Ridgeway v. Royal Bank of Scotland Group, et al

Filing 135

ORDER denying 64 Motion to Withdraw judicial admissions; granting in part and denying in part 65 Defendant's Motion for Summary Judgment; denying Plaintiff's 104 Motion for Summary Judgment. See attached memorandum of decision. Signed by Judge Vanessa L. Bryant on 5/13/2013. (Fernandez, Melissa)

bUNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

LOUIS RIDGEWAY,
Plaintiff,

:
:
:
v.
:
:
:
ROYAL BANK OF SCOTLAND GROUP and :
RBS GLOBAL BANKING AND MARKETS,
:
Defendants.
:

CIVIL ACTION NO.
3:11-cv-976 (VLB)

May 13, 2013

MEMORANDUM OF DECISION DENYING DEFENDANT’S [DKT. #64] MOTION TO
WITHDRAW JUDICIAL ADMISSIONS, DENYING IN PART AND GRANTING IN PART
DEFENDANTS’ [DKT. #65] MOTION FOR SUMMARY JUDGMENT, AND DENYING
[DKT.# 104] PLAINTIFF’S CROSS MOTION FOR SUMMARY JUDGMENT
Plaintiff Louis Ridgeway (“Ridgeway”) brings this action for damages
against the Defendant Royal Bank of Scotland Group and its subsidiary RBS
Global Banking and Markets (referred herein as “RBS”) relating to his termination
from RBS after having been on leave for medical treatment. Pending before the
Court is RBS’s motion to withdraw two judicial admissions under Fed. R. Civ. P.
36(b) and its motion for summary judgment on Ridgeway’s Family and Medical
Leave Act claims, 29 U.S.C. §2601 et seq. (“FMLA”), promissory estoppel and
negligent misrepresentation claims as well as Ridgeway’s cross- motion for
summary judgment on these claims.1 For the following reasons, the Court
1 Ridgeway’s promissory estoppel and negligent misrepresentation claims are

also predicated on Ridgeway’s assertion that he was provided with
misinformation regarding both the Federal FMLA and Connecticut’s Family and
Medical Leave Act (“CTFMLA”). The present action does not contain a claim
under the CTFMLA as there is an exhaustion of administrative remedies
prerequisite to bringing a CTFMLA action. Ridgewayis in the process of
exhausting those administrative remedies as the Connecticut Department of
Labor is currently investigating his complaint that RBS violated the CTFMLA.
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denies RBS’s motion to withdraw two judicial admissions, denies in part and
grants in part RBS’s motion for summary judgment and denies Ridgeway’s crossmotion for summary judgment.
Facts
The following facts are undisputed unless otherwise noted. In 2008, RBS
acquired ABN AMRO where Ridgeway was employed. [Dkt. #65, Def. Local Rule
56(a)1 Statement, ¶2]. At that time, Ridgeway began working in RBS’s Global
Banking & Markets (“GBM”) offices, a subsidiary of RBS, as a secondee. Id. at
¶¶2-3. RBS gave secondees, such as Ridgeway, credit for their service with their
prior employer to satisfy eligibility criteria for benefits, including FMLA leave. Id.
at ¶6. As a secondee, Ridgeway received GBM’s employment policies in 2008. Id.
at ¶7. On June 22, 2009, Ridgeway received a letter offering him employment
effective July 13, 2009. Id. at ¶9. The letter informed Ridgeway that “you will
have access to all of our policies and procedures when you join us on the
Group’s intranet or from your line manager [and that] [y]ou must familiarize
yourself with them and you agree to be bound by them.” Id. at ¶10. Ridgeway
was an at-will employee. Id. at ¶¶11-12.
GBM’s FMLA policy, which was maintained on its employee intranet
website, stated: “[e]ligible employees may take up to 12 weeks of leave during a
rolling 12-month period. A rolling 12-month period is measured backward from
the date an employee uses any leave under this policy. Employees who have
been on FMLA leave for their own serious health condition and whose FMLA
leave expires while they remain out of work during a continuing approves

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disability period will no longer have job protection…Once the employee has been
medically cleared to return to work and provides a release from their doctor, they
will have 45 days to secure another position within the Company…Employees
who have not found a position within 45 days of their release to return to work
will be considered as having terminated their employment.” Id. at ¶14. RBS’s
personnel manual states, “this policy provides guidance and may not be relied
upon by employees as establishing any particular terms and conditions of
employment. This policy is not intended as and does not create, either expressly
or by implication an employment agreement. Any policy of RBS is subject to
change at any time at the sole discretion of RBS.” [Dkt. #105, Pl. Local Rule
56(a)1 Statement, ¶31]. GBM always was, and continues to be, on a rolling 12
month period for FMLA calculation and therefore never changed its policy during
the relevant time period. [Dkt. #65, Def. Local Rule 56(a)1 Statement, ¶16]. Other
RBS subsidiaries for which Ridgeway never worked changed from a calendar
method to a rolling method in January 2010. Id. at ¶17. Ridgeway had access to
these policies while he was employed at GBM. Id. at ¶19.
Hewitt LLC (“Hewitt”) is a third-party which administers RBS’s (including
GBM’s) leave policies. Id. at ¶22. Employees can contact Hewitt through an 800
number which connects to RBS’s HR Shared Services in Rhode Island. Id. at ¶24.
The contract between Hewitt and RBS provides that employees contact Hewitt via
phone to initiate FMLA leave. [Dkt. #106, Ex. 4, at Bates JL003152]. Hewitt
“verifies employee’s eligibility, any applicable state laws, and if the request is for
a qualifying reasons.” Id. Hewitt then “sends FMLA confirmation letter with CHP

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form to employee.” Id. Hewitt “notifies client designee vie email of the employee
intent to take leave” and “employee returns completed CHP form” to Hewitt for
“approval/denial.” Id. Hewitt will also “review request for both continuous and
intermittent leave” and will send “FMLA approval or denial letter to employee.”
Id. When an employee has exhausted his job protection, a GBM HR Business
Partner, not Hewitt, will send a letter directly to the employee informing him or
her of this. [Dkt. #65, Def. Local Rule 56(a)1 Statement, ¶25]. When RBS
employees call the HR Service Center, they are instructed to choose an option for
their inquiry, and once they select the prompt for medical leave, employees are
directly connected to Hewitt. [Dkt. #105, PL. Local Rule 56(a)1 Statement, ¶29].
RBS’s FMLA policy in its personnel manual states that “policy questions should
be addressed to employees’ managers or to the HR Service Center.” Id. at ¶32.
In May 2009, Ridgeway had gallbladder surgery, which required him to take
medical leave. Id. at ¶35. Ridgeway requested and was granted a leave of
absence under the FMLA and the CT FMLA. Id. at ¶36. Hewitt confirmed its
approval of this request in a letter on RBS letterhead dated May 20, 2009. The
letter stated: “[t]his confirms that Leave Administration has received your request
for a family or medical leave of absence from 5/14/2009. We have conditionally
designated your leave as taken under the federal Family and Medical Leave Act
and/or applicable state leave(s), subject to review and approval of required
documentation. You are also eligible for short term disability (STD). If your STD
application is approved, your FMLA and/or applicable state leave(s) will be
automatically approved as authorized FMLA and/or applicable state leave(s)… if

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your leave is approved as authorized FMLA and/or applicable state leave(s), it will
be classified under the federal Family and Medical Leave Act (FMLA) FMLA and/or
applicable state leave(s) law(s) and your time off from work will reduce your
available FMLA and/or applicable state leave(s) balances.” [Dkt. #106, Ex. 12].
The letter further states that “[u]nder RBS’s FMLA leave policy colleagues can
take up to 12 weeks of unpaid, job-protected leave in a calendar year for certain
qualifying reasons if they have been employed for at least 12 months and have
worked 1,000 hours during the preceding 12 month period.” Id. The letter
provided that if your “leave is approved as authorized FMLA and/or applicable
state leave(s), you job will be protected under the FMLA and/or applicable state
leave(s)… If you return to work before job protection ends, you will be entitled to
be reinstated to the same or an equivalent job (with the same pay, benefits, and
conditions of employment) as if you had never gone on leave.” Id.
Lastly, the letter contained an attached document which instructed
employees to complete five steps to apply for a leave of absence. Step One: an
employee must review RBS’s applicable leave of absence policies; Step Two: call
Leave Administration to initiate your leave; Step Three: notify your manage of
your need for a leave; Step Four: if your STD application is denied in full or part,
you or your health care provider must send Leave Administration a completed
Health Care provider Certification Form; and Step Five: contact your manager and
your Human Resources Generalist and Leave Administration to confirm any
changes to your leave of absence. Id. The Parties dispute whether Ridgeway
followed the five steps. RBS contends that Ridgeway never went onto the RBS

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intranet to look for the leave policy. [Dkt. #65, Def. Local Rule 56(a)1 Statement,
¶34]. Ridgeway denies that he skipped Step One and avers that he reviewed the
policy with a Hewitt representative because they would have the most up to date
information but did not go online. [Dkt. #118, Pl. Local Rule 56(a)2 Statement,
¶34]. Ridgeway contends that he was also incapable of reviewing the policies
with his manager Koren Horsey as she has testified that she never read the
policy, discarded the policies sent to her and never referred to the internal
website. Id.
On October 5, 2009, Ridgeway fell at work and shortly thereafter contacted
RBS to request medical leave. [Dkt. #105, PL. Local Rule 56(a)1 Statement, ¶¶3839]. Ridgeway received a letter, dated October 13, 2009, from Hewitt on RBS
letterhead confirming that “Leave Administration ha[d] received [his] request for
family or medical leave of absence from 10/6/2009.” [Dkt. #106, Ex. 13]. The
letter stated that “[w]e have conditionally designated your leave as leave taken
under the federal Family and Medical Leave Act and/or applicable state leave(s),
subject to review and approval of required documentation.” Id. Again, the letter
stated that “[u]nder RBS’s FMLA leave policy colleagues can take up to 12 weeks
of unpaid, job-protected leave in a calendar year for certain qualifying reasons if
they have been employed for at least 12 months and have worked 1,000 hours
during the preceding 12 month period.” Id. The letter again provided that if your
“leave is approved as authorized FMLA and/or applicable state leave(s), you job
will be protected under the FMLA and/or applicable state leave(s)… If you return
to work before job protection ends, you will be entitled to be reinstated to the

6

same or an equivalent job (with the same pay, benefits, and conditions of
employment) as if you had never gone on leave.” Id. The letter further explained
that three days prior to Ridgeway’s expected return to work, he would be
“contacted by a Return to Work Advocate to confirm” he would be returning as
scheduled. Id. The letter indicated that if Ridgeway had not heard from a Return
to Work advocate within three days prior to his anticipated return to work date, he
should call an 888 number to discuss his return to work options with a Return to
Work Advocate. Id. The letter provided that “[i]f you have any questions about
your leave of absence, contact Leave Administration” and choose the prompt for
Leave of Absence. Id. The letter also contained the same attached document
outlining the five steps an employee should complete to apply for a leave of
absence.
At the end of October 2009, Ridgeway consulted with doctors regarding
undergoing spinal surgery. The parties dispute whether this surgery was
medically necessary at that time or was elective and could be postponed.
Ridgeway’s surgeon, John Bendo, M.D., declared in an affidavit that “Mr.
Ridgeway was referred to me in December 2009 to determine whether he was an
appropriate candidate for spinal surgery based on his back and neck injuries.”
[Dkt. #106, Ex. 15. Bendo Aff., ¶2]. Dr. Bendo stated that “[a]fter evaluating Mr.
Ridgeway, I informed him that spinal surgery could help to alleviate his neck pain.
I discussed the risks and benefits of the surgery with Mr. Ridgeway. And he
elected to have the surgery.” Id. at ¶¶3-4. Dr. Bendo declared that in his
professional opinion, he “did not believe that the surgery was required at that

