Nebeker v. National Auto Plaza et al

Filing 85

ORDER granting 51 Motion for Summary Judgment.Plaintiffs claims are DISMISSED WITH PREJUDICE. Signed by Judge Bruce S. Jenkins on 2/19/15. (ss)

FILED
2015 FEB 19 PM 12:13
CLERK
U.S. DISTRICT
COURT
IN THE UNITED STATES DISTRICT COURT
CENTRAL DIVISION, DISTRICT OF UTAH

SHAUNA NEBEKER,
Plaintiff,

ORDER GRANTING DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT

v.
NATIONAL AUTO PLAZA and KOLBY
HANSEN,
Case 2:13-cv-00885-BSJ
Defendants.

Defendants' Motion for Summary Judgment 1 came before the court for hearing on
December 5, 2014, at 1:30 p.m. Defendants National Auto Plaza and Kolby Hansen were
represented by Erik A. Olson and Trevor C. Lang. Plaintiff Shauna Nebeker was represented by
April L. Hollingsworth and Ashley F. Leonard. The court mled in open court granting
Deferniarrts' motion. The court requested-Defendants prepare a suggested-form of order, wnicn
Defendants submitted to the court on December 15, 2014. Plaintiff subsequently filed objections
to Defendants' suggested order on December 19, 2014, 2 which Defendants responded to on
December 22, 2014. 3
Having considered the parties' briefs, the evidence presented, the suggested orders, the
arguments of counsel, and the relevant law, the court GRANTS Defendants' Motion for
Summary Judgment.

1

Mot. for Summ. J. and Supporting Mem., filed Sep. 15, 2014 (CM/ECF No. 51).

2

Pl.'s Objections to Defs.' Proposed Order for Summ. J., filed Dec. 19,2014 (CM/ECF No. 81).

3

Resp. to P.'s Objections to Defs.' Proposed Order Granting Summ. J., filed Dec. 22,2014 (CM/ECF No.

82).

I. DISCUSSION

Defendants' motion sought summary judgment against Plaintiff for all three causes of
action: (i) wrongful termination in violation of public policy; (ii) violation ofthe Family Medical
Leave Act ("FMLA"); and (iii) violation of the Americans with Disabilities Act ("ADAAA").
For the reasons discussed below, the court finds summary judgment is warranted on all claims.

A. Wrongful Termination in Violation of Public Policy
A critical component of any wrongful termination claim is that a termination actually
occurred-that the claimant was actually fired by his or her employer. In the present case, this
component is missing.
Plaintiff and Defendants contest the appropriate standard for determining whether a
tennination occurred. Defendants cite Bodmer v. Police Mut. Aid Ass 'n, 94 Utah 450, 456 (Utah
1938) for the proposition that "[t]here is a discharge when there is an intention to discharge
evidenced by acts which unequivocally show the intent."4 Although wrongful termination is a
state law claim, Plaintiff does not contest this standard by pointing to a contrary definition in
Utah case law. And the court was unable to find one. Instead, Plaintiff extracts her standard from
the Tenth Circuit case Taylor v. Tulsa Tribune Co., which arose from an appeal from the
Northern District of Oldahoma. 5 There the Tenth Circuit stated, "And any acts or words which
show a clear intention on the part of the employer to dispense with the services of the employee,
and which are equivalent to a declaration that the services will no longer be required or accepted,

4

Mot. for Summ. J. and Supporting Mem., filed Sep. 15,2014 (CM/ECF No. 51), at v.

5

Pl.'s Mem. in Opp'n to Defs.' Mot. for Summ. J., filed Nov. 24,2014, CM/ECF No. 75, at x-xi
[hereinafter Opposition].

2

are sufficient to effect a discharge." 136 F.2d 981, 983 (lOth Cir. 1943). One case the Tenth
Circuit cites for this proposition, however, is Bodmer.
The court notes that even if Plaintiff needed only to show "clear intention on the part of
the employer to dispense with the services of the employee" to show termination, Plaintiffwould
have still failed to meet this burden. Plaintiffs evidence, under either standard, cuts against
termination. The court draws on Plaintiffs own deposition testimony:
Q.

