225 F. Supp.2d 67 (2002) | Cited 0 times | D. Maine | September 30, 2002


The United States Magistrate Judge filed with the court on August 20,2002, with copies to counsel, his Recommended Decision on Defendants'Motion for Summary Judgment. The plaintiff filed an objection to theRecommended Decision on September 9, 2002. I have reviewed and consideredthe Recommended Decision, together with the entire record; I have made ade novo determination of all matters adjudicated by the RecommendedDecision; and I concur with the recommendations of the United StatesMagistrate Judge for the reasons set forth in his Recommended Decision,and determine that no further proceeding is necessary.

It is therefore ORDERED that the Recommended Decision of the MagistrateJudge is hereby ADOPTED. The defendants' motion for summary judgment isGRANTED with respect to defendant Bourque as to all claims against him;GRANTED with respect to the remaining defendants as to Count II and thatportion of Count III alleging retaliatory job termination; and otherwiseDENIED.



Defendants Cyro Industries ("Cyro"), William Bourque, Floyd Phillips,Drew Scott and Mike Blokland (collectively, "Defendants") move forsummary judgment as to all claims against them in this action allegingviolations of the Family and Medical Leave Act ("FMLA"),29 U.S.C. § 2601, et seq., and its state-law counterpart, the MaineFamily Medical Leave Requirements law ("MFMLR"), 26 M.R.S.A. § 843,et seq. Defendants' Motion for Summary Judgment, etc. ("Defendants'Motion") (Docket No. 7) at 1-2; Complaint and Demand for Jury Trial("Complaint") (Docket No. 1) ¶ 1. For the reasons that follow, Irecommend that the Defendants' Motion be granted with respect to Bourqueas to all claims against him, granted with respect to the remainingdefendants as to Count II and that portion of Count III allegingretaliatory job termination, and otherwise denied.

I. Summary Judgment Standards

Summary judgment is appropriate only if the record shows "that there isno genuine issue as to any material fact and that the moving party isentitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). "Inthis regard, `material' means that a contested fact has the potential tochange the outcome of the suit under the governing law if the disputeover it is resolved favorably to the nonmovant. By like token, `genuine'means that `the evidence about the fact is such that a reasonable jurycould resolve the point in favor of the nonmoving party.'" Navarro v.Pfizer Corp., 261 F.3d 90, 93-94 (1st Cir. 2001) (quoting McCarthy v.Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995)).

The party moving for summary judgment must demonstrate an absence ofevidence to support the nonmoving party's case. Celotex Corp. v.Catrett, 477 U.S. 317, 325 (1986). In determining whether this burden ismet, the court must view the record in the light most favorable to thenonmoving party and give that party the benefit of all reasonableinferences in its favor. Nicolo v. Philip Morris, Inc., 201 F.3d 29, 33(1st Cir. 2000). Once the moving party has made a preliminary showingthat no genuine issue of material fact exists, the nonmovant must"produce specific facts, in suitable evidentiary form, to establish thepresence of a trialworthy issue." Triangle Trading Co. v. Robroy Indus.,Inc., 200 F.3d 1, 2 (1st Cir. 1999) (citation and internal punctuationomitted); Fed.R.Civ.P. 56(e). "As to any essential factual element of itsclaim on which the nonmovant would bear the burden of proof at trial, itsfailure to come forward with sufficient evidence to generate atrialworthy issue warrants summary judgment to the moving party." In reSpigel, 260 F.3d 27, 31 (1st Cir. 2001) (citation and internal punctuationomitted).

II. Factual Context

The parties' statements of material facts, credited to the extenteither admitted or supported by record citations in accordance with LocalRule 56, reveal the following relevant to this recommended decision:

Cyro operates a manufacturing plant in Sanford, Maine that manufacturesplastic products using cell-cast and extrusion processes. Defendants'Statement of Material Facts Not in Dispute ("Defendants' SMF") (DocketNo. 8) ¶ 1; Plaintiff's Opposition to Defendants' Statement ofMaterial Facts and Plaintiffs' [sic] Statement of Material Facts Not inDispute ("Plaintiff's Opposing SMF") (Docket No. 13) ¶ 1.2 TheSanford plant operates 24 hours a day in four shifts, two during the dayand two at night. Id. ¶ 2. Richard Healy is the plant manager of theSanford plant. Id. ¶ 3. There are two manufacturing buildings atCyro. Id. ¶ 4. One manufactures goods using the cell-cast processand the other, the "Giebel Building," manufactures products using theextrusion process. Id. Drew Scott is the building manager of the GiebelBuilding and reports directly to Healy. Id. ¶¶ 5-6. Mike Blokland isthe production superintendent of the GiebelBuilding and reports toScott. Id. ¶¶ 7-8. Floyd Phillips is the human resources manager.Id. ¶ 51.

Craig Brunelle worked for Cyro from 1984 until his termination on March29, 2001. Plaintiff's Additional SMF ¶ 11; Defendants' ReplyStatement of Material Facts ("Defendants' Reply SMF") (Docket No. 16)¶ 11. During the time period relevant to this action, Brunelle workedon "Night Shift 2" from 7 p.m. to 7 a.m. under the supervision of WilliamBourque, who was then a production supervisor. Defendants' SMF ¶14; Plaintiff's Opposing SMF ¶ 14. Brunelle's schedule was Sunday,Tuesday, Friday and Saturday one week and Monday, Wednesday and Thursdaythe next. Id.

