FMLA Attorneys Proceed to Court


In the following case, a motion for judgment on the pleadings was defended in an FMLA case.  If you want to learn more about the FMLA, read below.


FMLA retaliation and interference claims can have overlap and therefore be the subject of confusion. However, the Eleventh Circuit has said that “Nomenclature counts less than substance” in FMLA cases. Brungart v. Bellsouth Telecommunications. Inc., 231 F.3d 791, 798, fn.5 (11th Cir. 2000).
Interference claims arise in many instances where retaliation is also present. For example, “Employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions; nor can FMLA be counted under “No-Fault” attendance policies. See 29 C.F.R. §825.220; Stoops v. One-Call Communs. Inc., 141 F.3d 309, 312 (7th Cir. 1998) (an employer cannot defend an FMLA interference claim by arguing that “only” one of the employee’s absences was protected). An employer’s failure to make a further inquiry, if necessary, to determine whether the leave is FMLA-qualifying can also be found to interfere with an employee’s exercise of rights under the FMLA. See, Schober v. S.M.C. Pneumatics, Inc., 2000 U.S. Dist. LEXIS 12478 (S. D.lnd. 2000).
In Brannon v. Oshkosh B’gosh. Inc., 897 F. Supp. 1028, 1038, 1039 (M.D. Tenn. 1995), the Court faced an employer who did not inquire when an employee took unforeseeable leave giving her employer notice “as soon as practicable,” but simply assessed points and then fired her for excessive absences. Finding that it was “the employer’s duty to make further inquiry to determine if the leave qualifies for FMLA protection per 29 C.F.R. § 825.303(b), the Court granted the employee partial Summary Judgment ruling the assessment of points and subsequent termination violated the Act. And in Brunson v. Forest Preserve District of Cook County, 2010 U.S. Dist. LEXIS 18949 (N.D. Ill. 2010) an employee terminated for excessive absences was granted Summary Judgment on his interference claim with the Court finding the employer’s argument of inadequate notice of the seriousness of the employee condition “further undermined by their failure to seek any additional information upon receipt of the [certification] form.”


29 CFR 825.220(a)(1) provides that “An employer is prohibited from interfering with, restraining, or denying the exercise of (or attempts to exercise) any rights provided by the Act.” The regulations also provide that FMLA interference includes not only refusing to authorize FMLA but also discouraging its use:
Interfering with the exercise of an employee’s rights would include, for example, not only refusing to authorize FMLA to leave but discouraging an employee from using such leave. It would also include the manipulation by a covered employer to avoid responsibilities under FMLA. . .
29 CFR 825.220(b), (e.s.).
Plaintiff’s Complaint contains more than sufficient allegations to support the fact that Defendant both refused and “discouraged” Plaintiff from taking FMLA leave. Paragraph 6 makes it clear that Mr. Mama refused her leave:
6. In response to Plaintiff’s request for leave, Mr. Mama refused the offer and stated that Plaintiff could only have two weeks to care for her mother.
(e.s.). Moreover, as pled in Paragraph 6, Mr. Mama’s attempt to limit Plaintiff to only two weeks leave constitutes Defendant’s “manipulation by a covered employer to avoid responsibilities under FMLA” as prohibited by 29 CFR 825.220(b). Also, Paragraph 9 of the Complaint makes it clear that Defendant also discouraged her from taking FMLA leave:
9. Defendant’s H.R. called Mr. Mama about Plaintiff having to go to them instead of him, and Mr. Mama expressed his disdain for Plaintiff’s having gone to H.R. to request FMLA. Mr. Mama stated that he did not agree with the FMLA request.
(e.s.). As pled in paragraph 10 of the Complaint, Mr. Mama’s interference culminated in his eventual wrongful termination of Plaintiff.
The acts of Mr. Mama as pled in paragraphs 6, 9, and 10 are all things that would lead a reasonable employee to be discouraged from taking FMLA to leave themselves – especially when an employee’s immediate supervisor does these things. See e.g., Di Giovanna v. Beth Israel Med. Ctr., 651 F. Supp. 2d 193 (S.D.N.Y. 2009) (An interference claim based upon alleged acts of “discouragement” should be judged based on an objective standard: would a reasonable employee in the same circumstances be dissuaded from exercising any FMLA benefit because of such discouragement?); see also Ridgeway v. Royal Bank v. Scotland Group, 2013 WL 1985016 (D. Conn. May 13, 2013); Vess v. Scott Medical Corp., 2013 WL 1100068 (N.D. Ohio March 15, 2013). Moreover, no reasonable employee with a sense of self-preservation wants (or should be required) to “go over” their supervisor’s head to obtain their legal rights, as pled in Paragraph 7 of the Complaint.
Viewing these alleged facts in a light most favorable to Plaintiff, there is no doubt that Plaintiff adequately pled her claim for interference. Perez v. Wells Fargo N.A., 774 F.3d 1329, 1335 (11th Cir. 2014) (In reviewing the Motion, all material facts alleged in the non-moving party’s pleading are accepted as accurate, viewing those facts in the light most favorable to the non-moving party.). If a comparison of the averments in the competing pleadings reveals material disputes of truth, then judgment on the pleadings must be denied. Id. At 1335. Even threats are sometimes sufficient to establish an interference claim. See, e.g., Mardis v. Central Nat. Bank & Trust of Enid, 173 F.3d 864, 1999 WL 218903 (10th Cir. April 15, 1999) (threatening employee with loss of accrued vacation as a condition for taking FMLA leave — the loss of an employee benefit — raises an interference claim). Here, Plaintiff’s allegations go well beyond mere threats and are thus clearly actionable.[1]


