Morse v . TBC Retail Group, Inc. 13-CV-065-SM 12/19/13 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Matthew R. Morse, Plaintiff
v. Case N o . 13-cv-65-SM Opinion N o . 2013 DNH 174 TBC Retail Group, Inc., Defendant
O R D E R
Matthew Morse brings this action seeking damages for what he
claims was the unlawful termination of his employment.
Specifically, he says he was fired in retaliation for having
taken leave time that was protected under the Family Medical
Leave Act (“FMLA”). Defendant moves for summary judgment,
asserting that Morse was not an “eligible employee” under the
FMLA and, therefore, his claim fails as a matter of law.
For the reasons discussed, defendant’s motion for summary
judgment is granted.
Background
In September of 2010, M r . Morse began working at Carroll
Tire Company, a wholesale tire warehouse in Lebanon, New
Hampshire. In December of 2011, after he had exhausted all of
his allotted vacation and personal days, Morse injured himself and was admitted to the hospital. As a consequence, he missed
three days of work. Morse informed his supervisor of the
situation on December 2 8 , 2011. Although the supervisor was
aware that Morse had already used all his personal and vacation
time for the year, he assured Morse that it was not a problem.
Morse was paid for the three days he missed work.
About three weeks later (in January of 2012), Morse asked
his supervisor if he could take a vacation day. He claims his
request was denied because “he had taken too much time off in
2011.” Complaint (document n o . 1 ) at para. 2 5 . Morse complained
to the human resources representative and was subsequently
permitted to take the day off. A month later, Morse’s employment
was terminated. He says he was told that he had been “out a lot
and [his employer] could not run the place if M r . Morse was not
there.” Id. at para. 3 0 . Based upon those facts, Morse
concludes that, “It is clear that [his] termination was in
retaliation for his taking a medical leave in late-December.”
Id. at para. 3 1 . That, says Morse, violated his rights under the
FMLA.
Defendant says Morse’s claim fails as a matter of law
because he was not an “eligible employee” under the FMLA, so the
FMLA’s provisions are not applicable in this case. On that
2 ground, it has filed a “Motion to Dismiss, or in the Alternative,
for Summary Judgment.” Plaintiff objects.
Discussion
I. Defendant’s Motion is One for Summary Judgment.
It is probably best to begin by identifying the precise
nature of defendant’s motion (and the appropriate standard of
review). Although the motion seeks relief in the alternative -
dismissal or summary judgment - at this juncture, it is plain
that the court must treat it as one for summary judgment. In
response to defendant’s motion, plaintiff filed an objection.
That prompted defendant to file a reply. And that, in turn,
prompted plaintiff to file a motion for leave to file a sur-reply
(which the court granted, over defendant’s objection). Finally,
plaintiff thought it necessary to file a motion to strike
defendant’s objection to his motion for leave to file a sur-
reply.
The salient point is this: the parties have submitted a
substantial volume of material outside of the original complaint,
in the form of affidavits and attachments (e.g., printouts of
webpages from the Internet, corporate organizational charts, tax
and payroll records, e t c . ) . Plainly, then, the parties have
treated defendant’s motion as one for summary judgment. The
3 court will do the same. See generally Santiago v . Canon U.S.A.,
Inc., 138 F.3d 1 , 4 n.5 (1st Cir. 1998).
Because defendant’s motion is properly treated as one 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). Summary
judgment is appropriate when the record reveals “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). In this
context, “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.” Int’l Ass’n of Machinists & Aerospace Workers v .
Winship Green Nursing Ctr., 103 F.3d 196, 199-200 (1st Cir. 1996)
(citations omitted). Nevertheless, if the non-moving party’s
“evidence is merely colorable, or is not significantly
probative,” no genuine dispute as to a material fact has been
proved, and “summary judgment may be granted.” Anderson v .
Liberty Lobby, Inc., 477 U.S. 2 4 2 , 249-50 (1986) (citations
omitted).
