PALAN v. INOVIO PHARMACEUTICALS, INC. et al
MEMORANDUM AND/OR OPINION SIGNED BY HONORABLE WENDY BEETLESTONE ON 8/26/15. 8/26/15 ENTERED AND COPIES E-MAILED.(ti, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
INOVIO PHARMACEUTICALS, INC.;
PETER KIES; J. JOSEPH KIM;
THOMAS KIM; AVTAR DHILLION; and
Plaintiff Brian Palan brings this action under the Family and Medical Leave Act of 1993
(“FMLA”), 29 U.S.C. §§ 2601 et seq. against Defendants Inovio Pharmaceuticals, Inc.
(“Inovio”); Peter Kies, Inovio’s Chief Financial Officer; Thomas Kim, its General Counsel; and
Jeffrey Richardson, its Senior Director of External Relations and Human Resources Director
(collectively, the “Defendants”).1 Palan claims that the Defendants: (1) unlawfully interfered with
his FMLA rights; and (2) unlawfully retaliated against him by terminating his employment in
violation of the FMLA.
Before the Court is the Defendants’ Motion for Summary Judgment pursuant to Federal
Rule of Civil Procedure 56. The Defendants seek judgment as matter of law, inter alia, on the
ground that Palan is not an “eligible employee” under the FMLA. For the reasons that follow,
the Defendants’ motion will be granted.
On February 20, 2015, the Court granted the Defendants’ Motion to Dismiss in part dismissing Defendants J.
Joseph Kim and Avtar Dhillion. ECF No. 21 at 6-7.
Inovio is a Delaware corporation that has two locations: one in Pennsylvania and another
in California. Kim Decl. ¶ 2. Brian Palan is a Pennsylvania resident and the former
Informational Technology (“IT”) Manager at Inovio. Stipulated Facts Submitted in Connection
with Defendants’ Motion for Summary Judgment (“SF”) ¶ 1.
When Palan was hired, he was provided with Inovio’s employee handbook. Opp’n at 11;
see also Opp’n Ex. F. The handbook specifically states that Inovio employees have the rights
and protection of the FMLA. See Opp’n Ex. F at 43 (“The Company recognizes that a leave of
absence from active employment may be necessary for family or medical reasons. The following
leave policy complies with the provisions of the Family and Medical Leave Act of 1993
‘FMLA.’”). Palan has no recollection of ever having read the handbook. J.A. 19.
In April 2014, Palan was diagnosed with diverticulitis. J.A. 10-11 (Palan Dep.). He
informed management of his condition, he was hospitalized for treatment, J.A. 116, and he then
returned to work. J.A. 30 (Palan Dep.). A few weeks later, a follow-up CT scan revealed that
his condition had not improved. J.A. 118. In an e-mail to Inovio management, he described his
condition as a “ticking time bomb that could ‘pop’ at any time” and result in the “same lifethreatening situation I was in at the hospital a month ago.” Id. His physician recommended
surgery, but Palan told his bosses that he wanted to do “anything . . . to safely avoid surgery.”
Id. He sought a second opinion from a gastrointestinal specialist who agreed that surgery was
medically necessary and should be scheduled on an exigent basis. J.A. 20-21 (Palan Dep.).
Palan scheduled his surgery for May 28, 2014. J.A. 91. Although he does not recall whether he
ever formally requested a leave of absence, he notified the Defendants of his scheduled surgery,
his expected last day of work, and his expected recovery time. J.A. 13, 44 (Palan Dep.); J.A.
Before going out, Palan met with Richardson to “discuss his medical leave and to obtain
information regarding short-term disability benefits.” J.A. 91. The only thing Richardson
discussed with Palan during this conversation was Palan’s eligibility for short-term disability.
J.A. 25-26 (Palan Dep.). In his declaration attached to his summary judgment briefing, Palan
explains that “I expressed concern for my job because I would be recovering from surgery during
a critical period in the lead-up to the execution of” an office move between Inovio’s thenlocation in Blue Bell, Pennsylvania, to a new office space in Plymouth Meeting, Pennsylvania.
Palan Decl. ¶ 17. Also in the meeting, Richardson assured Palan that he “had nothing to worry
about,” and that his job would be waiting for him when he returned. Id.; see also J.A. 28-29, 31
(Palan Dep.). FMLA leave was not discussed in this meeting. Palan had surgery on May 28,
2014 and recuperated during his leave of absence. J.A. 31 (Palan Dep.).
While he was out, Inovio moved its office. The move involved significant work to its IT
systems, work which was done with the help of a third-party contractor. J.A. 92. Palan tried to
help with the IT move to the extent that he was medically able. Id. Inovio claims that during
this time it learned that Palan had not adequately prepared the company for the move, see J.A.
100-01, an allegation that Palan denies. Opp’n at 2.