Okay. Walk me through what happened on February 9th,
your last day at National Auto Plaza.

A.

Work just like nonnal.

Q.

Yeah. When did you arrive?

A.

I don't recall. Probably, my guess, 9:30, 9:00, 9:30. I don't
recall. And Kolby was on maternity leave with his wife;
they had just had their second child. And I quite frankly, I
didn't expect him in the office that day. And when I saw
e-----------~---------"'h=im=-=i=n~th=e=--=-o=ffi=Ic'-"e_-_-_c_w'-"e=ll, actually, let me reiterate, let me g"'-o_ _ _ _ _ _ _ _ __
back. That morning, after all -- everything that had
happened with Kory, his brother, and things were going in
a direction I did not approve of, I told Stephanie Gower that
morning: I'm going to be writing an e-mail to Kolby, and if
anything happens to me you'll know why. And that was
first thing in the morning. And then when I saw him in the
office, again I was not expecting him. He was on maternity
leave. He didn't call me and tell me he was coming in. I
sent the e-mail. And after -- after him calling me into his
office and berating me, going down -- again, going down a
timeline. He started out as: This isn't working for me. And
berated me, and I was really tired of conflict with him,
battles with him, being yelled at. And he said: What do
you have to say? And I said: This isn't worldng for you.
And I got up and left. I did actually try going back into his
office. I don't know how much time had passed, and he had
already left by that point. Because quite frankly, I was
pretty freaked out.

Q.

Okay. What happened next?
3

A.

Stephanie came in and she said: Kolby said that you -- not
quit -- resigned. And I said: Oh, no, I did not resign.

Q.

Okay. So you went over to his office, and you mentioned
earlier that he berated you. Can you just give me the detail
of what exactly was discussed during this five-minute
conversation?

A.

I reiterate, the first thing he said was: This isn't working for
me. He went down on his cell phone a time frame of -- I
don't know, I'm guessing someone filling him in on my
attendance or when I was late, that was my guess. And he
kept going down this timeline or a time frame, excuse me.
And just kept going on and getting louder and louder. And
then after he was done going through that, he said:
What do you have to say? And I said: I guess this isn't
working for you. And I wall<:ed out.

