WILLIAM H. STEELE, UNITED STATES DISTRICT JUDGE.
This matter is before the Court on the defendant's motion for summary judgment and the plaintiff's motion for partial summary judgment. (Docs. 50, 51). The parties have submitted briefs and evidentiary materials in support of their respective positions, (Docs. 50-52, 54-55, 58-59), and the motions are ripe for resolution. After careful consideration, the Court concludes that the defendant's motion is due to be denied and the plaintiff's motion granted in part and denied in part.
According to the amended complaint, (Doc. 9), the plaintiff was employed by the defendant, the owner of a number of Burger King restaurants. The plaintiff sought FMLA leave in February 2017 to care for her hospitalized mother but did not receive such leave and instead was terminated days later. The complaint asserts claims for interference with the plaintiff's FMLA rights and retaliation for exercising those rights. The defendant seeks summary judgment as to both claims. The plaintiff seeks summary judgment as to her interference claim.
Summary judgment should be granted only if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The party seeking summary judgment bears "the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial." Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The moving party may meet its burden in either of two ways: (1) by "negating an element of the non-moving party's claim"; or (2) by "point[ing] to materials on file that demonstrate that the party bearing the burden of proof at trial will not be able to meet that burden." Id. "Even after Celotex it is never enough simply to state that the non-moving party cannot meet its burden at trial." Id.; accord Mullins v. Crowell, 228 F.3d 1305, 1313 (11th Cir. 2000); Sammons v. Taylor, 967 F.2d 1533, 1538 (11th Cir. 1992).
"When the moving party has the burden of proof at trial, that party must show affirmatively the absence of a genuine issue of material fact: it must support its motion with credible evidence ... that would entitle it to a directed verdict if not controverted at trial. [citation omitted] In other words, the moving party must show that, on all the essential elements of its case on which it bears the burden of proof, no reasonable jury could find for the nonmoving party." United States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir. 1991) (en banc) (emphasis in original); accord Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993).
"If the party moving for summary judgment fails to discharge the initial burden, then the motion must be denied and the court need not consider what, if any, showing the non-movant has made." Fitzpatrick, 2 F.3d at 1116; accord Mullins, 228 F.3d at 1313; Clark, 929 F.2d at 608.
"If, however, the movant carries the initial summary judgment burden ..., the responsibility then devolves upon the non-movant to show the existence of a genuine issue of material fact." Fitzpatrick, 2 F.3d at 1116. "If the non-moving party fails to make `a sufficient showing on an essential element of her case with respect to which she has the burden of proof,' the moving party is entitled to summary judgment." Clark, 929 F.2d at 608 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)) (footnote
In deciding a motion for summary judgment, "[t]he evidence, and all reasonable inferences, must be viewed in the light most favorable to the nonmovant ...." McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003).
"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). "An interference claim has two elements: (1) the employee was entitled to a benefit under the FMLA; and (2) her employer denied her that benefit." White v. Beltram Edge Tool Supply, Inc., 789 F.3d 1188, 1191 (11th Cir. 2015).
The first element identified in White subsumes several sub-elements. As relevant to this case, these include the following: (1) that the defendant is a covered entity; (2) that the plaintiff is eligible for FMLA benefits; (3) that the plaintiff sought leave for a qualifying reason; and (4) that the plaintiff provided notice meeting certain criteria.
The defendant must be an "employer" that is "engaged in commerce or in any industry or activity affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year." 29 U.S.C. § 2611(4)(A)(i). The defendant admits that this requirement is satisfied. (Doc. 9 at 2, ¶ 7; Doc. 15 at 2, ¶ 7).
To be eligible to receive FMLA benefits, the plaintiff must have "been employed... for at least 12 months by the employer with respect to whom leave is requested... and ... for at least 1,250 hours of service with such employer during the previous 12-month period." 29 U.S.C. § 2611(2)(A). In addition, the plaintiff must be employed at a worksite where, or within 75 miles of which, the defendant employs at least 50 employees. Id. § 2611(2)(B)(ii). The defendant admits that all parts of these requirement but one are satisfied. (Doc. 9 at 2, ¶¶ 5, 7; Doc. 15 at 2, ¶¶ 5, 7).