On July 16, 2014, upon his scheduled return to work, Palan was terminated. J.A. 92. At
no time during his termination meeting was there any mention of any performance deficiency by
Summary judgment, pursuant to Federal Rule of Civil Procedure 56(a), “is appropriate
where there is no genuine issue as to any material fact and the moving party is entitled to
judgment as a matter of law.” Alabama v. North Carolina, 560 U.S. 330, 345 (2010) (citations
and internal quotation marks omitted). “By its very terms, this standard provides that the mere
existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is that there be no genuine
issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
As a threshold matter, Defendants assert, and Palan does not dispute, that Palan is not
eligible for FMLA relief under a strict reading of the statute because Inovio employed fewer than
fifty employees within a seventy-five–mile radius at its Pennsylvania worksite. Mot. at 10; see
Leese v. Adelphoi Vill., Inc., 516 F. App’x 192, 193 (3d Cir. 2013) (stating that if an employer
employs fewer than fifty employees within a seventy-five-mile radius, the employee “is not an
‘eligible employee’ entitled to protection under the FMLA” (citing 29 U.S.C. § 2611(2)(B)(ii))).
In May 2014, Inovio employed thirty-eight employees at its Pennsylvania office and within
seventy-five miles thereof. SF ¶ 3. In July 2014, Inovio employed forty employees at its
Pennsylvania office and within seventy-five miles thereof. Id. ¶ 4.
Nevertheless, Palan contends that his FMLA claims are saved by the common law
doctrine of equitable estoppel, Opp’n at 11, which is available to a plaintiff in an FMLA action.
See Leese, 516 F. App’x at 193 (noting that “the District Court correctly found that equitable
estoppel is available in the FMLA”) (citing Dobrowski v. Jay Dee Contractors, Inc., 571 F.3d
551, 554-55 (6th Cir. 2009); Reed v. Lear Corp., 556 F.3d 674, 678 (8th Cir. 2009); Minard v.
ITC Deltacom Commc’ns, Inc., 447 F.3d 352, 358-59 (5th Cir. 2006); Woodford v. Cmty. Action
of Greene Cnty., Inc., 268 F.3d 51, 57 (2d Cir. 2001); Dormeyer v. Comerica Bank-Ill., 223 F.3d
579, 582 (7th Cir. 2000)). To be advantaged by the doctrine, a plaintiff must show: “(1) a
misrepresentation by another party; (2) which he reasonably relied upon; (3) to his detriment.”
Leese, 516 F. App’x at 194 (citing United States v. Asmar, 827 F.2d 907, 912 (3d Cir. 1987)).
Misrepresentation is “not whether the employer made an explicit promise to a particular
employee, but whether the defendant ha[s] engaged in affirmative conduct . . . that was
designed to mislead or was unmistakably likely to mislead a plaintiff.” Myers v. Tursso Co., 496
F. Supp. 2d 986, 997 (N.D. Iowa 2007) (citing Redman v. U.S. W. Bus. Res., Inc., 153 F.3d 691,
695 (8th Cir. 1998) (FLSA case) (citations and internal quotation marks omitted)). Here, where
Inovio’s handbook included a statement that the company’s leave policy “complies with the
provisions of the [FMLA],” it is doubtless likely that an employee would be misled into
believing he was an eligible employee for the purposes of taking FMLA leave. See Dobrowski,
571 F.3d at 556-57 (“[A]n employer who without intent to deceive makes a definite but
erroneous representation to his employee that she is an ‘eligible employee’ and entitled to leave
under FMLA, and has reason to believe that the employee will rely on it, may be estopped to
assert a defense of non-coverage.”); see also Myers, 496 F. Supp. 2d at 998 (a similar statement
in the employee handbook held sufficient to satisfy the misrepresentation element of FMLA
equitable estoppel claim). Accordingly, Plaintiff has satisfied the misrepresentation prong.2
Palan has not, however, provided evidence that he relied upon the misrepresentations in
the Inovio handbook, and that such reliance caused him detriment. Renart v. Chartwells, 122 F.
App’x 559, 561 (3d Cir. 2004) (“Detrimental reliance is a necessary element of a claim for
Palan also contends that the representations by Richardson in the May 19, 2014, meeting, i.e., that Palan “had
nothing to worry about” and that his job would be “waiting for [him] when he got back” are qualifying
misrepresentations. They are not. While the statements may have, ultimately turned out to be untrue, they did
not concern whether Palan was FMLA eligible.
equitable estoppel.”); see also Sinacole v. iGate Capital, No. 04-0921, 2006 WL 3759744, at *7
(W.D. Pa. Dec. 19, 2006), aff’d, 287 F. App’x 993 (3d Cir. 2008).
