Moore v. GPS Hospitality Partners IV, LLC, CIVIL ACTION 17-0500-WS-N

• Citation: 383 F.Supp.3d 1293
• Decision Date: 03 June 2019
• Docket Number: CIVIL ACTION 17-0500-WS-N
• Parties: Lashondra MOORE, Plaintiff, v. GPS HOSPITALITY PARTNERS IV, LLC, etc., Defendant.
• Court: U.S. District Court — Southern District of Alabama

383 F.Supp.3d 1293

Lashondra MOORE, Plaintiff,

v.GPS HOSPITALITY PARTNERS IV, LLC, etc., Defendant.

CIVIL ACTION 17-0500-WS-N

United States District Court, S.D. Alabama, Southern Division.

Signed June 3, 2019

Abby Morrow Richardson, Richardson Law Firm, LLC, Henry H. Brewster, Henry Brewster, LLC, Mobile, AL, for Plaintiff.

Wesley C. Redmond, Susan Ware Bullock, FordHarrison LLP, Birmingham, AL, for Defendant.

ORDER

WILLIAM H. STEELE, UNITED STATES DISTRICT JUDGE

This matter is before the Court on the defendant's motion for summary judgment and the plaintiff's motion for partial summary judgment. (Docs. 50, 51). The parties have submitted briefs and evidentiary materials in support of their respective positions, (Docs. 50-52, 54-55, 58-59), and the motions are ripe for resolution. After careful consideration, the Court concludes that the defendant's motion is due to be denied and the plaintiff's motion granted in part and denied in part.

BACKGROUND

According to the amended complaint, (Doc. 9), the plaintiff was employed by the defendant, the owner of a number of Burger King restaurants. The plaintiff sought FMLA leave in February 2017 to care for her hospitalized mother but did not receive such leave and instead was terminated days later. The complaint asserts claims for interference with the plaintiff's FMLA rights and retaliation for exercising those rights. The defendant seeks summary judgment as to both claims. The plaintiff seeks summary judgment as to her interference claim.

DISCUSSION

Summary judgment should be granted only if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The party seeking summary judgment bears "the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial." Clark v. Coats & Clark, Inc. , 929 F.2d 604, 608 (11th Cir. 1991). The moving party may meet its burden in either of two ways: (1) by "negating an element of the non-moving party's claim"; or (2) by "point[ing] to materials on file that demonstrate that the party bearing the burden of proof at trial will not be able to meet that burden." Id. "Even after Celotex it is never enough simply to state that the non-moving party cannot meet its burden at trial." Id. ; accord Mullins v. Crowell , 228 F.3d 1305, 1313 (11th Cir. 2000) ; Sammons v. Taylor , 967 F.2d 1533, 1538 (11th Cir. 1992).

"When the moving party has the burden of proof at trial, that party must show affirmatively the absence of a genuine issue of material fact: it must support its motion with credible evidence ... that would entitle it to a directed verdict if not controverted at trial. [citation omitted] In other words, the moving party must show that, on all the essential elements of its case on which it bears the burden of proof, no reasonable jury could find for the nonmoving party." United States v. Four Parcels of Real Property , 941 F.2d 1428, 1438 (11th Cir. 1991) (en banc) (emphasis in original); accord Fitzpatrick v. City of Atlanta , 2 F.3d 1112, 1115 (11th Cir. 1993).

"If the party moving for summary judgment fails to discharge the initial burden, then the motion must be denied and the court need not consider what, if any, showing the non-movant has made." Fitzpatrick , 2 F.3d at 1116 ; accord Mullins , 228 F.3d at 1313 ; Clark , 929 F.2d at 608.

"If, however, the movant carries the initial summary judgment burden ..., the responsibility then devolves upon the non-movant to show the existence of a genuine issue of material fact." Fitzpatrick , 2 F.3d at 1116. "If the nonmoving party fails to make ‘a sufficient showing on an essential element of her case with respect to which she has the burden of proof,’ the moving party is entitled to summary judgment." Clark , 929 F.2d at 608 (quoting Celotex Corp. v. Catrett , 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ) (footnote omitted); see also Fed. R. Civ. P. 56(e)(2) ("If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may ... consider the fact undisputed for purposes of the motion ....").

In deciding a motion for summary judgment, "[t]he evidence, and all reasonable inferences, must be viewed in the light most favorable to the nonmovant ...." McCormick v. City of Fort Lauderdale , 333 F.3d 1234, 1243 (11th Cir. 2003).

