Allen et al v. Verizon Wireless et al

Filing 288

RULING granting re 281 MOTION for Reconsideration re 274 Order on Motion for Leave to File Excess Pages, Order on Sealed Motion, Order on Motion to Strike, filed by Verizon Wireless Upon reconsideration, Verizons Motion for Summary Judgment (Doc. No. 207) is GRANTED. Signed by Judge Janet C. Hall on 8/10/2015. (Malone, P.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

QUEEN M. ALLEN, et al.,
Plaintiffs,
v.
VERIZON WIRELESS, et al.,
Defendants.

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CIVIL ACTION NO.
3:12-CV-00482 (JCH)

AUGUST 10, 2015

RULING RE: MOTION FOR RECONSIDERATION (DOC. NO. 281)
On June 23, 2015, the court granted in part and denied in part defendant Verizon
Wireless’(“Verizon”) Motion for Summary Judgment. Ruling Re: Motions for Summary
Judgment (Doc. No. 274) (“Ruling”). The court granted summary judgment on all
claims except one: plaintiff Queen Allen’s (“Allen”) claim for interference under the
Family Medical Leave Act (“FMLA”) based on Verizon’s denial of Allen’s FMLA request
in February/March 2010. Id. at 20-25.
Pursuant to Local Rule 7(c), Verizon filed the present Motion for Reconsideration
as to the court’s denial of summary judgment on the one remaining claim. Verizon
Wireless’ Motion for Reconsideration Re: Denial of Summary Judgment on Plaintiff
Queen Allen’s FMLA Interference Claim (Doc. No. 281) (“Mot. for Reconsid.”). Verizon
alleges that the court’s ruling was based on mistake of fact, and that reconsideration is
necessary to prevent manifest injustice. Id. Allen has filed an opposition to the
Motion. Plaintiff’s Opposition to Motion for Reconsideration (“Pl.’s Opp.”) (Doc. No.
284).

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For the reasons set forth below, Verizon’s Motion for Reconsideration is
GRANTED. Upon reconsideration, Verizon’s Motion for Summary Judgment (Doc. No.
207) is GRANTED in full.
I.

JURISDICTION
As a preliminary matter, the court must address its jurisdiction to consider the

pending motion, in light of the plaintiffs having filed a Notice of Appeal on July 23, 2015,
appealing the court’s June 23, 2105 Ruling granting MetLife’s Motion for Summary
Judgment and granting in part Verizon’s Motion for Summary Judgment. Notice of
Appeal (Doc. No. 286). When an appeal has been filed, the district court is generally
divested of “control over those aspects of the case involved in the appeal.” Sullivan v.
Stein, No. CIV.3:03CV1203 (MRK), 2005 WL 465425, at *1 (D. Conn. Feb. 7, 2005)
(quoting Marrese v. Am. Academy of Orthopaedic Surgeons, 470 U.S. 373, 379
(1985)). However, where a notice of appeal “has been filed from an order that is
non-appealable, jurisdiction does not rest with the Court of Appeals, but remains with
the district court.” Id.; Hoffenburg v. United States, 2004 WL 2338144, at *2 (S.D.N.Y.
Oct.18, 2004) (collecting cases).
Because the court’s June 23, 2015 Ruling “adjudicate[d] fewer than all of the
claims remaining in the action,” and “adjudicate[d] the rights and liabilities of fewer than
all of the remaining parties,” it is not a “final” judgment or order within the meaning of 28
U.S.C. § 1291, and thus is not properly appealable. Citizens Accord, Inc. v. Town of
Rochester, New York, 235 F.3d 126, 128 (2d Cir.2000); Sullivan, 2005 WL 465425 at
*2. Thus, because plaintiffs’ appeal is premature, this court retains jurisdiction to
decide the pending Motion for Reconsideration.

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II.

STANDARD OF REVIEW
The standard for granting a motion for reconsideration is strict, and such a

motion “will generally be denied unless the moving party can point to controlling
decisions or data that the court overlooked.” See Shrader v. CSX Transp., Inc., 70
F.3d 255, 257 (2d Cir.1995). A court should not grant a motion for reconsideration
where the moving party seeks only to relitigate an issue already decided. See id. In
general, granting a motion for reconsideration is only justified if there is an intervening
change in controlling law, newly discovered evidence, or the need to correct clear error
or prevent manifest injustice. See Virgin Atl. Airways, Ltd. v. Nat'l. Mediation Bd., 956
F.2d 1245, 1255 (2d Cir.1992). Reconsideration may also be warranted where the
moving party can demonstrate that the court “overlooked facts that might reasonably be
expected to alter its conclusion.” Young v. Cnty. of Nassau, 511 F. App'x 35, 38 (2d
Cir. 2013) (citing Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir.1995)).
III.

