Opinion
C. A. 21-2109-SAL-PJG
09-23-2022
Jason Elenowitz, Plaintiff, v. FedEx Ground Package System, Inc., Defendant.
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT, UNITED STATES MAGISTRATE JUDGE
Plaintiff Jason Elenowitz filed this employment action pursuant to the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq., and the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601 et seq. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on Defendant FedEx Ground Package System, Inc.'s (“FedEx”) motion for summary judgment. (ECF No. 23.) Elenowitz filed a response in opposition to the motion (ECF No. 32), and FedEx filed a reply (ECF No. 36). Having reviewed the record presented and the applicable law, the court concludes that FedEx's motion should be granted.
BACKGROUND
The following facts are either undisputed or are taken in the light most favorable to the plaintiff, to the extent they find support in the record. In October 2007, Elenowitz began working in FedEx's Bethpage, New York facility as a package handler. Elenowitz was promoted in 2008 and 2011. In 2015 Elenowitz voluntarily transferred to FedEx's Fort Mill, South Carolina package sorting facility to the position of Customer Pickup Coordinator. Elenowitz was promoted to operations manager in September 2016, the position he held until his termination. As an operations manager, Elenowitz was responsible for managing package handlers and ensuring that trucks were loaded and unloaded. Jordan Trantham served as Elenowitz's immediate manager at the Fort Mill facility until February 2019, when Elenowitz changed shifts and began reporting to Shane Wright and Brent Parsons.
In January 2019, Elenowitz received a “Documented Discussion” from Trantham for Elenowtiz's failure to follow proper “yard check” procedures-a process of ensuring that each truck in the yard has been unloaded. Elenowitz's purported failure resulted in a trailer not being unloaded and a delay in package deliveries. Elenowitz was warned that failing to follow proper yard check procedures or missing a trailer “will result in further disciplinary action, up to and including termination.” (Ex. B, Def.'s Mot. for Summ. J., ECF No. 23-3 at 2.) Elenowitz had previously been warned-via an email sent to several employees three months prior-that missing a trailer during a yard check is a “zero tolerance type event” that will result in “serious consequences.” (Ex. C., Def's Mot. for Summ. J., ECF No. 23-4 at 2.)
Elenowitz received another Documented Discussion in August 2019-this time with Assistant Senior Manager Amy Argento-after a co-worker complained that Elenowitz was acting unprofessionally and rudely toward other employees. The co-employee also complained that Elenowitz was lazy and did not help his subordinates or give them direction. Argento concluded after an investigation that Elenowitz “engaged in conversation that is unbecoming of a manager/FedEx employee” and stated Elenowitz needs to be aware that when his words or tone are not chosen correctly, it may violate company's acceptable conduct and anti-harassment and retaliation policies. (Ex. D, Def's Mot. for Summ. J., ECF No. 23-5 at 2.)
Elenowitz, however, felt that he was falsely accused and experienced an emotional breakdown in Wright's office over the incident. On August 28, 2019, Elenowitz texted his former manager Trantham “I'm not mentally well anymore” and asked how Trantham took leave. (Ex. U, Def.'s Mot. for Summ. J., ECF No. 23-22 at 2.) Trantham told Elenowitz to call the company's third-party FMLA administrator and that Elenowitz would need to have a doctor sign the paperwork.
The text conversation indicates that Trantham previously took leave due to mental illness.
In September 2019, Elenowitz was diagnosed with bipolar disorder, depression, and ADHD. Elenowitz told Trantham about his condition but asked Trantham to keep their conversation confidential. Elenowitz later told his then-immediate manager Wright that he was diagnosed with bipolar disorder and prescribed medications. Elenowitz told Wright that he was having difficulty adjusting to his new medication and that he needed help with things like moving trucks. (Elenowitz Dep. at 24, ECF No. 32-1 at 12.) Elenowitz claims that Wright told him that Wright could see Elenowitz being bipolar and that Elenowitz needed to leave his problems at the door. (Id. at 62, ECF No. 32-1 at 21.) Elenowitz then told Parsons about his condition and Parsons responded that Elenowitz should be tougher because Elenowitz is from New York. (Id. at 63, ECF No. 32-1 at 22.) Elenowitz again asked Wright and Parsons to work with him by providing help moving trucks and managing his area, but Elenowitz admits he did not formally request an accommodation through FedEx's human resources department based on his bipolar disorder or medications. (Id. at 62-64, ECF No. 32-1 at 20-22.)
