MEMORANDUM OPINION

T. S. Ellis, III, United States District Judge.

Plaintiff Laura Ruddy has sued her former employer Defendant Bluestream Professional Services, LLC ("Bluestream") and Defendant KGP Telecommunications, Inc.1 (collectively, "defendants") for sex and pregnancy discrimination under Title VII of the Civil Rights Act of 1964 ("Title VII") and the Pregnancy Discrimination Act ("PDA"),2 as well as retaliation under Title VII, the PDA, and the Family Medical Leave Act of 1993 ("FMLA"). Defendants filed a motion for summary judgment on each count of plaintiff's complaint. Defendants' motion has been fully briefed and argued orally, and thus is ripe for disposition.

I.

The entry of summary judgment is appropriate only where there are no genuine disputes of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Thus, it is important to identify the record facts as to which no genuine dispute exists. In this regard, Local Rule 56(B) directs a movant for summary judgment to include in its submission a separately captioned section listing in numbered-paragraph form all material facts as to which the movant contends no genuine dispute exists; the nonmovant must then respond to each paragraph citing admissible record evidence to establish a genuine dispute of material fact. In this case, both parties have substantially complied with the Local Rule. Accordingly, the facts recited herein are derived from defendants' list of material facts and plaintiff's response to those facts, noting where plaintiff disputes facts and whether that dispute is genuine and material.

II.

Defendants have moved for summary judgment on all of plaintiff's claims: (i) Count I: termination of plaintiff's employment under Title VII, as amended by the PDA; (ii) Count II: retaliation under Title VII, as amended by the PDA; and (iii) Count III: FMLA retaliation. In this respect, the standard for summary judgment is too well-settled to require extensive discussion here. Simply put, summary judgment is appropriate when there is "no genuine issue as to any material fact" and based on those undisputed facts the moving party "is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To serve as a bar to summary judgment, facts must be "material," which means that the disputed fact "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Importantly, at the summary judgment stage, courts must "view the evidence in the light most favorable to ... the non-movant." Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002).

III.

Plaintiff bases Count I on her termination from two positions, namely as recruiting manager for the Mobility Services unit and as a project coordinator on the Airscale project. Defendant argues that plaintiff has failed to establish that she was treated differently from any non-pregnant person and that there is no inference of discrimination to be drawn from plaintiff's termination. Each of the positions from which plaintiff claims she was terminated is addressed separately below.

A. Recruiting Manager

Defendant moves for summary judgment on Count I on the ground that plaintiff cannot establish a prima facie case of discrimination based on either sex or pregnancy. Plaintiff offers no direct evidence of pregnancy discrimination.22 Her claims are therefore analyzed under the under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Young v. United Parcel Service, Inc., 575 U.S. 206, 228, 135 S.Ct. 1338, 191 L.Ed.2d 279 (2015) (holding that claims under the PDA follow the McDonnell Douglas framework). To establish a prima facie case of discrimination, plaintiff must show that: (i) she is a member of a protected class; (ii) she was qualified for her job and her job performance was satisfactory; (iii) she suffered an adverse employment action; and (iv) the position remained open or was filled by a similarly qualified applicant outside of the protected class. See Miles v. Dell, Inc., 429 F.3d 480, 485 (4th Cir. 2005) (citations omitted).

Here, the parties focus exclusively on the fourth prong of the prima facie test. Plaintiff argues that she satisfies the fourth prong of the prima facie case because her duties were shifted to other employees or similar positions. Defendant argues that plaintiff cannot show that she was treated worse than any male or non-pregnant female employee. Defendant is correct. Because plaintiff cannot show that her recruiting manager position remained open or that it was filled by a person outside of the protected class, plaintiff cannot establish a genuine issue of material fact as to the fourth prong of the prima facie case. Moreover, plaintiff cannot demonstrate that an inference of discrimination should be drawn because the person who decided to terminate plaintiff from her recruiting manager position, Della Valle, was not aware that plaintiff was pregnant.

Plaintiff first argues that, although her recruiting manager position was eliminated, she was replaced by persons outside her protected class because her job duties were distributed to other employees, namely Taylor. Courts, including the Fourth Circuit, have uniformly held that the redistribution of work to other employees, after eliminating a position, does not constitute replacement sufficient to satisfy the fourth prong of the McDonnell-Douglas test.23 Here, the undisputed facts establish that plaintiff was only dedicating ten percent of her time to the job that she was hired to do, namely recruiting manager, and that her position was eliminated because of budgetary concerns in the Mobility Services unit. It is therefore sensible for Bluestream to redistribute those functions to an existing employee to realize the cost savings of eliminating the recruiting manager position while still ensuring that the necessary work is performed.

