TIMOTHY J. CORRIGAN, District Judge.
Plaintiffs in this consolidated action bring claims under the Family Medical Leave Act ("FMLA"). 29 U.S.C. § 2601, et seq. (Doc. 50.)
This Order is a continuation of an earlier Order disposing of motions for summary judgment as to other plaintiffs' claims in this case. (Doc. 188.) The legal precepts set forth in that previous summary judgment Order are incorporated into this Order and are not repeated here.
Plaintiffs' complaint fails to differentiate among defendants CSXT, CSXI and CSXC. However, CSXT, CSXI, and CSXC are separate corporate entities within the CSX family of companies. (Doc. 84-1 at 5 (Mateer Decl. ¶ 13).) At times material, "final decisions regarding FMLA eligibility and other FMLA matters with respect to a particular employee are made by the CSX entity that employs the employee." (Id.; see also Doc. 83-2 at 17 (Dove Decl. ¶ 48).) The corporate entities that are not the direct employer of each individual plaintiff are entitled to judgment as a matter of law. Wascura v. Carver, 169 F.3d 683, 685 (11th Cir.1999) ("where a defendant in an FMLA suit does not meet the statutory definition of `employer,' there is no federal subject matter jurisdiction over the claim against that defendant"); 29 U.S.C. § 2611(4); see also (Doc. 188 at 6-7). Plaintiffs' claims against the corporate entities that are not their employer are due to be dismissed for lack of subject matter jurisdiction.
The Court has been informed that the claims brought by plaintiffs Juliet Christie, Harold Fisher, Rodney Puckett, and Lettie McClain have been settled. (Docs. S-18, S-19.) The Court will direct the parties to file papers to close out these claims.
Before the Court are three Stipulations For Dismissal Pursuant To F.R.C.P. 41(a) with prejudice as to the claims brought in Complaint "A" by plaintiffs James Adams, Anita Humphrey (in Count I) and Charisse Bell. (Docs. 126, 165, 166.) Defendants consent to these dismissals. (Doc. S-18.) Accordingly, these claims are due to be dismissed with prejudice.
Plaintiffs have filed three Motions For Dismissal Pursuant To F.R.C.P. 41(a)(2) seeking to dismiss with prejudice the claims brought in Complaint "A" by plaintiffs Tammy Howard, Jennifer Saul and Tracey Thompson. (Docs. 180, 181, 182.) Defendants have filed responses to the motions, saying that they do not object to the dismissal of plaintiffs' claims with prejudice, but contending that the Court's dismissal order should require each plaintiff to pay defendants' costs pursuant to Rule 54(d)(1), Federal Rules of Civil Procedure. (Docs. 183, 184, 185.)
A voluntary dismissal of a claim with prejudice operates as an adjudication on the merits in favor of defendant, and the defendant is considered the prevailing party. Mathews v. Crosby, 480 F.3d 1265, 1276 (11th Cir.2007); Hunt v. Hawthorne Assocs., Inc., 119 F.3d 888, 911 n. 63 (11th Cir.1997); see also Gibson v. Walgreen Co., No. 6:07-cv-1053-Orl-28KRS, 2008 WL 4610239, at *2 (M.D.Fla. Oct. 16, 2008). Rule 54(d)(1) provides that "[u]nless a federal statute, these rules, or a court order provides otherwise, costs—other than attorney's fees—should be allowed to the prevailing party." Fed. R. Civ. P. 54(d)(1). "Under Rule 54(d), there is a strong presumption that the prevailing party will be awarded costs." Mathews, 480 F.3d at 1276. These claims are due to be dismissed with prejudice, and defendants are awarded costs for these three
The Court defers ruling on Defendants' Motion For Sanctions (Doc. 186) and will hear argument of counsel at a hearing to be scheduled.
Plaintiff Michael Andrews alleges that "CSX" violated his rights under the FMLA when it terminated him for excessive absenteeism because, he alleges, "six of the nine attendance failures that plaintiff Andrews was charged with were due to a serious medical condition" and "defendants, CSX, never informed plaintiff Andrews that these absences could be certified under the FMLA, until after he was charged with excessive attendance failures." (Doc. 50 (2d Am. Compl.("Compl.") ¶¶ 28, 29).) Andrews alleges that he had informed his employer of his serious medical condition and that the "defendants, CSX, failed in its duty under FMLA to inform plaintiff of his eligibility for FMLA" in violation of 29 C.F.R. § 825.208(a) and (b)(1), which then "allow[ed] him to be subject to the absenteeism policy, and leading to his termination." (Id. ¶¶ 31, 35, 36.)
