Perkins v. Pel Hughes Printing, LLC et al
Filing
65
ORDER AND REASONS: GRANTING in part and DENYING in part 25 Motion for Summary Judgment. Is GRANTED in part as to Plaintiff's claims under the Family Medical Leave Act and DENIED in part as to Plaintiff's claim under intentional infliction of emotional distress. IT IS FURTHER ORDERED that Plaintiff be deposed within the next forty-five (45) days. Signed by Judge Jay C. Zainey on 12/4/2018. (ajn)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KATHY PERKINS
CIVIL ACTION
VERSUS
NO. 17-6689
PEL HUGHES PRINTING, LLC ET AL.
SECTION A(4)
ORDER AND REASONS
Before the Court is a Motion for Summary Judgment (Rec. Doc. 25) filed by Defendants
Pel Hughes Printing, LLC and John Victor Hughes (hereinafter collectively referred to as
“Defendants”). Plaintiff Kathy Perkins opposes the Motion (Rec. Doc. 61). The Motion, set for
submission on November 14, 2018, is before the Court on the briefs without oral argument. Having
considered the motion and memoranda of counsel, the opposition, the reply, the record, and the applicable
law, the Court finds that the Motion for Summary Judgment (Rec. Doc. 25) is DENIED in part and
GRANTED in part for the reasons set forth below.
I.
Background
Kathy Perkins worked for Pel Hughes Printing, LLC (“PHP”) as a Human Resource
Administrator. (Rec. Doc. 1, Exhibit A ¶ 5). On December 30, 2015, Perkins was admitted into
Ochsner Hospital’s Outpatient Behavioral Mental Unit Program due to alleged verbal abuse by John
Victor Hughes, president of PHP. (Id, ¶¶ 9-12). After being diagnosed with stress, depression, and
anxiety, Perkins remained in the hospital for two weeks. (Id., ¶ 12). While this leave was covered by
the Family Medical Leave Act (“FMLA”), Hughes allegedly called Perkins’ disabled daughter,
Aubrey Pitre, and told her that, “Unless [Perkins] comes back to work soon, I’ll have to let her go.”
(Id. ¶¶ 13-14). Perkins asserts that she returned to work against her physician’s advice on January 18,
2016, out of fear of termination. (Id., ¶ 16).
Defendants assert that on January 18, 2016, Hughes’ wife had a conversation with Perkins
which resulted in an “agreement” that PHP would terminate Perkins’ employment after ninety days.
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(Rec. Doc. 25-5, p. 2). On April 4, 2016, Perkins took a scheduled day off to receive an epidural.
(Rec. Doc. 1, Exhibit A ¶ 21). The next day, Perkins experienced a mental breakdown and was
admitted to Ochsner Hospital for suicidal ideations. (Id.). Perkins remained hospitalized until April
13, 2016. PHP terminated Perkins’ employment on May 2, 2016. (Id., ¶¶ 21, 26). Perkins filed the
instant suit alleging that Defendants violated the FMLA regarding the leave she took in January 2016
and that Defendants intentionally inflicted emotional distress. (Id. ¶¶ 14, 32). Defendants now move
this Court to enter summary judgment on all of Perkins’ claims as she has not presented evidence
sufficient to establish a genuine issue of material fact. (Rec. Doc. 25).
II.
Legal Standard
Summary judgment is appropriate only if “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,” when viewed in the light
most favorable to the non-movant, “show that there is no genuine issue as to any material fact.” TIG
Ins. Co. v. Sedgwick James, 276 F.3d 754, 759 (5th Cir.2002) (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249–50 (1986)). A dispute about a material fact is “genuine” if the evidence is such
that a reasonable jury could return a verdict for the non-moving party. Id. (citing Anderson, 477 U.S.
at 248). The court must draw all justifiable inferences in favor of the non-moving party. Id. (citing
Anderson, 477 U.S. at 255). Once the moving party has initially shown “that there is an absence of
evidence to support the non-moving party's cause,” Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986), the non-movant must come forward with “specific facts” showing a genuine factual issue for
trial. Id. (citing Fed.R.Civ.P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587
(1986)). Conclusory allegations and denials, speculation, improbable inferences, unsubstantiated
assertions, and legalistic argumentation do not adequately substitute for specific facts showing a
genuine issue for trial. Id. (citing SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir.1993)).
III.
Law and Analysis
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Defendants assert that Perkins must present evidence in support of her claims of intentional
infliction of emotional distress and interference and retaliation with respect to her rights under the
FMLA that raises a genuine issue of material fact. (Rec. Doc. 25-5, p. 4). Defendants argue that
Perkins has not presented, and cannot present, evidence in support of: (1) her claim for interference
with her right to take qualifying medical leave under the FMLA; (2) her claim for retaliation by
Hughes in connection with her FMLA approved leave; and (3) her claim for intentional infliction of
emotional distress as required by Louisiana law.
a. Family Medical Leave Act
The FMLA entitles an eligible employee to a total of twelve workweeks of leave during any
twelve-month period for enumerated reasons including due to “a serious health condition that makes
the employee unable to perform the functions of the position of such employee.” 29 U.S.C. §
2612(a)(1). The FMLA establishes that it is unlawful for an employer to “interfere with, restrain, or
deny the exercise of or the attempt to exercise, any right provided” by the FMLA. 29 U.S.C. §
2615(a)(1). Perkins alleges that while she was on FMLA leave in January 2016, Hughes began
calling Aubrey Pitre, Perkins’ daughter, and leaving threatening messages. (Rec. Doc. 61, Exhibit A
p. 4). Perkins’s FMLA claim is founded on these phone calls to allege that she returned to work
against her physician’s advice out of fear that Hughes would terminate her. (Rec. Doc. 1, Exhibit A ¶
16).
