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dismissing unjust enrichment claim as not an independent cause of action
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Civil Action No. 5:03-CV-007-C
December 12, 2003
ORDER
On this day the Court considered Defendant Gateway, Inc.'s Motion for Summary Judgment filed on October 31, 2003. The Court also considered Plaintiff Leonard Wood's Motion for Summary Judgment and Motion to Dismiss for Failure to State a Claim filed on November 3, 2003. Plaintiff filed a Response to Defendant's Motion on November 20, 2003. Defendant filed a Response to Plaintiff's Motion on November 24, 2003. After considering all the arguments and evidence, the Court GRANTS IN PART each party's Motion for Summary Judgment. Gateway also filed a Motion to Strike and Reply to Plaintiff's Response. Replies are not permitted without leave of the Court. See Local Rules for Judge Sam R. Cummings, ¶ 13. Furthermore, the Motion to Strike, as a pretrial motion, is untimely under this Court's scheduling order. Therefore, the Motion to Strike is DENIED as moot and the Reply has not been considered by this Court.
Because Gateway had already filed a motion for summary judgment, the Court believes Defendant wished to title the Response not as a motion for summary judgment and response, but rather as a motion to amend and response. The title of the document is "Defendant Gateway, Inc.'s Motion for Summary Judgment and Response to Plaintiff's Motion for Summary Judgment and Motion to Dismiss"; however, within the document the Defendant seems to seek permission to amend its complaint. The time period allowed by this Court for amending had expired by the time Defendant made this request; therefore, to the extent Defendant's motion is a motion to amend, it is DENIED.
I. FACTUAL BACKGROUND
Leonard Wood brings this suit against Gateway, Inc. ("Gateway") claiming that Gateway violated his rights under the Family and Medical Leave Act ("FMLA"). In part, Wood claims that Gateway retaliated against him by terminating his employment in response to his taking FMLA leave. Gateway, however, contends the termination occurred for other legitimate reasons and further contends that no one at Gateway was aware of exactly what type of leave Wood had taken. Moreover, Gateway contends that Wood's leave, no matter which type it was, played no role in his termination from employment at Gateway.
The following facts or alleged facts are relevant to the summary judgment motions:
Leonard Wood began working for Gateway in its Lubbock Country Store as a Business Solutions Advisor ("BSA") in September of 2000. His duties included selling products to small businesses, training retail sales associates, providing business expertise to the Country Store, and providing support for retail operations. At all times during his employment, Wood was an at-will employee; and he does not contend otherwise.
Gateway employees have several types of leave available when required. Those types of leave include personal, medical, military, and FMLA leave. Employees are entitled to request general leave time depending upon their time of service with the company. An employee with a minimum of at least 1250 hours of active employment may also request up to 12 weeks of unpaid leave under the FMLA. There is no job protection for any leave of absence for employees taking leave under General Leave provisions. However, federal law governs an employee's job protection for leave taken under FMLA.
Employees who request FMLA must provide medical documentation or the leave may not qualify as FMLA leave under Gateway policies. Once the leave has been qualified as FMLA leave, it is the Gateway managers' responsibility to notify the employee that his FMLA leave request has been approved. FMLA leave is generally unpaid; however, an employee may choose to use any other time off such as paid time off if the employee wishes to receive compensation while off from work.
In January of 2002, Wood informed the General Manager of the Lubbock Country Store, Michael Baker, of his need for hip surgery. Wood alleges that his hip sustained injuries prior to his employment with Gateway, for which corrective surgery was required. Wood was informed that he would have to fill out some forms and present his physician's records to Gateway if he wanted to request FMLA leave. Once an employee requests FMLA leave, Gateway managers are responsible for getting the forms to the employee. It is the employee's responsibility to get the forms filled out properly by the employee's doctor and return them to Gateway.
Wood was concerned about taking too much time off because of the economic effect it might have on him. Gateway claims that Wood inquired about taking vacation time or working out some arrangement so that he could continue to work and take care of his clients while recuperating. Wood also contacted the Human Resources Manager at Gateway and originally discussed whether his job description could be changed or his work load could be reduced so that he could continue to work in some capacity while recuperating from surgery. Wood also discussed various other ways for taking time off with the Human Resources Manager. Wood alleges that the surgery was rescheduled several times and finally occurred on April 25, 2002.
