Opinion
Civil Action No. H-97-3995.
April 13, 1999
MEMORANDUM AND ORDER
Pending before the Court is Defendants' Motion for Summary Judgment ("Defendants' Motion") [Doc. # 30]. Plaintiff has responded in opposition. See Plaintiff's Response to Defendants' Motion for Summary Judgment ("Plaintiff's Response") [Doc. # 35]. In addition, the Court has received numerous further briefs. The Court has considered Defendants' Motion, Plaintiff's Response, all of the parties' other briefs, all matters of record, and the applicable authorities. The Court concludes that Defendants' Motion should be GRANTED. I. BACKGROUND A. Factual Background
See Defendants' Reply to Plaintiff's Response to Defendants' Motion for Summary Judgment ("Defendants' Reply") [Doc. # 36]; Plaintiff's Surreply to Defendants' Reply to Plaintiff's Response to Defendants' Motion for Summary Judgment ("Plaintiff's Sur-Reply") [Doc. # 37]; Defendants' Supplemental Response to Plaintiff's Surreply to Defendants' Reply to Plaintiff's Response to Defendants' Motion for Summary Judgment [Doc. # 38].
This employment discrimination lawsuit concerns Plaintiff's report of alleged workplace fraud and the disabilities resulting from the stress related to the making of that report. Plaintiff was employed as a senior configuration management analyst in the Safety Reliability and Quality Assurance ("SRQA") of Loral Aerospace Corporation ("Loral"). The Court assumes from Plaintiff's pleadings that Loral worked on federal defense contracts, although there is no evidence concerning the type of work in which Loral typically engaged.
Since the time of this incident, Loral was purchased by Defendants Lockheed Martin Corporation and Lockheed Martin Aerospace Corporation. At a February 27, 1998 hearing, the Court expressed concern as to whether the correct party was named in this suit. See Transcript of Hearing Proceedings before the Honorable Nancy Atlas [Doc. # 17]. Defendants assured the Court that they would work out any possible issues in this regard. Id. Plaintiff has made no changes to the party designations. Defendants have made no further objections. The Court therefore assumes that Plaintiff has named the correct entities as party defendants. In this Memorandum, the Court will simply refer to all these entities collectively as "Defendants," although only Loral was involved in the conduct giving rise to this suit.
On May 1, 1995 Plaintiff complained of fraudulent behavior by Defendants' employees. Plaintiff contends that her complaint was "leaked" to others in the company, and as a result, Plaintiff experienced debilitating mental anguish. Plaintiff immediately took medical leave to alleviate her stress. She claims that Defendants have refused to allow her to return to work, even after her doctor had stated that she was medically able to return. In this suit, Plaintiff basically alleges that Defendants' refusal to reassign her to her pre-leave position was discriminatory and violated federal employment law.
More particularly, on May 1, 1995, Plaintiff made an official complaint concerning fraudulent behavior on a government contract on which Plaintiff was working as part of her job. First, Plaintiff sent a letter to Defendants' Manager of Employee Relations, Brian Dalton ("Dalton"). See Deposition of Carolynn C. Sparks ("Sparks Deposition"), Defendants' Motion, Exhibit A, Attachment 3. This letter stated that, "[t]he contract on which I work is an environment that is infiltrated with government fraud." Plaintiff requested a meeting with her manager, the head of the contract, and "an corporation ethics person." Later that day, Plaintiff attended a meeting with Dalton, Sam Boyd (Loral Vice President), Kay Walls, and John Vogel. See Sparks Deposition, at 192. Plaintiff states that she had a fair opportunity to discuss her complaint and was pleased by the response from the "SRQA people, Ms. Walls, John Vogel and Sam Boyd." Id. at 196-97. After the meeting, Plaintiff decided to take personal leave for the rest of the week, because she felt "ill and exhausted and drained." Id. at 199.
Plaintiff alleges that other SRQA personnel saw her complaint. Dalton had faxed a copy of Plaintiff's complaint letter to Boyd. See Sparks Deposition, at 201. Dalton used a fax machine in the procurement office to send this facsimile. Id. at 202. This particular machine printed a confirmation report that included a copy of Plaintiff's complaint letter. A co-worker of Sparks, Linda Bishop, received this copy of Plaintiff's complaint from another co-worker who had retrieved it from the machine. Id. at 206. Sparks believes that this facsimile effectively communicated her whistleblower actions to everyone in her department, although she only identifies three people that viewed the letter. Id. at 209.