Dobrowski v. Jay Dee Contractors, Inc., 571 F.3d 551 (6th Cir. 2009), relied upon by the
Defendants, is instructive here. In Dobrowski, in July 2004, the plaintiff, in consultation with his
physician, elected to schedule surgery to treat his epilepsy for October 2004. At that time, he
informed his supervisor about the procedure and all parties assumed the employer would grant
him time off with the operation. One month before the surgery, the employer’s president gave
the plaintiff a form headed “APPLICATION FOR LEAVE OF ABSENCE UNDER THE
FMLA,” which the plaintiff completed and returned. Ten days before the surgery, the president
wrote the plaintiff a letter which contained the statement that “[p]ursuant to the Family and
Medical Leave Act, [the employer] will leave [the plaintiff’s] position open for at least twelve
(12) weeks” and included with the letter the Department of Labor’s “Employer Response to
Employee Request for Family or Medical Leave” form that summarized the plaintiff’s
application, indicated that he was an eligible employee, and confirmed that the company was
providing him with FMLA leave. Id. at 553. After the plaintiff took the leave of absence, his
employment was terminated and he filed suit alleging violations of the FMLA and asserted an
equitable estoppel theory because the parties agreed that the employer did not have the requisite 50
employees within 75 miles of the plaintiff’s worksite. See id. at 554.
The Sixth Circuit agreed that the employer’s actions amounted to a “definite
misrepresentation of [the plaintiff’s] eligibility,” but he failed to satisfy the detrimental reliance
element because there was no evidence in the record to show that he “change[d] his position” in
reliance on the belief that his leave would be FMLA-protected:
Had he relied on the erroneous representations, one would expect [the plaintiff] to
be able to point to some action or statement that indicated that his decision to
have the surgery was contingent on his understanding of his FMLA status; or
perhaps evidence that raises an inference of such contingency—for example, a
record that he made an inquiry as to his rights, asked for written confirmation of
his leave arrangement, or changed his behavior after being told he was eligible. At
the very least, [he] could have placed an affidavit in the record stating that he
would have forgone the surgery but for his belief that his job status was protected
by the FMLA. But none of this is present in the record.
If anything, the record shows that [the plaintiff] had already decided on and
scheduled the surgery by the time he was informed of his eligibility.
Id. at 557-58 (emphasis added) (citations omitted). The record contained no evidence of a
discussion of the plaintiff’s FMLA eligibility prior to the application for FMLA leave filed three
weeks prior to his surgery, well after he informed the company about his planned absence. And
an email he sent referencing his “operation coming up” did not ask for permission to take leave,
discuss his rights under the FMLA, or indicate a willingness to delay or reschedule depending on
his legal status. The court held that it was his burden on summary judgment to produce evidence
supporting his estoppel claim, “and the record must contain evidence permitting a finding” not
just that he could have rescheduled this elective surgery, but that “he would have.” Id. at 558.
“[T]he most direct statement in the record as to [the plaintiff]’s intent,” the court noted, “that he
‘got the okay’ and scheduled the surgery—suggests that at the time he was waiting only on his
doctor’s permission and not assurance of legal protection.” Id. Because the plaintiff had
provided no evidence of detrimental reliance, his equitable estoppel argument failed. Id.
Here, like the plaintiff in Dobrowski, Palan has proffered no evidence in the record to
establish that he “change[d] his position” in reliance on a belief that his leave would be protected
under the FMLA. Inovio contends that Palan “admits he never even read Inovio’s Handbook
thereby making it an absolute impossibility that he relied on it at all, let alone to his detriment.”
Defs.’ July 27, 2015, Letter Brief at 1; see also J.A. 19 (Palan Dep.). Palan can point to no
action or statement that indicated that his decision to have the surgery was contingent on his
understanding of his FMLA status, especially in light of the fact that he admitted he had no
choice but to take a leave of absence, regardless of his FMLA eligibility, because of his “lifethreatening situation.” J.A. 21, 118. Renart, 122 F. App’x at 561 (3d Cir. 2004) (holding that
Plaintiff’s FMLA claim failed under equitable estoppel because she testified that she took time
off only because her supervisor had told her that she could, not because she believed she was
eligible for family leave, which foreclosed the argument that she had relied on any of the
Defendant’s representations about her eligibility for leave).3
The record shows that Palan would have taken leave regardless, and he cannot show that
he “relied” on any misrepresentation of Inovio to his detriment in deciding to take a leave of
absence. His equitable estoppel claim therefore fails and, accordingly, the motion for summary
judgment shall be granted.
An appropriate Order follows.
Dated: August 26, 2015
BY THE COURT:
/S/WENDY BEETLESTONE, J.
WENDY BEETLESTONE, J.
Palan’s reliance on another Sixth Circuit decision, Tilley v. Kalamazoo County Road Commission, 777 F.3d 303
(6th Cir. 2015), is misplaced. The plaintiff in that case presented evidence, in the form of a sworn affidavit, that
he reasonably relied on the statement in the employee manual that full-time employees like himself were covered
under the FMLA. The Sixth Circuit noted that the plaintiff “did precisely what the employee in Dobrowski
failed to do: he pointed evidence—his sworn affidavit—that he sought medical treatment prior to completing his
assignment because the unqualified and unambigious statements in the Manual led him to believe that he was
covered by the FMLA.” Id. (emphasis added). Because of this, the court held that there was a material factual
dispute on the reasonable reliance element of the plaintiff’s equitable estoppel claim. Palan has pointed to no
such evidence in the record here.
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