Edusei v. Adventist Healthcare, Inc.

Filing 36

MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 7/7/14. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
AMA B. EDUSEI
:
v.

:

Civil Action No. DKC 13-0157

:
ADVENTIST HEALTHCARE, INC.
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this medical
leave case is the motion for summary judgment filed by Defendant
Adventist HealthCare, Inc.

(ECF No. 28).

The issues have been

fully briefed, and the court now rules, no hearing being deemed
necessary.

Local Rule 105.6.

For the following reasons, the

motion for summary judgment will be denied.
I.

Factual Background1
Plaintiff

Ama

B.

Edusei

worked

as

an

echocardiogram

technician for Defendant in the cardiology unit of Washington
Adventist Hospital (“WAH”) in Takoma Park, Maryland.

The unit

typically had three technicians working at once, but could get
by with only two.

Having fewer than two technicians working put

patients in danger should an emergency arise.

1

Unless otherwise noted,
construed in the light most
nonmoving party.

the facts outlined here
favorable to Plaintiff,

are
the

Plaintiff’s

father

was

ill

and

living

in

Ghana.

She

desired to visit her father and, in March 2010, put in a leave
request for December 12, 2010 through January 30, 2011.

Her

supervisor - Adella Lowe-Brooks - denied the request, stating
that four weeks was the maximum leave allowed per policy.

She

was instructed to apply for four weeks of leave or for an unpaid
leave of absence.
happen

if

her

(ECF No. 34-5).

father

was

sick.

Plaintiff asked what would
Ms.

Lowe-Brooks

referred

Plaintiff to Ms. Wanlapa Fuangphon, a senior benefits specialist
at

WAH,

so

that

(“FMLA”) leave.
met

with

Ms.

she

could

request

Family

Medical

Leave

Act

Plaintiff decided to apply for FMLA leave and
Fuangphon.

On

November

20,

2010,

Plaintiff

completed an FMLA certification form for leave connected to a
family member’s serious health condition.

She stated that her

care was to “be there for him morally, physical needs.
for long term care for my dad.
(ECF No. 28-8, at 2).

Arrange

Leave needed is about 6 weeks.”

The remainder of the form was completed

by a physician in Ghana, who stated that Plaintiff’s father has
had his condition since August 2007 and estimated the dates of
incapacity to run from “19/11/2010 to 30/10/2010 [sic].”
at 4).

(Id.

According to Ms. Lowe-Brooks, Plaintiff presented her

with a leave form and stated that Ms. Fuangphon had approved her
for leave from December 14, 2010 to January 25, 2011.

Ms. Lowe-

Brooks wrote those dates on the form and gave it to Plaintiff to
2

deliver to Ms. Fuangphon.
back at work on January 26.

Ms. Lowe-Brooks expected Plaintiff
Plaintiff

states

in

her

interrogatory answers, however, that “Ms. Lowe-Brooks and Ms.
Fuangphon both verbally approved that I could take leave from
12/14/10 through 1/30/2011.”

(ECF No. 28-14, at 9).

Plaintiff

had previously bought plane tickets from Washington, D.C. to
Ghana.

Plaintiff states that she did not purchase the tickets

herself.

She states that she intended to depart Washington, DC

on December 12, 2010 and leave Ghana on January 26, 2011.

She

would then spend a few days recuperating before returning to
work on February 1, 2011.

Ms. Fuangphon testified that she

examined Plaintiff’s medical certification and found that if she
desired to take twelve weeks off, she would be qualified to do
so

because

lifelong.

Plaintiff’s

father’s

condition

was

(ECF No. 34-2, at 5, Trans. 50:10-14).

chronic

and

She did not

state what she told Plaintiff specifically in terms of how long
she could take off, but testified that she always tells the
employee that they are entitled to up to twelve weeks.
7, Trans. 52:18-19).

(Id. at

When an employee is traveling out of the

country, she always tells them to keep her informed of changed
circumstances so she can give them further instructions on what
to do.
On December 12, 2010, Plaintiff arrived at Dulles Airport
and printed her plane tickets.

It was then that she realized
3

for the first time that her date of departure from Ghana was
scheduled for January 30, 2011, not January 25, 2011 as she had
intended.
Plaintiff’s leave was officially approved in a letter dated
December 20, 2010 from Ms. Fuangphon.

The leave period was

stated as between December 14, 2010 and January 25, 2011.
No.

28-10).

The

letter

Plaintiff’s husband.

was

sent

via

mail

and

(ECF

received

by

He opened the letter and, in early to mid-

January 2011, informed Plaintiff of the end date of January 25,
2011.
and

On January 15, 2011, Plaintiff telephoned Ms. Fuangphon

told

her

she

needed

an

extension

of

her

FMLA

leave.

According to Plaintiff, she was told to speak with Ms. LoweBrooks.

Plaintiff then called Ms. Lowe-Brooks and stated that

she wished to extend her leave to January 30, as she originally
requested.

Ms. Lowe-Brooks told Plaintiff that she was due back

at work on January 18, 2011.

She subsequently spoke with Ms.

Fuangphon, who corrected her that Plaintiff was not due back
until January 26, 2011.

A few days later, Plaintiff and Ms.

Lowe-Brooks spoke again, and Plaintiff was told that she was due
back at work on January 26, not January 18.
The parties disagree as to the reasons Plaintiff gave when
requesting a leave extension.

Defendant cites to the testimony

of Ms. Lowe-Brooks, who stated that the only reason given by
Plaintiff for an extension was that there had been an error in
4

her return flight date.

Plaintiff, by contrast, testified that

she needed leave beyond January 25 because her father was still
sick and she needed to spend more time with him.
to

do

with

the

fact

that

she

had

already

tickets with a later date to return.
Trans.

139:8-14).

She

wanted

to

It had nothing

purchased

airline

(ECF No. 28-7, at 14,

spend

more

time

with

because it could be the last time she would ever see him.

him
She

stated that she would have stayed with him longer, but Ms. LoweBrooks insisted that she come back on January 26.

She would

have been happy to take the entire twelve weeks she was entitled
to under the FMLA.
On January 23, Plaintiff sent Ms. Lowe-Brooks an email that
she

was

attempting

to

fly

standby.