Plaintiff alleges that she experienced debilitating stress shortly after this incident. She consulted Dr. Incalcaterra for "both mental and physical conditions." Dr. Incalcaterra prescribed blood pressure medication and tranquilizing medications and recommended that Plaintiff take a medical leave of absence starting May 9, 1995. See Dr. Incalcaterra's May 12, 1995 Letter to Loral, Defendants' Motion, Exhibit D, at 7. Plaintiff also consulted a psychiatrist, Dr. Privitera. On July 27, 1995, Dr. Privitera signed a FMLA physician's certification form that stated that Plaintiff was unable to return to work. See Defendants' Motion, Exhibit E, at 1.
Plaintiff later filed for disability insurance with John Hancock Insurance Company. In relation to Plaintiff's insurance claim, Dr. Privitera sent various communications to John Hancock outlining Plaintiff's medical condition. On August 17, 1995, he filled out a report which states that "[t]his patient has been continuously disabled (unable to perform all duties of his/her occupation) from 5/1 1995 through 8/21 1995." See Affidavit of Julie de Cardenas ("de Cardenas Affidavit"), Defendants' Motion, Exhibit C, Attachment 10. In response to a question asking when Plaintiff would return to work, Privitera responded "unknown." Id. On December 21, 1995, Dr. Privitera submitted a similar report that stated that Plaintiff had been continuously disabled from "prior to 1st visit [on May 22, 1995] through Dec. 1995. See John Hancock Mutual Insurance Company Medical Records, Defendants' Motion, Exhibit F, at 25. Again, Dr. Privitera is unable to give a definite date as to when Plaintiff could return to work. Id. On February 6, 1996, Dr. Privitera wrote that Plaintiff "is under my care for a major depressive illness" and that "she would be unable to be gainfully employed at this time." Id. at 26.
Plaintiff was eventually discharged because she was unable to return to work on May 24, 1996. Defendants explain that Plaintiff exceeded the one year limit on sick leave permitted under Defendants' policies. B. Plaintiff's Legal Claims
In her Affidavit, de Cardenas testifies that any employee who exceeds twelve weeks of medical leave is terminated. See de Cardenas Affidavit, at 5 ¶ 11. See also Leave of Absence Policy for Loral, de Cardenas Affidavit, Attachment 4, at 3.
In her First Amended Complaint [Doc. # 8], Plaintiff asserts four causes of action. First, Plaintiff contends that Defendants violated her rights under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. According to Plaintiff, Defendants both discriminated against her because of her mental disability and failed to reasonably accommodate her disability. Second, Plaintiff makes various Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq. claims; she contends that Defendants discriminated against her because she filed for medical leave under the FMLA. Plaintiff also asserts under the FMLA that Defendants did not allow her to return to a comparable position after she returned from medical leave. Third, Plaintiff argues that Defendants entered into a binding oral employment contract whereby Plaintiff was guaranteed employment. Plaintiff claims that Defendants breached this contract when they discharged her. Last, Plaintiff asserts a claim under the False Claims Act ("FCA"), 31 U.S.C. § 3729 et seq. She contends that Defendant fired her in retaliation for her investigation and reporting of fraudulent actions concerning government contracts.
II. LEGAL STANDARDS A. General Summary Judgment Principles
In deciding a motion for summary judgment, the Court must determine whether "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc); Bozé v. Branstetter, 912 F.2d 801, 804 (5th Cir. 1990). Material facts are those facts "that might affect the outcome of the suit under the governing law." Smith v. Brenoettsy, 158 F.3d 908, 911 (5th Cir. 1998) (quoting Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248 (1986)). The facts are to be reviewed with all "justifiable inferences" drawn in favor of the party opposing the motion. See Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998) (citing Anderson, 477 U.S. at 255). However, factual controversies are resolved in favor of the nonmovant "only when there is an actual controversy — that is, when both parties have submitted evidence of contradictory facts." Laughlin v. Olszewski, 102 F.3d 190, 193 (5th Cir. 1996).
The party moving for summary judgment has the initial burden of demonstrating the absence of a material fact issue with respect to those issues on which the movant bears the burden of proof at trial. The movant meets this initial burden by showing that the "evidence in the record would not permit the nonmovant to carry its burden of proof at trial." Smith, 158 F.3d at 911. The burden then shifts to the nonmovant to demonstrate that summary judgment is inappropriate. See Morris, 144 F.3d at 380. This is accomplished by producing "significant probative evidence" that there is an issue of material fact so as to warrant a trial. See Texas Manufactured Hous. Ass'n v. Nederland, 101 F.3d 1095, 1099 (5th Cir. 1996), cert. denied, 117 S.Ct. 2497 (1997); Taylor v. Principal Financial Group, Inc., 93 F.3d 155, 161 (5th Cir. 1996); Transamerica Ins. Co. v. Avenell, 66 F.3d 715, 718-19 (5th Cir. 1995); Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994).
