United States District Court, D. Maryland
L. Hollander United States District Judge.
Farms, LLC (“Amick”) was sued by multiple
plaintiffs in three separate cases. The plaintiffs all allege
that they were terminated by Amick in violation of the Family
and Medical Leave Act of 1993 (“FMLA”), as
amended, 29 U.S.C. § 2601, et seq. ECF 1
in ELH-16-783; ECF 1 in ELH-16-2444; ECF 1 in ELH-16-2938. On
December 22, 2016, the parties in Monfiston v. Amick
Farms, ELH-16-783, filed a stipulation of dismissal,
with prejudice. ECF 28 in ELH-16-783. Therefore, that case is
now closed. See ECF 29 in ELH-16-783; see
also docket. As to the remaining two cases, captioned
above, this Memorandum Opinion resolves three motions.
this Memorandum Opinion resolves defendant's
“Motion to Dismiss Count III of Plaintiffs'
Collective Action and Individual Complaints, ” filed in
Olivince, et al. v. Amick Farms, ECF 14 in
ELH-16-2938. It is supported by a memorandum. Id.,
ECF 14-1 (collectively, “Motion to Dismiss”).
Plaintiffs Marie Olivince, Leslie Rios, and Alourde Jean
Baptiste oppose the motion (id., ECF 19,
“Response”), and Amick has replied. Id.,
this Memorandum Opinion addresses the motions to consolidate
filed on September 9, 2016, by plaintiff Jean Antoine in
ELH-16-2444 (id., ECF 7) and by plaintiffs Olivince,
Rios, and Baptiste in Case ELH-16-2938. See id., ECF
Each motion is supported by a memorandum (ECF 7-1 and ECF
8-1) (collectively, “Motion to Consolidate”).
Defendant opposes the Motion to Consolidate. ECF 8,
ELH-16-2444; ECF 9, ELH-16-2938 (collectively,
“Opposition”). Plaintiffs replied. ECF 11,
ELH-16-2444; ECF 13, ELH-16-2938 (collectively,
this Memorandum Opinion resolves defendant's motion in
Olivince, et al. v. Amick Farms, ELH-16-2938,
seeking to sever the cases of plaintiffs Olivince, Rios, and
Baptiste. Id., ECF 9 (“Motion to
Sever”). Olivince, Rios, and Baptiste oppose the
Motion (id., ECF 13), and Amick has replied.
Id., ECF 15.
motions have been fully briefed and no hearing is necessary
to resolve them. See Local Rule 105.6. For the
reasons that follow, I shall grant the Motion to Dismiss
Count III in ELH-16-2938; I shall grant the Motion to
Consolidate; and I shall deny the Motion to Sever.
Procedural and Factual Background
v. Amick Farms, ELH-16-2444, was initiated by Jean
Antoine on June 29, 2016. ECF 1 in ELH-16-2444. Antoine
“speaks and reads Haitian Creole.” Id.
¶ 10. He worked for Amick farms during two periods - one
in 2010 and the second from some time in 2012 to July 2014.
Id. ¶ 4. Beginning in 2012, Antoine worked in
the Sanitation Department, where his job duties included
“sanitizing evisceration machines, the floors and
equipment in the ‘kill' rooms, and the floors in
other areas in the Amick Farms plant.” Id.
states that on April 18, 2014, while he was at work, he
“was on an eight-foot ladder and using a high-pressure
hose when he fell several feet to the ground and injured his
back, head and the left side of his body.” Id.
¶¶ 16-17. Antoine was taken to the hospital and
instructed by his “treating providers at the
hospital” not to return to work until he was evaluated
further for his injuries. Id. ¶¶ 18, 21.
Thereafter, as a result of his injuries, Antoine suffered
continuing pain and other ailments, limiting his ability to
work from the date of his injury through July 11, 2014.
Id. ¶¶ 22-35. During this time, Antoine
provided the defendant with notes from medical providers
confirming his inability to work. See Id. However,
defendant never provided Antoine with a notice of his rights
under the FMLA in Haitian Creole at any time after he
produced his medical records. See id.
received a termination letter from Amick on July 11, 2014.
Id. ¶ 37. It stated: “Please consider the
following notification of termination of employment from
Amick Farms, LLC. Effective June 19, 2014. Reason: No Call in
3 Days.” Id. ¶ 38. Antoine asserts that
he was terminated because “Amick Farms maintains a
point system whereby an employee receives a ‘point'
for any absence, even if the absence is for a medical reason.
