SKRYNNIKOV v. FEDERAL NATIONAL MORTGAGE ASSOC. et al

Filing 61

MEMORANDUM OPINION to the Order denying the Motion and Cross-Motion for Summary Judgment. Signed by Judge Gladys Kessler on 1/3/17. (CL)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

TIMOTHY SKRYNNIKOV,
Plaintiff,

v.

Civil Action No. 11-609 {GK)

FEDERAL NATIONAL MORTGAGE
ASSOCIATION,
Defendant.

MEMORANDUM OPINION
Plaintiff Timothy Skrynnikov
brings

this

Association

("Plaintiff"

action against Defendant
("Defendant"

or

seq. ,

and interference with his

Family and Medical Leave Act

"Skrynnikov")

Federal National Mortgage

"Fannie Mae")

under the Federal False Claims Act

or

("FCA"),

rights

("FMLA"),

alleging

retaliation

31 U.S.C.

§

3729 et

under both the

Federal

29 U.S.C.

§

2601 et seq.,

and the related District of Columbia Family and Medical Leave Act
("DCFMLA"), D.C. Code

§

32-501 et seq.

This matter is before the Court on Plaintiff's Motion for
Summary Judgment
Motion

for

("Mot.")

Summary

[Dkt.

Judgment

consideration of the Motion,

No.

54]

and Defendant's Cross-

("Cross-Mot.") [Dkt.

No.

55] .

Upon

the Cross-Motion, Oppositions

[Dkt.

Nos. 55 and 57], and Replies [Dkt. Nos. 57 and 59], and the entire
record herein,

and for the reasons set forth below,
1

Plaintiff's

Motion for

Summary Judgment

is denied,

and Defendant's

Cross-

Motion for Summary Judgment is denied.
I .

BACKGOUND

A. Factual Background

Fannie Mae is a government-sponsored corporation chartered by
Congress,

with

its

headquarters

Second Amended Complaint

§

5 ("SAC")

in

the

District

[Dkt. No. 23] .

of

Columbia.

Mr. Skrynnikov

was employed by Fannie Mae as a Senior Financial Analyst in the
Financial Planning & Analysts group ("FP&A") from October 9, 2007
until November 13, 2009, when his employment was terminated.
~~

SAC

6, 38. Mr. Skrynnikov's job responsibilities included preparing

a monthly document known as the Business Segment Allocation Report
("BSA Report"). Plaintiff's Statement of Undisputed Material Facts
~

5

("Pl. 's

SMF")

[Dkt.

No.

54-1] .

The

BSA Reports

included

information on "Executive Incentive Compensation." Id. ~ 7.
On March 18,

2009,

United States Senator Charles Grassley

requested "Fannie Mae and Fredie Mac to account for their retention
bonus programs"
54-8].

("the Grassley Request"). Pl. 's Ex.

36

[Dkt. No.

Fannie Mae submitted its response to Senator Grassley on

March 27,

2009. Def.'s Ex. 87

March 2009,

Mr.

[Dkt. No. 55-29]. At some point in

Skrynnikov learned of the Grassley Request and

Fannie Mae's response through a daily news blast emailed to Fannie
-2-

Mae employees. Arbitration Transcript at 134-35 ("Tr.")

[Dkt. No.

54 - 3] .
Mr.

Skrynnikov alleges

that

he became

concerned that

the

executive retention bonus data that Fannie Mae reported to Sen.
Grassley did not match the numbers in the BSA Reports he had seen.
Mot. at 2; Pl.'s SMF

~

12. He alleges that he raised these concerns

with his supervisor at the time, Ms. Kristin DeMent Harrison. Id.
He also claims that Ms. Harrison told him that the reported numbers
would be updated in the next quarter. Id.
Mr.

Skrynnikov claims that he raised these concerns again
2009. Mot. at 3; Pl.'s SMF ~ 14.

with Ms. Harrison on April 28,

According to Mr. Skrynnikov, Ms. Harrison responded to his concerns
with

"agitation

and

anger."

Id.

Defendant

denies

that

these

conversations between Ms. Harrison and Mr. Skrynnikov took place.
Cross-Mot. at 14; Tr. at 571-72. Mr. Skrynnikov alleges that after
he

raised

Harrison,

his

concerns

about

the

Grassley

Request

with

Ms.

she began to question his job performance. Mot. at 3.

Defendant disputes this assertion.
On July 1, 2009, Ms. Harrison gave Mr. Skrynnikov a Written
Warning

for

Unsatisfactory Job

Performance

informing

him

that

Fannie Mae would terminate him if he did not improve within a
reasonable time period. Pl.'s SMF
-3-

~

16.

