LICHTENSTEIN v. UNIVERSITY OF PITTSBURGH MEDICAL CENTER et al
Filing
52
MEMORANDUM OPINION re: 34 MOTION for Summary Judgment filed by UPMC PRESBYTERIAN SHADYSIDE, UNIVERSITY OF PITTSBURGH MEDICAL CENTER, DEBORAH LIDEY, and UPMC BRADDOCK. Signed by Judge William L. Standish on 8/3/2011. (md)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JAMIE LICHTENSTEIN,
Plaintiff,
vs.
Civil Action No. 09-1350
UNIVERSITY OF PITTSBURGH MEDICAL
CENTER t/d/b/a UPMC; UPMC
PRESYBYTERIAN SHADYSIDE d/b/a
WESTERN PSYCHIATRIC INSTITUTE
AND CLINIC; UPMC BRADDOCK, and
DEBORAH LIDEY,
Defendants.
MEMORANDUM OPINION
Pending before the Court is a motion seeking summary judgment
on
both
counts
University
of
of
the
Amended
Pittsburgh
Complaint,
Medical
Center,
filed
UPMC
by
Defendants
Presbyterian
Shadyside, UPMC Braddock (collectively, "UPMC") and Deborah Lidey.
(Doc. No. 34, "Motion.")
Plaintiff claims that in violation of the
Family and Medical Leave Act, 29U.S.C. §2601 etseq., her employment
at UPMC Braddock was terminated when she applied for leave to take
care of her seriously ill mother.
For the reasons discussed below,
summary judgment is entered in favor of Defendants.
I.
INTRODUCTION
A.
Factual Background 1
In October 2005,
Plaintiff Jamie Lichtenstein was hired
as a research associate by the Western Psychiatric Inst
ute and
Clinic ("WPIC"), part of the University of Pittsburgh Medical Center
complex of health care providers.
Ms.
Lichtenstein
interviewed
for
Approximately two years later,
a
position
as
a
psychiatric
technician at the UPMC hospital located in Braddock, Pennsylvania.
During the interview, Deborah Lidey, the clinical administrator for
the psychiatry, inpatient detoxification and emergency behavioral
heal th programs at UPMC Braddock, became aware that Ms. Lichtenstein
was attending school part-time and taking two classes that semester.
Ms. Lidey told Plainti ff that al though the job for which she was being
considered was a full-time position, she was willing to accommodate
Ms. Lichtenstein's need for time off to attend classes.
No formal
agreement was arri ved at, however, and Ms. Lichtenstein inferred from
the
conversation
that
she
would
be
given
time
off
for
other
school-related activities as well.
Ms.
Lichtenstein transferred from WPIC to UPMC Braddock on
September 10, 2007.
The parties disagree on the issue of whether
employees who transfer from one facility or position to another
The facts in this section are undisputed unless otherwise noted, based
on the Court's reading of the parties' concise statements of material facts,
the appendices, and responses thereto, Doc. Nos. 35-36, 43-44, and 50.
2
wi thin the UPMC system are subj ect to a six-month orientation period.
According to Ms. Lidey, in such circumstances, the employee is on
probation during that period; Ms.
chtenstein contends that she was
never told she was on probation and believed her transfer from WPIC
was a lateral trans
r to which a probationary period did not apply.
If an employee were on probation, UPMC Braddock policy did not require
a formal series of verbal or written warnings before disciplinary
action could be taken.
aintiff was assigned to a unit referred to as "4-East" where
her supervisor was Ms. Lidey.
Because of legal mandates applicable
to behavioral health units, a minimum number of medical staff were
required to be present during all working shifts.
4-East
was
prepared
administrative assistant.
by
Amy
Ms. Ha
Kies
The work schedule
Harris,
Ms.
Lidey's
s contacted employees prior to
completing each schedule so they could provide her wi th any requests
to adjust
their working
the
hours
upcoming period.
If an
employee missed the deadline for requesting time off, there was no
guarantee the request could be granted.
And, if an employee needed
to take time off or change her working hours after the schedule had
been prepared, she was required to advise Ms. Lidey, Ms. Ha
s, or
the clinical coordinator Cynthia Krautz.
Shortly
a
er
she
trans
rred
to
UPMC
Braddock,
Ms.
Lichtenstein participated in a two-day orientation session during
3
which she was instructed in the hospital's "call off procedure."