Under this policy, once an employee reaches a certain number
of ‘points, ' they may be subject to discipline,
including termination.” Id. ¶¶
Complaint contains three counts. Antoine claims: (1) that
defendant violated the FMLA by terminating him while he was
on protected medical leave (id. ¶¶ 42-51);
(2) defendant retaliated against him as a result of his
attempt to exercise his rights under the FMLA (id.
¶¶ 52-56); and (3) defendant failed to provide
notice of his FMLA rights and eligibility (id.
Marie Olivince; Leslie Rios; Alourde Jean Baptiste
et al. v. Amick Farms, ELH-16-2938, was initiated on
August 22, 2016, by Marie Olivince, Leslie Rios, and Alourde
Jean Baptiste. ECF 1 in ELH-16-2938. The plaintiffs brought
individual claims as well as a collective action, pursuant to
29 U.S.C. § 2617, on behalf of all similarly situated
employees. Id. at 1-2.
was employed by Amick, or companies acquired by Amick, during
two periods: first from 1989 until October 26, 2013, and
second from October 29, 2013 until September 9, 2016.
Id. ¶¶ 20-23, 49. During the second
period, Olivince worked as a “tender clipper” in
the “deboning department.” Id. ¶
25. Olivince “speaks and reads Haitian Creole”
and she “is not literate in English.”
Id. ¶ 19.
claims that, as a result of the requirements of her job, she
“developed severe pain in her wrists.”
Id. ¶ 28. She notified defendant on “a
regular, if not daily basis, between late 2013 and September
9, 2014” of her severe wrist pain. Id. ¶
December 2013, defendant asked the National Institute for
Occupational Safety and Health (“NIOSH”) to
conduct an “ergonomic evaluation” for its
workforce. Id. ¶ 33. According to Olivince,
NIOSH informed her that “her results from the nerve
conduction test were abnormal.” Id. ¶ 35.
NIOSH also recommended that she consult with a doctor.
sought treatment from an orthopedic surgeon on August 1,
2014, who diagnosed her with carpel tunnel syndrome.
Id. ¶¶ 40-41. Olivince notified defendant
of her medical condition on numerous occasions and also
provided the defendant with numerous documents supporting her
claims. See, e.g., id. ¶ 42. However,
defendant never provided her with notice of her rights under
the FMLA, in any language. See, e.g., ECF ¶ 38.
September 9, 2014, defendant sent Olivince a letter
terminating her employment. Id. ¶ 48. It
states: “Please consider the following notification of
termination of employment from Amick Farms, LLC. Effective
September 4, 2014. Reason: Excessive Absence.”
Id. ¶ 49. According to Olivince, she was
terminated because Amick “maintains a point system
whereby an employee receives a ‘point' for any
absence, even if the absence is for a medical reason. Under
this policy, once an employee reaches a certain number of
‘points, ' they may be subject to discipline,
including termination.” Id. ¶ 50-51.
began working for Amick Farms in November 2014. Id.
¶ 53. For approximately one year, she worked in the
“‘second cut' leg deboning position”
and she was then moved to the “more demanding and
strenuous position - ‘first cut' leg
deboning.” Id. ¶ 55-56. Rios notes that
she “speaks and reads Spanish” and that she
“is not literate in English.” Id. ¶
after Rios was moved to the “first cut position”
in November 2015, “she started to develop severe pain
in her right hand and wrist.” Id. ¶ 57.
She subsequently sought medical evaluation and provided
defendant with doctors' notes indicating that she should
wear a wrist brace and move to a position that did not
require the use of scissors or a knife. Id. ¶
January 25, 2016, Rios began to rotate between the
“first cut” position, which requires the use of a
knife, and the “re-work” division, which requires
the use of scissors.” Id. ¶ 60. According
to Rios, on January 27, 2016, because she “did not have
the full capacity of her right hand, she sustained a
different injury to her left hand while cutting chicken in
the ‘re-work' division.” Id. ¶
61. Rios reported the injury to defendant and was instructed
to see a doctor to treat her left hand. Id. ¶
62. However, Rios continued working until March 4, 2016.
Id. ¶ 64-65. Rios missed work on “at
least three occasions to attend doctor's appointments and
to get an MRI on her hand.” Id. ¶ 66.
issued “a warning letter” to Rios on March 30,
2016, noting her absences and suggesting that “further
absences would lead to termination.” Id.
¶ 67. Rios then provided doctors notes to defendant
confirming that her absences were medically related, but
defendant “refused to excuse those absences . . .
