CORBIN v. NAVICENT HEALTH INC
ORDER granting 28 Motion in Limine; granting 29 Motion in Limine; granting 30 Motion in Limine; granting 31 Motion in Limine; granting 32 Motion in Limine; granting 33 Motion in Limine; granting 34 Motion in Limine; granting 35 Motion in Limine; granting 36 Motion in Limine; granting 37 Motion in Limine. Ordered by US DISTRICT JUDGE C ASHLEY ROYAL on 3/31/2017 (lap)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MEDICAL CENTER, NAVICENT
HEALTH f/k/a THE MEDICAL
CENTER OF CENTRAL GEORGIA,
No. 5:15‐CV‐153 (CAR)
ORDER ON PLAINTIFF’S FMLA INTERFERENCE CLAIMS AND
DEFENDANT’S MOTIONS IN LIMINE
Rulings from the Pretrial Conference
On February 14, 2017, the Court held a pretrial conference in this case and, for
the reasons explained during the conference, GRANTED Defendant’s Motions in
Limine #1, 2, 4, 5, 6, and 10 [Docs. 28, 29, 31, 32, 33, and 37]. The Court reserved ruling
on the remaining Motions in Limine and requested trial briefs on certain issues from the
parties. The parties have filed such briefs.
On March 16, 2017, the Court held a telephone conference with the parties and
informed them Plaintiff may only proceed to trial on her FMLA Retaliation claim, thus
GRANTING Defendant’s Motions in Limine #3, 7, and 8 [Docs. 30, 34 and 35]. The
Court now issues this Order to further explain its ruling regarding Plaintiff’s FMLA
Interference Claims and, by extension, Defendant’s Motions in Limine #3, 7, and 8
concerning such claims. The Court also GRANTS Defendant’s Motion in Limine #9
Plaintiff’s FMLA Interference Claims
Throughout summary judgment, both parties discussed Plaintiff’s FMLA
Interference claim in general terms. For the first time at the pretrial conference, Plaintiff
identified, or as she argues, articulated, her FMLA Interference Claims. Plaintiff
contends Defendant interfered with her exercise of FMLA leave by: (1) deterring or
(“Deterrence/Discouragement Claim”); (2) failing to inform Plaintiff she may be entitled
to intermittent leave after being placed on notice that Plaintiff’s daughter suffered a
serious medical condition (“Notice of Eligibility Claim”); and (3) assessing negative
attendance points for exercising protected leave (“Assessing Negative Attendance
Defendant seeks to exclude all evidence relating to these claims and argues these
claims cannot proceed as a matter of law for several reasons. Because Plaintiff cannot
prove she suffered any harm as a result of Defendant’s presumed interference with her
FMLA rights, the Court agrees with Defendant that Plaintiff’s Interference Claims
cannot proceed to the jury. Thus, the Court will not address Defendant’s other
The Eleventh Circuit has held that “[t]o prove FMLA interference, [Plaintiff]
must demonstrate ‘that she was denied a benefit to which she was entitled under the
FMLA,’ and that she ‘has been prejudiced by the violation in some way.’”1 “[T]o prove
that she was ‘prejudiced’ by an FMLA violation, a plaintiff [ ] need only demonstrate
some harm remediable by either ‘damages’ or ‘equitable relief.’”2 “Generally, proof of
injury under the FMLA requires evidence that the Plaintiff was denied leave
A plaintiff “may not recover for ‘technical infractions under the FMLA . . . in the
absence of damages.’”4 Ultimately, like the court in Graham v. State Farm Mut. Ins. Co.,
this Court “need not address the technical violations of [Plaintiff’s] FMLA [claims] in
detail because Plaintiff has simply failed to demonstrate that she suffered any ‘adverse
employment action’ for purposes of [ ] the FMLA.”5
A. Deterrence/Discouragement Claim
Plaintiff alleges she was deterred from using FMLA leave, as evidenced by the
series of text messages between Plaintiff and her direct supervisor Preston Barber. The
FMLA does not define “interference,” but Department of Labor regulations provide that
Evans v. Books‐A‐Million, 762 F.3d 1288, 1295 (11th Cir. 2014) (quoting Martin v. Brevard Cnty. Pub. Sch.,
