Hampton v. The National American Red Cross et al
Filing
59
MEMORANDUM OPINION signed by Senior Judge Charles R. Simpson, III on 02/26/2014 granting 41 Motion for Summary Judgment filed by The National American Red Cross and The Louisville Area Chapter of the American Red Cross; denying 42 Motion for Summary Judgment filed by Lenora Hampton; granting 43 Motion for Excusable Neglect due to Technical Difficulties; and denying as moot 56 Motion to Strike Affidavits. cc: Counsel (TJD)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
LENORA HAMPTON
v.
PLAINTIFF
CIVIL ACTION NO. 3:10-CV-00121-CRS
THE NATIONAL AMERICAN
RED CROSS, ET AL.
DEFENDANT
MEMORANDUM OPINION
This case is before the Court on cross motions for summary judgment filed by Plaintiff
Lenora Hampton (“Hampton”) (DN 42) and Defendants American National Red Cross
(“National”) and American Red Cross, Louisville Area Chapter (“Chapter”) (collectively
“Defendants”) (DN 41). For the reasons set forth below, the Court will grant Defendants’ Motion
for Summary Judgment, and deny Hampton’s Motion for Summary Judgment.1
BACKGROUND
Unless otherwise indicated, the following facts are undisputed. Hampton is a former
employee of Chapter, where she worked as a driver in the transportation department. On
February 26, 2008, Hampton informed her immediate supervisors Charles M. Steinhofer, Jr.
(“Steinhofer”), and Beecher Hudson (“Hudson”), that she had recently been granted joint legal
custody of her two grandchildren. Because Hampton’s daughter, the other legal custodian, had
1
Also submitted for decision is a motion by Defendants (DN 56) to strike the affidavits of Robin L. Cowherd (DN
52-2) and Gerald Snyder (DN 52-3), both of which were tendered by Plaintiff in support of her motion for summary
judgment. Because the Court does not rely on these affidavits in resolving the motions for summary judgment, the
motion to strike affidavits will be denied as moot. Finally, there is also a motion for excusable neglect due to
technical difficulties (DN 43) filed by Hampton wherein she requests that the Court excuse the belated filing of her
motion for summary judgment. Because Plaintiff has provided adequate grounds to excuse the belated filing, the
motion for excusable neglect will be granted.
been committed to the Jefferson Alcohol and Drug Abuse Center, Hampton stated that she was
the only person available to care for her grandchildren. In addition, Hampton informed them that
one of her grandchildren had a serious medical condition requiring special medical treatment. As
discussed more fully below, the parties vigorously dispute whether Hampton specifically
requested leave during the course of this meeting, or merely informed her supervisors of her
situation without actually requesting to take time off. However, it is undisputed that, at the end of
the meeting, Steinhofer and Hudson suggested that Hampton
take the remainder of the week off.
The following week, Hampton was absent from work without explanation on Monday
March 3, 2008, and Tuesday March 4, 2008. In accordance with Chapter’s attendance policy,
Hampton was fired for failing to show up to work for two consecutive days.
On February 25, 2010, Hampton filed the present action alleging that Defendants violated
the FMLA by interfering with her rights thereunder and terminating her in retaliation for taking
FMLA leave. On April 29, 2013, Defendants filed a motion for summary judgment (DN 41)
arguing that: 1) Defendant National was not Hampton’s employer and therefore is not a proper
party to this lawsuit; and 2) Hampton’s FMLA claims fail as a matter of law against Defendant
Chapter. While conceding that Defendant National is not a proper party,2 Hampton argued that
Defendant Chapter had failed to satisfy its burden of demonstrating that summary judgment was
warranted. On April 30, 2013, Hampton filed her own motion for summary judgment (DN 42),
arguing that there was no genuine dispute that Defendant Chapter violated the FMLA.
Having considered the parties’ briefs and being otherwise sufficiently advised, the Court
will not consider the motions for summary judgment.
2
Because Hampton has conceded that Defendant National is not a proper party, see (Resp. to Mot. for Summ. J, DN
50-2, at 15–16), summary judgment will be entered in favor of Defendant National on all of Hampton’s claims.