In the six-month period prior to March 2001 Brunelle received twowritten warnings. Defendants' SMF ¶ 15; Deposition of Floyd Phillips("Phillips Dep."), filed with Defendants' Motion, at 22-23. On September23, 2000 Brunelle received a written warning for a quality productionissue. Plaintiff's Additional SMF ¶ 14; Defendants' Reply SMF¶ 14. This warning was issued more than six months prior toBrunelle's termination. Id. And on November 5, 2000 Brunelle received awarning for an attendance issue. Defendants' SMF ¶ 15; PhillipsDep. at 19-20; Letter dated November 5, 2000 from William Bourque toCraig Brunelle, marked as Exh. 2 to Phillips Dep., filed with Defendants'Motion. The November 5, 2000 warning for attendance expressly stated,"Furthermore, any more absences before April 4, 2001 will result in aFinal Warning." Plaintiff's Additional SMF ¶ 15; Defendants' ReplySMF ¶ 15.

Brunelle's attendance problems were due, at least in part, to issuessurrounding child care. Defendants' SMF ¶ 17; Plaintiff's OpposingSMF ¶ 17. Bourque worked with Brunelle to make it possible for himto take vacation time, rather than be absent, when child-care issuesarose. Id. ¶ 18. As Bourque explained it, "The supervisor is given alittle leeway as long as we make sure the shift is working properly andwe're making the proper amount of materials we give them a little bit ofleeway. I knew Craig had problems with some of the things that were goingon so I worked with him as much as I could staying within the gray area."Id. Prior to his termination from Cyro, Brunelle had no problems withBourque. Id. ¶ 19.

On January 30, 2001 Brunelle's father, Richard Brunelle, was rushed toMaine Medical Center after being rescued from a serious house fire.Plaintiff's Additional SMF ¶ 1; Defendants' Reply SMF ¶ 1.Richard Brunelle remained hospitalized in the intensive care unit for anumber of months, during which time doctors performed a series ofsurgeries in an attempt to save his life. Id. ¶ 2. His health waxedand waned, and eventually he died from complications related to hisinjuries. Id. ¶ 3. According to Dr. Brad Cushing, Brunelle wasconstantly at his father's bedside throughout this period to makedecisions regarding his father's care. Id. ¶ 4.

Shortly after the accident, Brunelle called Bourque at home to reportwhat had happened. Defendants' SMF ¶ 21; Plaintiff's Opposing SMF¶ 21. Bourque told him to take care of matters with his family andnot to worry about his job. Id. Cyro granted Brunelle family medicalleave to be out of work continuously in February 2001 to attend to hisfather. Plaintiff's Additional SMF ¶ 5; Defendants' Reply SMF¶ 5. Although Cyro granted Brunelle family medical leave, Bourquetold Brunelle he "was concerned with [his] attendance, that [he] hadmissed time[.]" Id. ¶ 6;see also Plaintiff's Opposing SMF ¶23; Deposition of Craig A. Brunelle ("Brunelle Dep."), filed withDefendants' Motion, at 21. In a February 1, 2001 memorandum, Bourquewrote, "I discussed how we would handle the time off with Craig. Hisattendance is not the best and he cannot afford the sick time."Plaintiff's Opposing SMF ¶ 23; E-mail dated February 1, 2001 fromWilliam G. Bourque to Michael H. Blokland and Constance G. Bone, markedas Exh. 6 to Phillips Dep., filed with Defendants' Motion.3

Bourque did not discourage Brunelle from taking FMLA leave and in factwas supportive of Brunelle's situation. Defendants' SMF ¶ 25;Plaintiff's Opposing SMF ¶ 25. Bourque started filling out thepaperwork for Brunelle to take FMLA leave. Id. ¶ 24. Bourque appearedconcerned about Brunelle and his family and did not seem angry that hewas going to be out of work. Id. ¶ 26.

Brunelle's father started to recover in March, and Brunelle thereforedecided that he would return to work unless some medical situationrequired him to be at the hospital. Id. ¶ 29. He reported for workon March 5, 2001, but the plant was closed because of a snowstorm. Id.¶ 30. He was paid for that day and the following day when the plantremained closed. Id. He worked a full shift during the week of March 11,2001. Id. During the following week, he switched shifts with a co-workerso that he could attend a family wedding. Id. ¶ 31. He was thereforescheduled to work on March 21 and 22. Id. ¶ 32. Brunelle worked onWednesday, March 21. Plaintiff's Additional SMF ¶ 16; Defendants'Reply SMF ¶ 16. On March 22, Richard Brunelle's condition worsenedand Brunelle accordingly called in to Cyro to say that he would be at thehospital and would not be at work. Defendants' SMF ¶ 33; Plaintiff'sOpposing SMF ¶ 33. As a result, he was out on FMLA leave that day.Id.

Brunelle attended the wedding on March 24, 2001. Id. ¶ 34. Heworked the next day, March 25, and called Bourque at home. Id. ¶¶35-36. He advised Bourque that his father's doctors would be meeting thenext day to see if his father was well enough to have surgery and thataccordingly he probably would not be in on his next scheduled work day,Wednesday, March 28, 2001. Plaintiff's Additional SMF ¶ 21; BrunelleDep. at 32-33, 35.4 According to Brunelle, Bourque responded, "If I[Brunelle] wasn't there, he [Bourque] would know why." Plaintiff'sAdditional SMF ¶ 22; Brunelle Dep. at 35.5

On Monday, March 26, 2001, Brunelle and his sister, Maxime Gagne, spentthe day at the hospital with their father. Plaintiff's Additional SMF¶ 23; Defendants' Reply SMF ¶ 23. The surgeons determined thatRichard Brunelle was not well enough to have surgery and that they wouldevaluate his condition on a day-by-day basis. Plaintiff's Additional SMF¶ 24; Brunelle Dep. at 37.6 Brunelle spent the day at thehospital on Tuesday, March 27; again, Richard Brunelle's condition didnot permit surgery. Plaintiff's Additional SMF ¶ 25; Brunelle 40; Deposition of Brad M. Cushing, M.D., attached as Exh. 4 toPlaintiffs' [sic] District of Maine Local Rule 26(c) List of Documents("Plaintiff's Documents") (Docket No. 14), at 10-11.7 Brunelle didnot call anyone at Cyro on March 27 to advise that he would not be atwork the following day. Defendants' SMF ¶ 41; Plaintiff's OpposingSMF ¶ 41.

