Felix v. Sun Microsystems, Inc.

Full title: DONALD L. FELIX, et al. v. SUN MICROSYSTEMS, INC., et al

Court: United States District Court, D. Maryland

Date published: Apr 12, 2004

CIVIL NO. JFM-03-1304 (D. Md. Apr. 12, 2004)

Opinion

CIVIL NO. JFM-03-1304

April 12, 2004

MEMORANDUM

J. FREDERICK MOTZ, District Judge

Plaintiffs Donald L. Felix ("Donald") and his wife Kimberly R. Felix ("Kimberly") bring this action against Defendants Sun Microsystems, Inc. ("Sun"), Michael Mangiafico, and James Yourishin, seeking damages for alleged employment discrimination. The complaint originally contained nine counts. On September 11, 2003, I court dismissed counts IV, V, and VI in their entirety, as well as portions of counts VIII and IX. On October 2, Plaintiffs voluntarily dismissed Count III with prejudice. The remaining counts or portions thereof include: (1) Count I — unlawful termination of Donald in violation of the Americans with Disabilities Act ("ADA"), against Sun and Yourishin; (2) Count II — unlawful termination of Donald in violation of the Family Medical Leave Act ("FMLA"), and failure to restore him to an equivalent position upon return from medical leave, against Sun and Yourishin; (3) Count VII — intentional discrimination against Donald in violation of the ADA and FMLA, against Yourishin; (4) Count VIII — retaliatory adverse personnel actions against Kimberly, under the ADA and FMLA, and unlawful termination of Kimberly under the FMLA, against Sun; and (5) Count IX — intentional discrimination against Kimberly in violation of the FMLA, against Mangiafico.

The following motions are now pending: (1) Plaintiffs' motion for default judgment against Yourishin with respect to Count VII; (2) cross-motions for partial summary judgment by Plaintiffs and Sun with respect to Counts I, II and VIII; and (3) Mangiafico's motion for summary judgment with respect to Count IX. For the reasons set forth below, Plaintiffs' motion for default judgment against Yourishin and partial summary judgment against Sun will be denied, Sun's motion for partial summary judgment will be granted, and Mangiafico's motion for summary judgment will be granted.

I. MOTION FOR DEFAULT JUDGMENT

While Yourishin is named as a defendant in counts I, II, and VII, Plaintiffs have only moved for default judgment against him with respect to count VII. Plaintiffs allege that Yourishin was properly served with the complaint on July 10, 2003, and that his failure to file an answer or responsive motion entitles them to default judgment under Fed.R.Civ.P. 55. Yourishin justifies his failure to defend by arguing that he was never properly served with the summons and complaint.

A.

James Yourishin was Plaintiff Donald Felix's supervisor when Donald was employed at Sun. From late May to early July of 2003, Brett Libhart, a private process server employed by Plaintiffs, made four attempts to serve Yourishin at his home in Colorado. Libhart claims that on two occasions, no one was home, and on the other two occasions, no one answered the door. On a fifth occasion, on June 4, 2003, Libhart went to Sun's facility in Broomfield, Colorado in an attempt to serve Yourishin there. That day, he spoke to a receptionist who connected him to a paralegal in Sun's legal department in California. It is not clear from Libhart's affidavit what the paralegal may have told him about serving Yourishin.

Approximately one month later, on July 9, 2003, Libhart went to Sun's Broomfield facility again. This time, the security officers working at the facility did not let him enter. Libhart spoke to Mary Harsha, Campus Security Manager for the Broomfield facility, who was employed by Barton Protective Services, a company hired by Sun to provide security for the facility. Libhart claims Harsha told him Yourishin would not come down to accept service. Harsha, on the other hand, states that she told Libhart she could not verify whether Yourishin even worked at Sun, and that she was not authorized to accept service on Yourishin's behalf. Indeed, the affidavits of both Harsha and Yourishin confirm that the two had never met or spoken to one another. Libhart told her the papers had been served at the Sun office in Denver where Sun accepts service for documents on its own behalf, but that the copies served in Denver were incomplete and Sun refused to accept another package there. Upon hearing this information, Harsha told Libhart that she would contact Sun's legal department to inquire about the matter.

Harsha then called Sun's legal department and was told by a paralegal that she could take possession of the papers solely for the purpose of forwarding them to Sun's legal department in California. Later that afternoon, Harsha contacted Libhart and, according to Harsha's affidavit, repeated what the paralegal had told her. Libhart claims, however, that Harsha told him she could accept service on Yourishin's behalf. The next day, Libhart left the complaint with Harsha and completed the Return of Service. Harsha then mailed the papers to Sun's legal department.

B.

Fed.R.Civ.P. 4(e) provides that service may be effected in any judicial district in one of two ways. First, the summons and complaint can be delivered to the individual "personally or by leaving copies thereof at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process." Fed.R.Civ.P. 4(e)(2). Alternatively, service can be effected pursuant to the law of the state in which the district court is located (in this case, Maryland), or in which service is effected (in this case, Colorado). Fed.R.Civ.P. 4(e)(1). The Maryland rules of service directly parallel Rule 4(e)(2): individuals can be served personally or at their home upon a resident of suitable age and discretion, Md. R. Civ. P. Cir. Ct. 2-121(a), or via an agent authorized by law or appointment to accept service. Md. R. Civ. P. Cir. Ct. 2-124(b). Under Colorado law, service may be effected by delivering the papers personally; leaving copies at the person's usual place of abode with any family member over age eighteen; delivering papers to a person's agent authorized by appointment or law to receive process; or leaving papers at the person's usual place of business, "with the person's secretary, bookkeeper, manager, or chief clerk." Col. R. Civ. P. 4(e)(1).

Yourishin's service was ineffective under any of these methods. Libhart clearly did not deliver the summons and complaint to Yourishin personally, nor did he leave them with a suitable person at Yourishin's home. In addition, neither Harsha nor anyone at Sun's legal department was an agent authorized by appointment or law to receive service of process. Harsha and Yourishin did not know each other and had never spoken. Not only had Yourishin not authorized Harsha to accept service on his behalf, but his affidavit also states that he has never authorized Sun to accept service of any complaint against him in his individual capacity. Under the Federal Rules as well as in Maryland, agency by appointment requires actual appointment for the specific purpose of receiving process. Quann v. White gate-Edgewater, 112 F.R.D. 649, 655-56 (D. Md. 1986). Thus, Yourishin's service was improper under both the Federal Rules and the Maryland rules.

Unlike the Federal Rules and Maryland rules, Colorado does not require explicit authorization for an agent to accept service. Southerlin v. Automotive Elec. Corp., 773 P.2d 599, 601 (Col. App. 1989). However, Plaintiffs improperly rely on Southerlin to argue that any person remotely connected to a defendant my have implied authority to accept service on his behalf. In Southerlin, the court found that the defendant's attorney had implicit authority to accept service on his client's behalf because of the unique nature of the relationship between an attorney and client, including the purpose and nature of the attorney's retainer. Id. In this case, Harsha was not Yourishin's attorney, but a security manager at a large facility who did not even share the same employer as Yourishin. Nothing about this relationship, or lack thereof, even remotely compares to that of an attorney and client. Libhart may well have misunderstood what Harsha said about forwarding the papers to Sun, but Plaintiffs cannot reasonably argue that as a professional process server, Libhart could have believed that the relationship between an employee of Sun working in a large facility and a security manager for the facility who worked for a different company lends itself to implicit authorization.

Finally, Plaintiffs mischaracterize the holding in Stubblefield v. Dist. Court in and for the Eighteenth Judicial Dist., 603 P.2d 559 (Co. 1979) regarding the Colorado rule of service at the defendant's place of business. In that case, the papers were delivered to an employee at defendant's place of business who was not the defendant's secretary, bookkeeper, manager, or chief clerk. Id. at 560. However, the employee had accepted service on behalf of the defendant on several prior occasions, and she never denied being the defendant's secretary, even on the occasion at issue. Id. Stubblefield is clearly inapposite here, where there is no argument that Harsha could have held herself out to be Yourishin's secretary, bookkeeper, manager, or chief clerk. Thus, the service of Yourishin was also improper under the Colorado rules.

C.