On July 9,
Carrie Lee,

2009, Mr. Skrynnikov sought permission from Ms.

Fannie Mae's Human Resources representative,

to take

medical leave because of the stress he claims stemmed from his
poor working relationship with Ms. Harrison. Pl.'s SMF
Lee

directed

Mr.

Skrynnikov

to

contact

the

Reed

~

19. Ms.

Group,

an

independent company contracted by Fannie Mae to administer medical
~~

leaves of absence. Id.
The

Reed Group

20-23.

approved Mr.

Skrynnikov' s

application

for

FMLA/DCFMLA leave. Id.

~

date

Skrynnikov was originally granted leave.

until

which Mr.

Nevertheless,
between Mr.

29. The Parties disagree on the original

after what appears

to be extensive communication

Skrynnikov, his doctors,

the Reed Group,

and Fannie

Mae's HR team, Mr. Skrynnikov was granted an extension of his FMLA
leave through October 1,

2009,

which represents the full twelve

weeks permitted under the statute. Pl.'s SMF
Pl.' s SMF

~

~

29; Def.'s Resp. to

29 [Dkt. No. 55-30].

Mr. Skrynnikov asserts that the communication between Fannie
Mae and the Reed Group regarding the paperwork supporting his leave
differed

from

Fannie

Mae's

normal

practices

regarding

its

involvement in the Reed Group's approval of employee leave. Mot.
at 5-8. Defendant denies these allegations.

-4-

On October 26, after receiving additional paperwork from Mr.
Skrynnikov' s

doctors

justifying an extension of his leave,

the

Reed Group retroactively approved an extension of his leave under
the DCFMLA which permits a maximum of 16 weeks leave, and Fannie
Mae's short-term disability leave

(STD),

which is not protected

leave. Cross-Mot. at 1; Pl.'s SMF, 29; Def.'s Resp. to Pl.'s SMF
, 29.
Mr. Skrynnikov claims that he was ready and able to return to
work after recovering from his depression and stress on October
26, 2009. Pl.'s Opp. at 12-13, n. 12. However, on October 21, 2009,
he wrote to Ms. Lee requesting to use vacation time for up to a
week because of a newly sustained rib injury. Pl.'s SMF, 40; Pl.'s
Ex. 68

[Dkt. No. 54-22]. Ms. Lee informed Mr. Skrynnikov that he

would have to speak to management and the Reed Group regarding his
request.

Pl.'s SMF ,

43. Ms.

Lee also stated that he could not

return to work "unless [he was] cleared to return to work for both
conditions" by the Reed Group. Id.
The approved return-to-work date of October 26, 2009 came and
went without Mr.

Skrynnikov providing the Reed Group with a new

return-to-work clearance from a doctor. He did not return to work
on that date. Pl.'s SMF, 48. Fannie Mae instructed the Reed Group
to

place

"the

highest

level

of
-5-

scrutiny"

on Mr.

Skrynnikov' s

return-to-work certification regarding his rib injury. Pl.'s SMF
,

50;

Def.

Skrynnikov

Resp.

to Pl.' s

finally

sent

SMF ,
the

50.
Reed

On October 30,
Group

a

2009,

Mr.

return-to-work

certification from a doctor indicating that he would be ready to
return to work on November 2, 2009. Pl.' s SMF ,, 52, 54; Def. Resp.
to

Pl. 's

SMF

,,

52,

54.

That

same

day,

Mr.

Skrynnikov

was

retroactively approved for DCFMLA leave through October 29, 2009
and for STD through November 1, 2009, with a return to work date
of November 2, 2009. Pl.'s SMF, 55; Def. Resp. to Pl.'s SMF, 55;
Pl. 's Ex. 74 [Dkt. No. 54-24] .
On October 30,

2009, Mr.

Skrynnikov received a letter from

Fannie Mae saying that he had exhausted his FMLA and DCFMLA leave
and that

Fannie Mae made a

business decision not

to hold his

position open. Pl.'s SMF, 58; Def. Resp. to Pl.'s SMF, 58. Mr.
Skrynnikov was

terminated a

few days

later when his STD leave

expired.
On November 15, 2009, Mr. Skrynnikov faxed a letter to Sen.
Grassley detailing his concerns regarding Fannie Mae's reporting
of executive incentive compensation. Pl.'s SMF, 60; Pl.'s Ex. 61
[Dkt. No. 54-18].

-6-

B. Procedural Background

Mr. Skrynnikov filed his Complaint with this Court on March
23, 2011.

[Dkt. No. 1]. On June 12, 2012, Mr. Skrynnikov filed his

First Amended Complaint.