Defendants argue they are entitled to summary judgment because 1) attendance failures charged to Andrews were not covered by the FMLA; 2) Andrews did not put CSXI on notice of his alleged FMLA-qualifying reasons for his absences nor request FMLA leave for his absences; and 3) CSXI fulfilled its employer-notice obligations under the FMLA. (Doc. 129 at 2.)
Andrews worked for CSXI from April 1, 1999 through February 23, 2006 when he was terminated for excessive absenteeism. (Doc. 130-1 at 4, 5 (Andrews Dep. at 10, 20).)
Andrews testified at the investigative hearing that when he notified his employer CSXI of his absences in 2005, "I would just call them up and tell them I'm . . . having to mark off and I hate to but I'm sick." (Doc. 130-2 at 66 (Andrews Ex. 15).) Andrews said that he informed his supervisors of his illnesses upon his return to work and provided the required doctors' notes. All but one of the doctors' notes provided by Andrews failed to specify Andrews' medical condition, and all of the notes stated that Andrews was fit to perform his job duties. (Doc. 130-1 at 23, 30-33 (Andrews Dep. at 52, 75-78); S-5 (Andrews Dep. Ex. 14).)
It is undisputed that Andrews was absent or late the following dates and stated reasons:
7/28/05-8/1/05 marked off 3 days: sick
8/22/05 marked off 1 day: other-family
emergency
9/13/05 marked off one day: sick
9/14/05 45 minutes late to work;
doctor appointment
9/27/05 marked of 1 day: other-car
trouble
11/30/05-12/2/05 marked off 3 days; sick
12/6/05 1 hour 20 minutes late to work
12/7/05-12/9/05 marked off sick during shift
(paid time worked 12/7)
12/29/05-12/30/05 marked off sick
totaling fifteen days of missed work and constituting nine "attendance failures." (Doc. 130-3 at 13, 73 (Andrews Dep. Exs. 15, 19); Doc. 129 at 6.)
On January 4, 2006, the date Andrews signed acknowledgment of the discipline letter, Featherston told Andrews that if Andrews was suffering from an ongoing medical condition, "it might have been something that you could have explored in the past and gotten some of these to have been part of your FMLA, in which case it would not become a part of this attendance occurrence, and it's something that in the future you might want to consider if your condition falls under the guidelines." Featherston directed Andrews to the company bulletin board information about the FMLA. (Doc. 130-2 at 35, 41 (Andrews Dep. Ex. 15).) Featherston said that he did not "have a lot of detailed knowledge about what Mr. Andrews' condition is" and still has "no first-hand knowledge of what Mr. Andrews' ongoing problem is." (Id. at 33, 35, 41)
A hearing on the January 3 disciplinary charge was conducted on January 26, 2006. Andrews was accompanied by his union representative and had the opportunity to present witnesses and documentary evidence. (Doc. 130-1 at 33-36 (Andrews Dep. at 78-81); Doc. 130-2 (Andrews Dep. Ex. 15).)
The first (and only) time Andrews ever sought FMLA leave was on February 10, 2006, when he submitted to CSXI an FMLA doctor's certification reporting a "serious health condition," in which chiropractor Dr. C.C. Reid stated that the "patient [Andrews] hurt himself picking up a trash can" "approximately 3 weeks before 1-27-06 [which would be January 6, 2006]." The prognosis remained "undetermined until reexam scheduled on 2-11-06." The chiropractor said that Andrews had been provided with a 10-day treatment program with a reexam, and physical therapy. (Doc. 178 at 3; S-5 (Andrews Dep. Ex. 17).) The FMLA leave request was approved February 17, 2006, retroactive to leave in accordance with Andrews' request, from January 30 through February 10, 2006. (Doc. 130-3 at 72 (Andrews Dep. Ex. 18).) Andrews never submitted an FMLA claim for any of the medical conditions which occurred between July 28 and December 30, 2005, for which he was disciplined by termination. (See Doc. 130-3 at 75 (Andrews Dep. Ex. 21).)