Because I find that service on Yourishin was ineffective, this court has no jurisdiction over him and default judgment cannot be entered against him with respect to any of the counts in the complaint. Armco, Inc. v. Penrod-Stauffer Bldg. Sys., 733 F.2d 1087, 1089 (4th Cir. 1984). However, even if Yourishin had been properly served, default judgment would still not be appropriate in this case. As a general rule, the law disfavors default judgments. Tazco, Inc. v. Dir., Office of Workers Comp. Program, 895 F.2d 949, 950 (4th Cir. 1990). Still, a district court has discretion to enter default judgments under appropriate circumstances. Essex Constr. Corp. v. Indus. Bank of Washington, Inc., 913 F. Supp. 416, 417 (D. Md. 1995). Some courts have specified certain factors that should be considered in deciding whether to grant default judgments. Among these factors are the amount of money at stake, whether material issues of fact exist, the extent of the party's personal responsibility for failure to defend, the possibility of prejudice to the plaintiffs, and the substantive merit of the plaintiff0's claims. See, e.g., Anchorage Assocs. v. Virgin Islands Bd. of Tax Review, 922 F.2d 168, 177 (3d Cir. 1990); Joe Hand Promotions, Inc. v. Abu Zahri, 969 F. Supp. 849, 850 (N.D. N.Y. 1997).

In this case, Plaintiffs are seeking $2 million from Yourishin under Count VII, which would clearly be a very substantial financial burden on him. Moreover, material issues of fact exist with respect to Donald's claim of unlawful termination under the FMLA against Sun, the only claim that both parties have left for trial. These issues of fact would also exist with respect to the claims against Yourishin in Count VII. As for Yourishin's responsibility for failure to defend, his affidavit states that he never received the papers from Sun or Harsha, nor was he ever notified that Sun or Harsha had accepted service on his behalf. The fact that Yourishin might have known that the case was pending does not validate otherwise improper service when the facts show that he never actually received the summons and complaint. See Armco, 733 F.2d at 1089 (only when the process gives actual notice are the rules of service entitled to a more liberal construction, and even then the rules may not be ignored). With respect to prejudice to the Plaintiffs, because the conduct complained of in Count VII is also charged against Sun in Counts I and II, Plaintiffs still have the opportunity to present the facts surrounding Donald's termination to the court, eliminating any real possibility of prejudice. Finally, the second part of Plaintiffs' claim — unlawful discrimination under the ADA — has already been dismissed by this Court as to the other individual defendant, Michael Mangiafico, because there is no individual liability under the ADA, making half of Count VII wholly lacking in substantive merit.

All of these circumstances are compounded by Plaintiffs' conduct surrounding the filing of this motion. Plaintiffs knew in July 2003 that Defendants' lawyers did not believe Yourishin had been served, and yet, after receiving the return of service from Libhart in August, they did nothing to call Defendants' belief into question until early December, just weeks before filing the motion. Plaintiffs did not respond to Defendants' letter of October 2003 indicating that Yourishin could be deposed in Colorado because he was not a party to the action; they did not claim that Yourishin was properly served until they sent the return of service to Defendants on December 1, 2003; and when Defendants responded to this letter on December 4, 2003, setting forth the deficiencies in Yourishin's service, Plaintiffs failed to respond and opted instead to file this motion on December 31. This behavior is entirely disingenuous, and together with the circumstances of the service, weighs heavily against granting a motion for default judgment, even if Yourishin had been effectively served.

II. DONALD FELIX'S CLAIMS

The remaining claims brought by Donald Felix against Sun are: (1) Count I — unlawful termination in violation of the ADA; and (2) Count II — unlawful termination and failure to reinstate Donald to an equivalent position following medical leave, in violation of the FMLA. Both Plaintiffs and Sun have filed motions for partial summary judgment with respect to these two counts.

A.

Donald Felix was employed by Sun from March 27, 1995 to May 25, 2001. Donald was diagnosed with alcoholism in 1989, well before beginning to work at Sun. He sought treatment from January to February 1989, and again from October to November 1989. He became sober late in 1989 and remained so for approximately ten years. Donald suffered a relapse in 1999-2000, when he began to binge drink for three to four days at a time, every two to three months.

In late 2000, while Donald was working out of Sun's Columbia, Maryland facility, he began missing work commitments and being unavailable to his subordinates. On October 17, 2000, Donald failed to report to work or call to explain his absence. For the next two days, he could not be reached. On October 19, Donald finally left a message at work in which his speech was slurred and incoherent. Subsequently, he began working out of both the Maryland and Broomfield, Colorado facilities. On December 17, 2000, Donald was required to travel to Maryland to attend certain work functions that day and the next day. He failed to appear for these commitments, and for the next two days, did not respond to Sun's repeated attempts to contact him. Finally, on December 19, he was found in his home in such an inebriated condition that he was taken to the hospital for medical attention. He checked himself out of the hospital the next day.

On December 20, Donald and Yourishin met to discuss these incidents. Donald told Yourishin that he had an alcohol problem and was trying to get help. Donald alleges that during this meeting, Yourishin called Donald's alcoholism his "dirty little secret" and stated that he (Yourishin) was upset he had to deal with it. Later that day, Donald was again found in a severely inebriated condition at his home, and he was checked into the hospital once again, remaining there until December 24. In addition, at some point in December 2000, Plaintiffs allege that Yourishin confronted Kimberly about Donald's alcoholism, implying that Kimberly was in denial and making accusations against her.

As a result of these events, Yourishin decided to remove Donald's managerial duties and reassign his reports. Yourishin felt Donald's behavior impacted the business operations of the Government Programs Group that Donald managed and jeopardized Sun's customer relationships. Donald was placed in a temporary job working solely out of Broomfield. The position was as an individual contributor program manager, providing program management support to the Western Enterprise Services Sales Office. The Sun salary grade for the temporary position was an E-12, the same level as Donald's prior position. Yourishin created this temporary position expressly for Donald, believing he preferred to work out of Colorado because that is where Kimberly was located at the time. Yourishin also knew that Kimberly was planning on moving to Sun's Maryland office in the summer of 2001 and that Donald wished to return with her. Donald was informed of his reassignment in a letter from Yourishin dated January 8, 2001, in which Yourishin also warned him that any similar behavior in the future would result in further disciplinary action, including possibly termination.

In March 2001, Donald decided to seek intensive outpatient treatment for his alcoholism. Prior to his departure from work, Donald requested and was granted FMLA leave from March 26, 2001 to May 21, 2001, during which time he was treated at the Crossroads Treatment Facility in Frederick, Maryland. Donald claims that upon telling Yourishin of his intention to take medical leave, Yourishin stated that Donald's behavior and departure were "stressing a lot of people out." Plaintiffs also claim that prior to Donald's departure, Yourishin confronted Kimberly again, allegedly harassing her about Donald's problems.

Before Donald returned from leave, the Operations Manager who reported to Yourishin, Ted Jameson, informed Yourishin that he needed a new program manager position. This position would be at salary grade E-10 and could be based anywhere in the United States. Yourishin felt this would be a good position for Donald to be assigned to upon his return from medical leave. The temporary position that Yourishin had created for Donald in January did not exist upon Donald's return because Sun had no business need for such a position at that time, and this new job would allow Donald to work from the east coast, where Kimberly would soon be. While it was a lower salary grade, Donald would be paid the same salary as he was earning before his departure. Moreover, Sun's salary grades overlap substantially, and employees at the E-10 and E-12 levels are both considered for promotions to Director positions. Moreover, Yourishin and Jameson felt that the E-10 position involved the same sorts of duties and responsibilities as Donald's prior temporary position. Yourishin told Jameson to talk to Donald about the position and develop a written position description. He also instructed Jameson to hire Donald for the position if Donald wanted it.

Donald returned to work on May 21, 2001, reporting to Sun's Maryland facility. The next day, at Yourishin's request, the two met to discuss Donald's options. Yourishin gave Donald three choices: he could resign, use 90 days to find another job because he was a so-called "Tier 3" employee who lacked values,¹ or take the E-10 level job working for Jameson because the temporary position he held before taking leave no longer existed. Yourishin told Donald he had one week to think it over. At that point, Donald claims that the two men discussed what Donald would be doing and where he would be for the next few days. Donald told Yourishin he would be working from home on May 23 and in the Maryland office on May 24 and 25. Yourishin told Donald to contact Jameson about the requirements of the E-10 job.²

1 "Tier 3" was the rating used by Sun during this period for those employees who were in the bottom 10% of all employees with respect to performance. This rating will be discussed further infra Part III. A.

2 Jameson had already called Donald early in the week of May 21 to discuss the position and left a message for him to call back.