[DkL No. 21]. On October 11, 2012, Mr.

Skrynnikov filed a Motion to Amend his Complaint

[Dkt. No.

22],

which the Court granted by Minute Order on October 15, 2012. On
October

15,

2012,

Mr.

Skrynnikov

filed

his

Second

Amended

Complaint, which is the operative Complaint in these proceedings.
On December 6, 2012, Defendant filed a Motion to Dismiss and
to Compel Arbitration.
denied

Defendant's

[Dkt. No.

Motion

to

26]. On May 8, 2013,
Dismiss

without

the Court

prejudice,

but

granted Defendant's Motion to Compel Arbitration and stayed the
case pending the results of arbitration. May 8, 2013 Order [Dkt.
No. 31].
On November 4,
finding that Mr.
Count

1

2014,

the Arbitrator issued a

final

award

Skrynnikov failed to prove the claims of both

(Retaliation under the

False Claims Act)

and Count

2

(Family and Medical Leave Interference). November 24, 2014 Joint
Status

Report

at

1

[Dkt.

No.

48].

On November 13,

2014,

Skrynnikov rejected the Arbitrator's Award in its entirety,
provided for in Defendant's Dispute Resolution Policy. Id.

-7-

Mr.
as

On February 4,. 2015, Mr. Skrynnikov filed a Motion for Summary
Judgment. On March 3, 2015, Defendant filed its Cross-Motion for
Summary Judgment and Opposition to Plaintiff's Motion for Summary
Judgment. On April 3, 2015, Mr. Skrynnikov filed his Opposition to
the Cross-Motion and Reply in support of his Motion for Summary
!
.I

Judgment ("Pl. 's Opp.")

[Dkt. No. 57]. On May 4, 2015, Defendant

filed its Reply in support of its Cross-Motion for Summary Judgment
("Def.' s Rep.")
II.

[Dkt. No. 59] .

STANDARD OF REVIEW

Summary judgment should be granted only if the moving party
has shown that there is no genuine dispute of material fact and
that the moving party is entitled to judgment as a matter of law.
Fed. R.
317,

Civ.

322

2016) .

P.

56,

see also Celotex Corp. v. Catrett,

(1986); Johnson v.

A dispute

of

Perez,

material

823 F.3d 701,

fact

is

705

477 U.S.

(D.C.
if

"'genuine' .

Cir.
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).
In

a

summary

judgment

motion,

the

moving

party

has

the

responsibility for "informing the district court of the basis for
its

motion,

and

identifying

those

portions

of

the

pleadings,

depositions, answers to interrogatories, and admissions on file,
-8-

together with the affidavits, if any, which it believes demonstrate
the absence of a genuine issue of material fact."

Celotex,

477

U.S. at 323 (internal quotation omitted).
The court should view the evidence in favor of the nonmoving
party and draw all reasonable inferences in favor of that party
making

credibility

Johnson,

determinations

823 F. 3d at 705.

"However,

or

weighing

the

evidence.

the nonmoving party may not

rely solely on allegations or conclusory statements. Rather,

the

nonmoving party must present specific facts that would enable a
reasonable jury to find in its favor." Krishnan v.
Supp. 3d 496, 503 (D.D.C. 2016)

Foxx,

177 F.

(citing Greene v. Dalton, 164 F.3d

671, 675 (D.C. Cir. 1999).
III. ANALYSIS
A.

The

Retaliation under the False Claims Act {Count I)

FCA was

"designed

to

protect

persons

who

assist

the

discovery and prosecution of fraud and thus to improve the federal
government's prospects of deterring and redressing crime." U.S. ex
rel. Schweizer v. Oce N.V., 677 F.3d 1228, 1237

(D.C. Cir. 2012)

(internal citations omitted). To establish a claim for retaliation
under

the

FCA,

a

Plaintiff

must

establish:

employee 'in furtherance of' a suit under
as

'protected

activity';

and

(2)
-9-

§

"(1)

acts

by

the

3730-acts also known

retaliation

by

the

employer

against

the

employee

'because

of'

those

acts."

U.S.

ex

rel.