On March 26 and 27, Bourque met with Scott, Blokland, Phillips, ConnieBone and four production-line supervisors to discuss a reduction inforce. Plaintiff's Additional SMF ¶ 26; Defendants' Reply SMF¶ 26. Cyro had determined to eliminate four positions. Id. ¶27. The supervisors ranked each employee; Bourque ranked Brunelle higherthan did Scott, Blokland and Phillips. Id. ¶ 28. Brunelle had thefifth lowest cumulative score and thus was not slated to be displaced.Id. ¶ 29.

At about 7 a.m. on March 28, Brunelle returned to the hospital. Id.¶ 30. Although Brunelle usually drove and picked up his sister, onthis particular date his sister drove because she was in town. Id.¶ 31. At approximately 3:30 p.m. that day, Bourque drove byBrunelle's home and saw his truck parked in the yard. Id. ¶ 32.Bourque wrongly assumed that Brunelle was home. Id. ¶ 33. Brunelleleft the hospital at approximately 5 p.m. on March 28, returned home andthen went to Charlie's OTB, where he met his girlfriend with a group offriends. Id. ¶ 34.8 Brunelle did not go to work because he hadbeen at the hospital and had not slept all day. Id. ¶ 35.9Because Richard Brunelle'scondition had deteriorated, surgery had to bepostponed until April 1, 2001. Id. ¶ 9.10

When Brunelle did not report for work as scheduled, Bourque telephonedhis home at approximately 6:50 p.m. and left a message on the answeringmachine when there was no answer. Plaintiff's Additional SMF ¶ 36;Defendants' Reply SMF ¶ 36. Later that evening, Bourque met withemployees to announce the displacements. Id. ¶ 37. No attempt wasmade to notify Brunelle of the displacement meeting scheduled for theevening of March 28. Id. ¶ 38. Following the meeting, the operatorswho were affected by the displacements were allowed to leave early. Id.¶ 39. Charlie's OTB and Pat's Pizza are in the same building. Id.¶ 40. One of the affected employees, Scott Fournier, saw Brunelle orhis car at Pat's Pizza and telephoned the plant to advise Bourque. Id.¶ 41. Bourque drove to Pat's Pizza, observed Brunelle drinking withseveral individuals, and left without speaking to Brunelle. Id. ¶42. Bourque returned to Cyro at approximately 9 p.m. and informed Scottand Blokland that he had seen Brunelle at Pat's Pizza. Id. ¶ 43.Brunelle got home at approximately 11 p.m. and called the plant inresponse to Bourque's message. Id. ¶ 44. He spoke with backupsupervisor Jim Carlson inasmuch as Bourque had gone home. Id. ¶ 45.Brunelle told Carlson that there were issues with Brunelle's father aboutwhich Bourque knew because he had discussed them with Bourque on Sunday,March 25. Id. ¶ 46. Carlson relayed the message to Bourque atapproximately 11:45 p.m. Id. ¶ 47. Bourque in turn left a voicemailfor Blokland advising that Brunelle had spoken to Carlson. Id. ¶48.

On Thursday, March 29, Scott, Blokland and Phillips met with Healy inHealy's office. Id. ¶ 49. At that meeting, the Cyro supervisorsdiscussed disciplinary options and the fact that Brunelle had two priorwritten warnings. Id. ¶ 50. The supervisors determined to haveBourque contact Brunelle about why he had been absent the previous day.Id. ¶ 51. At that time, Blokland and possibly Scott both were awarebased upon Brunelle's conversation with Carlson the prior evening thatBrunelle's explanation for his absence was that he already had notifiedBourque the prior Sunday that he probably would not be in because of hisfather's condition. Id. ¶ 52.

Bourque spoke with Brunelle at about 2 p.m. on Thursday, March 29. Id.¶ 53. After discussing the displacements, Bourque questioned whyBrunelle had not been at work the previous evening. Plaintiff'sAdditional SMF ¶ 54; E-mail dated March 30, 2001 from William G.Bourque to Floyd C. Phillips, Drew R. Scott and Michael H. Blokland,marked as Exh. 9 to Phillips Dep., filed with Defendants' Motion.Brunelle replied "that he had been at the hospital all day visiting hisfather." Id. According to Brunelle, he also reminded Bourque that he hadtold the supervisor onSunday, March 26, that he probably would not bein. Plaintiff's Additional SMF ¶ 55; Brunelle Dep. at 54.11Following the conversation, Bourque reported its substance to Blokland.Plaintiff's Additional SMF ¶ 56; Defendants' Reply SMF ¶ 56.Blokland relayed its substance to Scott, advising Scott that Brunelle hadbeen at the hospital "late" and was asserting that he had discussed withBourque the prior Sunday that he might not be coming to work onWednesday. Id. ¶ 57. Blokland then initiated a request to terminateBrunelle's employment. Id. ¶ 58.

Under the terms of Cyro's progressive correction action policy, "thethird level of management above the employee being considered fortermination/demotion and the Human Resources Manager, must approve alldischarges of non-exempt employees (including production, maintenance,warehouse workers. . .)." Id. ¶ 59 (emphasis in original). Scott andPhillips, as well as Healy, subsequently approved the termination. Id.¶ 60. Neither Phillips, Scott, Blokland nor Healy bothered to speakwith Brunelle before deciding to terminate him. Plaintiff's AdditionalSMF ¶ 10; Phillips Dep. at 28; Deposition of Drew Scott, filed withDefendants' Motion, at 40. In another instance when an employee deniedwrongdoing, Scott spoke directly with the individual. Plaintiff'sAdditional SMF ¶ 61; Defendants' Reply SMF ¶ 61.

