Smith v. Bellsouth Telecommunications Intern.

• Decision Date: 24 October 2000
• Docket Number: No. CV99-H-1720-S.,CV99-H-1720-S.
• Parties: Arthur Leroy SMITH, Plaintiff, v. BELLSOUTH TELECOMMUNICATIONS, INTERNATIONAL, INC. Defendant.
• Court: U.S. District Court — Northern District of Alabama

117 F.Supp.2d 1213

Arthur Leroy SMITH, Plaintiff, v. BELLSOUTH TELECOMMUNICATIONS, INTERNATIONAL, INC. Defendant.

No. CV99-H-1720-S.

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

October 24, 2000.

Marvin L Stewart, Jr., Heather E. Newsom, the Stewart Law Group PC, Birmingham, AL, for Arthur Leroy Smith, plaintiffs.

Leon H. Lee, Jr., BellSouth Telecommunications Inc., Atlanta, GA, for BellSouth Telecommunications, Inc., defendants.

MEMORANDUM OF DECISION AND ORDER

HANCOCK, Senior District Judge.

The Court has before it the June 1, 2000 motion of defendant BellSouth Telecommunications, Inc. ("BST") for summary judgment and the June 1, 2000 cross-motion of plaintiff Arthur Leroy Smith ("Smith") for partial summary judgment.¹ Pursuant to the Court's June 6, 2000 order and subsequent orders permitting additional briefs, the motions are now under submission.

I. Procedural History

On July 19, 2000, the Court granted defendant's motion for summary judgment as to all of plaintiff's claims under § 1981. In that Order, the Court expressly reserved judgment on the motion as to plaintiff's remaining Family Medical Leave Act ("FMLA") claim and as to plaintiff's motion for partial summary judgment. The procedural history of this case prior to the July 19, 2000 Order is outlined in detail in the Memorandum of Decision accompanying that Order. Pursuant to the July 19, 2000 Order, both parties submitted new briefs addressing plaintiff's FMLA claim and, specifically, the viability of an FMLA retaliation claim by a job applicant. Defendant's brief was filed on August 2, 2000, and plaintiff's brief was filed on August 9, 2000. Defendant filed a reply brief on August 16, 2000. A pretrial conference was held on September 28, 2000, as a result of which, the parties were ordered to submit additional supplemental briefs on the application of McGregor v. Autozone, 180 F.3d 1305 (11th Cir.1999) to 29 C.F.R. § 825.220(c) and 29 U.S.C. § 2615(a)(2). Pursuant to the September 28, 2000 Pretrial Order, both parties submitted additional supplemental briefs on October 13, 2000. No additional evidence was filed with any of the aforementioned supplemental briefs.

II. Standards for Evaluating a Summary Judgment Motion

Under Federal Rule of Civil Procedure 56(c), summary judgment is proper "if 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." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party asking for summary judgment always bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings or filings which it believes demonstrate the absence of a genuine issue of material fact. Id. at 323, 106 S.Ct. 2548. Once the moving party has met his burden, Rule 56(e) requires the nonmoving party to go beyond the pleadings and by his own affidavits, or by the depositions, answers to interrogatories, and admissions of file, designate specific facts showing that there is a genuine issue for trial. Id. at 324, 106 S.Ct. 2548.

The substantive law will identify which facts are material and which are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the non-movant. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.1993). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Id. at 249, 106 S.Ct. 2505.

The method used by the party moving for summary judgment to discharge its initial burden depends on whether that party bears the burden of proof on the issue at trial. See Fitzpatrick, 2 F.3d at 1115-17 (citing United States v. Four Parcels of Real Property, 941 F.2d 1428 (11th Cir.1991) (en banc)). If the moving party bears the burden of proof at trial, then it can only meet its initial burden on summary judgment by coming forward with positive evidence demonstrating the absence of a genuine issue of material fact; i.e. facts that would entitle it to a directed verdict if not controverted at trial. Fitzpatrick, 2 F.3d at 1115. Once the moving party makes such a showing, the burden shifts to the non-moving party to produce significant, probative evidence demonstrating a genuine issue for trial.

