Moore v. GPS Hospitality Partners IV, LLC

Filing 64

ORDER granting in part and denying in part 50 Motion for Summary Judgment; denying 51 Motion for Summary Judgment. Signed by District Judge William H. Steele on 6/3/2019. (tgw)

Case 1:17-cv-00500-WS-N Document 64 Filed 06/03/19 Page 1 of 36

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LASHONDRA MOORE,
Plaintiff,
v.
GPS HOSPITALITY PARTNERS IV,
LLC, etc.,
Defendant.

)
)
)
)
) CIVIL ACTION 17-0500-WS-N
)
)
)
PUBLISH
)
)

ORDER
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.
BACKGROUND
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.

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DISCUSSION
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 nonmoving
2

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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 (1986)) (footnote omitted); see also Fed. R. Civ. P. 56(e)(2) (“If a
party fails to properly support an assertion of fact or fails to properly address
another party’s assertion of fact as required by Rule 56(c), the court may …
consider the fact undisputed for purposes of the motion ….”).
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).
I. Interference Claim.
“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.1 The defendant’s argument targets only this final
sub-element of the first element; however, because the plaintiff moves for
summary judgment on her interference claim, the Court must consider all elements
of that claim.
1

Eleventh Circuit Pattern Jury Instructions (Civil) 4.16 (2013).

3

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A. Covered Entity.
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).
B. Eligibility.
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.2 It is also
uncontroverted, however, that the defendant in December 2016 purchased 190
Burger King restaurants, including the plaintiff’s store, from Strategic Solutions
(“Strategic”), and that the defendant retained the employees of Strategic,

2

(Doc. 52-3 at 5).

4

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transitioning them directly into employment by the defendant, complete with
retention of entitlement to benefits, including FMLA eligibility.3
The term “employer” includes “any successor in interest of an employer.”
29 U.S.C. § 2611(4)(A)(ii)(II). The relevant factors include: (1) substantial
continuity of the same business operations; (2) use of the same plant; (3)
continuity of the work force; (4) similarity of jobs and working conditions; (5)
similarity of supervisory personnel; (6) similarity in machinery, equipment, and
production methods; (7) similarity of products or services; and (8) the ability of
the predecessor to provide relief. 29 C.F.R. § 825.107(a).
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.4
“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

3

(Id.).

4

“[T]his factor is inapplicable to FMLA claims arising after the transition from
old employer to new employer.” Sullivan v. Dollar Tree Stores, Inc., 623 F.3d 770, 786
(9th Cir. 2010).

5

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several years before the defendant’s acquisition.5 The plaintiff therefore satisfies
the FMLA’s eligibility requirements.
C. Qualifying Reason.
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.6 The plaintiff therefore sought leave for a qualifying
reason.
D. Employee Notice.
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.

5

(Doc. 50-4 at 24).

6

(Id. at 31-33).
6

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In the case of foreseeable leave:
An employer may require an employee to comply with the
employer’s usual and customary notice and procedural
requirements for requesting leave, absent unusual
circumstances. For example, … [a]n employee … may be
required by an employer’s policy to contact a specific
individual. … Where an employee does not comply with
the employer’s usual notice and procedural requirements, and
no unusual circumstances justify the failure to comply, FMLAprotected leave may be delayed or denied.
29 C.F.R. § 825.302(d).
A substantively similar provision applies to unforeseeable leave:
[A]n employee must comply with the employer’s usual and
customary notice and procedural requirements for requesting
leave, absent unusual circumstances. For example, an employer
may require employees to call a designated number or a specific
individual to request leave. … If an employee does not comply
with the employer’s usual notice and procedural requirements,
and no unusual circumstances justify the failure to comply,
FMLA-protected leave may be delayed or denied.
Id. § 825.303(c).
1. “Usual and customary notice and procedural requirements for
requesting leave.”
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.”7
7

(Doc. 52-4 at 20-21).
7

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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.8 For reasons that follow, the Court rejects this reading of the
regulations and concludes that the relevant notice and procedural requirements are
those governing leave generally, not FMLA leave specifically.
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.9
Subsection (d) is different, as it begins with five consecutive references to
“leave,” the first of which is the presently relevant grant of permission to enforce
compliance with the employer’s usual and customary requirements “for requesting
leave.” As subsections (a), (b) and (c) reflect, if these requirements were those for
requesting “FMLA leave” specifically, subsection (d) would have followed the
pattern of the preceding subsections and employed that phrase to introduce the
8

E.g., Hunt v. Altec Industries, Inc., 2015 WL 5602437 at *7 (N.D. Ala. 2015).

