Dennis v. Potter et al
Filing
58
OPINION AND ORDER: GRANTING in its entirety 52 MOTION for Reconsideration re 50 Opinion and Order, Order Referring Case to Magistrate Judge by Dft United States Postal Service. The clerk is directed to ENTER FINAL JUDGMENT: Judgment is e ntered in favor of defendants the United States Postal Service and United States Postmaster General Megan Brennan, and against plaintiff Carolyn Dennis, who shall take nothing by way of her complaint. Signed by Senior Judge James T Moody on 8/25/2015. (lhc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
CAROLYN S. DENNIS,
Plaintiff,
v.
JOHN E. POTTER, et al.,
Defendants.
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No. 1:11 CV 58
OPINION AND ORDER
Defendants the United States Postal Service and United States Postmaster
General Megan Brennan1 have moved for reconsideration of the court’s order granting
in part and denying in part their motion for summary judgment. (DE # 52.) Plaintiff has
filed a response (DE # 56), and defendants have filed a reply (DE # 57). For the
following reasons, defendants’ motion for reconsideration is granted.
In its original order on defendants’ motion for summary judgment, the court
granted defendants’ motion as it related to plaintiff’s Title VII claim but denied the
motion as it related to plaintiff’s FMLA claim.2 (DE # 50.) With regard to plaintiff’s
1
Plaintiff originally sued a different Postmaster General. Postmaster General
Brennan took office in 2015. See Fed. R. Civ. Pro. 25(d).
2
It is important to keep in mind which of defendants’ actions plaintiff actually
contends violated the FMLA. In her amended complaint, plaintiff identifies the alleged
FMLA violation in this case – the delay in approving one leave slip. (DE # 32 at 3 ¶ 18.)
Plaintiff confirmed that allegation in her response to defendants’ original motion for
summary judgment, noting that she turned in a leave slip on March 2, 2010, which was
not timely approved, and that violated the FMLA. (DE # 47 at 23.) Plaintiff also
explained that she believed defendants violated the FMLA when plaintiff submitted
leave slips that were intended to be FMLA leave but defendants did not grant the leave
FMLA claim, the court concluded that plaintiff suffered harm as a result of the alleged
FMLA violations because she was forced to use other types of leave after her leave was
not designated FMLA leave. Defendants now seek reconsideration of that conclusion.
Plaintiff alleges that defendants are liable for violating the FMLA. (DE # 47 at
22.) “The FMLA makes available to eligible employees up to twelve weeks of leave
during any twelve-month period for . . . the inability of the employee himself to
perform the functions of his position because of a serious health condition.” Harrell v.
U.S. Postal Serv., 445 F.3d 913, 919 (7th Cir. 2006). “At the conclusion of a qualified-leave
period, the employee is entitled to return to his former position of employment, or to an
equivalent one, with the same terms and benefits.” Id. “To protect these rights, the
FMLA declares it ‘unlawful for any employer to interfere with, restrain, or deny the
exercise of or the attempt to exercise, any right provided.’” Id. (quoting 29 U.S.C.
§ 2615(a)(1)).
“To prevail on an FMLA interference claim, an employee must show that: (1) she
was eligible for FMLA protection; (2) her employer was covered by the FMLA; (3) she
was entitled to leave under the FMLA; (4) she provided sufficient notice of her intent to
under the FMLA. (DE # 47 at 10.)
In her response to defendants’ current motion, plaintiff alleges a great deal of
additional facts which she contends violated the FMLA. (DE # 56.) The court will
disregard these additional facts, however, as plaintiff has not supported any of the facts
with admissible evidence and because plaintiff cannot use this response brief to amend
her amended complaint. Anderson v. Donahoe, 699 F.3d 989, 997 (7th Cir. 2012) ( “[A]
plaintiff may not amend his complaint through arguments in his brief in opposition to a
motion for summary judgment.” (citations and quotations omitted)). For a more
detailed explanation of plaintiff’s allegations regarding her FMLA claim, see DE # 50.