If
an employee needed to call off, she was required to call one of two
different telephone numbers.
Employees who worked on 4-East were
also instructed to leave a message wi th Ms. Harris or, al ternati vely,
contact a nursing supervisor if the call was made during hours when
Ms. Harris was not in the office.
to call off on short notice,
In addition, if the employee needed
she was responsible for finding a
substi tute to cover the time she had been scheduled to work in order
to avoid a situation in which other employees would be forced to work
more than their original schedules in order to maintain the required
number of employees on the uni t.
Ms. Harris maintained a \\ staff log"
on which she recorded the dates and reasons the employee had called
off and other work-related information such as dates on which the
employee was late to work or left early.
This log supplemented the
hospital's computerized time system and Ms. Harris acknowledged it
was not always completely accurate or up-to-date.
During her orientation, Ms. Lichtenstein also was advised about
the hospital's absenteeism and tardiness policy.
According to the
policy, an employee was considered tardy if she reported for her shift
more than five minutes after the scheduled start time. 2
A full-time
2
Plaintiff contends that an employee was considered tardy if she arrived
more than seven minutes after her scheduled start time.
She bases this
conclusion on the fact that this had been the policy at WPIC and "no one
told her to the contrary" when she transferred to UPMC Braddock.
(Doc.
No. 43, Plaintiff's Affidavit, ~ 5.)
However, Plaintiff does not dispute
4
employee who incurred seven or more instances of tardiness and/or
more than nine unauthorized absences in a rolling 12-month period
was subject to discharge.
Just one week after she trans
rred to UPMC Braddock,
Ms.
Lichtenstein sent an e-mail to Ms. Harris regarding the schedule for
September 23 through October 17, 2007, indicating times she could
and could not work.
On October 9, she amended her schedule for that
period and also provided information about the hours she could work
between October
18 and November 11,
2007.
On October 11,
she
requested a change in her work hours for October 12 and asked that
her normal 8-hour shift be cut to four hours on October 13 because
she needed time to complete a school assignment.
accommodated.
But
the
same day,
she
These changes were
requested changes
in her
schedule for at least four other days and asked to work an additional
unscheduled shift so she could take another day off to finish a paper
for school and prepare for midterms.
On November 26, well after the deadline for changes had passed,
Plaintiff e-mailed Ms. Lidey, asking for changes in her schedule for
December 1 and 8.
had
become
By this time, Ms. Lichtenstein's erratic schedule
apparent
to
other
employees
on
4-East.
Another
psychiatric technician e-mailed Ms. Harris on November 27,
2007,
that during orientation she received a copy of the UPMC Braddock policy
which clearly states that five minutes is the leeway allowed before an
employee is considered tardy. (Defs.' App., Lichtenstein Depo. Exh. 7.)
5
alerting her to the fact that Plaintiff had told him she planned to
call off on December 1 if her request to get her schedule changed
for that day was unsuccessful. 3
On November 30, a different employee
e-mailed Ms. Harris, stating she had heard Ms. Lichtenstein say she
intended to call off on December 1 because she refused to work a double
shift on the weekend, and had told other people she either wanted
to attend a concert on Saturday, December I, or had a paper due the
following Monday.
By November 29, Ms. Lidey had become aware of the rumor that
Ms. Lichtenstein wanted time off to attend a concert on December I,
and sent an e-mail in which she stated
. . . I am concerned because I am now hearing that you would
like Saturday evening off to attend a concert.
I am able
to work around your school schedule as I told you I would
but you wi 11 need to schedule your other acti vi ties around
your work schedu
If you have requests for the schedule
they must be submi tted by the request dates.
I have other
staff with requests that I must also consider.
(Appendix to Motion for Summary Judgment, Doc. No. 35, "Defs.' App.,"
Exh. B, Deposition of Deborah Lidey, "Lidey Depo.," Exh. 46.)
Ms. Lichtenstein replied that she was not intending to go to
a concert, but was "in a bind right now" with a project that was due
3
Plaintiff was scheduled to work a double shift on December 1.
Defendants contend she had requested to work these hours; Plaintiff asserts
that she had not.
Plaintiff does not mention being scheduled against her
wishes for this double shift in her response to Ms. Lidey's e-mail of
November 29, 2007.
(See Defs.' App., Exh. F, Declaration of Amy Harris,
Exh. A.)
