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Eichenholz v. Brink's Inc.

United States District Court, D. Massachusetts

March 6, 2019

ELLIOTT EICHENHOLZ, Plaintiff,
v.
BRINK'S INCORPORATED and GORDON CAMPBELL Defendants.

          ORDER ON MOTIONS FOR SUMMARY JUDGMENT (DOCS. NO. 84, 86) AND MOTIONS TO STRIKE (DOCS. NO. 88, 100)

          LEO T. SOROKIN UNITED STATES DISTRICT JUDGE.

         Elliott Eichenholz is suing his former employer, Brink's Incorporated (“Brink's”), and his former supervisor, Gordon Campbell, for alleged violations of the Family and Medical Leave Act (“FMLA”), discrimination under Massachusetts state law and the Americans with Disabilities Act (“ADA”), and tortious interference. At the conclusion of discovery, Eichenholz moved for summary judgment on the FMLA claims and the defendants cross-moved for summary judgment on all claims. For the reasons set forth below, Eichenholz's motion for summary judgment is DENIED and the defendants' motion for summary judgment is ALLOWED IN PART and DENIED IN PART.

         I. FACTS

         The following basic facts are undisputed and are material to both motions for summary judgment. In 2014, Brink's hired Eichenholz as a “Global Head of Fleet.” Doc. No. 99 ¶ 2. Eichenholz began working for Brink's in April 2014, id. ¶ 5, at which time he was sixty years old, id. ¶ 222. On October 14, 2015, Eichenholz saw a doctor and decided to have surgery to correct a problem he was experiencing with his left foot. Id. ¶ 66. The same day, he notified his supervisor, Campbell, that he intended to have surgery. Id. ¶ 69. Eichenholz underwent surgery on November 2, 2015. Id. ¶ 131. He did not work from October 31, 2015 through January 17, 2016. Id. ¶¶ 130, 179. Eichenholz received multiple extensions of his leave, and the entire period of time was treated as FMLA leave, for which he was fully paid. See id. ¶¶ 162, 165, 173.

         A few days before Eichenholz's leave was set to begin, he had a phone call with Campbell where Campbell discussed areas in which he wanted Eichenholz to improve, and the topic of a performance improvement plan (“PIP”) came up. Id. ¶ 80. On November 11, 2015, while Eichenholz was on leave, Brink's sent Eichenholz a PIP by mail to his home. Id. ¶ 140. The PIP included specific 30, 60, and 90-day objectives and a warning that failure to complete the objectives in a timely manner could “result in disciplinary action, up to and including termination.” Doc. No. 99-3 at 36. Additionally, the PIP stated that Campbell's expectations were that Eichenholz would “immediately take action to address the action items listed above” and that Campbell would “see immediate and sustained improvement on all items listed.” Id. On November 24, 2015, Eichenholz contacted the EEOC.[1] Doc. No. 99 ¶ 156.

         Eichenholz returned to work on January 18, 2016, subject to a two-week travel restriction. Id. ¶ 181. On January 29, 2016, Campbell sent the PIP to Eichenholz via email, copying Mark Jordan, who worked in Human Resources at Brink's. Id. ¶ 182. In the email, Campbell stated that the PIP had been sent to Eichenholz on November 11 and that “[i]t was requested that [Eichenholz] sign and return a copy to [Campbell] and Mark Jordan acknowledging receipt, ” but that they had yet to receive any such acknowledgement. Doc. No. 99-4 at 130. The email further stated: “Now that you have returned from your FMLA / STD I expect you to develop a plan to address the specific areas requiring attention.” Id.

         On February 1, 2016, Eichenholz sent an email to Campbell, copying Jordan, in which he resigned from his position at Brink's. Id. at 137. Eichenholz stated that he was resigning “in order to ensure that [he was] no longer subjected to a hostile work environment” and mentioned the “improper and pretextual Performance Improvement Plan” issued while he was on leave. Id. In the email, Eichenholz stated that he was providing Brink's with two weeks' notice and that he would work during that time period to “support all fleet activities and work to ensure as smooth a transition as possible.” Id. Jordan accepted Eichenholz's resignation and instructed him not to work during the two-week period. Doc. No. 99 ¶ 189. Though he did not work, Eichenholz was paid for the two-week period ending February 15, 2016. Doc. No. 105-1 at 7. The parties dispute whether Eichenholz was paid in full for the vacation time he had accrued. Compare Doc. No. 98 at 5, with Doc. No. 105 at 4. This dispute turns on whether Eichenholz's accrued vacation time “zeroed out” on January 1 of each year.

