Fox v. Primary Financial Services LLC et al

Filing 39

ORDER denying 29 Motion for Summary Judgment. The Court will set a final pretrial conference by separate order. Signed by Judge David G Campbell on 3/3/2014.(DGC, nvo)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Barbara A Fox,

No. CV-13-00116-PHX-DGC
Plaintiff,

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v.

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ORDER

Primary Financial Services LLC, et al.,

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Defendants.

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Defendant Primary Financial Services LLC (“Primary Financial”) has filed a

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motion for summary judgment and statement of facts in support. Doc. 29. The motion

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has been fully briefed. For the reasons stated below, the motion will be denied.1

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I.

Background.

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Plaintiff Barbara Fox began working for Primary Financial in September 2008 as a

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collections agent. Doc. 33 at 1. For two years, from 2008 to 2010, Plaintiff worked on

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“Lines and Loans” accounts, where she attempted collections of secured and unsecured

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debts for a major bank client of Primary Financial.

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commission for the collections was 35%. Id.

Id. at 2.

Plaintiff’s rate of

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In November 2010, Plaintiff took leave under the Family and Medical Leave Act

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(“FMLA”) for a pregnancy and the expected birth of her child. Id. at 1. She was on

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leave until February 2011, at which time she returned to Primary Financial, again as a

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The request for oral argument is denied because the issues have been fully
briefed and oral argument will not aid the Court’s decision. See Fed. R. Civ. P. 78(b);
Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998).

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collector. Id. at 2. Upon her return, Plaintiff was assigned to accounts servicing credit

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card companies, rather than returning to the Lines and Loans accounts she had been

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servicing prior to her leave. On the credit card accounts, her rate of commission was

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28%. Id. Thereafter, Plaintiff asserts that she suffered a “precipitous reduction in both

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commissions and income,” receiving no commission at all for seven out of the nine

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months that followed her return from FMLA leave.

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assignment to the Credit Card Department constitutes a substantive denial of her right to

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reinstatement under the FMLA. Doc. 1, ¶ 34.

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II.

Id.

Plaintiff claims that her

Legal Standard.

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Summary judgment is appropriate if the evidence, viewed in the light most

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favorable to the nonmoving party, shows “that there is no genuine issue as to any material

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fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).

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Only disputes over facts that might affect the outcome of the suit will preclude the entry

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of summary judgment, and the disputed evidence must be “such that a reasonable jury

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could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477

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U.S. 242, 248 (1986). “Credibility determinations, the weighing of evidence, and the

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drawing of inferences from the facts are jury functions, not those of a judge . . . [t]he

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evidence of the non-movant is to be believed, and all justifiable inferences are to be

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drawn in his favor” at the summary judgment stage. Id. at 255 (citing Adickes v. S.H.

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Kress & Co., 398 U.S. 144, 158–59 (1970)); Harris v. Itzhaki, 183 F.3d 1043, 1051 (9th

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Cir. 1999) (“Issues of credibility, including questions of intent, should be left to the

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jury.”) (citations omitted); Sec. & Exch. Comm’n v. Koracorp Indus., Inc., 575 F.2d 692,

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698 (9th Cir. 1978) (reversing summary judgment and stating that “[t]he courts have long

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recognized that summary judgment is singularly inappropriate where credibility is at

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issue”).

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III.

Analysis.

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“The FMLA provides job security and leave entitlements for employees who need

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to take absences from work for personal medical reasons.” Xin Liu v. Amway Corp., 347

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F.3d 1125, 1132 (9th Cir. 2003) (citing 29 U.S.C. § 2612).

The Act creates two

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interrelated substantive rights for employees. Bachelder v. America West Airlines, Inc.,

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259 F.3d 1112, 1122 (9th Cir. 2001). First, qualifying employees may take unpaid leave

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for up to 12 weeks each year, provided they have worked for the covered employer for 12

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months. 29 U.S.C. § 2612(a). Second, an employee who takes FMLA leave “has the

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right to be restored to his or her original position or to a position equivalent in benefits,

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pay, and conditions of employment upon return from leave.” Xin Liu, 347 F.3d at 1132

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(citing 29 U.S.C. § 2614(a)).