After Brunelle reported to work on March 29, Bourque asked him to comeupstairs. Id. ¶ 62. Blokland, Scott, Phillips and Bourque were allpresent at the meeting. Id. ¶ 63. Blokland informed Brunelle that hewas terminated for failing to call in the night before. Id. ¶ 64.Brunelle told Bourque, "I told you that I wouldn't be there onWednesday." Defendants' Reply SMF ¶ 65; Brunelle Dep. at 52. Bourquemade no response. Plaintiff's Additional SMF ¶ 66; Brunelle Dep. at52.

Following the meeting, on March 30, 2001 Scott prepared a memorandum toPhillips. Plaintiff's Additional SMF ¶ 67; Defendants' Reply SMF¶ 67. The memorandum stated that Brunelle was terminated for "anongoing attendance problem" and reported that although Brunelle claimedthat he was at the hospital "all day" with his father on March 28, infact, unbeknownst to Brunelle, Bourque had observed Brunelle's truck athome Wednesday afternoon and had seen Brunelle at a bar at about 8:30p.m. Id. The memorandum also indicated that Bourque denied that he had anydiscussion with Brunelle the prior Sunday about the fact that Brunellemight not be at work on March 28. Id.

Brunelle's performance was satisfactory but for his failure to appearfor work on March 28. Id. ¶ 68. The March 29, 2001 request fortermination prepared by Blokland and signed by Scott, Phillips and Healydoes not make any reference to the September 23, 2000 written warning forquality issues. Id. ¶ 69. The termination notice only references theprior attendance warning and the March 28, 2001 alleged no-call, no-show.Id. Bourque would have terminated Brunelle but had no authority even tomake such a recommendation. Id. ¶ 70; Bourque Dep. at 84.

Prior to his termination, Brunelle had never before been a no-call,no-show for work. Plaintiff's Additional SMF ¶ 12; Defendants' ReplySMF ¶ 12. Although numerous other employees received notices similarto that received by Brunellein November 2000, not a single individualother than Brunelle was terminated for violation of Cyro's attendancepolicy in the five-year period prior to Brunelle's termination; in allother instances, employees received final written warnings. Id. ¶13.

III. Analysis

In his three-count complaint, Brunelle alleges that the Defendants (i)denied him leave to which he was entitled on March 28, 2001 and (ii)terminated his employment in retaliation for taking family leave inviolation of both the FMLA and the MFMLR. Complaint ¶¶ 19-31.Inasmuch as the parties treat FMLA analysis as dispositive of the meritsof the MFMLR claims, I shall do likewise.12

The FMLA "contains two distinct types of provisions," Hodgens v.General Dynamics Corp., 144 F.3d 151, 159 (1st Cir. 1998), each of whichis implicated by Brunelle's complaint. "First, it creates a series ofsubstantive rights" — including the right of an eligible employeeto take up to twelve weeks a year of unpaid leave, intermittently "whenmedically necessary," to care for a close family member with a "serioushealth condition." Id. This set of rights is "essentially prescriptive,set[ting] substantive floors for conduct by employers, and creatingentitlements for employees." Id. (citation, footnote and internalquotation marks omitted). "In such cases, the employer's subjectiveintent is not relevant." Id. "The issue is simply whether the employerprovided its employee the entitlements set forth in the FMLA — forexample, a twelve-week leave or reinstatement after taking a medicalleave." Id.

Second, "the FMLA provides protection in the event an employee isdiscriminated against for exercising [the above-described substantive]rights." Id. (footnote and citation omitted). With respect to this"proscriptive group of violations . . . the employer's motive isrelevant, and the issue is whether the employer took the adverse actionbecause of a prohibited reason or for a legitimate nondiscriminatoryreason." Id. at 160. In such cases, in the absence of direct evidence ofdiscrimination, the so-called McDonnell Douglas burden-shifting paradigmapplies. Id. As the First Circuit has clarified:

Under that [McDonnell Douglas] framework, a plaintiff employee must carry the initial burden of coming forward with sufficient evidence to establish a prima facie case of discrimination or retaliation. If he does so, then the burden shifts to the employer to articulate some legitimate, nondiscriminatory reason for the employee's [termination], sufficient to raise a genuine issue of fact as to whether it discriminated against the employee. . . . If the employer's evidence creates a genuine issue of fact, the presumption of discrimination drops from the case, and the plaintiff retains the ultimate burden of showing that the employer's stated reason for terminating him was in fact a pretext for retaliating against him for having taken protected FMLA leave.

Id. at 160-61 (citations and internal quotation marks omitted). A primafacie caseof retaliation in violation of the FMLA is made out by ashowing that an employee "(1) . . . availed himself of a protected rightunder the FMLA; (2) . . . was adversely affected by an employmentdecision; [and] (3) [that] there is a causal connection between theemployee's protected activity and the employer's adverse employmentaction." Id. at 161.

A. Denial of Leave

In Counts I and III of his complaint, Brunelle alleges that although hegave Bourque and Cyro "as much notice as possible," he was wrongly deniedFMLA/MFMLR leave to which he was entitled on March 28, 2001. Complaint¶¶ 19-23, 28-30. The Defendants counter that (i) the intermittentleave sought was not "medically necessary" inasmuch as Brunelle was nottaking care of his father (whose surgery had been postponed) but ratherwas out drinking with friends, and (ii) in any event, Brunelle did notgive adequate notice to trigger the protections of the FMLA. Defendants'Motion at 10-12. The Defendants fail to make a persuasive case ofentitlement to summary judgment on either ground. The first argument— that leave was not "medically necessary" — relies on acrabbed view of the facts. While Brunelle was indeed discovered drinkingwith friends on the evening of March 28, it is undisputed that commencingat 7 a.m. that day he undertook a daylong vigil at his critically illfather's bedside, assisting in medical decision-making. On that day,without a doubt, he "provide[d] care or psychological comfort to animmediate family member with a serious health condition."29 C.F.R. § 825.203(c). No more was required.13

Nor does the Defendants' second assertion — lack of adequatenotice — ultimately avail them. FMLA regulations provide, inrelevant part, that whether a leave "is to be continuous or is to betaken intermittently or on a reduced schedule basis, notice need only begiven one time, but the employee shall advise the employer as soon aspracticable if dates of scheduled leave change or are extended, or wereinitially unknown." Id. § 825.302(a). "As soon as practicable" isdefined to mean:

as soon as both possible and practical, taking into account all of the facts and circumstances in the individual case. For foreseeable leave where it is not possible to give as much as 30 days notice, "as soon as practicable" ordinarily would mean at least verbal notification to the employer within one or two business days of when the need for leave becomes known to the employee.