Plaintiff also contends that she was replaced because her duties were shifted to other newly created positions. In this regard, plaintiff has failed to submit evidence that permits an analysis and comparison of the positions and persons whom she alleges replaced her. To support her argument plaintiff cited to deposition testimony which was not included in her opposition to defendants' statement of material undisputed facts. Plaintiff argues that her duties were shifted to two other positions: (i) an unspecified position mentioned by Della Valle in an email; and (ii) a KGPCo recruiting position occupied by Rebecca Dodd. See Opp'n at 11. Plaintiff has come forward with no evidence regarding the positions to which she refers, the persons occupying the positions, the job duties involved, or the timing of when the positions were filled.

With respect to the first position, plaintiff relies on Della Valle's email that "we aren't replacing [plaintiff] but upgrading due to needs of business" and Taylor's testimony that there would "possibly" be some crossover between plaintiff's eliminated position and the unspecified new position which is now occupied by Celina Steidl. January 18, 2018 Email Chain; Taylor Depo. Tr. at 21:3-7. Plaintiff's deposition is similarly vague. At her deposition plaintiff testified as follows:

Ruddy Depo. Tr. at 183:1-22. Moreover, plaintiff testified that she is "not sure" whether Steidl or Dodd were pregnant at any time during their employment with defendants or whether they worked on the same projects that plaintiff did. See id. at 184:16-23.

Plaintiff has failed to establish that either Steidl or Dodd were outside of her protected class. There is no record evidence that Steidl and Dodd, both female, were outside of plaintiff's protected class because plaintiff has submitted no evidence regarding whether they were pregnant. As the Fourth Circuit has sensibly recognized, "a nonmoving party cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another." Othentec Ltd. v. Phelan, 526 F.3d 135, 140 (4th Cir. 2008). Here, plaintiff seeks to do just that. Based on her own limited knowledge, drawn merely from a review of public Linkedln pages, plaintiff seeks to draw the inference that: (i) Dodd and Steidl were not pregnant; (ii) were hired after plaintiff's position was eliminated; (iii) were hired for the Mobility Services unit; and (iv) were hired to perform the same sort of recruiting functions that plaintiff performed. As the Fourth Circuit has noted, where a plaintiff attempts to rely on comparator evidence to establish circumstances giving rise to an inference of unlawful discrimination, there must be "enough common features between the individuals to allow [for] a meaningful comparison." Haywood v. Locke, 387 F.App'x 355, 360 (4th Cir. 2010) (quoting Humphries v. CBOCS West, Inc., 474 F.3d 387, 405 (7th Cir. 2007)).25 It is impossible to determine whether Steidl or Dodd are fair comparators or replacements because only speculation can fill the gaps as to their characteristics, positions, and responsibilities and as to whether they were pregnant. Moreover, plaintiff herself testified that no one at Bluestream was treated more favorably than her. See Ruddy Depo. Tr. at 215:13-16.26 Accordingly, plaintiff has not established a genuine issue of material fact by relying on how similarly situated persons outside of her protected class were treated. Thus, her discrimination claim based on her termination from the recruiting manager position fails.

Finally, defendants argue that there is no reason to draw an inference of discrimination from plaintiff's termination because the undisputed facts establish that Della Valle made the decision both to hire and to terminate plaintiff and because the undisputed facts establish that Della Valle did not know plaintiff was pregnant with her second child. The Fourth Circuit has held that there is an inference of non-discrimination where the same person hired and fired a person within a protected class. See Proud v. Stone, 945 F.2d 796, 798 (4th Cir. 1991). Here, however, while Della Valle knew plaintiff was a woman when he hired her she was not pregnant at that time and his role in hiring and firing plaintiff does not speak to any animus Della Valle may feel towards pregnancy or pregnant women. On the other hand, any inference of discrimination cannot be established where, as here, the undisputed factual record demonstrates that the decision-maker, Della Valle, did not know that plaintiff was pregnant.27 Accordingly, because Della Valle, the decision-maker with respect to the recruiting manager position, did not know that plaintiff was pregnant, plaintiff cannot establish an inference of discrimination with respect to her termination from that position.

In sum, plaintiff fails to establish the fourth prong of her prima facie case because she cannot show that she was replaced by a person outside her protected class. Additionally, no inference of discrimination can be drawn because Della Valle, who terminated plaintiff as recruiting manager, had no knowledge that plaintiff was pregnant. Accordingly, defendants' motion for summary judgment must be granted with respect to plaintiff's claim of pregnancy discrimination in her termination from the recruiting manager position.

