Wevodau v. Commonwealth of Pennsylvania, Office of Attorney General et al

REPLY BRIEF re MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

M.D. Pa.August 8, 2016

L0645742.4 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA KEVIN WEVODAU, : : Plaintiff, : : v. : Civil Action No. 16-cv-0743 : COMMONWEALTH OF : (Judge Rambo) PENNSYLVANIA, OFFICE OF : ATTORNEY GENERAL, and : KATHLEEN KANE, individually : and in her official capacity, : : Defendants. : REPLY BRIEF IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS COUNT II OF THE AMENDED COMPLAINT AND TO STRIKE PLAINTIFF’S CLAIMS FOR PUNITIVE DAMAGES Keith E. Smith, Esquire Attorney I.D. No. 67384 Casey A. Coyle, Esquire Attorney I.D. No. 307712 Two Liberty Place 50 South 16th Street, 22nd Floor Philadelphia, Pennsylvania 19102 Tele: (215) 851-8400 Fax: (215) 851-8383 ksmith@eckertseamans.com ccoyle@eckertseamans.com Attorneys for Defendants. Case 1:16-cv-00743-SHR Document 20 Filed 08/08/16 Page 1 of 11 1 Plaintiff’s Brief in Opposition to Defendants’ Motion to Dismiss Count II of the Amended Complaint and to Strike Plaintiff’s Claims for Punitive Damages (Dkt. No. 19) only underscores the failure of the Amended Complaint to state any plausible claim for “retaliation” under the FMLA. While Defendants’ initial Brief (Dkt. No. 18) sets forth the basis for this conclusion, Defendants specifically address a number of arguments raised in Plaintiff’s Opposition in this Reply. I. The Amended Complaint Fails to State a Plausible Claim that Plaintiff Suffered an Adverse Employment Decision The Third Circuit has made clear that to prevail on a so-called “retaliation” claim under the FMLA, a plaintiff must prove that he “suffered an adverse employment decision.” Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 301-02 (3d Cir. 2012). Plaintiff’s Opposition attempts to draw a material distinction between the phrases “adverse employment action” (and “adverse action”) and “adverse employment decision.” That is a false distinction, and one that makes no difference in this case.1 1 Plaintiff likewise emphasizes that, in evaluating whether a challenged action rises to the level of an adverse employment decision, the relevant inquiry is whether a reasonable employee would have found the challenged actions “materially adverse” in that they “well might have dissuaded a reasonable worker” from engaging in protected activity under the statute at issue. Pl.’s Br. at 7 (citation and quotation marks omitted). Again, however, Defendants’ initial Brief did not make any argument to the contrary, and this is the standard applied in the cases cited by Defendants addressing analogous retaliation claims. Case 1:16-cv-00743-SHR Document 20 Filed 08/08/16 Page 2 of 11 2 Contrary to Plaintiff’s assertions, the cases cited by Defendants make clear that the facts as alleged in the Amended Complaint fail to state any plausible claim that Plaintiff suffered an adverse employment decision - either in the context of a retaliation claim, or in the context of a discrimination claim. See, e.g. Stewart v. Mississippi Trans. Comm’n, 586 F.3d 321, 332 (5th Cir. 2009) (placing employee on paid administrative leave does not constitute adverse employment action in context of Title VII retaliation claim); Jones v. Castro, 2016 WL 777917, at *6 (D.D.C. 2016) (“placement on paid administrative leave does not itself constitute an adverse action under either the discrimination standard or the retaliation standard” of Title VII); Nicholas v. S. Ill. Univ.-Edwardsville, 510 F.3d 772, 787 (7th Cir. 2007) (paid administrative leave does not constitute materially adverse action required to prevail on Title VII retaliation claim); Jones v. SEPTA, 796 F.3d 323, 326 (3d Cir. 2015) (suspension without pay, without more, not adverse employment action in context of Title VII discrimination claim).2 Here, despite Plaintiff’s arguments that he seeks “any pay increases, employment benefits (for example, accrued sick or vacation time), training(s), 2 Those cases also make clear that the phrases “adverse employment action” and “adverse action” are cited as elements of retaliation claims. See also DiCampli v. Korman Communities, 257 Fed. Appx. 497, 500-01 (3d Cir. 2007) (affirming dismissal of FMLA retaliation claim on basis that plaintiff did not establish “adverse employment action”). True and correct copies of all unpublished decisions cited herein are attached hereto as “Exhibit A.” Case 1:16-cv-00743-SHR Document 20 Filed 08/08/16 Page 3 of 11 3 promotions, seniority, [or] any other perks of employment which he may be deprived of…,” Pl.’s Br. at 9 (alteration added), the Amended Complaint is devoid of any factual allegation that he has been deprived of any such benefits as a result of the alleged adverse employment action. Rather, the Amended Complaint alleges Plaintiff was placed on an ongoing paid administrative leave, and that the paid administrative leave is involuntary despite Plaintiff’s requests to “return to work.” Am. Compl. ¶¶13, 49, 50, 71, 72. As set forth in Defendants’ initial Brief, even assuming the truth of the sparse factual allegations in the Amended Complaint, they fail to state a plausible claim that the challenged actions were harmful to the point that Plaintiff was subjected to a materially adverse employment decision. B. The Amended Complaint Fails to Plead Facts that Would Establish a Causal Connection Plaintiff argues that the timing in this case is sufficient to state a plausible claim of causation, because, “[a]s soon as [he] attempted to return to work from his protected leave, he was placed on an indefinite administrative leave.” Pl.’s Br. at 11 (emphasis in original). As pled in the Amended Complaint, however, Plaintiff did not request reinstatement until October 22, 2015, see Am. Compl. ¶¶45-49 - more than five weeks after his FMLA leave expired on September 14, 2015. See 29 U.S.C. § 2612(a)(D)(1). Case 1:16-cv-00743-SHR Document 20 Filed 08/08/16 Page 4 of 11 4 While Plaintiff contends that an employee does not lose his right to reinstatement under the FMLA where, as alleged here, “an employer gives express permission for an extension beyond their 12 weeks,” Pl.’s Br. at 11 (citing Santosuosso v. NovaCare Rehab., 462 F. Supp. 2d 590, 597-98 (D.N.J. 2006)), that assertion is groundless. By its plain terms, the FMLA “does not suggest that the 12 week entitlement may be extended.” McGregor v. AutoZone, Inc., 180 F.3d 1305, 1308 (11th Cir. 1999); see 29 U.S.C. § 2612(a)(1). To the extent the district court in Santosuosso suggested otherwise, its reasoning was flawed and has been rejected by other courts. In Santosuosso, the court opined that “Plaintiff should not lose her FMLA protection for taking a leave longer than 12 weeks when her employer gave her the permission to do so.” Santosuosso, 462 F. Supp. 2d at 597-98. To support that conclusion, the district court cited “the Congressional encouragement for employers to provide more generous benefits than mandated by the law,” as reflected in 29 U.S.C. § 2653. Santosuosso, 462 F. Supp. 2d at 597-98. However, it is settled law that “[r]esort to the rules of construction is permissible only where there is doubt or ambiguity in the statutory expression.” Mead Corp. v. Comm’r of Internal Revenue, 116 F.2d 187, 192 (3d Cir. 1940). Because the FMLA, on its face, does not allow for an extension of the 12-week entitlement to leave, as explained above, it was improper for the district court in Case 1:16-cv-00743-SHR Document 20 Filed 08/08/16 Page 5 of 11 5 Santosuosso to disregard the plain language of the statute under the guise of statutory interpretation. See Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992) (“We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first cannon is also the last: judicial inquiry is complete.” (citations and quotations marks omitted)). Not only does the holding of Santosuosso conflict with the clear terms of the FMLA, but it is also at odds with numerous decisions from within the Third Circuit. See, e.g., Dogmantis v. Capital Blue Cross, 413 F. Supp. 2d 452, 462 (E.D. Pa. 2005) (holding that employees who remain on leave beyond the 12 weeks of leave provided under the FMLA are not entitled to job restoration even if the employer provides additional, non-FMLA leave); Devine v. Prudential Ins. Co. of Am., No. 03-3971, 2007 WL 1875530, at *28-31 (D.N.J. June 28, 2007) (finding that an employee who was terminated after staying out of work for more than 12 weeks pursuant to the employer’s permission could not bring an FMLA interference claim).3 3 See also Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 148 (3d Cir. 2004) (holding that an employee who exceeded his FMLA leave “was subject to immediate discharge on the very first workday that he was both absent from work and no longer protected by the FMLA”); Ackerman v. Beth Israel Cemetery Ass’n of Woodbridge, N.J., No. 09-1097, 2010 WL 2651299, at *7 (D.N.J. June 25, 2010) (rejecting Santosuosso and explaining that, “once an employee has been provided with 12 workweeks of leave, the employer’s obligations under the FMLA Case 1:16-cv-00743-SHR Document 20 Filed 08/08/16 Page 6 of 11 6 Santosuosso also reflects the minority view among federal courts nationally. See, e.g., Battle v. Corizon, LLC, No. 2:15-CV-403, 2016 WL 3583812, at *7 (M.D. Ala. June 30, 2016) (collecting cases and observing that, unlike Santosuosso, “[v]arious other courts” have held that “the right to reinstatement terminates once twelve weeks of FMLA leave expire”); see also McGregor, 180 F.3d at 1308 (holding that, “[w]here an employer such as defendant exceeds the baseline 12 weeks by providing not only more leave than FMLA but also paid leave, the employer should not find itself sued for violating the FMLA” (alteration added)). Thus, Santosuosso is not persuasive authority and should not be followed by this Court. Therefore, and given that over five weeks elapsed between the expiration of Plaintiff’s FMLA leave and his request for reinstatement, the timing of the alleged adverse employment decision is insufficient to state a plausible claim as to causation. See, e.g., Thomas v. Town of Hammonton, 351 F.3d 108, 114 (3d Cir. 2003). As a fall back argument, Plaintiff claims that the “record as [a] whole” establishes that the decision to place him on paid administrative leave was causally expire”); Hofferica v. St. Mary Med. Ctr., 817 F. Supp. 2d 569, 577 (E.D. Pa. 2011) (“[O]nce an employee exceeds the duration of her protected leave, the employer is not obligated by FMLA . . . to reinstate the employee upon her return.” (alteration added; citation and quotation marks omitted)). Case 1:16-cv-00743-SHR Document 20 Filed 08/08/16 Page 7 of 11 7 related to his taking FMLA leave, because “it was not until after Plaintiff took his FMLA leave[] that actions to remove him indefinitely from his place of employment were taken.” Pl.’s Br. at 12-13 (alterations added; emphasis in original). However, and putting aside that there is no “record” in this case, the mere fact that Plaintiff suffered an alleged adverse employment decision following his FMLA leave is not enough to establish a plausible claim of causation. Rather, Plaintiff must plead sufficient facts from which this Court can conclude that his placement on paid administrative leave was causally related to his taking FMLA leave. See, e.g., Lichtenstein, 691 F.3d at 302, 307. Here, Plaintiff has not pled any such facts, because, as pled in the Amended Complaint and explained in Defendants’ initial Brief, Plaintiff was placed on paid administrative leave for reasons other than taking FMLA leave.4 Consequently, regardless of whether a but-for causation standard or a more relaxed causation standard is applied, the Amended Complaint fails to state facts to support a plausible claim for causation. 4 Although Plaintiff disagrees with this plain reading of the Amended Complaint claiming that the “record as [a] whole” “leaves no valid reason (other than having exercised his federally protected rights) for putting him out of work,” Pl.’s Br. at 13, Plaintiff’s assertion is belied by numerous allegations in the Amended Complaint, including his allegation that Defendants allegedly placed him on paid administrative leave “for objecting to and reporting ‘wrongdoing’ and ‘waste.’” Am. Compl. ¶14. Presumably, this is why Plaintiff’s Opposition is devoid of any citations to the Amended Complaint, save his lone reference to Paragraph C of the Wherefore Clause. See Pl.’s Br. at 9. Case 1:16-cv-00743-SHR Document 20 Filed 08/08/16 Page 8 of 11 8 C. The Doctrine of Qualified Immunity Bars the Claims in Count II Asserted Against General Kane in her Individual Capacity Qualified immunity bars Plaintiff’s claims against General Kane in her individual capacity, because Plaintiff cannot plead that General Kane’s conduct violated a clearly established statutory or constitutional right “that every reasonable official would have understood that what [s]he is doing violates that right.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (alteration added). Plaintiff argues that General Kane is not entitled to qualified immunity in her individual capacity, because “placing an employee on an indefinite administrative leave - for no reason - in connection with his attempts to return to work after FMLA leave would be something that would be construed by a reasonable person as dissuading them from exercising their rights under the FMLA.” Pl.’s Br. at 15 (emphasis removed). Under the facts plead in the Amended Complaint, however, a clearly established statutory or constitutional right has not been violated. Moreover, Plaintiff ignores his admission in footnote 4 of the Amended Complaint that the United States Court of Appeals for the Third Circuit “left open the question [of] whether a paid suspension constitutes an adverse action in the retaliation context.” Am. Compl. ¶72 n.4 (alteration in original; citation and quotation marks omitted). In addition, although Plaintiff maintains that “district court decisions from within the Third Circuit may . . . be relevant” to determining whether a right is Case 1:16-cv-00743-SHR Document 20 Filed 08/08/16 Page 9 of 11 9 “clearly established” for purposes of qualified immunity, Pl.’s Br. at 14, Plaintiff fails to cite a single district court decision from within the Third Circuit that has held that placing an employee on paid administrative leave constitutes an adverse action. See id. at 15-16 (citing Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584 (6th Cir. 2007), and Foraker v. Apollo Group, Inc., No. CV04-2614, 2006 WL 3390306 (D. Ariz. Nov. 22, 2006)). Furthermore, even assuming that non-precedential decisions outside of the Third Circuit are relevant to determining whether a right is “clearly established,” the sparse case law cited by Plaintiff demonstrates that there was not sufficient precedent at the time of the action, factually similar to Plaintiff’s allegations, to put Defendant Kane on notice that placing an employee on paid administrative leave was prohibited under the FMLA. See McLaughlin v. Watson, 271 F.3d 566, 572 (3d Cir. 2001); see also George v. Rehiel, 738 F.3d 562, 572 (3d Cir. 2013) (“In order for the official to lose the protections of qualified immunity, ‘existing precedent must have placed the statutory or constitutional question beyond debate.’” (quoting al-Kidd, 563 U.S. at 741)). Case 1:16-cv-00743-SHR Document 20 Filed 08/08/16 Page 10 of 11 10 Respectfully submitted, ECKERT SEAMANS CHERIN & MELLOTT, LLC By: /s/ Keith E. Smith Keith E. Smith, Esquire Casey A. Coyle, Esquire Two Liberty Place 50 South 16th Street, 22nd Floor Philadelphia, Pennsylvania 19102 Tele: (215) 851-8400 Fax: (215) 851-8383 ksmith@eckertseamans.com ccoyle@eckertseamans.com Attorneys for Defendants. Dated: August 8, 2016. Case 1:16-cv-00743-SHR Document 20 Filed 08/08/16 Page 11 of 11 EXHIBIT A: Unpublished Decisions Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 1 of 71 Ackerman v. Beth Israel Cemetery Ass'n of Woodbridge, N.J., Not Reported in... 2010 WL 2651299 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 2010 WL 2651299 Only the Westlaw citation is currently available. NOT FOR PUBLICATION United States District Court, D. New Jersey. William ACKERMAN, Plaintiff, v. BETH ISRAEL CEMETERY ASSOCIATION OF WOODBRIDGE, NEW JERSEY, Defendant. Civil Action No. 09-1097 (GEB). | June 25, 2010. West KeySummary 1 Federal Civil Procedure Time for Making Former employee failed to properly serve former employer with the summons and complaint alleging disability discrimination in violation of Title II of the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA), after having been granted an extension of time and was therefore not entitled to another discretionary extension. Former employee failed to have the Clerk of the Court sign and seal the summons he served on former employer with the original and amended complaint. Moreover, former employee provided no excuse for those failures or explanation for why he needed another extension. Fed.Rules Civ.Proc.Rule 4, 28 U.S.C.A.; Americans with Disabilities Act of 1990, §§ 201, 245, 42 U.S.C.A. §§ 12131, 12165; Family and Medical Leave Act of 1993, §§ 2, 404, 29 U.S.C.A. §§ 2601, 2654. Cases that cite this headnote Attorneys and Law Firms Jonathan M. Korn, Kari Knight Stevens, Blank Rome, LLP, Princeton, NJ, for Defendant. MEMORANDUM OPINION BROWN, Chief Judge. *1 This matter comes before the Court upon the motion to dismiss (Doc. No. 40) filed by Defendant Beth Israel Cemetery Association. For the following reasons, the Court will grant Defendant's motion. I. BACKGROUND In March 2006, this matter was commenced in the United States District Court for the Eastern District of New York. Plaintiff William Ackerman brought this action against Defendant, alleging that he was discriminated against because of his disability in violation of Title II of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12131-12165, and the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601-2654 (Am.Compl.¶ 1.) Plaintiff was employed by Defendant from September 2000 to October 2005 as a groundskeeper at Defendant's Woodbridge, New Jersey location. (Id. ¶¶ 8, 9.) On June 16, 2005, Plaintiff informed Defendant that he needed to undergo a heart procedure. (Id. ¶ 9.) With Defendant's consent, Plaintiff went on leave pursuant to the FMLA (Id. ¶ 12), which “entitle[s] employees to take reasonable leave for medical reasons.” 29 U.S.C. § 2601(b) (2). Defendant supplied Plaintiff with FMLA forms that specified that Plaintiff was to return to work on September 8, 2005. (Am.Compl.¶ 13.) Plaintiff claims that he later contacted his supervisor and obtained consent to remain on leave past the specified return date. (Id. ¶¶ 14, 15.) After undergoing the procedure, Plaintiff alleges he obtained a note from his physician indicating when and under what conditions he could return to work and delivered the note to Defendant. (Id. ¶¶ 17, 18.) On October 14, 2005, Defendant's head supervisor sent Plaintiff a letter advising him that his position with Defendant had been filled and that he would be permitted to apply for another position with a doctor's note. (Id. ¶ 19.) Plaintiff alleges that the head supervisor informed him that Defendant did not have any positions available “for an employee on modified duty or who needed a pacemaker.” (Id. ¶ 22.) As a result of these events, Plaintiff alleges that Defendant filled his position in violation of the FMLA and that Defendant discriminated against him in violation of Title II of the ADA “by failing to allow Plaintiff to return to work, effectively terminating him.” (Id. ¶ 30.) Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 2 of 71 Ackerman v. Beth Israel Cemetery Ass'n of Woodbridge, N.J., Not Reported in... 2010 WL 2651299 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 On September 6, 2006, Plaintiff moved for entry of default against Defendant because Defendant had not answered the Complaint. The Clerk of Court of the United States District Court of the Eastern District of New York informed Plaintiff's counsel that entry of default was precluded because Plaintiff had not filed an affidavit of service. Plaintiff filed an affidavit of service that same day, which indicated that the process server left a copy of the Summons and Complaint on the front desk at Defendant's Woodbridge, New Jersey location and mailed copies to Defendant thereafter. On August 8, 2007, the Honorable Steven M. Gold, United States Magistrate Judge, filed a Report and Recommendation concluding that Plaintiff's method of service was ineffective because Plaintiff had not complied with either Federal Rule of Civil Procedure 4 or the New York Civil Practice Law and Rules in serving process upon Defendant. (Doc. No. 6.) Rule 4(h) provides that service may be made upon an association “in the manner prescribed by Rule 4(e)(1) for serving an individual,” which allows a plaintiff to follow state law for serving a summons, or “by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or law to receive service of process and-if the agent was one authorized by statute and the statute so requires-by also mailing a copy of each to the defendant.” Fed.R.Civ.P. 4(h). New York Civil Practice Law and Rules 311 provides that personal service upon a corporation may only be made by delivery to “an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service.” N.Y. C.P.L.R. 311. Magistrate Judge Gold recommended that the action be dismissed unless Plaintiff submitted a memorandum of law explaining the basis on which he contended that Defendant had been properly served. (Doc. No. 6.) Plaintiff filed an Affidavit in response to the Report and Recommendation in which Glenn Burroughs, a licensed process server, indicated that he had left a copy of the Summons and Complaint on the front desk in Defendant's offices and mailed copies to Defendant's address. (Doc. No. 11.) *2 On March 10, 2008, Magistrate Judge Gold filed a second Report and Recommendation reaffirming his prior recommendation of dismissal. (Doc. No. 12.) Magistrate Judge Gold determined that leaving a copy of the Summons and Complaint on Defendant's desk and mailing a copy to Defendant's address was not proper service. (Id.) On March 12, 2008, Plaintiff filed an objection to the Report and Recommendation, arguing that the court should permit him to re-serve the Complaint because he diligently pursued service, and if the action were dismissed, a re-filed claim may have been barred by the applicable statute of limitations. (Doc. No. 13.) On March 20, 2008, the Honorable Eric N. Vitaliano, United States District Judge for the Eastern District of New York, granted Plaintiff's request for an extension of time to serve Defendant and directed Plaintiff to effect service on or before April 19, 2008. (Doc. No. 14.) On April 17, 2008, Plaintiff's process server left a copy of the Original Complaint and Summons with a receptionist at Defendant's Woodbridge, New Jersey offices. On April 18, 2008, Plaintiff also served Defendant's agent, Corporation Service Company, with an Amended Complaint, which was filed with the Clerk of Court the same day. (Doc. No. 15.) Defendant points out that the Amended Complaint filed with the Court and the Amended Complaint served on Defendant's authorized agent are not identical. Specifically, the copy of the Amended Complaint served on Defendant's authorized agent refers in Paragraph 8 to “Defendant,” whereas the Amended Complaint filed with the Clerk of Court refers in Paragraph 8 to “Respondent.” (Compare Meyer Decl., Ex. B ¶ 8, with Am. Compl. ¶ 8.) Additionally, in the Amended Complaint served on Defendant's authorized agent, Paragraph A of the Prayer for Relief lacks the word “the” present in the Amended Complaint filed with the Clerk of Court. (Compare Meyer Decl., Ex. B ¶ 9, with Am. Compl. ¶ 7.) The formatting of the Amended Complaint filed with the Clerk is also different than the Amended Complaint served on Defendant's authorized agent. On May 6, 2008, Defendant filed a motion for leave to file a motion to dismiss, contending that service was still improper, the Eastern District of New York did not have personal jurisdiction over Defendant, and venue was improper. (Doc. No. 16.) Defendant's motion was later terminated, and on March 10, 2009, Plaintiff submitted a stipulation and consent agreeing to transfer the action to the United States District Court of New Jersey. (Doc. No. 23, 24 .) On March 11, 2009, Judge Vitaliano transferred the action to this District. (Doc. No. 25.) On January 25, 2010, Defendant moved to dismiss Plaintiff's Complaint pursuant to Federal Rules of Civil Procedure 12(b)(4), Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 3 of 71 Ackerman v. Beth Israel Cemetery Ass'n of Woodbridge, N.J., Not Reported in... 2010 WL 2651299 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 (5), and (6) for insufficient process, insufficient service of process, and failure to state a claim upon which relief can be granted. 1 II. DISCUSSION A. Service of Process *3 Defendant first asserts that the Complaint should be dismissed because the Summons accompanying both the Original Complaint and the Amended Complaint was not signed by the Clerk of Court and did not bear the court's seal, as required by Rule 4 of the Federal Rules of Civil Procedure. Plaintiff provides no response to Defendant's argument that the Complaint should be dismissed because the Summons was not signed or sealed, other than reciting the means by which service of process was effected and stating that it was proper. (Pl .'s Br. at ¶¶ 4-5.) Federal Rule of Civil Procedure 4 prescribes “the procedure by which a court obtains personal jurisdiction over a defendant.” Ayres v. Jacobs & Crumplar, P.A., 99 F.3d 565, 569 (3d Cir.1996). Rule 4(a) requires that: “A summons must: ... (F) be signed by the clerk; and (G) bear the court's seal.” Fed.R.Civ.P. 4(a)(1). The Third Circuit has held that “[a] summons which is not signed and sealed by the Clerk of the Court does not confer personal jurisdiction over the defendant,” even if service was properly made, because “requiring the Clerk to sign and issue the summons assures the defendant that the process is valid.” Ayres, 99 F.3d at 569-70 (citations omitted). Because the parties cannot waive a void summons, “the failure of a plaintiff to obtain valid process from the court to provide it with personal jurisdiction over the defendant in a civil case is fatal to the plaintiff's case.” Id. at 569. “Upon proper motion, or if the defendant raises the matter in the responsive pleading, such suit should be dismissed under Fed.R.Civ.P. 12(b)(2).” Id. Courts in New York, where this action was originally commenced, have also held that an unsigned and unsealed summons violates the requirements of Rule 4. See Macaluso v. N.Y. Dep't of Envtl. Conservation, 115 F.R.D. 16, 17 (E.D.N.Y.1986) (holding that service of process was insufficient because the summons did not bear either the clerk's signature or the court's seal); Gianna Enters. v. Miss World (Jersey) Ltd., 551 F.Supp. 1348, 1358 (S.D.N.Y.1982) (finding that service of an unsigned and unsealed summons demonstrated a “flagrant disregard for the rules and fail[ed] to assure the person served that the summons was in fact issued by the clerk of a court and not by the plaintiff or his attorney”). An action is properly dismissed under Rules 12(b)(2), (4) and (5) for a defect in process or service of process. Ayres, 99 F.3d at 569; see Fed.R.Civ.P. 12(b)(2), (4), (5). In this case, neither Summons Plaintiff served upon Defendant was signed by the Clerk of Court or sealed, and thus neither Summons established this Court's personal jurisdiction over Defendant. Thus, this action would be properly dismissed under Rule 12(b)(2) for lack of personal jurisdiction. Ayres, 99 F.3d at 569. Those rules, however, “do not mandate dismissal.” Can. Life Assur. Co. v. Converium Ruckversicherung (Deutschland) AG, No. 06-3800, 2007 U.S. Dist. LEXIS 42890, at *14 (D.N.J. June 12, 2007). “Rather, [Federal Rule of Civil Procedure] 4(m) provides that upon finding that either the process or the service of process was insufficient, a court has the discretion to either dismiss the action without prejudice or to quash service and order the plaintiff to effect service within a specified time.” Id. The Third Circuit has held that a district court determining whether to grant an extension of time to serve process must engage in a two- part inquiry. Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1305 (3d Cir.1995). “First, the district court should determine whether good cause exists for an extension of time. If good cause is present, the district court must extend time for service ....“ Id. If good cause does not exist, “the court may in its discretion decide whether to dismiss the case without prejudice or extend time for service.” Id. 1. Mandatory Extension for Good Cause *4 A showing of good cause “requires ‘a demonstration of good faith on the part of the party seeking an enlargement and some reasonable basis for noncompliance within the time specified in the rules.’ “ MCI Telecomms. Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1097 (3d Cir.1995) (quoting Petrucelli, 46 F.3d 1298 at 1312 (Becker, J., concurring in part and dissenting in part)). The “primary focus” of the good cause inquiry “is on the plaintiff's reasons for not complying with the time limit in the first place.” MCI, 71 F.3d at 1097. “The plaintiff must show that he exercised diligence in trying to effect service.” Jumpp v. Jerkins, No. 08-6268, 2010 U.S. Dist. LEXIS 17765, at *20 (D.N.J. Mar. 1, 2010) (citations omitted). “Courts have considered three factors in determining the existence of good cause: (1) reasonableness of plaintiff's efforts to serve[;] (2) prejudice to the defendant by lack of timely service[;] and (3) Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 4 of 71 Ackerman v. Beth Israel Cemetery Ass'n of Woodbridge, N.J., Not Reported in... 2010 WL 2651299 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 whether plaintiff moved for an enlargement of time to serve.” MCI, 71 F.3d at 1097. “Inadvertence of counsel,” “half-hearted efforts at service which fail to meet the standard,” and reliance upon a third party or a process server do not amount to good cause. Braxton v. United States, 817 F.2d 238, 241 (3d Cir.1987) (citations omitted). “Disregard for ... the ‘technical niceties' of service of process” also does not constitute good cause. Ayres, 99 F.3d at 568. First, in this case, Plaintiff has provided no reason for his failure to properly serve Defendant with process. Plaintiff's latest effort to serve Defendant was not reasonable as he failed to comply with the requirements of Rule 4 even after Judge Vitaliano granted him an extension to correct the original defects in process. Plaintiff failed to have the Clerk of the Court sign and seal the Summons he served on Defendant with the Original Complaint and the Amended Complaint. See Meyer Decl., Ex. A at 1, Ex. B at 4. Furthermore, Plaintiff provides no excuse for this oversight, but rather merely refers to a copy of the affidavits of service and asserts that “[the] affidavits satisfied Rule 4 ... as well as the directives of Judge Vitaliano.” (Pl.'s Br. at ¶¶ 4- 5.) Thus, Plaintiff has not shown reasonable efforts to properly serve Defendant. With regard to the second factor, although Defendant does not contend that it has been prejudiced by Plaintiff's lack of timely service or insufficient process, this Court recognizes that “absence of prejudice alone can never constitute good cause to excuse late service.” MCI, 71 F.3d at 1097. Finally, although Plaintiff moved for an enlargement of time to serve before Judge Vitaliano, Plaintiff failed to effect proper service in the time period granted. Weighing those three factors, this Court concludes that Plaintiff has not demonstrated good cause for failing to properly serve Defendant. 2. Discretionary Extension of Time In the absence of good cause, “the court may in its discretion decide whether to dismiss the case without prejudice or extend time for service.” Petrucelli, 46 F.3d at 1306. The Third Circuit has held that the discretionary inquiry is separate from the good cause inquiry; in fact, “a court abuses its discretion by using its good cause analysis to find an exercise of discretion is unwarranted per se.” Jumpp, 2010 U.S. Dist. LEXIS 17765, at *21 (citing Boley v. Kaymark, 123 F.3d 756, 758-60 (3d Cir.1997)). In determining whether to grant a discretionary extension, the court may consider several factors, including: “1) actual notice of the action, 2) prejudice to the defendant, 3) statute of limitations, 4) conduct of the defendant, 5) whether the plaintiff is represented by counsel, and 6) any other relevant factor.” Id. at *20. *5 In considering those factors, the Court notes that Defendant had actual notice of this action, as evidenced by its participation in settlement negotiations and filing of a motion to dismiss, and Defendant has not argued that it has been prejudiced by Plaintiff's untimely service. With regard to the statute of limitations, the Court recognizes that Plaintiff's claims would be subsequently barred if the Court grants the motion to dismiss. 2 The Third Circuit has emphasized, however, that “the running of the statute of limitations does not require the district court to extend time for service of process.” Petrucelli, 46 F.3d at 1306. In considering other relevant factors, the Court notes that Plaintiff has been represented by counsel and has twice failed to serve Defendant properly. Moreover, in his March 20, 2008 Order, Judge Vitaliano stated that “failure to effect service in accordance with this Order will result in dismissal of the complaint without formal, but perhaps with practical, prejudice.” Ackerman v. Beth Israel Cemetery Ass'n., No. 06-CV-1125, slip op. at 6 (E.D.N.Y. Mar. 19, 2008). Plaintiff's failure to properly serve Defendant even after having been granted an extension weighs against granting him another extension. Plaintiff has had ample time to properly serve Defendant, but has repeatedly failed to do so, despite being given every opportunity. Moreover, Plaintiff has provided no excuse for those failures or explanation for why the Court should grant another extension for Plaintiff to serve. The Court therefore finds that a discretionary extension of time is not warranted. The Court will grant Defendant's motion to dismiss, without prejudice. B. Failure to State a Claim Under the ADA and the FMLA Even if this Court were to conclude that Plaintiff properly served Defendant, this Court, pursuant to Federal Rule of Civil Procedure 12(b)(6), would still dismiss the Complaint for failure to state a claim. A motion to dismiss under Rule 12(b)(6) may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds that plaintiff has failed to set forth fair notice of Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 5 of 71 Ackerman v. Beth Israel Cemetery Ass'n of Woodbridge, N.J., Not Reported in... 2010 WL 2651299 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 what the claim is and the grounds upon which it rests. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citing Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). A complaint will survive a motion to dismiss if it contains sufficient factual matter to “ ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570). The plausibility standard requires that “the plaintiff plead[ ] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged” and demands “more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556). Although a court must accept as true all factual allegations in a complaint, that tenet is “inapplicable to legal conclusions,” and “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.’ ” Id. (quoting Twombly, 550 U.S. at 555); see also Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir.2008). 1. ADA Claim *6 Defendant argues that Plaintiff's ADA claim should be dismissed for failure to state a claim upon which relief can be granted. Defendant argues that it is not covered by Title II of the ADA, as it is not a “public entity,” and that even if the Court were to overlook the fact that Plaintiff specifically seeks to recover under Title II and not Title I (see Am. Compl. ¶¶ 1, 28-30), a Title I claim would also be subject to dismissal because Plaintiff failed to exhaust his administrative remedies with the Equal Employment Opportunity Commission (“EEOC”). (Id.) Title II of the ADA provides that “no qualified individual with a disability shall, by reason of [said] disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. The term “public entity” is defined as: “(A) any State or local government; (B) any department, agency, special purpose district, or other instrumentality of a State or States or local government; and (C) the National Railroad Passenger Corporation, and any commuter authority.” 42 U.S.C. § 12131. In this case, Plaintiff appears to contend that because Defendant is “an agency duly organized and existing by virtue of the laws of the State of New York and New Jersey” (Am.Compl.¶ 6), it constitutes an “agency” of state or local government within the meaning of Title II. Plaintiff does not specifically plead that Defendant is such an entity and thus provides no basis for this contention. Courts have held that private corporations and other associations do not constitute “public entities” as contemplated by the ADA. See Anderson v. DSM N.V., 589 F.Supp.2d 528, 535 (D.N.J.2008) (defendants were private corporations and thus did not come within Title II's “concerns [about] the activities of public entities” ) (emphasis in original)); Phillips v. Perkiomen Crossing Homeowners Ass'n, No. 95-CV-1535, 1995 U.S. Dist. LEXIS 14375, at *2-3 (E.D.Pa. Sept. 29, 1995) (home owners' association not a public entity as defined by the ADA because there was “no evidence that [it was] affiliated with state or local government in such a way as to fall under Section 12131”). Because it appears that Defendant is a private organization and is not an agency of state or local government, and Plaintiff has not articulated the basis on which it contends the contrary, this Court finds that Defendant is not a public entity as defined by the ADA and thus not covered by Title II of the ADA. Plaintiff argues in response to Defendant's contention that it is not covered by Title II that “[t]he ADA covers private employers with 15 or more employees.” (Pl.'s Br. at ¶ 9.) However, it is “Title I of the ADA [that] covers all public and private employers, employment agencies and labor unions, excepting small businesses and the federal government.” Lavia v. Pennsylvania, 224 F.3d 190, 198 (3d Cir.2000) (citing 42 U.S.C. §§ 12111(2), (5), (7)). Even if the court were to overlook that Plaintiff seeks recovery specifically under Title II and analyze Plaintiff's claim under Title I, Defendant argues that any Title I claim would also be subject to dismissal for failure to exhaust administrative remedies. Defendant contends that the Amended Complaint does not plead that Plaintiff has filed a charge with the EEOC, “a prerequisite to any private action under Title I of the ADA.” (Def.'s Br. at 6.) Plaintiff responds to this argument by attaching a copy of Title I of the ADA and contending that the section “does not state that administrative exhaustion is a prerequisite under Title I.” (Pl.'s Br. at ¶ 12.) *7 “[A] party who brings an employment discrimination claim under Title I of the ADA must follow the administrative procedures set forth in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5.” Churchill v. Star Enters., 183 F.3d 184, 190 (3d Cir.1999) (citing Bishop v. Okidata, Inc., 864 F.Supp. 416, 424 (D.N.J.1994)). Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 6 of 71 Ackerman v. Beth Israel Cemetery Ass'n of Woodbridge, N.J., Not Reported in... 2010 WL 2651299 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 6 The “prerequisites to a suit under Title VII are the filing of charges with the EEOC and the receipt of the Commission's statutory notice of the right to sue.” Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398 (3d Cir.1976) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). “[A] party must wait 180 days after filing a charge with the EEOC for ADA violations before being able to forego the administrative process and file suit in court.” Churchill, 183 F.3d at 190; see 42 U.S.C. § 2000e-5(e)(1). After those 180 days, “ ‘if a complainant is dissatisfied with the progress the EEOC is making on his or her charge of employment discrimination, he or she may elect to circumvent the EEOC procedures and seek relief through a private enforcement action in a district court.’ ” Churchill, 183 F.3d at 190 (quoting Occidental Life Ins. Co. of California v. EEOC, 432 U.S. 355, 361, 97 S.Ct. 2447, 53 L.Ed.2d 402 (1977)). In this case, Plaintiff does not claim that he filed a complaint with the EEOC or that he received a notice of the right to sue from that agency. Thus, because Plaintiff has failed to exhaust his administrative remedies with the EEOC, any Title I claim would be barred. 2. FMLA Claim As to Plaintiff's FMLA claim, Defendant argues that this claim should be dismissed for failure to state a claim upon which relief can be granted because Defendant's replacement of Plaintiff while he was on FMLA leave does not amount to a violation of the statute. Defendant contends that the FMLA only protected Plaintiff's right to reinstatement for the twelve-week period of leave the statute provides for and that Plaintiff exceeded this period. Plaintiff acknowledges that the FMLA affords a limited leave period, stating that “[u]nder the FMLA a covered employer ... must afford eligible employees up to 12 work weeks of leave.” (Pl.'s Br. at ¶ 8.) Defendant also argues that Plaintiff's right to reinstatement was only protected under the FMLA during the twelve-week period that expired on September 8, 2005, and that because Plaintiff was not notified by his physician that he could return to work until after that date, he lost the FMLA's protections. “Under the FMLA, employees are entitled to a maximum of twelve weeks of unpaid leave per year to address ‘a serious health condition that makes the employee unable to perform the functions of the position of such employee.’ “ Anderson, 589 F.Supp.2d at 536 (quoting 29 U.S.C. § 2612(a)(1)(D)). The Third Circuit has held that until the end of this period “an employee is entitled to reinstatement to his former position or an equivalent one with ‘equivalent employment benefits, pay and other terms and conditions of employment.’ “ Sommer v. Vanguard Group, 461 F.3d 397, 399 (3d Cir.2006) (quoting 29 U.S.C. § 2614(a)(1)). Under the FMLA, “[o]nce an employee has been provided with 12 workweeks of leave, the employer's obligations under the FMLA expire.” Devine v. Prudential Ins. Co. of Am., No. 03-3971, 2007 U.S. Dist. LEXIS 46856, at *80, 88 (D.N.J. June 27, 2007). The Third Circuit has supported this proposition, holding that an employee who exceeded his FMLA leave “was subject to immediate discharge on the very first workday that he was both absent from work and no longer protected by the FMLA.” Conoshenti v. Public Serv. Elec. & Gas Co., 364 F.3d 135, 148 (3d Cir.2004). Employees who exceed the twelve weeks of leave the FMLA provides for “stand to lose their entitlement to job restoration even if their employers provide additional, non-FMLA, leave.” Dogmanits v. Capital Blue Cross, 413 F.Supp.2d 452, 462 (E.D.Pa.2005); see also McGregor v. Autozone, Inc., 180 F.3d 1305, 1308 (11th Cir.1999) (holding that the text of the FMLA “does not suggest that the 12 week entitlement may be extended”). 3 *8 In this case, Plaintiff's allegations establish that Plaintiff exceeded the twelve-week FMLA leave period before attempting to return to work. (Am.Compl.¶ 18.) Plaintiff was aware of his expected return date of September 8, 2005, but contends that Defendant permitted him to exceed the twelve-week period. (Am.Compl.¶ 11-13, 15.) Because the FMLA provides for only twelve weeks of leave and does not allow for an extension of that period, any alleged extension granted by Plaintiff's supervisor constituted a non-FMLA leave extension, which is not protected by the statute. McGregor, 180 F.3d at 1308. Therefore, this Court finds as a matter of law that when Plaintiff exceeded the twelve- week FMLA leave period, he lost the protections he had under the FMLA. Thus, plaintiff has failed to state a claim under the FMLA. III. CONCLUSION For the foregoing reasons, this Court will grant Defendant's motion to dismiss (Doc. No. 40), without prejudice. An appropriate form of order accompanies this Memorandum Opinion. Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 7 of 71 Ackerman v. Beth Israel Cemetery Ass'n of Woodbridge, N.J., Not Reported in... 2010 WL 2651299 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 7 All Citations Not Reported in F.Supp.2d, 2010 WL 2651299 Footnotes 1 By order of March 15, 2010, the instant matter was reassigned to the undersigned. 2 The statute of limitations applicable to Plaintiff's ADA claim “is the statute of limitations for personal injury actions in the state in which the trial court sits,” which is two years in New Jersey. Disabled in Action v. SEPTA, 539 F.3d 199, 208 (3d Cir.2008); see N.J. Stat. Ann. § 2A:14-2. The statute of limitations applicable to the FMLA is also two years. 29 U.S.C. § 2617(c)(1). 3 This Court acknowledges that one court in this District has held that an employee who took leave beyond the twelve weeks allowed by the FMLA, pursuant to the employer's internal leave program, “should not lose her FMLA protection for taking a leave longer than 12 weeks when her employer gave her the permission to do so.” Santosuosso v. Novacare Rehabilitation, 462 F.Supp.2d 590, 597-98 (D.N.J.2006). This Court declines to follow such an approach and finds that Santosuosso is factually distinguishable from this case because here, unlike in Santosuosso, there is no allegation that Defendant had formal internal leave policies that conflicted with the FMLA. See Thurston v. Cherry Hill Triplex, No. 06- 3862, 2008 U.S. Dist. LEXIS 60936, at *22 (D.N.J. Aug. 5, 2008). End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 8 of 71 Battle v. Corizon, LLC, Slip Copy (2016) 2016 WL 3583812 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 2016 WL 3583812 Only the Westlaw citation is currently available. United States District Court, M.D. Alabama, Northern Division. Carold Battle, Plaintiff, v. Corizon, LLC, Defendant. Case No. 2:15-cv-403-WC | Signed 06/30/2016 MEMORANDUM OPINION AND ORDER Wallace Capel, Jr., UNITED STATES MAGISTRATE JUDGE I. INTRODUCTION *1 On June 8, 2015, Carold Battle (“Plaintiff”) filed a complaint (Doc. 1) alleging that Corizon, LLC 1 (“Defendant”) violated provisions of the Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2611, et seq. Plaintiff alleged both an interference claim and a retaliation claim under the FMLA. Doc. 1. Before the court is Defendant's Motion for Summary Judgment (Doc. 29) and its Brief in Support (Doc. 29-1); Plaintiff's Response in Opposition to Defendant's Motion for Summary Judgment (Doc. 34); and Defendant's Reply (Doc. 41). For the reasons that follow, the court finds that Defendant's motion is due to be GRANTED. II. STANDARD OF REVIEW Under Rule 56(a) of the Federal Rules of Civil Procedure, a reviewing court shall grant a motion for “summary judgment if the movant shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). 2 Only disputes about material facts will preclude the granting of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “An issue of fact is ‘genuine’ if the record as a whole could lead a reasonable trier of fact to find for the nonmoving party. An issue is ‘material’ if it might affect the outcome of the case under the governing law.” Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1496 (11th Cir. 1996) (quoting Anderson, 477 U.S. at 248). Under Rule 56, summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party asking for summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrates the absence of a genuine issue of material fact.” Id. at 323. The movant can meet this burden by presenting evidence showing there is no dispute of material fact, or by showing the non-moving party has failed to present evidence in support of some element of her case on which she bears the ultimate burden of proof. Id. at 322-23. *2 Once the movant has satisfied this burden, the non- moving party must “go beyond the pleadings and by [her] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ ” Id. at 324. In doing so, and to avoid summary judgment, the non-movant “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The parties must support their assertions “that a fact cannot be or is genuinely disputed” by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations[ ], admissions, interrogatory answers, or other materials” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A) & (B). If the nonmovant “fails to properly address another party's assertion of fact” as required by Rule 56(c), then the court may “consider the fact undisputed for purposes of the motion” and “grant summary judgment if the motion and supporting materials - including the facts considered undisputed - show that the movant is entitled to it.” Fed. R. Civ. P. 56(e)(2) & (3). Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 9 of 71 Battle v. Corizon, LLC, Slip Copy (2016) 2016 WL 3583812 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 In determining whether a genuine issue for trial exists, the court must view all the evidence in the light most favorable to the non-movant. McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003). Likewise, the reviewing court must draw all justifiable inferences from the evidence in the nonmoving party's favor. Anderson, 477 U.S. at 255. However, “mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam). Furthermore, “[a] mere ‘scintilla’ of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990); see also Anderson, 477 U.S. at 249-50 (“If the evidence [on which the nonmoving party relies] is merely colorable, or is not significantly probative, summary judgment may be granted.”) (internal citations omitted). A reviewing court is restrained during summary judgment proceedings from making the sort of determinations ordinarily reserved for the finder of fact at a trial. See Strickland v. Norfolk S. Ry. Co., 692 F.3d 1151, 54 (11th Cir. 2012) (citations and quotations omitted) (“Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict.”). After the nonmoving party has responded to the motion for summary judgment, the court must grant summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). III. STATEMENT OF FACTS Pursuant to the court's scheduling order, the parties have jointly agreed that the following facts are uncontested for purposes of Defendant's motion for summary judgment: Defendant has a contract with the Alabama Department of Correction (“ADOC”) to provide health care related services to inmates incarcerated within Alabama state correctional facilities. Defendant has held the contract with the ADOC since November 1, 2007. As part of that contract, Defendant has certain obligations that are monitored by the ADOC, and Defendant is regularly audited by the ADOC to ensure compliance under the contract. Plaintiff worked as a dental assistant for Defendant at the Bullock Correctional Facility from 1998 to August 2014. In September 2013, Plaintiff developed knee problems. Due to her knee issues, Plaintiff initially sought and was approved for FMLA leave beginning on December 10, 2013, expiring January 10, 2014, with Plaintiff returning to work at the Bullock Correctional Facility on January 13, 2014. Plaintiff thereafter sought further FMLA leave and was provided with FMLA leave beginning on May 21, 2014, and extending through July 11, 2014. On July 11, 2014, Plaintiff's protected twelve weeks of FMLA leave expired. However, Plaintiff's FMLA leave, at Plaintiff's request, was extended from May 21, 2014, through August 2, 2014. Plaintiff was never denied FMLA leave. *3 Plaintiff returned to work at the Bullock Correctional Facility on Monday, August 4, 2014. On August 5, 2014, personnel from the ADOC's offices of health services met with Defendant's management personnel and informed them that there were issues with respect to the logs of dental tools and instruments at the Bullock Correctional Facility that needed to be addressed immediately. At that meeting, the ADOC officials informed Defendant of certain issues with the dental instrument count logs that the ADOC had discovered during its audit. Stephanie Caldwell (“Caldwell”), Paulette Perryman (“Perryman”), and Dr. Wehby (“Wehby”) were not on FMLA leave during June, July, and August of 2014. Prior to Plaintiff's termination, none of those individuals were questioned or interviewed about the issues with the dental logs. 3 None of those individuals were terminated for falsifying or failing to inform Defendant that the logs were inaccurate. On August 6, 2014, Defendant's personnel terminated Plaintiff, after recommendation for termination from Jessica Duffell (“Duffell”), for allegedly falsifying the Daily Dental Instrument Count Logs. During the meeting in which Plaintiff was terminated, Plaintiff was informed that she was being terminated because she had falsified documents, which she disputed. Apart from the above uncontested facts, the court has carefully considered the pleadings in this case and all documents submitted in support of, and in opposition to, Defendant's Motion for Summary Judgment. The submissions of the parties, viewed in the light most Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 10 of 71 Battle v. Corizon, LLC, Slip Copy (2016) 2016 WL 3583812 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 favorable to Plaintiff, the non-moving party, establish the following relevant facts: Plaintiff's statutorily-protected FMLA leave ended on July 11, 2014. She was granted an extension until August 2, 2014. Plaintiff requested a second extension on July 30, 2014, but was denied. On that same day, one week prior to Plaintiff's termination, Defendant discussed, via email, terminating Plaintiff if she was unable to return to work. In that email, Defendant's employee, Cindy Johnson (“Johnson”), stated that she could “no longer accommodate [Plaintiff's] position being open.” Plaintiff returned to work on Monday, August 4, 2014. Defendant and the ADOC have policies which require the Dentistry Department to record the use of the dental instruments utilized by the dentist. Even when the dental assistant is not at the facility, it remains Defendant's responsibility to protect inmates from getting dental sharps that could hurt someone. Thus, the dentist, or anyone else working in the Dentistry Department on any particular day, should complete the daily instrument log if procedures are performed using particular dental tools. As such, the daily responsibility for the logs was not imparted to Plaintiff alone. During June and July 2014, while Plaintiff was on leave, Caldwell, Perryman, and Wehby were the only individuals working in the Dentistry Department. Prior to August 2014, the ADOC performed an audit of the dental unit at the Bullock County Correctional Facility, which uncovered problems with the Daily Dental Instrument Count logs for June 2014, July 2014, and August 2014. The ADOC communicated the discrepancies to Defendant on August 5, 2014. Defendant's employees, Duffell and Colleen Oakes (“Oakes”) looked at the logs, and sometime thereafter, Duffell recommended that Plaintiff be terminated. No investigation was performed other than that. *4 Plaintiff was asked to report to Oakes's office on August 6, 2014. When she did, Duffell, Oakes, and Johnson were present. Plaintiff was shown the logs and was asked if her initials appeared on the logs. Plaintiff admitted that her initials appeared on the logs, but stated that she did not falsify the logs. Plaintiff was immediately terminated for “falsification of an institution record/ documents and failure to perform shift to shift counts,” and Duffell assisted her in gathering her things and exiting the building. After Plaintiff's termination, Wehby stated that he copied the logs from a previous month and simply changed the date at the top of the page because he did not know how to complete the logs in Plaintiff's absence. 4 Wehby stated that he did so per the instruction of Johnson, who as early as June 2014, knew an audit was forthcoming. Johnson was not part of any investigation of Plaintiff and was only present during Plaintiff's termination. As of August 6, 2014, all of the “Daily Dental Instrument Count” logs from August 2013 through January 2015 5 with the exception of June, July, and August 2014 are missing. After her return to work on August 4, 2014, Plaintiff did not see patients with Dr. Wehby on August 5, 2014, or August 6, 2014. Thus, Plaintiff did not use or look at the Daily Dental Instrument Count during her three days back from leave. IV. DISCUSSION Among the substantive rights granted by the FMLA to eligible employees are: (1) the right to take up to twelve work weeks of leave during any twelve-month period because of a serious health condition that makes the employee unable to perform the functions of her position, 29 U.S.C. § 2612(a)(1); and (2) the right following leave to be restored to the position of employment held when the leave commenced, or to an equivalent position, 29 U.S.C. § 2614(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 [her] employer denied or otherwise interfered with [her] substantive rights under the Act ... and retaliation claims, in which an employee asserts that [her] employer discriminated against [her] because she engaged in activity protected by the Act.” Strickland v. Water Works and Sewer Bd. of City of Birmingham, 239 F.3d 1199, 1206 (11th Cir. 2001); see also 29 U.S.C. § 2615(a)(1) & (2); 29 C.F.R. § 825.220(c) (“An employer is prohibited from discriminating against employees ... who have used FMLA leave.”). Defendant seeks summary judgment on both Plaintiff's interference claim and Plaintiff's retaliation claim under the FMLA. To resolve Defendant's motion, the court Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 11 of 71 Battle v. Corizon, LLC, Slip Copy (2016) 2016 WL 3583812 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 begins its analysis with a discussion of the elements of each of Plaintiff's claims. A. FMLA Interference Claim To state a claim of interference with a substantive right, an employee need only demonstrate by a preponderance of the evidence that she was entitled to a benefit under the FMLA, and she was denied that benefit. 6 O'Connor v. PCA Family Health Plan, Inc., 200 F.3d 1349, 1353-54 (11th Cir. 2000); King v. Preferred Tech. Grp., 166 F.3d 887, 891 (7th Cir. 1999). *5 Plaintiff alleges that Defendant violated 29 U.S.C. § 2614 “by interfering with Plaintiff's rights under the FMLA to get healthy and by terminating her for using her FMLA leave.” Doc. 11 at 4. Plaintiff also asserts that Defendant “has interfered with Plaintiff's right to take FMLA [l]eave,” “restrained her right to take FMLA [l]eave,” and that “Defendant's actions were causally and directly connected to Plaintiff's protected activity.” Doc. 11 at 4. Further, Plaintiff alleges that “Defendant has interfered with Plaintiff's position” by failing to restore her to her position upon return from FMLA leave. Doc. 11 at 5. B. FMLA Retaliation Claim To succeed on a retaliation claim under the FMLA, an employee must demonstrate that her employer intentionally discriminated against her in the form of an adverse employment action for having exercised an FMLA right. Strickland, 239 F.3d at 1207 (quoting King, 166 F.3d at 891). In other words, an employee bringing a retaliation claim faces the increased burden of showing that her employer's actions “were motivated by an impermissible retaliatory or discriminatory animus.” Id. When an employee asserts a claim of retaliation under the FMLA, in the absence of direct evidence of the employer's intent, the court will apply the same burden- shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, (1973), for evaluating Title VII discrimination claims. See Brungart v. BellSouth Telecomms. Inc., 231 F.3d 791, 798 (11th Cir. 2000). First, the employee must establish a prima facie case of FMLA retaliation by showing that: (1) she engaged in a statutorily-protected activity; (2) she suffered an adverse employment decision; and (3) the decision was causally related to the protected activity. Parris v. Miami Herald Publ'g Co., 216 F.3d 1298, 1301 (11th Cir. 2000). The burden then shifts to the employer “to articulate a legitimate reason for the adverse action.” Hurlbert v. St. Mary's Health Care Sys., Inc., 439 F.3d 1286, 1297 (11th Cir. 2006). The employer's burden is one of production, not of persuasion. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). “If the employer does so, the employee must then show that the employer's proffered reason was pretextual by presenting evidence sufficient to permit a reasonable factfinder to conclude that the reasons given by the employer were not the real reasons for the adverse employment decision.” Martin v. Brevard Cnty. Pub. Schs., 543 F.3d 1261, 1268 (11th Cir. 2008) (internal quotation marks omitted). The employee must “meet [each proffered] reason head on and rebut it, and the employee cannot succeed by simply quarreling with the wisdom of [the employer's] reason.” Brooks v. Cnty. Comm'n of Jefferson Cnty., Ala., 446 F.3d 1160, 1163 (11th Cir. 2006) (internal citations omitted). The employee must demonstrate that the [employer's] proffered reason was not the true reason for the employment decision ... [The employee] may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence ... [The employee] could do this by pointing to weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the proffered explanation. Brooks, 446 F.3d at 1162-63 (internal citations omitted). Importantly, “[a] reason is not pretext for discrimination unless it is shown both that the reason was false, and that discrimination was the real reason.” Id. at 1163. To do so, “[t]he employee may rely on evidence that [s]he already produced to establish [her] prima facie case.” Id. *6 Plaintiff alleges that “Defendant has wilfully [sic], intentionally, and with malice or reckless indifference, retaliated against Plaintiff on the basis of Plaintiff's FMLA needs. Defendant wilfully [sic] interfered with her FMLA rights, and terminated Plaintiff because Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 12 of 71 Battle v. Corizon, LLC, Slip Copy (2016) 2016 WL 3583812 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 she invoked and used her FMLA leave. Defendant had no legitimate reason to terminate Plaintiffs' [sic] employment.” Doc. 11 at 3. Further, Plaintiff alleges that Defendant has “retaliated against Plaintiff by terminating her employment because she took FMLA [l]eave and because of her potential to request for continued leave under the FMLA.” Doc. 11 at 5. C. Application Against the above backdrop of the elements of each claim which Plaintiff is required to prove in order to sustain her claims, the court turns to consider Defendant's motion for summary judgment. 1. Plaintiff's FMLA Interference Claim Defendant asserts that it is entitled to summary judgment on Plaintiff's FMLA interference claim because the claim fails as a matter of law. Def.'s Br. (Doc. 29-1) at 13. The crux of Defendant's argument is simple: Plaintiff was not entitled to any benefit under the FMLA because Plaintiff had already exhausted her twelve weeks of statutorily- protected leave. Def.'s Reply (Doc. 41) at 2 (“no FMLA interference claim lies where [an employee] is afforded all of the FMLA they are entitled to receive”). As such, Plaintiff was not entitled to additional FMLA leave, nor was she entitled to reinstatement to her previous position upon her return from a fifteen-week leave. Doc. 29-1 at 10-13. In support of its position, Defendant cites three authorities, including Freeman v. Koch Foods of Alabama, 777 F. Supp. 2d 1264, 1289 (M.D. Ala. 2011). See also May v. AT&T Corp., No. 2:11-cv-01923-TMP, 2013 WL 3357005, at *11 (N.D. Ala. Mar. 8, 2013) (noting that the employer did not interfere with the rights of the employee under the FMLA because, in part, the employee used more than her twelve weeks of FMLA leave); Cazeau v. Wells Fargo Bank, N.A., 614 Fed.Appx. 972, 978 n.2 (11th Cir. 2015) (“Although Cazeau did not allege a claim of interference with his rights under the Family and Medical Leave Act, 29 U.S.C. § 2615(a), we note that the evidence indicates that Cazeau's position was filled after he had exhausted his FMLA leave and corresponding job- protection rights.”). In Freeman, the employee asserted an FMLA interference claim based upon her employer's failure to reinstate her to her previous position upon her return from leave. Freeman, 777 F. Supp. 2d at 1288-89. In granting summary judgment in favor of the employer, this court noted: Here, Koch Foods points out that it granted Freeman 24 weeks of leave, essentially doubling the twelve weeks of FMLA leave to which she was entitled.... Indeed, the undisputed facts demonstrate that Freeman began her FMLA leave in August of 2006 and did not return until February of 2007. As a matter of law, Koch Foods could not have interfered with Freeman's substantive right to be reinstated because she had no such right. Thus, summary judgment is due to be GRANTED with respect to Freeman's failure to reinstate claim. Id. at 1289. Thus, because the Freeman employee had exceeded her maximum, statutorily-protected leave under the FMLA, she could not state a claim for interference as a matter of law. Id. In response to Defendant's argument, Plaintiff states that her “FMLA leave was approved and she was due to have her position restored by [Defendant], but was terminated. [Plaintiff] had a substantive right to take this leave and was terminated. This is sufficient to state an interference claim.” 7 Pl.'s Resp. (Doc. 34) at 12. For support, Plaintiff points to Strickland, 239 F.3d at 1206-07 (holding that the employee had sufficiently alleged an interference claim to withstand summary judgment because the employee demonstrated that he was entitled to a right under the FMLA, and denied that right); Martin v. Brevard County Public Schools, 543 F.3d 1261, 1267 (11th Cir. 2008) (holding that a genuine issue of material fact remained as to whether an employee would have retained his position had he not taken FMLA leave); and Turner v. Florida Prepaid Coll. Bd., 522 Fed.Appx. 829, 834-35 (11th Cir. 2013) (holding that genuine issues of fact existed about whether the employer failed to restore the employee to her prior position, or instead would have fired her even had she not taken leave). Plaintiff presents evidence that “she returned to work as approved on August 4, 2014, and attempted to start her job again, but was terminated in less than 72 hours.” Doc. 34 at 12. Additionally, Plaintiff states that she “dispute[s] the legitimacy of Defendant's Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 13 of 71 Battle v. Corizon, LLC, Slip Copy (2016) 2016 WL 3583812 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 6 proffered reasons associated with her termination.” Doc. 34 at 12. Thus, Plaintiff asserts that “Defendant interfered with her right to return to her position [;] therefore[,] Plaintiff has established a genuine issue of material fact that [Defendant's] failure to restore constitutes an interference claim, which should be presented to a jury.” Doc. 34 at 12. The court disagrees. *7 The undisputed evidence indicates that Plaintiff sought and was approved FMLA leave from December 10, 2013, through January 10, 2014. Def.'s Br. (Doc. 29-1) at 2, ¶4 (“Ms. Battle initially sought and was approved for FMLA leave beginning on December 10, 2013, expiring January 10, 2014.”); Pl.'s Br. (Doc. 34) at 2, ¶4 (same). Plaintiff then requested and was approved additional FMLA leave from May 21, 2014, through July 11, 2014. Doc. 29-1 at 2, ¶5 (“Ms. Battle thereafter sought further FMLA leave and was provided with FMLA leave beginning on May 21, 2014 and extending through July 11, 2014.”); Doc. 34 at 3, ¶5 (same). The parties agree that Plaintiff's twelve weeks of statutorily-protected FMLA leave expired on July 11, 2014. Def.'s Br. (Doc. 29-1) at 2, ¶6 (“On July 11, 2014, Ms. Battle's protected 12 weeks [of] FMLA leave expired.”); Pl.'s Br. (Doc. 34) at 3, ¶6 (same). The court concludes that Plaintiff's interference claim fails because the right to reinstatement terminates once twelve weeks of FMLA leave expire. Freeman, 777 F. Supp. 2d at 1289; see also Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 96 (2002) (the FMLA provides for only twelve weeks of leave and does not suggest that the twelve weeks of leave may be extended); Brungart, 231 F.3d at 797 (same); McGregor v. Autozone, Inc., 180 F.3d 1305, 1308 (11th Cir. 1999) (employee absent for more than the protected period of time does not have a right to reinstatement even if the employer provides more leave than required by the FMLA); Cox v. Autozone, Inc., 990 F. Supp. 1369, 1377-79 (M.D. Ala. 1998) (“Under the FMLA, an eligible employee receives twelve weeks of unpaid leave in any twelve month period for certain family and medical purposes.... An employer has no responsibility to restore a person's job after that twelve week period.... The court finds a clear intent of Congress to protect only those workers who take 12 or fewer weeks of leave.”). Various other courts are in accord. See, e.g., Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 148 (3d Cir. 2004) (an employee is subject to discharge on the first day he is both absent from work and no longer protected by the FMLA); Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 161-62 (2d Cir. 1999) (no interference claim when the employee was unable to perform his job for two months after expiration of his twelve-week FMLA period); Ackerman v. Beth Israel Cemetery Ass'n, Civ. Act. No. 09-1097 (GEB), 2010 WL 2651299 at * 7-8 (D.N.J. June 25, 2010) (once an employee has been provided with twelve weeks of leave, the employer's obligations under the FMLA expire); Eklind v. Cargill Inc., No. 3:07-cv-89, 2009 WL 2516168 at *5-6 (D.N.D. Aug. 14, 2009) (extension of leave time beyond that required by the FMLA does not extend the right to restoration of job); Talkin v. Deluxe Corp., Civ. Act. No. 05-2305-CM, 2007 WL 1469648 at *4- 5 (D. Kan. May 18, 2007) (an employee who returns after exhausting FMLA leave cannot state an entitlement claim under the FMLA); Standifer v. Sonic-Williams Motors, 401 F. Supp. 2d 1205, 1221-22 (N.D. Ala. 2005) (an employee was not entitled to reinstatement because she took thirteen weeks, not twelve weeks, off work); Dogmanits v. Capital Blue Cross, 413 F. Supp. 2d 452, 462 (E.D. Pa. 2005) (employees who exceed twelve weeks leave stand to lose the right to job restoration under FMLA even if employers provided additional non-FMLA leave); Farina v. Compuware Corp., 256 F. Supp. 2d 1033, 1054 (D. Ariz. 2003) (an employee who took longer than a twelve-week leave was not entitled to reinstatement unless she was prepared to return within the period of FMLA leave allowed); Smith v. Blue Dot Servs. Co., 283 F. Supp. 2d 1200, 1205-06 (D. Kan. 2003) (an employee who was unable to return to work before his FMLA leave expired did not allege any denial of an FMLA right); Hanson v. Sports Auth., 256 F. Supp. 2d 927, 936 (W.D. Wis. 2003) (an employee may be terminated if she does not have the required medical certification at the time the FMLA leave concludes); Holmes v. e.spire Comms., 135 F. Supp. 2d 657, 666-67 (D. Md. 2001) (there is no FMLA remedy for job restoration after the expiration of FMLA leave in spite of an employer's policy granting additional leave); Hite v. Biomet, Inc., 53 F. Supp. 2d 1013, 1017-18 (N.D. Ind. 1999) (while an employer may grant an employee more than twelve weeks leave, the additional time is not protected leave subject to the FMLA safeguards); but see Santosuosso v. NovaCare Rehabilitation, 462 F. Supp. 2d 590, 597-98 (D.N.J. 2006) (employee did not lose FMLA protection by taking a leave longer than twelve weeks where her employer gave her permission to do so); 8 Barone v. Leukemia Soc. of Am., 42 F. Supp. 2d 452, 463-64 (D.N.J. 1986) (applying the doctrine of equitable estoppel to protect an employee's rights under the FMLA Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 14 of 71 Battle v. Corizon, LLC, Slip Copy (2016) 2016 WL 3583812 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 7 when the employer never informed the employee that she was required to return to work in the event her spouse died). 9 *8 Accordingly, the court finds that, because Plaintiff cannot establish an interference claim under the FMLA as a matter of law, summary judgment is appropriate. 10 2. Plaintiff's FMLA Retaliation Claim Defendant asserts that it is entitled to summary judgment on Plaintiff's FMLA retaliation claim because it “has articulated a legitimate, non-discriminatory reason for Plaintiff's termination,” and that Plaintiff cannot show that the reason was pretext for retaliation. Doc. 29-1 at 15. The court begins by examining whether Plaintiff has made out a prima facie case for retaliation under the FMLA. As set forth above, Plaintiff must show that: (1) she engaged in a statutorily-protected activity; (2) she suffered an adverse employment decision; and (3) the decision was causally related to the protected activity. Parris, 216 F.3d at 1301. The undisputed evidence shows that Plaintiff engaged in statutorily-protected activity when she took FMLA leave from December 10, 2013, through January 10, 2014, and then again from May 21, 2014, through July 11, 2014. 11 See Doc. 29-1 at 2, ¶¶ 4-7; Doc. 34 at 2-3, ¶¶ 4-7. Next, the undisputed evidence shows that Plaintiff was terminated on August 6, 2014, for allegedly falsifying instrument logs. See Doc. 29-1 at 4, ¶ 20; Doc. 34 at 5, ¶ 20. Termination is an adverse employment decision. See Norman v. S. Guar. Ins. Co., 191 F. Supp. 2d 1321, 1332 (M.D. Ala. 2002) (noting that the employee's termination is “certainly enough to satisfy her burden of showing an adverse employment decision”). Finally, the court concludes that Plaintiff's termination was causally related to her FMLA leave. “To establish the causal connection element, ‘a plaintiff need only show “that the protected activity and the adverse action were not wholly unrelated.” ’ ” Brungart, 231 F.3d at 800 (quoting Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1354 (11th Cir. 1999)); see also Simmons v. Camden Cnty. Bd. of Educ., 757 F.2d 1187, 1189 (11th Cir. 1985)). The undisputed evidence shows that Plaintiff returned from FMLA leave on August 4, 2014, and was terminated on August 6, 2014. See Doc. 29-1 at 2, 4, ¶¶ 8, 20; Doc. 34 at 3, 5, ¶¶ 8, 20. The temporal proximity of Plaintiff's return to work and her termination is enough to establish a causal connection for a prima facie case of FMLA retaliation. See Smith v. Constr. Datafax, Inc., 871 F. Supp. 2d 1226, 1239 (N.D. Ala. 2012) (“Under the Eleventh Circuit case law, three days is clearly sufficient temporal proximity to establish causal connection for the prima facie case.”) In addition, a causal connection may be established by showing that a decision- maker was aware of the protected conduct at the time of the adverse employment action. “In order to show the two things were not entirely unrelated, the [employee] must generally show that the decision[-]maker was aware of the protected conduct at the time of the adverse employment action.” Brungart, 231 F.3d at 800 (citing Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993)); Raney v. Vinson Guard Serv., Inc., 120 F.3d 1192, 1197 (11th Cir. 1997) (“[I]n a case involving a corporate defendant the [employee] must show that the corporate agent who took the adverse action was aware of the [employee's] protected expression....”). Plaintiff has presented evidence that Duffell made the decision to terminate Plaintiff and that Duffell knew at the time of Plaintiff's termination that Plaintiff had recently returned from FMLA leave. See Duffell Depo. (Doc. 34-8) at 96:7-12. Therefore, because Defendant's decision-maker knew that Plaintiff had recently returned from FMLA leave at the time of Plaintiff's termination, the court concludes that Plaintiff has satisfied her burden of showing that the protected activity and the adverse action were not wholly unrelated. As such, Plaintiff has established a prima facie case of retaliation under the FMLA. *9 Next, the court turns to whether Defendant has articulated a legitimate, non-retaliatory reason for terminating Plaintiff's employment. See Hurlbert, 439 F.3d at 1297 (noting that after an employee establishes a prima facie case of retaliation under the FMLA, the burden shifts to the employer to articulate a legitimate reason for the adverse action). Defendant proffers two reasons for terminating Plaintiff: (1) Plaintiff “forged and altered medical charts”; and/or (2) Plaintiff “did not discharge her duties in preparing and maintaining those charts as she was required to do.” Doc. 29-1 at 15. Falsifying documents and failure to discharge work- related duties are both legitimate, non-retaliatory reasons to terminate an employee. See, e.g., Thomas v. Dolgencorp, LLC, Civ. Act. No. 1:13cv128-MHT, 2015 WL 4528232 at *6 (M.D. Ala. July 27, 2015). Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 15 of 71 Battle v. Corizon, LLC, Slip Copy (2016) 2016 WL 3583812 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 8 Because Defendant has offered a legitimate, non- discriminatory reason for terminating Plaintiff, Plaintiff must now offer sufficient evidence to create a genuine issue of material fact that Defendant's reason is not true, but is instead pretext for discrimination. 12 See Hulbert, 439 F.3d at 1297 (noting that once an employer presents a legitimate, non-discriminatory reason for terminating an employee, the employee “must show that the [employer's] proffered reason for the adverse action is pretextual”). Prior to delving into Plaintiff's evidence of pretext, the court initially notes that the facts of this case do not inherently establish a retaliatory motive on the part of Defendant. In particular, the court would note that a third-party - the ADOC -set the wheels in motion for Plaintiff's termination, not Defendant. Indeed, the undisputed facts show that the ADOC alerted Defendant that there were problems with the dental logs on August 5, 2014. Doc. 29-1 at 3, ¶ 11 (“On August 5, 2014, personnel from the ADOC's offices of health services met with Corizon management personnel and informed them that there were issues with respect to the logs of dental tools and instruments at the Bullock Correctional Facility that needed to be addressed immediately.”); Doc. 34 at 3, ¶ 11 (same). Thereafter, Defendant initiated action against Plaintiff. Doc. 29-1 at 4, ¶ 20 (“On August 6, 2014, Corizon personnel terminated Battle ... for allegedly falsifying the DailyDental Instrument Count logs....”); Doc. 34 at 5, ¶ 20 (same). There is no evidence that Defendant was aware that the logs were incorrect prior to that time. Furthermore, there is no evidence that Plaintiff had any pending requests for FMLA leave, or any evidence that Plaintiff would be requesting additional FMLA leave. As such, the facts do not inherently support the proposition that Defendant retaliated against Plaintiff with regards to leave that she had taken, or leave that she was seeking. 