Tsige v. Marriott Hotel Services, Inc.

          MEMORANDUM OPINION

          GEORGE J. HAZEL UNITED STATES DISTRICT JUDGE

         Plaintiff Almaz Tsige, initially proceeding pro se, brought this action alleging that her employer Defendant Marriott Hotel Services, Inc. violated her rights under the Family Medical Leave Act (FMLA), 29 U.S.C. § 2601, et seq. Pending before the Court are the parties' Cross Motions for Summary Judgment. ECF Nos. 26 & 28. No. hearing is necessary. See Loc. R. 105.6 (D. Md. 2016). For the following reasons, Plaintiff's Motion for Summary Judgment will be denied, and Defendant's Motion for Summary Judgment will be denied.

         I. BACKGROUND^[1]

         From approximately August 11, 2009 to January 14, 2017, Defendant employed Plaintiff as a Customer Service Agent with its In-Room Dining Department. ECF No. 38-1 ¶ 2. Between approximately January 15, 2017 and December 3, 2017, Defendant employed Plaintiff as a Marketplace Attendant with the Food & Beverages Department. Id. ¶ 3.

         On October 4, 2017, Plaintiff provided a “Verification of Treatment” form to Defendant, indicating that she needed to use medical leave for a serious health condition. See ECF No. 28-5 ¶ 4; id. at 5. She also submitted an “Absence Request” form to Grant Consoletti who was employed by Defendant as a Manager. ECF No. 38-1 ¶ 6; ECF No. 38-3. To indicate the “type of absence request, ” Plaintiff checked “vacation, ” but she noted that the reason for her absence was a “MD reason check HR Records, ” i.e., a medical reason. ECF No. 38-3. Consoletti approved Plaintiff's request. Compare Id. (Absence Request containing Consoletti's signature) with ECF No. 28-4 at 2 (Declaration of Grant Consoletti containing Consoletti's signature). Consoletti disputes that he knew that Plaintiff requested medical leave. ECF No. 28-4 ¶ 5.

         From approximately October 10 to 23, 2017, Plaintiff exercised FMLA leave for a serious health condition. ECF No. 38-1 ¶ 7. On or about October 24, 2017, Plaintiff provided FMLA certification paperwork related to her medical leave to Defendant. Id. ¶ 8; ECF No. 38-2.

         On October 27, 2017, Plaintiff provided additional FMLA certification paperwork to Defendant. ECF No. 28-5 at 7-10. Defendant concluded that Plaintiff was eligible for FMLA leave. Id. ¶ 5. A few days later on November 3, 2017, Consoletti told Plaintiff that he and another manager had been trained on how to take disciplinary action against employees and that he “could not wait to use” that authority. ECF No. 38-1 ¶¶ 3, 9. The next day on November 4, 2017, Plaintiff and Consoletti had a dispute about whether vanilla caramel crunch cakes could be placed in the Marketplace for guest consumption. Id. ¶ 12. According to Plaintiff, the cakes were frozen and could not be served to guests. Id. Consoletti knew that the cakes were frozen and that they needed to be defrosted prior to being served to guests. Id. However, Consoletti twice instructed Plaintiff to place the cakes on display at the Marketplace. Id. ¶ 11. Plaintiff began to comply with the assistance of her colleague Rigbe Aragaw. Id. ¶ 12. Aragaw then told Plaintiff that Aragaw would finish taking care of this task, at which point Plaintiff stopped assisting and began to complete another job duty. Id. Based on this “incident, ” Plaintiff was suspended from her employment for alleged insubordination. Id. ¶ 10.^[2]

