United States District Court, D. Maryland
RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE
Jammie Lopez (“Plaintiff” or “Lopez”)
has brought this action against Defendants City of
Gaithersburg (the “City”) and the City’s
Chief of Police, Mark Sroka, (“Chief Sroka”)
(collectively “Defendants”) alleging
violations of the Family and Medical Leave Act of 1993, 29
U.S.C. § 2601, et seq., (“FMLA”).
See generally Compl., ECF No. 1. Specifically,
Plaintiff alleges that Defendants “[i]nterfer[ed] with
[her] [e]xercise of FMLA [r]ights” (Count One) and
“retaliate[ed] against [her] for exercising [her]
rights under the FMLA” (Count Two). Id. at
6-8. Currently pending before this Court are
Plaintiff’s Motion for Summary Judgment as to Liability
on the Complaint (ECF No. 23) and Defendants’ Cross
Motion for Summary Judgment (ECF No. 28). The parties’
submissions have been reviewed, and no hearing is necessary.
See Local Rule 105.6 (2016). For the reasons stated
herein, Plaintiff’s Motion for Summary Judgment (ECF
No. 23) is DENIED, and Defendants’ Cross Motion for
Summary Judgment (ECF No. 28) is GRANTED IN PART and DENIED
IN PART. Specifically, Judgment is entered for the Defendants
on Count One of the Complaint, Plaintiff’s FMLA
interference claim, but a genuine issue of material fact
remains as to liability on Count Two of the Complaint,
Plaintiff’s FMLA retaliation claim. Accordingly, the
Defendants’ Cross Motion for Summary Judgment is DENIED
as to Count Two, and this case will proceed to trial on that
FMLA retaliation claim.
Jammie Lopez (“Plaintiff” or “Lopez”)
was employed by the City of Gaithersburg, Maryland
(“Defendant” or the “City”) as a
full-time police officer. See Compl. at ¶¶
1-3, ECF No. 1. In 2014, she became romantically involved
with her co-worker, Patrick Word (“Word”).
Id. at ¶ 18. In April of 2014, Lopez and Word
disclosed their relationship to the City Police
Department’s command staff. Id. at ¶ 19.
Lopez’s supervisors “disapproved of her
relationship to such an extent” that they
“threatened to discipline” Lopez, although at
that time the City “had no prohibitions or regulations
regarding romantic involvements between employees.”
Id. at ¶¶ 20-21. However, Lopez’s
supervisors “did change [her] schedule so that [she]
did not encounter Mr. Word during working hours.”
Id. at ¶ 20.
married Word in June of 2014. Id. at ¶ 22.
Shortly thereafter, she learned that she was pregnant.
Id. at ¶ 23. Due to her pregnancy, Lopez was
placed on light duty status on August 18, 2014. See
Personnel Order #2014-30, ECF No. 28-7. “In October of
2014, [Lopez] was diagnosed with gestational diabetes and was
medically certified as having a “ ‘high risk
pregnancy.’ ” Compl. at ¶ 24, ECF No. 1.
November 25, 2014, Lopez notified the City that she planned
to request leave from work for the birth of her child,
pursuant to the Family and Medical Leave Act of 1993, 29
U.S.C. § 2601, et seq.,
(“FMLA”). See Lopez Dep., p. 62, ECF No.
28-6. Around this time, Lopez had several conversations with
Sarah Fleming (“Fleming”), a Human Resources
Generalist for the City. Id. at 64. Fleming supplied
Lopez with the forms that had to be completed in order to
process her leave request, including a Family or Medical
Leave Request Form (“Leave Request Form”) and a
Certification of Health Care Provider for Employee’s
Serious Health Condition
(“Certification”). Id. at 65.
Additionally, Lopez claims that she and Fleming
“discussed not starting [Lopez’s leave] until
[she] had used all of [her] leave, annual, sick,
donated.” Id. According to Lopez, Fleming
“said that that was fine” and explained that
Lopez could “take advance leave . . . put in for
short-term disability . . . [or] ask for leave without
pay” if she ever exhausted her [FMLA] leave.
Id. at 66.
Lopez returned the Leave Request Form to Fleming, requesting
leave beginning on January 20, 2015 and ending on April 19,
2015 due to “[t]he birth of [her] child.”