Schweizer, 677 F.3d at 1237 (quoting United States ex rel. Yesudian
v. Howard Univ., 153 F.3d 731, 736 (D.C. Cir. 1998)).
To establish the first element of a claim under the FCA,

a

plaintiff must show that he had an "objectively reasonable basis
to believe that

[]he was investigating matters that reasonably

could lead to a viable False Claims Act case." Hoyte v. Am. Nat.
Red Cross, 518 F.3d 61, 68

(D.C. Cir. 2008)

(internal quotations

omitted). A plaintiff's belief's must have been based on "the facts
known by the employee at the time." Mann v. Heckler & Koch Def.,
Inc.,

630

F.3d

338,

344

Cir.

must

protected activity

(4th

2010).

evince

some

Furthermore,
attempt

to

"[a]
expose

possible fraud." U.S. ex rel. Owens v. First Kuwaiti Gen. Trading

& Contracting Co., 612 F.3d 724, 735 (4th Cir. 2010).
To establish the second element of a claim under the FCA, a
plaintiff must show that
employee

was

engaged

"(1)

in

the employer ha [d]

protected

activity;

knowledge the

and

(2)

[]

the

employer's adverse action against the employee [was] motivated, at
least

in

activity."

part,
Id.

by

the

employee's

(internal

engaging

quotations

in

omitted).

that
To

protected
bring

a

successful FCA claim an employee need not alert his or her employer
to the prospect of a FCA suit because the employee need not know
-10~

that his or her investigation or actions may lead to an FCA suit.
Id.

However,

a

plaintiff

must

raise

concerns

of

fraud

or

illegality to his employer outside the normal scope of his job.
See Id.
1. Plaintiff's Motion

In support of his FCA claim, Mr. Skrynnikov argues that "the
force

driving

[his]

termination was

retaliation for his vocal

________o_bj_e_c.t_i_ons__t_o__his__s_up_endsor,__ Kristin_neMent__Harris_on,_mr_er__ F_anni_e__ _
Mae's misrepresentations to the United States Senate regarding the
bonuses

that

Considered

in

Fannie Mae paid to
the

light

most

its

executives."

favorable

to

Mot.

At

Defendant,

1 7.
Mr.

Skrynnikov's Motion for Summary Judgment must be denied on this
claim.
The Court cannot grant summary judgment on Mr. Skrynnikov's
FCA claim because there is a genuine dispute of material fact as
to whether he had an "objectively reasonable belief,u Hoyte, 518
F.3d at 68, that Fannie Mae was defrauding the government based on
"the facts known by [Mr. Skrynnikov] at the time," Mann, 630 F.3d
at 344.
Defendant asserts that Mr.

Skrynnikov could not have had a

good faith basis for his belief that Fannie Mae was defrauding the
government

in

its

response

to
-11-

Sen.

Grassley's

request

for

information regarding Fannie Mae's bonus compensation, because Mr.
Skrynnikov was not privy to either the details of Sen. Grassley's
Request or the financial records and bonus plan designs relevant
to

Fannie

Skrynnikov
response

to

Mae's
nor

response.

his

the

Defendant

supervisors

were

Grassley Request.

states

that

involved

in

Tr.

at

178,

neither
Fannie

573.

Mr.

Mae's

Plaintiff

himself has admitted that he was not involved in preparing Fannie
Mae's

response

to

Senator

Grassley.

Plaintiff's

Response

to

Defendant's Statement of Material Facts,, 3-17, 19, 21-22 ("Pl.'s
Resp. to SMF")

[Dkt. No. 57-1].

Furthermore,

the information provided to Sen.

Grassley was

"highly restricted" and not readily available to all employees.
Roden

Dep.

11

[Dkt.

No.

55-4]

Defendant

asserts

that

any

information provided to employees on the FP&A team, including Mr.
Skrynnikov, did not contain any payroll or incentive compensation
data that would have been relevant to Sen.

Grassley' s Request.

Id.; Tr. 571. Without access to this information, Mr. Skrynnikov's
view that Fannie Mae's reporting of its retention bonus information
was fraudulent could not have been objectively reasonable based on
the facts available to him at the time. See Hoyte, 518 F.3d at 6869

(quoting Lang v. Nw. Univ., 472 F.3d 493, 495

("What

[FCA relator]

(7th Cir. 2006)

actually believed is irrelevant,
-12-

for people

believe the most fantastic things in perfect good faith;

a kind

heart but empty head is not enough. The right question is whether
[his] belief had a reasonable objective basis .... ").
Therefore,
remains a

in the light most favorable to Defendant,

genuine dispute of material

facts

there

as to whether Mr.

Skrynnikov's view that Fannie Mae was defrauding the government
was objectively reasonable based on the facts at his disposal.
Defendant also argues that even if Mr. Skrynnikov did engage
in protected activity, he cannot satisfy the second element of a
claim under the FCA because he has not established that Fannie Mae
knew that he was engaging in FCA-protected activity. Cross-Mot. at
13.

In order to satisfy this element,

Mr.

