MOORE v. U.S. FOODSERVICE, INC. et al
Filing
90
OPINION. Signed by Judge Joseph H. Rodriguez on 9/30/2013. (TH, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DARWIN MOORE,
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Plaintiff,
v.
U.S. FOODSERVICE, INC.,
Defendant.
Hon. Joseph H. Rodriguez
Civil Action No. 11-2460
OPINION
This matter is before the Court is cross-motions for summary judgment filed by
Defendant U.S. Foodservice, Inc. [51] and Plaintiff Darwin Moore [72]. Plaintiff was
hired by Defendant in June of 2008, but his employment was terminated on or about
April 15, 2011 for excessive absenteeism. The Amended Complaint in this matter
claimed violations of the Family Medical Leave Act (“FMLA”) 29 U.S.C. § 2601 in the
form of interference and retaliation, (Count One), and the New Jersey Law Against
Discrimination (“NJLAD”), N.J. Stat. Ann. § 10:5-1, in the form of racial discrimination,
(Count Two). The Court has considered the written submissions of the parties and
heard oral argument on the motions September 10, 2013. During oral argument,
Plaintiff’s attorney indicated that Plaintiff is no longer pursuing a claim of racial
discrimination.1 For the reasons set forth here, and those placed on the record during
oral argument, Defendant’s motion for summary judgment will be granted and
Plaintiff’s cross-motion will be denied.
1
Additionally, in briefing the motions now before the Court, Plaintiff withdrew
any claim of hostile work environment.
1
I. Background
Plaintiff began working for Defendant as a Night Warehouse Selector at
Defendant’s Bridgeport, New Jersey warehouse in June 2008. (Pl. Dep. 35:5-18.) In
2009, Plaintiff first applied for, and was granted, a request for family and medical leave
pursuant to the FMLA through Nationwide Better Healthcare (“NBH”), Defendant’s
FMLA administrator which used a database, Time Off Planning Service, commonly
referred to as “TOPS.” (Pl. Dep. 58:3-17; Northrup Dep. 9:4-19.) At that time, Plaintiff
was approved for intermittent FMLA leave: for one year, Plaintiff was approved to take
his FMLA leave allotment on an intermittent basis (five days per month) to care for a
family member. (Pl. Dep. 61:2-62:8; Noon Decl., Ex. I.)
In June 2010, Plaintiff again requested intermittent FMLA leave to care for a
family member. During the twelve-month period prior to the requested leave, Plaintiff
had only worked a total of 1,048.63 hours.2 (Noonan Decl. ¶ 10.) Nevertheless, Plaintiff
was approved to take his remaining FMLA leave on an intermittent basis (two days per
week) from June 9, 2010 through December 8, 2010. (Pl. Dep. 66:13-18; Noonan Decl.,
Ex. J.) He took FMLA-qualifying leave on September 1, 2, 8, 20 and October 13, 2010.
(Lebb Decl. ¶ 10; Noonan Decl., Ex. H.)
While he was employed by Defendant, Plaintiff was subject to Defendant’s
attendance disciplinary policy. Under the policy, an employee’s unexcused absences
would result in progressive disciplinary action. (Lebb Decl. ¶ 8; Ex. A.) Pursuant to the
2
In order to be eligible for FMLA benefits, an employee must have – in addition to
other requirements – worked 1,250 hours in the preceding twelve months. 29 U.S.C. §
2611(2)(A)(ii).
2
policy, five unexcused absences would result in termination of employment. (Id.)
Plaintiff incurred an unexcused absence on September 9, 2010.3
In December 2010, Plaintiff applied for and was recertified to take continued
intermittent leave to care for a family member. From December 9, 2009 through
December 9, 2010, Plaintiff only worked a total of 895.48 hours. (Noonan Decl. ¶ 10.)
Nevertheless, for the period of December 9, 2010 through June 8, 2011, Plaintiff was
approved to take his remaining allotment of FMLA leave to care for a family member on
an intermittent basis (approximately eight days per month). (Pl. Dep. 64:7-10, 20-24;
Noonan Decl., Ex. K.) He did so on November 1, 2, 7, 14, 15, and 28, 2010. (Brenner
Decl., Ex. J-P; Noonan Decl., Ex. G.)
On February 21, 2011, Plaintiff took workers’ compensation leave for an injury he
suffered on the job on February 18. (Pl. Dep. 68:19-25.) Pursuant to Defendant’s policy
and FMLA regulations, Defendant concurrently designated this leave as FMLA leave.