Defendant’s counsel misrepresented in its Motion that the undersigned would not speak telephonically with them before Defendant filed its instant Motion. Before removing this matter to this Court from State court, the Defendant emailed the undersigned stating vaguely that it “want[ed] to discuss some of the details of the complaint.” On that same day, the undersigned responded to Defendant’s cryptic email and asked whether Defendant sought “to move to dismiss or strike” the Complaint; in response, Defendant replied on September 4, 2015, that it instead intended to remove this case to federal Court (naturally, as this is a federal cause of action).[2]
On September 9, 2015, the Defendant removed this case. As of the removal date, the undersigned considered Defendant’s removal issue resolved. The illusion continued on September 16 when the Defendant filed an answer to the Complaint. At no point did Defendant even mention it intended to file a Motion for Judgment on the Pleadings (or Motion to Dismiss, or any sort of Motion for that matter). Defendant’s emails regarding its intents, in this case, were purposefully vague.
Defendant also never once requested a conference with the undersigned after this case was removed from this Court. On the contrary, only the undersigned has attempted to schedule a telephone conference with the Defendant while pending in Court. However, the undersigned’s requests were both ignored and denied by Defendant’s counsel. The following are parts of 3 emails sent by the undersigned to counsel for Defendant requesting a telephonic conference:
September 14, 2015: Also, we need to pick a date for the C.M.C.  How is 9/29 at noon?
September 24, 2015: Don’t forget about the C.M.C.  We have to hold it. I’m suggesting 9/29 at noon.
September 25, 2015: “. . . Moreover, we have now requested from you twice a date to meet for the preparation of the Case Management Conference.  Both of our requests have been ignored. ..”
Finally, only after the undersigned threatened to file a unilateral C.M.R. in the email of September 25, Defendant’s counsel stopped ignoring the undersigned pleas to schedule a conference. However, instead of working on setting a date to talk, Defendant refused to schedule one entirely via this email from Defendant’s counsel to the undersigned:
Concerning the C.M.C., the Initial Scheduling Order states that “Counsel of record and any unrepresented parties shall confer (personally, by phone, or electronically)….  Moreover, we have 30 days from September 14, 2015 (until October 14, 2015), to confer and then 14 days to file a joint report.  Therefore, any statements that we are unwilling to comply with this Order are premature and unfounded.  We will be forwarding a draft joint report for your input next week.
(emphasis in original).
Defendant’s assertion in its Motion that it sought to meet “in hopes of resolving this matter without the need of filing a motion” is highly misleading – at best. Defendant never requested a meeting of any kind after it removed this case to this Court; instead, it took every possible effort to avoid a telephonic conference with the undersigned on or about September 29. Defendant never indicated it intended to file a specific type of Motion, even after the undersigned specifically asked whether it sought to file a motion to dismiss or Motion to strike. The Defendant is also refusing a rather typical phone conference to comply with the Court’s Order and hold the Case Management Conference – stating that Defendant’s counsel will only do so “electronically.”
Finally, and most incredibly, the date proposed by the undersigned in the emails, as mentioned earlier, to meet telephonically was September 29. Defendant’s instant Motion was filed on October 1. The undersigned twice asked to meet telephonically prior to the date Defendant filed the instant Motion and said requests were literally ignored and then ultimately totally denied by Defendant. Thus, Defendant’s claim on page 7 of its Motion that “Defendant’s counsel attempted, in good faith, to schedule a telephone conference with Plaintiff’s counsel” is intentionally misleading. Regardless of whether such a conference as required by the local rules, Defendant’s misrepresentation that it attempted in good faith to schedule a telephone conference before filing its Motion on October 1 is extremely misleading because the undersigned made multiple attempts to schedule a telephone conference with Defendant’s counsel before the date it filed its Motion.[3]


The Eleventh Circuit has “long expressed a strong policy of determining cases on their merits when reasonably possible.” Perez v. Wells Fargo NA, 774 F. 3d 1329 (11th Cir. 2014). However, to the extent Plaintiff needs to plead additional facts, she respectfully requests the opportunity first to amend her Complaint rather than the entry of an actual judgment against her. Finally, Defendant’s counsel twice refused a telephone conference with the undersigned before the time it filed its Motion and ultimately completely refused to speak by phone – contrary to its allegation that a good faith attempt to confer by telephone was made by Defendant before filing its Motion. Accordingly, Defendant’s Motion should be denied with all other relief deemed necessary and proper by the Court.

    1. To prove prejudice by an FMLA violation, the Plaintiff may demonstrate harm remediable by either damages or equitable relief, as provided by the FMLA. Evans v. Books-A-Million, 762 F.3d 1288, 1296 (11th Cir. 2014). Plaintiff was not only fired by Mr. Mama and thus clearly damaged, but she also pled equitable relief in their Wherefore clause of her Complaint.
    1. Defendant’s email stated in part that “We will be removing this case to the Northern District. Therefore, pursuant to the local rules, we want to discuss with you the deficiencies contained in the Complaint before the filing of the Motion with the Court.” The “Motion” Defendant’s counsel referenced was thus presumably a motion to remand; however, the undersigned never considered making a motion to remand, and therefore, no conference was necessary on that issue.
  1. The undersigned initially wondered why Defendant was refusing to respond to the requests to meet telephonically on or about September 29, something that is never a problem in any other case with any other counsel. Moreover, the Defendant’s outright refusal to talk on the phone at all (and only hold the C.M.C. “electronically”) was even more surprising and unusual. In light of the Defendant’s request for an actual Judgment against Plaintiff, it appears now to all be strategic decisions by Defendant’s counsel.


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