Plaintiff

went

to

the

airport in Ghana on January 23 and 24 in an attempt to get a
seat as a standby passenger.

She was unsuccessful.

She called

her airline and was informed that she would not be able to leave
before

her

scheduled

departure

on

January

30.

Plaintiff

testified that for the period between January 25 and January 30,
she took care of her father in the same way she had before.

She

has a sister who lived in Ghana who was helping take care of
their father.

Plaintiff testified that if she were to leave on

one of the standby flights, there were family members lined up
to care for their father.
21).

(ECF No. 28-7, at 49, Trans. 239:7-

Later in her deposition, Plaintiff testified that her
5

sister was supposed to take care of her father when Plaintiff
left on January 26, but she could not, and that’s why she asked
for

a

leave

extension.

According

to

Plaintiff,

her

sister

couldn’t care for her father because she lives some distance
away from her father and had to care for her son.
of her sister’s predicament around January 15.
testified

that

she

never

received

any

She learned

Ms. Lowe-Brooks

indication

from

Ms.

Fuangphon that Plaintiff had requested an extension of her FMLA
leave.

She

extension

of

acknowledged
FMLA

leave,

through Human Resources.

that
but

Plaintiff

that

is

request

entitled

would

have

to

an

to

go

Ms. Lowe-Brooks never told Plaintiff

to contact Human Resources because, based on her discussions
with Plaintiff, her request had nothing to do with FMLA, but was
solely

related

to

the

fact

that

her

airline

ticket

had

an

unintended return date.
Plaintiff

took

her

scheduled

flight

returned to Washington, D.C. the next day.

on

January

30

and

That night, she left

a voice mail with Ms. Lowe-Brooks stating that she was too tired
to report to work as scheduled the next day, February 1.

On

February 1, Ms. Lowe-Brooks called Plaintiff and told her that
she was expected at work.

Plaintiff came to work, clocking in

at 1:11 pm, over six hours after her 7:00 am start time.

On

February 8, 2011, Defendant issued a “final written warning” to
Plaintiff and suspended her without pay for one day based on (1)
6

her failure to report to work on her scheduled dates beginning
January 26, ending when she returned to work on February 1; (2)
her

failure

report

as

to

report

scheduled

on

her

absences;

February

1.

and

(3)

The

her

report

failure
stated

to

that

Plaintiff “will also understand that any further breaches in
attendance
Warning”).

will

result

Plaintiff

“agree[d] somewhat.”

in

immediate

signed

the

termination.”

form,

and

stated

(“Final
that

she

(ECF No. 28-13).

On August 22, 2012, Plaintiff submitted a request to take
off September 4-6 in order to accompany her daughter to the
start of kindergarten.

On August 30, Ms. Lowe-Brooks granted

her request as to September 5 and 6, but denied it as to the 4th.
The reason for the denial was that Plaintiff was one of only two
echocardiogram technicians scheduled to work on the 4th, and the
department could not go down to just one technician for safety
reasons.

Consequently, a replacement needed to be found before

Plaintiff could take off the 4th.

Ms. Lowe-Brooks told Plaintiff

that she had contacted Gary Chin to see if he could work in her
place.

The next day, Ms. Lowe-Brooks told Plaintiff that Mr.

Chin could not do it and she should find someone else to do it.
Plaintiff stated that she first asked Robbie Li to substitute
but he was busy.

She called Shin Kim and left messages, but

never heard back.

She spoke with Janet Williams who agreed to

fill in for Plaintiff, but asked that she call Ms. Kim again to
7

see whether she was available.
Kim,

so

she

called

Ms.

Plaintiff could not reach Ms.

Williams

back

and

left

a

message.

Plaintiff attempted to reach Ms. Williams on her cell phone but
could

not

reach

her.

On

September

4,

Plaintiff

called

Ms.

Williams’s work phone, and was told by a secretary that Ms.
Williams was working on the floor.
Defendant’s

policy

was

to

have

(ECF No. 28-14, at 10-11).
both

the

employee

and

her

substitute call their supervisor to inform the supervisor of the
substitution.

Plaintiff knew this was the policy.

7, at 39, Trans. 195:1-3).

(ECF No. 28-

Plaintiff stated that she called Ms.

Lowe-Brooks to inform her that Ms. Williams would be covering
her shift.

She was not aware of whether Ms. Williams did the

same and learned for the first time during her deposition that
Ms. Williams did not show up for work on September 4.

Ms.

Williams stated that she spoke with Plaintiff but at the time of
the conversation, she was on vacation and was unsure whether she
would be able to work on the 4th.

She suggested to Plaintiff

that she call Ms. Kim and that Plaintiff should call her back if
she could not reach Ms. Kim.

Ms. Williams states that she never

told Plaintiff she would cover her shift and, because of that,
never called Ms. Lowe-Brooks.

(ECF No. 35-3).

Ms. Lowe-Brooks

stated that she never received any notice from Plaintiff as to
whether she would be working her September 4 shift or if she had
found

a

replacement.

Ms.

Lowe-Brooks
8

attempted

to

contact

Plaintiff

but

reached

only

her

voicemail.

She

reached

Ms.

Williams who expressed surprise that Plaintiff was not at work.
Ultimately, Ms. Williams came in to work.
In

a

letter

dated

September

employment was terminated.
September

4

absence

was

12,

2012,

Plaintiff’s

The letter stated that Plaintiff’s
unauthorized

and

she

did

not

find

someone to cover her shift.

“Based on a prior Final Warning for

unauthorized

leave,

Lowe-Brooks]

employment.”

(ECF No. 28-16).

[Ms.

has

terminated

your

On January 14, 2013, Plaintiff filed a complaint in this
court.
of

Her amended complaint makes four claims: (1) the denial

Plaintiff’s

extension

of

FMLA

leave

interfered

with

Plaintiff’s FMLA rights; (2) the one-day suspension without pay
was

retaliation

exercise,

her

for
FMLA

Plaintiff’s
rights;

(3)

exercise

of,

Plaintiff’s

or

attempt

to

termination

of

employment was retaliation for taking or attempting to take FMLA
leave; and (4) Plaintiff’s discharge was discrimination on the
basis of family responsibilities, in violation of the Montgomery
County Human Rights Act, Montgomery Cnty. Code § 27-19.
No. 17).

