LoFrisco v. SF Glen Oaks, LLC

Filing 27

ORDER denying 18 Defendant's Motion for summary judgment. Signed by Judge James S. Moody, Jr on 10/6/2015. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

BARBARA M. LOFRISCO,
Plaintiff,
v.

Case No. 8:14-cv-2780-T-30AEP

SF GLEN OAKS, LLC,
Defendant.
_____________________________________/

ORDER
THIS CAUSE comes before the Court upon Defendant’s Motion for Summary
Judgment (Dkt. 18) and Plaintiff’s Response in Opposition (Dkt. 24). The Court, having
considered the motion, response, record evidence, and being otherwise advised in the
premises, concludes that the motion should be denied.
RELEVANT FACTS
In this action, Plaintiff Barbara M. LoFrisco alleges that her employer Defendant SF
Glen Oaks, LLC unlawfully terminated her while she was on approved medical leave under
the Family Medical Leave Act (“FMLA”). She alleges two causes of action based on this
termination: (1) interference under the FMLA and (2) retaliation under the FMLA. The
Court now turns to the relevant facts.1

1

These facts are taken in a light most favorable to LoFrisco, the non-movant.

On March 15, 2010, Glen Oaks hired LoFrisco as the Director of Housekeeping. Glen
Oaks is a 76-bed facility that offers skilled nursing and long term care services. As the
Director of Housekeeping, LoFrisco supervised a team of approximately ten to twelve
employees and was responsible for ensuring the laundry was clean, ordering supplies,
managing the floor techs, and ensuring that each room at Glen Oaks was thoroughly cleaned.
Glen Oaks’ policy under the Family Medical Leave Act (“FMLA”) requires, in
relevant part, that an employee exercising approved medical leave under the FMLA provide
Glen Oaks with a medical certificate from her health care provider indicating that the
employee is able, or fit, to return to work. Specifically: “Associates returning from medical
leave must provide a physician’s verification of their fitness to return to work within two (2)
business days of the intended return to work date.” (Dkt. 18-4 at ¶E). Glen Oaks’ leave
policy also states, in relevant part: “If an associate fails to report to work promptly at the end
of the medical leave, Gulf Coast Health Care will assume that the associate has abandoned
their position (Category 1 Offense); unless they submit their resignation prior to their medical
leave ending.” Id. at ¶M.
LoFrisco took FMLA qualifying leave on two separate occasions during the twelve
months that preceded her termination. On January 29, 2013, she received leave from
approximately February 21, 2013, through April 1, 2013, in order to have breast cancer
surgery. Nearly two months later, on May 28, 2013, LoFrisco was hospitalized for
diverticulitis and underwent immediate surgery. According to LoFrisco, she remained
hospitalized until June 25, 2013. LoFrisco’s granddaughter contacted Roy Daniel Newland,
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Glen Oaks’ Administrator, and informed him of LoFrisco’s hospitalization. Glen Oaks
approved LoFrisco for an FMLA medical leave of absence beginning on June 7, 2013.
Because LoFrisco had previously taken FMLA leave, her twelve weeks of FMLA leave
expired on July 23, 2013.
At some time during this most recent leave, Glen Oaks mailed LoFrisco a letter
confirming that her leave exhausted on July 23, 2013, and that “[i]t is anticipated that you
will be able to return to work on 7-23-13.” (Dkt. 18-8). The letter also notified LoFrisco that
“[i]f we do not hear from you within three (3) business days of receipt of this letter, we will
consider you’ve voluntarily resigned.” Id.
LoFrisco was hospitalized from May 28, 2013, to June 25, 2013. According to
LoFrisco, on June 28, 2013, she telephoned Newland and advised him that she would be
returning to work on Monday, July 8, 2013. LoFrisco testified that her doctor, Dr.
Radhakrishna Rao, provided Glen Oaks with a fitness-for-duty certification. According to
LoFrisco, later that same day, on June 28, 2013, Newland called her and informed her that
she was terminated. LoFrisco was shocked and did not understand why she was terminated.
Two days later, on June 30, 2013, Glen Oaks placed an advertisement in the Tampa Bay
Times for a Housekeeping & Laundry Director, which was LoFrisco’s position. Newland