Skrynnikov must show

that he put Fannie Mae on notice that he was working outside the
usual course of his employment to expose the alleged fraudulent
reporting to Sen. Grassley. See Owens, 612 F.3d at 735; Schweizer,
677 F. 3d at 1238-39. "Simply reporting his concern of a mischarging
to the government to his supervisor does not suffice" to establish
that Mr. Skrynnikov was acting to expose the alleged fraud. Owens,
612 F.3d at 735.
Mr.

Skrynnikov

alleges

that

he

raised

concerns

to

his

supervisors about Fannie Mae's reporting to Sen. Grassley. Pl.'s
SMF at 11; Mot. at 19. However, Mr. Skrynnikov's supervisors have
-13-

...

testified that Mr.

Skrynnikov never raised these concerns.

Ms.

Harrison testified that Mr. Skrynnikov never spoke to her about
the Grassley request at all. Tr. at 30, 571-572. Mr. Skrynnikov's
other

supervisors,

testified that Mr.

Mr.

Roden,

Ms.

Lee,

and

Ms.

McGwin,

also

Skrynnikov did not raise concerns about the

Grassley request to them. Roden Dep. at 17; Tr. at 405, 536. Viewed
in the light most favorable to Defendant, Mr. Skrynnikov has not
shown based on undisputed facts that he put Fannie Mae on notice
of his investigation of the alleged fraud.

1

2. Defendant's Cross-Motion

Defendant argues that it is entitled to summary judgment on
Mr. Skrynnikov's FCA claim. Drawing all reasonable inferences in
favor of Mr. Skrynnikov, this court finds that genuine disputes of
fact remain such that a reasonable jury could return a verdict for
Mr. Skrynnikov on Claim I.
Defendant argues that Mr.

Skrynnikov did not engage in an

activity entitling him to the protections of the FCA because he
did not have an objectively reasonable belief that Fannie Mae was

1

Since the facts cannot support Mr. Skrynnikov's establishment of
the knowledge prong of the second element of a FCA claim, this
court will not address whether Mr. Skrynnikov has satisfied the
causation prong.
-14-

defrauded the government. Cross-Mot. at 8-13. Defendant primarily
argues

that Mr.

reasonable

Skrynnikov could not have held an objectively

belief

that

Fannie

Mae

fraudulently

reported

an

incentive compensation amount that was only twenty percent of the
actual incentive compensation amount because he was not involved
in Fannie Mae's response to the Grassley Request and he was not
privy to the information sources for Fannie Mae's response.
Mr. Skrynnikov's response to these arguments raises material
facts in dispute. Mr. Skrynnikov states that he did, in fact, have
access to the retention bonus information that Sen. Grassley was
seeking. Pl.'s Opp. at 19. One of Mr. Skrynnikov's responsibilities
in the FP&A group was to prepare a monthly BSA Report. Pl.'s SMF
~

5: Mr. Skrynnikov alleges that this document included executive

incentive compensation data that was relevant to Sen. Grassley's
Request. Id.

~

9; Pl.'s Exs. 29, 30, 31 [Dkt. Nos. 54-5, 54-6, 54-

7]. Mr. Skrynnikov explains that after seeing Fannie Mae's response
to Sen. Grassley, he realized that the reported numbers were only
about twenty percent of the number appearing in the BSA Report.
Mot. at 19.
Defendant argues that Mr.

Skrynnikov's suspicions of fraud

could not have been reasonable because he was

not

involved in

preparing Fannie Mae's response and therefore could not have known
-15-

if

the

response was correct.

Cross-Mot.

at

8-13.

However,

Mr.

Skrynnikov need not have been involved in the preparation of Fannie
Mae's response to Sen. Grassley in order to have learned of the
contents of the request and response.
Mr. Skrynnikov testified that he learned of Sen. Grassley's
Request through a daily news blast emailed to Fannie Mae employees.
Tr. at 134-35. Mr. Skrynnikov was able to read the text of Sen.
Grassley's Request online. See Pl.'s Ex. 36 at 2. With the text of
Sen. Grassley's Request in hand, Mr. Skrynnikov could reasonably
assume

that

his

request

for

bonus

amounts

relating

to

the

"Retention Program and any other bonus compensation arrangements,"
Id., included the total amount of executive incentive compensation
included in the BSA Reports.
Defendant also argues that merely comparing the BSA Report
numbers to those in Fannie Mae's response to Sen.

Grassley and

raising concerns of fraudulent reporting to supervisors is not
enough to constitute an act in furtherance of a suit under the
FCA.

However,

"internal

evidence" and "shar [ing]

reporting"

that

involves

that evidence with

classic example of protected activity."
1240.