4 Parenthetically, the court notes that plaintiff’s counsel
has suggested - but not moved - that the court delay ruling on
defendant’s motion until discovery has closed. See Plaintiff’s
objection (document n o . 6-1) at 9 (“Defendant’s instant Motion
for Summary Judgment is premature, and the Court should reserve a
ruling on the Motion until following the close of discovery in
this case.”). Although counsel alludes to Rule 56(d) of the
Federal Rules of Civil Procedure, she has not complied with its
requirements - no doubt recognizing that she could not, in good
faith, argue that additional discovery would provide any relevant
information that defendant has not already supplied.
As the court of appeals has noted, a party seeking relief
under Rule 56(d) (formerly, Rule 56(f)) must comply with certain
procedural requirements.
[T]he prophylaxis of Rule 56(f) is not available merely for the asking. A litigant who seeks to invoke the rule must act with due diligence to show that his predicament fits within its confines. To that end, the litigant must submit to the trial court an affidavit or other authoritative document showing (i) good cause for his inability to have discovered or marshalled the necessary facts earlier in the proceedings; (ii) a plausible basis for believing that additional facts probably exist and can be retrieved within a reasonable time; and (iii) an explanation of how those facts, if collected, will suffice to defeat the pending summary judgment motion.
Rivera-Torres v . Rey-Hernandez, 502 F.3d 7 , 10 (1st Cir. 2007)
5 (citations omitted) (emphasis supplied). Moreover, absent
unusual circumstances, a party cannot object (on substantive
grounds) to a pending motion for summary judgment, while also
seeking time for additional discovery if that objection proves
unavailing - as Morse has attempted to do here. See, e.g., C.B.
Trucking, Inc. v .
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Morse v . TBC Retail Group, Inc. 13-CV-065-SM 12/19/13 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Matthew R. Morse, Plaintiff
v. Case N o . 13-cv-65-SM Opinion N o . 2013 DNH 174 TBC Retail Group, Inc., Defendant
O R D E R
Matthew Morse brings this action seeking damages for what he
claims was the unlawful termination of his employment.
Specifically, he says he was fired in retaliation for having
taken leave time that was protected under the Family Medical
Leave Act (“FMLA”). Defendant moves for summary judgment,
asserting that Morse was not an “eligible employee” under the
FMLA and, therefore, his claim fails as a matter of law.
For the reasons discussed, defendant’s motion for summary
judgment is granted.
Background
In September of 2010, M r . Morse began working at Carroll
Tire Company, a wholesale tire warehouse in Lebanon, New
Hampshire. In December of 2011, after he had exhausted all of
his allotted vacation and personal days, Morse injured himself and was admitted to the hospital. As a consequence, he missed
three days of work. Morse informed his supervisor of the
situation on December 2 8 , 2011. Although the supervisor was
aware that Morse had already used all his personal and vacation
time for the year, he assured Morse that it was not a problem.
Morse was paid for the three days he missed work.
About three weeks later (in January of 2012), Morse asked
his supervisor if he could take a vacation day. He claims his
request was denied because “he had taken too much time off in
2011.” Complaint (document n o . 1 ) at para. 2 5 . Morse complained
to the human resources representative and was subsequently
permitted to take the day off. A month later, Morse’s employment
was terminated. He says he was told that he had been “out a lot
and [his employer] could not run the place if M r . Morse was not
there.” Id. at para. 3 0 . Based upon those facts, Morse
concludes that, “It is clear that [his] termination was in
retaliation for his taking a medical leave in late-December.”
Id. at para. 3 1 . That, says Morse, violated his rights under the
FMLA.
Defendant says Morse’s claim fails as a matter of law
because he was not an “eligible employee” under the FMLA, so the
FMLA’s provisions are not applicable in this case. On that
2 ground, it has filed a “Motion to Dismiss, or in the Alternative,
for Summary Judgment.” Plaintiff objects.