No matter how or why this schedule was determined, there is no
question that Plaintiff was scheduled to work 16 hours on December 1. The
reason for that schedule is irrelevant to the analysis herein.
6
on Tuesday, December 4.
The project required a group effort with
two other students and the only time they could schedule a working
session to write a paper and prepare presentations was the evening
of December 1.
Ms. Lidey did not grant the request for time off.
On December 1,
Ms.
Lichtenstein called off from the entire
16-hour shift (not just the evening) bye-mailing the person who would
be in charge during the
shift,
obligations or the concert.
but
she did not
refer to class
Instead, she stated she was ill and had
a doctor's note that prohibited her from returning to work until
Sunday, December 2.
Requests for time off during the holiday period between December
9,
2007,
and January 5,
November 15, 2007.
2008,
were required to be submitted by
Plaintiff received at least two notices about
this, but the day after the deadline, that is, on November 16, 2007,
Ms. Lichtenstein again requested changes to the schedule, asking to
take off December 30, 2007, through January 2, 2008, because she had
purchased tickets for a concert in Philadelphia on December 31.
Ms.
Lidey informed her she was not able to accommodate all the requested
time off, but did adjust the schedule so Ms. Lichtenstein was
on December 31 through January 2.
0
On December 30, Ms. Lichtenstein
was scheduled to wor k a regular daylight shi ft, i. e., from 7: 00 a. m.
to 3:30 p.m., but she did not report to work until 9:30 a.m. and left
at 12:45 p.m.
In other words, she was two and one-half hours late
7
beginning her shift and
ft almost three hours early.
At the time, Ms. Lidey was about to begin her own vacation,
scheduled for December 31 through January 6.
Ms.
Krautz
was
the
acting
supervisor
for
Plaintiff was scheduled to return to work
During her absence,
employees
on
4-East.
the evening shift, i. e. ,
4
from 3:00 p.m. to 11:30 p.m., on January 3, 2008.
However, early
that morning, her mother, Jodi Black, was taken to the hospital with
ght leg.
severe pain in
Ms. Lichtenstein contacted the nursing
supervisor and told her she was unable to work that day because she
was at the emergency room with her mother.
Shortly a
r noon on
January 3, Ms. Krautz sent an e-mail to Ms. Harris and Ms.
informing them that Ms. Lichtenstein had called
dey
f but that another
employee had been able to replace her; the reason for the call off
did not
appear
in
the
PI
e-mail.
ntiff
reported
to
work
as
scheduled on January 4 while her mother was still hospitalized.
According to their deposition testimony, Ms.
Brown,
dey and Helene
the UPMC Braddock vice president of Human Resources,
talked before Ms.
dey went on vacation about
chtenstein's employment.
Ms.
had
terminating Ms.
Lidey returned to the office on
January 7 as scheduled and immediately asked Ms. Harris to provide
her with a list of the dates on which Plaintiff had been tardy or
4 As discussed in detail below, Plaintiff vigorously disputes the timing
of all events beginning on January 3, 2008.
8
called off.
The list showed that she had called off sick on November
13, had failed to report on December 1 when she was scheduled to work
the 16-hour shift, and had called in on January 3 because of a "sick
mom."
She had been tardy six times:
December 7, 15, 29, and January 4.
October 13,
November 28,
The list did not include December
30 when Plaintiff arrived late and left early.
(Defs.' App., Lidey
Depo. Exh. 58.)
Ms.
Lidey and Ms.
Brown again discussed Ms.
Lichtenstein's
attendance problems, and agreed to proceed with the termination on
January 8 when Plaintiff was next scheduled to work.
However, about
3:00
night
a.m.
that
day,
Ms.
Lichtenstein
called
the
nursing
supervisor, stating that her mother was still hospitalized and she
was "just exhausted" from the situation.
She told the supervisor
she would not be able to work later that day and needed to take a
leave
of
absence.
She
asked
whom she
should
contact
and
the
supervisor told her to talk with Ms. Brown.
Instead of contacting Ms. Brown, Ms. Lichtenstein e-mailed Ms.
Lidey shortly after noon on January 8, stating,
I am not sure if you are aware, but my mother has been in
the hospital since Thursday [January 3].
I am not sure
how much longer they will keep her hospitalized.
And once
she is released, she might require some assistance.
Under
these circumstances and at this point in time, I would like
to, as well as need to, take a leave of absence.