made the decision to place the advertisement.
Glen Oaks’ position in this case is that LoFrisco was terminated effective July 30,
2013, for her failure to respond to its letter requesting that she indicate that she was able to
return to work on July 23, 2013, and her failure to provide Glen Oaks with a fitness-for-duty
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certification prior to that date. Glen Oaks now moves for summary judgment on LoFrisco’s
FMLA claims. As these pertinent facts manifest, the record is rife with material disputed
facts. As such, Glen Oaks’ motion is denied as explained further below.
SUMMARY JUDGMENT STANDARD OF REVIEW
Motions for summary judgment should be granted only when the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits,
show there is no genuine issue as to any material fact and that the moving party is entitled
to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). The existence of some factual disputes between the litigants will not defeat
an otherwise properly supported summary judgment motion; “the requirement is that there
be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986) (emphasis in original). The substantive law applicable to the claimed causes of action
will identify which facts are material. See id. Throughout this analysis, the court must
examine the evidence in the light most favorable to the non-movant and draw all justifiable
inferences in its favor. See id. at 255.
Once a party properly makes a summary judgment motion by demonstrating the
absence of a genuine issue of material fact, whether or not accompanied by affidavits, the
nonmoving party must go beyond the pleadings through the use of affidavits, depositions,
answers to interrogatories and admissions on file, and designate specific facts showing that
there is a genuine issue for trial. See Celotex, 477 U.S. at 324. The evidence must be
significantly probative to support the claims. See Anderson, 477 U.S. at 248-49 (1986).
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This Court may not decide a genuine factual dispute at the summary judgment stage.
See Fernandez v. Bankers Nat’l Life Ins. Co., 906 F.2d 559, 564 (11th Cir. 1990). “[I]f
factual issues are present, the Court must deny the motion and proceed to trial.” Warrior
Tombigbee Transp. Co. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir. 1983). A dispute
about a material fact is genuine and summary judgment is inappropriate if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party. See Anderson,
477 U.S. at 248; Hoffman v. Allied Corp., 912 F.2d 1379 (11th Cir. 1990). However, there
must exist a conflict in substantial evidence to pose a jury question. See Verbraeken v.
Westinghouse Elec. Corp., 881 F.2d 1041, 1045 (11th Cir. 1989).
DISCUSSION
The FMLA entitles an eligible employee to take twelve workweeks of leave during
any twelve-month period because of a “serious health condition that makes the employee
unable to perform the functions of the position of such employee.” See 29 U.S.C. §
2612(a)(1)(D). In addition to taking twelve weeks of leave at once, an employee may take
intermittent leave in separate blocks of time because of a single qualifying medical reason.
See 29 C.F.R. § 825.202(a). To preserve these rights to take leave, the FMLA creates two
types of claims: interference claims, in which an employee alleges that her employer denied
her a benefit guaranteed under the Act, see 29 U.S.C. § 2615(a)(1), and retaliation claims,
in which an employee asserts that her employer discriminated against her because she
engaged in activity protected by the Act, see 29 U.S.C. § 2615(a)(2).

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Interference and retaliation claims have different standards of proof. To state an
interference claim, a plaintiff must demonstrate that she was entitled to a benefit under the
FMLA and the employer denied her the benefit. See Strickland v. Water Works & Sewer Bd.
of the City of Birmingham, 239 F.3d 1199, 1206-07 (11th Cir. 2001). The employer’s
motives are irrelevant. See id. at 1208. In contrast, to succeed on a retaliation claim, a
plaintiff must show that the employer acted with discriminatory or retaliatory animus when
the plaintiff was discharged. See id. at 1207.
I.