.” Id. ¶ 68. On June 10, 2016, Rios
provided defendant with a doctor's note stating that she
could not use her left hand and, on June 14, 2016, Rios's
doctor informed her that she needed surgery on her right
hand. Id. ¶¶ 69-72. Amick cancelled
Rios's medical benefits on June 17, 2016. Id.
¶ 74. And, Rios claims that after she was cleared by her
doctor to return to work in a “light duty”
status, defendant responded that there were no light duty
jobs for her to do and “instructed her to go
home.” Id. ¶ 75.
has not worked since “the beginning of June
2016.” Id. ¶ 76. Furthermore, Rios was
never provided with a notice of her rights under the FMLA in
any language. Id. ¶ 77.
Alourde Jean Baptiste
worked for defendant, or its predecessor, from 2008 until
November 24, 2014. Id. ¶¶ 79-80, 105-107.
Baptiste alleges that she speaks Haitian Creole and is not
literate in English. Id. ¶ 78.
in 2010, defendant moved Baptiste to the “wing
deboning” division, “where she deboned chicken
wings with a knife, which required repetitive movements with
her right hand.” Id. ¶ 80. Baptiste
alleges: “Over time, the repetitive cutting movements
caused severe pain, numbness and tingling in Ms.
Baptiste's right hand.” Id. ¶ 83.
to Baptiste, on June 14, 2014, after Amick conducted the
NIOSH study, described earlier, she was informed that
“her results from the nerve conduction test were
abnormal . . . .” Id. ¶ 88. NIOSH
recommended that she consult a doctor. Id. Baptiste
claims that she provided the results of the NIOSH test to
defendant in August 2014, but was not provided with notice of
her rights under the FMLA. Id. ¶¶ 89-91.
sought medical treatment for the pain in her right wrist on
November 20, 2014. Id. ¶ 99. Her doctor
diagnosed her with carpal tunnel syndrome and “lesion
of ulnar nerve”, and recommended that she change job
duties. Id. ¶ 100. On November 21, 2014,
Baptiste informed defendant of her diagnosis and the
doctor's recommendation. Id. ¶ 101.
defendant moved Baptiste to the “breast flipping”
position, which does not require the use of a knife, she was
almost immediately returned to the “wing deboning
position.” Id. ¶¶ 103-04. Baptiste
claims that when she “attempted to communicate to her
supervisor that, per her doctor's request and due to the
severe pain in her hand, she could not perform the work in
wing deboning”, she was immediately terminated.
Id. ¶¶ 105-06. The termination letter,
dated November 24, 2014, states: “Please consider the
following notification of termination of employment from
Amick Farms, LLC. Effective November 21, 2014. Reason:
Performance.” Id. ¶ 107.
also states that during 2014, she “missed work to care
for her daughter”, who had been “frequently
hospitalized” due to a serious medical condition.
Id. ¶¶ 92-93. Baptiste alleges that she
provided defendant with doctors' notes explaining that
her absences were attributable to her daughter's medical
issues, but that defendant refused to excuse those absences
because they were attributable to Baptiste's daughter.
Id. ¶ 95. Defendant warned Baptiste that
“frequent absences would not be tolerated.”
Id. ¶ 96. But, defendant never informed her of
her rights under the FMLA. Id.
Complaint alleges three violations of the FMLA. Count I,
brought on behalf of the three individually-named plaintiffs,
alleges that defendant interfered with and denied their
rights under the FMLA. Id. ¶¶ 121-33. In
particular, the Complaint contends: “By refusing to
provide Plaintiffs with Notice of their FMLA rights and
eligibility, Defendant intentionally and willfully interfered
with, restrained, and/or denied Plaintiffs Olivince, Rios,
and Baptiste from exercising or attempting to exercise their
rights under the FMLA.” Id. ¶ 128.
II, also brought on behalf of the individually-named
plaintiffs, alleges retaliatory discharge. Id.
¶¶ 134-38. The Complaint asserts: “Amick
Farms improperly prevented Plaintiffs Olivince, Baptiste and
Rios from invoking their FMLA rights and [they] were
terminated in retaliation for actions that should have been
protected under the FMLA.” Id. ¶ 136.
III, the only cause of action brought on behalf of both the
individually-named plaintiffs and the collective members,
alleges that defendant failed “to post a notice, in a
language in which their employees are literate, outlining the
FMLA's provisions pursuant to 29 U.S.C. § 2601 et
seq. and 29 C.F.R. § 825.300 et seq.” Id.
¶ 140. According to the Complaint: “Amick
Farm's systematic failures to post a notice of FMLA
protections prejudiced the Class ...