13 *10 Plaintiff presents the following arguments to establish pretext: (1) Defendant failed to follow its own internal policies with regards to investigating workplace incidents requiring corrective action; (2) Defendant treated comparators to Plaintiff more favorably than Plaintiff; and (3) Plaintiff did not falsify instrument logs; instead another employee of Defendant instructed the logs to be created while Plaintiff was on leave. Doc. 23 at 15-22. The court will examine each, in turn. (1) Failure to Follow Internal Policies First, Plaintiff points to Defendant's “failure to follow its policies” as evidence of pretext. Doc. 34 at 17-18; see also McCann v. Mobile Cnty. Pers. Bd., Civ. Act. No. 05-0364-WS-B, 2006 WL 1867486, at *14 (S.D. Ala. July 6, 2006) (finding evidence of pretext when the employer failed to follow the “regular practice” for selecting among candidates to promote); Bass v. Bd. of Cnty. Comm'rs Orange Cnty., Fla., 256 F.3d 1095, 1108 (11th Cir. 2001) (noting that violating written procedures and departing from “standard procedure” was evidence of pretext in Title VII race discrimination case); Rulin v. Lincoln Land Comm. Coll., 420 F.3d 712, 727 (7th Cir. 2005) (“An employer's failure to follow its own internal procedures can constitute evidence of pretext.”) For support, Plaintiff cites Defendant's Employee Success Guide (“ESG”), which addresses “Corrective Action” as follows: “[Defendant] believes that managers and employers have a mutual responsibility to correct performance or conduct detrimental to the efficient delivery of services. Prior to imposing corrective action, Managers should investigate the issue and gather statements from everyone involved in the situation, as appropriate.” Def.'s ESG (Doc. 34-14) at 16. Plaintiff states that Defendant “failed to gather statements from anyone, even with knowledge that the ADOC discovered the fraudulent forms during Plaintiff's protected leave.” Doc. 34 at 17 (pointing to Duffell Depo. (Doc. 34-8) at 70:11-71:16; Naglich Aff. (Doc. 34-5) at ¶¶ 5, 7). Plaintiff asserts that Defendant should have been aware that someone had been using the fraudulent logs for months, but no one was questioned. Doc. 34 at 17. Plaintiff also points to statements by Duffell stating that “[she] should have completed the investigation” prior to terminating Plaintiff. Doc. 34 at 17; Doc. 34-8 at 98:9-16. Thus, Plaintiff alleges pretext, asserting that Defendant, by failing to question or gather statements from anyone, “intentionally ignore[d] its own policy regarding investigations and procedures, prior to handing down corrective action.” Doc. 34 at 18. Defendant replies that the same portion of the ESG on which Plaintiff relies provides “managers with discretion as to how they investigate instances of misconduct prior to imposing corrective action.” Doc. 41 at 5. Specifically, Defendant emphasizes the ESG's language, stating: “Prior to imposing corrective action, Managers should investigate the issue and gather statements from everyone involved in the situation, as appropriate.” Doc. Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 16 of 71 Battle v. Corizon, LLC, Slip Copy (2016) 2016 WL 3583812 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 9 41 at 5 (emphasis in original); Doc. 34-14 at 16 (emphasis added). Thus, Defendant asserts that its internal policies did not require it to gather statements, and as such, it could not have failed to follow its policies. Doc. 41 at 5. Further, Defendant notes the ESG's language for discretionary, progressive corrective action: “[Defendant] reserves the prerogative to take progressive corrective action, up to and including immediate termination, and to skip any intermediate steps in the corrective action process, where appropriate.” Doc. 41 at 5; Doc. 34-14 at 16. Defendant argues that even if it did fail to comply with its own investigatory procedures, that would not establish pretext because Plaintiff “did not show that the investigation was conducted differently than other investigations or that the technical deviations ... were due to a retaliatory motive....[T]he record shows that the decision makers had a good faith reason -honest belief of work rule violations - for terminating [Plaintiff's] employment.” Doc. 41 at 6, n.4 (citing Simmons v. Bd. of Regents of Univ. Sys. of Georgia, 523 Fed.Appx. 712, 713 (11th Cir. 2013)). *11 The court concludes that Plaintiff has failed to raise a genuine issue of material fact that Defendant's reason for Plaintiff's termination is pretextual. Although Defendant's ESG does suggest that, prior to taking corrective action, “Managers should investigate the issue and gather statements from everyone involved in the situation,” that policy is qualified with two words: “as appropriate.” 14 Doc. 34-14 at 16. Thus, Defendant's decision-makers are afforded discretion as to which cases warrant investigations and which do not. Defendant's policy continues with a reservation to Defendant “to take progressive corrective action, up to and including immediate termination, and to skip any intermediate steps in the corrective action process, as appropriate.” Doc. 34-14 at 16. Thus, Defendant's decision-makers are afforded discretion to skip written warnings to Plaintiff and proceed directly to termination. While the Eleventh Circuit has indicated that circumstances may exist where an employee can establish pretext by demonstrating an employer's failure to follow a progressive discipline policy, an employer's failure to follow that policy does not show pretext “if management has discretion as to whether to follow the discipline policy.” See Coleman v. Alabama State Univ., 904 F. Supp. 2d 1245, 1258-59 (M.D. Ala. 2012) (holding that plaintiff did not establish pretext for failure to follow the progressive discipline policy where there was testimony that the policy was not followed in every case); Ritchie v. Indus. Steel, Inc., 426 Fed.Appx. 867, 873 (11th Cir. 2011) (“[I]f management has discretion as to whether to follow the discipline policy, then a failure to follow the policy does not show pretext.”); see also Mitchell v. USBI Co., 186 F.3d 1352, 1355-56 (11th Cir. 1999) (“Standing alone, deviation from a company policy does not demonstrate discriminatory animus.”). Plaintiff has not pointed to evidence that Defendant failed to follow its internal policies for investigations into employee misconduct or for progressive discipline because Defendant's policy allows decision-makers discretion in how they impose discipline and investigate misconduct. Further, Plaintiff has presented no evidence that Defendant regularly followed a certain pattern of investigation and/or discipline that would run contrary to the way Defendant handled Plaintiff's investigation and/or termination. As such, Plaintiff has not demonstrated that Defendant's proffered reason for termination is pretextual. 15 As part of Plaintiff's argument that Defendant failed to follow its own policies, Plaintiff also suggests that Defendant has shifted its reason for Plaintiff's termination, and as such, the reason is pretextual. Doc. 34 at 18-19. While the court agrees that an employer's shifting reasons for termination may be evidence of pretext, the court does not find that such is the case here. See Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1194 (11th Cir. 2004) (finding an employer's inconsistent rationale for termination allowed the jury to question the employer's credibility). In order to be pretextual, the “new reasons relied on in litigation must plainly contradict the reasons relied on at the time of the decision.... The reasons must contradict each other, and not merely be cumulative.” Pate v. Chilton Cnty. Bd. of Educ., 853 F. Supp. 1117, 1133-34 (M.D. Ala. 2012). Here, Plaintiff's termination letter states that Plaintiff “had prefilled out the daily tool count and signed it for August 1-27” and that Plaintiff “had signed the log for the month of June 2014 and July 2014.” Doc. 34-12 at 2. Further, the letter states that “[t]his constitutes Falsification of an Institution record/document and failure to perform shift to shift counts. According to the ESG page 19 16 these actions are grounds for immediate termination.” Doc. 34-12 at 2. *12 Defendant's argument in litigation is that Plaintiff either: “(1) forged and altered medical charts or (2) did Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 17 of 71 Battle v. Corizon, LLC, Slip Copy (2016) 2016 WL 3583812 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 10 not discharge her duties in preparing and maintaining those charts as she was required to do.” 17 Doc. 29-1 at 15. The court concludes that Defendant's proffered reasons for termination in litigation do not contradict the reasons stated by Defendant in Plaintiff's termination letter. Indeed, the reasons match, or at the very least, the latter is an extension of the first. (2) Comparators were Treated More Favorably than Plaintiff Plaintiff also suggests that Defendant's proffered reason for her termination is pretext because “Defendant treated employees who were not using statutory leave more favorably” than Plaintiff by not investigating or disciplining those employees who were not on FMLA leave regarding the falsified logs. Doc. 34 at 19. Plaintiff points to three potential comparators: (1) Paulette Perryman, (2) Dr. Harold Wehby, and (3) Stephanie Caldwell. Doc. 34 at 19. Perryman was employed by Defendant as a Licensed Practicing Nurse. Perryman Aff. (Doc. 29-8) at ¶ 3. Wehby was employed by Defendant as a Dentist. Wehby Aff. (Doc. 34-13) at ¶ 3. Caldwell was employed by Defendant as a Dental Hygenist. Caldwell Aff. (Doc. 29-7) at ¶ 2. Plaintiff was employed by Defendant as a Dental Assistant. Battle Depo. (Doc. 29-3) at 20:5-21:6. When determining whether an individual is similarly situated for purposes of establishing a comparator, the Eleventh Circuit has stated that “the comparator's misconduct must be nearly identical to prevent courts from second guessing employers' reasonable decisions and confusing apples and oranges.” Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999); Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1281 (11th Cir. 2008). While differences in job ranks may matter when determining if individuals are similarly situated, they “are not, in and of themselves, dispositive as to whether the two individuals may be compared for the purposes of evaluating a discrimination claim.” Rioux, 520 F.3d at 1281; Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1326 (11th Cir. 2011). “This is because the relevant inquiry is whether the employer subjected differently ranked employees to the same or different employment policies.” Smith, 644 F.3d at 1321 (citing Lathem v. Dep't of Children & Youth Servs., 172 F.3d 786, 793 (11th Cir. 1999)); see also Nix v. WLCY Radio/Rahall Commc'ns, 738 F.2d 1181, 1186 (11th Cir. 1984)). Thus “[i]f the same policies were applied differently to similarly ranked employees, those employees may be compared.” Smith, 644 F.3d at 1326. The undisputed facts show that Perryman, Wehby, and Caldwell were not investigated or disciplined with regards to the falsified instrument log. Doc. 29-1 at 3-4, ¶¶ 14-19; Doc. 34 at 4-5, ¶¶ 14-19. The undisputed facts also show that Perryman, Wehby, and Caldwell were not on FMLA leave during the time that Plaintiff was on FMLA leave. Doc. 29-1 at 3, ¶ 13; Doc. 34 at 4, ¶ 13. However, the parties dispute whether the above-named individuals, as employees of Defendant, had a responsibility to record the use of dental instruments on a daily basis, or whether that responsibility fell to Plaintiff alone, as a Dental Assistant. Compare Doc. 29-1 at 4, ¶ 1 with Doc. 34 at 6, ¶ 1. Because the court must construe the facts in the light most favorable to Plaintiff, the court will consider that Defendant's Dentistry Department, as a whole, had the responsibility of maintaining the instrument logs. *13 Even so, the suggested comparators are not similarly situated to Plaintiff because of one simple reason: none of the comparators' initials were found on the bottom of the falsified logs. 18 Therefore, based on that key distinction, their conduct was not “nearly identical,” as required to be a comparator. Defendant could have assumed that Plaintiff was guilty of falsifying the documents and that the suggested comparators were not. That could have led to Defendant treating Plaintiff differently than her suggested comparators. Indeed, Defendant's belief that Plaintiff was responsible for the falsified logs due to Plaintiff's initials appearing on the logs is reflected in Defendant's Recommendation for Termination. There, Defendant states: “Upon review, it was noted that you had prefilled out the daily tool count and signed it for August 1-27. It was also noted that you had signed the log for the month of June 2014 and July 2014. You were on FMLA from May 21, 2014 until August 4, 2014.” Rec. for Term. (Doc. 34-12) at 2 (emphasis added). That conduct could not have been imputed to the suggested comparators because their signatures (or initials) do not appear anywhere on the logs in question. Further, Duffell, who terminated Plaintiff, testified that no one else was investigated because only Plaintiff's signature appeared on the instrument logs. Duffell Depo. (Doc. 34-8) at 60:11-61:5. Thus, the suggested comparators are not similarly situated because they did not engage in the same alleged misconduct. 19 See Maniccia, 171 F.3d at 1368 (noting that whether employees are similarly situated Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 18 of 71 Battle v. Corizon, LLC, Slip Copy (2016) 2016 WL 3583812 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 11 depends upon “whether the employees are involved in or accused of the same or similar conduct and are disciplined in different ways” and that to be similarly situated, “the quantity and quality of the comparator's misconduct [must] be nearly identical to prevent courts from second-guessing employers' reasonable decisions”). Because Plaintiff cannot point to a similarly situated employee whom Defendant treated more favorably, Plaintiff has not raised a genuine issue of material fact with regards to whether Defendant's proffered reason for Plaintiff's termination was pretextual. (3) Plaintiff did not Falsify Logs or Fail to Report Discrepancies Finally, Plaintiff alleges pretext on the basis that she, in fact, did not falsify the records, nor did she fail to inform Defendant that the logs were falsified. Doc. 34 at 20-22. As evidence that she did not falsify the records, Plaintiff points to the affidavit of Dr. Wehby, which contains an admission that he copied the logs at the direction of Cindy Johnson. Wehby Aff. (Doc. 34-13) at 1-2. Plaintiff also points to evidence that Defendant was aware of the audit from the ADOC prior to August 5, 2014. Wehby Aff. (Doc. 34-13) at 2, ¶ 9. The undisputed facts show that Defendant's personnel terminated Plaintiff for allegedly falsifying the Daily Dental Instrument Count after a recommendation for termination from Duffell. Doc. 29-1 at 4, ¶ 20; Doc. 34 at 5, ¶ 20. Accepting Plaintiff's evidence as true, Wehby and Johnson would have been the only individuals who knew that Plaintiff was not guilty of falsifying the logs. Plaintiff has failed to point to evidence that Duffell knew that someone other than Plaintiff falsified or copied the logs, and that Duffell failed to discipline that/those individual(s) as a result. See Jones v. Gerwens, 874 F.2d 1534, 1541-42 (11th Cir. 1989) (determining that the employee failed to make a showing of a genuine issue of material fact sufficient to establish disparate disciplinary treatment because the employee failed to show that the decision-makers had knowledge that previous known violations were “consciously overlooked”). Plaintiff has not pointed to evidence that Johnson's or Wehby's knowledge that Plaintiff did not falsify the logs could be imputed to Duffell. Thus, accepting as true that Plaintiff did not falsify the logs nor did she fail to report the falsified logs, Plaintiff has not shown that the decision-maker had knowledge that the reason for Plaintiff's termination was untrue at the time the decision was made. While hindsight into the matter is 20-20, Plaintiff has not shown that Defendant's proffered reason for termination is untrue and that FMLA retaliation was the real reason for her termination. As such, Plaintiff has failed to create a genuine issue of material fact that Defendant's reason for terminating Plaintiff was pretextual. *14 In short, Plaintiff has failed to “demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in [Defendant's] proffered legitimate reasons for [Plaintiff's termination] that a reasonable factfinder could find them unworthy of credence.” See Combs v. Plantation Planters, 106 F.3d 1519, 1538 (11 th Cir. 1997). Thus, Defendant's motion for summary judgment is due to be granted. VI. CONCLUSION For the above stated reasons, it is ORDERED that the Motion for Summary Judgment (Doc. 29) is GRANTED and this case is DISMISSED. A separate judgment will issue. Done this 30th day of June, 2016. All Citations Slip Copy, 2016 WL 3583812 Footnotes 1 Originally, Plaintiff's complaint was against “Corizon Health Systems, Inc.” Doc. 1 at 1. Plaintiff's First Amended Complaint (Doc. 6) named Corizon Health, Inc., and Corizon LLC, as defendants. Doc. 6 at 1. As a “Supplemental Answer to Plaintiff's First Amended Complaint,” Defendant informed the court that the correct legal entity for Plaintiff's suit was Corizon, LLC, and that Corizon Health, Inc., should be dismissed. Doc. 8 at 1. Defendant stated that Plaintiff's counsel agreed to the dismissal of Corizon Health, Inc., and agreed to proceed against Corizon, LLC. Id. 2 On December 1, 2010, amendments to Rule 56 became effective. The amendments to Rule 56 generally reorganize the provisions of the Rule and incorporate language which is “intended to improve the procedures for presenting and Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 19 of 71 Battle v. Corizon, LLC, Slip Copy (2016) 2016 WL 3583812 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 12 deciding summary judgment-motions and [is] ... not intended to change the summary-judgment standard or burdens.” Farmers Ins. Exchange v. RNK, Inc., 632 F.3d 777, 782 n.4 (1st Cir. 2011) (internal quotations omitted) (emphasis in original). Moreover, because the summary judgment standard remains the same, the amendments “will not affect continuing development of the decisional law construing and applying” the standard now articulated in Rule 56(a). Fed. R. Civ. P. 56(a) advisory committee's note to 2010 amendments. Accordingly, while the Court is bound to apply the new version of Rule 56, the undersigned will, where appropriate, continue to cite to decisional law construing and applying prior versions of the Rule. 3 Caldwell was questioned about the logs on March 9, 2016, one day after Duffell's deposition, via a conference call with Defendant's attorney, Cindy Johnson, and Duffell. 4 Testimony from Duffell supports Wehby's statement that the June 2014, July 2014, and August 2014 logs were copied from a previous month. See Duffell Depo. (Doc. 34-8) at 61:6-67:15. 5 Plaintiff's statement of contested facts erroneously states that the logs are missing through January 2014. However, Duffell's testimony indicates that the logs were missing from August 2013 through December 2014. Duffell Depo (Doc. 34-8) at 38:13-39:20; 50:15-16. 6 As an initial matter, to assert both an interference and a retaliation claim under the FMLA, an employee must show that: (1) she is an eligible employee under the FMLA, 29 U.S.C. § 2611(2); (2) the employer is subject to the requirements of the FMLA, 29 U.S.C. § 2611(4); (3) she was entitled to leave under the FMLA, see Pereda v. Brookdale Senior Living Communities, Inc., 666 F.3d 1269, 1272 (11th Cir. 2012) (“In order to receive FMLA protections, one must be ... entitled to leave, meaning an employee has experienced a triggering event.”); and (4) she gave sufficient notice to the employer of her intention to take FMLA leave, 29 U.S.C. § 2612(e). Here, at the time of Plaintiff's termination, Plaintiff had been employed by Defendant for approximately seven years. Compl. (Doc. 11) at 4. Plaintiff states that she had a serious health condition pursuant to 29 U.S.C. § 2611; that she requested FMLA leave in compliance with 29 U.S.C. § 2612; and that Defendant is an employer subject to FMLA in accordance with 29 U.S.C. § 2611. Doc. 11 at 4. 7 In Plaintiff's Opposition to Defendant's Motion for Summary Judgment, Plaintiff focuses solely on her right to reinstatement as the basis of her interference claim. Therefore, the court will address only interference based upon failure to restore and not interference based on failure to grant leave. However, for the reasons set forth above, both types of interference claims would fail as a matter of law because, after Plaintiff exhausted her twelve weeks of statutorily-protected leave, she was no longer entitled to any benefit under the FMLA. 8 The decision in Santosuosso, which is non-binding upon this court, was based upon reasoning that the employer had knowledge of the employee's intention to take longer than twelve-weeks leave, which was allowed under the employee benefit program. 462 F. Supp. 2d at 597-98. Thus, that court reasoned that because Congress encourages employers to provide more benefits than mandated by the law, the employee should not lose FMLA protection for taking more than twelve weeks when her employer gave her permission to do so. Id. at 598. 9 The decision in Barone applied the doctrine of equitable estoppel as an alternative route to protect the employee's rights under the FMLA. 42 F. Supp. 2d at 463-64. Here, Plaintiff has not pointed to any facts or evidence that Defendant represented to her that she was still protected under the FMLA after July 11, 2014. Therefore, this case is distinguishable from Barone, which is non-binding upon this court. 10 Each of the cases cited by Plaintiff are distinguishable. In Strickland and in Turner, the employees had not exhausted twelve weeks of statutorily-protected FMLA leave when they were terminated. In Martin, the employee was terminated because he did not fulfill his improvement plan, but because the employee was unable to complete the plan as a result of being on FMLA leave, the Eleventh Circuit concluded that a genuine issue of material fact remained concerning whether the employer interfered with the employee's right to reinstatement. 11 While Plaintiff took additional leave from July 12, 2014, through August 2, 2014, both parties agree that the leave was no longer statutorily protected after the culmination of twelve weeks, which occurred on July 11, 2014. Doc. 29-1 at 2, ¶ 6; Doc. 34 at 3, ¶ 6. 12 While the temporal proximity of Plaintiff's termination and her return from FMLA leave is evidence of pretext, it is insufficient, standing alone, to establish pretext. See Spann v. DynCorp Tech. Servs., LLC, No. 05-16716, 2006 WL 1667294 at *3 (11th Cir. June 16, 2006) (noting that temporal proximity ... alone is not sufficient to establish pretext); Gamba v. City of Sunrise, 157 Fed.Appx. 112, 113 (11th Cir. 2005) (determining that temporal proximity is not enough to establish pretext “[w]here the employer produces significant evidence of the employee's poor performance” or other legitimate reason for the employment decision). 13 Plaintiff suggests in her complaint that Defendant retaliated against her “because of her potential request for continued leave under the FMLA.” Doc. 11 at 5, ¶ 24. She also states that Defendant was “aware that the Plaintiff's right knee was Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 20 of 71 Battle v. Corizon, LLC, Slip Copy (2016) 2016 WL 3583812 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 13 still in bad condition and would also need a total knee replacement in the future, which would call for more FMLA leave.” Doc. 11 at 3, ¶ 16. However, in her opposition to summary judgment, Plaintiff does not point to evidence that she would be requesting additional FMLA leave, or that Defendant suspected that Plaintiff might be requesting additional FMLA leave (at least after Defendant's denial of Plaintiff's second FMLA extension request). The only other evidence presented by Plaintiff indicating a retaliatory motive from Defendant is an email stating that Plaintiff would be terminated if she did not return from FMLA leave (after her first extension) because Plaintiff's position could no longer be held open. See Doc. 34 at 5, ¶ 1; Doc. 34-9 at 2. That email was sent July 30, 3014, during Plaintiff's first extension of her FMLA leave. It appears to be in response to knowledge that Plaintiff was not returning to work on August 4, 2014, after the expiration of her first extension (although she did, in fact, return). The court can infer from the email, in the light most favorable to Plaintiff, that Plaintiff's absence was causing difficulties in the day-to-day operations of the Dentistry Department. The court will consider these facts as evidence of a retaliatory motive as it analyzes Plaintiff's arguments for pretext. 14 The court also notes that the language in Defendant's policy is should investigate, not must. 15 The court notes that evidence in the record does indicate that Defendant's review of the matter prior to Plaintiff's termination was hurried, at best. Duffell stated that her investigation into the matter was simply looking at the purportedly falsified logs. Duffell Depo. (Doc. 34-8) at 68:98-10. She did not question anyone else who was present in the dental department during the time Plaintiff was on FMLA leave about the logs. Doc. 34-8 at 60:11-61:5. While it may have been wise for Defendant to have engaged in a more complete investigation of the matter prior to terminating Plaintiff, Defendant's policy allows the decision maker discretion into whether to conduct an investigation at all. Thus, the court cannot conclude that Defendant's proffered reason for terminating Plaintiff was pretext because Defendant may have conducted an insufficient investigation when Defendant had no obligation, under its policy, to conduct an investigation at all. Indeed, Defendant's policy allows immediate termination for serious misconduct, examples of which include “[f]alsification of [a] ... Company ... record or document” and “[f]ailure to perform shift-to-shift counts.” Doc. 34-14 at 10-11. Accordingly, Defendant's policy specifically allows immediate termination of Plaintiff for the exact reasons stated by Defendant in the recommendation for termination. 16 The court notes that it appears this reference to page nineteen in the ESG is erroneous. The pages of the ESG that list offenses that are grounds for immediate termination are pages 17-18. See Doc. 34-14 at 10-11. 17 Plaintiff states that Defendant's proffered reasons for termination are: 1. Under their handbook for “falsification of an institution record/documents and failure to perform shift to shift counts.” 2. Due to a third party audit from ADOC, which made them aware; and 3. For “failing to report the fraudulent logs to [Defendant].” Doc. 34 at 16 (internal references omitted). 18 The court assumes, arguendo, that Plaintiff's suggested comparators are not disqualified as similarly situated because of their job titles/ranks alone. 19 The court notes that the suggested comparators could have engaged in the same misconduct of failing to discover and report that the logs had been falsified. However, Defendant could have reasonably assumed -albeit potentially incorrectly - that Plaintiff was the only employee who engaged in falsifying the records. Because the conduct must be nearly identical, the court cannot conclude that the suggested comparator's were similarly situated, regardless of whether they were subjected to the same work rules. End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 21 of 71 Devine v. Prudential Ins. Co. Of America, Not Reported in F.Supp.2d (2007) 2007 WL 1875530, 101 Fair Empl.Prac.Cas. (BNA) 414... © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment Distinguished by Narodetsky v. Cardone Industries, Inc., E.D.Pa., February 24, 2010 2007 WL 1875530 United States District Court, D. New Jersey. Monica DEVINE, Plaintiff, v. PRUDENTIAL INSURANCE COMPANY OF AMERICA; John Horsley, Individually and in his official capacity as a Representative for Prudential Insurance Company, ABC Entities/ Corporations (1-100); John & Jane Does (1-100), Defendants. Civil No. 03-3971 (FLW). | June 28, 2007. Attorneys and Law Firms Wendie Elovich, Little Silver, NJ, for Plaintiff. John James Peirano, Jr., McElroy, Deutsch, Mulvaney and Carpenter LLP, James Edward Patterson, Graham, Curtin & Sheridan, PA, Morristown, NJ, for Defendants. OPINION WOLFSON, United States District Judge. *1 Before the Court are motions by Defendants, Prudential Insurance Company of America (“Prudential”) and John Horsley (“Defendants”), for Summary Judgment, pursuant to Fed. R. Civ. P . 56(c), as well as Plaintiff, Monica Devine's (“Plaintiff” or “Ms. Devine”) Motion for Summary Judgment and Cross- Motion for Spoliation. In her Complaint, Plaintiff alleges that Defendants violated the New Jersey Law Against Discrimination (“LAD”), the Family Medical Leave Act (“FMLA”), and intentionally inflicted emotional distress on her when they allegedly reconfigured her office while she was on maternity leave. Complaint at ¶¶ 6-46. The Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367(a). For the reasons that follow, the Court finds that Defendants have met their burden and shown that no material issues of fact exist to defeat their Motions for Summary Judgment, and further, that Plaintiff's Motion for Summary Judgment must be denied because the facts do not support her claims. Accordingly, Plaintiff's claims against Defendants are dismissed. I. PROCEDURAL HISTORY On June 23, 2003, Ms. Devine, by way of her then attorney Gregory S. Schaer, Esq., filed a three count Complaint against Prudential, Mr. Horsely, ABC Entities/Corporation (1-100), and John & Jane Does (1-100) in the Superior Court of New Jersey, Monmouth County, Law Division, alleging that Defendants had: (1) violated the New Jersey Law Against Discrimination by discriminating against Ms. Devine “on account of her gender/pregnancy”; (2) violated the Family Medical Leave Act (“FMLA”) by “failing to restore plaintiff to the same or equivalent rights, benefits and working conditions as held by plaintiff prior to taking leave in a variety of ways as set forth above”; and (3) intentionally inflicted emotional distress on Ms. Devine. Complaint at ¶¶ 1-5; 37-46. Ms. Devine seeks the following relief: (1) “back pay, front pay and all other sums of money paid which would have been earned by plaintiff had she not been discriminated against”; (2) “an award of compensatory damages for pain and suffering and any other compensatory damages available under law”; (3) “punitive damages and any other exemplary, punitive treble damages which are allowed by statutes pleaded herein”; (4) “an award of reasonable attorneys' fees and all costs of court and interest herein”; (5) “an award of all relief as allowed under N.J.S.A. 10:5-1 et seq., 219 U.S.C. 2601, et seq., or other applicable law, including attorneys' fees and costs; (6) “any other award and equitable relief allowed by statute, or pursuant to the equitable and just power of the Court to which plaintiff is entitled”; and (7) “an award granting equitable relief in the form of a temporary restraining order and/or injunctive relief.” Id. at pp. 9-10. On August 19, 2003, the case was removed from the Superior Court of New Jersey, to the United States District Court for the District of New Jersey pursuant to 28 U.S.C. § 1441. Notice of Removal, dated August 19, 2003, at ¶¶ 6-7. *2 Sometime in 2005, Plaintiff's counsel made an informal motion to Magistrate Judge Tonianne J. Bongiovanni to amend Plaintiff's Complaint to assert a claim of spoliation. Prudential objected to Plaintiff's request on the grounds that Plaintiff's request “must be done formally,” and that Prudential had made “significant Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 22 of 71 Devine v. Prudential Ins. Co. Of America, Not Reported in F.Supp.2d (2007) 2007 WL 1875530, 101 Fair Empl.Prac.Cas. (BNA) 414... © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 effort ... to provide Plaintiff with discovery, and that no efforts were made towards the spoliation of evidence by Defendant....” Judge Bongiovanni's Order, dated December 7, 2005 (Dec. 7, 2005 Order). On December 7, 2005, Judge Bongiovanni denied Plaintiff's informal motion and ordered “that Plaintiff may seek to set forth an adverse inference or other appropriate remedy during trial for alleged spoliation of evidence by Defendant.” Id. Prudential moved for summary judgment on September 8, 2006, claiming that Ms. Devine's Complaint should be dismissed because: (1) no genuine issues of material fact exist to warrant a trial; (2) Ms. Devine's NJLAD claim fails because she “cannot show that Prudential caused the alleged discriminatory change in her office situation”; (3) “even if Prudential was somehow responsible for what transpired with respect to plaintiff's office situation, plaintiff cannot show that she actually suffered an adverse employment action”; (4) Ms. Devine “cannot show that Mr. Chapman was similarly situated to her”; (5) Ms. Devine's “claim of constructive discharge must be rejected, because, as a threshold matter, she cannot establish that Prudential subjected her to unlawful discrimination”; (6) Ms. Devine's FMLA claim “must be dismissed because she failed to return to work at the end of 12-week FMLA leave and, thus, as a matter of law, the statutory protections expired”; (7) even if FMLA's protections “did not expire, plaintiff's office space was, at best, a ‘de minimis' aspect of her job and, therefore, the FMLA requirement that she be returned to the same conditions of employment did not extend to this aspect of her job”; (8) Ms. Devine's claim for intentional infliction of emotional distress fails “because the record does not contain the extreme and outrageous conduct necessary to establish an intentional infliction of emotional distress.” Prudential's Brief in Support of its Motion for Summary Judgment, filed September 8, 2006 (“Pru.Br.”), at pp. 2-5. Mr. Horsley joined Prudential's motion and moved for summary judgment as well. In addition to Prudential's legal arguments, Mr. Horsley argued that summary judgment was appropriate because: (1) he “is not subject to individual liability under the FMLA”; and (2) he “is not subject to individual liability under the NJLAD.” Horlsey's Brief in Support of his Motion for Summary Judgment, filed September 8, 2006 (“Horsley Br.”), at pp. 2-3. On September 8, 2006, Plaintiff also moved for summary judgment. In that motion, Plaintiff, inter alia, seeks a dismissal or default judgment based on Prudential's alleged “spoliation of evidence for willful conduct.” See Plaintiff's Brief in Support of her Motion for Summary Judgment and for Spoliation of Evidence, dated September 8, 2006 (“Pl.Br.”). Then, on September 21, 2006, Plaintiff filed a Cross-Motion for Spoliation of Evidence. In this Motion, Plaintiff again sets forth the facts she alleges support her allegations in the Complaint and again asks the Court to grant default judgment against the Defendant for allegedly failing to produce documents and email communications that allegedly reveal Plaintiff's concerns that her private office space was being taken over by David Chapman. Plaintiff's Cross-Motion for Spoliation, dated September 21, 2006 (“Pl.Cross-Motion”), at 4-5. II. FACTS A. Office History and Relationship with John Horsley *3 In 1996, Plaintiff, Monica Devine began her employment with Defendant, Prudential Insurance Company of America (“Prudential”), as a Sales Representative/Insurance Agent at Prudential's Matawan District Office, located at 750 Route 34 in Matawan, New Jersey (“Matawan Office”). 1 Complaint at ¶ 6. According to Ms. Devine, she “was the last agent hired with Prudential to receive a book of business,” and she “replaced an eighteen year veteran.” Devine Dep. at 105:5-8. Ms. Devine maintained the veteran's book of business “and developed new clients and leads and sales from there.” Id. at 105:5-9. While working in the Matawan Office, Ms. Devine did not have her own, personal office. Id. at 112:12-17. Rather, Ms. Devine worked out of a cubicle that was not enclosed. Id. at 112:12-17. Sometime in 1998 or 1999, the Matawan Office closed, and as a result, Ms. Devine relocated to another Prudential District Office located in Oakhurst, New Jersey (“Oakhurst Office”). Complaint at ¶ 7. However, prior to the Matawan Office closing and sometime during 1998/1999, Ms. Devine testified that she began to use Defendant John Horsley's private office at 740 Route 34 in Matawan, New Jersey (“740 Office” or “Horsley's Office”) 2 to see her clients and only used her cubicle at the Matawan Office “to report” on “reporting days.” Devine Dep. at 127:25-128:17. Ms. Devine's client files and file Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 23 of 71 Devine v. Prudential Ins. Co. Of America, Not Reported in F.Supp.2d (2007) 2007 WL 1875530, 101 Fair Empl.Prac.Cas. (BNA) 414... © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 cabinets were located at the Matawan Office, and she also maintained a telephone there. Id. 136:25-138:6. At her deposition, Ms. Devine testified about the process an agent goes through to obtain her own, private office space: Prudential has very strict compliance rules on being able to go out and get your own office space or to operate from someplace other than Prudentially approved offices, I was looking to do something like that, but at that the [sic] time couldn't afford it, I would work with John Horsely [sic] on cases and we would go out and see clients and I would do the follow-up at Jonathan Horsley's office space down there, Steve Kaczala was down there, I had worked a few cases with Steve Kaczala, as well, but when I was down there, it wasn't my office space, meaning it didn't say 740 on my business cards or my laptop. Id. at 132:20-133:8. During this time, Ms. Devine's use of Mr. Horsley's Office was “unofficial”, but when the “Matawan [office] closed and Oakhurst opened, [Ms. Devine] moved [her] files to 740, not to Oakhurst, with the approval of Rich Brandeis,” who was her “district manager” at that time. Id. at 132:18-133:19. However, because Ms. Devine was not officially working out of Mr. Horsley's Office, Ms. Devine's address on her business cards and laptop did not reflect that she was working out of the 740 Office. Id. at 133:6-8. According to Ms. Devine, she did not obtain official permission to work out of Mr. Horsley's office until August 2000, and in November 2000, “Pru corporate” gave Ms. Devine “official permission” to work out of Mr. Horsley's office and sent her a new agent office package. Id. at 133:20-134:25. The package contained a VHS tape and included all the procedures the agent had to follow at the private office. Id. at 134:10-14. Thus, although she “had been operating out of” Mr. Horsley's Office “for quite some time before,” Ms. Devine's move to Mr. Horsley's Office did not become “official” until January 1, 2001. Id. at 134:10-19. *4 When Ms. Devine began using Mr. Horsley's Office, the office consisted of “a reception area with two desks and the bathroom and there was three private offices with doors.” Id. at 139:17-20. One of the private offices “was maintained as the lunchroom,” another office was occupied by Steve Kaczala, and John Horsley occupied the other office. Id.. at 139:21-23. During this time, Ms. Devine did not occupy an office. Rather, she “worked at the front desk ... while Steve and Jonathan were both there....” Id. at 139:24-140:1. While working at the front desk in the reception area, Ms. Devine would use the offices of Kaczala and Horsley or the lunchroom to meet with her clients. Id. at 140:2-5; 196:25-197:5. In 2000, when “Steve retired, Jonathan took his [Kaczala's] office because it was bigger,” and Ms. Devine “went into the lunch room because it was the smallest of the three, and then Dennis Hahn came in and took the third office.” Id. at 140:2-5; 196:25-197:5; 200:6-9. Although Ms. Devine now moved her desk to the lunch room, the space was still used as a lunch room in that the refrigerator, eating table, microwave, water machine, and coffee pot remained in the room. Id. at 200:19-203:18. While working out of the 740 Office, Ms. Devine would spend approximately twenty to thirty percent of her time in the office and the rest of her time out of the office at client appointments. Id . at 109:6-19. In fact, Ms. Devine's time in the office “streamline[d] to twenty [percent] when we [Prudential employees] received the laptops and we were able to do all that stuff at the clients.” Id. at 109:19-21. During this time, Ms. Devine did not pay Mr. Horsley rent. Instead, Ms. Devine was “bartering” with Mr. Horsley for her space at the 740 Office. Id. at 160:2-5. In return for Mr. Horsley providing Plaintiff the space she used in his office, Ms. Devine provided Mr. Horsley with secretarial/marketing assistance. Id. at 247:25-250:4; 290:11-292:4. Specifically, Ms. Devine testified: A Yes. John needed a marketing assistant and, at the time I first started with him, couldn't afford to hire one, and I wanted my own office space. And it worked out well. I handled servicing his clients in his absence, preparing for appointments, making the appointments, doing lead lists. It eventually went into where I was handling his personal finances as well. Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 24 of 71 Devine v. Prudential Ins. Co. Of America, Not Reported in F.Supp.2d (2007) 2007 WL 1875530, 101 Fair Empl.Prac.Cas. (BNA) 414... © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 Q. And you're saying that that was in lieu of paying rent? A. At the time, yes. I was not officially in the office at that time either. Q. So when did this barter system initially commence? A. 1999, I believe. Q. Okay. And did there come a time that you ceased to proceed under the barter system? A. Well, it went back and forth depending. Once I became official, in Prudential's eyes, to get the approval in there-which I think was March of 2001 and Dennis was already there-it came a point where the rental reimbursement program came in. It freed me-I was actually banking time with John and paid rent while rental reimbursement was taking care of it with me. *5 Q. But prior to this rental reimbursement program, in your view you were under some sort of a barter system? A. Yes, and in his view as well. Q. Let's not speak to what his view was. A. Well, he speaks to it in his deposition. Q. Now in terms of this barter system, was it ever reduced to writing? A. No. We were great friends. 3 Id. at 290:14-291:23. It is undisputed that Mr. Horsley was not Plaintiff's superior or supervisor during any time that Ms. Devine was employed with Prudential, and further, Mr. Horsley did not have the responsibility to evaluate Ms. Devine's work. Id. at 119:20-120:24. In January 2001, Ms. Devine entered into a written lease with Mr. Horsley for office space at the 740 Office. Id. at 159:17-160:2. Pursuant to the lease, Ms. Devine's rent was $350.00 per month. Id. at 171:9-16. Ms. Devine conceded that the only reason she entered into a written lease with Mr. Horsley was so that she could be reimbursed by Prudential under its “rental reimbursement program .” Id. at 159:17-160:2; 148:19-23. Prudential initiated its rental reimbursement program sometime in the beginning of 2001 after the Oakhurst Office closed. 4 Id. at 151:9-11. The Oakhurst Office officially closed on March 14, 2001; however, “everybody was out of there by then.” Id. at 166:20-167:2. The program was designed to compensate employees who were displaced as a result of the Oakhurst Office closing. In order to be reimbursed under this program, Prudential required an employee to have a written lease. Id. at 148:19-150:1. Further, the “lease for that program had to be something that was started new”- meaning, “if you were already in a private office you were not eligible for the rental reimbursement, it had to be because of the displacement” from the Oakhurst Office closing. Id. at 151:13-17. An employee seeking reimbursement under this program “had one year from the time that the office of Oakhurst closed, and ... you [did] not receive reimbursement for an entire year, you received reimbursement for a dollar amount.” Id. at 169:22-170:1. Ms. Devine's cap on the rental reimbursement program was $2500.00. Id. at 170:7-13. At her deposition, Ms. Devine testified about the 2001 written lease: In my eye it was an informal agreement, it was just for the reimbursement we had ... In my mind's eye, it was an informal agreement on why we had the leasing as opposed to a-I don't know if that makes sense ... It was like a-we were friends, John and I were friends, so it wasn't like I was signing a lease with somebody I had never met before or it was structured, it was like okay, it's this, we'll change it to this, it's not a big deal, you didn't have to go through the formality of doing a whole new lease is the point I'm trying to make very inadequately. Id. at 171:20-172:15. Between January 2001 and August 2001, Ms. Devine paid Mr. Horsley $2,100.00 in rent for space at the 740 Office. Id. at 322:7-323:6. 5 Although she only paid Mr. Horsley $2,100.00 in rent, Ms. Devine received her full $2,500.00 rental reimbursement from Prudential pursuant to its rent reimbursement program. Id. at 323:12-324:16. Contrary to Ms. Devine's testimony, Mr. Horsley testified that the $2,100.00 he received from Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 25 of 71 Devine v. Prudential Ins. Co. Of America, Not Reported in F.Supp.2d (2007) 2007 WL 1875530, 101 Fair Empl.Prac.Cas. (BNA) 414... © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 Ms. Devine was not for rent, but he was unable to recall why Ms. Devine paid him $2,100.00-although he testified that Ms. Devine's payment could have been reimbursement for tuition for a class they took together. Horsley Dep. at 26:10-27:1; 62:4-63:25. *6 After August 2001, Ms. Devine did not pay any monies to Mr. Horsley or anyone else for rent of her space at the 740 Office. Rather, Ms. Devine testified that Mr. Horsley promised to “preserve” her office space while she was on disability leave because she had “banked” her time based upon the work she had done for him. Devine Dep. at 687:25-689:5. Further, according to Ms. Devine, Mr. Horsley promised to not let anyone have access to her office and also promised to maintain her files and her client's files. Id. at 688:4-7. Ms. Devine testified that she and Mr. Horsley entered into this agreement because “[w]e all knew I was going to get pregnant and I was going to be out.” Id. at 688:22-23. According to Ms. Devine, she and Mr. Horsley entered into another written lease to cover the period from January 2002 to December 2002. Id. at 161:21-25; 172:16-25. Ms. Devine claims that this lease was executed sometime during the last week of October 2001 prior to her going out on disability leave. Id. at 161:21-162:6. Pursuant to this lease, Ms. Devine claims that her rent was decreased to $300.00 per month instead of $350.00 per month. Id. at 173:2-11. Ms. Devine did not have to submit this lease to Prudential “because the rental reimbursement program was over.” Id. at 173:12-16. Ms. Devine never discussed this lease with her district manager, Michael “Mike” Marciano 6 nor did she personally submit the lease to him. Id. at 175:2-11. However, Ms. Devine testified that Mr. Horsley informed her that he had brought the lease to Michael Marciano at the same time that Ms. Devine's liability insurance was renewed. Id. at 175:12-176:7. Ms. Devine claims that she kept a copy of this lease in her filing cabinet and that Mr. Horsley kept the original copy of the lease. According to Ms. Devine, she was never able to retrieve her copy of the lease because when she returned from disability leave her filing cabinet “was in the basement of the main Webber Realty building and [she] never had access to it before leaving.” Devine Dep. at 159:17-160:2; 176:14-24; 177:20-178:2. Other than Mr. Horsley, Ms. Devine did not personally show this lease to anyone else. Id. at 178:3-5. On October 18, 2001, Ms. Devine sent an email to Mike Marciano regarding the servicing of her clients during her leave: I have gone to great lengths to insure that my clients know they can be serviced by John [Horsley] in my absence and I would be very disappointed to find anyone else writing business off my debit in my absence ... My office machine will have a message indicating that John will be servicing my clients in any way needed and if the phone company gets it right, my line will then forward directly to John's office. Id. at 312:3-314:20 (reading Defendant's Exhibit D-10, a three-page copy of e-mails, Bates stamped D0643-45). At her deposition, Ms. Devine claimed that the above email implied that no one else would use her office while she was out in leave. Id. at 313:4-17. When asked where it is implied in the email, Ms. Devine testified: *7 I just think the verbiage of the entire thing says how I have my entire office set up in my absence, and if you don't get the gist of how anal retentive I am be reading this email, you don't get a gist of it saying that John will be using my office. Id. at 313:8-17. However, after reading the email, Ms. Devine conceded that no where in this specific email did it state that no one would be using Ms. Devine's office while she was out on leave. Id. at 314:21-24. On October 25, 2001, the day before Ms. Devine left for her disability leave, Ms. Devine sent an email reminding Mike Marciano of her leave and copied Charlie Gerardi and John Horsley on the email. Ms. Devine also reminded Mr. Marciano that John Horsley would “be handling [her] clients service and insurance needs” while she was out on leave. Ms. Devine wrote: Just following up.... You wanted me to remind you about sending a[sic] agency note detailing that John Horsley will be handling my clients service and insurance needs. Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 26 of 71 Devine v. Prudential Ins. Co. Of America, Not Reported in F.Supp.2d (2007) 2007 WL 1875530, 101 Fair Empl.Prac.Cas. (BNA) 414... © 2016 Thomson Reuters. No claim to original U.S. Government Works. 6 Tomorrow is my last day: 0(and I know that you will miss the joy I bring to this company on a daily basis. If things go well ... maybe I can come back prior to maternity leave ... if not, I'll see you in the spring. Thanx..Monica PS..Please copy me on the note. Pl. Reply Decl. at Ex. S at D0764. Shortly after Ms. Devine's request, on October 25, 2001, Mr. Marciano sent the following email to Ms. Devine, with copies to Charlie Gerardi and Julie Fay, regarding Ms. Devine's disability leave and Mr. Horsley handling Ms. Devine's clients: Monica, Charlie Gerardi has informed his staff that you will be out and that your service and sales will be handled by John [Horsley]. * * * Julie, please let everyone know that if a call for Monica gets to the agent of the day by mistake, that client/ prospect should be referred to John H. Thanks. Id. at Ex. S at D0764. In addition to having Mr. Horsley service her clients while she was out on leave, Ms. Devine also gave Mr. Horsley the commissions on an annuity she had written for her client, Ms. Rooke. Devine Dep. at 558:21-559:9. She testified that she gave Mr. Horsley the commissions because when she learned she was going out on disability she knew that she was “no longer ... obligated to meet Prudential's year-end requirement number,” and Mr. Horsley, “of course, still was and was short, so I wrote the annuity and gave John the commissions. It was something [Ms. Devine and Mr. Horsley] did quite often.” Id. at 559:3-8. 7 Ms. Devine testified about her conversation with Mr. Horsley concerning this annuity: Q. Tell me about your discussion. A. John, you're going to make year-end's numbers? I plan to. You want the commissions from the Rooke annuity? It would help. And pretty much along those lines. Q. It's important for the case that I get everything you can specifically remember being said. Is that it- *8 A. It was- Q. -or is there more? A. Um, let me just think. Q. Okay. Take your time. A. It was along-the-the gist of it was that John would benefit from them for year-end numbers, which they did. It put him at his numbers, and that I didn't need them and that I needed to put him as the top agent on it so that he'd be able to access it should she call in. Otherwise, he would have to access it through my information. It made it easier for him to be on it. Q. On the application? A. Yes. Q. Was the application sent to the home office before your visit up to Ms. Rooke? A. I think so. Q. Okay. A. I explained to her that when she got the actual annuity, it was going to say John Horsley, not Monica Devine, and I just wanted her to be aware of that. Q. If the gist of it is all you can recall, that's fine, but if you can recall certain statements or discussions between you and Mr. Horsley about this topic, I'd like to hear them. If you've told me everything you remember, that's fine. I'll move on. A. Just that he would benefit from the commissions and that he was very appreciative of it. He felt that I didn't need to do anything more when it came time to pay rent for my second lease or anything along those lines, but it wasn't discussed as, you don't have to do this because you did this. Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 27 of 71 Devine v. Prudential Ins. Co. Of America, Not Reported in F.Supp.2d (2007) 2007 WL 1875530, 101 Fair Empl.Prac.Cas. (BNA) 414... © 2016 Thomson Reuters. No claim to original U.S. Government Works. 7 Id. at 559:9-560:20. Mr. Horsley testified that consistent with this arrangement he received commissions, and in return, he reimbursed plaintiff with payments from his personal checking account totaling $3,000.00. Contrary to Mr. Horsley's testimony, Ms. Devine testified that Mr. Horsely never paid her commissions from the Rooke annuity; however, Ms. Devine acknowledged that she received $3,000.00 from Mr. Horsley in January and February 2002. Ms. Devine testified that she assumed that Mr. Horsley's payment of $3,000.00 “was reimbursing [her] for money Dave [Chapman] paid for [subleasing her] office.” Id. at 382:25-383:25; 672:3-22. October 26, 2001 was Ms. Devine's last day of work before commencing her disability leave. Id. at 185:23-25. Prior to leaving the office, Ms. Devine gave her key to the office to Mr. Hahn's second marketing assistant because Ms. Devine “was heading out” and the assistant “didn't have a key.” Id. at 728:25-729:9. The assistant never returned that key to Plaintiff. On November 16, 2001, David Chapman emailed Mr. Marciano and requested a transfer to the outside office of Mr. Horsley and Mr. Hahn. 8 Mr. Chapman wrote: Mike, After being made aware of the office accommodations here in the Laurence Harbor office; I request a transfer to an established outside office of colleagues, ‘John Horsley’ and ‘Dennis Hahn.’ I would be able to work more effectively and efficiently from this location. Thanks [S]incerely, David Chapman Pl. Reply Decl. at Ex. GG at 00654. On the same day, Mr. Marciano emailed Lisa Kent and requested “permission from Marty to allow [David Chapman] to move to existing private office occupied by FS Hahn and Rep Horsley.” Id. at Ex. HH at 000656. On November 20, 2001, Mr. Chapman notified Mr. Horsley that his request for a transfer to Mr. Horsley's office had been approved. Id. Mr. Chapman emailed Mr. Horsley: “Johnny, Green Light!” Id. On January 1, 2002, a lease between Mr. Chapman and B & R Holding Co. for Mr. Chapman's “general office use” at the 740 Office was executed. Affidavit of John J. Peirano, Esq., dated September 7, 2006 (“Peirano Aff.”), at Ex. F at D0532-34. Pursuant to the lease, Mr. Chapman's rent was $400.00 per month. Id. The lease makes no reference as to what “general office” space Mr. Chapman would use in the 740 Office. 9 Id. *9 While out on disability leave sometime in December 2001 or January 2002, Ms. Devine alleges that she passed by the 740 Office on her way to the dentist, “who was located in the same complex as her” office. 10 Complaint at ¶ 22; see also Devine Dep. at 259:1-15; 728:1-13. According to Ms. Devine, she “was shocked to see her office was being used by someone else, and that person, David Chapman “had completely ‘moved in.’ “ Id. at ¶¶ 22, 25. Ms. Devine was “[e]xtremely upset” and “confronted Mr. Horsley who assured [her] that it was just a temporary arrangement until her return to the office.” Id. at ¶ 26. In response, Ms. Devine questioned Mr. Horsley about her office, and he told her that he “was allowing another Prudential Agent, David Chapman, to temporarily use Ms. Devine's office in her absence.” Id. at ¶ 23. In addition, Mr. Horsley told Ms. Devine “that he was planning a two (2) room addition to the office space and intended on renting an office to Mr. Chapman upon its anticipated completion prior to Ms. Devine's return to work.” Id. at ¶ 24. In a December 27, 2001 email to Mr. Horsley, Ms. Devine complained: I am going to trust you against my better judgement [sic] and intuition because I really cannot afford any aggravation or stress at this point. I don't know why I am surprised at your obvious fondness for skating so close to thin ice, especially when it comes to me. Rest assured that your overconfidence in my ability to forgive once again is misplaced. I am in a very critical stage of my pregnancy right now and can not/will not put myself in the position to come and remove my belongings from my office. I made it clear weeks ago that if this is what you wanted you needed to tell me then, you chose the right decision and seemed sincere, please do not make me regret not bailing. I think you would beneflt [sic] greatly from deep thought and evaluation into the priorities, friendships and choices you make in your life. Sit back and seriously think through some of the choices and decisions Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 28 of 71 Devine v. Prudential Ins. Co. Of America, Not Reported in F.Supp.2d (2007) 2007 WL 1875530, 101 Fair Empl.Prac.Cas. (BNA) 414... © 2016 Thomson Reuters. No claim to original U.S. Government Works. 8 you have made recently. Try to truly evaluate the consequences if all does not go perfectly. Lastly, stop pissing me off. Pl. Reply Decl. at Ex. JJ at 000182. In a December 30, 2001 email from Ms. Devine to Mr. Horsley, Ms. Devine wrote: After my office visit Friday and a lot of thought this weekend I have come to conclusion that I need to come and pack my office. I hope to be there sometime before noon. Once finished I should have approx. 3-4 boxes and the filing cabinet. I can not take them off the premises as per PRU, I would like to move them or have them moved to the basement or tucked into a corner. Prior to my going out on DI we discussed in detail how my office would be handled. As you know, [o]ne of the reasons I had no problem splitting the 6K in commissions was since I would be out, I would not be earning my [r]ent by “working for/with you among other things. Its become painfully obvious that what I thought our agreement was and how you understood it differ a great deal. I was extremely upset to see new phone lines being installed and someone else's files being worked on. I asked you weeks ago to make a decision and tell me if you wanted to move things and you said no ... now that I am huge and suppose[d] to be stress free and off my feet I have to come pack, exactly what I was trying to avoid doing this far along. *10 You may think that Dave can work out front and Ron from your office but you know damn well that will not work and eventually one of them would end up in my office. This way, it's free for you to do as you choose. I would like, in addition to the 800$ balance from the split commissions, 1500$ more. This represents 300 per month for January through May 30th. The balance of commissions that you actually got to keep takes care of the 700 I owed and 300 rent for Nov. and 300 rent for Dec. We are both aware that the commission credit you received did more than help you monetarily, it allowed you to go statutory and guaranteed your bonus. I[f] you don't feel this is fair, let me know. I could use the 800 now though. Do not enter into a lease agreement for my space until you break the lease Pru has on file for me or you wait until it expires. It will only get you in trouble. My expected return date in [sic] June 1st, I guess we can cross that bridge as the date draws closer. I can't be bothered with worry of who is into what in my space anymore and this is the only way I can be sure. I know it is the right decision for me right now. Id. at Ex. JJ at 000183. 11 On December 31, 2001 at 9:27 am, Mr. Horsley responded to Ms. Devine's email. Mr Horsley wrote: Monica, I told you before, that is your office, no one will be using it. Dave is going to sit out front. And Ron will be in my office. The other day when you stopped in; the phone man had to use your phone jack to get to the front office for Dave. Dave will not have a phone jack in your office. Dave is not going to be in your office. Relax, and think happy thoughts. Talk to you soon, or maybe not until next year;) Me Id. at Ex. JJ at 000640. Less than twenty minutes later, Ms. Devine replied to Mr. Horsley's email and wrote: Bullshit Lets do a hypothetical.... You and Ron in your office ... you have a client ... you need some privacy ... lets see where will Ron go.. the toilet, the waiting area.. now that's a professional looking office there I had interesting conversation with Dave Friday, I shouldn't have been so naive. Get real [J]ohn.. and you know what, I don't want to be bothered with it anymore. I have made up my mind, I will be up to pack my things. Id. Although in the above emails Ms. Devine wrote that she would come to the 740 Office to pack her office, she never returned to the office to pack her belongings; she also testified that she had no reason to believe that she was not permitted to go to the office and pick up her documents and belongings. Devine Dep. at 339:4-19. In fact, after her visit to the 740 Office in December 2001 Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 29 of 71 Devine v. Prudential Ins. Co. Of America, Not Reported in F.Supp.2d (2007) 2007 WL 1875530, 101 Fair Empl.Prac.Cas. (BNA) 414... © 2016 Thomson Reuters. No claim to original U.S. Government Works. 9 or January 2002, Ms. Devine never entered the inside of the 740 Office again. Id. at 728:1-13. After Ms. Devine gave birth on March 16, 2002, all the dealings she “had with Prudential were out of the district office.” During this time, Ms. Devine went to the district office three times. Id. *11 Sometime in April/May 2002, Ms. Devine spoke with Mr. Marciano, her District Manager, and gave him a “heads-up” about her office situation. Id. at 364:10-17. However, Ms. Devine did not ask Mr. Marciano to handle the situation or speak with Mr. Horsley. Rather, Ms. Devine testified that there was “no reason” for Mr. Marciano to get involved at that point. Id. at 362:5-8. Specifically, Ms. Devine testified: Q. But you didn't specifically say, look, you've got to deal with this, Horsley's pissing me off? A. I had no reason to at that point because I have had conversation [sic] with John and he's assuring me everything's fine. They sent me a gigantic thing of flowers, can't wait ‘til you come back. I've got the card if you want to see it. Q. Okay. A. He had no reason to think I wasn't coming back to my office at that time, but I wanted to make sure that Dave was out and that's why I mentioned it to Mike. I wasn't calling him to be like- Q. Okay. We can agree that you didn't tell Mike- you weren't complaining to Mike, you weren't telling Mike to do anything in particular? A. Right. Id. at 362:5-22; Complaint at ¶ 27. Following the July 4th, 2002 weekend, Ms. Devine arrived at the 740 Office to begin her first day of work. Id. at 355:19-23. Because Ms. Devine had previously lent her key to Mr. Hahn's second marketing assistant, she did not have a key to enter the office. Id. at 728:14-24; 728:25-729:9. Mr. Horsley was away on a scheduled vacation 12 and the other agents were at a sales convention. Id. at 237:12-13; 238:7-9. Plaintiff testified that she was aware that Mr. Horsley would be on vacation and that everybody else would be at a convention. Id. at 237:12-13; 238:7-9. In fact, Plaintiff testified that she “was anticipating coming back [to the 740 Office] and having a quiet time realizing everybody was going to be on conference and all” on her first day back at the office. Id. at 238:7-9. As a result of Ms. Devine lending her key to the assistant and everyone being out of the office, Ms. Devine was unable to physically enter the office. She attempted to get a key from the landlord, Webber Realty, but it did not have one. Id. at 237:8-16. While locked out of the office, Ms. Devine looked through the window since “the blinds were up and all,” and noticed that Mr. Chapman was still occupying the office and “nothing was changed.” Id. at 743:20-22. Ms. Devine testified that Mr. Horsley had promised her throughout her disability leave that when she returned to work, Ms. Devine would return to her office and Mr. Chapman would work out of the office's reception area: Q. Now, I know you've testified about this phone conversation that you had with Horsley before he went away on his vacation in July, and I think you testified earlier that up to that point, he was still saying that Chapman was going to leave the office? A. Yes. *12 Q. Okay. So when exactly, if at all, does he tell you, Chapman's not leaving the office? A. He didn't really say anything. I had come back. You could see in, because the blinds were up and all, and nothing was changed. And I'm like, what the- standing out there, no key. Q. So he never specifically told you Chapman's not leaving the office? A. He told me over and over again that Dave would be out by the time I returned. He would be out at the front desk. He'd be out at the front desk. It was a different story all throughout, because he had an addition planned in the office space and Dave was going to get one of those, and it was, you know, always something, but Dave would be out of my office in time for my return, and it never happened. Q. So at no time prior to July 19th [2002], when you submitted your resignation, did he ever say, Chapman's not going to move out of the office? A. No. Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 30 of 71 Devine v. Prudential Ins. Co. Of America, Not Reported in F.Supp.2d (2007) 2007 WL 1875530, 101 Fair Empl.Prac.Cas. (BNA) 414... © 2016 Thomson Reuters. No claim to original U.S. Government Works. 10 Q. Okay. So your understanding up to that point was that Horsley was going to kick him out of the office? A. Yes. Id. at 743:11-744: 18. 13 Ms. Devine claims that to facilitate her return to work after July 4th, she attempted to find other private office space, but she could not find any. Id. 353:2354:5. However, Ms. Devine testified that although there was a desk available at the Laurence Harbor District Office, in Ms. Devine's opinion, it was an “unprofessional space” because it was not a private office space. Id. at 307:11-308:16; 353:24:-354:9. On Friday, July 19, 2002, Ms. Devine went to Mr. Marciano's office to speak with him regarding her issues with her office. According to Ms. Devine, Mr. Marciano “wanted a week because he was going to try and fix it, fix the problem.” Id. at 358:14-21. This conversation was the first time Ms. Devine “actually got to sit down” with Mr. Marciano and to inform him “how serious” she felt her issues concerning her office were. Id. at 364:15-17. However, rather than giving Mr. Marciano a week, Ms. Devine submitted her letter of resignation on Monday, July 22,2002. 14 Id. at 364:2-22. Ms. Devine's resignation letter, dated July 22, 2002 read: TO WHOM IT MAY CONCERN: EFFECTIVE JULY 26, 2002 I RESIGN [sic] MY POSITION AS A REGISTERED REPRESENTATIVE OF PRUDENTIAL. I AM SENDING THIS LETTER AS PER MY CONVERSATION WITH MIKE MARCIANO THIS MORNING IN THE LAURENCE HARBOR OFFICE. IT WAS MY UNDERSTANDING THAT I WAS TO HAVE MY EXIT INTERVIEW THIS MORNING BUT I NOW UNDERSTAND THAT A LETTER IS NEEDED TO START THE PROCESS THEREFORE MY LAST DAY WAS NOT JULY 19, 2002 BUT INSTEAD IS PUSHED TO JULY 26, 2002. I WENT OUT ON MATERNITY DISABILITY AND WHEN I RETURNED MY PRIVATE OFFICE IN A DETACHED PRUDENTIAL OFFICE WAS OCCUPIED BY ANOTHER AGENT. MY AGREEMENT WITH JOHN HORSLEY, HEAD OF THE PRIVATE OFFICE AND ALSO A PRUDENTIAL REPRESENTATIVE, WAS THAT UPON MY RETURN TO WORK I WOULD HAVE MY OFFICE AS IS [sic] WAS WHEN I LEFT. THIS CAN BE CONFIRMED WITH JOHN HORSLEY. *13 THE LAURENCE HARBOR OFFICE AND NEW BRUNSWICK OFFICE HAVE NO PRIVATE OFFICE SPACE AVAILABLE. Peirano Aff. at Ex. N. Ms. Devine and Mr. Horsley had liability insurance together with a policy period starting December 27, 2001 and ending December 27, 2002. Devine Dep. at 220:4-17. In fact, Ms. Devine was still on the liability insurance for the policy period, starting December 27, 2002 and ending December 27, 2003, even though she had not been employed with Prudential since July 2002. Id. at 223:9-25. Ms. Devine testified that she did not pay for the 2002-2003 coverage. Id. at 226:9-15. On August 20, 2002, the Director of the Division of Unemployment Insurance notified Ms. Devine that she was entitled to unemployment benefits. The notice read: YOU ARE HEREBY NOTIFIED THAT BASED UPON THE FACTS OBTAINED AND IN ACCORDANCE WITH THE NEW JERSEY UNEMPLOYMENT COMPENSATION LAW, THE DEPUTY (NAMED BELOW) [W. Keane] HAS DETERMINED THAT: YOU ARE ELIGIBLE FOR BENEFITS FROM 07/16/02. YOU LEFT YOUR JOB VOLUNTARILY BECAUSE OF THE WORKING CONDITIONS. EVIDENCE INDICATES THAT THE CONDITIONS HAD A SUBSTANTIALLY ADVERSE EFFECT ON YOU. YOU EXHAUSTED ALL AVENUES TO RESOLVE THIS SITUATION. THEREFORE, YOUR REASON FOR LEAVING CONSTITUTES GOOD CAUSE ATTRIBUTABLE TO THE WORK. YOU ARE ELIGIBLE FOR BENEFITS. Pl. Reply Decl. at Ex. K at 000922. Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 31 of 71 Devine v. Prudential Ins. Co. Of America, Not Reported in F.Supp.2d (2007) 2007 WL 1875530, 101 Fair Empl.Prac.Cas. (BNA) 414... © 2016 Thomson Reuters. No claim to original U.S. Government Works. 11 B. Treatment of Disability Leave Ms. Devine had fertility treatments prior to conceiving twins, Id. at ¶ 63, and “in August 2001, Ms. Devine learned that she was pregnant with twins.” Complaint at ¶ 17. From the beginning of Ms. Devine's pregnancy, she was classified as “high risk.” Pl. Reply Decl. at ¶ 9. During her pregnancy, Ms. Devine continued to work at the 740 Office; however, “[d]ue to complications that developed with Ms. Devine's pregnancy, she was placed on a medical disability effective October 30, 2001, with the intention of returning to work on or about May 29, 2002, six (6) weeks following her due date of April 26, 2002.” Complaint at ¶ 17. On January 28, 2002, Pam Biggs sent Ms. Devine a letter regarding Prudential FMLA Services and enclosed a FMLA Preliminary Designation Form. Pl. Reply Decl. at Ex. DDD at 0695-702. However, according to a December 7, 2001 facsimile sheet from Ms. Biggs to Ms. Devine, Ms. Biggs sent the FMLA letter and Designation Form to Ms. Devine on November 1, 2001: Monica- Following is the paperwork I “mailed” to you at your home 11-1-01. As I was unsure of what Pauline gave you. The Health Care Provider Form is also in this paper work. Please follow instructions & send as directed on form. Feel good. Pam Id. at Ex. DDD. Ms. Devine delivered twins on March 16, 2002 by C-section, “approximately six (6) weeks earlier than anticipated.” Id. at 785:22-25; Complaint at ¶ 20. Mr. Horsley, Mr. Hahn, and Mr. Chapman sent Ms. Devine “a gigantic thing of flowers” consisting of Ms. Devine's favorite flowers-daises-to congratulate her on the birth of her children. Id. at 362:8-12; 785:17-25. The card on the flowers “said something like, Monica Mommy, can't wait until you come back to the office; Dennis, John, and Dave.” Id. at 362:8-12. *14 An April 15, 2002 letter from Nia Taylor, Disability Claim Manager, to Ms. Devine informed Ms. Devine of Prudential's Employee Disability Program. Pl. Reply Decl. at Ex. DDD at D0687-89. That same day, Nia Taylor sent an email to Ms. Devine's supervisor Mike Marciano (among others); Ms. Taylor lists Ms. Devine's “Disability Claim Status Information” as: Date STD Disability Began: October 26, 2001 Date STD Disability Ends: April 25, 2002 Date LTD Disability Begins: April 26, 2002 I am following up on the disability claim for Ms. Devine. Effective 4/26/2002 this associate has been approved for Long Term Disability. Ms. Devine will be paid disability benefits through and including May 10, 2002. Her claim will be terminated effective May 11, 2002. Id. at Ex. I at 001064. In an April 16, 2002 email from Maureen McCormick to Charlie Gerardi, Ms. McCormick explains Ms. Devine's disability status: Hi Charlie, This one is a little messy. Internally, we need to code the time from April 26th through May 11th as an unpaid Maternity LOA [Leave of Absence]. The reason is that technically, when someone goes onto LTD, their employment with company is terminated unless their employment is protected by an accomdation under ADA or some other kind of company-approved LOA. Since this is a maternity situation, we obviously don't want to terminate her when she commences LTD. The reason I say that we “internally” code the time as also being part of the unpaid maternity LOA is that the system can only hold one code. So systemically we can't note that she's on LTD and LOA. (I know, it doesn't make any sense.) So perhaps, if someone can note on her attendance sheet, or somewhere in her file that she was on LTD and concurrently on LOA, that would be great. (Just so we have it documented.) Also, Monica had advised Nia that she wants to use the two week Paid Parental Leave when her LTD expires. So, your team should process that paperwork. Monica Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 32 of 71 Devine v. Prudential Ins. Co. Of America, Not Reported in F.Supp.2d (2007) 2007 WL 1875530, 101 Fair Empl.Prac.Cas. (BNA) 414... © 2016 Thomson Reuters. No claim to original U.S. Government Works. 12 didn't indicate what her plans were then-whether she'd be returning or taking more unpaid maternity leave. She should be contacting the office sometime within the next month to advise. If you-or your team-have any questions, please give me a call. Thanks. Id. at Ex. K. On April 17, 2002, Ms. Devine acknowledged that she had received notification from Prudential that she was approved for Long Term Disability from April 26, 2002 to May 11, 2002. Id. at Ex. I at 001069. In an April 17, 2002 email from Ms. Devine to Prudential employees, Pamela Biggs and Nia Taylor, with a copy sent to Prudential employee Maureen McCormick, Ms. Devine wrote: Today I received the letter stating I was approved for LTD [Long Term Disability] from 4-26 thru 5-11. I am just confirming that from 5-12 thru 5-24 is when I receive the two weeks paid parental leave as per Nia. I understand Nia contacted Maureen McCormick in re to this. If for some reason this is incorrect, someone please contact me by phone at 732-780-9358. *15 Pam & Nia, Yes I am released from the OB effective 5-11 but I am under the care of another doctor for complications thta [sic] hospitalized me and caused the emergency c-section. I do expect to be released to return to work corresponding with the OB's date of release if all continues to go well. Do I need to get a release from this doctor too? My Official date of return looks to be the 28th of May. Monica Id. In a May 2, 2002 email, Ms. Devine notified Mike Marciano and Pamela Biggs that she intended to take four weeks vacation after the termination of her Long Term Disability, and therefore, Ms. Devine requested that her return date to work be June 25, 2002. Further, Ms. Devine informed Mr. Marciano and Ms. Biggs that Mr. Horsley would continue to service her clients while she was on vacation: Hello! All is well on my end so far My expected return date is May 28h. I would like to take my vacation time effective that date. From my calculations I have at least 4 weeks time. I believe I actually have 6 but I only want to take 4 weeks. Please let me know if it is possible to take the 4 weeks effective 5-28-02. This will bring my return date to 6-25-02. I have spoken with John Horsley and he is fine with continuing the servicin [sic] of my clients with any needs while I am out. I believe it will maintain continuity as opposed to establishing my return with clients and then takin [sic] vacation time. Please let me know if this is okay and what I need to do to accomplish it. [I]s better to reach me by phone, I don't log on unless I have a client concern or can't reach you guys by phone. Thanx for all of your help and support Monica Id. In a May 3, 2002 email from Pamela Biggs to Maureen McCormick, with a copy to Mike Marciano, Ms. Biggs informed Ms. McCormick of Ms. Devine's request to take “4 weeks vacation once her paid parental leave has expired.” Id. at Ex. K at 000191. Ms. Biggs wrote that she and Mike Marciano did “not see a problem” with Ms. Devine's request. Ms. Devine's request for vacation time was approved. While Ms. Devine was on leave in 2001-2002, her compensation did not change, her benefits did not change, and her job title and description did not change. Devine Dep. at 339:20-341:13; 343:10-14. During this time, Ms. Devine was able to hook her “computer up to call clients” and “check her Lotus notes” email from her home. Id. at 238:19-20. C. Sexually Discriminating or Harassing Comments Made by Co-Workers Ms. Devine's deposition began on April 14, 2005, and lasted for 3 days. At her deposition, Ms. Devine testified that the following facts support her claim that Defendants Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 33 of 71 Devine v. Prudential Ins. Co. Of America, Not Reported in F.Supp.2d (2007) 2007 WL 1875530, 101 Fair Empl.Prac.Cas. (BNA) 414... © 2016 Thomson Reuters. No claim to original U.S. Government Works. 