9

Subsection (e) refers once to “FMLA leave” and does not refer to “leave.”

8

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provision. Moreover, the first usage of “FMLA leave” in subsection (d) appears in
the following sentence:
Unusual circumstances would include situations such as
when an employee is unable to comply with the employer’s
policy that requests for leave should be made by contacting
a specific number because on the day the employee needs to
provide notice of his or her need for FMLA leave there is no
one to answer the call-in number and the voice mail box is full.
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 (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

9

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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.
The language of the regulations readily supports a reading that restricts the
“usual and customary notice and procedural requirements for requesting leave” to
those requirements applicable to leave generally and that does not permit
employers to deny leave based on a failure to comply with more stringent notice
and procedural requirements applicable to FMLA requests but not to other forms
of leave. Even could the regulations also reasonably be construed otherwise, the
agency’s understanding as to the scope of the regulations resolves any ambiguity
against the defendant’s position.
“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 (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 (2013). “Auer deference is
10

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warranted only when the language of the regulation is ambiguous.” Christensen v.
Harris County, 529 U.S. 576, 588 (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 (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.10
Section 825.302(d) provided that an employer “may also require an employee to
comply with the employer’s usual and customary notice and procedural
requirements for requesting leave without pay.”11 Because “[t]he FMLA requires
only unpaid leave,” Nevada Department of Human Resources v. Hibbs, 538 U.S.
721, 739 (2003), “without pay” would be hopelessly redundant were “leave
without pay” construed to mean “FMLA leave without pay.” Because courts
should “avoid a reading which renders some words altogether redundant,”
Gustafson v. Alloyd Co., 513 U.S. 561, 574 (1995), the relevant notice and

10

The Family and Medical Leave Act of 1993, 58 Fed. Reg. 31,794 (Jun. 4,

1993).
11

Id. at 31,827. Section 825.303 did not include any language regarding
compliance with the employer’s usual and customary requirements with respect to
unforeseeable leave. Id.

11

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procedural requirements must be those applicable to leave without pay generally
and not those specially applicable to FMLA leave.
The agency’s final rule was published in January 1995.12 With respect to
Section 825.302(d), the final rule traced the interim final rule but deleted the
concluding words, “without pay.”13 The preamble to Section 825.302 specifies
that:
The employee is required to provide notice of need to take
FMLA leave to the same person(s) within the company the
employee ordinarily contacts to request other forms of leave,
usually the employee’s supervisor. It is the responsibility of
the supervisor either to refer the employee … to the appropriate
person, or to alert that person to the employee’s notice. Once
the employee has provided notice to the supervisor or other
appropriate person in the usual manner, the employee’s
obligation to provide notice of the need for FMLA leave has
been fulfilled.14
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
12

The Family and Medical Leave Act of 1993, 60 Fed. Reg. 2,180 (Jan. 6, 1995).

13

Id. at 2,257. Section 825.303 again did not include any language regarding
compliance with the employer’s usual and customary requirements with respect to
unforeseeable leave. Id.
14

Id. at 2,220 (emphasis added).

12

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without pay.”15 In both cases, the relevant employer notice rules are the
employer’s generally applicable ones, not special ones designed specifically for
FMLA leave.16
In 2007, DOL solicited public comment regarding the Act and the
effectiveness of its implementing regulations.17 Commenters expressed frustration
with then-current Section 825.302(d)’s prohibition on delaying or denying FMLA
leave for failure to follow the employer’s usual and customary notice and
procedural requirements for requesting leave, which the agency distilled as
seeking permission to enforce generally applicable leave requirements in the
FMLA context.18
The following year, DOL published a notice of proposed amendments to its
FMLA regulations.19 The preamble to proposed Section 825.302(d) states that the
amended version “retains the current rule providing that an employer may require
an employee to comply with the employer’s usual notice and procedural
requirements for calling in absences and requesting leave,”20 which it equated with
“employer absence policies” and “normal leave policies”21; each phrasing

15

Id. at 2,258.

16

The interim final rules included a similar provision. 58 Fed. Reg. at 31,827.

