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Womack v. RCM Technologies (USA), Inc. and Schappert: US District Court : FMLA | EMPLOYMENT - genuine questions of fact regarding FMLA, constructive discharge claims

Debra Womack, Civil No. 07-2111 (DWF/AJB)
RCM Technologies (USA), Inc.,
A foreign corporation, and James
Schappert, President, Information
Technology, a division of RCM
Technologies (USA), Inc.,
Robert M. McClay, Esq., McClay & Alton, counsel for Plaintiff.
Gina K. Janeiro, Esq., David J. Duddleston, Esq., and Thomas E. Marshall, Esq., Jackson
Lewis LLP, counsel for Defendants.
This matter is before the Court upon the Motion for Summary Judgment brought
by RCM Technologies (USA), Inc. (RCM) and James Schappert (Schappert, and
together with RCM, Defendants). For the reasons set forth below, the Court grants in
part and denies in part Defendants motion.
RCM is a New Jersey company with an office in Eden Prairie, Minnesota.
According to RCM, it provides staffing and recruitment services for informational
technology, business solutions, and professional engineering projects. Schappert was
RCMs Senior Vice-President of the Information Technology Consulting Group from
May 2005 until June 2008.
Plaintiff Debra Womack (Womack) was hired as a Sales Director at RCM in
February 2005. In September 2005, Womack was diagnosed with cancer and she notified
RCM that she needed disability leave because of her condition and treatment. At that
time, Womack did not qualify for leave under the Family and Medical Leave Act
(FMLA) and so she took other disability leave in accordance with RCMs policy.
In late December 2005, Randy Mueller (Mueller), Womacks supervisor, sent an
e-mail to two people, including Schappert, indicating Muellers intent to reorganize
RCMs Minnesota office. In particular, Mueller stated that he intended to eliminate
Womacks position and reassign her as an Account Executive, a sales person position.
Mueller noted that the decision was based on the financial performance of the branch. At
the same time, however, Mueller stated that due to Womacks cancer diagnosis, she
would not have the energy to fight cancer and also meet the performance expectations
for the Sales Director position. (Doc. No. 138 2, Ex. 3b.) Mueller also stated his belief
that Womack was only productive 50% of the time and that this would continue for
some time as she would need the time to administer the cancer treatments along with
required recovery stages. (Id.)
In January 2006, Womacks position as Sales Director was eliminated, and she
was made an Account Executive. As an Account Executive, Womack was required to
service a particular business category or territory and create a client base to sell RCMs
services. This change in Womacks position did not alter her salary. RCM also told
Womack that the company greatly appreciate[d] [her] hard work and efforts over the
course of the past year. (Doc. No. 126 5, Ex. 3.)
In February 2006, Womack became eligible for FMLA leave. In March 2006,
Womack requested and received intermittent FMLA leave. According to RCMs records,
Womack requested full-time FMLA leave on April 24, 2006. On April 25, 2006, Mueller
requested that he be able to transition all of Womacks accounts to other RCM
employees. Mueller questioned Womacks performance, noting that she had not met her
minimum performance expectations while using intermittent FMLA/PTO. (Id. 11,
Ex. 9.)
Womack was out of the office on FMLA leave from April 24, 2006 until July 4,
2006. On June 30, 2006, Womack sent an e-mail regarding her plan to return to work, in
which she noted that she needed to return to work part-time. She proposed returning to
work 20 hours per week for six weeks and 30 hours per week for the following six
months. In response, RCM told Womack that it had no part-time positions and that
though it would be a financial burden for RCM, it would work with her to get her back
to work and productive. (Doc. No. 126 16, Ex. 14.) One of the requirements outlined
for Womack upon her return was a prohibition on her sharing details regarding her health
condition at work. Womack was also told she was required to communicate her
whereabouts, including expected hours of work, to her manager.