13 discriminated against her because of her gender and pregnancy: The facts are that I'm a woman who had a private office and went out on maternity leave and had twins. I come back. A man, who was not out on maternity leave, is now in my paid-for, private office, a man that would never have to go out on maternity leave and leave a space empty. *16 I base it on the fact that a man who-I put my-he's a nice enough guy, but I put my character above Dave's [Chapman], because of his well-known background, and felt that was unfair. * * * Okay. I feel that Dave was chosen by Prudential over me because he was a veteran, longer than I was there and had better producing numbers than I had there, and felt that he was a better choice. If a choice was to be made on who was going to occupy that office in the end, then Prudential chose Dave over me because Dave's numbers were better than mine. His personnel record may not have been better, but his numbers were better than mine. Id. at 372:20-374:20. Also at her deposition, but for the first time in this litigation, Ms. Devine accused her male co-workers of making discriminatory and/or harassing comments to her. Specifically, Ms Devine claims that co-workers made the following comments: A. The ability to breast-feed my kids and they'd be healthy, because my breasts were always a bone of contention with people, not only because of their size but apparently shifts in the office would make nipples appear and not appear. So I was always the ongoing joke at Prudential because of my lack of control over that. So when the comment was made, boy, they'll be healthy twins and they'll be fed well, it came from an ongoing joke of my breasts. Q. In this discussion, did anyone specifically mention your breasts other than to say the kids will be well- fed? A. Say it? No. * * * Q. Well, did anybody make any gestures? A. The look, they'll be well-fed. They're not looking at my head when they're talking about that. They're looking at my breasts. I'm not feeding them from my ears. Q. So you were offended by the well-fed comment? A. Yes. Q. Did you tell them you were offended? A. Yes. Q. What did you say? A. Do you really think that's necessary? Q. Did you say anything else? A. That particular time, no. * * * A. Okay. My thing was-there was a lot of people that worked at Prudential, a lot of camaraderie. There was a whole-everything-certain people stood out for certain things. Mine was my breasts. Mark Weiner was his toupee. They bought him a Chi Pet, you know the Chi Pet can grow better hair. Cheryl Corbiscello's was her wide backside. So everybody had a thing that got picked on. Was it annoying? Yes. Did I hate it? Yes. Was it more so when I was pregnant? Yes. Did I say anything about it? No. I wanted just to get through my pregnancy and be done with it and, you know, be the big old team player and move on. But it was common. Everybody who had the slightest thing different from anybody else, that's what they become known for. Id. at 633:20-634:8; 634:12-634-25; 639:14-640:5. With regard to comments made specifically by Mr. Horsley, Mr. Hahn, and Mr. Chapman, Ms. Devine testified: Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 34 of 71 Devine v. Prudential Ins. Co. Of America, Not Reported in F.Supp.2d (2007) 2007 WL 1875530, 101 Fair Empl.Prac.Cas. (BNA) 414... © 2016 Thomson Reuters. No claim to original U.S. Government Works. 14 Q. Now let's talk a little bit about this issue with the breasts and the nipples. When was it that this issue first arose? *17 A. The nipple part? Q. Whatever it was. A. It's two different things. Q. Then break it down for me. A. My nipples have a tendency of-or headlights, as they were called, come on and off on their own, and the comment would be made. But when I started the fertility- Q. Let's back up. Did the nipple comments occur before the fertility treatments or after? A. Before. Q. And the comment was what? A. Headlights are on, must be cold. Q. Who said that? A. Whoever noticed it first in the office. Q. Do you have a specific recollection of who said that? A. I can honestly sit here and tell you that each of them has probably said it at lease once. Q. Name names for me please. A. Dennis [Hahn], John [Horsley], and Dave [Chapman]. There was a client in one time and he had noticed it, and it was the joke. I just went to my office. Q. So all this occurred before you began fertility treatments? A. The nipples, as I was in John's office, yes, at the end of 2000- Id. at 640:17-641:25. Further, Ms. Devine claims that Mr. Horsley, Mr. Hahn, and Mr. Chapman questioned how she would be able to return to work after the birth of her children. Specifically, Ms. Devine testified: A. What was bothering me was, in my visits and coming back-you know, particularly for men, particularly John [Horsley], Dave [Chapman] and Dennis [Hahn], because I worked with them at one point in time-it was, oh, aren't you going to miss having-you have babies now. You're going to be home. Aren't you going to miss their first milestone? Breast-feeding, what, are you going to have to pump 24/7 to feed them? My children had some problems when they were born, so there were issues with that ongoing, who's going to take them to the doctor. And my comments back to Dave and Dennis in particular-because Dave had a little boy a few years before and Dennis, a little boy prior to that-why wasn't this affecting them? Nobody was asking them any questions. So in a way, it was being done like in a way like, you guys got to be kidding me. They were constantly ribbing, you know, you're going to miss the milestone, the mother's got to be there, all the first words, all the well visits. My son, particularly, was in the hospital for a long time after me and my daughter were discharged. How long it was going to be to leave them, being their mother, and you know, it was like they were questioning how productive I was going to be to this office now that I had the responsibility of twins at home. Q. Okay. A. Would I be bringing them in and sitting them in my seats in the office. I had complications from my C- section, and was it going to be difficult carrying my computer and all that crap around to appointments and moving things around. 15 I developed very bad preeclampsia during my pregnancy, which made my blood pressure very high. And I, as you can tell, am very animated, as you can tell, and why put myself at risk if I have these complications and why does this just apply to me and not to men who've had children as well. Why is it a woman's responsibility. It's annoying, but it's a standard that goes unnoticed by men. *18 Id. at 377:21-379:13. Prudential questions the validity of these allegations by noting that Ms. Devine “did not make such allegations in her Complaint, filed in June 2003” nor did she “set forth any of Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 35 of 71 Devine v. Prudential Ins. Co. Of America, Not Reported in F.Supp.2d (2007) 2007 WL 1875530, 101 Fair Empl.Prac.Cas. (BNA) 414... © 2016 Thomson Reuters. No claim to original U.S. Government Works. 15 these allegations in her Answers to Interrogatories, served in January 2004, despite a specific request for such information.” Defendant Prudential Insurance Company America's Statement of Undisputed Material Facts Pursuant to Local Civil Rule 56.1, filed September 8, 2002 (“Def.'s Undisputed Facts”), at fn 9. Instead, Ms. Devine “waited until approximately 2.5 years into discovery before she came forward with these allegations in her deposition.” Id. Lastly, Prudential finds it “telling that although Mr. Horsley was deposed before plaintiff revealed these allegations at her deposition, Mr. Horsely was not questioned by plaintiff's counsel with respect to any such alleged discriminatory comments.” Id. In response, Ms. Devine blames her previous attorney, Gregory S. Schaer, for failing to pursue these allegations. Devine Dep. at 621:6-22. However, Ms. Devine's current attorney, Wendy L. Elovich, Esq., 16 deposed Defendant John Horsley on October 11, 2005, and failed to question Mr. Horsley about these allegations at his deposition. See Horsley Dep. During her employment with Prudential, Ms. Devine was a member of a union. Devine Dep. at 97:9-98:10. 17 Ms. Devine testified that the union had aided her in the past with regard to two separate incidents. Id. at 99:6-100:23. However, Ms. Devine never complained to anyone within her union about her issues with alleged pregnancy and gender discrimination. Id. at 368:23-369:6. In fact, Ms. Devine did not even complain about any sort of discrimination to Roseann Cruise, a Prudential employee, who Ms. Devine considered to be “more like a friend.” Id. at 368:23-369:6. Significantly, it is undisputed that Ms. Devine did not complain to anyone in a supervisory capacity about these allegedly harassing comments. III. DISCUSSION A. Standard for Summary Judgement Pursuant to Fed. R. Civ. P . 56(c) Summary judgment is appropriate where the Court is satisfied that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). A fact is “material only if it might affect the outcome of the suit under the applicable rule of law. Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id. The burden of establishing that no “genuine issue” exists is on the party moving for summary judgment. Celotex, 477 U.S. at 330. Once the moving party satisfies this initial burden, the non-moving party “must set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P . 56(e). To do so, the non-moving party must “go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ “ Celotex Corp., 477 U.S. at 324. In other words, the nonmoving party must “do more than simply show that there is some metaphysical doubt as to material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); see also Ridgewood Bd. of Ed. v. Stokley, 172 F.3d 238, 252 (3d Cir.1999). A genuine issue of material fact is one that will permit a reasonable jury to return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In evaluating the evidence, a court must “view the inferences to be drawn from the underlying facts in the light most favorable to the [nonmoving] party.” Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir.2002). *19 The motion is appropriately granted when that party is entitled to judgment as a matter of law. Anchorage Assocs. v. Virgin Islands Bd. of Tax Review, 922 F.2d 168, 175 (3d Cir.V.I.1990). Even if a record contains facts that might provide support for a non-movant's position, “the burden is on the [non-movant], not the court, to cull the record and affirmatively identify genuine, material factual issues sufficient to defeat a motion for summary judgment.” Morris v. Orman, No. 87-5149, 1989 WL 17549, at *8 (E.D.Pa. Mar. 1, 1989) (citing Childers v. Joseph, 842 F.2d 689 (3d Cir.1988)); see also Atkinson v. City of Phila., No. 99-1541, 2000 WL 793193, at *5 n. 8 (E.D. Pa. June 20, 2000). B. Plaintiff's New Jersey Law Against Discrimination Claim Against Prudential 1. Prudential's Interest in the 740 Office Prudential argues that “any action with respect to the space situation at the 740 Office was not attributable to Prudential, and given that all of plaintiff's claims are based on the alleged change in her office situation, plaintiff's claims must be dismissed as to Prudential.” Pru. Br. at 11 (emphasis in original). In support of its argument, Prudential relies on the following facts: Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 36 of 71 Devine v. Prudential Ins. Co. Of America, Not Reported in F.Supp.2d (2007) 2007 WL 1875530, 101 Fair Empl.Prac.Cas. (BNA) 414... © 2016 Thomson Reuters. No claim to original U.S. Government Works. 16 (1) “there is no evidence that Prudential knew about the alleged barter arrangement prior to plaintiff's resignation”; (2) there is no “evidence that Prudential management was involved in the alleged decision by Mr. Horsley to make the alleged change in the office situation”; (3) “Prudential did not have any ownership interest in the building in which plaintiff worked”; (4) Prudential did not “have any lease agreement with B & R Holding with respect to the leasing of the 740 Office or space therein”; (4) “Prudential is not a party to any lease in which plaintiff may have been involved”; and (5) It is undisputed “that Prudential did not dictate or negotiate the terms of any of the lease agreements between any Prudential Sales agent and the owner of the 740 Office”; and (6) Prudential “could not prevent the owner from leasing space to Mr. Chapman (or any other Agent). Id. at 10-11. Plaintiff argues that “Prudential's Private Office Guidelines for Sales Professionals and the Managers Guide for regulating private offices show Prudential's rigid control of the approval, authorization and operation of any Private Offices.” Pl. Reply Decl. at ¶ 9. Further, Plaintiff contends that: [a]ll of the depositions taken show in some way shape or form that Prudential had a large amount of control over any Private Office that wanted to operate under the Prudential Employer, including having Prudential named in a mandatory million dollar liability policy, and there was strict compliance and control over everything right down to the letterhead, signage, facsimile cover sheets and information brochures used.... Id. Lastly, Plaintiff contends that the two leases she entered into with Mr. Horsley were “delivered to Mike Marciano's District Office with proof of [her] compliance to the $1,000,000 insurance....” Id. *20 Although most of the facts set forth by Prudential on the issue of the 740 Office, see pp. 37-38, supra, are undisputed, genuine issues of fact exist as to Prudential's oversight and responsibility for the space at the 740 Office. While there is no evidence that Prudential knew about the alleged barter arrangement between Plaintiff and Mr. Horsley prior to Plaintiff's resignation, Plaintiff testified that she did submit the 2001 lease she entered into with Mr. Horsley to Prudential pursuant to its rental reimbursement program. Further, Plaintiff testified that she was reimbursed $2,500.00 pursuant to the program. Second, email communications between Mr. Horsley, Mr. Chapman, Mr. Marciano, and other Prudential employees reveal that Mr. Chapman requested and needed approval from Prudential to transfer to the 740 Office, which he ultimately received in November 2001. Third, Ms. Devine testified that Prudential oversaw its employees at their private, off-site offices and had inspections of said offices to confirm that all offices were in compliance with Prudential's guidelines. Thus, granting all inferences to Plaintiff on Defendants' Motions for Summary Judgment, I find that there are issues of fact as to Prudential's responsibility for the 740 Office space. 18 However, that does not end the inquiry. Even if Prudential could ultimately be found responsible for the events relating to Plaintiff's office situation, the issue remains whether that situation constitutes an adverse employment action. 2. Adverse Employment Action/Similarly Situated Employees Under New Jersey's Law Against Discrimination (“LAD”), 19 to establish a prima facie case for discrimination, a plaintiff must show that she: (1) is a member of a protected group; (2) was performing her job; (3) suffered an adverse employment action; and (4) similarly situated persons outside her protected group were treated more favorably to give rise to an inference of discrimination. Geldreich v. American Cynanmid Co., 299 N.J.Super. 478, 489 (App.Div.1997); see also Leahey v. Singer Sewing Co., 302 N.J.Super. 68 (Law Div.1996); see Marzano v. Computer Science Corp., 91 F.3d 497 (3d Cir.1996). When evaluating a plaintiff's discrimination Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 37 of 71 Devine v. Prudential Ins. Co. Of America, Not Reported in F.Supp.2d (2007) 2007 WL 1875530, 101 Fair Empl.Prac.Cas. (BNA) 414... © 2016 Thomson Reuters. No claim to original U.S. Government Works. 17 claim, the Court engages in the following three step process: (1) whether the plaintiff establishes a prima facie discrimination case; (2) if so, the burden of production, not persuasion, shifts to the defendant to show a non-discriminatory reason for the decision; (3) if the defendant meets this requirement, the plaintffi must show by a preponderance of the evidence that the non-discriminatory reason was pretext for discrimination. McDonough v. Cooksey, No. 05-00135, 2007 WL 1456202, *3 (D.N.J .2007) 20 (citing Jones v. Sch. Dist. of Phila., 198 F.3d 403, 410 (3d Cir.1999) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Tex. Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). *21 Here, Plaintiff cannot satisfy her burden of establishing a prima facie case of discrimination under LAD. Although Plaintiff is a member of a protected group and was performing her job prior to going on medical leave, and therefore, satisfies the first two prongs of the standard, Plaintiff's claim fails because the facts, as viewed in the light most favorable to Plaintiff, do not establish Plaintiff suffered an adverse employment action and that similarly situated persons outside her protected group were treated more favorably. An “adverse employment action” is established when the plaintiff shows that her employer took a job action “ ‘serious and tangible enough to alter [her] compensation, terms, condition or privileges of employment.’ “ Id. at 4 (quoting Cardenas v. Massey, 120 F.3d 251, 263 (3d Cir.2001)). In determining whether an employment action is “adverse” in gender discrimination cases, courts must assess the action objectively and judge the action “based on a reasonable woman standard.” Schott v. State, No. A-2612-04T1, 2006 WL 1911375, at *9 (App.Div. July 13, 2006), certif. den., 188 N.J. 577 (2006). The subjective feelings of an employee “are irrelevant in making that analysis.” Id. Further, an employee's feelings that her job assignment is demeaning, does not render an employer's actions adverse “ ‘merely because they result in a bruised ego or injured pride on the part of the employee.’ “ Id. (quoting Klein v. Univ. of Med. and Dentistry of New Jersey, 377 N.J.Super. 28, 46 (App.Div.2005)). Similarly, “ ‘not everything that makes an employee unhappy is an actionable adverse action.’ “ Id. (quoting Cokus v. Bristol Myers Squibb Co., 362 N.J.Super. 366, 378 (Law Div.2002)). In fact, New Jersey Courts have found no adverse employment actions to exist when unhappy employees have been transferred to different departments and/or offices. Id. (A state judge's LAD claim was dismissed because a transfer from the Civil Division to the Criminal Division did not constitute an adverse employment action); see also Scott v. State, 143 Fed. Appx. 443, 446 (3d Cir.2005) (the transfer of two corrections officers to other facilities did not constitute an adverse employment action where these transfers did not result “in a reduction in pay or status for either” officer). Plaintiff claims that the change in her office situation was an adverse employment action. However, Plaintiff concedes that her compensation and job title did not change while she was on leave. Further, throughout her leave, Plaintiff had access to her computer and email from home. Although Plaintiff claims that her client files and personal belongings were in the basement of the 740 Office and she had no way of accessing them, Plaintiff has failed to point to any evidence to support these claims. Instead the record reflects that Plaintiff, in December 2001, made a request to Mr. Horsley that her 3-4 boxes and file cabinet be “moved to the basement or tucked into a corner.” Pl. Reply Decl. at Ex. JJ at 000183. Further, Plaintiff never actually saw for herself if in fact her things were moved to the basement. Devine Dep. at 336:19-24. Rather, Plaintiff claims that Mr. Horsley told her that her file cabinet was in the basement. Id. Even assuming that Plaintiff's files and belongings were in the basement, Plaintiff testified that she had no reason to believe that she was not permitted to go to the office and pick up her documents and belongings. Id. at 339:4-19. Plaintiff also claims that because Mr. Chapman was allegedly working in her office, her phone and fax lines were no longer connected. However, Plaintiff's own testimony contradicts this claim. Plaintiff testified that her office voicemail message explained to clients that she was out of the office and that Mr. Horsley would be servicing their needs “in any way needed,” and “if the phone company gets it right,” her phone line would be “forwarded directly to John's [Horsley's] office.” Id. at 312:3-314:20. Furthermore, despite Plaintiff's allegations, the record fully supports Defendants' claims that Defendants were looking forward to Plaintiff's return to the office and took Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 38 of 71 Devine v. Prudential Ins. Co. Of America, Not Reported in F.Supp.2d (2007) 2007 WL 1875530, 101 Fair Empl.Prac.Cas. (BNA) 414... © 2016 Thomson Reuters. No claim to original U.S. Government Works. 18 all the steps necessary to insure that Plaintiff would be returning-including keeping Plaintiff insured under the liability insurance policy, maintaining her computer and email access, servicing her clients, and most importantly, keeping her compensation and position the same as before she went on leave. *22 Even assuming that Mr. Chapman was going to remain in Plaintiff's office, and Plaintiff would be forced to work elsewhere, the transfer of Plaintiff's work space would not be considered an adverse employment action as the record reflects that Plaintiff's compensation, benefits, and job title would and did not change upon her return from leave. Further, there is no evidence that Plaintiff's career would be adversely affected if she were no longer to have her office. Prior to taking leave, Plaintiff's space at the 740 Office was the smallest of the three private offices and was used as a lunch room before Plaintiff moved her desk and belongings into that space. However, even when Plaintiff moved her desk to the lunch room, the space was still used as a lunch room in that the refrigerator, eating table, microwave, water machine, and coffee pot remained in the room. Id. at 200:19-203:18. Further, while using the converted lunch room as an office, Ms. Devine only spent approximately twenty to thirty percent of her time in the office and the rest of her time she spent out of the office at client appointments. Id. at 109:6-19. Although the alleged reconfiguration of the 740 Office may have bruised Plaintiff's ego and caused her to feel that Mr. Horsley was not grateful for all the assistance she had provided to him throughout the years, the Court simply cannot find that “a reasonable woman” in Plaintiff's employment situation would find Defendant's actions to constitute an adverse employment action under the LAD. With regard to similarly situated persons outside of her protected group, Plaintiff claims that David Chapman was treated more favorably than she because he was given Plaintiff's office. Plaintiff's claim fails here too. In the context of discrimination cases, a “similarly situated” person “must be similarly situated in all material respects.” Shumway v. United Parcel Service, Inc., 118 F.3d 60, 64 (2d Cir.1997). First, Plaintiff conceded that she and Mr. Chapman are not similarly situated. According to Plaintiff, Mr. Chapman was “a veteran” whose “producing numbers ... were better than” hers. Devine Dep. at 372:20-374:20. Second, nothing in the record can support Plaintiff's claim that Mr. Chapman would be treated more favorably than she. Rather, the record reveals that Mr. Chapman, if Mr. Chapman would have had to share an office with Plaintiff-an allegation of Plaintiff's-would be treated less favorably than Plaintiff upon her return from leave-particularly since he was paying $400.00 per month in rent. Accordingly, the Court finds that Plaintiff has failed to establish a prima facie claim for discrimination under the LAD. 3. Hostile Work Environment/Sexual Harassment In her opposition to Defendants' Motions for Summary Judgment, Plaintiff claims that “[f]rom the time Plaintiff reported her pregnancy with twins had become a high risk, complicated situation, she confronted a sexually hostile work environment with the degree of severity or pervasiveness necessary to trigger a statutory violation.” Plaintiff's Opposition Brief, dated October 5, 2006 (“Pl.Opp.Br.”), at 5. In support of her allegations, Plaintiff cites to her deposition testimony where she testified that Mr. Horsley, Mr. Hahn, and Mr. Chapman made discriminatory comments regarding her pregnancy and breasts. *23 Plaintiff failed to allege these allegations in her Complaint. In fact, her Complaint is devoid of any references to a hostile work environment or sexual harassment. Rather, Plaintiff waited over 2½ years, until the second day of her deposition to make these allegations. Equally troubling, Plaintiff never formally moved to amend her Complaint to add these claims-although she did informally move to amend her Complaint to add a claim for spoliation in December 2005. Plaintiff contends that she made informal requests to Judge Bongiovanni regarding amending her Complaint to add this claim; however, Plaintiff concedes that her requests were made over 2½ years from the date the Complaint was filed. Although the Court need not address these claims because Plaintiff failed to plead them, the Court finds that if the claims were plead they would not survive summary judgment. Further, the Court finds that even if Plaintiff's motion were construed as a motion to amend to assert such claims, it would be denied pursuant to Fed.R.Civ.P. 15(c). In order “to state a claim for hostile work environment due to sexual harassment” under the LAD, a plaintiff “ ‘must allege conduct that occurred because of her sex that a reasonable woman would consider sufficiently severe or pervasive to alter the conditions of employment and create an intimidating, hostile, or offensive working environment.’ “ McDonough, 2007 Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 39 of 71 Devine v. Prudential Ins. Co. Of America, Not Reported in F.Supp.2d (2007) 2007 WL 1875530, 101 Fair Empl.Prac.Cas. (BNA) 414... © 2016 Thomson Reuters. No claim to original U.S. Government Works. 19 WL 1456202 at *8 (quoting Lehman, 132 N.J. at 603). LAD “is not a guideline for workplace civility,” and therefore, “offensive comments or jokes are not enough to state a claim for discrimination.” Id. (citing Herman v. Coastal Corp., 348 N.J.Super. 1, 20-23). Similarly, “[a] supervisor that behaves in a cold, uncivil, inhospitable, or even boorish way dos [sic] not engage in harassment so severe and pervasive.” Id. at 9 (citing Shepherd v. Hunterdon Dev. Ctr., 174 N.J. 1, 25-26 (2002)). An employer is only liable for a hostile work environment “ ‘if a plaintiff proves that management-level employees had actual or constructive knowledge about the existence of a sexually hostile environment and failed to take prompt and adequate remedial action.’ “ Eiman v. Haworth, Inc., No. 91-1669, 1993 WL 86461, *7, fn 10 (D.N.J. March 12, 1993) (quoting Andrews v. City of Philadelphia, 895 F.2d 1469, 1486 (3d Cir.1990)). Employees are not guaranteed a “perfect workplace, free of annoyances and colleagues she finds disagreeable.” Lynch v. New Deal Delivery Service, 974 F.Supp. 441, 452 (D.N.J.1997). Rather, “what is illegal is a ‘hostile work environment’ not an ‘annoying work environment.’ “ Id. In Lynch, the plaintiff, the employer's chief financial officer, alleged a hostile work environment claim under the LAD. Id. at 445-46. In support of her claim, she cited to the following facts: • a stripper came to the office for a surprise performance to celebrate plaintiff's birthday. The stripper was “instigated and arranged for” by the plaintiff's female co-workers, but paid for by the plaintiff's male colleague; *24 • comments made by a male colleague about the plaintiff's body and sex life; • phone calls and numerous dinner invitations from the same, married male colleague; • the plaintiff was asked by her male colleague to fire “a female receptionist because the receptionist was ‘too pretty’ “; • male colleagues making light of the sexual harassment complaints in the office; and • “Plaintiff having to handle the fallout from the harassing conduct” of another male colleague. Id. at 446-48; 451-52. The Lynch court found that the plaintiff had to establish a LAD claim. Id. at 452. The court found that “[s]exual harassment is more than an expression of taste,” and employees are “not entitled to a perfect workplace, free of annoyances and colleagues [they find] disagreeable.” Id. Further, the court found that the incidents did “not rise to the level required to render a work environment hostile and bring it within the purview of the NJLAD,” as “no factfinder could conclude that a reasonable woman in Lynch's position would feel that she was subjected to, and affected by a work environment ... that was so hostile as to alter the conditions of her employment.” Id. Similarly, in the instant case, Plaintiff's allegations that her co-workers 21 made comments about her pregnancy and breasts do not rise to the level of “severe” and “pervasive.” First, Plaintiff's own testimony reveals that there was mutual “ribbing” taking place in the office and that although she found the comments made about her pregnancy and breasts “to be annoying,” she did not indicate that they had any tangible impact on her. Devine Dep. 381:13-20; 639:14-640:5. Second, Plaintiff failed to complain to anyone during her tenure at Prudential about these comments. Although Plaintiff attributes her silence to fear that Mr. Horsley would not continue to service her clients while she was on leave, Pl. Opp. Br., at 6, Plaintiff did not find these comments so offensive or pervasive that they dissuaded her from returning to work nor did she find it necessary to complain and seek assistance from the company upon her decision to return to work. Devine Dep. at 368:23-369:6; 381:13-20; 639:14-640:5. Indeed, Plaintiff failed to mention the alleged sexual harassment in her resignation letter. Third, Plaintiff waited over 2½ years after filing her Complaint to even make these allegations. 22 Moreover, Plaintiff cannot establish that Prudential was liable for a hostile work environment because Plaintiff concedes that the alleged discriminatory comments were made only by her co- workers and Prudential did not have active or constructive knowledge of the comments because she never complained of them to management-level employees. Therefore, the Court finds, as a matter of law, that these comments in the context of this case, were not so severe or persuasive as to alter the conditions of Plaintiff's employment or to create a hostile work environment. Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 40 of 71 Devine v. Prudential Ins. Co. Of America, Not Reported in F.Supp.2d (2007) 2007 WL 1875530, 101 Fair Empl.Prac.Cas. (BNA) 414... © 2016 Thomson Reuters. No claim to original U.S. Government Works. 20 4. Constructive Discharge *25 A claim for “[c]onstructive discharge requires more facts and worse conduct than a discrimination complaint in order to state a claim under the LAD.” McDonough, 2007 WL 1456202 at *10 (citing Shepherd, 174 N.J. at 28). “It is not enough that the defendant's conduct is severe or pervasive; it must be ‘so intolerable that a reasonable person would be forced to resign rather than continue to endure it.’ Intolerable conduct includes conduct that is ‘outrageous, coercive and unconscionable.’ “ Id. Therefore, even though a plaintiff “may meet the standard for gender discrimination, it does not rise to the level of constructive discharge” unless the conduct was “outrageous, coercive and unconscionable.” Id. Thus, even if Plaintiff could survive summary judgment on her gender discrimination claims, I find that she cannot satisfy the standard for constructive discharge. Further, in order to “state a claim for constructive discharge, a plaintiff cannot first quit her job.” Id. Rather, a plaintiff “ ‘has an obligation to do what is necessary and reasonable in order to remain employed rather than simply quit.’ “ Id. (quoting Woods-Pirozzi, 290 N.J.Super. at 276). Therefore, if the trial court finds that an employer violated the LAD, the trial court “should ... consider the nature of the sexual harassment, the closeness of the working relationship between the harasser and the victim, whether the employee has resorted to internal grievance procedures, the responsiveness of the employer to the employee's complaints, and all other relevant circumstances.” Woods-Pirozzi, 290 N.J.Super. at 276 (citing T.L. v. Toys ‘R’ Us, Inc., 255 N.J.Super. 616, 663 (App.Div.)), certif. den., 130 N.J. 19, (1992), aff'd as modified sub nom., Lehman, 132 N.J. 587. In McDonough, the plaintiff alleged that although “she was ‘most qualified’ for the job,” she had not been selected for a K-9 officer position because of her gender and because she had filed a previous gender- discrimination suit against the defendants. McDonough, 2007 WL 1456202 at *1. The plaintiff claimed that “she was rejected for ‘past jobs and opportunities' in favor of ‘junior men,’ was not told of intra-department opportunities, experienced continuous discrimination within the department, and ‘had to get out’ of the department when she was not selected for the K9 position.' “ Id. at 2. Further, the plaintiff claimed that a co-worker had commented and mocked the plaintiff regarding her previous suit, and a sergeant “physically intimidated her by bumping her, and giving her less desirable assignments.” Id. Although the court found that the defendants' conduct “may meet the standard for gender discrimination, it [did] not rise to the level of constructive discharge” because “[n]othing Plaintiff endured could be considered outrageous.” Id. at 10. The United States Supreme Court found genuine issues of material fact to exist as to whether the defendants' conduct was “outrageous”, in a case where the plaintiff, a former “police communications operator for the McConnelsburg barracks,” was “subjected to a continuous barrage of sexual harassment that ceased only when she resigned from the force” by her three supervisors. Pennsylvania State Police v. Suders, 542 U.S. 129, 129 (2004) (plaintiff sued her former employer, the Pennsylvania State Police alleging “that she had been subjected to sexual harassment and constructively discharged, in violation of Title VII of the Civil Rights Act of 1964”). The allegations that constituted “outrageous” conduct included: *26 • the plaintiff's supervisor speaking about “people having sex with animals each time [the plaintiff] entered” the office; • the plaintiff's supervisor stating that “young girls should be given instruction in how to gratify men with oral sex”; • the plaintiff's supervisor sitting close to the plaintiff wearing spandex shorts with his legs spread apart; • the plaintiff's supervisor repeatedly (5 to 10 times per night) making “an obscene gesture in [the plaintiff's] presence by grabbing his genitals and shouting out a vulgar comment inviting oral sex”; and • the plaintiff's supervisors setting the plaintiff up, which led to the plaintiff being apprehended and handcuffed by the supervisors for allegedly stealing her computer-skills examinations. Id. at 135-37. Plaintiffs who leave their employment without doing what is “is necessary and reasonable in order to remain employed,” cannot state a claim for constructive discharge. Woods-Pirozzi, 290 N.J.Super. at 276-77. In Woods-Pirozzi, the plaintiff was employed at Nabisco's Fair Lawn, New Jersey facility as the head nurse/medical supervisor. Id. at 260. Throughout her employment, the Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 41 of 71 Devine v. Prudential Ins. Co. Of America, Not Reported in F.Supp.2d (2007) 2007 WL 1875530, 101 Fair Empl.Prac.Cas. (BNA) 414... © 2016 Thomson Reuters. No claim to original U.S. Government Works. 21 plaintiff was subjected to remarks about her sexuality, menstrual cycle, physical appearance, and health. Id. at 260-66. The plaintiff also witnessed a doctor examine a “female employee's vagina with no gloves on.” Id. at 261. That same doctor also “implied to a Nabisco employee that plaintiff had the AIDS virus, which she did not.” Id. at 263-64. In October 1991, the plaintiff “took a medical leave of absence” as a result of “various physical ailments....” Id. at 265. The plaintiff's long-term disability ended April 1992; however, after April 1992, although “still technically employed by Nabisco,” the plaintiff remained at home. Id. The plaintiff “resigned in December 1992, effective January 1993.” Id. At first, the plaintiff claimed that she did not resign sooner “because her attorney (in a worker's compensation action against her prior employer) advised her to just stay on disability”; however, the plaintiff “also stated that she would not have returned to Nabisco, even if her doctor and attorney had said that it was all right to because of the stress and ‘situation of the job.’ “ Id. The court affirmed the dismissal of the plaintiff's constructive discharge claim because it found that “Nabisco did not knowingly permit discriminatory conditions so intolerable that a reasonable person subject to them would resign,” Nabisco had already terminated the doctor involved and the plaintiff's supervisor was no longer assigned to the plaintiff, plaintiff's alleged “demotion” was not in retaliation, and more importantly, “[n]o rational jury could find that the conditions were so intolerable that [the plaintiff's] decision was reasonable given her obligation ... not to simply quit ...” Id. at 276-77. *27 In the instant case, Prudential argues that Plaintiff's constructive discharge claim should be dismissed because: (1) Plaintiff “cannot establish that Prudential subjected her to unlawful discrimination”; (2) “even if plaintiff could establish her discrimination claim against Prudential ... her constructive discharge claim must be dismissed because she cannot show that Prudential ‘knowingly permitted conditions of discrimination in employment so intolerable that a reasonable person subject to them would resign’ and/or that any of the alleged conduct was ‘outrageous, coercive and unconscionable’ “; and (3) “[P]laintiff failed to ‘do what is necessary and reasonable to remain employed.’ “ Pru. Br. at 22-23; 25 (internal citations omitted). Plaintiff, in her opposition brief to Prudential's and Mr. Horsley's Motions for Summary Judgment, does not address Prudential's argument that she has failed to state a claim for constructive discharge. Rather, with regard to her LAD claim, Plaintiff focuses on the prima facie elements needed to establish her LAD claim, the fact that she had two leases for a private office at the 740 Office, and the alleged discriminatory remarks made to her by her co-workers. The Court agrees with Prudential. First, as the Court discussed above, Plaintiff has failed to establish that she was subjected to unlawful discrimination under the LAD. Second, Plaintiff has failed to establish that her conditions of discrimination in employment were so intolerable that a reasonable person subjected to the same conditions would resign. Prudential made every attempt to accommodate Plaintiff during her leave. Plaintiff received the benefits of short-term disability, long-term disability, Prudential's 2- week parental leave, and 4 weeks vacation. Her salary and benefits did not change while she was out on leave, and further, her position and title remained the same. With regard to the alleged comments made by Plaintiff's co-workers regarding her medical leave, pregnancy, and breasts, the Court finds that these alleged comments were not so intolerable as to create an intimidating, hostile, or offensive working environment. Indeed, Plaintiff still wanted to return to work months after these comments were made and failed to report these comments to Human Resources or Roseann Cruise, her friend and co-worker, even though she was in email correspondence with these individuals throughout her leave. Third, Plaintiff has failed to allege conduct that was outrageous, coercive and unconscionable. In fact, the record is devoid of any outrageous conduct. Plaintiff testified that she and Mr. Horsley were “best friends,” he “was ecstatic that [she] had gotten pregnant, and she was referred to as his “office wife.” Devine Dep. at 261:10-11; see also Pl. Reply Decl. at ¶ 13. Moreover, Plaintiff conceded that Mr. Horsley, Mr. Hahn, and Mr. Chapman sent her a “gigantic” arrangement of her favorite flowers after she gave birth, and on the card attached to the flowers, they expressed that they were looking forward to her returning to the 740 Office after her leave. *28 Lastly, Plaintiff failed to attempt to rectify her office situation. Rather than take Mr. Marciano up on his offer to wait a week to see if he could fix the situation, Plaintiff resigned. Plaintiff conceded that she never actually physically entered the 740 Office to see what the working conditions would be like. In fact, Plaintiff does not know if Mr. Chapman would have even been in Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 42 of 71 Devine v. Prudential Ins. Co. Of America, Not Reported in F.Supp.2d (2007) 2007 WL 1875530, 101 Fair Empl.Prac.Cas. (BNA) 414... © 2016 Thomson Reuters. No claim to original U.S. Government Works. 