Archey v. AT&T Corp. et al
Filing
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MEMORANDUM OPINION & ORDER: (1) Defendants Motion for Summary Judgment 40 is DENIED; and (2) Within twenty (20) days from the date of entry of this Memorandum Opinion and Order, the parties shall file a Joint Status Report, setting forth available dates for a Final Pretrial Conference and Jury Trial, and whether they would be amenable to a court-facilitated settlement Conference on the remaining claims.. Signed by Judge David L. Bunning on 03/29/2019.(KRB)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
AT COVINGTON
CIVIL ACTION NO. 17-91-DLB-CJS
LORI ARCHEY
v.
PLAINTIFF
MEMORANDUM OPINION AND ORDER
AT&T MOBILITY SERVICES LLC, et al.
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DEFENDANTS
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This matter is before the Court on Defendants AT&T and Amy Waymire’s Joint
Motion for Summary Judgment on Plaintiff Lori Archey’s claims under the Family &
Medical Leave Act (FMLA) (Doc. # 40). In their Motion, Defendants argue Plaintiff has
failed to establish a prima facie case of FMLA interference or retaliation because she
cannot demonstrate that she gave proper notice of her FMLA-related absence. In the
alternative, Defendants assert that Plaintiff’s claims are time-barred under the FMLA’s
two-year statute of limitations. The Court has jurisdiction over this matter pursuant to 28
U.S.C. §§ 1331, 1441, and 1446. For the reasons set forth below, Defendants’ Motion is
denied.
I.
FACTUAL AND PROCEDURAL BACKGROUND
AT&T hired Lori Archey as a Retail Sales Consultant (“RSC”) on September 9,
2012 to work at its store located in Maysville, Kentucky. (Doc. # 41-2 at 8). As an RSC,
Plaintiff’s job duties included selling AT&T products and services to new and existing
customers and assisting customers with their accounts. (Docs. # 40-2 at 55 and 41-2 at
8). During the relevant time period, Plaintiff’s immediate supervisor was Jessica Webb,
1
who in turn was overseen by Defendant Amy Waymire, the Area Retail Sales Manager.
(Docs. # 40-3 at 2 and 40-5 at 1).
During Plaintiff’s tenure at AT&T, the company maintained a system of progressive
discipline for repeat unauthorized absences and late arrivals (“tardies”). (Doc. # 40-2 at
59). Each unexcused absence or tardy would be assigned a point value. Id. Points
stayed on an employee’s record for six months, after which they expired. Id. However,
if an employee accrued four points within a six-month period, he or she would be given a
“Counseling Notice”; after five points, a “Written Warning”; and after six points, a “Final
Written Warning.” Id. These point totals expired within three months, four months, and
six months, respectively. Id. After accumulating seven points or more, an employee
would be subject to termination. Id.
Plaintiff’s first unauthorized absence occurred on November 17, 2012. (Doc. # 403 at 6). On March 1, 2013, Plaintiff was issued a Counseling Notice for accumulating
4.25 attendance points. Id. On August 29, 2013, Plaintiff received a Written Warning for
obtaining five points under the attendance policy. Id. at 9. By fall 2013, Plaintiff began
experiencing anxiety and suffering from migraine headaches. (Doc. # 41-2 at 12). As a
result, she began taking leave under the FMLA in October 2013. (Doc. # 41-3 at 1).
Approved FMLA absences were considered excused under AT&T’s attendance
policy. (Doc. # 40-1 at 4). Plaintiff took her first leave of absence under the FMLA on
October 21, 2013. (Doc. # 41-3 at 1). On the following day, Plaintiff’s doctor faxed AT&T
to say that Plaintiff would be absent until October 23rd due to unforeseen anxiety and
migraines. (Doc. # 41-4). This application for leave was approved on November 8, 2013.
See (Doc. # 41-2 at 20). However, Plaintiff’s supervisor, Ms. Webb, noted in Plaintiff’s
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employment log that Plaintiff had violated the attendance policy by giving notice of her
absence 41 minutes after the start of her shift on October 21st. (Doc. # 41-5 at 9). The
attendance policy requires employees to report all absences—both excused and
unexcused—to their supervisors at least one hour prior to the start of their shift. (Doc. #
40-2 at 58).
AT&T later admonished Plaintiff in writing for failure to timely notify
management of her absences on October 21st and 22nd. See (Doc. # 41-6).
Plaintiff took another leave of absence under the FMLA from December 5th-8th.
Plaintiff’s physician certified that Plaintiff’s absence on these dates was due to her
ongoing medical issues (Doc. # 41-7) and AT&T approved this leave shortly thereafter.
(Doc. # 41-8). Nevertheless, Ms. Webb later noted in Plaintiff’s employee log that “Archey
has missed scheduled shifts due to headaches. I asked Lori if she needed to file for a
work accommodation due to her recurring health issues.” (Doc. # 41-5 at 4). On
December 13, 2013, AT&T issued Plaintiff a Final Written Warning for accumulating six
points based on a new unexcused absence on October 1, 2013.1 (Doc. # 40-3 at 12).
Plaintiff does not contest any of the unauthorized absences on this Final Written Warning.
See (Doc. # 41-2 at 41-42).
Plaintiff’s health worsened throughout December 2013 and, as a result, her doctor
notified AT&T that Plaintiff would require as-needed leave on an intermittent basis for up
to three days per week throughout the upcoming year. (Doc. # 41-9). From this point on,
Plaintiff began taking FMLA leaves of absence much more frequently. Specifically, from
1
Plaintiff testified that she was absent on this day in order to care for her ailing sister. Her request
for FMLA leave on this date was denied because her sister was not an eligible family member under the
Act. See (Doc. # 41-2 at 18-19).
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January 1, 2014 through April 26, 2014, Plaintiff took approximately 37 days off due to
her ongoing medical issues. (Doc. # 41-3 at 4-6).
The events occurring after January 1, 2014 are highly contested. Plaintiff asserts
that on May 2, 2014, she met with Ms. Webb and Ms. Waymire. (Doc. # 41-2 at 36).
During the meeting, Plaintiff claims she was presented with a Counseling Notice, stating
that she had 4.25 attendance points on her record stemming from unexcused absences
and tardies accrued from June to August 2013. (Docs. # 41-2 at 36-37 and 41-10).
