Opinion
NO. 4:02-CV-834-A
August 15, 2003
MEMORANDUM OPINION and ORDER
Pending before the court for decision are the motions of defendant, One Price Clothing Stores, Inc., ("One Price") for summary judgment, and of plaintiff, Steve Wesley, ("Wesley") for partial summary judgment. The court, after having considered the motions, the briefs and evidentiary material submitted by the parties in support of their respective positions, the responses to the motions, the replies, the record, and applicable authorities, makes the following determinations.
Both parties have objected to summary judgment material submitted by the other. The court is not ruling specifically on the objections, but, instead, is giving the summary judgment evidence whatever weight, if any, it may deserve.
I. Background
Wesley instituted this suit in the District Court of Tarrant County, Texas, 96th Judicial District, on June 11, 2002. The action was removed to this court by notice of removal filed on October 7, 2002. Wesley's active pleading is "Plaintiff's First Amended Complaint," filed on June 16, 2003. One Price's active pleading is "Defendant's Answer to Plaintiff's First Amended Complaint," filed on June 26, 2003.Wesley alleges in his active pleading that: In August 1996 he began working for One Price. He sustained or aggravated a back condition in 2001, which required medical treatment. But, he continued to work, albeit with restrictions and intermittent leave, as a district manager for One Price. He underwent back surgery, and received full medical leave under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601-2654. When Wesley attempted to return to work with One Price, his employment was immediately terminated. One Price violated Wesley's rights under the FMLA by not allowing him to return to his previous position at the end of his FMLA qualifying leave, and by retaliating against him for exercising his right to FMLA qualifying leave.
II. The Motions for Summary Judgment
The grounds of One Price's motion are that: Wesley cannot establish aprima facie case of discrimination or retaliation under the FMLA, and that, even if he can, One Price has set forth legitimate, non-discriminatory reasons for terminating Wesley's employment, which are not pretextual. One Price Mot. at 1-2. Subsidiary grounds are that: One Price had an honest belief Wesley abused his leave and disability benefits; Wesley cannot demonstrate he was denied any substantive rights under the FMLA; and Wesley did not return to work when his leave time expired. Id. at 2. One Price also urges that, in the event summary judgment is not granted as to all of Wesley's claims, partial summary judgment is proper, under the after-acquired evidence doctrine, on Wesley's claim for lost wages and benefits. Id.
The ground of Wesley's motion for partial summary judgment is that, bearing in mind One Price did not have a policy in place governing outside or supplemental employment, One Price violated the FMLA by refusing to allow him to return to his former position, when its reason for such refusal was that Wesley held other employment while on leave. Wesley Mot. at 1-2.
III. Summary Judgment Principles
A party is entitled to summary judgment on all or any part of a claim as to which there is no genuine issue of material fact and as to which the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c) ; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The moving party has the initial burden of showing that there is no genuine issue of material fact. Anderson, 477 U.S. at 256. The movant may discharge this burden by pointing out the absence of evidence to support one or more essential elements of the non-moving party's claim "since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986). Once the moving party has carried its burden under Rule 56(c), the non-moving party must do more than merely show that there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party opposing the motion may not rest on mere allegations or denials of pleading, but must set forth specific facts showing a genuine issue for trial. Anderson, 477 U.S. at 248, 256. To meet this burden, the nonmovant must "identify specific evidence in the record and articulate the `precise manner' in which that evidence support[s] [its] claim[s]." Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994). An issue is material only if its resolution could affect the outcome of the action. Anderson, 477 U.S. at 248. Unsupported allegations, conclusory in nature, are insufficient to defeat a proper motion for summary judgment. Simmons v. Lyons, 746 F.2d 265, 269 (5th Cir. 1984).
The standard for granting a summary judgment is the same as the standard for a directed verdict. Celotex Corp., 477 U.S. at 323. If the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial. Matsushita, 475 U.S. at 597. See also Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969) (en banc) (explaining the standard to be applied in determining whether the court should enter judgment on motions for directed verdict or for judgment notwithstanding the verdict).
IV. Undisputed Facts
Wesley began his employment with One Price in July 1996 as a district sales manager, a position he held until his employment was terminated in January 2002. Wesley Dep. at 58. He developed a back condition in early 2001, and, on June 19, 2001, he aggravated that condition while lifting a box at work. Id. at 92, 159-60. Wesley advised One Price of his back injury by calling the benefits department. Id. at 175. Thereafter, Wesley requested intermittent FMLA leave, in support of which he submitted a document from his health-care provider that set forth several work restrictions, including no standing for over three hours without a break, and no more than six hours of work per day. Id. at 189-91; App. to One Price Mot. at 168. One Price granted intermittent FMLA leave to begin on July 31, 2001, which continued through early November 2001. Wesley Dep. at 184, 286. On November 9, 2001, Wesley underwent back surgery,id. at 286, at which point he went on full medical leave,id. at 287-88.