Discussion
I. Defendant’s Motion is One for Summary Judgment.
It is probably best to begin by identifying the precise
nature of defendant’s motion (and the appropriate standard of
review). Although the motion seeks relief in the alternative -
dismissal or summary judgment - at this juncture, it is plain
that the court must treat it as one for summary judgment. In
response to defendant’s motion, plaintiff filed an objection.
That prompted defendant to file a reply. And that, in turn,
prompted plaintiff to file a motion for leave to file a sur-reply
(which the court granted, over defendant’s objection). Finally,
plaintiff thought it necessary to file a motion to strike
defendant’s objection to his motion for leave to file a sur-
reply.
The salient point is this: the parties have submitted a
substantial volume of material outside of the original complaint,
in the form of affidavits and attachments (e.g., printouts of
webpages from the Internet, corporate organizational charts, tax
and payroll records, e t c . ) . Plainly, then, the parties have
treated defendant’s motion as one for summary judgment. The
3 court will do the same. See generally Santiago v . Canon U.S.A.,
Inc., 138 F.3d 1 , 4 n.5 (1st Cir. 1998).
Because defendant’s motion is properly treated as one 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). Summary
judgment is appropriate when the record reveals “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). In this
context, “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.” Int’l Ass’n of Machinists & Aerospace Workers v .
Winship Green Nursing Ctr., 103 F.3d 196, 199-200 (1st Cir. 1996)
(citations omitted). Nevertheless, if the non-moving party’s
“evidence is merely colorable, or is not significantly
probative,” no genuine dispute as to a material fact has been
proved, and “summary judgment may be granted.” Anderson v .
Liberty Lobby, Inc., 477 U.S. 2 4 2 , 249-50 (1986) (citations
omitted).
4 Parenthetically, the court notes that plaintiff’s counsel
has suggested - but not moved - that the court delay ruling on
defendant’s motion until discovery has closed. See Plaintiff’s
objection (document n o . 6-1) at 9 (“Defendant’s instant Motion
for Summary Judgment is premature, and the Court should reserve a
ruling on the Motion until following the close of discovery in
this case.”). Although counsel alludes to Rule 56(d) of the
Federal Rules of Civil Procedure, she has not complied with its
requirements - no doubt recognizing that she could not, in good
faith, argue that additional discovery would provide any relevant
information that defendant has not already supplied.
As the court of appeals has noted, a party seeking relief
under Rule 56(d) (formerly, Rule 56(f)) must comply with certain
procedural requirements.
[T]he prophylaxis of Rule 56(f) is not available merely for the asking. A litigant who seeks to invoke the rule must act with due diligence to show that his predicament fits within its confines. To that end, the litigant must submit to the trial court an affidavit or other authoritative document showing (i) good cause for his inability to have discovered or marshalled the necessary facts earlier in the proceedings; (ii) a plausible basis for believing that additional facts probably exist and can be retrieved within a reasonable time; and (iii) an explanation of how those facts, if collected, will suffice to defeat the pending summary judgment motion.
Rivera-Torres v . Rey-Hernandez, 502 F.3d 7 , 10 (1st Cir. 2007)
5 (citations omitted) (emphasis supplied). Moreover, absent
unusual circumstances, a party cannot object (on substantive
grounds) to a pending motion for summary judgment, while also
seeking time for additional discovery if that objection proves
unavailing - as Morse has attempted to do here. See, e.g., C.B.
Trucking, Inc. v . Waste Mngt., Inc., 137 F.3d 4 1 , 44 (1st Cir.
1998) (“a party ordinarily may not attempt to meet a summary
judgment challenge head-on but fall back on Rule 56(f) if its
first effort is unsuccessful.”).
To the extent plaintiff’s passing reference to Rule 56(d)
might be construed as a motion seeking relief under that rule (it
is not, see Local Rule 7.1(a)(1) and ( 2 ) ) , that request is
denied. It is not supported by an affidavit or declaration, nor
has counsel identified any additional information - beyond the
voluminous records already disclosed by defendant - she believes
would be necessary to defeat summary judgment.
