2004 | Cited 0 times | D. Maine | March 30, 2004


The parties have filed motions in limine concerning damagesand the defendant has filed a motion to consolidate this action withanother filed by the plaintiff in state court and subsequently removed tothis court by the defendant, arising out of the same events that gaverise to this action. I limit recoverable damages as set forth below anddeny the motion to consolidate the cases.1

Following the district court's adoption of my recommended decision onthe parties' motions for summary judgment, Docket No. 61, a finalpretrial conference was held at which it became clear that theplaintiff's conception of available damages on his claim under the FamilyMedical Leave Act ("FMLA"), specifically 29 U.S.C. § 2617(a),differed significantly from that of the defendant, Report of FinalPretrial Conference and Order (Docket No. 76) at [1]-[3]. The partieswere instructed to file any motions inPage 2limine on this issue by March 17, 2004 and responses byMarch 24, 2004 with no further pleadings on that issue. Id. at[5]. Those morions have been filed and are now before the court forresolution, along with the defendant's request for consolidation of thetwo actions which was filed in the interim. With respect to that request,Judge Kravchuk, who conducted the final pretrial conference, noted that"if this case were submitted to the jury solely on the issue of whetheror not there was a FMLA violation (the factual dispute developed on thesummary judgment record) and the court determined that damages werecapable of computation as a matter of law in the event of liability, thenpossibly it [makes] sense not to consolidate the cases."Id. at [4].

The parties apparently now agree that the plaintiff's travel expensesare not recoverable on his FMLA claim, Wal-Mart Stores Inc.'s Motion inLimine Regarding the Measure of Damages Under the FMLA ("Defendant'sMotion") (Docket No. 80) at 4; Plaintiff's Reply to Wal-Mart's Motion inLimine Regarding Damages ("Plaintiff's Reply") (Docket No. 83) at 2; thatthe Plaintiff's claim for liquidated damages is to be decided by thecourt, Defendant's Motion at 7; Plaintiff's Reply at 3; and that no claimfor front pay is before the court, Defendant's Motion at 6-8, Plaintiff'sReply at 5. There is no need at this time for the court to consider anycontentions concerning attorney fees under the FMLA, despite thedefendant's discussion of this issue. Defendant's Motion at 8-9.

The parties agree that the position held by the plaintiff at the timehe first took the leave at issue in this case has been defined by thedefendant since October 2002 in a written job description as requiring 48to 52 hours of work per week.2 Plaintiff's Reply at 3. The plaintiffcontends that he was told by hisPage 3supervisor on February 1, 2002 not to return to work until he couldwould 48 to 52 hours per week Plaintiff's Motion at 2. The parties alsoagree that the plaintiff was restricted to 40 hours of work per week withtwo consecutive days off by his medical provider as of January 28, 2002and to 45 hours of work per week with two consecutive days off as ofMarch 5, 2002. Id. at 1, 3; Exh. A to Defendant's Motion.

The parties disagree on the date on which the plaintiff's 12 weeks ofFMLA leave would have expired if he had been allowed to take itintermittently, for the hours in excess of 40 or 45 per week afterJanuary 28, 2002, when he was prepared to return to work; the defendantcontends that it would have expired by mid-May or mid-July 2002, Exh. Ato Defendant's Motion at 3, and the plaintiff contends that it would haveexpired on August 22, 2002, Plaintiff's Motion at 3. It is not necessaryto resolve this dispute at this time. The plaintiff's claimed entitlementto additional damages under the FMLA is based on his assertion that hecould have used his accumulated vacation pay after that date to cover anyhours in excess of 45 per week required by the position until November15, 2002 when a new 12-week allotment of FMLA leave would have becomeavailable to him. Plaintiff's Motion at 3. In other words, the plaintiffcontends that he should have been allowed to hold his original positionindefinitely, working no more than 45 hours per week and always havingtwo consecutive days off per week, by using FMLA leave and vacationleave, so that he is entitled to damages for the hours over 45 per weekrunning from February 2002 until he is reinstated in his original job.