The defendant in its answer does not admit that the plaintiff had been employed by the defendant for at least twelve months, but neither does it dispute the plaintiff's assertion that she is an eligible employee. (Doc. 50 at 13). It is uncontroverted that the defendant became the plaintiff's employer in December 2016, less than two months before the plaintiff was terminated.
The first seven factors all plainly support successor status: the defendant purchased almost 200 Burger King restaurants and retained all personnel and equipment to provide the same products in the same manner and by the same means at the same locations. The final factor is relevant only when the successor is sought to be held liable for the infractions of the predecessor and so is not relevant here.
"A successor which meets FMLA's coverage criteria must count periods of employment and hours of service with the predecessor for purposes of determining employee eligibility for FMLA leave." 29 C.F.R. § 825.107(c). Because the defendant is Strategic's successor, and because the defendant meets the FMLA's coverage criteria, the plaintiff's length of employment with Strategic must be added to her two months with the defendant to determine her eligibility. It is uncontroverted that the plaintiff was employed by the defendant's predecessor for several years before the defendant's acquisition.
An eligible employee may receive FMLA leave "in order to care for the ... parent ... of the employee, if such ... parent has a serious health condition." 29 U.S.C. § 2612(a)(1)(C). A "serious health condition" includes "an illness, injury, impairment, or physical or mental condition that involves ... inpatient care in a hospital...." Id. § 2611(11)(A). It is uncontroverted that the plaintiff's mother was hospitalized from February 5, 2017 to well past the termination of the plaintiff's employment and that the plaintiff provided care to her mother throughout this period.
A plaintiff "must also give her employer notice of her need for leave, ... and she can state an interference claim only if she gave proper notice...." White, 789 F.3d at 1195. Notice "must satisfy two criteria — timing and content," and the parameters of these criteria depend on whether the need for leave is "foreseeable" or "unforeseeable." Id.
The defendant does not challenge the content or timing of the plaintiff's notice. Instead, the defendant argues the plaintiff gave no lawful notice because she did not follow the procedures set forth in the defendant's FMLA policy. The defendant asserts no other argument in support of its motion for summary judgment as to the plaintiff's interference claim.
In the case of foreseeable leave:
29 C.F.R. § 825.302(d).
A substantively similar provision applies to unforeseeable leave:
Id. § 825.303(c).
As discussed in Part I.E, it is uncontroverted that the plaintiff repeatedly contacted her store manager (Owes) and the district manager (Morrissette) to request leave to care for her hospitalized mother. The defendant argues these communications did not suffice because the plaintiff did not also notify Human Resources of her need for leave. The defendant's FMLA policy, as expressed in its employee handbook, includes the statement that "[e]mployees should notify their supervisor and Human Resources for approval for a leave"; the policy later states that "[a]ll employees requesting FMLA leave must provide Human Resources with verbal or written notice of the need for the leave."
The defendant assumes that an employer's "usual and customary notice and procedural requirements for requesting leave" means, when the employer has an FMLA policy addressing such matters, the employer's requirements for requesting FMLA leave specifically, even if those requirements differ from, and are more onerous than, its requirements for requesting leave in general. The defendant cites a number of cases that indulge the same assumption without subjecting it to critical analysis.
As always, analysis begins with the text. The regulations speak in terms of the usual and customary requirements for requesting "leave," not those for requesting "FMLA leave." The Department of Labor ("DOL") knew the difference, as it uses the terms "FMLA leave," "FMLA-qualifying leave" and "FMLA-protected leave" at least ten times in Section 825.302. The regulation also uses the unadorned "leave" repeatedly, but the context makes clear what is intended. Subsections (a), (b) and (c) are each introduced with the phrase, "FMLA leave" or "FMLA-qualifying leave," and subsequent usages of "leave" within those subsections plainly refer to the FMLA leave mentioned initially. Subsection (f) addresses intermittent or reduced-schedule leave and so obviously addresses FMLA leave.
29 C.F.R. § 825.302(d) (emphasis added). This phraseology clearly distinguishes between the employer's policy (leave generally) and the employee's request (FMLA leave specifically).