Id. § 825.302(b).

The Defendants contend, inter alia, that as of Sunday, March 25, withthe situation"obviously unsettled," Bourque told Brunelle to keep himinformed, something Brunelle ultimately failed to do. Defendants' Motionat 11-12. Brunelle counters, and I find, that there are genuine issues ofmaterial fact whether Bourque (i) told Brunelle, "If you are not in, Iwill know why," or (ii) asked Brunelle to keep him posted. SeePlaintiff's Opposition at 11-12. A trier of fact, crediting Brunelle'sversion of events, could find that he promptly and adequately apprisedCyro of his anticipated need for leave and reasonably (if mistakenly)interpreted Bourque's equivocal response to mean that no further noticewas necessary.

In countering the Defendants' motion for summary judgment on the issueof denial of FMLA leave, Brunelle makes another argument meritingdiscussion: that, beyond denying summary judgment to the Defendants, thecourt should enter summary judgment sua sponte for him. Plaintiff'sOpposition at 10-11 & n. 5. He posits that this is so inasmuch as headvised Carlson, Bourque and the Defendant supervisors on March 28 and 29that he had been at the hospital all day on March 28 — "within oneor two business days." Id. This is a strained reading of the relevantregulation, omitting two important qualifiers: that the information beimparted "as soon as both possible and practical" after "the need forleave becomes known to the employee."

Arguably, Brunelle knew by the time he talked to Bourque on Sunday,March 25, that he would need to be out the following Wednesday, March28. At the very least, he knew prior to the start of his scheduled shift— certainly by the time he decided to go to Charlie's OTB, if notmuch earlier that day — that he would not be going to work thatevening. Any notice given on March 28 or 29, subsequent to the start ofBrunelle's shift, could not entitle him to summary judgment. See, e.g.,Lewis v. Holsum of Fort Wayne, Inc., 278 F.3d 706, 710 (7th Cir. 2002)("[T]he FMLA does not authorize employees on leave to keep theiremployers in the dark about when they will return.") (citation andinternal quotation marks omitted); Satterfield v. Wal-Mart Stores, Inc.,135 F.3d 973, 980 (5th Cir. 1998) ("While an employer's duty to inquire[into whether leave qualifies under the FMLA] may be predicated onstatements made by the employee, the employer is not required to beclairvoyant.").14

For these reasons, the court should (i) deny the Defendants' motion forsummary judgment as to Count I and that portion of Count III allegingfailure to approve leave,15 and (ii) decline Brunelle's invitationto enter summary judgment sua sponte for him as to those claims.

B. Retaliation

In Counts II and III of his complaint, Brunelle alleges that inviolation of both the FMLA and the MFMLR the Defendants terminated hisemployment in retaliation for his usage of family leave. Complaint¶¶ 24-25, 31. Brunelle does not dispute that, in this case, theMcDonnell Douglas burden-shifting rubric applies. Plaintiff's Oppositionat 12. The Defendants assume arguendo that Brunelle makes out a primafacie case; he concedes that they make the requisite showing that he wasterminated for legitimate, non-discriminatory reasons. Defendants' Motionat 9; Plaintiff's Opposition at 12-13. However, the parties stronglydisagree whether Brunelle adduces sufficient evidence of pretext tosurvive summary judgment. See, e.g., Defendants' Motion at 9-10;Plaintiff's Opposition at 12-15. I am persuaded that the Defendants havethe better of this argument.

A "nonmoving plaintiff may demonstrate pretext either indirectly byshowing that the employer's stated reasons for its adverse action werenot credible, or directly by showing that that action was more likelymotivated by a discriminatory reason." Hodgens, 144 F.3d at 168. "Thus,one way an employee may succeed is to show such weaknesses,implausibilities, inconsistencies, incoherencies, or contradictions inthe employer's proferred legitimate reasons for its action that areasonable factfinder could rationally find them unworthy of credence[.]"Id. (citations and internal quotation marks omitted).

In attempting to show pretext, Brunelle confronts a significant— and ultimately insurmountable — obstacle in the form of hisemployer's compelling showing that it terminated his employment on thebasis of perceived misconduct. There is no dispute that (i) Bourqueappeared supportive of, and approved, Brunelle's initial request for FMLAleave, (ii) on March 22, 2001 — just prior to Brunelle'stermination — he was given a day of FMLA leave, (iii) apart fromthe conversation on March 25, Brunelle did not contact Cyro prior to thestart of his scheduled shift to say that he would not be in on March 28,(iv) instead of going to work that evening, Brunelle went to Charlie'sOTB, (v) when Bourque saw Brunelle's truck parked in his driveway thatafternoon, he mistakenly assumed Brunelle was at home (instead of at thehospital), (vi) when Brunelle did not show up for work, Bourqueimmediately phoned his home, getting his answering machine, (vii) Bourquereceived a tip that Brunelle was at Charlie's OTB, (viii) Bourque droveto Charlie's OTB and observed Brunelle there having drinks with friends,and (ix) at least some of the Cyro decisionmakers understood thatBrunelle's explanation for what they perceived as his "no-show" was thathe had been at the hospital "late" — a seeming contradiction withthe facts as they knew them. These facts demonstrate (at best forBrunelle) a discharge unfairly based on misunderstanding andmisperception, not retaliatory termination predicated on past usage ofFMLA leave.