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point, nor did [he] believe that it would become medically necessary at any later
point.” Id. at ¶5.2 Dr. Bendo informed Ridgeway that he had an opening on
December 3, 2009 to perform the surgery but that “he could cancel the surgery if
he did not receive authorization to take job-protected medical leave.”3 Id. at ¶¶78.
Ridgeway declared in an affidavit that “[b]ased on the medical advice, I
received from my doctors in the fall of 2009, I understood that spinal surgery was
elective. It was only necessary to the extent I wanted to alleviate my symptoms.”
[Dkt. #106, Ex. 14. Ridgeway Aff., ¶1]. Ridgeway testified in his deposition that
another Doctor, Dr. Baron, upon review of his MRI, stated “that I might need
surgery in his opinion and gave me the name of some surgeons to see. I did not
know those surgeons, so I saw my own surgeon, Dr. Bendo.” [Dkt. #106, Ex. 2,
Ridgeway Dep., p. 89]. Ridgeway further testified that when he met with Dr.
2 RBS objects to this portion of Dr. Bendo’s affidavit arguing that Dr. Bendo’s

opinion was “unsupported by any contemporaneous notes regarding Mr.
Ridgeway” and cannot be considered as it contains conclusory allegations,
opinions, argument and legal conclusions which are prohibited in affidavits in
support of or opposition to summary judgment motions. [Dkt. #116, Def. Mem.,
p.21] (citing Lachira v. Sutton, No.3:05-cv-1585(PCD), 2007 WL 1346913, at *4-5
(D. Conn. May 7, 2007)). RBS correctly points out that conclusory statements and
legal conclusions are prohibited in affidavits supporting or opposing summary
judgment, however, Dr. Bendo’s expert opinion as to the medical necessity of the
surgery is neither conclusory nor a legal conclusion, but testimony well within
his knowledge and expertise and clearly based on his contemporaneous medical
evaluation and treatment of Ridgeway despite the fact that Dr. Bendo did not
record this opinion in a treatment note. Further, the case that RBS relies on is
not relevant as the Lachira court struck generalized and conclusory statements
made in the plaintiff’s own affidavit as opposed to statements made in a medical
expert’s affidavit.
3 RBS objects to this portion of Dr. Bendo’s affidavit as inadmissible hearsay.

However, Dr. Bendo’s testimony that he told Ridgeway that he could cancel the
surgery is not hearsay because it is not offered to establish that Ridgeway’s
surgery could be cancelled, but rather to show Ridgeway’s state of mind.
8

Bendo they discussed the options available to him which were to “wait and see,
have some physical therapy, see if it got better, possibilities of surgery, the whole
situation from the wait-and—see through surgery.” Id. at 90.
RBS points out that Ridgeway alleges in his complaint that “[a]fter
completing a course of physical therapy during October and November of 2009,
Ridgeway’s doctor informed him that his neck and back injury required surgery.”
[Dkt. #1, Compl., ¶23]. Ridgeway also alleged that “[o]n or about December 1,
2009, Ridgeway was informed that his orthopedic surgeon had an opening to
perform the surgery he needed on December 3, 2009.” Id. at ¶24. “On a motion
for summary judgment, however, allegations in an unverified complaint cannot be
considered as evidence.” Continental Ins. Co. v. Atlantic Cas. Ins. Co.,
No.07Civ.3635(DC), 2009 WL 1564144, at *1n.1 (S.D.N.Y. June 4, 2009) (citing
Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir.1995)). The Court will therefore not
rely on any disputed allegations not supported by evidentiary materials.
RBS also points to Ridgeway’s representations that he requested leave to
“undergo necessary neck surgery” to the Connecticut Department of Labor
regarding his CT FMLA claim. [Dkt. #65, RSB Local Rule 56(a)1 Statement, ¶38
and RBS Ex. 36 – manually filed]. In addition, Ridgeway stated in a June 30, 2010
appeal of the denial of an extension of his short-term disability that he “needed
cervical fusion surgery.” [Dkt. #65, RSB Local Rule 56(a)1 Statement, ¶39 and
RBS Ex. 33 – manually filed]. In a taped phone call on November 27, 2009,
Ridgeway told RBS Shared Service: “I had an intermediate approval [for STD

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benefits] as I was going to see a surgeon and then the surgeon dictated surgery
was needed.” [Dkt. #65, RSB Local Rule 56(a)1 Statement, ¶40].
On or about November 18, 2009, Ridgeway contacted Hewitt regarding
additional medical leave. A summary of the communications between Ridgeway
and Hewitt produced by Hewitt (the “Timeline”) indicates that on November 18,
2009, Ridgeway “called to advise extension [of medical leave] needed.” [Dkt.
#106, Ex. 17, Hewitt Timeline].4 The Timeline further provided that on November
24, 2009, Short Term Disability (“STD”) “extension approved by Liberty Mutual”
and that there was approval of disability through 12/03/09. Id. On November 25,
2009, “Leave approval noticed mailed, Approval DC sent and STD w/ FMLA and or
State Leave approval email sent.” Id.
Ridgeway called Hewitt on December 1, 2009 inquiring about further
medical leave. Hewitt recorded this call with Ridgeway. However when RBS
contacted Hewitt to obtain a copy of the recording during the course of this
litigation, Hewitt informed RBS that it no longer had a copy of this recording or
any recording between Plaintiff and its representative. [Dkt. #63, RBS Mem., p.2].
4 Hewitt produced two different Timelines regarding Ridgeway’s communications

with them which the Court has reviewed. Where the Timelines have differed the
Court has included both accounts in its statement of undisputed facts. See [Dkt.
#106, Exs. 16-17]. Although the Defendant has not established a foundation that
these Timelines fall within the hearsay exception for records of regularly
conducted activity, it appears these Timelines fall squarely within that exception
as the Timelines reflect information transmitted by someone with knowledge,
kept in the course of regularly conducted activity, and maintaining such records
appear to be the regular activity of the company to create and maintain
contemporaneous summaries of its claim processing activities. Fed. R. Evid.
803(6). Further as Ridgeway has not objected to the admissibility of the
Timelines, the Court deems them admissible.

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In response to Ridgeway’s requests to admit regarding the December 1
call, RBS admitted that (1) “[i]n the conversation with Hewitt Associates on or
about December 1, 2009, Hewitt granted Ridgeway’s FMLA leave to begin on
January 1, 2010” and (2) “[i]n December of 2009, Hewitt granted Ridgeway an
FMLA leave to begin on January 1, 2010 and to run for twelve weeks.” See [Dkt.
#64, Def. Mot. to Withdraw, p. 2-3]. RBS indicated that it made this admission on
the basis of one of Hewitt’s Timelines in addition to the recollection of HR
professionals who spoke with Hewitt representatives. RBS has subsequently
filed a motion to withdraw these admissions, which is currently pending before
the Court, on the basis of the summaries of this conversation as provided in the
Timelines and on the basis of an email summary of the recording by a Hewitt
employee who had listened to the recording of the call. RBS argues these
summaries made clear that Hewitt only advised Ridgeway that his CT FMLA
would refresh in January 2010 and not his FMLA. RBS argues that this additional
evidence proves that Ridgeway was never provided with incorrect information
regarding his federal FMLA entitlement.
Hewitt’s Timeline provided that that on December 1, 2009 Ridgeway “called,
representative advised colleague of his FMLA exhaustion and advised state leave
eligible through end of year, and advised that state leave renews in 2010.” Id. 5
Ridgeway testified that on December 1, 2009, he called HR Services to “verify my
FMLA [] protection.” [Dkt. #106, Ex. 2, Ridgeway Dep., p. 104]. Ridgeway
5 The other Timeline Hewitt provided indicated that on December 1, 2009:
“Colleague called in. Advice about FMLA exhaustion and advice about state
leave eligible thru the end of the year and renews in 2010.” [Dkt. #106, Ex. 16].
On 12/07/2009, “Comments: FMLA exhausted 12/4/09, EE will remain on STD thru
1/27/2010 and statute until 12/31/2009.” Id.

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testified that on December 1, 2009 he spoke with Eddie, a Hewitt representative,
and that “basically it was calling to see about FMLA coverage because I had
surgery scheduled, as I was told by the HR service representative I was covered
through FMLA and it renewed in January 2010. So I would have FMLA coverage
through April of 2010.” Id. at 110-113. Ridgeway further testified that he did not
recall discussing Connecticut FMLA during this call. Id. at 113. Ridgeway
explained that “I called the RBS HR Services to look into my FMLA coverage
because I had surgery scheduled. I was speaking with Eddie and he looked at my
ID, my policy, the RBS policy, and he looked through everything and he said that I
was covered and the RBS – I don’t recall if he said FMLA or CTFMLA, Federal or
Connecticut, as to which one or he may have stated both, I’m not sure, I don’t
recall that, [he] said I was covered through April 2010.” Id. at 114. Ridgeway
testified he believed Eddie told him that he was covered through “around April
22, 23, 24, that time range.” Id. Ridgeway declared that “I can’t tell you verbatim
but I did ask about job protection…[and] [h]e said I was covered under FMLA and
I had a job protection basically… through April 2010.” Id. at 115. Ridgeway
further testified that he believed that he discussed with Eddie that his FMLA had
expired because of the May and October leaves but that he was told that he was
“still covered” because “it renewed in January 2010, so coverage would go
straight through.” Id. at 117-118. He testified that “Eddie told me it refreshes on
an even year. I believe it happened in that conversation, it renewed on even years
and 2010 it would renew. Id. at 122-123. Ridgeway testified several times during

12

his deposition that he did not recall any distinction at all about the discussion
between the FMLA and CT FMLA. Id. at 115-116, 118.
On December 3, 2009, Ridgeway went forward with his surgery. [Dkt. #106,
Ex. 2, Ridgeway Dep., p. 123-24]. In a letter dated December 14, 2009, Hewitt on
RBS letterhead informed Ridgeway that his “request for a leave of absence has
been approved” and that his leave would be “classified as a leave under the
Family and Medical Leave Act (FMLA) and/or applicable state leave(s). All time
taken during your leave will be counted towards any FMLA and/or applicable
state leave(s).” [Dkt. #106, Ex. 22]. The letter further indicated that Ridgeway’s
request for “[c]ontinuous leave has been approved from 10/6/2009 to 12/31/2009.”
Id. The letter further indicated that when Ridgeway’s leave ended, he would have
“taken 480 hours (12 weeks of FMLA entitlement. That time will count against
[his] twelve week entitlement (in addition to any FMLA [] already used during this
12-month period).” Id.
In a letter dated December 15, 2009 on RBS letterhead, Hewitt “confirm[ed]
that Ridgeway’s family medical leave of absence has been approved from
10/6/2009 to 12/31/2009.” [Dkt. #106, Ex. 23]. Again they informed Ridgeway that
when the leave ends, “you will have taken 480 hours (12 weeks) of FMLA
entitlement. That time will count against your 12-week entitlement (in addition to
any FMLA you have already used during this 12-month period).” Id.
Around the end of January 2010, Ridgeway received a letter dated January
25, 2010 from Dawn Hughes, a RBS Human Resources representative, which
stated that the “purpose of his letter is to provide you with important information

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regarding your employment status. Your Family Medical Leave allowance has
exhausted as of January 1, 2010 and your position as a Senior Operations
Analyst has been put into the posting process / is no longer available. Please
note your employment will remain in force so long as your Disability claim is
approved. Should you have any questions, please feel free to contact HR
Services at 888-394-9675.” [Dkt. #106, Ex. 24]. RBS contends that Ridgeway
should have called the 888 number provided for a Return to Work advocate in
Hughes’s letter or called Hughes directly but instead chose to call the HR Service
Center, which was manned by Hewitt Representatives. [Dkt. #65, RBS Local Rule
56(a)(1) Statement, ¶¶56-62].6
On February 17, 2010, Ridgeway contacted the HR Service Center.
Ridgeway testified that “I called RBS HR Services about the letter I received from
Dawn Hughes. I was told this letter was incorrect, that I was covered under the
Medical Leave and that I was covered through April. I believe I asked them to
contact Dawn Hughes and I believe I was told they would contact Dawn Hughes
and inform her of this… we spoke about the job protection. I asked about that
since she said the job was gone. They said since I was covered under the policy,
that I still had my job, my job protection was in tact.” [Dkt. #106, Ex. 2, Ridgeway
Dep., p. 140-141, 148-49, 150-51]. Hewitt’s Timeline indicated that Ridgeway
6 RBS repeatedly stresses that Ridgeway failed to call the number provided in

