Marks v. Orion - Plaintiff's Response To MSJ

Case 1:10-cv-20121-DLG Document 48 Entered on FLSD Docket 08/30/2010 Page 1 of 19
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
Miami Division
Case No.: 10-20121-civ-GRAHAM/Torres
JACQUELINE MARKS,
Plaintiff,
v.
ORION MEDICAL ENTERPRISES, INC.

a Florida corporation, d/b/a North Beach
Dialysis Center & NORTH BEACH
DIALYSIS CENTER, INC., a Florida
Corporation & JOHN DOES 1-10,
Defendants.
_______________________________________/
PLAINTIFF’S RESPONSE TO DEFENDANTS’

MOTION FOR SUMMARY JUDGMENT
Pursuant to Local Rule 7.5(b), Plaintiff, Jacqueline Marks, hereby files her Response to
Defendants’ Motion for Summary Judgment (the “Motion”). [D.E. 35]. Plaintiff’s Response the
Defendants’ Statement of Undisputed Material Facts (which was incorporated into the Motion) is
being filed contemporaneously. For the reasons stated below, the Motion should be denied. 1
1
Generally, summary judgment in employment cases, like here, where intent, credibility
and other subjective feelings play dominant roles, should be granted only with great caution.
See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (“Neither do we suggest that
the trial courts should act other than with caution in granting summary judgment or that the trial
court may not deny summary judgment in a case where there is reason to believe that the better
course would be to proceed to a full trial.”); United States v. Aikens, 460 U.S. 711, 716 (1983)
(vacating bench verdict for employer and noting “All courts have recognized that the question
facing triers of fact in discrimination cases is both sensitive and difficult.”) (emphasis added);
(internal citations omitted); Alexander v. Wisc. Dept. of Heath & Family Servs., 263 F. 3d 673,
680-81 (7th Cir. 2001) (noting that summary judgment in employment cases requires “added
vigor” due to the nature of the claim, the role that witness credibility plays and the statutory right
to trial by jury); Wright v. Southland Corp., 187 F.3d 1287, 1290 (11th Cir. 1999) (“A
discrimination suit . . . puts the plaintiff in the difficult position of having to prove the state of
mind of the person making the employment decision.”). This difficulty is especially significant
Page 1 of 19
SARELSON LAW FIRM, P.A., 1401 Brickell Avenue, Suite 510, Miami, Florida 33131, 305-379-0305, 800-421-9954 (fax)
www.FloridaEmploymentLawyerBlog.com
www.Sarelson.com
Introduction
This is a labor suit brought pursuant to the Family and Medical Leave Act. 29 U.S.C. §
2615, et seq. In sum, the Plaintiff was unlawfully denied FMLA leave and was then unlawfully
denied reinstatement after taking a few weeks off. The leave was given “gratuitously” and not
pursuant to the FMLA. After being denied reinstatement, the Plaintiff filed a complaint with the
U.S. Department of Labor – the agency tasked with enforcement of the FMLA. The DOL
ordered the employer to reinstate the Plaintiff and to pay back pay and the Defendant initially
agreed. Almost immediately after agreeing to the reinstatement, the Defendants changed their
minds and, through counsel, attempted to settle the matter by paying the Plaintiff her back pay
without reinstatement even though she still had about six weeks of FMLA leave remaining.
Only after being told she was not going to be reinstated (despite originally agreeing to the
reinstatement), Plaintiff reluctantly was forced to retain counsel and this lawsuit followed.
Relevant Chronology
The simplest way for the Plaintiff to respond to the Motion is to set forth a basic
chronology of material facts. Most of the facts are taken directly from the Defendants’ own
testimony or the unchallenged investigation notes prepared and produced by the DOL following
the Plaintiff’s complaint to the agency. 2
where, like here, the employer is in possession, custody or control of almost all of the relevant
documents and could easily withhold or manipulate the documents. Plaintiff has repeatedly been
denied access to relevant and potentially probative emails between and among the Defendants’
officers or employees.
Moreover, this Response is filed without waiving her pending Rule 56(f) Motion and her
pending request for a status conference concerning a long-standing discovery dispute over
improperly withheld emails.
2
The DOL records are admissible pursuant to Fed. R. Evid. 803(8).
Page 2 of 19
www.Sarelson.com
• May 27, 2009 – Plaintiff provides the Defendants a doctor’s note indicating she
has a pinched nerve in her right arm. 3 See D.E. 36-2, p. 14 (NB_0014.) (Defendants
acknowledge receiving the note and giving her time off as requested). See Patterson Dep. at pp.
25-26. Other than taking two days off, the pinched nerve in no way affected her ability to
perform her job and the Defendants did not raise any concern regarding her ability to perform
with a pinched never.
• July 29, 2009 – Plaintiff provides the Defendants a follow-up doctor’s note that
includes a ten pound lifting restriction. See D.E. 36-2, p. 13 (NB_0013). (Defendants
acknowledge receiving the note). See Patterson Dep. at pp. 25-26. This lifting restriction in no
way affected Plaintiff’s ability to perform her job and the Defendants did not raise any concern
regarding her ability to perform with a pinched nerve. Plaintiff worked without incident for
several shifts after being placed on the ten pound lifting restriction. See Marks Dep. at p. 100.
• Early August 2009 – Plaintiff requests the necessary paperwork for FMLA leave
through her supervisor, Sasha Patterson, but is told by Ms. Patterson that the company vice-
president, Kim Bordelon, determined that her shoulder injury was not a qualifying medical