On February 23, 2006, hearing officer Robert J. Meizinger wrote to Andrews concerning the outcome of the hearing regarding his January 3 disciplinary notice for excessive absenteeism. Meizinger stated:
(Doc. 130-3 at 73 (Andrews Dep. Ex. 19).) After finding Andrews at fault, the hearing
Andrews acknowledged that he received the company's attendance guidelines. (Doc. 130-1 at 19 (Andrews Dep. at 40)) which provide that "[e]mployees who have been absent, tardy, or a combination thereof, on more than six occasions in a six month period" will have their attendance reviewed by their supervisor, and may, "[w]hen appropriate," be subject to disciplinary action "up to and including dismissal from service, after an appropriate investigation of the circumstances." (Doc. 130-3 at 69-70 (Andrews Dep. Ex. 15).) Additionally, Andrews acknowledged that he received a copy of the company's General Regulations every year he was employed. (Doc. 130-1 at 8 (Andrews Dep. at 26).) The regulations require employees to review each day material posted on the company bulletin board located in the employee break room. (Doc. 130-1 at 9-10 (Andrews Dep. at 27-28).) Prior to 2005, the company bulletin board displayed a poster entitled "Your Rights Under the Family Medical Leave Act of 1993" with information about the FMLA which Andrews admits he reviewed, in part. (See Doc. 178 at 1.) After reading the first two paragraphs, Andrews said he did not read any more of the information because he believed that the FMLA pertained only to families and not to him as a "single man." Andrews acknowledged that he did not read the entire document because the first two paragraphs were "misleading." (Doc. 130-1 at 10-14 (Andrews Dep. at 28-32).) Andrews understood that certain medical absences could be covered by the FMLA "[i]f I had had a family." (Id. at 12 (Andrews Dep. at 30).) Andrews never spoke with his supervisors or the company human resources department about the FMLA. (Id. at 15-16 (Andrews Dep. at 33-34).)
Andrews also admits that CSXI employees received a bulletin on May 23, 2005 that included CSXI's FMLA poster and were instructed to "read the following pages carefully" to ensure they "understand this procedure." (Docs. 129 at 4;178 at 2; 130-3 at 65-68 (Andrews Dep. Ex. 15).)
It is unlawful for an employer to "interfere with, restrain, or deny the exercise of or attempt to exercise, any right provided" by the FMLA. 29 U.S.C. § 2615(a)(1). "`Interfering with' the exercise of an employee's rights would include, for example, not only refusing to authorize FMLA leave, but discouraging an employee from using such leave." 29 C.F.R. § 825.220(b) (2006).
Andrews contends that CSXI "failed to provide specific or individual notice of FMLA leave to Mr. Andrews including but not limited to simply providing him with a medical certification form to have completed by his health care provider for each of the events." (Doc. 178 at 3 (citing 29 C.F.R. § 825.301(b)).) Andrews contends that the information CSXI had, including the notes from the doctors "stating that he was treated and that he was cleared to return to work . . . satisfies the initial notice of leave to trigger the employer's duty to send out a medical certification form for completion." (Doc. 178 at 11 (emphasis in original)). Andrews focuses on the requirement of implementing regulation 29 C.F.R. § 825.301(c) which requires that upon receipt of the employee's "notice of the need for leave," the employer must provide written guidance of the employee's rights and responsibilities under the FMLA, including any requirements for the employee to furnish medical certification of a serious health condition and the consequences of failing to do so. 29 C.F.R. § 825.301(a)(2), (b)(1)(ii) and (c). As framed by Andrews, "[t]he issue to be determined is whether Mr. Andrews sufficiently provided either verbal and/or written notice of his need for leave; and then in response did [CSXI] provide individual notice of the procedures to apply for FMLA which would include providing a medical certification form." (Doc. 178 at 10.)
"Under [regulation] § 825.301(c) of the FMLA, the detailed employer written notice obligation . . . arises only after an employee gives sufficient information to the employer to apprise it of the need for leave due to a serious health condition. If an employee gives insufficient or no notice of a serious health condition, § 825.301(c) does not apply. If [the employee] failed to properly notify [his] employer of [his] need for leave, [the] employer would be under no obligation to comply with the requirements of 29 C.F.R. § 825.301(c)." Sanders v. May Dept. Stores Co., 315 F.3d 940, 945 (8th Cir.2003); see also Robinson v. Overnite Transp. Co., 110 F.3d 60, 1997 WL 165416, at *8-9 (4th Cir.1997) (employer's duty to explain to employee his rights and responsibilities required by 29 C.F.R. § 825.301(c) not triggered because employer was never on notice of employee's need for FMLA leave) (unpublished opinion).