The record is confusing regarding Wood's efforts to comply with the administrative and policy requirements for filling out the required paperwork to obtain leave approval. Wood alleges that Michael Baker, Gateway's manager at the Lubbock Country Store, told him that as soon as he was approved for surgery, Michael Baker would take care of the procedures for getting approval for FMLA leave. On March 4, 2002, Wood claims he partially filled out a memorandum seeking FMLA leave from April 18, 2002 until July 1, 2002. However, no confirmation was obtained, and Gateway claims the form was never signed by a supervisor or human resources representative. Then, on March 12, 2002, Wood requested non-FMLA leave from March 25, 2002 until July 1, 2002. That form states that there is no job protection with this type of leave. Further, on March 18, 2002, Wood alleges that his doctor faxed a Gateway Leave of Absence FMLA Request and a Gateway Medical Certification form to Gateway. Gateway contends that Wood's own facsimile confirmation sheet, dated July 1, 2002 (over three months after the fact), indicates that Gateway never received the doctor's fax. Gateway argues that Wood admits in his deposition that the reason the confirmation sheet is dated July 1 is because it never went through in March so Wood re-sent it in July. Gateway also asserts that regardless of whether the form was ever actually received by Gateway, the evidence clearly shows the form was improperly and incompletely filled out and did not have the required medical documents attached. Wood alleges that he left a copy of the forms with Michael Baker. Wood claims that on March 19, 2002, he met with Brad Fischer, his new supervisor, who replaced Michael Baker after March 1, 2002, to go over some appointments and discuss FMLA paperwork.
Gateway apparently had some reorganization of the management structure during March of 2002. The Country Store Manager, Michael Baker, had been Wood's supervisor up until March 1, 2002. Following that date, Brad Fischer, the Territorial Sales Manager, became Wood's supervisor. This shuffle also appears to coincide with the changes in the way sales to the public sector were to be handled. See below.
In early April, Wood again requested non-FMLA leave in the form of vacation time beginning on April 19, 2002 and lasting until April 30, 2002, to be followed by FMLA leave beginning on May 1, 2002. Gateway claims that Wood had not committed to the dates on which he would take vacation time and those when the requested FMLA leave would begin. Wood contends that it was his understanding that his leave was approved, documentation was complete, and his FMLA time would begin on May 1, 2002. It is alleged that Wood filled out and faxed another leave of absence form to Gateway on or about April 19, 2002, requesting FMLA leave. Gateway contends that Wood presented no evidence that Gateway ever received the form because he did not have a fax confirmation sheet.
Wood claims he took off from work in order to have the hip surgery on April 18, 2002; however, Gateway alleges Wood took time off from work on April 25, 2002. At any rate, the parties agree that surgery did occur in late April of 2002. Wood concedes that no one at Gateway ever told him that his FMLA leave request had been granted, but he contends that Brad Fischer was well aware of Wood's need for FMLA leave. Wood contacted Gateway in June of 2002 and was informed that Gateway had never received FMLA forms from him.
During the time Wood was not working, he continued to receive his regular pay check from Gateway. Gateway contends that it paid Wood $11,194.26 during this time. Unknown to Gateway, in June 2002, Wood applied for and received short-term disability benefits from CNA Insurance Company ("CNA") while he was still off from work. CNA paid Wood retroactively beginning from April 18, 2002 until September 13, 2002. Gateway's disability policy prohibits an employee from receiving regular wages at the same time he is receiving disability benefits.
Wood, in his affidavit, also alleges that he was called by Brad Fischer on several occasions to follow-up on Wood's progress, to inquire when Wood would be returning, and to regularly try to get Wood to participate in conference calls. However, Wood's testimony in his deposition, and the facts alleged by Gateway, show that Wood himself would contact Gateway employees to keep up with what was going on while he was out. He admits to contacting members of the public sector group regarding "his" commission on a deal that was originally under his control before the restructuring of the sales department. He also admits to going to the Country Store on occasion to visit with his friends.
In early March of 2002, and prior to Wood's taking time off for surgery, Wood was informed that BSAs would no longer be allowed to sell equipment and services to government officers or agencies. Instead, after March 15, 2002, all government-related business was to be exclusively handled by employees in the public sector group. BSAs were to complete all deals in the pipeline involving government officers or agencies. As stated above in footnote 2, as a part of this restructuring, Brad Fischer replaced Michael Baker as Wood's supervisor, although Baker was still the Country Store Manager in Lubbock.
