, 486 (6th Cir. 2011) (quoting H.R.Rep. No. 101-485, pt. 2, at 61-62 (1990), 1990 U.S.C.C.A.N. 303, 344). Unlike the reasonable accommodation protections provided to the disabled, able-bodied employees who have an association with a disabled person are not entitled to accommodation of the disability. Id.

In this case, the undisputed evidence establishes that Defendant terminated the employment relationship because Plaintiff did not return to work when required, violating Defendant’s neutral attendance policy. And Plaintiff offers no evidence that her husband’s disability factored into Defendant’s decision. The reason that Plaintiff was absent from work was not an issue for Defendant — the issue was that Plaintiff was absent for more than a year. Accordingly, Defendant is entitled to summary judgment.

I

Plaintiff began driving school buses for Defendant in 1993 as a substitute driver. Three years later, she became a full-time driver. In 2007, Plaintiff became a member of her local bus drivers’ union, the International Union of Operating Engineers Local 547. Two fellow school bus drivers, Carol Suttkus and Dawn Urick, were her local union stewards. The international union representative was William Howard.

On January 1, 2008, Plaintiff married Kenneth Bimberg. In June 2008, Mr. Bimberg felt a lump on his shoulder. It was melanoma. He began receiving treatment at the University of Michigan. When the 2008-2009 school year began, Plaintiff resumed work, taking time off as needed to transport Mr. Bimberg to his appointments. Sometime during this period, Plaintiff contends, Ms. Suttkus remarked “that I purposely got Ken sick so I could have a vacation.” Pl.’s Dep. 27:13-14, May 10, 2011, attached as Def.’s Mot. [398]*398Ex. 1. Although Plaintiff was offended, she did not bring the comment to Defendant’s attention.

Mr. Bimberg’s treatment, sadly, did not eradicate his cancer. In November 2008, doctors determined that the cancer had metastasized to the brain. Plaintiff then approached Ms. Suttkus in her capacity as union representative for assistance in lobbying Defendant for an unpaid leave of absence to care for Plaintiffs husband. Ms. Suttkus brought Plaintiffs request to Plaintiffs supervisor, Dawn Rosenthal, who, in turn, brought it to Defendant’s superintendent, Robert Smith. Plaintiff recalls that “two or three meetings” were then held about the issue in November 2008. Pl.’s Dep. 33:13-15.

Defendant’s policy regarding unpaid leave for family health crises is set forth in § 5357 of Defendant’s personnel policy, which provides in pertinent part:

Employees with at least 1 full year of service and at least 1,250 hours of work in the last 12 months are entitled to unpaid leave of up to 12 weeks in any one-year period for the birth/adoption of a child or for serious personal or family health reasons....
Upon conclusion of the leave, the employee shall be returned to the same position or an equivalent position. If the employee does not return as scheduled, termination from the position may result.

Def.’s Mot. Summ. J. Ex. 4, at 1, ECF No. 8 (“Def.’s Mot.”). Notwithstanding the policy’s capping an unpaid leave at twelve weeks, a “letter of agreement” was executed that provided in pertinent part:

This Letter of Agreement is the full and complete resolution to the Cindy Bimberg request for an unpaid leave to attend to her spouse’s emergency medical needs commencing January 5, 2009 and expiring on the last student day of the 2008-2009 school year [i.e., early June 2009]....
This constitutes the entire understanding of the parties. This Letter of Agreement shall not be deemed precedent setting.

PL’s Compl. Ex. B, ECF No. 1. Thus, rather than twelve weeks, Plaintiff was granted more than twenty weeks of unpaid leave. Ms. Suttkus (as a union representative) and Superintendent Smith signed the agreement on November 12, 2008. Plaintiff did not.

In December 2008, the Bimbergs learned that they would have to travel to Texas in order to attempt to treat Mr. Bimberg’s cancer. December 18, 2008, was the final day Plaintiff worked for Defendant before departing for Texas. That day, another copy of the letter agreement was executed. This time, Plaintiff signed it, as did Ms. Suttkus and Superintendent Smith. See Def.’s Mot. Ex. 6.

In January 2009, the Bimbergs left for Texas. Several months passed. Mr. Bimberg’s condition did not improve. In May, Plaintiff returned to Michigan to meet with Defendant to request an extension of her leave of absence. On May 5, 2009, Plaintiff testifies, she met with Superintendent Smith and Ms. Rosenthall and the leave was extended. “[H]e told me I had until January 4,” she recalls, acknowledging that this understanding was not reduced to a writing. PL’s Dep. 43:17-23. She further recalls that when she met with Superintendent Smith and Ms. Rosenthal, “he said something about, well, you have such a nice tan, must be great to go down south for the winter or something like that he said. I don’t know his exact words.” PL’s Dep. 28:18-21.

Superintendent Smith denies the “going south” remark. He acknowledges that Plaintiffs leave of absence was extended, but asserts that the extension was only for [399]*399one calendar year from the date Plaintiff last worked (that is, until December 18, 2009). “You go and take care of your husband and we’ll take care of the details,” he testifies that he told Plaintiff, cautioning: “Just make sure you’re back on December 18th.” Smith Dep. 13:25-14:2, May 24, 2011, attached as Def.’s Mot. Ex. 5.

Ms.

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Bluebook (online)
860 F. Supp. 2d 396, 25 Am. Disabilities Cas. (BNA) 1478, 2012 WL 489051, 2012 U.S. Dist. LEXIS 18785, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bimberg-v-elkton-pigeon-bay-port-laker-schools-mied-2012.