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Tanzarella v. Intertek Asset Integrity Management, Inc.

United States District Court, N.D. Ohio

October 31, 2017


          OPINION & ORDER [RESOLVING DOCS. 16, 20, 22]


         Plaintiff Alberto Tanzarella sues his former employer, Defendant Intertek Asset Integrity Management, Inc. (“Intertek”), for terminating him after Tanzarella returned to work from leave under the Family Medical Leave Act (FMLA).[1] Plaintiff Tanzarella brings claims for FMLA interference, FMLA retaliation, and wrongful discharge under public policy.[2]

         Defendant moves for summary judgment on Plaintiff's claims.[3] Plaintiff opposes.[4] For the following reasons, the Court DENIES Defendant's motion for summary judgment.

         I. BACKGROUND

         A. Plaintiff's Employment at Intertek

         In January 2015, Matthew Guinn hired Plaintiff as an API Inspector at Hi-Tech Testing (“Hi-Tech”).[5] As an API Inspector, Plaintiff provided inspection services for the chemical, oil, and gas industries.[6]

         By June 2016, Defendant Intertek acquired Hi-Tech, and Plaintiff Tanzarella became Defendant Intertek's employee.[7]

         Both at Hi-Tech and Defendant Intertek, Guinn acted as Plaintiff's direct supervisor.[8]Guinn sent Plaintiff Tanzarella on assignments to Philadelphia, Baltimore, North Carolina, West Virginia, and Ohio.[9] Plaintiff Tanzarella was based at Intertek's Dover, Ohio office.[10]

         B. Plaintiff's Brain Tumor and Application for FMLA Leave

         In 2003, Plaintiff Tanzarella received a diagnosis of a brain tumor.[11] Even after Plaintiff Tanzarella received surgery in 2004, sixty percent of the tumor remained.[12] Plaintiff underwent radiation treatment in 2014, but the tumor remained, though it was non-functional.[13]

         When Guinn hired Plaintiff back in 2015, Plaintiff Tanzarella had informed Guinn of his brain tumor.[14] Around mid-to-late 2016, Plaintiff Tanzarella began experiencing side effects from the remaining brain tumor.[15] Around September 2016, Plaintiff Tanzarella told Guinn he would need to seek medical treatment for his tumor's side effects.[16]

         On September 27, 2016, Plaintiff applied for FMLA leave with the third party administrator, Liberty Mutual Insurance.[17]

         On September 28, 2016, Liberty Mutual Insurance confirmed receipt of Plaintiff's application for FMLA leave.[18] On the same day, Plaintiff Tanzarella texted Guinn: “I got up feeling rough today . . . I did sign up for FMLA yesterday, I will give you the details tomorrow.”[19]The text message screenshot shows Guinn read Plaintiff Tanzarella's text message.[20]

         C. September 29, 2016 Recorded Conversation

         The next day, on September 29, 2016, Plaintiff Tanzarella had a conversation with Guinn and Intertek's Operations Manager Ulrik Votava.[21] Apparently because the brain tumor caused memory difficulties, Plaintiff recorded the conversation on his cellphone.[22]

         Guinn and Votava claim they did not know that Tanzarella had requested FMLA leave at the time of the recorded conversation.[23] Guinn testified that the recorded conversation only concerned Tanzarella's previous work absences, [24] and not his pending FMLA application.[25]

         In the recorded conversation, Plaintiff Tanzarella told Guinn and Votava: “I can't promise you that I can be here every day.”[26]

         In response, Votava remarked:

“We need that. That's the thing. We're getting - I mean, this thing is so out of control. It's affecting everybody, and this needs - needs to get settled, you know - . . . You know if I'm at home and I got a f****** couch to move and I call in a friend of mine and say, ‘Hey, can you help me move this couch?' I expect the guy to come, you know. And if he doesn't, I can't move the f****** couch. . . . You know, it's affecting all of us.”[27]

         At this point, Plaintiff Tanzarella stated that he could not quit his job, instead of taking leave, because he needed the income to care for his family.[28]

         Guinn interrupted him and said: “Here's what it boils down to to me. You going to be here every day or not?”[29]

         As Plaintiff Tanzarella attempted to say he could not make a promise to be there every day, Guinn interrupted him, and said:

“Go home, then. Leave your sh** here and go to the house. I'll - we'll get ahold of Marlene. You can deal with her . . . Leave your - leave your computer or anything that's Hi-Tech's here and I'll get ahold of Marlene, and we'll see what happens . . . I don't need no part-time employees.”[30]

         In this conversation, Guinn was referring to Marlene Lichtenberger, the Human Resources Manager at Defendant Intertek.[31] Lichtenberg testified that Guinn had expressed interest in firing Plaintiff Tanzarella because of his poor performance with a client, but had hesitated due to Plaintiff Tanzarella's existing brain tumor.[32]

         After the recorded conversation, Tanzarella testified that he called Lichtenberg, who told him he was on administrative leave.[33]

         On October 12, 2016, Liberty Mutual Insurance retroactively approved Plaintiff's FMLA leave.[34] Liberty Mutual Insurance approved Plaintiff for FMLA leave from September 27, 2016 until December 19, 2016.[35]

         Plaintiff testified that he told Lichtenberg while he was on FMLA leave that he had contacted an attorney about his FMLA rights.[36]

         D. Plaintiff's Termination on December 19, 2016

         On December 15, 2016, Plaintiff Tanzarella texted Votava that he would be returning to work on December 19, 2016.[37] Votava texted in reply that there were some layoffs, and said, “As soon as things pick up I'll give you [sic] a call.”[38]

         On December 19, 2016, Plaintiff Tanzarella reported for work, but Votava terminated Plaintiff Tanzarella that day, supposedly because of a lack of work.[39]

         Votava testified that he did not actually terminate Plaintiff that day.[40] He believed that Plaintiff Tanzarella could still return to Intertek if there was more work in the future.[41]

         But on December 20, 2016, Votava sent Lichtenberger Plaintiff Tanzarella's termination letter.[42] In the e-mail attaching the letter, Votava provided Lichtenberger a list of employees who were “sitting on the bench” due to lack of work.[43] Employees on the “bench” were not terminated, but were waiting to obtain work from Intertek.[44] Plaintiff Tanzarella was not on the list.[45]

         E. Lack of Work at the Dover Office

         Defendant Intertek states that on December 19, 2016 (Plaintiff's termination date), there was no more API inspection work at the Dover office.[46] Around October 2016, while Plaintiff was still on FMLA leave, Guinn had left Intertek and taken many Dover API inspection projects to his new employer.[47] Intertek has not hired an API Inspector at Dover since March 2016.[48] And Intertek has since closed its Dover office.[49]

         On December 19, 2016, there were five API Inspectors (including Plaintiff) working at the Dover office.[50] The other four API Inspectors continued working after Plaintiff's December 19, 2016, termination.[51] According to Intertek's records, these four API Inspectors left in 2017 because of a “better opportunity.”[52] Plaintiff was the only API Inspector whom Intertek laid off.[53]

         Plaintiff Tanzarella also testified that on the date he attempted to return to work, December 19, 2016, API Inspectors were leaving to perform work.[54] He noted that there were pending API inspection projects written on the white board at the Dover office.[55] Plaintiff Tanzarella admitted that Guinn's new employer, and not Intertek, finished those projects.[56]

         F. Plaintiff Was Not Hired at Intertek's Other Offices

         Lichtenberg testified that Intertek had a custom, though no written policy, of recalling laid off individuals if open positions became later available.[57] Lichtenberg testified that Plaintiff Tanzarella was eligible for rehire.[58] Lichtenberg also testified that Intertek did not customarily relocate employees to other geographical locations, but that there was also no written policy prohibiting it.[59]

         Plaintiff Tanzarella asked Lichtenberg about opportunities for work at Intertek's other offices and told her he was willing to work anywhere in the United States.[60] Lichtenberg testified that she did not try to find Tanzarella work in Intertek's other offices.[61]

         Between December 19, 2016 and June 2017, Defendant Intertek hired eighteen API Inspectors at its La Porte, Texas office.[62]

         Josh Hunker, a former Dover API Inspector, testified that Intertek offered him a position in Texas.[63] Hunker, however, was ultimately not hired in Texas because there was no work there.[64]Plaintiff also testified that Intertek had previously assigned another Dover employee to work in Oklahoma.[65]