Plaintiff also claims to have told Webb and Waymire during this meeting that she was
approved for 2-3 days per week of leave under the FMLA. (Doc. # 41-2 at 37). Plaintiff
says that Waymire “appeared angry about how much coverage [she] had,” id. at 40, and
then fired her three days later. Id.
Plaintiff’s termination notice was approved by both Webb and Waymire and states
that Plaintiff had accrued 7.5 points, 3.25 more than were on her Counseling Notice from
three days earlier. (Doc. # 41-12). The termination notice contained one unexcused
absence and one unexcused tardy that were previously included on Plaintiff’s December
13th Final Written Warning but which were left off of the May 2nd Counseling Notice. See
(Docs. # 41-6, 41-10, and 41-12). It also contained two additional tardies accrued on
November 14, 2013 and April 18, 2014 as well as an unexcused absence accrued on
March 26, 2014. (Doc. # 41-12). Plaintiff argues that the March 26, 2014 “unexcused”
absence should have been excused because she properly notified Defendants that she
would be taking FMLA leave that day. (Doc. # 41-2 at 36).
Unsurprisingly, Defendants paint a much different picture. While Waymire admits
in her deposition to approving the May 2, 2014 Counseling Notice, she denies that any
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meeting occurred between her, Webb, and Plaintiff on May 2nd. (Doc. # 40-3 at 3).
Rather, Defendants assert that the Counseling Notice was generated, but was never
delivered to Plaintiff because Ms. Webb determined that Plaintiff had exceeded the point
total permitted by the absence policy and was thus subject to termination. (Doc. # 40-3
at 3). Defendants also contend that Plaintiff was fired on May 2nd rather than on May
5th, although the termination notice is undated and there is no documentation showing
when Plaintiff was fired. See id. at 4.
The parties agree that Plaintiff’s March 26, 2014 absence was the determining
factor in Plaintiff’s dismissal. See (Docs. # 40-1 at 13 and 41 at 11). But for this absence,
Plaintiff would not have exceeded the seven-point threshold in AT&T’s attendance policy
and would not have been subject to termination. See (Doc. # 41-12). Therefore, the
dispute largely boils down to whether Defendants properly denied Plaintiff’s request for
FMLA leave on March 26, 2014. The answer to this question depends on whether Plaintiff
followed AT&T’s “usual and customary notice and procedural requirements for requesting
leave.” 29 C.F.R. § 825.303.
In 2013 and 2014, AT&T had written policies governing FMLA leave. (Doc. # 404 at 1). According to Defendants, these policies were available for employees to view on
the company’s intranet, specifically the “HR One Stop web portal.” Id. at 2. Defendant
describes AT&T’s FMLA leave policy as requiring employees to contact the Mobility
Centralized Payroll Change Administration (MCPCA) on either the day of the employee’s
absence or within 48 hours of returning to work after the absence. Id. From there, the
MCPCA reports an employee’s FMLA leave request to a different bureaucratic unit within
AT&T, known as “FMLA Operations” and which is located in San Antonio, Texas. (Docs.
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# 40-4 at 2 and 41-4). Once the employee submits her request for leave to the MCPCA,
she receives a certification form (known as an “FMLA 4”), which must be signed by her
physician and returned to the MCPCA. (Doc. # 40-4 at 2). FMLA Operations then sends
the employee a form (known as an “FMLA 5”), notifying her of the outcome of the request
for leave. Id. at 3. According to Defendants, all decisions regarding leave are made by
the MCPCA and FMLA Operations, and not by AT&T Mobility supervisors, who do not
have access to employee medical information or certification documentation. Id. at 2. In
addition, as part of AT&T’s separate attendance policy, an employee who is going to miss
a scheduled shift must contact her supervisor at least one hour prior to the start of her
shift. (Docs. # 40-2 at 58 and 40-3 at 2).
Plaintiff contends, however, that the policy listed on the “HR One Stop web portal”
is not the only policy relating to FMLA leave at AT&T. Specifically, Plaintiff points to a
brochure or handbook AT&T provides to its employees, titled FMLA: A Look at the Basics,
which appears to mandate a different procedure for how to apply for FMLA leave. It states
in relevant part as follows:
Step 1: You must provide your supervisor at least 30 days advance notice
before FMLA leave is to begin if the leave is foreseeable. However, any
unforeseeable leaves require you to notify your supervisor within 2business days of learning the need for a leave or no later than two business
days of your return to work. It is recommended that you provide your
supervisor with as much detailed information to allow him/her the ability to
submit a complete and accurate [FMLA form] to FMLA Operations. . . .
Step 2: Once the FMLA leave request is made, your supervisor will (1)
determine your eligibility, (2) notify you of your eligibility, [and] (3) submit
[your FMLA form]. . . .
Step 3: All FMLA4 forms must be completed by the Health Care Provider
and submitted to AT&T FMLA Operations. . . .
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Step 4: Once the FMLA4 is received and reviewed by FMLA Operations,
you will receive a letter notification (FMLA5) via US Mail advising you of
the outcome. . . .
(Doc. # 41-13). There are only two similarities between the purported policies. First is
the requirement that the employee’s healthcare provider send an FMLA 4 form to FMLA
Operations; second is that the employee will be notified of the outcome of her request via
an FMLA5 form from FMLA Operations. The similarities end there. The first policy
requires the employee to send a request for leave directly to the MCPCA, while the
second policy instructs employees to notify their supervisor, who will then contact FMLA
operations. According to Suzie Villarreal, who was the Associate Director of FMLA
Operations in 2014, all AT&T Mobility RSCs would have had access to both policies.
(Doc. # 41-14 at 3, 5). Ms. Villarreal also confirmed that neither of the two policy
documents state which one governs in the event of a conflict between the two. id. at 3.
Plaintiff testified that she followed the second policy each time she requested
unforeseeable intermittent FMLA leave. That is, she would call her supervisor, Ms. Webb,
to let her know she would be absent, including on March 26th. (Doc. # 41-2 at 10, 35).
Plaintiff stated in her deposition that she never contacted the MCPCA to notify AT&T of
her intent to use intermittent FMLA leave. Id. at 35. Defendants argue just the opposite.