Hughes’s letter and instead called Hewitt through the HR Service Center in its
motion for summary judgment. However, it is unclear how this fact relates to any
of Ridgeway’s claims at issue. It was not unreasonable for Ridgeway to contact
Hewitt at the HR Service Center in February after receiving Hughes’s letter to
confirm its previous statement that he had medical leave eligibility and in light of
the fact that RBS’s FMLA policy instructs that policy questions be addressed to
the HR Service Center.
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“called to inquire on job protection” on February 17, 2010. [Dkt. #106, Ex. 17].
The Timeline provided a call summary which indicated:
Mr. Ridgeway contacted Leave Admin to verify a letter he received from
Liberty mutual, he wanted to know when STD ends, and the call taker
confirmed he was approved at that time through 2/25/2013 for STD. He
wanted to know when his 26 weeks would end, the represented advised we
do not have that information he would need to speak with Liberty Mutual.
He said he spoke with RBS and was told that everything would start over at
the beginning of the year and wanted to know if there was a difference
between their policy (Liberty Mutual) and our policy, the representative
advised there is a difference between STD and job protection the
representative advised it is job protection that would refresh at the
beginning of the year, not STD. Mr. Ridgeway then had a question if his
STD turns into LTD is he still guaranteed a position within the company.
The representative advised STD and LTD had nothing to do with job
protection and advised he was eligible for job protection to 4/22/2010 and
after that date RBS was no longer required to hold his position.
Id.
In early April 2010, Ridgeway received a letter dated March 31, 2010 from
Hewitt on RBS letterhead stating that “[t]his confirms that Leave Administration
has received your request for a family or medical leave of absence from
1/1/2010.” [Dkt. #106, Ex. 26]. The letter further provided that “[w]e have
conditionally designated your leave as leave taken under the federal Family and
Medical Leave Act (FMLA) and/or applicable state leave(s), subject to review and
approval of the enclosed Health care Provider Certification form, Leave
Administration will notify you by letter when a determination has been made. If
your leave is approved as authorized FMLA and/or applicable state leave(s), it will
be classified under the federal Family and Medical Leave Act (FMLA) and/or
applicable state leave(s) law(s) and your time off from work will reduce your
available FMLA and/or state family medical leave(s) balances.” Id. The letter for
the first time stated that “[u]nder RBS’s FMLA leave policy colleagues can take

15

up to 12 weeks of unpaid, job-protected leave in a rolling backward twelve month
period for certain qualifying reasons if they have been employed for at least 12
months and have worked 1000 hours during the preceding 12 month period.” Id.
The letter further explained that three days prior to Ridgeway’s expected return to
work, he would be “contacted by a Return to Work Advocate to confirm” he
would be returning as scheduled. Id.

The letter indicated that if Ridgeway had

not heard from a Return to Work advocate within three days prior to his
anticipated return to work date, he should call an 888 number to discuss his
return to work options with a Return to Work Advocate. Id. Lastly, the letter
indicated that “[i]f you have any questions about your leave of absence, contact
Leave Administration” and choose the prompt for Leave of Absence. Id. In
addition, this letter also contained the same attached document outlining the five
steps an employee should complete to apply for a leave of absence. Id.
On April 5, 2010, Ridgeway contacted the HR Service Center again.
Hewitt’s Timeline provides that on April 5, 2010, a “Leave case manager
commented [Ridgeway] is not FMLA eligible but state leave eligible as state does
refresh every 24 months on a calendar year. FLMA closed and waiting for
instructions from unit manager to close the leave and possible process a closed
DC.” [Dkt. #106, Ex. 17]. The other Hewitt Timeline provides that on April 5, 2010,
“Out Bound Call to advise colleague that he is STATE eligible...not FMLA
eligible…initiated proper leave. Colleague is not FMLA eligible BUT he is STATE
eligible as STATE does refresh every 24 months on a calendar year… FMLA
closed and awaiting instruction from DORI to close the leave and possibly

16

process a closed DC.” [Dkt. #106, Ex. 16] (emphasis in the original). On April 6,
2010, the Timeline indicated that “FMLA closed due to not eligible. State Leave.
Pending DC sent for state leave. Confirmation of FMLA and/or applicable state
leave sent. FLMA or applicable state leave application notice email sent.” [Dkt.
#106, Ex. 17].
Ridgeway then received a letter dated April 7, 2010 from Hewitt on RBS
letterhead stating that “[t]his confirms that Leave Administration has received
your request for a family or medical leave of absence from 1/1/2010. We have
conditionally designated your leave as leave taken under the federal Family and
Medical Leave Act (FMLA) and/or applicable state leave(s), subject to review and
approval of the enclosed Health Care provider Certification form. Leave
Administration will notify you by letter when a determination has been made.”
[Dkt. #106, Ex. 27]. The letter again provided that “[i]f your leave is approved as
authorized FMLA and/or applicable state leave(s), it will be classified under the
federal Family and Medical Leave Act (FMLA) and/or applicable state leave(s)
law(s) and your time off from work will reduce your available FMLA and/or state
family medical leave(s) balances.” Id. The letter also stated that “[u]nder RBS’s
FMLA leave policy colleagues can take up to 12 weeks of unpaid, job-protected
leave in a rolling backward twelve month period for certain qualifying reasons if
they have been employed for at least 12 months and have worked 1000 hours
during the preceding 12 month period.” Id. The letter further explained that three
days prior to Ridgeway’s expected return to work, he would be “contacted by a
Return to Work Advocate to confirm” he would be returning as scheduled. Id.

17

The letter indicated that if Ridgeway had not heard from a Return to Work
advocate within three days prior to his anticipated return to work date, he should
call an 888 number to discuss his return to work options with a Return to Work
Advocate. Id. Lastly, the letter indicated that “[i]f you have any questions about
your leave of absence, contact Leave Administration” and choose the prompt for
Leave of Absence. Id. Again, the letter contained the same attached document
outlining the five steps an employee should complete to apply for a leave of
absence. Id.
On April 9, 2010, Ridgeway contacted Dawn Hughes. During this call,
Hughes learned for the first time about Ridgeway’s December 1 call with Hewitt
and that Ridgeway believed he was on job-protected leave on the basis of his
communications with Hewitt. [Dkt.# 65, RBS Local Rule 56(a)1 Statement, ¶60;
Hughes Dep., p.86-87]. Ridgway also called the HR Service Center that same day.
Hewitt’s Timeline provides that on April 5, 2010, Ridgeway “called to confirm he
was state eligible. Call taker advised colleague he is state leave eligible and went
over process. [Ridgeway] advised he would have forms sent to Leave Admin
ASAP. [Ridgeway] also advised Dawn Hughes contacted him from RBS to advise
that he is not eligible for any leave. Leave Admin advised [Ridgeway] we will
confirm and if there is any further information we would let him know.” [Dkt.
#106, Ex. 17].
On April 13, 2013, Ridgeway called the HR Service Center again and left a
message. The Timeline provides that Hewitt employees were instructed on April
13, 2013 that if Ridgeway calls back “DO NOT ADVISE ON CT FMLA – Provide the

18

following: We are currently working with RBS/GBM to review CT FMLA and
discussing with them internally once we have received follow up from RBS/GB
(24-48 hrs) we will contact to advise. Again do not provide any information
except what is listed above.” [Dkt.#106, Ex. 16] (emphasis in the original). The
Timeline indicated that Ridgeway did call back on April 13, 2010 and “wanted
[Hewitt] to provide him with information based on a hypothetical, [Hewitt] advised
again that [they were] unable to provide any additional information other than
what [was] provided and as soon as [they] have received the follow up from
RBS/GBM he will be contacted.” Id. Later that day, the Timeline provides that
Ridgeway called again and was “advised that he has always been in rolling 12
month tracking method and that state is under review.” Id.
On April 13, 2010, Ridgeway also contacted the Connecticut Department of
labor (“CTDOL”) regarding his medical leave. [Dkt. #105, Pl. Local Rule 56(a)1
Statement, ¶84]. On April 14, 2010, the CTDOL contacted RBS. Id. at ¶89.
On April 15, 2010, RBS communicated to Hewitt that “CT state leave will be
calculated using the rolling back method. State leave will be denied and a denial
letter sent.” [Dkt.#106, Ex. 16]. Hewitt called Ridgeway to advise him “per the
client, CT FMLA will be calculated using the rolling back method just as his
federal FMLA is calculated. The state leave will be denied and a denial letter will
be sent within the next 24-48 business hours.” Id. The Timeline also indicates
that Hewitt advised Ridgeway to follow up with Dawn Hughes at RBS. Id.
On April 16, 2013, Ridgeway called Hewitt and spoke with Ebonie Henry a
Project Manager at Hewitt. Ridgeway recorded this April 16, 2013 phone call and

19

provided the court with a transcript of the call. [Dkt. #106, Ex. 20]. The call
transcript provides that Ridgeway informs Ebonie that he spoke with Yvonne last
night and Brenda this morning and that “[n]iehter one told me anything specific
other than my FMLA was denied. I asked about policy. No one will speak to me
about anything else.” Id. Ebonie replies that “RBS did get back with us to advise
us that the Connecticut FMLA will be treated just as the Federal FMLA, which is
going to be calculated on a rolling back, not a calendar year. So based on that
being calculated as a rolling back, you did not have any entitlement available to
you.” Id.

Ridgeway asks “everyone else I’ve spoken to: Eddie, Caroline,

everyone else was incorrect as to what they stated?” Id. Ebonie tells Ridgeway
that “[t]hat information was incorrect based on what we currently have on file.
But we verified with RBS that it is actually on a rolling back period to match the
Federal.” Id.

Ebonie explains that Ridgeway was provided with incorrect

information and what happened “was once we sent the information over [to RBS],
we received notification back that based on the population that you are under for
RBS, the state FMLA would be rolling back. So that’s what we had to confirm
with RBS…Because there were several policy changes within the last 12 months
for RBS. So the information we had at that time was based on – we were
previously calendar year. RBS did confirm no, that this population is rolling
back.” Id.

Ebonie further explains that “when the state information was entered

to us [from RBS], it wasn’t changed, it didn’t show that it would mirror, basically
the Federal FMLA information... we did not have the information [that Ridgeway’s
population was calculated on a rolling back basis] in our system.” Id.