(ECF

On February 12, 2014, Defendant filed a motion for

summary judgment on all claims.

(ECF No. 28).

On March 11,

2014, Plaintiff filed an opposition, in which she withdrew her
claim based on the Montgomery County Code, leaving only the FMLA

9

claims.
2014.
II.

(ECF No. 34, at 3 n.1).

Defendant replied on March 28,

(ECF No. 35).
Standard of Review
A motion for summary judgment will be granted only if there

exists no genuine dispute as to any material fact and the moving
party

is

entitled

to

judgment

as

a

matter

of

law.

See

Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986);

Anderson

v.

Liberty

Lobby,

Inc.,

477

U.S.

(1986).

The moving party bears the burden of showing that there

is no genuine dispute as to any material fact.

242,

250

No genuine

dispute of material fact exists, however, if the nonmoving party
fails to make a sufficient showing on an essential element of
his or her case as to which he or she would have the burden of
proof.

Celotex, 477 U.S. at 322–23.

Therefore, on those issues

on which the nonmoving party has the burden of proof, it is his
or her responsibility to confront the summary judgment motion
with an affidavit or other similar evidence showing that there
is a genuine dispute for trial.
In Anderson v. Liberty Lobby, Inc., the Supreme Court of
the United States explained that, in considering a motion for
summary judgment, the “judge’s function is not himself to weigh
the

evidence

and

determine

the

truth

of

the

matter

determine whether there is a genuine issue for trial.”
at 249 (1986).

but

to

477 U.S.

A dispute about a material fact is genuine “if
10

the

evidence

is

such

that

a

reasonable

verdict for the nonmoving party.”

jury

could

Id. at 248.

return

a

Thus, “the judge

must ask himself not whether he thinks the evidence unmistakably
favors one side or the other but whether a fair-minded jury
could return a verdict for the [nonmoving party] on the evidence
presented.”

Id. at 252.

In undertaking this inquiry, a court must view the facts
and the reasonable inferences drawn therefrom “in the light most
favorable to the party opposing the motion.”

Matsushita Elec.

Indus.

574,

Co.

(quoting

v.

Zenith

United

Radio

Corp.,

v.

Diebold,

States

475

U.S.

Inc.,

369

587

U.S.

(1986)

654,

655

(1962)); see also E.E.O.C. v. Navy Fed. Credit Union, 424 F.3d
397, 405 (4th Cir. 2005).

The mere existence of a “scintilla” of

evidence

the

in

support

of

non-moving

party’s

case

is

sufficient to preclude an order granting summary judgment.

not
See

Anderson, 477 U.S. at 252.
A “party cannot create a genuine dispute of material fact
through mere speculation or compilation of inferences.”

Shin v.

Shalala, 166 F.Supp.2d 373, 375 (D.Md. 2001) (citation omitted).
Indeed,

this

court

has

an

affirmative

obligation

to

prevent

factually unsupported claims and defenses from going to trial.
See

Drewitt

v.

Pratt,

999

F.2d

774,

778–79

(4th

Cir.

1993)

(quoting Felty v. Graves–Humphreys Co., 818 F.2d 1126, 1128 (4th
Cir. 1987)).
11

III. Analysis
The FMLA provides that an eligible employee must be allowed
to take up to twelve work weeks of unpaid leave during any
twelve-month period “in order to care for the . . . parent of
the

employee,

if

such

.

.

.

parent

has

29 U.S.C. § 2612(a)(1)(C).2

condition.”

a

serious

health

Two types of claims

exist under the FMLA: (1) “interference,” in which the employee
alleges

that

an

employer

denied

or

interfered

with

her

substantive rights under the FMLA, and (2) “retaliation,” in
which

the

employee

against

her

for

Pfizer,

Inc.,

alleges

exercising

558

F.3d

that
her

284,

the

FMLA

employer
rights.

294-95

(4th

discriminated
See

Cir.

Dotson

2009).

v.
“A

retaliation claim under the FMLA differs from an interference
claim

under

requires

the

proof

entitlements

FMLA
that

under

in
the

the

that

the

employer
FMLA,

interference

claim

denied

employee

while

requires proof of retaliatory intent.”
692

F.Supp.2d

574,

588

(D.Md.

2010).

the

the

retaliation

merely
his
claim

Bosse v. Balt. Cnty.,
Plaintiff’s

complaint

invokes both types of claims.

2

An “eligible employee” is one who has been employed for
more than twelve months before requesting leave under the FMLA,
and has worked at least 1,250 hours within that period.
29
U.S.C. § 2611(2)(A). There is no dispute that Plaintiff was an
“eligible employee.”
12

A.

Count I: Interference

Plaintiff claims that she had five weeks of FMLA remaining
when Plaintiff made her request for an FMLA leave extension in
January

2011

and,

therefore,

the

denial

of

this

request

constituted interference with Plaintiff’s FMLA rights.
To establish unlawful interference with an
entitlement to FMLA benefits, an employee
must prove that: (1) she was an eligible
employee; (2) her employer was covered by
the statute; (3) she was entitled to leave
under the FMLA; (4) she gave her employer
adequate notice of her intention to take
leave; and (5) the employer denied her FMLA
benefits to which she was entitled.
Wonasue v. Univ. of Md. Alumni Ass’n, 984 F.Supp.2d 480, 495
(D.Md. 2013) (quoting Rodriguez v. Smithfield Packing Co., 545
F.Supp.2d 508, 515 (D.Md. 2008)).

The employee also must prove

“that the violation prejudiced her in some way.”

Anderson v.

Discovery Commc’ns, LLC, 517 F.App’x 190, 197 (4th Cir. 2013)
(citing Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89
(2002); 29 U.S.C. § 2617(a)).
Such prejudice can be proven by showing that
the employee lost compensation or benefits
“by reason of the violation,” 29 U.S.C. §
2617(a)(1)(A)(i)(I); sustains other monetary
losses
“as
a
direct
result
of
the
violation,” id. § 2617(a)(1)(A)i)(II); or
suffers some loss in employment status
remediable through “appropriate” equitable
relief, such as employment, reinstatement,
or promotion, id. § 2617(a)(1)(B).
Anderson, 517 F.App’x at 198.