In her affidavit, Ms. Villarreal states that Plaintiff called the MCPCA no fewer than
seventeen times to request intermittent FMLA leave between October 1, 2013 and April
26, 2014. (Doc. # 40-4 at 5). Similarly, Ms. Webb disclaimed any responsibility for
submitting her subordinates’ FMLA applications or approving FMLA absences, as is
outlined in FMLA: A Look at the Basics. (Doc. # 41-16 at 16). Both Ms. Villarreal and
Ms. Webb aver in their affidavits that Plaintiff did not call the MCPCA on March 26th to
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report her FMLA absence and thus failed to comply with company policy. See (Docs. #
40-3 at 3 and 40-4 at 5).
On April 25, 2017—almost three years after she claims she was terminated—
Archey filed the instant action against her employer, AT&T, and her indirect supervisor,
Amy Waymire in Mason County Circuit Court. (Doc. # 1). The case was properly
removed to this Court on May 22, 2017. Id. Plaintiff brought claims for FMLA interference
under 29 U.S.C. § 2615(a)(1) (Count I), FMLA retaliation under 29 U.S.C. § 2615(a)(2)
(Count II), intentional infliction of emotional distress (Count III), negligent infliction of
emotional distress (Count IV), negligence/vicarious liability (Count V), and punitive
damages (Count VI). (Doc. # 1-1). On December 26th, 2017, the Court dismissed Counts
III, IV, and VI, leaving only Plaintiff’s FMLA and negligence claims.
(Doc. # 29).
Defendants filed their Motion for Summary Judgment on August 10, 2018. (Doc. # 40).
Plaintiff filed a Response (Doc. # 41), to which Defendants replied. (Doc. # 42). Thus,
the Motion is fully ripe for the Court’s review.
II.
ANALYSIS
A.
Standard of Review
Summary judgment is appropriate when there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a). If there is a dispute over facts that might affect the outcome of the case under
governing law, then entry of summary judgment is precluded. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). The moving party has the ultimate burden of persuading
the court that there are no disputed material facts and that he is entitled to judgment as a
matter of law. Id. Once a party files a properly-supported motion for summary judgment
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by either affirmatively negating an essential element of the non-moving party’s claim or
establishing an affirmative defense, “the adverse party must set forth specific facts
showing that there is a genuine issue for trial.” Id. at 250.
B.
Evidentiary Rulings
Before addressing the merits of Plaintiff’s claims, the Court must address three of
Defendants’ evidentiary objections.
1.
Deposition Testimony of Suzy Villarreal
In their Reply brief (Doc. # 42 at 6), Defendants object to Plaintiff’s reliance upon
Suzy Villarreal’s deposition testimony, which was taken in a separate action involving the
same Defendants but a different plaintiff. See Vonderhaar v. AT&T Mobility Servs., No.
2:17-cv-114-WOB-CJS (E.D. Ky. 2017). Ms. Villarreal is employed by Defendant AT&T
as an Associate Director of the Corporate Attendance Leave Management Team,
formerly known as FMLA Operations. (Doc. # 40-4 at 1). Plaintiff relies on Ms. Villarreal’s
deposition testimony to establish the viability of the FMLA-leave policy contained in
AT&T’s brochure FMLA: A Look at the Basics. See (Doc. # 41 at 8-9).
In opposing the admissibility of this evidence, Defendants rely solely on a Western
District of Kentucky case from 1942 for the proposition that “evidence taken in one case
is not competent to be introduced in another case between different parties.” (Doc. # 42
at 6) (quoting S.W. Anderson Co. v. Glenn, 43 F. Supp. 334, 338 (W.D. Ky. 1942)). Glenn
is hardly persuasive, as it was decided decades prior to the adoption of the Federal Rules
of Evidence and applied Kentucky evidentiary rules. See 43 F. Supp. at 338.
Contrary to Defendants’ argument, the Court identifies two bases upon which Ms.
Villarreal’s deposition testimony may be considered in deciding Defendants’ Motion. First,
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Rule 32(a)(8) of the Federal Rules of Civil Procedure permits the use of deposition
testimony taken in an earlier action “as allowed by the Federal Rules of Evidence.” As
Ms. Villarreal is an employee of AT&T, her “deposition testimony from a previous case
[is] admissible non-hearsay because it is an admission by a party-opponent.” United
States v. Lay, 612 F.3d 440, 448 (6th Cir. 2010) (citing Fed. R. Evid. 801(d)(2)). Second,
“[a] deposition taken in a different case may be admitted as a sworn statement or affidavit”
pursuant to Federal Rule of Civil Procedure 56(c)(4). Woodby v. Bradley Cty., No. 1:07cv-3, 2008 WL 5245361, at *4 (E.D. Tenn. Dec. 16, 2008). Therefore, the filing of Ms.
Villarreal’s deposition with Plaintiff’s Response (Docs. # 41 and 41-14) makes it part of
the record in this case for purposes of Federal Rule of Civil Procedure 56.
2.
Affidavit of Jon Campbell
Defendants also seek to exclude the affidavit of Jon Campbell, who was Archey’s
union representative at AT&T. See (Doc. # 42 at 3). In his affidavit, Campbell criticizes
Defendant Amy Waymire, alleging generally that Ms. Waymire fails to timely respond to
his grievance requests. (Doc. # 41-1 at 1). He also recounts an episode involving a union
employee by the name of Adam Ray, who Ms. Waymire allegedly terminated “for not
getting his short term disability case approved.” Id. With regard to Archey, Campbell
avers that
“[t]here have been multiple instances where my members have been
retaliated against for being sick. Lori Archey was terminated on points even
though they were approved FMLA time. . . . I believe [Archey’s case] to be
retaliation for exercising [her] right to take . . . FMLA, based on previous
instances I have seen in the past.”
Id. at 1-2.
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“Federal Rule of Civil Procedure 56(c)(4) requires supporting affidavits to be based
on personal knowledge, meaning personal observations or experiences.” Alexander v.
Kellogg USA, Inc., 674 F. App’x 496, 499 (6th Cir. 2017). For an affidavit to be admissible,
the affiant must “expressly provide the basis for each assertion in [his] affidavit.” Id. While
Campbell refers generally to “instances I’ve seen in the past,” and discusses his personal
experience regarding an employee who was denied short-term disability, he fails to
explain how he knows any facts as they pertain to Archey’s case. Therefore, the Court
will not consider Campbell’s affidavit.