Okay. You indicated that he went down some kind of
timeline of your attendance. And he was going on and it got
louder and louder. What specifically was he saying during
~~~~----------=th=i=-s_geriod of time?
Q.

A.

That was it. I -- I just let him go, and he just kept getting
louder. He was sitting back in his chair like this with his
cell phone, just like this. And I knew there was nothing
good going to come out of that conversation, so I just let
him go.

Q.

What do you mean you let him go? You let him keep
talking?

A.

Yeah.

Q.

Okay. But what specifically was he saying to you?

A.

He was just saying that the time frame of-- you got here at
this time; you got here at this time, et cetera. That's what
the whole conversation was.

Q.

Okay. So when you say "he kept going on and he got
louder and louder" what -- all that he was saying to you
4

from his first statement, "this isn't working for me," was the
detail on this log ofwhen you were going into the office; is
that right?

A.

Right. He made a comment about I was a no-call -- or noshow, no-call. And I said, no. And he said, shut up, and
kept going. Listen, and that's what he said. And I just said
okay. So I just --kept talking, that was it. That was it.

Q.

You don't recall any other comments that he made during
this conversation?

A.

Nope. Other than the one I just told you.

Q.

Okay. Did Kolby Hansen tell you to pack your things?

A.

He did not tell me to pack my things.

Q.

Did he tell you you're fired or you're out of here or
anything else along the lines of you being terminated?
Did he say anything of that nature?

A.

He did not say anything like that.

CM/ECF No. 75-1, at 76:7-77:17; 85:1-86:21; 90:16-22 (emphasis added).
Plaintiffs testimony does not demonstrate there was a clear intent to terminate her. In
fact, Plaintiffs testimony suggests that Plaintiff resigned from her employment with Defendant
National Auto Plaza. As Plaintiff testifies, Defendant Hansen never told her she was terminated
or asked her to pack her things and leave. It was upon Plaintiffs own initiation and volition that
Plaintiff walked out of the February 9, 2012 meeting, packed up her belongings, and left the
workplace.
Having failed to demonstrate a termination occurred, the court need not address whether
there was a violation of public policy in order to grant summary judgment against Plaintiffs

5

wrongful tennination claim. However, the court notes that the wrongful termination claim also
fails on this front.
Plaintiff argues she was "tenninated" for refusing to follow Defendant Hansen's direction
to pay his brother, Kory Hansen, in checks payable to cash for Kory' s buyer fees. Plaintiff
contends Defendant Hansen did so in order to "hide his brother's income from state and federal
authorities. " 6 Plaintiff argues her termination violated the public policy of citizens paying taxes. 7
Plaintiff cites to Peterson v. Browning. 8 Peterson states that "an attempt to coerce an employee
to violate the state tax law and federal customs statute at issue contravenes the clear and
substantial public policies of the state of Utah." 832 P.2d 1280, 1283 (Utah 1992). However,
Plaintiff points to no state tax law provision or other state law statute that prohibits an employer

i

I

from paying costs, buyer's fees or otherwise, in checks payable to cash. In fact, Plaintiff
acknowledges that giving an amount of money in the form of a check payable to cash is not

-~~~~~~---~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~--~~~
9

unlawful. And Plaintiff admits that there is no provision of the tax code that requires people be

paid in cash or not in cash. 10 In Peterson, the plaintiff alleged he was terminated for refusing to
falsify tax and customs documents. I d. Plaintiff in the present case makes no such allegationshe was not asked to falsify tax documents. And Plaintiff has not provided evidence that
Defendants submitted or attempted to submit false tax documents to tax authorities. In fact,

6

Id., at 3-4.

7

Hr'g 12/05/14 Tr., 36:11-15; 37:8-25; 41:17-22.

8

0pposition, supra note 5, at 3.

9

Hr'g 12/05/14 Tr., 39:7-14.

10

Jd., at 40:20-41:6.

6

Plaintiff cannot even demonstrate that Defendants mischaracterized the payments to Kory
Hansen in National Auto Plaza's own books. 11
In a portion of Peterson not quoted by Plaintiff, the Peterson court stated as follows:
This court has indicated that it will narrowly construe the public
policies on which a wrongful tennination action may be based.
Caldwell v. Ford, Bacon & Davis Utah, Inc., 777 P.2d 483, 485
(Utah 1989); Berube, 771 P.2d at 1043. It is not the purpose of the
exception to eliminate employer discretion in discharging at-will
employees, Hodges, 811 P.2d at 165, or to impose a requirement of
"good cause" for the discharge of every employee. Accordingly,
we hold that the public policy exception applies in this state when
the statutory language expressing the public conscience is clear
and when the affected interests of society are substantial. The
identification of clear and substantial public policies will require
case-by-case development.

Id., at 1282. Plaintiff does not point to statutory language clearly expressing a public conscience
against employers making payments in checks payable to cash or any other means the employer
deems appropriate.- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -Without sufficient evidence of either a termination or a violation of public policy, the
court finds summary judgment is warranted for the wrongful termination claim.

