Opinion
HHDCV136046276S
04-12-2016
Steven Colagiovanni v. Valenti Motors, Inc
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Nina F. Elgo, J.
Before this court is a motion for summary judgment filed by the defendant, Valenti Motors, Inc. The plaintiff is a former employee of the defendant, who has filed this lawsuit alleging in count one a cause of action asserting lost wages and in count two, violation of the Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. § 2601 et seq. (2006). The defendant seeks summary judgment as to count two claiming that there is no genuine issue of material fact with respect to their claim that the plaintiff is neither an eligible employee nor has he given the requisite notice for leave to his employer pursuant to the requirements of FMLA.
" Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried . . . However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citations omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012).
" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008). " As the party moving for summary judgment, the [movant] is required to support its motion with supporting documentation, including affidavits." Heyman Assocs. No. 1 v. Ins. Co. of Pa., 231 Conn. 756, 796, 653 A.2d 122 (1995). " Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Marinos v. Poirot, 308 Conn. 706, 712, 66 A.3d 860 (2013). " [T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment . . . [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist." (Internal quotation marks omitted.) Keller v. Beckenstein, 117 Conn.App. 550, 557-58, 979 A.2d 1055, cert. denied, 294 Conn. 913, 983 A.2d 274 (2009).
" On a motion by [the] defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint . . . It necessarily follows that it is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial." (Internal quotation marks omitted.) Mott v. Wal-Mart Stores East, LP, 139 Conn.App. 618, 626, 57 A.3d 391 (2012). " In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Patel v. Flexo Converters U.S.A., Inc., 309 Conn. 52, 57, 68 A.3d 1162 (2013).
" The FMLA creates a series of substantive rights or entitlements for eligible employees . . . To ensure the availability of these rights, [29 U.S.C. § 2615(a)(1)] makes it unlawful for an employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter . . ." (Citations omitted; internal quotation marks omitted.) Wanamaker v. Town of Westport Bd. of Educ., 11 F.Supp.3d 51, 68 (D.Conn. 2014). " The Second Circuit has recognized two distinct FMLA causes of action-interference claims based upon § 2615(a)(1), and retaliation claims based upon § 2615(a)(2) and § 2615(b) . . . With interference claims, the issue is simply whether the employer provided the employee with the entitlements set forth in the FMLA." (Citations omitted; internal quotation marks omitted.) Id., 68-69.
" [U]nder 29 U.S.C. § 2615(a)(1), a plaintiff must establish five elements: (1) that she is an eligible employee under the FMLA; (2) that the defendant is an employer as defined by the FMLA; (3) that she was entitled to leave under the FMLA; (4) that she gave notice to the defendant of her intention to take leave; and (5) that she was denied benefits to which she was entitled under the FMLA." Id., 69. " In order to be eligible for protection under the FMLA, an employee must work 1250 hours in the twelve months prior to the beginning of his or her medical leave." Kosakow v. New Rochelle Radiology Associates, P.C., 274 F.3d 706, 715 (2d Cir. 2001). See also 29 U.S.C. § 2611(2)(A); 29 C.F.R. § 825.110(a).
The plaintiff does not dispute that he was employed from October 2012 to July 2013. The plaintiff admits that, therefore, he was not employed by the defendant for at least twelve months and did not have at least 1, 250 hours of service during that period.
Moreover, for purposes of this motion, there is no dispute that on May 21, 2013, the plaintiff informed Linda Thibault, office manager of the defendant, and Lou Hardt, service director employed by the defendant, that he had a back injury that would require surgery. On May 28, 2013, the plaintiff told James Ekblade, general manager of Valenti, as well as Bonnie Valenti, the owner's wife, that he had a back injury that would require further surgery. The plaintiff, however, admits that he never referenced his intention to use medical leave pursuant to FMLA. He argues, however, that the " defendant reasonably understood that the requested leave would be taken more than four months in the future" thereby occurring when he would have been qualified for FMLA leave.
From these facts, the plaintiff argues that a trier of fact could conclude that he gave advance notice of his need for qualifying leave and that the defendant preemptively terminated him, in violation of the FMLA. In advancing this theory of preemptive termination, the plaintiff cites to Pereda v. Brookdale Senior Living Communities, Inc., 666 F.3d 1269, 1273 (11th Cir. 2012), for the proposition that the FMLA protects pre-eligible employees pursuant to 29 C.F.R. § 825.110(d), and by the time he would have taken leave, he would have been eligible.