condition. See Marks Dep. at pp. 82-85; 126. (The Defendants’ deny this ever occurred).
• August 7, 2009 – Plaintiff starts paid-time-off leave to rehabilitate her shoulder.
See Marks Dep. at p. 100.
3
A pinched nerve generally requires rest and cessation of any physical activity that could
cause pain or further pinch the affected nerves. See generally Pinched Nerve: Treatment and
Drugs, Mayo Clinic, at http://www.mayoclinic.com/health/pinched-
nerve/DS00879/DSECTION=treatments-and-drugs, last viewed August 28, 2010. A pinched
nerve is a common medical condition that non-health care providers are familiar with (even if
they do not know the scientific details). Despite this common medical condition, the
Defendants’ corporate designee, a registered nurse, testified that she has no idea what a pinched
nerve is. See Bordelon Dep. at pp. 59-60.
Page 3 of 19
www.Sarelson.com
• August 19, 2009 – Ms. Patterson telephoned the Plaintiff to remind her of the
number of days of “paid-time-off” leave she had remaining and that she would not be paid after
those days ran out and that she would be taken off the schedule. See Marks Dep. at p. 130. She
was also told that could remain employed “as needed” after her paid-time-off expired. Id. at p.
87.
• August 24, 2009 – Plaintiff’s doctor personally faxes a DOL “Certification of
Health Care Provider” form indicating that Plaintiff has a serious medical condition within the
meaning of the FMLA. D.E. 36-2, p. 5. The form indicates that Plaintiff was diagnosed with a
torn rotator cuff (and not a pinched nerve as previously diagnosed). Id. When asked if the
Plaintiff was unable to perform work of any kind, the doctor clearly indicated “no,” meaning she
could perform her job. Id. When asked, in a follow up question, if the Plaintiff was unable to
perform any one or more of the essential functions of the employee’s job, the doctor clearly
indicated “no,” meaning she could perform all aspects of her job. Id. (Plaintiff’s doctor had to
prepare the FMLA request form on behalf of Plaintiff because she was told by her employer that
her medical condition did not qualify). See Marks Dep. at pp. 82 & 133-135.
• August 24, 2009 – Defendants claim Plaintiff was placed on FMLA leave until
November 24, 2009 pursuant to the doctor’s certification of the same date. See Bordelon, p. 28.
There is no documentation confirming the start of Plaintiff’s FMLA leave (known as a “notice of
eligibility” and a “designation notice” under the FMLA) and the Defendants admit that they
never actually informed the Plaintiff that she was placed on FMLA leave. Id. at pp. 28 & 87-88;
see Patterson Dep. at p. 13. (Bordelon later admitted to Plaintiff that she was never “technically”
on FMLA leave. See Marks Dep. at pp. 167 & 198.).
Page 4 of 19
www.Sarelson.com
• August 24-25, 2009 (approximately) – One of Plaintiff’s co-workers informs her
that Ms. Bordelon was “upset and pissed off” that Plaintiff filed for FMLA leave. See Marks
Dep. at pp. 81-82.
• August 26, 2009 – Defendants mailed a letter to Plaintiff’s doctor indicating that
they could not read the August 24 certification and requested that the certification be completed
again with further details. D.E. 36-2, p. 9. (There is no explanation for why Ms. Bordelon
testified that she placed Plaintiff on FMLA leave on August 24 pursuant to the doctor’s
certification but then wrote a letter to the doctor two days letter stating that the certification was
illegible and requesting a new, more detailed version).
• September 18, 2009 – Plaintiff provides the Defendants a doctor’s note medically
clearing her for return to work. D.E. 36-2, p. 1 (NB_00001). The note also indicates a five
pound lifting restriction, but, consistent with his August 24 certification, did not identify any
essential job functions that Plaintiff could not perform. Id. The Defendants refused to reinstate
the Plaintiff, purportedly because of the five pound lifting restriction. See Bordelon Dep. at pp.
30-31; Patterson Dep. at p. 17; Marks Dep. at p. 165. During a telephone conversation on the
same date, see Marks Dep. at p. 140, the Defendants also told the Plaintiff they took her off the
schedule, that she had been replaced and that she was never “technically” on FMLA leave. See
Marks Dep. at pp. 14 & 167-169. The Defendants did offer to keep her employed on an “as-
needed” basis. Id. at p. 169.
• September 22, 2009 – In response to a request by the Defendants, Plaintiff
provides the Defendants’ with a second letter from her treating physician stating she is
“medically clear to return to work.” See Composite Exhibit A (Marks_00003); Marks Dep. at
Page 5 of 19
www.Sarelson.com
pp. 138-139. Her doctor also indicated that the August 24, 2009 letter inadvertently used the
phrase “permanently disabled.” Id.
• September 30, 2009 – Plaintiff files a complaint with the DOL regarding the
Defendants’ refusal to reinstate her following FMLA leave. D.E. 36-2, p. 67.
• October 1, 2009 – DOL contacts the Defendants for the first time in response to
Plaintiff’s DOL complaint. See Bordelon Dep. at p. 76. The DOL initially spoke with Ms.
Patterson, who relayed the message to Ms. Bordelon. Id. Ms. Bordelon was unable to respond
to the DOL until the following Monday, October 5, 2010. Id.
• October 5, 2009 – Ms. Bordelon speaks with the DOL investigator for the first
time and agrees to reinstate the Plaintiff. See Bordelon Dep. at pp. 35-36, 75-76. Ms. Bordelon
testified that she only agreed to reinstate the Plaintiff because the DOL investigator was
“bullying” her during that first brief telephone call. Id. In the same day, the Plaintiff was told
that she would be reinstated but to a different position that required more travel because it was an