DISCUSSION
Allen was absent from work without prior approval from February 24, 2010, until

her return to work on June 24, 2010. She requested leave under FMLA for this period,
but was denied. In denying Verizon’s Motion for Summary Judgment on Allen’s
February/March 2010 FMLA interference claim, the court previously concluded that, if
Verizon interfered with Allen’s rights under FMLA, a reasonable jury could find that
Allen suffered tangible injury as a result of that interference. Ruling at 24-25. It based
this conclusion largely on the fact that 1) Allen had received a “Final Written Warning” in
July 2010, following her unapproved leave, and 2) the lack of clarity in the record as to
whether a) the denial of FMLA caused Allen to receive the warning, and b) whether

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Allen’s receipt of this warning contributed to or accelerated Verizon’s decision to
terminate her employment on January 14, 2011. Id.
Verizon now asks the court to reconsider this conclusion for clear error or to
prevent manifest injustice. Verizon argues that based on facts in the record – in
particular, two pieces of evidence that were in the record but not cited in Verizon’s
Motion for Summary Judgment – it is undisputed that Allen’s receipt of the warning was
not caused by the denial of her FMLA request. Memorandum of Law in Support of
Verizon Wireless’ Motion for Reconsideration (Doc. No. 282) (“Def.’s Mem.”) at 4-6.
Thus, any tangible injury suffered as a result of the warning would not be caused by the
denial of Allen’s FMLA claim.
In support, Verizon first points to the signed written warning that was issued in
July 2010. Id. at 5-6. While this document was not cited in Verizon’s Motion for
Summary Judgment, it was previously attached to Allen’s Amended Complaint and thus
was part of the record. Amended Complaint, Exh. 20 (Doc. No. 12 at 125). Verizon
argues that this warning was not caused by the denial of Allen’s FMLA request and her
resulting unapproved absences. It argues that, while certain absences cited in the
warning are from the end of Allen’s period of absence – namely, from June 14, 2010
through June 23, 2010 – those dates would not have been covered by FMLA even if
Allen’s February/March 2010 FMLA request had been granted. Def.’s Mem. at 5-6.
The basis for this argument is that, because the FMLA provides a maximum of twelve
weeks of protected leave during any twelve month period, Allen’s FMLA time, if granted,
would have run from February 24, 2010, her first day out of work, and expired twelve
weeks later on May 19, 2010. See 29 U.S.C. § 2612(a)(1). Thus, Allen’s absences

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between May 20, 2010 and June 23, 2010, would have still been unapproved even if
Allen’s FMLA request had been granted, meaning her receipt of the written warning was
not affected by the denial of her FMLA request.
Verizon also points to the fact that the written warning was later reduced to a
verbal warning, a less serious sanction. Def.’s Mem. at 5. The verbal warning was
also previously attached to Allen’s Amended Complaint and thus part of the record,
although not cited in Verizon’s Motion for Summary Judgment. Amended Complaint,
Exh. 28 (Doc. No. 12 at 147). Verizon argues that the verbal warning was the
operative warning on Allen’s record at the time of her termination, and it did not result
from the denial of Allen’s FMLA request and her resulting unapproved absences.
Def.’s Mem. at 5. It notes that none of the dates of Allen’s February 24, 2010 – June
24, 2010 absence are cited in the warning. Id. Rather, the warning refers to
absences from other dates in 2010, which were not the subject of her February/March
2010 FMLA request. 1
After reviewing the text of the Final Written Warning and the Verbal Warning, the
court agrees that a reasonable jury could not conclude that either warning was caused
by the denial of Allen’s February/March 2010 FMLA request. While Allen’s Opposition
contends that the “NEA HR Admin Review” form references the Final Written Warning,
which she argues renders in dispute whether the warning affected her termination – as
also noted by the court in its prior Ruling – it fails to address the fact that the warning

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Specifically, the Verbal Warning references absences on January 5, 7, 8, and 11; February 2;
July 2 and 13, August 19, and September 8, 20, and 21. The Final Written warning referenced these
same dates from January, February, and July, as well as June 14, 15, 16, 17, 18, 21, 22, and 23.