On June 7, 2002, Wood contacted members of the public sector group regarding a proposal Gateway had made to the Lubbock Cooper Independent School District. Wood inquired as to whether he would receive commissions on the deal since he "dumped this in [their] lap." Wood contends that he was only joking at the time but now understands that his supervisors might have misinterpreted his question as an attempt to circumvent company policy and receive the commissions. On June 14, 2002, Paul Cropper, District Manager, Public Sector Central U.S., wrote an email to Brad Fischer, Territorial Sales Manager and Wood's supervisor. The email outlined Cropper's concerns that Wood was continuing to meddle in the public sector group's business and that Wood had booked business after March 15, 2002, from clients that were regarded as public sector clients. Cropper also outlined concerns that Wood was speaking with a competitor who was also bidding the Lubbock Cooper deal and that the competitor had information that could only have been obtained from Wood. Cropper worried that Wood was jeopardizing the public sector group's account base and the Lubbock Cooper deal. Cropper's email specifically referred to three public sector deals that were booked through Wood in April of 2002. Cropper believed this evidenced Wood's attempt to earn and collect commissions on public sector clients and potential customers. Specifically, Cropper believed that Wood's paperwork made it appear that he sold computer services to a private sector company when, in fact, he sold computer hardware to a governmental entity. The email also questioned what role Wood played in the competitor's bid for the Lubbock Cooper deal. Specifically, Cropper questioned Wood's relationship with the competitor regarding not only the Lubbock Cooper deal, but also how Wood was allegedly using that competitor (whom Gateway used as a partner in other deals) to create an arrangement that allowed Wood to claim commissions on the sales to governmental entities by first passing the sales through the private competitor-thereby making the deal appear to be a sale to a private entity.
When Michael Baker confronted Wood about the substance of Cropper's email, Wood alleges that Brad Fischer told Wood he needed to address the charges in the email because Fischer apparently believed the allegations had some credence. Wood, without Manager Baker's authorization and either on his own or with the aid of another at his behest, obtained a copy of the email from Baker's computer. Following this episode, Brad Fischer stopped trusting Wood because he believed Wood had broken into Mike Baker's office and obtained a copy of Cropper's email by forwarding a copy to Wood's home computer and his Gateway email address. However, Wood contends that Fischer gave him permission to have a copy of the email and that Michael Baker helped Wood formulate a response to the email, knowing it was from his own computer.
Wood denies that he broke into the office but rather alleges that someone else with a password accessed the computer and allowed him to obtain a copy of the email. Wood also denies the allegations in the email regarding booking public sector deals as private sector deals. He contends that the entries for those orders were made while he was out on leave and thus he is not responsible for how they were entered. Wood contends that the only reason he provided confidential information to the competitor was because he was inquiring whether the competitor could install the equipment for Gateway cheaper than another service provider. Wood alleges that he was unaware that the competitor was also competing for the deal.
On June 24, 2002, Wood received a conference call from Julie Keane, someone from Gateway Human Resources, and Territorial Sales Manager Brad Fischer. The call was, in essence, an investigation of Cropper's allegations contained in the email and the allegedly wrongful procurement of a copy of the email. However, Wood claims that the call also addressed his leave and disability. Wood also alleges that Julie Keane requested that he agree that he was not on FMLA leave the prior weeks that he was off from work.
As a result of the call, Wood's employment with Gateway was terminated on June 26, 2002. Fischer had determined that Wood improperly accessed Baker's email account and purposefully disregarded order entry procedures to allow himself commissions on public sector deals. The exact reasons given were "gross misconduct" and circumventing order entry policies. Gateway argues that at no time during this period did anyone from Gateway mention FMLA as a reason for the termination. Any records that may have been made during Julie Keane's conversation with Wood were destroyed. Moreover, Gateway contends that Fischer was not even aware that Wood believed he was on FMLA leave at the time because he never completed the administrative requirements for FMLA leave; yet, even if he was, Gateway argues, the leave was not the reason for his termination. However, Wood contends that he told Fischer repeatedly that he was out on FMLA leave when Fischer would contact Wood during the recuperation period.
II. STANDARD
Conversion of Rule 12(b)(6) Motion to Rule 56 Motion
When a party moves to dismiss an action under Rule 12(b)(6), both parties necessarily proceed with the expectation that the court will decide the motion based on the pleadings alone. Song v. City of Elyria, Ohio, 985 F.2d 840, 842 (6th Cir. 1993). If, however, on a Rule 12(b)(6) motion for judgment on the pleadings, "matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56." FED. R. CIV. P. 12(b). See also Porter v. Shearson Lehman Bros., Inc., 802 F. Supp. 41, 53 (S.D. Tex. 1992) (noting that the Fifth Circuit has long recognized that materials filed concurrently with pleadings are sufficient to convert a motion to dismiss to a motion for summary judgment). Whether or not the court considers matters outside the pleadings is left entirely to the discretion of the court. Isquith on behalf of Isquith v. Middle S. Utils., Inc., 847 F.2d 186, 193 n. 3 (5th Cir. 1988). The court's discretion is generally exercised in terms of whether the proffered material and the resulting conversion to a Rule 56 procedure are likely to facilitate the disposition of the action. Id.