Wesley was an at-will employee of One Price, Wesley Dep. at 76-78, meaning One Price could terminate him for any reason or no reason at all, and even for a reason based on carelessly gathered incorrect information, see, e.g., Mission Petroleum Carriers, Inc. v. Solomon, 106 S.W.3d 705, 715-16 (Tex. 2003).
Wesley's twelve weeks of FMLA leave time expired on January 10, 2002. Knight Aff. [App. to One Price Mot. at 477-78]. When Wesley returned to work on January 16, Wesley Dep. at 359-60, One Price had already decided to terminate his employment, Mackiw Dep. at 19, 77-78.
V. Analysis
A. Wesley's Right to Reinstatement
When Wesley returned from his leave, One Price was obligated under the FMLA to restore him to his former or equivalent position, as follows:
. . . [A]ny eligible employee who takes leave for the intended purpose of the leave shall be entitled, on return from such leave —
(A) to be restored by the employer to the position of employment held by the employee when the leave commenced; or
(B) to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.29 U.S.C. § 2614(a)(1) (emphasis added); see also Nero v. Indus. Molding Corp., 167 F.3d 921, 925 (5th Cir. 1999).
One Price argues that Wesley's § 2614 claim lacks merit for three reasons: (1) Wesley did not return to work before his FMLA leave time expired; (2) Wesley, in fact, was restored to his former position on January 16, 2002, even though he was fired that same day; and (3) One Price was not required to restore Wesley to his former position because it honestly believed he was not using his leave for its intended purpose. For the reasons discussed below in section V.B., the court is not satisfied that One Price's first reason has merit. Nor is the court satisfied that One Price's second reason is meritorious since the decision to terminate Wesley's employment was made before Wesley returned to work on January 16, 2002. See Mackiw Dep. at 19, 77-78.
As for One Price's third reason, the emphasized portion of § 2614(a)(1) above indicates that Wesley was entitled to be restored to his former position provided he took "leave for the intended purpose of the leave." 29 U.S.C. § 2614(a)(1). The summary judgment record makes clear that, at the very least, One Price honestly believed that Wesley had not used his FMLA leave time for the intended purpose of the leave. That is all that is required under the FMLA: "[the employer] need not conclusively prove that [the employee] misused her leave; an honest suspicion will do."Kariotis v. Navistar Int'1 Transp. Corp., 131 F.3d 672, 680-81 (7th Cir. 1997). The Seventh Circuit's holding makes particularly good sense in light of the FMLA's regulations:
An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period. An employer must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment.29 C.F.R. § 825.216(a). It cannot be the case that Wesley was immunized from any and all adverse employment actions merely because he had taken FMLA leave. As the Seventh Circuit noted:
In other words, because [the employer] lawfully could have terminated [the employee] after suspecting she committed fraud while on duty, the company can discharge her after suspecting she committed fraud while on leave. If [the employer] had to prove more than an honest suspicion simply because [the employee] was on leave, she would be better off (and enjoy "greater rights") than similarly situated employees (suspected of fraud) who are not on leave. The statute and the regulations rule out that inequity.Kariotis, 131 F.3d at 681; see also Medley v. Polk Co., 260 F.3d 1202, 1207 (10th Cir. 2001) (stating, "an employer who discharges an employee honestly believing that the employee has abandoned her job and is otherwise not using FMLA leave for its here `intended purpose', . . . would not be in violation of FMLA, even if its conclusion is mistaken, since this would not be a discriminatory firing") (footnote omitted). Accordingly, the court has concluded that One Price is entitled to summary judgment on Wesley's claim under 29 U.S.C. § 2614(a)(1).
B. Wesley's Retaliation Claim
To establish a prima facie case of discrimination or retaliation under the FMLA, Wesley must show that: (1) he is protected under the FMLA; (2) he suffered an adverse employment decision; and (3) either (a) he was treated less favorably than an employee who had not requested leave under the FMLA, or (b) the adverse decision was made because of plaintiff's request for leave. Bocalbos v. Nat'1 W. Life Ins. Co., 162 F.3d 379, 383 (5th Cir. 1998). If Wesley makes aprima facie case, the burden shifts to One Price to articulate a legitimate non-discriminatory or non-retaliatory reason for terminating his employment. Id. If One Price satisfies that burden, Wesley must then show by a preponderance of the evidence that the reason is a pretext for discrimination or retaliation. Id. One Price concedes that Wesley satisfied the second element of his prima facie case because One Price terminated his employment, Br. to Resp. at 27, but contends that Wesley cannot meet the first or third elements.