         Eichenholz filed an eleven-count amended complaint. Doc. No. 12. He alleges FMLA retaliation (Count I), FMLA interference (Count II), age discrimination (Counts III and VII), disability discrimination (Counts IV, V, VIII, and IX), sex discrimination (Count VI), state law retaliation (Count X), and intentional interference with contract (Count XI). Eichenholz filed for partial summary judgment on both FMLA claims (Counts I and II). Doc. No. 84. Brink's and Campbell opposed and moved for summary judgment on all eleven counts. Doc. No. 86. Extensive briefing ensued, during the course of which Eichenholz voluntarily dismissed the age and sex discrimination claims (Counts III, VI, and VII). Doc. No. 98 at 15 n.47. Additionally, the defendants filed a motion to strike expert testimony proposed by Eichenholz, Doc. No. 88, and Eichenholz filed a motion to strike specified portions of the defendants' responses to his statement of undisputed material facts, Doc. No. 100. The Court heard argument from the parties on February 25, 2019 on all pending motions.

         II. LEGAL STANDARD

         Summary judgment is appropriate when “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 genuine dispute “is one on which the evidence would enable a reasonable jury to find the fact in favor of either party.” Perez v. Lorraine Enters., Inc., 769 F.3d 23, 29 (1st Cir. 2014). “A ‘material' fact is one that is relevant in the sense that it has the capacity to change the outcome of the jury's determination.” Id. (citation omitted). The Court is “obliged to view the record in the light most favorable to the nonmoving party, and to draw all reasonable inferences in the nonmoving party's favor.” LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993). However, the Court must ignore “conclusory allegations, improbable inferences, and unsupported speculation.” Sullivan v. City of Springfield, 561 F.3d 7, 14 (1st Cir. 2009).

         III. DISCUSSION

         A. Eichenholz's Motion for Summary Judgment

         In resolving Eichenholz's motion for summary judgment, the Court considers the undisputed facts, as set forth above, the evidence submitted by the defendants, even where disputed, and the reasonable inferences which may be drawn in favor of the defendants. Eichenholz moves for summary judgment on the FMLA retaliation claim (Count I) and the FMLA interference claim (Count II). The Court considers each in turn.

         i. FMLA Retaliation

         In order to establish a prima facie case of FMLA retaliation, Eichenholz must establish that: (1) he availed himself of a protected FMLA right; (2) he was adversely affected by an employment decision; and (3) there was a causal connection between his protected conduct and the adverse employment action. Germanowski v. Harris, 854 F.3d 68, 73 (1st Cir. 2017). Drawing all reasonable inferences in the defendants' favor, Eichenholz cannot meet his burden at this stage to demonstrate that he is entitled to judgment as a matter of law. Primarily, Eichenholz is unable to demonstrate, based on the summary judgment evidence, that there was a causal connection between his protected conduct and any of the alleged adverse employment actions.

         Eichenholz asserts that he was “adversely affected by several employment decisions, received two retaliatory PIPs, and was ultimately terminated contrary to Brink's policy.” Doc. No. 85 at 18. Accepting, without deciding, that the PIP or any of the other employment decisions (discussed in detail below) was an “adverse employment action, ” Eichenholz cannot meet his burden to demonstrate that there is no genuine dispute of material fact regarding the causal connection between any of these actions and his request for FMLA leave. Eichenholz notes the temporal proximity between his request for FMLA leave and the phone call in which Campbell stated that he would be placed on a PIP. Doc. No. 99 ¶ 80; see also Doc. No. 85 at 13-14. However, at this stage, there is a genuine dispute of fact as to whether the concerns laid out in the PIP predated Eichenholz's request for leave, which would undermine the causal connection Eichenholz must establish. See, e.g., Doc. No, 99 ¶ 80. Given the evidence offered by the defendants, a reasonable jury could conclude, for example, that the issues, concern, and oversight of Eichenholz predated the PIP. A jury could also reasonably conclude that the timing of the PIP was unrelated to Eichenholz's request for FMLA leave or that the PIP was not in fact an adverse employment action.[2] Accordingly, Eichenholz's motion for summary judgment is DENIED on Count I.