22 the space she had previously occupied in the converted lunch room or whether her productivity would be affected if she had to share an office with Mr. Chapman or work out of the reception area. The Court finds that no rational juror could find that the conditions of the 740 Office were so intolerable that Plaintiff's decision to simply quit before even seeing her office or providing Prudential an opportunity to accommodate her with space was reasonable. Therefore, the Court finds that Plaintiff has failed to establish a prima facie claim for constructive discharge. B. Plaintiff's FMLA Claim Against Prudential The Family Medical Leave Acts provides that: any eligible employee who takes leave under section 102 [29 USCS § 2612] 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 USCS § 2614(a). In enacting the FMLA, Congress defines an “equivalent position” as: one that is virtually identical to the employee's former position in terms of pay, benefits and working conditions, including privileges, perquisites and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority. 29 CFR § 825.215(a). Eligible employees under the FMLA are only “entitled to a total of 12 workweeks of leave during any 12-month period....” 29 USCS § 2612(a). Once an employee has been provided with 12 workweeks of leave, the employer's obligations under the FMLA expire. See Id.; see also Cehrs v. Northeast Ohio Alzheimer's Research Center, 155 F.3d 775, 784-85 (6th Cir.1998) (when employee was unable to return to work after her 12 workweeks of FMLA leave, the employer, who terminated the employee, was not liable for a FMLA violation); see also Pert v. Value Rx, No. 96-73153, 1996 WL 1089866, *2 (E.D.Mich. Oct. 9, 1996) (“the plain meaning of the statute is clear and unambiguous to this Court-an employee gets up to 12 weeks of leave under the protection of the FMLA, nothing more and nothing less”). A March 26, 1999 letter opinion from Michelle M. Bechtoldt, Office of Enforcement Policy, Family and Medical Leave Act Team, U.S. Department of Labor, explains the FMLA's effect on an employer's more generous employment leave plan: The FMLA (§ 29 U.S.C. 2652) and the Regulations (§ 29 CFR 825.700) describe the interaction between the FMLA and employer plans and provide that nothing in FMLA diminishes an employer's obligation under a collective bargaining agreement (CBA) or employment benefit program or plan to provide greater family or medical leave rights to employees than the rights established under FMLA, nor may the rights established under FMLA be diminished by any such CBA or plan. *29 In your letter, you give an example of a more generous employment leave plan that permits an employee to take up to 52 weeks of medical leave and to return to work. If the employee fails to return to work within the 52 weeks of medical leave, the employer may terminate the employee's employment. You asked whether the employer can lawfully terminate an employee's employment if an employee has been on a medical leave of absence for 52 weeks with 12 of those weeks also designated as FMLA leave, or whether the employee, after 52 weeks of a medical leave of absence, would be entitled at that point to an additional 12 weeks of FMLA leave. In response to your question, we wish to note that the FMLA requires covered employers to provide eligible employees with up to 12 workweeks of leave in a 12- month period for any one or more of specified family or medical reasons. By its terms, FMLA requires unpaid leave, but also provides for the use of appropriate paid leave for any portion of the unpaid leave required by the Act. (See § 29 U.S.C. 2612(d) and § 29 CFR 825.207.) If the employee is unable to or does not return to work Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 43 of 71 Devine v. Prudential Ins. Co. Of America, Not Reported in F.Supp.2d (2007) 2007 WL 1875530, 101 Fair Empl.Prac.Cas. (BNA) 414... © 2016 Thomson Reuters. No claim to original U.S. Government Works. 23 at the end of 12 weeks of FMLA leave (provided the employer designated the leave as FMLA leave and so notified the employee in writing), all entitlements and rights under FMLA cease at that time. The employee is no longer entitled to any further job restoration rights under the FMLA. (See § 29 U.S.C. 2612(a) and §§ 29 CFR 825.200 and .214). An employer, however, must observe any employment benefit program or plan or CBA that provides greater family or medical leave rights to employees than the rights established by the FMLA. (See § CFR 825.700.) Thus, the employer in your example may have an obligation under its own “medical leave of absence” policies to extend leave benefits for up to 52 weeks, but not beyond 52 weeks. If the medical leave of absence also qualifies as a serious health condition for FMLA purposes, the employer may designate 12 weeks of that absence as FMLA leave so long as the employee is eligible. While the discrimination prohibition in FMLA (§ 29 U.S.C. 2615 and § 29 CFR 825.220) would prevent an employer from treating FMLA leave takers differently than it would treat similarly situated employees who were not eligible for FMLA leave, the FMLA would not require, nor prohibit, an employer to extend leave benefits beyond the 52 weeks. The above information should be viewed as general guidance based upon the limited information contained in your letter. If we may be of further assistance to you, please do not hesitate to contact me. Pru. Br. at Ex. 4 (emphasis in original). In Pert, the plaintiff, returned to work “14 weeks and 6 days after her leave commenced. Upon her return to work, the plaintiff was placed in a new position, although given the same pay and benefits of her previous job. Plaintiff voluntarily quit five months later....” Id. at 2. The defendant contended that it was entitled to summary judgment and the plaintiff's complaint should be dismissed because plaintiff failed to allege that she “returned to work within the 12 week period.” Id. at 4-5. The plaintiff claims that “the defendant employee's handbook created an extension of the FMLA under the defendant's own separate leave policy” because “by mentioning the FMLA and then mentioning their own separate leave policies, the defendant incorporate the protections of the FMLA into those separate policies.” Id. at 5. In support of her argument, the plaintiff relied on § 2652(a) of the FMLA: *30 Nothing in this Act or any amendment made by this Act shall be construed to diminish the obligation of an employer to comply with any collective bargaining agreement or any employment benefit program or plan that provides greater family or medical leave rights to employees than the rights established under this Act or any amendment made by this Act. Id. at 5-6. The Pert court found “no support for plaintiff's position nor with [her] strained interpretation of section 2652 quoted above.” Id. at 6. Further, the Court found the plaintiff's reliance on section 2652 to be “misplaced,” and moreover, the Court noted that section 2652 “does not refer to an employer extending the leave provisions of the FMLA, but,” instead, the language is: “Merely a truism which emphasizes that employers are legally bound by valid contractual agreements made with their employees regarding employment benefits. An employer's contractual obligations are distinct, however, from ... the FMLA itself.” Id. at 6-7. Accordingly, the court granted defendant's motion for summary judgment because “the plaintiff's leave extended beyond the 12 week statutory period,” and thus, “plaintiff relinquished FMLA protection.” Id. at 7-8. In the instant case, Defendants claim that Plaintiff, similar to the plaintiff in Pert, is not entitled to the protections of the FMLA because “plaintiff did not return to work until more than five months after her FMLA leave expired, and therefore, “plaintiff's claim that Prudential violated the FMLA should be dismissed.” Pru. Br. at 27-29. Specifically, Defendants claim “that on or about October 30, 2001, plaintiff went on FMLA leave from Prudential, and on or about January 30, 2002, plaintiff's 12 weeks of FMLA leave expired.” Id. at 28. In opposition to Defendants' argument, Plaintiff claims her FMLA leave began “4 weeks before her delivery and 8 weeks thereafter.” Pl. Opp. Br. at 8. Further, Plaintiff claims that she “had pre-approved medical and family leaves to remain out of work through May 29, 2002,” and after May 29, 2002, Mr. Marciano's subordinate, Julie Fry, recommended to Plaintiff to utilize her 4 weeks accrued vacation time, which Marciano approved again.” Id. at Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 44 of 71 Devine v. Prudential Ins. Co. Of America, Not Reported in F.Supp.2d (2007) 2007 WL 1875530, 101 Fair Empl.Prac.Cas. (BNA) 414... © 2016 Thomson Reuters. No claim to original U.S. Government Works. 24 10. Therefore, Plaintiff did not return to work until after the July 4th 2002 weekend-meaning, Plaintiff took over eight months of leave. Devine Dep. at 355:19-23. Plaintiff next argues that if she was no longer protected under the FMLA, Prudential “had to notify Plaintiff of her obligations or any failings on her part to correct her situation. There is absolutely no documentation sent to Plaintiff to warn her she does not have protected status, any longer. Further, there is no documentation to refute Plaintiff's ongoing ‘protected status.’ “ Id. at 10 (emphasis in original). The Court finds that pursuant to the FMLA, Plaintiff was only entitled to 12 workweeks of FMLA protection. Assuming that Plaintiff's timetable and inferences regarding her leave are correct, Plaintiff's FMLA would have started on February 16, 2002-4 weeks before the birth of her twins on March 16, 2002-and ended on May 11, 2002-8 weeks afer the birth of her twins. Therefore, by the time Plaintiff returned to the 740 Office after the July 4th weekend, she was no longer protected under the FMLA. With regard to Plaintiff's argument that Prudential had a duty to inform her that she was no longer covered under the FMLA, the Court notes that Plaintiff has presented no case law to this Court that an employer is required to give an employee notice that her entitlement under the FMLA would expire. The Pert court found that an employer “went beyond the requirements of the FMLA by voluntarily informing the plaintiff that if she took the extended leave she requested her entitlement under the FMLA would expire.” See Pert, 1996 WL 1089866 at *7-8. Moreover, the March 26, 1999 letter opinion from Michelle M. Bechtoldt, Office of Enforcement Policy, Family and Medical Leave Act Team, U.S. Department of Labor, which is attached to Prudential's Brief in Support of its Motion for Summary Judgment, does not suggest that employers have a duty to inform employees when their FMLA would expire, but employers simply must designate the FMLA leave as such and so notify the employees. See Pru. Br. at Ex. 4 (“If the employee is unable to or does not return to work at the end of 12 weeks of FMLA leave (provided the employer designated the leave as FMLA leave and so notified the employee in writing), all entitlements and rights under FMLA cease at that time”). *31 Although Plaintiff now claims that she had no notice that her FMLA leave would expire, Ms. Devine acknowledges that by her own calculations, her FMLA leave was set to expire on May 11, 2007-weeks before she returned to work. Indeed, Ms. Devine's testimony reveals that Plaintiff was acutely aware of the amount of leave she was entitled to and was in constant communication with Prudential regarding her leave and the manner in which she could take such leave. There is no dispute that Plaintiff was aware that twelve weeks of her extended leave were designated as FMLA leave. 23 Thus, granting all inferences to Plaintiff, the Court finds that Plaintiff took her twelve weeks of FMLA leave prior to returning to work, and therefore, Plaintiff was no longer protected under the FMLA when she returned to the 740 Office. Even if the FMLA strictures applied to Plaintiff upon her return to work, I do not find that Plaintiff has established a violation of the Act sufficient to survive summary judgment. The FMLA's protections should not be used as “sharpening stones on which to grind personal axes.” Noyer v. Viacom Inc., 22 F.Supp.2d 301, 308 (S.D.N.Y.1998). As such, the “requirement that an employee be restored to the same or equivalent job with the same or equivalent pay, benefits, and terms and conditions of employment does not extend to de minimis or intangible, unmeasurable aspects of the job.” 29 CFR § 825.215(f); see also Noyer, 22 F.Supp.2d at 302, 308 (former Senior Vice President of Communications failed to state a FMLA claim when she claimed that as result of her maternity leave she was kept uninformed of everything on one of her projects and felt “ill-used” by her employer). Courts have found “de minimis or intangible, unmeasurable aspects of the job” to include a change in office space upon an employee's return from leave. See Montgomery v.Maryland, 266 F.3d 334, 341-42 (4th Cir.2001) vacated on other grounds, 535 U.S. 1075 (2002) (court found that employer had not violated the FMLA when upon return from leave the employee no longer had her own office and had to share space); Hillstrom v. Best Western TLC Hotel, 265 F.Supp.2d 117, 127 (court “cannot believe that Congress, in enacting the FMLA, intended to make a federal case out of office space”). Similar to Ms. Devine, the plaintiff in Montgomery claimed that her employer violated the FMLA when it took “her own work area” away upon her return from leave and required her to now “work in a room shared with another employee” although her compensation remained the same. Montgomery, 266 F.3d at 341. The Fourth Circuit found “the sharing of work space” to “fall within the excluded de minimis category” under the FMLA. Id. Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 45 of 71 Devine v. Prudential Ins. Co. Of America, Not Reported in F.Supp.2d (2007) 2007 WL 1875530, 101 Fair Empl.Prac.Cas. (BNA) 414... © 2016 Thomson Reuters. No claim to original U.S. Government Works. 25 at 342. The Circuit opined that “the difference between having one's own work space and having to share space with one other person is not of such import as to implicate the protections of the governing federal law.” Id. Accordingly, the Circuit held that the plaintiff's employer did not violate the FMLA by requiring the plaintiff to share an office upon her return from leave. Id. *32 Other examples of “de minimis” and “intangible” aspects of an employee's job include: • an employer's decision to no longer require its Assistant Supervisor of School Accounts “to travel to the various schools of the district and work directly with principals and their staffs.” Smith v. East Baton Rouge Parish School Board, 453 F.3d 650, 65-52 (5th Cir.2006); • comments made by supervisors that employee “did not fit in,” employee not given keys to her place of employment, employee not invited to a manager's meeting, and employee's work product was discarded. Tanganelli v. Talbots, Inc., 169 Fed. Appx. 123, 125-27 (3d Cir.2006). For the reasons stated above, see also pp. 40-54, supra, no reasonable fact-finder could view any changes Plaintiff experienced after she returned to work as anything more than “intangible” or “de minimis” departures from her pre-leave job. Thus, the Court finds that, as a matter of law, Plaintiff has failed to state a violation under the FMLA, that Prudential went above and beyond to accommodate and grant Plaintiff's leave requests, and provided Plaintiff with over eight months of leave. It is appropriate to note that the Court's holding here is limited to the specific facts in the instant case. Although the Court finds June 27, 2007the out of circuit precedent, that a change in office space falls under the de minimis category, persuasive, the Court is aware that there may be cases where a change in office space falls outside of the de minimis category and a Court could find a FMLA violation based on a significant change in an employee's working conditions. But that is not the case here, and the Court simply cannot find that an alleged change in Plaintiff's office, a converted lunchroom, falls outside of the de minimis category. Equally compelling, the Court points out that the facts, as alleged by Plaintiff, do not support that Plaintiff would not have been able to occupy her office. At best, Plaintiff's argument that there would have been a change in the configuration of the 740 Office is speculative given that Plaintiff never physically entered the 740 Office after December 2001 or January 2002, and voluntarily resigned before giving Prudential an opportunity to address her office concerns. C. Plaintiff's LAD and FMLA Claims Against John Horlsey In his Motion for Summary Judgment, Defendant John Horlsey joined “in the legal arguments set forth in the brief filed by defendant Prudential in support of its motion for summary.” Horsley Br. at 1. According to Mr. Horsley, Prudential's arguments “apply equally to plaintiff's claims against Mr. Horsley and merit summary judgment in his favor.” Id. However, in addition to Prudential's arguments, Mr. Horsley raises “two additional arguments ... which also justify summary judgment in favor of Mr. Horsley.” Id . With regard to Plaintiff's LAD claim, Mr. Horsley argues that Plaintiff's LAD claim against him must be dismissed because in the context of LAD claims “[i]ndividual liability attaches only if the individual employee is the aggrieved employee's supervisor or manager.” Id. at 3. Since Mr. Horsley was never Plaintiff's supervisor or manager, Mr. Horsley argues that he “cannot be held liable under the NJLAD.” Id. With regard to Plaintiff's FMLA claim, Mr. Horsley argues that Plaintiff has “no basis for individual liability against” him because he did not “ ‘exercise control’ over [Plaintiff's] ability to take FMLA leave.” Id. at 2. Plaintiff failed to address these specific arguments in her October 5, 2006 opposition brief to Prudential and Mr. Horsley's Motions for Summary Judgment. *33 Although the Court need not reach these issues since the Court has already concluded, for the reasons stated above, that Plaintiff has failed to establish causes of action under the LAD and FMLA, the Court agrees with Mr. Horsley and finds that even if Plaintiff had viable claims against Prudential with regard to her LAD and FMLA claims, there is no basis for individual liability against Mr. Horsley under those Acts. “[N]on- supervisory employees are not liable” under New Jersey's Law Against Discrimination, and therefore, only LAD suits against employers and supervisory employees may be brought. Tyson v. Cigna Corp., 918 F.Supp. 836, 841, 842 (D.N.J.1996); see also Hurley v. Atlantic City Police Department, 174 F.3d 95, 126 (3d Cir.1999) (only Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 46 of 71 Devine v. Prudential Ins. Co. Of America, Not Reported in F.Supp.2d (2007) 2007 WL 1875530, 101 Fair Empl.Prac.Cas. (BNA) 414... © 2016 Thomson Reuters. No claim to original U.S. Government Works. 26 “[a] supervisor, under New Jersey law, has a duty to act against harassment ... When a supervisor flouts this duty, he subjects himself and his employer to liability”). “Permitting suits against individual employees ... does little to advance the purpose of the statute and imposes an unacceptably large burden on the individual employees and the courts.” Id. at 842. Similarly, in the context of the FMLA, only individuals who “exercise control” over the employee's FMLA leave can be held liable for an employer's FMLA violations. Kilvitis v. County of Luzerne, 52 F.Supp.2d 403, 412-413 (M.D.Pa.1999); see also Hewett v. Willingboro Board of Education, 421 F.Supp.2d 814, 817-818, n. 4 (D.N.J.2006) (individual employees in the public and private sectors can be liable for FMLA violations if they are acting on behalf of the employer). Here, Plaintiff testified that Mr. Horsley was never her supervisor while she was employed with Prudential. Further, Plaintiff has no evidence or proof to refute Mr. Horsley's statement that “it is undisputed that [he] was merely a co-employee of plaintiff,” he was not Plaintiff's manager, nor did he exercise “control over [Plaintiff's] FMLA leave. Accordingly, the Court finds that there is no basis for individual liability against Mr. Horsley under the LAD and FMLA. E. Plaintiff's Intentional Infliction of Emotional Distress Claims Against Prudential and John Horsley Plaintiff also asserts a claim for intentional infliction of emotional distress arising out of the events surrounding Plaintiff's resignation. New Jersey recognizes the tort of intentional infliction of emotional distress. In order to recover for such a claim, “the plaintiff must establish intentional and outrageous conduct by the defendant, proximate cause, and distress that is severe.” Griffin v. Tops Appliance City, Inc., 337 N.J.Super. 15, 22 (App.Div.2001). “Generally, it is rare to find conduct in the employment context which will rise to the level of outrageousness necessary to provide a basis for recovery on a claim of intentional infliction of emotional distress.” Harris v. Middlesex County College, 353 N.J.Super. 31, 46 (App.Div.2002) (citations and internal quotations omitted). *34 Specifically, New Jersey courts have held that to establish a claim for intentional infliction of emotional distress, a plaintiff must initially: prove that the defendant acted intentionally or recklessly. For an intentional act to result in liability, the defendant must intend both to do the act and to produce emotional distress. Liability will also attach when the defendant acts recklessly in deliberate disregard of a high degree of probability that emotional distress will follow. Second, the defendant's conduct must be extreme and outrageous. The conduct must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Third, the defendant's actions must have been the proximate cause of the plaintiff's emotional distress. Fourth, the emotional distress suffered by the plaintiff must be “so severe that no reasonable man could be expected to endure it.” Griffin, 337 NJ Super. at 22-23 (citations omitted). The conduct needed to support a claim for intentional infliction of emotional distress must be “so extreme and outrageous ‘as to go beyond all possible bounds of decency, and be regarded as atrocious and utterly intolerable in a civilized community.’ “ Zamboni v. Stamler, 847 F.2d 73, 80 (3d Cir.1988) (quoting Hume v. Bayer, 178 N.J. Super 310, 314-15 (Law Div.1981)). Accordingly, “New Jersey courts have recognized a claim for intentional infliction of emotional distress” in such outrageous cases as the following: (1) “a physcian knowingly and untruthfully told parents their son was suffering from cancer”; and (2) “a hospital was unable to locate the body of dead baby for three weeks....” Id. (citing Hume, at 310; Muniz v. United Hospitals Medical Center, 153 N.J.Super. 79 (App.Div.1977)). Although the Third Circuit in Zamboni noted that “petty vindictive behavior by an employer can wreak havoc on vulnerable employees,” the Third Circuit found that the “conduct alleged [by the plaintiff in Zamboni ] did not rise to the level required for the tort of intentional infliction of emotional distress.” Id. In the instant matter, Plaintiff has not set forth any facts that would suggest that the Defendants intended to produce emotional distress or that the conduct was so extreme and outrageous that it was beyond bounds of decency. For these reasons, the Court grant Defendants' Motion on Plaintiff's claim of Intentional Infliction of Emotional Distress. Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 47 of 71 Devine v. Prudential Ins. Co. Of America, Not Reported in F.Supp.2d (2007) 2007 WL 1875530, 101 Fair Empl.Prac.Cas. (BNA) 414... © 2016 Thomson Reuters. No claim to original U.S. Government Works. 27 F. Plaintiff's Claim for Punitive Damages In view of the Court granting Defendants' Motions for Summary Judgment, the Court need not address Defendants' argument that punitive damages are not warranted here. G. Plaintiff's Motion for Summary Judgment and Cross- Motion for Spoliation In her September 8, 2005 submission to the Court, Plaintiff purports to move for summary judgment and seeks a dismissal or default judgment based on Prudential's alleged “spoliation of evidence for willful conduct.” See Pl. Br. However, upon careful review of Plaintiff's brief, it appears that Plaintiff merely set forth her theory of the case and the facts she alleges support her allegations. Moreover, she failed to submit a Rule 56.1 Statement of Undisputed Material Facts in support of her Motion. For all the reasons stated in this Opinion, as well as the foregoing, Plaintiff has failed to establish that the facts support judgment on her behalf. *35 On September 21, 2006, Plaintiff filed a Cross- Motion for Spoliation of Evidence. See Pl. Cross-Motion In this Motion, Plaintiff again sets forth facts she alleges support her allegations and again asks the Court to grant default judgment against the Defendant for allegedly failing to produce the following: (1) the 2002 lease Plaintiff allegedly entered into with Mr. Horsley; (2) “email communications detailing how the second Leasehold Agreement occurred”; (3) emails pertaining to Plaintiff's FMLA pregnancy/maternity leave; and (4) “email communications from October 31, 2001to the very time [Plaintiff] was instructed not to use her laptop” that allegedly reveal Plaintiff's concerns that her private office space was being taken over by David Chapman. Id. at 4-5. First, the Court notes that default judgment is not appropriate here as there is no Order pending before this Court that Defendants have failed to comply with. Second, Plaintiff's Motion for Summary Judgment is now moot because the Court, as discussed above, has found that Plaintiff's allegations, granting all inferences to Plaintiff on Defendants' Motions, cannot support her claims under the LAD, FMLA, or a cause of action for the intentional infliction of emotional distress. With regard to Plaintiff's September 21, 2006 Cross-Motion for Spoliation, the Court finds that this Motion is also moot, and accordingly, the Court denies the Cross- Motion. However, the Court notes that for purposes of this Opinion, the Court has accepted Plaintiff's version of the facts to be true. In fact, in granting Defendants' Motions for Summary Judgment, I have assumed that Ms. Devine and Mr. Horsley entered into a second lease in 2002. Further, I have accepted as true, all of Plaintiff's allegations which she contends would have been supported by allegedly “destroyed” email file evidence. Finally, even if the Court were to find support for Plaintiff's spoliation claim, which it does not, at best, Plaintiff would only be entitled to “an adverse inference or other appropriate remedy during trial,” as was noted in Judge Bongiovanni's December 7, 2005 Order. But I have already given the Plaintiff the benefit of such an inference in this Motion. See Dec. 7, 2005 Order (emphasis added). Therefore, Plaintiff's motions are denied. IV. CONCLUSION For the forgoing reasons, Defendants' Motions for Summary Judgment on their claims against them are granted, and Plaintiffs' Motion for Summary Judgment and Cross-Motion Spoliation are denied. An appropriate Order shall follow. All Citations Not Reported in F.Supp.2d, 2007 WL 1875530, 101 Fair Empl.Prac.Cas. (BNA) 414, 13 Wage & Hour Cas.2d (BNA) 1161 Footnotes 1 750 Route 34 is owned by B & R Holding Co., a company owned by Defendant Horsley's father-in-law, Russell Weber. Plaintiff's Reply Declaration to Defendants' Material Facts, dated September 28, 2006, (“Pl. Reply Decl.”), at ¶¶ 12, 16, 18; see also Affidavit of John J. Peirano, Esq., dated September 7, 2006 (“Peirano Aff.”), at Ex. F. 2 740 Route 34 is owned by B & R Realty, a company owned by Defendant Horsley's father-in-law, Russell Weber. Pl. Reply Decl. at ¶¶ 12, 16, 18; see also Peirano Aff. at Ex. F. Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 48 of 71 Devine v. Prudential Ins. Co. Of America, Not Reported in F.Supp.2d (2007) 2007 WL 1875530, 101 Fair Empl.Prac.Cas. (BNA) 414... © 2016 Thomson Reuters. No claim to original U.S. Government Works. 28 3 Ms. Devine admits that she and Mr. Horsley “were fast friends who were intended to trust each other.” Reply Declaration of Plaintiff to Dispute Material Facts of Defendants, dated September 28, 2006, (“Pl. Reply Decl”), at ¶ 13. In fact, Ms. Devine “was referred to as Horsley's office wife,” and Ms. Devine and Mr. Horsley “socialized together outside of work.” Id. Further, Mr. Horsley and his wife attended Ms. Devine's wedding. Id. 4 When the Oakhurst Office closed, the District Office “consolidated to Laurence Harbor, which is just a few miles from 740 Route 34....” Devine Dep. at 156:3-9. 5 Defendant's Exhibit D-12 is a two-page copy of two checks, one check is in the amount of $1,000.00 and the other check is in the amount of $2,200.00. Ms. Devine testified that the $2,200.00 check comprised her payment to Mr. Horsley of $2,100.00 for rent and $100.00 to reimburse him “for crap he bought at Staples.” Devine Dep. at 323:2-7. Ms. Devine cannot remember the reason for her payment of $1,000.00 to Mr. Horsley. Id. at 323:7-11. 6 Michael Marciano became Ms. Devine's District Manager at the end of 2000/beginning of 2001. Devine Dep. at 123:4-124:13. Ms. Devine testified that she only reported to Mr. Marciano. Id. 7 In a September 24, 2006 letter, Michael Marciano informed Mr. Horsley that Mr. Horsely was terminated because of Mr. Horsley's “private office arrangement with Monica Devine and the Mary Rooke annuity application.” Plaintiff's Reply Declaration to Defendants' Material Facts, dated September 28, 2006, (“Pl. Reply Decl.”), at Ex. BB. 8 In April 2000, Mr. Chapman expressed an interest in moving his office “to the established location of retired agent, Steve Kaczala, and fellow colleague, John Horsley. The office location to be: 740[R]oute 34, Matawan, NJ 07747. Thank you.” Pl. Reply Decl. at Ex. DD at 000761. 9 On March 31, 2001, a lease between Dennis Hahn and B & R Holding Co. for Mr. Hahn's “general office use” at the 740 Office was executed. Similar to Mr. Chapman's lease, Mr. Hahn's rent was $400.00 per month, and the lease made no reference as to what “general office” space Mr. Chapman would use in the 740 Office. Peirano Aff. at Ex. F at D0526-28. 10 After giving birth on March 16, 2002, Ms. Devine never actually physically went back inside to the 740 Office. Devine Dep. at 260:1-21; 330:1-9. In fact, the last time Ms. Devine was physically inside the 740 Office was sometime in December 2001 or January 2002. Id. at 728:1-13. 11 Ms. Devine sent this email a second time to Mr. Horsley on January 3, 2002 at 9:19 am. Pl. Reply Decl. at Ex. JJ at 000183. 12 John Horsley was on vacation from July 3, 2002 until July 10, 2002. Pl. Reply Decl. at Ex. OO. 13 Ms. Devine's testimony is in direct conflict with allegations in her Complaint. Paragraph 30 of Ms. Devine's Complaint states: Upon confronting Mr. Horsley over the situation, Ms. Devine was told that there was nowhere to put Mr. Chapman and that the planned two-office addition to the suite had not been started as anticipated. Mr. Horsley told her that Mr. Chapman was staying where he was and that she had to accept that. Complaint at ¶ 30. 14 Ms. Devine's testimony is in direct conflict with allegations in her Complaint. Paragraph 36 of Ms. Devine's Complaint alleges that Ms. Devine “pleaded with Mr. Marciano to do something, indicating that these events had effectively rendered her incapable of performing her job.” Complaint at ¶ 36. Ms. Devine alleges that “nothing was done to address [her] continued requests for assistance,” and as a result, “she had no choice but to involuntarily resign and was constructively discharged on July 26, 2002.” Id. at ¶ 36. 15 Interestingly, Plaintiff's own statement reveals that while out on disability she was unable to perform the following job duties: “No lifting of computer bag or anything, need no stress, relaxation, bed rest.” Pl. Reply Decl. at Ex. J at Management Unit, Employee Statement, signed by Monica Devine on October 19, 2001. 16 Ms. Elovich's Notice of Appearance in this action was filed with the Court on January 26, 2005. 17 According to Ms. Devine, the union ceased to exist in the last year of her employment with Prudential. Devine Dep. at 98:11-18. 18 The Court notes that nothing in the record supports the contention that Prudential directed how the internal configuration of any of its agents' private offices would be made. 19 The New Jersey Law Against Discrimination prohibits: an employer, because of the race, creed, color, national origin, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, sex, ... to refuse to hire or employ or to bar or to discharge or require to retire ... from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment.... N.J.S.A. § 10:5-12 (2007). 20 In McDonough, the plaintiff claimed violations under Title VII and the LAD. However, the McDonough court's interpretation of Title VII discrimination violations is applicable to LAD discrimination violations. McDonough, 2007 WL 1456202 at fn Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 49 of 71 Devine v. Prudential Ins. Co. Of America, Not Reported in F.Supp.2d (2007) 2007 WL 1875530, 101 Fair Empl.Prac.Cas. (BNA) 414... © 2016 Thomson Reuters. No claim to original U.S. Government Works. 29 2. In fact, the New Jersey “Supreme Court has noted that, in construing the LAD, federal precedent governing Title VII is ‘a key source of interpretive authority.’ “ Woods-Pirozzi v. Nabisco Foods, 290 N.J.Super. 252, 268 (App.Div.1996) (quoting Lehman v.. Toys ‘R’ Us, Inc., 132 N.J. 587, 600-01 (1993)). 21 Although Plaintiff claims in her summary judgment papers that Mr. Hahn was a field supervisor, Plaintiff testified she only reported to Michael Marciano. Devine Dep. at 123:4-124:13. See Baer v. Chase, 392 F.3d 609, 624 (3d Cir.2004) (“when a party does not explain the contradiction between the subsequent affidavit and the prior deposition, the alleged factual issue in dispute can be perceived as a ‘sham’, thereby not creating an impediment to a grant of summary judgment based on the deposition”). 22 The Court finds it difficult to believe that Plaintiff's attorney would not have amended the Complaint to allege Plaintiff's claims, or even question Mr. Horsley at his deposition about these allegations, if the behavior Plaintiff complains of was in fact so severe and pervasive. 23 From October 2001 to July 2002, Prudential provided Plaintiff with short term disability, long term disability, FMLA, parental leave, and vacation benefits. End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 50 of 71 Foraker v. Apollo Group, Inc., Not Reported in F.Supp.2d (2006) 2006 WL 3390306, 153 Lab.Cas. P 35,223, 12 Wage & Hour Cas.2d (BNA) 135 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 2006 WL 3390306 United States District Court, D. Arizona. Wayne F. FORAKER, Plaintiff, v. APOLLO GROUP, INC. dba University of Phoenix, Defendant. No. CV04-2614-PHX-DGC. | Nov. 22, 2006. Attorneys and Law Firms Rosemary Stathakis Cook, Law Ofice of Rosemary Cook, Phoenix, AZ, for Plaintiff. Lisa Marie Coulter, William R Hayden, Christy Lin Rosensteel, Snell & Wilmer LLP, Phoenix, AZ, for Defendant. Opinion DAVID G. CAMPBELL, District Judge. *1 Defendant has filed a Motion for Judgment as a Matter of Law (Renewed) re Promotion Claim and a Motion for Judgment as a Matter of Law (Renewed) re Administrative Claim. Dkt. # 244, 245. Responses and replies have been filed. Plaintiff has filed a Brief Regarding Monetary Judgment, Prejudgment Interest, Liquidated Damages and Present Value of Future Loss Damages. Dkt. # 230. Defendant has filed two responses. A. Defendant's Motion on the Promotion Claim. Following trial, the jury found that Plaintiff had been denied a promotion and 10% pay increase for taking a 2004 leave of absence under the Family Medical Leave Act (“FMLA”). Defendant argues that Plaintiff presented no evidence to support his claim that he was promised or denied a promotion. Defendant's argument is premised on the meaning of the word “promotion” within Defendant's employment practices. Defendant asserts that a promotion occurs within its organization only when an employee receives a change in his or her position classification. Changes in job title or job responsibilities that do not include a new position classification do not, in Defendant's nomenclature, constitute a promotion. Defendant asserts that the evidence presented at trial established that Plaintiff did not receive a promised or actual change in his position classification. Rather, Defendant contends, Plaintiff received a change in his working title from Senior Director of Assessment to Senior Director of Learning Assessment and Analysis. Because Plaintiff presented no evidence that he was promised nor received a change in his position classification, Defendant asserts that the jury's verdict finding that Plaintiff was denied a promotion is not support by the evidence. Plaintiff readily admitted during his testimony at trial that he received no change in his position classification. Plaintiff instead asserted that he received new job responsibilities, including management and budgetary responsibilities for the area of learning assessment within Defendant's business. Plaintiff also asserted that he was promised a 10% pay raise in connection with these new job responsibilities. Plaintiff asserts that these increases in job duties and pay constituted a promotion within the ordinary meaning of the word. The Court concludes that the jury reasonably found that the change in Plaintiff's employment responsibilities constituted a promotion. The Court does not equate this finding with a change in Plaintiff's position classification. Indeed, as noted above, Plaintiff did not assert at trial that he received an increased position classification. But the jury reasonably concluded that Plaintiff was given increased management and budgetary responsibilities and a corresponding pay increase, and that these increases were subsequently withdrawn when Plaintiff's took FMLA leave in 2004. The evidence reasonably supported the jury's findings. Plaintiff personally testified that Defendant's Vice President, William Pepicello, assigned him the increased job responsibilities and promised him the 10% pay increase. Although Mr. Pepicello denied promising the pay increase, a jury reasonably could have believed Plaintiff rather than Mr. Pepicello. Plaintiff also introduced exhibits in which Mr. Pepicello referred to Plaintiff's new responsibilities as a promotion, and a congratulatory note from Defendant's President also referring to the changes as a promotion. This evidence reasonably supported the jury's verdict in favor of Plaintiff on the promotion and pay increase claims. As a result, Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 51 of 71 Foraker v. Apollo Group, Inc., Not Reported in F.Supp.2d (2006) 2006 WL 3390306, 153 Lab.Cas. P 35,223, 12 Wage & Hour Cas.2d (BNA) 135 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 Defendant's motion for judgment as a matter of law will be denied. B. Defendant's Motion on Administrative Leave Claim. *2 Defendant makes two arguments. First, Defendant contends that Plaintiff's involuntary placement on paid administrative leave did not constitute an adverse employment action for purposes of the FMLA. Second, Defendant contends that Plaintiff failed to prove monetary damages resulting from his paid administrative leave and that such a failure requires judgment as a matter of law on the administrative leave claim. As part of this second argument, Defendant contends that equitable relief is not available under the FMLA for placement on paid administrative leave. 