As for the first element, the court is not persuaded that there is no genuine issue of material fact as to whether Wesley was protected under the FMLA at the time his employment was terminated. While the summary judgment record makes clear that Wesley's twelve weeks of FMLA leave expired on January 10, 2002, Knight Aff. [App. to One Price Mot. at 477-78], Eugene Mackiw testified on deposition that One Price made specific representations to Wesley that his FMLA leave expired on January 17, Mackiw Dep. at 131, 214. Accordingly, the court is not persuaded that this ground of One Price's motion has merit.
With regard to the third element of Wesley's prima facie case, Wesley does not plead or argue, nor does the summary judgment record reflect, that he was treated less favorably than an employee who had not requested FMLA leave. Rather, Wesley contends his employment was terminated because he took leave:
The reason that Mr. Wesley was fired was because he was on leave. While the employer states (mostly) that it fired him because of what he did while on leave, there is no dispute that his leave was the reason. Defendant's Brief in Support of Motion for Summary Judgment, page 35. Thus, the question turns to whether [One Price's] asserted reason(s) are legitimate or are pretext for discrimination/retaliation.
Br. to Wesley's Resp, to One Price's Mot. at 25. Wesley makes that unsupported, conclusory allegation without reference to any summary judgment evidence. See Simmons, 746 F.2d at 269.
As the cited passage reflects, Wesley only cited to One Price's brief in support of its motion for summary judgment. The page to which Wesley cites does not support his assertion. To the contrary, potentially pertinent statements made by One Price on that page of its brief include the following:
In conclusion, Plaintiff cannot establish a prima facie case because Plaintiff has no evidence of a negative attitude toward Plaintiff's FMLA leave, no evidence of a failure of One Price to adhere to established company policies, and no evidence of a discriminatory treatment of Plaintiff in comparison to similarly situated employees.
. . .
Assuming that Plaintiff can meet his burden of establishing a prima facie case, One Price can articulate legitimate, nondiscriminatory reasons for Plaintiff's discharge. One Price terminated Plaintiff because One Price determined that Plaintiff engaged in bad faith, abused his leave and benefits, and made misrepresentations to One Price. . . .
Br. to One Price's Mot. at 35.
One Price recites in the brief supporting its motion for summary judgment certain evidence on which Wesley apparently relies to support his claim that his taking of FMLA leave time motivated One Price's decision to terminate his employment. Br. to One Price Mot. at 21-22, 28-35. However, as One Price points out, id. at 28-35, that evidence does not link Wesley's taking of FMLA leave time with One Price's employment action. To the contrary, the summary judgment record reflects that One Price terminated Wesley's employment for a host of reasons, including its determination that Wesley "engaged in bad faith, abused his leave and benefits, and made misrepresentations to One Price," the result of which was that "One Price lost the level of trust in [Wesley] necessary to lead his district." Br. to One Price Mot. at 35 (citing App. to One Price Mot. at 483 490).
In further support that One's Price's decision was not motivated by Wesley's taking of FMLA leave time, notably, Wesley acknowledges that: One Price granted him all the FMLA leave he requested, Wesley Dep. at 38-39; One Price did not interfere with his FMLA leave while he was on leave, id. at 40; and, to his knowledge, One Price did not deny him any benefit to which he was entitled under the FMLA, id. at 40-41. Further, Wesley is not aware of any conversation with any One Price employees that supports his FMLA claim. Id. at 47. All that remains is Wesley's subjective perception that One Price retaliated against him for having taken FMLA leave, which is inadequate to stave off One Price's motion for summary judgment. Thus, the court has concluded that, because Wesley cannot make out a prima facie case of discrimination or retaliation under the FMLA, summary judgment is proper as to those claims.
Thus, the court need not address the legitimate non-discriminatory reasons One Price has asserted to justify its employment actions, or whether those reasons are pretext for discrimination. Further, the court is not addressing the remaining grounds of One Price's or Wesley's motions.
VI. ORDER
For the reasons discussed,The court ORDERS that One Price's motion for summary judgment be, and is hereby, granted.
The court FURTHER ORDERS that Wesley's motion for partial summary judgment be, and is hereby, denied.
The court FURTHER ORDERS that Wesley recover nothing from One Price, and that all of Wesley's claims and causes of action against One Price be, and are hereby, dismissed with prejudice.