See Family or Medical Leave Request Form, ECF No.
28-9. On that form, Lopez indicated that her husband, Patrick
Word (“Word”), a fellow City employee, would also
take FMLA leave due to the birth of their child. Id.
However, Lopez did not initially return the Certification. On
December 15, 2014, Lopez informed her supervisors, Sergeant
Ray Campbell (“Sergeant Campbell”) and Lieutenant
Curtis Pettaway (“Lieutenant Pettaway”), that her
pregnancy had been classified as “high risk” and
that a perinatal specialist had “recommended [she] go
on bed rest immediately.” December 15, 2014 Lopez
Email, ECF No. 28-10. Accordingly, Lopez stated that she
“[would] be going on FMLA a lot sooner than we
anticipated.” Id. Fleming responded as
“Please let your doctors know we HAVE to have the
certification prior to your going out. Please have it updated
with this new info…. If possible could you have the
specialist complete the certification for the bed rest?
Especially being that you could be going out for the bed
rest-not just for the leave for the birth.” December
15, 2014 Fleming Email, ECF No. 28-11. Lopez’s last
physical day of work was December 17, 2014. See Time
Detail, p. 19, ECF No. 28-8.
December 18, 2014, Lopez sent Fleming and Kim Yocklin
(“Yocklin”), the City’s Director of Human
Resources, a note from her perinatal specialist, indicating
that she had been placed on bed rest as of that day.
See December 18, 2014 Lopez Email, ECF No. 28-12;
December 18, 2014 Dr. Jonathan Hodor Note, ECF No. 28-13.
Lopez also indicated that she was “waiting for the
doctor[’]s office to call [her] so [she] [could] pick
up the rest of the paperwork they need[ed] to fill out”
and that she would “drop it off” “[o]nce
[she] . . . received it.” Id. That same day,
Yocklin reminded Lopez that “in order for this to be
FMLA, we need to have the [Certification] completed by your
physician.” December 18, 2014 Yocklin Email, ECF No.
email dated December 23, 2014, Fleming again advised Lopez
that “you cannot begin utilizing FMLA until we are in
receipt of the Healthcare certification and approve the
leave.” December 23, 2014 Fleming Email, ECF No. 28-15.
Four days later, Lopez replied that she “[g]ot all the
paperwork” and that it would be “placed in an
envelope for Sarah [Fleming] to receive on Monday.”
December 27, 2014 Lopez Email, ECF No. 28-16.
then submitted a completed Certificate to the City’s
Human Resources Office. See Certificate, ECF No.
28-17. The Certificate, signed by Lopez’s doctor,
indicated that her estimated date of delivery was January 21,
2015 and that she would be incapacitated for six weeks
following her delivery, running from January 21, 2015 to
March 4, 2015. Id. at 2-3.
in an email dated December 31, 2014, Fleming informed Lopez
that although “the certifications provided for [her]
FMLA [were] sufficient for [her] leave after the birth of the
child, ” Fleming needed “more
documentation/clarification for” the [pre- delivery]
leave Lopez was currently on. December 31, 2014 Fleming
Email, ECF No. 28-18. The email stated the following:
The doctors slip to have you on bed rest; could you please
have the doctor include the duration time of the bed rest? If
it states the time frame-it is not legible and it is written
in doctor’s shorthand. Basically, it should read
‘on bed rest from the date of this slip (which is
included) through the birth of the child’. . .
Additionally, I need to know if you are intending to use FMLA
to cover this time. Please let me know if you have any
January 5, 2015, Doctor Hodor, Lopez’s doctor, revised
his bed rest note to indicate that Lopez was to remain off
work from December 18, 2014 until post-delivery. See
January 5, 2015 Bed Rest Note, ECF No. 28-19. However,
Defendants claim that they never received “a response
from [Lopez] regarding what date she wanted her FMLA leave to
commence - i.e., whether [Lopez’s] FMLA leave was to
commence on December 18, 201, the date she began bed rest
or on January 21, 2015, her child’s estimated due date.
Defs.’ Mot., p. 7, ECF No. 28-1. Ultimately,
Lopez’s pre-delivery “bed rest” leave was
labeled as “sick leave, ” “annual leave,
” or “personal leave, ” as opposed to
“FMLA” leave, in the City’s
records. See Time Detail, p. 19, ECF No.
