Opinion
No. 1:03-cv-2887-WSD.
March 30, 2005
ORDER
This is an employment discrimination action filed by Plaintiff Michelle Nance ("Plaintiff") against her former employer, Defendant Buffalo's Café of Griffin, Inc. ("Defendant"). It is before the Court on the Magistrate Judge's Report and Recommendation [56] on Defendant's Motion for Summary Judgment [39]. In accordance with 28 U.S.C. § 636(b)(1) and Rule 72 of the Federal Rules of Civil Procedure, the Court has conducted a careful, de novo review of the portions of the Magistrate Judge's Report and Recommendation to which either party has objected. The Court has reviewed the remainder of the Magistrate Judge's Report and Recommendation for plain error. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983).
I. BACKGROUND
A. Factual Background
The Magistrate Judge's Report and Recommendation includes a detailed discussion of the relevant facts, both in its Factual Background section and throughout the opinion. Except as discussed in Section II(B), infra, neither party objected to the Magistrate Judge's findings of fact and, finding no plain error, the Court adopts them as set out in the Report and Recommendation.
B. Procedural History
Plaintiff filed her Complaint on September 23, 2003, alleging Defendant failed to promote her and discharged her because of her sex and her pregnancy in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. ("Title VII"). (Compl. [1] ¶¶ 17-28.) Plaintiff also alleges Defendant interfered with her right to reinstatement under the Family and Medical Leave Act, 29 U.S.C. §§ 2601 et seq. ("FMLA"), and retaliated against her for the exercise of her rights under the Act. (Compl. ¶¶ 29-34.) The parties completed discovery and, on July 15, 2004, Defendant filed its Motion for Summary Judgment and Memorandum of Law in Support ("Mot. for Summ. J.") [39]. Plaintiff filed her response in opposition to Defendant's motion on August 12, 2004 ("Resp. to Mot. for Summ. J.") [51], and Defendant replied on August 30, 2004 ("Reply in Supp. of Mot. for Summ. J.") [52].
On February 7, 2005, the Magistrate Judge issued his Report and Recommendation [56], recommending the Court grant summary judgment on Plaintiff's Title VII claims and deny summary judgment on Plaintiff's claims for interference and retaliation under the FMLA. (RR at 43.) Plaintiff filed her objections to the Report and Recommendation ("Pl.'s Objections to RR") [57] on February 10, 2005. Defendant did not respond to Plaintiff's objections, but filed its own objections to the Report and Recommendation on February 21, 2005 ("Def.'s Objections to RR") [58]. Plaintiff responded to Defendant's objections on March 3, 2005 ("Resp. to Def.'s Objections to RR") [60]. On March 17, 2005, Defendant moved for leave to file a reply brief in support of its objections or, in the alternative, for oral argument [61].
Defendant argues a reply brief is necessary to address certain of the allegations made by Plaintiff in her response to Defendant's objections. (Mot. for Leave to File Reply at 2-3.) Defendant's proposed reply brief is attached to its motion. (Id.) For cause shown, Defendant's Motion for Leave is GRANTED and the Court will consider Defendant's Reply Brief in Support of Its Objections to the Report and Recommendation. Defendant's alternative request for oral argument is DENIED AS MOOT.
II. DISCUSSION
A. The Magistrate Judge's Report and Recommendation
Defendant moved for summary judgment on Plaintiff's Title VII claims on the grounds that Plaintiff cannot establish a prima facie case of sex or pregnancy discrimination with respect to her discharge or non-promotion (Mot. for Summ. J. at 3-9), and, in the alternative, cannot establish Defendant's legitimate, non-discriminatory reasons for its employment actions were a pretext for unlawful discrimination (Id. at 11-17). Defendant also moved for summary judgment on Plaintiff's FMLA claims for interference and retaliation, arguing (i) it did not unlawfully interfere with Plaintiff's right to reinstatement because she did not return to work before the expiration of her twelve weeks of leave under the FMLA (Mot. for Summ. J. at 17-21); and (ii) Plaintiff cannot establish a prima facie case of retaliation or demonstrate Defendant's legitimate, non-retaliatory reasons for its employment actions were a pretext for unlawful retaliation (Id. at 21-24).