If the moving party does not bear the burden of proof at trial, it can satisfy its initial burden on summary judgment in either of two ways. First, the moving party may produce affirmative evidence negating a material fact, thus demonstrating that the non-moving party will be unable to prove its case at trial. Once the moving party satisfies its burden using this method, the non-moving party must respond with positive evidence sufficient to resist a motion for directed verdict at trial.

The second method by which the moving party who does not bear the burden of proof at trial can satisfy its initial burden on summary judgment is to affirmatively show the absence of evidence in the record to support a judgment for the non-moving party on the issue in question. This method requires more than a simple statement that the non-moving party cannot meet its burden at trial but does not require evidence negating the non-movant's claim; it simply requires the movant to point out to the district court that there is an absence of evidence to support the non-moving party's case. Fitzpatrick, 2 F.3d at 1115-16. If the movant meets its initial burden by using this second method, the non-moving party may either point out to the court record evidence, overlooked or ignored by the movant, sufficient to withstand a directed verdict, or the non-moving party may come forward with additional evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency. However, when responding, the non-movant can no longer rest on mere allegations, but must set forth evidence of specific facts. Lewis v. Casey, 518 U.S. 343, 358, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)).

III. Relevant Undisputed Facts

Plaintiff was employed by defendant. During his employment, plaintiff registered complaints with defendant, including complaints concerning the crediting of FMLA leave. Plaintiff voluntarily resigned from his employment on October 22, 1998 at which time he signed a release of all then-existing known and unknown claims he might have against BST in consideration for $30,000.00. In January of 1999, plaintiff applied to defendant for re-employment. Plaintiffs's personnel file contained a notation not to rehire. Defendant decided not to rehire plaintiff, and that decision prompted plaintiff to initiate the present action. The relevant undisputed facts are set forth in further detail in the Court's July 19, 2000 Memorandum of Decision. The Court incorporates by reference the statement of facts as set forth in that Memorandum.

IV. Applicable Substantive Law and Analysis

The only claim remaining in this action is plaintiff's pre-employment retaliation claim under the FMLA, charging that defendant's employment decision was at least partially motivated by considerations of his prior use of FMLA leave during his previous term of employment. The defendant, in addition to attacking the substance of plaintiff's claim, argues that plaintiff's claim is barred by the October 22, 1998 release that plaintiff signed upon his resignation; that plaintiff is not protected by the FMLA; and that failure to hire is not a claim for which the FMLA provides redress.

To the extent that the gravaman of plaintiff's claim is predicated upon conduct prior to his resignation in 1998, his claim under the FMLA would be barred by the October 28, 1998 release he signed. But to the extent that the gravaman of plaintiff's claim is predicated upon conduct subsequent to his execution of the release, the release is no bar for the same reason that it was no bar to his § 1981 claim predicated upon such subsequent conduct. See Smith v. BellSouth Telecommunications, Inc., No. 99-H-1720-S (N.D.Ala. July 19, 2000) (memorandum of decision at 9-13).

The issue is not whether the FMLA authorizes a retaliation claim by an employee. The issue is whether plaintiff, as an applicant for employment, is an "employee" under the facts of this case so as to have standing to pursue a claim of retaliation under the FMLA.² Section 2617(a)(2) of the FMLA, the only enforcement provision under which plaintiff may bring suit, is entitled "Civil action by employees" and provides: "[a]n action to recover damages or equitable relief prescribed in paragraph (1) [violation of the anti-retaliation provision (§ 2615)³] may be maintained against any employer ... by any one or more employees ...." 29 U.S.C. § 2617(a)(2) (emphasis added). FMLA § 2611(3) defines "employee" by reference to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 203(e), which provides that "the term `employee' means any individual employed by an employer."

Plaintiff contends that the Department of Labor regulations interpreting the FMLA prohibit employers from using a prospective employee's past use of FMLA-protected leave in hiring decisions and, thus, that prospective employees have standing to pursue retaliation claims under the FMLA.⁴ Under McGregor v. Autozone, 180 F.3d 1305, 1308 (11th Cir.1999), an agency cannot expand the clear meaning of a statute.⁵ If after examining the language of the statute, its specific context, and the broader context of the statute the...