-16-

[]

"gather [ing]

superiors"

Schweizer,

"is a

677 F. 3d at

Defendant further asserts that Mr. Skrynnikov cannot sustain
a claim under the FCA because he did not notify Fannie Mae that he
suspected fraud or illegality and did not do so outside the scope
of his job. Cross-Mot. at 13. However, Mr.

Skrynnikov testified

that he raised his concerns about the discrepancies between the
BSA Reports and Fannie Mae's response to Sen. Grassley with Ms.
Harrison twice,

because he "knew that you need to be absolutely

honest when you're answering an officer of the U.S. Government .
. and I did not feel that the answer was what was being asked,
that it was a full answer." Tr. at 148. Defendant denies that Mr.
Skrynnikov raised his concerns with Ms. Harrison, but viewed in
the light most favorable to Mr. Skrynnikov this Court cannot find
that he did not notify Defendant of his concerns.
Finally, Defendant argues that Mr. Skrynnikov was not fired
because of his investigation into Fannie Mae's response to Sen.
Grassley. Instead, Defendant argues that Mr. Skrynnikov was fired
"after

he

position

exhausted
had

been

all

his

eliminated

job-protected
and

there

was

leave
not

because
another

his
open

position for which he was qualified." Def.'s Rep. at 7. Defendant
also

points

to

Mr.

Skrynnikov's

poor

job

performance

legitimate reason for his termination. Cross-Mot. at 17.

-17-

as

a

Drawing all reasonable inferences in favor of Mr. Skrynnikov,
this Court finds that a juror could credit his testimony that Ms.
Harrison's behavior towards him changed after he expressed his
concerns about the Grassley Request. Mr. Skrynnikov also alleges
that the Fannie Mae HR department was far more involved in his
FMLA/DCFMLA

leave

certification process

than was

their

custom

leaving Mr. Skrynnikov to draw the inference that Fannie Mae was
doing so in an attempt to terminate him in retaliation for his
investigation into the company's response to the Grassley Request.
Given that this case is before the Court on a Motion for Summary
Judgment,

the Court is required to deny it because a reasonable

juror could credit Mr. Skrynnikov's testimony.
B. Interference with Plaintiff's Family Medical Leave
(Count II)

"The FMLA [] guarantees eligible employees 12 weeks of leave
. a disabling health problem."

in a 1-year period following .
Ragsdale v. Wolverine World Wide,

Inc.,

535 U.S.

81,

86

(2002).

The DCFMLA provides the same protection for a period of 16 weeks.
D. C.

Code

§

32-503.

"Leave

must

be

granted,

when

medically

necessary, on an intermittent or part-time basis," and "[u]pon the
empJ.oyee's timeJy return, the empJoyer must reinstate the employee

-18-

to his or her former position or an equivalent."

Id.

(internal

citations omitted) .
Under the FMLA, it is unlawful "for any employer to interfere
with, restrain, or deny the exercise of or the attempt to exercise,
any right provided under this chapter." 29 U.S.C.

§

2615(a) (1).

The DCFMLA provides substantially similar protections.

See D.C.

Code 35-507i DCMR 4-1621.1.
To state a claim of interference under the FMLA or DCFMLA, a
plaintiff must establish: (1) that his employer interfered with his
exercise of protected rights and (2) that the interference caused
prejudice.
LLP,

611

interferes
restrains,

See McFadden v.
F.3d

1,

with

7

Ballard,

(D.C.Cir.

protected

Spahr,

June

rights

29,

when

Andrews & Ingersoll,
2010).
it

"An

employer

interferes

with,

or denies the exercise of any right provided by the

Acts." Cobbs v. Bluemercury, Inc., 746 F. Supp. 2d 137, 144 (D.D.C.
2010)

i

29 U.S.C.

§

2615 (a) (1)

i

D.C.Code

§

32-507. "Prejudice exists

where an employee loses compensation or benefits by reason of the
violation,

sustains other monetary losses as a direct result of

the violation, or suffers some loss in employment status remediable
through appropriate equitable relief.
14 4 i 2 9 U . S . C .

§

2 61 7 ( a) ( 1 )

i

D . c . Code

-19-

Cobbs,
§

746 F.

3 2 - 5 o9 ( b) ( 6 ) .

Supp.

2d at

Neither Party disputes that Mr. Skrynnikov was fired from his
job at Fannie Mae.
would

constitute

Nor do the Parties dispute that termination
"prejudice"

under

the

second

element

of

a

FMLA/DCFMLA claim. Thus, the Parties' dispute revolves around the
first element of a claim under the FMLA/DCFMLA, that is, whether
Fannie Mae interfered with Mr. Skrynnikov's exercise of a right
under the FMLA/DCFMLA.
1. Plaintiff's Motion

Mr.