January 5, 2015, Word informed his supervisor and Fleming
that Lopez’s doctors had decided to induce labor on
January 15th, a week earlier than expected, due to
Lopez’s high risk pregnancy. See January 5,
2015 Word Email, ECF No. 28-20. Word indicated that if Lopez
did not go into labor before then, he would “adjust
[his] FMLA dates and return to work on February 5.”
Id. Lopez gave birth on January 16, 2015. Compl. at
¶ 30, ECF No. 1.
email dated March 13, 2015, Lopez informed Lieutenant
Pettaway that “[d]ue to follow up appointments and
spring break for the kids, I will be returning on April
6.” March 13, 2015 Lopez Email, ECF No. 28-21.
“As [they] had previously discussed on the phone,
” Lopez indicated that “[she] [would] be
returning to work on light duty and [would] provide [him]
with a doctors note.” Id. Lopez estimated that
she would be “on light duty approximately 2-4
weeks.” Id. On March 16, 2015, Fleming sent
Lopez an update on her FMLA leave status and informed her
that she would “max out of [her] hours on March 25,
2015.” See March 16, 2015 Fleming Email, ECF
No. 28-22. Fleming indicated that Lopez had used 88 hours of
FMLA leave in January, 152 hours in February, and was
projected to use 136 hours of FMLA leave in March, for a
total of 376 FMLA leave hours. Id. She then combined
this number with the 100 hours of FMLA time Word had used,
for a total of 476 hours. Id. Fleming explained that
Lopez would hit a “combined 476 hours on March 24,
2015; which [would] leave 4 hours for March 25,
March 17, 2015, Lopez send Lieutenant Pettaway a
“Request for Leave without Pay . . . for the period of
March 26 - April 5, 2015.” March 17, 2015 Lopez Email,
ECF No. 28-23. In that memo, Lopez indicated that her
“current FMLA leave expire[d] on March 25 as well as
all of [her] leave and donated leave.” Id.
According to Lopez, she was making the request “due to
continuing post-partum medical care.” Id. She
further stated that “[o]nce cleared to return, I have
requested a light duty status until I am fully capable of
returning to my patrol duties in uniform.” Id.
On Mach 18, 2015, Lieutenant Pettaway sent Fleming a
doctor’s note regarding Lopez’s return to light
duty on April 6, 2015. See March 18, 2015 Pettaway
Email, ECF No. 28-24. The note, signed by Khalilah Jefferson,
CRNP, stated that Lopez would be able to return to work on
April 6, 2015 and could resume regular work activity after
four weeks. Jefferson Note, ECF No. 28-25.
Letter dated March 19, 2015, the Defendant Mark P. Sroka,
Chief of Police of the City’s Police Department,
(“Chief Sroka”) informed Lopez that her FMLA
leave would “be exhausted on March 25, 2015.”
March 19, 2015 Chief Sroka Letter, ECF No. 28-26. Chief Sroka
acknowledged that Lopez had requested unpaid leave through
April 6, 2015 and that her request would be sent to the City
Manager for approval, pursuant to the City’s Personnel
Rules and Regulations. Id. “In order for the
Department to consider and make a recommendation on
[Lopez’s] request, ” he asked Lopez “to
provide medical certification that clarifies the March 18,
2015 medical documentation and specifically addresses (i)
your inability to return to work as of March 26, 2015, and
(ii) that you will be able to return to work within 30 days
of the expiration of family or medical leave and to perform
the essential functions of your position.” Id.
Chief Sroka indicated that he would “need additional
medical documentation to delineate what duties [Lopez] would
be able to perform upon [her] return to work” if the
City Manager approved her request. Id. Chief Sroka
requested that Lopez “provide this information . . . no
later than 5 p.m. on Monday, March 23, 2015, so that the
Department may consider [her] request prior to the expiration
of [her] job-protected leave entitlement.” Id.