II. Plaintiff is not an “Eligible Employee”
An individual is entitled to the protections afforded by the
FMLA only if he or she qualifies as an “eligible employee.”
Excluded from the definition of eligible employee i s :
any employee of an employer who is employed at a worksite at which such employer employs less than 50 employees if the total number of employees employed by
6 that employer within 75 miles of that worksite is less than 5 0 .
29 U.S.C. § 2611(2)(B)(ii).1 The pertinent regulations provide
that “whether 50 employees are employed within 75 miles to
ascertain an employee’s eligibility for FMLA benefits is
determined when the employee gives notice of the need for leave.”
29 C.F.R. § 825.110(e). In this case, plaintiff notified his
employer of the need to be absent from work due to his injury on
December 2 8 , 2011. Complaint, at para. 2 1 .
Defendant says that because Carroll Tire Company did not
employ 50 or more people a t , or within 75 miles o f , Morse’s
worksite on December 2 8 , 2011 (or at any time in 2010 or 2011),
Morse does not qualify as an eligible employee under the FMLA
and, therefore, his claim necessarily fails. Morse objects on
several grounds. First, he simply “disputes” defendant’s
assertion that it (or Carroll Tire Company) employed fewer than
1 The 75-mile distance “is measured by surface miles, using surface transportation over public streets, roads, highways and waterways, by the shortest route from the facility where the employee needing leave is employed.” 29 C.F.R. § 825.111(b). As the court of appeals for this circuit has observed, the “75–mile rule protects those employers (and their employees) whose businesses require separate worksites from the cumbersome requirement of relocating or commuting over large distances to cover for an employee on leave. Moreover, the 75–mile requirement prevents companies from establishing separate worksites in order to circumvent obligations under the FMLA and other labor rules.” Engelhardt v . S.P. Richards Co., 472 F.3d 1 , 6 (1st Cir. 2006).
7 50 people within the relevant 75 miles radius of his worksite.
But, aside from an unsupported contradiction, he points to
nothing that might substantiate his “eligible employee” status.
Unsupported, speculative declarations are of course insufficient
to defeat a properly supported motion for summary judgment. See
generally Serapion v . Martinez, 119 F.3d 9 8 2 , 987 (1st Cir.
1997).
Next, Morse asserts that there is a genuine and material
dispute as to which corporate entity within a larger corporate
structure was actually his employer. And, he goes on to
(repeatedly) accuse defendant of trying to mislead the court
about critical facts and legal principles central to determining
his employment status. See Plaintiff’s Objection (document n o .
6-1) at 5 (“However, the defendant fails to apprise the Court as
to the applicable law for determining whether the employer
employed the requisite 50 employees.”); id. at 6 (“In a continued
effort to convince the Court that Plaintiff was an ineligible
employee under the FMLA, the Defendant boldly fails to disclose
one of its worksites to the Court.”).
Those accusations are, however, unfounded. No doubt part of
Morse’s confusion about his employment status (and concomitant
frustration) stems from the somewhat complex corporate structure
8 of which Carroll Tire Company is a part. It is described in
detail in the Declaration of Jolen Medwid (document n o . 11-1) and
need not be recounted. See also Affidavit of Patrick Dougherty
(document n o . 1 1 - 9 ) . It is sufficient to note that the parent
company is TBC Corporation - a holding company which, at all
times relevant to this litigation, had no employees of its own.
See Affidavit of Anthony Robinson (document n o . 4-2) at para. 1 2 .
Under the corporate umbrella of TBC Corporation, there are
several subsidiaries, including:
Carroll’s LLC, which operates wholesale tire warehouses under the name “Carroll Tire Company” (this is the entity defendant says employed Morse at the facility in Lebanon, New Hampshire; the closest Carroll Tire Company store is located in Auburn, Maine, approximately 130 miles from the Lebanon store);
TBC Retail Group, Inc., which is the named defendant and the entity Morse says was his employer. TBC Retail Group, Inc. operates automotive repair and service shops under the name “Tire Kingdom,” the closest of which is located in Williston, Vermont; and
NTW, LLC, which operates “National Tire & Battery” stores (also known as “NTB”), the closest of which is located in Manchester, New Hampshire.
