LOUISE W. FLANAGAN, District Judge.
This matter is before the court on defendants' motion for summary judgment (DE 48), brought pursuant to Federal Rule of Civil Procedure 56. The motion has been fully briefed, and the issues raised are ripe for ruling. For reasons noted, defendants' motion for summary judgment is granted in part and denied in part.
Plaintiff commenced this action by filing complaint on June 8, 2016, seeking judgment against defendants Town of Wake Forest ("Town"), Eric Keravuori ("Keravuori"), Mitzi Franklin ("Franklin"), Virginia Jones ("Jones"), Mark Williams ("Williams"), and Roe O'Donnell ("O'Donnell) (collectively, "defendants") asserting violations of the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601,
On October 25, 2016, defendants filed motion to consolidate cases, seeking to consolidate the present case with
Following Rule 16 status conference, the court granted in part and denied in part defendants' motion to consolidate, and the cases were consolidated for the limited purpose of "promoting efficiencies in discovery procedures." (DE 35 at 2). Following grant of extension of deadline for completing discovery, the court held another Rule 16 status conference, setting deadline for all dispositive motions in both cases for December 30, 2017, denying defendants' request for continued consolidation, and separating the cases for all purposes going forward including dispositive motions and trial, without prejudice to later renewed motion for consolidation, if warranted. (DE 47).
On December 30, 2017, defendants filed the instant motion for summary judgment. In support, defendants rely upon statement of material facts and the following: excerpts from the depositions of plaintiff and defendants Franklin, Jones, Keravuori, and O'Donnell; affidavits from defendants Franklin, Jones, Keravuori, and Williams as well as affidavits from Larry Rochelle, Mickey Rochelle, and Mike Barton, all employees of defendant Town; excerpts from defendants' document production, including termination document regarding plaintiff, defendants' investigative report into the instant matter, personnel policy, ethics presentation, as well as plaintiff's time sheets; and emails from plaintiff to defendant Keravuori requesting time off.
Plaintiff additionally relies upon statement of material facts and the following: personal affidavit, work reviews and evaluations, defendants' family and medical leave procedures presentation, FMLA request form, FMLA certification of health care provider for family member's serious health condition, defendants' action plan for the engineering department, and blank FMLA notice of eligibility and rights and responsibilities.
Except as otherwise provided below, the undisputed facts may be summarized as follows.
Plaintiff was employed by defendant Town as a construction inspector from December 13, 2005 until his termination on October 31, 2014. (DE 49 ¶ 1; DE 57 ¶ 1). Plaintiff was a member of the engineering department and was supervised by the director of engineering, defendant Keravuori. (DE 49 ¶ 2; DE 57 ¶ 2).
Plaintiff was provided with a copy of defendant Town's personnel policy, including all relevant updates, which included an at-will employment policy stating, "[t]he employment relationship between the Town and the employee is terminable at the will of either party at any time," and any employee who violates any of the provisions of the policy "shall be subject to appropriate disciplinary action. . . ." (DE 49 ¶ 3; DE 57 ¶ 3).
Defendant Town's sick leave policy states, "Sick leave with pay is not a right, which an employee may demand, but a privilege granted for the benefit of an employee when sick," and sick leave may be used "when an employee must care for a member of his or her `immediate family.'" (DE 49 ¶ 4; DE 57 ¶ 4). The policy also provides that vacation "shall be used for rest and relaxation and may be used for medical purposes." (DE 49 ¶ 4; DE 57 ¶ 4). The policy states, "[s]ick leave is not to be abused," that "[u]sing sick leave under false pretenses is a serious violation of Town policy and would be grounds for dismissal," and that "[c]laiming sick leave under false pretenses will result in disciplinary action up to and including dismissal." (DE 49 ¶ 4; DE 57 ¶ 4).