The nonmovant's burden is to produce evidence "sufficient to support a jury verdict." Morris, 144 F.3d at 380. This burden is not met by mere reliance on the allegations or denials in the non-movant's pleadings. See id. Likewise, "unsubstantiated or conclusory assertions that a fact issue exists" do not meet this burden. See id. Instead, the nonmoving party must present specific facts which show "the existence of a `genuine' issue concerning every essential component of its case." Id. Dispute about a material fact is genuine only if evidence is such that reasonable jury could return a verdict for nonmoving party. See Stafford v. True Temper Sports, 123 F.3d 291, 294 (5th Cir. 1997); Hanks v. Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir. 1992).
In the absence of any proof, the court will not assume that the nonmovant could or would prove the necessary facts. See McCallum Highlands, Ltd. v. Washington Capital Dus, Inc., 66 F.3d 89, 92 (5th Cir.), revised on other grounds upon denial of reh'g, 70 F.3d 26 (5th Cir. 1995); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc), 37 F.3d at 1075 (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990)). Rule 56 mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a sufficient showing of the existence of an element essential to the party's case, and on which that party will bear the burden at trial. See Little, 37 F.3d at 1075 (citing Celotex, 477 U.S. at 322).
B. Plaintiff's Specialized Summary Judgment Standard
Throughout its briefings in this case, Plaintiff has argued that a different summary judgment standard applies in cases where a party's state of mind is a necessary element of a cause of action. First, Plaintiff argues that "summary judgment is improper if factual issues necessary for decision involve the state of mind of a party." Plaintiff's Response, at 12. In support of this proposition, Plaintiff cites numerous pre- Celotex cases that support this proposition. See Croley v. Matson Navigation Co., 434 F.2d 73, 77 (5th Cir. 1971); Alabama Great So. RR Co. v. Louisville and Nashville RR, 224 F.2d 1 (5th Cir. 1955). Later, Plaintiff softens this stance and argues that summary judgment is usually improper when issues of a party's states of mind arise. See Plaintiff's Surreply, at 1.
The Court holds that there is no specialized summary judgment standard applicable when a party's state of mind is a necessary element of a claim. First, the Court notes that Plaintiff is relying on out-dated legal authorities and ignores the major shift in summary judgment jurisprudence brought about by Celotex. The Court recognizes that a determination of a party's state of mind often requires consideration of circumstantial evidence and requires resolution of factual issues that may make summary judgment inappropriate. Nevertheless, the non-moving party must offer enough evidence on the issue of her, his or its state of mind to support a jury verdict. See Doe v. Dallas Indep. School District, 153 F.3d 211, 215 (5th Cir. 1998) If a party fails to meet this burden, then it is entirely proper for a Court to grant a motion for summary judgment. See Guillory v. Domtar Industries, Inc., 95 F.3d 1320, 1326 (5th Cir. 1996) (finding that "the presence of an intent issue does not automatically preclude summary judgment; the case must be evaluated like any other to determine whether a genuine issue of material fact exists").
III. DISCUSSION A. Breach of Employment Contract
Plaintiff contends that an oral employment contract was created at her May 11, 1995 meeting with Manager of Employment Jerry McCarty ("McCarty") and Loral Company Attorney Richard Kaake ("Kaake"). She argues that Kaake assured her that she would not be retaliated against for bringing up the issue of employee fraud and unequivocally promised her a job upon her return from medical leave. Defendants argue that Kaake's communications to Plaintiff do not establish a binding contract. For the reasons stated below, the Court holds that Plaintiff's contract claim is not legally viable.