The Magistrate Judge recommended that summary judgment be granted on Plaintiff's Title VII claims for failure to promote and discharge, finding (1) Plaintiff cannot establish a prima facie case of sex or pregnancy discrimination with respect to her discharge (RR at 34-37); and (2) there is insufficient evidence from which a reasonable juror could conclude Defendant's legitimate, non-discriminatory reason for promoting another employee instead of Plaintiff was a pretext for unlawful discrimination (id. at 37-43). The Magistrate Judge recommended the Court deny summary judgment on Plaintiff's claims for interference and retaliation under the FMLA. (Id. at 15-31.) With respect to Plaintiff's interference claim, the Magistrate Judge found summary judgment inappropriate because genuine issues of material fact exist regarding whether Plaintiff's rights to FMLA leave and to reinstatement to her previous position or its equivalent expired on or before September 9, 2002, and because Plaintiff was not restored to her previous position or its equivalent, either on September 9, 2002, or thereafter. (Id. at 20-23.) The Magistrate Judge determined summary judgment on Plaintiff's retaliation claim is unwarranted because Plaintiff (i) established a prima facie case of retaliation (id. at 24-29), and (ii) presented sufficient evidence from which a reasonable juror could conclude Defendant's legitimate, non-retaliatory reason for Plaintiff's discharge was a pretext for unlawful retaliation (id. at 30-31).
Neither party objects to the Magistrate Judge's recommendation that summary judgment be granted on Plaintiff's Title VII claims for failure to promote and discharge and, finding no plain error, this recommendation is adopted by the Court.
Plaintiff initially asserted a Title VII claim based on changes made to her hours and wages. Based on Plaintiff's failure to respond to Defendant's arguments in favor of summary judgment on this claim, the Magistrate Judge found this claim was abandoned and recommended summary judgment be granted in favor of Defendant with respect to this claim. (RR at 34 n. 5.) Neither party objects to this recommendation and, finding no plain error, it is adopted by the Court.
B. Plaintiff's Objections to the Report and Recommendation
Plaintiff does not object to the legal conclusions reached by the Magistrate Judge. (Pl.'s Objections to RR at 1.) She objects only to identify two allegedly incorrect factual findings set out in the Report and Recommendation: (1) the Magistrate Judge's use of "December 9, 2002," instead of "September 9, 2002," in referring to the date on which Plaintiff's FMLA leave allegedly ended (RR at 21); and (2) his statement concerning Plaintiff's discharge and its alleged implication that Plaintiff concedes her FMLA leave expired on September 9, 2002, as opposed to some later date (id. at 26). Defendant did not respond to these objections. Having reviewed Plaintiff's objections and the relevant portions of the Report and Recommendation, the Court agrees the statements identified by Plaintiff were scrivener's errors and did not reflect the factual record in this matter. Accordingly, Plaintiff's objections are SUSTAINED and the Court shall not consider these statements in reviewing the Report and Recommendation.
C. Defendant's Objections to the Report and Recommendation
Defendant objects to the Magistrate Judge's recommendation that its motion for summary judgment be denied with respect to Plaintiff's claims for interference and retaliation under the FMLA. The FMLA guarantees eligible employees the right to twelve weeks of leave during any twelve-month period because of a serious health condition that makes the employee unable to perform the functions of the employee's position. 29 U.S.C. § 2612(a)(1). The Act also provides that an eligible employee who returns to work prior to the expiration of her FMLA leave must be restored to the same position she held at the time her leave began, or to an equivalent position. 29 U.S.C. § 1614(a)(1). "To preserve the availability of these rights, and to enforce them, the FMLA creates two types of claims: interference claims, in which an employee asserts that his employer denied or otherwise interfered with his substantive rights under the Act, and retaliation claims, in which an employee asserts that his employer discriminated against him because he engaged in activity protected by the Act." Strickland v. Water Works, 239 F.3d 1199, 1206 (11th Cir. 2001). Plaintiff here asserts both an interference and a retaliation claim.