20

Ridgeway called Ebonie again on April 16, 2010 and recorded that second
conversation. Ridgeway asked if Ebonie can see the notes of his prior
conversation with Hewitt back in November or December. [Dkt. #106, Ex. 19].
Ebonie informed him that she can “look at” and “review” the calls for him. Id.
Ridgeway tells Ebonie he spoke with Dawn Huges who told him that “my FMLA
expired in December, and unless I can produce to her that I was told prior to the
end of December, I basically had 45 days to find a job, if not I will be terminated.
Now, if I can produce to her something stating that, they may reconsider my
termination and find me a position. But I need to show her something.” Id.
Ebonie tells Ridgeway that she cannot listen to the recorded calls with him but
she can listen to the call and then “provide that information over.” Id. Ebonie
tells Ridgeway that she will listen to the call and follow up with Dawn Huges but
that she cannot provide Ridgeway with a synopsis of the call directly. Id.
Ebonie sent Dawn Hughes an email regarding the phone conversations she
had with Ridgeway on April 16, 2010. [Dkt. #106, Ex. 18]. Ebonie wrote in the
email that “I want to provide you with follow [up] on my 2 conversations with
Louis Ridgeway. I spoke with Mr. Ridgeway this morning in which I advised him
CT FMLA is calculated using the rolling back method, I explained to him the
miscommunication of the information by our department in which he was advised
it was calculated on a calendar year. Mr. Ridgeway did state on the call that had
he been made aware that he wouldn’t have job protection he may have been able
to convince his docter to allow him to return to work, he wanted to know what
would happen to his employment status due to the miscommunication of

21

information. I advised him to follow up with you to discuss employment status
going forward.” Id. Ebonie further informed that “Mr. Ridgeway called back at
approximately 11:30am and advised that he had spoken with you and you advised
him that if he can find proof that he was told by Leave Administration prior to
January 2010 that his CT FMLA would refresh in 2010 his employment status may
be reconsidered, otherwise he would have 45 days to find a new job. I confirmed
we did speak with him on 12/1/2009 in reference to his FMLA and State FMLA
entitlement, I would listen to the call and provide you with the information [once]
it was reviewed. He asked to listen to the call I advised him we could not listen to
the call together, he then asked for a synopsis of the call I advised that other than
what I had told him above I couldn’t discuss the call any further, however, I would
provide you with the information and let him know when I sent the information to
you for follow up. Mr. Ridgeway also attempted to get me to say since he was
advised that he did have job protection beginning in January 2010 he should have
felt that he didn’t have anything to worry about – I advised him that I could not
speak to how he should have felt based on the conversation, but could advise
that an entitlement conversation did take place at that time. I have listened to the
12/1/2009 incoming call from Ridgeway in which he spoke with one of our
representative, the representative did advise him on the call that his CT FMLA
would refresh in January 2010, he would have the full 16 weeks of entitlement and
therefore would have job protection.” Id.
Ridgeway then called Ebonie back a third time on April 16, 2010. Ebonie
emailed Dawn Hughes regarding that third call. Ebonie informed Dawn Hughes

22

that Ridgeway told her that he “would no longer have a position within RBS in 45
days and he did not think that it was fair based on him receiving incorrect
information, he also stated that you advised if the information he received in the
letter was incorrect he did not call to say the information was incorrect. He stated
that he called the Leave Administration department and wanted to know if he had
leave or FMLA question he should call our department. I advised Leave
Administration is the correct department to call in regards to leave policy i.e.
FMLA, however if he received a letter and it advises otherwise he should follow
those instructions or if he has any questions on employment status, termination
surrounding return to work he needs to speak with RTW advocates.” Id. Ebonie
sent one last email to Dawn Hughes on April 16, 2010 stating that “[a]s we
discussed on the phone call today, we will refer Mr. Ridgeway directly to you
should he contact Leave Administration to keep the conversation consistent.”
Ebonie in the email also provided Hughes with the summary of the 2/17/2010
phone call Ridgeway had with Hewitt in which he was told that because state
leave refreshed he had job protection until April.
Ridgeway left Hughes a voicemail in April 2010 in which he stated that “I
just spoke with Ebony who verified and she will be sending you information, she
verified that on December 1, 2009 I called the leave administration asking about
FMLA and CT state FMLA leave and renewing and she stated that based on the
information that everyone was using I would have been advised that on this
December 1 call that CT FMLA would renew on January 1.” [Dkt. #89, Ex. L, MP
Decl., ¶14d].

23

On April 19, 2010, Ridgeway spoke with Dawn Hughes and recorded that
conversation. Dawn Hughes tells Ridgeway “there’s a few things to clarify. One
is, the letter that was sent to you in January which confirmed that your
Connecticut job – under the state of Connecticut – that job protection is
exhausted, is in fact the case. I know that there was some confusion when you
were talking to Leave Administration as to when the FMLA days get renewed...
There was uncertainty given to you through Leave Administration, in which I’ve
clarified and it’s unfortunate that you were given false hope, but nonetheless, we
do, in fact, manage to the rolling calendar.” [Dkt. #106, Ex. 29]. Dawn Hughes
further explains to Ridgeway that “usually what happens in other cases similar to
this is, you can actually look for a new job within the firm for a period of up to 45
days. I’m happy to pass you on the job websites, and there will be that grace
period for you to look for a new job within the firm. But there is no guarantees
around your particular job because that job protection was exhausted...your job
protection was exhausted in December.” Id.
On April 22, 2010, Ridgeway had a conference call with Hughes and Ronnie
Greenberg another representative In RBS’s Human Resource Department which
he recorded. [Dkt. #106, Ex. 30]. Greenberg tells Ridgeway that “[w]hile I do
understand that the service – the people to whom we outsource FMLA
unfortunately have provided you with some information that is incorrect –which, I
agree – I can understand why that is unfortunate, and we certainly wish that
didn’t happen. Now, to confirm, the actual policy for FMLA in Connecticut is that
it works on a rolling basis, not the 1st of the calendar year. So in your particular

24

situation, your FMLA would have been completed or exhausted on December 31st.
So we were correct to send you a letter stating that, and again, the people that we
outsource to would have been incorrect to tell you that it was not
exhausted…normally what we would do is we would send you that letter, and you
would have 45 days where you would not get paid, where you would have an
opportunity to see if there was a job at RBS for you. Once you were given your
return to work note from the doctor.” Id. Ridgeway states that “I did everything I
was told by RBS, whether outsourced or not, and I was told that everything I was
doing was correct.” Id. Greenberg responds that “I do understand that,
however, at the end of the day, there isn’t a role for you. Your role is not available
any more. You did use the FMLA benefit …and had you not exhausted it, and if it
started on the calendar year, you would have – I guess in your mind you would’ve
had another four moths that you can be out from work. And there’s just simply
no way we’re gonna have an employee out eight months in a row and we’re
gonna hold their job open for them. We’re not in a position to be able to do that.”
Id.
The Parties dispute whether and when Ridgeway could have returned to
work after his surgery. Ridgeway asserts that he could have returned to work as
early as February 2010. [Dkt. #105, Pl. Local Rule 56(a)1 Statement, ¶98]. He
declared that “I would have informed my doctors that I was willing and able to
deal with the pain and that I was ready to return to work at any point in February,
March or April 2010.” [Dkt. #106, Ex. 14, Ridgeway Decl., ¶2]. Dr. Bendo declared
in an affidavit that “I would have not prevented Mr. Ridgeway from returning to

25

work at any point, if he reported that he was willing to work through the pain.”
[Dkt. #106, Ex. 15. Bendo Aff., ¶11]. Another doctor, Grant Cooper, M.D., who
treated Ridgeway after his surgery declared in an affidavit that “[a]s far as I was
concerned, if cleared by his spine surgeon then Mr. Ridgeway was permitted to
return to work at any point at which he said that he could manage the plain. I
would not have prevented Mr. Ridgeway from returning to work at any point in
January, February or March, if he represented that he was willing and able to deal
with his pain and of course with approval of his spine surgeon who would need to
give final medical clearance after a spine surgery.” [Dkt. #106, Ex. 33, Cooper
Aff., ¶¶6-7].7
RBS contends that Ridgeway could not return to work until April 19, 2010
and that by April 19 he could only work on a part time basis due to his medical
condition. [Dkt. #65, RBS Local Rule 56(a)1 Statement, ¶¶63-73]. RBS points to
Dr. Cooper’s and Dr. Bendo’s notes and testimony indicating that Ridgeway’s
recuperation period was taking longer than planned, that Ridgeway could not sit
for more than 20 minutes, and that he couldn’t concentrate because of his pain
7 RBS argues that these portions of Dr. Bendo’s and Dr. Cooper’s affidavits
contain inadmissible generalized and conclusory statements based on
impermissible assumptions. However as discussed above, Dr. Bendo and Dr.
Cooper’s testimony is not generalized and conclusory but well within their
expertise as medical doctors. Further it is well established that “as long as
expert's assumptions are not so unrealistic and contradictory as to suggest bad
faith,” arguments that the “assumptions are unfounded go to the weight, not the
admissibility, of the testimony.” Boucher v. U.S. Suzuki Motor Corp., 73 F.3d 18,
21 (2d Cir. 1996) (internal quotation marks and citation omitted). Courts have
“discretion under Federal Rule of Evidence 702 to determine whether the expert
acted reasonably in making assumptions of fact upon which he would base his
testimony.” Id. (internal quotation marks and citation omitted). To the extent that
RBS’s objection to such testimony is based on the fact that Ridgeway is post hoc
asserting that he would have reported lessened pain levels that would go to the
weight and not the admissibility of such testimony.

26

levels. Id. at ¶¶64-66. Dr. Bendo wrote that Ridgeway “has not achieved maximal
medical improvement at this time…He will need six to eight hours per day to
allow for physical therapy during the course of the day…He will return to work
part time on Monday April 19…He continues to take Lyrica and Vicodin on a daily
basis.” Id. at ¶¶67. Dr. Bendo also did not approve Ridgeway beginning physical
therapy until April and his fist therapy session was on April 14, 2010. Id. at ¶69.
The Parties also dispute whether on April 19, 2010 when RBS contends
Ridgeway’s doctors authorized his return to work, there were other positions for
which he was qualified available. [Dkt. #65, RBS Local Rule 56(a)1 Statement,
¶74]; [Dkt. #118, Ridgeway Local Rule 56(a)2 Statement, ¶74].

RBS contends

that it followed its FMLA policy by allowing Ridgeway 45 days after he was
medically cleared to return to work to seek another open position. [Dkt. #65, RBS
Local Rule 56(a)1 Statement, ¶79].
On June 8, Greenberg sent Ridgeway an email asking him to choose
between April 19 and June 4 as the date of his termination. Id. at ¶82. Ridgeway
choose April 19, 2010 because he had begun collecting unemployment on that
date. Id. at ¶83. On July 1, 2010, at Ridgeway’s request, Hughes sent Ridgeway a
termination letter stating that he had not been employed with RBS csicne April
19, 2010 and as of July 1, 2010 had no medical benefits through RBS. Id. at ¶84.
On October 15, 2010, Ridgeway filed a formal complaint with the CTDOL alleging
that RBS interfered with his rights under the CT FMLA and retaliated against him
for exercising those rights, which is still pending before the CT DOL. Id. at ¶¶8687.

27

A. Motion to Withdraw Admissions
RBS seeks to withdraw two judicial admissions it made in response to
Ridgeway’s requests to admit. On the basis of one of Hewitt’s Timelinea in
addition to the recollection of HR professionals who spoke with Hewitt
representatives, RBS made two admissions in response to Ridgeway’s requests
to admit that (1) “[i]n the conversation with Hewitt Associates on or about
December 1, 2009, Hewitt granted Ridgeway’s FMLA leave to begin on January 1,
2010” and (2) “[i]n December of 2009, Hewitt granted Ridgeway an FMLA leave to
begin on January 1, 2010 and to run for twelve weeks.” See [Dkt. #64, Def. Mot. to
Withdraw, p. 2-3]. RBS now argues that based on the audio tapes of the
conversations between Ridgeway and Ebonie from Hewitt and on the basis of
Ebonie’s emails to Dawn Hughes in which she recounted her recollection of the
December 1, 2009 recorded call to Hughes, it is clear that Ridgeway was only
advised on CTFMLA and not FMLA refreshing in January during that call.
Under Rule 36(b):
A matter admitted under this rule is conclusively established unless the
court, on motion, permits the admission to be withdrawn or amended.
Subject to Rule 16(e), the court may permit withdrawal or amendment if it
would promote the presentation of the merits of the action and if the court
is not persuaded that it would prejudice the requesting party in maintaining
or defending the action on the merits.
Fed. R. Civ. P. 36(b). “The prejudice contemplated by Rule 36(b) is not merely
that the party obtaining the admission must, as a consequence of the withdrawal,
prove the matter admitted but rather relates to difficulties the party may face in
proving its case, such as the availability of key witnesses.” Security Ins. Co. of
Hartford v. Trustmark Ins. Co., 217 F.R.D. 296, 298 (D.Conn. 2002). “‘Courts have