Defendant Town's personnel policy also includes a section concerning employees' rights pursuant to the FMLA, and defendant Town has provided training to employees regarding their rights and responsibilities under the FMLA. (DE 49 ¶ 5; DE 57 ¶ 5). Notice of employees' rights and responsibilities is posted on the bulletin board on the first floor of Town Hall. (DE 49 ¶ 6; DE 57 ¶ 6). Defendant Town's policy requires that employees provide 30 days notice if the need for leave is foreseeable and states that failure to provide notice of the need for leave may result in denial of leave. (DE 49 ¶ 6; DE 57 ¶ 6). Additionally, employees are required to exhaust sick and vacation leave prior to use of FMLA leave. (
Defendant Town currently has approximately 235 employees. (DE 49 ¶ 6; DE 57 ¶ 6). Approximately 104 current employees have taken FMLA leave on at least one occasion. (DE 49 ¶ 6; DE 57 ¶ 6).
Defendant Jones was hired as defendant Town's director of human resources on March 19, 2013, and thereafter held a mandatory one hour Ethics Training, which every employee was required to attend and which plaintiff attended, based on her belief in a need "to more consistently enforce the rules and make better personnel decisions." (DE 49 ¶¶ 7-13; DE 57 ¶¶ 7-13). Defendant Jones specifically addressed sick leave in the training and stated that time for sick leave may not be used like vacation leave and that it can only be used in the event of illness. (DE 49 ¶12; DE 57 ¶12).
Plaintiff took FMLA leave for the birth of his oldest son in 2012. (DE 49 ¶14; DE 57 ¶14). Plaintiff was supervised by defendant Keravuori at that time, and plaintiff had no issue with taking FMLA leave for the birth of his first son. (DE 49 ¶14; DE 57 ¶14).
Plaintiff's second son was born on August 18, 2014 via caesarian section, and plaintiff applied for and was granted FMLA leave with regard to the birth of his second son. (DE 49 ¶15; DE 57 ¶15). Plaintiff provided defendant Town all required paperwork including a certification of health care provider for family member's serious health condition that indicated plaintiff's wife would be incapacitated from August 18, 2014 through November 11, 2014. (DE 56-12 at 2-5).
Plaintiff told Mr. Keravuori that he would be taking FMLA leave on Fridays; however, Plaintiff's timesheets do not reflect this pattern and instead show plaintiff used the following sick days off after the birth of his child:
(DE 49 ¶16; DE 57 ¶16).
On October 7, plaintiff sent an e-mail to defendant Keravuori stating that he would be out on Thursday and Friday, October 9 and October 10, but did not provide a reason for his absence in the email. (DE 49 ¶17; DE 57 ¶17). Plaintiff also sent an e-mail to defendant Keravuori on October 20, 2014, letting him know he would be out of the office on October 21, 2014, but did not provide a reason for his absence in the email. (DE 49 ¶19; DE 57 ¶19). Plaintiff asserts, however, that he provided verbal notice to defendant Keravuori, specifically informing him that he would be providing care for his wife and newborn on the days in question and that the family would be going to the beach on October 9 and October 10 and the state fair on October 21, 2014, all of which defendant Keravuori approved. (DE 57 ¶¶18-19; DE 56-16). Plaintiff substituted paid sick leave for each FMLA-related absence identified above and noted "FMLA" on each of his timesheets. (
On October 21, 2014, Mickey Rochelle, facilities director, requested a meeting with defendant Franklin, senior human resources consultant; at the meeting, Mickey Rochelle told Franklin that he felt compelled to speak up regarding his concerns due to the ethics training he had received. (DE 49 ¶ 20; DE 57 ¶20). Defendant Franklin, in her "summary of allegations reported on October 22, 2014," states that Mickey Rochelle informed her plaintiff used sick time for the time he was at the beach and planned to use sick time for his upcoming visit to the North Carolina State Fair on October 21, 2104, among other allegations. (DE 50-13 at 4; DE 56-6 at 3).
