Boisvert v . Wal-Mart CV-99-478-M 01/18/01 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
James Boisvert, Plaintiff
v. Civil N o . 99-478-M Opinion N o . 2001 DNH 017 Wal-Mart Stores, Inc., Defendant
O R D E R
Plaintiff brings suit against his former employer asserting
claims under the Family Medical Leave Act (FMLA), 29 U.S.C.
§ 2611, et seq. (Count I ) , for wrongful termination (Counts II
and I V ) , and under the New Hampshire Consumer Protection Act,
N.H. Rev. Stat. Ann. (RSA) 358-A (Counts III and V ) . Defendant
moves for summary judgment on all counts (document n o . 9 ) .
Standard of Review
Summary judgment is appropriate when the record reveals “no
genuine issue as to any material fact and . . . the moving party
is entitled to a judgment as a matter of law.” Fed. R. Civ. P.
56(c). When ruling upon a party’s motion for summary judgment, the court must “view the entire record in the light most
hospitable to the party opposing summary judgment, indulging all
reasonable inferences in that party’s favor.” Griggs-Ryan v .
Smith, 904 F.2d 1 1 2 , 115 (1st Cir. 1990).
The moving party “bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact.”
Celotex Corp. v . Catrett, 477 U.S. 3 1 7 , 323 (1986). If the
moving party carries its burden, the burden shifts to the
nonmoving party to demonstrate, with regard to each issue on
which it has the burden of proof, that a trier of fact could
reasonably find in its favor. See DeNovellis v . Shalala, 124
F.3d 2 9 8 , 306 (1st Cir. 1997).
At this stage, the nonmoving party “may not rest upon mere
allegation or denials of [the movant’s] pleading, but must set
forth specific facts showing that there is a genuine issue” of
material fact as to each issue upon which he or she would bear
the ultimate burden of proof at trial. Id. (quoting Anderson v .
Liberty Lobby, Inc., 477 U.S. 2 4 2 , 256 (1986)). In this context,
2 “a fact is ‘material’ if it potentially affects the outcome of
the suit and a dispute over it is ‘genuine’ if the parties’
positions on the issue are supported by conflicting evidence.”
Intern’l Ass’n of Machinists and Aerospace Workers v . Winship
Green Nursing Center, 103 F.3d 196, 199-200 (1st Cir. 1996)
(citations omitted).
Factual Background
Plaintiff was employed by defendant on two separate
occasions. He was first hired in April 1993. In early 1996,
plaintiff began arriving at work late and missing shifts.
Sometime during this period, plaintiff’s mother became ill and
bedridden. On March 2 1 , 1996, plaintiff met with one of his
supervisors to discuss his tardiness and absenteeism. He was
informed that if his attendance did not improve, he would be
fired. Plaintiff continued to have problems with tardiness and
on July 2 8 , 1996, he met with another supervisor. They decided
he would prepare a plan of action for improving his attendance.
Little to no change followed, and, on September 2 8 , 1996,
3 defendant terminated plaintiff’s employment due to his tardiness
and absenteeism.
Defendant rehired plaintiff about two months later, in
November 1996, to work in receiving at a different location. In
late January 1998, more than a year after he resumed working for
defendant, plaintiff received an evaluation indicating he was not
working safely or carefully, resulting in his involvement in
several accidents. Subsequently, he was removed from the
receiving department and reassigned to the maintenance
department.
In April, plaintiff was notified by the Strafford County
Superior Court that he was required to appear for jury service on
April 6, 1 3 , 2 0 , and 2 7 . Defendant’s corporate policy regarding
jury service provides for compensation for time spent fulfilling
jury duty and permits schedule adjustments for employees, like
plaintiff, who usually work outside normal juror hours (i.e.,
night shifts). Such employees are allowed to miss their shifts
and still be compensated. However, the policy requires an
employee who is excused from jury service, and who has more than
four hours left in his or her shift, to return to work.
4 Having been told by a supervisor to take off the night
before jury service in addition to the actual day, plaintiff
submitted time adjustment requests for April 5 , 6, 1 2 , 1 3 , 1 9 ,
2 0 , 2 7 , and 2 8 , based on jury duty. Defendant’s records indicate
that plaintiff received jury duty pay for April 5 , 6, 1 3 , 1 4 , 2 0 ,
2 1 , 2 7 , and 2 8 . Defendant later obtained a Certificate of Jury
Attendance from the Clerk of the Superior Court, dated May 1 ,
1998, establishing that plaintiff served as a juror on April 6,
2 0 , 2 7 , 2 8 , and 2 9 . Plaintiff was terminated on May 8 , 1998, for
falsifying jury duty claims.