13

Defendant argues that Plaintiff’s interference claim should
be summarily dismissed because she failed to allege that she
suffered any prejudice as a result of the January 2011 denial of
her

request

for

an

extension

of

FMLA

leave.

Ultimately,

Plaintiff received all the time off she requested because she
returned to work on February 1, 2011 and remained employed for
another nineteen months.

Defendant contends that Plaintiff did

not allege that her suspension and subsequent termination were
acts of interference.

Those allegations are only included in

Counts II and III regarding retaliation and, in any event, to
the extent they are included in her interference claim, they are
duplicative of the retaliation claims and should be dismissed.
Plaintiff, in opposition, contends that her interference
claim

specifically

incorporates

by

reference

all

of

the

allegations previously asserted in the complaint, (ECF No. 17-1
¶

33),

and

specifically

twenty-five

and

complaint.

Those

Defendant

to

points

twenty-nine
paragraphs

request

an

to

paragraphs

through

thirty

allege

extension

that
of

twenty
of

the

Plaintiff

leave

to

her

through
amended

contacted
original

request date and that she would have had to expend additional
money

to

standby.

change

her

flight

should

she

succeed

in

Plaintiff went to the airport on January 24-26 in an

attempt to get an earlier flight but to no avail.
charged

traveling

Plaintiff

with

missing
14

work

without

an

Defendant
excuse

and

suspended

her

warning.

for

These

a

day

without

paragraphs

pay

also

and

allege

gave
that

her

a

final

Plaintiff

was

terminated based on the warning rendered in the FMLA leave case
and that “[t]he acts of things done or not done by Defendant
leading

up

to

improperly

and

including

interfered

the

with,

termination

restrained,

of

or

Plaintiff

denied

the

Plaintiff’s exercise of, or the attempt to exercise, her FMLA
rights

and/or

attempted

to

[FMLA].”

retaliating
exercise

against

her

FMLA

(ECF No. 17-1 ¶ 30).

paragraphs

.

.

.

document

the

rights

Plaintiff
in

for

violation

having
of

the

According to Plaintiff, “[t]hese

the

suspension,

mistreatment

and

termination of [Plaintiff] and are incorporated into Count One.”
(ECF No. 34, at 23).
Plaintiff has stated a claim for interference and created a
genuine dispute of material fact on this claim.

The distinction

between an interference claim and a retaliation claim under the
FMLA is not always clear.

The Fourth Circuit has distinguished

between the “prescriptive” and “proscriptive” provisions of the
FMLA.

“Prescriptive”

rights

set

a

floor

for

employers and create entitlements for employees.

conduct

by

Yashenko v.

Harrah’s NC Casino Co., 446 F.3d 541, 546 (4th Cir. 2006).

For

example, the FMLA entitles employees to twelve weeks of unpaid
leave

during

any

related matters.

twelve-month

period

for

29 U.S.C. § 2612(a)(1).
15

family

and

health-

An interference claim

alleges that the employer violated one of these prescriptive
rights.

The FMLA also contains proscriptive provisions that

protect

employees

exercising

their

from

discrimination

substantive

rights

or

under

retaliation
the

for

FMLA.

For

example, an employer firing an employee because she used FMLA
leave to which she was entitled would be a retaliation claim.
The distinction was well captured by Judge Elrod of the United
States Court of Appeals for the Fifth Circuit: claims that arise
from the deprivation of an FMLA entitlement are interference
claims and do not require a showing of discriminatory intent,
whereas

claims

that

arise

from

alleged

retaliation

for

an

employee’s exercise of FMLA rights is a retaliation claim and do
require a showing of discriminatory intent.

Cuellar v. Keppel

Amfels, L.L.C., 731 F.3d 342, 349 (5th Cir. 2013) (Elrod, J.,
concurring).
characterized

Here,
as

Counts

II

retaliation

and

claims

III

are

because

appropriately
Plaintiff

is

alleging that she was punished for the exercise or attempt to
exercise an FMLA right, specifically the suspension and eventual
termination stemming from her attempt to extend her FMLA leave.
In

terms

Defendant

of

her

refused

interference
to

claim,

authorize

constitute interference.
29 C.F.R. § 825.220(b)).

FMLA

Plaintiff
leave,

an

alleges
act

that

that
can

Bosse, 692 F.Supp.2d at 585 (quoting
The apparent prejudice suffered was

the loss of pay for the one-day suspension and later termination
16

that stemmed from the Final Warning incurred due to the wrongful
denial of leave.
post-leave

The cases Defendant cites for the view that

discipline

is

a

retaliation

claim

only

involve

situations where plaintiff failed to identify any denial by her
employer of a benefit to which she was entitled under the FMLA.
To the contrary, plaintiffs in those cases received all the FMLA
leave requested and were not impeded in their use of FMLA leave.
It was only after the plaintiff returned from FMLA leave did her
employer question whether she fraudulently used her FMLA leave
and fired her.
274,

282-83

expressly

See Seeger v. Cincinnati Bell Tel. Co., 681 F.3d

(6th

held

Cir.

2012).

The

that

termination

Fourth
can

Circuit

be

has

brought

never
as

an

interference claim, but notably when examining a district court
decision granting summary judgment on such a claim, it made no
indication that the claim was not viable under the interference
theory.

Mercer

v.

Arc

of

Prince

George’s

Cnty.,

Inc.,

532

F.App’x 392, 396-98 (4th Cir. 2013); see also Yashenko, 446 F.3d
at 550-51 (denying an employee’s FMLA interference claim at the
summary

judgment

stage

because

the

facts

clearly

showed

the

employee would have been terminated for reasons unrelated to his
FMLA request); Wysong v. Dow Chem. Co., 503 F.3d 441, 447 (6th
Cir. 2007) (“If an employer takes an employment action based, in
whole or in part, on the fact that the employee took FMLAprotected leave, the employer has denied the employee a benefit
17

to which he is entitled.”); Xin Liu v. Amway Corp., 347 F.3d
1125,

(9th

1136

Cir.