When a motion to dismiss is converted to a motion for summary judgment, "all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." FED. R. CIV. P. 12(b). The purpose of the "reasonable opportunity" language contained in Rule 12(b) is to prevent unfair surprise to the parties. Clark v. Tarrant County, Texas, 798 F.2d 736, 745 (5th Cir. 1986). All parties are entitled to notice that the court might treat the motion as one for summary judgment. Isquith, 847 F.2d at 195. See also Clark, 798 F.2d at 746 (holding that the district court erred in dismissing a case under summary judgment without giving notice as required by Rule 56).
However, when a non-movant submits material outside the pleadings in response to a Rule 12(b)(6) motion, the non-movant is deemed to have constructive notice that the motion to dismiss might be treated as a motion for summary judgment. Dayco v. Goodyear Tire Rubber Co., 523 F.2d 389, 393 (6th Cir. 1975). Constructive notice that the court might consider matters outside the pleadings is sufficient to satisfy the notice requirements of Rule 56. Madewell v. Downs, 68 F.3d 1030, 1048 (8th Cir. 1995). A party who submits material beyond the pleadings in opposition to a Rule 12(b)(6) motion to dismiss is scarcely in a position to claim unfair surprise or inequity. Arnold v. Air Midwest, Inc., 100 F.3d 857, 859 n. 2 (10th Cir. 1996).
In the instant case, this Court finds that (1) not only does Plaintiff's Motion for Summary Judgment and Motion to Dismiss for Failure to State a Claim give the non-movant Defendant actual notice that this Court might treat Plaintiff's alternative motions as a Rule 56 motion, but (2) the non-movant Defendant has relied upon submitted summary judgment evidence outside the pleadings in its Response to Plaintiff's alternative motions and "is scarcely in a position to claim unfair surprise or inequity." Accordingly, pursuant to Rule 12(b), this Court will treat Plaintiff's alternative motions as a Rule 56 motion for summary judgment.
Rule 56 Motion for Summary Judgment
Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," when viewed in the light most favorable to the non-moving party, "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." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) (internal quotations omitted). A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. at 248. In making its determination, the court must draw all justifiable inferences in favor of the non-moving party. Id. at 255.
Once the moving party has initially shown "that there is an absence of evidence to support the nonmoving party's case," Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), the non-movant must come forward, after adequate time for discovery, with significant probative evidence showing a triable issue of fact. FED. R. CIV. P. 56(e); State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990). Conclusory allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation are not adequate substitutes for specific facts showing that there is a genuine issue for trial. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428 (5th Cir. 1996) (en banc); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993). Affidavits, or portions thereof, that are not based on personal knowledge or that are based merely on information and belief cannot be considered in deciding a motion for summary judgment. Richardson v. Oldham, 12 F.3d 1373, 1378-79 (5th Cir. 1994). To defeat a properly supported motion for summary judgment, the non-movant must present more than a mere scintilla of evidence. See Anderson, 477 U.S. at 251. Rather, the non-movant must present sufficient evidence upon which a jury could reasonably find in the non-movant's favor. Id. The court will not, "in the absence of any proof, assume that the non-moving party could or would prove the necessary facts." McCallum Highlands v. Washington Capital Dus, Inc., 66 F.3d 89, 92 (5th Cir. 1995), as modified, 70 F.3d 26 (5th Cir. 1995).
Finally, in reviewing the summary judgment evidence, "Rule 56 does not impose upon this Court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment." Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). Nor does a court have a duty to search the record for triable issues. Id. Rather, the Court need rely only on those portions of the submitted documents to which the nonmoving party directs the Court's attention. Id. The party opposing summary judgment is required to articulate the precise manner in which the evidence supports his or her claim. Id. Moreover, Local Rule 56.5(c) expressly requires that a party filing an appendix "must include in its brief citations to each page of the appendix that supports each assertion that the party makes concerning the summary judgment evidence." This Court will only consider the admissible summary judgment evidence discussed and specifically identified in the parties' motions and responses. A party may not rely upon "unsubstantiated assertions" as competent summary judgment evidence. Ragas, 136 F.3d at 458.
III. DISCUSSION
Family and Medical Leave Act Claims
Wood sued Gateway for violation of the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601, et seq. The FMLA applies to private-sector employers with fifty or more employees. 29 U.S.C. § 2611(4). An employee is eligible for FMLA leave after working for a covered employer for at least 1,250 hours during the preceding twelve months. 29 U.S.C. § 2611(2). The FMLA entitles an eligible employee to take up to twelve weeks of unpaid leave in any twelve-month period when the employee has a serious health condition that makes the employee unable to perform the functions of the employee's position. 29 U.S.C. § 2612(a)(1)(D). The parties do not dispute that Gateway is a qualifying employer, that Wood is an eligible employee, that Wood had a serious health condition necessitating medical leave; the parties dispute whether the leave taken by Wood was FMLA leave or some other type of leave. The parties also dispute whether Wood's termination was in retaliation for his exercising FMLA rights.