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An employee’s right to be reinstated under the Act “is the linchpin of the

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entitlement theory because the FMLA does not provide leave for leave's sake, but instead

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provides leave with an expectation that an employee will return to work after the leave

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ends.” Sanders v. City of Newport, 657 F.3d 772, 778 (9th Cir. 2011) (internal quotes

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and citations omitted). “Evidence that an employer failed to reinstate an employee who

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was out on FMLA leave to her original (or an equivalent) position establishes a prima

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facie denial of the employee’s FMLA rights.” Id.; 29 C.F.R. § 825.220(b). The elements

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of a reinstatement claim require the employee to establish that (1) she was eligible for the

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FMLA’s protections, (2) her employer was covered by the FMLA, (3) she was entitled to

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leave under the FMLA, (4) she provided sufficient notice of her intent to take leave, and

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(5) her employer denied her FMLA benefits to which she was entitled. Sanders, 657 F.3d

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at 778 (citing Burnett v. LFW Inc., 472 F.3d 471, 477 (7th Cir. 2006); Hoge v. Honda

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Am. Mfg., Inc., 384 F.3d 238, 244 (6th Cir. 2004)). The right to reinstatement under the

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Act is not limitless. Id. The FMLA does not entitle the employee to any rights, benefits,

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or positions he or she would not have been entitled to had he or she not taken leave. 29

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U.S.C. § 2614(a)(3)(B). It simply guarantees that an employee’s taking leave will not

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result in adverse employment actions.

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The employer’s intent is irrelevant to a determination of liability in an interference

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claim. Sanders, 657 F.3d at 778. Once a plaintiff has shown that she has not been

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reinstated to her previous position, the burden shifts to the employer “to show that he had

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a legitimate reason to deny an employee reinstatement.” Id. at 780.

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Primary Financial argues that Plaintiff was reinstated to the same position –

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collector – but simply assigned different clients. Doc. 38 at 3. Primary Financial argues

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that Plaintiff does not dispute that she still carried the job title of “collector” after her

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FMLA leave, and that there is, therefore, no material dispute that she was reinstated to

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her pre-FMLA position. Id. In the alternative, Primary Financial argues that even if

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Plaintiff was not reinstated to her old position upon her return, her position as a collector

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of credit card accounts was at least equivalent.

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Plaintiff argues that she was assigned to a different department that offered lower

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commissions than the department in which she previously worked, and that the new job

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was not the same or an equivalent opportunity. Primary Financial disputes that it has

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different departments and argues that Plaintiff was merely assigned different types of

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accounts upon her return. But Plaintiff has submitted a “Change Notice” from Primary

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Financial dated February 1, 2011 that appears to formalize her move from the Lines and

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Loans Department to the Credit Card Department. Doc. 33-2 at 7.

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Plaintiff also argues that the commissions that she could earn in the Credit Card

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Department were lower than those in her former position in Lines and Loans. Doc. 33 at

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5. Primary Financial does not dispute that her commission dropped from 35% to 28%.

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Doc. 29 at 6. Instead, Primary Financial argues that she had the opportunity to earn just

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as much in Credit Cards because the rate of collection was much higher. Doc. 29 at 10.

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Plaintiff submits evidence that she in fact received far less in commission in her post-

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FMLA leave position. Doc. 33 at 2.

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The Court must deny summary judgment if Plaintiff’s evidence raises a genuine

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dispute of fact. In making that determination, “[t]he evidence of the non-movant is to be

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believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S.

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at 255. Accepting Plaintiff’s evidence as true and viewing it in a light most favorable to

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her position, Plaintiff has raised factual issues that prevent the Court from entering

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summary judgment in Defendants’ favor.

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IT IS ORDERED that Defendant’s motion for summary judgment (Doc. 29) is
denied. The Court will set a final pretrial conference by separate order.
Dated this 3rd day of March, 2014.

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