543 F.3d 1261, 166‐67 (11th Cir. 2008) and Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002))
2 Id. at 1296 (citations omitted).
3 De La Garza‐Crooks v. AT&T, 252 F.3d 436,
4 Demers v. Adams Homes of NW Fla., Inc., 321 F. App’x 847, 849 (11th Cir. 2009) (quoting Graham v. State
Farm Mut. Ins. Co., 193 F.3d 1274, 1284 (11th Cir. 1999)).
5 193 F.3d 1274, 1283 (11th Cir. 1999).
interference with the exercise of an employee’s rights includes not only refusing to
authorize FMLA leave, but also discouraging an employee from using such leave.6 The
FMLA prohibits employer activities that “deter employees’ participation” in activities
protected by the FMLA.7 The Eleventh Circuit Court of Appeals has not addressed what
constitutes an actionable discouragement claim. However, most courts that have
addressed this issue find the employer’s actions must be more than “minimally
intrusive,”8 and the employee must suffer some kind of prejudice or harm from the
Here, even assuming Barber’s text messages constitute an employer action that is
more than “minimally intrusive,” Plaintiff’s Deterrence/Discouragement claim is not
actionable because she did not suffer any harm or prejudice as a result of the
discouragement. The Eleventh Circuit has held that “a plaintiff suffers no FMLA injury
29 C.F.R. § 825.220(b).
Stallings v. Hussmann Corp., 447 F.3d 1041, 1050 (8th Cir. 2006).
8 Fraternal Order of Police v. City of Camden, 842 F.3d 231 (3d Cir. 2016) (court found employer’s actions in
visiting employee once at employee’s house “minimally intrusive” and thus discouragement claim not
actionable); see also Bailey v. Miltope Corp., 513 F. Supp. 2d 1232 (M.D. Ala. 2007) (discouragement claim
not actionable where supervisor discussed death of his father, stated how important plaintiff was to the
company, and that the company really needed plaintiff); compare Saroli v. Automation, 405 F.3d 446 (6th
Cir. 2005) (discouragement claim actionable where employer failed to respond to employee’s FMLA
inquiries and inform employee of eligibility); Xin Liu v. Amway Corp., 347 F.3d 1125, 1133‐34 (9th Cir.
2003) (discouragement claim actionable where employer pressured employee to reduce leave time and
refused to grant FMLA extensions).
9 See Fraternal Order of Police, 842 F.3d at 246 (“The FMLA provides no relief unless the employee has been
prejudiced by the violation”) (citation and internal quotation marks omitted); Estrada v. Cypress, 616 F.3d
866 (8th Cir. 2010) (interference “occurs when an employer’s action deters or attaches negative
consequences to the employee’s exercise of FMLA rights.”); Mardis v. Central National Bank & Trust, 173
f.3d 864 10th Cir. 1999) (“mere postponement of a scheduled vacation and temporary restriction of use of
vacation leave [ ] with no ultimate loss of accrued benefits would likely not constitute actionable
when she receives all the leave she requests[.]”10 Plaintiff received all of the FMLA leave
she requested after Barber sent the text messages. Plaintiff contends her termination is
the harm suffered. The record, however, reflects no evidence her termination resulted
from Barber discouraging Plaintiff to take or request FMLA leave.