Who do
I speak with to aid me in this process?
{Plaintiff's Deposition Exhibits, Doc. No. 47, "Plf.'s Exhs.," Exh.
9
A, Lichtenstein Depo. Exhs. at 1.)
Early the next morning,
Ms.
Lidey replied to this
e-mail,
stating she was out of the office on January 9 and asking Plaintiff
to make an appointment through Ms. Harris; it was scheduled for 11: 00
a.m. on January 10.
At 9:00 that morning, Ms. Lichtenstein called
to change the appointment because her mother was home from the
hospital and needed assistance taking medications during the day.
Ms. Lidey, Ms. Krautz and another supervisor called Ms. Lichtenstein
later that morning and advised her that her employment was being
terminated due to tardiness, absenteeism, and constant difficulty
in accommodating her schedule.
B.
Procedural Background
On October 6, 2009, Plaintiff filed a two count complaint
against UPMC, WPIC, UPMC Braddock, and Ms. Lidey.
In Count I, Ms.
Lichtenstein claims she was illegally denied FMLA leave to care for
her seriously ill mother,
as provided in 29 U.S.C.
(Amended Complaint, Doc. No. 10,
~~
36-49.)
§
2615(a) (1).
In Count II, Plaintiff
alleges she was unlawfully discharged for requesting family medical
leave and/or taking time off to care for her mother in violation of
29 U.S.C.
§
2615(a) (2).
Following two unsuccessful attempts at
mediation and almost a year of discovery,
on February 25,
2011,
Defendants filed the now-pending Motion seeking summary judgment
their favor on both Counts.
The parties having briefed all issues
10
thoroughly, the Motion is now ripe for decision.
II.
JURISDICTION AND VENUE
This Court has jurisdiction over Plaintiff's
to 28 U.S.C. § 1331 and 29 U.S.C. § 2617(a) (2).
laid in the Western District of Pennsylvan
aims pursuant
Venue is properly
inasmuch as the events
gi ving rise to the claims herein occurred in Allegheny County,
Pennsylvania, within this district.
See 28 U.S.C.
§
1391 (b) (2).
III. STANDARD FOR SUMMARY JUDGMENT
A court may grant summary judgment if the party so moving can
show "there is no genuine issue as to any material fact and that the
moving
party
is
entitled
to
Fed.R.Civ.P. 56(a)i Sollonv. Oh
568 (W.D. Pa. 2005).
judgment
as
a
matter
law."
Cas. Ins. Co., 396 F. Supp.2d 560,
If a reasonable jury could return a verdict
for the non-movant, the dispute is genuine and if, under substantive
law, the dispute would affect the outcome of the sui t , it is mate
A factual dispute between the parties that
material will de
Liberty Lobby,
is both genuine and
at a motion for summary judgment.
Inc., 477 U.S. 242, 247-248
al.
Anderson v.
(1986).
In considering a motion for summary judgment, the court must
view all
dence in the light most favorable to the non-movant,
accept the non-movant's version of the facts as true, and draw all
reasonable
inferences
Sollon, id., citing
and
resolve
any
conflicts
in
its
favor.
sushita Elec. Indus. Co. Ltd. v. Zenith Radio
11
Corp., 475 U.S. 574, 587 (1986), and Big Apple BMW, Inc. v. BMW of
North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
In short,
the movant must show that if the pleadings, depositions and other
evidentiary material were admissible at trial, the other party could
not carry its burden of proof based on that evidence and a reasonable
jury would thus decide all genuine material disputes in the movant's
favor.
Celotex Corp. v. Catrett, 477 U.S. 317, 318
(1986).
Once the movant has demonstrated that there are no genuine
issues of material fact, the burden shifts to the non-moving party
to "make a showing sufficient to establish the existence of every
element
essential
to
his
case,
based
deposi tions and admissions on file."
Sollon,
Fe d . R. Ci v . P .
id.
56 (c) .
on
the
Celotex,
The
sum
of
affidavits
or
by
id.
at
322-323;
the
affirmative
evidence to be presented by the non-moving party must be such that
a reasonable jury could find in its favor,
and it cannot simply
reiterate unsupported assertions, conclusory allegations, or mere
suspicious
beliefs.
Liberty Lobby,
id.
at
250-252;
Groman v.
Township of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995).
IV.
ANALYSIS
A.
