WILLIAM M. NICKERSON, Senior District Judge.
Before the Court is Defendants' Motion for Summary Judgment, ECF No. 168, and Plaintiff's Motion for Partial Summary Judgment, ECF No. 181. Both motions are fully briefed. Upon review of the pleadings and the applicable law, the Court determines that no hearing is necessary, Local Rule 105.6, and that both motions will be denied.
Plaintiff Dr. Rose Mezu has been employed by Defendant Morgan State University (Morgan State) since 1993. She identifies her national origin as Nigerian, her ethnicity as Igbo, and her race as "commonly perceived as `black' in the United States." Am. Compl. ¶ 89. Defendant Armada Grant is the director of the human resources/personnel department for Morgan State and Defendant Dolan Hubbard is the chair of the English and Language Arts Department, the department in which Plaintiff teaches. They were originally sued in their personal and official capacities.
Plaintiff's relationship with her employer has been contentious as evidenced by the fact that Plaintiff has filed four lawsuits against Morgan State, of which this is the third. The first suit,
Plaintiff's second suit,
In this third suit, Plaintiff originally asserted four causes of action: a retaliation claim under Title VII, a hostile environment claim under Title VII, an interference claim under the FMLA, and a retaliation claim under the FMLA. While the Complaint recounted some of the long history of conflict between Plaintiff and her employer, it focused on two specific courses of events that Plaintiff alleged were "recent hostile actions cognizable under Title VII." Compl. at ¶ 9. The first arose out of Plaintiff's request for leave to attend her mother's funeral in Nigeria in the fall of 2008 and Defendants' response to that request. The second arose out of Plaintiff's request for FMLA leave to take care of her daughter, Dr. Olachi Mezu (Dr. Mezu),
Ruling on Defendants' motion to dismiss, the Court dismissed Plaintiff's hostile environment claim under Title VII, finding that Plaintiff was complaining of the same kind of conduct that Judge Motz found to be insufficiently "severe and pervasive" in the 2002 suit. The Court also dismissed the claims brought against Grant and Hubbard in their individual capacities. ECF No. 24 at 30 n.15. The Court, however, denied Defendants' motion as to the retaliation claims. The Court found that being taken off the payroll and going without pay or benefits for several weeks was sufficiently adverse that it would dissuade a reasonable worker from taking the protected action.
Finally, the Court permitted Plaintiff's FMLA interference claim to go forward. Significantly, the Court recognized that Plaintiff was bringing this claim only in relation to her 2009 request for FMLA leave to take care of her daughter after the brain surgery. The Court noted that while Defendants argued strenuously that Plaintiff was not entitled to FMLA leave to attend her mother's funeral in 2008, this was a claim never made by Plaintiff.
In the fourth suit filed by Plaintiff against these Defendants,
In Defendants' pending motion in this third suit, Defendants repeat many of the same arguments made in their motion to dismiss and seek judgment on all of Plaintiff's claims. In her motion, Plaintiff suggests that it should be established as a matter of law that Morgan State interfered with her FMLA rights and that trial of her interference claim should be limited to establishing the damages caused by that interference. Plaintiff also suggests that the Court should hold that she has established a prima facie case for retaliation under the FMLA.
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A material fact is one that "might affect the outcome of the suit under the governing law."
When both parties file motions for summary judgment, as here, the court applies the same standards of review.
The FMLA provides that "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." 29 U.S.C. § 2615(a)(1). Among the rights provided is the right of an eligible employee of a covered employer to take unpaid leave for a period of up to twelve work weeks in any twelve-month period "[i]n order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition." 29 U.S.C. § 2612(a)(1)(c). After the period of qualified leave expires, the employee is entitled to be reinstated to the former position or an equivalent one with the same benefits and terms of the employment that existed prior to the exercise of the leave.
To establish an FMLA interference claim, a plaintiff must prove: (1) she was an eligible employee, (2) her employer is a covered employer, (3) she was entitled to leave under the FMLA, (4) she gave her employer notice of her intent to take leave, and (5) her employer denied her FMLA benefits or interfered with FMLA rights to which she was entitled.