"In interpreting statutory text, we ordinarily presume that the use of different words is purposeful and evinces an intention to convey a different meaning." Abbott v. Abbott, 560 U.S. 1, 33, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010) (Stevens, J., dissenting). The agency's use of "leave" rather than "FMLA leave" in subsection (d) must be presumed to be purposeful and to reflect its intention that the usual and customary requirements an employer may enforce in the FMLA context are those generally applicable to other forms of leave.
Under Section 825.303, "in the case of an emergency requiring leave because of a FMLA-qualifying reason, written advance notice pursuant to an employer's internal rules and procedures may not be required when FMLA leave is involved." 29 C.F.R. § 825.303(c). This language similarly reflects that the employer's "usual and customary notice and procedural requirements for requesting leave" (its internal rules and procedures) means those applying both "when FMLA leave is involved" and when other forms of leave are involved.
Other regulatory provisions further support the proposition that the relevant employer requirements are those applicable to leave in general. First, "[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...." 29 C.F.R. § 825.301(b). This principle is repeated for both foreseeable leave, id. § 825.302(c), and unforeseeable leave. Id. § 825.303(b). These provisions protect an employee from being denied FMLA leave based on the employee's lack of understanding that her need for leave is potentially FMLA-qualifying. It would seem a curious regime that would grant such protection only to effectively negate it by requiring the employee to follow an explicitly FMLA-specific notice procedure — which she would do only if she understood that her leave could be FMLA-qualifying.
Second, "the employer may take appropriate action under its internal rules and procedures for failure to follow its usual and customary notification rules, absent unusual circumstances, as long as the actions are taken in a manner that does not discriminate against employees taking FMLA leave." 29 C.F.R. § 825.304(e). It would seem difficult to discriminate in the enforcement of notification rules unless the same rules apply to both FMLA leave and non-FMLA leave.
"Because the salary-basis test is a creature of the Secretary's own regulations, his interpretation of it is, under our jurisprudence, controlling unless plainly erroneous or inconsistent with the regulation." Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) (internal quotes omitted). This is especially so when "there is no indication that [the agency's] current view is a change from prior practice or a post hoc justification adopted in response to litigation." Decker v. Northwest Environmental Defense Center, 568 U.S. 597, 614, 133 S.Ct. 1326, 185 L.Ed.2d 447 (2013). "Auer deference is warranted only when the language of the regulation is ambiguous." Christensen v. Harris County, 529 U.S. 576, 588, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000). In sum, "Auer deference provides that when a regulation is ambiguous, we defer to the promulgating agency's interpretation of that regulation, unless its construction is plainly erroneous or inconsistent with the regulation[,] [a]s long as the agency's interpretation... reflects [its] fair and considered judgment on the matter in question." United States v. Phifer, 909 F.3d 372, 382-83 (11th Cir. 2018) (internal quotes omitted).
Courts may look to a regulation's preamble to resolve ambiguity in the regulation. E.g., Fidelity Federal Savings and Loan Association v. de la Cuesta, 458 U.S. 141, 158 & n.13, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982); Watkins v. City of Montgomery, 775 F.3d 1280, 1284 (11th Cir. 2014). This only makes sense, given that the preamble evidences the agency's contemporaneous understanding of its rules. Halo v. Yale Health Plan, 819 F.3d 42, 52-53 (2nd Cir. 2016).
By its terms, the FMLA became effective on August 5, 1993. DOL issued its interim final rule in June 1993, to take effect on the Act's effective date.
The agency's final rule was published in January 1995.
This language makes clear that the notice requirements the employer may enforce are the "usual" ones applicable to "other forms of leave."
Section 825.302(g) of the 1995 regulation confirms the importance of the employer's generally applicable notice requirements. When an employee substitutes paid vacation leave for unpaid FMLA leave "and the employer's paid vacation leave plan imposes no prior notification requirements for taking such vacation leave, no advance notice may be required for the FMLA leave taken in these circumstances"; similarly, when an employee takes unpaid FMLA leave, "FMLA notice requirements would apply to a period of unpaid FMLA leave, unless the employer imposes lesser notice requirements on employees taking leave without pay."
In 2007, DOL solicited public comment regarding the Act and the effectiveness of its implementing regulations.