On October 1, 2019, Elenowitz was again reminded by email (along with other employees) that yard checks and ensuring that trailers are unloaded is one of the most important functions of the facility and failing to follow proper procedures around yard checks is a “potentially career ending decision.” (Ex. F., Def.'s Mot. for Summ. J., ECF No. 23-7 at 2.)
Elenowitz received another Documented Discussion on November 8, 2019, this time with Parsons, after Elenowitz was injured while driving equipment that Parsons claims Elenowitz was not properly certified to operate. Elenowitz, however, maintains that he did have the proper certification. He received two more Documented Discussions with Parsons that November for failing to complete safety reviews for package handlers, a daily requirement for managers. The Documented Discussions noted that Elenowitz had been instructed that the safety reviews were required and that failing to perform them violated the company's acceptable conduct policy.
On January 6, 2020, Elenowitz's doctor recommended that he take leave from work so that he could transition to new medications. The doctor specifically warned that Elenowitz may experience fatigue and an inability to concentrate. Elenowitz reported to work after the doctor's appointment and, according to Parsons and Wright, failed to properly complete a yard check for the second time, resulting in a truck not being unloaded and delays in packages being delivered. Elenowitz told Parsons and Wright that he was struggling with work, experiencing mental breakdowns, and struggling with the side effects of his medications and that he needed to take leave to adjust to his medications.
Elenowitz received a final Documented Discussion with Argento for failure to properly complete the yard check. Argento confirmed that the truck was on the yard at the time when Elenowitz stated that he had completed the yard check. Elenowitz testified that he recalls completing the yard check but he cannot recall if he missed a trailer or not. (Elenowitz Dep. at 66-67, ECF No. 32-1 at 24-25.) Argento noted that this was the second time in less than one year that Elenowitz's failure to properly complete a yard check resulted in a missed truck. Argento listed all of the Documented Discussions Elenowitz received in the previous year and stated that Elenowitz was provided with multiple opportunities to correct his behavior but that his most recent failure to complete a yard check demonstrated that Elenowitz continued to not follow critical processes. Argento decided that Elenowitz should be terminated. Argento swears that she would have sought Elenowitz termination even if the only Documented Discussions on his file were for his failure to properly complete yard checks. (Argento Aff. ¶ 6, Def.'s Mot. for Summ. J., ECF No. 23-13 at 3.) Argento initiated the termination process the next day-January 7, 2020.
On January 8, 202, Elenowitz submitted a request for short-term disability and leave under the FMLA pursuant to his doctor's recommendation that he take leave from work to transition to new medication. The request for leave was granted the same day. However, the termination review requested by Argento the prior day continued while Elenowitz was out on leave. Elenowitz returned to work on January 22, 2020 and on January 28, 2020 his employment was terminated.
Following his termination, Elenowitz contacted human resources and alleged that Argento retaliated against him because Elenowitz had previously reported a co-employee for showing up late for work. An investigation concluded that Elenowitz's allegations were meritless.
Elenowitz filed this action in July 2021 raising claims of failure to accommodate and retaliatory termination in violation of the ADA and interference and retaliation in violation of the FMLA. Elenowitz voluntarily abandoned his FMLA retaliation claim. (Pl.'s Resp., ECF No. 32 at 1.)
DISCUSSION
A. Summary Judgment
Summary judgment is appropriate only if the moving party “shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A party may support or refute that a material fact is not disputed by “citing to particular parts of materials in the record” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine [dispute] of material fact.” Ballinger v. N.C. Agric. Extension Serv., 815 F.2d 1001, 1005 (4th Cir. 1987) (internal quotation marks and citation omitted). A fact is “material” if proof of its existence or non-existence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257.
In discrimination cases, a party is entitled to summary judgment if no reasonable jury could rule in the non-moving party's favor. Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002). The court cannot make credibility determinations or weigh the evidence, but the court should examine uncontradicted and unimpeached evidence offered by the moving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). The court must determine whether a party's offered evidence is legally sufficient to support a finding of discrimination and look at the strength of a party's case on its own terms. See id. at 148 (stating that “[c]ertainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational fact-finder could conclude that the action was discriminatory”).
The McDonnell Douglas framework does not apply to an ADA failure-to-accommodate claim. See Perdue v. Sanofi-Aventis U.S., LLC, 999 F.3d 954, 959 (4th Cir. 2021).