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take FMLA leave; and (5) her employer denied her the right to FMLA benefits.”
Nicholson v. Pulte Homes Corp., 690 F.3d 819, 825 (7th Cir. 2012). Under the FMLA, “[t]itle
29 U.S.C. § 2617(a)(l) holds an employee liable for damages if it violates 28 U.S.C. § 2615
(interference with rights, proceedings, or inquiries)[.]” Velyov v. Frontier Airlines Inc.,
No. 14 CV 71 PP, 2015 WL 3397700, at *5 (E.D. Wis. May 26, 2015)
In order to be entitled to relief, a plaintiff must show that she was “prejudiced”
by the FMLA violation:
To prevail under the cause of action set out in § 2617, an employee must
prove, as a threshold matter, that the employer violated § 2615 by interfering
with, restraining, or denying his or her exercise of FMLA rights. Even then,
§ 2617 provides no relief unless the employee has been prejudiced by the
violation: The employer is liable only for compensation and benefits lost “by
reason of the violation,” § 2617(a)(1)(A)(i)(I), for other monetary losses
sustained “as a direct result of the violation,” § 2617(a)(1)(A)(i)(II), and for
“appropriate” equitable relief, including employment, reinstatement, and
promotion, § 2617(a)(1)(B). The remedy is tailored to the harm suffered.
Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002). Thus, if a plaintiff suffered
no harm from an FMLA violation, she is not entitled to any relief. Franzen v. Ellis Corp.,
543 F.3d 420, 426 (7th Cir. 2008) (“[S]ection 2617 provides no relief unless the plaintiff
can prove that he was prejudiced by the violation.”); Edgar v. JAC Products, Inc., 443 F.3d
501, 509-10 (6th Cir. 2006) (defendant is entitled to summary judgment on an FMLA
claim if a plaintiff has suffered no damages); Williams v. Toyota Motor Mfg., Ky., Inc., 224
F.3d 840, 844-45 (6th Cir. 2000) (“Williams has pointed to no economic benefits that she
has lost from the denial of FMLA leave. In fact, Williams offered no evidence of any
damages in her brief or at oral argument.”), rev’d on other grounds, 534 U.S. 184, 122 S.Ct.
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681, 151 L.Ed.2d 615 (2002); Cianci v. Pettibone Corp., 152 F.3d 723, 728-29 (7th Cir. 1998)
(“Cianci did not suffer any diminution of income, and, on the record before us, incurred
no costs as a result of the alleged violation. . . . On this record, Cianci has failed to come
forth with any evidence that she has a remedy under the FMLA. In the absence of such
support, summary judgment on behalf of the defendant was proper.”);
Benz v. W. Linn Paper Co., 803 F. Supp. 2d 1231, 1250 (D. Or. 2011) (“[T]he FMLA
provides only actual economic damages, and no damages for emotional distress.”
(citations and quotations omitted)).
In their motion for reconsideration, defendants argue that they are entitled to
summary judgment on plaintiff’s FMLA claim because even assuming there was an
FMLA violation in this case, plaintiff has not suffered any actual harm as a result of the
violation. (DE # 53 at 6.) In response, plaintiff claims that she suffered the following
harm as a result of the alleged FMLA violation:
Plaintiff’s FLMA rights were interfered with, or denied and as a result was
prejudiced in the form of delayed pay, impact on retirement, use of her funds
and change of work hours and assignment and duties, her overtime work
hours and lost interest. Plaintiff suffered actual harm so there is an FMLA
claim. Plaintiff was actually prejudiced by having Defendants conduct thrust
upon her. Who wants to be repeatedly not paid correctly for weeks at a time?
(DE # 56 at 6 [all sic].)
With regard to plaintiff’s claim that she suffered harm in the form of delayed
pay, defendants correctly point out that there is no evidence that the delays in pay
plaintiff complains about had anything to do with the alleged FMLA violations.