Plaintiff sues for wrongful discharge and violation of the
New Hampshire Consumer Protection Act in relation to both
terminations. Plaintiff also claims his FMLA rights were
violated when he was first dismissed in September of 1996, and
that the stated reason for his subsequent termination in May of
1998 was a pretext for discrimination based on his learning
disability, as well as retaliation for having missed work while
serving as a juror.
5 Discussion
A. Family Medical Leave Act (Count I )
Plaintiff claims that his attendance problems during his
first period of employment by defendant were the result of his
need to care for his ill, bedridden mother. The FMLA does
protect employees who miss work to care for a family member with
a serious medical condition. However, in order to benefit from
the FMLA’s protections, an employee must first notify his
employer of the need to take leave. See 29 U.S.C. § 2612(e)(2).
If the need for leave is foreseeable, the employee is required to
make every effort to avoid scheduling conflicts and must give the
employer at least 30 days notice of the need for leave. See id.
If the need is unforseeable, the employee must notify the
employer as soon as practicable. See id. The employee need not
specifically invoke his FMLA rights, but must give enough
information to put the employer on notice of the need for FMLA
leave. See Weeden v . Sears Roebuck & Co., N o . CIV98-435-JD, 1999
WL 970538, at *4 (D.N.H. Aug. 1 9 , 1999) (citing Gay v . Gilman
Paper Co., 125 F.3d 1432, 1435-36 (11th Cir. 1997)). Defendant
6 contends that it did not violate plaintiff’s FMLA rights because
plaintiff never gave any notice that he was in need of leave.
The parties understand that whether notice was given i s ,
initially, one of material fact. If summary judgment is to be
avoided, dispute over some material fact must exist, and the
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Boisvert v . Wal-Mart CV-99-478-M 01/18/01 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
James Boisvert, Plaintiff
v. Civil N o . 99-478-M Opinion N o . 2001 DNH 017 Wal-Mart Stores, Inc., Defendant
O R D E R
Plaintiff brings suit against his former employer asserting
claims under the Family Medical Leave Act (FMLA), 29 U.S.C.
§ 2611, et seq. (Count I ) , for wrongful termination (Counts II
and I V ) , and under the New Hampshire Consumer Protection Act,
N.H. Rev. Stat. Ann. (RSA) 358-A (Counts III and V ) . Defendant
moves for summary judgment on all counts (document n o . 9 ) .
Standard of Review
Summary judgment is appropriate when the record reveals “no
genuine issue as to any material fact and . . . the moving party
is entitled to a judgment as a matter of law.” Fed. R. Civ. P.
56(c). When ruling upon a party’s motion for summary judgment, the court must “view the entire record in the light most
hospitable to the party opposing summary judgment, indulging all
reasonable inferences in that party’s favor.” Griggs-Ryan v .
Smith, 904 F.2d 1 1 2 , 115 (1st Cir. 1990).
The moving party “bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact.”
Celotex Corp. v . Catrett, 477 U.S. 3 1 7 , 323 (1986). If the
moving party carries its burden, the burden shifts to the
nonmoving party to demonstrate, with regard to each issue on
which it has the burden of proof, that a trier of fact could
reasonably find in its favor. See DeNovellis v . Shalala, 124
F.3d 2 9 8 , 306 (1st Cir. 1997).
At this stage, the nonmoving party “may not rest upon mere
allegation or denials of [the movant’s] pleading, but must set
forth specific facts showing that there is a genuine issue” of
material fact as to each issue upon which he or she would bear
the ultimate burden of proof at trial. Id. (quoting Anderson v .
Liberty Lobby, Inc., 477 U.S. 2 4 2 , 256 (1986)). In this context,
2 “a fact is ‘material’ if it potentially affects the outcome of
the suit and a dispute over it is ‘genuine’ if the parties’
positions on the issue are supported by conflicting evidence.”
Intern’l Ass’n of Machinists and Aerospace Workers v . Winship
Green Nursing Center, 103 F.3d 196, 199-200 (1st Cir. 1996)
(citations omitted).