3.
Events Occurring Before April 25, 2014
Finally, Defendants make two related arguments regarding the exclusion of events
occurring before April 25, 2014, three years prior to the filing of Plaintiff’s Complaint. The
FMLA’s statute of limitations is ordinarily two years, but is extended to three years if the
Plaintiff can demonstrate a “willful violation.” 29 U.S.C. § 2617(c). Defendants first
contend that Plaintiff cannot demonstrate willfulness through actions that occurred more
than three years prior to the filing of the Complaint. (Doc. # 42 at 2). Similarly, Defendants
also assert that—assuming the three-year statute of limitations governs—Plaintiff cannot
rely on disciplinary actions that took place more than three years prior to the filing of the
Complaint to establish liability under the FMLA. Id. at 7.
The Court is unable to locate any case law supporting Defendants’ first argument.
Nevertheless, it is logical that a plaintiff should not be able to look back more than three
years to find evidence supporting the application of a three-year statute of limitations.
Thus, out of an abundance of caution, the Court will not consider events occurring before
April 25, 2014 to determine the applicable statute of limitations.
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Regarding Defendants’ second argument, the Court agrees that in some
instances, a lawsuit based on an event occurring outside of the statute of limitations
period is time-barred. See Sosby v. Miller Brewing Co., 211 F. App’x 382, 388-89 (6th
Cir. 2006). Where, for example, an employer improperly denies a request for FMLA leave
and assesses an attendance “point” for an FMLA-covered absence, a lawsuit filed more
than three years later based solely on that improper denial will be time-barred. See Butler
v. Owens-Brockway Plastic Prods., Inc., 199 F.3d 314, 317 (6th Cir. 1999). In contrast,
where, as here, the lawsuit is based on an employee’s termination that occurred within
the statute of limitations, and that termination is based on FMLA-protected absences
taken outside the statute of limitations, the FMLA claim is timely. See id. Therefore, in
deciding Plaintiff’s claims on the merits, the Court may properly consider the alleged
wrongful denial of Archey’s FMLA leave on March 26, 2014 because it directly led to her
termination on May 5, 2014. However, the Court will not consider other events that
occurred prior to April 25, 2014 in determining whether there is a triable issue of fact as
to FMLA liability.
C.
FMLA Claims
Under the FMLA, an employee who suffers from “a serious health condition that
makes [her] unable to perform the functions of the position” may take up to twelve weeks
of leave per year. 29 U.S.C. § 2612(a)(1)(D). A qualified employee may take her twelve
weeks of leave in one of three ways: [1] in a single block, [2] as intermittent leave taken
in separate periods due to a single illness or injury, or [3] through a reduced work
schedule,” which allows the employee to work on a part-time basis. See Banks v. Bosch
Rexroth Corp., F. App’x 519, 523 (6th Cir. 2015). The FMLA prohibits employers from
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“interfer[ing] with, restrain[ing], or deny[ing] the exercise of or the attempt to exercise, any
right provided [by the Act].” 29 U.S.C. § 2615(a)(1). It is also unlawful for employers to
“discharge or in any other manner discriminate against any individual for opposing any
practice made unlawful by [the Act].” Id. § 2615(a)(2). Employees who prevail under
either of these provisions may seek damages or equitable relief. Id. § 2617(a)(1).
The Sixth Circuit recognizes two discrete theories of relief under the FMLA. See
Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274, 282 (6th Cir. 2012). The interference
theory, based on § 2615(a)(1), permits recovery for any interference with an FMLAcreated right “regardless of the intent of the employer.” Id. In contrast, the retaliation
theory, grounded in § 2615(a)(2), requires that a plaintiff demonstrate malintent on the
part of the employer. Id. Specifically, “the central issue raised by the retaliation theory .
. . is ‘whether the employer took the adverse action because of a prohibited reason or for
a legitimate nondiscriminatory reason.’” Id. (quoting Edgar v. JAC Prods., Inc., 443 F.3d
501, 508 (6th Cir. 2006)).
In this case, Archey has asserted both an interference and a retaliation claim under
the FMLA. As is often the case, Plaintiff supports her FMLA claims with circumstantial
evidence. In such circumstances, the Court applies the well-recognized burden-shifting
framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See
Donald v. Sybra, 667 F.3d 757, 762 (6th Cir. 2012). Under McDonnell Douglas, the
employee must demonstrate a prima facie case of interference and retaliation. McDonnell
Douglas, 411 U.S. at 802. The burden then shifts to the employer “to articulate some
legitimate, nondiscriminatory reason” for the adverse employment action—in this case
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termination. Id. If the employer makes such a showing, the burden shifts back to the
employee to show that the employer’s purported justification is pretextual. Id. at 804.
The Court first addresses the merits of Plaintiff’s FMLA claims, after which it will
determine if Plaintiff’s claims are time-barred. See Rodriguez v. Ford Motor Co., 382 F.
Supp. 2d 928, 936 (E.D. Mich. 2005).
1.
FMLA Interference
a.
Prima Facie Case
To make out a prima facie case of FMLA interference, a plaintiff must establish five
elements: (1) the plaintiff was an eligible employee; (2) the defendant is a covered
employer; (3) the plaintiff was entitled to leave under the FMLA; (4) the plaintiff gave the
employer notice of her intention to take leave; and (5) the defendant denied the plaintiff’s
FMLA benefits to which she was entitled. Sybra, 667 F.3d at 761.
The first three elements of Plaintiff’s prima facie case are not in dispute.
Defendants contend, however, that Plaintiff is unable to establish the fourth element
because she did not give AT&T proper notice of her intent to take leave on March 26,
2014.
(Doc. # 40-1 at 11-13).