28

usually found that the prejudice contemplated by Rule 36(b) relates to special
difficulties a party may face caused by a sudden need to obtain evidence upon
withdrawal or amendment of an admission.’” Vandever v. Murphy,
No.3:09cv1752, 2012 WL 5507257, at *2 (D. Conn. Nov. 14, 2012) (quoting Am.
Auto. Ass'n (Inc.) v. AAA Legal Clinic of Jefferson Crooke, P.C., 930 F.2d 1117,
1120 (5th Cir.1991)).
In view of the fact that the recording of the December 1, 2009 call has been
destroyed, Ridgeway would clearly suffer prejudice as a consequence of the
withdrawal because he would now need to obtain evidence of the recording that
was destroyed. This is particularly prejudicial where RBS was aware of the need
to preserve the recording as early as February 2010 when Ridgeway responded to
Hughes’s letter placing Hewitt on notice that there was a dispute regarding his
FMLA entitlement and at the latest by April 2010 when Hughes learned that
Ridgeway had been provided with incorrect information by Hewitt and when
Hewitt emailed an account of the recorded call to RBS regarding Ridgeway’s
dispute. Lastly, the need to preserve the recording had clearly arisen when on
April 22, 2010, Greenberg, an RBS Human Resource representative,
acknowledged that Hewitt provided Ridgeway with incorrect information and told
him that it was “unfortunate” but that “we were correct to send you a letter
stating [that leave was exhausted]… the people that we outsource to would have
been incorrect to tell you that it was not exhausted.” [Dkt. #106, Ex. 30]. Further,
the Court is not persuaded that withdrawal would promote the presentation of the
merits as there is evidence in the record that lends credence to truthfulness of

29

the admissions such as the May 20, 2009 and October 13, 2009 letters Hewitt sent
on RBS letterhead, which expressly indicated that FMLA leave was calculated on
a calendar year basis. Further, the principal piece of evidence RBS relies on to
support its position that withdrawal is warranted is Ebonie’s email account of the
December 1 call to Hughes which is arguably inadmissible and self-serving
hearsay.
“Although an admission should ordinarily be binding on the party who
made it, there must be room in rare cases for a different result, as when an
admission no longer is true because of changed circumstances or through
honest error a party has made an improvident admission.” 8A CHARLES ALAN
WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2264
(2d ed.1987). Here, there is no indication that the admission is no longer true as a
result of Ebonie’s email which contained her third party account of the recorded
call. Moreover, because the recording has been destroyed there is no assurance
that either party can point to which would definitely establish what was actually
said during that call. Cf Sec. Ins. Co. of Hartford v. Trustmark Ins. Co., 217 F.R.D.
296, 298 (D. Conn. 2002) (granting motion to withdraw admission where later
discovered evidence demonstrated that the admission was clearly erroneous).
Withdrawal is therefore not appropriate where RBS’s allegedly later discovered
evidence does not clearly demonstrate that the prior admission was erroneous.
As the presentation of the merits would not be promoted by permitting
withdrawal and because Ridgeway would be prejudiced in defending this action
on the merits, the Court finds it would be inappropriate to permit RBS to withdraw

30

these two admissions and accordingly denies RBS’s motion to withdraw.
Further, had the admissions been allowed to be withdrawn, the Court would have
given the jury an adverse inference instruction, allowing the jury to infer that the
recordings contained evidence adverse to the Defendant’s interests.
B. Cross Motions for Summary Judgment
Legal Standard
The standard for deciding the cross-motions for summary judgment is
familiar. Summary judgment is appropriate only when "the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law." Fed. R. Civ. P. 56(a). No genuine disputes as to
any material fact exist, and summary judgment is therefore appropriate, when
"the record taken as a whole could not lead a rational trier of fact to find for the
non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986). A material fact is one which "might affect the outcome of the suit
under the governing law," and an issue is genuine when "the evidence is such
that a reasonable jury could return a verdict for the nonmoving party." Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). But "[c]onclusory allegations will
not suffice to create a genuine issue." Delaware & Hudson Ry. Co. v.
Consolidated Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990).
On cross-motions for summary judgment, the same standard applies. See
Morales v. Quintel Entm't, Inc., 249 F.3d 115, 121 (2d Cir. 2001). “The court must
consider each motion independently of the other and, when evaluating each, the
court must consider the facts in the light most favorable to the non-moving

31

party.” Natural Res. Def. Council v. Evans, 254 F. Supp. 2d 434, 438 (S.D.N.Y.
2003) (citing Morales, 249 F.3d at 121).
Analysis
I.

FMLA Interference Claims

Ridgeway asserts two factual predicates for his FMLA interference claim.
First, Ridgeway argues that RBS interfered with his FMLA rights by providing him
with misinformation regarding his entitlement to FMLA leave prior to his
December 3, 2009 surgery and that he was prejudiced because he could have
delayed his surgery until he would have been entitled to obtain additional FMLA
leave. Second, Ridgeway argues that RBS should be equitably estopped from
arguing that Ridgeway was not entitled to FMLA leave starting in January and
that RBS interfered with his FMLA rights by failing to reinstate him. RBS argues
that it only provided Ridgeway with incorrect information as to his entitlement to
CT FMLA leave and not federal FMLA leave. However as this Court has denied
RBS’s motion to withdraw those two judicial admissions, the admissions
“conclusively establish[]” that on December 1, 2009, Hewitt granted Ridgeway an
FMLA leave to begin on January 1, 2010 and to run for twelve weeks. See Fed. R.
Civ. P. 36(b). It is further undisputed that Hewitt also provided Ridgeway with
incorrect and misleading information regarding his entitlement to FMLA in the
May 20, 2009 and October 13, 2008 letters Hewitt sent on RBS letterhead, which
erroneously stated that FMLA leave was calculated on a calendar year basis
rather than on a rolling basis. As a result of these judicial admissions and of
these two letters, the Court therefore finds there are no facts in dispute as to

32

whether RBS told Ridgeway in December 2009 that he was entitled to additional
federal FMLA leave beginning in January 2010. RBS argues that even if
Ridgeway was provided with incorrect information regarding his entitlement to
federal FMLA leave in December, he was not prejudiced as his surgery could not
have been postponed and also because he was employed for twelve weeks in
2010 and was unable to return to work at the end of those twelve weeks.
The FMLA entitles eligible employees to “twelve workweeks per year of
unpaid leave, ‘because of a serious health condition that makes the employee
unable to perform the functions of the position of such employee.’” Sista v. CDC
Ixis North America, Inc., 445 F.3d 161, 174 (2d Cir. 2006) (quoting 29 U.S.C.
§2612(a)(1)(D)). Following such leave, the FMLA provides that the employee is
entitled to be restored to a position equivalent to that previously held, including
equivalent pay and benefits. 29 U.S.C. §2614(a)(1). A regulation promulgated by
the Secretary of Labor restricts an employee’s right to return to an equivalent
position following FMLA leave by providing that “[i]f the employee is unable to
perform an essential function of the position because of a physical or mental
condition, including the continuation of a serious health condition, the employee
has no right to restoration to another position under the FMLA.” 29 C.F.R.
§825.216(c). The FMLA “creates a private right of action to seek both equitable
relief and money damages against any employer . . . in any Federal or State court
of competent jurisdiction should that employer interfere with, restrain, or deny
the exercise of FMLA rights.” Nevada Dept. of Human Resources v. Hibbs, 538
U.S. 721, 724-25 (2003) (internal quotations and citations omitted).

33

“To establish an interference claim pursuant to 29 U.S.C. § 2615(a)(1), a
plaintiff need only prove that an ‘employer in some manner impeded the
employee's exercise of his or her right[s]’ protected provided by the FMLA.’”
Reilly v. Revlon, Inc., 620 F.Supp.2d 524, 535 (S.D.N.Y. 2009) (quoting Sista, 445
F.3d at 176). While the FMLA does not define the term “interference,” the United
States Department of Labor has promulgated a regulation explaining that
“‘[i]nterfering with’ the exercise of an employee’s rights would include, for
example, not only refusing to authorize FMLA leave, but discouraging an
employee from using such leave. It would also include manipulation by a covered
employee to avoid responsibilities under the FMLA.” 29 C.F.R. §825.220(b).
“Discouraging an employee from exercising rights protected by the FMLA can
amount to a denial of benefits in violation of the FMLA upon a showing that the
employer's purported acts of discouragement would have dissuaded a similarly
situated employee of ordinary resolve from attempting to exercise his or her
FMLA rights.” Tomici v. New York City Dept. of Educ., No.11-cv-2173, 2012 WL
6608510, at *13 (E.D.N.Y. Dec. 19, 2012) (internal quotation marks and citation
omitted).
Although the Second Circuit has addressed in several instances claims of
interference under the FMLA, it has not yet articulated or identified the standard
to be applied to interference claims. See Potenza v. City of New York, 365 F.3d
165, 168 (2d Cir. 2004) (declining to articulate the standard governing interference
claims where plaintiff’s case involved retaliation rather than interference); Sista,
445 F.3d at 176 (declining to articulate the standard to be applied to inference

34

claims where plaintiff failed to present evidence sufficient to substantiate either
claim). The weight of authority in the Circuit, as reflected in the decisions of
district judges in the Southern, Eastern, Northern and Western Districts of New
York, holds that in order to establish a prima facie case of interference in
violation of the FMLA a plaintiff must show that:
(1) [H]e is an “eligible employee” under the FLMA; (2) that [the
employer] is an employer as defined in [the] FLMA; (3) that [he]
was entitled to leave under [the] FMLA; (4) that [he] gave notice to
[the employer] of [his] intention to take leave; (5) that [he] was
denied benefits to which she was entitled under [the] FMLA. See
Higgins v. NYP Holdings, Inc., 2011 WL 6082702, at *9 (S.D.N.Y.
Dec. 7, 2011); Baker v. AVI Foodsystems, Inc., No. 10-CV-00159
(A)(m), 2011 WL 6740544, at *13 (W.D.N.Y. Dec. 6, 2011); Debell v.
Maimonides Med. Ctr., No. 09-CV-3491 (SLT)(RER), 2011 WL
4710818 (E.D.N.Y. Sept. 30, 2011); Leclair v. Berkshire Union Free
Sch. Dist., No. 1:08-CV-01354 (LEK/RFT), 2010 WL 4366897, at *5
(N.D.N.Y. Oct. 28, 2010).
Further, in Potenza, the Second Circuit acknowledged that claims of
interference and retaliation raise distinct causes of action under the FMLA. 365
F.3d at 167-68. The Second circuit explained that the McDonnell Douglas burdenshifting analysis from the Title VII only applies to FMLA retaliation claims
because the employer’s intent in such a claim is material. Id. at 168. Conversely,
the McDonnell Douglas analysis is not appropriately applied to interference
claims where intent is not material because “the question is simply whether the
employer in some manner impeded the employee’s exercise of his or her right.”
Id.
a. Interference with scheduling leave under the FMLA
Ridgeway contends that RBS’s incorrect information as to his FMLA
entitlement prevented him from structuring his leave to ensure it was covered
35

under the FMLA. As this Court explained in its prior decision on RBS’s motion to
dismiss, the Second Circuit has recognized the potential for an interference
cause of action premised upon “an employer’s failure to post a notice where that
failure leads to some injury.” Kosakow v. New Rochelle Radiology Assoc., 274
F.3d 706, 723-24 (2d Cir. 2001). Further, this Court explained in its decision on the
motion to dismiss that misleading or incorrect information regarding an
employee’s entitlement to FMLA leave can also interfere with an employee’s
attempt to exercise his or her rights under the FMLA if the employee was
prejudiced by the misleading or incorrect information. See Kanios v. UST, Inc.,
No. 3:03cv369 (DJS), 2005 WL 3579161, at *10-11 (D.Conn. Dec. 30, 2005) (denying
a motion for summary judgment on an interference claim on the basis that
plaintiff “may be able to prove that [the defendant] interfered with her FMLA
rights by intentionally overstating the amount of leave available to her,” thereby
misinforming her of when she needed to return to work in order to secure the
benefit of the right to reinstatement); see also Edwards v. Dialysis Clinic, Inc., 423
F.Supp.2d 789, 795–796 (S.D.Ohio 2006) (“An employer can be held liable for
interference with FMLA entitlements if it incorrectly advises an employee
regarding her leave rights” and if the error prejudiced the employee.); Schober v.
SMC Pneumatics, Inc., No. IP 99-1285-CT/G, 2000 WL 1911684, at *5 (S.D.Ind. Dec.
4, 2000) (“misleading or giving incorrect information to an employee by an
employer about the employee's FMLA rights or obligations constitutes
interference if the incorrect information causes the employee to forfeit FMLA
protection”); Mora v. Chem Tronics, Inc., 16 F.Supp.2d 1192, 1228-29