Defendant Franklin reported this matter to her supervisor, Virginia Jones, human resources director, who asked Franklin to type a summary of Rochelle's statement to her and to begin an investigation into the allegations. (DE 49 ¶24; DE 57 ¶24). Defendant Jones shared this with town manager, defendant Williams, who asked that defendant Jones keep him updated on the investigation because concerns had been expressed in the past regarding the attendance of plaintiff. (DE 49 ¶24; DE 57 ¶24).
Defendant Franklin checked the time records and learned that plaintiff had taken sick leave on the dates he was away from work at the beach. (DE 49 ¶27; DE 57 ¶27). On October 28, 2014, plaintiff completed his timesheet and turned them in. (DE 49 ¶28; DE 57 ¶28). Defendant Keravuori, who was the supervisor of plaintiff, was not informed of the issue until after the time sheets were turned in. (DE 49 ¶28; DE 57 ¶28).
On October 30, 2014, defendant Franklin interviewed plaintiff about the allegations that he had misused time to attend the State Fair. (DE 49 ¶29; DE 57 ¶29). Plaintiff admitted that he had attended the State Fair and had used sick time and asked if he could change his sick time to vacation time. (DE 49 ¶29; DE 57 ¶29).
Defendant Jones and Franklin argue they believed plaintiff intentionally misused sick leave and recommended termination of plaintiff. (DE 49 ¶¶ 30-32; DE 57 ¶¶ 30-32).
Summary judgment is appropriate where "the movant shows that 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). On cross-motions for summary judgment, the court "consider[s] each motion separately on its own merits to determine whether [any] of the parties deserves judgment as a matter of law."
Once the moving party has met its burden, the non-moving party must then "come forward with specific facts showing that there is a genuine issue for trial."
"[A]t the summary judgment stage the [court's] function is not [itself] to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial."
Nevertheless, "permissible inferences must still be within the range of reasonable probability, . . . and it is the duty of the court to withdraw the case from the [factfinder] when the necessary inference is so tenuous that it rests merely upon speculation and conjecture."
Under the FMLA, "an eligible employee" is "entitled to a total of 12 workweeks of leave during any 12-month period" for family- and health-related reasons, such as "birth of a son or daughter of the employee and in order to care for such son or daughter" or "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). Leave for the former reason can be taken intermittently if the employee and employer agree; leave for the latter reason can be taken intermittently when medically necessary.
The FMLA makes it "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under [the FMLA]." 29 U.S.C. § 2615(a)(1). Claims for violations of the prescriptive rights set forth in § 2612 are "known as `interference' or `entitlement' claims."
Additionally, the FMLA "contains
Here, plaintiff brings claims for both retaliation and interference. The court first will address the sufficiency of notice provided by plaintiff to defendants regarding his leave taken on October 9, 10, and 21, 2014, and then address plaintiff's retaliation and interference claims.
The FMLA requires an employee 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). The FMLA distinguishes between notice needed when an employee seeks leave for the first time for a FMLA-qualifying reason and when, as here, an employee seeks leave due to a FMLA-qualifying reason for which the employer has previously provided FMLA-protected leave:
29 C.F.R. § 825.302(c).
The FMLA makes clear that it is incumbent upon the employer to seek out the necessary information regarding FMLA leave, and as stated by the Fourth Circuit, "[r]egulations promulgated by the Department of Labor `repeatedly emphasize that it is the employer's responsibility to determine the applicability of the FMLA and to consider requested leave as FMLA leave.'"
It is undisputed that plaintiff informed defendant Keravuori that his second son was born on August 18, 2014 via caesarian section, and plaintiff applied for and was granted intermittent FMLA leave with regard to this birth. (DE 49 ¶15; DE 57 ¶15). Defendants argue, however, that because plaintiff did not specify that the leave taken on October 9, 10, and 21 was FMLA leave, defendants had insufficient notice.