The following year, DOL published a notice of proposed amendments to its FMLA regulations.
The preamble to proposed Section 825.303(c) (a new provision designed to parallel Section 825.302(d) with respect to unforeseeable leave) states that, if "an employer requires that workers needing unscheduled leave call a designated call-in number," absent unusual circumstances the employer "may treat the employee's failure to comply with the call-in rule in the same manner it would normally handle such an infraction"
Finally, the preamble to proposed Section 825.304 states that "an employer can take disciplinary action for the employee's violation of the employer's internal call-in procedures, as long as such procedures and discipline are applied equally to employees taking leave for non-FMLA reasons...."
The agency issued its final rule in November 2008, effective January 2009,
Based on all these demonstrations of DOL's contemporaneous, fair and considered judgment as to the meaning of its regulations, which understanding is neither plainly erroneous nor inconsistent with the regulations themselves, the Court concludes that any ambiguity in the scope of Sections 825.302(d) and 825.303(c) is to be resolved in favor of the construction that the "usual and customary notice and procedural requirements for requesting leave" that an employer may require an employee to comply with, the violation of which permits the employer to delay or deny FMLA leave, are limited to those requirements applicable to leave generally and do not extend to more stringent requirements
Other courts have concluded or assumed that Sections 825.302(d) and 825.303(c) refer to an employer's generally applicable leave requirements. See, e.g., Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 1008 (10th Cir. 2011) ("[A]n employer generally does not violate the FMLA if it terminates an employee for failing to comply with a policy requiring notice of absences, even if the absences that the employee failed to report were protected by the FMLA"; the Court applied the employer's general attendance policy rather than its FMLA policy) (emphasis in original); Bones v. Honeywell International, Inc., 366 F.3d 869, 878 (10th Cir. 2004) ("Bones' request for FMLA leave does not shelter her from the obligation, which is the same as that of any other Honeywell employee, to comply with Honeywell's ... absence policy."); Lewis v. Holsum, Inc., 278 F.3d 706, 710 (7th Cir. 2002) ("Holsum's [generally applicable] company rules and Attendance Policy are `usual and customary' requirements."). The Court concurs and offers herein a rationale supporting this conclusion.
It is not clear whether the plaintiff's leave should be classified as foreseeable or unforeseeable. The distinction is immaterial for present purposes, because the defendant does not require an employee to contact Human Resources for any absence other than FMLA, whether scheduled or unscheduled.
Even were Sections 825.302(d) and 825.303(c) to be read as the defendant desires, its motion would still be denied. Both sections preclude the employer from delaying or denying FMLA leave when "unusual circumstances justify" the employee's failure to comply with the employer's usual and customary notice and procedural requirements for leave. The plaintiff argues that this case presents unusual circumstances justifying her failure to contact Human Resources. The Court agrees.
The following facts are uncontroverted. In late November 2016, as it was finalizing its acquisition of 190 stores, the defendant required its newly acquired employees to complete and/or sign a number of online documents. These included at least: a job application; a W-4; an I-9; payroll documents; and the 31-page employee handbook.
When completing her online paperwork, the plaintiff had the option to print out the handbook but did not do so; neither did any other employee of the plaintiff's store, to Owes' knowledge.
Between November 24, 2016, when she completed her online paperwork, and February 13, 2017, when her employment was terminated, the plaintiff did not obtain or review the employee handbook and did not know the defendant's policy regarding whom to contact if she wanted FMLA leave. She did not know whether the FMLA applied to employees of the defendant and, until approximately February 8, 2017, she was unaware of the FMLA's existence.
The defendant trained its newly acquired managers, but it did not address the FMLA policy with them.
As noted, the defendant's FMLA policy requires employees to "notify their supervisor and Human Resources for approval for a leave."
The following facts regarding the plaintiff's efforts to obtain leave are also uncontroverted. On Friday, February 3, 2017, the physician for the plaintiff's mother advised the family that the mother had a serious infection that would require hospitalization and surgery. On Saturday, February 4, 2017, the physician called the mother to advise that, because her culture from the previous day showed growth, and because her clinical examinations showed deterioration over the past few days, she would be admitted to the hospital over the
On Sunday, February 5, 2017, the plaintiff's mother was admitted to the hospital. The plaintiff ended up finding her own substitute to cover her Sunday evening shift.