The pertinent section of the FMLA is 29 U.S.C. § 2615. That section refers to the "prohibited acts" under the FMLA:
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. . . . It shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter.29 U.S.C. § 2615(a)(1) (2).
Substantive prescriptive rights claim
The FMLA contains two distinct types of provisions. First, the FMLA creates a series of substantive "prescriptive" rights for eligible employees. Chaffin v. John H. Carter Co., Inc., 179 F.3d 316, 319 (5th Cir. 1999) (citing Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 159 (1st Cir. 1998)). See also Bocalbos v. Nat'l W. Life Ins. Co., 162 F.3d 379, 383 (5th Cir. 1998). To insure the availability of these prescriptive guarantees, the FMLA declares it "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right" provided under the FMLA. Chaffin, 179 F.3d at 319. See also Rice v. Sunrise Express, 209 F.3d 1008, 1017 (7th Cir. 2000), cert. denied, 531 U.S. 1012 (2000).
When proving a violation of an employee's prescriptive rights, the subjective intent of the employer is not relevant. Hodgens, 144 F.3d at 159. "The issue is simply whether the employer provided its employee the entitlements set forth in the FMLA." Id. Therefore, an employee who claims a violation of his substantive prescriptive rights under the FMLA must "demonstrate by a preponderance of the evidence only entitlement to the disputed [right]." Rice, 209 F.3d at 1017.
Plaintiff states in his Response that he brought claims for retaliatory discharge and denial and/or interference with substantive rights. Plaintiff goes on, correctly, to state that two different causes of action can be brought pursuant to the FMLA. Plaintiff claims that Defendant's motion for summary judgment addresses only the retaliatory-discharge claim. Plaintiff's brief in support of his response states that "[i]n addition to retaliation, Plaintiff has brought an `interference' cause of action on which Defendant has not sought summary judgment." Plaintiff apparently bases this assertion on the sentence in his Original Petition that reads as follows: "Further, Plaintiff alleges that his job termination by Gateway was an unlawful interference with, a restraint on or a denial of the attempted exercise of his FMLA rights." The Court finds that, under the notice-pleading standard, Plaintiff has brought an "interference" claim under the FMLA. Further, the Court finds that Gateway failed to address the interference claim in its motion for summary judgment; thus, summary judgment must be denied as to Wood's claim that Gateway violated his substantive prescriptive rights under the FMLA.
In a footnote in Wood's Response, he alleges that his Original Petition also pleaded a claim for an "interference" cause of action under the FMLA. Such an action is also referred to as a claim for violating substantive "prescriptive" rights under the FMLA.
Even assuming, arguendo, that Gateway had addressed Wood's claims relating to his substantive prescriptive rights under the FMLA, Wood has presented evidence that, when viewed in a light most favorable to the non-moving party, raises genuine issues of material fact as to whether Gateway in some manner interfered with, restrained, or denied Wood's attempted exercise of his FMLA rights.
Wood has offered some evidence that Gateway may have (1) continually requested his assistance at the store while he was on leave, thus not allowing him true leave time to recover; (2) asked him to deny he was on FMLA leave; and (3) not properly processed his leave request or assisted him as required by Gateway policies. The Court notes that Wood did on multiple occasions express his desire to exercise his FMLA rights.
Gateway contends that Wood was never even on FMLA leave due to his failing to comply with administrative policies required to obtain approval for FMLA leave. Wood counters that it was the responsibility of Gateway personnel to complete and insure that the administrative procedures were complied with and notify him if the leave had been approved or rejected. Such a contention by Wood, that Gateway's personnel "dropped the ball" on their end, goes more to the substantive prescriptive rights claim for FMLA rights interference.
When viewed in a light most favorable to Wood, the evidence in the record creates a genuine issue of material fact as to whether Gateway may have disputed Wood's entitlement to the FMLA's substantive prescriptive rights, interfered with, restrained, or denied the exercise of, or the attempt to exercise, any of the rights available to Wood under the FMLA.