Brunelle struggles to overcome the force of these facts, articulatingsix reasons why, in his view, he adduces sufficient evidence to raise atriable issue of pretext. See Plaintiff's Opposition at 12-15. However,these reasons, which I address in turn, make little headway inundermining the veracity of Cyro's stated reasons for the discharge:

1. That a trier of fact could find Cyro's "no-call, no-show"explanation for Brunelle's termination unworthy of credence, raising anissue of material fact as to pretext, inasmuch as (i) if Brunelle'sversion of his March 25, 2001 conversation with Bourque is credited,Bourque approved his absence on March 28, and (ii) given that Brunellenever was a "no-call, no-show" in his entire eighteen years of employmentwith Cyro, it is "incredible" that he would have failed to give adequatenotice on the occasion in question. Id. at 13. As discussed above, afact-finder crediting Brunelle's testimony and discrediting that ofBourque could indeed find that Bourque approved Brunelle's absence. Onethen reasonably could infer that Bourque subsequently forgot he gave suchapproval or even lied about it. Nonetheless, although Bourque played arole in Brunelle's termination, he was not among the decision-makers. Theactual decision-makers (Blokland, Phillips, Scott and Healy) were givento believe that Brunelle (i) was at home, not at the hospital tending tohis father (based on Bourque's mistaken inference from observation of thetruck in the driveway), (ii) was found drinking at a bar subsequent tothe start of his shift, and (iii) upon questioning by Bourque, gave theexcuse that he had been tending to his father all day, or until late inthe day. The decision-makers knew that Brunelle maintained he hadobtained Bourque's permission to be out on March 28; however, Bourquedenied it. That the decision-makers under these circumstances chose tocredit Bourque's story over Brunelle's does not permit a reasonableinference of pretext.

2. That, although Bourque initially approved Brunelle's request forFMLA leave, he expressed concern with Brunelle's attendance, and althoughBrunelle's November 2000 warning for attendance problems stated that anyfurther absence prior to April 1, 2001 would result in a final writtenwarning, Brunelle received no such final written warning (despite hisdenial of wrongdoing). Id. The fact that Bourque expressed concern withBrunelle's past attendance problems — which had nothing to do withthe FMLA — while simultaneously granting FMLA leave cannotreasonably be construed as a sign of discriminatory animus against thetaking of such leave. See, e.g., Hodgens, 144 F.3d at 172 (holding, interalia, that despite warnings given employee for excessive absenteeism"[n]o rational factfinder could reasonably conclude that GD terminatedHodgens in retaliation for exercising his rights under the [FMLA]statute: the vast majority of Hodgens's absences were notFMLA-protected"). As to the seeming discrepancy between the promisedfinal warning and the termination, the record as a whole makes clear thatBrunelle's perceived "no-call, no-show" was an infraction greater inmagnitude than the attendance problems in issue in November 2000.Brunelle himself emphasizes that never before in his eighteen years withCyro had he been a "no-call, no-show."

3. That in the five years prior to Brunelle's termination, not oneemployee had been terminated for violating Cyro's attendance policy andthat, although several employees were terminated when they simply did notappear for work, in instances when employees with attendance problems werenotified that they would receive a final written warning, such a warningwas received. Plaintiff's Opposition at 13-14. In making this argument,Brunelle effectively concedes that a "no-call, no-show" is regarded atCyro as a serious enough infraction to justify immediate termination.Brunelle's insurmountable problem is that, on the record presented, areasonable jury could only conclude that those responsible for thedecision to terminate Brunelle's employment sincerely (if mistakenly)perceived Brunelle as having committed such an infraction.

4. That, although the Defendants now contend they terminated Brunellenot just for the alleged no-call, no-show but also for the two previouswritten warnings, the warning for quality issues (which in any event wasmore than six months old) was not advanced as a reason for thetermination at the March 29 meeting. Id. at 14. It is true, as a generalmatter, that after-the-fact bootstrapping of rationales for adverseemployment action can raise an inference of pretext. See, e.g., Waltonv. Nalco Chem. Co., 272 F.3d 13, 23 (1st Cir. 2001) (noting that "pretextmay be established with evidence that nondiscriminatory reasons wereafter-the-fact justifications, provided subsequent to the beginning oflegal action") (citation and internal quotation marks omitted). However,in this case, it is undisputed that the Cyro decisionmakers at leastdiscussed both older warnings prior to deciding to discharge Brunelle. Inany event, given the strength of the reasons actually advanced at themeeting, the subsequent "bootstrapping" of the older, unrelated warningraises at most a weak inference of pretext.

5. That not one of the four individuals who signed the terminationrecommendation (Blokland, Scott, Phillips and Healy) even spoke toBrunelle to obtain his side of the story or to advise him that his truckhad been seen outside of his home and he had been observed drinking atPat's Pizza, even though in at least one other instance Scott spokepersonally with an employee who asserted that the reasons for terminationwere mistaken. Plaintiff's Opposition at 14. On this point, Brunellefails to make a sufficiently strong case of differential treatment toraise any inference of animus or pretext. Inasmuch as appears, Scott'sdecision to speak with one employee personally was the exception, not therule. In any event, Brunelle provides insufficient detail to assesswhether that employee and he were similarly situated in all materialrespects. Finally, it is undisputed that Brunelle was given anopportunity (through a conversation with Bourque) to explain his absence.