The plaintiff was scheduled to work from 4:30 a.m. to 2:00 p.m. on Tuesday, February 7.
On Tuesday, February 7, the plaintiff overslept due to caring for her mother, but she came in and did her job, leaving late morning after Owes arrived to relieve her. Owes wrote up a verbal warning disciplinary notice for tardiness.
The plaintiff was scheduled to work the early shift on Wednesday, February 8.
Around 7:00 a.m. on Wednesday, Owes texted the plaintiff, "You supposed to been to work this morning today was supposed to be me off day I take that as a no call no show."
The plaintiff was not scheduled to work on Thursday the ninth or Friday the tenth, but she was scheduled to work Saturday the eleventh and Sunday the twelfth.
On the morning of Thursday the ninth, the plaintiff requested by text that Morrissette get her the necessary papers by Friday so as to avoid another no call no show. Morrissette responded that she "need[ed] a phone call." Two hours later, Morrissette texted that she had not forgotten but was "waiting on the response." Four hours later (after a reminder from the plaintiff), Morrissette texted, "Give me to after this webcast and I'll call again." About an hour later, Morrissette sent a cryptic message: "April.thomas@gpshospitality.com."
On Monday, February 13, barely a week after first requesting leave, the plaintiff's employment was terminated.
To summarize, the defendant's FMLA policy requires an employee to give notice to both her supervisor and Human Resources. The defendant also requires a manager receiving notice of a potentially FMLA-qualifying need for leave to tell the
The defendant quibbles with the characterization of the manager's responsibility as being "policy," (Doc. 55 at 15), but that is the word the defendant's witness employed, and the deposition excerpt on which the defendant relies does not retract it, at least not with respect to telling the employee to contact Human Resources.
The defendant's only other argument is that it is really the plaintiff's fault she did not contact Human Resources, on the theory that the employee handbook states she had to do so and that she was constructively aware of this requirement. The handbook, however, requires the employee to contact both her supervisor and Human Resources, and it does not require that the latter notice precede the former. (On the contrary, an instruction for the manager to tell the employee to contact Human Resources would be superfluous if the defendant required or expected that an employee's notice would always be made initially to Human Resources.) The plaintiff therefore followed the notice requirement by giving notice first to Owes and Morrissette; at that point, the burden shifted to Owes and Morrissette to direct the plaintiff to Human Resources, a burden they failed to satisfy.
The defendant has chosen a particularly bad set of facts for arguing that the plaintiff was required to contact Human Resources without management fulfilling its duty of telling her to do so. It is uncontroverted that it was impossible for employees to read the employee handbook in the amount of time allocated for them to complete all their employment paperwork, and it is more than a little unrealistic to expect an employee bombarded with a 31-page handbook on top of all her employment papers to absorb and retain, in the span of a few minutes, the mounds of minutiae contained therein even could she clap eyes on the whole. Nor did the defendant train its newly acquired employees on the FMLA policy or post notice information in the plaintiff's store, as it did for its respect policy. Even Owes, as store manager, was wholly ignorant of the defendant's FMLA policy — as, it appears, was Morrissette.
The defendant argues that its cavalier approach to informing employees of its FMLA notice requirements is immaterial because the plaintiff could have printed out the handbook when she completed her employment paperwork, could have reviewed the copy of the handbook kept in the store office, or could have found the handbook online. Perhaps, but by the same token the
"What circumstances qualify as `unusual' is not well defined in the regulations or in case law ...." Villegas v. Albertsons, LLC, 96 F.Supp.3d 624, 632 (W.D. Tex. 2015). However, included among the fact patterns in which the "unusual circumstances" qualifier has been successfully invoked are those "involv[ing] circumstances where ... the employer was at least partially to blame for the employee's failure to comply." Francisco v. Southwestern Bell Telephone Co., 2016 WL 4376610 at *2 (S.D. Tex. 2016). This is consistent with the only example of unusual circumstances offered by the regulations: that of an employee who cannot give notice at the number specified by the employer because there is no one to answer the call-in number and the voice mail box is full. 29 C.F.R. § 825.302(d).