1. Plaintiff's Interference Claim
It is unlawful "for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided by the FMLA." 29 U.S.C. § 2615(a)(1). "To state a claim of interference with a substantive right, an employee need only demonstrate by a preponderance of the evidence that he was entitled to the benefit denied." Strickland, 239 F.3d at 1206. Plaintiff alleges Defendant violated the FMLA by failing to restore her to her previous Assistant Manager position or its equivalent. Thus, to avoid summary judgment, Plaintiff must submit evidence from which a reasonable juror could conclude she was entitled to additional leave or to reinstatement in early September 2002 and that Defendant denied her these rights.
Defendant argues that Plaintiff's interference claim fails because her FMLA leave, along with her right to reinstatement, terminated sometime before her attempt to return to work in September 2002. (Mot. for Summ. J. at 19-21.) Plaintiff disagrees, alleging Defendant incorrectly calculates the date on which her FMLA leave expired. (Resp. to Mot. for Summ. J. at 13-19.) The expiration-date calculation depends in large part on whether and to what extent Plaintiff's work schedule as an hourly manager from December 18, 2001, through July 8, 2002, resulted in the accumulation of time which is properly included in her twelve (12) weeks of leave under the FMLA.
The Magistrate Judge recommended denying summary judgment on Plaintiff's interference claim on the ground that, as a matter of law, Plaintiff's alleged reduced work schedule between December 18, 2001, and July 8, 2002, resulted in leave which cannot be included in Plaintiff's 12-week FMLA leave entitlement. (RR at 18-24.) Relying on 29 U.S.C. § 2612(b)(1), the Magistrate Judge found that the FMLA precludes the taking of intermittent or reduced schedule leave absent an agreement between the employee and the employer. (RR at 18-19.) The Magistrate Judge further found that, because genuine issues of material fact exist regarding whether Plaintiff's reclassification as an hourly manager with reduced hours was by agreement or was unilaterally imposed by Defendant, this alleged reduced schedule leave cannot be included in Plaintiff's FMLA-leave calculation. (Id. at 19-20.)
Section 2612 provides an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period for one or more of the following:
(A) Because of the birth of a son or daughter of the employee and in order to care for such son or daughter.
(B) Because of the placement of a son or daughter with the employee for adoption or foster care.
(C) In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.
(D) Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee. 29 U.S.C. § 2612(a)(1). Subsection (b)(1) of this section — the prohibition relied on by the Magistrate Judge — states that "[l]eave under subparagraph (A) or (B) . . . shall not be taken by an employee intermittently or on a reduced leave schedule unless the employee and the employer of the employee agree otherwise." 29 U.S.C. § 1612(b)(1).
Defendant objects to the Magistrate Judge's recommendation, arguing 29 U.S.C. § 2612(b)(1) does not apply to intermittent leave taken by a pregnant employee in advance of giving birth. Having reviewed Defendant's arguments and the language of 29 U.S.C. § 2612(b)(1), the Court agrees this statutory prohibition on intermittent or reduced schedule leave does not apply here. However, the inapplicability of this prohibition does not end the inquiry. The Court still must determine whether and to what extent Plaintiff's December 2001-July 2002 reduced work schedule should be included in calculating her FMLA leave, and whether its inclusion results in Plaintiff's 12-week leave entitlement expiring before September 9, 2002.
Plaintiff does not respond to this argument. Instead, Plaintiff argues the actual date of expiration of her FMLA leave does not matter because Defendant in its Answer and responses to discovery admitted in judicio that Plaintiff's FMLA leave ended no sooner than September 9, 2002. (Resp. to Def.'s Objections to RR at 1-7.) Having reviewed Defendant's statements relied on by Plaintiff, the Court finds they are insufficient to constitute admissions in judicio and otherwise are not admissions on which this Court will rely in deciding this motion.