Factual Background
Plaintiff was employed by defendant on two separate
occasions. He was first hired in April 1993. In early 1996,
plaintiff began arriving at work late and missing shifts.
Sometime during this period, plaintiff’s mother became ill and
bedridden. On March 2 1 , 1996, plaintiff met with one of his
supervisors to discuss his tardiness and absenteeism. He was
informed that if his attendance did not improve, he would be
fired. Plaintiff continued to have problems with tardiness and
on July 2 8 , 1996, he met with another supervisor. They decided
he would prepare a plan of action for improving his attendance.
Little to no change followed, and, on September 2 8 , 1996,
3 defendant terminated plaintiff’s employment due to his tardiness
and absenteeism.
Defendant rehired plaintiff about two months later, in
November 1996, to work in receiving at a different location. In
late January 1998, more than a year after he resumed working for
defendant, plaintiff received an evaluation indicating he was not
working safely or carefully, resulting in his involvement in
several accidents. Subsequently, he was removed from the
receiving department and reassigned to the maintenance
department.
In April, plaintiff was notified by the Strafford County
Superior Court that he was required to appear for jury service on
April 6, 1 3 , 2 0 , and 2 7 . Defendant’s corporate policy regarding
jury service provides for compensation for time spent fulfilling
jury duty and permits schedule adjustments for employees, like
plaintiff, who usually work outside normal juror hours (i.e.,
night shifts). Such employees are allowed to miss their shifts
and still be compensated. However, the policy requires an
employee who is excused from jury service, and who has more than
four hours left in his or her shift, to return to work.
4 Having been told by a supervisor to take off the night
before jury service in addition to the actual day, plaintiff
submitted time adjustment requests for April 5 , 6, 1 2 , 1 3 , 1 9 ,
2 0 , 2 7 , and 2 8 , based on jury duty. Defendant’s records indicate
that plaintiff received jury duty pay for April 5 , 6, 1 3 , 1 4 , 2 0 ,
2 1 , 2 7 , and 2 8 . Defendant later obtained a Certificate of Jury
Attendance from the Clerk of the Superior Court, dated May 1 ,
1998, establishing that plaintiff served as a juror on April 6,
2 0 , 2 7 , 2 8 , and 2 9 . Plaintiff was terminated on May 8 , 1998, for
falsifying jury duty claims.
Plaintiff sues for wrongful discharge and violation of the
New Hampshire Consumer Protection Act in relation to both
terminations. Plaintiff also claims his FMLA rights were
violated when he was first dismissed in September of 1996, and
that the stated reason for his subsequent termination in May of
1998 was a pretext for discrimination based on his learning
disability, as well as retaliation for having missed work while
serving as a juror.
5 Discussion
A. Family Medical Leave Act (Count I )
Plaintiff claims that his attendance problems during his
first period of employment by defendant were the result of his
need to care for his ill, bedridden mother. The FMLA does
protect employees who miss work to care for a family member with
a serious medical condition. However, in order to benefit from
the FMLA’s protections, an employee must first notify his
employer of the need to take leave. See 29 U.S.C. § 2612(e)(2).
If the need for leave is foreseeable, the employee is required to
make every effort to avoid scheduling conflicts and must give the
employer at least 30 days notice of the need for leave. See id.
If the need is unforseeable, the employee must notify the
employer as soon as practicable. See id. The employee need not
specifically invoke his FMLA rights, but must give enough
information to put the employer on notice of the need for FMLA
leave. See Weeden v . Sears Roebuck & Co., N o . CIV98-435-JD, 1999
WL 970538, at *4 (D.N.H. Aug. 1 9 , 1999) (citing Gay v . Gilman
Paper Co., 125 F.3d 1432, 1435-36 (11th Cir. 1997)). Defendant
6 contends that it did not violate plaintiff’s FMLA rights because
plaintiff never gave any notice that he was in need of leave.
The parties understand that whether notice was given i s ,
initially, one of material fact. If summary judgment is to be
avoided, dispute over some material fact must exist, and the
dispute must be genuine – meaning it must be supported by
evidence. Defendant says there is no genuine dispute over
notice. Defendant points to plaintiff’s deposition testimony in
which, when asked about the three meetings addressing his
attendance problems, plaintiff admitted he did not tell his
supervisors why he was late and missing shifts. See Def. Summ.
