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Lopez v. City of Gaithersburg

United States District Court, D. Maryland

August 3, 2016

JAMMIE LOPEZ, Plaintiff,
CITY OF GAITHERSBURG, et al., Defendants.



         Plaintiff 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”)[1] 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.


         Plaintiff 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.

         Lopez 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.

         On 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”)[2]. 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”)[3]. 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.

         Subsequently, 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 follows:

“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.

         On 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. 28-14.

         Via 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.

         Lopez 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.

         However, 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 questions.” Id.

         On 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[4], the date she began bed rest or on January 21, 2015, her child’s estimated due date. See Mem.

         Supp. 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.[4] See Time Detail, p. 19, ECF No. 28-8.

         Also on 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.

         Via 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, 2015.”[5] Id.

         On 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.

         Via 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.[6] 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.

         Chief 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.

         Chief 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.

         Lopez 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.

         The 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.” Id.

         Subsequently, 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 ...

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