17

Family and Medical Leave Act Regulations: A Report on the Department of
Labor’s Request for Information, 72 Fed. Reg. 35,550 (Jun. 28, 2007).
18

“Employers also identified as an area of concern … their inability to enforce
routine call-in procedures. … Employers asserted that the call-in procedures, which are
enforced routinely outside the FMLA context, are often critical to an employer’s ability
to ensure appropriate staffing levels.” Id. at 35,576. “Several stakeholders recommended
allowing employers to enforce employee compliance with established attendance and
leave notification procedures ….” Id. at 35,585.
19

The Family and Medical Leave Act of 1993, 73 Fed. Reg. 7,876 (Feb. 11,

20

Id. at 7,909.

2008).

13

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indicates generally applicable policies. The agency also acknowledged that “callin procedures, which are enforced routinely outside the FMLA context, can serve
as a crucial element of an attendance program,”22 again reflecting that the agency
was contemplating requirements of an employer’s entire “attendance program,”
not special requirements for requesting FMLA leave.
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”23; that is, the same call-in rule applies to all
unscheduled absences, not just FMLA unscheduled absences.
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 ….”24 Explicitly, then, the
“usual and customary notice and procedural requirements for requesting leave”
that an employer may enforce in the FMLA context are limited to those that are
also applicable in the non-FMLA context.
The agency issued its final rule in November 2008, effective January
2009,25 giving Sections 825.302(d) and 825.303(c) their current form. The
21

Id.

22

Id.

23

Id. at 7,911.

24

Id. (emphasis added).

25

The Family and Medical Leave Act of 1993, 73 Fed. Reg. 67,934 (Nov. 17,

2008).

14

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preamble summarized responses to the proposed changes to the former section as
follows: employees objected to allowing employers to delay or deny FMLA leave
for failure to comply with the employer’s usual requirements for requesting leave,
while employers “argued that employees should be required to follow the same
procedures for requesting leave regardless of whether their need for leave was
covered by the FMLA.”26 The agency agreed with the employers’ position:
“[C]all-in procedures are routinely enforced in the workplace and are critical to an
employer’s ability to ensure appropriate staffing levels. … The Department
believes that employers should be able to enforce non-discriminatory call-in
procedures” in the FMLA context.27 Both quotes reflect that the only internal
procedures an employer may enforce with respect to FMLA leave are those also
applicable to other forms of leave.
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 the
employer imposes on FMLA leave requests in particular.
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)
26

Id. at 68,005 (emphasis added).

27

Id. (emphasis added). Similar language is found in the preamble to Section
825.303(c). Id. at 68,009.

15

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(“[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.28 Because
the defendant could not properly refuse the plaintiff FMLA leave for failure to
contact Human Resources, its motion for summary judgment must fail.
2. “Unusual circumstances.”
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
28

(Doc. 52-4 at 14, 18-19, 22-23).
16

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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.29 Employees in the plaintiff’s store were required to come to
the office, log in and complete all these tasks while on the clock and working a
shift, and they took an average of ten minutes to complete all these assignments;
the defendant did not instruct Owes to ensure that employees had enough time to
read the handbook, and Owes did not tell the plaintiff to take the necessary time.30
The plaintiff did not read the handbook or its 2½-page FMLA policy, because she
did not have time to do so, since she was running a shift; indeed, it was not
possible to complete all the paperwork and read the handbook in ten minutes.31
The plaintiff did electronically sign or initial the final page of the handbook eight
times, including to acknowledge that she had received a copy of the handbook and
that she understood her responsibility to read and comply with its policies.32 She
did not, however, actually receive a physical copy of the handbook.33 Nor did the
defendant conduct any training in the plaintiff’s store regarding the handbook in
general or the FMLA policy in particular.34
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.35 At some point during the plaintiff’s

29

(Doc. 50-1 at 19-20; Doc. 50-2 at 16; Doc. 52-3 at 11-12; Doc. 52-4).

30

(Doc. 50-2 at 15-17; Doc. 50-4 at 29).

31

(Dec. 50-2 at 19-20; Doc. 50-4 at 26-27).

32

(Doc. 52-1 at 15; Doc. 52-4 at 34).

33

(Doc. 50-4 at 47).

34

(Doc. 50-2 at 10, 12-13).

35

(Id. at 16; Doc. 52-2 at 5).