1) Interference of FMLA Approved Leave
In order for a plaintiff to establish a prima facie interference case, she must show that: (1)
plaintiff was an eligible employee, (2) defendant was an employer subject to the FMLA's
requirements, (3) plaintiff was entitled to leave, (4) plaintiff gave proper notice of her intention to
take FMLA leave, and (5) defendant denied her the benefits to which she was entitled under the
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FMLA. Lanier v. University of Texas Southwestern Medical Center, 527 Fed. Appx. 312, 316 (5th
Cir. 2013).
Defendants assert in their reply that the statements from Plaintiff’s affidavit are inadmissible
hearsay in violation of Rule 56(c)(4) of the Federal Rules of Civil Procedure. (Rec. Doc. 62, p. 7).
Perkins would need to produce recordings from the phone conversations between Pitre and Hughes
and a statement from her physician. (Id.). Defendants argue that Perkins fails to produce any valid
evidence in support of a claim of interference with her FMLA rights. (Id.). Defendants reference the
notice for the FMLA leave to state that Perkins received the requested FMLA leave without
interference. (Id., p. 8). Defendants also assert that Perkins has failed to allege any facts that she was
prejudiced by an interference with her FMLA rights. (Id.).
According to Rule 56(c)(4) of the Federal Rules of Civil Procedure, “an affidavit or
declaration used to support or oppose a motion [for summary judgment] must be made on personal
knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant
is competent to testify on the matters stated.” In support of her opposition to Defendants’ Motion for
Summary Judgment, Perkins attached her sworn declaration as “Exhibit A.” Perkins bases her claim
of an interreference of FMLA approved leave on phone calls and messages her daughter received
from Hughes. (Rec. Doc. 61, Exhibit A p. 4). The statements are not based upon facts that would be
admissible in evidence. As a general rule, the Federal Rules of Evidence provide that hearsay is
inadmissible. F.R.E. 802. Hearsay is defined to include third party statements offered to prove the
matter asserted. F.R.E. 801. Perkins’ statement, “Mr. Hughes told my daughter that, ‘unless [your
mother] comes back to work soon, I’ll have to let her go,’” constitutes inadmissible hearsay. (Rec.
Doc. 61, Exhibit A p. 4). The Federal Rules of Evidence allow for various exceptions to the general
rule against hearsay; however, the Court finds that even though Pitre has since passed away, an
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exception is not provided for in the facts. The Court holds that Perkins’ claim for interference of an
FMLA approved leave is dismissed on summary judgment.
2) Retaliation for FMLA Approved Leave
In order for a plaintiff to establish a prima facie retaliation case, she must show that: (1) she
was protected under the FMLA; (2) she suffered an adverse employment action; and (3) she either
was treated less favorably than a similarly situated employee who had not requested leave or the
adverse decision was made because she took FMLA leave. Lanier 527 Fed. Appx. at 317.
Defendants argue that Perkins fails to establish a claim under the FMLA for retaliation. (Rec.
Doc. 62, p. 9). Defendants cite Hughes’ testimony and a letter of recommendation written by Tom
Mouras, a PHP human resources employee, to assert that Perkins’ termination was not out of
retaliation. (Id.). Hughes testifies that he chose not to fire Perkins but rather terminate the position.
(Id., Exhibit A p. 9). In furtherance of these assertions, Defendants note that Perkins received a
ninety-day notice of termination to give her ample time to find a new job. (Id., p. 9).
In application of the Lanier elements, the Court grants Defendants’ Motion for Summary
Judgment regarding Perkins’ claim for retaliation under the FMLA. It is uncontested that the
December 2015-2016 leave was FMLA approved. The leave is evidenced as FMLA approved by the
notice signed by Tom Mouras, on December 30th, 2015. (Rec. Doc. 61, Exhibit 1). It is also
uncontested that the day after her return from FMLA leave, Hughes informed her that her position
was terminated, an adverse employment action. Thus, the issue before the Court is whether Perkins
was either treated less favorably than a similarly situated employee who had not requested leave, or
the adverse decision was made because she took FMLA leave.
Although never having been deposed, Perkins attests that while she was on FMLA leave her
daughter received termination threats from Hughes, and upon her return to work, Hughes terminated
her with a ninety-day notice. (Rec. Doc. 61, Exhibit A p. 4). She does not specifically allege anything
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regarding a similarly situated employee, and she does not specifically allege or present evidence that
she believes the termination was due to her FMLA leave. The Court grants Defendants’ Motion for
Summary Judgment and dismisses Perkins’ claim for interference of an FMLA approved leave.
b. Intentional Infliction of Emotional Distress
Plaintiff’s opposition to Defendants’ Motion for Summary Judgment is based primarily on
her self-serving affidavit. Defendants have made repeated requests to depose Plaintiff, but she has
not made herself available. Although the Court sympathizes with the Plaintiff’s mental health
condition, Plaintiff has brought this lawsuit, and Defendants have the right to depose her. The Court
has been lenient in working with all the parties in resetting the submission date for this motion.
Perkins shall submit to a deposition within the next forty-five days, otherwise, the Court will dismiss
the claim without prejudice based on non-suit, upon proper motion by Defendants.
IV.
Conclusion
Accordingly;
IT IS ORDERED that Defendants’ Motion for Summary Judgment (Rec. Doc. 25) is
GRANTED in part as to Plaintiff’s claims under the Family Medical Leave Act and DENIED in
part as to Plaintiff’s claim under intentional infliction of emotional distress;
IT IS FURTHER ORDERED that Plaintiff be deposed within the next forty-five (45) days.
New Orleans, Louisiana, this 4th day of December, 2018
__________________________________
JUDGE JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE
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