A plaintiff asserting a claim of unlawful employment discrimination may proceed through two avenues of proof. First, he may attempt directly to prove discrimination with direct or circumstantial evidence. Alternatively, when direct proof is lacking, a plaintiff may proceed under the McDonnell Douglas burden-shifting framework. See Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 318 (4th Cir. 2005); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 58 (4th Cir. 1995) (holding that the McDonnell Douglas framework applies to claims brought under the ADA). Pursuant to this framework, once the plaintiff establishes a prima facie case of discrimination, the burden shifts to the defendant to produce evidence of a legitimate, nondiscriminatory reason for the adverse action. Merritt v. Old Dominion Freight, 601 F.3d 289, 294 (4th Cir. 2010) (Title VII). The defendant's burden “is a burden of production, not persuasion.” Reeves, 530 U.S. at 142. Once a defendant meets this burden by producing affidavits or testimony demonstrating a legitimate, nondiscriminatory reason, “the McDonnell Douglas framework-with its presumptions and burdens-disappears], and the sole remaining issue [is] discrimination vel non.” Id. (internal quotation marks and citations omitted).
In other words, if the defendant meets the burden to demonstrate a legitimate, nondiscriminatory reason, the plaintiff must demonstrate by a preponderance of the evidence that the proffered reason was “not its true reason[], but [was] a pretext for discrimination.” Merritt, 601 F.3d at 294 (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). Accordingly, the plaintiff's burden of demonstrating pretext “merges with the ultimate burden of persuading the court that [the plaintiff] has been the victim of intentional discrimination.” Merritt, 601 F.3d at 294 (quoting Burdine, 450 U.S. at 256) (alterations in original); see also Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 319 (4th Cir. 2005) (Title VII & 42 U.S.C. § 1981). To meet this “merged” burden, the employee may prove by a preponderance of the evidence that the decision maker's affidavit is untrue or that the employer's proffered explanation is unworthy of credence. Burdine, 450 U.S. at 256.
“[A] plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.” Reeves, 530 U.S. at 148. However, “if the record conclusively reveal[s] some other, nondiscriminatory reason for the employer's decision, or if the plaintiff create[s] only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred,” summary judgment is appropriate. Id. Accordingly, the court must evaluate “the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law.” Id. at 148-49. “Notwithstanding the intricacies of proof schemes, the core of every [discrimination] case remains the same, necessitating resolution of the ultimate question of . . . whether the plaintiff was the victim of intentional discrimination.” Merritt, 601 F.3d at 294-95.
C. Plaintiff's Claims
1. ADA Failure to Accommodate
FedEx argues Elenowtiz cannot put forth evidence to establish a failure-to-accommodate claim. The court agrees, specifically as to FedEx's argument that Elenowitz fails to put forth evidence from which a reasonable jury could conclude that a reasonable accommodation would have permitted Elenowitz to perform the essential functions of his job.
The ADA prohibits employers from discriminating against qualified individuals on the basis of disability, including by failing to make a reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual. 42 U.S.C. § 12112. A plaintiff is a “qualified individual” if he, “with or without reasonable accommodation, can perform the essential functions” of the job that he “holds or desires.” 42 U.S.C. § 12111(8). Thus, to show an employer's failure to accommodate, the plaintiff must prove: (1) that he had a disability within the statutory meaning; (2) that the employer knew of his disability; (3) that a reasonable accommodation would permit him to perform the essential functions of the position; and (4) that the employer refused to make the accommodation. Perdue, 999 F.3d at 959; Wilson v. Dollar Gen. Corp., 717 F.3d 337, 345 (4th Cir. 2013).
As noted above, the McDonnell Douglas burden-shifting framework does not apply to failure-to-accommodate claims. Perdue, 999 F.3d at 959 n.2.
Initially, the court observes that a question of fact exists about whether Elenowitz even requested an accommodation. When Elenowitz informed his immediate supervisors that he was diagnosed as bipolar, Elenowitz stated he needed help moving trucks and managing his area. His immediate supervisors deny that Elenowitz even informed them of his diagnosis, but on summary judgment the court must view the facts in the light most favorable to the plaintiff. Even crediting Elenowitz's testimony, however, it is unclear whether his statement was sufficient to put FedEx on notice that Elenowitz desired an accommodation under the ADA. See, e.g., Wilson, 717 F.3d at 347 (stating the employee must provide the employer with “enough information that, under the circumstances, the employer can be fairly said to know of both the disability and the desire for an accommodation”) (quoting Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 313 (3d Cir. 1999)). And Elenowitz admits he did not request an accommodation pursuant to the process laid out in FedEx's employee handbook by contacting human resources or utilizing an email address set up by FedEx for such requests. But see Parkinson v. Anne Arundel Med. Ctr., 79 Fed.Appx. 602, 604 (4th Cir. 2003) (“Of course, a request for accommodation need not, in all cases, be in writing, be made by the employee, or formally invoke the magic words ‘reasonable accommodation.' ”) (internal quotation marks omitted). On this record, this question is unclear, and the parties do not sufficiently brief this issue to address it on summary judgment.