Sroka sent Lopez a follow-up letter, dated March 24, 2015,
indicating that he could not recommend to the City Manager
that her request for additional leave be granted. March 24,
2015 Chief Sroka Letter, ECF No. 28-28. Chief Sroka indicated
that he had conducted a careful review of Lopez’s
submitted documents, including “medical notes, ”
“emails sent from [Lopez] to Lieutenant  Pettaway,
” and “a memorandum prepared by [Lieutenant
Pettaway] concerning this matter.” Id. He
explained his decision as follows:
Among other concerns, you have provided inconsistent return
dates. By an earlier email exchange, you indicated you would
return on March 23. After that, on March 18, you provided the
statement that you could return on April 6. Then on March 20,
in conversation with Kim Yocklin, you indicated you would
return a week before that, on or around March 30. And then on
March 23, you provided a medical statement indicating you
“will” return on April 6. Thus, I cannot
recommend that your job position be held open beyond the FMLA
entitlement period, and if you cannot return to work by March
26, 2015, you will be terminated. Id.
Sroka asked Lopez to notify Yocklin or himself if she did not
intend to return to work on March 26, 2015. Id.
Additionally, he advised her that “if you intend to
return to work at that time, Section 713.2(m)(1) of the
Personnel Rules and Regulations Manual requires that you
first provide a written certification from your personal
health care provider that you are fit to return to work at
that time. Without that certification, the Personnel Rules
and Regulations do not permit me to allow you to return to
work. That certification must be provided by no later than
noon on March 26, 2015 if you intend to return to work that
evening.” Id. With respect to Lopez’s
request for light duty work, Chief Sroka indicated that any
reasonable accommodation would be considered upon her timely
return to work, pursuant to Sections 713.2(f) and 712(m)(2)
of the Personnel Rules and Regulations Manual. Id.
Furthermore, “in order to determine whether there are
any light duties that [Lopez could perform, ” he stated
that he “would need additional medical information as
to the specific tasks [she could] perform.”
Id. Chief Sroka stated that he had “not
received such information.” Id. He claimed
that the medical statements Lopez had provided stated
“work restrictions, ” but “[did] not
indicate what tasks [she could] perform.” Id.
sent an email to Yocklin in response to Chief Sroka’s
letter. See Lopez Email, ECF No. 28-29. Again, she
indicated that she was “aware . . . [her] FMLA runs out
on March 26, ” but sought an “additional 7 days .
. . based on the expert medical opinion of [her] physician
and providers.” Id. She objected to the part
of Chief Sroka’s letter “where [he] states that
he would ‘consider’ light duty.”
Id. According to Lopez, “he ha[d] never argued
this point with other employees” during her tenure with
the department. Id. Lopez questioned why she was
being treated differently. Id. Additionally, she
argued that he had received plenty of medical documentation
outlining her job restrictions from which one could easily
determine that she can do anything else, “including the
light duty assignment [she] had during [her] pregnancy when
assigned to the Administrative Bureau.” Id.
She objected that “Chief Sroka [knew] all of these
duties because a list of all [she] was doing was emailed to
him last fall by [Lieutenant] Pettaway.” Id.
Lopez further challenged the standard by which Chief Sroka
concluded it was not in the City’s best interest to
give her seven days of leave without pay and to hold her job
open. Id. “The only thing he lists are
inconsistent return dates, ” Lopez argued, “in
which he stated that you and I discussed my return date on
March 20th that I would be returning March 30th.”
Id. “[W]hen did we have this conversation?,
” she asked. Id.
next day, City Manager Tony Tomasello sent Lopez a letter
terminating her employment, “based on the expiration of
[her] Family Medical Leave Act (FMLA) leave entitlement and
failure to provide medical certification that [she was] fit
to return to work as of March 26, 2015.” March 26, 2015
Tomasello Letter, ECF No. 28-30. Tomasello indicated that he
“ha[d] reviewed all of the documentation involved in
this matter prior to a final decision being made by Chief
Sroka, ” including Lopez’s response and
“other materials related to this situation” and
“support[ed] the actions taken by Chief Sroka.”
Lopez brought this action, pursuant to the Family and Medical
Leave Act of 1993, 29 U.S.C. § 2601, et seq.,
(“FMLA”), alleging that Defendants both
“[i]nterfer[ed] with [her] [e]xercise of FMLA
[r]ights” (Count One) and “retaliate[ed] against
[her] for exercising [her] rights under the FMLA”
(Count Two). See Compl., p. 6-8, ECF No. 1.
Plaintiff has subsequently filed a Motion for Summary