36

(S.D.Cal.1998) (“This Court holds that a Plaintiff can be discouraged from taking
absences whether or not s/he knows that such absences could be covered by the
FMLA as opposed to other arrangements an employer might make. The bottom
line is a Plaintiff is discouraged from doing something that he or she would like to
do, but does not do because of a lack of or misinformation.”); Spagnoli v. Brown
& Brown Metro, Inc., No.06-414(FLW), 2007 WL 2362602, at 12-13* (D.N.J. Aug. 15,
2007) (holding there were triable issues of fact on an FMLA interference claim “as
to whether Plaintiff was given reason to believe that her absence was deemed
covered under FMLA” where plaintiff was never given notice that she had
exceeded allowable FMLA leave and employer ensured her that her absence
would “have no impact on her job”).
Several facts support the conclusion that Ridgeway was given
misinformation concerning his medical leave benefits. RBS’s judicial admissions
establish that Ridgeway was orally misinformed on December 1, 2009 regarding
his FMLA entitlement. Further, Ridgeway was misinformed by the May 20, 2009
and October 13, 2009 letters Hewitt sent on RBS letterhead, which erroneously
stated that FMLA leave was calculated on a calendar year basis rather than on a
rolling basis. These errors were tacitly acknowledged by Hewitt and RBS. There
are therefore no disputed issues of fact as to whether Ridgeway was provided
with incorrect information regarding his federal FMLA entitlement in December
2009.8 RBS argues that even if Ridgeway was provided with incorrect
8 RBS also contends that Ridgeway’s belief that his FMLA leave was calculated

on a calendar year basis was unreasonable because its FMLA policy
unambiguously stated that FMLA leave was calculated on a rolling back basis
and that he failed to follow step one for applying for FMLA leave which directs
37

information regarding his federal FMLA leave which this Court has deemed
undisputed in light of the judicial admissions and on the basis of the May and
October 2009 letters, his claim for interference necessarily fails because he
suffered no prejudice as a result of the incorrect information. RBS argues there
is no prejudice because Ridgeway’s surgery was medically necessary and could
not be postponed. However the evidence in the record demonstrates that there is
a material dispute of fact as to whether the surgery was necessary and could be
postponed. Ridgeway’s own surgeon declared that in his professional opinion,
the surgery was not medically necessary and could have been postponed and
Ridgeway testified that he would have delayed the surgery if he had been
correctly informed he would have no job protected medical leave if he underwent
the surgery. Other courts have found prejudice and FMLA inference where an
employer impedes an employee’s ability to structure FMLA leave in such a way
that would have enabled an employee to receive FMLA protection. Conoshenti v.
Public Service Electric & Gas Co., 364 F.3d 135, 1443 (3d Cir.2004) (holding that
FLMA interference can be found where employer fails to give proper information
that would allow an employee to structure leave in a way that would have left
employee protected by the FMLA); Downey v. Strain, 510 F.3d 534, 541 (5th

employees to review the policy. However in view of the fact that the policy
expressly warns employees that it is merely “guidance,” should “not be relied
upon,” and is “subject is to change at any time at the sole discretion of RBS,” it
would not be unreasonable for Ridgeway to believe that Hewitt’s determination of
his FMLA eligibility was operative despite the policy’s language suggesting the
contrary. [Dkt. #105, Pl. Local Rule 56(a)1 Statement, ¶31]. The reasonableness
of Ridgeway’s belief is further underscored by the May 20, 2009 and October 13,
2009 letters Hewitt sent on RBS letterhead, which indicated that FMLA leave was
calculated on a calendar year basis.
38

Cir.2007) (“Downey proved that she was actually prejudiced by her employer's
noncompliance with the [notice] regulations: had she received individualized
notice, she would have been able to postpone her surgery to another FMLA
period”). As this Court previously held, Ridgeway’s theory that incorrect or
misleading information regarding FMLA leave entitlement which prevents an
employee from structuring his leave in a way to ensure he is protected under the
FMLA is a viable one as the incorrect information “impede[s] the employee's
exercise of his or her right[s]’ protected provided by the FMLA.’” Reilly, 620
F.Supp.2d at 535 (quoting Sista, 445 F.3d at 176). Ridgeway can therefore
demonstrate prejudice by showing he could have delayed his surgery until he
was entitled to additional FMLA leave and that it would not have been necessary
for him to take any FMLA leave during that period as a result of his medical
condition. See Downey v. Strain, No.Civ.A.04-2593-SS, 2005 WL 3541052, at *7
(E.D.La. Dec. 7, 2005). Consequently, there are triable issues of fact as to whether
Ridgeway was prejudiced by the incorrect and misleading information he
received, which precludes summary judgment in favor of either party on
Ridgeway’s FMLA interference claim.
In the alternative, RBS argues that Ridgeway’s FMLA interference claim
also fails because Ridgeway was employed by RBS for an additional 12 weeks in
2010 and was not able to return to work at the expiration of those 12 weeks in
March. RBS argues that Ridgeway did, in effect, receive all the FMLA leave he
would have been entitled to if RBS had calculated FMLA on a calendar year basis
and because he could not return at the end of those weeks he did not suffer any

39

prejudice. This argument is misplaced for several reasons. First, it was
happenstance that Ridgeway remained employed with RBS for more than 12
weeks after he had exhausted his FMLA entitlement in December under RBS’s
policy of calculating FMLA leave on a rolling back basis. In the letter dated
January 25, 2010 from Dawn Hughes, Hughes explains that Ridgeway’s position
was no longer available because he exhausted his FMLA leave but he remained
employed as long as his disability claim was approved. See [Dkt. #106, Ex. 24].
Therefore if Ridgeway’s Short Term Disability (“STD”) benefits had been
terminated prior to March 2010, Ridgeway would not have been employed with
RBS for a 12 week period in 2010. It is therefore disingenuous for RBS to argue
that Ridgeway actually received FMLA leave because he remained on the payroll
in excess of 12 weeks in connection with his entitlement to an entirely different
type of benefit.
Second, Ridgeway did not actually receive the benefit of an additional 12
week FMLA leave in 2010 as RBS contends because in January his job had been
put into the posting process and was no longer available. If Ridgeway had
actually received an additional twelve weeks of FMLA leave in 2010, RBS would
have not placed his position in the posting process in January or RBS would
have been required to provide him with an equivalent position once he returned
from leave. The Court therefore finds that the fact that Ridgeway was employed
by RBS in excess of 12 weeks in 2010 as a result of his disability claim is
irrelevant to this FMLA interference claim, which is predicated on interference

40

with Ridgeway’s ability to schedule FMLA leave. Accordingly, the Court denies
the Parties’ cross motions for summary judgment on this interference claim.
b. Interference based on failure to reinstate
Ridgeway argues that RBS should be equitably estopped from denying that
he was eligible for an additional twelve weeks of leave starting in January 2010
and therefore interfered with his FMLA rights when it refused to reinstate him to
an equivalent position after the expiration of the leave. The Second Circuit has
recognized in the context of FMLA claims that “the doctrine of equitable estoppel
itself may apply where an employer who has initially provided notice of eligibility
for leave later seeks to challenge that eligibility. Thus, future employees who rely
to their detriment upon the assurance of their employer that they qualify for leave
under the FMLA may have recourse to the doctrine of equitable estoppel.”
Woodford v. Community Action of Greene County, Inc., 268 F.3d 51, 57 (2d Cir.
2001). In view of the judicial admissions and the May and October 2009 letters
which establish that RBS provided notice to Ridgeway that he was FMLA eligible
beginning in January 2010, Ridgeway may have recourse to the doctrine of
equitable estoppel if he relied on that assurance to his detriment. RBS contends
there could be no detrimental reliance because Ridgeway could not have
postponed his surgery. However as discussed above, the Court has found there
are triable issues of fact as to whether his surgery could have been delayed. If
Ridgeway is able to establish that he relied to his detriment on Hewitt’s
representation that he has eligible for FMLA leave again in January 2010, RBS
would be estopped from denying that eligibility.

41

If RBS is estopped, there could only be interference based on RBS’s
refusal to reinstate Ridgeway to an equivalent position when his FMLA leave
expired in March 2010. See Geromanos v. Columbia Univ., 322 F.Supp.2d 420,
428 (S.D.N.Y.2004) (“Because plaintiff received the full twelve weeks of leave as
allowed by the act, the only other right with which Columbia could be found to
have interfered is the right to reinstatement at the end of her leave.”). The
Second Circuit made clear in Sarno that an employee’s right to reinstatement
would not be impeded where he was unable to return to work after twelve weeks
of leave. Sarno 183 F.3d at 161-62 (“Any lack of notice of the statutory 12-week
limitation on FMLA leave could not rationally be found to have impeded Sarno's
return to work” where it was undisputed that that sarno could not return to work
two months after the end of 12 week FMLA period). Sarno instructs that if
Ridgeway was unable to return to work after 12 weeks of leave in 2010 his right to
reinstatement based on the incorrect information Hewitt provided in December
would not have impeded his return to work. RBS argues that Ridgeway was
unable to return to work in March when his 12 weeks of FLMA would have
expired. However, Ridgeway has provided some evidence when viewed in the
light most favorable to him creates a genuine dispute of fact as to whether he
would have been able to return to work at the end the 12 week leave in March.
Consequently, there are triable issues of fact as to whether RBS should be
equitably estopped from challenging that Ridgeway was entitled to FMLA leave
beginning in January. There are also triable issues of fact, even if RBS is
equitably estopped, as to whether Ridgeway was able to return work in order to

42

establish his FMLA interference claim. The Court therefore also denies the
Parties’ cross motions for summary judgment on this FMLA interference claim.
II.

FMLA Retaliation

Ridgeway argues that RBS terminated his employment in April 2010 in
retaliation for exercising his rights under the FMLA. FMLA Retaliation claims are
analyzed under the McDonnell Douglas Corp. v. Green, 511 U.S. 792 (1973)
burden-shifting framework. To establish a prima facie claim for retaliation a
Plaintiff must “(1) she exercised rights protected under the FMLA; (2) she was
qualified for her position; (3) she suffered an adverse employment action; and (4)
the adverse employment action occurred under circumstances giving rise to an
inference of retaliatory intent.” Reilly., 620 F.Supp.2d at 537–38 (citing Potenza,
365 F.3d 165). “If the plaintiff establishes a prima facie case, there is a
presumption of retaliation, and the burden shifts to the defendant to provide a
legitimate nondiscriminatory reason for the termination. If the defendant makes
such a showing, the burden shifts back to the plaintiff to demonstrate that the
defendant's proffered legitimate reason for her termination was pretextual.”
Nagel v. County of Orange, No.09-cv-9960(CS), 2013 WL 1285465, at *9 (S.D.N.Y.
Mar. 28, 2013) (citation omitted). “To defeat summary judgment, plaintiff need not
show that defendant's proffered reason was false or played no role in the
decision to terminate him, but only that it was not the only reason, and that h[is]
filing for FMLA leave was at least one motivating factor.” Id. (internal quotation
marks and citation omitted).