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STANDARD
Before granting a motion for summary judgment, the Court must find that there is no
genuine issue of material fact such that the moving party is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a). The party moving for summary judgment bears the initial burden of
establishing the nonexistence of any issue of material fact, Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986), a burden which may only be satisfied by “citing to particular parts of materials
in the record...” or “showing that the materials cited do not establish the absence or presence of a
genuine dispute.” Fed. R. Civ. P. 56(c)(1). If the moving party satisfies this burden, the burden of
production shifts to the non-moving party, who must then identify evidence demonstrating the
existence of a genuine issue of material fact. See Celotex, 477 U.S. at 322.
In resolving a motion for summary judgment, the Court must view the evidence in a light
most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007). However, the
non-moving party “must do more than simply show that there is some metaphysical doubt as to
the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Thus, “[t]he mere existence of a scintilla of evidence in support of the [non-moving party's]
position will be insufficient; there must be evidence on which the jury could reasonably find for
the [non-moving party].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). If the nonmoving party fails to satisfy its burden of counterproduction, the court must grant the motion for
summary judgment.
DISCUSSION
There are “two distinct theories for recovery under the FMLA: (1) the ‘entitlement’ or
‘interference’ theory arising from 29 U.S.C. § 2615(a)(1); and (2) the ‘retaliation’ or
‘discrimination’ theory arising from 29 U.S.C. § 2615(a)(2).” Killian v. Yorozu Auto. Tenn., Inc.,
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454 F.3d 549, 555 (6th Cir. 2006) (quoting Hoge v. Honda of Am. Mfg., Inc., 384 F.3d 238, 244
(6th Cir. 2004)). Hampton asserts claims based on both an interference and a retaliation theory.
In determining whether summary judgment is appropriate, the Court will consider Hampton’s
claims in turn.
I. Interference
FMLA interference claims arise under 29 U.S.C. § 2615(a)(1), which provides that “[i]t
shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the
attempt to exercise, any right provided in this subchapter.” To establish a prima facie case of
interference, the plaintiff must prove that: (1) she was an eligible employee; (2) the defendant
was an employer as defined under the FMLA; (3) she was entitled to leave under the FMLA; (4)
she gave the employer notice of his intention to take leave; and (5) the defendant denied the
employee FMLA benefits to which she was entitled. Killian, 454 F.3d at 556 (citing Walton v.
Ford Motor Co., 424 F.3d 481, 485 (6th Cir. 2005)). Because the only issue is whether the
employee was entitled to the FMLA benefits denied by his employer, an employer’s intent is not
relevant to determining whether actionable interference has occurred. Edgar v. JAC Products,
Inc., 443 F.3d 501, 507 (6th Cir. 2006).
Defendants argue that summary judgment is appropriate because there is no genuine
dispute that Hampton failed to provide notice of her intention to take leave in accordance with 29
U.S.C. § 2612(e)(1). In support of this argument, Defendants cite the following excerpts from
Hampton’s deposition testimony wherein she was asked about what took place at the February
26 meeting:
Q: Had you asked them for time off?
A: No...
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***
Q: If you would look under Infraction here, it says “On February 26, 2008, Ms.
Hampton asked to be off for the remainder of the week.” First of all, does that
accurately describe what happened during a meeting on February 26, 2008?
A: No, Sir.
Q: Why not?
A: Because I didn’t ask for anything. I went in to tell them my situation, hoping
that they would know what to do next, help me keep my job. I did state that one of
my grandbabies was sick, because she was, you know, but I wasn’t stating that
that was the reason that I needed to be off or anything like that.
***
Q: Did you state that you will not be returning to work on Monday, March the
3rd?
A: No, I did not. No.
***
Q: But you did not state... how many days you would take off or when you would
return?
A: Right. Amen. Yes, sir. I didn’t state that.
(Hampton Deposition, DN 41-4, at 46:20–47:05, 47:25–48:13, 63:17–64:19, 64:02–07).
In response, Hampton has advanced two arguments. First, Hampton challenges
Defendants’ contention that she failed to request leave during the February 26 meeting. In
support of this argument, Hampton has tendered an affidavit wherein she specifically
states that she requested leave during the meeting. See (Hampton Affidavit, DN 50-3, at ¶
16). Second, Hampton argues that, even if she did not explicitly request leave, the fact
that she provided her supervisors with sufficient information for them to reasonably infer
that she qualified for FMLA leave required them to take affirmative action in order to
ensure she received all leave to which she was entitled. According to Hampton, “the key
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language the Court should focus on” is this excerpt from Hampton’s deposition
testimony:
I just basically went in there to tell them my situation, because I was looking for
help at that point because my daughter had went in-house and it was getting to be
too hard to find somebody, because she [the infant with a serious medical
condition] wasn't in daycare yet, and I had to go in there—and I didn't know
really what to do. So I went in there and explained to them [her superiors] what
was going on. They never asked me to see any documents. They never told me
nothing.