2003)

(“the

statutory

and

regulatory

language of [the] FMLA makes clear that where an employee is
subjected to negative consequences simply because he has used
FMLA leave, the employer has interfered with the employee’s FMLA
rights.”); Bosse, 692 F.Supp.2d at 585 (“Actions that constitute
‘interfering
‘us[ing]

with’

the

an

taking

employee’s

of

FMLA

FMLA

leave

rights

as

a

include

negative

.

.

factor

.
in

employment actions, such as hiring promotions or disciplinary
actions.” (quoting Glunt v. GES Exposition Servs., Inc., 123
F.Supp.2d 847, 870 (D.Md. 2000); 29 C.F.R. § 825.220(c))); Ahmed
v. Salvation Army, No. CCB 12-707, 2012 WL 6761596, at *5-6
(D.Md. Dec. 28, 2012) (accepting plaintiff’s characterization of
her

termination

claim

under

the

interference

rubric).3

The

factual situation here is unique in that the same act lends
itself to both interference and retaliation claims.

Assuming

that Plaintiff was entitled to take FMLA leave, denial of that
leave

is

interference

wrongful
took

and

the

constitutes

form

of

3

the

interference.
one-day

suspension

That
and

Defendant’s suggestion that the interference claim be
dismissed for being duplicative of the retaliation claim is
unpersuasive.
The case cited by Defendant, Lichtenstein v.
Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 312 n.25 (3d Cir.
2012), did not so hold because the issue was not raised on
appeal; instead, the court merely mused that dismissal may be
appropriate.
Furthermore, the cases it cites either involve
situations not analogous to this case or have taken a narrower
view of what can constitute an interference claim.
18

termination.
whether

the

something

Unlike
plaintiff

(race,

irrelevant,

a

an

retaliation

was

treated

religion,

interference

FMLA

claim,

differently

leave)

claim

which

that

alleges

focuses

on

a

that

on

account

of

statute
the

makes

employer

failed to provide a substantive right, regardless of the fact of
whether other employees were treated more or less favorably.
But

the

alleged

facts

also

lend

themselves

to

an

FMLA

retaliation claim, whereby Plaintiff argues that the discipline
handed down to Plaintiff was harsher than other employees in her
situation would have received because she invoked her right to
take FMLA leave, i.e., an employee who is punished with a twoday

suspension

for

missing

four

days

of

work

unexcused

on

alleged FMLA leave as opposed to an employee who misses four
days of work unexcused for a non-FMLA reason is suspended only
one-day.

Plaintiff can claim interference with her FMLA rights

in the form of the suspension and termination.
Defendant next turns to the elements of the interference
claim

and

argues

that

Plaintiff

failed

to

provide

adequate

notice that she needed an extension for FMLA-covered purposes.
Defendant asserts that Plaintiff did not seek an extension of
leave “in order to care for” for her ailing father, but instead
because her travel itinerary was not what she thought she had
purchased and her return flight would not arrive before the end
of her FMLA-approved leave.

The regulations state:
19

It may be necessary for an employee to take more
leave than originally anticipated. . . .
[T]he
employer may require that the employee provide
the employer reasonable notice (i.e., within two
business days) of the changed circumstances where
foreseeable.
The employer may also obtain
information on such changed circumstances through
requested status reports.
29 C.F.R. § 825.311(c).

Defendant does not argue that Plaintiff

failed to give a timely notice or to make contact, but instead
that Plaintiff gave no indication that her reason for a leave
extension was FMLA-related.

Plaintiff, in response, contends

that she spoke to both Ms. Fuangphon and Ms. Lowe-Brooks and to
each requested an extension of leave to care for her father.
Plaintiff’s

deposition

testimony,

where

she

states

that

she

requested a leave extension to care for her father, creates a
factual dispute as to whether Plaintiff’s request was in fact
“in order to care for” her father who she asserts, and the
medical certificate suggests, had a “serious health condition.”
Although a jury may find otherwise, Plaintiff has created a
triable issue as to this element.
Defendant further argues that even assuming that Plaintiff
told Ms. Lowe-Brooks that she needed more time to care for her
father, she failed to place Defendant on notice because she “did
not claim that her father’s medical condition had worsened, that
other caregivers had unexpectedly become unavailable, or that
there had been any other unforeseen development that justified

20

additional

FMLA-covered

advance notice.”

leave

with

less

than

thirty-days’

(ECF No. 28-1, at 21) (emphasis in original).

Defendant is referring to 29 C.F.R. §§ 825.302 and 303, which
require an employee to provide at least thirty days advance
notice

when

825.302(a),
timing

of

825.303(a).
indication

the
but
the

need
as

for

soon

need

leave
as

for

is

foreseeable,

practicable

leave

is

not

when

the

29

C.F.R.

§

approximate

foreseeable,

id.

§

Defendant argues that because Plaintiff made no
that

there

was

an

unforeseen

development

in

her

father’s condition or the circumstances surrounding his care,
she was not entitled to an extension of unforeseen leave.
Defendant’s argument will be rejected.

It points to no

authority stating that an extension of previously approved leave
requires a material change in circumstances.

The FMLA provides

that an employee is eligible for leave to care for a parent with
a serious health condition.

29 U.S.C. § 2612(a)(1)(C).

There

is no discussion that the health condition must become more
serious for the employee to get an extension of that leave.

If

the situation qualifies for leave under the FMLA, leave is to be
granted, regardless of the fact that this is an extension of a
previously granted period of leave.

If Defendant thought that

Plaintiff’s father no longer needed care, it could ask for a
certification to confirm that the serious health condition that
requires care still exists.

29 C.F.R. § 825.308(c).
21

Defendant next argues that Plaintiff did not actually need
to stay in Ghana because she “needed to care” for her ailing
father, but instead because of a completely unrelated ticketing
error.

Plaintiff testified that her plan all along was to leave

January 25, which would allow sufficient time to rest in order
to return to work February 1.

Thus, by her own admission, she

was only “needed” to care for her father through January 25,
2011, which was confirmed by her leave request, which indicated
she needed “about six weeks of leave.”

The six week period

ended on January 25, 2011.

Plaintiff testified that nothing

changed

condition

about

her

father’s

improved slightly.

and,

if

anything,

it

Furthermore, Plaintiff’s call to Ms. Lowe-

Brooks came only after her efforts to change her flight came up
short,

not

because

of

her

need

to

care

for

her

father.