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itself does not appear to have been caused by the denial of Allen’s February/March
2010 FMLA request. See Pl.’s Opp. at 4. There is no evidence before the court to
suggest that the unapproved absences on which the warnings were based would have
been approved absences if Allen’s February/March 2010 FMLA request had been
granted. Thus, even if Allen’s FMLA request had been granted, she would still have
received a warning based on these unapproved absences. Because Allen’s receipt of
both the written and verbal warnings was not caused by the denial of her FMLA
request, whether or not those warnings accelerated or contributed to Verizon’s decision
to terminate her is immaterial to her FMLA interference claim.
Allen also argues that Verizon has not met the standard for reconsideration,
because it “attempts to reargue facts and theories upon which a court has already
ruled.” Pl.’s Opp. at 3. However, Verizon’s Motion is not premised on asking the court
to relitigate an issue already decided. Rather, their Motion is premised on the court
having overlooked material facts in the record that would have altered its decision, and
the need to correct clear error or prevent manifest injustice. The court agrees that
reconsideration is warranted on this basis.
Allen also argues that, regardless of whether the warning was caused by denial
of her FMLA request, the fact that her February – June 2010 absences were
designated as unapproved was itself a factor in her termination. Pl.’s Opp. at 3-4. In
support, she points to the reference to her February 24, 2010 – June 18, 2010 period of
absence on the “NEA HR Review” form. This statement alone is, in itself, insufficient
to support an inference that Allen’s termination was caused by the designation of her
February-June 2010 absence as non-FMLA leave. As reflected in the warnings, Allen

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did not receive a formal sanction for the absences that would have been covered by
FMLA, had it been granted. In addition, the denial of Allen’s February/March 2010
FMLA claim took place approximately eight months prior to her termination. Further, it
is undisputed that prior to her termination, Allen had been absent from work without
approval for nearly two months. Allen has not pointed to any evidence from which a
reasonable jury could conclude that, but for the designation of her February-June 2010
leave as unapproved, she would not have been fired in January 2011 as a result of this
two month absence.
Having determined that the Warnings received by Allen were not caused by the
denial of her February/March 2010 FMLA request, there are no disputed facts in the
record from which a jury could reasonably conclude that Allen suffered an injury
cognizable under the FMLA.

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Thus, summary judgment is appropriate on her

February/March 2010 FMLA interference claim. See Roberts v. Health Ass'n, 308 F.
App'x 568, 570 (2d Cir. 2009) (summary order) (district court did not err in granting
summary judgment where, although plaintiff could likely show that the defendant
interfered with her FMLA rights, there was no evidence that the violation was
prejudicial); Reyes v. New York City Health & Hospitals Corp., 2012 WL 3764061, at *5
(E.D.N.Y. Aug. 29, 2012) (summary judgment appropriate on FMLA interference claim

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In her previous filings, Allen also argued that she lost employee phone benefits and lost time
from work as a result of the denial of her FMLA claim. Allen’s Response to VSW Supplemental
Memorandum (Doc. No. 262) at 12-13. However, there is no evidence in the record from which a jury
could conclude that Allen’s phone benefits were terminated because her leave was not designated as
FMLA leave. Indeed, Allen appears to agree that she lost her phone lines “due to lack of monies while
appealing her claim due to her need to be out of work.” Id. There is also no evidence in the record that
the designation of Allen’s leave as non-FMLA caused Allen to lose additional time from work. In addition,
Allen’s short term disability request was ultimately granted, meaning that she received short term disability
benefits for the period of her absence.

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where plaintiff could not show that she suffered any injury from the alleged violation);
see also Cianci v. Pettibone Corp., 152 F.3d 723, 729 (7th Cir. 1998) (summary
judgment proper where plaintiff failed to show she had a remedy under the FMLA).
IV.

CONCLUSION

For the reasons set forth above, the court GRANTS Verizon’s Motion for
Reconsideration (Doc. No. 281). Upon reconsideration, Verizon’s Motion for Summary
Judgment (Doc. No. 207) is GRANTED.
SO ORDERED.
Dated this 10th day of August, 2015 at New Haven, Connecticut.

/s/ Janet C. Hall
Janet C. Hall
United States District Judge

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