In determining whether an employee provided her
employer with adequate notice, “[t]he critical question is whether the information imparted
to the employer is sufficient to reasonably apprise it of the employee's request to take
time off for a serious health condition.” Walton v. Ford Motor Co., 424 F.3d 481, 486 (6th
Cir. 2005) (internal quotation marks omitted). When, as here, the need for leave was
unforeseeable, Plaintiff must provide notice “as soon as practicable under the facts and
circumstances of the particular case.” 29 C.F.R. § 825.303(a). “It generally should be
practicable for the employee to provide notice of leave that is unforeseeable within the
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time prescribed by the employer's usual and customary notice requirements applicable to
such leave.” Id. (emphasis added). “If it is not clear from the record whether the employee
gave such notice, then there exists a factual dispute sufficient to preclude summary
judgment on the interference claim.” Parks v. UPS Supply Chain Sols., Inc., No. 11-404DLB-CJS, 2014 WL 414230, at *9 (E.D. Ky. Feb. 4, 2014) (citing Hoge v. Honda of Am.
Mfg., Inc., 384 F.3d 238, 248 (6th Cir. 2004)).
Defendants argue that on March 26, 2014, Plaintiff failed to follow AT&T’s “usual
and customary” notice requirements listed in the “HR One Stop web portal.” (Doc. # 401 at 12). Defendants maintain that “[t]here is no dispute that Defendant AT&T’s notice
requirement for intermittent FMLA leave obligates the employee to call the Mobility
Centralized Payroll Change Administration (MCPCA) group, not the Defendant AT&T or
an employee of AT&T . . . .” Id. (emphasis in original).
This argument ignores Plaintiff’s testimony that she followed a contrary policy
contained in FMLA: A Look at the Basics, which tells employees to contact their
supervisor to report an FMLA-related absence. See (Doc. # 41-2 at 10, 35). An employer
cannot obtain summary judgment on the basis that its employee failed to adhere to its
internal FMLA policy when there is evidence that in reality the employer lacked a uniform
policy. See Casagrande v. OhioHealth Corp., 666 F. App’x 491, 497 (6th Cir. 2016).
Defendants do not disavow the policy in FMLA: A Look at the Basics. In fact, Ms. Villarreal
testified that employees such as Ms. Archey would have had access to both policies.
(Doc. # 41-14 at 3, 5). Instead, Defendants rely exclusively on Ms. Villarreal’s statements
in her affidavit to argue that the policy in AT&T’s intranet portal was the “usual and
customary” one. See (Doc. # 40-1 at 12). Ms. Villarreal also avers that Plaintiff called
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the MCPCA each and every time she requested intermittent leave starting November 1,
2013. (Doc. # 40-4 at 5). However, as Defendants do not provide any documentary
evidence to back up their contentions, they cannot disprove Plaintiff’s testimony that she
called her supervisor—and not the MCPCA—every time she requested a day off under
the FMLA. See (Doc. # 41-2 at 35). Because there is no evidence apart from the parties’
conflicting sworn statements, there is a genuine issue of material fact regarding which
FMLA policy was “usual and customary” at the time Ms. Archey gave notice of her FMLA
leave. As such, Plaintiff’s testimony that she complied with the policy set out in FMLA: a
Look at the Basics is evidence that she gave reasonable notice of her intent to take leave
on March 26th and thus she has met the fourth element of her prima facie case of FMLA
interference.
Defendants also argue that Plaintiff cannot establish the fifth element because they
did not deny her FMLA benefits to which she was entitled. See (Doc. # 40-1 at 13).
Defendants claim that they never disapproved Plaintiff’s request for leave when she
sought leave properly through the MCPCA, and only counted her absence as unexcused
when she failed to notify the MCPCA on March 26th. Id. This argument fails. The Court
has already found a dispute of material fact as to whether Plaintiff ever contacted—or
was required to contact—the MCPCA in order to obtain FMLA leave. Viewing the facts
in the light most favorable to Archey, there is evidence that she properly notified her
supervisor Ms. Webb on March 26th in compliance with AT&T’s FMLA policy. As it is
undisputed that Defendants terminated Plaintiff in part because of her unexcused
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absence on March 26th, Plaintiff has met her burden with regard to the fifth element.
Thus, the Court finds that Plaintiff has made a prima facie showing of FMLA interference.2
b.
Legitimate, Nondiscriminatory Reason
The Court having found that Archey established a prima facie case of FMLA
interference, the burden now shifts to Defendants to articulate “a legitimate, nondiscriminatory reason for [their] actions.” Demyanovich v. Cadon Plating & Coatings,
LLC., 747 F.3d 419, 427 (6th Cir. 2014). “[I]nterference with an employee's FMLA rights
does not constitute a violation if the employer has a legitimate reason unrelated to the
exercise of FMLA rights for engaging in the challenged conduct.” Id. at 431 (quoting
Edgar, 443 F.3d at 508). Defendants’ proffered reason for terminating Archey is that she
violated AT&T’s attendance policy by accruing an unexcused absence on March 26,
2014. See (Doc. # 40-1 at 14). Excessive absenteeism is a permissible basis for
terminating an employee. See Wallace v. FedEx Corp., 764 F.3d 571, 590 (6th Cir. 2014).
Nevertheless, in this case, Plaintiff’s alleged violation of AT&T’s attendance policy
was not “unrelated to the exercise of [her] FMLA rights.” Demyanovich, 747 F.3d at 431
(emphasis added). In Wallace v. FedEx Corp., the Sixth Circuit held that an employer
2
Plaintiff also argues that Defendants interfered with her FMLA rights by creating “a web of
conflicting policies on how to notify the company regarding FMLA leave.” (Doc. # 41 at 15). According to
Plaintiff, these conflicting policies “chilled Plaintiff’s use of FMLA.” Id. The Sixth Circuit has held that
discouraging an employee from exercising her FMLA rights may constitute an actionable FMLAinterference claim, but only when the employee can show that she’s been prejudiced by the violation See
Saroli v. Automation & Modular Components, Inc., 405 F.3d 446, 454-55 (6th Cir. 2005). Accordingly,
“[t]hat an employer's conduct might ‘chill’ use of FMLA leave is not enough unless plaintiff ‘offer[s] evidence
that it, in fact, caused her or any other employee to refrain from requesting or using FMLA leave.’” Bonfiglio
v. Toledo Hosp., No. 3:16-cv-2163, 2018 WL 5761220, at *12 (N.D. Ohio Nov. 1, 2018) (quoting Santoli v.