The agreement requirement of 29 U.S.C. § 1612(b)(1) applies only to leave for the birth of a son or daughter or the placement of a son or daughter with the employee for adoption or foster care, a point the subsection's next sentence makes clear: "[L]eave under subparagraph (C) or (D) of subsection (a)(1) of this section may be taken intermittently or on a reduced leave schedule when medically necessary." 29 U.S.C. § 1612(b)(1).
That Defendant failed to notify Plaintiff that her alleged reduced schedule leave may be designated as FMLA leave also does not preclude this leave from being included in the 12-week calculation. See McGregor v. Autozone, Inc., 180 F.3d 1305, 1309 (11th Cir. 1999) (holding Department of Labor regulation "manifestly contrary to the statute" because it "converts the statute's minimum of federally-mandated unpaid leave into an entitlement to an additional 12 weeks of leave unless the employer specifically and prospectively notifies the employee that she is using her FMLA leave"); Johnson, 199 F. Supp. 2d at 1356-57 ("An employer may indeed construe as FMLA leave any leave that an employee is taking as a result of a qualifying event, without express notice to the employee.") (citing McGregor, 180 F.3d at 1308).
Having reviewed the arguments of the parties and the evidence of record, the Court finds that at this stage of the litigation it cannot determine with the requisite certainty whether and to what extent this time should be included. The Act provides that a pregnant employee may take leave because of a "serious health condition" that makes the employee unable to perform the functions of the position of such employee. 29 U.S.C. § 2612(a)(1)(D); see also 29 C.F.R. § 825.203(c)(1) ("A pregnant employee may take leave intermittently for prenatal examinations or for her own condition, such as for periods of severe morning sickness."). Although this leave "may be taken intermittently or on a reduced leave schedule when medically necessary," 29 U.S.C. § 2612(b)(1), "[a]n employee may not be required to take more leave than necessary to address the circumstance that precipitated the need for leave. . . ." 29 C.F.R. § 825.204(e).
In this case, the parties dispute the implementation of and the need for Plaintiff's reduced schedule leave. Plaintiff testified that before becoming pregnant in November 2001 she typically worked five days a week for approximately eight hours a day. (Pl. Dep. at 207.) In mid-December 2001, Plaintiff asked Phillip Hembree ("Hembree"), the owner and operator of Defendant, whether she could spread her twenty-one accrued, paid vacation days over twenty-one weeks to allow her to work four days a week instead of five. Plaintiff previously had suffered a miscarriage, and testified she requested to use her vacation so that she could reduce the time she was on her feet during the first few months of her pregnancy. (Pl. Dep. at 210-11, 219.) There is, however, no evidence Plaintiff's doctor required her to reduce her schedule during these first months. In fact, Plaintiff testified that the only reason she requested this reduction was because she believed her vacation would cover these days off and thus she would not suffer any reduction in income. (Pl. Dep. at 227). Hembree rejected Plaintiff's proposal and unilaterally reclassified Plaintiff as an hourly manager. After her reclassification, Plaintiff's scheduled hours were reduced significantly. Plaintiff opposed the reclassification and the concomitant reduction in her hours. In the months that followed, she complained to Hembree about the reduction in hours and informed him she was capable of working more often. (Pl. Dep. at 232-33.) Defendant seeks to designate this reclassification and reduction as intermittent or reduced schedule leave for a serious health condition under the FMLA.
Viewing the record as a whole, and in the light most favorable to Plaintiff, there are genuine issues of material fact regarding whether Plaintiff's reduced-schedule status beginning in December 2001 was medically necessary. Even assuming her reduced schedule leave was medically necessary in December 2001, or became medically necessary in April 2002, there are genuine issues of material fact regarding whether Defendant required Plaintiff to take more leave than necessary for her condition and, if so, what portion, if any, of her reduction in hours can fairly be characterized as necessary FMLA leave. Because of these issues of material fact, the Court is unable to calculate with the requisite certainty the amount of Plaintiff's reduced schedule status which can properly be designated as FMLA leave. As a result, the Court cannot conclude that, as a matter of law, Plaintiff was not entitled to and was not denied reinstatement to her previous Assistant Manager position or its equivalent when she tried to return to work in early September 2002, and summary judgment on Plaintiff's interference claim is not appropriate.