“in-home” (as opposed to an “in-clinic”) program. D.E. 36-2, p. 72 (DOL_000010). Plaintiff
complained again to the DOL about the different position, and the DOL again contacted Ms.
Bordelon and requested that she be returned to the original position, as required by the Act. Id.
That same day, Ms. Bordelon instructed Ms. Patterson to inform the Plaintiff that she could
return to work two days later, on Wednesday, October 7, 2009. See Bordelon Dep. at p. 37.
Importantly, Ms. Bordelon agreed to reinstate Plaintiff even after acknowledging to the DOL the
five-pound lifting restriction. D.E. 36-2, p. 72. (Ms. Bordelon testified that the DOL’s
investigator was mistaken and that she never reviewed the actual document indicating a five-
pound lifting restriction). See Bordelon Dep. at p. 80.
Page 6 of 19
www.Sarelson.com
• October 6, 2009 – Ms. Bordelon instructs Ms. Patterson to inform the Plaintiff
that she could not return to work the next day as previously indicated. Id. at p. 38. Plaintiff is
not given an explanation; she is simply told she is not to come to work.
• October 13, 2009 – The Defendants receive a second opinion that confirms the
first opinion. See Composite Exhibit A (Marks_00176-179).
• October 13, 2009 (approximately) – Plaintiff is advised by the DOL that the
Defendants do not want her to return to work. See Marks Dep. at pp. 182-189. She is told by the
DOL that the Defendants, through attorney Baumgarten, wanted her to accept $500 and to go
away. Id.
• November 18, 2009 – The DOL issues the following “conclusions &
recommendations:”
a. The employee has a qualifying medical condition under the FMLA.
b. The employer failed to provide a notice of eligibility to the employee, in violation
of 29 C.F.R. § 825.300.
c. The employer failed to reinstatement the employee to an equivalent position, in
violation of 29 C.F.R. § 825.214-.215.
d. The employer agreed to reinstate the employee to the same position and same
shift and to pay for lost wages.
e. After the employer agreed to reinstate the employee, the employer hired attorney
Baumgarten and a settlement agreement for lost wages only was offered.
Page 7 of 19
www.Sarelson.com
f. The offer was declined by the employee and she is seeking counsel. D.E. 36-2, p.
69. 4
• November 24, 2009 – Plaintiff’s FMLA leave (to the extent she was ever really on
FMLA leave) technically expires. See Bordelon Dep. at p. 28. The Defendants claim
Plaintiff was never officially terminated and never resigned, see id. at pp. 85, and yet they
challenged and denied her unemployment benefits (which Plaintiff successfully
appealed). See Composite Exhibit A (AWI Decision of Feb. 22, 2010).
Argument
A. The FMLA Generally
The FMLA created two causes of action – interference and retaliation. See Strickland v.
City of Birmingham, 239 F. 3d 1199, 1206 (11th Cir. 2001) (reversing summary judgment in
FMLA interference case); see also 29 C.F.R. § 825.220. “To prove FMLA interference, an
employee must demonstrate that he was denied a benefit to which he was entitled under the
FMLA.” Martin v. Brevard Cty Pub. Schools, 543 F.3d 1261, 1266-67 (11th Cir. 2008)
(reversing summary judgment in FMLA interference and retaliation case). That’s it. Unlike a
retaliation claim, “an employee need not allege that his employer intended to deny the right; the
employer’s motives are irrelevant.” Id. “An employee has the right following FMLA leave to be
restored by the employer to the position of employment held by the employee when the leave
commenced or to an equivalent position.” Id.; see also 29 U.S.C. § 825.215. The FMLA is
difficult and complex. It places affirmative obligations on employers that most employment
4
There is no evidence that the Defendants ever took any steps to appeal or correct any of
the DOL’s conclusions.
Page 8 of 19
www.Sarelson.com
laws do not. No amount of good faith can avoid liability. It is a strict liability statute; there is no
such thing as a “technical” but harmless violation of the Act. 5
B. Count I – Interference Regarding Eligibility for FMLA Leave
Count I alleges that the Defendants interfered with Plaintiff’s right to take FMLA leave.
The Defendants admit they violated the law in this regard, but are moving for summary judgment
anyway. Eligible employees have an absolute right to request and receive twelve weeks of
FMLA leave. See 29 U.S.C. § 825.200. “When an employee requests FMLA leave, or when the
employer acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason,
the employer must notify the employee of the eligibility to take FMLA leave within five business
days….” 29 C.F.R. § 825.300(b)(1). The Defendants concede that they never provided Plaintiff
with a notice of eligibility form at or about the time the need for FMLA arose. 6 See Patterson
Dep. at p. 12-13; Bordelon Dep. at p. 27; see also Motion, p. 14. Failing to comply with the
FMLA’s notice provision is itself actionable under the FMLA. See 29 C.F.R. § 825.300(e).
The Defendants also violated the FMLA’s “designation” requirement. Pursuant to 29
C.F.R. § 825.300(d)(1), the employer has five days from the date of the request to designate an
employee’s leave as covered FMLA leave. The designation must be in writing, see §
825.300(d)(4), and must be kept by the employer as a business record. See § 825.500. The
Defendants summarily rejected the Plaintiff’s request for FMLA leave and only placed her on
5
This is important because the Defendants’ defense to the retaliation counts is that they
“believed in good faith that she was unable to perform the essential functions of the job…” See
Motion p. 17. “Good faith” is not a defense. See, e.g., Cross v. Southwest Recreational