Both the employee and the employer have specific notice requirements pursuant to the FMLA and its implementing regulations. See 29 U.S.C. § 2612(e)(1) and (2), 2613; 29 C.F.R. §§ 825.208, 825.300, 825.301, 825.302, 825.303, 825.304, 825.305. "An employee shall provide at least verbal notice, sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave." 29 C.F.R. § 825.302(c); see also Lowery v. Strength, 356 Fed.Appx. 332, 333 (11th Cir.2009). "[A]n employee giving notice of the need for . . . FMLA leave does not need to expressly assert rights under the Act or even mention the FMLA to meet his or her obligation to provide notice, though the employee would need to state a qualifying reason for the needed leave."
A period of absence alone is not adequate notice under the FMLA. Phillips v. Quebecor World RAI, Inc., 450 F.3d 308, 311 (7th Cir.2006). Nor does an employee's reference to being "sick" "`suggest to the employer that the medical condition might be serious or that the FMLA otherwise could be applicable.'" Id. at 312 (citation omitted). Additionally, a doctor's note that fails to specify the medical reason for the employee's absence does not provide the employer with sufficient notice of a potentially FMLA "qualifying reason." See Lowery, 356 Fed.Appx. at 334 (doctor's certificate and letters saying that employee was previously treated for depression and anxiety, that her absences were due to "medical reasons" and that employee could return to work did not inform employer that employee was currently suffering from a condition that might qualify her for FMLA leave).
"Once an employee gives sufficient notice to her employer that potentially FMLA-qualifying leave is needed, the employer must then ascertain whether the employee's absence actually qualifies for FMLA protection." Cruz, 428 F.3d at 1383 (citations omitted). "The employee cannot merely demand leave; he must give the employer a reason to believe that he is entitled to it." Id., 428 F.3d at 1385. "The employer will be expected to obtain any additional required information through informal means." 29 C.F.R. § 825.303. The FMLA does not "require employers to engage in intrusive inquiries to determine whether the FMLA applies." Manuel v. Westlake Polymers Corp., 66 F.3d 758, 763 (5th Cir.1995); see also Cruz, 428 F.3d at 1385 ("[u]nless the employer already knows that the employee has an FMLA-approved reason for leave, the employee must communicate the reason for the leave to the employer"); Gay v. Gilman Paper Co., 125 F.3d 1432, 1434-36 (11th Cir.1997) (employee's husband's phone call to employee's supervisor that employee was "in the hospital for tests" did not supply employer with sufficient information to make employer aware the employee's absence was due to a potentially FMLA-qualifying reason, as required to trigger employer's burden to request further information). "Requiring employers to determine whether leave is covered by the FMLA every time an employee was absent because of sickness would impose `a substantial and largely wasted investigative burden on employers.'" Phillips, 450 F.3d at 312.
Even if Andrews' notice was sufficient, it is irrelevant if he cannot demonstrate that he sought FMLA for a "serious health condition" qualifying him for FMLA leave, an essential element of an FMLA interference claim. The FMLA provides eligible employees with leave for "a serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612(a)(1)(D). The FMLA defines a "serious health condition" as "an illness, injury, impairment, or physical or mental condition that involves . . . inpatient care in a hospital, hospice, or residential medical facility; or . . . continuing treatment by a health care provider." 29 U.S.C. § 2611(11); see also 29 C.F.R. § 825.114(a)(1) and (2). A "serious health condition" involving "[c]ontinuing treatment by a health care provider" includes:
29 C.F.R. § 825.114(a)(2). "[T]he term `serious health condition' is intended to cover conditions or illnesses that affect an employee's health to the extent that he or she must be absent from work on a recurring basis or for more than a few days for treatment or recovery. . . . The term `serious health condition' is not intended to cover short-term conditions for which treatment and recovery are very brief. It is expected that such conditions will fall within even the most modest sick leave policies." S.Rep.No. 103-3 at 28 (1993), reprinted in 1993 U.S.C.C.A.N. 3, 30. Such ailments as "the common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraine . . ." are not considered "serious health conditions." 29 C.F.R. § 825.114(c); see generally Stimpson v. United Parcel Service, 351 Fed.Appx. 42, 49 (6th Cir.2009) (citation omitted) ("bruises and mild back pain" suffered in bicycle accident do not qualify as a "serious medical condition"); Morris v. Family Dollar Stores of Ohio, Inc., 320 Fed.Appx. 330, 334, 337 (6th Cir.2009), cert. denied, ___ U.S. ____, 130 S.Ct. 418, 175 L.Ed.2d 272 (2009) ("an out-patient needle biopsy with one follow up visit" is not a "serious health condition"); Beaver v. RGIS Inventory Specialists, Inc., 144 Fed.Appx. 452, 456 (6th Cir.2005) (bronchitis does not qualify as a "serious health condition" (citing cases)).