Vill. of Walton Hills, No. 1:12-cv-1022, 2015 WL 1011384, at *5 (N.D. Ohio Mar. 3, 2015)). Indeed, in
Harcourt v. Cincinnati Bell Tel. Co.—cited by Plaintiff—the court found a viable FMLA-interference claim
where “[t]here was substantial evidence that [the employer’s] policies actually discouraged Plaintiffs from
utilizing their FMLA entitlements.” 383 F. Supp. 2d 944, 962 (S.D. Ohio 2005) (emphasis added). Here,
by contrast, Plaintiff points to no evidence showing that she was deterred from pursuing FMLA leave as a
result of AT&T’s conflicting policies. In fact, she continued to apply for and utilize FMLA leave up until she
was terminated. Therefore, the Court rejects this aspect of Plaintiff’s FMLA-interference claim.
17
cannot rely on excessive absenteeism as cause for termination when the absences relate
directly to the employer’s alleged FMLA violation. 764 F.3d at 590. The plaintiff in
Wallace argued that she was terminated for accruing two unexcused absences, which
she claimed had resulted from her employer’s violation of FMLA notice regulations. Id.
The Sixth Circuit rejected the employer’s argument that its employee’s violation of
company attendance policy was independent from the employee’s use of FMLA leave.
Id. The court found that “when the absences and cause for discharge relate directly to
the FMLA leave and the company's failure to give notice . . . there is no legitimate and
independent reason for dismissal.”
Id.
In other words, the employer’s purported
legitimate reason—violation of the attendance policy—was “intimately intertwined” with
the employee’s FMLA leave. Id.
Here, similar to Wallace, Archey’s unexcused absence on March 26th “is a direct
result of failing to perfect her FMLA leave.” Id. Therefore, “to the extent [AT&T] claims it
terminated [Archey] based, in part, on [her March 26th] absence[], which may have been
FMLA-qualifying, that reason is ‘intimately intertwined’ with [Archey’s] potentially FMLAqualifying leave.” West v. Pella Corp., 2018 WL 345115, at *8 (W.D. Ky. Jan. 9, 2018)
(quoting Wallace, 764 F.3d at 590); see also Ezell v. Renal Care Grp., Inc., No. 5:17-cv002-TBR-LLK, 2018 WL 2054562, at *8-9 (W.D. Ky. May 2, 2018). As such, Defendants
have not demonstrated the requisite “independent, legitimate” reason for Archey’s
termination. Wallace, 764 F.3d at 590.
c.
Pretext
Even assuming Defendants’ proffered reason satisfies their burden of production
under McDonnell Douglas, Plaintiff has put forth sufficient evidence to show Defendants’
18
reason was pretextual. To prove pretext, a plaintiff must demonstrate that the employer's
reason: (1) had no basis in fact; (2) did not actually motivate the termination; or (3) was
not sufficient to justify the decision. Marshall v. Rawlings Co. LLC, 854 F.3d 368, 379
(6th Cir. 2017). At bottom, “[p]retext is a commonsense inquiry: did the employer fire the
employee for the stated reason or not?” Parkhurst v. Am. Healthways Servs., LLC, 700
F. App’x 445, 449 (6th Cir. 2017) (alteration in original) (quoting Chen v. Dow Chem. Co.,
580 F.3d 394, 400 n.4 (6th Cir. 2009)). The Court finds that a reasonable jury could
answer this question in the affirmative.
To start, there is evidence indicating that Defendants’ proffered reason had no
basis in fact. As discussed at length above, a reasonable jury could find that Plaintiff
properly notified AT&T regarding her absence on March 26th and thus would not have
accumulated seven points in violation of AT&T’s attendance policy. Therefore, Plaintiff
has shown that Defendants “did not actually have cause to take adverse action against
[her] based on its proffered reason.” Seeger, 681 F.3d at 285 (quoting Joostberns v.
UPS, 166 F. App’x 783, 791 (6th Cir. 2006)).
Defendants argue that even “assuming arguendo that Plaintiff timely and
appropriately reported her March 26, 2014 absence . . . Defendants operated under the
honest belief that Plaintiff had violated the attendance policy.” (Doc. # 40-1 at 15). The
“honest-belief rule” entitles an employer to summary judgment when it “held an honest
belief in its proffered reason,” even in cases where its proffered reason “is ultimately found
to be mistaken, foolish, trivial, or baseless.”
Seeger, 681 F.3d at 285-86 (internal
quotation marks omitted). The theory behind the rule is that “If the employer honestly,
albeit mistakenly, believes in the non-discriminatory reason it relied upon in making its
19
employment decision, then the employer arguably lacks the necessary discriminatory
intent.” Smith v. Chrysler Corp., 155 F.3d 799, 806 (6th Cir. 1998).
Consequently, the scope of the rule is not limitless. For example, it does not apply
in cases where the error on the part of the employer is “too obvious to be unintentional.”
Seeger, 681 F.3d at 286 (quoting Smith, 155 F.3d at 807). Similarly, an employer cannot
invoke the rule when its “decision-making process is ‘unworthy of credence.’” Murphy v.
Ohio State Univ., 549 F. App’x 315, 322 (6th Cir. 2013) (quoting Smith, 155 F.3d at 807).
The burden is on the defendant to “point to specific facts that it had at the time the decision
was made which would justify its belief in the proffered reason.” Clay v. UPS, 501 F.3d
696, 714 (6th Cir. 2007).
In support of their argument that they had an honest belief, Defendants point to
Ms. Webb’s affidavit, which states that she verified with the MCPCA on April 28, 2014
that Archey had not reported her March 26, 2014 absence. (Doc. # 40-1 at 15). Thus,
according to Defendants, Webb had an honest belief that Archey had eclipsed the sevenpoint threshold in the attendance policy prior to approving her termination on May 5th.
Yet, evidence in the record casts doubt on the credibility of Defendants’ story. If
Ms. Webb knew on April 28th that Plaintiff had accrued an unexcused absence on March
26th, it is unclear why that unexcused absence was omitted from the Counseling Notice
she approved and gave to Archey just four days later on May 2nd. Accordingly, a
reasonable jury could infer that Ms. Webb and Ms. Waymire improperly classified
Plaintiff’s absence as “unexcused” after Archey alerted them on May 2nd of her
entitlement to three days per week of FMLA leave.