See 29 C.F.R. § 825.702(d)(2) (“An employee may be on a workers’ compensation
absence due to an on-the-job injury or illness which also qualifies as a serious health
condition under FMLA. The workers’ compensation absence and FMLA leave may run
concurrently (subject to proper notice and designation by the employer).”) NBH/TOPS
notified Plaintiff in writing in a letter dated February 26, 2011 that his workers’
compensation absences on February 21 and 22 had been counted towards his twelve-
3
At the time, the absence was deemed his fourth unexcused absence, warranting a
three day working suspension. However, when the three prior unexcused absences
were later deemed to be FMLA leave, which is excused, the September 9 absence became
his first unexcused absence, converting the three day working suspension to a first
written warning.
3
week allotment of FMLA leave. (Brenner Decl., Ex. P; Noonan Decl., Ex. E; see also Pl.
Dep. 67:2-68:1; 80:23-81-2; 134:22-135:4.)
Defendant asserts that these FMLA absences exhausted Plaintiff’s hours of FMLA
leave. Accordingly, NBH/TOPS sent Plaintiff a letter dated February 25, 2011,
informing him that his requested FMLA leave beginning on February 23 did not qualify
for FMLA leave because he had “exhausted [his] FMLA entitlement of 12 weeks in a 12month period.” (Noonan Decl., Ex. L.) The letter notified him that “[s]ince this leave
does not qualify as FMLA, your absence may be subject to actions referenced in your
Division’s attendance policy.” (Id.)
During a telephone call initiated by Plaintiff on February 28, 2011, an NBH/TOPS
representative explained that “there’s no FMLA time remaining,” Plaintiff’s FMLA leave
“just exhausted on February 23.” (Pl. Dep. 244:3-10; Northrup Dep. 116:14-20.) When
Plaintiff questioned the information provided, the NBH/TOPS representative told him
that his workers’ compensation absences on February 21 and 22 had been counted as
FMLA leave because “[i]f you’re off work and it’s due to an injury, then that is
considered . . . a serious condition under FMLA and it will use your FMLA time, and you
only had 16 hours prior to February the 21st. It looks like they added the absence
starting on February 21st and your return to work is March the 28th, due to that injury. .
. .” (Pl. Dep. 245:12-18.) When Plaintiff asked when he could take FMLA leave again, he
was told he would not be able to take any additional FMLA leave until May 13, 2011. (Pl.
Dep. 246:6-15.)
4
When Plaintiff was absent on March 6, 2011, he received a second written
warning pursuant to Defendant’s attendance disciplinary policy. (Lebb Decl. ¶ 17; Ex.
H.) Plaintiff had another unexcused absence on March 9, 2011, for which he allegedly
should have but did not receive a disciplinary notice.
On March 15, 2011, Plaintiff applied for FMLA leave to begin on May 31, 2011,
just before the expiration of the one-year period that he potentially qualified for FMLA
leave for the birth of a child. (Noonan Decl., Ex. M.) That day, Plaintiff also contacted
NBH/TOPS regarding his FMLA leave status. He explained that he was seeking leave to
have “bonding time” with his son, born nine months earlier. Plaintiff stated, “I gave my
job notice … that I was taking six weeks to bond with my child starting April 10th[.] I
was already told I was qualified for it. I just wanted to see what I had to do for y’all.”
(Pl. Dep. 249:12-18.) An NBH/TOPS representative informed Plaintiff that he had
exhausted all of his FMLA leave and that “[t]he next day [he] would be getting [FMLA]
time would be May 13.” (Pl. Dep. 250:25-251:8.)
On March 24, 2011, NBH/TOPS notified Plaintiff that his request for FMLA leave
had been denied because he had not worked the required number of hours during the
preceding twelve-month period to qualify for FMLA leave. (Noonan Decl., Ex. N.)
When Plaintiff requested this leave, he had only worked 1,221.88 hours in the prior 12
month period. (Noonan Decl. ¶ 10.)
5
When Plaintiff was absent again on March 27, he received a one-day working
suspension pursuant to the attendance disciplinary policy. (Lebb Decl. ¶ 18; Ex. I.) On
March 28, Plaintiff had another unexcused absence. He received a three-day working
suspension pursuant to the attendance disciplinary policy. (Lebb Decl. ¶ 19; Ex. J.) The
notice he received for the March 28 absence was titled “Last and Final Warning.” It
notified Plaintiff that the “next infraction of this nature will subject you [to] termination
of employment with US Foodservice Inc.” Plaintiff and his union shop steward both
signed the document. (Id.)