Regardless of whether the plaintiff should have known from the handbook that she was required to contact Human Resources, from the moment she advised Owes of her need for FMLA-qualifying leave she was entitled by the defendant's own policy to be told or reminded to do so. Because the defendant violated its own rules regarding FMLA notice, and because it offers no argument or evidence that the plaintiff would have ignored this information had she been given it, the defendant is at least partially to blame for the plaintiff's failure to contact Human Resources.
Several cases have indicated that the presence of unusual circumstances is a question of fact, typically citing Millea v. Metro-North Railroad Co., 658 F.3d 154 (2nd Cir. 2011), for this proposition. The Millea Court stated only that the plaintiff's inability vel non to give personal notice (which inability would give rise to an unusual circumstance) was a question of fact. Id. at 162. The Court agrees that if the facts underlying an asserted unusual circumstance are in dispute, the jury must find those facts. However, when (as here) those facts are uncontroverted, whether they give rise to unusual circumstances precluding the defendant from enforcing its notice and procedural requirements is a question of law. For reasons stated, the Court concludes as a matter of law that this case presents unusual circumstances justifying the plaintiff's failure to notify Human Resources.
For reasons expressed in Parts I.D.1 and I.D.2, the defendant's motion for summary judgment is due to be denied. The resolution of the plaintiff's motion for summary judgment requires further consideration of the notice requirement.
The plaintiff learned on February 3 that her mother would require hospitalization,
The parties do not address whether the plaintiff requested leave that was foreseeable or unforeseeable. "[A]n employee's need for leave is foreseeable if it is based on planned medical treatment." White, 789 F.3d at 1196. The plaintiff learned of the need for medical treatment on February 3 and learned of the timing of the medical treatment on February 4. It is not clear on which side of the White line this scenario falls, but the plaintiff's notice satisfied the timing and content requirements of both foreseeable and unforeseeable leave.
If the need for leave was foreseeable, the plaintiff was required to give notice "as soon as practicable," which usually means "either the same day or the next business day." 29 C.F.R. § 825.302(a), (b). If the need for leave was unforeseeable, the plaintiff was required to give notice "as soon as practicable under the facts and circumstances of the particular case," id. § 825.303(a), and "[g]iving notice the very next day assuredly meets the timing standard of practicability." White, 789 F.3d at 1197. The plaintiff gave notice to Owes on February 4, the day after she learned that her mother would at some point require hospitalization and the very same day she learned that hospitalization was imminent. The plaintiff thereby satisfied the timing requirement of notice; the defendant asserts no argument to the contrary.
If the need for leave was foreseeable, the plaintiff was required to provide notice "sufficient to make the employer aware that [she] needs FMLA-qualifying leave, and the anticipated timing and duration of the leave." 29 C.F.R. § 825.302(c). If the need for leave was unforeseeable, the plaintiff was required to provide "sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request." Id. § 825.303(b). In both cases, "such information may include that ... the employee's family member is under the continuing care of a health care provider." Id. §§ 825.302(c), 825.303(b). The plaintiff's February 4 notice to Owes related that her mother was in a life-or-death situation requiring surgery and that the plaintiff needed a week off to be with her, which Owes understood as being to care for her hospitalized mother. This information fully covered all the bases of need, FMLA-qualifying reason, timing and duration. The defendant makes no argument to the contrary.
As noted, the Court rejects the defendant's argument that the plaintiff was required to give notice to Human Resources. Therefore, the plaintiff was required to provide notice only "to the same person(s) within the company the employee ordinarily contacts to request other forms of leave," which is "usually the employee's supervisor."
An interference claim requires the plaintiff to prove that the defendant "denied or otherwise interfered with his substantive rights under the Act." Pereda v. Brookdale Senior Living Communities, Inc., 666 F.3d 1269, 1272 (11th Cir. 2012). The substantive right involved here is the right to take FMLA leave.
As demonstrated in Parts I.A-I.D, the plaintiff had the substantive right to take FMLA leave as of February 4, 2017. Rather than grant her request, pass the request to Human Resources or tell the plaintiff to do so, Owes required the plaintiff to work on February 5, 7, 8 and 12.