Industries, Inc., 17 F. Supp. 2d 1362, 1368 (N.D. Ga. 1998) (“The FMLA imposes strict liability
upon employers who deny a FMLA entitlement to a qualified employee.”).
6
This is not surprising because the Defendants actually decided on their own that
Plaintiff’s rotator cuff injury was not a serious medical condition within the meaning of the
FMLA. See Marks Dep. at pp. 82-85; 126. Health care providers, not employers, determine
whether an employee has a qualifying medical condition.
Page 9 of 19
www.Sarelson.com
FMLA leave after her doctor faxed the Defendants a certification form on August 24, 2010. No
written designation was made by the employer at any point and the Plaintiff disputes she was
ever truly on FMLA leave.
Defendants assert that summary judgment on Count I is appropriate because,
notwithstanding their failure to comply with the FMLA, the Plaintiff was nevertheless given time
off, i.e., no harm, no foul. In support, Defendants cite only Barnes v. Ethan Allen, Inc., 356 F.
Supp. 2d 1306 (S.D. Fla. 2005). Aside from having no precedential authority, the case is also
clearly distinguishable. In Barnes, Judge Cohn first indicated that plaintiff’s FMLA lawsuit did
not identify whether it was an interference or a retaliation claim. Id. at 1311. In a single
sentence, Judge Cohn then analyzed plaintiff’s hypothetical interference claim and concluded
that “[s]ince the record is clear that [employee] was on paid [short-term disability] leave for
about seven weeks and did not suffer an adverse employment action until after at least another
five weeks, summary judgment is appropriate for Defendants if the claim is one for interference
with FMLA rights, since Plaintiff received more than twelve weeks of leave.” Id. (emphasis
added). Here, Plaintiff requested FMLA leave but was told she was ineligible by her supervisor
and was never given a notice of eligibility – both unequivocally violate the FMLA. Accordingly,
the Defendants are not entitled to summary judgment with respect to Count I. 7
7
Ms. Patterson testified that she “believed” that she told Plaintiff to review the employee
handbook with respect to leave issues. See Patterson Dep. at p. 12. Even assuming, arguendo,
that this testimony is taken as true, it is irrelevant because the FMLA has a separate provision
requiring FMLA covered employers to include the company’s FMLA procedures in the
employee handbook. See 29 C.F.R. § 825.300(a)(3). The Defendants cannot seriously argue that
their violation of § 825.300(b)(1) is cured because they complied, theoretically, with §
825.300(a)(3).
Page 10 of 19
www.Sarelson.com
C. Count II – Interference Regarding Denial of Reinstatement
Count II alleges that Plaintiff was denied reinstatement following the conclusion of her
FMLA leave, in violation of 29 C.F.R. § 825.214. This too is undisputed. On September 18,
2009, Plaintiff, through her doctor and with a personal phone call, informed the Defendants of
her intent to return to work. D.E. 36-2, p. 1 (NB_00001). Her physician cleared her to return to
work as of September 28, 2009. Id. She was denied reinstatement, purportedly because of a five
pound lifting restriction. See Bordelon Dep. at pp. 30-31; Patterson Dep. at p. 17. The
Defendant would not reinstate the Plaintiff unless her doctor removed the five pound lifting
restriction. Id. (She was also told that while she was on leave she was replaced. See Marks
Dep. at p. 14.). 8
Under the FMLA, this is known as a “fitness for duty certification.” See 29 C.F.R. §
825.312. But a mandatory fitness for duty certification is only permitted when the designation
notice required under § 825.300(d) states that a fitness for duty certification will be required and
when the employer provides the employee with a list of the essential functions of the employee’s
job prior to or contemporaneously with the designation notice. See 29 C.F.R. § 825.312(b)&(d)
& § 825.313(d). Here, it is undisputed that the Plaintiff was never provided a written designation
notice of any kind, and thus the employer is prohibited from requiring a fitness for duty
certification as a condition of reinstatement. Moreover, the August 26, 2009 letter to Plaintiff’s
physician requesting more detailed information did not discuss, in any way, the essential
functions of the employee’s job. Had the Defendants made even a good faith attempt to comply
8
Importantly, “an employee is entitled to such reinstatement even if the employee has been
replaced . . . to accommodate the employee’s absence.” 29 C.F.R. § 825.214(a) (emphasis
added).
Page 11 of 19
www.Sarelson.com
with the Act, certainly the August 26 letter could and should have requested that the doctor’s
certification include the Plaintiff’s ability to perform the essential functions of her job. 9
The Defendants assert that they are entitled to summary judgment on Count II because
the Plaintiff was never “able to resume performance of the essential functions of” her job. See
Motion p. 15. But the Defendants are precluded from even making this argument because of
their failure to comply with the FMLA regulations. See, e.g., Duty v. Norton-Alcoa Proppants,
293 F. 3d 481 (8th Cir. 2002) (affirming verdict for employee and noting that the FMLA
liberally supports equitable estoppel when the employer violates the FMLA).
Most importantly, “once an employee submits a statement from her health care provider
which indicates that she may return to work, the employer’s duty to reinstate her has been
triggered under the FMLA.” Brumbalough v. Camelot Care Ctrs., Inc., 427 F. 3d 996, 1004 (6th
Cir. 2005). Here, the Plaintiff’s treating physician medically cleared her to return to work.