Plaintiff was then absent on April 10, 11 and 13, 2011. Plaintiff subsequently
sought intermittent FMLA leave for his absences on April 10th, and 13th. These requests
were denied because he had exceeded his twelve weeks of FMLA during the prior twelve
month period. (Noonan Decl., Ex. O.) In addition, Defendant determined that Plaintiff
had then accumulated seven unexcused absences, and terminated his employment on
April 15, 2011. (Lebb Decl. ¶ 20; Ex. K.)
6
II. Summary Judgment Standard
“Summary judgment is proper if there is no genuine issue of material fact and if,
viewing the facts in the light most favorable to the non-moving party, the moving party
is entitled to judgment as a matter of law.” Pearson v. Component Tech. Corp., 247 F.3d
471, 482 n.1 (3d Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986));
accord Fed. R. Civ. P. 56 (a). The Court will enter summary judgment in favor of a
movant who shows that it is entitled to judgment as a matter of law, and supports the
showing that there is no genuine dispute as to any material fact by “citing to particular
parts of materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . . admissions, interrogatory
answers, or other materials.” Fed. R. Civ. P. 56 (c)(1)(A).
An issue is “genuine” if supported by evidence such that a reasonable jury could
return a verdict in the nonmoving party’s favor. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A fact is “material” if, under the governing substantive law, a
dispute about the fact might affect the outcome of the suit. Id. In determining whether
a genuine issue of material fact exists, the court must view the facts and all reasonable
inferences drawn from those facts in the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Initially, the moving party has the burden of demonstrating the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once
the moving party has met this burden, the nonmoving party must identify, by affidavits
or otherwise, specific facts showing that there is a genuine issue for trial. Id.;
Maidenbaum v. Bally’s Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J. 1994). Thus, to
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withstand a properly supported motion for summary judgment, the nonmoving party
must identify specific facts and affirmative evidence that contradict those offered by the
moving party. Andersen, 477 U.S. at 256-57. “A nonmoving party may not ‘rest upon
mere allegations, general denials or . . . vague statements . . . .’” Trap Rock Indus., Inc. v.
Local 825, Int’l Union of Operating Eng’rs, 982 F.2d 884, 890 (3d Cir. 1992) (quoting
Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir. 1991)). Indeed,
the plain language of Rule 56(c) mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a
party who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the
burden of proof at trial.
Celotex, 477 U.S. at 322. That is, the movant can support the assertion that a fact cannot
be genuinely disputed by showing that “an adverse party cannot produce admissible
evidence to support the [alleged dispute of] fact.” Fed. R. Civ. P. 56(c)(1)(B); accord
Fed. R. Civ. P. 56(c)(2).
In deciding the merits of a party’s motion for summary judgment, the court’s role
is not to evaluate the evidence and decide the truth of the matter, but to determine
whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986). Credibility determinations are the province of the factfinder. Big Apple
BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
III. The Family and Medical Leave Act
A.
Generally
The Family and Medical Leave Act of 1993, 29 U.S.C. § 2601, (“FMLA”) was
enacted to provide leave for workers whose personal or medical circumstances require
that they take time off from work in excess of what their employers are willing or able to
8
provide. Victorelli v. Shadyside Hosp., 128 F.3d 184, 186 (3d Cir. 1997) (citing 29 C.F.R.
§ 825.101). The Act is intended "to balance the demands of the workplace with the
needs of families . . . by establishing a minimum labor standard for leave" that lets
employees "take reasonable leave for medical reasons, for the birth or adoption of a
child, and for the care of a child, spouse or parent who has a serious health condition."
Churchill v. Star Enters., 183 F.3d 184, 192 (3d Cir. 1999) (quoting 29 U.S.C. §
2601(b)(1), (2)).
The FMLA guarantees eligible employees 12 weeks of leave in a one-year period
following certain events: a serious medical condition; a family member's serious illness;
the arrival of a new son or daughter; or certain exigencies arising out of a family
member’s service in the armed forces. 29 U.S.C. § 2612(a)(1). During the 12 week leave
period, the employer must maintain the employee's group health coverage. § 2614(c)(1).