         Under Federal Rule of Civil Procedure 56, “[s]ummary judgment is proper when ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'”[66] The moving party must first demonstrate that there is no genuine dispute as to a material fact entitling it to judgment.[67] Once the moving party has done so, the non-moving party must set forth specific facts in the record-not its allegations or denials in pleadings-showing a triable issue.[68] The non-moving party must show more than some doubt as to the material facts in order to defeat a motion for summary judgment.[69] But the Court views the facts and all reasonable inferences from those facts in favor of the non-moving party.[70]

         When parties present competing versions of the facts on summary judgment, a district court adopts the non-movant's version of the facts unless incontrovertible evidence in the record directly contradicts that version.[71] Otherwise, a district court does not weigh competing evidence or make credibility determinations.[72]

         III. ANALYSIS

         A. FMLA Claims

         Plaintiff Tanzarella brings both FMLA retaliation and interference claims against Defendant Intertek for terminating him after he returned from FMLA leave.[73] The Court finds that there are genuine disputes of material fact concerning both claims.

         1. Retaliation Claim

         FMLA retaliation claims “impose liability on employers that act against employees specifically because those employees invoked their FMLA rights.”[74] An employer is prohibited from “us[ing] the taking of FMLA leave as a negative factor in employment actions, ”[75] or “in any other manner discriminat[ing] against any individual”[76] who utilizes FMLA leave. Unlike with the FMLA interference theory, the employer's motive for taking the adverse employment action is relevant to FMLA retaliation claims.[77]

         To establish a prima facie retaliation case, a plaintiff must show (1) that he engaged in an FMLA-protected activity; (2) that the employer knew the employee was exercising his FMLA rights; (3) after gaining such knowledge, the employer took an adverse employment action against him; and (4) there was a causal connection between the employee's FMLA activity and the adverse employment action.[78]

         Under the McDonnell Douglas framework, after a plaintiff has made a prima facie case, the burden shifts to the defendant to offer a non-retaliatory reason for the adverse action.[79] The burden then shifts back to the plaintiff to show that the proffered reason is mere pretext.[80]

         a. Prima Facie Case

         The parties only dispute the fourth prong of Plaintiff Tanzarella's prima facie case.

         Intertek argues that Tanzarella fails to demonstrate the fourth prong because he can only point to temporal proximity between his FMLA leave and his termination.[81] Tanzarella responds that he points to temporal proximity, in addition to his heated conversation with Guinn and Votava, to establish a causal connection between his FMLA leave and his subsequent termination.[82]

         The Court finds that there is a genuine dispute of material fact with respect to causation.

         “The burden of proof at the prima facie stage is minimal; all the plaintiff must do is put forth some credible evidence that enables the court to deduce that there is a causal connection between the retaliatory action and the protected activity.”[83]

         While temporal proximity is often not enough to establish causation, [84] the Sixth Circuit has found temporal proximity sufficient where the employee's termination occurred within two to three months after the employee requested leave, or the employee's leave expired.[85]

         Here, Intertek terminated Plaintiff on the same day that his FMLA expired, and less than three months after Tanzarella requested leave. The extremely close temporal proximity is enough to create a dispute of fact regarding Intertek's retaliatory motive.

         Even if this extremely close temporal proximity were not enough, Plaintiff presents evidence to create a dispute of fact as to whether Plaintiff's FMLA leave motivated his termination.

         There is evidence that Guinn and Votava were upset that Plaintiff could not promise to be at work every day.[86] The conversation's expletives and tone suggests that Guinn and Votava's conversation with Plaintiff was contentious.

         While Guinn and Votava testified that they did not know about Tanzarella's future FMLA leave during the conversation, Plaintiff testified that he had informed at least Guinn of his intent to take FMLA leave.[87] Plaintiff sent Guinn a text message saying he signed up for FMLA leave, and the text message screenshot indicates Guinn had read it. Moreover, the recorded conversation occurred a day after Plaintiff received receipt confirmation of his FMLA leave application.[88]

         Thus, there are genuine issues of material fact whether Intertek terminated Plaintiff ...

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