In her cross motion, Plaintiff counters that her daughter clearly suffered from a serious medical condition, that Morgan State was given more than sufficient notice of that condition but, nevertheless, interfered with her FMLA rights both by denying leave and by significantly delaying any response to her leave requests. Plaintiff suggests that the evidence is undisputed on these issues such that she is entitled to summary judgment as to liability on her FMLA interference claim. For the reasons explained below, the Court agrees the evidence tips in Plaintiff's favor. It does not tip far enough, however, for the Court to find that Plaintiff is entitled to judgment as a matter of law.
Beginning with the threshold issue of whether Dr. Mezu had a serious medical condition rendering her incapable of selfcare, it is clear that she did have such a condition for at least a significant portion of the time for which Plaintiff requested leave. On the evening of August 3, 2009, Dr. Mezu began to suffer a horrible headache while traveling on the New Jersey Turnpike. She was transported by ambulance to a local Hospital and then airlifted to Johns Hopkins Hospital. Once at Hopkins, she was rushed into emergency surgery and was in surgery for more than seven hours. She had suffered a ruptured cerebral aneurysm, a life threatening condition, and to correct that condition, the surgeons at Hopkins performed a right pterional craniotomy.
Dr. Mezu was discharged from the hospital about ten days later, on August 13, 2009. Dr. Mezu's treating neurosurgeon, Dr. Judy Huang, advised Dr. Mezu to take "an extended medical leave of absence due to the expected fatigue, decreased stamina, and diminished ability to concentrate" following the aneurysm and surgery. ECF No. 181-25. Dr. Huang further advised that Dr. Mezu would need someone to aid her in her "daily activities of living." Dr. Mezu Aff. ¶ 6. This assistance included helping her with trips to the bathroom, to shower, to take medications throughout the day and night, testing motor skills after medication, and providing meals. Dr. Mezu also required assistance so that she could do numerous at-home physical therapy exercises.
Dr. Mezu's recovery progressed well. Nonetheless, at the October 2, 2009 appointment, Dr. Huang determined that Dr. Mezu would continue to need "assistance w/activities of daily living." ECF No. 181-19 at 4 (Certification dated 10/2/2009). She also needed continued physical therapy "to increase endurance."
In arguing that Dr. Mezu did not have a serious health condition, Morgan State relies primarily on its belief that, about one month after her emergency surgery, "Dr. Mezu was able to return to her marital home, without her mother." ECF No. 168-1 at 10. The parties' characterizations of that "return to the marital home" are vastly different. Morgan State cites portions of testimony given by Dr. Mezu's ex-husband in the course of the couple's divorce proceedings — testimony which paints a picture of a visit where the couple went for a walk, went to a park, went out to dinner, and Dr. Mezu was able to walk without the assistance of a wheelchair.
In a supplemental affidavit, ECF No. 192-1, Dr. Mezu paints a very different picture of this return. She describes a visit that lasted less than 32 hours, from 11:00 Friday evening to first thing Sunday morning. During even that brief time, her husband was unable to care for her, even with meals that were sent by Plaintiff. He claimed he was exhausted from caring for Dr. Mezu and their two year old daughter and insisted that she return to her mother's house until she was fully recovered. Dr. Mezu acknowledged that she accompanied her parents to her sister's wedding, because there would be no one at home to look after her, but that she "sat in a wheelchair quietly — still incapacitated and debilitated" and could not participate in any of the activities during the event.
Morgan State also relies heavily on a note written by Dr. Huang after the October 2, 2009, follow-up visit in which Dr. Huang notes that Dr. Mezu reported that she had "returned to driving last week." ECF No. 169-3. Morgan State concludes that "[c]ertainly, if Dr. Mezu was capable of driving a car on or about September 26, 2009, then Dr. Mezu was capable of self-care." Redacted Paragraphs from Morgan State's Mot. for Summ. J.
ECF No. 169-3. The Court would not conclude that Dr. Mezu's ability to do limited driving should be equated with the capability of self-care, particularly in light of the fact that Dr. Huang also stated after the October 2, 2009, follow-up visit that Dr. Mezu "requires assistance w/activities of daily living." ECF No. 181-19 at 4.