As a matter of law, Andrews' absences between July and December 2005, for which he was disciplined, do not qualify as a "serious health condition" for FMLA purposes. None of Andrews' absences were due to in-patient hospital care. Likewise, none of the absences due to illness qualify as requiring "continuing treatment by a health care provider." Twice Andrews was absent for three day periods, once for a "spider bite" and once for bronchitis. Both conditions resolved within days, and there is no evidence the bite or the bronchitis caused Andrews to be under "continuing" or "periodic" care or supervision by a health care provider for either medical event. The reoccurrence of bronchitis one month later was treated and resolved, and Andrews returned to work in two days. The remaining absences were of duration of two days or less, for anxiety, bronchitis, an out-patient procedure, and a doctor's appointment. By Andrews' own admission, he was qualified to return to work and able to perform his job duties after each short-term absence. Cf. Curry v. Neumann, No. 98-8969-CIV, 2000 WL 1763842, at *5 (S.D.Fla. April 3, 2000) (granting summary judgment to employer where doctors' notes provided by employee failed to state that she could not perform the duties of a clerk and thus were insufficient certification to justify FMLA leave). Andrews' absences at issue were due to different relatively minor medical events, none of them serious, and none of them continuing or connected. Because the undisputed evidence does not create a triable issue as to whether Andrews suffered from a serious health condition, as a matter of law he was not eligible for FMLA leave.
Plaintiff Marcie Hoerig was terminated by her employer CSXT
"[T]o state a claim that his employer has interfered with a substantive FMLA right, a plaintiff need only demonstrate that he was entitled to but denied the right. He does not have to allege that his employer intended to deny the right; the employer's motives are irrelevant." Strickland v. Water Works and Sewer Bd. of City of Birmingham, 239 F.3d 1199, 1208 (11th Cir.2001). An employer can defeat an interference claim by showing, among other things, that the employee did not take leave "for the intended purpose." While the Court is skeptical about the ultimate merit of plaintiff Marcie Hoerig's FMLA interference claim, the Court is deferring ruling on the summary judgment motion.
To succeed on her FMLA retaliation claim, Hoerig must establish that CSXT "intentionally `discriminated against [her] because [s]he engaged in activity protected by the Act.'" Foshee v. Ascension Health-IS, Inc., No. 09-16499, 384 Fed. Appx. 890, 891, 2010 WL 2511384, at *1 (11th Cir. June 23, 2010) (quoting Strickland, 239 F.3d at 1206). When the plaintiff does not offer direct evidence of the employer's retaliatory intent, the court applies the McDonnell Douglas
Construing the evidence in favor of plaintiff, the Court will assume, without deciding, that Hoerig can establish a prima facie case; that is, that Hoerig exercised
The burden then shifts to CSXT to articulate a legitimate, non-retaliatory reason for terminating Hoerig. CSXT fired Hoerig
The burden then shifts back to Hoerig to show that the proffered reason for her termination was pretextual.
Diaz v. Transatlantic Bank, 367 Fed.Appx. 93, 96-97 (11th Cir.2010) (citations omitted). Hoerig has proffered no evidence that CSXT's reason for firing her was pretextual. She raises no genuine issue of fact that the stated reasons for her termination were false, nor can she demonstrate that CSXT's proffered reason did not actually motivate her discharge. Judgment is due to be entered in favor of CSXT on Hoerig's FMLA retaliation claim.
Plaintiff Anita Humphrey contends that her employer, CSXT
Again, the Court is skeptical about the ultimate merit of plaintiff Anita Humphrey's FMLA interference claim, particularly given the circumstances underwhich she "marked-off" for FMLA leave on May 19, 2006. However, the Court will defer ruling and set this motion for hearing for discussion of the "honest belief" issue and its applicability in the Eleventh Circuit. See Strickland, 239 F.3d at 1208.