Pursuant to § 825.312(b), “the employer may contact the employee’s health care provider for
purposes of clarifying and authenticating the fitness-for-duty certification . . [but] may not delay
the employee’s return to work while contact with the health care provider is being made.” The
Defendants did not do this – they sent the Plaintiff packing and refused to accept her doctor’s
9
This case is similar to Mahoney v. Ernst & Young LP, 487 F. Supp. 2d 780, 805-806
(S.D. Tex. 2006) where the district court denied summary judgment and held that: “The FMLA
does not authorize an IME to determine whether an employee can return to work from FMLA
leave. Defendant's FMLA rights extended only as far as requiring compliance with its usual
practice of reinstating FMLA-eligible employees upon the submission of return-to-work
certifications from treating physicians. See 29 C.F.R. § 825.310(a). If a need for clarification
had arisen based on that certification, Defendant then could have had its health care provider
contact Plaintiff's treatment provider. See 29 C.F.R. § 825.310(c). Importantly, Defendant was
not allowed to delay Plaintiff's return from FMLA leave based on a need for clarification. See id.
. . . [I]f Defendant impeded the exercise of her right to reinstatement through the imposition of
the IME requirement, then Plaintiff is entitled to recovery under the FMLA.”
Page 12 of 19
www.Sarelson.com
medical clearance. 10 Finally, the FMLA prohibits “second or third opinions on a fitness-for-duty
certification…” Id. The Defendants insisted on a second opinion and, in fact, the Plaintiff
received the same medical clearance from the second doctor. D.E. 36-2, p. 72. Requiring the
Plaintiff to get a second opinion is itself illegal and, ironically, confirmed her treating physician’s
clearance to return to work. Id. 11
Even assuming, arguendo, that the Defendants are permitted to assert that the Plaintiff
was lawfully denied reinstatement due to her inability to perform her job, the evidence shows
that the Defendants’ argument is still without merit. Before Plaintiff took leave – whether it is
considered paid-time-off or FMLA leave – the Plaintiff informed the Defendants that she had a
pinched nerve (later re-diagnosed as a torn rotator cuff) and her doctor placed her on a ten pound
lifting restriction. At no point did the Defendants have any issue with her working with a
pinched nerve or with a ten pound lifting restriction. The lifting restriction only became an issue
after the Plaintiff’s doctor was compelled to send an FMLA certification to the Defendants, after
the Defendants were reluctantly forced to treat Plaintiff’s leave as FMLA leave, and after
Plaintiff indicated her intent to return to work. 12
10
In fact, Judge Cooke actually granted a Plaintiff’s Motion for Summary Judgment on this
exact issue where the employee’s treating physician medically cleared him to return to work.
See Langlois v. City of Deerfield Beach, Fla., 370 F. Supp.2d 1233, 1240-41 (S.D. Fla. 2005)
(noting that once a treating physician medical clears a person on FMLA leave to return to work,
the employer must accept the medical clearance and may only have its own health care provider
contact the treating physician for “clarification.”).
11
The Defendants seem to have overlooked the fact that the DOL, the agency responsible
for enforcing the FMLA, concluded that the Plaintiff provided a legally sufficient fitness-for-
duty certification and that it was sufficient to trigger her reinstatement. Even in a jury trial, this
agency conclusion is “ordinarily admissible,” Goldsmith v. Bagby Elevator Co., 513 F.3d 1261,
1288 (11th Cir. 2008) (affirming admission of EEOC letter), and is “highly probative.” Barfield
v. Orange Cty., 911 F.2d 644, 649 (11th Cir. 1990) (same).
12
“Changing the essential functions of the job in order to preclude” exercising an
employee’s rights under the FMLA is itself considered “interference” under the FMLA. See 29
Page 13 of 19
www.Sarelson.com
The Defendants cite only two Eleventh Circuit cases in support of their position, but
neither actually supports their Motion. The first is Lucas v. W.W. Grainger, Inc., 257 F.3d 1249
(11th Cir, 2001). Lucas was an Americans with Disabilities Act lawsuit, not an FMLA lawsuit.
id. at 1252, where the plaintiff alleged discrimination and retaliation. Id. The employer argued
that the plaintiff was unable to perform the essential functions of the job, and thus no reasonable
accommodation was available. Id. at 1258. The Eleventh Circuit noted that “whether a
particular job duty is an essential function involves a factual inquiry to be conducted on a case-
by-case basis.” Id. An employer’s written job description is given “consideration,” id., but is
not conclusive and not irrebutable. Id. at n. 6. The plaintiff in Lucas provided no evidence to
dispute the written job description. Id.
Unlike Lucas, this case places the essential functions of the job in dispute. The
Defendants’ have failed to confront their non-compliance with the FMLA in the Motion, but
have instead rested entirely upon the Plaintiff’s purported inability to perform the work due to a
five-pound lifting restriction. This too is nonsense. The Defendants allowed the Plaintiff to
work with a pinched nerve in her right shoulder and with a ten-pound lifting restriction before
she took time off. 13 She was even told that if she cannot return to work following her paid-time-
off she would be placed on an “as-needed” basis – they never claimed she would be precluded
from working or would be terminated due to her shoulder injury. See Bordelon Dep. at pp. 87-
C.F.R. § 825.220(b)(2). In fact, any “manipulation by a covered employer to avoid