Yourishin alleges that on Wednesday, May 23, he attempted to contact Donald numerous times without success. Donald claims he worked from home as he had said he would and left during the day occasionally to attend AA meetings. He admits that he received one message from Yourishin reminding him to call Jameson, and that he called Yourishin back to say he would do so. Yourishin also admits receiving this message, but claims that he called Donald shortly thereafter and again failed to reach him. On Thursday, May 24, Donald went to work at the Columbia office just as he had said he would.³ However, the facility suffered a power failure and in the afternoon the employees were forced to leave because no work could be done. Yourishin allegedly attempted to contact Donald on Thursday as well, again without success. On Friday, May 25, Donald reported to work at the Columbia office again. He called Jameson and began discussing the new position, and while on the line received a call from Yourishin in which he was told he was being terminated for his unexcused absences on May 23 and 24. Donald asked Yourishin to reconsider, but he refused. Donald then called the Human Resources department, which agreed to discuss the matter with Yourishin. During the evening of May 25, Yourishin called Donald at home and told him he would not reconsider the termination. Donald alleges that Yourishin said his taking medical leave for his alcoholism had something to do with his being fired. In addition, Plaintiffs claim that Kimberly heard this whole conversation from a different phone in the house. Donald received a letter from Yourishin dated May 24 stating that the reasons for his termination were his unexcused absences and unavailability on May 23 and 24.

3 Donald's presence at the Columbia office that day is confirmed by other Sun employees.

On May 29, Donald emailed Sheri Bernal in Sun's Human Resources department to request an appeal of his termination. He followed up this email with a letter to Bernal on June 13. In the letter, Donald expressed his belief that he was treated "with prejudice and discrimination because of a medical condition," and that his termination had nothing to do with his performance because he had always been a very good worker. Indeed, Donald's performance evaluations consistently rated him as exceeding the normal requirements for the jobs he held at Sun. The course of Donald's appeal within Sun is not entirely clear, but one can infer that Sun did not reconsider his termination, because on December 27, 2001, Donald filed an EEOC charge against Sun for unlawful termination under the ADA, claiming he was discriminated against for his disability. He listed his wife Kimberly as a potential witness on his charge.

B.

Plaintiffs have filed a motion for partial summary judgment that seeks a determination that certain facts and legal conclusions are not in genuine dispute, but does not attempt to dispose of any particular claim in its entirety. For example, Plaintiffs seek to establish that Donald's alcoholism was a disability under the definition of the ADA and that he was able to perform the essential functions of his job, but they do not seek summary judgment on the entire ADA claim. Similarly, they seek a determination that Donald was not returned to the same position upon his return from FMLA leave and that he reported to work on May 23 and May 24, but they do not seek a ruling from the court that Donald is entitled to recover on his FMLA claims.

Plaintiffs' motion fails for a variety of reasons, the most obvious of which is that it is an improper usage of Fed.R.Civ.P. 56. Rule 56(a) provides: "A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may . . . move with or without supporting affidavits for a summary judgment in the party's favor upon all or any part thereof." In addition, if a summary judgment motion fails and some or all of the claims must be tried, Rule 56(d) allows the court to issue an order specifying that certain facts are uncontroverted so that the trial can focus only on those points in dispute. Plaintiffs argue that the language of Rule 56(a) allows them to seek summary judgment on select elements of claims and not on the entire claim. They also argue that the language of Rule 56(d) is irrelevant because they are not bringing a motion under that section.

Courts have consistently declined to read Rule 56 in the manner suggested by Plaintiffs. See Nye v. Roberts, 159 F. Supp.2d 207, 210 (D. Md. 2001); City of Wichita v. United States Gypsum Co., 828 F. Supp. 851, 868-69 (D. Kan. 1993); Arado v. Gen. Fire Extinguisher Corp., 626 F. Supp. 506, 508-09 (N.D. Ill. 1985). Rules 56(a) and 56(b) (which applies to defendants bringing summary judgment motions) do not allow the "piecemealing" of a single claim. Arado, 626 F. Supp. at 509. The "all or any part" language in Rule 56(a) authorizes the granting of summary judgment with respect to all claims in an action or only some claims in a multiple claim action. City of Wichita, 828 F. Supp. at 869; Arado, 626 F. Supp. at 509. A party is simply not entitled to summary judgment if the judgment would not be dispositive of an entire claim. Id. Moreover, a party may not attempt to use Rule 56(d) to evade the restriction in Rule 56(a) because Rule 56(d) does not authorize independent motions to establish certain facts as true. Nye, 159 F. Supp.2d at 210; City of Wichita, 828 F. Supp. at 869; Arado, 626 F. Supp. at 509. Rule 56(d) is merely a mechanism to salvage some of the constructive results of the judicial efforts made in denying a proper summary judgment motion. Id. In this case, the facts and conclusions Plaintiffs wish to establish would not dispose of any of Donald's claims entirely. As a result, the motion must fail simply for its improper form.

Even if this were not the case, however, the motion would still fail because Plaintiffs have not shown that Donald is entitled to judgment as a matter of law on any of the issues presented. Because the main issues in Plaintiffs' motion are the same as those in Sun's motion, I will now turn to a discussion of Sun's motion. Sun's motion properly employs Rule 56 and thus is easier to address.

C.

Sun seeks summary judgment on Donald's ADA claim in its entirety and on that portion of his FMLA claim relating to the alleged failure to reinstate him to an equivalent position following medical leave.⁴ Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, admissions, and affidavits demonstrate 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 materiality requirement means that only those factual disputes that might affect the outcome of the suit preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In order for there to be a "genuine" issue of material fact, the evidence must be such that a reasonable jury could return a verdict for the non-moving party. Id. If the evidence is merely colorable or is not significantly probative, summary judgment may be granted. Id. at 249-50.

1. ADA Claim

Sun argues that Donald has not stated a prima facie case of discrimination under the ADA because he has not demonstrated that he is "disabled" under the statutory definition. In order to establish discrimination under the ADA, a plaintiff must prove: (1) that he has a disability; (2) that he is otherwise qualified for the employment in question; and (3) that he was excluded from the employment due to discrimination based solely on the disability. Doe v. Univ. of Maryland Med. Sys. Corp., 50 F.3d 1261, 1265 (4th Cir. 1995). Sun claims that Donald fails this test at the first step because he has not shown that his alcoholism is a disability.

Determining whether a person is disabled requires several steps. The ADA defines a person with a disability as someone who either: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such an impairment; or (3) is regarded as having such an impairment. 42 U.S.C. § 12102(2). Focusing on the first test, a physical impairment can be any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory, cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine. 29 C.F.R. § 1630.2(h)(1). A mental impairment can be any mental or psychological disorder, including mental retardation and emotional or mental illness. 29 C.F.R. § 1630.2(h)(2). "Major life activities" include caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. § 1630.2(i). The term "substantially limits" means that the individual is either unable to perform a major life activity that the average person in the general population can perform, or is significantly restricted as to the condition, manner, or duration under which he can perform a particular major life activity as compared to the average person in the general population. 29 C.F.R. § 1630.2(1)(1).

A person does not qualify as "disabled" simply by submitting evidence of a medical diagnosis of an impairment. Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 198 (2002). Rather, an individual must offer evidence that the limitation caused by the impairment "prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives," and that the impact of the impairment is permanent or long-term. Id. Specific factors to consider in determining if an impairment is substantially limiting are the nature and severity of the impairment, the duration or expected duration of the impairment, and the permanent or long term impact of or resulting from the impairment. 29 C.F.R. § 1630.2(j)(2).

It is undisputed that alcoholism is an impairment under the ADA. The real question is whether, under the first definition of "disability," it is an impairment that substantially limits one or more of Donald's major life activities. The Supreme Court has held that the existence of a disability must be determined in a case-by-case manner. Toyota Motor Mfg., 534 U.S. at 198. Thus, the inquiry must be limited to the effect of alcoholism on Donald and not on the general population. It is true that the Fourth Circuit has stated in the past that alcoholism is a disability, without addressing the specific facts of the case. Rodgers v. Lehman, 869 F.2d 253, 258 (4th Cir. 1989).⁵ However, given the holding in Toyota Motor Mfg., this sort of blanket generalization is no longer appropriate.⁶

5 The court actually held that alcoholism was a "handicap" under the Rehabilitation Act, but that term is defined the same way as "disability" under the ADA.

6 The one case in this district citing to the holding in Rodgers and using a similar generalization about alcoholism was decided before Toyota Motor Mfg. Since the Supreme Court's decision, this court has analyzed cases involving alcoholism on an individualized basis. See Baucom v. Potter, 225 F. Supp.2d 585, 591-592 (D. Md. 2002).

