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MGM’s Legitimate, Nondiscriminatory Reason For Terminating Valet Defeats FMLA Retaliation Claim


Robinson v. MGM Grand Detroit, LLC - Sixth Circuit Court of Appeals


Facts:  Beginning in 2002, Prince Robinson (“Robinson”) was employed by MGM Grand Detroit, LLC (“MGM”) to work as a valet at its hotel and casino in Detroit.  As a result of running on concrete as part of his job, Robinson developed plantar fasciitis.  In March of 2016, Robinson applied to take intermittent leave under the Family Medical Leave Act (“FMLA”) but MGM denied the request because Robinson’s physician failed to adequately complete a medical certification form.  Robinson thereafter applied for intermittent FMLA leave, based upon his foot pain, in September of 2016.  While the application for leave was pending, Robinson used a combination of sick and vacation leave to miss thirteen days of work over the next thirty days.  MGM approved the request on September 29, 2016 and made it retroactive to September 14, 2016.  As a result, Robinson was granted 480 of unpaid leave to manage the pain in his foot.

On September 30, 2016, Robinson was scheduled to work from 6 PM until 2 AM, starting with MGM’s casino side valet at 6 PM and the hotel side valet at 7 PM.  The time clock for employees was located on the casino side.  Robinson entered the employee entrance at 6:02 PM and from 6:04 - 6:06 PM, he put on his uniform.  At 6:07 PM, he entered the hotel side valet area, drove a car over to the casino side valet, and reported for work at 6:10 PM.  (MGM’s policy required valets to report to their work area two minutes before their shift starts and be ready to work.  Failure to report or inaccurately reporting work hours would be subject to disciplinary action, including termination.  MGM’s Rules of Conduct also provided for immediate termination if an employee [m]ak[es] false statements on, submit[s] fraudulent or altered documents in connection with, or omit[s] material information from, any personnel, or other MGM Grand Detroit application, form, document, or other record, including...the Time and Attendance Record.”)  Robinson stated that he chose not to clock in because he believed he was slated for a “high tip” assignment at the beginning of his shift and going to clock in would result in him missing that assignment.  When Robinson attempted to clock out at the end of his shift, the machine reported there was no clock in and therefore would not accept the clock out.  Robinson proceeded to sign the exception log to record his time.  He wrote his clock in time as 6 PM and clock out time as 2 AM.  In the “Reason” column, he wrote there was no clock in time found.  (Robinson later acknowledged those times were not correct.)

MGM required employees to clock in and out of every shift and assigned disciplinary points according to an employee’s violation.  The more disciplinary points that were accumulated, various disciplinary actions could be taken.  MGM policy required a supervisor to sign off on the exception log to confirm time worked.  If this could not be done, surveillance video would be used to confirm the entry.  After discovering Robinson’s exception log did not match the surveillance video, he was scheduled to be suspended pending investigation on October 3rd.  However, Robinson took a combination of vacation and FMLA leave from October 3 - 25.  (During this time away, Robinson wrote a letter on October 10th that asserted various grievances (namely that his manager, Lisa Conner (“Conner”), ridiculed and disrespected him.)  Robinson had the letter notarized on October 27th, and dropped it off to Human Resources when he returned to work on the 29th.)  When Robinson returned to work on the 29th, he was suspended pending investigation at the end of his shift.  An MGM labor relations partner met with Robinson and his union representative on November 8, 2016 for a due process meeting.  At the meeting, Robinson acknowledged he was late for his shift on September 30th and stated he listed 6 PM until 2 AM on the log not to hide his tardiness, but to record that he was there for his shift.  Robinson also said that prior to his letter, he had not said anything to Human Resources about the allegations against Conner.  After the meeting, the labor relations partner recommended Robinson be terminated and he was on November 15, 2016.

Robinson filed suit against MGM based upon several causes of action:  FMLA retaliation, Americans with Disabilities Act (“ADA”) and Michigan’s Persons With Disabilities Civil Rights Act (“PWDCRA”) retaliation, and Title VII and Michigan’s Elliot-Larsen Civil Rights Act (“ELCRA”) retaliation.  Robinson argued he was terminated because he took FMLA leave and submitted his grievance letter.  MGM countered that Robinson was terminated because he created a false record after failing to clock in for his shift, contrary to MGM’s policies.  The district court granted MGM’s motion for summary judgment and denied Robinson’s motion to reconsider.  Robinson subsequently appealed.

Holding:  (Note, this case brief analyzes only the FMLA portion of Robinson’s appeal.)

The Sixth Circuit Court of Appeals began its analysis by recognizing that the McDonnell Douglas burden shifting framework should be used when a plaintiff, such as Robinson, uses circumstantial evidence of retaliation in violation of the FMLA, retaliation in violation of the ADA or PWDCRA, or retaliation in violation of Title VII or the ELCRA.  This framework requires Robinson to set forth a prima facie case of retaliation.  If that is done, MGM must “proffer some legitimate, nondiscriminatory reason” for the termination.  If that burden is met, Robinson would have to prove by a preponderance of the evidence that MGM’s proffered reason was a pretext for retaliation.

The district court held that while Robison had established a prima facie case of FMLA retaliation, he had failed to establish a prima facie case of retaliation in violation of the ADA, PWDCRA, Title VII, or the ELCRA.   In regard to the second and third prongs of McDonnell Douglas, the district court found that MGM had established a legitimate, nondiscriminatory reason for its decision to terminate Robinson, however, Robinson failed to establish that reason was pretext.

The Court of Appeals recognized that to determine whether Robinson had established a prima facie case of FMLA retaliation, he must show 1) that he was engaged in a statutorily protected activity, 2) MGM knew that he was exercising his FMLA rights, 3) he suffered an adverse employment action, and 4) a causal connection between the protected FMLA leave and the adverse employment action.  In this instance, only the fourth element was found to be in dispute.  As the timeframe between when Robinson made his complaint to Human Resources and the date when he was terminated was so short, the Court held that Robinson met his burden.  Quickly finding that MGM’s reason for termination was legitimate and nondiscriminatory (Robinson violated MGM’s policy in regard to reporting his work time), the Court turned to whether Robinson could meet his burden.  Notably, “[A] reason cannot...be pretext for [retaliation] unless it is shown both that the reason was false, and that [retaliation] was the real reason.”  The Court held that in this case, MGM had established a record of similarly terminating other employees that falsified their time records (contrary to Robinson’s claim that he was singled out.)  As a result, Robinson was found to have not established a genuine issue of material fact to support his claim of pretext.

Judgment:  The Sixth Circuit Court of Appeals upheld summary judgment in favor of the employer on the grounds that the employee could not establish he was unlawfully retaliated against when he was terminated not because of his complaints about a manager but rather because of his knowingly falsifying his clock in hours for work, in violation of the employer’s policies.

The Takeaway:  There are a few takeaways from the Court of Appeals in this decision.  For starters, as MGM was shown to have done, it is imperative for employers to have clear cut policies and procedures in place.  Robinson was on notice that falsifying clock in reporting could be grounds for discipline and ultimately termination.  Had MGM been creating policies and procedures as things unfolded, Robinson could have had an argument that he was being retaliated against for making his complaint to Human Resources.  In addition, MGM had a record of evenly applying discipline to employees.  MGM was not picking and choosing which employees to discipline and which employees to let things slide.  Again, had that happened, Robinson could have had an argument that he was being retaliated against for making his complaint to Human Resources.

Majority Opinion Judge:  Judge Gibbons

Date:  July 27, 2020


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