Epperson v. Evonik Corp.
| Decision Date | 25 November 2019 |
| Docket Number | CIVIL ACTION NO. 2:18-cv-01612-KOB |
| Citation | 426 F.Supp.3d 1228 |
| Parties | Ray EPPERSON, Plaintiff, v. EVONIK CORPORATION, Defendant. |
| Court | U.S. District Court — Northern District of Alabama |
J Allen Schreiber, Taylor Akers Pruett, Schreiber Law Firm, Birmingham, AL, Richard Steven Cole, Mann and Potter PC, Birmingham, AL, for Plaintiff.
Whitney R Brown, Lehr Middlebrooks & Vreeland PC, Birmingham, AL, Patrick L Lail, Pro Hac Vice, Elarbee Thompson Sapp & Wilson LLP, Stanford G Wilson, Pro Hac Vice, Elarbee Thompson & Trapnell, Atlanta, GA, for Defendant.
This FMLA matter comes before the court on Defendant Evonik Corporation's motion for the court to reconsider its memorandum opinion and order granting in part and denying in part Evonik's motion for judgment on the pleadings as to Plaintiff Ray Epperson's FMLA interference and retaliation claims. (Doc. 35). The court granted the motion for judgment on the pleadings as to the interference claim but denied the motion as to the retaliation claim.
Evonik asserts that the court committed two errors in denying the motion for judgment on the pleadings as to the FMLA retaliation claim. First, Evonik contends that the court committed a legal error by relying on Pereda v. Brookdale Senior Living Communities, Inc. , 666 F.3d 1269 (11th Cir. 2012), in finding that Mr. Epperson could pursue an FMLA retaliation claim even though he failed to state an FMLA interference claim. Second, Evonik contends that the court committed a factual error by finding that Evonik gave inconsistent reasons for terminating Mr. Epperson which led to the court's erroneous legal decision that he plausibly alleged that Evonik's articulated reason for terminating him was pretext for retaliation. For the following reasons, the court will grant the motion to reconsider based on its factual error that led to an erroneous legal decision on the issue of pretext.
The court provides an "extraordinary remedy" when it reconsiders its order and so should grant reconsideration sparingly. Rueter v. Merrill Lynch, Pierce, Fenner & Smith, Inc. , 440 F. Supp. 2d 1256, 1267–68 (N.D. Ala. 2006). The court will reconsider an order in three situations: (1) "an intervening change in controlling law"; (2) "the availability of new evidence"; or (3) "the need to correct clear error or manifest injustice."
Wallace v. Holder , 846 F. Supp. 2d 1245, 1248 (N.D. Ala. 2012) (quotation and citation omitted). And in no event may a party use a motion to reconsider to address " ‘[a]dditional facts and arguments that should have been raised in the first instance’ " or " ‘to set forth new theories of law.’ " Id. (). Evonik moves the court to reconsider its memorandum opinion and order under the "need to correct clear error or manifest injustice" standard.
In his amended complaint, Mr. Epperson alleges that he requested FMLA leave from his employer, Evonik, because of a serious medical need. Evonik instructed Mr. Epperson to provide medical certification from his doctor to support his request for FMLA leave. Mr. Epperson asked his doctor to provide the medical certification and then took several days off from work under what he thought was FMLA leave. But Evonik never received any medical certification from Mr. Epperson or his doctor.
When Mr. Epperson returned to work after several absences, Evonik informed him that it never received his medical certification, so the leave that Mr. Epperson took was not FMLA leave. Shortly after, Evonik terminated Mr. Epperson for those unexcused absences.
Mr. Epperson brought an interference claim and a retaliation claim against Evonik under the FMLA. He alleged that, by terminating him, Evonik interfered with his rights under the FMLA and retaliated against him for requesting FMLA leave in violation of 29 U.S.C. § 2615.
Evonik moved for judgment on the pleadings on both claims. The company asserted that Mr. Epperson could not state an interference or retaliation claim without first alleging that he was entitled to FMLA protection. According to Evonik, because Mr. Epperson never submitted his medical certification as required by 29 U.S.C. § 2613(a), Mr. Epperson was not entitled to FMLA protection and thus could not state any FMLA claim.