First of all, the court cannot conclude, even in the light most favorable to the plaintiff, a trier of fact could conclude that the " defendant reasonably understood that the plaintiff would be taking FMLA leave" sometime more than four months in the future. Moreover, even if it was a plausible conclusion from these facts, the claim is so inherently speculative that it does not amount to advance notice as required by the FMLA.
Moreover, this court is not persuaded that Pereda is an appropriate interpretation of FMLA's eligibility requirements and in any event, is persuaded that the Second Circuit decision in Woodford v. Community Action of Greene County, Inc., 268 F.3d 51 (2d Cir. 2001) is dispositive. In Woodford v. Community Action of Greene County, Inc., the court made clear that until an employee has been employed for one year and at least 1, 250 hours of service, he or she is not eligible for the protections afforded by the FMLA. Id., 57.
In the Woodford case, the plaintiff had been employed by the defendant for twelve years, and her time sheets showed that she had worked 816.5 hours in the last year. On November 18, 1997, she made a request for FMLA leave, and asked that her leave be effective as of the previous day. On November 19, 1997, the defendant provided the plaintiff with a form that indicated that she was eligible for FMLA leave, but noted that because the defendant had determined that the plaintiff was a " key employee, " the plaintiff would not be reinstated to her former position unless she returned to work by December 1, 1997. The plaintiff did not return by that date, and in fact postponed her return until January 16, 1998, and the defendant hired an interim replacement on December 2, 1997. On January 15, 1998, the defendant notified the plaintiff that it would not reinstate her. Id., 52-53.
The plaintiff claimed, among other things, that the denial of her reinstatement violated the FMLA, but the district court granted summary judgment against the plaintiff on the ground that she was not eligible for FMLA leave. This was so because her time sheets showed that she had not worked a minimum of 1, 250 hours for the defendant in the past year. Id., 53. On appeal, the plaintiff challenged the district court's ruling, arguing that the defendant could not contest her FMLA eligibility because it had provided her notice of her eligibility pursuant to the then-current version of 29 C.F.R. § 825.110(d), and that regulation prohibited an employer from challenging an employee's eligibility once the employer notified the employee that she was eligible for leave. Id. The defendant argued that the regulation was invalid because it contravened the language of the statute it was meant to implement. Id., 53-54.
The court noted that the then-current incarnation of 29 C.F.R. § 825.110(d) stated " that if an employee lacking the minimum work hours to qualify for leave under the Act requests leave, the employer must either confirm the employee's eligibility based upon a projection that the employee will be eligible on the date leave would commence [because the required hours will have been worked in the interim] or must advise the employee when the eligibility requirement is met. If the employer confirms the eligibility at the time the notice for leave is received, the employer may not subsequently challenge the employee's eligibility." (Footnote omitted.) Id., 54-55.
The Second Circuit invalidated 29 C.F.R. § 825.110(d) on the ground that it " impermissibly expands the scope of eligibility . . . because it compels employers to treat as eligible employees who have not met the twelve month/1, 250 hours requirement based on the regulation's additional set of notice requirements. Because 29 C.F.R. § 825.110(d) would permit, under certain circumstances, employees who have not worked the statutorily defined minimum hours to become eligible for the Act's benefits, it contradicts the expressed intent of Congress and therefore is invalid." Id., 55. The court explained that " [t]he regulation exceeds agency rulemaking powers by making eligible under the FMLA employees who do not meet the statute's clear eligibility requirements . . . [T]he regulation makes it possible for employees who have worked a negligible number of hours in the twelve months preceding the requested leave to become eligible employees under the Act, negating the statute's minimum hours requirement." Id., 57.
In holding that the regulation was invalid because it had the potential to force employers to deem employees eligible for FMLA leave before they met the minimum length of employment and hours requirements, the Second Circuit made clear that an employee is not eligible until such time as he meets those requirements. Because this court concludes that the decision of Woodford v. Community Action of Greene County, Inc. is dispositive, the court finds that the plaintiff not only failed to give advance notice of his request for leave, but even if he had given notice of his request for leave, he was not eligible for FMLA leave at the time he theoretically requested it.
The court grants the motion for summary judgment as to count two.