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FMLA suit can proceed despite ‘equivalent’ offer

An employer that removed a plaintiff from his managerial position on his return from a one-week medical leave could be sued under the Family Medical Leave Act, a U.S. magistrate judge has ruled.

The employer argued that the plaintiff was offered an equivalent position upon returning to work and thus he was not denied any substantive FMLA rights.

But Judge Lincoln D. Almond in Rhode Island found the employer not entitled to summary judgment.

“Defendants have simply not established the absence of any genuine issues of fact as to whether a store manager position is the equivalent for FMLA job restoration purposes to a floating assistant manager position,” Almond stated.

The magistrate judge also found a triable issue regarding the employer’s contention that the decision to remove the plaintiff was made prior to his medical leave.

“Plaintiff has identified sufficient circumstantial evidence which, when viewed in Plaintiff’s favor and considering the lack of definitive contemporaneous documentation, would allow a reasonable factfinder to question the credibility of Defendants’ witnesses regarding the timing of the removal decision,” Almond said.

The 15-page decision is Barlow v. Dan’s Payroll Service, Inc., et al.

Warwick attorney Robert E. Savage represented the plaintiff. James A. Ruggieri and John David Freel, both of Providence, defended the employer.

Job history

The plaintiff was originally hired by defendant Dan’s Management Co. in January 1999 as a “floating” assistant manager. He was later assigned as manager of a location on Route 2 in Warwick.

Eventually, in August 2008, the plaintiff was assigned to the manager post at Boulevard Donuts in Warwick.

On Jan. 19, 2009, the plaintiff went to his doctor and was told that he should stay home for one week to recuperate from pneumonia. The plaintiff received paid time off for the following week.

On Jan. 27, 2009, the plaintiff returned from his time off to meet with COO Michael LaPolla and Director of Human Resources John Zalis. At the meeting, the plaintiff was told that, due to his poor job performance as manager of Boulevard Donuts, he was being removed as manager and that would instead be assigned as a floating assistant manager.

Trial-worthy issues

“The major factual disagreement between the parties centers on the timing, reasoning and process behind Defendants’ decision to remove Plaintiff as the Manager of the Boulevard Donuts,” Almond observed.

The employer said the plaintiff was offered an equivalent position, arguing “(1) there is no evidence that Plaintiff would have been paid any less than he was already being paid; and (2) the position and job duties of a store manager are the same as those of a floating assistant manager.”

Noting that the test for equivalence is strict, Almond found the employer’s argument unconvincing.

“Regarding the issue of compensation, Defendants contend that Plaintiff previously received a salary of $1,000.00 per week as a Floating Manager, the same amount he was paid as the Manager of the Boulevard store, and that ‘there is no reason to believe that [Plaintiff] would not have continued to earn $1,000 as a floating assistant manager until a store manager position in an appropriate store opened for [Plaintiff],’” Almond said.

But he went on to find that argument “speculative and not supported by any evidence. Furthermore, it is contradicted by a statement authored by Mr. Zalis (Director of Human Resources) regarding the January 27, 2009 meeting with Plaintiff in which he indicates that Mr. LaPolla was going to speak to the CEO James Lynch about Plaintiff’s salary ‘because he is at a very high rate for a floater’ and that Plaintiff was told that ‘his pay rate may be adjusted.’”

Under the circumstances, the plaintiff “reasonably” asserted that it was apparent to him that his salary would likely be reduced, Almond said.

The magistrate judge further found that the plaintiff convincingly maintained the duties of the floating assistant manager position were not equivalent to those of the store manager job.

“For example, Plaintiff argues that as a substitute he would not have control over the day-to-day activities of the store,” Almond said. “Additionally, it is reasonable to infer that a floating assistant manager would travel farther and more frequently to fill in than a store manager who is permanently assigned to a particular store and also that a floater may have less job security.”

Almond also addressed the employer’s contention that the evidence established that it was “factually undisputable” that the decision to remove the plaintiff from his post as manager was made on Jan. 16, 2009, prior to his FMLA leave.

“[T]here is no contemporaneous documentation presented by Defendants to support that the removal decision was actually made on January 16, 2009, and [John] Cocoris testified that ‘no one told [Plaintiff] that his job was in jeopardy prior to January 19, 2009,’” said Almond, who also found the credibility of the witness to be at issue.

“While Defendants may ultimately prevail at trial, it is not permissible for this Court to make such credibility determinations in this context,” he concluded.

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