Leave must be granted, when "medically necessary," on an intermittent or part-time
basis. § 2612(b)(1). Upon the employee's timely return, the employer must reinstate the
employee to his or her former position or an equivalent. § 2614(a)(1). The Act makes it
unlawful for an employer to "interfere with, restrain, or deny the exercise of" these
rights, § 2615(a)(1); to discriminate against those who exercise their rights under the
Act, § 2615(a)(2); and to retaliate against those who file charges, give information, or
testify in any inquiry related to an assertion of rights under the Act, § 2615(b). Violators
are subject to payment of certain monetary damages and appropriate equitable relief, §
2617(a)(1). The Act provides for liquidated (double) damages where wages or benefits
have been denied in violation of the Act, unless the defendant proves to the court that
the violation was in good faith.
“To trigger the application of the FMLA, an employee must provide his employer
9
with notice that leave is necessary.” Johnson v. Thru Point, Inc., 160 Fed. Appx. 159,
162 (3d Cir. 2005) (citing 29 C.F.R. § 825.303 and holding that the plaintiff had not put
his employer on notice of his need for health-related leave because he neither advised
his employer of a medical condition nor provided the employer with an opportunity to
discover it). To evoke the requirement for unpaid FMLA leave, however, an eligible
employee need not specifically assert his rights under the Act, or even mention the Act
itself. 29 C.F.R. § 825.208(a)(2). All that is required is that the employee state an
FMLA qualified reason for the leave. Id. “[T]he critical question is whether the
information imparted to the employer is sufficient to reasonably apprise it of the
employee’s request to take time off for a serious health condition.’” Holpp v. Integrated
Commc’ns Corp., Civ. No. 03-3383, 2005 WL 3479682, at *5 (D.N.J. December 20,
2005) (quoting Brohm v. JH Props., 149 F.3d 517, 523 (6th Cir. 1998)) (emphasis
added). Moreover, 29 C.F.R. § 825.302(c) requires an employer to “inquire further of
the employee if it is necessary to have more information about whether FMLA leave is
being sought by the employee, and obtain the necessary details of the leave to be taken.”
29 C.F.R. § 825.302(c) (2006). “In all circumstances, it is the employer’s responsibility
to designate leave, paid or unpaid, as FMLA qualifying, based on information provided
by the employee.” Id. § 825.208(a). The designation generally must be made before the
leave starts, but only in limited circumstances can leave be designated as FMLAprotected after it has ended, usually within two business days. Id. § 825.208(e).
Pursuant to the FMLA and its implementing regulations, “when an employee
provides notice of the need for FMLA leave, the employer shall provide the employee
with notice detailing the specific expectations and obligations of the employee and
10
explaining any consequences of a failure to meet these obligations.” 29 C.F.R. §
825.301(b)(1). This notice should contain, for example, whether the leave counts
against the FMLA entitlement, whether the employee is required to provide medical
certification of a serious health condition and the consequences for failure to do so, any
requirement to provide a fitness for duty certificate upon restoration of employment,
and the right to the same position at the end of the leave. Id. The employer should
request certification, in most cases, prior to or immediately after leave commences, but
may do so some time thereafter if there is reason to question the reason for the leave or
its duration. Id. § 825.305.
Although employers may adopt or retain leave policies more generous than any
policies that comply with the requirements under the FMLA, 29 U.S.C. § 2653, the
“rights established by the Act may not be diminished by any employment benefit
program or plan,” 29 C.F.R. § 825.700.
B.
Interference
An employer interferes with the exercise of an employee’s right to unpaid leave if
it fails to provide the employee who gives notice of the need for leave a written notice
detailing the specific expectations and obligations of the employee and explaining any
consequence of a failure to meet these obligations. See 29 U.S.C. § 2615(a)(1); Parker v.
Hahnemann University Hosp., 234 F. Supp. 2d 478, 483 (D.N.J. 2002). Further,
conduct discouraging employees from taking FMLA leave has been held to constitute
interference, even if the employee ends up taking the leave. To succeed on an
interference claim, the Third Circuit requires that a plaintiff demonstrate that the failure
to advise him of his FMLA rights “rendered him unable to exercise that right in a
11
meaningful way, thereby causing injury.” Conoshenti v. Public Svc. Elec. & Gas Co., 364
F.3d 135, 143 (3d Cir. 2004) (citing 29 C.F.R. § 825.216(a)(1)).