Therefore, any implied request for summary judgment is DENIED as to Wood's claims for substantive "prescriptive" rights under the FMLA. Wood's claims that Gateway interfered with, restrained, or denied the exercise of, or the attempt to exercise, any right provided under the FMLA remain set for trial on January 5, 2004. Wood's Claim of Discharge
Second, the FMLA provides "prescriptive" protection in the event an employee is discriminated against for exercising his substantive rights. Bocalbos, 162 F.3d at 383. See also Hypes v. First Commerce Corp., 134 F.3d 721, 726 (5th Cir. 1998). When proving a violation of an employee's prescriptive rights, the employer's subjective motive is relevant, and the "issue is whether the employer took adverse action because of a prohibited reason or for a legitimate nondiscriminatory reason." Hodgens, 144 F.3d at 160. See also Bocalbos, 162 F.3d at 383; Hypes, 134 F.3d at 726. Such issues are analogous to similar questions raised in cases involving other types of discrimination, i.e., Title VII of the Civil Rights Act of 1964. Hypes, 134 F.3d at 726. Thus, when direct evidence of discrimination is lacking, the three-step McDonnell Douglas burden-shifting framework is utilized if an employee claims he was discriminated against for availing himself of rights protected by the FMLA. Chaffin, 179 F.3d at 319-20 (referring to McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973)). See also Hypes, 134 F.3d at 726; Hodgens, 144 F.3d at 160.
Wood claims that he was retaliated against when Gateway terminated his employment. He alleges the retaliation occurred because he exercised his FMLA rights. The Fifth Circuit applies the McDonnell Douglas burden-shifting framework to analyze retaliation claims under the FMLA. Hunt v. Rapides Healthcare Sys. LLC, 277 F.3d 757, 768 (5th Cir. 2001). Under the McDonnell Douglas framework, the order of progression for proving up a claim of discrimination is controlled by the following:
1. The plaintiff has the burden of proving by a preponderance of the evidence a prima facie case of discrimination;
2. If the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the employee's termination;
3. Should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons but were a pretext for discrimination.See Smith v. Wal-Mart Stores (No. 471), 891 F.2d 1177, 1178 (5th Cir. 1990) (citing Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981)). See also Byers v. Dallas Morning News, Inc., 209 F.3d 419, 425-26 (5th Cir. 2000).
To make a prima facie showing of retaliation under the FMLA, Wood must show that (1) he was protected under the FMLA, (2) he suffered an adverse employment decision, and (3) either that he was treated less favorably than an employee who had not requested leave under the FMLA or the adverse decision was made because he took FMLA leave. Hunt, 277 F.3d 757, 768. If Wood succeeds in making his prima facie case, the burden then shifts to Gateway to articulate a legitimate, nondiscriminatory or nonretaliatory reason for the termination. Id. If Gateway does so, Wood must show by a preponderance of the evidence that Gateway's reason is a pretext for retaliation. Id.
Gateway contends that Wood's prima facie case fails because (1) he has not shown that he was in fact on FMLA leave and (2) he does not provide evidence that he was treated less favorably than an employee who had not requested leave under the FMLA and/or he has failed to provide any evidence of a causal connection between the FMLA leave and his termination. The parties do not appear to contest the second prong of Wood's prima facie case in that he suffered an adverse employment action — termination. However, Wood believes that FMLA protects him from any adverse employment action and that when he was terminated, it occurred at a time when the FMLA protected him. However, contrary to his assertions, Wood "is not immunized from any and all adverse employment action merely because [he] was taking FMLA leave." Burton v. Buckner Children and Family Services, Inc., 2003 WL 21283394, *5 (N.D. Tex. May 8, 2003). "According to the Code of Federal Regulations, `an employee has no greater right to reinstatement or other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period.'" Id. (quoting 29 C.F.R. § 825.216(a)). Moreover, "to limit an employer's ability to terminate an employee for performance issues [or other valid reasons] simply because the employee requested medical leave would vest the employee with greater rights and benefits than she would have enjoyed had she continued working without requesting such leave." Id. (citing Serio v. Jojo's Bakery Restaurant, 102 F. Supp.2d 1044, 1052 (S.D. Ind. 2000)).
The Court finds that Wood has not presented evidence that could be construed as establishing the third prong of his prima facie case. However, for thoroughness, the Court will address why Wood's claim fails even had he made his prima facie case.
Even assuming, arguendo, that Wood had made his prima facie case, the Court finds that the reason offered by Gateway for Wood's termination is legitimate and nondiscriminatory. Gateway contends that Wood was terminated not because of FMLA leave but because of perceived multiple policy violations and misconduct. Those alleged violations included accessing, or causing to be accessed, a manager's email and obtaining a copy of that electronic document. Gateway also alleges that the termination occurred because of perceived interference by Wood in business relations with a potential customer and competitor. Moreover, it is alleged that Wood improperly tried to obtain greater amounts of commission and compensation than he was owed by causing certain sales to be construed and logged in a manner that would allow him to obtain greater commissions. In regard to Wood's leave, Gateway alleges that Wood improperly obtained salary and disability benefits at the same time-a violation of the insurer's and Gateway's policies. Wood's supervisor also claimed that he no longer trusted Wood.