While there may be a dispute of fact as to exactly how long Dr. Mezu experienced a serious health condition that rendered her incapable of self-care, the record indicates that, at least for a significant period of time after the surgery, she needed her mother's assistance.
There are also disputes of fact as to whether Plaintiff gave Morgan State adequate and timely notice of her intent to take FMLA leave. The FMLA permits an employer to require that a request for leave be supported by a certification issued by the health care provider of the family member who is in need of care. 29 U.S.C. § 2613. That certification is considered sufficient if it includes the date on which the serious health condition commenced, the appropriate medical facts within the knowledge of the health care provider regarding the condition, and a statement that the eligible employee is needed to care for the family member and an estimate of the amount of time that such employee is needed to render that care.
At least initially, there were some problems with the certification submitted by Plaintiff. The first form submitted by Plaintiff on August 13, 2009, stated in answer to one question that Dr. Mezu did not qualify as having a "serious health condition" but in answer to another question stated that she did. ECF No. 181-4 (compare answers to questions 3 and 8a). Left blank was the section of the form seeking a description of the medical facts in support of the certification. A subsequent letter from Dr. Huang's office, signed by her Medical Secretary, simply requested that Morgan State "please excuse Dr. Rose Mezu from August 20, 2009 through August 28, 2009 in order to take care of her daughter," but provided no further details. ECF No. 181-6. A second certification signed by Dr. Huang on August 25, 2009, provided some additional information, i.e., that Dr. Mezu had suffered a "subarachnoid hemorrhage — Cerebral aneurysm" and that the duration of the condition would be determined at a post-operative appointment on October 2, 2009. ECF No. 181-13. The certification signed by Dr. Huang after the October 2 follow-up visit was more complete, indicating that "Dr. Mezu suffered from a subarachnoid hemorrhage due to ruptured brain aneurysm. She was hospitalized and requires several months to recover." ECF No. 181-19. The certification also stated that "[Dr. Mezu] requires assistance w/activities of daily living."
Certainly at some point, at least by October 2, 2009, Plaintiff had given Morgan State sufficient notice of her need for FMLA leave. The Court also notes the different manner in which Morgan State handled Plaintiff's FMLA request as compared to the requests of other employees. As Plaintiff demonstrates in the sealed portion of her motion, ECF No. 182, Morgan State approved FMLA requests from other employees based upon certifications that were as incomplete or more incomplete than Plaintiff's. While Morgan State responds that "[e]ach FMLA leave request requires a highly individualized assessment," ECF No. 191 at 12, a finder of fact could conclude that Morgan State was simply making Plaintiff jump through hoops through which no one else was required to jump.
As mentioned above, in its motion, Morgan State argues that, even if Plaintiff was entitled to FMLA leave and gave proper notice of her intention to take that leave, Morgan State did not violate the FMLA because Plaintiff was eventually paid for the entire period for which leave was requested. In response, Plaintiff counters that the manner in which Morgan State handled her requests constituted interference with her FMLA rights. Under the FMLA, "any violations of the Act or of [the] regulations [implementing the Act] constitute interfering with, restraining, or denying the exercise of rights provided by the Act." 29 C.F.R. § 825.220(b). Plaintiff notes that FMLA regulations generally require an employer to notify an employee within five business days of receipt of certification whether her leave will be counted as FMLA leave.
Here, Morgan State took some action in response to Plaintiff's first attempt to apply for leave which she submitted on August 13, 2009. Grant sent a letter to Dr. Huang on August 19, 2009, seeking additional medical information to support the request
As a final argument challenging Plaintiff's FMLA interference claim, Morgan State argues that Plaintiff was not "prejudiced" by these alleged FMLA violations. Morgan State is correct that it is well established that the FMLA "provides no relief unless the employee has been prejudiced by the violation."
Employers who violate section 2615 are "liable to any eligible employee affected" for damages and "for such equitable relief as may be appropriate." 29 U.S.C. § 2617(a)(1). Even in cases where prejudice is shown, the employer is liable only for compensation and benefits lost "by reason of the violation," § 2617(a)(1)(A)(i)(I), for other monetary losses sustained "as a direct result of the violation."
