Court dismisses doctor's claims under FMLA and PWDCRA

Pathologist Diana Dimitrov sued her employer, Quest Diagnostics, after she was terminated from employment.  Dimitrov argued that she was dismissed in violation of the Family Medical Leave Act and Michigan's disability discrimination act (the PWDCRA). Dimitrov endured a torn rotator cuff for a number of months before attempting to schedule surgery in December of 2007.  She sought permission to schedule the surgery with a couple weeks' notice, and her supervisor told her to wait until after the holidays as the firm was unable to timely process work if she took leave at the same time that another pathologist was retiring.  She complained about her supervisor's treatment of her claim and argued that because of that  complaint, she was hounded into dismissal a year later, in retaliation.

The Court first noted that under the FMLA, an employee scheduling a "foreseeable"  planned medical treatment must give the employer 30 days notice and must "make a reasonable effort" to schedule the treatment so as not to "disrupt unduly the operations of the employer."  The Court concluded that since Dimitrov did not provide 30 days notice of her planned surgery, her request was "not a protected right under the FMLA" and therefore the FMLA claim was not sustainable.  The Court documented that the surgery was the Doctor's "last resort" but did not indicate whether Dimitrov received 30 days' notice of the need for surgery.  The Court went on to hold that even her factual claim that the supervisor threatened her for going over the supervisor's head with her complaints, was not "direct" evidence of retaliation because her original complaint about the supervisor sounded in "unprofessional" behavior, rather than of an FMLA violation.

Finally, the Court held that because Dimitrov had been warned about her temper and the quality of her interaction with other employees previously, the employer's claim that she was fired for unprofessional behavior at a subsequent meeting was not a "pretext."  The Court reached that decision despite affidavits she provided from herself and another physician disputing the employer's account of that meeting.

With regard to the disability claim, the court held that Dimitrov did not qualify for protection.  Even assuming that her shoulder problem disabled her from major life activities (thus constituting a "disability") it was not the serious disability protected by the PWDCRA because it lasted only for "a few short months [as opposed to long or normal length months]."  The Court rejected without comment Dimitrov's claim that the injury affected her for a longer term and interfered with her work output.  We thought the latter choice of phrase (" a few short months") was interesting--and typical of an opinion signed by Judge Kirsten Frank Kelly who always votes against victims and consumers.  It is a perjorative, meaningless phrase that connotes a short time period, used to denigrate Dimitrov's disability.