Viewing that disputed fact in Elenowitz's favor and assuming Elenowitz's statement to his immediate supervisors was sufficient to put FedEx on notice that Elenowitz sought an accommodation for his bipolar disorder, Elenowitz nonetheless fails to put forth evidence that a reasonable accommodation could have permitted him to perform the essential functions of his job at that time. Most importantly, Elenowitz fails to put forth evidence (or even argument) that explains what the essential functions of Elenowitz job were. See Wirtes v. City of Newport News, 996 F.3d 234, 239 (4th Cir. 2021) (explaining that determining what the essential functions of the position are is necessary to determining whether an accommodation is reasonable); see also Lamb v. Qualex, Inc., 33 Fed.Appx. 49, 59 (4th Cir. 2002) (“The burden of identifying an accommodation that would allow a qualified individual to perform the job rests with the plaintiff, as does the ultimate burden of persuasion with respect to demonstrating that such an accommodation is reasonable.”). Elenowitz indicates the side effects from his medication that made him unable to properly perform his job were exhaustion, dizziness, and confusion, but the court cannot analyze whether Elenowitz's suggested accommodations were reasonable without any facts that explain what tasks Elenowtiz's job required and the skills and competencies needed to perform it. In his deposition, Elenowitz testified that in his position he “ran the unload area, managed probably up to ninety packing hours at some point, just unloading trucks, making sure trucks were loaded, making sure everyone was doing what they needed to do.” (Elenowitz Dep. at 17, ECF No. 32-1 at 6.) These generalities, without an explanation of the specific tasks and abilities required in this position, do not allow the court to determine what the essential functions of his position were and whether his proposed accommodations were reasonable in light of those functions. See Wirtes, 996 F.3d at 239 n.9.
For the same reason, FedEx cannot be faulted for not engaging in the interactive process with Elenowitz. See Jacobs v. N.C. Admin. Off of the Cts., 780 F.3d 562, 581 (4th Cir. 2015) (“However, an employer will not be liable for failure to engage in the interactive process if the employee ultimately fails to demonstrate the existence of a reasonable accommodation that would allow [him] to perform the essential functions of the position.”)
Similarly, Elenowitz does not provide any evidence permitting a reasonable jury inference that his requested accommodations allowed him to perform his essential job duties. Elenowitz suggests, for the first time on summary judgment, that FedEx could have modified or reassigned his non-essential duties, adjusted his work schedule, or reassigned him to a different facility. On their face, these suggestions would not appear to alleviate the problems associated with Elenowitz's new medication-exhaustion, dizziness, and confusion. And again, Elenowitz does not describe which non-essential job duties FedEx could have eliminated that would have allowed him to perform his essential duties, identify a position or facility that he could have been reassigned to, or propose a work schedule that would allow him to work when he was (or was not) exhausted, dizzy, and confused. Notably, reassignment is a disfavored accommodation that employers are generally under no obligation to offer. Wirtes, 996 F.3d at 241.
Elenowitz alternatively suggests that because the adjustment to his medication was only a temporary condition, FedEx could have provided him with short term leave under the FMLA as a reasonable accommodation. See generally Jackson v. Sprint/United Mgmt. Co., F.Supp.3d, No. CV RDB-21-0426, 2022 WL 1172319, at *11 (D. Md. Apr. 20, 2022) (explaining that the Fourth Circuit has not addressed whether a request for FMLA leave may constitute a reasonable accommodation and identifying a split among the circuits). But Plaintiff fails to point to any evidence of how much FMLA time he needed to adjust to his medications. See Myers v. Hose, 50 F.3d 278, 283 (4th Cir. 1995) (“Nothing in the text of the reasonable accommodation provision requires an employer to wait an indefinite period for an accommodation to achieve its intended effect.”) As pointed out by FedEx, Elenowitz puts forth evidence of the time necessary for him to adjust to his medications in January 2020, but he puts forth no comparable evidence of when, if ever, he adjusted to his medications at the time he told his immediate supervisors that he was having trouble performing his job in September 2019. See, e.g., Wilson, 717 F.3d at 346 (“The employee must show that had he been granted leave, at the point at which he would have returned from leave, he could have performed the essential functions of his job.”); id. (finding the plaintiff did not provide “any medical or other evidence” indicating that the plaintiff was cleared to perform the essential functions of his job on the date he claims he could have returned from leave). Thus, Elenowitz has failed to meet his burden of showing that had FedEx provided his suggested accommodations, he would have been able to perform the essential functions of his job.