Skrynnikov alleges that Defendant violated his

rights

under the FMLA/DCFMLA in two ways. Primarily, he argues that Fannie
Mae interfered with his right to reinstatement at the end of his
protected leave period.
Under the FMLA and DCFMLA,
returned

to

the

same

position

"an employee is entitled to be
the

employee

has

been

absence.

29 CFR

§

restructured
825.214;

to

accommodate

see Joyce v.

when

leave

. even if his or her

commenced, or to an equivalent position .
position

held

the

employee's

Office of Architect of

Capitol, 966 F. Supp. 2d 15, 29 (D.D.C. 2013)

(holding that under

the FMLA, an employee "must be given the option of returning to an
equivalent

position") .

Mr.

Skrynnikov

claims

that

Fannie

Mae

denied him this right under the FMLA and DCFMLA by preventing him

-20-

from returning to work on November 2, 2009 and by terminating his
employment at the same time.
Defendant

argues

that

Mr.

Skrynnikov's

nothing to do with his FMLA leave;

rather,

termination

had

he would have been

terminated anyway because his job became automated and because of
poor performance. See Washington Convention Ctr. Auth. v. Johnson,
953 A.2d 1064, 1077 (D.C. 2008)

("It is well-established that the

federal FMLA, to which we may look for guidance, simply does not
force an employer to retain an employee

[who is]

on FMLA leave

when the employer would not have retained the employee had the
employee not been on FMLA leave")
"The
reasons,

burden

is

on

the

(internal citations omitted).

employer

to

show

that,

for

other

an employee would not have been employed when the time

for reinstatement came." Washington Convention Ctr.,
1077; Hopkins v. Grant Thornton Int'l,

953 A.2d at

851 F. Supp. 2d 146, 156

(D.D.C. 2012), aff'd sub nom. Hopkins v. Grant Thornton, LLP, 529
F. App' x 1 (D. C. Cir. 2013)
that · an

employee

("an employer has the burden of proving

dismissed during

FMLA leave

would have

been

dismissed regardless of the employee's request for leave").
Viewed in the light most favorable to Defendant, Fannie Mae
has provided sufficient evidence in support of its argument to
withstand

Plaintiff's

Motion
-21-

for

Summary

Judgment.

A

representative of Fannie Mae testified that Mr.

Skrynnikov was

fired because "the work that he had been performing over time was
fully automated." Tr. at 618-19. Furthermore, she testified that
he

"was

not

a

strong performer."

Id.

at

613.

Fannie Mae

has

provided performance reviews to support this statement. See Def.'s
Ex. 33 [Dkt. No. 55-10]. Defendant also asserts that it could not
create

a

new role

for Mr.

Skrynnikov because

FP&A

"was under

extreme budget pressure at the time resulting from the financial
crisis then roiling the country,

and nothing was backfilled for

Mr. Skrynnikov's particular position." Cross-Mot. at 27; see Tr.
at 619, 622.
Defendant also claims that Mr. Skrynnikov cannot succeed on
his FMLA/DCFMLA claim because he lacked the proper return-to-work
certification and was therefore unable to return to work when his
leave

was

exhausted

on

October

29,

2009.

Cross-Mot.

at

21.

Defendant argues that it was entitled to require additional returnto-work certification from Mr. Skrynnikov because under D.C. Mun.
Regs. 4-1615. 9 (a), an employer may require that "an employee obtain
subsequent recertif ications
extension of
beyond

what

leave or a
the

employee

if:

(a)

[t] he employee requests an

different type or frequency of
requested

in

the

certification or request for DCFMLA leave."
-22-

employee's

leave,
initial

It

is

undisputed

that

Mr.

Skrynnikov. did not

submit his

return-to-work certification for his rib injury until October 30,
2009- one day after his protected leave had expired. Pl.'s SMF ~~
52,

that

54; Def. Resp.

his

request

to Pl.'s SMF
for

~~

54. Mr. Skrynnikov denies

52,

additional

leave

constituted a request for DCFMLA leave,

for

his

rib

injury

and that his injury was

serious enough to constitute a disabling health problem under the
DCFMLA.

However,

Defendant,

a

considered

in

the

light

juror could find that Mr.

most

favorable

to

Skrynnikov was unable to

return to work when his DCFMLA leave expired due to lack of proper
return-to-work

certification.

Mr.