The effects of Donald's alcoholism are described in his EEOC documents and his own deposition, as well as those of the doctors and specialists who have treated him over the years. According to Donald, when he is binge drinking, all of his major life activities are impaired, but when he is sober, his ability to perform everyday activities and to work is not limited. In fact, he admitted that during his 10-year sobriety and even during his relapse from 1999-2001, he felt that he performed his job very effectively and that no one would doubt his ability to work successfully. Donald also testified that he has been suffering from irregular sleep habits since May of 2001, and that his inability to sleep for 6-8 hours a night stems from anxiety and fear. He claimed that he often sleeps excessively during the day because of his lack of sleep at night, and that this leads to memory deficits, as well as impaired social and occupational function. While admitting that these problems were worse in the past and that he is not currently suffering from them at his new job, he stated that if he does not get enough rest, his ability to focus, concentrate, and articulate the next day is fairly impaired, making it difficult for him to eat, sleep, and think on a daily basis.

Donald's doctors paint a somewhat more detailed picture of the effects of his drinking. According to Cheryl Green, a treatment specialist who worked with Donald while he was at Crossroads in the spring of 2001, Donald experienced distorted thinking while under the influence of alcohol, as well as occasional black-outs. She also testified that Donald was not able to work while he engaged in binge drinking for 3-4 days at a time every few months, basing this belief on Donald's statement that during his binges, he was "incapacitated." Dr. Ralph Ryback, Donald's psychiatrist, stated that binge drinking usually interferes with people's lives in that they call in sick to work and cannot function well over the period of the binge. He further testified that if a person is binge drinking, he may not be able to function normally, but that an alcoholic can be fully functional, depending on their particular conduct at a given time. Dr. Ryback could not testify as to Donald's functionality during his binge drinking periods because he did not see him at those times. Finally, Dr. Hope McIntyre, Donald's general practitioner, testified as to his condition over the years that she treated him. She has no records or recollection of Donald ever saying that he was so impaired that he could not function, go to work, or care for his children. She recalls that he had some sleep problems, but never diagnosed him as having any particular sleep disorder. Furthermore, Dr. McIntyre felt that Donald's sleep problems were not related to his drinking, but to the fact that he suffered from depression. She also recalled that Donald was anxious about flying and took Valium when he went on airplanes. Dr. McIntyre felt that his memory problems were a result of the medications he took for his depression and anxiety and not a result of his drinking. She testified that she has no record or memory of Donald having any eating problems, sexual dysfunction, or impaired social or occupational function.

Based on this information, Plaintiffs claim that Donald is substantially limited in one or more major life activities. Tellingly, however, they do not specify in which major life activity he is severely restricted. This alone should likely defeat Plaintiffs' claim, but setting that fact aside, the evidence demonstrates that the only times Donald's abilities are ever limited are during his binges. The Fourth Circuit has held that a person is not necessarily disabled every time he suffers from an occasional manifestation of an illness. Equal Employment Opportunity Comm'n v. Sara Lee Corp., 237 F.3d 349, 352 (4th Cir. 2001); Rose v. Home Depot U.S.A., Inc., 186 F. Supp.2d 595, 612 (D. Md. 2002). This holding is consistent with the proposition that in order to be considered a disability, the impact of the impairment must be long-term. 29 C.F.R. § 1630.2(j)(2); Toyota Motor Mfg., 534 U.S. at 198. The intermittent manifestations still need to substantially limit a person's major life activities. Sara Lee, 237 F.3d at 352; Rose, 186 F. Supp.2d at 612. Thus, in a case like this one where the evidence shows that each episode of binge drinking only lasted three or four days, Donald's abilities during any single episode should not be determinative. Rather, the question is what Donald's abilities were as a whole, and whether the binges were of sufficient frequency, intensity, and duration to substantially limit any of his major life activities.

Based on this standard, Donald is not substantially limited in any major life activity. Taking for example the major life activity of working, substantial limitation means that a person must be significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities. 29 C.F.R. § 1630.2(j)(3)(i). The evidence in this case as a whole paints a picture of Donald as a person who struggles to maintain the balance in his life that is necessary to his sobriety, but who has succeeded at doing so for a very long period of time. Donald has admitted that he has been quite successful in his career and consistently rated as an excellent worker. Not only did he perform well at Sun, but he also testified that things have been going very well at his current job with Lockheed Martin.

Furthermore, no doctor or specialist testified that Donald is currently or was ever substantially limited in any major life activity. The only identifiable evidence of any effects on Donald's major life activities from his alcoholism are: his general statement in his EEOC form that all his activities were affected when he drank, Cheryl Green's statement that Donald told her he was "incapacitated" during his binges, and the few incidents that occurred in late 2000 when he missed commitments, was unavailable, sounded incoherent on the phone, and was hospitalized. Given the relatively short period during which these events occurred, as well as the short duration of each incident, and the extremely long period of sobriety from 1989 to 1999/2000 and again from 2001 to the present, in which Donald's daily activities have not been limited at all by his alcoholism, Donald has simply not shown evidence of substantial limitation in any life activity sufficient to render him disabled under the ADA. While his performance may have been slightly affected in late 2000 because of his drinking, this alone is not sufficient to show he is unable or severely restricted from performing this job, let alone a wide range of other jobs. Compare Bailey v. Georgia-Pacific Corp., 306 F.3d 1162, 1168-69 (1st Cir. 2002) (alcoholic who occasionally did not accept overtime assignments, was sent home one day after being found drunk at work, and was incarcerated due to alcoholism was not disabled under the ADA), and Soileau v. Guilford of Maine, Inc., 105 F.3d 12, 16 (1st. Cir. 1997) (acute episodic depression that resulted in a five-week work absence in 1990 and a four-month work restriction in 1994 was not a substantial limitation, even though the underlying condition causing the depressive episodes was life long), with Baucom v. Potter, 225 F. Supp.2d at 591 (alcoholic was disabled when his alcoholism placed him in a near constant stupor, preventing him from performing virtually every life activity except drinking, and making him unable to work at any job while his alcoholism remained untreated).⁷

7 The same analysis and outcome apply to other major life activities besides working. That is, Donald's abilities may have been temporarily impaired during his binges, but these binges were only occasional and lasted a short period of time. Thus, the limitations were not substantial enough to qualify as a disability, which must be both significant in its intensity and of substantial duration.
With respect specifically to the activity of sleeping, which Donald complained about, he has never been diagnosed with a sleep disorder, has not shown how his problems were related to his alcoholism, and has failed to show that his quality of sleep or his ability to function with little sleep were worse than that of the general population. See Sara Lee, 237 F.3d at 352. Cheryl Green also testified that he suffered from some distorted thinking while he was drinking, but this statement alone, without further evidence of its effect on his daily life, does not demonstrate that he was substantially limited in thinking or any other major life activity.

The parties also disagree as to whether Donald was regarded as disabled. See 42 U.S.C. § 12102(2)(C). To be regarded as disabled, a plaintiff must show that his employer mistakenly believes he has an impairment that substantially limits one or more major life activities, or mistakenly believes that an actual non-limiting impairment substantially limits one or more of his major life activities. 29 C.F.R. § 1630.2(1); Rhoads v. Federal Deposit Insurance Corp., 257 F.3d 373, 390 (4th Cir. 2001). The only evidence Plaintiffs can point to is that Yourishin allegedly called Donald's alcoholism his "dirty little secret" and was upset that he had to deal with this problem. Assuming these facts are true, they do not show that Yourishin or anyone else at Sun regarded Donald as disabled because they do not implicate Donald's abilities to perform different life activities. Indeed, after learning about Donald's alcoholism, Yourishin placed Donald in the temporary position in Bloomfield, and subsequent to Donald's return from medical leave, Yourishin offered him a job working under Jameson. Whether or not these jobs were equivalent to his prior job is irrelevant — the fact that Yourishin gave these jobs to Donald demonstrates that he could not have thought Donald was unable or severely restricted in his ability to work due to his alcoholism.

Not only was Donald not regarded as disabled, but he also did not have a record of disability. See 42 U.S.C. § 12102(2)(B). To qualify as such, a plaintiff must show that he has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activity. 29 C.F.R. § 1630.2(k); Rhoads, 257 F.3d at 391. While Donald has testified that he was diagnosed with alcoholism in 1989, I have already found that his alcoholism is not a substantial limitation on any major activity during the relevant time period, and there is simply no evidence that his alcoholism or any other impairment substantially limited him in the past, or that any doctor or employer has misclassified him as having such an impairment.