1. Adverse Employment Action. The Supreme Court recently addressed the requirements for an adverse employment action. The Court held that a plaintiff seeking to establish an adverse employment action “must show that a reasonable employee would have found the challenged action materially adverse, ‘which in this context means it well might have dissuaded a reasonable worker from [engaging in protected activity].’ “ Burlington Northern v. White, 126 S.Ct. 2405, 2415 (2006) (citations omitted). This test is the same as that previously adopted by the Ninth Circuit in Ray v. Henderson, 217 F.3d 1234 (9th Cir.2000). Although Burlington and Ray are Title VII cases, Defendant does not dispute that this definition of an adverse employment action applies under the FMLA. Defendant does contend that the remedial purposes of the FMLA are narrower than those of Title VII, but does not dispute that the relevant inquiry is whether the challenged action might have dissuaded a reasonable worker from engaging in protected conduct- in this case, taking leave under the FMLA. Plaintiff was placed on paid administrative leave on September 16, 2005. Although he continued to receive full compensation and other benefits, he was relieved of all job responsibilities, ceased to function in his employment position or any other capacity for Defendant, and was not permitted to come to the workplace. His interaction with fellow employees ceased, as did any on-the-job experience and training he normally would have received. Plaintiff did not receive regular employment reviews that might have laid the foundation for increased responsibilities or pay. As of the date of trial, Plaintiff had remained on paid administrative leave for almost one year, with no indication from Defendant as to when he might be permitted to return to work. The Court concludes that a reasonable employee likely would find such an administrative leave to be “materially adverse” as required by Burlington. The elimination of all job responsibilities, all contact with co-workers, all experience and education that would come from fulfilling one's job responsibilities, and all periodic performance reviews for an indefinite period of at least 12 months “well might have dissuaded a reasonable worker” from requesting FMLA leave. Burlington, 126 S.Ct. at 2415. The Court therefore cannot conclude as a matter of law that Plaintiff's paid administrative leave was not an adverse employment action. The issue was appropriately presented to the jury, and, on the basis of sufficient evidence, the jury found that Plaintiff had experienced an adverse employment action in retaliation for requesting additional FMLA leave. *3 Defendant cites a few cases for the proposition that paid administrative leave can never constitute an adverse employment action. Defendant overstates the import of these cases. None of them addressed a circumstance like Plaintiff's, and none of them was decided after Burlington or addressed the standard articulated in Ray. Although there may well be circumstances where a court can conclude that a particular instance of paid administrative leave does not constitute an adverse employment action under Burlington and Ray, this is not such a case. The Court's decision to submit this issue to the jury was correct. 2. Plaintiff's Lack of Economic Damages. Plaintiff failed to present any evidence that he suffered economic damages as a result of his paid administrative leave. Plaintiff has received full pay and benefits during the leave, and, as Defendant notes, the FMLA does not permit recovery of non-economic damages such as pain and suffering. The jury's verdict was consistent with this lack of evidence. The jury found that Plaintiff had been placed on paid administrative leave in retaliation for requesting FMLA leave, but declined to award Plaintiff any damages. Defendant contends that economic damages constitute an element of Plaintiff's prima facie case and that his failure to prove such damages dooms his retaliation claim Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 52 of 71 Foraker v. Apollo Group, Inc., Not Reported in F.Supp.2d (2006) 2006 WL 3390306, 153 Lab.Cas. P 35,223, 12 Wage & Hour Cas.2d (BNA) 135 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 as a matter of law. But the FMLA expressly authorizes injunctive relief. Any employer who violates the statute is liable to the employee for economic damages or “for such equitable relief as may be appropriate, including employment, reinstatement, and promotion.” 29 U.S.C. § 2617(a)(1)(B). The primary case cited by Defendant, Dawson v. Leewood Nursing Home, Inc., 14 F.Supp.2d 828 (E.D.Va.1998), states that employees suing under the FMLA have the right to recover “damages or to seek equitable relief for violations of the Act.” Id. at 832. Defendant's own authority thus makes clear that an FMLA claim may be sustained by a claim for equitable relief. Defendant argues that the statute does not authorize equitable relief in a case of paid administrative leave, but cites no authority to support this proposition. Defendant instead argues that equitable relief has been afforded only in cases of termination. The fact that equitable relief is available when the adverse employment action is termination does not mean, however, that it is unavailable when the adverse employment action is indefinite paid administrative leave. The plain language of the statute authorizes equitable relief when a violation of the FMLA occurs. Because the jury found that Defendant retaliated against Plaintiff by placing him on paid administrative leave, and because the statute authorizes equitable relief, the Court cannot conclude that Plaintiff's retaliation claim fails as a matter of law. Defendant's motion for judgment as a matter of law on Plaintiff's administrative leave claim will be denied. C. The Parties' Briefs on Monetary Damages. *4 Plaintiffs asks the Court to award him $9,189.00 in back pay (as awarded by the jury), to double this amount in light of the jury's finding that Defendant did not act in good faith, and to award prejudgment interest, all totaling $22,583.70. Dkt. # 230 at 4. Plaintiff also asks the Court to award him $35,387.00 in lost future earnings for loss of his pay raise, $10,224.00 in future losses to his 401k plan, and to double this amount as a result of Defendant's bad faith, for damages totaling $91,222.00. Defendant does not address these damage numbers. Consistent with the Court's instructions, Defendant instead addresses whether monetary damages or injunctive relief constitutes the appropriate remedy for Plaintiff's loss of the 10% pay raise. Defendant argues that the Court should enter an injunction requiring Defendant to pay the 10% raise in the future. The Court will not decide at this time whether injunctive relief or front pay constitutes the appropriate remedy for Plaintiff's loss of the 10% pay raise. This decision instead will be made when the Court addresses and decides the appropriate remedy for Plaintiff's administrative claim. If the Court orders equitable relief on the administrative claim, equitable relief on the lost pay raise might also be appropriate. If Plaintiff does not seek equitable relief on the administrative claim, front pay might be appropriate. 1 To conclude this case, the Court will hold a hearing to address the relief warranted by the jury's verdict. In preparation for the hearing, Plaintiff and Defendant shall file memoranda, no longer than 7 pages in length by December 8, 2006. The parties shall file reply memoranda, no longer than 3 pages in length, by December 15, 2006. A hearing will be held of December 19, 2006, at 2:00 p.m. Plaintiff's memoranda shall address the following issues: (1) Does Plaintiff seek equitable relief on the basis of his administrative claim and, if so, in what form? (2) If Plaintiff does seek equitable relief, what relief can be fashioned consistent with the teaching of federal cases that courts should be reluctant to assume business management responsibilities or to become entangled in the affairs of businesses? (3) How does Plaintiff respond to Defendant's argument that front pay damages should not be doubled under the FMLA (see Dkt. # 232 at 2, n. 1)? (4) How does Plaintiff respond to Defendant's argument that good faith is an issue for the Court, not the jury (id.)? (5) When and how did Plaintiff make timely disclosure to Defendant of his 401k plan damages? (6) Any other arguments bearing on the appropriate remedy in this case. Defendant's memoranda shall address the following issues, among others: Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 53 of 71 Foraker v. Apollo Group, Inc., Not Reported in F.Supp.2d (2006) 2006 WL 3390306, 153 Lab.Cas. P 35,223, 12 Wage & Hour Cas.2d (BNA) 135 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 (1) If the Court does impose equitable relief on Plaintiff's administrative leave claim, what should be the appropriate form of that relief? (2) How does Defendant respond to the various damages calculations asserted by Plaintiff's expert? *5 (3) Any other arguments related to the appropriate remedy in this case. If the parties believe that oral testimony is required on the issue of damages, they shall be prepared to present such testimony at the hearing on December 19, 2006. They shall confer in advance about the most efficient way to present such testimony. Upon review of these additional submissions by the parties and consideration of the evidence and argument to be presented on December 19, 2006, the Court will enter a final order concerning the relief to be awarded Plaintiff in this case. Following this decision and entry of judgment, Plaintiff may apply for attorneys' fees and costs. IT IS ORDERED: 1. Defendant's Motion for Judgment as a Matter of Law (Renewed) Re Promotion Claim (Dkt.# 245) is denied. 2. Defendant's Motion for Judgment as a Matter of Law (Renewed) Re Administrative Leave Claim (Dkt.# 244) is denied. 3. The parties shall submit additional briefing and participate in the hearing as set forth above. All Citations Not Reported in F.Supp.2d, 2006 WL 3390306, 153 Lab.Cas. P 35,223, 12 Wage & Hour Cas.2d (BNA) 135 Footnotes 1 It appears that Plaintiff does not seek the equitable remedy of reinstatement on his administrative leave claim. His brief on monetary damages states: “It is not the job of the Court to monitor the practices of the parties. It is impractical to expect Plaintiff to return to work for an employee [sic] who violated his federal rights in bad faith.” Dkt. # 230 at 6. Moreover, the Court is uncertain about the kind of equitable relief that could be fashioned on the administrative leave claim. The Court is mindful of the fact that it does not possess the expertise or experience to make employment management decisions for Defendant or other employers. The Court is also mindful that the FMLA does not guarantee that an employee may return to the exact position vacated before a leave of absence. End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 54 of 71 Jones v. Castro, --- F.Supp.3d ---- (2016) 2016 WL 777917 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 2016 WL 777917 Only the Westlaw citation is currently available. United States District Court, District of Columbia. Jerry W. Jones, Plaintiff v. Julian Castro, Defendant Civil Action No. 15-310 (CKK) | Signed February 29, 2016 Synopsis Background: African-American employee of United States Department of Housing and Urban Development (HUD) brought action alleging that his employer discriminated against him on basis of his race and gender and retaliated against him, in violation of Title VII. Employer moved for judgment on the pleadings. Holdings: The District Court, Colleen Kollar-Kotelly, J., held that: [1] placement on paid administrative leave was not adverse action with respect to discrimination or retaliation claims; [2] placement of employee under investigation was not adverse action; [3] purported loss of annual leave did not qualify as adverse action; [4] purported loss of performance bonuses was not adverse action; [5] failure to dismiss notice of proposed removal at particular time desired by employee was not adverse action; but [6] employee stated discrimination claims based on five- day suspension and reassignment. Motion granted in part and denied in part. West Headnotes (29) [1] Civil Rights Practices prohibited or required in general; elements Title VII establishes two elements for an employment discrimination case: (1) the plaintiff suffered an adverse employment action (2) because of the employee's race, color, religion, sex, or national origin. Civil Rights Act of 1964 § 703, 42 U.S.C.A. § 2000e-2(a)(1). Cases that cite this headnote [2] Civil Rights Adverse actions in general “Adverse employment action” that would support Title VII discrimination claim is a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits. Civil Rights Act of 1964 § 703, 42 U.S.C.A. § 2000e-2(a)(1). Cases that cite this headnote [3] Civil Rights Practices prohibited or required in general; elements To prove unlawful retaliation under Title VII, a plaintiff must show: (1) that he opposed a practice made unlawful by Title VII, (2) that the employer took a materially adverse action against him, and (3) that the employer took the action because the employee opposed the practice. Civil Rights Act of 1964 § 704, 42 U.S.C.A. § 2000e-3(a). Cases that cite this headnote [4] Civil Rights Adverse actions in general “Materially adverse action,” as element of Title VII retaliation claim, would dissuade a Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 55 of 71 Jones v. Castro, --- F.Supp.3d ---- (2016) 2016 WL 777917 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 reasonable worker from making or supporting a charge of discrimination. Civil Rights Act of 1964 § 704, 42 U.S.C.A. § 2000e-3(a). Cases that cite this headnote [5] Civil Rights Adverse actions in general To be materially adverse, as element of Title VII retaliation action, employer's action must be more than those petty slights or minor annoyances that often take place at work and that all employees experience. Civil Rights Act of 1964 § 704, 42 U.S.C.A. § 2000e-3(a). Cases that cite this headnote [6] Civil Rights Exhaustion of Administrative Remedies Before Resort to Courts Before filing a claim for discrimination or retaliation under Title VII, an individual must seek administrative adjudication of the claim. Civil Rights Act of 1964 § 717, 42 U.S.C.A. § 2000e-16(c); 29 C.F.R. § 1614.106. Cases that cite this headnote [7] Civil Rights Scope of administrative proceedings; like or related claims In context of administrative exhaustion requirement, Title VII lawsuit following Equal Employment Opportunity Commission (EEOC) charge is limited in scope to claims that are like or reasonably related to the allegations of the charge and growing out of such allegations. Civil Rights Act of 1964 § 717, 42 U.S.C.A. § 2000e-16(c); 29 C.F.R. § 1614.106. Cases that cite this headnote [8] Federal Civil Procedure Judgment on the Pleadings Standard for reviewing a motion for judgment on the pleadings is virtually identical to that applied to a motion to dismiss for failure to state a claim. Fed. R. Civ. P. 12(b)(6), 12(c). Cases that cite this headnote [9] Federal Civil Procedure Insufficiency of claim or defense Because a motion for judgment on the pleadings would summarily extinguish litigation at the threshold and foreclose the opportunity for discovery and factual presentation, district court must approach such motions with the greatest of care and deny them if there are allegations in the complaint which, if proved, would provide a basis for recovery. Fed. R. Civ. P. 12(c). Cases that cite this headnote [10] Federal Civil Procedure Matters considered District court deciding motion for judgment on the pleadings is limited to considering the facts alleged in the complaint, any documents attached to or incorporated in the complaint, matters of which the court may take judicial notice, and matters of public record. Fed. R. Civ. P. 12(c). Cases that cite this headnote [11] Civil Rights Adverse actions in general Civil Rights Adverse actions in general Standards are not identical for adverse actions with respect to retaliation and discrimination claims. Civil Rights Act of 1964 §§ 703, 704, 42 U.S.C.A. §§ 2000e-2(a)(1), 2000e-3(a). Cases that cite this headnote [12] Civil Rights Adverse actions in general In context of adverse action element of Title VII discrimination claim, for employment actions that do not obviously result in a Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 56 of 71 Jones v. Castro, --- F.Supp.3d ---- (2016) 2016 WL 777917 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 significant change in employment status, such as giving a poor performance evaluation, reassigning office space and equipment, or, for that matter, fielding a company softball team, an employee must go the further step of demonstrating how the decision nonetheless caused such an objectively tangible harm. Civil Rights Act of 1964 § 703, 42 U.S.C.A. § 2000e-2(a)(1). Cases that cite this headnote [13] Civil Rights Adverse actions in general Civil Rights Adverse actions in general Because only claims before district court in federal employee's Title VII action were discrimination and retaliation claims, not hostile work environment claim, court was required to analyze each alleged adverse action, individually, to determine whether it constituted an action that could form basis of discrimination claim or retaliation claim in circumstances of case. Civil Rights Act of 1964 §§ 703, 704, 42 U.S.C.A. §§ 2000e-2(a)(1), 2000e-3(a). Cases that cite this headnote [14] Civil Rights Adverse actions in general With respect to Title VII retaliation claims, it is appropriate to analyze adverse actions under framework of action by action. Civil Rights Act of 1964 § 704, 42 U.S.C.A. § 2000e-3(a). Cases that cite this headnote [15] Civil Rights Particular cases Civil Rights Discrimination against men; reverse discrimination Civil Rights Public Employment Public Employment Exercise of Rights; Retaliation United States Exercise of rights; retaliation African-American federal employee's placement on paid administrative leave for two-week period followed by periodic extensions, amounting to 19 months of paid administrative leave, while investigation into employee's conduct was ongoing, was not adverse action for purposes of employee's Title VII race and gender discrimination claims or his retaliation claim arising from his filing of Equal Employment Opportunity Commission (EEOC) charge. Civil Rights Act of 1964 §§ 703, 704, 42 U.S.C.A. §§ 2000e-2(a) (1), 2000e-3(a). Cases that cite this headnote [16] Civil Rights Particular cases Civil Rights Discrimination against men; reverse discrimination Civil Rights Public Employment Public Employment Exercise of Rights; Retaliation United States Exercise of rights; retaliation Federal employer's placement of African- American employee under investigation for purported misconduct did not constitute adverse action for purposes of employee's Title VII race and gender discrimination claims or his retaliation claim arising from his filing of Equal Employment Opportunity Commission (EEOC) charge. Civil Rights Act of 1964 §§ 703, 704, 42 U.S.C.A. §§ 2000e-2(a) (1), 2000e-3(a). Cases that cite this headnote [17] Civil Rights Adverse actions in general Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 57 of 71 Jones v. Castro, --- F.Supp.3d ---- (2016) 2016 WL 777917 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 With respect to Title VII discrimination claims, the mere initiation of an investigation into an employee may not constitute adverse action. Civil Rights Act of 1964 § 703, 42 U.S.C.A. § 2000e-2(a)(1). Cases that cite this headnote [18] Civil Rights Compensation and benefits Civil Rights Discrimination against men; reverse discrimination Civil Rights Public Employment Public Employment Exercise of Rights; Retaliation United States Exercise of rights; retaliation African-American federal employee's purported inability to use all of his accrued annual leave as result of his placement on paid administrative leave pending investigation into his conduct did not qualify as adverse action for purposes of employee's Title VII race and gender discrimination claims or his retaliation claim arising from his filing of Equal Employment Opportunity Commission (EEOC) charge. Civil Rights Act of 1964 §§ 703, 704, 42 U.S.C.A. §§ 2000e-2(a)(1), 2000e-3(a).; 5 C.F.R. § 630.202(a). Cases that cite this headnote [19] Federal Civil Procedure Amendments by briefs or motion papers Federal Civil Procedure Matters considered A plaintiff may not amend his complaint through his opposition to motion for judgment on the pleadings, and district court need not consider any claims presented for the first time in opposition. Fed. R. Civ. P. 12(c). Cases that cite this headnote [20] Civil Rights Compensation and benefits Civil Rights Discrimination against men; reverse discrimination Civil Rights Public Employment Public Employment Exercise of Rights; Retaliation United States Exercise of rights; retaliation African-American federal employee's purported loss of performance bonuses as result of being placed on paid administrative leave pending investigation into his conduct did not amount to adverse action for purposes of his Title VII race and gender discrimination claims or his retaliation claim arising from his filing of Equal Employment Opportunity Commission (EEOC) charge. Civil Rights Act of 1964 §§ 703, 704, 42 U.S.C.A. §§ 2000e-2(a) (1), 2000e-3(a). Cases that cite this headnote [21] Civil Rights Pleading Public Employment Exercise of Rights; Retaliation United States Exercise of rights; retaliation African-American federal employee's conclusory allegations that his employer stigmatized him and caused “great harm” in his personal life and to his professional reputation as result of placing him on paid administrative leave pending investigation into reports of misconduct failed to state that employee suffered adverse action, as would support his Title VII race and gender discrimination claims and his retaliation claim arising from his filing of Equal Employment Opportunity Commission (EEOC) charge. Civil Rights Act of 1964 §§ 703, 704, 42 U.S.C.A. §§ 2000e-2(a)(1), 2000e-3(a). Cases that cite this headnote Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 58 of 71 Jones v. Castro, --- F.Supp.3d ---- (2016) 2016 WL 777917 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 [22] Civil Rights Adverse actions in general Purely subjective injuries, such as dissatisfaction with a reassignment, public humiliation, or loss of reputation, are not adverse actions for purposes of Title VII discrimination claim. Civil Rights Act of 1964 § 703, 42 U.S.C.A. § 2000e-2(a)(1). Cases that cite this headnote [23] Civil Rights Particular cases Civil Rights Discrimination against men; reverse discrimination Civil Rights Public Employment Public Employment Exercise of Rights; Retaliation United States Exercise of rights; retaliation Federal employer's failure to dismiss notice of proposed removal from federal service at particular time desired by employee, and instead dismissing notice seven months later, following employer's issuance of decision rejecting proposal to terminate his employment, did not amount to adverse action for purposes of employee's Title VII race and gender discrimination claims or his retaliation claim arising from his filing of Equal Employment Opportunity Commission (EEOC) charge. Civil Rights Act of 1964 §§ 703, 704, 42 U.S.C.A. §§ 2000e-2(a)(1), 2000e-3(a). Cases that cite this headnote [24] Civil Rights Causal connection; temporal proximity Title VII retaliation claim requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer. Civil Rights Act of 1964 § 704, 42 U.S.C.A. § 2000e-3(a). Cases that cite this headnote [25] Civil Rights Pleading While a plaintiff is not required to plead every fact necessary to establish a prima facie case of Title VII retaliation to survive motion to dismiss or a motion for judgment on the pleadings, the complaint must nonetheless meet the plausibility standard. Civil Rights Act of 1964 § 704, 42 U.S.C.A. § 2000e-3(a); Fed. R. Civ. P. 12(b)(6), (c). Cases that cite this headnote [26] Civil Rights Causal connection; temporal proximity Public Employment Causal connection; temporal proximity United States Exercise of rights; retaliation Federal employer notified employee of its intent to terminate his employment in connection with investigation into employee's conduct before employee filed Equal Employment Opportunity Commission (EEOC) charge, and thus employee's protected activity could not form basis of his Title VII retaliation claim, arising from employer's ultimate decision to impose five- day suspension and reassign employee. Civil Rights Act of 1964 § 704, 42 U.S.C.A. § 2000e-3(a). Cases that cite this headnote [27] Civil Rights Retaliation claims Public Employment Causal connection; temporal proximity United States Exercise of rights; retaliation Temporal proximity between federal employee's filing of Equal Employment Opportunity Commission (EEOC) complaints and his placement on five-day Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 59 of 71 Jones v. Castro, --- F.Supp.3d ---- (2016) 2016 WL 777917 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 6 suspension and reassignment almost one year after employee's filing of initial complaint did not support inference of causation in employee's Title VII retaliation action. Civil Rights Act of 1964 § 704, 42 U.S.C.A. § 2000e-3(a). Cases that cite this headnote [28] Civil Rights Retaliation claims Circumstantial evidence of a pattern of antagonism following protected conduct can give rise to the inference of causation in Title VII retaliation action. Civil Rights Act of 1964 § 704, 42 U.S.C.A. § 2000e-3(a). Cases that cite this headnote [29] Civil Rights Pleading Allegations in complaint of African-American employee of Department of Housing and Urban Development (HUD) regarding HUD's deputy director of the Office of Department Equal Employment Opportunity (ODEEO), on basis of cat's paw theory, sufficiently stated Title VII race, sex, and race plus sex discrimination claims, insofar as those claims were based on employee's five- day suspension and reassignment. Civil Rights Act of 1964 § 703, 42 U.S.C.A. § 2000e-2(a)(1). Cases that cite this headnote Attorneys and Law Firms Molly E. Buie, Robert C. Seldon, Seldon Bofinger & Associates, P.C., Washington, DC, for Plaintiff. Peter C. Pfaffenroth, U.S. Attorney's Office, Washington, DC, for Defendant. MEMORANDUM OPINION and ORDER COLLEEN KOLLAR-KOTELLY, United States District Judge *1 Plaintiff Jerry Jones is an employee of the United States Department of Housing and Urban Development (“HUD”) and was formerly the Director of Alternative Dispute Resolution in the Office of Departmental Equal Employment Opportunity at HUD. He is an African- American man. In this case under Title VII of the Civil Rights Act of 1964, as amended, he claims that the agency discriminated against him on the basis of his race, his gender, and on the basis of the combination of his race and gender; he also claims that he agency retaliated against him as a result of his engaging in protected equal employment opportunity (“EEO”) activities. Presently before this Court is Defendant's [10] Motion for Judgment on the Pleadings. 1 Defendant argues that several of the purported bases for Plaintiff's claims are not adverse actions that can serve as the basis for a discrimination or retaliation claim; that Plaintiff did not properly exhaust his administrative remedies in full with respect to all claims; and that, with respect to the remaining claims, the Complaint fails to state a claim upon which relief may be granted. Upon consideration of the pleadings, 2 the relevant legal authorities, and the record for purposes of this motion, the Court GRANTS IN PART and DENIES IN PART Defendant's motion, for the reasons stated below. The Court grants the motion with respect to the retaliation claim and dismisses that claim. The Court also grants the motion with respect to the discrimination claims insofar as they are based on adverse actions other than Plaintiff's five-day suspension and reassignment. The Court otherwise denies the motion. I. BACKGROUND A. Statutory and Regulatory Background As Plaintiff brings claims under both the antidiscrimination and the antiretaliation provisions of Title VII, the Court reviews the law applicable to claims under each provision. [1] [2] Title VII of the Civil Rights Act makes it unlawful for any employer to “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 60 of 71 Jones v. Castro, --- F.Supp.3d ---- (2016) 2016 WL 777917 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 7 any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). “This statutory text establishes two elements for an employment discrimination case: (i) the plaintiff suffered an adverse employment action (ii) because of the employee's race, color, religion, sex, or national origin.” Brady v. Office of Sergeant at Arms, 520 F.3d 490, 493 (D.C.Cir.2008). An adverse employment action is “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits.” Douglas v. Donovan, 559 F.3d 549, 552 (D.C.Cir.2009); see also Aliotta v. Bair, 614 F.3d 556, 566 (D.C.Cir.2010). *2 [3] [4] [5] “Title VII's antiretaliation provision forbids employer actions that 'discriminate against' an employee (or job applicant) because he has 'opposed' a practice that Title VII forbids or has 'made a charge, testified, assisted, or participated in' a Title VII 'investigation, proceeding, or hearing.' ” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 59, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (quoting 42 U.S.C. § 2000e-3(a)). “To prove unlawful retaliation, a plaintiff must show: (1) that he opposed a practice made unlawful by Title VII; (2) that the employer took a materially adverse action against him; and (3) that the employer took the action 'because' the employee opposed the practice.” McGrath v. Clinton, 666 F.3d 1377, 1380 (D.C.Cir.2012); accord Bridgeforth v. Jewell, 721 F.3d 661, 663 (D.C.Cir.2013). “Materially adverse action would 'dissuade[ ] a reasonable worker from making or supporting a charge of discrimination.' ” Id. (quoting Burlington N., 548 U.S. at 68, 126 S.Ct. 2405). “To be materially adverse, the employer's action must be more than 'those petty slights or minor annoyances that often take place at work and that all employees experience.' ” Id. (quoting Burlington N., 548 U.S. at 68, 126 S.Ct. 2405). [6] [7] Before filing a claim for discrimination or retaliation under Title VII, an individual must “must seek administrative adjudication of the claim.” Scott v. Johanns, 409 F.3d 466, 468 (D.C.Cir.2005); see also Hamilton v. Geithner, 666 F.3d 1344, 1349 (D.C.Cir.2012) (exhaustion required for retaliation claim under Title VII). The D.C. Circuit Court of Appeals has summarized the process as follows: Under regulations promulgated by the Equal Employment Opportunity Commission (EEOC) pursuant to Title VII, the employee must do so by filing a complaint with her agency. 29 C.F.R. § 1614.106(a). The employing agency then conducts an investigation and, if the employee so requests, refers the matter to an EEOC administrative judge for a hearing. Id. §§ 1614.106(e)(2), 1614.108-09. After the employing agency investigates, or the administrative judge issues a decision, the employing agency must take “final action.” Id. § 1614.110. If the employee never requests a hearing, the agency's final action must “consist of findings ... on the merits of each issue ... and, when discrimination is found, appropriate remedies and relief.” Id. § 1614.110(b). If the employee requests a hearing, the employing agency's “final order shall notify the complainant whether or not the agency will fully implement the administrative judge's decision.” Id. § 1614.110(a). An employee who is aggrieved by the agency's final disposition of her complaint may then either appeal to the EEOC or file suit in federal court pursuant to 42 U.S.C. § 2000e-16(c). Id. § 1614.110. Payne v. Salazar, 619 F.3d 56, 58 (D.C.Cir.2010). “A Title VII lawsuit following the EEOC charge is limited in scope to claims that are 'like or reasonably related to the allegations of the charge and growing out of such allegations.' ” Park v. Howard Univ., 71 F.3d 904, 907 (D.C.Cir.1995) (quoting Cheek v. Western and Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir.1994)). B. Factual Background The Court provides an overview of the factual background of this case, reserving additional presentation of the facts for the issues discussed below. For the purposes of the motion before the Court, the Court accepts as true the well-pleaded allegations in Plaintiff's Complaint. The Court does “not accept as true, however, the plaintiff's legal conclusions or inferences that are unsupported by the facts alleged.” Ralls Corp. v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 315 (D.C.Cir.2014). Plaintiff Jones began his service as the director of the Alternative Dispute Resolution (“ADR”) program of HUD in February 2005. Compl. ¶ 19. On June 10 or 11, 2010, a HUD employee informed Michelle Cottom, then the deputy director of the Office of Departmental Equal Employment Opportunity (“ODEEO”) at HUD, Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 61 of 71 Jones v. Castro, --- F.Supp.3d ---- (2016) 2016 WL 777917 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 8 that Jones had raped her in July 2009. Id. ¶ 42. (Plaintiff disputes that allegation. Id.) That alleged incident occurred before that employee joined HUD as an employee. See id. ¶ 39. *3 On June 16, 2010, Cottom placed Jones on paid administrative leave prior to being given notice of the charges against him. Id. ¶ 50. He was immediately escorted out of the HUD facility. Id. He was initially placed on paid administrative leave for a period of two weeks, and at that time, Cottom and/or other senior management officials asked HUD's Office of Inspector General to investigate him. Id. ¶ 51. Jones' paid administrative leave was renewed periodically through January 24, 2012. Id. ¶ 52. Jones was interviewed by Office of Inspector General investigators on August 26, 2010. Id. ¶ 54. Jones responded orally to the wide ranging questions posed to him. Id. Cottom proposed to terminate Jones' employment with HUD in a written notice dated January 6, 2011. The notice charged Jones with several instances of misconduct; those instances did not include the original allegation of rape. Id. ¶¶ 55-56. The charges included claims that Jones had acted inappropriately to four other women (including harassment) and that he lacked candor in denying those allegations to the Office of Inspector General. Id. ¶¶ 63, 68. On January 31, 2011, Jones filed his written reply to the notice of proposed removal. Id. ¶ 58. In his written reply, in addition to denying the allegations that were the basis of the charges in the notice of proposed removal, Plaintiff argued that he was a victim of disparate treatment in light of the charges against him and the inadequate investigation conducted. Id. ¶ 66. Plaintiff subsequently supplemented his written reply on February 4 and February 15, 2011. Id. n.1. On March 29, 2011, Jones replied to HUD's charges orally for the first time. Id. ¶ 67. The meeting was attended by Dan Lurie, the deciding official and a special assistant to the deputy secretary of HUD, and by George Corsoro, the official representative of HUD's responsible employee and labor relations division. Id. No later than June 2011, Lurie concluded that the charges against Jones would not be sustained and that he would not be removed from federal service. Id. ¶ 69. However, Jones was not yet returned to active duty. Id. ¶ 71. On October 3, 2011, HUD informed Jones that it had appointed a new deciding official, Patricia Hoban-Moore, who was at that time the Director of HUD Field Policy and Management. Id. ¶ 72. On October 11, 2011, Jones appeared before Hoban-Moore for a second oral reply. Id. ¶ 73. No later than November 2011, Hoban-Moore determined that Jones was to be restored to active duty and reinstated in a suitable position. Id. ¶ 74. Plaintiff then alleges that, instead of issuing Hoban-Moore's decision, HUD encouraged Plaintiff to retire or resign to avoid being terminated. Id. ¶ 76. Plaintiff was then given false and misleading information regarding retirement by a HUD representative in the Human Resources Department. Id. ¶¶ 77-79. HUD then issued Hoban-Moore's decision, which was dated January 24, 2012, which rejected the proposal to remove Jones and instead suspended him for five days. Id. ¶ 82. Hoban-Moore dismissed five of the seven charges against Jones and sustained two of the charges. Id. ¶¶ 83-84. Plaintiff maintains that the two sustained charges were improperly sustained. Id. ¶ 84. Hoban-Moore's decision advised Jones that he was being reassigned from his former position as director of the ODEEO ADR program into a separate HUD division. Id. ¶ 86. On February 13, 2012, the date Jones was to return to active duty, HUD did not inform Jones where he was to report for work, and he remained in the lobby of a HUD building for over two hours because he could not access the building. Id. ¶ 88. Jones was then assigned to a non-supervisory position with fewer and less important responsibilities and fewer opportunities for advancement; the position was also outside of his career field. Id. ¶ 89. C. Procedural Background *4 Jones initiated the informal EEO complaint process no later than March 8, 2012. Id. ¶ 90. On or before May 18, 2012, Jones filed his formal EEO complaint. Id. More than 180 days had elapsed after the filing of the formal complaint without the issuance of a final agency decision by HUD. Id. Subsequently, Plaintiff filed this action on March 3, 2015. Plaintiff identifies the following actions as the bases for his discrimination claims and his retaliation claim: • “on January 24, 2012, defendant suspended plaintiff for five days without pay, removed plaintiff from his position as Director of ADR in HUD ODEEO, and reassigned plaintiff to a nonsupervisory position with significantly reduced duties, professional exposure Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 62 of 71 Jones v. Castro, --- F.Supp.3d ---- (2016) 2016 WL 777917 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 9 to senior officials of HUD, and opportunity for professional advancement”; • “in June of 2011, failed to dismiss the notice proposing to terminate plaintiff's employment and restore plaintiff to active duty in the position of Director of ADR in ODEEO”; • “beginning on June 16, 2010, placed plaintiff on administrative leave and under investigation, which caused plaintiff to lose performance bonuses and to be denied annual leave for FY 2010 and FY 2011 that he would have accrued and received but for defendant's unlawful actions”; and • “stigmatized plaintiff and caused great harm in his personal life and to his professional reputation and ended any chance for career advancement.” Id. ¶ 94 (discrimination on the basis of race plus sex); see id. ¶ 101 (same actions as bases for sex discrimination claim); id. ¶ 117 (same actions as bases for retaliation claim). 