I. Interference Claim.

"It shall be 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). "An interference claim has two elements: (1) the employee was entitled to a benefit under the FMLA; and (2) her employer denied her that benefit." White v. Beltram Edge Tool Supply, Inc. , 789 F.3d 1188, 1191 (11th Cir. 2015).

The first element identified in White subsumes several sub-elements. As relevant to this case, these include the following: (1) that the defendant is a covered entity; (2) that the plaintiff is eligible for FMLA benefits; (3) that the plaintiff sought leave for a qualifying reason; and (4) that the plaintiff provided notice meeting certain criteria.¹ The defendant's argument targets only this final sub-element of the first element; however, because the plaintiff moves for summary judgment on her interference claim, the Court must consider all elements of that claim.

A. Covered Entity.

The defendant must be an "employer" that is "engaged in commerce or in any industry or activity affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year." 29 U.S.C. § 2611(4)(A)(i). The defendant admits that this requirement is satisfied. (Doc. 9 at 2, ¶ 7; Doc. 15 at 2, ¶ 7).

B. Eligibility.

To be eligible to receive FMLA benefits, the plaintiff must have "been employed ... for at least 12 months by the employer with respect to whom leave is requested ... and ... for at least 1,250 hours of service with such employer during the previous 12-month period." 29 U.S.C. § 2611(2)(A). In addition, the plaintiff must be employed at a worksite where, or within 75 miles of which, the defendant employs at least 50 employees. Id. § 2611(2)(B)(ii). The defendant admits that all parts of these requirement but one are satisfied. (Doc. 9 at 2, ¶¶ 5, 7; Doc. 15 at 2, ¶¶ 5, 7).

The defendant in its answer does not admit that the plaintiff had been employed by the defendant for at least twelve months, but neither does it dispute the plaintiff's assertion that she is an eligible employee. (Doc. 50 at 13). It is uncontroverted that the defendant became the plaintiff's employer in December 2016, less than two months before the plaintiff was terminated.² It is also uncontroverted, however, that the defendant in December 2016 purchased 190 Burger King restaurants, including the plaintiff's store, from Strategic Solutions ("Strategic"), and that the defendant retained the employees of Strategic, transitioning them directly into employment by the defendant, complete with retention of entitlement to benefits, including FMLA eligibility.³

The term "employer" includes "any successor in interest of an employer." 29 U.S.C. § 2611(4)(A)(ii)(II). The relevant factors include: (1) substantial continuity of the same business operations; (2) use of the same plant; (3) continuity of the work force; (4) similarity of jobs and working conditions; (5) similarity of supervisory personnel; (6) similarity in machinery, equipment, and production methods; (7) similarity of products or services; and (8) the ability of the predecessor to provide relief. 29 C.F.R. § 825.107(a).

The first seven factors all plainly support successor status: the defendant purchased almost 200 Burger King restaurants and retained all personnel and equipment to provide the same products in the same manner and by the same means at the same locations. The final factor is relevant only when the successor is sought to be held liable for the infractions of the predecessor and so is not relevant here.⁴

"A successor which meets FMLA's coverage criteria must count periods of employment and hours of service with the predecessor for purposes of determining employee eligibility for FMLA leave." 29 C.F.R. § 825.107(c). Because the defendant is Strategic's successor, and because the defendant meets the FMLA's coverage criteria, the plaintiff's length of employment with Strategic must be added to her two months with the defendant to determine her eligibility. It is uncontroverted that the plaintiff was employed by the defendant's predecessor for several years before the defendant's acquisition.⁵ The plaintiff therefore satisfies the FMLA's eligibility requirements.

C. Qualifying Reason.

An eligible employee may receive FMLA leave "in order to care for the ... parent ... of the employee, if such ... parent has a serious health condition." 29 U.S.C. § 2612(a)(1)(C). A "serious health condition" includes "an illness, injury, impairment, or physical or mental condition that involves ... inpatient care in a hospital ...." Id. § 2611(11)(A). It is uncontroverted that the plaintiff's mother was hospitalized from February 5, 2017 to well past the termination of the plaintiff's employment and that the plaintiff provided care to her mother throughout this period.⁶ The plaintiff therefore sought leave for a qualifying reason.

D. Employee Notice.

A plaintiff "must also give her employer notice of her need for leave, ... and she can state an interference claim only if she gave proper notice ...." White , 789 F.3d at 1195. Notice "must satisfy two criteria – timing and content," and the parameters of these criteria depend on whether the need for leave is "foreseeable" or "unforeseeable." Id.

The defendant does not challenge the content or timing of the plaintiff's notice. Instead, the defendant argues ...