Plaintiff's notice to defendants was sufficient. Taking the facts in light most favorable to plaintiff, plaintiff emailed defendant Keravuori on October 7, 2014, and informed him that he would be absent from work on Thursday, October 9, and Friday, October 10, 2014. (DE 50-11 at 3; DE 56-17 at 29; DE 56-16 at 2; DE 56-20 at 25). Prior to emailing defendant Keravuori, plaintiff also spoke to him in person and told him that he was taking FMLA leave on October 9-10, 2014, and that he would be going to the beach. (DE 56-16 at 2; DE 56-20 at 25). Defendant Keravuori approved plaintiff's request to be absent from work on October 9-10, 2014. (DE 56-17 at 29; DE 56-16 at 2; DE 56-20 at 25; DE 56-19 at 61, 65). Plaintiff also spoke to Keravuori to request time off to go to the fair on October 21, 2014. (DE 56-16 at 2; DE 56-20 at 25). Regarding leave both for time to go to the beach and time to go to the fair, plaintiff informed defendant Keravuori that he would be taking care of his wife and child. (DE 56-16 at 2). Keravuori approved plaintiff's request for time off. (DE 56-16 at 2; DE 56-20 at 25). Plaintiff also emailed Keravuori on October 20, 2014, to confirm that he would be absent from work on October 21, 2014. (DE 56-16 at 2; DE 50-11 at 1-2).
Cases cited by defendant are inapposite where employees in those cases failed to initially and sufficiently notify their respective employers of FMLA-protected leave. Here, plaintiff applied for and was granted FMLA leave, and defendants do not provide, and nor is the court aware, of case law, statute, or regulation requiring additional notice to an employer beyond that which was provided here. When taking facts in light most favorable to plaintiff, the court concludes that a jury could reasonably find that plaintiff provided sufficient notice of taking FMLA leave on the days in question.
To succeed on a claim of retaliation, a plaintiff must show "that he engaged in protected activity, that the employer took adverse action against him, and that the adverse action was causally connected to the plaintiff's protected activity."
"Intent can be established either by direct evidence of retaliation or through the familiar burden shifting framework articulated in
Plaintiff was approved FMLA leave for two reasons, for the "birth of a son or daughter of the employee and in order to care for such son or daughter"
According to plaintiff, before, during, and after plaintiff's trips to the beach and state fair, plaintiff
(DE 56 at 23 (citing DE 56-16)).
Defendants argue that plaintiff has failed to put forth a prima facie case of retaliation because plaintiff did not engage in a protected activity as defined by the FMLA where plaintiff was "granted leave due to the birth of his child and for the recovery of his wife from childbirth" but "seeks FMLA protection for his trips to the beach and N.C. State fair after the birth of his child." (DE 51 at 14). In essence, defendants argue there is a geographical limitation to the activities covered by the FMLA, particularly regarding care provided to a spouse who has a serious health condition. (
The court finds no such limitation in the text of applicable regulations nor in binding precedent. First as stated above, the FMLA grants eligible employees leave "to care for the spouse. . . if such spouse . . . has a serious health condition." 29 U.S.C. § 2612(a)(1). The applicable regulations define "care for" to "encompass[] both physical and psychological care," and
29 C.F.R. § 825.124 (emphasis added).
The Fourth Circuit has not addressed this specific issue, and other circuits are not in agreement as to whether care provided to a family member under the FMLA allows for travel not connected to medical treatment.
The court need not resolve this issue because unlike cases cited above, in this case, plaintiff's FMLA leave was
Accordingly, the court finds a jury could reasonably infer that plaintiff engaged in protected activities under the FMLA, thus establishing a prima facie case of retaliation.
The burden now shifts to defendants to provide "some legitimate, nondiscriminatory reason" for the adverse employment action.
"The FMLA does not prevent an employer from terminating an employee for poor performance, misconduct, or insubordinate behavior."