B. Project Coordinator

Plaintiff argues that her discrimination claim also includes her termination from the project coordinator role on the Airscale project and that Kucanovic (a man) and Colvin (a woman) replaced her in that role. Defendant argues that plaintiff never held the project coordinator position because she remained on the Mobility Services unit expense budget and retained her managing recruiter salary. Although the summary judgment record reflects that plaintiff was not formally transferred to a project coordinator position, there is a question of fact regarding whether defendants had effectively or constructively transferred plaintiff to that project coordinator role such that her removal from that role constitutes a separate termination that must be analyzed under Title VII. A reasonable jury could find that plaintiff had been transferred to a project coordinator role, because her supervisor changed from Della Valle to Taylor and because ninety percent of her time was dedicated to the Airscale project. Moreover, triable issues of fact exist regarding whether plaintiff suffered discrimination when defendants hired Kucanovic for a permanent project coordinator role instead of formally placing plaintiff in that role after the elimination of her recruiting manager position.

First, there is a question of fact regarding whether plaintiff was transferred to the project coordinator role such that it constituted a second position from which she was terminated. Although the undisputed facts show that plaintiff remained on the Mobility Services unit expenses and retained her recruiting manager salary, it is also undisputed that her supervisor changed, and that ninety percent of her work was in the project coordinator role. Moreover, it is undisputed that plaintiff understood that she had been transferred to the corporate budget. See Ruddy Depo. Tr. at 186:2-4. There is thus a question whether together these facts establish that plaintiff was transferred or constructively transferred to the project coordinator position. This question is material because if plaintiff was in the project coordinator role, then her termination would be analyzed under the McDonnell-Douglas burden framework, but if she was not, then defendants had no obligation to transfer her to the project coordinator position upon her termination.28

There is no dispute on this record that plaintiff's claim of pregnancy discrimination based on her removal from the project coordinator position satisfies the first three prongs of the prima facie case. Defendants argue only that plaintiff cannot meet the fourth prong, namely that plaintiff was treated less favorably than persons outside her protected class or that she was terminated in circumstances giving rise to an inference of discrimination. Testimony from Taylor, who was defendants' Rule 30(b)(6) witness, establishes that there are triable issues of fact regarding whether plaintiff was discriminated against based on pregnancy when she was not retained in the project coordinator role. Taylor testified as follows:

Taylor Depo. at 29:14-30:5. Taylor's testimony is sufficient to establish the fourth prong of the prima facie case, because it gives rise to an inference of discrimination, i.e. that plaintiff was removed from/not permanently placed in the project coordinator position because she was pregnant. See 42 U.S.C. § 2000e(k) (the term "because of sex" includes "because of or on the basis of pregnancy"). Defendant has not offered a legitimate, non-discriminatory reason for this decision in its motion for summary judgment. Accordingly, considering the evidence in the light most favorable to plaintiff as the non-movant, this record contains sufficient evidence such that a reasonable jury could find that plaintiff was in the project coordinator position and that the reason she was not retained in that position was her pregnancy.

In summary, there are two genuine issues of material fact for a jury to consider: (i) whether plaintiff was transferred or constructively transferred to the project coordinator position on the Airscale project; and (ii) if so, whether plaintiff was terminated or not retained in the project coordinator position because of her pregnancy. Because these genuine issues of material fact need to be resolved by a jury, summary judgment with respect to plaintiff's claim of pregnancy discrimination based on her removal from the project coordinator role must be denied.

IV.

Count II of plaintiff's complaint is based on retaliation for plaintiff's alleged reports to Taylor of discrimination under Title VII as amended by the PDA. Plaintiff argues that she complained to Taylor that Thompson was discriminating against her based on pregnancy and that she was subsequently fired. To establish a prima facie case of retaliation, plaintiff must prove three elements: (1) she engaged in a protected activity; (2) the employer acted adversely against her; and (3) there was a causal connection between the protected activity and the asserted adverse action." Ziskie v. Mineta, 547 F.3d 220, 229 (4th Cir. 2008). Defendants argue that plaintiff did not engage in protected activity and cannot show any causal connection between the alleged protected activity and her termination. Defendant is correct on both points. Accordingly, summary judgment must be granted for defendants in this regard.