         ii. FMLA Interference

         In order to establish a prima facie case for FMLA interference, Eichenholz must show that: (1) he was eligible for the FMLA's protections; (2) his employer was covered by the FMLA; (3) he was entitled to leave under the FMLA; (4) he gave his employer notice of his intention to take leave; and (5) his employer denied him FMLA benefits to which he was entitled. Carrero-Ojeda v. Autoridad de Energia Electrica, 755 F.3d 711, 722 n.8 (1st Cir. 2014). The evidence, viewed in the light most favorable to the defendants, demonstrates that Eichenholz received all FMLA leave to which he was entitled. Not only did he go on leave at the time he initially requested, Doc. No. 99 ¶¶ 69, 131, but he also received several extensions of his leave, id. ¶¶ 162, 165. Additionally, it is undisputed that he returned to Brink's with the same position, responsibilities, and pay. Therefore, Eichenholz cannot meet his burden, and his motion for summary judgment is DENIED on Count II.

         B. Defendants' Motion for Summary Judgment

         The relevant factual record which the Court considers in resolving the defendants' motion for summary judgment differs from the record used to resolve Eichenholz's motion. Again, the Court considers the undisputed facts, as set forth above, but now considers also the evidence submitted by Eichenholz, even where disputed, and the reasonable inferences which may be drawn in favor of Eichenholz. The defendants move for summary judgment on all counts.

         i. FMLA Interference

         The Court need only address the fifth element of the prima facie case for FMLA interference. Even viewing the record in the light most favorable to Eichenholz, there is no genuine dispute of material fact that he received all FMLA leave to which he was entitled. Based on the undisputed facts and the evidence presented by Eichenholz, even where disputed, no reasonable jury could conclude that his employer denied him FMLA benefits to which he was entitled, as required under the standard adopted by the First Circuit. Carrero-Ojeda, 755 F.3d at 722 n.8 (1st Cir. 2014). Though Eichenholz sets forth many theories upon which he claims Campbell and Brink's attempted to interfere with his FMLA rights, he cannot escape the facts that he received all FMLA leave to which he was entitled and that he returned to Brink's in the same position with the same pay as he had before he took leave.

         However, one more point requires discussion. Plainly, an employee does not have the right to be free from all contact whatsoever from her employer while on FMLA leave; simply put “there is no right in the FMLA to be ‘left alone.'” Callison v. City of Philadelphia, 430 F.3d 117, 121 (3d Cir. 2005); see also Sabourin v. Univ. of Utah, 676 F.3d 950, 961 (10th Cir. 2012) (“In short, the [employer's] request for materials from [the plaintiff] was not an impermissible demand for work during FMLA leave. It was a request for a modest, unburdensome effort to enable [the plaintiff's] work to be performed while he was on leave.”). Although Eichenholz did not expressly advance the argument that the FMLA protects some intangible right to be free from an employer's requests to do work, even when as here the employee performs no work while on FMLA leave, some discussion was had at the hearing about this topic.

         Assuming, without deciding, that such a right exists under the FMLA, no reasonable jury could conclude on the record before the Court that Brink's or Campbell denied Eichenholz this right while on leave. Viewing the facts in the light most favorable to Eichenholz shows that he received the PIP on November 16, approximately two weeks into his leave, but he did no work on the PIP during the entire time he was on leave. During his leave, Brink's did not follow up on the PIP plan. Eichenholz also received several phone calls during the course of his leave from Campbell's assistant, inquiring into his health and his projected return date (which changed several times due to his evolving medical condition). Doc. No. 99 ¶ 164. After Eichenholz returned to work (but not immediately), Campbell directed him to develop a “plan” to respond to the PIP. Such minimal contacts, without ...


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