Jury to decide FMLA claims

Where there was a material factual dispute about when plaintiff was supposed to return to work and the reason for her ultimate termination, her claim for discrimination and retaliation under the Family and Medical Leave Act, or FMLA, will be decided by a jury.

Background

Janet Ogden Price’s complaint alleges nine counts of discrimination and retaliation. After defendant moved for summary judgment, the magistrate judge filed a report and recommendation, or R&R, recommending that only two of plaintiff’s claims survive defendant’s motion. Both parties filed objections to the R&R.

Material undisputed facts

Plaintiff filed multiple objections to the undisputed material facts. With the exception of modifying a sentence in the R&R to reflect that plaintiff claims to have made reports to HR and her immediate supervisor, the court otherwise overrules each of plaintiff’s objections.

Count One

Plaintiff objects because the magistrate judge did not analyze her FMLA retaliation claim within the context of her termination. The court agrees with plaintiff that her termination was a separate employment decision and should have been addressed in the R&R. Accordingly, the court sustains plaintiff’s objection.

Defendant nevertheless argues that plaintiff’s FMLA discrimination and retaliation claim “fails as a matter of law because even though Plaintiff’s position was eliminated, the record reflects that if she were to return from her continuous FMLA leave, an alternate position would have been available to her.” The court finds that there is a material factual dispute about when plaintiff was supposed to return to work, and relatedly, the reason for her ultimate termination.

Further defendant has not provided clear evidence of what exactly plaintiff’s position would have been had she returned before her termination, or even confirmed that her level of responsibility, promotion eligibility etc. would remain unchanged. This court overrules defendant’s objection as it relates to Count One.

Count Three

The court overrules plaintiff’s objection to the magistrate judge’s assessments on plaintiff’s essential functions and his finding that plaintiff failed to establish a prima facie ADA discrimination claim. Next, although the magistrate judge did not address the ADA retaliation claim in the specific context of plaintiff’s termination, plaintiff’s objection to the R&R on this point is moot because plaintiff did not demonstrate that she has a prima facie case, and therefore fails the first factor of the McDonnell Douglas framework.

Plaintiff also argues the R&R failed “to analyze her ADA discrimination claim within the context of Plaintiff’s termination.” There is significant uncertainty regarding when plaintiff was supposed to come back to work, which this court views as pertinent to this claim. Furthermore, the record demonstrates inconsistent reasons as to why plaintiff was terminated. Accordingly, the court sustains plaintiff’s objection. Additional factfinding by the jury is needed.

Count Four

This court agrees that there remains a genuine dispute of material fact as to whether the accommodation was reasonable, as well as whether there was an “interactive dialogue” between the parties regarding the accommodation. The court thus overrules defendant’s objection to the magistrate judge’s recommendation to deny defendant’s motion for summary judgment as it relates to Count Four.

Count Six

Plaintiff argues that there is “[e]vidence of pretext.” In her objection, plaintiff restates much of what she has already argued, and what the magistrate judge has considered in great length. The court overrules plaintiff’s objection to the R&R which found no evidence of pretext.

Count Seven

Plaintiff argues that the magistrate judge incorrectly found that she failed to establish that she engaged in “protected activity.” Next, she argues that, contrary to the R&R findings, she has established a causal link between her allegedly protected activity and her termination. The court overrules both of plaintiff’s objections.

Count Eight

Plaintiff makes three objections to the magistrate judge’s recommendation on plaintiff’s age discrimination claim: (1) the magistrate judge applied the incorrect legal standard; (2) the magistrate judge erred when he found plaintiff failed to establish a prima facie case; and (3) the magistrate judge refused to consider the evidence of other women who testified to their personal experiences regarding age discrimination. The court finds that the plaintiff is factually or legally wrong and overrules her objections.

Count Nine

Contrary to plaintiff’s objection, the magistrate judge did not hold that intersectional discrimination does not exist; rather the magistrate judge held that there is “no statutory authority or case authority from the Fourth Circuit” that binds this court. Plaintiff also fails to identify any support to the contrary.

Lastly, plaintiff “objects to the [magistrate judge’s] finding that questions of fact do not exist concerning intersectional discrimination.” Not only is this a conclusory objection, but plaintiff has also failed to demonstrate to the court with any specificity how she has been discriminated against because of a combination of multiple protected characteristics.

Defendant’s amended motion for summary judgment granted in part, denied in part.

Price v. Norfolk Southern Corporation, Case No. 2:21-cv-223, Sept. 23, 2022. EDVA at Norfolk (Smith). VLW 022-3-431. 31 pp.