Relevant Law
In 1993, Congress enacted the FMLA to accommodate "the
important societal interest in assisting families, by establishing
a minimum labor standard for leave."
12
Churchill v. Star Enters.
I
183
F.3d 184, 192 (3d Cir. 1999), quoting S. Rep. No. 103-3 at 4, 1993
U.S.S.C.A.N.
at
6 7.
providing employees
This
the
goal
right
is
accomplished,
to "reasonable
leave
in
part,
by
for medical
reasons, " not only for their own medical conditions, but also to care
for "a child, spouse or parent who has a serious
lth condition."
29 U.S.C. § 2601 (b) (2) i see also 29 C. F.R. § 825.201, Leave to Care
for a Parent.
Thus, "covered employers" are required to grant up
to 12 weeks of unpaid leave during a 12-month period to any "eligible
employee" for such medical purposes. 5
C.F.R.
§
825.200(a).
29 U.S.C. § 2612(a) (1) (C)i 29
The leave may be continuous or intermittent
and intermittent leave "may include leave of periods from an hour
or more to several weeks."
29 C.F.R. § 825.202.
At the same time, the medical leave must be administered in a
way that "accommodates the legitimate interests of employers."
U.S.C.
§
2601 (b) (3).
29
This requires the employee to notify her
employer of her need for leave.
Under the relevant regulation, \\ [a 1n
employee shall provide at least verbal notice sufficient to make the
employer aware that the employee needs FMLA-qualifying leave, and
An "eligible employee" is one who has worked for a covered employer for
at least 12 months and for at least 1,250 hours during the previous 12
months.
29 U.S.C. § 2611 (2).
A "covered employer" is "any person engaged
in commerce or in any industry or activity affecting commerce who employs
50 or more employees for each working day during each of 20 or more calendar
workweeks in the current or preceding calendar year.
29 U. s. C. §
2611 (4) (A) (i).
The parties do not dispute that Ms. Lichtenstein qualified
as an eligible employee of UPMC (despite the transfer from WPIC to UPMC
Braddock in September 2007) and that UPMC is a "covered employer."
5
II
13
the anticipated timing and duration of the leave. H
825.302(c).
cases.
29 C.F.R. §
This notice is the threshold requirement in all FMLA
See Scott v. UPMC, No. 10-3667, 2011 U.S. App. LEXIS 13479,
*8-*9 (3d Cir. July 1, 2011), citing Brohm v. JH Properties, Inc.,
149 F.3d 517, 523 (6 th Cir. 1998)
("nothing in [the FMLA] places a
duty on an employer to affirmatively grant leave without such a
request or notice by the employee. H)
Where the need for leave is
foreseeable -- for example, in the case of scheduled surgery and a
subsequent period of recovery -- an employee must give the employer
30 days advance notice or, if this amount of notice is impossible,
then "as soon as practicable. H 29 U.S.C.
In
825.302.
unforeseeable
2612(e); 29 C.F.R.
§
situations
such
as
herein
§
when
Plaintiff's mother woke one morning and collapsed from severe leg
pain -- the regulations require the employee to notify the employer
"as soon as practicable under the facts and circumstances of the
particular case,H according to the employer's "usual and customary
notice
Another
and
procedural
regulation
requirements."
provides
29
alternatively
C.F.R.
that
if
§
825.303.
an
employee
becomes aware of the need for leave less than 30 days in advance,
she should notify her employer "either the same day or the next
business
day."
2612(e)(1).
29 C.F.R.
§
825.302(b);
see also 29
U.S.C.
§
An important factor related to unforeseeable leave
requests is that "[w]hen an employee seeks leave
14
the first time
for a FMLA-qualifying reason, the employee need not expressly assert
rights under the FMLA or even mention the
FMLA.
/I
29 C.F.R.
825.303(b); see also Sarnowski v. Air Brooke
§
Inc., 510
F.3d 398, 402 (3d Cir. 2007) (" In providing notice, the employee need
not use any magic words./I)
An employer may violate the FMLA in two ways, commonly referred
to as interference and retaliation.
An employee alleging she was
discharged in violation of the FMLA may proceed under either or both
theories.
Hayduk v. City of Johnstown, Nos. 09-3846 and 09-3948,
2010 U.S. App. LEXIS 13630, *8 (3d Cir. July 2,2010), cert. denied,
131 S. Ct. 1002 (2011).
Interference claims are based on the FMLA
regulations which explain that
an employer
inter
res with the
employee's rights by refusing to authorize FMLA leave or discouraging
an employee from using such leave.
