Castay v. Ochsner Clinic Foundation

Filing 29

ORDER AND REASONS granting in part and denying in part 7 Motion for Summary Judgment. Signed by Judge Susie Morgan on 1/7/2014. (caa, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ANNE VICTORIA CASTAY,
Plaintiff

CIVIL ACTION

VERSUS

No. 13-2492

OCHSNER CLINIC FOUNDATION,
Defendant

SECTION “E”

ORDER & REASONS
Before the Court is a motion for summary judgment filed by Ochsner Clinical
Foundation (“Ochsner”),1 which Plaintiff Anne Victoria Castay opposes.2 For the following
reasons, the motion is GRANTED in part and DENIED in part.
BACKGROUND
Castay worked at Ochsner from 1980 until June 4, 2012. She asserts she was
terminated shortly after she requested leave under the Family Medical Leave Act (“FMLA”)
to care for her gravely ill father. She asserts that, despite being told she was eligible for
FMLA leave by an Ocshner representative, Ochsner both denied her the leave to which she
was entitled and retaliated by terminating her after she advised her supervisor that she was
applying for leave. As a result, she brought this suit under FMLA seeking damages and
reinstatement.
At issue in this motion is whether Castay qualifies as an “eligible employee” under
FMLA. Ochsner asserts that Castay did not work a sufficient number of hours (1250) in the
twelve months preceding her termination to qualify, pointing to Castay’s time cards
showing she worked a total of 930.10 hours. Castay responds that it does not matter

1

R. Doc. No. 7.

2

R. Doc. No. 14.

whether she worked enough hours to be in fact eligible because Ochsner certified her as
eligible.
STANDARD OF LAW
Summary judgment is appropriate only “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56; see also Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986).
If the dispositive issue is one on which the moving party will bear the burden of proof
at trial, the moving party “must come forward with evidence which would ‘entitle it to a
directed verdict if the evidence went uncontroverted at trial.’” Int’l Shortstop, Inc. v.
Rally’s, Inc., 939 F.2d 1257, 1263-64 (5th Cir. 1991). If the moving party fails to carry this
burden, the motion must be denied. If the moving party successfully carries this burden,
the burden then shifts to the non-moving party to show that a genuine issue of material fact
exists. Id. at 322-23. Once the burden has shifted, the non-moving party must direct the
Court’s attention to something in the pleadings or other evidence in the record that sets
forth specific facts sufficient to establish that a genuine issue of material fact does indeed
exist. Id. at 324.
If the dispositive issue is one on which the non-moving party will bear the burden
of proof at trial, however, the moving party may satisfy its burden by simply pointing out
that the evidence in the record is insufficient with respect to an essential element of the
non-moving party’s claim. See Celotex, 477 U.S. at 325. The nonmoving party must then
respond, either by “calling the Court’s attention to supporting evidence already in the
record that was overlooked or ignored by the moving party” or by coming forward with

additional evidence. Celotex, 477 U.S. at 332-33 & 333 n.3.
“An issue is material if its resolution could affect the outcome of the action.”
DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005). When assessing whether a
material factual dispute exists, the Court considers “all of the evidence in the record but
refrains from making credibility determinations or weighing the evidence.” Delta & Pine
Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008); see also
Reeves v. Sanderson Plumbing, Inc., 530 U.S. 133, 150-51 (2000). All reasonable
inferences are drawn in favor of the non-moving party. Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994). There is no genuine issue of material fact if, even viewing the
evidence in the light most favorable to the non-moving party, no reasonable trier of fact
could find for the non-moving party, thus entitling the moving party to judgment as a
matter of law. Smith v. Amedisys, 298 F.3d 434, 440 (5th Cir. 2002).
ANALYSIS
In order to be eligible for FMLA leave, an employee must have worked at least 1250
hours for his or her employer over the preceding twelve months. 29 U.S.C. § 2611(2)(A)(ii);
29 C.F.R. § 825.110(a)(2). “Paid vacation, holidays, sick leave, and FMLA leave are not
included in the 1,250 hour calculation.” Lyons v. North East Independent Sch. Dist., 277
F. App’x 455, 456 (5th Cir. 2008) (citing 29 U.S.C. § 207(e)(2)); accord Plumley v.
Southern Container, Inc., 303 F.3d 364, 372 (1st Cir. 2002) (“[W]e hold that hours of
service, as those words are used in the FMLA, include only those hours actually worked in
the service and at the gain of the employer.”).3 Castay does not seriously dispute that she

3

Under 28 U.S.C. § 2611(2)(C), “For purposes of determining whether an
employee meets the hours of service requirement . . . the legal standards
established under” the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §
207, “shall apply.” It is the FLSA that “preclud[es] the counting of ‘periods