In sum, Plaintiffs have not presented any evidence creating a genuine dispute of material fact regarding Donald's alcoholism. Based on the undisputed facts, Donald's alcoholism does not qualify as a disability under the ADA, and accordingly, his claim must fail.

2. FMLA Claim

Sun seeks summary judgment with respect to Donald's FMLA claim that he was not restored to the same or an equivalent position upon returning from medical leave. Under the statute, an employee who takes medical leave is entitled, on return from such leave, to be restored to the position he held when the leave commenced, or to be restored to an equivalent position, with equivalent benefits, pay, and other terms and conditions of employment. 29 U.S.C. § 2614. The parties do not dispute that Donald was not returned to the same position he held prior to taking leave. That position was the temporary one located in Broomfield that Yourishin created for him in January 2001. The only question is whether the position Yourishin offered to Donald in May 2001 upon his return was equivalent to the temporary position.

A position is equivalent if it is "virtually identical to the employee's former position in terms of pay, benefits and working conditions, including privileges, perquisites and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority." 29 C.F.R. § 825.215(a). This requirement does not extend to de minimis or intangible, unmeasurable aspects of the job. § 825.215(f).

Donald's temporary job in Colorado was as an individual contributor program manager, providing support to the Western Enterprise Services Sales Office, and reporting to Yourishin. It was at the E-12 salary grade. The position offered to Donald upon his return from leave was also as an individual contributor program manager, except that he would be working in the Columbia office for Jameson and would be at the E-10 salary grade. Plaintiffs do not dispute that Donald wished to be in Columbia because Kimberly was moving there in the very near future, nor do they dispute that the job titles and job descriptions were basically the same. Indeed, Yourishin, Jameson, and Sheri Bernal, the Human Resources Director, have all testified that the two positions entailed equivalent duties and responsibilities. Moreover, Plaintiffs do not dispute that Donald would be receiving the same salary in the new job as the old one, despite being in a different salary grade. Finally, Bernal testified, and Plaintiffs do not contradict, that the Sun salary grades overlap substantially and that both E-10 and E-12 employees are eligible for promotions to Director positions. Yourishin, Jameson, and Bernal all believed that the two jobs were equivalent in duties, compensation, benefits, and opportunity for advancement.

The only real evidence Plaintiffs have presented that these two positions are not equivalent is Donald's testimony that he viewed the new job as a "demotion" from his previous position, and his assertion that Yourishin called it a demotion too. Plaintiffs do not explain what made the new position a demotion aside from the fact that it was an E-10 position whereas the old one was an E-12. This evidence does not suffice to create a genuine issue of material fact as to whether the two jobs were equivalent. Plaintiffs must point to specific elements of the new job that are different from the old job, such as the salary, promotional opportunities, duties, or conditions of employment. They have not disputed that these are all the same. The mere fact that the two jobs are in different salary grades is de minimis when the evidence shows that all the aspects of the job, including the salary, were identical or nearly identical. See Sabatino v. Filk Int'l Corp., 286 F. Supp.2d 327, 337-38 (S.D. N.Y. 2003) (plaintiff's view that the job offered her upon return from FMLA leave was not equivalent simply because "it was a different job" is de minimis). Accordingly, Sun is entitled to judgment as a matter of law on Plaintiffs' FMLA claim regarding restoration of Donald's position.

III. KIMBERLY FELIX'S CLAIMS A.

Kimberly Felix was employed by Sun from March 20, 1995 until November 29, 2002. Throughout her years at Sun, Kimberly often received low performance ratings under the Sun evaluation system. Kevin Terrill was Kimberly's supervisor from 1998-1999, and he rated her in June 1999 as an "M" performer in her annual performance evaluation. An "M" rating in the Sun system meant that an employee was underperforming in a key area of her job. Terrill felt Kimberly was in the bottom 10% of performers when he gave her this rating. Prior to Terrill's rating, Kimberly had also received at least two other "M" ratings from her previous supervisors.

In August 1999, Michael Mangiafico became Kimberly's new supervisor. He hired her as an Area Logistics Business Manager for the Southern area. Mangiafico interviewed Kimberly and also spoke to Terrill and some other Sun employees prior to making the decision to hire her. Terrill had expressed some concerns to Mangiafico about Kimberly's overall job performance, but Mangiafico decided to hire her anyway. At the time she was hired, Kimberly had been working out of Colorado, but her new position required her to be in the Washington, D.C. area. However, she was dealing with some custody and divorce issues from her prior marriage, and Mangiafico let her stay in Colorado for approximately 20 months to take care of these problems; she was scheduled to move to the east coast in the summer of 2001. As an Area Logistics Business Manager, Kimberly managed two employees directly and was classified at an E-9 salary grade.

On May 25, 2001, after Donald was fired by Sun, he and Kimberly were standing in a hallway of the Sun Maryland office when they saw Mangiafico. Kimberly told Mangiafico that Donald had been terminated and asked if she could go home with him. It is not entirely clear what exact words Kimberly used to describe the termination. According to notes that she wrote for herself that day, she told Mangiafico that Donald had been fired "for alcoholism" and that he "just got back from medical leave." In her deposition, however, Kimberly testified that she told him Donald had been fired "because of him drinking, his alcohol, and going out on Medical Leave Act." Later that day, Kimberly called Yourishin to discuss Donald's termination, but Yourishin did not wish to speak with her. She then called the Human Resources Department and told the person with whom she spoke that it was "wrong" to fire her husband.

Around October of 2001, as part of a company-wide reduction in force and reorganization, Kimberly's position was reclassified to an individual contributor Logistics Analyst. She no longer had any direct reports, and she was re-leveled to an E-8 salary grade. Sun claims that all Area Business Logistics Managers who were higher than an E-8 salary grade were re-leveled to a lower salary grade, but Kimberly claims that she was told by other people who held her same job that they were not re-leveled. Thomas Pickett, the Sun Area Director responsible for the area in which Kimberly was employed, was involved in the decision to re-level Kimberly from an E-9 to an E-8. Other Area Directors and the head of Sun's U.S. Field organization also played a part in the reorganization, including Ted Jameson and Jim Yourishin. But Jameson's role was in commissioning the overall assessment of the logistics function, and Yourishin did not have the final say on the decision.

According to Pickett's affidavit, at the time the decision was made, he had no knowledge of any EEOC claim filed by Donald,⁸ nor did he know of any complaints Kimberly may have made regarding her husband's termination. Pickett also stated that Mangiafico was not consulted about this decision. Kimberly disputes this fact by pointing to the notes of Kelly Van Riper, a Human Resources employee who attended a meeting between Kimberly and Mangiafico in April 2002. Van Riper's notes say that Mangiafico had "made it clear" that Kimberly would not have any people management responsibilities as part of her new position. She also cites to the deposition of Sheri Bernal, who was asked whether Mangiafico had taken away Kimberly's management responsibilities, and, interpreting Van Riper's notes, testified, "It's not entirely clear in that it says that . . . [Mangiafico] made it clear she wouldn't. . . . I believe that that's correct, that she wouldn't have people management responsibilities."

8 Indeed, Donald did not file his EEOC claim until December 27, 2001, so at the time of the re-leveling, there was no claim for Pickett to even be aware of.

On December 27, 2001, Donald filed an EEOC complaint against Sun for discrimination under the ADA. On Donald's EEOC Discharge Form, he listed Kimberly as a witness who would provide evidence to support his allegations. In addition, Kimberly filled out the form for Donald because his vision was impaired after having had laser eye surgery. However, when asked in deposition whether she assisted Donald in filing his EEOC charge, Kimberly said, "No, Don did it on his own." She also testified that the EEOC never interviewed her regarding Donald's claim.

At some point in late 2001, Kimberly began to feel that she was being harassed and retaliated against at work by Mangiafico. Kimberly thought that her alleged participation in and knowledge of Donald's claim were the reasons for this harassment. Besides the conversation between Kimberly and Mangiafico on the day of Donald's termination, however, it is unclear exactly what, if anything, Kimberly told her boss about Donald's firing. She claims that she told Mangiafico at some point that she was a witness to the conversation between Donald and Yourishin in which Yourishin stated that Donald's medical leave played a role in his termination. She also allegedly told him she would be a witness to the complaint that Donald would file.⁹

9 Other evidence contradicts these allegations, as described infra.

In response to Mangiafico's alleged retaliation, Kimberly began a series of internal complaints against him, beginning in late 2001 and continuing throughout 2002. She alleged that Mangiafico was keeping her off of conference calls, calling her abilities into question, and generally treating her unfairly. The first incident that Kimberly complained of occurred on December 13, 2001, when Mangiafico wrote her an email regarding her attempt to be present on a conference call that took place on November 1. The email suggested that Kimberly should not have heard the call and that her attempt to do so undermined the values of the company. Kimberly, feeling this email was unfair and should be retracted, complained to Thomas Pickett. On March 13, 2002, Pickett replied to Kimberly, stating that Sun had completed due diligence, spoken to the relevant parties, and found no compelling reason for Mangiafico to retract the email.