29 C. F.R. § 825.220 (b); see also
29 U.S.C. § 2615 (a) (1) (it is "unlawful for any employer to interfere
with, restrain, or deny the exercise of or the attempt to exercise,
any
right
provided"
in
the
FMLA.)
" [T]
0
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
bene
ts.
/I
Sarnowski,
510
F.3d
at
401;
Callison v. City of Philadelphia, 430 F.3d 117, 119 (3d Cir. 2005),
citing 29 U.S.C. §§ 2612(a) and 2614(a); see also Kerns v. Drexel
No. 06-5575, 2008 U.S. Dist. LEXIS 57358, *34 (E.D. Pa. Jul.
15
25, 2008)
(including an additional element, i.e., that the employee
gave notice to the defendant of her intention to take FMLA leave.)
The plaintiff need not establish that she was treated differently
than others and, unlike a case in which the plaintiff is pursuing
a
claim
for
defendant
discriminatory
cannot
escape
retaliation
liability
business purpose" for the decision.
by
(discussed
providing
a
below),
the
"legitimate
Callison, 430 F.3d at 120 ("An
interference action is not about discrimination, it is only about
whether the employer provided the employee with the entitlements
guaranteed by the FMLA.")
The requirements for stating a claim of retaliation are somewhat
different and arise under a different provision of the FMLA.
Section
2615 (a) (2) makes it illegal for an employer to "discharge or in any
other manner discriminate against any individual for opposing any
practice made unlawful" by the FLMA.
a plaintiff must demonstrate:
(1)
To assert a retaliation claim,
she was a covered employee who
invoked her rights to FMLA benefits;
employment action;
&
she suffered an adverse
and (3) the adverse action was causally related
to the exercise of her FMLA rights.
Elec.
(2)
See
Conoshenti v. Pub. Servo
Gas Co., 364 F.3d 135, 146 (3d Cir. 2004).
Assuming there
is insufficient direct evidence that the plaintiff's FLMA leave (or
a request therefor) was a substantial factor in the decision to take
the adverse action,
thereby invoking the analysis established in
16
Price Waterhouse v. Hopkins, 490
u.s.
228 (1989), a court analyzing
a retaliation claim applies the familiar burden-shifting framework
set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
That is,
(1)
the plaintiff must establish a prima facie case of
discrimination
(here the alleged retaliatory dismissal;)
defendant must come forward with a legitimate,
reason for
defendant
the adverse employment action;
meets
this
burden,
the
and
plaintiff
(2)
the
nondiscriminatory
(3)
must
assuming the
show
by
the
preponderance of the evidence that the defendant's proffered reason
was a pretext for discrimination.
McDonnell Douglas, 411 U.S. at
802-805; see also Parker v. Verizon Pa., Inc., No. 07-4829, 2009 U.S.
App. LEXIS 2508, *10 (3d Cir. Feb. 4, 2009), applying the McDonnell
Douglas paradigm in the context of an FMLA retaliatory discharge
claim.
As the Third Circuit Court of Appeals has recently clarified,
"it would be patently absurd if an employer who wished to punish an
employee for taking FMLA leave could avoid liabili ty simply by firing
the employee before the leave begins."
Co.,
582
F.3d 500,
508
(3d Cir.
Erdman v. Nationwide Ins.
2009).
Therefore,
"firing 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./I
Id. at 509.
An employee may bring suit to
enforce ei ther type of claim pursuant to Section 2617 (a) of the FMLA.
17
Conoshenti, 364 F.3d at 141.
B.
Plaintiff's Claims
In Count I of her Amended Complaint, captioned as Denial
of Leave of Absence, Plaintiff alleges that her need to call-off on
January 3 and January 8, 2008, as well as her request for a leave
of absence, were necessary to assist her mother who was suffering
from a serious health condition.
~~
(Amended Complaint,
39, 42.)
Defendants' denial of the FMLA leave she requested was a violation
of 29 U.S.C. § 2615{a) (1).
In Count II, described as Unlawful Discharge, Plaintiff alleges
that
Defendants
violated
the
FMLA
by
"unlawfully
discharging
aintiff for needing family medical leave and/or requesting family
medical leave and/or taking time off due to a serious health condition
of a parent of which Defendants were aware."
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