17

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employment, Owes printed a copy of the handbook and left it in the store.36 If
employees create a user name and password when completing their online
paperwork, they can log in to the platform remotely at other times and access the
handbook.37
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.38
The defendant trained its newly acquired managers, but it did not address
the FMLA policy with them.39 When the plaintiff sought time off to assist her
hospitalized mother in February 2017, Owes did not know what the defendant’s
FMLA policy was, because no one had ever told her and she had never read the
policy.40 The defendant advertised its “respect policy” by placing posters in its
restaurants that advised employees to contact Human Resources, but it did not do
so with regard to its FMLA policy or its notice requirement.41

36

(Doc. 52-2 at 14). The defendant says that Owes printed the handbook on the
November day her employees completed their online paperwork and that she left the
handbook on a file cabinet in the office, (Doc. 51 at 4), but its citations to the record do
not support those time and place details.
37

(Doc. 52-3 at 12-13).

38

(Doc. 50-4 at 4-5, 30, 45, 47).

39

(Doc. 50-1 at 11; Doc. 50-2 at 10).

40

(Id. at 12-13, 20).

41

(Doc. 52-3 at 7-8).

18

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As noted, the defendant’s FMLA policy requires employees to “notify their
supervisor and Human Resources for approval for a leave.”42 It is the defendant’s
policy (not expressed in the handbook) that a manager, upon becoming aware of
an employee’s need for leave that might qualify for FMLA leave, must inform the
employee of their entitlement to FMLA leave and must tell the employee to
contact Human Resources, and managers are so instructed. Furthermore, Human
Resources will accept notice from a store manager in lieu of the employee.43
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 weekend, with a
procedure set for Monday.44 The plaintiff worked her shift Saturday afternoon,
and while there she told Owes that her mother was in a life-or-death situation that
required surgery, and that she needed a week off to be with her. Owes said to take
all the time she needed.45
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.46 About 7:00 p.m., Owes informed the plaintiff that she (Owes)
would not work the 11 a.m. to 8 p.m. shift on Monday the sixth because she had
42

(Doc. 52-4 at 20).

43

(Doc. 50-1 at 16-17, 41-42).

44

(Doc. 50-4 at 5-6; Doc. 50-5).

45

(Doc. 50-2 at 26; Doc. 50-4 at 3, 7-8, 45).

46

(Doc. 50-2 at 36; Doc. 50-8 at 4).

19

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pink eye and that the plaintiff would have to work the shift instead; the plaintiff
responded that Morrissette would have to find someone to work in her place.47
She then texted Morrissette, “Can you get someone to cover my shift for a few
days please i have to be with my momna [sic] right now,” to which Morrissette
responded, “Let [Owes] know. I have no one.”48 The plaintiff related this
response to Owes, who tried to reach Morrissette, but Morrissette would not
answer the phone or text Owes back.49 The plaintiff ultimately did not work on
Monday.
The plaintiff was scheduled to work from 4:30 a.m. to 2:00 p.m. on
Tuesday, February 7.50 On the night of Monday, February 6, Owes texted the
plaintiff to ask, “Are you going to be able to open in the morning?”51 The plaintiff
responded, “no I might can’t come back for a few days,” and Owes understood the
plaintiff had requested this time off to care for her mother.52 Owes nevertheless
changed her query to a command, instructing the plaintiff to open the store
Tuesday morning because Owes had a morning medical appointment; the plaintiff
responded, “ok.”53
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.54
47

(Id. at 7).

48

(Doc. 50-7 at 1-2).

49

(Doc. 50-8 at 9).

50

(Doc. 50-9).

51

(Doc. 50-8 at 10).

52

(Id.; Doc. 50-2 at 47).

53

(Doc. 50-8 at 11-12).