The plaintiff claims that her termination on February 13 also interfered with her substantive FMLA rights. An employer interferes with substantive rights under the FMLA when it terminates an employee entitled to FMLA leave. E.g., Spakes v. Broward County Sheriff's Office, 631 F.3d 1307, 1309-10 (11th Cir. 2011) (plaintiff terminated upon requesting FMLA leave, thereby preventing her from taking such leave); Strickland, 239 F.3d at 1208 (plaintiff terminated promptly after leaving the worksite while, under his version of the facts, entitled to FMLA leave). On such a claim, the plaintiff need not "prove a causal connection between her leave request and her termination," because "the employer's motives are irrelevant"; rather, the employer must prove, as an affirmative defense, "that it would have discharged [the plaintiff] for a reason wholly unrelated to the FMLA leave." Spakes, 631 F.3d at 1310 (internal quotes omitted).
The plaintiff does not address whether she was still entitled to FMLA leave at the time she was terminated, so as to fall within the pattern of Spakes and Strickland, and the Court perceives no clear answer. Because the plaintiff's mother remained hospitalized and the plaintiff continued to care for her, the plaintiff maintained a qualifying reason for FMLA leave, but it is unclear whether her requests for leave sought time off for any period following her February 12 shift.
Termination can also constitute interference when an employer discharges an employee while out on FMLA leave, thereby interfering with the employee's substantive right to reinstatement following FMLA leave. E.g., O'Connor v. PCA Family Health Plan, Inc., 200 F.3d 1349, 1353-55 (11th Cir. 2000). Because the plaintiff was denied FMLA leave, it is not
Rather than seeking to fall within either of these common paradigms, the plaintiff proposes a new one. The plaintiff notes that her termination, according to Owes, was based on: her tardiness for her February 7 shift; her failure to show for her February 8 shift; her tardiness for her February 12 shift; and her insubordination during her February 12 shift, which stemmed from a disagreement over the plaintiff's requested FMLA leave. (Doc. 50 at 18-20). The Court agrees that the evidence probably would preclude the defendant from successfully raising as an affirmative defense that the discharge was wholly unrelated to FMLA leave, but the antecedent question is whether termination based on infractions occurring while the employee is working due to an improper denial of FMLA leave renders the termination an interference with the plaintiff's substantive rights under the FMLA. The position is not implausible, but the plaintiff offers no authority in support, and the Court declines to fill in the gaps on her behalf.
The defendant's only argument in support of its motion for summary judgment — that the plaintiff's failure to contact Human Resources disqualified her from receiving FMLA leave — fails for two reasons: (1) the FMLA and its implementing regulations do not permit an employer to deny FMLA leave based on FMLA-specific notice requirements of the employer that exceed the employer's notice requirements applicable to other forms of leave; and (2) even if heightened notice requirements unique to FMLA leave requests are enforceable, the defendant's violation of its own requirement that its managers direct employees requesting potentially FMLA-qualifying leave to contact Human Resources places on the defendant the blame for the plaintiff's failure to contact Human Resources, and these unusual circumstances justify the plaintiff's failure to comply with the defendant's FMLA-specific notice requirement. For both reasons, the defendant's motion for summary judgment is due to be denied.
Based on the law and uncontroverted facts: (1) the defendant is a covered entity; (2) the plaintiff is an eligible employee; (3) the plaintiff had a qualifying reason for taking FMLA leave; (4) the plaintiff gave timely and adequate notice to the appropriate representative of the defendant; and (5) the defendant thereafter denied the plaintiff her substantive right to FMLA leave by requiring her to work despite her request for leave. The plaintiff's motion for summary judgment as to her interference claim is therefore due to be granted with respect to liability based on denial of FMLA leave. Because legal questions remain unanswered, the plaintiff's motion for summary judgment with respect to liability based on her termination is due to be denied. Because the plaintiff did not address damages or any other remedy, her motion for summary judgment with respect to relief is due to be denied.