20
This inference is supported by several additional facts in the record: first, Plaintiff
testified that on May 2nd, Ms. Waymire “appeared angry about how much coverage [she]
had.” (Doc. # 41-2 at 156). Second, Plaintiff’s May 2nd Counseling Notice listed 4.25
attendance points on her record, whereas three days later, her termination notice listed
7.5 points. See (Docs. # 41-10 and 41-12). Thus, within three days, Defendants added
3.25 points to Plaintiff’s attendance record, all of which stemmed from absences and
tardies predating the May 2nd Counseling Notice. See (Doc. # 41-12). Third, Plaintiff
testified that whenever she accrued a point on her attendance record, she would see an
email or notification upon logging into her account at work. See (Doc. # 41-2 at 35).
Plaintiff maintains that she never saw a notification of an unexcused absence on March
26th. Id. at 35, 36, 39. Based on these facts, a jury could conclude that Defendants
reclassified previous tardies and absences from “excused” to “unexcused” after learning
of Plaintiff’s approval for increased FMLA leave. As Plaintiff has “produce[d] sufficient
evidence from which the jury could reasonably reject the defendants’ explanation and
infer that the defendants did not honestly believe in the proffered non-discriminatory
reason for its adverse employment action,” summary judgment is inappropriate. Mickey
v. Zeidler Tool & Die Co., 516 F.3d 516, 526 (6th Cir. 2008) (internal quotation marks,
brackets, and ellipsis omitted).
In their Reply, Defendants attempt to counter Plaintiff’s pretext argument by merely
contesting the facts surrounding Plaintiff’s termination.
Specifically, Defendants
repeatedly challenge Plaintiff’s testimony that (1) she met with Ms. Webb and Ms.
Waymire on May 2nd; (2) she was issued the Counseling Notice during the meeting on
May 2nd; and (3) that she was fired on May 5th. See (Doc. # 42 at 8-9). Defendants
21
urge the Court to believe instead that (1) Plaintiff’s purported meeting on May 2nd never
occurred; (2) the May 2nd Counseling Notice was retracted; and (3) Plaintiff was fired on
May 2nd, not May 5th. Id. However, Plaintiff testified to her version of the facts multiple
times, and Defendants’ own testimonial evidence to the contrary does not negate
Plaintiff’s testimony.
“In considering a motion for summary judgment, ‘[t]he judge's
function . . . is limited to determining whether sufficient evidence has been presented to
make the issue a proper jury question, and not to judge the evidence and make findings
of fact.’” Upshaw v. Ford Motor Co., 576 F.3d 576, 592 (6th Cir. 2009) (alteration in
original) (quoting Bultema v. United States, 359 F.3d 379, 382 (6th Cir. 2004)). Thus, the
Court declines Defendants’ invitation to resolve factual disputes in their favor.
For the foregoing reasons, the Court finds there to be triable issues of fact
regarding Plaintiff’s FMLA Interference claim.
2.
FMLA Retaliation
a.
Prima Facie Case
In order to establish a prima facie case of FMLA retaliation, a plaintiff must
establish four elements: (1) plaintiff was engaged in a statutorily-protected activity; (2)
defendant knew that plaintiff was exercising her FMLA rights; (3) plaintiff suffered an
adverse employment action; and (4) a causal connection existed between the protected
FMLA activity and the adverse employment action. Seeger, 681 F.3d at 283. “A plaintiff's
burden in establishing a prima facie case is not intended to be an onerous one.” Skrjanc
v. Great Lakes Power Serv. Co., 272 F.3d 309, 315 (6th Cir. 2001).
The second element is uncontested. Defendants were aware that Plaintiff had
taken FMLA leave starting in November 2013. The third element is likewise uncontested,
22
as Plaintiff suffered an adverse employment action when she was terminated in May
2014.
See Johnson v. Fifth Third Bank, 685 F. App’x 379, 385 (6th Cir. 2017).
Surprisingly, Defendants make no argument regarding a causal connection between
Plaintiff’s FMLA leave and her termination. Nevertheless, the Court is satisfied that
Plaintiff has made the necessary showing of a causal connection. Under Sixth Circuit
law, a plaintiff can show causality “where an adverse employment action occurs very
close in time after an employer learns of a protected activity.” Mickey, 516 F.3d at 525.
Archey testified that she was fired on May 5, 2014, three days after telling Ms. Waymire
that she was eligible for up to three days per week in FMLA leave. Plaintiff had also taken
extensive leave in the four months prior to her termination. Therefore, a reasonable jury
could find a causal connection between Plaintiff’s FMLA leave and her termination.
Defendants challenge only the first element of Plaintiff’s prima facie case, asserting
that Plaintiff was not terminated for engaging in statutorily-protected activity because
Archey’s March 26th absence was unexcused and thus not considered FMLA time. See
(Doc. # 40-1 at 17). In Defendants’ words, “taking unapproved leave is not a protected
right under the FMLA.” Id. (emphasis in original). However, Defendants’ argument is
circular because, as stated above, Archey has made out a prima facie case that
Defendants’ categorization of the March 26th absence as unexcused interfered with her
statutory right. See Haley v. Cmty. Mercy Health Partners, No. 3:11-cv-232, 2013 WL
322493, at *16 (S.D. Ohio Jan. 28, 2013). A reasonable jury could infer that Defendants’
absence on March 26th was FMLA-protected because there are facts in the record
establishing that Plaintiff gave proper notice under AT&T policy. See supra at II.C.1.a.
23
Plaintiff has thus satisfied “the low threshold of proof necessary to establish a prima facie
case of retaliatory discharge.” Seeger, 681 F.3d at 283.
b.
Legitimate Reason and Pretext
Defendants rely on the same legitimate, nondiscriminatory justification that they
relied on for Archey’s FMLA-interference claim. See (Doc. # 41-1 at 17 n.2). For the
same reasons as outlined above, the Court finds that justification to be insufficient.
Therefore, a question of fact remains regarding whether Defendants retaliated against
Plaintiff for exercising her FMLA rights.
3.
Statute of Limitations
The Court next addresses Defendants’ alternative argument that Plaintiff’s FMLA
claims are time-barred. The statute of limitations for most FMLA claims is two years. See
29 U.S.C. § 2617(c)(1). However, the plaintiff gets the benefit of a three-year statute of
limitations if she can show that the defendant committed a willful violation of the FMLA.