43

First, RBS argues that because Ridgeway’s retaliation claim is predicated
on a failure to reinstate such a claim is properly pled as an interference claim and
therefore his retaliation claim should be dismissed as a matter of law. Ridgeway
argues that such a characterization is a mistake as Ridgeway was terminated
after his leave had ended in March and therefore his claim is not predicated on
RBS’s failure to reinstate Ridgeway after his leave expired.
Second, RBS argues that even if Ridgeway has properly pled a retaliation
claim summary judgment should be granted in its favor because Ridgeway’s
employment was terminated more than three weeks after his “claimed FMLA
leave” expired in March and more than four and ½ months after his actual FMLA
expired in December when his doctor authorized a limited return to work.
Assuming that Ridgeway has made out a prima facie case, RBS argues Ridgeway
was terminated for the legitimate reason that when his leave expired he was
unable to return to work. Courts have held that “[t]erminating an employee for
failure to return from a leave of absence is a legitimate, non-discriminatory
reason for termination.” Douglas v. Long Island Jewish Med. Ctr., No. 08–CV–
1370, 2010 WL 3187929, at *7 (E.D.N.Y. July 29, 2010). RBS asserts there is no
evidence that it was motivated by discriminatory intent when it terminated
Ridgeway’s employment.
Ridgway argues there are disputed facts as to RBS’s reasons for
terminating him, which preclude summary judgment. Ridgeway argues that a
reasonable juror could conclude that RBS’s proffered reason was pretextual
because (i) Ridgeway had the ability to return to work, (ii) RBS failed to look for a

44

suitable available position for Ridgeway when they gave him 45 days to find other
employment within RBS in April, and (iii) because his termination occurred within
days of Ridgeway contacting the CTDOL regarding his rights.
However, Ridgeway cannot demonstrate pretext by asserting that he could
have returned to work earlier because there is no evidence that RBS was aware
that Ridgeway would have told his doctors that he could work through the pain
and would thus obtain medical clearance to fully return to work when they
terminated his employment. It is undisputed that on April 7, Dr. Cooper
completed an FMLA Health Care Provider Certification which certified that
Ridgeway could not return to work until April 19, and only then on a part time
basis. [Dkt. #65, RBS Local Rule 56(a)1 Statement, ¶71]. Based on the medical
information that RBS had been provided by Ridgeway’s doctors, it was not
unreasonable for RBS to determine that Ridgeway was unable to return to work.
Without evidence that RBS had knowledge that Ridgeway was willing to return
and work through his pain, Ridgeway cannot establish pretext on the basis of his
assertion that RBS wrongly concluded he was unable to return to work.
Further, Ridgeway’s argument that pretext can be demonstrated by the
close temporal proximity between his termination and when he contacted the
CTDOL is misplaced. The decision to terminate Ridgeway in effect occurred in
January when RBS informed him that it was posting his position as he had
exhausted his available medical leave. As explained above, Ridgeway only
remained an employee because his short term disability claim had been
approved. Ridgeway contacted the CTDOL months after RBS had posted his

45

position and effectively made the decision to terminate his employment.
Therefore no reasonable trier of fact could conclude that RBS’s decision to
terminate him was influenced by Ridgeway contacting the CTDOL. In addition,
although RBS did not actively seek a position for Ridgeway in April, they did
provide him with access to internet sites listing job openings at RBS that enabled
Ridgeway to apply for positions within the 45 day period. No reasonable juror
could conclude that RBS was motivated by retaliation because it did not actively
look through the job listings for Ridgeway when it allowed him access to those
listings and the ability to apply to any positions on those listings.
Lastly, the fact that Hewitt provided Ridgeway with incorrect information as
to his medical leave entitlement cannot establish that RBS was motivated by
retaliatory animus. It is undisputed that the RBS employee who made the
decision to post Ridgeway’s position in January was unaware that Ridgeway had
been provided with erroneous information by Hewitt at that time. Moreover, the
parties do not dispute that RBS’s policy had always calculated FMLA leave on a
rolling back basis and had never changed during this time period and therefore
Hewitt simply erred when it informed Ridgeway that he was entitled to additional
FMLA leave starting in January 2010. In view of the facts that RBS’s FMLA policy
for employees within Ridgeway’s classification never changed and that RBS
became aware of Hewitt’s error after Ridgeway’s position had been posted, no
reasonable trier of fact could find that RBS’s reasons for termination were
pretextual. As intent is material to a FMLA retaliation claim, Ridgeway cannot
maintain this claim in the absence of evidence demonstrating that RBS was

46

motivated by discriminatory intent. The Court accordingly grants summary
judgment in favor of RBS on Ridgeway’s FMLA retaliation claim.
III.

Promissory Estoppel and Negligent Misrepresentation Claims

RBS reasserts several arguments in its motion for summary judgment that
it previously made in its motion to dismiss regarding Ridgeway’s promissory
estoppel and negligent misrepresentation claims, which were addressed and
ruled upon by this Court. RBS reasserts its argument that Ridgeway’s
promissory estoppel and negligent misrepresentation claims are precluded by
statutory preemption principles. For the same reasons as the Court articulated in
the decision on the motion to dismiss, the Court finds that Ridgeway’s
promissory estoppel and negligent misrepresentation claims are not precluded
by the doctrine of statutory preemption. See [Dkt. #40, MTD Decision, p. 32-40].
The Court also stresses that Ridgeway’s promissory estoppel and negligent
misrepresentation claims are not redundant or duplicative of his CTFMLA claim
or a claim under Conn. Gen. Stat. §31-71f.9 Although these claims are based on

9 RBS argues that Conn. Gen. Stat. §31-71f preempts Ridgeway’s negligent

misrepresentation claim. Section 31-71f requires that each employer “(1) [a]dvise
his employees in writing, at the time of hiring, of the rate of remuneration, hours
of employment and wage payment schedules, and (2) make available to his
employees, either in writing or through a posted notice maintained in a place
accessible to his employees, any employment practices and policies or change
therein with regard to wages, vacation pay, sick leave, health and welfare benefits
and comparable matters.” Conn. Gen. Stat. §31-71f. However, Ridgeway’s
negligent misrepresentation claim is not predicated on RBS’s failure to make
available to Ridgeway its policies with regard to health and welfare benefits, but
rather on Hewitt’s misstatements that Ridgeway was entitled to take leave under
the federal FMLA and the CT FMLA starting in January 2010. The Court therefore
does not see why relief under Conn. Gen. Stat. §31-71f would preclude
Ridgeway’s negligent misrepresentation claim, which is based on conduct that
clearly falls outside the scope of §31-71f.
47

the same nucleus of facts, the promissory estoppel and negligent
misrepresentation claims address different types of harms than the harms sought
to be prevented and remedied under the CTFMLA or a claim under Conn. Gen.
Stat. §31-71f. The harm sought to be remedied for negligent misrepresentation
and promissory estoppel are respectively the reliance on a negligently made false
representation and the failure to abide by a promise which was relied upon. A
CTFMLA interference claim seeks to remedy the harm of an employer interfering
with an employee’s ability to exercise his or her rights under the CTFMLA and
Conn. Gen. Stat. §31-71f seeks to ensure that employers post their medical leave
policies to employees. Statutory preemption is not warranted any time a common
nucleus of facts gives rise to liability under both tort and statutory regimes.
RBS also reasserts its argument that negligence claims are not viable in
the employment context which it made on the motion to dismiss. For the same
reasons as the Court articulated in the decision on the motion to dismiss, the
Court finds that Ridgeway’s claim of negligent misrepresentation is not barred as
a matter of law. [Dkt. #40, p. 38-40].
Ridgeway argues that RBS is liable for promissory estoppel and negligent
misrepresentation because he relied on the false representations that he was
entitled to additional medical leave starting in January and had job protection
through April to his detriment. To establish a prima facie case of promissory
estoppel a plaintiff must establish the following elements: “(1) a promise (2)
which the promisor should reasonably expect to induce action or forbearance (3)
on the part of the promisee or a third person and (4) which does induce such

48

action or forbearance is binding if injustice can be avoided only by enforcement
of the promise.” Ferrucci v. Town of Middlebury, 131 Conn. App. 289, 305 (2011)
(citing RESTATEMENT (SECOND) OF CONTRACTS § 90 (1) (1981)). A claim of negligent
misrepresentation is established when (1) the defendant made a
misrepresentation, (2) the defendant knew or should have known that the
representation was false at the time, and (3) the plaintiff reasonably relied upon
the representation to the plaintiff’s detriment. Kanios, 2005 WL 3579161 at *11.
RBS argues that summary judgment should be granted on both Ridgeway’s
negligent misrepresentation and promissory estoppel because Ridgeway’s
reliance on any “alleged misrepresentations concerning job-protection was not
reasonable, as a matter of law, because he was employed at-ill and because
GBM’s policies informed him that leave was calculated using the ‘rolling back’
method.” [Dkt. #65, Def. Mem., p. 34]. Whether RBS’s reliance on Hewitt’s
representations was reasonable is a fact for the jury to determine. As noted
above, the Court does not find such reliance unreasonable as a matter of law on
the basis of RBS’s policy because the policy expressly warns employees that it is
merely “guidance,” should “not be relied upon,” and is “subject is subject to
change at any time at the sole discretion of RBS.”
Further, Ridgeway’s at will employment status does not preclude him from
demonstrating that he reasonably relied on Hewitt’s representations in order to
establish a claim for promissory estoppel or negligent misrepresentation. As
Ridgeway points out, the Connecticut Supreme Court recently affirmed a jury
finding for an at-will employee on her claims for both promissory estoppel and

49

negligent misrepresentation. Stewart v. Cendant Mobility Servs. Corp., 267
Conn. 96 (2003). Indeed, the argument that reliance on an employer’s promise
“was unreasonable due to the fact that the plaintiff, herself, conceded that she
was an at-will employee, and consequently, could be terminated at any time” was
rejected in Stewart where the employer made a sufficiently clear and definite
promise not to adversely affect employment for a specific reason. Id. at 115 n.10.
The Connecticut Supreme Court explained that this argument lacked merit
because “[a]lthough the plaintiff acknowledged her status as an at-will employee,
she also testified repeatedly, clearly and unwaveringly that, on the basis of
Simon's representations, she believed that Cendant could not and would not
terminate her if her husband subsequently secured employment with a
competitor. Thus, the evidence supported the conclusion that Cendant could
have terminated the plaintiff for any reason except her husband's employment
with a competing firm.” Id. When viewing the evidence in the light most
favorable to Ridgeway, a reasonable juror could conclude that on the basis of
Hewitt’s representations that RBS could have terminated him for any reason
except for his absence as a result of taking medical leave through April. The
holding in Stewart instructs that Ridgeway may establish a claim promissory
estoppel and/or negligent misrepresentation even though he was employed atwill if the trier of fact concludes that Hewitt’s representations amounted to a
sufficiently clear and definite promise not to terminate Ridgeway’s employment
for his absence until April as a result of taking additional medical leave. See also
Gombossy v. Hartford Courant, Co., No.X07CV095033169S, 2010 WL 5158248, at

50

*3 (Conn. Super. Ct. Nov. 29, 2010) (“As to the defendants' argument that the
plaintiff's at-will status defeats a promissory estoppel claim, the Stewart court
impliedly rejected this same argument” and holding that plaintiff had sufficiently
stated a claim for negligent misrepresentation), Goldstein v. Unilever, No.397881,
2004 WL 1098789, at *4-5 (Conn. Super. Ct. May 3, 2004) (holding that “the
doctrine of promissory estoppel is not inapplicable solely because the plaintiff's
contract was for employment at will.”).
Further, the cases that RBS relies on in support of this proposition are
inapposite as they involved representations that did not amount to a sufficiently
clear and definite promise not to adversely affect employment for a specific
reason as was the case in Stewart. See Desrosiers v. Diageo North America, Inc.,
137 Conn. App. 446, 459-60 (2012) (holding that employee did not reasonable rely
on employer’s representation that she was performing satisfactorily where
employer reserved the “unfettered discretion to end the employment relationship
at any time”) (internal quotation marks and citation omitted); Petitte v. DSL.net,
Inc., 102 Conn.App. 363, 373 (2007) (holding that employment offer did not
constitute negligent misrepresentation because “it (1) did not guarantee
employment and (2) stated that any employment relationship was at will.”); Lowe
v. AmeiGas, Inc., 52 F.Supp.2d 349, 361 (D. Conn. 1999) (holding there was no
reasonable reliance on employer’s statements that “he would be terminated for
fair reasons” where employment was at-will); Grossman v. Computer Curriculum
Corp., 131 F.Supp.2d 299, 305, 308-09 (D. Conn. 2000) (holding that oral
reassurances of continued job security were neither sufficiently promissory nor