6. That, inasmuch as Blokland, Scott and Phillips had given Brunelleperformance rankings pursuant to which he would have been one of the fourdisplaced employees, one can infer that the Defendants seized upon thealleged no-call, no-show to terminate him. Id. at 15. While this may beso, the inference raised is that these Defendants wanted Brunelle firedbecause they considered him a relatively lower ranking performer than hispeers, not because he had used FMLA leave.16

Stepping back from the detail of Brunelle's six points, the picturethat emerges is one in which an employer has made a notably strongshowing that the termination in question was animated by perceivedmisconduct, to which an employee has responded with a notably weakshowing of pretext. In such circumstances, summary judgment in theemployer's favor is appropriate. See, e.g., Reeves v. Sanderson PlumbingProds., Inc., 530 U.S. 133, 147-48 (2000) (noting that, although "it ispermissible for the trier of fact to infer the ultimate fact ofdiscrimination from the falsity of the employer's explanation," there areinstances where such a showing is inadequate to sustain a finding ofliability; "[f]or instance, an employer would be entitled to judgment asa matter of law if the record conclusively revealed some other,nondiscriminatory reason for the employer's decision, or if the plaintiffcreated only a weak issue of fact as to whether the employer's reason wasuntrue and there was abundant and uncontrovertedindependent evidencethat no discrimination had occurred.") (emphasis in original).

For these reasons, the Defendants are entitled to summary judgment asto Count II and that portion of Count III alleging retaliatorydischarge.

C. Liability of Defendant Bourque

The Defendants make one final argument: that Bourque exercisedinsufficient control over Brunelle's ability to take protected leave tobe subject to FMLA liability, entitling him to summary judgment as to allclaims against him. Defendants' Motion at 12.

As Brunelle recognizes, Plaintiff's Opposition at 15, although theFirst Circuit has yet to address the circumstances under which the FMLAimposes individual liability, courts that have done so most commonly haveapplied the parallel Fair Labor Standards Act ("FLSA") test, see, e.g.,Morrow v. Putnam, 142 F. Supp.2d 1271, 1275 (D.Nev. 2001) ("The majorityof courts have applied . . . precedent from the FLSA to find thatsupervisors may be sued in their individual capacity under the FMLA.").Brunelle looks to relevant First Circuit FLSA caselaw, pursuant to which(he argues) courts must examine whether an individual actor "(1) had thepower to hire and fire the employees; (2) supervised and controlledemployee work schedules or conditions of employment; (3) determined therate and method of payment; and (4) maintained employment records."Plaintiff's Opposition at 15-16 (citing Baystate Alternative Staffing,Inc. v. Herman, 163 F.3d 668 (1st Cir. 1998)). In addition, Brunellenotes, Baystate enumerates a fifth factor: whether the individual hadpersonal responsibility for making decisions that contributed to thealleged violation. Id. at 16.

The Defendants rejoin that, even assuming arguendo that the testdescribed by Brunelle applies, the undisputed facts establish that hefails to meet three of the four prongs. Defendants' Reply at 5. Indeed,there is no evidence that Bourque had the power to hire and fire,determined the rate and method of payment or maintained employmentrecords. The Defendants apparently overlook the fifth prong identified byBrunelle. See id. However, even though Bourque arguably had personalresponsibility for making decisions that contributed to the allegeddenial of leave, as a front-line supervisor — at the bottom of fourrungs of management — he simply was not a prominent enough playerin Cyro's operations to be considered an "employer" for purposes of theFMLA. See, e.g., Donovan v. Agnew, 712 F.2d 1509, 1514 (1st Cir. 1983)("Taking an `economic reality' approach to the facts of this [FLSA]case, we find that the district court did not err in holding appellantspersonally liable for the unpaid wages of their 99 hourly employees. Ourholding is narrow. We review the liability of corporate officers with asignificant ownership interest who had operational control of significantaspects of the corporation's day to day functions, including compensationof employees, and who personally made decisions to continue operationsdespite financial adversity during the period of nonpayment."); Keene v.Rinaldi, 127 F. Supp.2d 770, 777-78 n. 3 (M.D.N.C. 2000) (citing Donovanfor proposition that "neither the FLSA nor the FMLA were intended toimpose liability on mere supervisory employees as opposed to owners,officers, etc.").

Bourque accordingly is entitled to summary judgment as to all claimsagainst him.

IV. Conclusion

For the foregoing reasons, I recommend that the Defendants' Motion beGRANTED with respect to Bourque as to all claimsagainst him, GRANTEDwith respect to the remaining defendants as to Count II and that portionof Count III alleging retaliatory job termination, and otherwise DENIED.

2 Brunelle's statement of material facts contains two separatelynumbered sections: responsive facts numbered paragraphs 1-57 on pages1-7, which I will term "Plaintiff's Opposing SMF," and additional factsnumbered paragraphs 1-70 on pages 7-15, which I will term "Plaintiff'sAdditional SMF."

3 The Defendants' account of this conversation differs: that Bourque"let [Brunelle] know that we weren't going to be using his attendance, wewere going to rely on the Family Medical Leave Act for his time off.[Bourque] didn't want [Brunelle] to worry about his job, [he] wanted himto take time and care for his father not his job. [Brunelle] had otherthings on his mind." Defendants' SMF ¶ 23; Deposition of WilliamBourque ("Bourque Dep."), filed with Defendants' Motion, at 36. Further,according to the Defendants, Bourque told Brunelle that "we weren't goingto worry about his attendance, we would be leaning on the FMLA."Defendants' SMF ¶ 23; Bourque Dep. at 38.

4 Specifically, Brunelle advised Bourque that his father probablywould require surgery, which was why he likely would not be at work thatday. Defendants' Reply SMF ¶ 21; Plaintiff's Answers to Defendants'First Set of Interrogatories, attached to Defendants' Reply SMF, ¶4.

5 The Defendants deny that Bourque said this. Defendants' Reply SMF¶ 22; Bourque Dep. at 55. Instead, according to the Defendants,Bourque told Brunelle to keep him posted, Defendants' SMF ¶ 40;Bourque Dep. at 55-56, a fact they maintain is effectively undisputeddespite Brunelle's attempt to deny it, Defendants' Reply Memorandum inSupport of Motion for Summary Judgment ("Defendants' Reply") (Docket No.15) at 3 & n. 1. Nonetheless, Brunelle does effectively deny thisstatement with a citation to a portion of his deposition in which, whenasked what Bourque said, he testified that Bourque's response was, "if I[Brunelle] wasn't there, he [Bourque] would know why," making no mentionthat Bourque asked to be kept posted. See Plaintiff's Opposing SMF¶ 40; Brunelle Dep. at 35-36. This, in turn, is not necessarilyinconsistent with Brunelle's further deposition testimony that he did notrecall whether, on the date in question, Bourque did or did not ask to bekept posted. See Brunelle Dep. at 42, 61-62.