FMLA retaliation claims are subject to the familiar burden-shifting framework applicable to other employment retaliation claims. Brungart v. BellSouth Telecommunications, Inc., 231 F.3d 791, 798 (11th Cir. 2000). First, "a plaintiff must show that (1) she engaged in statutorily protected conduct; (2) she suffered an adverse employment action; and (3) there is a causal connection between the protected conduct and the adverse employment action." Id. If the plaintiff succeeds, "the burden shifts to the employer to articulate a non[retaliatory] reason for the adverse
The defendant first argues that the plaintiff's failure to contact Human Resources to request leave precludes her from showing that she engaged in statutorily protected activity. (Doc. 51 at 20-21). Because, as discussed in Parts I.D.1 and I.D.2, the plaintiff was not required to contact Human Resources in order to satisfy all applicable notice requirements, her failure to do so does not prevent her from establishing the first element of her prima facie case.
As to the remaining elements of a prima facie case, termination is unquestionably an adverse employment action, and the close temporal proximity between the plaintiff's termination and her protected conduct — of which both Owes and Morrissette were aware — easily satisfies the causal element.
The defendant identifies its legitimate, nonretaliatory reason for terminating the plaintiff as follows: that, on February 12, the plaintiff refused to work her assigned schedule, called Owes a bitch, and told her to come get her store, (Doc. 51 at 21-22), conduct Owes described as insubordination.
First, the exceptionally close temporal proximity between the plaintiff's protected activity and her termination remains equally powerful evidence at the pretext stage of analysis. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) ("[T]he trier of fact may still consider the evidence establishing the plaintiff's prima facie case and inferences properly drawn therefrom ... on the issue of whether the defendant's explanation is pretextual....") (internal quotes omitted); Hurlbert v. St. Mary's Health Care System, Inc., 439 F.3d 1286, 1298 (11th Cir. 2006) ("The close temporal proximity between Hurlbert's request for leave and his termination — no more than two weeks, under the broadest reading of the facts — is evidence of pretext, though probably insufficient to establish pretext by itself.").
Second, Owes admits that the plaintiff had called her "bitch" on one or two occasions in the recent past without Owes disciplining or even correcting the plaintiff for doing so; on the contrary, the two continued to be on friendly terms and to have a good working relationship thereafter.
In a similar vein is Owes' inconsistent treatment of the plaintiff regarding tardiness and absences. Owes concedes that, prior to her final week of employment, the plaintiff had been late and had been a no call no show, yet Owes had never disciplined her.
The defendant does not now assert that the plaintiff's two episodes of lateness and one no call no show were reasons for her termination. This is a changed position, as Owes testified that the plaintiff was terminated for being late and for being a no call no show.
Most damaging to the defendant is Owes' admission that she was frustrated and angry because the plaintiff's need for leave was forcing Owes to work extra shifts and longer hours. The plaintiff meanwhile remained unsatisfied, because she was still having to work some shifts, and this situation created the tension between the two.
The plaintiff's version of the events of February 12 only strengthens the retaliatory inference. When the plaintiff showed up for her shift on February 12, she saw the schedule Owes had prepared for the next week, which had the plaintiff working overnight shifts.
The foregoing is not an exhaustive catalogue of evidence that could support a jury determination of pretext, but it is more than sufficient to demonstrate that a reasonable jury could find the defendant's articulated non-retaliatory reason a pretext for unlawful retaliation.
The defendant ignores this evidence and the reasonable inferences therefrom, instead insisting that "[i]ntervening acts of misconduct ... can break the causal chain" between protected activity and adverse employment action. (Doc. 51 at 21 (citing Hankins v. AirTran Airways, Inc., 237 Fed.Appx. 513 (11th Cir. 2007)). To the extent the defendant suggests that intervening acts of misconduct can trump close temporal proximity for purposes of establishing a prima facie case, the Court has already rejected that aspect of Hankins.
For the reasons set forth above, the defendant's motion for summary judgment is
DONE and ORDERED this 3
The defendant also stresses that the number for Human Resources was one of many listed on the communication board in the store office. (Doc. 55 at 13-14; Doc. 52-2 at 14). The simple posting of a telephone number, however, imparts no information about when it is to be used and would not, in any event, relieve Owes and Morrissette of their duty to advise the plaintiff to contact Human Resources.