The Texas Supreme Court recently rejected a claim of an oral contract similar to the one Plaintiff asserts. See Montgomery County Hospital District v. Brown, 965 S.W.2d 501 (Tex. 1998). In Montgomery County, the plaintiff had worked at defendant's hospital for ten years when she was fired without cause. Plaintiff argued that when she was hired, her employer stated that they would not fire her "unless there was a good reason." Id. at 502. Plaintiff argued that defendant's promise was important to her, as she planned on relocating if she accepted a position with defendant. The Texas Supreme Court held that these representations did not establish a binding contract. The Court emphasized the longstanding Texas at-will employment doctrine, and explained that absent, a specific agreement to override the at-will relationship, an employee may be fired for almost any reason. Id. In order to prove that an oral contract had been formed, a former employee-plaintiff must show that her employer intended to change its general arrangement with the employer and to create a binding contract when the employer made its representations. Id. More particularly, "[f]or such a contract to exist, the employer must unequivocally indicate a definite intent to be bound not to terminate the employee except under clearly specified circumstances." Id. The Court further indicates that "an employee who has no formal arrangement with his employer cannot construct one out of indefinite comments, encouragements, or assurances." Id.
The Court finds, based on Plaintiff's evidence viewed in its most favorable light, that Plaintiff's conversations with McCarty and Kaake did not establish a binding contract for indefinite employment. In her affidavit, Plaintiff states that:
Mr. Kaake then guaranteed me employment at an equal level to what I had in a position outside SRQA when I returned to work. Mr. Kaake also stated that I would not be fired and that my employment would be protected while the company found me an alternate position.
Affidavit of Carolynn C. Sparks ("Sparks Affidavit"), Plaintiff's Response, Exhibit A, at 3, ¶ 10. Plaintiff's own explanation does not support her argument that she was guaranteed a leave of absence ad infinitum. First, the agreement by Plaintiff's own admission was that, when she returned to work, the company would find her an alternate position and that she would not be fired while they sought a new position for her. No evidence of any substance establishes even a fact question that Plaintiff ever returned (or even attempt to return) to work. Thus, the condition precedent — Plaintiff's return to work — to the alleged agreement never occurred.
See infra pages 19-21. The Court's view of Plaintiff's claim is reinforced by McCarty's deposition testimony, in which he stated in relevant part:
A: We indicated to her upon release from her physician to return to work that we would find her employment.
Q: And isn't it also true . . . that Ms. Sparks was told during that meeting that she should not fear that her job was being threatened in any way by her coming forward?
A: Absolutely. That's part of our policy.
Q: Is it your testimony . . . that it is your understanding that if Ms. Sparks had come back with a doctor's release that you found sufficient . . . there would have been a job for her to do?
A: No
A: My response is that if she returned within the period of time that our policy said she could return, her job with SRQA would be available for her to return in. If she wished for us to look for another job outside of SRQA, we would do so.
Deposition of Jerry McCarty, Plaintiff's Response, Exhibit B, at 21-22. Thus, McCarty's explanation coincides with Plaintiff's that she needed to return to work before any job placement would be undertaken.
Second, there is nothing in Plaintiff's own explanation on which to base her argument that Defendants promised she would be employed regardless of her performance in her job. Plaintiff's own testimony concerning her oral agreement was that she and Kaake did not discuss whether or not Defendant could ever terminate Plaintiff's employment. Plaintiff testified:
Q: With respect to that job that you've just referred to, did you and Mr. Kaake discuss whether Loral would have to have good cause to terminate you from that position?
A: No.
See Sparks Deposition, at 315.
In addition, to the factual conclusion that Plaintiff cannot establish a binding employment contract that guaranteed her a leave in perpetuity, or a leave beyond the length otherwise available to Defendants' employees, the Court concludes as a matter of law that Plaintiff has not proffered evidence to meet her summary judgment burden to raise a genuine fact question that a binding contract was offered by Defendants, to satisfy the requirements of Montgomery County. Defendants' representatives did not commit to alter the company's at-will employment relationship with Plaintiff. Rather, Kaake's alleged statements evinced an intent to reassure Plaintiff that she would not suffer retaliation for reporting other employees' alleged misconduct. Kaake's alleged statements are comparable to those addressed in Montgomery County. Nothing to which Plaintiff points suggests that Kaake was intending to create a binding employment contract by transforming Plaintiff from an "at-will" employee to a "for-cause" employee.
B. ADA Claim
Defendants argue that Plaintiff's ADA claim is barred by the ADA's statute of limitations. Defendants contend that Plaintiff's cause of action accrued when she learned that she was discharged, May 13, 1996. Plaintiff did not file her Charge of Discrimination until 385 days later, on June 2, 1997. See de Cardenas Affidavit, Attachment 14. Defendants contend that Plaintiff's failure to satisfy the ADA's 300-day time limit requires dismissal of Plaintiff's ADA claim.
Plaintiff counters that her ADA claim is timely because she allegedly did not become aware of her discharge until October 18, 1996. She contends that the 300-day ADA limitations period, therefore, had not expired when she filed her charge of discrimination on June 2, 1997.