Id. § 2617(c)(2). The Sixth Circuit has held that for purposes of the FMLA, the limitations
period begins to run at the moment the plaintiff is terminated, not when the employer first
interferes with the plaintiff’s FMLA rights. See Butler 199 F.3d at 317. Here, Plaintiff filed
her lawsuit in state court on April 25, 2017, more than two years but less than three years
after she was terminated in May 2014. Therefore, for her claim to survive summary
judgment, she must demonstrate that Defendants acted willfully.
“An employer commits a willful violation of the FMLA when it acts with knowledge
that its conduct is prohibited by the FMLA or with reckless disregard of the FMLA's
requirements.” Ricco v. Potter, 377 F.3d 599, 602 (6th Cir. 2004). “[T]he determination
of willfulness involves a factual question,” id., and the plaintiff bears the burden at trial of
24
proving a willful violation. Hoffman v. Prof’l Med. Team, 394 F.3d 414, 415 (6th Cir. 2005).
In the Court’s view, a jury could find that Archey has met her burden regarding willfulness.
Summary judgment is rarely appropriate on statute-of-limitations grounds where,
as is the case here, there remains a dispute of fact regarding whether the employee gave
proper notice of her FMLA leave. See, e.g., Williams v. Schuller Int’l, Inc., 29 F. App’x
306, 309 (6th Cir. 2002); Ezell, 2018 WL 2054562, at *5; Rodriguez, 382 F. Supp. 2d at
936-37. For example, in Williams, the Sixth Circuit reversed the district court’s grant of
summary judgment for the defendant on statute-of-limitations grounds, concluding that
there were disputed facts “involv[ing] the adequacy and timing of the [FMLA] notice
allegedly given by [plaintiff].” 29 F. App’x at 309. The court held that “[i]f it should
ultimately be found that the plaintiff gave her employer timely notice of a claim for leave
under the statute, we believe that there would be genuine issues as to . . . whether the
employer made reasonable efforts to evaluate the claim before deciding to fire the
plaintiff.” Id. If the jury were to agree with the plaintiff on this issue as well, it could also
“find that the employer acted in knowing or reckless disregard of its statutory obligations.”
Id.
Similar to the Plaintiff in Williams, there remains a genuine dispute over whether
Archey provided adequate notice of her request for leave on March 26, 2014. If a jury
ultimately determines that she did, it could also find that AT&T was “put on notice of
Plaintiff's need for [FMLA] leave” on March 26th. Rodriguez, 382 F. Supp. 2d at 937.
Accordingly, a jury could then conclude that AT&T acted recklessly or knowingly when it
terminated Plaintiff based in part upon her March 26th absence.
25
Furthermore, if the jury were to find Plaintiff’s testimony to be credible, it could
reasonably conclude that Ms. Waymire terminated Plaintiff based at least in part on
Plaintiff’s statement on May 2nd that she was entitled to additional FMLA leave. This
evidence creates a genuine dispute of material fact as to whether the alleged interference
and/or retaliation was a willful violation of the FMLA. See Gannon v. Cannon Cty., No.
3:10-cv-847, 2011 WL 6888540, at *10 (M.D. Tenn. Dec. 29, 2011). For the foregoing
reasons, Defendants’ Motion for Summary Judgment on Plaintiff’s FMLA claims on
statute of limitations grounds is denied.
D.
Amy Waymire’s Individual Liability Under the FMLA
Defendants argue separately that Amy Waymire cannot be held individually liable
on Plaintiff’s FMLA claims. The Sixth Circuit’s decision in Mitchell v. Chapman, 343 F.3d
811, 831 n.22 (6th Cir. 2003) “has been read by district courts in the Sixth Circuit as
implicitly holding that individual liability exists” under the FMLA. Mueller v. J.P. Morgan
Chase & Co., No. 1:05-cv-560, 2007 WL 915160, at *22 (N.D. Ohio Mar. 23, 2007). For
many of the reasons set forth above, including Ms. Waymire’s presence at the meeting
with Plaintiff on May 2nd and her approval of Plaintiff’s Counseling Notice and subsequent
termination, a reasonable jury could find Waymire to have committed FMLA interference
or retaliation. Therefore, Defendants’ Motion for Summary Judgment on Plaintiff’s FMLA
claims as they pertain to Amy Waymire is denied.
E.
Negligence and Vicarious Liability
Finally, Plaintiff alleges that Defendant Waymire was negligent and that, as a
result, AT&T is vicariously liable. (Doc. # 1-1 at 7). Defendants’ sole argument for why
Plaintiff’s negligence claim should fail comes in a self-serving and unsupported footnote,
26
which states that “Defendant Waymire did not commit any action, whether intentional or
unintentional, as to any of Plaintiff’s claims.3 (Doc. # 40-1 at 18 n.3). Given the evidence
of Ms. Waymire’s knowledge of Plaintiff’s entitlement to FMLA leave and her involvement
in Plaintiff’s termination, the Court finds this statement to be unfounded. Moreover, in
making only this brief, vague statement, Defendants “have failed to meet [their] burden
on summary judgment to ‘point out’ [a] specific deficiency of Plaintiff’s case.” Max Arnold
& Sons, LLC v. W.L. Hailey & Co., Inc., 452 F.3d 494, 506 (6th Cir. 2006). Defendants’
Motion for Summary Judgment on Plaintiff’s negligence claim is therefore denied.
III.
CONCLUSION
For the reasons stated above, IT IS ORDERED as follows:
(1)
Defendants’ Motion for Summary Judgment (Doc. # 40) is DENIED; and
(2)
Within twenty (20) days from the date of entry of this Memorandum Opinion
and Order, the parties shall file a Joint Status Report, setting forth available dates for
a Final Pretrial Conference and Jury Trial, and whether they would be amenable to a
court-facilitated settlement Conference on the remaining claims.
This 29th day of March, 2019.
J:\DATA\Opinions\Covington\2017\17-91 MOO Denying MSJ.docx
3
Plaintiff’s citation to Ingram v. Oasis Invs., LLC, No. 5:16-cv-206-TBR, 2017 WL 6508362 (W.D.
Ky. Dec. 19, 2017) is misplaced, as that case discusses negligent hiring, a theory distinct from vicarious
liability.
27
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