54

(Doc. 50-2 at 44-45; Doc. 50-4 at 13, 34; Doc. 50-8 at 12; Doc. 50-10 at 2).
20

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The plaintiff was scheduled to work the early shift on Wednesday, February
8.55 The plaintiff had by this time asked for leave due to her mother’s
hospitalization twice (on Saturday and Sunday) and had then reminded Owes of
her unavailability (on Monday). Owes had told her on Saturday to take all the
time she needed and, while she had then required the plaintiff to work a partial
shift on Tuesday morning when Owes could not cover for her, Owes did not
request or demand that the plaintiff work her Wednesday shift. The plaintiff
concluded, reasonably, that she was not required to report to work on
Wednesday.56
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.”57 Even though Owes admits it was not the plaintiff’s job to find
a replacement but the responsibility of Owes and Morrissette to do so, Owes wrote
up a “final written warning” based on the plaintiff’s failure to show up for work.58
Around 8:00 a.m., Morrissette (who had been silent since Sunday evening) texted
the plaintiff, “No call no show this morning? No phone call. One more will lead
to termination.”59
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.60 On or about Wednesday the eighth, the plaintiff learned from her aunt
about the existence of the FMLA and her right to leave, and on that date she went
55

(Doc. 50-9).

56

(Doc. 50-4 at 35; Doc. 52-1 at 10-12).

57

(Doc. 50-8 at 13).

58

(Doc. 50-2 at 47; Doc. 50-10 at 3).

59

(Doc. 50-7 at 3).

60

(Doc. 50-9).

21

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to the store office and told both Owes and Morrissette that she needed to file
FMLA, which they said was fine.61 The plaintiff handed Morrissette a note from
her mother’s doctor and told Morrissette that her mother was in a very bad state
and that she needed time off to tend to her.62 The plaintiff asked Morrissette how
to go about obtaining FMLA leave, but Morrissette never – then or later – told her
she needed to call Human Resources.63 On Wednesday and Thursday, the plaintiff
asked Morrissette several times – both in person and by text – for the forms
needed to file for FMLA leave, and Morrissette’s response was always that she
was working on it.64 The plaintiff also asked Owes for help in obtaining FMLA
leave, but Owes said to deal with Morrissette because she knew nothing about the
FMLA.65
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: “[e-mail].”66
Thomas was the defendant’s Human Resources employee in charge of FMLA
administration,67 but the plaintiff did not know that, and Morrissette did not tell
61

(Doc. 50-2 at 28; Doc. 50-4 at 4-5, 42-44).

62

(Id. at 17, 20-21).

63

(Id. at 43, 47).

64

(Id. at 18, 43; Doc. 50-7 at 6-8).

65

(Doc. 50-2 at 27; Doc. 50-4 at 45).

66

(Doc. 50-7 at 7-9).

67

(Doc. 52-3 at 4).
22

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her; nor did Morrissette tell the plaintiff she needed to contact Thomas in order to
request FMLA leave. The plaintiff, not understanding this unexplained text, called
Morrissette and asked for help because she did not know what to do. Morrissette
responded, “I sent you what you needed, figure it out on your own.” The plaintiff
clicked on the link, but it brought her to a whole lot of confusing stuff.68
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 employee to contact Human Resources. The plaintiff gave Owes notice of her
need for potentially FMLA-qualifying leave on at least February 3, February 5 and
February 8. The plaintiff gave Morrissette notice of her need for potentially
FMLA-qualifying leave on at least February 4 and February 8. Neither Owes nor
Morrissette, however, though both are managers, told the plaintiff to contact
Human Resources. The responsibility for the plaintiff’s failure, therefore, lies
with the defendant.69
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.70 But the broader point is that, regardless of whether the
68

(Doc. 50-4 at 21-23). The defendant recognizes this testimony as standing for
the proposition that the plaintiff tried the e-mail link but it did not work. (Doc. 55 at 11).
69

This is so for two reasons. First, Owes and Morrissette are the defendant’s
representatives, and their failure is the defendant’s failure. Second, the defendant
neglected to advise Owes (and presumably Morrissette) of their duties upon receiving
notice of a potentially FMLA-qualifying need for leave. (Doc. 50-2 at 14).
70

(Doc. 50-1 at 18).

23

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obligation is mentioned in the employee handbook or formalized in a “policy,” the
defendant “require[s]” its managers “to tell the employee to reach out to human
resources.”71 There is no room for debate in that absolute statement.
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
71

(Id. at 16-17).
24

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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 plaintiff could
have asked Owes and Morrissette for FMLA-qualifying leave – as she did – which
likewise should have resulted in the plaintiff’s timely awareness of how to
proceed.72
“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
72