CSXT contends that it had "an honest belief that her May 19, 2006 absence was not for a legitimate FMLA leave and that she was not using FMLA leave for its intended purpose." (Doc. 139 at 2; see also Doc. 154-1 at 2-3 (Male Dep. at 52-53).) Assuming that Humphrey has established a prima facie case, CSXT has met its burden of articulating a legitimate non-retaliatory reason for disciplining Humphrey for leaving work. See Holmes, 309 F.3d at 755 ("[a]n employer articulates a legitimate nondiscriminatory reason for [discipline] where the employer had an honest, good faith belief in the reason for termination, even if it turns out that the employer was mistaken in that belief"). "To show pretext, a plaintiff must come forward with evidence . . . sufficient to permit a reasonable factfinder to conclude that the reasons given by the employer were not the real reasons for the adverse employment decision." Hurlbert, 439 F.3d at 1298 (internal quotations and citations omitted). Even if CSXT's "honest belief" ultimately proves to be incorrect and Humphrey's FMLA mark-off on the day in question was for the FMLA's "intended purpose," plaintiff has adduced no evidence that CSXT's "honest belief" was motivated by "an impermissible retaliatory or discriminatory animus." See Strickland, 239 F.3d at 1207. Judgment is due to be entered in favor of CSXT on Humphrey's FMLA retaliation claim.
Plaintiff Deanna Miller, a crew dispatcher with CSXT,
CSXT argues that Miller's December 2004-January 2005 absences were not protected by the FMLA because she failed to timely submit a medical certification form related to those absences (Doc. 143 at 11-15) (citing e.g. 29 C.F.R. § 825.311(b)) and that it had an "honest suspicion" Miller was misusing FMLA leave. (Id. at 15-18.) The Court defers ruling on CSXT's motion for summary judgment on Miller's interference claim pending a hearing.
Assuming for purposes of considering defendants' motion for summary judgment, that Miller has established a prima facie case of discrimination for her lawful use of FMLA leave, she has adduced no evidence to counter CSXT's contention that Miller was disciplined based upon "CSXT's `honest suspicion' that she had misused FMLA leave by taking leave when she was not approved," believing that its FMLA administrator first received Miller's medical certification in March 2005. (Doc. 143 at 20.) Miller cites to no evidence other than her own testimony that she "likely" mailed and also hand delivered the medical certification to an office supervisor before that date. Miller has failed to meet her summary judgment burden of putting forth evidence that CSXT's proffered legitimate reason is pretext for unlawful retaliation based upon her use of FMLA leave.
Plaintiff Muzette Robinson alleges her employer CSXT
The FMLA provides relief only if the employee has been prejudiced by a violation of the statute. Demers v. Adams Homes of Northwest Fla., Inc., 321 Fed.Appx. 847, 849 (11th Cir.2009) (citing Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89, 122 S.Ct. 1155, 152 L.Ed.2d 167 (2002)). "The remedy is tailored to the harm suffered." Ragsdale, 535 U.S. at 89, 122 S.Ct. 1155. Thus, even if there may have been a technical violation of the FMLA, "those violations are not compensable where, as here, a plaintiff has failed to demonstrate that he suffered any `adverse employment action' for purposes of stating a prima facie case under the statute." Drago v. Jenne, 453 F.3d 1301, 1307 (11th Cir.2006) (citing Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1284 (11th Cir.1999)). Besides failing to show that she was subject to an adverse employment action, Robinson has not demonstrated she suffered any "actual monetary losses" as a result of CSXT's actions. 29 U.S.C. § 2617(a)(1)(A)(i)(II).
Additionally, equitable relief is not appropriate in the absence of an FMLA injury. Andrews v. CSX Transp., Inc., No. 3:06-cv-704-J-HTS, 2009 WL 5176462, at *2 n. 6 (M.D.Fla. Dec. 22, 2009); Billups v. Tampa Sports Auth., No. 8:06-cv-1433-T-23TGW, 2007 WL 4093232, at *9 (M.D.Fla. Nov. 15, 2007) (citing Rodgers v. City of Des Moines, 435 F.3d 904, 909 (8th Cir.2006) ("[b]ecause [the plaintiff] suffered no prejudice, the FMLA provides no equitable relief")); see also 29 U.S.C. § 2617(a)(1)(B) (employer who violates FMLA shall be liable "for such equitable relief as may be appropriate, including employment, reinstatement, and promotion").