Plaintiff seems to argue that the Court could grant her motion for partial summary judgment as to liability on her interference claim without proof of damages. ECF No. 192 at 2. While Plaintiff has made a strong showing that Morgan State violated the FMLA, the Court views the establishment of prejudice to the Plaintiff as part of the prima facie case for an interference claim. Accordingly, the Court will deny both motions.
For the most part, Morgan State's argument regarding the retaliation claims are the same or very similar to those arguments raised by Morgan State and rejected by the Court at the motion to dismiss stage.
The Court must briefly address the issue of pretext which was not addressed at the motion to dismiss stage but is raised by Morgan State in its summary judgment motion. ECF No. 168-1 at 34-38. As Morgan State observes, once a plaintiff has established a prima facie case for retaliation, the burden shifts to the defendant to provide a nondiscriminatory reason for the adverse employment action.
Morgan State devotes the bulk of its pretext argument to providing explanations for various actions taken by Defendant Hubbard that are peripheral to Plaintiff's central claim,
Morgan State terminated Plaintiff's salary and benefits on or about November 24, 2009. Plaintiff returned to work and submitted to Grant a "Return to Work After FMLA Leave" notice on December 4, 2009. ECF No. 181-25. On December 7, 2009, Plaintiff sent a letter to Grant stating that she was not receiving her pay and noting that Grant and Hubbard were aware that she was working and not being paid. ECF No. 181-26. This is confirmed in a letter sent on December 5, 2009, by Hubbard to Burney Hollis, the Dean of the College of Liberal Arts, in which Hubbard states that he saw Plaintiff on campus on December 4, 2009, and that she handed him her return to work form. ECF No. 181-39. Hubbard inquires in that letter when he should begin to enter regular time for Plaintiff.
It was not until January 21, 2010, that Morgan State informed the State Employee Benefits Division that Plaintiff was taken off of payroll in error. ECF No. 168-28 ¶ 13 (Aff. of Mary Balducci, Director of Operations for Employee Benefits Division). While Grant states that "[w]hen I learned of the error, I immediately placed [Plaintiff] back on regular pay status," ECF No. 168-26 (Grant Aff.), she fails to mention when it was that she first learned of the error. The fact finder could conclude from the limited discovery that Plaintiff was able to obtain that Grant was well aware of the error in early December. In the context of the parties' history, the fact finder could conclude that attributing to a simple mistake the failure to pay Plaintiff for more than six weeks is implausible and pretextual.
Finally, in its Motion for Summary Judgment, Morgan State proffers one additional ground for challenging Plaintiff's Title VII retaliation claim. Relying on the Supreme Court's decision in
Morgan State appears to misunderstand both the nature of Plaintiff's claim and the nature of retaliation claims under Title VII. There are two distinct types of retaliation claims under Title VII: those brought under the "participation clause" and those brought under the "opposition clause."
The "opposition clause," on the other hand, provides that an employer may not retaliate against an employee "because he has opposed any practice made an unlawful employment practice" by Title VII. 42 U.S.C.A. § 2000e-3(a). As the Fourth Circuit has observed,
Plaintiff's Title VII retaliation claim clearly falls under the participation clause as she alleges she was retaliated against for filing her previous EEOC charges and lawsuits. Morgan State completely misses this distinction when it argues, "[b]ecause [Plaintiff's] Title VII claim was not grounded in an objectively reasonable belief that MSU had violated Title VII, [Plaintiff's]
Although not uniformly, most courts have held that, unlike claims brought under the opposition clause, "[t]here is no good faith or reasonableness requirement for participation clause conduct."
As have other courts, Chief Judge Wood also found support for not injecting "reasonable belief" into participation clause claims in light of the "clear distinction between opposition and participation" recognized in the EEOC Compliance Manual.
While this Court is not aware of any direct guidance from the Fourth Circuit on this precise issue, it is confident, based on the distinction drawn in
For the above stated reasons, the Court will deny both Morgan State's Motion for Summary Judgment and Plaintiff's Motion for Partial Summary Judgment. A separate order will issue.