responsibilities under FMLA” is itself unlawful interference. Id. at § 825.220(b).
13
This is not surprising because the Plaintiff testified that lifting and pulling is not part of
the job and that she had no problem pushing patients on wheels. See Marks Dep. at pp. 38-39.
She also had a prior episode of chest pains and was restricted from pushing, pulling or lifting
anything heavy. Id. at p. 66. This restriction never prevented her from doing her job. Id. at p.
59. Moreover, the injury was to the Plaintiff’s non-dominant arm. Id. at pp. 30-31.
Page 14 of 19
www.Sarelson.com
88. An employer’s written job description is not a weapon to be used only when necessary to
avoid complying with federal law. 14
The only other case cited by the Defendant is equally unpersuasive. Earl v. Mervyns,
Inc., 207 F.3d 1261 (11th Cir. 2000) was primarily an ADA case where the employee was
properly terminated for repeatedly showing up late to work and where the employee stated there
was no way she would ever be able to show up to work on time due to her disability. Id. at 1367.
On the very same day the employee in Earl was terminated for repeated tardiness, she
“constructively” filed a request for FMLA leave. Id. at 1367-68. Earl was an FMLA retaliation
lawsuit, not an interference case, and the case had nothing to do with reinstatement following
FMLA leave. Id.
Finally, the Defendants testified that Plaintiff’s FMLA leave was approved for until
November 24, 2009. See Bordelon Dep. at p. 33. But once the Defendants’ attorney got
involved and contacted the DOL on behalf of the Defendants, the Defendants’ position changed
and they offered Plaintiff her back pay but without reinstatement. (This was not part of an
agency mediation commonly held by the Equal Employment Opportunity Commission or the
DOL – it was made in response to the DOL’s conclusion that the Defendants’ unlawfully refused
to reinstate the Plaintiff). Even assuming, arguendo, Plaintiff was unable to return to work on
September 28, 2009 as she requested, she still had until November 24, 2009 to return to work
pursuant to the FMLA. By the Defendants’ own admission, they ended her FMLA leave
prematurely in early October 2009 after she filed her DOL complaint. They have never even
attempted to explain why they would not keep Plaintiff on FMLA leave for the entire duration of
her FMLA leave, and then determine at the conclusion of her FMLA leave whether she was able
14
Lucas actually supports denying the Motion because it emphasizes that an employee’s
purported job functions and an employee’s ability to perform them is a fact issue. Id. at 1258.
Page 15 of 19
www.Sarelson.com
to return to work. (Defendants subtly concede this point by arguing, in the alternative, that the
Defendants’ liability would end as of October 13, 2009 because that the Plaintiff, in their
opinion, indicated an unwillingness to return to work on that date). See Motion p. 17.
D. Count III – Retaliation for Asserting Plaintiff’s FMLA Rights
Count III alleges that Plaintiff was retaliated against for attempting to take FMLA and for
attempting to be reinstated to work pursuant to the FMLA. Upon learning that she was going to
need time off to rehabilitate a torn rotator cuff, Plaintiff requested paperwork to file for FMLA.
See Marks Dep. at pp. 82-85; 126. She was expressly told her shoulder injury was not a
qualifying condition and she was not provided the paperwork. Id. (The fact that the Defendants
categorically deny this itself raises a genuine issue of material fact because clearly someone is
lying about a material fact). After taking paid-time-off, as opposed to FMLA leave, the
Plaintiff’s own physician advised her that her injury was a qualifying medical condition despite
what her employer told her and completed a doctor’s certification under the FMLA. D.E. 36-2,
p. 5. Defendants’ were “upset and pissed off” that she filed for FMLA. See Marks Dep. at pp.
81-82. In violation of the Act, they never completed and gave her the required written
designation that officially put her on FMLA leave. See Bordelon Dep. at pp. 28 & 87-88;
Patterson Dep. at p. 13. When she attempted to return to work, the Defendants’ attempted to
invoke a different provision of the FMLA (“fitness for duty”) to prevent her from being
reinstated. See Bordelon Dep. at pp. 30-31; Patterson Dep. at p. 17; Marks Dep. at p. 165. But
the Defendants’ could not even comply with that provision correctly because they were lawfully
permitted only to have their physician contact Plaintiff’s physician for clarification. Id. This is
more than sufficient for a reasonable jury to conclude that she was denied reinstatement under
the FMLA in retaliation for requesting FMLA directly and then requesting FMLA indirectly
Page 16 of 19
www.Sarelson.com
through her physician after her physician advised her that her employer violated the FMLA. See
Martin, 543 F.3d at 1268 (reversing summary judgment because “the close temporal proximately
between the two – [employee] was terminated while on FMLA leave – is more than sufficient to
create a genuine issue of material fact of causal connection.”).
E. Count IV – Retaliation for Filing a Complaint with the DOL
Count IV alleges that the Plaintiff was retaliated against for filing a complaint with the
Department of Labor. This count is self-evident. On October 1, 2010, the DOL contacted the
Defendants with respect to a complaint by the Plaintiff of being unlawfully denied reinstatement.
D.E. 36-2, p. 69. When Ms. Bordelon finally spoke to the DOL investigator on October 5, 2009,
she agreed to reinstate the Plaintiff (first to a different position and then to the original position
Plaintiff held prior to her leave) and to pay back pay. Id. The next day, when Defendants’
attorney entered the picture, the Defendants changed their minds and refused to reinstate the
Plaintiff and instead offered her only back pay. Id. (The DOL report even concluded that the
employer agreed to reinstate with back pay, but that “after they agreed [employer] hired attorney
Baumgarten [and a] settlement agree[ment] for lost wages was offered…”). This change of
heart, and refusal to reinstate, was made despite the fact that Plaintiff’s protected FMLA leave –
to the extent she was even ever on FMLA leave – continued until November 24, 2009.
Like Count III, the timing and sequence of events is more than sufficient for a reasonable
jury to conclude that the Defendants retaliated against the Plaintiff for filing a complaint with the
DOL. See Martin, 543 F.3d at 1268 (reversing summary judgment because “the close temporal
proximately between the two – [employee] was terminated while on FMLA leave – is more than
sufficient to create a genuine issue of material fact of causal connection.”). Here, the Plaintiff
Page 17 of 19
www.Sarelson.com
was terminated by the Defendants while she was on FMLA leave and only several days after
learning that she filed a complaint with the DOL concerning her FMLA rights. 15
Conclusion
For the reasons stated above, the Defendants’ Motion for Summary Judgment [D.E. 35]
should be denied in its entirety.
Respectfully submitted,
/s/ Matthew Sarelson