B. Violation of the FMLA
Plaintiff argues Defendants violated the FMLA by interfering with her right to FMLA
leave. 12 Although Plaintiff acknowledges she never asked for FMLA leave, 13 she argues that an
employee does not have to do so to trigger employer duties, looking to the Tenth Circuit's

11

Jd., at 40:4-7.

12

0pposition, supra note 5, at 11-14; Compl., filed Sep. 30,2013 (CM/ECF No.2), at para. 36-39.

13

Shauna Nebeker Deposition, CM/ECF No. 75-1, at 152:23-153:5.

7

opinion in Tate v. Farmland Indus., Inc. 14 In Tate, the Tenth Circuit reversed a lower court's
dismissal of a PMLA claim and stated the following:
The district court also reasoned that Plaintiff failed to allege he
requested PMLA benefits from Defendant. The district court
concluded such an allegation was necessary to maintain an action
under the PMLA because "[i]t is axiomatic that defendant cannot
have denied benefits that were never sought." The PMLA,
however, does not require a covered employee to specifically ask
for PMLA benefits. An employee need not expressly assert rights
under the PMLA or even mention the PMLA. See 29 C.P.R. §§
825.302(c), 825.303(b); Manuel v. Westlake Polymers Corp., 66
P.3d 758, 761-64 (5th Cir.1995). If the employer is on notice that
the employee might qualify for PMLA benefits, the employer has a
duty to notify the employee that PMLA coverage may apply. See
29 C.P.R. § 825.208(a). Pending its review of Plaintiffs health
status, Defendant placed Plaintiff on involuntary sick leave. Thus,
Defendant was clearly on notice that Plaintiff might qualify for
PMLA benefits since Defendant triggered Plaintiffs leave. Given
Plaintiffs allegation that Defendant placed him on sick leave,
Plaintiff need not allege he provided Defendant with notice of his
rights under the PMLA.
268 P.3d 989, 997 (lOth Cir. 2001) (footnote omitted).
While Plaintiff is correct that she did not have to specifically ask for PMLA leave, it is
important to note the Tenth Circuit's qualifier in the Tate decision: "[i]f the employer is on

notice that the employee might qualify for FMLA benefits, the employer has a duty to notify
the employee that PMLA coverage may apply." The Tenth Circuit revisited this point in Howard

v. Garage Door Group, Inc., in an unpublished opinion:
An employer, however, is obligated under§ 2615(a) to specifically
inform an employee of his or her right to PMLA leave only when
the "employer is on notice that the employee might qualify for
PMLA benefits .... " Tate, 268 P.3d at 997 (emphasis added). At a
minimum, this requires that the employer be on notice that the
employee wants leave. This notice can arise from verbal
14

0pposition, supra note 5, at xxxiii.

8

notification from the employee, see, e.g., 29 C.F.R. § 825.302(c)
("An employee shall provide at least verbal notice sufficient to
make the employer aware that the employee needs FMLAqualifying leave, and the anticipated timing and duration of the
leave.") It could also be inferred from an employer's own act of
placing the employee on sick leave, Tate, 268 F.3d at 998 ("Given
Plaintiffs allegation that Defendant placed him on sick leave,
Plaintiff need not allege that he provided Defendant with notice of
his rights under the FMLA").
136 F. App'x 108, 114 (lOth Cir. 2005).
In the present case, the court finds Plaintiff failed to place Defendants on notice that
Plaintiff had a serious health condition that warranted FMLA leave. Plaintiff tries to use various
fonns of evidence to demonstrate notice. But, in each case, the evidence is insufficient.
Plaintiff points to a document she typed, printed, and brought with her to a March 2011
meeting with Defendant Hansen. 15 The document contains ten paragraphs outlining several of
Plaintiffs frustrations. 16 Of the approximately sixty lines of text, Plaintiff points to two
sentences in separate paragraphs that state "My stress level has increased dramatically because of
these issues which, and with what I have gone through physically, it's obviously had a negative
impact on me," and "Obviously, it's been my health and well-being that has been affected by
these and other issues that I've literally had no control over because of your decisions." 17
However, despite bringing this paper with her to the March 2011 meeting, Plaintiff
acknowledged in her deposition the limitations of her actual conversation with Defendant
Hansen during the meeting:

15

!d., at xxxix, para. 9.

16

CM/ECF No. 75-6; see also Shauna Nebeker Deposition, CM/ECF No. 75-1, at 44:17-46:10.

17

CM/ECF No. 75-6, para. 9, 10.

9

Q.

Okay. Did you discuss in this conversation you had in
March of 2011, any of your medical reasons that you were
dealing with at that point in time?

A.

No. That -- like I said, I think in the very beginning that
maybe was the topic he wanted to discuss. But it never
came to fruition until the very end until we were getting up,
and he said: I need you to be here. And I said: I'm trying,
I'm doing my best. But it was nothing specific. It was 'more
based upon what I had written down because of the
frustrations that I was dealing with.

Q.

So again, what you had written down did not necessarily
pertain to a medical condition. It was more frustration with
what you were dealing with at work?

A.

I know -- I think it touched on some of the medical
problems. I just honestly do not remember verbatim what it
said.

And just to confirm, the extent to which you discussed a
medical condition with Kolby Hansen during that March of
2011 meeting to your perception was simply Kolby Hansen