         Defendant's Progressive Discipline Policy states that immediate termination may result from: “Failure to carry out a reasonable job assignment or job request of your supervisor or manager after being warned failure to do so may result in termination.” ECF No. 28-3 at 14. Consoletti did not warn Plaintiff that failing to display the vanilla caramel crunch cakes could result in termination. ECF No. 38-1 ¶ 14. And Plaintiff's Human Resources file contained no write-ups prior to November 4, 2017. Id. ¶ 4. Consoletti did write a contemporaneous record about the cake dispute, but that record does not mention anything about Plaintiff potentially being terminated. ECF No. 28-3 at 10. On November 7, 2017, through her union, Plaintiff filed a grievance to protest her suspension from employment issued on November 4, 2017. ECF No. 38-1 ¶ 14. On November 17, 2017, Plaintiff had a “Grievance Meeting” regarding her suspension from employment. Id. ¶ 16. On December 3, 2017, a little over a month after Plaintiff took FMLA leave, Plaintiff was terminated from employment for her alleged insubordination on November 4, 2017. Id. ¶ 18.

         II. STANDARD OF REVIEW

         Summary judgment is proper if there are no issues of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 302 (4th Cir. 2006). A material fact is one that “might affect the outcome of the suit under the governing law.” Spriggs v. Diamond Auto Glass, 242 F.3d 179, 183 (4th Cir.2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, (1986)). A dispute of material fact is only “genuine” if sufficient evidence favoring the non-moving party exists for the trier of fact to return a verdict for that party. Anderson, 477 U.S. at 248-49. However, the nonmoving party “cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another.” Beale v. Hardy, 769 F.2d 213, 214 (4th Cir.1985). The Court may rely on only facts supported in the record, not simply assertions in the pleadings, to fulfill its “affirmative obligation . . . to prevent ‘factually unsupported claims or defenses' from proceeding to trial.” Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.1987). When ruling on a motion for summary judgment, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [her] favor.” Anderson, 477 U.S. at 255.

         Cross-motions for summary judgment require that the Court consider “each motion separately on its own merits to determine whether either of the parties deserves judgment as a matter of law.” Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003). “The Court must deny both motions if it finds there is a genuine issue of material fact, ‘but if there is no genuine issue and one or the other party is entitled to prevail as a matter of law, the court will render judgment.'” Wallace v. Paulos, 2009 WL 3216622 at *4 (D. Md. Sept. 29, 2009) (citation omitted).

         III. DISCUSSION

         Under the FMLA, “an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period . . . [b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D). The rights afforded to employees under the FMLA include protection from retaliation for exercising these rights. See Dotson v. Pfizer, Inc., 558 F.3d 284, 294 (4th Cir. 2009). Although the FMLA does not contain an explicit prohibition against retaliation, the FMLA regulations state that the “prohibition against ‘interference' prohibits an employer from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise FMLA rights, ” 29 C.F.R. § 825.220(c), and the Fourth Circuit recognizes retaliation as a viable claim. See Yashenko v. Harrah's NC Casino Co., LLC, 446 F.3d 541, 546 & 551 (4th Cir. 2006). Here, Plaintiff alleges that Defendant retaliated against her by suspending and terminating her for taking FMLA leave. Both parties seek summary judgment on this claim.

         “FMLA claims arising under the retaliation theory are analogous to those derived under Title VII and so are analyzed under the burden-shifting framework of McDonnell Douglas Corp. v. Green,411 U.S. 792, 800-06 (1973).” Id. at 550-51. Thus, to succeed on her retaliation claim, Plaintiff must first make a prima facie case showing that “(1) she ‘engaged in protected activity;' (2) ‘an adverse employment action was taken against her;' and (3) ‘there was a causal link between the protected activity and the adverse employment action.'” Wright v. Southwest Airlines, 319 Fed. App'x. 232, 233 (4th Cir. 2009) (quoting Mackey v. Shalala,360 F.3d 463, 469 (4th Cir. 2004)). After an employee makes out a prima facie case, the burden shifts to the employer, which then must proffer evidence of a legitimate, non-discriminatory reason for the adverse employment action. See Matvia v. Bald Head Island Mgmt., Inc.,259 F.3d 261, 270-71 (4th Cir. 2001). If the employer does so, the burden shifts back to the employee “to prove by a preponderance of the evidence that the proffered reasons were pretextual.” See Dennis v. Columbia Colleton Med. Ctr., 290 F.3d 639, 646 (4th Cir. 2002). A ...