ADA Statute of Limitations. — The ADA incorporates the procedures set forth by the Equal Employment Opportunities Commission ("EEOC"). See 42 U.S.C. § 12117(a). Under these procedures, a plaintiff must file a charge of discrimination with the EEOC within 180 days "after the alleged unlawful employment practice occurred." 42 U.S.C. § 2000e-5(e)(1). If a claimant originally seeks redress through a state or local agency, this time period is extended to 300 days. Id.
Courts have adopted an objective measure for determining when this limitations period begins. The limitations period begins "when the employee receives unequivocal notice of the facts giving rise to his claim or a reasonable person would know of the facts giving rise to a claim." Burfield v. Brown, Moore Flint, Inc., 51 F.3d 583, 589 (5th Cir. 1995) (citing Thurman v. Sears Roebuck Co., 952 F.2d 128, 134 (5th Cir. 1992)). Date of Plaintiff's Discharge. — Both parties agree that the date on which Plaintiff knew of her discharge determines when the statute of limitations began in this case. Defendants argue that Plaintiff was informed explicitly of her discharge on May 13, 1996. Plaintiff argues that Defendants did not discharge Plaintiff on this date; she contends that on that day Defendants told her that they would continue to look for a job outside of SRQA and that they did not inform her that she had been terminated.
In her Amended Petition, Plaintiff asserts two separate theories under the ADA. She argues that Defendants discriminated against her on the basis of her disability and that Defendants failed to accommodate her disability. The Court notes that under either theory, the date of Plaintiff's discharge is the point of reference limitations purposes.
The Court finds that the evidence overwhelmingly establishes that Plaintiff knew or should have known of her discharge on or about May 13, 1996. On May 13, 1996, Julie de Cardenas, the Senior Benefits Specialist in Defendants' Human Resources Department, sent Plaintiff a letter stating that Plaintiff had exceeded the one-year limit for medical leave under Defendants' policies. See de Cardenas Affidavit, Exhibit C-9. The letter further stated that:
Please be advised that you must notify me prior to May 24, 1996 of your intention to return to work.
Employees who are unable to return to work at the expiration of the leave . . . will be terminated. . . . If this is the case, your termination of employment will be effective May 4, 1996.Id. Plaintiff admits that she received the May 13th letter. See Sparks Deposition, at 398. This is confirmed by Plaintiff's letter to de Cardenas dated October 18, 1996, stating that, "In your letter dated May 13, 1996, you notified me of my termination and included a detailed listing of my benefit options." See Sparks Deposition, Exhibit 14. In addition, Plaintiff testifies that the receipt of this letter caused her to give a special Power of Attorney to Don Borque. Id. Plaintiff specifically authorized Borque to collect her personal belongings remaining at Defendants' office. Id.
Ms. de Cardenas testifies that Plaintiff never responded personally to the May 13, 1996 letter. See de Cardenas Affidavit, at 8, ¶ 20. Instead, de Cardenas received a fax from Borque on May 16, 1996, which stated that Plaintiff was unable to negotiate with Defendants, and that he was granted power of attorney. See Affidavit of Julie de Cardenas; see also Defendants' Motion, Exhibit C-10. Borque's fax further stated that Plaintiff was "unable to return to work at this time" and added: "Regardless of the manner in which you propose to terminate Carolynn C. Sparks' employment, Carolynn C. Sparks wishes to continue the Medical Health coverage." Id.
Plaintiff objects to de Cardenas' affidavit, as it is "too vague" and not based on personal knowledge. In particular, Plaintiff objects to paragraph 9 where de Cardenas states that, "I do not recall Sparks advising me of her release for work. . . ." Plaintiff's argument concerning this testimony is not persuasive. Plaintiff contends that de Cardenas' statement, "I do not recall" indicates that de Cardenas has no personal knowledge of the subject on which she is testifying. Plaintiff misses the whole point of this testimony, namely, to show that Plaintiff never informed de Cardenas that she was released to return to work. Plaintiff's evidentiary arguments are without merit.
In contrast to this overwhelming, indeed, apparently conclusive, evidence demonstrating that on or about May 13, 1996, Plaintiff had actual knowledge that her employment was ending effective May 4, 1996, because Plaintiff had no intention of returning to work by May 24, 1996, Plaintiff offers her own self-serving, unsupported and contradictory testimony that she did not learn of her termination until October 1996.