Even if equitable relief were available in circumstances where plaintiff has suffered no monetary loss, Robinson has made no showing that the inclusion of the discipline report in her personnel record nearly five years ago has caused her any damages, and has conceded that after the passage of three years (i.e. after August 2008), will not cause her any damages in the future. See City of Los Angeles v. Lyons, 461 U.S. 95, 105, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (where a plaintiff seeks prospective relief, he must demonstrate a "real and immediate threat" of future injury); Elend v. Basham, 471 F.3d 1199, 1207 (11th Cir. 2006); Wooden v. Bd. of Regents of Univ. Sys. of Ga., 247 F.3d 1262, 1284 (11th Cir.2001).
Plaintiff Kathy Warren's employer
During the summer of 2006, Warren used both FMLA
On June 5, 2006, Warren worked seven minutes of her shift and "marked off" "on-duty sick" leave (unpaid sick leave) for the remaining seven hours and 53 minutes, substantiating the leave with a doctor's note dated June 6. (Docs. 151 at 4-5 (citing 152-1 at 13, 27 45 (Warren Dep. at 25, 44 & Ex. 7); S-13; 176 at 2).)
On June 6, 2006, Warren was scheduled to work a full shift, starting at 11:00 p.m. She was initially assigned to train another employee in the CSXT Operations Center, a job which Warren preferred because it was "a quiet job." (Docs. 151 at 5 (citing 152-1 at 18-20) (Warren Dep. at 34, 36, 37)); 176 at 2 (citing Doc. 152-1 at 20 (Warren Dep. at 37).) Approximately 30 minutes into the shift, Warren received a call from a CSXT's Crew Management Center ("CMC") directing her to report to a different position (called "diverting") at the CMC for the remainder of her shift. (Docs. 151 at 5 (citing Doc. 152-1 at 21-23 (Warren Dep. at 38-40); 176 at 2).) CSXT recorded the telephone conversation on June 6, 2006 at 11:23 p.m.:
(Docs. 151 at 5; 176 at 2; 152-1 at 69-70 (Warren Dep. Ex. 10 at 3-4).) Warren in her brief admits defendants' statement that "Ms. Warren immediately marked off `on-duty sick,' not FMLA, at 11:30 p.m. on June 6, 2006," 30 minutes into her scheduled shift. (Docs. 151 at 5 (citing Doc. 152-1 at 33, 45, 89 (Warren Dep. at 79 & Exs. 7, 27)); 176 at 3.) Warren called the CMC administrative caller several minutes later at 11:30 p.m., to discuss the procedures used in determining the "diversion," but again, Warren did not mention FMLA leave. (Docs. 151 at 6 (citing Docs. 152-1 at 24-25, 70-72 (Warren Dep. at 41-42 & Ex. 10 at 4-6); 176 at 3.)) Warren was
On June 20, 2006, CSXT charged Warren under her collective bargaining agreement with marking off "on-duty sick" under "false pretenses on June 6, 2006 after she was diverted from a position in the Operations Center to a different position in the CMC." (Docs. 151 at 6 (citing Doc. 152-1 at 16, 66 (Warren Dep. at 28 & Ex. 8); 176 at 3.))
CSXT conducted a disciplinary investigation into the false pretenses charge against Warren on July 20, 2006, which Warren attended with union representation. (Docs. 151 at 6 (citing Doc. 152-1 at 17-18, 67 (Warren Dep. at 33-34 & Ex. 10); 176 at 3.)) Notably, while aware that the discipline concerned her use of "on-duty sick" leave on June 6, 2006, neither Warren or her representative ever stated in the investigative hearing that she was using FMLA leave on June 6, 2006. (Doc. 152-1 at 67, 69, 72-73, 75, 78-79 (Warren Dep. Ex. 10 at 1, 3, 6-7, 9, 12-13).)
On August 7, 2006, CSXT found Warren guilty of marking off "on duty sick" under false pretenses, and suspended Warren for five days. (Doc. 152-1 at 82 (Warren Dep. Ex. 12).)
