BURTON v. SD WARREN COMPANY

Filing 28

ORDER denying 16 Motion for Preliminary Injunction By JUDGE JON D. LEVY. (ccs)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
DALE E. BURTON,
Plaintiff,
v.
S.D. WARREN COMPANY d/b/a
SAPPI FINE PAPER NORTH
AMERICA,
Defendant.

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2:17-cv-00110-JDL

ORDER ON PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
Plaintiff Dale Burton has moved for a preliminary injunction ordering his
former employer, Defendant S.D. Warren Company (“Sappi”), to evaluate Burton for
Family Medical Leave Act leave and reinstate Burton’s employment retroactive to
February 24, 2017. ECF No. 16 at 1. For the reasons that follow, I deny the motion.
Burton worked for Sappi from 1980 until March 2, 2017. He contends that his
employment was terminated because he was unable to work due to a serious medical
condition. He asserts that Sappi was aware of his medical condition, but failed to
evaluate him for leave as required by the Family Medical Leave Act (FMLA). He
further asserts that Sappi should have been aware of his need for medical leave
following a meeting on February 24, 2017, but that it wrongfully failed to evaluate
him for leave and instead terminated his employment.
In order to obtain a preliminary injunction, Burton must demonstrate: “(1) a
likelihood of success on the merits, (2) a likelihood of irreparable harm absent interim

relief, (3) a balance of equities in [his] favor, and (4) service of the public interest.”
Arborjet, Inc. v. Rainbow Treecare Scientific Advancements, Inc., 794 F.3d 168, 171
(1st Cir. 2015). “A preliminary injunction is an ‘extraordinary and drastic remedy’
that ‘is never awarded as of right.’” Voice of the Arab World, Inc. v. MDTV Med. News
Now, Inc., 645 F.3d 26, 32 (1st Cir. 2011) (quoting Munaf v. Geren, 553 U.S. 674, 68990 (2008)) (internal citations omitted). The movant’s likelihood of success on the
merits “is the touchstone of the preliminary injunction inquiry.” Maine Educ. Ass’n
Benefits Trust v. Cioppa, 695 F.3d 145, 152 (1st Cir. 2012) (quotation omitted).
Burton has not demonstrated a likelihood of success on the merits. In order to
show that he is likely to succeed on his FMLA interference claim, he must establish,
among other things, that he was entitled to FMLA leave and that he gave his
employer notice of his intention to take leave. See Carrero-Ojeda v. Autoridad de
Energía Eléctrica, 755 F.3d 711, 722 n.8 (1st Cir. 2014). On the record before the
Court, Burton has not established that he provided Sappi with sufficient notice of his
intention to take leave. Burton’s affidavit suggests that Burton’s manager may have
been aware that Burton had medical issues and that Burton’s difficulties at work
might be related to those issues. The affidavit also asserts that Burton’s conversation
with his manager resulted in Burton being examined by Sappi’s medical department,
and it was determined that Burton could still perform his job. The evidence does not
show that Burton ever requested medical leave, or otherwise suggested that he
needed time away from work to deal with a medical problem, prior to his termination.
Accordingly, Burton has not demonstrated a likelihood of success on the merits.

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Burton also has not shown that he will suffer irreparable harm if the Court
does not issue a preliminary injunction. Nor has he shown that legal remedies would
be inadequate. As the Supreme Court has stated, “[t]he possibility that adequate
compensatory or other corrective relief will be available at a later date, in the
ordinary course of litigation, weighs heavily against a claim of irreparable harm.”
Sampson v. Murray, 415 U.S. 61, 90 (1974) (quotation omitted). If Burton prevails
on the merits, he will be entitled to back pay, reinstatement or front pay, and the
value of any lost benefits or other compensation, as well was interest, attorney’s fees
and costs, and possibly liquidated damages. See 29 U.S.C.A. § 2617(a) (2017). These
legal remedies would be adequate to compensate him for any damages he may incur
during the pendency of the litigation. See DeNovellis v. Shalala, 135 F.3d 58, 64 (1st
Cir. 1998) (“[A] temporary loss of income which may be recovered later does not
usually constitute irreparable injury.”); see also Murray, 415 U.S. at 90 (“Mere
injuries, however substantial, in terms of money, time and energy necessarily
expended in the absence of a stay, are not enough.”) (quotation omitted).
Burton argues that he will suffer irreparable harm absent a preliminary
injunction because failure to issue an injunction will cause a general chilling effect
on the exercise of rights under the FMLA by Maine workers, citing Stagliano v.
Herkimer Cent. Sch. Dist., 151 F. Supp. 3d 264 (N.D.N.Y. 2015). Burton has not,
however, shown that a failure to order that he be retroactively evaluated for FMLA
leave is likely to deter other employees from attempting to exercise their rights under
the statute. See Stagliano, 151 F. Supp. 3d at 273 (noting that a plaintiff must show
“some evidence of actual chill that would be cured by the requested injunction”)
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(quotation omitted). Burton does not allege that his employment was terminated in
retaliation for requesting leave, or otherwise suggest how Sappi’s failure to evaluate
him for FMLA leave would dissuade his co-workers from attempting to exercise their
rights. Compare id. (plaintiff submitted six affidavits from co-workers attesting to
fear of requesting sick leave as a consequence of plaintiff’s treatment by employer).
Because Burton has not demonstrated a likelihood of success on the merits and
that he will suffer an irreparable injury if a preliminary injunction does not issue, his
Motion for a Preliminary Injunction (ECF No. 16) is DENIED.

SO ORDERED.
Dated this 19th day of May 2017
/s/ JON D. LEVY
U.S. DISTRICT JUDGE

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