_ _ _ _ _ _ _ _ _ _ _ _ _s=aying_you need to be here and your responding that y-""o-""u_ _ _ _ _ _ _ _ __
were doing the best you could do; is that correct?
Q.

A.

That's correct.

Q.

Did you request during that March of 2011 meeting that
Mr. Hansen -- that Kolby Hansen provide some -- some
other type of accommodation to you in connection with
your employment, such as fewer hours, working from home
or anything else along those lines?

A.

I didn't feel I could.

Q.

Okay. And why is that?

A.

Because I was asked to be there: I need you here.

CM/ECF No. 75-1, at 46:11-47:20.

10

Plaintiff also argues Defendants knew she had migraines, anxiety, and that she had
surgery to have an ovary taken out, pointing to her own deposition (CM/ECF No. 75-1, at 149:1151 :20) and Defendant Hansen's deposition (CM/ECF No. 75-3, at 96). 18 But these deposition
excerpts only create a nebulous suggestion of health-related conversations between Plaintiff and
Defendant Hansen. They are insufficient to put Defendants on notice that Plaintiff had a serious
health condition and may be entitled to FMLA leave.
Further, Plaintiff argues it was common knowledge around the office that she was
missing work for health issues. 19 Plaintiff points to a September 23, 2014 declaration by fellow
employee Verity Curley, which states as follows:
Ms. Nebeker routinely talked about her ongoing health issues,
including her TMJ, depression, and migraines. Everyone in the
office knew Ms. Nebeker was not well because she had quite a bit
of absenteeism over those issues. People in the office would say,
"Shauna is sick again," and knew she was missing work because of
her health issues.
CM/ECF No. 75-7, at 2. But in an earlier, April25, 2014, declaration, Curley stated that, while
Plaintiff occasionally complained about migraines and jaw soreness, she was unaware Plaintiff
had any type of diagnosed medical condition, she was unaware of any request from Plaintiff to
take time off for her claimed migraines or jaw soreness, and she believed National Auto Plaza
would not have denied any request for extended time off due to medical reasons. CM/ECF No.
77-6, at 2-3.

18

20

In addition to what seem to be inconsistencies between Curley's two declarations,

0pposition, supra note 5, at xxxix, para. 10.

19

Id., at xxxix, para. 11.

20

In the April 25, 2014 declaration, Curley also stated that Defendant Hansen was required to be frequently
out of the office. CM/ECF No. 77 .. 6, at 2-3. If Defendant Hansen was frequently absent, it is unclear to the court that
Defendant Hansen could even be aware of Plaintiffs medical issues to the same limited extent Curley was.

11

the idea that Plaintiff's serious health condition was common knowledge in the office seems
inconsistent with fellow employee Stephanie Gowers's declaration. Therein, Gowers states,
"Near the end of Shauna' s employment, she missed at least one full day of work each week and
was commonly late-typically claiming some vague excuse (e.g., "she didn't sleep well," "she
didn't feel well," or "she had a headache" etc.)." CM/ECF No. 77-4, at 2. Further, Gowers states,
"At one point, I told Shauna that she should consider talking to Kolby Hansen ("Kolby") about
her unexplained absences, but Shauna refused and stated that she did not want Kolby knowing
about her personal life." Id.
Plaintiff also argues Defendants had notice Plaintiff may be entitled to FMLA leave by
pointing to evidence that Defendant Hansen saw her at work wearing sunglasses? 1 However,
Plaintiff has not provided evidence that Defendant Hansen knew she was wearing sunglasses for
migraines. 22 But Plaintiff did provide evidence through her deposition that she thinks "everybody
at National has shown up to work hung over at one time or another. It's pretty prevalent that-- or
notorious, I should say, in the dealership or auto industry that people drink, other -- you know,
choose to do other things. It's pretty prevalent in this industry. So yes, I have shown up hung
over before." CM/ECF No. 75-1, at 155:17-23.
Finally, Plaintiff also argues Defendant Hansen gave her a gift certificate for a massage.
But, again, this evidence has nominal value in demonstrating Defendants had notice that Plaintiff
had a serious health condition that might entitle her to FMLA leave. While Plaintiff initially

21

Jd., at xxxix, para. 12.

22

The Kolby Hansen deposition testimony Plaintiff points to indicates that Defendant Hansen
"remember[ ed] her wearing sunglasses sometimes at work," but does not indicate what he knew, or even thought,
the impetus for such behavior was.

12

asserted that when Defendant Hansen gave her the gift certificate he said he hoped the massage
would help with her headaches, this was later refined:
Q.

Did he tell you that he hoped it would help with headaches
or migraines, or do you not recall?

A.

I don't recall. Just the fact that he got the gift certificate, I
thought was actually really kind.

CM/ECF No. 75-1, at 66:22-67:2. The issue was briefly touched upon in Defendant Hansen's
deposition:
Q.

Did you give Shauna a gift certificate to get a massage at
some point?

A.

I did.

Q.

Why was that?

A.

Because I'm a nice guy.

Q.

You weren't aware that she was having some health
problems and that might help?

A.

She might have been complaining about her back and I
said, hey, I've got a great lady; let me buy you a massage.

Q.

When was that?

A.

I don't recall. It's been a lot of years. I don't know. Three
years ago, three and a half years ago. I don't recall.