In late April 2002, Plaintiff's doctor required that she refrain from working on her feet for more than six hours at a time. Plaintiff testified she informed Hembree of this restriction and that it had no effect on her work schedule.
Defendant also argued, in the alternative, that its September 2002 failure to reinstate Plaintiff to her previous position or its equivalent did not violate the FMLA because Defendant offered to reinstate Plaintiff to her previous position and she rejected this offer. (Reply in Supp. of Mot. for Summ. J. at 6-7.) The Magistrate Judge acknowledged this alternative argument but, in light of the factual dispute regarding the expiration of Plaintiff's FMLA leave and the September 2002 communications between her and Defendant's representatives, ultimately rejected it. (RR at 16-23.) Defendant does not object to the Magistrate Judge's rejection of this argument or otherwise raise the argument in challenging the Report and Recommendation.
2. Plaintiff's Retaliation Claim
Plaintiff alleges she was retaliatorily discharged for taking FMLA leave and for seeking reinstatement to her previous position as Assistant Manager. The FMLA makes it "unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter. . . ." 29 U.S.C. § 2615(a)(2). "Unlike an interference claim, a plaintiff who asserts a retaliation claim must prove that the employer acted with the requisite intent to retaliate." Johnson v. Morehouse College, 199 F. Supp. 2d 1345, 1359 (N.D.Ga. 2001).
Applying the McDonnell Douglas burden-shifting and prima facie framework used in the Title VII context, the Magistrate Judge recommended that the Court deny summary judgment on this claim. The Magistrate Judge found Plaintiff could establish a prima facie case of retaliation because Defendant did not contest two of the three elements of a prima facie case, and that a fact issue exists as to the third element — namely, whether there is a causal connection between Plaintiff's protected activity and her discharge. (RR at 24-29.) The Magistrate Judge further found Plaintiff presented evidence from which a reasonable juror could conclude Defendant's legitimate, non-retaliatory reasons for Plaintiff's discharge — that she refused to meet the scheduling demands of her position when discussing her return to work and did not indicate when, if ever, she would be able to return — were a pretext for unlawful retaliation. (Id. at 29-31.) Defendant does not challenge the Magistrate Judge's recommendation with respect to Plaintiff's prima facie case or its legitimate, non-retaliatory reasons for her discharge. It does argue the Magistrate Judge erred in holding Plaintiff's evidence of pretext was sufficient to create a genuine issue of material fact. (Def.'s Objections to RR at 9-13.)
The Court agrees. Plaintiff testified that she informed Hembree in early September 2002 that she was ready and physically able to return to work. (Pl. Dep. at 266-67, 285.) On September 9, 2002, she met with Hembree and other restaurant personnel to discuss her return. Plaintiff informed Hembree that, because of child-care issues, she was available only Monday through Saturday during the day and would need her schedule to accommodate her child-care issues. (Pl. Dep. at 277.) Hembree did not accept this arrangement because the hours Plaintiff had requested did not fit into the regular shifts for Assistant Managers. Hembree also rejected subsequent proposals from Plaintiff to work part-time in a different capacity — hourly manager, food server, etc. Following the rejection of the alternatives Plaintiff urged, she was discharged. Defendant's evidence demonstrates Plaintiff was discharged because she was unwilling to meet the scheduling demands of the Assistant Manager position and because she did not indicate when, if ever, she was willing to return on a full-time basis.
Because Plaintiff never returned to work, the effective date of her discharge was September 9, 2002.