On April 3, 2002, Kimberly wrote to Sheri Bernal requesting an escalation of her appeal. She claimed that Mangiafico was retaliating against her "because of this appeal" and also because she was "a material witness in an EEOC complaint and potential federal litigation against Sun and one of its employees in the discrimination and wrongful termination of my husband Donald Felix." The next day, Kimberly, Mangiafico, and Kelly Van Riper all met to discuss Kimberly's feelings of harassment. According to the notes from this meeting taken by Van Riper, Kimberly stated that she felt she was being treated unfairly and being retaliated against. The notes also say that "Kim told [Mangiafico] retaliat[ion] prob[ably] talking ab[out] husband." Nothing further is written about whether specific facts regarding Donald's claim or termination were discussed in this meeting.

On May 28, 2002, Kimberly emailed Anita Carlisle in the Human Resources Department to complain about her treatment by Mangiafico. Specifically, she felt she was in a hostile work environment because Mangiafico was allegedly not treating her the same way that he treated the other employees. She also expressed concern about people involved in Donald's termination — specifically, Yourishin — and how they might have an impact on her. Regarding Yourishin, Kimberly stated, "I am concern [sic] because I am a witness against him in firing my husband." Carlisle responded on June 6 in a detailed letter addressing all of Kimberly's concerns. She stated that based on her research, she could not find any evidence of retaliation based on Donald's termination and the surrounding circumstances. With respect to Donald's EEOC charge, Carlisle wrote, "The charge that you have referred to is not public knowledge. [Mangiafico] has not been advised of this legal action and when I questioned you, you said you had not mentioned it to him." Following this response, on July 22, 2002, Kimberly filed an EEOC complaint under the ADA, claiming that she was being harassed in retaliation for her association with and participation in her husband's EEOC charge. She did not name Mangiafico in the charge, and it is undisputed that he had no knowledge of it.

At some point late in Kimberly's internal appeal, or perhaps subsequent to it, Kimberly learned that Mangiafico rated her a "Tier 3" employee on her annual performance evaluation.¹⁰ The rating system at Sun had changed since the "M" ratings that Kimberly had received in previous years. At the time of her Tier 3 rating, Sun managers were required to rate the bottom 10% of their employees as Tier 3. Mangiafico felt that during that year, Kimberly's performance had deteriorated in terms of her relationships with people, her ability to meet deadlines, her ability to take ownership for her actions, and her ability to build trust among the organizations that she supported. Mangiafico based this evaluation in part on feedback from people with whom Kimberly worked and interacted. Sun employees David Lavoie, Elliott Ritter, and Ted Jameson each told Mangiafico that they had lost trust in dealing with Kimberly. Mangiafico testified in deposition that Ritter raised concerns about being able to trust whether Kimberly really had completed actions that she said she had done. Mangiafico further stated that Jameson told him Kimberly over-committed, covered things up, and was nonresponsive. Kimberly disputes Mangiafico's rating because she claims he ignored positive comments about her performance and chose to focus instead on criticisms.

10 The parties both agree that this evaluation was written on April 26, 2002. However, the period covered by the evaluation is July 1, 2001 to June 30, 2002, making it somewhat illogical for the evaluation to have been written so early. The evaluation itself is dated September 16 by Mangiafico. In addition, correspondence between Mangiafico and Kimberly regarding this evaluation do not appear to begin until August 2002. It is possible, however, that Mangiafico wrote the evaluation in April but did not alert Kimberly of her rating until much later. Regardless, because the parties agree, I will assume the evaluation was given on April 26.

After learning about her rating, on August 23, 2002, Kimberly sent an email to Mangiafico asking why she would get such a low rating when she was never told that she was not performing well. She stated, "Now I feel the harassment and retaliation is getting worst [sic]." Subsequently, Kimberly complained to the Human Resources department. She felt the rating was inappropriate, and she also inquired as to why she had not received a CQI bonus, which she believed all employees received when the area in which the employees worked did well. On September 2, 2002, Kimberly received an email from Paul Whalen, Vice-President of Human Resources, who stated that Tier 3 employees were not eligible for the CQI bonus. He further explained that her Tier 3 rating had been reviewed and determined to be appropriate.

On August 26, 2002, Mangiafico ceased to be Kimberly's supervisor. Her new boss was David Lavoie, someone for whom Kimberly was happy to be working. As part of her Tier 3 rating, Kimberly was required to be placed on a performance plan, which Lavoie did on October 2, 2002. In November 2002, Sun began implementing a division-wide workload consolidation. At the time, Lavoie had four employees reporting to him who were in the E-4 salary grade, four in the E-6, and four in the E-8, including Kimberly. Lavoie chose one employee from each level to be terminated as a part of the reduction in force. From the E-8 employees, Lavoie decided to fire Kimberly, and this decision was approved by Kevin Terrill, Kimberly's boss prior to Mangiafico. Lavoie's decision was based primarily on the fact that Kimberly's interpersonal skills were not as strong as the other Logistics Analysts reporting to him. In his explanation for her termination, he noted Kimberly's frequent missed deadlines, her lack of teamwork and professionalism, and her poor communication skills. Lavoie had no knowledge of any EEOC claims filed by Kimberly or Donald at the time he made his decision, nor did he know of any complaints Kimberly had made regarding Donald's treatment by Sun. Furthermore, Lavoie did not consult with Mangiafico when deciding whether Kimberly's position should be eliminated, although he did inform Mangiafico of his recommendation at a later date.

B.

The remaining claims brought by Kimberly against Sun are those portions of Count VIII in which Kimberly claims that she suffered retaliatory adverse employment actions under the ADA and FMLA based on her husband's and her EEOC claims against Sun. I have previously dismissed Kimberly's wrongful termination claim under the ADA. Thus, Kimberly's ADA claim only relates to adverse employment actions prior to termination, whereas her FMLA claim includes those actions prior to termination as well as her actual discharge.

As they have done in connection with Donald Felix's claims, Plaintiffs make a motion for partial summary judgment in order to establish certain elements of Kimberly's claims. Because Fed.R.Civ.P. 56 does not allow summary judgment when it does not dispose of any claims in their entirety, Plaintiffs' motion will be denied. See discussion supra Part II.B. Even if this were not the case and the motion was properly structured, however, it would still be denied because Plaintiffs have not shown that there is any genuine dispute of fact, nor that they are entitled to judgment as a matter of law. As was the case with Donald's claims, because Sun has filed for summary judgment on the same issues, and Sun's motion properly utilizes Rule 56, those issues will be discussed in the context of Sun's motion.

C.

Sun seeks summary judgment on Kimberly's claims in their entirety. Sun argues in the first place that her claims under both the ADA and the FMLA fail because she has not stated a prima facie case for retaliation. In order to establish a prima facie case for retaliation under the ADA, a plaintiff must show that: (1) she engaged in a protected activity; (2) her employer acted adversely against her; and (3) her protected activity was causally connected to her employer's adverse action. Rhoads, 257 F.3d at 392. The Fourth Circuit has held in dicta that this analysis is also applicable to cases brought under the FMLA. Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 301 (4th Cir. 1998).¹¹ Once the plaintiff establishes these three elements, the employer has the burden to rebut the presumption of retaliation by articulating a legitimate, non-discriminatory reason for its actions. Rhoads, 257 F.3d at 392. If the employer gives such a reason, the plaintiff must then demonstrate that the employer's reason is merely a pretext for discrimination. Id.

11 This court has relied on Cline to apply the framework to FMLA cases. See, e.g., Balogun-Awosika v. Univ. of Maryland Med. Sys. Corp., 2002 WL 32315490, at *3 (D. Md. June 18, 2002).