In her December 10, 2008 deposition, Warren contended for the first time that at some point on June 6, 2006, she called into a CMC crew dispatcher to mark off FMLA. (Docs. 151 at 7 (citing Doc. 152-1 at 34-36 (Warren Dep. at 80-82); 176 at 3.)) Acknowledging that her employment records do not reflect that she ever sought FMLA leave for June 6, 2006, Warren stated: "It should be but . . . because I know that I did, but . . . it's not here." Warren does not know with whom she spoke, only that
(Doc. 152-1 at 34 (Warren Dep. at 80).) As to the telephone call recording transcripts, Warren said "they record what they want to record. . . . They put on the transcripts what they want to put on the transcripts." (Id. at 35 (Warren Dep. at 81.)) Warren acknowledged that she did not raise FMLA at her investigative hearing. (Id. at 34-35 (Warren Dep. at 80-81).)
CSXT argues that it is entitled to summary judgment on both Warren's interference and retaliation claims because 1) Warren did not take FMLA leave on June 6, 2006 and thus her absence is not protected by the FMLA; 2) even if Warren did take FMLA leave on June 6, CSXT had an "honest suspicion" that she was not taking FMLA leave for its intended purpose but that she took leave to avoid working a position she found less desirable; and 3) as to her retaliation claim, Warren has failed to adduce any evidence of pretext to overcome CSXT's proffered reason for the discipline. Warren argues that she met the "notice standard" for FMLA leave, indicating "during her telephone conversation with the admin caller that she needed to be marked off sick on June 6, 2006." (Doc. 176 at 4.) Warren contends that "[a]ll that she was required to do under the statute is to indicate a need for leave in circumstances where the employer is already aware of an employee's medical or family history." (Id.) At minimum, argues Warren, the evidence creates an issue of fact.
Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law."
Scott, 550 U.S. at 380, 127 S.Ct. 1769 (emphasis in original).
The undisputed evidence is that Warren told the administrative caller on June 6 to "just lay me off ODS" and nothing more. In addition, Warren had taken non-FMLA sick leave on June 5, 7 and 8, the days before and after the day in question, as well as on other days within the month. Warren's vague assertion two years after the fact that she requested FMLA leave on June 6 directly contradicts two recordings of telephone conversations on June 6, 2006 in which Warren requested "ODS" ("on-duty sick" leave) and the transcript of an investigative hearing held on July 20, 2006 concerning CSXT's charge arising out of Warren's use of "on-duty sick" leave on June 6. Warren's request for non-FMLA sick leave on June 6 is further corroborated by detailed CSXT personnel records, which reflect that Warren took advantage
Upon due consideration, it is hereby
1. Plaintiffs Juliet Christie, Harold Fisher, Rodney Puckett, and Lettie McClain, and Defendants shall file a joint motion for dismissal or other appropriate documents by
2. The claims brought in Complaint "A" by plaintiffs James Adams, Anita Humphrey (in Count I) and Charisse Bell are
3. Plaintiffs Tammy Howard, Jennifer Saul, and Tracey Thompson's Motions For Dismissal Pursuant To F.R.C.P. 41(a)(2) (Docs. 180, 181,182) are
4. Defendants' Motion For Sanctions Against Plaintiff Jennifer Saul And Her Counsel Gregory G. Paul Pursuant To Fed. R. Civ. P. 11 And 28 U.S.C. § 1927 (Doc. 186) is
5. Defendants' Motion For Summary Judgment On The Claims Of Plaintiff Michael Andrews In Second Amended Complaint "A" (Doc. 129) is
6. Defendants' Motion For Summary Judgment On The Claim Of Plaintiff Marcie Hoerig In Second Amended Complaint "A" (Doc. 135) is
7. Defendants' Motion For Summary Judgment On The Claims Of Plaintiff Anita Humphrey In Second Amended Complaint "A" (Doc. 139) is
8. Defendants' Motion For Summary Judgment On The Claim Of Plaintiff Deanna Miller In Second Amended Complaint "A" (Doc. 143) is
9. Defendants' Motion For Summary Judgment On The Claims Of Plaintiff Muzette Robinson In Second Amended Complaint "A" (Doc. 145) is
10. Defendants' Motion For Summary Judgment On The Claim Of Plaintiff Kathy Warren In Second Amended Complaint "A" (Doc. 151) is
11. This case is set for
12. The Clerk should withhold entry of judgment until further order of the Court.
In these cases, the parties do not dispute that the individual plaintiffs are eligible employees, 29 U.S.C. § 2611(2) and that the employer of each plaintiff is an eligible private sector employer. 29 U.S.C. § 2611(4).