This argument fails on its merits. In Hatchett v. Philander SmithCollege, 251 F.3d 670 (8th Cir. 2001), the plaintiff contended thatshe would have been able to return to work by the time her 12 weeks ofPage 4FMLA leave expired if her employer had allowed her to return towork on a reduced schedule, gradually building up to full-time work. 251F.3d at 676. The court held that the legislative history of the FMLA and the statute's restoration provisions demonstrate that an employee who could not otherwise perform the essential functions of her job, apart from the inability to work a full-time schedule, is not entitled to intermittent or reduced schedule leave. The purpose of the FMLA is to allow an employee to be away from the job, as opposed to using the statute as a means to force an employer to be directly involved in an employee's rehabilitation.Id. at 676-77. Similarly, the FMLA cannot reasonably beinterpreted as providing a means to force an employer to continue toemploy a particular person in a particular position indefinitely afterthat individual becomes unable to work the full number of hours requiredby the position. Cf. Johnson v. Moundsvista, Inc., 2002 WL2007833 (D. Minn. Aug. 28, 2002), at *6 n.6 (noting that this issueremains unresolved in Seventh and Eighth Circuits). The plaintiff cites adocument published by the Equal Employment Opportunity Commissioninterpreting the Americans with Disabilities Act, and regulations issuedunder that Act, in support of his contention that the defendant shouldhave at least offered him another position that provided equivalent payand benefits, Plaintiff's Reply at 4, but that is a very differentstatute with a different purpose.3 Its requirements may not be readinto the FMLA.

Even if the plaintiff's position were not incorrect on the merits, hisproposed method of computing damages should not be allowed in this casebecause he never informed the defendant that he intended to rely on his`Vacation time" theory until the final pretrial conference, despite theexistence of timely discoveryPage 5requests from the defendant that required that he inform thedefendant of this theory much earlier in the case. The theory was notmentioned in the letter from the plaintiff's attorney that was identifiedin his initial disclosure as presenting his computation of damages,Plaintiff's Initial Disclosure (Exh. 1 to Affidavit of Lisa F. Bendetson("Bendetson Aff") (Exh. A to Defendant's Reply to plaintiff's Motion inLimine (Docket No. 84))), and no documents supporting it — at aminimum, the defendant's vacation leave policy — were apparentlypresented at the plaintiff's deposition despite a clear request for suchdocuments in the notice of deposition, Defendants' Notice to Take OralDeposition of Plaintiff, Stanley Whitney (Exh. 2 to Bendetson Aff.) ¶8. The notice of deposition indicated, in emphasized language, that therequest for production of documents was a continuing request forsupplementation, id. at 3, but no supplementation was everprovided, Bendetson Aff. ¶ 4.

Under these circumstances, the plaintiff should not be allowed toproceed with his new theory of damages. See generally Keeler v.Hewitt, 697 F.2d 8, 12-14 (1st Cir. 1982) (trial court did not errin refusing to instruct jury on theory of liability not raised until eveof trial); Ehrenfeld v. Webber, 499 F. Supp. 1283, 1294-95 (D.Me. 1980) (declining to consider damages claim first raised on eve oftrial); Currier v. United Techs. Corp., 2003 WL 22799669 (D. Me.Nov. 21, 2003), at *5 (prohibiting party from using at trial documentsrequested in discovery but first produced on eve of trial). The prejudiceto the defendant is clear, as is the disregard of plaintiff's counsel forthe rules of procedure. Even if the new theory had merit, therefore, theplaintiff should not be allowed to present it.

There is no need at this time to decide the precise amount of FMLAdamages available to the plaintiff or to choose the precise date on whichhis FMLA leave would have expired had he returned toPage 6work on a reduced schedule of hours as he claims he should havebeen allowed to do.4 Such decisions may be reached and suchcalculations may be performed, if necessary, after a determination thatthe FMLA was violated has been made by the jury. At this time, it isappropriate to grant the defendant's motion in limine only tothe extent of determining that the plaintiff will not be allowed to seekFMLA damages beyond August 22, 2002 at the latest.5 The plaintiff'smotion in limine is denied.

With respect to the request for consolidation, the issues for trial inthe instant case have been narrowed considerably by my decisionconcerning damages available on the plaintiff's FMLA claim. As theplaintiff points out, this case also includes a breach-of-contract claimin connection with which he seeks to recover "expenses incurred . . . inseeking new employment," Plaintiff's Reply at 2, damages which are notavailable on his FMLA claim. Still, the damages available in this actiondiffer significantly from those available in the plaintiff's secondaction against the defendant, which asserts claims under the Maine HumanRights Act. Second Amended Complaint, Stanley Whitney v. Wal-MartStores, Inc., Docket No. 04-38-P-H ("Whitney II") (Exh. Bto State Court Record, Docket No. 4), at 5-6, 7.