According to Sun, Kimberly's claims fail at the first step because she did not engage in any protected activity that could be causally linked to any adverse employment action.¹² Under both the ADA and the FMLA, an employee can engage in two kinds of protected activity. First, an employee is protected against retaliation for participating in legal processes under the ADA and FMLA. The ADA prevents discrimination against any individual who has "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [the ADA]." See 42 U.S.C. § 12203(a). Similarly, the FMLA makes it unlawful to discriminate against anyone who: (1) has filed a charge, instituted, or caused to be instituted any proceeding under the FMLA; (2) has given or is about to give any information in connection with any inquiry or proceeding relating to any right provided under the FMLA; or (3) has testified or is about to testify in any inquiry or proceeding relating to any right provided under the FMLA. 29 U.S.C. § 2615(b). Second, both statutes make it unlawful to discriminate against anyone who has opposed any practice made unlawful by that particular statute. 42 U.S.C. § 12203(a); 29 U.S.C. § 2615(a)(2).

12 An adverse employment action is an action that affects the terms, conditions, or benefits of employment. Von Gunten v. Maryland, 243 F.3d 858, 865 (4th Cir. 2001). The adverse employment actions at issue here are: (1) the re-leveling from an E-9 to an E-8; (2) the Tier 3 performance rating; and (3) termination. While Kimberly complained of her denial of a CQI bonus as well as being placed on a performance plan, it is undisputed that these two circumstances followed necessarily from her Tier 3 rating. Thus, they are not considered as separate adverse employment actions. Moreover, there is no evidence that being kept off conference calls, having her abilities questioned, and the alleged unfair treatment actually adversely affected the terms, conditions, or benefits of her employment.

Beginning with "participation" activity, the only two instances of participation in a protected activity in this case are Kimberly and Donald's individual EEOC claims. Donald engaged in protected activity when he filed his charge, and Kimberly engaged in protected activity when she filed hers. Kimberly did not participate in Donald's charge simply because she was listed as a witness and filled out the EEOC form following Donald's eye surgery. The statutes are clear that to constitute participation, an employee must either make a charge, give information about a charge, or testify regarding a charge. Kimberly did none of these things. She stated herself in her deposition that Donald filed his EEOC charge "on his own," and that she was not interviewed by the EEOC.

Not only is Kimberly's participation activity limited to filing her own charge, but this action only constitutes participation under the ADA because her EEOC claim was only brought under the ADA, not the FMLA. Moreover, Kimberly's charge was not filed until July of 2002. The only adverse employment action occurring after this date was her termination in November 2002. I have already dismissed Kimberly's claim for ADA retaliation as it relates to her termination. As a result, any claim of retaliation for participation must fail because there can be no causal link between an adverse employment action that occurs before protected activity. Chidebe v. MCI Telecomms. Corp., 19 F. Supp.2d 444, 448 (D. Md. 1998).

The next question is whether Kimberly engaged in any "opposition" activity protected under the ADA or FMLA. Plaintiffs claim that Kimberly opposed the unlawful termination of her husband Donald, as well as the alleged unlawful retaliation by Mangiafico for her participation in Donald's EEOC claim. To qualify as opposition activity, an employee does not have to engage in the formal process of adjudicating a claim. Laughlin v. Metro. Washington Airports Auth., 149 F.3d 253, 259 (4th Cir. 1998). Opposition activity encompasses the use of informal grievance procedures as well as the staging of informal protests and voicing of one's opinions in order to bring attention to an employer's discriminatory behavior. Id.

However, both the ADA and FMLA require that the opposition activity be directed towards conduct by the employer that is unlawful under the particular statute in question. See 42 U.S.C. § 12203(a); 29 U.S.C. § 2615(a)(2).¹³ The Fourth Circuit, in an unpublished opinion, stated with respect to opposition activity under Title VII (which employs similar language to the ADA and FMLA), "the 'opposition clause,' by its very terms, requires that the employee at least have actually opposed employment practices made unlawful by Title VII. That is to say, the clause protects opposition neither to all unlawful employment practices nor to practices the employee simply thinks are somehow unfair." McNair v. Computer Data Sys., Inc., 172 F.3d 863, 1999 WL 30959, at *5 (4th Cir. Jan. 26, 1999). Although this opinion is unpublished, its precedential value is bolstered by the fact that other courts have upheld the same principle. See, e.g., Jeseritz v. Potter, 282 F.3d 542, 548 (8th Cir. 2002) (opposition activity must be directed towards employer behavior that the employee reasonably believes to be "in violation of the statute in question"); Barber v. CSX Distrib. Servs., 68 F.3d 694, 702 (3d Cir. 1995) (in an ADEA case, "a general complaint of unfair treatment does not translate into a charge of illegal age discrimination"); Peeples, 203 F. Supp.2d at 466 (an email from an employee claiming he was "protected by the ADA" was not opposition activity because it did not claim the employer "was then or was about to violate the ADA"); Watkins v. Henderson, 2001 WL 219807, at *19 (S.D. Ind. Mar. 5, 2001) ("The FMLA does not protect an employee from retaliation for an activity statutorily protected by another statute, only from retaliation for an activity protected by the FMLA itself).

13 The employer's conduct opposed by the employee need not actually violate the statute; it suffices if the employee reasonably believes the behavior she is opposing violates the statute. Peeples v. Coastal Office Prods., Inc., 203 F. Supp.2d 432, 466 (D. Md. 2002).

In light of this principle, Plaintiffs have not established that Kimberly engaged in protected opposition activity when she complained about harassment to various individuals in Sun's Human Resources Department. In almost all of these complaints, Kimberly never mentioned the ADA or the FMLA, nor did she state that she believed Donald's termination to be unlawful. The day of Donald's termination, Kimberly called Human Resources to say his discharge was "wrong." In her meeting with Mangiafico attended by Kelly Van Riper, she said Mangiafico's retaliation was related to her husband, but there is no evidence that she clarified what she meant by this statement. In her email to Anita Carlisle, she mentioned that she was a witness to the firing of her husband, but did not express why this firing may have been unlawful. Kimberly clearly went through an informal grievance procedure that could theoretically qualify as opposition activity, but her complaints were so generalized that they must fail as a matter of law with respect to both the ADA and the FMLA.¹⁴

14 Kimberly's statements to Mangiafico on the day of Donald's termination about why Donald was fired do not qualify as opposition activity because they were not true complaints. Kimberly wrote in her notes from May 25 that she and Donald "were standing in the hallway, when my boss Mike walked up and said what is going on. I told h[im] in front of Don that he just got fired for alcoholism. Jim fired him. I told him Don just got back from medical leave. I ask[ed] Mike if I can go home with my husband he said yes." Kimberly did not seek Mangiafico out to complain about Donald's termination, she just explained what was happening when she happened to cross Mangiafico in the hall. Even under the broad definition of "opposition activity," such a passing statement cannot be considered use of an informal grievance procedure or staging of an informal protest.

The only complaint that could possibly be considered protected opposition activity under the ADA is the email to Sheri Bernal in which Kimberly states that she was being retaliated against because she was a "witness in an EEOC complaint and potential federal litigation against Sun and one of its employees in the discrimination and wrongful termination of [her] husband."¹⁵ Although this statement does not mention the ADA, it refers to Donald's complaint, which was brought under the ADA.¹⁶ This still may be insufficient to qualify as protected opposition activity because neither the ADA nor discrimination based specifically on disability were mentioned in Kimberly's email. However, even if it were sufficient, Kimberly's claim nevertheless fails because she has not satisfied her burdens under the retaliation framework.¹⁷

15 This statement could be viewed either as opposition to the alleged unlawful termination of Donald, or the alleged unlawful retaliation against Kimberly for what she believed to be her "participation" in Donald's claim.

16 Because Donald's complaint never mentioned the FMLA or discrimination based on medical leave, Kimberly's email cannot be considered opposition activity under the FMLA.

17 The reasoning below would apply if I were to find that Kimberly had also engaged in protected activity under the FMLA, since the same framework is employed as to both statutes.