But the apparent dispute over which of those corporate
entities actually employed Morse is not material. As discussed
below, even assuming that all the entities identified by Morse
that fall under the TBC Corporation corporate umbrella with a
presence even arguably within 75 miles of Morse’s worksite are
9 jointly treated as his employer for FMLA purposes, he still does
not qualify as an “eligible employee.”
In response to plaintiff’s unfounded accusations, defendant
is appropriately measured. First, it correctly points out that
whether it is an “employer” under the FMLA is not at issue in
this case. Hence, there is no need to “apprise” the court of the
relevant law on that point, nor is it necessary to submit data to
calculate the number of employees on its payroll for 20 or more
weeks in 2010 or 2011. 2
Next, defendant notes that it has not “boldly failed” to
disclose relevant worksites to the court. According to
defendant, one of the allegedly “omitted” worksites to which
Morse refers (the NTB store in Manchester, New Hampshire) is not
2 Plaintiff perhaps confuses the standard applicable in determining whether one is an “employer” under the FMLA with that applicable in determining whether one is an “eligible employee.” Only the former involves an inquiry into the number of employees on the payroll “for 20 or more calendar weeks in the current or preceding year.” 29 U.S.C. § 2611(4)(a)(i). That misunderstanding seems to be at the core of plaintiff’s accusation that defendant attempted to hide relevant information about the number of employees on its payroll during 2010 and 2011. See Plaintiff’s Objection (document n o . 6-1) at 5-6. In determining whether Morse was an “eligible employee” under the FMLA, there is only one relevant date - December 2 8 , 2011. Nevertheless, defendant has supplemented the record and provided payroll records for 2010 and 2011 for both Carroll’s, LLC and TBC Retail Group, Inc. (d/b/a Tire Kingdom), so there can be no dispute on that particular point.
10 operated by Morse’s corporate employer and, therefore, its
proximity to plaintiff’s worksite is irrelevant. The second
allegedly “omitted” worksite (the Tire Kingdom store in
Williston, Vermont) is not only operated by a different corporate
entity, but it is also more than 75 miles from Morse’s worksite
(as properly measured).
Nevertheless, says defendant, even if plaintiff were jointly
employed by the entity he claims (TBC Retail Group, Inc.) and the
entity defendant says was his employer (Carroll’s LLC) and the
entity that operates National Tire & Battery (NTW, L L C ) , and the
parent corporation (TBC Corporation), he still would not qualify
as an “eligible employee” under the FMLA, because those entities
combined do not employ more than 50 people within 75 miles of
Morse’s worksite. See generally Engelhardt v . S.P. Richards Co.,
472 F.3d 1 (1st Cir. 2006) (discussing the concepts of “joint
employer” and “integrated employer”). The undisputed evidence of
record is that, as of December 2 8 , 2011, those entities employed
a total of 39 employees. See Affidavit of Patrick Dougherty
(document n o . 11-9) at paras. 8 , 1 1 , and 1 4 . See also Affidavit
of Julie Aramouni (document n o . 1 3 - 1 ) ; Affidavit of Anthony
Robinson (document n o . 4 - 2 ) .