Plaintiff testified that she needed to stay to care for her
father because her sister, who was scheduled to care for him,
became unavailable because “she has a little son.”
states

that

apparently

this

is

occurred

implausible
on

January

given

15,

the

that

this

exact

Defendant
development

date

Plaintiff

called Ms. Lowe-Brooks to request an extension and Plaintiff
never informed Defendant of this apparent situation at the time
of

the

request.

Furthermore,
has

been

Defendant

inconsistent

as

that

Plaintiff’s

testimony

unreliable.

At one point, she testifies that she requested an
22

so

contends
to

be

extension

because

she

was

unable

to

change

her

flight;

at

another time she states that she was forced to stay in Ghana
because
states

her
that

sister
she

was

wanted

unavailable;
to

spend

and

more

at

time

other
with

times

her

she

father.

Defendant believes that while Plaintiff may have provided care
for her father, any care was an incidental consequence of the
ticketing mistake, not the reason for her need for an extension.
This argument will be rejected for a similar reason as
above.

Plaintiff can get unpaid leave to take care of a parent

with a serious health condition.

The employer must be told that

that is the reason for the leave.

The burden to demonstrate

both the reason for the leave and that notice was provided falls
upon Plaintiff, but given the evidence, there is at least a
dispute as to each.

If the employer was in fact told and was

skeptical of Plaintiff’s representations, it does not have to
accept

its

employee’s

word,

but

instead

certification of the serious health condition.
Park Dist., 741 F.3d 838, 843 (7th

can

request

a

Ballard v. Chi.

Cir. 2014) (“an employer

concerned about the risk that employees will abuse the FMLA’s
leave

provisions

may

of

course

require

that

requests

be

certified by the family member’s health care provider.” (citing
29

U.S.C.

§

2613)).

The

cases

cited

by

Defendant

involve

situations where the aggrieved employee was taking the leave for
personal reasons, not to provide care for a family member with a
23

serious health condition.

See Pilger v. D.M. Bowman, Inc., 833

F.Supp.2d 489, 498 (D.Md. 2011) (plaintiff was absent from work
to drive his wife to her mother’s home, a trip unrelated to his
wife’s medical condition or basic needs); Tayag v. Lahey Clinic
Hosp., Inc., 677 F.Supp.2d 446, 452 (D.Mass. 2010) (undisputed
that nearly half of plaintiff’s trip was essentially a vacation,
spent visiting friends, family, and local churches); Call v.
Fresenius

Med.

Care

(D.Mass. 2008).

Holdings,

Inc.,

534

F.Supp.2d

184,

192

While the burden is on Plaintiff to show that

she was entitled to FMLA leave by demonstrating that she stayed
in Ghana to care for her father who had a “serious medical
condition,” based on her deposition testimony and the doctor’s
certification, there is a genuine dispute of material fact such
that summary judgment on these grounds would be inappropriate.
Defendant’s

next

argument

is

that

Plaintiff

was

not

entitled to this leave under the FMLA because she failed to
comply

with

Defendant’s

procedural requirements.”

“usual

points

to

its

and

customary

notice

corporate

29 C.F.R. § 825.303(c).
policy

manual

on

and

Defendant

attendance,

which

states that “[e]mployees are to call each day to notify their
supervisor/manager that they are absent unless such an absence
has

been

period

of

approved
time.”

by

the

(ECF

supervisor/manager
No.

28-12,

at

3

for

a

(emphasis

specified
added)).

According to Defendant, Plaintiff made no effort to contact Ms.
24

Lowe-Brooks or anyone at AHC between January 23 and January 31,
even

though

subsequent

she

was

days.

scheduled

Ms.

to

Lowe-Brooks

work
was

on

January

aware

of

26

and

Plaintiff’s

efforts to fly standby, but was unaware of the status of these
efforts.
and

Ms. Lowe-Brooks left messages on Plaintiff’s mobile

home

telephone

Consequently,
additional
because

even

FMLA

she

numbers,

assuming

leave,

failed

to

she

that

received

Plaintiff

forfeited

comply

customary notice procedures.

but

with

any

no

was
such

response.

entitled

to

entitlement

Defendant’s

usual

and

Plaintiff, in response, contends

that she complied with this requirement when she contacted Ms.
Fuangphon to request the extension of the FMLA leave.

This

dispute turns again on what Plaintiff told Defendant when she
requested additional leave.

If, as Plaintiff contends, she told

Defendant that she needed an extension of FMLA leave to continue
to care for her father, this could be a “scheduled absence”
under Defendant’s policy as it would be “leave required under
the FMLA.”

For such leave, the policy does not require daily

call-ins.
B.
Count II: Retaliation in the form of one-day
suspension
Plaintiff claims that Defendant’s suspension of Plaintiff
for one-day without pay was retaliation for exercise or attempt
to exercise her FMLA rights.

25

“FMLA

claims

arising

under

the

retaliation

analogous to those derived under Title VII.”
at 550-51.

theory

are

Yashenko, 446 F.3d

Consequently, a plaintiff can prove her case under

ordinary principles of proof using either direct or indirect
evidence, or under McDonnell Douglas’s burden-shifting scheme.
As

to

the

first

method,

“[t]o

avoid

summary

judgment,

the

plaintiff must produce direct evidence of a stated purpose to
discriminate and/or [indirect] evidence of sufficient probative
force to reflect a genuine issue of material fact.” (second
alteration in original).

Rhoads v. FDIC, 257 F.3d 373, 391 (4th

Cir.

required

2001).

statements

“What
that

is

both

reflect

is

evidence

directly

of

conduct

the

or

allegedly

discriminatory attitude and that bear directly on the contested
employment decision.”

Id. at 391-92.

In Warch v. Ohio Cas.