B. Notice of Eligibility and Assessing Negative Attendance Points Claims
Plaintiff also contends that prior to October 20, 2014, she placed Defendant on
sufficient notice that her absences regarding care for her child were due to a potentially
FMLA‐qualifying reason (her daughter’s serious medical condition) thus triggering
Defendant’s duty to inform her of intermittent FMLA benefits.11 Plaintiff identifies three
dates—October 14, 2013, April 14, 2014, and October 8, 2014—she claims Defendant
penalized her for missing work that should have been covered under FMLA. On
October 14, 2013, Plaintiff was absent for a “child care issue” and assessed 1.0 point. Six
months later, on April 14, 2014, she was absent because “child sick” and assessed 1.0
point. Six months after that, on October 8, 2014, she was tardy for a “child doctor’s
appointment” and assessed 0.25 points. Plaintiff contends these FMLA‐qualifying
absences were used to justify her termination and are thus actionable as FMLA
interference. The Court disagrees.
Even assuming Plaintiff’s Complaint sufficiently notified Defendant of these
interference claims, Plaintiff cannot prove she suffered any harm as a result of
Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1275 (11th Cir. 1999).
See 29 C.F.R. § 825.300.
Defendant’s failure to inform Plaintiff of her potential eligibility for intermittent FMLA
leave prior to October 20, 2014. The three dates Plaintiff identifies as wrongly‐assessed
attendance violations would not have changed the fact she was on her second
attendance probation when she was terminated; thus Plaintiff has no actionable harm
on which to proceed with these interference claims to the jury.
At the time Defendant terminated her, Plaintiff had received her second
probation for attendance violations based on more than 10.0 points for unexcused
absences and tardies. The three dates Plaintiff now identifies show Defendant may have
wrongly assessed her 2.25 points. However, even assuming Defendant did wrongfully
assess these 2.25 points, pursuant to Defendant’s Attendance Policy, Plaintiff still would
have been on probation for accumulating more than 2.5 points worth of tardies.
Defendant’s Attendance Policy states an employee will be put on probation for
accumulating 2.5 points worth of tardies.12 Thus, the result—Plaintiff’s second
probation for attendance violations—would have been the same. Plaintiff cannot show
Defendant’s lack of proper noticed caused her any injury.
At most, any failure by Defendant to notify Plaintiff of her potential eligibility for
intermittent FMLA leave prior to October 20, 2014, would be a technical violation of the
FMLA, with no resulting harm. As stated earlier, a plaintiff “may not recover for
Doc. 13‐5, pp. 144, 157.
technical infractions under the FMLA . . . in the absence of damages.”13 Despite
Plaintiff’s arguments to the contrary, her termination cannot serve as the harm to
support the Notice of Eligibility Claim. The evidence here only sufficiently supports
Plaintiff’s claim Defendant terminated her in retaliation for exercising her FMLA
leave.14 Thus, Plaintiff only proceed on her FMLA retaliation claim.
Accordingly, Plaintiff may not present her FMLA Interference Claims to the jury;
as a result Defendant’s Motions in Limine 3, 7, and 8 [Docs. 30, 34 and 35] are
GRANTED. Defendant’s Motion in Limine 9 [Doc. 36] regarding after‐acquired
evidence is also GRANTED.
SO ORDERED, this 31st day of March, 2017.
S/ C. Ashley Royal
C. ASHLEY ROYAL, SENIOR JUDGE
UNITED STATES DISTRICT COURT
Demers, 321 F. App’x at 849; see also Dodgens v. Kent Manuf. Co., 955 F. Supp. 560, 564‐65 (D.S.C. 1997)
(employer’s failure to explain FMLA benefits to plaintiff constituted interference, but it would be
“elevating form over substance to permit [plaintiff’s] claim to go forward in light of the fact that [he]
received all of the leave benefits that he was guaranteed pursuant to the FMLA.”).
14 See Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 598 F. App’x 109 (3rd Cir. 2015) (plaintiff has no
“automatic right to claim interference where . . . the claim is so clearly redundant of the retaliation claim.”
Plaintiff’s claim was in “form and substance . . . a claim for retaliation” where plaintiff had not claimed
“that any benefits were actually withheld.”).
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