There is an obvious factual overlap between the two cases, and theplaintiff has made no attempt to explain his decision to bring the FMLAclaim before the administrative process involving his state human-rightsclaim had been completed, despite the lack of any issue of statute oflimitations or other apparent reason for haste in asserting the FMLAclaim. However, consolidation of the two cases at this point wouldnecessarily result in months of delay in resolving the FMLA case, as thesecond case is only at the initialPage 7stages of discovery. Scheduling Order, Whitney II (DocketNo. 6). While the plaintiff's choice to bring his claims to court inpiecemeal fashion is not to be condoned,6 on balance, I conclude thatthe FMLA case should not be further delayed until the second case isready for trial. As the defendant notes, Wal-Mart Stores, Inc.'s Reply toplaintiff's Objection to Defendant's Motion for Continuance and Motion toConsolidate (Docket No. 74) at 3-4, questions of claim and issuepreclusion may arise in the second action if it is not consolidated withthis action for trial. Given the limited nature of the claims to be triedin each action, however, resolution of such questions in the secondaction should not require a major commitment of the court's time andeffort. Indeed, such an effort should narrow the issues presented in thesecond case.

In both of the cases cited by the defendant in support of its positionon this issue, the possibility that resolution of one of the two casessought to be consolidated would be significantly delayed by theconsolidation was not at issue. In Norris v. Cincinnati Bell Tel.Co., 2002 WL 31556519 (S.D. Ohio Oct. 24, 2002), the plaintiff didnot oppose the defendant's motion to consolidate the case which thedefendant had removed from state court, asserting only state-law claims,with her federal case that asserted claims under ERISA, the ADA and thefederal Age Discrimination in Employment Act. Id. at *1. InVorhees v. Time Warner Cable Nat'l Div., 109 F. Supp.2d 384 (E.D.Pa. 2000), the plaintiff herself sought consolidation of two cases shehad filed in federal court, one seeking relief under the FMLA and theother seeking relief under the ADA and state law. Id. at 385.The defendant sought dismissal of the second action on the ground thatthe claims should have been raised in the first action; the motion todismiss was denied. Id. at 386-88.Page 8

Neither Norris nor Vorhees supports consolidationhere over the objection of the plaintiff. I reluctantly conclude that theinstant case should go forward as presently scheduled for trial.


For the foregoing reasons, the plaintiff's motion in limine(Docket No. 81) is DENIED; the defendant's motion inlimine (Docket No. 80) is GRANTED only to the extent thatdamages available on the plaintiff's claim under the Family Medical LeaveAct are limited to those incurred up to a date no later than August 22,2002; and the defendant's request for a continuance and consolidation ofthis case with Docket No. 04-38-P-H is DENIED. Issues otherwiseraised by the defendant's motion in limine are reserved fordecision at trial, if necessary.

1. The plaintiff's requests for oral argument or, in thealternative, for leave to file a further reply to the defendant's motionin limine regarding damages, expressed during a telephoneconference with United States Magistrate Judge Kravchuk on March 25, 2004(Docket No. 86), is denied.

2. The plaintiff contends that "based on his experience with theposition" he could perform the job "in less than 45 hours per week exceptduring certain peak periods," Plaintiff's Motion in Limine Regarding theComputation of Plaintiff's Damages Under the FMLA ("Plaintiff's Motion")(Docket No. 81) at 2 n.3, but an employer is entitled to set the numberof hours during which it expects a particular employee to be present onits premises, regardless of how efficiently he does his work. This wouldseem particularly important when the employer is engaged in retail salesand service.

3. The FMLA does allow an employer to transfer an employee temporarilyto an available alternative position with equivalent pay and benefitswhen intermittent leave "is foreseeable based on planned medicaltreatment." 29 U.S.C. § 2612(b)(2). There is no evidence in therecord in this case to suggest that the plaintiff would be undergoingmedical treatment during each of the three to seven hours per week andsecond consecutive days off to which he contends his FMLA leave should beapplied. Nor has the plaintiff identified any such position available atWal-Mart at the relevant time.

4. In brief, while I reject the plaintiff's theory of damages basedon the use of vacation time, the appropriate resolution of the parties'dispute as to the precise date on which the plaintiff's FMLA leave wouldhave expired is not apparent at this time, based on the record before thecourt.

5. The defendant also seeks an in limine ruling,Defendant's Motion at 2-9, on the following issues, which need not beaddressed at this time: whether FMLA damages are capped at the equivalentof 12 weeks' wages or salary; whether liquidated damages are availableand, if so, whether they should be awarded; whether equitable relief isavailable under the circumstances of this case and, if so, in what form;and whether attorney fees should be awarded to the plaintiff if he issuccessful on his FMLA claim.

6. It should be noted in this regard that the plaintiff chose tobring his state-law human rights claims in state court, not in thiscourt. It was the defendant that removed the second action to thiscourt.

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