6 The Defendants protest that the deposition testimony cited insupport of this statement is inadmissible hearsay and that, in anyevent, Brunelle only testified that he was "pretty sure" of thisinformation. Defendants' Reply SMF ¶ 24. The testimony in questionfairly can be read as reflecting Brunelle's understanding based on hisdirect participation in the care of his father. The qualifier thatBrunelle was "pretty sure" is not significant enough to undercut theforce of the statement.

7 Although the Defendants assert that Dr. Cushing could not testifyas to what occurred without his notes, Defendants' Reply SMF ¶ 25,Dr. Cushing was able to testify generally regarding Richard Brunelle'scondition, see, e.g., Cushing Dep. at 10-11.

8 Charlie's OTB is a local bar. Defendants' SMF ¶ 45;Plaintiff's Opposing SMF ¶ 45.

9 Brunelle proffers two additional reasons why he did not go to workon the day in question: that he "already had called Bourque to say heprobably wouldn't be in because of his father's condition" and "was notprepared in addition to work a 12-hour shift." Plaintiff's Additional SMF¶ 35 (citing Brunelle Dep. at 48; Affidavit of Craig Brunelle("Brunelle Aff."), attached as Exh. 8 to Plaintiff's Documents, ¶¶3-4). As suggested by the Defendants, Defendants' Reply SMF ¶ 35,these two explanations, which derive from the Brunelle affidavit, appearto contradict earlier deposition testimony in which, after enumeratingspecific reasons why he did not go to work, Brunelle stated that therewere no other reasons, compare Brunelle Aff. ¶ 4 with Brunelle 48; see also, e.g., Colantuoni v. Alfred Calcagni & Sons, 44 F.3d 1,4-5 (1st Cir. 1994) ("When an interested witness has given clear answersto unambiguous questions, he cannot create a conflict and resist summaryjudgment with an affidavit that is clearly contradictory, but does notgive a satisfactory explanation of why the testimony is changed.").

10 Brunelle's further assertion that surgery was postponed because it"was not feasible" prior to April 1, 2001, Plaintiff's Additional SMF¶ 9, is neither admitted nor supported by the citation given.

11 The Defendants deny that this statement was made. Defendants'Reply SMF ¶ 55; Bourque Dep. at 81.

12 As Brunelle notes, the MFMLR provides eligible employees in Mainewith rights comparable to those provided by the FMLA, although the remedydiffers. Plaintiff's Opposition to Defendants' Motion for SummaryJudgment ("Plaintiff's Opposition") (Docket No. 12) at 8 n. 3. The LawCourt has yet to construe the MFMLR; however, this court has seen "noprincipled basis for dismissing [an MFMLR] claim under circumstances wherethe parallel federal claim survives the motion to dismiss." Perry v.Community Health & Counseling Servs., Civil No. 01-17-B-H, 2001 WL225018, at *2 (D.Me. Mar. 5, 2001) (rec. dec., aff'd Apr. 3, 2001).

13 That Brunelle's father did not have surgery on March 28, afterBrunelle advised Bourque that his father probably would require surgeryand that was why he likely would not be at work that day, is irrelevant.First, the statement on the whole was accurate. The need for surgery wasbeing assessed on a day-by-day basis, Brunelle was playing a role in thatdecision-making, and his father potentially could have had surgery thatday. Second, Brunelle did in fact spend the entire day providing care andcomfort to his critically ill father. Nor does it matter that Brunelletechnically was available to work, having left the hospital prior to thestart of his shift, and was discovered having drinks with friendsinstead. It is undisputed that Brunelle had commenced his hospital vigilat 7 a.m. on March 28, had not slept all day, and would have beenrequired to work a twelve-hour shift starting at 7 p.m. It is areasonable inference that, while he was able to unwind with friends, hewas not prepared to work. Further, inasmuch as appears, Cyro had notpreviously questioned the medical necessity of FMLA leave for Brunelle toundertake vigils similar to that undertaken on March 28, 2001.

14 Two cases upon which Brunelle relies, see Plaintiff's Oppositionat 11 n. 4, are distinguishable. The plaintiff in Brannon v. OshKosh,B'Gosh, Inc., 897 F. Supp. 1028, 1032-33 (M.D.Tenn. 1995), not onlynotified her employer on a Friday that her daughter's illness mightprevent her from working Monday, but also called her employer both Mondayand Tuesday morning to advise that she would not be in and arranged fordelivery of a doctor's note on Monday or Tuesday verifying that herdaughter's illness precluded her from working those days. The plaintiffin Bryant v. Delbar Prods., Inc., 18 F. Supp.2d 799, 801 (M.D.Tenn.1998), requested a partial day off to attend to her son, who had beenhospitalized the previous day with advanced kidney failure. In findingthe notice given to have been adequate for purposes of the FMLA, thecourt noted that the plaintiff had "communicated directly with Delbar[her employer] on the day she needed time off, rather than waiting twelvedays [as in a distinguishable case], and provided Delbar with concrete,not `meager,' information as to why she needed time off." Id. at 806.Significantly, in both Brannon and Bryant, the plaintiffs gaveunequivocal, concrete notice prior to taking the leave in question thatthey requested time off.

15 For separate reasons discussed below, I recommend summary judgmentas to all claims asserted against one individual defendant,Bourque.

16 I note that there is no evidence from which one could infer thatthese rankings were based in whole or in part on Brunelle's use of FMLAleave.

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