~~~====~~~~~~~~~~-

CM/ECF No. 75-3, at 99:14-100:2.
The evidence Plaintiff has provided, taken individually or collectively and viewed in a
light most favorable to the Plaintiff, insufficiently demonstrates Defendants had notice of a

13

possible serious health condition that could warrant FMLA leave. As such, the court finds the
FMLA claim fails and summary judgment should be granted. 23

C. Violation of the ADAAA
Plaintiff argues Defendants discriminated against her and violated the ADAAA in two
ways: (i) by tenninating Plaintiff; and (ii) by failing to make reasonable accommodations for her
conditions.

24

As previously discussed, there is insufficient evidence that Plaintiff was terminated.

Therefore, the court examines whether Defendants failed to make reasonable acc01mnodations
for Plaintiffs conditions.
Defendants' counsel asked Plaintiff during deposition about the reasonable
accommodations she wished Defendants would have made for her, and her response indicates
she wished they had given her emotional support and an opportunity to find out what was
medically wrong with her:
Q.

As you look back on your experience at National Auto
Plaza, what would you have wanted National Auto Plaza to
do differently for you with regard to your medical
conditions?

A.

I think if I could have had the time off consecutively to find
someone to help me. I mean, in all -- when I went to -basically, it took a blood test. If somebody would have just
helped me -- well, it was an in-depth blood test. It wasn't
just an every-day, run-of-the-mill blood test. It took more
than just that. If I would have been -- had that opportunity,
I would have been able. I think a lot of not knowing what
was going on was -- that just sucked. Because people think

23

As further support of its decision to grant summary judgment on Plaintiff's FMLA claim, the court notes
Plaintiff's admission that she continued to receive a regular salary from Defendants throughout her employment.
Plaintiff acknowledged that whenever she took time off, whether for good reasons or otherwise, her checks
continued as normal and her pay was not docked. Hr'g 12/05/14 Tr., 61 :20-62:3; 62: 14-18; 75:15-19.
24

Compl., filed Sep. 30, 2013 (CM/ECF No.2), at para. 46-48; Opposition, supra note 5, at xxx.

14

whatever they'd like to. But you know in your heart you
feel like you're crazy but you're not.
Q.

Uh-huh (affirmative).

A.

And I think had I been given that opportunity to find out
what was wrong. Without going to the same people, if I
could have found whom I found after I left and given that
chance, I think I could have been recuperated and been so
much better so much sooner. However ifKolby would have
or could have understood that and allowed that, I think that
part of it and the physical part of it would have done
wonders.

Q.