Skrynnikov's

Motion

must

therefore be denied on this count.
2. Defendant's Cross-Motion

Defendant asks that this Court grant Summary Judgment on Mr.
Skrynnikov's FMLA/DCFMLA claims because his job was terminated for
legitimate reasons, no comparable jobs for which he was qualified
were available, and Mr. Skrynnikov did not return to work when his
DCFMLA leave was exhausted on October 29, 2009. Mr. Skrynnikov, on
the other hand, alleges that Defendant's "legitimate reasons" for
firing him were merely pretext for retaliation in violation of the
FCA and that he was willing and able to return to work before the
expiration of his DCFMLA leave. Viewed in the light most favorable
-23-

.,

to Mr. Skrynnikov, the facts presented are sufficient to withstand
Defendant's Motion for Summary Judgment.
"For an employer lawfully to deny an employee's restoration
rights, it must show that the termination for other reasons
would have been lawful." Johnson, 953 A.2d at 1077. As detailed
above, Fannie Mae alleges that Mr. Skrynnikov was terminated
because his job became automated, because of budgetary
restrictions within his department, and because he was a poor
performer. See supra at 21-22; Price v. Washington Hosp. Ctr.,
321 F. Supp. 2d 38, 47 (D.D.C. 2004)

(refusal to reinstate

employee after FMLA leave was legitimate when employee's
position was eliminated pursuant to a reduction in force;. CrossMot. at 27; Tr. at 618-19, 622.
Mr. Skrynnikov alleges that these reasons are merely
pretext for retaliation in violation of the FCA. As explained
above, Mr. Skrynnikov

h~s

presented facts from which a

reasonable juror could conclude that he was terminated in
violation of the FCA. See supra at III.A.2. Therefore, at this
time, drawing all inferences in Mr. Skrynnikov's favor, the
Court cannot conclusively find that he was fired for legitimate
reasons.

-24-

Defendant also claims that Mr. Skrynnikov cannot succeed on
his FMLA/DCFMLA claim that he was unable to return to work when
his leave was exhausted on October 29, 2009 because he lacked the
proper return-to-work certification. Cross-Mot. at 21. Defendant
cites D.C. Mun.

Regs.

4-1615.9(a)

in support of its decision to

prohibit Mr. Skrynnikov from returning to work without a returnto-work certification for his rib injury. Def.'s Rep. at 9.
The regulations states that, "[t]he employer may require that
the employee obtain subsequent recertifications if:

[t]he employee

requests an extension of leave or a different type or frequency of
leave, beyond what the employee requested in the employee's initial
certification or request for DCFMLA leave." This regulation does
not support Fannie Mae's position.
notes,

As Mr.

Skrynnikov correctly

Section 1615 of the statute deals with certification for

DCFMLA leave, not for return to work. While a new request for leave
may trigger recertification requirements in order to implement the
leave, nothing in the statute indicates that a request based on a
new

type

of

injury

could

automatically

trigger

return-to-work

certification requirements relating to the new injury without the
employer first approving DCFMLA leave for the new injury.
Defendant next argues that even though Mr. Skrynnikov did not
formally request DCFMLA leave for his rib injury,
-25-

Fannie Mae was

at liberty to single-handedly grant him DCFMLA leave. Cross-Mot.
at 22. This argument defies logic. As Mr. Skrynnikov points out,
the purpose of the DCFMLA is to protect employees, not to impose
unwanted leave on them and prevent them from returning to work for
which they are capable of performing. See Escriba v. Foster Poultry
Farms, Inc., 743 F.3d 1236, 1244 (9th Cir. 2014) Citing Wysong v.
Dow Chem. Co., 503 F.3d 441, 449 (6th Cir.2007) for the proposition
that "[a] n involuntary-leave claim," alleging that an "employer
forces

an employee

to

take

FMLA leave,"

is

"really a

type of

interference claim").
Drawing all reasonable inferences in Mr. Skrynnikov's favor,
he has presented facts that indicate that he did not want to be
placed on DCFMLA leave for his rib injury, but simply requested to
use vacation days while his ribs finished healing. See Pl.'s SMF
~40;

Pl.'s Ex.

68. Assuming this is true,

Fannie Mae was not at

liberty to prevent Mr. Skrynnikov from returning to work without
additional certification under the DCFMLA.

-26-

IV.

CONCLUSION

For the

foregoing

reasons,

Plaintiff's Motion for

Summary

Judgment shall be denied; and Defendant's Cross-Motion for Summary
Judgment shall be denied. An Order shall accompany this Memorandum
Opinion.

January

1_,

2017

Gladys Ke sler
United States District Judge

Copies to: attorneys on record via ECF

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