United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
the Court is defendant St. Joseph's/Candler Health
System, Inc.'s (St. Joseph's) dispositive motion,
plead alternatively as a motion to dismiss for failure to
state a claim or for summary judgment. Doc. 12. Plaintiff
Lakesha Smith opposes. Doc. 15. St. Joseph's has also
requested to stay discovery in this case pending resolution
of its dispositive motion. Doc. 23.
relevant facts of this case are straightforward. Smith fell
while working for St. Joseph's in March 2014. Doc. 5 at
Her treating physicians approved her to return to work in
April 2014. Id. She continued to experience
symptoms, however, and elected to take additional leave
provided under the Family and Medical Leave Act
(“FMLA”). Id. at 1-2. On July 3, 2014,
her supervisor called her and, after discussing her medical
situation, informed her of her termination. Id. at
2. She received confirmation of her termination by letter on
July 11, 2017. Id. She contends that this
termination occurred “during FMLA leave” and
constitutes retaliation. See doc. 1 at 3-4; see
also doc. 15 at 8 (disputing, albeit implicitly, St.
Joseph's assertion that Smith “was not terminated
Joseph's argues, among other defects, that Smith's
claim is time barred. See doc. 12-1 at 10-13. This
Court's previous Order, authorizing service of the
Complaint, noted the possible timeliness issue. See
doc. 6 at 6, n.1. The Court explained the applicable legal
principles as follows:
FMLA actions generally have a two-year statute of
limitations, unless a plaintiff establishes that a
defendant's violation was willful (in which case, the
action must be brought within three years). 29 U.S.C. §
2617(c). . . . The term “willful” is not defined
in the FMLA, but in other contexts is found where the
employer “knew or showed reckless disregard for the
matter of whether its conduct was prohibited by the
statute.” McLaughlin v. Richland Shoe Co., 486
U.S. 128, 133 (1988) (discussing “willfulness” in
the Fair Labor Standards Act (FLSA) context); Liu v.
Univ. of Miami, 138 F.Supp.3d 1360, 1374 (S.D. Fla.
2015) (because the FMLA and the FLSA use the term willful in
nearly identical contexts, McLaughlin's
definition of willful for FLSA purposes is usually adopted in
FMLA cases). “If an employer acts unreasonably, but not
recklessly, in determining its legal obligation, then . . .
[its actions] should not be . . . considered
[willful].” McLaughlin, 486 U.S. at 135 n. 13.
Court construed plaintiff's Complaint to allege that she
was terminated during the period of leave provided
by the FMLA. Id. (“Plaintiff has alleged that
despite still being on FMLA leave, she was
terminated . . ., which is enough (at this stage of
pleadings) to warrant a response from the defense.”
(emphasis added)); see also Id. at 3 (noting that
leave from “May 2014 through July 2014 . . . [was] not
quite the [FMLA] guaranteed 12 weeks.”). St.
Joseph's now responds that, on the contrary, when Smith
was terminated she had exhausted her FMLA leave. Doc. 12-1 at
one hand, plaintiff clearly alleges she was terminated
“during FMLA leave.” Doc. 1 at 3. Her amendment,
however, incorporates a St. Joseph's “Leave of
Absence Request Form” dated, ambiguously, May 19 (the
date Smith signed the form) or 20 (the date her supervisor
signed the form), 2014. Doc. 5-2 at 1. That form indicates
that, as of its date, Smith had “240 FMLA hours
available.” Id. Her Amended Complaint also
attaches a similar form listing the “effective
dates” of her leave as beginning March 28, 2014. Doc.
5-1 at 1. The notation on the second form, St. Joseph's
explains, indicated that she did not have twelve weeks of
leave at twenty hours per week but rather eight weeks of
leave at thirty hours per week. See doc. 12-1 at 6.
Significantly, the correlation between the
“weeks” of leave available and the “hours,
” resting on the number of hours per week Smith was
employed to work, is not apparent on the face of either her
pleadings or any documents attached to them. See,
generally, doc. 5.
Joseph's points out, a “willful” FMLA
violation is distinguished not by the willfulness of the
adverse employment action, but by the willfulness of the
violation itself. See doc. 12-1 at 10 (citing
Liu v. Univ. of Miami, Sch. of Med., 138 F.Supp.3d
1360, 1374 (S.D. Fla. 2015)). That is, an employer must take
an action despite recognizing that it violates the
FMLA or with reckless disregard for whether it does. If an
employer is merely negligent (by miscalculating an
employee's remaining statutorily-required leave, for
example) the shorter limitations period applies.
allegations are sufficient, as the Court previously
noted. St. Joseph's points out that, despite the
Court's emphasis on the timeliness question in its
initial screening Order, “the word ‘willful'
does not appear” in the Amended Complaint. Id.
at 11. That's true. See doc. 5. However, the
Court construed her allegations to imply that she was
terminated before she had exhausted her FMLA leave.