“In order to assert a claim of interference, an employee must show that he
was entitled to benefits under the FMLA and that his employer illegitimately
prevented him from obtaining those benefits.” Sarnowski v. Air Brooke Limousine,
Inc., 510 F.3d 398, 401 (3d Cir. 2007). Thus, to survive summary judgment on his
interference claim, Plaintiff must present evidence establishing that: (1) he was
entitled to FMLA benefits; (2) US Foods violated 29 U.S.C. § 2615 by “interfering with,
restraining, or denying [his] exercise of FMLA rights;” and (3) he was
prejudiced by the interference. Sconfienza v. Verizon Pennsylvania Inc., 307 Fed.
App’x 619, 621 (3d Cir. 2008) (citing Ragsdale v. Wolverine World Wide, Inc.,
535 U.S. 81, 89 (2002)).
C.
Retaliation
Pursuant to the FMLA, “[i]t [is] unlawful for any employer to interfere with,
restrain, or deny the exercise of or the attempt to exercise, any right provided under this
subchapter.” 29 U.S.C. § 2615(a)(1). It follows that the FMLA makes it “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)
(1993). But where an employee is discharged during a protected leave for a reason
unrelated to the leave, there is no right to reinstatement. Conoshenti v. Public Service
Elec. & Gas Co., 364 F.3d 135, 141 (3d Cir. 2004) (citing 29 C.F.R. § 825.216(a)(1)).
In cases alleging retaliation in the employment setting, courts generally apply the
familiar burden-shifting framework established in McDonnell Douglas Corp. v. Green,
12
411 U.S. 792 (1973). See Weston v. Pennsylvania, 251 F.3d 420, 432 (3d Cir. 2001). The
first step under McDonnell Douglas, is to establish a prima facie case of retaliation for
requesting FMLA leave. 411 U.S. at 802. To carry this initial burden in a retaliation
case, a plaintiff must show that: (1) he engaged in protected activity (taking FMLA
leave); (2) he suffered an adverse employment decision; and (3) the adverse decision
was causally related to the leave. Conoshenti v. Public Serv. Elec. & Gas Co., 364 F.3d
135, 146-47 (3d Cir. 2004). A causal connection may be established by circumstantial
evidence, such as temporal proximity, a pattern of antagonism, and pretext. Kachmar v.
SunGard Data Sys., 109 F.3d 173, 177 (3d Cir. 1997). This indirect evidence is to “be
considered with a careful eye to the specific facts and circumstances encountered.”
Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279, n.5 (3d Cir. 2000).
Once a prima facie case is established, the burden of persuasion shifts back to the
defendant to put forth “a legitimate, nondiscriminatory reason” for the employment
decision. Id.; Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981). If the
defendant succeeds in demonstrating that the decision was based on a nondiscriminatory reason, Plaintiff has the burden of proving by a preponderance of the
evidence that the stated reason was pretextual. Burdine, 450 U.S. at 260; St. Mary's
Honor Ctr. v. Hicks, 509 U.S. 502, 508 (1993).
In evaluating employment cases, the task of the Court is not to second-guess
employment decisions, but is instead to determine whether the employment decisions
were motivated by an illegal discriminatory purpose. Ezold v. Wolf, Block, Schorr &
Solis-Cohen, 983 F.2d 509, 525-27 (3d Cir. 1992). Thus, to establish pretext, “the
plaintiff cannot simply show that the employer's decision was wrong or mistaken, since
13
the factual dispute at issue is whether discriminatory animus motivated the employer,
not whether the employer is wise, shrewd, prudent, or competent. Rather, the . . .
plaintiff must demonstrate such weakness, implausibilities, inconsistencies,
incoherencies, or contradictions in the employers's proffered legitimate reasons for its
action that a reasonable factfinder could rationally find them ‘unworthy of credence,’
and hence infer ‘that the employer’ did not act for [the asserted] nondiscriminatory
reasons.” Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir.1994) (internal citations omitted);
Romano v. Brown & Williamson Tobacco Corp., 284 N.J. Super. 543, 551 (citing
Fuentes, 32 F.3d at 764-65).
“[F]iring an employee for [making] a valid request for FMLA leave may constitute
interference with the employee's FMLA rights as well as retaliation against the
employee.” Erdman v. Nationwide Ins. Co., 582 F.3d 500, 509 (3d Cir. 2009). On the
other hand, an employer is not required to suspend its termination proceedings just
because the employee requests medical leave. See, e.g., Clark County Sch. Dist., 532
U.S. at 272. “A contrary holding might impede employers from permissible
terminations and encourage employees aware of an impending termination to attempt
to create their own ‘severance package.’” Windfelder v. The May Dep’t Stores Co., 93
Fed. Appx. 351, 355 (3d Cir. 2004).