Courts utilize the "honest belief rule" to evaluate employers' responses to claims of employment discrimination, under which "[an] employee must present evidence reasonably calling into question the honesty of his employer's belief. . . ."
To find a genuine dispute of material fact exists regarding whether an apparently legitimate, non-discriminatory reason actually is pretext for discrimination, "it is not enough to
Employers are entitled some discretion in making employment decisions.
Here, defendants have carried their burden by offering a legitimate, nondiscriminatory reason for plaintiff's termination: abuse of leave time under the Town's sick leave policy. It is undisputed that defendant Town's sick leave policy states, "[s]ick leave with pay is not a right, which an employee may demand, but a privilege granted for the benefit of an employee when sick," and sick leave may be used "when an employee
However, plaintiff satisfies his burden that this nondiscriminatory explanation for his termination, that he abused leave time, is pretext for FMLA retaliation.
Taking facts in light most favorable to plaintiff, prior to the birth of his second child, plaintiff met with defendant Franklin seeking approval to take FMLA-leave. (DE 56-16 at 1). Plaintiff and defendants agree that the forms defendant Franklin instructed plaintiff to fill out directed plaintiff to use all sick leave and vacation leave prior to use of FMLA leave and that defendant Franklin told plaintiff "to use sick leave for any absences related to the need to care for my wife and child." (
Although somewhat unclear, defendant Franklin also testified as follows:
(DE 56-17 at 23).
Thereafter, plaintiff did as felt he was instructed and substituted paid sick leave for each FMLA-related absences taken and noted "FMLA" on each of his time sheets, each of which was approved by supervisor defendant Keravuori. (
(DE 56-16 at 2).
Notwithstanding, defendant Franklin launched an investigation of plaintiff after she was informed that plaintiff had used or planned to use sick leave for the days in question, which eventually led to her recommending plaintiff be terminated, a recommendation defendant Keravuori approved. (
Based on these facts, taken in light most favorable to plaintiff, it is reasonable to infer that plaintiff sought and received approval for FMLA leave from defendants Franklin and Keravuori, followed all instructions given, and was thereafter terminated based on decisions made, in part, by these same defendants. Such unexplained inconsistency is sufficient evidence to allow a reasonable factfinder to determine defendants' rationale for terminating plaintiff is "unworthy of credence."
This case stands in contrast to the companion case brought by plaintiff's former coworker, the
Accordingly, defendants' motion for summary judgment as to plaintiff's claim of FMLA retaliation is denied.
To state a claim of interference with a prescriptive right under the FMLA, a covered employee must establish "(1) he is entitled to an FMLA benefit; (2) his employer interfered with the provision of that benefit; and (3) that interference caused harm."
Additionally, "[a]n FMLA notice violation can be an actionable interference claim for which an employee may recover, so long as he makes a showing of prejudice flowing from the violation."
Regarding notice requirements, the FMLA requires that employers provide an individual, written notice to affected employees that an absence qualifies under the FMLA.
Here, it is reasonable to infer from the evidence viewed in the light most favorable to plaintiff that defendants interfered with plaintiff's FMLA rights by failing to provide the proper notification to plaintiff.
Plaintiff applied for and was granted FMLA leave with regard to the birth of his second son. Once an employee provides an employer with sufficient notice of the need for FMLA leave, an employer is required to provide notice of rights and responsibility. 29 C.F.R. § 825.300. As relevant to the present dispute, the following information must be provided to the employee by the employer:
Turning to the prototype notice of rights and responsibilities referenced in 29 C.F.R. § 825.300(c)(6), the prototype notice includes the following with blanks to be either be checked if they apply or left blank if they do not apply:
United States Department of Labor, Wage and Hour Division, WH-381: FMLA Notice of Eligibility and Rights & Responsibilities, rev. Feb. 2013, https://www.dol.gov/whd/forms/index.htm [https://perma.cc/7XZN-UY4F];
Additionally, an employer is required to provide a designation notice:
Turning to the prototype designation noticed referenced in 29 C.F.R. § 825.300(d)(4), the prototype notice includes the following to be checked if applicable: "___ We are requiring you to substitute or use paid leave during your FMLA leave." United States Department of Labor, Wage and Hour Division, WH-382: FMLA Designation Notice, rev. Jan. 2009, https://www.dol.gov/whd/forms/index.htm [https://perma.cc/7XZN-UY4F].