And I'm not sure I follow you. What specifically did you
want National Auto Plaza to do in that regard? Did you
want them to find a physician for you who was suitable?
What did you want them to do?

A.

No. To allow me to find somebody. Because I kept going to
the same places, asking what's going on? You're my
internist, you should know more what's going on. Tried
seeking out the TMJ. Everything kept treating a symptom.
And I just knew that there was more to it, but I'm not a
medical person. I didn't know. But I knew something wasn't
right. And to be given the time to find that, to find someone
that could help me and to know I had that support would
have been gigantic. I had very little support at that time.
And when you don't feel good and on top of it you don't
have support, it's just really awful. It's very lonely. It's very
alienating. And you're trying to do the best you can do, and
you're not getting answers. And it's the most fmstrating
thing.

Q.

When you say "support," do you mean support from
National Auto Plaza and what support are you referring to?

A.

I think just emotional support. K.olby was -- I wanted so
much success. I mean I really did especially after Lloyd
passed away, I really wanted -- things were going so well.
And I felt like it got to the point of where he was -- if I
didn't think it, his actions spoke louder. Because I felt he
was so glad he berated me in front of people even. It's like
he couldn't hide this anger. For me, that's what I thought it
15

was, was anger. And if I would have known that he would
have supported that and said, you know what, I'm not sure
what's going on either but take some time off. Why don't
you go ahead and seek that help. You have no idea what
that would have done. It would have been -- it would have
been awesome. But I didn't feel like I could leave because
he strenuously kept telling me: You need to be here; you
need to be here.
CM/ECF No. 75-1, at 158:24-161:15.
Critical to this analysis, however, is the very next question and answer exchange in
Plaintiffs deposition:

Q.

Did you explain to him that you needed time to know what
the problem was, that you needed time to seek out a
different doctor because the ones you were dealing with
weren't giving you the answers that you needed? Did you
explain that to him?

A.

I didn't feel like I could. It was always: You need to be
here. Clearly it didn't matter.

Id., at 161:16-23. This response by Plaintiff is consistent with her other statements that she
never made a request for FMLA leave and that, while she took medical leave from time to time,
there was nothing in addition that she asked for that was not provided to her. 25 It is also
consistent with the statements of Plaintiffs counsel made during the summary judgment hearing
that Plaintiff never asked Defendants for an accommodation. 26

It is one thing to argue that Defendants knew about Plaintiffs health conditions. But it is
another to argue that Defendants knew she needed more time off from work in addition to the
time she had already taken. Giving Plaintiff the benefit of the doubt and assuming Defendants
25

Shauna Nebeker Deposition, CM/ECF No. 75-1, at 152:23-153:5; see also Opposition, supra note 5, at

26

Hr'g 12/05/14 Tr., 51:8-15.

XXX.

16

knew she had serious health conditions, it remains difficult to argue Defendants inadequately
accommodated Plaintiff when Plaintiff neither requested additional time nor communicated to
Defendants she needed additional time to seek further medical help.
Further, the court notes that Plaintiff acknowledges that Defendants allowed her to have
runners come to her house to complete tasks that needed to be done if she was not able to come
to the office. 27 Plaintiff has not identified an instance where she needed a runner to come to her
house and one was not provided.
The court therefore finds that the undisputed facts indicate Defendants did not fail to
reasonably accommodate Plaintiff's conditions. As such, the court finds Defendants' motion
should be granted for this cause of action.

27

0pposition, supra note 5, at xxix.

17

II. CONCLUSION
Having detem1ined that (i) Plaintiff was not tenninated; (ii) there was no violation of
public policy, even if a termination had occurred; (iii) Plaintiff failed to place Defendants on
notice that Plaintiffhad a serious health condition that warranted FMLA leave; and (iv)
Defendants did not fail to reasonably accommodate Plaintiffs conditions, the court finds that
summary judgment is warranted.
As such, the court orders that Defendants' summary judgment motion is GRANTED and
Plaintiffs claims are DISMISSED WITH PREJUDICE.
Let judgment be entered accordingly.

,J.v.
DATED this 1_1_ day ofFebmary, 2015.

18

}