United States District Court, D. Maryland, Southern Division
J. HAZEL UNITED STATES DISTRICT JUDGE
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.
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.
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 ¶
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.
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. ¶
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.
STANDARD OF REVIEW
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.
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
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
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 ...