(DE # 57 at 8.) As the court explained in the fact section of its original order, there is no
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evidence linking the delays in pay to plaintiff’s alleged FMLA leave requests. (DE # 50
at 5-8.) In her current response brief, plaintiff fails to cite the record or explain how the
alleged FMLA violations resulted in delayed payments. (DE # 56 at 6.) Thus, plaintiff
has not shown that any delayed payment was a harm caused by the alleged FMLA
violations.
Plaintiff also claims that the alleged FMLA violations impacted her “retirement,
use of her funds and change of work hours and assignment and duties, her overtime
work hours and lost interest.” (DE # 56 at 6.) It is not entirely clear what plaintiff is
referring to here, as she neither explains this assertion nor cites to the record to support
it. (Id.) In her original response brief, plaintiff asserted that certain actions taken by
defendant impacted her retirement benefits, but, as the court noted, plaintiff did not
support that assertion with evidence in the record. (DE # 50 at 21.) Here too plaintiff
fails to direct the court to any evidence that she suffered any of the above-quoted harms
as a result of the alleged FMLA interference. And it is not the court’s job to make
plaintiff’s case for her. Campania Mgmt. Co., Inc. v. Rooks, Pitts & Poust, 290 F.3d 843, 853
(7th Cir. 2002) (“[I]t is universally known that statements of attorneys are not
evidence.”); see also U.S. v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“Judges are not like
pigs, hunting for truffles buried in briefs.”); Dominguez v. Quigley’s Irish Pub, Inc., 790 F.
Supp. 2d 803, 805 (N.D. Ill. 2011) (The court “is not required to scour the record for
evidence that supports a party’s case if the party fails to point it out; that is the counsel’s
job.”). Additionally, plaintiff fails to direct the court to any evidence that the alleged
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FMLA violations had any impact on her use of “funds[,]” her overtime hours, her
works assignments and duties, and any interest payments she may have been owed.
In its original opinion, the court noted that plaintiff had been damaged by not
being granted FMLA leave because she was instead required to use other forms of
leave. (DE # 50 at 28.) Plaintiff, however, does not actually explain how not being
granted FMLA leave for these instances harmed her. It is undisputed that plaintiff never
missed a scheduled appointment; every time plaintiff requested time off to attend a
doctor’s appointment she was granted time off to attend the appointment. (DE # 50 at 78.) Although the leave was not designated as FMLA leave, plaintiff fails to direct the
court to any evidence that she was harmed by this leave not being designated as FMLA
leave. There is no evidence that plaintiff suffered any monetary losses as a result of this
leave not being designated as FMLA leave, and plaintiff has not asked for any sort of
equitable relief. Ragsdale, 535 U.S. at 89. There is simply no evidence that plaintiff was
harmed in any way when this leave was not designated as FMLA leave.
The court is cognizant that a motion to reconsider should only be granted in
extraordinary circumstances, but the decision whether to grant a motion to reconsider is
squarely within the court’s discretion. Caisse Nationale de Credit Agricole v. CBI Indus.,
Inc., 90 F.3d 1264, 1270 (7th Cir. 1996). In this case, plaintiff has failed to direct the court
to any evidence that she was harmed by defendants’ alleged FMLA violations. Without
any such evidence, summary judgment in defendants’ favor is appropriate. Cianci, 152
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F.3d at 728-29. The court need not spend any further judicial resources on a doomed
claim.
For the foregoing reasons, defendants’ motion to reconsider (DE # 52) is
GRANTED. Defendants’ motion for summary judgment is therefore granted in its
entirety. There being no claims remaining against defendant in this case, the clerk is
directed to ENTER FINAL JUDGMENT as follows:
Judgment is entered in favor of defendants the United States Postal
Service and United States Postmaster General Megan Brennan, and
against plaintiff Carolyn Dennis, who shall take nothing by way of her
complaint.
SO ORDERED.
Date: August 25, 2015
s/James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT
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