(Hampton Deposition, DN 41-4, at 46:21–47:05).
Hampton’s first argument fails because “a party cannot create a genuine issue of
material fact by filing an affidavit, after a motion for summary judgment has been made,
that essentially contradicts his earlier deposition testimony.” Penny v. United Parcel
Service, 128 F.3d 408, 417 (6th Cir. 1997). Thus, her affidavit notwithstanding, Hampton
must abide by the statement in her deposition testimony that she did not request leave
during the February 26 meeting. Accordingly, Hampton cannot defeat summary judgment
by claiming that there exists a genuine dispute of material fact regarding whether she
requested leave.
Hampton’s second argument is similarly unavailing. Although it is true that an
“employee need not expressly assert rights under the FMLA or even mention the FMLA”
in order to invoke his rights thereunder, 29 C.F.R. § 825.303(b), an employee must
nevertheless expressly request leave before triggering the employer’s duty to inquire
further. Although the parties do not address whether Hampton’s leave would have been
considered foreseeable or unforeseeable, foreseeability is immaterial because in either
case the statute and regulations require the employee to both: 1) request leave; and 2)
provide sufficient information to notify the employer that the leave qualifies under the
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FMLA. Compare 29 U.S.C. § 2612(e) (foreseeable leave), and 29 C.F.R. § 825.303
(unforeseeable leave). By suggesting that Hampton properly notified Defendants of her
intention to take leave by merely providing information suggesting that she would be
eligible to take FMLA leave if she so desired, Hampton overlooks the primary
requirement that the employee must specifically request to take a leave of absence.
Indeed, all of the cases cited by Hampton assume that the employee has properly
requested to take a leave of absence, and thus focus instead on whether the employee has
provided sufficient information regarding whether the requested leave qualifies under the
FMLA. Here, by contrast, Hampton failed to request leave in the first instance, thereby
rendering it irrelevant whether she provided her supervisors with sufficient information to
notify them that she was eligible for leave under the FMLA. Accordingly, summary
judgment is appropriate because there is no genuine dispute that Hampton failed to
provide notice of her intention to take FMLA leave.
II. Retaliation
FMLA retaliation claims arise under 29 U.S.C. § 2615(a)(2), which provides that “it shall
be unlawful for any employer to discharge or in any other manner discriminate against any
individual for opposing any practice made unlawful by this subchapter.” 29 U.S.C. § 2615(a)(2).
“The issue in an FMLA retaliation claim is whether an employer retaliated or discriminated
against an employee because the employee invoked her FMLA rights.” Chavez v. Dakkota
Integrated Sys., LLC, 832 F.Supp.2d 786, 799 (W.D. Ky. 2011) (quoting Brady v. Potter, 476
F.Supp.2d 745, 758 (N.D. Ohio 2007)). Thus, to establish a prima facie case of retaliation, the
plaintiff must prove by a preponderance of the evidence that: 1) she engaged in an activity
protected by the FMLA; 2) the defendant knew about the protected activity; 3) the defendant
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thereafter took adverse employment action against her; and 4) there was a causal connection
between the protected activity and the adverse employment action. See Morris v. Family Dollar
Stores of Ohio, Inc., 320 Fed.Appx. 330, 338 (6th Cir. 2009) (quoting Arban v. West Publ’g
Corp., 345 F.3d 390, 404 (6th Cir. 2003)).
Defendants argue that, because Hampton never requested leave, there is no genuine
dispute that they did not know about Hampton’s protected activity. Although Hampton argues
that she engaged in FMLA-protected activity, Hampton never argues that Defendants were aware
that she was doing so. See (Mot. for Summ. J., DN 42-1, at 28–33); (Resp. to Mot. for Summ. J,
DN 50-2, at 24–32). Because Defendants’ knowledge of the protected activity is a necessary
element of an FMLA retaliation claim, summary judgment is warranted on this basis alone.
A separate order will be entered in accordance with this opinion.
C al R Smpo I , ei J d e
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February 26, 2014
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