LoFrisco’s Interference Claim
Glen Oaks contends that the undisputed facts demonstrate that it did not interfere with

LoFrisco’s FMLA rights. The Court disagrees. As Glen Oaks even acknowledges, under
the FMLA, an employee is entitled to be restored to her position of employment or an
equivalent position upon her return. This is referred to as a right to reinstatement. See
Martin v. Brevard Cnty. Public Schs., 543 F.3d 1261, 1267 (11th Cir. 2008) (discussing
same). But Glen Oaks argues that it did not interfere with LoFrisco’s right to reinstatement
because it terminated her after she failed to provide the fitness-for-duty certification and
failed to return to work at the expiration of her FMLA leave. These facts are heavily
disputed in the record.
According to LoFrisco, Glen Oaks terminated her on June 28, 2013. As such, she was
never provided the opportunity to return to work. LoFrisco also states that her doctor
provided the fitness-for-duty certification to Glen Oaks. Notably, if you believe LoFrisco’s
version of what occurred, the fitness-for-duty certification was not even required as of June
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28, 2013, when she claims she was terminated, because, under Glen Oaks’ policy, the
certification was not due until two business days of the intended return to work date.
Glen Oaks also argues that LoFrisco’s medical records indicate that she was unable
to return to work at the expiration of her FMLA leave. Specifically, LoFrisco’s medical
records reflect that she was hospitalized at Largo Medical Center on July 22, 2013, until July
30, 2013. The record is disputed on this issue as well. LoFrisco testified that she was fit to
return to work on July 8, 2013, which is when she planned to return to work. Her medical
records also indicate that, prior to her hospitalization on July 22, 2013, LoFrisco was “in her
usual state of health . . .” (Dkt. 18-12). Thus, Glen Oaks’ argument on this issue fails
because the jury could find that LoFrisco was fit to work on July 8, 2013.
In sum, there are genuine issues of material fact with respect to LoFrisco’s
interference claim. A jury could believe LoFrisco’s version of events: that she informed
Newland on June 28, 2013, that she was fit to return to work on July 8, 2013 (prior to the
expiration of her leave under the FMLA); Newland informed LoFrisco that she was
terminated; and, two days later, Newland advertised LoFrisco’s position in the paper.
Therefore, summary judgment on this claim is improper.
II.

LoFrisco’s FMLA Retaliation Claim
Glen Oaks relies on the same disputed facts to assert that it is entitled to summary

judgment on LoFrisco’s FMLA retaliation claim. LoFrisco argues that it had a legitimate,
non-discriminatory reason for LoFrisco’s termination because she did not return to work at
the expiration of her FMLA leave and she did not complete the fitness-for-duty certification.
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These arguments fail for the same reasons that the Court discussed under the interference
claim, even under the burden-shifting framework established in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973), which is applied in evaluating FMLA retaliation claims.
Specifically, to state a claim of FMLA retaliation, an employee must first establish a
prima facie case of retaliatory discharge. An employee must show that: (1) she engaged in
statutorily protected conduct; (2) she suffered an adverse employment action; and (3) there
is a causal connection between the protected conduct and the adverse employment action.
See Strickland, 239 F.3d at 1207. Once an employee establishes a prima facie case, the
burden of production shifts to the employer “to articulate a legitimate reason for the adverse
action.” Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1297 (11th Cir. 2006).
If the employer does so, the employee must then show that the employer’s proffered
reason was pretextual by presenting evidence “sufficient to permit a reasonable fact finder
to conclude that the reasons given by the employer were not the real reasons for the adverse
employment decision.” Id. at 1298 (quoting Chapman v. AI Transp., 229 F.3d 1012, 1024
(11th Cir. 2000)). To show pretext, the employee may rely on evidence that he already
produced to establish his prima facie case. See Brevard Cnty. Pub. Schs., 543 F.3d at 1268.
The record taken in a light most favorable to LoFrisco reflects a prima facie case:
Glen Oaks terminated LoFrisco while she was still exercising her approved leave under the
FMLA and immediately after LoFrisco informed Glen Oaks that she would be returning to
work prior to the expiration of that leave. Glen Oaks’ nondiscriminatory reason, that it
terminated LoFrisco for failing to return after the expiration of the leave and failing to
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provide the fitness-for-duty certification, is disputed in the record as explained in more detail
under the interference claim. As such, the Court cannot decide these issues as a matter of law
and summary judgment on this claim is improper.
It is therefore ORDERED AND ADJUDGED that Defendant’s Motion for Summary
Judgment (Dkt. 18) is denied.
DONE and ORDERED in Tampa, Florida on October 6, 2015.

Copies furnished to:
Counsel/Parties of Record
S:\Even\2014\14-cv-2780.msj-18-FMLA-deny.frm

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