Wertheim v. Potter
| Decision Date | 18 October 2022 |
| Docket Number | 2:21-cv-509-SPC-NPM |
| Parties | JOSHUA WERTHEIM, Plaintiff, v. JAMES F. POTTER, Defendant. |
| Court | U.S. District Court — Middle District of Florida |
Before the Court are cross Motions for Summary Judgment (Docs. 25 32). Plaintiff Joshua Wertheim and Defendant James Potter responded and replied where appropriate (Docs. 34; 35; 36 37). The Court grants and denies each Motion in part.
This is an employment discrimination case. Potter is a local county sheriff. Wertheim worked for the sheriff's office as general counsel. The relationship soured-spawning claims under the Family and Medical Leave Act (“FMLA”) and Florida Civil Rights Act (“FCRA”).
When COVID-19 swept the globe, many employers shifted to remote work. In response, Wertheim recommended an officewide work-from-home policy for those able to function remotely. The recommendation went to Potter and Wertheim's supervisor-James Vitali. But given police duties and to ensure employees' equal treatment, Potter decided against allowing telework. So Wertheim asked if only he could work remote, citing (among other reasons) his risk from COVID over asthma. Again, Potter declined.
In an uncanny coincidence, Wertheim's chronic back pain flared up the next day. With the pandemic blocking access to back injections, he needed to take pain medication, which interfered with his ability to drive to work. So Wertheim began sick leave. After that ran out, he took FMLA leave. At that point, Potter notified Wertheim that-as a key employee-his FMLA rights might be limited. The human resources director (“Director”) made that determination and relayed the information to Vitali.
As weeks progressed with Wertheim still on leave, Potter and Vitali decided the sheriff's office needed legal counsel. So they hired another lawyer. Potter's budget, however would not accommodate two attorneys in the general counsel chair. So Wertheim was notified he would not be reinstated at the end of leave. This action followed.
“The court shall grant summary judgment if the movant shows that 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). A fact is “material” if it “might affect the outcome of the suit under the governing law.” Anderson v.Liberty Lobby Inc., 477 U.S. 242, 248 (1986). And a material fact is in genuine dispute “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.
The moving party bears the initial burden to show the lack of genuinely disputed material fact. Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). If carried, the burden shifts onto the nonmoving party to point out a genuine dispute. Beard v. Banks, 548 U.S. 521, 529 (2006). At this stage, courts view all facts and draw all reasonable inferences in the light most favorable to the nonmoving party. Rojas v. Florida, 285 F.3d 1339, 1341-42 (11th Cir. 2002). When (as here) the parties file cross summary judgment motions, these principles are unchanged. Bricklayers, Masons & Plasterers Int'l Union of Am. v. Stuart Plastering Co., 512 F.2d 1017, 1023 (5th Cir. 1975); Chavez v. Mercantil Commercebank, N.A., 701 F.3d 896, 899 (11th Cir. 2012) ().
This analysis has three main parts. The Court takes each in turn.
Wertheim wants summary judgment on Count 1, which alleges Potter interfered with his FMLA rights. The Court agrees.
“To establish an interference claim, an employee need only demonstrate by a preponderance of the evidence that he was entitled to the benefit denied.'” Krutzig v. Pulte Home Corp., 602 F.3d 1231, 1235 (11th Cir. 2010) (cleaned up). For interference, the employee “does not have to allege that his employer intended to deny the right; the employer's motives are irrelevant.” Strickland v. Water Works & Sewer Bd. of City of Birmingham, 239 F.3d 1199, 1208 (11th Cir. 2001).
Interference has two basic elements: “(1) the employee was entitled to a benefit under the FMLA, and (2) her employer denied that benefit.” White v.Beltram Edge Tool Supply, Inc., 789 F.3d 1188, 1191 (11th Cir. 2015). Technical violations are not actionable on their own though. Ramji v. Hosp. Housekeeping Sys., LLC, 992 F.3d 1233, 1241 (11th Cir. 2021). Instead, employees must also “demonstrate some harm” that courts can remedy through “damages or equitable relief.” Evans v. Books-A-Million, 762 F.3d 1288, 1296 (11th Cir. 2014) (cleaned up).
The benefit at issue is Wertheim's key employee notice. 29 U.S.C. § 2614(b)(1). Both parties seem to agree Wertheim was entitled to that benefit, and he suffered some harm (if the benefit were denied). So the dispute boils down to whether Potter failed to provide the required notice.