As stated by plaintiff, "Town failed to send Meyer a notice of rights and responsibilities notice. Defendants can point to no evidence in record that Meyer received any other written notice following the birth of his second child setting forth the Town's conditions related to the substitution of paid leave." (DE 56 at 19).
Although plaintiff did not receive proper notice, plaintiff's interference claim fails because he cannot prove prejudice stemming from lack of notice.
Had defendants provided with the proper notice, for example providing plaintiff with form WH-381, FMLA Notice of Eligibility and Rights & Responsibilities, cited above, and checking the boxes for both sick and vacation leave, this would have been consistent with defendants' personnel policy. (
Plaintiff disagrees, arguing that "it is reasonable to infer that (1) had the Town provided Meyer with a rights and responsibilities notice; and (2) had the notice set forth the Town's asserted requirement that paid sick leave could only be substituted for unpaid FMLA leave if consistent with the Town's sick leave policy; then (3) Meyer would have structured his leave differently by taking vacation (as he did for the golf tournament) instead of sick leave on October 9-10, 2014 and October 21, 2014." (DE 56 at 20);
Plaintiff overestimates what information defendants were required to supply to plaintiff in their FMLA notice. As stated above, form WH-381 provides an example of the information necessary to supply to plaintiff and in that form, an employer may indicate, consistent with defendants' personnel policy here, that plaintiff must exhaust all paid leave, either vacation time, sick time, or both, prior to use of unpaid leave. Related, plaintiff conflates notice regarding his FMLA rights, which defendants were required to provide, with notice regarding defendants' sick-leave policy, which the FMLA does not mandate defendants' provide.
In sum, defendants' motion for summary judgment as to plaintiff's interference claims is granted.
Defendants next argue that individual defendants are entitled to be dismissed from the present case because the FMLA does not provide a cause of action against individual employees and individual defendants do not meet the definition of "employer" as defined by the FMLA. (DE 51 at 23).
"[W]hether the FMLA imposes liability on employee supervisors in their individual capacities is an open question in this circuit."
Government officials are entitled to qualified immunity from civil damages so long as "their
Based on the above precedent, the court rejects defendants' argument that individual defendants are entitled to qualified immunity because it is "far from clearly established that public employees can be sued in their individual capacities." (DE 51 at 23). The court's inquiry concerns plaintiff's statutory rights under the FMLA not defendants' susceptibility to suit.
However, defendants additionally assert "there is no clearly established authority which would have put Defendants on notice that attending the State Fair or traveling to the beach are protected activities under the FMLA." (DE 51 at 24; DE 61 at 9).
The Supreme Court's recent direction in
Here, statute, regulations, and case law make clear, on a general level, plaintiff's statutory rights.
However, this is not an obvious case, and plaintiff fails to identify a case or cases, and the court is not aware of any, that would have provided notice to these defendants in 2014 that their alleged misconduct was a violation of the FMLA. Therefore, the court cannot hold that defendants' alleged conduct, retaliation against plaintiff for exercising FMLA right to take his family to the beach or fair, violated "clearly established statutory or constitutional rights of which a reasonable person would have known."
For the foregoing reasons, court DENIES IN PART AND GRANTS IN PART defendants' motion for summary judgment. (DE 48). Plaintiff's claim for retaliation under the FMLA is allowed to proceed against defendant Town. All other defendants are DISMISSED. The parties are DIRECTED to confer and file within
SO ORDERED.
29 U.S.C. § 2611(4) (emphasis added).
