Employment: Jury to decide if commonwealth’s attorney violated man’s FMLA rights

Where a former assistant commonwealth’s attorney in the city of Martinsville alleged his supervisor violated his rights under the Family and Medical Leave Act when he terminated the plaintiff for falsifying a record in connection with a leave request, and there were factual disputes about whether the purported dishonesty “truly was the reason for the plaintiff’s termination” or whether it was a pretext to avoid granting requested FMLA leave, a jury will decide these issues.

Background

Daniel Mook was employed as an Assistant Commonwealth’s Attorney in the City of Martinsville from April 3, 2018, until Nov. 18, 2021. Throughout that time, G. Andrew Hall—the Commonwealth’s Attorney for the City of Martinsville—was Mook’s supervisor. On Nov. 18, 2021, Hall terminated Mook after accusing him of “falsifying” a record in connection with a request for Family Medical Leave Act, or FMLA, leave.

Mook filed suit against Hall and the City of Martinsville, alleging FMLA interference. Hall has filed a motion for summary judgment.

Employer

Hall first argues that his office is not an employer within the meaning of the FMLA. Public agencies are relevantly defined to include “the government of a State or political subdivision thereof” and “any agency of . . . a political subdivision of a State.”

By statute, the Commonwealth’s Attorney is “part of the department of law enforcement of the county or city in which he is elected or appointed.” As a matter of common sense, a city’s “department of law enforcement” and its constituent parts are agencies of that city just as the Department of Justice and the agencies within it are agencies of the United States federal government. The court therefore concludes that Hall is an employer within the meaning of the FMLA.

Merits

Hall argues that, as a matter of law, contacting Mook’s mother’s medical provider was not an FMLA violation because the applicable regulations do not require employers to give employees notice and an opportunity to cure certification forms when they are authenticating—as opposed to clarifying—submitted forms. That is the same argument Hall made—and this court rejected—at the motion to dismiss stage.

Hall next argues that he did not violate the curing provision because compliance was not practicable under the circumstances. Hall does not explain why Mook could not have gone back to his mother’s medical provider and asked them to fill the certification form out again within the seven-day curing window. Instead, Hall argues that the certification is “incurable” because Mook improperly filled it out himself.

In its opinion at the motion to dismiss stage, this court held that the notice and curing requirements in § 825.305(c) apply where the alleged deficiency concerns who filled out the certification. And the court expressly stated that Mook filling out Section III of the certification form “would have been easy to cure, had [Hall] given Mook the opportunity.” Hall’s argument is merely an effort to relitigate issues the court already decided.

Hall also argues that even if he was required to notify Mook and give him the opportunity to cure the certification form, Mook’s claim still fails because the certification was fraudulent. To the extent that Hall argues that he was not required to give Mook notice and an opportunity to cure, Hall’s argument is contrary to the court’s prior ruling. To the extent that Hall argues that Mook cannot obtain relief because the certification was in fact fraudulent, that fact is vigorously disputed.

Hall also points to the certification form Mook submitted on November 22 as evidence of fraud. Even if the record were undisputed that the second form is fraudulent—which it is not—the court is hard pressed to see how a form submitted after Mook’s termination can retroactively justify the termination or Hall’s conduct leading up to it. Any purported fraud relating to the second form does not obviate the factual dispute concerning whether Mook’s efforts to seek FMLA leave using the first form were fraudulent, which remains for the jury to resolve.

The circumstances raise a factual question about whether Mook’s purported dishonesty “truly was the reason for the plaintiff’s termination,” or whether it was a pretext to avoid granting Mook’s requested FMLA leave. The court, therefore, holds that genuine disputes of material fact preclude granting summary judgment to Hall in this case.

Qualified immunity

Because the regulation is clear, Hall cannot escape liability on the basis that there is no caselaw applying this particular regulation to a public official under these circumstances. Therefore, the court concludes that Hall is not entitled to qualified immunity.

Defendant’s motion for summary judgment denied.

Mook v. City of Martinsville, Case No. 4:23-cv-00028, June 5, 2025. WDVA at Danville (Cullen). VLW 025-3-230. 16 pp.