Significantly, Wood admitted to accessing the email and obtaining a copy of it. He only contends that he did so after having been granted access to the computer by someone else at the Lubbock Country Store. He also claims that statements by Fischer to address the charges in the email gave him the right to obtain a copy of it in order to confront the charges.
The Court finds this long litany of nondiscriminatory reasons for terminating an at-will employee to be more than adequate and legitimate. Most of the alleged reasons for terminating Wood were contained in the email from Paul Cropper that was drafted and mailed before any pretextual reasons may have been required because Wood had not been terminated at the time the email was drafted and sent. Moreover, the Court examined Gateway's Employee Conduct guide, which was included in the record. Examples listed that "may require immediate action by the Company to abruptly sever the employee relationship" include: (1) falsification of records or documents; (2) fraud or other acts of dishonesty; (3) unauthorized disclosure of information; (4) unauthorized or inappropriate use of electronic mail, including going into files of any kind; (5) impropriety or appearance of impropriety; (6) breach of trust; and (7) failure to conform with a company standard. Gateway also contends that no one at Gateway knew whether Wood was on FMLA leave, and thus FMLA could not have been a factor in Wood's termination.
The listed examples are paraphrased and are only a sample of those given.
Because FMLA leave is generally unpaid, the fact that Wood received pay seems to support Gateway's argument that if Wood was in fact on FMLA leave, rather than some other type of leave, Gateway was unaware; otherwise, they would not have paid him.
Wood attempts to contradict the charges in the email and reasons listed in the Corrective Action Summaries as they relate to his discharge. However, Wood admits in his deposition that Paul Cropper, who drafted the email, had expressed displeasure and concerns regarding Wood to Wood's supervisors and implicated Wood in some sort of scheme. Wood goes on to admit that those reasons listed in the email and Paul Cropper's motives for bringing those allegations had nothing to do with any sort of leave issues. See Wood Depo., p. 89.
The reasons listed for the action taken against Wood in the Corrective Action Summaries closely parallel the allegations in the email, with some order entry violations alleged in addition to the improper procurement of the email allegation. Although Wood mounts arguments as to most of the allegations in the Action Summaries and the email, the Court finds that Wood has failed to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.
The FMLA Regulations do not prohibit terminating an employee on FMLA leave as long as the leave is not used as a "negative factor" in employment actions. 29 C.F.R. § 825.220(c). Wood has failed to establish any causal connection between his termination based on employee misconduct or other legitimate reasons and Wood's rights protected under the FMLA. There is no evidence that Gateway terminated Wood because he exercised his FMLA rights, nor is there any evidence that Gateway treated Wood less favorably than an employee who had not requested leave under the FMLA. Moreover, Gateway has put forth valid reasons for the termination. After reviewing the pleadings and affidavits on file in the light most favorable to Plaintiff, the non-moving party, and drawing all reasonable inferences in favor of the non-moving party, this Court is persuaded that there are no genuine issues of material fact with regard to Wood's claims regarding violations of the FMLA relating to retaliatory discharge. Accordingly, summary judgment is appropriate. Thus, because Gateway has proffered a legitimate, nondiscriminatory reason for Wood's termination, and Wood has not shown by a preponderance of the evidence that those reasons were merely pretextual, the Court GRANTS Defendant's request for summary judgment as to Plaintiff's claim for retaliatory discharge.
Gateway's Counterclaims
Gateway counterclaimed against Wood alleging three causes of action: (1) unjust enrichment; (2) conversion; and (3) breach of good faith and fair dealing. These claims arise from the money paid to Wood by Gateway while Wood was on leave. It is alleged by Gateway, and apparently uncontested by Wood, that he continued to receive pay from Gateway and disability insurance pay from the insurer. Gateway alleges that Wood received $11,194.36 in salary and approximately $8,000.00 in disability benefits at the same time and while he was on leave.
Gateway's summary judgment motion sought summary judgment in favor of Gateway on the three counterclaims. Wood's summary judgment motion moves for summary judgment on the unjust enrichment claim and the breach of good faith and fair dealing claim. Alternately, Wood requests this Court to dismiss Gateway's claims for failure to state a claim upon which relief may be granted. As stated above, this Court will construe Wood's motion in the alternative simply as a motion for summary judgment.
Although Wood, in his Response, contested the granting of summary judgment in favor of Gateway for each of the three counterclaims, when Wood filed his own motion for summary judgment against the counterclaims, he failed to request summary judgment against Gateway's claim for conversion.