Plaintiff also offers the testimony of her supervisor, John Vogel, that he did not learn of Plaintiff's discharge until October 1996. Id. at 131. Vogel explains that he learned of Plaintiff's termination when Defendants requested use of Plaintiff's office, see Deposition of John Vogel, Plaintiff's Motion, Exhibit D, at 128, and noted that it was unusual for him to remain uninformed about the discharge of one of his employees. Id. at 146.
Vogel's testimony amounts at best to a mere scintilla of evidence in the context of the entire summary judgment record. Vogel's own knowledge is not the issue in this case. Vogel's awareness of Plaintiff's formal employment status is of marginal, if any, relevance since Plaintiff had been on leave from work for over a year when she was discharged. Vogel inevitably had had to make arrangements to cover Plaintiff's duties long before her termination; Plaintiff's termination thus had little or no significance to Vogel and his lack of knowledge is incidental.
The evidence presented is insufficient to raise a genuine fact question as to the timeliness of Plaintiff's ADA claim. See Dallas Indep. School Dist., 153 F.3d at 215 (holding that "the mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient [to preclude summary judgment].") Plaintiff has failed to proffer sufficient evidence to create a genuine issue that she did not know of her termination on or about May 13, 1996. Thus, Plaintiff's failure to file her charge of discrimination within 300 days of May 13, 1996, renders her ADA claim is time barred. C. FMLA Claim
Defendants also contend that Plaintiff's FMLA claim is time-barred. Defendants argue that Plaintiff's FMLA leave began on May 3, 1995, and ended twelve weeks later on August 3, 1995. Plaintiff commenced this litigation until December 8, 1997, well after expiration of the two year statute of limitations. See 29 U.S.C. § 2617(c)(1). Defendants further argue that Plaintiff was unable to return to work at the end of her twelve-week FMLA leave, and therefore Defendants' duties under the FMLA ended at that time, August 3, 1995.
There are three distinct causes of action under the FMLA. First, the FMLA creates a series of substantive rights concerning medical leave, and a plaintiff may argue that the employer has not furnished the leave to which the employee is entitled. See Hodgens v. General Dynamics Corp., 144 F.3d 151, 159 (1st Cir. 1998). An employee also may claim that her employer retaliated against her because she exercised rights under the FMLA. Hodgens, 144 F.3d at 160. Last, an employee who has taken a leave may argue that the employer failed to restore the employee to his or her pre-leave employment position. It has been held that § 2641(a)(1) is a "prescriptive mandate" that requires employers to take "affirmative steps in order to satisfy the statute." Cross v. Southwest Recreational Industries, 17 F. Supp.2d 1362, 1368 (N.D. Ga. 1998). The court goes on to state that the "FMLA thus imposes strict liability upon employers who deny a FMLA entitlement to a qualified employee." Id. In her First Amended Complaint, Plaintiff seems to assert the second and third causes of action discussed above.
Plaintiff does not contest Defendants' assertion that her claim is barred under the two year statute of limitation. Rather, Plaintiff argues that Defendants' conduct amounted to a callous disregard of Plaintiff's FMLA rights, and thus a "willful" violation of the FMLA. This allegedly willful violation, Plaintiff argues, triggers a three year statute of limitations under the FMLA, see 29 U.S.C. § 2617(c)(2), and thus her FMLA claim is not time barred.
FMLA Rights Generally. — The FMLA, 29 U.S.C. § 2601 et seq. (1994), grants eligible employees up to twelve weeks of unpaid leave each year "[b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612(a)(1)(D). The FMLA provides further that upon return from leave, an employee shall be restored to the position of employment he or she held when the leave commenced, or given an equivalent position. See id. § 2614(a)(1). If an employee is unable to return from work after twelve weeks of leave, the employer is no longer under a duty to provide the employee with her former position. See 29 U.S.C. § 2614(a)(1) (stating that employee entitled to FMLA reinstatement only "return from such leave"); see also Cehrs v. Northeast Ohio Alzheimer's Research Center, 155 F.3d 775, 779 (6th Cir. 1998) (agreeing with district court that FMLA protections unavailable for plaintiff who is unable to return to work after twelve weeks).
The FMLA defines "serious health condition" as "an illness, injury, impairment, or physical or mental condition that involves — (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider." 29 U.S.C. § 2611(11). A serious health condition involves, among other things, "[a]ny period of incapacity or treatment in connection with or consequent to impatient care . . . in a hospital, hospice, or residential medical care facility." 29 C.F.R. § 825.114(a) (1994). "Continuing treatment" means, among other things, that "[t]he . . . family member is under the continuing supervision of, but not necessarily being actively treated by, a health care provider due to a serious long-term or chronic condition or disability which cannot be cured. . . ." 29 C.F.R. § 825.114(b) (1994).