The defendant argues that Morrissette complied with its requirement of
advising an employee to contact Human Resources when she texted the plaintiff April
Thomas’s e-mail address on February 9. (Doc. 55 at 17). This obscure action, the
significance of which Morrissette refused to share with the plaintiff, patently does not
support the proposition that Morrissette “instructed Plaintiff to contact April Thomas to
request FMLA leave.” (Doc. 58 at 2). Moreover, and as discussed in Part I.E, the
defendant had already unlawfully interfered with the plaintiff’s FMLA rights prior to
Morrissette’s text, which text could not unring that bell even had it accomplished what
the defendant contends.
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.
25

Case 1:17-cv-00500-WS-N Document 64 Filed 06/03/19 Page 26 of 36

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.
3. Timing and content.
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, though she did not then know when this would occur. On
February 4, she learned that her mother would be hospitalized the following day
and undergo a procedure the day after. On February 4, the plaintiff notified Owes
that her mother was in a life-or-death situation and that she needed a week off. On
February 5, the plaintiff notified Morrissette that she needed to be off a few days
26

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to be with her mother. On February 6, the plaintiff reminded Owes that she could
not work for a few days. Owes concedes that the plaintiff on each of these
occasions communicated a request for time off to care for her hospitalized
mother.73
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
73

(Doc. 50-2 at 47).
27

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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.”74 Pursuant to the employee handbook, an employee
ordinarily is to make requests for scheduled and unscheduled leave to her
supervisor or a manager.75 Owes was both the plaintiff’s supervisor and a
manager. “Once the employee has provided notice to the supervisor or other
appropriate person in the usual manner, the employee’s obligation to provide
notice of the need for FMLA leave has been fulfilled.”76 The plaintiff therefore
provided timely, adequate notice to the appropriate person. The defendant makes
no argument to the contrary beyond its rejected one that the plaintiff was required
to contact Human Resources.
E. Interference.
An interference claim requires the plaintiff to prove that the defendant
“denied or otherwise interfered with his substantive rights under the Act.” Pereda

74

60 Fed. Reg. at 2,220.

75

(Doc. 52-4 at 14, 22-23).

76

60 Fed. Reg. at 2,220.

28

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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 12.77 This constituted an effective denial
of the plaintiff’s request for FMLA leave. See Simmons v. Indian Rivers Mental
Health Center, 652 Fed. Appx. 809, 819 (11th Cir. 2016) (requiring an employee to
perform work while on FMLA leave constitutes an actionable interference with
the employee’s FMLA rights). Because “the employer’s motives are irrelevant,”
Strickland v. Water Works and Sewer Board, 239 F.3d 1199, 1208 (11th Cir.
2001), the plaintiff’s interference claim is complete.
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
77

The plaintiff was required to find her own substitute for her February 5 shift,
which she did. The record is not clear whether the plaintiff worked on February 11 as
scheduled.
29

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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 clear that a right to reinstatement at the
conclusion of such leave was ever triggered, and the plaintiff does not address the
issue.
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.
F. Summary.
The defendant’s only argument in support of its motion for summary
judgment – that the plaintiff’s failure to contact Human Resources disqualified her
30

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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.
II. Retaliation.
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
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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 action.” Batson v. Salvation Army, 897
F.3d 1320, 1329 (11th Cir. 2018). If it does so, the plaintiff must “demonstrate that
the employer’s proffered reason was pretextual by presenting evidence sufficient
to permit a reasonable factfinder to conclude that the reasons given by the
employer were not the real reasons for the adverse employment decision.” Id.
(internal quotes omitted).
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.78
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.
78

“The general rule is that close temporal proximity between the employee’s
protected conduct and the adverse employment action is sufficient circumstantial
evidence to create a genuine issue of material fact of a causal connection,” so long as the
decisionmaker is aware of the protected activity. Brungart, 231 F.3d at 799. The
plaintiff requested FMLA leave, and sought assistance in making such a request, on at
least February 4, 5, 6, 8 and 9; she was terminated on February 13, a remarkably close
temporal proximity. Cf. Farley v. Nationwide Mutual Insurance Co., 197 F.3d 1322,
1337 (11th Cir. 1999) (seven weeks constituted close temporal proximity satisfying the
causal relation element of the plaintiff’s prima facie case).