Matthew Seth Sarelson, Esq.
Fla. Bar No. 888281
SARELSON LAW FIRM, P.A.
1401 Brickell Avenue, Suite 510
Miami, Florida 33131
305-379-0305
800-421-9954 (fax)
msarelson@sarelson.com
15
Defendants assert that she suffered no retaliation because she was never officially
terminated. See Motion, p. 19. It is true that the Defendants never sent her a written termination
letter, but the Plaintiff was terminated when the DOL informed her that the Defendants would
not allow her to return to work and instead wanted her to accept $500 to settle and walk away.
See Marks Dep. at pp. 182-189. According to the Plaintiff and the DOL, it was attorney
Baumgarten himself who indicated that the Plaintiff could not return to work. Apparently “don’t
come back to work” is not to be construed as “you’re fired” according to the Defendants.
Respectfully, this is outright silly.
Page 18 of 19
www.Sarelson.com
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on August 30, 2010, I electronically filed the foregoing
document with the Clerk of the Court using CM/ECF. I also certify that the forgoing document
is being served this day on all counsel of record or pro se parties identified on the attached
Service List in the manner specified, either via transmission of Notices of Electronic Filing
generated by CM/ECF or in some other authorized manner for those counsel or parties who are
not authorized to receive electronically Notices of Electronic Filing.
/s/ Matthew Sarelson