Standard of Proof for Willful Violation. — The FMLA provides that a three-year statute of limitations applies in cases where the employer's violation is willful. Plaintiff argues that she has alleged facts sufficient to support her claim of willfulness, and this alone answers Defendants' summary judgment arguments concerning the timeliness of Plaintiff's FMLA claim. Plaintiff cites, however, only cases that address motions for dismissal. See Settle v. Rodgers, CO., Inc., 998 F. Supp. 657 (E.D. Va. 1998); Pfister v. Allied Corporation, 539 F. Supp. 224 (S.D.N.Y. 1982). At the motion to dismiss stage of a proceeding, courts are limited to the allegations in the plaintiff's pleadings. The case at bar is in a different posture; Defendants have sought summary judgment which requires an assessment of legal issues on the basis of the evidentiary record before the Court. See Celotex, 477 U.S. at 322-23. Thus, Plaintiff must produce enough evidence on this issue to raise a genuine question of fact, which requires evidence to be adduced by the non-movant (here, Plaintiff) to support a jury finding of Defendants' willful intent. Plaintiff has failed to meet her burden.
Plaintiff's Ability to Return to Work. — The core of Plaintiff's argument concerning Defendants' "willful" violation concerns whether or not Plaintiff was able to return to work after her twelve-week leave. She argues that Defendants had ample evidence indicating her ability and desire to return to work in July 1995. Plaintiff contends that Defendants ignored this evidence and purposefully prevented her from returning to work. Plaintiff deduces that Defendants therefore are responsible for her failure to return to work after the expiration of her twelve-week medical leave, and their conduct constituted callous disregard of Plaintiff's rights and a willful violation of her rights under the FMLA.
Plaintiff points to several items to support her claim of a willful violation. First, Plaintiff states in her affidavit that she sent McCarty a letter on June 16, 1995, informing Defendants that she expected to return from work on July 1, 1995, see Sparks Affidavit, at 3. Plaintiff fails, however, to include a copy of this correspondence and de Cardenas states that there is no record of any letter received from Plaintiff stating that she wished to return to work in July or otherwise. See de Cardenas Affidavit, at 4, ¶ 9. Plaintiff also relies on a letter that her doctor, Dr. Privitero, sent to Defendants, dated July 27, 1985, that Plaintiff contends informed Defendants that she was released to return to work. Id.; see also Defendants' Motion, Exhibit E, at 1.
Plaintiff's contentions lack merit. Plaintiff's evidence does not support her contentions. Plaintiff's characterization of Dr. Privitero's letter as a release to return to work defies explanation. The document to which Plaintiff refers is a "FMLA Certification Form" that Defendants sent to Plaintiff. See Defendant's Motion, Exhibit E, at 1. This form is required of Defendants' employees who request medical leave. See de Cardenas Affidavit, at 4, ¶ 9. In any event, the doctor writes, "In my opinion, the Employee will not be able to return to work until (provide date if possible): Undetermined." Plaintiff's assertion that she was able and willing to return to work on July 1, 1995, thus is entirely unsupported by the evidence in the record.
It is inconceivable that Plaintiff intentionally characterized this letter as an indication of her intent to return to work. The citation is misleading at best.
It is noted that other evidence in the record belies Plaintiff's current position on her ability to work as of July 1995. Plaintiff applied for disability benefits on January 17, 1996. See Certification of Continuous Disability, Sparks Deposition, Exhibit 17. In that connection, Plaintiff stated that, "I have been continuously and totally disabled from: May 1, 1995." Id.
Plaintiff thus has failed to present any evidence to support her claim that Defendants violated her FMLA rights, let alone violated it willfully.
D. False Claims Act Claim
Defendants finally contend that Plaintiff has not presented evidence sufficient to survive summary judgment on her False Claims Act claim. See 31 U.S.C. § 3729. First, Defendants contend that Plaintiff cannot show that she engaged in activity protected by the False Claims Act. Second, Defendants contend that Plaintiff cannot establish that Defendants knew about Plaintiff's activities. Finally, Defendants argue that Plaintiff cannot establish the necessary causal nexus between her report of fraud and her discharge a year later.