Protected activity does not include generalized employment related complaints unrelated to Title VII/PDA-prohibited discrimination.29 Here, to satisfy the requirement that she engaged in protected activity, plaintiff relies solely on Taylor's testimony regarding the complaint made by plaintiff regarding Thompson. See Opp'n at 14 (citing Taylor Depo. Tr. at 32:20-35:4).30 In that testimony, Taylor states that the only complaint plaintiff made regarding Thompson was "[j]ust that he was rude." Taylor Depo. Tr. at 32:20-22. Indeed, plaintiff, in her own deposition, denied that she informed Taylor that Thompson "was harassing [her] because [she was] pregnant." Ruddy Depo. Tr. at 92:1. Plaintiff's general complaint of rudeness does not constitute protected activity and plaintiff therefore fails to satisfy the first prong of the prima facie test.

Moreover, even assuming arguendo that plaintiff engaged in a protected activity related to pregnancy or sex, there is a lack of causal connection between the alleged protected activity and her termination. To begin with, plaintiff cannot demonstrate that she was terminated from the managing recruiter position because of her protected activity where plaintiff has submitted no evidence that Della Valle, the applicable decision-maker, was aware of her protected activity. See Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998) ("Since, by definition, an employer cannot take action because of a factor of which it was unaware, the employer's knowledge that plaintiff engaged in a protected activity is absolutely necessary to establish the third element of the prima facie case.").31 Moreover, plaintiff's own testimony discloses that she would be merely "guessing" as to whether Della Valle knew of her complaints. Ruddy Depo. Tr. at 117:12-15. Plaintiff also points to the October 26, 2017 Della Valle/Taylor Email Chain where Taylor asserts that she had to "smooth the waters with Ben/NOKIA." October 26, 2017 Della Valle/Taylor Email Chain at 1. That email, however, was sent after Della Valle had made and communicated the decision to terminate plaintiff from the managing recruiter position and refers only to actions taken by Taylor — who was not the decision-maker. See id. Accordingly, plaintiff cannot show a causal nexus between her complaints regarding Thompson's rudeness — assuming that such complaints constituted protected activity (which they do not) — and her termination from the managing recruiter position.

With respect to the project coordinator position, plaintiff argues that Taylor's "smooth the waters" comment suggests a retaliatory animus. The October 26, 2017 Della Valle/Taylor Email Chain does not, however, suggest such an animus. Instead, the October 26, 2017 Della Valle/Taylor Email Chain explains that Taylor was required to "smooth the waters" because "[t]here have actually been complaints about [plaintiff] and her unresponsiveness." October 26, 2017 Della Valle/Taylor Email Chain at 1. The October 26, 2017 Della Valle/Taylor Email Chain suggests that Taylor was not taking any action because of plaintiff's complaints but because of complaints by the client, namely Nokia and Thompson. Additionally, emails submitted by defendants demonstrate plaintiff's unresponsiveness to requests by Thompson. See Dkt. 30-9 ("Laura, I have tried to contact you several times over the last week and no response."). Moreover, as discussed supra, Taylor's deposition testimony establishes that the motive for not retaining plaintiff in the project coordinator role was not retaliation for her complaints regarding Thompson, but because of plaintiff's pregnancy and the associated leave that she would need to take. See Taylor Depo. Tr. at 29:14-30:5. Thus, on this summary judgment record, there is no evidence that defendants retaliated against plaintiff because of any protected activity when defendants did not place plaintiff in the project coordinator role.

In short, plaintiff cannot show either that she engaged in any protected activity or that she was terminated because she engaged in a protected activity. Accordingly, there is no triable issue of fact on plaintiff's retaliation claim under Title VII/the PDA and summary judgment must be granted in favor of defendants.

V.

Plaintiff's final count asserts that she was retaliated against for seeking to obtain FMLA leave. To establish an FMLA retaliation claim, a plaintiff must show that she "engaged in protected activity, that the employer took adverse action against [her], and that the adverse action was causally connected to the plaintiff's protected activity." Sharif v. United Airlines, Inc., 841 F.3d 199, 203 (4th Cir. 2016). Plaintiff argues that she informed Tyalor of her intent to take FMLA leave and that Taylor considered plaintiff's intent to take FMLA leave when Taylor did not offer plaintiff a permanent project coordinator position.32 Defendants argue that plaintiff was not eligible for FMLA leave and that plaintiff cannot show a causal nexus because, despite eliminating her position, defendants permitted plaintiff to take FMLA leave as well as FMLA-like leave.33 Because plaintiff concedes that she was not eligible for FMLA leave, she could not have engaged in protected activity and cannot establish her prima facie case. Accordingly, defendants' motion for summary judgment must be granted.