In addition to showing that she engaged in protected activity, a plaintiff must also show that adverse employment actions occurred, and that there is a causal connection between the adverse employment actions and the protected activity. Rhoads, 257 F.3d at 392. It is undisputed that Kimberly's re-leveling, ¹⁸ her Tier 3 rating,¹⁹ and her termination were adverse employment actions. The re-leveling occurred in October/November 2001. This was prior to Donald's EEOC charge, which was filed in December 2001, and prior to any complaints that Kimberly made with respect to retaliation because of her involvement with that charge. (Her first real complaint stemmed from Mangiafico's email of December 13, 2001, regarding the conference call.) Because the adverse employment action occurred prior to the alleged protected activity, Kimberly's claims with respect to re-leveling must fail because a causal connection cannot be established. Chidebe, 19 F. Supp.2d at 448.²⁰

18 The fact that Kimberly's re-leveling from an E-9 to an E-8 is considered an adverse employment action does not undermine the conclusion in Part II.C.2 that the E-10 position offered by Sun to Donald was equivalent to the E-12 position he held before taking medical leave. Sun has not offered any evidence to suggest that Kimberly's E-9 and E-8 positions were equivalent. In fact, it is undisputed that she lost her people management responsibilities as a result of the re-leveling, which alone means that the jobs were not equivalent. On the other hand, Sun presented ample evidence that Donald's E-12 and E-10 positions were nearly identical, and Plaintiffs did not offer any real evidence to dispute this.

19 A poor performance evaluation can be an adverse employment action if it alters the terms or conditions of the employee's performance. Von Gunten, 243 F.3d at 867. In this case, the Tier 3 rating resulted in the denial of Kimberly's CQI bonus and her placement on a performance plan.

20 Indeed, in her EEOC complaint, Kimberly stated that the retaliation against her did not begin until December of 2001, at least one month after the re-leveling.

Furthermore, even if there were no temporal bar, Sun has presented evidence of a legitimate non-discriminatory reason for the re-leveling: the reduction in force and reorganization that caused all Area Logistics Business Managers to have their salary grades lowered. Once an employer provides a non-retaliatory justification for his actions, the employee must present evidence that this justification is merely a pretext for discrimination. Rhoads, 257 F.3d at 392.

Kimberly has tried to demonstrate that this reason is pretextual by arguing that other managers like herself were not re-leveled. However, this evidence fails in two respects. First, it is based on hearsay and not on personal knowledge — that is, she claims the other managers were not re-leveled because they told her so. Hearsay evidence, which is not admissible at trial, cannot be considered on a motion for summary judgment. Maryland Highways Contractors Ass'n v. Maryland, 933 F.2d 1246, 1251 (4th Cir. 1991). Moreover, even if this evidence were admissible, creating an issue of fact about whether all such managers were re-leveled, that fact alone does not suffice to establish pretext. A plaintiff may not prevail on the issue of pretext by merely demonstrating that the defendant's explanation for the action is false; she must also prove that the particular discrimination at issue was the real reason for the defendant's conduct. Halperin v. Abacus Tech. Corp., 128 F.3d 191 (4th Cir. 1997). Kimberly has presented no evidence that her re-leveling was in any way related to her complaints about her husband's termination other than Yourishin and Jameson's minor involvement in the decision-making process. Yourishin and Jameson's involvement is not sufficient to prove that retaliation was the reason for the decision, especially because it is undisputed that many people were involved in the decision, including Kimberly's own Area Director who knew nothing of Donald's claims or her complaints.

Unlike the re-leveling, Kimberly's Tier 3 rating occurred after she had begun to complain to Human Resources about retaliation. The parties agree that Mangiafico gave her a Tier 3 rating on April 26, 2002, and just a few weeks earlier, Kimberly had emailed Sheri Bernal to complain of Mangiafico's harassment. It is also undisputed that Mangiafico knew about Kimberly's complaints regarding his treatment of her. Temporal proximity between an employee's protected activity and an adverse employment action can be sufficient to establish causal connection, and accordingly, a prima facie case of retaliation. Tinsley v. First Union Nat'l Bank, 155 F.3d 435, 443 (4th Cir. 1998).

Sun, however, has offered a non-retaliatory reason for the Tier 3 rating: Kimberly's poor job performance. Mangiafico's report detailed several areas in which he felt Kimberly's skills were inferior to her colleagues, and he documented specific instances when he had received negative feedback from people Kimberly worked with. Poor job performance qualifies as a legitimate nondiscriminatory reason to demote an employee or take other action adversely affecting the employee. Glunt v. GES Exposition Servs., Inc., 123 F. Supp.2d 847, 872 (D. Md. 2000).

Thus, the burden shifts back to Plaintiffs to show that this reason is pretextual. Plaintiffs have failed to produce any evidence to create a genuine issue of material fact regarding the reason for Kimberly's Tier 3 rating. Their only arguments in this regard are that Mangiafico ignored some of the positive feedback about Kimberly when writing her evaluation, that Kimberly thought she was performing well, and that she felt Mangiafico's actions were retaliatory. These arguments do not create an issue of fact. When an employer gives a legitimate, non-discriminatory reason for taking action against an employee, it is not the job of the court to determine whether the reason was fair or correct, so long as it truly was the reason for the employer's action. Hawkins v. Pepsico, Inc., 203 F.3d 274, 279 (4th Cir. 2000). Plaintiffs have proven nothing beyond the fact that Kimberly and Mangiafico disagreed about the quality of her work, which simply does not suffice to create a question for trial. Id. at 280.

Both Kimberly's self-assessment and the opinions of her co-workers as to her performance are irrelevant to the question of Mangiafico's reasons for giving her the Tier 3 rating. Id.

Turning finally to Kimberly's termination,²¹ it too occurred after her complaints to Sun's Human Resources employees. It is undisputed that the decision to terminate Kimberly was made by David Lavoie, her supervisor as of late August 2002, and that this decision was approved by Kevin Terrill, her supervisor in 1998-1999. It is also undisputed that Lavoie's decision was part of a company-wide reduction in force, and that he had no knowledge of any EEOC claims filed by Kimberly or Donald, or of any complaints Kimberly had made regarding her husband's termination. As stated supra, an employer's knowledge of an employee's protected activity is essential to establishing a causal connection between that activity and any adverse employment action. Causey v. Balog, 162 F.3d 795, 803-04 (4th Cir. 1998). Therefore, Lavoie's ignorance of the protected activity defeats Plaintiffs' prima facie case regarding termination.

21 Again, this adverse employment action is only relevant to her FMLA claim because I previously dismissed the ADA claim for termination.

Even assuming this were not the case, however, and that a prima facie case could be made, Sun has articulated a legitimate non-discriminatory reason for her discharge. The company was undergoing a reduction in force, Lavoie had to eliminate someone with an E-8 salary grade, and he chose Kimberly because her skills were inferior to those of her colleagues at the same level. As was the case with the Tier 3 rating, Plaintiffs have not created a genuine issue of material fact as to whether the explanation proffered by Sun was false, let alone whether the actual reason for the termination was retaliation. Indeed, Plaintiffs have not accused Lavoie of any retaliatory animus. While temporal proximity between her series of complaints throughout 2002 and her termination in November 2002 may create a causal connection sufficient to state a prima facie case, more than mere speculation is required to establish pretext.

D.

The remaining claim against Mangiafico is that portion of Count IX alleging that he retaliated against Kimberly in violation of the FMLA by taking adverse employment actions against her, other than her termination.²² Mangiafico filed a motion for summary judgment that made essentially the same arguments as Sun's motion. For the same reasons that Sun's motion was granted with regard to Kimberly's claims, Mangiafico's motion will be granted as well. See discussion supra Part III.C.²³

22 I previously held that there is no individual liability under the ADA, and that there was insufficient evidence to connect Mangiafico to the decision to terminate Kimberly's employment at Sun. Thus, the two remaining adverse employment actions are the re-leveling and the Tier 3 rating.

23 As to the re-leveling, there is not sufficient evidence to link Mangiafico to this adverse employment action. The only evidence available is Van Riper's notes (and Bernal's interpretation of those notes) stating that Mangiafico told Kimberly she would no longer have people management responsibilities in her new E-8 position. This statement does not signify that Mangiafico actually made the decision; rather, it appears that he was implementing the decision made by Pickett and the other Area Directors. Nevertheless, even if Mangiafico were involved, Kimberly's claim would still fail for the same reasons it fails against Sun.

For all these reasons, both Plaintiffs' motion for default judgment against Yourishin and their motion for partial summary judgment against Sun are denied. Sun's motion for partial summary judgment against Plaintiffs is granted, and Mangiafico's motion for summary judgment against Plaintiffs is granted.

A separate order is being entered herewith.

ORDER

For the reasons stated in the accompanying memorandum, it is, this 12th day of April 2004 ORDERED that

1. Plaintiffs' motion for default judgment against Defendant Yourishin is denied;

2. Plaintiffs' motion for partial summary judgment against Defendant Sun is denied;

3. Defendant Sun's motion for partial summary judgment is granted; and

4. Defendant Mangiafico's motion for summary judgment is granted.