Ins. Co., 435 F.3d 510, 520 (4th Cir. 2006), the Fourth Circuit
explained

the

showing

that

is

required

to

withstand

judgment via ordinary principles of proof:
Direct evidence must be “evidence of conduct
or statements that both reflect directly the
alleged discriminatory attitude and that
bear directly on the contested employment
decision.”
Taylor v. Virginia Union Univ.,
193 F.3d 219, 232 (4th Cir. 1999) (en banc)
(citation
and
internal
quotation
marks
omitted). Even if there is a statement that
reflects a discriminatory attitude, it must
have a nexus with the adverse employment
action.
See Brinkley [v. Harbour Rec.
Club], 180 F.3d [598,] 608 [4th Cir. 1999)]
(“To survive summary judgment on the basis
26

summary

of direct and indirect evidence, Brinkley
must produce evidence that clearly indicates
a discriminatory attitude at the workplace
and must illustrate a nexus between that
negative
attitude
and
the
employment
action.”) [overruled on other grounds by
Desert Palace, Inc. v. Costa, 539 U.S. 90
(2003)].
Alternatively,

a

circumstantially

plaintiff
using

McDonnell Douglas.

the

can

proceed

pretext

by

proving

framework

her

case

established

in

To succeed under this method, the employee

must first make a prima facie showing “that
[s]he engaged in protected activity, that
the employer took adverse action against
[her], and that the adverse action was
causally
connected
to
the
plaintiff’s
protected activity.”
Cline v. Wal-Mart
Stores, Inc., 144 F.3d 294, 301 (4th Cir.
1998).
If [s]he “puts forth sufficient
evidence to establish a prima facie case of
retaliation” and [the employer] “offers a
non-discriminatory explanation” for [her]
termination,
[the
employee]
“bears
the
burden of establishing that the employer’s
proffered explanation is pretext for FMLA
retaliation.”
Nichols [v. Ashland Hosp.
Corp.], 251 F.3d [496,] 502 [(4th Cir.
2001)].
Yashenko, 446 F.3d at 551.

Defendant argues on the assumption

that Plaintiff is proceeding under the burden shifting framework
and assumes that Plaintiff has satisfied the first two prongs of
the prima facie case: that she engaged in protected activity by
requesting an extension of FMLA leave, and that her one-day
suspension without pay constituted an adverse employment action.
Defendant argues, however, that Plaintiff cannot establish that

27

the

adverse

employment

protected activity.
Plaintiff
report

was

to

action

as

causally

connected

(ECF No. 28-1, at 28).

disciplined

work

was

for

scheduled

three
on

reasons:

January

25;

to

the

It contends that
(1)

failure

to

(2)

failure

to

contact Defendant after January 23 to report on her status; and
(3) her conduct on February 1, when she arrived to work six
hours late, and only after being instructed to do so by Ms.
Lowe-Brooks.

Defendant contends that because Plaintiff was not

entitled to an extension of FMLA leave, however, her absences
were not protected and Defendant had every right to subject
Plaintiff to disciplinary action for failure to report to work
as

scheduled

and

failure

to

inform

Ms.

Lowe-Brooks

of

her

status.
The

crux

of

Defendant’s

arguments

-

while

framed

as

Plaintiff’s failure to demonstrate causation - are in reality an
assertion

that

Plaintiff

has

engaged in protected activity.

failed

to

demonstrate

that

she

To demonstrate that an employee

engaged in protected activity, she must demonstrate that: (1)
she was an eligible employee; (2) her employer was covered by
the statute; (3) she was entitled to leave under the FMLA; and
(4) she gave her employer adequate notice of her intention to
take leave.

Rodriguez v. Smithfield Packing Co., 545 F.Supp.2d

508, 516 (D.Md. 2008) (citing Edgar v. JAC Prods., Inc., 443
F.3d 501, 507 (6th Cir. 2006)).

Defendant - for the purposes of
28

this motion - assumes the fourth prong, but takes issue with the
third prong.

As discussed above, whether Plaintiff was entitled

to FMLA leave is a disputed issue and, consequently, it is not
appropriate

to

grant

summary

judgment

to

Defendant

on

the

retaliation claim concerning her one-day suspension.
C.
Count III: Retaliation in the form of termination of
employment
Plaintiff
opposing

is

not

Defendant’s

clear

summary

as

to

her

judgment

intentions,

motion

but

appears

in

to

be

relying on the direct evidence method of proof given the large
amount of emphasis she places on the language of the termination
letter.
in

Defendant argues that, even assuming Plaintiff engaged

protected

activity,

her

termination

connected to that protected activity.
under

the

FMLA,

Plaintiff

must

was

not

causally

Defendant argues that,

establish

that

her

protected

activity was the “but-for” cause of her termination, not just a
motivating factor.

It relies on the recent decision in Univ. of

Texas S.W. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2533 (2013),
where the Supreme Court held that “Title VII retaliation claims
must be proved according to traditional principles of but-for
causation, not the lessened causation test [‘motivating factor’]
stated in 42 U.S.C. § 2000e-2(m).”

But-for causation “means

that the employer would not have taken the adverse employment
action against [the plaintiff] if the employer were not trying

29

to retaliate against the plaintiff for engaging in a protected
activity.”

Mallik v. Sebelius, 964 F.Supp.2d 531, 550 (D.Md.

2013) (citing Nassar, 133 S.Ct. at 2533).
The parties did not engage the issue, but the question of
whether a mixed-motive claim survives in the FMLA context after
Nassar is unsettled.

See Hughes v. B/E Aerospace, Inc., No.

1:12CV717, 2014 WL 906220, at *8 (M.D.N.C. Mar. 7, 2014) (“The
Fourth Circuit has not determined whether plaintiffs in FMLA
retaliation cases must prove but-for causation to prevail, or
whether retaliation must be only a motivating factor in the
employer’s termination decision.”)

Some courts - including one

in this district - have decided that post-Nassar, the “but for”
causation

standard

applies

to

FMLA

retaliation

cases.

See

Taylor v. Rite Aid Corp., --- F.Supp.2d ----, 2014 WL 320214, at
*9 (D.Md. Jan. 27, 2014); Latta v. U.S. Steel-Edgar Thompson
Plant, No. 2:11-cv-1622, 2013 WL 6252844, at *5 (W.D.Pa. Dec. 4,
2013) (“[p]laintiff must prove traditional ‘but-for’ causation.”
(citing
Chaney

Nassar)).
v.

Others have concluded the opposite.

Eberspaecher

N.