A. Unjust Enrichment
Gateway alleges that Wood knew or should have known that he was not in compliance with Gateway's payroll and leave policies and procedures when he was supposedly on leave. Gateway further alleges that Wood should not have accepted any portion of his salary or disability pay during that period. Gateway claims that Wood was only entitled to compensation in accordance with the Gateway Employee Handbook, Gateway Manager's Guide, and other applicable Gateway documents, which formed the basis of the employment relationship. Specifically, Gateway's relevant policies and procedures, which the company made known and available to Wood, do not provide for the payment of salary and benefits for leave time or work not actually performed. Gateway alleges that to the extent that Wood accepted salary and benefits when he was not actively performing work, he was unjustly enriched and Gateway is entitled to repayment of the salary and benefits.
Wood contends that there is not a distinct independent cause of action for unjust enrichment, but rather it is simply a theory of recovery. Wood cites to several cases for this proposition. See LaChance v. Hollenbeck, 695 S.W.2d 618 (Tex.App.-Austin 1985, writ ref'd n.r.e.); City of Corpus Christi v. Heldenfels Brothers, Inc., 802 S.W.2d 35, 40 (Tex.App. — Corpus Christi 1990), aff'd, 832 S.W.2d 39 (Tex. 1992); Mowbray v. Avery, 76 S.W.3d 663 (Tex.App. — Corpus Christi 2002, writ denied).
Gateway counters that unjust enrichment can serve as a theory of recovery on a restitution cause of action where benefits are obtained due to fraud, duress, mistake of fact, or taking undue advantage, and does not depend on any wrongdoing. Like Wood, Gateway also cites Mowbray, 76 S.W.3d at 679, but in support of the proposition that unjust enrichment can serve as a theory of recovery for restitution causes of action. In its Response to Wood's Motion, Gateway "moves for leave to amend its Counterclaim to include a cause of action for restitution, breach of implied contract and money had and received." Gateway did not plead a cause of action for restitution, breach of implied contract and money had and received, fraud, duress, or the taking of undue advantage. For this reason, and because Wood's argument is well taken, the Court finds that Gateway's unjust enrichment claim is improper. Thus the Court GRANTS summary judgment for Wood against Gateway's unjust enrichment cause of action, finding the "cause of action" improper. B. Breach of Good Faith and Fair Dealing
The Court will not consider Gateway's "motion" to amend that was buried in Defendant Gateway, Inc.'s Motion for Summary Judgment and Response to Plaintiff's Motion for Summary Judgment and Motion to Dismiss. First, as stated supra note 1, because Gateway had already filed a motion for summary judgment, the Court believes that Defendant wished to title the Response not as a motion for summary judgment and response, but rather as a motion to amend and response. Regardless of how the motion was titled, any attempt to amend is untimely at this juncture pursuant to this Court's scheduling order.
Gateway seems to concede that "unjust enrichment is a theory of recovery and not an independent cause of action," but goes on to state that this "is a distinction which is not always clear."
Gateway alleged in its Counterclaim that Wood, by virtue of his position with Gateway as well as the Non-Compete, Non-Disclosure, and Intellectual Property Agreements he signed with Gateway, served in a position of substantial responsibility and had access to trade secret, confidential, and proprietary information. Gateway alleges that because of these factors, Wood owed a duty of good faith and fair dealing to Gateway. Gateway alleges that Wood breached that duty when he accepted salary and benefits as compensation for the time periods he was not working or on leave.
Wood asserts that Gateway's cause of action for breach of good faith and fair dealing is without merit. In its Response, "Gateway agrees with Wood that no duty of good faith and fair dealing exists in the employment context." Thus, with this admission, the Court GRANTS summary judgment for Wood against Gateway's cause of action for breach of good faith and fair dealing, finding such cause of action improper. C. Conversion
Wood did not seek summary judgment on Gateway's cause of action for conversion. However, Gateway did seek summary judgment in favor of its cause of action for conversion. Because a genuine issue of material fact exists, the Court denies Gateway's summary judgment sought in favor of its action for conversion. Because Wood did not seek summary judgment against the conversion claim, this Court cannot grant relief which is not sought. Therefore, Gateway's cause of action for conversion is set for trial on January 5, 2004.
IV. CONCLUSION
After considering all the relevant arguments and evidence, this Court GRANTS Gateway, Inc.'s Motion for Summary Judgment as to Wood's claim relating to his discharge. However, the Court DENIES Gateway's Motion for Summary Judgment in favor of Gateway on the three counts of its Counterclaim. The Court GRANTS Leonard Wood's Motion for Summary Judgment at to Gateway's counterclaims for unjust enrichment and good faith and fair dealing.As reasoned above in this Order, Wood's claims under the FMLA for alleged violations of his substantive prescriptive rights remain set for trial on January 5, 2004. Gateway's counterclaim for conversion also remains set for trial on January 5, 2004. Gateway's attempt to amend its counterclaim is DENIED.
Gateway's Motion to Strike is DENIED as moot and because it is untimely.
SO ORDERED