51

sufficiently definite to support contractual liability when viewed in conjunction
with the defendant's various disclaimers concerning the plaintiff's at-will
employment status to establish promissory estoppel or negligent
misrepresentation) (citation omitted). In viewing the facts in the light most
favorable to Ridgeway, he has asserted that RBS made representations that he
would have job protected leave through April that are “sufficiently promissory”
and “sufficiently definite” to support liability under both promissory estoppel and
negligent misrepresentation. The Court therefore finds that Ridgeway’s reliance
on Hewitt’s representations that he was eligible for job protected medical leave
through April was not unreasonable as a matter of law in light of his at-will
employment status.
RBS argues in the alternative that Ridgeway’s promissory estoppel and
negligent misrepresentation claims also fail because he did not incur any injury
as a result of his reliance because he was unable to return to work in March and
April after his “claimed” FMLA and CT FMLA leave ended. As discussed above,
there are triable issues of fact as to whether Ridgeway was able to return to work
in March and April that preclude summary judgment on this basis.
RBS also argues that Ridgeway’s promissory estoppel claim fails because
he did not change his position on the alleged misrepresentation as he simply
went ahead with his planned surgery on December 3, 2009. “To succeed on a
claim of promissory estoppel, the party seeking to invoke the doctrine must have
relied on the other party's promise. That reliance, of course, may take the form of
action or forbearance.” Stewart, 257 Conn. at 113. In other words, the promisee

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“must actually change his position or do something to his injury which he
otherwise would not have done.” W. v. W., 256 Conn. 657, 661, 779 (2001)
(citations omitted). RBS’s argument relies on misconstrued semantics.
Ridgeway has testified that had he been informed that he was not eligible for
additional job protected medical leave on December 1, he would have cancelled
his December 3 surgery. Therefore, Ridgeway has provided evidence that he did
something to his injury when he decided to go ahead and not cancel the
scheduled surgery on the basis of the representation that he was entitled to job
protected medical leave until April. Because reliance may take the form of
forbearance or action, Ridgeway has provided evidence when viewed in the light
most favorable to him that he detrimentally relied on the representations that he
was eligible for job protected medical leave until April by not cancelling the
planned surgery.
RBS further argues that Ridgeway’s negligent misrepresentation claim fails
because “whatever duty GBM may have with regard to communicating
information concerning benefits arises from statute, not a general duty” and
points to the CTFMLA and Conn. Gen. Stat. §31-71f as the sources of such duty.
[Dkt. #65, RBS Mem., p. 38]. As Ridgeway points out, RBS cites no caselaw in
support of this argument nor is the Court aware of any support for this
proposition. Indeed, there is precedent to the contrary. The Connecticut
Supreme Court has explained that “[t]he existence of a duty of care is an
essential element of negligence.... A duty to use care may arise from a contract,
from a statute, or from circumstances under which a reasonable person, knowing

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what he knew or should have known, would anticipate that harm of the general
nature of that suffered was likely to result from his act or failure to act.” Pelletier
v. Sordoni/Skanska Const. Co., 286 Conn. 563, 578 (2008) (internal quotation
marks and citation omitted) (emphasis added). Further, the doctrine of
negligence per se is premised on the concept that a duty of care may be derived
from statute. See Considine v. Waterbury, 279 Conn. 830, 860-61 n. 16 (2006)
(“Negligence per se operates to engraft a particular legislative standard onto the
general standard of care imposed by traditional tort law principles, i.e., that
standard of care to which an ordinarily prudent person would conform his
conduct. To establish negligence, the jury in a negligence per se case need not
decide whether the defendant acted as an ordinarily prudent person would have
acted under the circumstances. [It] merely decide[s] whether the relevant statute
or regulation has been violated. If it has, the defendant was negligent as a matter
of law.”) (internal quotation marks and citation omitted). Even if RBS’s duty of
care is derived from statute, that would not defeat a claim sounding in negligence
because a duty of care in negligence may arise from statutory sources. To the
extent that RBS is really recasting its prior argument that the CTFMLA and Conn.
Gen. Stat. §31-71f preempt a cause of action for negligent misrepresentation, this
Court has already rejected those arguments.
Lastly, Ridgeway argues that he is entitled to summary judgment in his
favor on both his negligent misrepresentation and his promissory estoppel
claims because RBS admits he received incorrect information regarding both his
CT FMLA and FMLA entitlement in December. However, as discussed above,

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there are triable issues as to whether Ridgeway reasonably relied on Hewitt’s
representations in light of the FMLA policy posted on the intranet and his at will
employment status. There are also triable issues of fact as to whether Ridgeway
relied on those representations to his detriment in view of that disputes facts of
whether Ridgeway could have delayed his surgery or returned to work in March
or April which preclude a finding of summary judgment in favor of Ridgeway on
both his promissory estoppel and negligent misrepresentation claims.
RBS makes several arguments regarding the availability of damages on a
claim for promissory estoppel and negligent misrepresentation. First, RBS
argues that Ridgeway is not entitled to “benefit of the bargain” damages he seeks
under either his promissory estoppel or his negligent misrepresentation claims.
RBS further argues that lost wages are not a proper measure of damages to the
extent they represent damages based on the failure to receive the benefit of the
bargain. First, RBS relies on cases from other states and jurisdictions in support
of its damages arguments which do not interpret Connecticut law and are
therefore unpersuasive. RBS only cites to two cases interpreting Connecticut law
in support of these arguments. However, these cases do not instruct that
economic losses such as lost wages are unavailable on a promissory estoppel or
negligent misrepresentation claim. RBS relies on Eremita v. Stein, No.CV940463110S, 1995 WL 670061, at *6 (Conn. Super. Ct. Nov. 2, 1995) in which the
court held that a “remedy for negligent misrepresentation is considered to be
independent of a remedy on a contract.” However, the Eremita court did not hold
that economic damages such as lost wages were unavailable on a negligent

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misrepresentation claim. Instead, the court explained that a “defendant who is
not liable for representations based on promissory estoppel can, nonetheless, be
liable in tort for negligent misrepresentation” and therefore a “a claim of
negligent misrepresentation, based on statements made during the course of a
contractual relationship, may be brought even though purely economic losses
are alleged.” Id.
Second, RBS relies on Pavliscak v. Bridgeport Hospital, No.CV91200174S,
1996 Conn. Super. LEXIS 1945 (Conn. Super. Ct. July 25, 1996) in which the court
held that the “proper measure of damages on the Plaintiff’s theory of promissory
estoppel is the loss incurred by the plaintiff in reasonable reliance on the
promise.” Id. at 1. In Pavliscak, the court found the jury erred in awarding front
pay for three years and pension benefits for eleven years in view of the fact that
the evidence introduced at trial established that the plaintiff was employed at will.
The Court concluded that the award of front pay and pension benefits was in
error because it was based on a “on a hypothetical bargain which was not
supported by the evidence.” Id. at 3. However, the Pavliscak’s court analysis
does not foreclose an award of front pay or benefits on a promissory estoppel
claim but rather instructs that any award for front pay or benefits may not be
based on speculation and unsupported by evidence. Therefore, if Ridgeway is
able to introduce evidence as to his entitlement to front pay and benefits that
would not be speculative in light of his at will employment status, Ridgeway may
be entitled to such damages.

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The conclusion that back pay, front pay and benefits may be available on a
promissory estoppel and negligent misrepresentation claim is further bolstered
by the Second Circuit’s conclusion that post-termination economic damages are
available on a promissory estoppel claim in Connecticut. The Second Circuit
recently addressed “the question of whether a wrongfully-terminated at will
employee is entitled to post-termination economic damages.” Holt v. Home
Depot USA, Inc., 135 F. App’x 449, 450 (2d Cir. 2005). In considering this
question, the Second Circuit reasoned from the Connecticut Supreme Court
decisions in Torosyan v. Boehringer Ingelheim Pharms., Inc., 234 Conn. 1, 16
(1995) and Stewart, 267 Conn. 96, to hold that “Connecticut does allow a
judgment …that awarded future wages to an at will employee up through the date
of judgment on a promissory estoppel claim.” Holt v. Home Depot USA, Inc., 135
F. App’x 449, 450 (2d Cir. 2005). In Torosyan, the Connecticut Supreme Court
allowed “damages [that] extend for a reasonable time period into the future, at
least for a future period of time equal to the period from the time of the wrongful
termination until the date of judgment.” 234 Conn. at 34. In Stewart, the
Connecticut Supreme Court approved an award of future lost wages on a
promissory estoppel and negligent misrepresentation claim by an at will
employee. 267 Conn. at 98-99. Although the Second Circuit’s holding in Holt was
predicated with respect to just a promissory estoppel claim, the Court sees no
reason why the Second Circuit’s logic would also not apply to Ridgeway’s
negligent misrepresentation claim as the Stewart court permitted the same award
for both a promissory estoppel and a negligent misrepresentation claim.

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Therefore, reading Stewart and Torosyan together suggests that Connecticut law
allows a judgment awarding future wages to an at will employee up through the
date of judgment on both a promissory estoppel and negligent misrepresentation
claim. Consequently, Ridgeway will be permitted to seek post-termination
economic damages such as future wages from time of the wrongful termination
until the date of judgment.
RBS also argues that emotional distress damages are not “out of pocket”
reliance damages and are not available on a negligent misrepresentation claim.
In support of this argument, RBS relies on a Fifth Circuit case which interprets
Texas law and is therefore irrelevant and unpersuasive. RBS points to no cases
interpreting Connecticut law which supports this contention. In Connecticut,
there does not appear to be any appellate court cases that have addressed
whether damages for emotional distress are recoverable on a claim for negligent
misrepresentation. See Craine v. Trinity College, No.CV950555013S, 1999 WL
1315017 at *10 (Conn. Super. Ct. Dec. 27, 1999). Although as some courts have
noted that “[t]he Restatement Second of Torts ... suggests that the damages
available for negligent misrepresentation are pecuniary losses,” there are several
Connecticut superior court cases, which have awarded noneconomic damages
on a negligent misrepresentation claim. Craine, 1999 WL 1315017 at *10; Schlierf
v. Abercrombie & Kent, Inc., No.CV05503467(X02), 2012 WL 3089387, at *3 (Conn.
Super. Ct. July 2, 2012) (“Several superior court decisions have permitted
noneconomic damages for physical or emotional harm stemming from negligent
misrepresentations”) (citing cases). These cases have reasoned that § 552 of the

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Restatement Second of Torts (1979) is not guiding because the principles set
forth “relate to commercial transaction s and are concerned only with liability for
pecuniary loss resulting from misrepresentations or nondisclosures.” Schlierf,
2012 WL 3089387, at *3 (citation omitted). In addition, one case emphasizes that
the Connecticut Supreme Court has “recognized the propriety of awarding
damages for emotional distress for fraudulent misrepresentations in Kilduff v.
Adams, Inc., 219 Conn. 314 (1991).” Id. at 4. In Kilduff, the Connecticut Supreme
Court recognized that “[a]lthough several courts have denied recovery for mental
distress in a fraud action on the ground that damages in such an action are solely
intended to compensate the plaintiff for pecuniary loss ... we concur with those
jurisdictions that allow the recovery of emotional damages that are the natural
and proximate result of fraud.” Kilduff, 219 Conn. at 324. This Court will therefore
not preclude Ridgeway from seeking emotional damages on his negligent
misrepresentation claim in the absence of any authority interpreting Connecticut
law directly holding that emotional damages are not recoverable on a negligent
misrepresentation claim and in light of the Connecticut Supreme Court’s
conclusion that emotional damages are recoverable on a claim for fraudulent
misrepresentation.
Lastly, RBS argues that Ridgeway cannot have any reliance damages as a
matter of law because he was employed at-will and because he could not return
to work in March and April. As discussed above, Ridgeway may establish
detrimental reliance and be awarded future wages despite the fact that he was
employed at will and there is a dispute of fact as to whether Ridgeway could have

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returned to work in March or April. Therefore, there are triable issues of fact with
respect to his “reliance” damages.
Conclusion
Based upon the above reasoning, the Court denies RBS’s motion to
withdraw two judicial admissions, denies in part and grants in part RBS’s motion
for summary judgment and denies Ridgeway’s motion for summary judgment.
The Court grants summary judgment in favor of RBS on Ridgeway’s FMLA
retaliation claim. Ridgeway’s FMLA interference, promissory estoppel and
negligent misrepresentation claims remain extant for trial.

IT IS SO ORDERED.
_______/s/____________
Hon. Vanessa L. Bryant
United States District Judge

Dated at Hartford, Connecticut: May 13, 2013

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