11 The testimony of those affiants can be summarized as
follows: Entity Employees on Distance 12/28/11 “Carroll Tire Company” 19 0 miles Lebanon, New Hampshire (Carroll’s, LLC)
“Nat’l Tire & Battery” 11 72 miles Manchester, New Hampshire (NTW, LLC)
“Tire Kingdom” 9 93 miles Williston, Vermont (TBC Retail Group, Inc.) TBC Corporation 0 N/A
Total: 39
That fact is reinforced in M s . Aramouni’s affidavit, in which
she testified that:
Since January 1 , 2011, there has been only one TBC- affiliated location (i.e., a branch, store or facility or any entity owned, leased, or operated by TBC Corporation or by any of its subsidiaries or entities beneath those subsidiaries) within 75 surface travel miles (i.e., travel using public streets, roads, highways and/or waterways) of the Lebanon, New Hampshire Carroll’s location: the National Tire & Battery (“NTB”) store located at 1985 S . Willow Street, Manchester, New Hampshire. . . . .
Other than the Manchester NTB location, since January 1 , 2011, there have been no TBC-affiliated, owned, leased, or operated locations within 75 surface travel miles of the Lebanon Carroll’s location. In other words, since January 1 , 2011, other than the Manchester NTB location, there has been no location of an corporate entity beneath TBC Corporation’s large orate umbrella within 75 surface travel miles of
12 the Lebanon Carroll’s location (where plaintiff worked).
Id. at paras. 4-5 (emphasis supplied).
The undisputed record evidence establishes that the various
entities Morse has identified - the NTB store in Manchester, the
Tire Kingdom store in Williston, and the Carroll Tire Company
store in Lebanon - employ too few people in the area for the
employees at the Lebanon, New Hampshire, Carroll Tire Company
store (like Morse) to be covered by the FMLA as “eligible
employees.” Because the FMLA permits only “eligible employees”
to bring civil actions against their employers for violations of
the statute, the sole count in Morse’s complaint fails as a
matter of law. See 29 U.S.C. § 2617(a)(1) (“Any employer who
violates section 2615 of this title shall be liable to any
eligible employee affected” for damages and/or equitable
relief.) (emphasis supplied).
To be sure, the court of appeals for this circuit has left
open the possibility that an employee who is not eligible for
FMLA leave might, under very unusual circumstances, still assert
a viable retaliation claim. McArdle v . Dracut, 732 F.3d 29 (1st
Cir. 2103). The court posited that an employee who was fired
for having inquired into his or her eligibility for FMLA leave
13 might have a viable retaliation claim. Id. at 36 (noting that
firing an employee for asking about his or her eligibility under
the FMLA, whether actually eligible or not, would frustrate the
purposes of the statute by deterring employees from taking the
first step necessary to exercise their statutory rights).
Morse’s retaliation claim arises, however, in a very different
context, and the dicta in McArdle does not support his claim -
nowhere in his complaint is there even a suggestion that he was
aware of the FMLA when he notified his supervisor of his injury,
nor does he allege that he ever inquired about rights he might
have under that statute, nor does he allege that he was fired
for having made such an inquiry.
Conclusion
The undisputed material facts of record establish that, as
of the date on which he arguably (albeit implicitly) invoked
rights under the FMLA (December 2 8 , 2011), Morse was not an
“eligible employee.” Accordingly, his claim that he was the
victim of unlawful “discrimination and/or retaliation for having
taken FMLA-protected leave time,” Complaint at para. 5 0 , fails
as a matter of law.
For the foregoing reasons, as well as those set forth in
defendant’s memoranda, defendant’s Motion to Dismiss, or in the
14 Alternative, for Summary Judgment (document no. 4) is granted.
Plaintiff’s Motion to Strike Defendant’s Objection to
Plaintiff’s Motion for Leave to File a Surreply to Defendant’s
Reply to Plaintiff’s Objection to Defendant’s Motion to Dismiss
or, in the Alternative, for Summary Judgment (document no. 14)
is denied.
The Clerk of Court shall enter judgment in accordance with
this order and close the case.
SO ORDERED.
^ e n J. McAuliffe St nited States District Judge December 19, 2013
cc: Heather M Heather M . Burns, Esq. Anne Anne S . Bider, Esq. Dani Daniel B . Klein, Esq. Lauren S . Wachsman, Esq. Brian L. Michaelis, Esq.