General Legal Principles. — The False Claims Act ("FCA") contains an anti-retaliatory provision that states:
Any employee who is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against . . . because of lawful acts done by the employee on behalf of the employee or others in furtherance of an action under this section, including investigation for, initiation of, testimony for, or assistance in an action filed or to be filed under this section, shall be entitled to all relief necessary to make the employee whole.31 U.S.C. § 3730(h). In order to bring an action under § 3730(h), an employee must show that (1) the employee engaged in activity protected by the FCA, and (2) their employer knew about this activity. See Robertson v. Bell Helicopter Textron, Inc., 32 F.3d 948, 951 (5th Cir. 1994). In addition, the employee must show that one of the adverse employment actions listed in § 3730 was taken "because of" this protected activity. See United States, ex rel. Yesudian v. Howard University, 153 F.3d 731, 736 (D.C. Cir. 1998).
Adverse Employment Action. — Assuming that Plaintiff can establish that she engaged in activity protected by the FCA, Plaintiff also must present sufficient evidence to raise a fact issue concerning a connection between her reporting of workplace fraud and her eventual discharge. See 31 U.S.C. § 3730(h) (adverse action must be "because of lawful acts done by the employee"). To establish this causal connection, an employee must show (1) "the employer had knowledge the employee was engaged in the protected activity" and (2) "the retaliation was motivated in part, by the employee's engaging in that protected activity." Ex rel. Yesudian, 153 F.3d at 736 (citing S. Rep. No. 99-345, at 25, reprinted in 1986 U.S.C.C.A.N., at 5300). Once an employee establishes these two elements, "the burden shifts to the employer to prove affirmatively that the same decision would have been made even if the employee had not engaged in protected activity." Id.
Defendants contend that they were unaware that Plaintiff was engaged in any activity protected by the FCA. In Robertson, the Fifth Circuit affirmed the district court's granting of a motion for judgment as a matter of law on the question of employer knowledge. See Robertson, 32 F.3d at 948. The employee in Robertson complained to his supervisors about the lack of verification procedures for additional funding requests under military contracts. Id. at 950. In contrasting this case with others in which courts found that notice had been provided, the Fifth Circuit noted:
In the cases cited above, the employees did not file qui tam actions, but they did express concerns about possible fraud to their employers . . . By contrast . . . Robertson admitted that he never used the terms `illegal', `unlawful', or `qui tam action' in characterizing his concerns about Bell's charges.Id. at 951.
The Court finds that Plaintiff has raised a genuine fact issue on the material question of whether Defendants were notified of Plaintiff's protected behavior. In her May 1, 1995, letter to Dalton, Plaintiff states that "[t]he contract on which I work is an environment that is infiltrated with government fraud." See Letter from Carolynn Sparks to Brian Dalton dated May 1, 1995, Sparks Deposition, Exhibit 3. Unlike the plaintiff in Robertson, Plaintiff seems to have directly communicated a concern with illegal fraudulent activities concerning a government contract. Therefore, the Court concludes that Plaintiff has presented evidence sufficient to meet her summary judgment burden on the issue of whether Defendants knew of her protected activity.
Plaintiff's FCA claim, however, cannot survive Defendants' motion because Plaintiff has adduced no evidence that her termination was in retaliation for the protected activity. See Ex rel. Yesudian, 153 F.3d at 736. First, Plaintiff offers no evidence that her discharge was motivated by retaliation for her report of illegality. Plaintiff's deposition testimony suggests that her supervisors were receptive to her reports. Defendants' representatives even requested that Plaintiff help them to identify procedures to remedy the problems. See Sparks Deposition, at 197. Second, Defendants have adduced substantial, uncontroverted evidence that Plaintiff's employment was terminated because she exceeded the one-year personal leave policy that applied to all employees. See de Cardenas Affidavit, at 7, ¶ 18. In support of this contention, de Cardenas provides specific information on seven other employees who were discharged for this same reason between 1993 and 1996. Id.
As to Plaintiff's contention that Defendants prevented her from returning to work, the evidence submitted fails to support her position, as discussed in preceding sections of this Memorandum and Order. Therefore, the Court concludes Plaintiff has not proffered evidence sufficient to sustain a jury verdict on the intent element of her FCA claim, and summary judgment is appropriate on this cause of action.
IV. CONCLUSION
Based on the reasons discussed above, the Court concludes that Defendants' Motion for Summary Judgment [Doc. # 30] should be GRANTED. It is therefore
ORDERED that Defendants' Motion for Summary Judgment [Doc. # 30] should be GRANTED. This case will be DISMISSED with prejudice.