Although Plaintiff testified she would have come back to work full-time as Assistant Manager if asked to do so, she concedes she did not inform Hembree, prior to her discharge, of her willingness to return to work as an Assistant Manager on a full-time schedule. (Pl. Dep. at 278.) Instead, she claims that on September 11, 2002, she had a conversation with Preetha John ("John"), an employee of a company hired by Defendant to administer its FMLA leave policy, in which Plaintiff allegedly informed John she was willing to return to work in any position on any schedule, including evening and weekend shifts. (Resp. to Def.'s Objections to RR at 8.) Plaintiff does not submit any evidence that John informed Hembree of Plaintiff's willingness to return to work for any shift before Plaintiff's discharge. In fact, the record evidence indicates John did not inform Hembree of her September 11, 2002 conversation with Plaintiff until January 2003, well after Hembree made the decision to discharge Plaintiff because she was not willing to work a regular Assistant Manager's schedule. (See John Dep. at 56-57.) Based on the record before the Court, no reasonable juror could conclude Defendant's legitimate, non-retaliatory reasons for Plaintiff's discharge were a pretext for unlawful retaliation. Accordingly, summary judgment on Plaintiff's claim for retaliation is warranted.
Defendant also argues that the Magistrate Judge employed an incorrect legal standard in evaluating Plaintiff's evidence of pretext. Specifically, Defendant argues that to survive summary judgment, Plaintiff must "present significant probative evidence establishing that each and every reason proffered by [Defendant] is a lie and that Defendant was actually motivated by her use of her FMLA leave and not the proffered reason." (Def.'s Objections to RR at 9.) This argument is without merit. In fact, the first case cited by Defendant in support of its argument directly undermines it. In Arrington v. Cobb County, 139 F.3d 865 (11th Cir. 1998), the court stated that "[a]s this court has repeatedly held, a Title VII plaintiff may defeat a motion for summary judgment by undermining the credibility of a defendant's explanation for its actions." 139 F.3d at 875. The court expressly rejected the district court's ruling that, in addition to undermining the credibility of the defendant's explanation, the plaintiff was required to submit evidence the defendant was motivated by its discriminatory intent. Id.
The Court's denial of summary judgment with respect to Plaintiff's interference claim is not inconsistent with its grant of summary judgment with respect to her retaliation claim. This is so because the intent necessary to demonstrate retaliation is not required to show interference with a right under the FMLA:
[I]n a dispute concerning the amount of an FMLA leave that an employee can take, an employer who has fired an employee for exceeding her FMLA leave, and who later turns out to be wrong in his calculations, may be held liable on an interference claim for denying the exercise of a right provided by the FMLA. . . . The employer's liability, however, depends totally on whether he calculated correctly the FMLA leave to which the employee was entitled. Such an employer is not subject to the "retaliation" prohibitions of the statute by virtue of his miscalculation, alone.Johnson, 199 F. Supp. 2d at 1361.
III. CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Defendant's Motion for Leave to File a Reply to Plaintiff's Response to Defendant's Objections to the Report and Recommendation or, in the Alternative, Request for Oral Argument [61] is GRANTED IN PART and DENIED IN PART. Defendant's request for leave to file its reply brief is GRANTED and the Clerk of Court is DIRECTED to file Defendant's reply brief and docket it as if filed on March 17, 2005. Defendant's request for oral argument is DENIED AS MOOT. IT IS FURTHER ORDERED that the Magistrate Judge's Report and Recommendation [56] is ADOPTED IN PART and Defendant's Motion for Summary Judgment [39] is GRANTED IN PART and DENIED IN PART. The Court ADOPTS the Magistrate Judge's Report and Recommendation with respect to Plaintiff's Title VII claims, and Defendant's motion for summary judgment on these claims is GRANTED. The Court DECLINES TO ADOPT the Magistrate Judge's Report and Recommendation with respect to Plaintiff's FMLA claims. For the reasons set out above in Section II(C)(1) and (2), supra, Defendant's motion for summary judgment on Plaintiff's claim for interference under the FMLA is DENIED and its motion for summary judgment on Plaintiff's claim for retaliation under the FMLA is GRANTED.
SO ORDERED.