The FMLA contains a seldom-invoked exception. If someone is a “key employee,” she may be exempt from the usual FMLA restoration protections. 29 C.F.R. § 825.217(a); 29 U.S.C. § 2614(b). These employees are not entitled to restoration if (1) “denial is necessary to prevent substantial and grievous economic injury” to employer operations; (2) employer notifies employee of its intent to deny restoration “at the time the employer determines that such injury would occur”; and (3) if “leave has commenced,” employee decides not to return “after receiving such notice.” 29 U.S.C. § 2614(b)(1)(A)-(C). As seen, to exploit this exception, employer must provide employee with the appropriate notice.
The statute and its implementing regulations set out a two-step notice procedure. Id.; 29 C.F.R. § 825.219(a)-(b); Neel v. Mid-Atl. of Fairfield, LLC, 778 F.Supp.2d 593, 601-02 (D. Md. 2011). First, if employer might deny reinstatement, it must inform employee she is “key”-along with the possible consequences should employer determine substantial and grievous economic injury will result from reinstatement. 29 C.F.R. § 825.219(a) (“Notice A”). Second, upon determining injury, employer must notify employee (1) of the decision, (2) “it cannot deny FMLA leave,” and (3) it will deny employee's restoration at the end of her leave. 29 C.F.R. § 825.219(b) (“Notice B”). Both parties recognize one difference: Notice A should say employer “may deny reinstatement”; Notice B should say employer “intends to deny reinstatement.” Neel, 778 F.Supp.2d at 602. This distinction matters because it conveys “the difference between ‘perhaps' and ‘definitely.'” Id.
Notice B requires more though. It “must explain the basis for the employer's finding.” Id. And-crucially here-if leave began, employer “must provide the employee a reasonable time in which to return to work.” Id.; see also 29 C.F.R. § 825.219(b); 29 U.S.C. § 2614(b)(1)(C) ().[2]
The outcome here is simple. Potter interfered with Wertheim's FMLA rights because there wasn't any fully compliant Notice B. Specifically, Potter did not provide Wertheim with notice offering a reasonable time to return to work. Potter's arguments to the contrary fall short.
According to Potter, he provided sufficient notice through a packet of documents dated April 8 (“Packet”) and letter dated April 28 (“Letter”).
The Packet satisfied Notice A. SeeOby v. Baton Rouge Marriott, 329 F.Supp.2d 772, 782-83 (M.D. La. 2004). Taken together, it (1) informed Wertheim of his key employee status, (2) stated what that meant, (3) disclosed Potter might not reinstate Wertheim, and (4) explained what might cause Potter to conclude substantial and grievous economic injury would result. (Doc. 29-1 at 216-18). All the same, the language did not indicate Potter made the requisite finding and intended to deny reinstatement. In other words, it could not satisfy Notice B.
So nothing gets lost in translation, the relevant language follows:
This notice is to inform you that after careful review, we have determined that reinstating you could indeed result in substantial and grievous economic injury to our operations, if we were to need to employ someone to either temporally or permanently fill your position while conducting normal day to day operations or by engaging in different states of emergency where you counsel is vitally required.
(Doc. 29-1 at 218) (emphasis added). This notice came in the Packet with another letter. It said, key employee notice “is required to be provided you in the event that [Potter] determines that your reinstatement would cause substantial and grievous economic injury.” (Doc. 29-1 at 216) (emphasis added). None of this was enough to notify Wertheim that Potter made a final decision on injury or intended to deny restoration. Instead, the Packet only clarified reinstatement might be denied. See Neel, 778 F.Supp.2d at 602.
Potter's contention otherwise not only ignores the clear words used; it misunderstands the facts. Within the Packet was a standard Department of Labor form. (Doc. 29-1 at 221). The paper identified Wertheim as a key employee. But it specifically noted no final decision was made:
We __ have/ ✔ have not determined that restoring you to employment at the conclusion of FMLA leave will cause substantial and grievous economic harm to us (at this time and date 4/8/20).
(Doc. 29-1 at 221). This jibes with the witness testimony that the decision on injury and reinstatement was made weeks later. (Docs. 27 at 4, 7-10; 26 at 2; 28 at 6, 13-14, 20-21). That was well after Wertheim received the Packet. So any notion the Packet was a final decision sufficient to satisfy Notice B fails.
Because the Packet did not discharge Notice B, the issue becomes whether Letter did so. In most ways, the Letter...
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