2. ADA Retaliation
FedEx argues that it offered a legitimate, non-discriminatory reason for terminating Elenowitz, who cannot produce evidence that the articulated reason was a pretext for unlawful retaliation. The court agrees.
The ADA prohibits retaliation against any individual who makes a charge of discrimination pursuant to the ADA. 42 U.S.C. § 12203(a). To establish a prima facie retaliation claim under the ADA, the plaintiff must allege that (1) he engaged in an activity protected by the ADA; (2) he suffered an adverse employment action; and (3) that a causal link exists between the protected activity and the adverse action. See Reynolds v. Am. Nat. Red Cross, 701 F.3d 143, 154 (4th Cir. 2012); A Soc'y Without A Name v. Virginia, 655 F.3d 342, 350 (4th Cir. 2011).
Here, Elenowitz was terminated by Argento for performance issues. It is undisputed that Argento was not aware of Elenowitz's diagnosis or that Elenowitz requested an accommodation. Elenowitz argues that his performance issues were caused by his disability, but even if that is true, it is irrelevant to his retaliation claim unless he can show that the ultimate decision-maker was aware of his disability. See Roberts v. Glenn Indus. Grp., Inc., 998 F.3d 111, 124 (4th Cir. 2021) (“To establish a causal relationship between the protected activity and the termination, a plaintiff must show that the decisionmaker was aware of the protected activity at the time the alleged retaliation occurred.”). There is no such evidence here.
Alternatively, Elenowitz argues he can show causation under a “cat's paw” theory of liability. See Staub v. Proctor Hosp., 562 U.S. 411, 415 (2011) (providing that a cat's paw theory of liability seeks to hold an “employer liable for the animus of a supervisor who was not charged with making the ultimate employment decision”); Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 290 (4th Cir. 2004) (“When a formal decisionmaker acts merely as a cat's paw for or rubber-stamps a decision, report, or recommendation actually made by a subordinate, it is not inconsistent to say that the subordinate is the actual decisionmaker or the one principally responsible for the contested employment decision, so long as he otherwise falls within the parameters of the discrimination statute's definition of an employer or agent of the employer.”), overruled on other grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 169 (2009). Elenowitz argues that his immediate supervisors-Wright and Parsons-displayed animus toward him when he informed them of his diagnosis, and, because Parsons and Wright reported Elenowitz for failing to properly complete a yard check for a second time, Argento's decision to terminate Elenowitz for that incident was based on the discriminatory motives of Wright and Parsons. However, Elenowitz fails to put forth any evidence that Wright and Parsons sufficiently influenced Argento's decision so as to be considered decisionmakers. See Hill, 354 F.3d at 291 (providing that to succeed on a cat's paw theory of liability, the plaintiff cannot merely show the subordinate had a substantial influence on the challenged decision, rather, the plaintiff must show “sufficient evidence that the subordinate employee possessed such authority as to be viewed as the one principally responsible for the decision or the actual decisionmaker for the employer”). Importantly, the undisputed evidence shows that Argento terminated Elenowitz based on his twice failing to properly complete a yard check-the first of which occurred before Elenowitz's diagnosis. As to the second failure to properly complete a yard check, Argento conducted an investigation independent of Wright and Parsons to confirm that Elenowitz in fact missed a truck. Thus, even assuming Wright's and Parsons's purported animus motivated their decision to report Elenowitz's failure to complete a yard check, Argento's independent investigation broke the causal link between their animus and Argento's decision. See Hill, 354 F.3d at 296 (stating where the actual decision maker independently investigated and verified the plaintiff's misconduct, the fact that the plaintiff was reported by a supervisor motivated by discriminatory and retaliatory animus does not transform the supervisor into the actual decision maker). Regardless, Elenowitz's assertion that Wright and Parsons reported Elenowitz because of their animus toward his mental condition is speculative at best. Ample evidence in the record shows that failing to complete a yard check is a serious failure that requires severe discipline, Elenowitz was warned well before his diagnosis that failing to complete a yard check may result in his termination, and Elenowitz was previously disciplined for the same failure prior to his diagnosis. Wright's and Parsons's isolated statements, months prior to Elenowitz's dismissal, have no apparent connection to their reporting Elenowitz's mistake. See Merritt, 601 F.3d at 300 (“It is the decision maker's intent that remains crucial, and in the absence of a clear nexus with the employment decision in question, the materiality of stray or isolated remarks is substantially reduced.”)