3 After granting Defendant an extension to respond to the complaint, the Court then granted the parties' joint request to set a brief briefing schedule prior to any discovery. Pursuant to that schedule, Defendant then filed its [10] Motion for Judgment on the Pleadings and, Alternatively, for Summary Judgment. In response, Plaintiff filed a Motion for Continuance to Take Discovery, ECF No. 16-17, in which Plaintiff sought to take discovery before responding to Defendant's motion. The Court concluded that, given that the parties had jointly requested a briefing schedule that did not include a period for discovery, the Court would resolve the motion for judgment on the pleadings, once it was fully briefed, before allowing discovery. However, the Court also determined that it would allow discovery prior to resolving a motion for summary judgment- assuming that claims remain in this action. Therefore, the Court denied without prejudice Defendant's [10] Motion for Summary Judgment, and the Court extended the deadlines for the remainder of the briefing on Defendant's Motion for Judgment on the Pleadings. That motion is now fully briefed and ripe for resolution. II. LEGAL STANDARD [8] [9] [10] Pursuant to Federal Rule of Civil Procedure 12(c), a party may move for judgment on the pleadings “[a]fter the pleadings are closed-but early enough not to delay trial.” The standard for reviewing a motion for judgment on the pleadings is “virtually identical” to that applied to a motion to dismiss for failure to state a claim under Rule 12(b)(6). Baumann v. District of Columbia, 744 F.Supp.2d 216, 221 (D.D.C.2010). Because a Rule 12(c) motion “would summarily extinguish litigation at the threshold and foreclose the opportunity for discovery and factual presentation,” the district court must approach such motions “with the greatest of care” and deny them “if there are allegations in the complaint which, if proved, would provide a basis for recovery.” Haynesworth v. Miller, 820 F.2d 1245, 1254 (D.C.Cir.1987), abrogated on other grounds by Hartman v. Moore, 547 U.S. 250, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006). “The court is limited to considering the facts alleged in the complaint, any documents attached to or incorporated in the complaint, matters of which the court may take judicial notice, and matters of public record.” Baumann, 744 F.Supp.2d at 222. *5 Under rule 12(c)-as under rule 12(b)(6)-a party may move to dismiss a complaint on the grounds that it “fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “[A] complaint [does not] suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.' ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Rather, a complaint must contain sufficient factual allegations that, if accepted as true, “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. III. DISCUSSION Defendant argues that (1) the purported bases for Plaintiff's claims do not qualify as adverse actions under the applicable standards for discrimination and retaliation claims; (2) Plaintiff did not timely exhaust his administrative remedies with respect to all of his claims; and (3) the Complaint fails to state a plausible claim Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 63 of 71 Jones v. Castro, --- F.Supp.3d ---- (2016) 2016 WL 777917 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 10 with respect to the claims that were based on qualifying adverse actions and were properly exhausted. The Court addresses, in turn, these arguments. A. Adverse Actions Defendant argues that several of the actions on which Plaintiff bases his discrimination and retaliation claims do not qualify as adverse actions that can serve as the bases of those claims. Specifically, the agency argues that none of the actions other than Plaintiff's five-day suspension and reassignment are adverse actions that can serve as the basis for cognizable discrimination and retaliation claims. In response, Plaintiff argues (1) that the standard for adverse actions is different under the discrimination and the retaliation provisions of Title VII; (2) that the actions should be considered as a whole rather than discretely; and (3) that each of the disputed actions is a qualifying adverse action under both the discrimination and retaliation provisions of Title VII. The Court first addresses the prefatory legal questions: the appropriate standard to apply under the discrimination and retaliation provisions and whether the actions should be addressed discretely or collectively. [11] [12] Turning to the standards to apply, the Court agrees with Plaintiff that the standards are not identical for adverse actions with respect to retaliation and discrimination claims. See Burlington N., 548 U.S. at 67, 126 S.Ct. 2405 (“For these reasons, we conclude that Title VII's substantive provision and its antiretaliation provision are not coterminous. The scope of the antiretaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm.”). The Court, therefore, applies the standards appropriate for each type of claim, which were introduced in the legal overview above. The discrimination claims must rest on an adverse employment action, which is “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits.” Douglas, 559 F.3d at 552. “For employment actions that do not obviously result in a significant change in employment status-such as giving a poor performance evaluation, reassigning office space and equipment, or, for that matter, fielding a company softball team-an employee must go the further step of demonstrating how the decision nonetheless caused such an objectively tangible harm.” Id. at 553. By contrast, the retaliation claim must rest on “a materially adverse action.” Bridgeforth, 721 F.3d at 663. “Materially adverse action would 'dissuade[ ] a reasonable worker from making or supporting a charge of discrimination.' ” Id. (quoting Burlington N., 548 U.S. at 68, 126 S.Ct. 2405). Furthermore, “[t]o be materially adverse, the employer's action must be more than 'those petty slights or minor annoyances that often take place at work and that all employees experience.' ” Id. (quoting Burlington N., 548 U.S. at 68, 126 S.Ct. 2405). *6 [13] [14] With respect to Plaintiff's claim that the putative adverse actions should be considered as “a whole” rather than individually, Pl.'s Opp'n at 25, the Court notes that Plaintiff cites to no legal authority for that proposition. In addition, that claim is at odds with the well-established framework for analyzing adverse actions with respect to discrimination claims. See Douglas, 559 F.3d at 551-54 (analysis of discrimination claims with respect to individual alleged adverse actions). With respect to retaliation claims, it is appropriate to analyze adverse actions under the same framework-action by action. See Burlington N., 548 U.S. at 68, 126 S.Ct. 2405 (referring to a single “challenged action” as the unit of analysis for retaliation claims); Singletary v. D.C., 351 F.3d 519, 526 (D.C.Cir.2003) (citing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002)) (distinguishing between the “discrete acts” that are the basis for a discrimination or retaliation claim and the series of separate acts that, together, are actionable under a hostile work environment claim). In sum, because the only claims before the court are discrimination and retaliation claims-not a hostile work environment claim -the Court must analyze each alleged adverse action, individually, to determine whether it constitutes an action that may be the basis for a discrimination claim or a retaliation claim in the circumstances of this case. The Court now turns to those individual actions that Plaintiff maintains are adverse actions. Defendant argues that the following actions do not constitute adverse actions with respect to Plaintiff's discrimination or retaliation claims: Plaintiff's placement on administrative leave; Plaintiff's placement under investigation; Plaintiff's purported loss of annual leave; Plaintiff's purported loss of performance bonuses; the purported stigmatizing of Plaintiff, harm to his personal life, and loss of career advancement chances; and the failure to dismiss the notice of proposed removal pursuant to Plaintiff's preferred schedule. See Compl. ¶¶ 94, 101, 117; see also id. ¶ 108 Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 64 of 71 Jones v. Castro, --- F.Supp.3d ---- (2016) 2016 WL 777917 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 11 (basis for race discrimination claim limited to suspension/ reassignment and failure to dismiss notice). In other words, Defendant challenges all of the adverse actions that are the bases for Plaintiff's claims other than the five-day suspension and his reassignment. The Court analyzes each of these actions in light of the respective standards for discrimination and retaliation claims. 1. Placement on administrative leave [15] Plaintiff was placed on paid administrative leave on June 16, 2010, and at the same time, HUD officials requested an investigation by HUD's Office of Inspector General. Compl. ¶¶ 50-51. The initial period of administrative leave was two weeks, and that period of leave was renewed periodically-sometimes at week intervals-through January 24, 2012. Id. ¶¶ 51-52. The Court agrees with Defendant that the placement on paid administrative leave does not itself constitute an adverse action under either the discrimination standard or the retaliation standard. With respect to Plaintiff's discrimination claims, the Court concludes that a 19 month period of paid administrative leave while an investigation is ongoing -an initial two-week period followed by periodic extensions-does not, by itself, constitute an adverse action. See Bland v. Johnson, 66 F.Supp.3d 69, 73 (D.D.C.2014) (“being placed on paid administrative leave is not an adverse employment action sufficient to allege a Title VII discrimination claim”); Brown v. Georgetown Univ. Hosp. Medstar Health, 828 F.Supp.2d 1, 9 (D.D.C.2011); Dickerson v. SecTek, Inc., 238 F.Supp.2d 66, 79 (D.D.C.2002) (concluding that suspension did not constitute adverse action where employee was fully compensated and where suspension itself did not cause subsequent adverse actions). Notably, while Plaintiff emphasizes that, in several cases relied on by Defendant, the period of administrative leave was markedly shorter than the period in this case, Plaintiff points to no cases where the length of a period of paid administrative leave was sufficient for the period to constitute an adverse action. Ultimately, because Plaintiff was paid throughout the period of administrative leave, he cannot show the “objectively tangible harm” as a result of the administrative leave itself-separate from the other purported adverse actions, which the Court considers below-that is necessary to prevail on a claim for discrimination. Brown v. Brody, 199 F.3d 446, 457 (D.C.Cir.1999); see also Boykin v. England, No. CIV.A. 02-950 (JDB), 2003 WL 21788953, at *4 n. 5 (D.D.C. July 16, 2003). *7 With respect to the retaliation claim, the timing of the alleged protected activity and the alleged adverse action is critical. Plaintiff alleges that he was subject to retaliation when he was, “beginning on June 16, 2010, placed plaintiff on administrative leave and under investigation, which caused plaintiff to lose performance bonuses and to be denied annual leave for FY 2010 and FY 2011 that he would have accrued and received but for defendant's unlawful actions.” Compl. ¶ 117. The beginning of the period of administrative leave and investigation-as well as the purported resultant effects with respect to bonuses and annual leave-occurred before any of the alleged protected activity, which occurred on January 31, 2011, March 29, 2011, and October 11, 2011. Id. ¶¶ 114-16. The initiation of the period of administrative leave cannot be retaliation for the protected activity because it occurred prior to that activity. Moreover, Plaintiff never alleges that the period of administrative leave or of the investigation was extended or elongated as retaliation for his protected activity. Accordingly, the Court concludes that the period of paid administrative leave is not an adverse action with respect to Plaintiff's discrimination or retaliation claims. 2. Placement under investigation The Court now turns to the related claim that HUD placing Plaintiff under investigation for the period from June 16, 2010, to January 24, 2012, was itself an adverse action. The Court once again agrees with Defendant that the workplace investigation does not constitute an adverse action under the discrimination or retaliation provisions of Title VII. [16] [17] With respect to the discrimination claims, “the 'mere initiation' of an investigation may not constitute a materially adverse action.” King v. Holder, 77 F.Supp.3d 146, 151 (D.D.C.2015) (citing Ware v. Billington, 344 F.Supp.2d 63, 76 (D.D.C.2004)). Plaintiff does not allege that the placement under an investigation caused him to lose opportunities for promotions or otherwise reduce his regular salary. Moreover, “[p]urely subjective perceptions of stigma or loss of reputation are insufficient to make an employer's action 'materially adverse.' ” Brown v. Mills, 674 F.Supp.2d 182, 191 (D.D.C.2009) (citation and internal quotation marks omitted). Without identifying any tangible harm that resulted from the investigation, Plaintiff's placement under investigation itself does not Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 65 of 71 Jones v. Castro, --- F.Supp.3d ---- (2016) 2016 WL 777917 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 12 constitute an adverse action. 4 See Ginger v. District of Columbia, 477 F.Supp.2d 41, 53 (D.D.C.2007); Lipscomb v. Winter, 577 F.Supp.2d 258, 277 (D.D.C.2008), aff'd in part, remanded in part on other grounds, No. 08- 5452, 2009 WL 1153442 (D.C.Cir. Apr. 3, 2009). The Court separately considers below Plaintiff's claims that the period of administrative leave was associated with a loss of annual leave and performance bonuses. With respect to Plaintiff's retaliation claim, the Court concludes that the investigation was not an adverse action for the same reasons that the administrative leave was not an adverse action: the investigation began prior to the alleged protected activity, and Plaintiff never claims that it was prolonged as retaliation for that protected activity. 5 3. Purported loss of annual leave [18] [19] In the Complaint, Plaintiff claims that, as a result of Defendant's actions, he was “denied annual leave for FY 2010 and FY 2011 that he would have accrued and received.” Compl. ¶ 94; see also id. ¶ 52 (same). In Plaintiff's Opposition, he admits that he did, in fact, accrue annual leave during his period of administrative leave. Pl.'s Opp'n at 12 n.6; see also 5 C.F.R. § 630.202(a) (“A full-time employee earns leave during each full biweekly pay period while in a pay status or in a combination of a pay status and a nonpay status.”); Compl. ¶ 50 (Plaintiff placed in paid administrative leave). However, in his opposition, Plaintiff presents a new claim that he was unable to use all of his accumulated leave because he could only “roll over” a maximum of 240 hours of leave to the subsequent calendar year. Pl's Opp'n at 12 n.6. First, Plaintiff may not amend his Complaint through his Opposition to the Motion for Judgment on the Pleadings, and the Court need not consider any claims presented for the first time in his opposition. See Kingman Park Civic Ass'n v. Gray, 27 F.Supp.3d 142, 168 (D.D.C.2014). In any event, Plaintiff's purported inability to use all of his accrued leave does not constitute an adverse action. Plaintiff was paid his salary during the entire period of administrative leave, accrued leave during that period, was able to use it during the year accrued, and was able to “roll over” up to 240 hours for use in a subsequent year. In other words, his leave benefits were no different during the period of paid administrative leave from a period of active status. In addition, it was immaterial whether he actually used his accrued leave (i.e., vacation) during the period of administrative leave because it would not make any difference to the pay or other benefits that he received. In sum, Plaintiff has not alleged any change to his leave- related benefits that qualifies as an adverse action under the discrimination or retaliation provisions of Title VII. 4. Purported loss of performance bonuses *8 [20] Plaintiff alleges that, as a result of the period of administrative leave, he “did not receive performance appraisals or bonuses for FY 2010 and FY 2011 which, in keeping with his immediately preceding performance appraisals as Director of ODEEO ADR, would have been at the level of Outstanding and carried with them performance bonuses.” Compl. ¶ 52; see also id. ¶¶ 94, 101, 117. Defendant argues that the failure to have the opportunity to receive bonuses does not constitute an adverse action because the alleged harm was speculative. As an initial matter, the Court notes that Plaintiff does not allege that the failure to pay bonuses was itself an adverse action that can serve as the basis for his discrimination claims or his retaliation claim. In order words, Plaintiff does not claim that he was denied a specific bonus as an act of discrimination or retaliation. Rather, Plaintiff claims that it was his placement on a period of administrative leave that resulted in him being unable to qualify for bonuses during the specified fiscal years. Id. ¶ 52. In that light, the Court concludes that the possibility of Plaintiff's being unable to receive bonuses was too speculative at the time Plaintiff was placed on administrative leave for it to constitute an adverse action. See Porter v. Jackson, 668 F.Supp.2d 222, 232 (D.D.C.2009) aff'd, 410 Fed.Appx. 348 (D.C.Cir.2010); Stewart v. Evans, 275 F.3d 1126, 1134 (D.C.Cir.2002) (incorporating district court opinion in relevant part) (an agency action is not “an actionable adverse action ... unless there is a tangible change in the duties or working conditions constituting a material employment disadvantage”). Moreover, the Court notes that Plaintiff never alleges that he was placed on paid administrative leave or under investigation in order to deprive him of the opportunity to receive bonuses. Cf. Velikonja v. Gonzales, 466 F.3d 122, 124 (D.C.Cir.2006) (complaint stated claim for discrimination where plaintiff alleged that officials referred plaintiff for investigation “in order to prevent [the plaintiff] from receiving promotions”). Finally, the Court notes that Plaintiff points to no cases where the elimination of an opportunity to receive a bonus is an adverse action, let alone a case like this where the elimination of an Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 66 of 71 Jones v. Castro, --- F.Supp.3d ---- (2016) 2016 WL 777917 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 13 opportunity to receive a bonus is the downstream effect of an earlier decision. With respect to the retaliation claim, the timing discussed above is also fatal to Plaintiff's claim that the elimination of an opportunity to receive a bonus was an adverse action. As discussed above, Plaintiff only relies on his placement on administrative leave as the basis for that claim, yet that occurred prior to any of the alleged protected activities. Once again, Plaintiff never claims that the period of leave was prolonged in order to eliminate the opportunity for bonuses as retaliation in response to his earlier protected activities. See Compl. ¶¶ 52, 117. In sum, as alleged, the loss of bonuses is not an adverse action under the discrimination or retaliation provisions of Title VII. 5. Purported stigmatizing of Plaintiff, harm to his personal life, and loss of career advancement chances [21] [22] Plaintiff alleges that Defendant “stigmatized plaintiff and caused great harm in his personal life and to his professional reputation and ended any chance for career advancement.” Compl. ¶¶ 117. Defendant argues that these alleged actions satisfy neither the standard for an adverse action under the discrimination provision of Title VII nor the standard under the retaliation provision. The Court concludes that these conclusory allegations are insufficient under the standard applicable to either provision. See Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955) (“A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.' ”). With respect to the discrimination claims, Plaintiff has not sufficiently alleged tangible harm through his allegations. See Baloch v. Kempthorne, 550 F.3d 1191, 1199 (D.C.Cir.2008). “ '[P]urely subjective injuries,' such as dissatisfaction with a reassignment, public humiliation, or loss of reputation, are not adverse actions.” Holcomb v. Powell, 433 F.3d 889, 902 (D.C.Cir.2006) (citation omitted). Plaintiff has not alleged non-conclusory facts, through the allegations being considered here, to support a plausible conclusion that he has “experience[d] materially adverse consequences affecting the terms, conditions, or privileges of employment or future employment opportunities such that a reasonable trier of fact could find objectively tangible harm.” Forkkio v. Powell, 306 F.3d 1127, 1130- 31 (D.C.Cir.2002). With respect to Plaintiff's retaliation claim, the Court also concludes that Plaintiff has not alleged here non-conclusory facts that plausibly support a claim that these actions “would 'dissuade[ ] a reasonable worker from making or supporting a charge of discrimination.' ” Bridgeforth, 721 F.3d at 663 (citation omitted). 6. Failure to dismiss the notice of proposed removal in 2011 *9 Finally, Plaintiff alleges that Defendant, “in June of 2011, failed to dismiss the notice proposing to terminate plaintiff's employment and restore plaintiff to active duty in the position of Director of ADR in ODEEO.” Compl. ¶ 94; see also id. ¶¶ 101, 117. Defendant argues that the failure to dismiss the notice prior to January 2012 does not constitute an adverse action. 6 The Court agrees with Defendant. [23] Plaintiff alleges that, no later than June 2011, the HUD decisionmaker at that time concluded that the charges against Plaintiff would not be sustained and that he would not be removed from federal service. Id. ¶ 69. However, Plaintiff was not returned to active duty as of that time. Id. ¶ 71. Only later did HUD issue a decision dated January 24, 2012, which rejected the proposal to terminate Plaintiff's employment at HUD and instead suspended him for five days and reassigned him. Id. ¶ 82. In short, Plaintiff's claim is that the failure to dismiss the notice in June 2011-rather than to wait until January 2012 to issue the decision to suspend and to reassign him and not to terminate him-is yet another adverse action. The Court disagrees. With respect to the retaliation claim, just as a notice of a proposed penalty is not an adverse action, all the more so the failure to dismiss a notice at a particular time is not an adverse action. Indeed, “[a] long line of cases from this Circuit and others have held that threats, revoked disciplinary plans, and other such ultimately unconsummated actions are not materially adverse for purposes of retaliation claims.” McNair v. D.C., 903 F.Supp.2d 71, 75-76 (D.D.C.2012) (citing cases); see also Baloch v. Kempthorne, 550 F.3d at 1199 (proposed suspension not material adverse action). So, too, with respect to the discrimination claim. Plaintiff has identified no tangible negative effects caused by the failure to dismiss the notice between June 2011 and January 2012. Therefore, the failure to dismiss a notice of proposed removal at the particular time desired by Plaintiff is not the sort of “significant change in employment status, such as hiring, firing, failing to promote, reassignment Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 67 of 71 Jones v. Castro, --- F.Supp.3d ---- (2016) 2016 WL 777917 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 14 with significantly different responsibilities, or a decision causing significant change in benefits,” that qualifies as an adverse employment action. Douglas, 559 F.3d at 552. * * * In sum, the Court agrees with Defendant that none of the purported bases for Plaintiff's claims other than the five-day suspension and reassignment constitute adverse actions under the respective standards for discrimination and retaliation claims. The Court next briefly addresses Defendant's argument regarding the exhaustion of administrative remedies. B. Administrative Exhaustion Defendant's arguments with respect to exhaustion cover the same actions as the arguments regarding qualifying adverse actions. That is, Defendant argues that Plaintiff has not timely exhausted his administrative remedies with respect to any purported adverse actions other than the five-day suspension and reassignment. Defendant does not dispute that the claims with respect to the suspension and reassignment were properly exhausted. Because the Court concluded above that the only qualifying adverse action is the January 24, 2012, suspension and reassignment, the Court need not consider further the parties' arguments regarding the exhaustion of administrative remedies. The Court, therefore, proceeds to consider Defendant's final argument-that the Complaint fails to state a claim under which relief may be granted with respect to the five-day suspension and reassignment. C. Failure to State a Claim *10 The Court now addresses Defendant's argument that, even with respect to the five-day suspension and subsequent reassignment, the Complaint fails to state a claim upon which relief may be granted. The Court turns first to the retaliation claim and then to the discrimination claims. 1. Retaliation [24] [25] As described above, “[t]o prove unlawful retaliation, a plaintiff must show: (1) that he opposed a practice made unlawful by Title VII; (2) that the employer took a materially adverse action against him; and (3) that the employer took the action 'because' the employee opposed the practice.” McGrath, 666 F.3d at 1380. More specifically, a Title VII retaliation claims “requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” Univ. of Texas Sw. Med. Ctr. v. Nassar, --- U.S. ----, 133 S.Ct. 2517, 2533, 186 L.Ed.2d 503 (2013). At this early stage of the litigation, the Court must consider the well-pleaded factual allegations in the complaint, “assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. While a plaintiff “is not required to plead every fact necessary to establish a prima facie case to survive a motion to dismiss,” or a motion for judgment on the pleadings, the complaint must nonetheless meet the plausibility standard. Jones v. Air Line Pilots Ass'n, Int'l, 642 F.3d 1100, 1104 (D.C.Cir.2011) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002)). Upon assessing the parties' arguments, the Court concludes that the complaint has not stated a plausible retaliation claim because of the timing of the events that culminated in the only qualifying adverse action in this case. [26] Because the sequence of events is critical to evaluating Plaintiff's retaliation claim, a review of those events is helpful: • On June 16, 2010, Plaintiff was placed on paid administrative leave by Michelle Cottom, deputy director of ODEEO, and Cottom referred the case to HUD's Office of Inspector General for investigation. Compl. ¶¶ 42, 50-51. • Through a written notice dated January 6, 2011, Cottom proposed to terminate Plaintiff's employment at HUD. Id. ¶ 55-56. • On January 31, 2011, Plaintiff engaged in protected EEO activity through his written reply to the termination proposal. Id. ¶ 114. • On March 29, 2011, Plaintiff again engaged in protected EEO activity in his first oral reply to termination proposal. Id. ¶ 115. • On October 11, 2011, Plaintiff engaged in protected EEO activity in his second oral reply to the termination proposal. Id. ¶ 116. • HUD issued the decision of Hoban-Moore, dated January 24, 2012, which rejected the proposal Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 68 of 71 Jones v. Castro, --- F.Supp.3d ---- (2016) 2016 WL 777917 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 15 to terminate Plaintiff's employment and, instead, suspended him for five days and then reassigned him to another position. Id. ¶ 86. In short, HUD initiated an investigation into Plaintiff's conduct, then proposed to terminate his employment, then Plaintiff engaged in protected activity, and ultimately HUD decided to impose a five-day suspension and reassignment. This sequence of events does not allow a plausible inference that retaliation for Plaintiff's protected activity was the but-for cause of the ultimate adverse action. Before Plaintiff engaged in the protected activity, the agency had already notified Plaintiff of its intent terminate his employment. See id. ¶¶ 55-56, 86. Indeed, it was that notice that led to the protected activity through which Plaintiff claimed that the proposed termination and the associated investigation were discriminatory. See id. ¶¶ 66, 73, 114-16. *11 [27] With respect to the timeline, Plaintiff only states that the temporal proximity between his protected activity and the materially adverse action is evidence of retaliation. However, it appears that Plaintiff is only claiming temporal proximity between the decision to keep him on administrative leave and his protected activity. See Pl.'s Opp'n at 23. But the Court determined above that Plaintiff's placement on administrative leave itself does not constitute an adverse action. Nowhere does Plaintiff claim temporal proximity between his protected activity and the only qualifying adverse action-the January 24, 2012, decision to suspend Plaintiff for five days and to reassign him. Indeed, such a claim would fail because of the length of time that elapsed between the activity and the adverse action. Plaintiff's protected activity occurred on January 31, 2011; March 29, 2011; and October 11, 2011, but the sole qualifying adverse action did not occur until January 24 of the following year. No inference of causation is possible where it was more than three months between his final protected activity and the adverse action-and almost a year between Plaintiff's initial protected activity and the adverse action. See Woodruff v. Peters, 482 F.3d 521, 529 (D.C.Cir.2007) (“Temporal proximity can indeed support an inference of causation, but only where the two events are “very close” in time”) (citations omitted); Hamilton v. Geithner, 666 F.3d at 1357-58 (“Although the Supreme Court has cited circuit decisions suggesting that in some instances a three-month period between the protected activity and the adverse employment action may, standing alone, be too lengthy to raise an inference of causation, neither the Supreme Court nor this court has established a bright- line three-month rule. Instead, we have evaluated the specific facts of each case to determine whether inferring causation is appropriate.”). Notably, in the single case on which Plaintiff relies for his argument regarding temporal proximity, the protected action was only two days before the adverse action. See Coleman v. D.C., 794 F.3d 49, 62 (D.C.Cir.2015). This case is far different given the length of time between the protected activity and the adverse action-and given that the process that ultimately led to the termination began before the protected activity occurred. Therefore, the Court concludes that there is no temporal proximity in this case. Indeed, not only does the sequence of events fail to show temporal proximity between the alleged protected activity and the alleged adverse action, that sequence of events makes any inference of causation implausible. As stated above, the notice of proposed removal and the associated period of investigation began prior to any protected activity by Plaintiff. After that period of administrative leave and investigation, the agency ultimately decided to impose a five-day suspension and to reassign Plaintiff to another position within the agency. Given this sequence of events, it is simply implausible to conclude that retaliation for Plaintiff's protected activity was the but-for cause of the ultimate adverse action. [28] Nor do Plaintiff's other arguments regarding causation undermine this conclusion. Insofar as “circumstantial evidence of a 'pattern of antagonism' following the protected conduct can also give rise to the inference” of causation, Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir.1997), Plaintiff has not adequately alleged such a sequence of events. Once again, it is critical that the period of administrative leave and the investigation, which ultimately led to Plaintiff's suspension and reassignment, began before the alleged protected activity. Plaintiff also argues that an inference of causation is supported by his allegation that a representative of HUD's human resources department provided him false information regarding retirement in an attempt to coerce him to retire. See Pl.'s Opp'n (citing Compl. ¶¶ 75-81). While Plaintiff relies on Aka v. Washington Hosp. Center, 156 F.3d 1284 (D.C.Cir.1988), for this proposition, Aka is readily distinguishable. In Aka, the D.C. Circuit Court of Appeals held that, if the evidence allows an inference that an employer's explanation for the adverse action itself was a lie “that Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 69 of 71 Jones v. Castro, --- F.Supp.3d ---- (2016) 2016 WL 777917 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 16 should provide even stronger evidence of discrimination.” Id. at 1293. In this case, however, the information that Plaintiff alleges is false does not pertain to an explanation of the adverse action. Moreover, Plaintiff maintains that this false information was provided by a human resources specialist, not by the Hoban- Moore, the decisionmaker. Accordingly, the allegations regarding the retirement information provided by human resources do not support an inference of causation. Finally, the other cases on which Plaintiffs rely similarly do not speak to the issue at hand, let alone suggest an inference of causation in these circumstances. 7 See Morris v. Washington Metro. Area Transit Auth., 702 F.2d 1037, 1046 (D.C.Cir.1983) (resolving evidentiary question under no-longer applicable standard); Lathram v. Snow, 336 F.3d 1085, 1093 (D.C.Cir.2003) (holding that “an unexplained inconsistency can justify an inference of discriminatory motive”). *12 For all of these reasons, the Court concludes that Plaintiff has not plausibly alleged that retaliation for his protected activity was the but-for cause of his suspension and reassignment, and Plaintiff's retaliation claim must be dismissed even at this preliminary stage of these proceedings. 8 2. Discrimination Claims [29] The Court finally turns to Plaintiff's three discrimination claims-on the basis of race, on the basis of sex, and on the basis of race plus sex. Defendant argues that Plaintiff has not plausibly alleged a discrimination claim on any of these bases. Plaintiff responds that the allegations in the Complaint support plausible discrimination claims, citing to allegations about Michelle Cottom (on the basis of a “cat's paw” theory) and to other circumstantial allegations of discrimination. See Pl.'s Opp'n at 22-24 (citing Compl. ¶¶ 43-47, 57, 68, 75-81). The Court agrees with Plaintiff that the allegations are enough to clear the “relatively low hurdle” for surviving a motion for judgment on the pleadings with respect to a discrimination claim. Terveer v. Billington, 34 F.Supp.3d 100, 116 (D.D.C.2014) (citing cases). Accordingly, the Court denies the motion for judgment on the pleadings with respect to the discrimination claims insofar as they are based on Plaintiff's five-day suspension and reassignment. IV. CONCLUSION and ORDER For the foregoing reasons, it is hereby ORDERED that Defendant's [10] Motion for Judgment on the Pleadings is GRANTED IN PART and DENIED IN PART. That motion is GRANTED with respect to the retaliation claim (count IV). With respect to the discrimination claims (counts I, II and III), the motion is GRANTED insofar as those claims are based on purported adverse actions other than the five-day suspension and reassignment and is DENIED insofar as it is based on the five-day suspension and reassignment. As Defendant has already filed an Answer to the Complaint, the Court will set a date for an Initial Scheduling Conference by a separate Order. All Citations --- F.Supp.3d ----, 2016 WL 777917 Footnotes 1 The motion is styled as a “Motion for Judgment on the Pleadings and, Alternatively, for Summary Judgment.” As described further below, the Court denied without prejudice Defendant's motion for summary judgment in light of Plaintiff's request for discovery. The Court resolves only the motion for judgment on the pleadings today. 2 The Court's consideration has focused on the following documents: • Pl.'s Complaint (“Compl.”), ECF No. 1; • Defs.' Motion for Judgment on the Pleadings and, Alternatively, for Summary Judgment (“Defs.' Mot.”), ECF No. 10; • Pl.'s Mem. of Points and Auth. in Support of Pl.'s Opposition to Def.'s Motion for Judgment on the Pleadings (“Pl.'s Opp'n”), ECF No. 19; and • Defs.' Reply in Support of Def.'s Motion for Judgment on the Pleadings (“Defs.' Reply”), ECF No. 20. In an exercise of its discretion, the Court finds that holding oral argument in this action would not be of assistance in rendering a decision. See LCvR 7(f). Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 70 of 71 Jones v. Castro, --- F.Supp.3d ---- (2016) 2016 WL 777917 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 17 3 The Court notes that, somewhat inexplicably, Plaintiff only lists the first two sets of actions as the adverse employment actions that are the basis for his race discrimination claim. See id. ¶ 108. But that distinction is of no consequence given the Court's conclusions below. 4 The decision of the D.C. Circuit Court of Appeals in Velikonja v. Gonzales, 466 F.3d 122 (D.C.Cir.2006), is not to the contrary. In Velikonja, the Court of Appeals did not determine whether an investigation itself could constitute an adverse action. Id. at 124. The Court of Appeals simply determined that the complaint stated a claim for discrimination because it alleged that the plaintiff was referred for the investigation in order to prevent that person from receiving promotions. Id. There are no such allegations in the case before this Court. 5 The Court separately considers below the argument that the failure to dismiss the notice of proposed removal was an adverse action. 6 The Court notes that Plaintiff never responds to Defendant's arguments regarding this purported adverse action. See Def.'s Reply at 17 n.7; see Pl.'s Opp'n at 25-27. While the Court could simply consider these arguments conceded, the Court considers Defendant's arguments on their merits. 7 Plaintiff never explains his claim that HUD's actions were inconsistent with its general procedures for handling such issues. Nor are allegations supporting this claim contained anywhere in the complaint. Plaintiff's statement in his Opposition that it was “irregular” to assign the disciplinary proceedings to three different officials in sequence-which it may or may not be-is not enough. Nor are the allegations in the Complaint that HUD did not immediately terminate the investigation after two different officials, in sequence, determined that they would not terminate Plaintiff's employment. Compl. ¶ 66, 74. 8 The Court notes that it does not appear that Plaintiff is presenting a “cat's paw” argument with respect to his retaliation claim. See Pl's Opp'n at 21-24 (referring to Cottom's alleged discriminatory motives in the context of discrimination analysis). Nor does Plaintiff explain how discriminatory animus by Cottom could be transformed into a retaliatory adverse action by the ultimate agency decisionmaker-which would be necessary to prevail on the retaliation claim on that basis. End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 1:16-cv-00743-SHR Document 20-1 Filed 08/08/16 Page 71 of 71 CERTIFICATE OF SERVICE I hereby certify that, on August 8, 2016, I electronically filed the foregoing document using the CM/ECF system, and that I served the same by electronic filing via ECF, pursuant to the administrative procedures of the United States District Court for the Middle District of Pennsylvania governing the filing and service by electronic means, upon the following: Christine E. Burke, Esquire Ari R. Karpf, Esquire Karpf, Karpf & Cerutti, P.C. 3331 Street Road Two Greenwood Square, Suite 128 Bensalem, PA 19020 Counsel for Plaintiff /s/ Casey A. Coyle Case 1:16-cv-00743-SHR Document 20-2 Filed 08/08/16 Page 1 of 1