D.
Analysis
Defendant argues that Plaintiff cannot satisfy his burden of proving a prima facie
case of interference with his FMLA rights because (1) he did not qualify for additional
FMLA leave at the time of the alleged interference; and (2) Defendant did not deny
Plaintiff any leave to which he was entitled. Defendant also argues that Plaintiff cannot
14
show he was terminated in retaliation for exercising his FMLA rights because he cannot
show the requisite nexus between his prior FMLA leave and his termination, as he was
afforded all of the leave for which he was qualified and was terminated pursuant to
Defendant’s attendance disciplinary policy for his excessive unexcused absences.
Plaintiff counters that a reasonable jury could conclude that Defendant interfered
with his FMLA rights by attaching negative consequences, in the form of comments4 and
erroneously applied discipline, to the exercise of leave and by the failure to properly
advise Plaintiff regarding his continuing use of FMLA leave during the period of
December 2010 through June 2011. (Pl. Br., p. 1-2.) Plaintiff also contends that
Defendant’s asserted reason for Plaintiff’s termination, excessive absences, could be
discredited by a jury, which could find that Plaintiff’s use of FMLA leave was a factor in
the decision to terminate him. (Id.)
Plaintiff acknowledges that to show interference, he “must demonstrate that he
was entitled to FMLA [leave] and it was denied.” (Pl. Br., p. 4 (citing Callison v. City of
Phila., 430 F.3d 117, 119 (3d Cir. 2005).) Therefore, regardless of whether the FMLA
rights of other employees were subjected to interference, as Plaintiff argues, and
4
Among other things, Plaintiff contends:
At pre-shift meetings, . . . Robert Lebb, Director of Operations, would tell the
employees they were working more because of their “FMLA buddies” and
encouraged employees to call those out on FMLA, to tell them to come to work.
(Pl. Dep. 101:13-22.) Mr. Lebb’s other pejoratives included “FMLA brothers” and
that “these motherfuckers on FMLA [were] the reason [employees were] working
. . . overtime.” (Pl. Dep. 101:25-102:16; 271:24-25.) Mr. Lebb specifically referred
to [Defendant] needing to expend resources for overtime because employees were
utilizing FMLA. (Pl. Dep. 272:2-10.)
(Pl. Br., p. 5.)
15
regardless of whether comments made by management tend to indicate that the
employer may have had negative views toward the FMLA program, if Plaintiff was not
denied FMLA leave to which he was entitled, summary judgment must be granted in
favor of the defense on Plaintiff’s claim of interference. See Callison, 430 F.3d at 119.
Plaintiff does not dispute that when his employment was terminated, he had exhausted
his twelve-week allotment of FMLA leave, and was not eligible for further leave.
Accordingly, Defendant did not deny Plaintiff any FMLA leave to which he was entitled.
Because Plaintiff was not entitled to benefits under the FMLA, Defendant could not have
illegitimately prevented him from obtaining those benefits. Summary judgment will be
granted for Defendant on the claim of interference with Plaintiff’s FMLA rights.
Further, as discussed during oral argument, there is no support in the record for
Plaintiff’s claim that Defendant terminated his employment in retaliation for taking
FMLA leave. Rather, Plaintiff exceeded the number of unexcused absences allowed by
his employer, and was subject to the employer’s progressive discipline policy, which
ultimately resulted in Plaintiff’s termination. Other than the fact that Plaintiff had
exhausted the FMLA leave to which he was entitled, his prior invocation of FMLA leave
had no relation to his termination. An employer is not required to suspend its
termination proceedings just because the employee requests medical leave. See, e.g.,
Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001). “A contrary holding might
impede employers from permissible terminations and encourage employees aware of an
impending termination to attempt to create their own ‘severance package.’” Windfelder
v. The May Dep’t Stores Co., 93 Fed. Appx. 351, 355 (3d Cir. 2004). Because Plaintiff
cannot establish a prima facie case of retaliation, summary judgment will be granted in
favor of the Defendant.
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IV. Conclusion
For these reasons, as well as those placed on the record during oral argument,
Defendant’s motion for summary judgment is granted and Plaintiff’s cross-motion for
summary judgment is denied.
An appropriate Order shall issue.
Dated: September 30, 2013
/s/ Joseph H. Rodriguez
JOSEPH H. RODRIGUEZ
U.S.D.J.
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