3. FMLA Interference
FedEx argues Elenowitz cannot produce evidence to support an FMLA interference claim. Again, the court agrees.
The FMLA makes it “unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter.” 29 U.S.C. § 2615(a)(1). To establish an FMLA interference claim, the plaintiff must show that (1) he is entitled to an FMLA benefit; (2) his employer interfered with the provision of that benefit; and (3) that interference caused harm. Adams v. Anne Arundel Cnty. Pub. Sch., 789 F.3d 422, 427 (4th Cir. 2015). Applicable here, under the FMLA, the employer must notify an employee of his or her FMLA eligibility when the employee requests leave or when the employer acquires knowledge that an employee may be eligible for FMLA leave. 29 C.F.R. § 825.300.
Here, FedEx argues, and the court agrees, that Elenowitz never requested leave and FedEx never had constructive notice that Elenowitz needed to take FMLA leave until his formal request in January 2020. Elenowitz argues that his texts to his then former manager, Trantham, asking how to take leave for his bipolar disorder triggered FedEx's duty to provide notice under the FMLA in August 2019. However, employers may require employees to comply with their notice and procedural requirements for requesting leave, including a requirement to contact a specific individual. 29 C.F.R. § 825.302(d). Here, FedEx's policy required that Elenowitz request leave from his manager, not his former manager. (Ex. T, Def.'s Mot. for Summ. J., ECF No. 23-21 at 5.) Additionally, Elenowitz's text to Trantham did not request that Trantham allow Elenowitz to take leave, Elenowitz merely asked Tranthamn how Trantham took leave previously in a similar situation and, importantly, Elenowitz asked Trantham to keep their conversation confidential. (Ex. U., Def.'s Mot. for Summ. J., ECF No. 23-22 at 2.) Otherwise, Elenowitz did not request leave until January 2020 when his FMLA leave request was granted by FedEx.
Elenowitz also argues that FedEx had constructive notice of his need for leave, therefore triggering FedEx's duty to provide Elenowitz with notice of his FMLA eligibility, because Elenowitz began making uncharacteristic workplace mistakes and missteps in August 2019. See, e.g., Burnett v. LFW Inc., 472 F.3d 471, 479 (7th Cir. 2006) (“[A]n employee may be excused from expressing a need for medical leave in at least two exceptional situations-when circumstances provide the employer with sufficient notice of the need for medical leave or when the employee is incapable of providing such notice.”). While the Fourth Circuit has stated that an employee need not expressly invoke the FMLA to trigger their right to notice, Dotson v. Pfizer, Inc., 558 F.3d 284, 295 (4th Cir. 2009) (citing 29 C.F.R. § 825.302(c)), it does not appear to have held that an employee's mere change in behavior is sufficient to trigger his rights. See Brushwood v. Wachovia Bank, N.A., 520 Fed.Appx. 154, 157 (4th Cir. 2013) (stating that an employee's “adequate communication” or “at least verbal notice” are required to trigger an employer's obligations under the FMLA); Rhoads v. F.D.I.C., 257 F.3d 373, 382-83 (4th Cir. 2001) (“At bottom, ‘[a]n employee shall provide at least verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave.' ”) (quoting 29 C.F.R. § 825.302(c)). Here, Elenowitz fails to put forth evidence showing that his medical condition was so apparent that his supervisors could be said to be aware that Elenowitz needed to take medical leave. See, e.g., Burnett, 472 F.3d at 479 (providing examples of “dramatic, observable” changes in work performance or physical condition, such as a broken arm or a model employee suddenly sleeping on the job). Therefore, Elenowitz's supposed change in behavior was insufficient to trigger FedEx's duties under the FMLA, and no reasonable jury could conclude on this record that FedEx interfered with Elenowitz's FMLA rights.
RECOMMENDATION
Based on the foregoing, the court recommends that FedEx's motion for summary judgment be granted. (ECF No. 23.)
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.' ” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).