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51 at 21-22), conduct Owes described as insubordination.79 This is a legally
permissible reason for termination, and the defendant has presented evidence both
that the episode occurred and that Owes relied on it. The plaintiff, however, has
ample evidence allowing a properly functioning jury to find that the defendant’s
articulated reason is a pretext for unlawful retaliation.
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
US. 133, 143 (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.80 Indeed, there is evidence
that Owes periodically called the plaintiff a bitch as well, including on February
12.81 In showing pretext, “[e]vidence that similarly situated employees were
treated differently is of probative value ….” United States v. Crosby, 59 F.3d
1133, 1135 (11th Cir. 1995). As the plaintiff states, she “is her own best

79

(Doc. 50-10 at 1).

80

(Doc. 54-2 at 28-29, 38).

81

(Doc. 54-4 at 38-40).

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comparator.” (Doc. 54 at 29). For Owes to suddenly treat the plaintiff’s language
as a terminable offense after tolerating it and engaging in it herself undermines the
defendant’s position that the plaintiff was discharged due to her choice of words.
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.82 Only during that final week, immediately after the
plaintiff invoked her FMLA rights, did her absences and tardiness become a
disciplinary issue, and a reasonable jury could conclude that this alteration was
prompted by the plaintiff’s protected conduct and that her termination was
similarly motivated.
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.83 So also the defendant in its interrogatory
responses identified “excessive absenteeism” as a reason for the plaintiff’s
termination.84 “We have recognized that an employer’s failure to articulate clearly
and consistently the reason for an employee’s discharge may serve as evidence of
pretext.” Hurlbert, 439 F.3d at 1298.
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

82

(Doc. 54-2 at 25-26).

83

(Id. at 25).

84

(Doc. 54-12 at 2).

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between the two.85 A reasonable jury could conclude that Owes was simmering
with resentment because of the plaintiff’s efforts to obtain FMLA-protected leave
and simply snapped on February 12, firing her based on those efforts.
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.86 The plaintiff called Owes and told her she could not
work all those overnights because she had to tend to her mother.87 In the course of
this conversation, the plaintiff told Owes to “stop acting like a bitch,” to which
Owes responded, “you’re a bitch.”88 Shortly after this conversation, the plaintiff
texted Owes, “I’m not about to work all these overnight [sic].” Owes responded,
“Now you want to text me and you are not allowed to open anymore.” Owes
expressed resentment that the plaintiff “just come in like I owe you” and
concluded, “So see what [Morrissette] has to say about your schedule.” The
plaintiff replied, in three rapid-fire texts, “OK, so what I’m not doing it”; “ok that
find [sic]”; and “you can come and get your store I’ll leave.”89 Based on this
exchange, a reasonable jury could find that the plaintiff expressed a desire not to
work overnight shifts due to an FMLA-qualifying reason and that Owes, taking
offense at the plaintiff’s presumption, promptly fired her precisely because she –
yet again – sought FMLA leave.

85

(Doc. 54-2 at 55-56).

86

(Doc. 50-2 at 22-23).

87

(Doc. 54-4 at 37). Owes denies that the plaintiff said why she would not work
overnights, (Doc. 54-2 at 24), but on the defendant’s motion the plaintiff’s version must
be credited.
88

(Doc. 54-4 at 39-40).

89

(Doc. 52-5 at 23-25). The plaintiff did not leave the store before her shift
ended. (Doc. 54-4 at 40).
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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.90 To the extent the
defendant suggests that intervening acts of misconduct can preclude a plaintiff
from establishing causation at the pretext stage, the proposition is unobjectionable,
but the operative word is “can.” Given the plaintiff’s plentiful evidence of pretext,
it will be for the jury to determine whether the defendant terminated the plaintiff
for misconduct or for engaging in protected activity under the FMLA.91
CONCLUSION
For the reasons set forth above, the defendant’s motion for summary
judgment is denied. The plaintiff’s motion for partial summary judgment is
granted with respect to liability on her interference claim to the extent based on a
denial of FMLA leave and is in all other respects denied.
DONE and ORDERED this 3rd day of June, 2019.
s/ WILLIAM H. STEELE
UNITED STATES DISTRICT JUDGE
90

Gross-Jones v. Mercy Medical, 874 F. Supp. 2d 1319, 1343-45 (S.D. Ala.

2012).
91

The plaintiff’s arguments regarding pretext focus on Owes, and the defendant
advances no argument that Owes was not the decisionmaker. The Court therefore
assumes for present purposes that it is the mental state of Owes that matters for purposes
of the plaintiff’s retaliation claim.
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