A threshold issue raised by defendants' motion for summary judgment is whether plaintiff was an eligible employee under the FMLA and thus entitled to the FMLA's protections against retaliation. She was not. Plaintiff does not address this argument in her opposition brief. See Opp'n at 15-16.34 Under the FMLA, an employee is only entitled to "a total of 12 work weeks of leave during any 12-month period." 29 U.S.C. § 2612(a)(1) (emphasis added). Thus, an employee is required to "reestablish FMLA eligibility before taking leave in a new twelve-month FMLA period." Davis v. Michigan Bell Tel. Co., 543 F.3d 345, 352 (6th Cir. 2008).35 Here, it is undisputed that plaintiff was ineligible for FMLA leave until December 2017.36 Accordingly, at the time plaintiff was terminated in October 2017, plaintiff was not eligible for FMLA leave.37

There is a conflict of authority amongst district courts regarding whether an employer can be held liable for retaliation under the FMLA where the employee was not eligible for FMLA leave. See Gleaton v. Monumental Life Ins. Co., 719 F.Supp.2d 623, 628-29 (D.S.C. 2010) (noting conflict among district courts). There is also a conflict among district courts within the Fourth Circuit. Compare Gleaton, 719 F. Supp. 2d at 629 (holding that an employee may bring a retaliation claim under the FMLA even if terminated before becoming FMLA eligible) with Jacobs v. UPS, Inc., No. 3:15-cv-381, 2016 WL 8192993, at *2 (W.D.N.C. Dec. 5, 2016) (holding that a plaintiff who did not satisfy 1,250 hour requirement "cannot maintain a FMLA retaliation claim because he cannot establish the first element of the prima facie claim for FMLA retaliation — that he engaged in `protected activity'").38 This Court has previously held that, where a plaintiff is not an "eligible employee" under the FMLA, he has failed to state a claim of retaliation under the FMLA. See Bonanno v. Va. Land & Improvement Corp., No. 1:13-cv-710, 2014 WL 5389908, at *1 (E.D. Va. Mar. 12, 2014).39

The Bonanno decision represents the more appropriate analysis of plaintiff's claim, namely that, in order to state an FMLA retaliation claim, plaintiff must be eligible under the FMLA. It is appropriate to require plaintiffs to become eligible for FMLA leave before permitting them to claim the protections of a FMLA retaliation claim, because otherwise employees could request FMLA leave at any time to either forestall their termination or create a FMLA cause of action.

Although there does not appear to be a Fourth Circuit case directly on point, this analysis appears to be appropriate given the Fourth Circuit's decisions in other FMLA cases. For example, in Moticka v. Weck Closure Systems, 183 F. App'x 343 (4th Cir. 2006), the Fourth Circuit noted that at the time that plaintiff was terminated she had not worked the 1,250 hours required and thus was not eligible for FMLA leave. Id. at 349. Although the Fourth Circuit did not specifically address FMLA retaliation, it held that plaintiff "failed to show any entitlement to coverage under the FMLA, let alone a violation of the FMLA." Id. (emphasis added).40 Similarly, plaintiff here cannot show coverage under the FMLA or a violation of the FMLA because she cannot meet this threshold of demonstrating eligibility. Additionally, in Babcock v. BellSouth Advertising and Publishing Corp., 348 F.3d 73 (4th Cir. 2003), the Fourth Circuit held that a plaintiff who went on leave before working at a company for 12 months was not an "eligible employee" under the FMLA. 348 F.3d at 77. In that case, an employee took leave before becoming eligible under the FMLA and the Fourth Circuit characterized that leave as "an unexcused absence." Id. Ultimately, however, the Fourth Circuit found that, because the employer did not terminate the plaintiff for her unexcused absence, the plaintiff became an eligible employee and was entitled to use FMLA leave. Id. at 78. Here, plaintiff was not an eligible employee and the decision to terminate plaintiff's employment was made before plaintiff became eligible. Accordingly, under the reasoning of Babcock and Moticka, plaintiff was not an eligible employee and not entitled to FMLA coverage, including retaliation protections.

Because on this summary judgment record it is undisputed that hearing was not eligible for FMLA leave in October 2017, plaintiff cannot establish a prima facie case of FMLA retaliation. Accordingly, defendants' motion for summary judgment must be granted in this regard.

VI.

For the reasons set forth above, defendants' motion for summary judgment will be granted in part and denied in part. Specifically, the motion must be granted with respect to: (i) plaintiff's claims of pregnancy discrimination related to her termination from the recruiting manager position; (ii) plaintiff's claims of retaliation under Title VII, as amended by the PDA; and (iii) plaintiff's claims of retaliation under the FMLA. Defendants' motion for summary judgment must be denied with respect to plaintiff's claim of pregnancy discrimination related to defendants' failure to retain plaintiff in the project coordinator position.

An appropriate order will issue separately.