Am.,

955

F.Supp.2d

811,

813

See
n.1

(E.D.Mich 2013) (Nassar, decided under Title VII, did not change
the applicable causation standards for FMLA retaliation cases).
Judge Bennett has observed that the Supreme Court held in Nassar
only that the plaintiff must ultimately prove that the alleged
retaliation

was

the

but-for

cause
30

of

the

adverse

employment

action, while at the summary judgment stage, a plaintiff “is not
required

to

conclusively

establish

the

causal

connection

required to ultimately prevail, but rather faces a ‘less onerous
burden of making a prima facie case of causality.’”

Ford v.

Berry Plastics Corp., No. RDB-12-0977, 2013 WL 5442355, at *10
n.8 (quoting Dowe v. Total Action Against Poverty in Roanoke
Valley, 145 F.3d 653, 657 (4th Cir. 1998)).
This question does not need to be decided here as under
either

standard

the

evidence

presents

material fact on the causation question.

a

genuine

dispute

of

Defendant first argues

that the gap in time between the use of the FMLA leave and the
alleged retaliation - more than nineteen months - is too remote
to infer causation.
connection
exists
against

for

where
an

The Fourth Circuit has held that “a causal

purposes
the

of

employer

employee

demonstrating

a

takes

adverse

after

learning

shortly

prima

facie

employment
of

the

case

action

protected

Price v. Thompson, 380 F.3d 209, 213 (4th Cir. 2004).

activity.”
Conversely,

a

inference

of

however,

just

longer

passage

of

discrimination.”
one

means

by

time

Id.
which

“tends
Temporal

to

show

to

negate

the

proximity

is,

causation.

See

Westmoreland v. Prince George’s Cnty., Md., 876 F.Supp.2d 594,
613 (D.Md. 2012) (“[P]laintiffs may state a prima facie case of
causation by relying on evidence other than, or in addition to,
temporal

proximity

where

such
31

evidence

is

probative

of

causation.”

(emphasis

in

original,

quotation marks omitted)).
months

normally

negates

citation

and

internal

While a period as long as nineteen

the

inference

of

discrimination,

see

Elries v. Denny’s, Inc., 179 F.Supp.2d 590, 599 (D.Md. 2002)
(listing

cases

that

insufficient),

here

found
the

three

and

termination

four

letter

month

periods

indicates

that

Plaintiff’s September 4 absence violated Defendant’s attendance
policy and “[b]ased on a prior Final Warning for unauthorized
leave,

Adella

[Lowe-Brooks]

(ECF No. 28-16).
for

Plaintiff’s

has

terminated

your

employment.”

As a document providing the official reasons
termination,

a

reasonable

factfinder

could

conclude that Plaintiff’s September 4 absence - even assuming it
was wrongful - would not have resulted in termination absent the
prior

Final

Warning.

That

Final

Warning

was

based

on

what

Defendant claims was an unexcused absence, but what Plaintiff
here contends was protected FMLA leave.

Defendant argues that

the Final Warning advised Plaintiff that her employment would be
terminated only for future unauthorized absences, not any past
absences that were arguably protected under the FMLA and there
is

no

evidence

absences.

There

that
is

Plaintiff
such

was

evidence,

penalized
however:

for
the

her

past

termination

letter, which specifically references the fact that termination
was based on the Final Warning.
only because of past absences.

That Final Warning came to be
Defendant goes on to argue that

32

the September 4 absence itself warranted termination.

It points

to the declaration of Ms. Lowe-Brooks where she states that she
considered Plaintiff’s “failure to report to be gross misconduct
which, by itself, warranted the termination of her employment.”
(ECF No. 28-2 ¶ 32).
that

when

she

But in the very next paragraph, she admits

consulted

with

her

superiors

concerning

appropriate discipline, “we considered the fact that [Plaintiff]
had been warned in February 2011 that she would be terminated if
she violated AHC’s attendance policies.”

(Id. ¶ 33).

Defendant

next makes much of the fact that it is an at-will employer and
its

policies

permit

termination

regardless

of

whether

employee has been subject to prior disciplinary action.

an
But

those policies do not override the strictures of the FMLA, which
prohibit an employer from retaliating against an employee for
the employee exercising her FMLA rights, which the termination
letter’s language suggests was the case.
Once

there

is

sufficient,

credible

direct

evidence,

the

burden of persuasion shifts to the Defendant to show that it
would have terminated Plaintiff’s employment had it not been
motivated by Plaintiff’s prior FMLA leave.
Union

Univ.,

193

F.3d

219,

232

(4th

Cir.

Taylor v. Virginia
1999)

(en

banc).

Defendant submits that Plaintiff’s absence on September 4 was so
egregious that it would have terminated Plaintiff immediately,
even if Plaintiff had no prior history of allegedly unexcused
33

absences.

Ms. Lowe-Brooks testified that Plaintiff’s absence

left

one

only

great

risk

to

echocardiogram
the

health

technician

and

safety

of

on

duty,

WAH’s

presenting

patients

and

constituting gross misconduct, insubordination, and neglect or
abandonment of patients, each of which constitutes grounds for
immediate termination under WAH’s policies.
the

WAH

employee

with

whom

Ms.

Mr. Brent Lydic was

Lowe-Brooks

was

required

to

consult with before terminating the employment of any employee.
In a declaration submitted as part of Defendant’s reply, he
stated that he agreed with Ms. Lowe-Brooks’s assessment of the
seriousness
absence.

of

Plaintiff’s

conduct

as

to

her

September

4

He drafted the termination letter and states that his

“intention in including this language [‘based on a prior Final
Warning for unauthorized leave’] was to highlight the fact that
[Plaintiff] had been disciplined for attendance violations in
the past.”

(ECF No. 35-2 ¶ 6).

These post-hoc explanations are

not sufficiently persuasive that Plaintiff’s termination would
have occurred absent the prior alleged FMLA leave, at least at
the summary judgment stage.

There is a genuine dispute as to

whether failing to show up for work and, therefore, leaving WAH
with

only

one

echocardiogram

technician

on

duty

-

was

egregious that it would have resulted in immediate termination.

34

so

IV.

Conclusion
For the foregoing reasons, the motion for summary judgment

filed

by

Defendant

will

be

denied.

A

separate

order

follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

35

will