SERVICE LIST
Case No.: 10-20121-civ-GRAHAM/Torres

Fla. Bar No. 888281
SARELSON LAW FIRM, P.A.
1401 Brickell Avenue, Suite 510
305-379-0305
800-421-9954 (fax)
msarelson@sarelson.com
Counsel for Plaintiff
Maurice J. Baumgarten, Esq.

Florida Bar No. 525324
Anania, Bandklayder, Baumgarten & Torricella
Bank of America Tower – Suite 4300
100 Southeast Second Street
(305) 373-4900
(305) 373-6914 (fax)
mbaumgarten@anania-law.com
Page 19 of 19
www.Sarelson.com

Marks v. Orion - Plaintiff's Response To MSJ

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Marks v. Orion - Plaintiff's Response To MSJ

Uploaded by

Copyright:

Available Formats

Case 1:10-cv-20121-DLG Document 48 Entered on FLSD Docket 08/30/2010 Page 1 of 19

UNITED STATES DISTRICT COURT

Case No.: 10-20121-civ-GRAHAM/Torres

ORION MEDICAL ENTERPRISES, INC.

PLAINTIFF’S RESPONSE TO DEFENDANTS’

the Plaintiff’s complaint to the agency. 2

with a pinched never.

• August 7, 2009 – Plaintiff starts paid-time-off leave to rehabilitate her shoulder.

See Marks Dep. at p. 100.

• August 24, 2009 – Plaintiff’s doctor personally faxes a DOL “Certification of

on FMLA leave. See Marks Dep. at pp. 167 & 198.).

• August 24-25, 2009 (approximately) – One of Plaintiff’s co-workers informs her

Dep. at pp. 81-82.

illegible and requesting a new, more detailed version).

needed” basis. Id. at p. 169.

• September 22, 2009 – In response to a request by the Defendants, Plaintiff

phrase “permanently disabled.” Id.

to the DOL until the following Monday, October 5, 2010. Id.

“in-home” (as opposed to an “in-clinic”) program. D.E. 36-2, p. 72 (DOL_000010). Plaintiff

pound lifting restriction). See Bordelon Dep. at p. 80.

first opinion. See Composite Exhibit A (Marks_00176-179).

a. The employee has a qualifying medical condition under the FMLA.

b. The employer failed to provide a notice of eligibility to the employee, in violation

c. The employer failed to reinstatement the employee to an equivalent position, in

violation of 29 C.F.R. § 825.214-.215.

shift and to pay for lost wages.

challenged and denied her unemployment benefits (which Plaintiff successfully

appealed). See Composite Exhibit A (AWI Decision of Feb. 22, 2010).

A. The FMLA Generally

such thing as a “technical” but harmless violation of the Act. 5

B. Count I – Interference Regarding Eligibility for FMLA Leave

The Defendants also violated the FMLA’s “designation” requirement. Pursuant to 29

ever truly on FMLA leave.

Defendants assert that summary judgment on Count I is appropriate because,

C. Count II – Interference Regarding Denial of Reinstatement

clearance to return to work. Id. 11

Plaintiff indicated her intent to return to work. 12

dispute the written job description. Id.

C.F.R. § 825.220(b)(2). In fact, any “manipulation by a covered employer to avoid

avoid complying with federal law. 14

FMLA leave. Id.

D. Count III – Retaliation for Asserting Plaintiff’s FMLA Rights

create a genuine issue of material fact of causal connection.”).

E. Count IV – Retaliation for Filing a Complaint with the DOL

should be denied in its entirety.

/s/ Matthew Sarelson

/s/ Matthew Sarelson

Matthew Seth Sarelson, Esq.

Maurice J. Baumgarten, Esq.

You might also like