United States District Court, M.D. Florida, Orlando Division
G. BYRON UNITED STATES DISTRICT JUDGE
cause comes before the Court on Defendant Fidelity National
Management Services, LLC's Motion for Summary Judgment
and Memorandum of Law in Support Thereof (Doc. 23), filed
February 1, 2017. The parties have completed their briefing
and the Court is otherwise fully advised on the premises.
Upon consideration and review of the record, including all
pleadings, deposition transcripts, affidavits, exhibits, and
the parties' respective legal memoranda, the Court will
deny Defendant's Motion for Summary Judgment.
Heather Flynn (“Flynn”), began working for
Defendant, Fidelity National Management Services, LLC
(“Fidelity”), in November 1998. During the time
period at issue in this case, Flynn held a position in Agency
Client Services. (Flynn Aff. ¶ 10). On August 28, 2013,
Flynn filed a request with Fidelity for intermittent leave
pursuant to the Family and Medical Leave Act
(“FMLA”), 29 U.S.C. §§ 2601-2654, due
to her own serious health condition. (Flynn Dep. Ex. 37).
Although there were initial issues with Flynn's
supporting paperwork, Fidelity ultimately granted Flynn's
request on October 28, 2013, and retroactively approved Flynn
to take intermittent FMLA leave between August 26, 2013 and
February 24, 2014. (Flynn Dep. 131:10-25, 133:13-136:5;
Sealed Doc. 34-3).
near Flynn's period of intermittent FMLA leave, Fidelity
asserts that Flynn's performance at work began to suffer.
(Dunleavy Aff. ¶ 20). Consequently, Fidelity moved Flynn
from her position in Agency Client Services to a position as
an Agency Sales Assistant. Despite her transition to Agency Sales
Assistant, however, Fidelity says that Flynn's work
performance continued to deteriorate. Fidelity states that
Flynn violated a number of company policies, including
wearing unprofessional attire at work, using her company
email for personal business, allowing her daughter to use her
company-issued laptop, failing to communicate and adhere to
an appropriate work schedule, and failing to complete tasks
in a satisfactory and timely manner. (Id.
¶¶ 21-26). According to Fidelity, Flynn was also
the subject of numerous complaints. (Id. ¶ 22).
result, on November 21, 2013, one of Flynn's supervisors,
Jason Somers, and Fidelity's human resources
representative, Becky Adair, met with Flynn to discuss her
shortcomings and to express Fidelity's expectations of
Flynn moving forward. (Flynn Dep. 112:3-113:25, 115:4-9).
Notwithstanding, Fidelity issued a Notice of Performance
Counseling to Flynn on December 13, 2013, citing that Flynn
had again violated certain company policies. (Doc. 31-5). In
the Notice of Performance Counseling, Fidelity informed Flynn
that a follow-up review would be conducted on January 3,
2014, and warned that “failure to improve by this date
may result in further disciplinary action up to and including
demotion, and/or termination.” (Id.).
the same time, in late November and early December 2013,
Flynn began emailing Ms. Adair and another of her supervisors
at Fidelity, Mary Pat Dunleavy, to request that she be
allowed to switch from intermittent to continuous FMLA leave
in order to address her worsening health condition. (Flynn
Aff. ¶ 15). However, Flynn states that Ms. Adair and Ms.
Dunleavy ignored her requests. (Flynn Aff. ¶¶ 15,
17). Flynn asked Ms. Adair about switching to continuous FMLA
leave again on January 21 and 22, 2014. (Dunleavy Aff. Ex.
3). Ms. Adair responded that she would look into what options
were available and would set up a time for Flynn to meet with
her and Mr. Somers to discuss the situation. (Id.).
Fidelity terminated Flynn five days later. (Doc. 31-6).
January 20, 2016, Flynn initiated this lawsuit against
Fidelity to vindicate her rights under the FMLA. Flynn
accuses Fidelity of interfering with and retaliating against
her exercise of FMLA leave. Fidelity now moves for summary
STANDARD OF REVIEW
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). The party moving for summary judgment
must “cit[e] to particular parts of materials in the
record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations
. . ., admissions, interrogatory answers, or other
materials” to support its position that it is entitled
to summary judgment. Fed.R.Civ.P. 56(c)(1)(A). “The
court need consider only the cited materials, ” but may
also consider any other material in the record. Fed.R.Civ.P.
factual dispute is “genuine” only if “a
reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A fact is “material” if the
fact could affect the outcome of the lawsuit under the
governing law. Id. The moving party bears the
initial burden of identifying those portions of the record
demonstrating a lack of a genuine factual dispute.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);
Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256,
1260 (11th Cir. 2004). If the movant shows that there is no
evidence to support the non-moving party's case, the
burden then shifts to the non-moving party to demonstrate
that there are, in fact, genuine factual disputes which
preclude judgment as a matter of law. Porter v. Ray,
461 F.3d 1315, 1320 (11th Cir. 2006).
satisfy its burden, the non-moving party “must do more
than simply show that there is some metaphysical doubt as to
the material facts.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather,
the non-movant must go beyond the pleadings and
“identify affirmative evidence” which creates a
genuine dispute of material fact. Crawford-El v.
Britton, 523 U.S. 574, 600 (1998). In determining
whether a genuine dispute of material fact exists, the court
must read the evidence and draw all factual inferences
therefrom in the light most favorable to the non-moving party
and must resolve any reasonable doubts in the
non-movant's favor. Skop v. City of Atlanta, 485
F.3d 1130, 1136 (11th Cir. 2007). Summary judgment should
only be granted “[w]here the record taken as a whole
could not lead a rational trier of fact to find for the
non-moving party.” Matsushita, 475 U.S. at
the FMLA, eligible employees are entitled to twelve workweeks
of leave during any twelve-month period to address or care
for certain enumerated family- and healthcare-related needs.
See 29 U.S.C. § 2612(a)(1). Relevant to the
parties' dispute here, an eligible employee is entitled
to such leave in order to care for “a serious health
condition that makes the employee unable to perform [her
job-related functions].” Id. §
2612(a)(1)(D). Subject to certain limitations not applicable
to this case, the employee may take her leave continuously or
may take intermittent leave as her serious health condition
permits. See Id. § 2612(b)(1). It is illegal
for an employer to interfere with or retaliate against an
employee who exercises or attempts to exercise her rights
under the FMLA. Id. § 2615(a)(1). An employer
who violates an employee's FMLA rights is liable to the
employee for damages, including a potential award of
liquidated damages, and equitable relief. See Id.
moves for summary judgment on the ground that Flynn cannot
prove her FMLA interference and retaliation claims as a
matter of ...