Doc. 6 at 3-4. Termination of an employee for absence, while
they are on approved FMLA leave, is sufficient to imply a
willful violation. See, e.g., Villalobos v. Vilsack,
2012 WL 4674056, at * 11 (N.D. Cal. Oct. 1, 2012)
(“Crediting Plaintiff's allegations that he took
leave on or about June 10, 2010, and that the Agency
terminated him shortly thereafter and while still on leave, a
rational jury could determine that the Agency ‘showed
reckless disregard' for whether its conduct was
prohibited by the FMLA. (citations omitted)). St.
Joseph's motion to dismiss, therefore, should be
though it appears Smith adequately plead her claim, St.
Joseph's is entitled to summary judgment because she has
not adequately supported her (implicit) willfulness
allegation. Courts have recognized that plaintiffs are
“required to demonstrate willfulness to avoid
summary judgment where [they] are bringing FMLA claims based
on conduct greater than two years after the alleged conduct
occurred.” Copeland v. Metro Atlanta Rapid Transit
Auth., 2010 WL 11500065, at *7 (N.D.Ga. Oct. 8, 2010)
(emphasis added) (collecting cases); see also Honeycutt
v. Baltimore Cnty., Md., 278 Fed.Appx. 292, 292-93 (4th
Cir. 2008) (affirming summary judgment “[b]ecause [the
plaintiff] filed her complaint more than two years after her
termination, [thus] the action [was] barred unless the record
demonstrated a willful violation by the Employer.”).
Regardless of the adequacy of her pleading, Smith has not
presented sufficient evidence to support a dispute of
material fact that her termination constituted a willful
violation of the FMLA.
judgment is properly granted when “the movant shows
that there is no genuine dispute as to any material fact and
[he] is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A factual dispute is
“‘genuine' . . . if the evidence is such that
a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 24 (1986). Substantively, a factual dispute is
“material” if it concerns “facts that might
affect the outcome of the suit under the governing law . . .
.” Anderson, 477 U.S. at 248. In response to a
properly supported summary judgment motion, “the
plaintiff must present affirmative evidence”
sufficient for a jury to return a verdict in her favor.
Id. at 257 (emphasis added).
support of its alternative Motion for Summary Judgement, St.
Joseph's has submitted the declaration of Stacey Brown,
one of its Human Resources employees. Doc. 12-3 at 1, ¶
1. Brown states, based on her review of St. Joseph's
records, that Smith's FMLA leave was exhausted on June
27, 2014. Id. at 3, ¶ 12. Smith did not return
to work, despite exhausting her leave. Id. at 3,
¶ 13. Because of her absence, St. Joseph's
terminated her employment. Id. at 3, ¶ 14.
There is no dispute that Smith's employment was
terminated no earlier than July 3, 2014. See doc. 5
at 2 (alleging that her supervisor notified her by phone that
she was terminated on July 3, 2014); doc. 12-2 at 3,
¶¶ 5-6 (acknowledging facts concerning July 3rd
call not disputed and acknowledging formal termination by
letter, July 11, 2014). Even if St. Joseph's
miscalculated when her leave expired, such a mistake would
not raise the inference of willfulness Smith needs in order
to avoid the statute of limitations.
response to those allegations is largely speculative.
See doc. 15 at 7. She “question[s] the
integrity of the process” by which the extent of her
FMLA leave was calculated. Id. She also suggests
that the “FMLA paperwork given is very contradictory,
” and those inconsistencies indicate the documents were
“falsif[ied].” Id. That's not
enough. In the first place, the documents she asserts are
contradictory are (apparently) documents she
attached to her Amended Complaint. Compare doc.
15 at 7 (identifying “contradiction” between
notation on “Exhibit A” that injury at issue was
“on the job” to notation on “Exhibit
B” that injury was “personal”),
with doc. 5-1 (“Exhibit A” to
Smith's Amended Complaint requesting leave for
“[w]ork related injury”), and doc. 5-2
(“Exhibit B” to Smith's Amended Complaint
requesting leave for “[e]mployee illness/injury
preventing functions of normal duties”), and
doc. 12 (defendant's motion identifying exhibits by
number, not letter). Even assuming that Smith intended to
question the authenticity of documents other than those
she submitted herself, her raising
“questions” is insufficient to rebut the facts
presented in Brown's sworn declaration. See, e.g.
Matsushita Elec. Indus. Co., Ltd. V. Zenith Radio Corp.,
475 U.S. 574, 586 (1986) (when summary-judgment movant has
pierced the pleadings, “its opponent must do more than
simply show that there is some metaphysical doubt as to the
material facts.”). Smith has presented nothing
affirmatively showing (or indeed even suggesting) a willful
violation of the FMLA.
Smith's only response is to suggest that St. Joseph's
miscalculated the dates of her leave. She notes that her
“leave was approved on May 2, 2014.” Doc. 15 at
8. She objects to St. Joseph's “count[ing] back the
dates prior, ” id., presumably the dates she
concedes she was absent from work in March and April, 2014.
She also objects that “[t]he week of April 14, 2014
cannot be counted [against her FMLA leave] because [she] was
paid for working that week . . . .” Id. Even
assuming that the doubt's Smith ...