J. Mot. Ex. H , Boisvert Dep. at 3 1 , 3 3 , 36 (Boisvert Dep.)
(document n o . 9 ) . Plaintiff, on the other hand, has failed to
identify any evidence supporting his claim that he told his
employer about his mother’s illness and his need to care for her,
at any relevant time. He has not submitted an affidavit
identifying the person(s) he allegedly informed, how the
information was effectively communicated, or how defendant was
otherwise informed of the medical condition requiring leave.
Additionally, he does not dispute defendant’s reliance on his own
7 deposition testimony.1 Instead, in opposition to summary
judgment, plaintiff’s only argument suggests that future
depositions of his supervisors are necessary before the issue can
be decided.
This argument fails for two reasons. First, plaintiff’s
reliance on what future depositions might establish, without
offering any reason to think that the asserted facts will be
1 Defendant includes the following excerpt: Q . In the exit interview, did you tell M r . Pike [Plaintiff’s supervisor] why you were unable to comply with your attendance plan that you made up? A . Yes. Q . Okay. What did you tell him? A . I was helping my mother the following night with her treatment from her incident. Q . Tell me – and you remember saying this to M r . Pike at the exit interview? A. No. Q . You don’t remember that – saying that, do you? A . I don’t remember saying that. Boisvert Dep. at 3 6 .
While plaintiff’s initial answer does suggest that he did in fact notify defendant of his situation, the testimony also reveals that he does not remember telling his supervisor the reason he failed to comply with his attendance plan; plaintiff offers no other explanation supporting a conclusion that he did tell his supervisor that he had to care for his mother, notwithstanding his own lack of memory of the event.
8 established, is speculation, at best, and insufficient to rebut
the evidence presented by defendant.
Second, the depositions plaintiff proposes to take are of
Wayne Garland and Paul Spescha. But Garland and Spescha were
plaintiff’s supervisors during his second period of employment,
not his first, when attendance was a problem. The record is
clear and plaintiff does not dispute, that none of the
evaluations completed during plaintiff’s first period of
employment bear either Garland’s or Spescha’s name as supervisor.
Moreover, plaintiff’s deposition testimony reveals that plaintiff
spoke to Garland, who in turn spoke to Spescha, about his jury
service, an issue that arose during his second period of
employment. See Boisvert Dep. at 65-66. Because there is no
plausible basis for suggesting that either Garland or Spescha had
any contact with plaintiff during his first period of employment,
much less supervised him, their depositions would likely add
nothing at all relevant to whether notice of plaintiffs need for
an FMLA absence was given. Accordingly, on this record,
defendant is entitled to summary judgment on the FMLA count.
9 B. Wrongful Termination (Count IV)
The complaint suggests plaintiff may be asserting a claim
under the Americans with Disabilities Act, 42 U.S.C. § 12111, et
seq. (ADA). See Complaint ¶ 11 (alleging disability within
meaning of A D A ) . However, other than plaintiff’s statement in
his complaint that he was at all relevant times learning disabled
as defined by both New Hampshire and federal law, the record is
silent as to whether that asserted disability played any role in
his discharge. Although defendant concedes that it was aware of
plaintiff’s learning disability during both periods of
employment, that knowledge, alone, is hardly sufficient to
support an allegation that plaintiff was discharged because of
his disability. Plaintiff offers no evidence of causation such
as statements made by defendant’s officers or employees, prior
discipline related to his learning disability, or even any
argument (other than the allegation in the complaint) that his
learning disability somehow contributed to his dismissal.
10 Conclusion
Plaintiff has failed to present evidence sufficient to
establish a genuine issue of material fact with respect to his
FMLA claim (Count I ) or his possible ADA claim (Count I V ) . Given
the undisputed material facts, defendant is entitled to judgment
as a matter of law. Accordingly, defendant’s Motion for Summary
Judgment (document n o . 9 ) with respect to those claims is
granted.
Having disposed of plaintiff’s federal claims, the court
declines to exercise its supplemental jurisdiction over the
remaining state law claims. See generally, Camelio v . American
Federation, 137 F.3d 666 (1st Cir. 1998). Accordingly, those
claims are dismissed without prejudice to refiling in state
court.
The Clerk shall enter judgment in accordance with the terms
of this order and close the case.
11 SO ORDERED.
Steven J. McAuliffe United States District Judge
January 1 8 , 2001
cc: Thomas P. Elias, Esq. E . Tupper Kinder, Esq. Pamela D. Connolly, Esq.