actually worked fewer than 1250 hours. In her response to Ochsner’s motion for summary
judgment, she includes a table showing her “hours physically worked” total 922.40 hours
in the preceding twelve months.4 Whether she worked 922.40 hours, as she asserts, or
930.10 hours, as Ochsner asserts, neither amount is 1250 hours or more. The only other
time reflected on the chart Castay submits—“GPT” or “General Purpose Time” hours—may
not be added to her hours physically worked for purposes of FMLA eligibility. Ochsner
produced competent summary judgment evidence that “if there is a notation with the
abbreviation ‘GPT,’ no time was actually worked by the employee,” which Castay has not
disputed. As such, the GPT hours may not be counted for purposes of FMLA. Lyons, 277
F. App’x at 456.
Instead of disputing whether GPT hours may be counted towards eligibility, Castay
asserts “[b]ecause Plaintiff can prove that Ochsner confirmed her eligibility for FMLA leave
on the date she applied for that leave, a material issue of fact exists on the question of
whether Plaintiff is an ‘eligible employee.’”5 In support she points to a Department of Labor
FMLA regulation that provides:
The determination of whether an employee has worked for the employer for
1250 hours in the past 12 months and has been employed by the employer for
a total of at least 12 months must be made as of the date leave commences.
If an employee notifies the employer of need for FMLA leave before the
employee meets the eligibility criteria, the employer must either confirm the
employee’s eligibility based upon a projection that the employee will be
eligible on the date leave would commence or must advise the employee when
the eligibility requirement is met. If the employer confirms eligibility at the
when no work is performed due to vacation, holiday, illness, failure of the
employer to provide sufficient work, or other similar cause.” Smith v.
Medpointe Healthcare, Inc., 338 F. App’x 230, 233 (3d Cir. 2009)
(internal quotation marks omitted).
4

R. Doc. No. 14, p. 5.

5

R. Doc. No. 14, p. 5.

time the notice for leave is received, the employer may not subsequently
challenge te employee’s eligibility. . . . If the employer fails to advise the
employee whether the employee is eligible prior to the date requested leave
is to commence, the employee will be deemed eligible. The employer may
not, then, deny the leave.
29 C.F.R. § 825.110(d) (1995).
The problem for Castay is that numerous courts have declared this regulation
unconstitutional, e.g., Dormeyer v. Comerica Bank-Illinois, 223 F.3d 579, 582–83 (7th Cir.
2000), and in any event, the regulation was superseded on January 16, 2009—that is,
before any time period possibly relevant to this claim—by a regulation that specifically
excludes the language on which Castay relies. 29 C.F.R. § 825.110(d) (2009).6 For her
attorney to have advanced an out-of-date regulation, one specifically revised by the
Department of Labor to excise the language on which Castay relies in light of court
decisions holding that language unconstitutional, is inexcusable.
As Castay is not an “eligible employee” under FMLA, summary judgment is proper
on Castay’s claim for interference based on 29 U.S.C. § 2615(a)(1), which states “[i]t shall
be unlawful for any employer to interfere with, restrain, or deny the exercise of or the
attempt to exercise, any [FMLA] right,” and 29 U.S.C. § 2614(a)(1), which applies only to
“an[] eligible employee.”7 Without a right to leave, there cannot have been any interference
with or restraint or denial of a right. E.g., Lanier v. Univ. of Tex. Sw. Med. Ctr., 527 F.
App’x 312, 316 (5th Cir. 2013) (“To establish a prima facie interference case, [the plaintiff]

6

After the events at issue in this case, the regulation was amended again,
effective March 8, 2013. 29 C.F.R. § 825.110(d) (2013). Those
amendments, even if they were to apply, would not have any relevance to
this matter, however.

7

Castay’s complaint cites 29 U.S.C. § 2614(b)(1), but this must have been an
error.

must show that (1) she was an eligible employee . . . .”).
Castay’s FMLA retaliation claim under 29 U.S.C. § 2615(a)(2) stands on different
footing, however. Unlike an interference claim, which requires the plaintiff to show she was
an eligible employee, a retaliation claim requires only that the plaintiff show “she was
protected under the FMLA,” Lanier, 527 F. App’x at 317, that is, she “engaged in protected
activity.” Nichelson v. United Dominion Realty Trust, 152 F. App’x 421, 423 (5th Cir.
2005).8 Inquiring whether she was eligible for leave and advising her supervisor that she
has applied for leave are both clearly activities protected by FMLA. Whether Castay can
make out the remainder of a prima facie case of retaliation, which requires her to show that
“she suffered an adverse employment decision” and either “that she was treated less
favorably than an employee who had not requested leave under the FMLA” or “the adverse
decision was made because she took FMLA leave,” remains to be seen. Hunt v. Rapides
Healthcare Sys., LLC, 277 F.3d 757, 768 (5th Cir. 2001). That is the subject of Ochsner’s
second motion for summary judgment, which has not yet gone under submission and so is
not ripe for adjudication.
CONCLUSION
For the foregoing reasons, IT IS ORDERED that Ochsner’s motion for summary

8

Retaliation claims may be brought by those who engage in protected
activity even though they themselves might not be employees eligible for
FMLA leave, that is, “eligible employees” with substantive rights protected
from interference under 29 U.S.C. § 2615(a)(1). See, e.g., Smith v.
BellSouth Telecommunications, Inc., 273 F.3d 1303, 1312–13 (11th Cir.
2001); Duckworth v. Pratt & Whitney Inc., 152 F.3d 1, 9–11 (1st Cir. 1998).
This prevents absurd results, such as allowing an employer to fire a preeligible employee for advising about the need for leave after the employee
becomes eligible.

judgment is GRANTED as to Count 1 and DENIED as to Count 2 of Castay’s complaint.9
New Orleans, Louisiana, this 7th day of January, 2014

_____________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

9

Castay also objected to Ochsner’s motion as premature in light of the fact
that, at the time the motion was filed, substantial discovery was still
expected. Discovery is now complete, however, and Castay has not asked
for leave to supplement her opposition. In any event, she also failed to
comply with Federal Rule of Civil Procedure 56(d), which requires a party
opposing a motion for summary judgment on the basis that “it cannot
present facts essential to justify its opposition” to make this showing by
affidavit or declaration. For both reasons, the Court sees no need to defer
consideration of this motion.