The court agreed that Mr. Epperson failed to allege an FMLA interference claim. But, in its original memorandum opinion, the court disagreed with Evonik's argument that Mr. Epperson did not state an FMLA retaliation claim. In doing so, the court first differentiated an FMLA retaliation claim from an FMLA interference claim:
On the other hand, to state a retaliation claim based on a request for FMLA leave, a plaintiff does not have to show he was entitled to FMLA leave at the time of the request. See Pereda v. Brookdale Senior Living Communities, Inc. , 666 F.3d 1269, 1276 (11th Cir. 2012) (). Instead, the plaintiff needs to show "he engaged in activity protected by the Act." Strickland [v. Water Works & Sewer Bd. of City of Birmingham ], 239 F.3d [1199,] 1206 [ (11th Cir. 2001) ].
(Doc. 32 at 7–8) (emphasis in original). The court then found that Mr. Epperson engaged in activity protected by the FMLA by "requesting foreseeable FMLA leave in good faith from Evonik and explaining that he required leave for his serious health issues, a potentially FMLA-qualifying reason." (Id. at 10) (citing Pereda , 666 F.3d at 1276, and Cruz v. Publix Super Markets, Inc. , 428 F.3d 1379, 1385–86 (11th Cir. 2005) ). And Mr. Epperson rounded out his plausible prima facie retaliation claim by alleging a close temporal proximity between his request for FMLA leave and his termination.
The burden then shifted to Evonik to articulate a legitimate non-retaliatory reason for terminating Mr. Epperson. Evonik satisfied this burden by asserting that it terminated Mr. Epperson for taking medical leave to which he was not entitled, resulting in several unexcused absences.
When the burden shifted back to Mr. Epperson to allege that Evonik's articulated reason for terminating him was plausibly pretext for retaliation, the court found that Mr. Epperson had sufficiently alleged pretext because "Evonik's own documents show that Mr. Epperson left the company for a different and false reason; i.e. , that he voluntarily resigned." (Doc. 32 at 10). So Mr. Epperson asserted that Evonik's articulated reason for terminating him was not the real reason for his termination and thus alleged pretext to survive the motion for judgment on the pleadings. The present motion to reconsider followed. The court then entered an order for Mr. Epperson to show cause why the court should not grant the motion to reconsider. The court discusses Mr. Epperson's response below.
Evonik asserts that the court, in finding that Mr. Epperson could pursue an FMLA retaliation claim, misapplied Pereda and erroneously found that Mr. Epperson plausibly alleged pretext because of Evonik's supposedly inconsistent reasons for terminating him. The court addresses both arguments in turn.
The court turns first to Evonik's contention that the court misapplied Pereda .
In the court's memorandum opinion, and as stated above, the court found that Pereda establishes that, "to state a retaliation claim based on a request for FMLA leave, a plaintiff does not have to show he was entitled to FMLA leave at the time of the request." (Doc. 32 at 7–8) (emphasis in original) (citing Pereda , 666 F.3d at 1276 ). Evonik contends the court incorrectly interpreted Pereda because the plaintiff in that case who stated an actionable retaliation claim based on a request for foreseeable FMLA leave made a " ‘pre-eligibility request for post-eligibility maternity leave.’ " (Doc. 35 at 3) (emphasis in original) (quoting Pereda , 666 F.3d at 1275 ). The court disagrees that it committed error regarding application of Pereda .
In Pereda , at the time that plaintiff requested FMLA maternity leave, she had not worked for her employer for at least 12 months and was thus not eligible for FMLA leave. See 29 U.S.C. § 2611(2)(A)(i) (). But her requested leave would begin after she had approximately 14 months of employment; at that point, she would be an eligible employee under the FMLA. And as Evonik notes, the Eleventh Circuit found that her pre-eligibility request for post-eligibility FMLA leave could support a retaliation claim based on her request for FMLA leave. Pereda , 666 F.3d at 1276.
But, as the court stated in its memorandum opinion, the Eleventh Circuit also found that the FMLA protects employees from retaliation for requesting foreseeable FMLA leave even if the employee is not entitled to the FMLA leave at the time of the request. See Pereda , 666 F.3d at 1276 () (citing 29 C.F.R. § 825.220 ). So the court did not commit a legal error in finding that Pereda established that general proposition of law.
Also, the Eleventh Circuit found that the plaintiff in Pereda was not "entitled" to maternity leave at the time of her request—independent of whether she was "eligible" for the FMLA leave under the Act's 12-month requirement—because she had not yet experienced the "triggering event" of giving birth. Pereda , 666 F.3d at 1276. But the plaintiff's request could nevertheless support a retaliation claim because the Eleventh Circuit found, again, that "the FMLA protects Pereda from retaliation, even though at the time of her...
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