The opinion of the court was delivered by: Hogan, M.J.
This matter came before the Court for a jury trial commencing August 28, 2006.*fn1 At the close of plaintiff's case, defendants made a motion for judgment as a matter of law pursuant to Fed. R. Civ. P. 50(a). For the reasons stated by the Court on the record, and for the reasons set forth below, defendants' motion is denied.
Plaintiff, a former employee of the Embassy Suites Hotel in Blue Ash, Ohio, initiated this action against her former employer, seeking compensatory damages for Defendants' violation of her rights under the Family and Medical Leave Act, FMLA, 29 U.S.C. §§ 2601 et. seq. Plaintiff asserts that the defendants interfered with her rights under the FMLA by terminating her employment while she was on FMLA qualifying leave. Plaintiff also asserts that defendants retaliated against her by terminating her employment for engaging in activity protected under the FMLA, including requesting and or using FMLA leave.
Defendants argue that judgment as a matter of law should be granted as to both plaintiff's FMLA claims. Defendants contend that judgment should be granted as to plaintiff's retaliation claim because plaintiff quit her employment and therefore did not suffer any adverse employment action. Defendants also argue that plaintiff never demonstrated that she was in fact unable to work for three or more days during the relevant period. Defendants contend that plaintiff's resignation was confirmed by her failure to return to work on April 15, 2002. Citing a recent Sixth Circuit decision in Killian v. Yorozu Automotive Tennessee, Inc., 454 F.3d 549 (6th Cir. 2006), defendants assert that plaintiff's failure to return to work is not the equivalent of taking FMLA leave, and therefore does not support a retaliation claim.
Defendants further argue that judgment should be granted as to plaintiff's interference claim because plaintiff failed to prove that she was entitled to FMLA leave, and failed to give defendants proper notice of her need for leave. Defendants contend that there is no evidence to support the conclusion that plaintiff needed FMLA leave for the period from April 1 through 15, 2002. Defendants also argue that the limited notice they did receive was insufficient to apprise defendants that plaintiff needed additional leave for a serious medical condition which prevented her from performing one or more of the functions of her job.
In order to survive defendant's motion for judgment as a matter of law pursuant to Fed. R. Civ. P. 50(a), plaintiff must present sufficient evidence to establish that a controverted issue of fact exists upon which reasonable persons could differ. Zamlen v. City of Cleveland, Ohio 906 F.2d 209, 214 (6th Cir. 1990), cert. denied, 499 U.S. 936 (1991); Hersch v. United States, 719 F.2d 873, 876-77 (6th Cir. 1983). On a motion for judgment as a matter of law, the Court must construe the evidence in the light most favorable to the non-moving party and consider the motion without weighing the credibility of witnesses or judging the weight of the evidence. Zamlen, 906 F.2d at 214; Hill v. McIntyre, 884 F.2d 271, 274 (6th Cir. 1989). The motion may be granted only if it is clear from the evidence that reasonable minds could come to but one conclusion. Coffy v. Multi-County Narcotics Bureau, 600 F.2d 570, 579 (6th Cir. 1979).
Judgment as a Matter of Law is Denied as to Plaintiff's Retaliation Claim
In order to prevail on an FMLA retaliation claim, a plaintiff must prove the following four elements by a preponderance of the evidence: (1) that she availed herself of a protected right under the FMLA; (2) that the employer knew of plaintiff's protected activity; (3) that she was subjected to an adverse employment action; and (4) that a causal connection exists between the exercise of protected activity and the adverse employment action. Arban v. West Publ'g Corp., 345 F.3d 390, 404 (6th Cir. 2003).
Plaintiff bears the burden of proving a causal connection between the adverse action and her exercise of her FMLA rights. In addition, under the familiar burden-shifting standard of proof applicable in employment discrimination cases based on indirect evidence, plaintiff must show that defendants' stated reasons for the alleged adverse action were pretextual and that defendants were motivated, at least in part, by plaintiff's medical leave. Id.
Plaintiff has presented evidence in this case to support her assertion that she both requested and took FMLA qualifying leave and that defendants knew plaintiff had taken such leave. At a minimum, questions of fact are raised by the testimony in the case on these two points. Defendants argue more specifically with respect to the third and fourth elements which a plaintiff must demonstrate in order to successfully prosecute an FMLA retaliation claim. The Court finds that there is ample evidence to raise a question of fact as to plaintiff's FMLA retaliation claim.
While defendants maintain that plaintiff cannot prove retaliation because she quit her employment, the testimony and other evidence in the case is conflicting on this point. There is certainly a fact question for the jury as to whether plaintiff quit or was terminated from her employment and thereby suffered an adverse employment action. Plaintiff and plaintiff's mother both testified that plaintiff did not quit her job and that she so informed defendants upon learning that they had accepted her supposed resignation. In addition, there is evidence that defendants continued to pay plaintiff through April 14, 2002, even though they argue, at least in part, that plaintiff's resignation was first communicated to them on April 2, 2002. Finally, testimony regarding the circumstances under which plaintiff's alleged resignation was communicated to defendants, including the April 15, 2002 statement communicated to defendants by plaintiff's cousin, is such that the jury could reasonably conclude plaintiff did not intend to resign. In addition, there is evidence, including testimony regarding Ms. Lutz's decision to recommend plaintiff's termination prior to her alleged resignation on April 15, 2002, from which a reasonable juror could conclude that the termination decision was based on plaintiff's use of FMLA qualifying leave and not solely on her alleged failure to return to work on that date.
Judgment as a Matter of Law is Denied as to Plaintiff's Interference Claim
In order to establish an FMLA interference claim, a plaintiff must demonstrate that: (1) she is an eligible employee; (2) defendant is an employer within the meaning of the Act; (3) she was entitled to leave under the Act; (4) the employee gave the employer notice of her intention to take leave; and (5) the employer denied the employee FMLA benefits to which she was entitled. Walton v. Ford Motor Co., 424 F.3d 481, 485 (6th Cir. 2005).
It is undisputed that plaintiff was an eligible employee and that defendant is an employer within the meaning of the Act. Defendants argue, however, that she was not entitled to leave because she did not prove that her healthcare provider found her unable to work for more than three consecutive days following the April 1, 2002 return to work date noted in plaintiff's March 25, 2002 doctor's note. Defendants also argue ...