RCM also proposed compensation and sales quota plans based on Womacks
reduced hours. RCM proposed to pay Womack 50% of her salary and draw while she
worked half-time. RCM also proposed two options for when she began working 30 hours
per week, based upon a .2 million sales quota Womack had proposed during RCMs
2006 planning process. These options were for Womack to identify a level of
performance of up to 0,000 per month, or a pro rata calculation of her .2 million
sales quota, and RCM would pay her in accordance with that percentage. Alternatively,
she could accept a 75% sales quota and a 75% salary and draw.
RCM and Womack then engaged in negotiations regarding the accounts Womack
was to be assigned and the sales quota she would be required to attain. Mueller felt that
Womack should be required to identify a sales quota and explain her plan to meet that
goal. Womack, on the other hand, felt that she should be able to identify the accounts she
was to service and their expected revenue before committing to a quota.
Womacks accounts had been reassigned when she went on FMLA leave and upon
her return she proposed a list of accounts she wished to service. Her proposed list was
not approved. According to e-mails generated at that time, the accounts on Womacks
list were identified as Vendor Management System, or VMS accounts, and these accounts
had been assigned to RCMs recruiting team such that RCM no longer assigned those
accounts to Account Executives. In the record before the Court for this matter, however,
RCM contends that Womacks accounts were not reassigned to her for legitimate
business reasons to ensure continuous full-time service while Womack worked
part-time. (Doc. No. 128 41.) Womack contends that she was the only Account
Executive in the branch to whom VMS accounts were not assigned.
Womack and RCM negotiated back and forth regarding the compensation plan
and account list but were unable to reach a resolution. Womack sent an e-mail on
August 1, 2006, indicating that she would resign. Womack stated she felt RCMs goals
for her were unreasonable because her pre-existing revenue had been reassigned and
RCM expected her to build a cold territory from scratch without adequate
compensation. (Doc. No. 126 21, Ex. 19.) Womack also noted that there was an ongoing
climate of hostility toward her at RCM. (Id.)
Womack now asserts claims against the Defendants alleging violations of the
FMLA. Womack also asserts a claim against the Defendants for constructive discharge
under Minnesota law.
I. Standard of Review
Summary judgment is proper if there are no disputed issues of material fact and
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The
Court must view the evidence and the inferences that may be reasonably drawn from the
evidence in the light most favorable to the nonmoving party. Enter. Bank v. Magna Bank
of Mo., 92 F.3d 743, 747 (8th Cir. 1996). However, as the Supreme Court has stated,
[s]ummary judgment procedure is properly regarded not as a disfavored procedural
shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed
to secure the just, speedy and inexpensive determination of every action. Celotex
Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1).
The moving party bears the burden of showing that there is no genuine issue of
material fact and that it is entitled to judgment as a matter of law. Enter. Bank, 92 F.3d
at 747. The nonmoving party must demonstrate the existence of specific facts in the
record that create a genuine issue for trial. Krenik v. County of Le Sueur, 47 F.3d 953,
957 (8th Cir. 1995). A party opposing a properly supported motion for summary
judgment may not rest upon mere allegations or denials but must set forth specific facts
showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 256 (1986).
In enacting the FMLA, Congress was concerned about inadequate job security for
employees who have serious health conditions that prevent them from working for
temporary periods and sought to promote stability and economic security. 29 U.S.C.
2601(a)(4) & (b)(1). Therefore, the FMLA entitles eligible employees to take leave
from work when they must be absent from work for medical reasons. 29 U.S.C.
2612(a)(1). The FMLA allows such an employee to take up to twelve weeks of leave
during any twelve-month period for certain family or medical reasons including 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). Generally, violations of the
FMLA fall into two types of claims: (1) interference claims in which an employee
alleges that an employer denied or interfered with her substantive rights under the FMLA
and (2) retaliation claims in which the employee alleges that the employer
discriminated against her for exercising her rights under the FMLA. Stallings v.
Hussmann Corp., 447 F.3d 1041, 1050 (8th Cir. 2006); 29 U.S.C. 2615(a)(1) & (2).
A. Interference Claim
Womack asserts an interference claim under the FMLA because she contends that
she was not placed in the same or an equivalent position when she returned to work from
her FMLA leave. Defendants counter that Womack cannot assert an interference claim
because, upon her return, she was unable to work full-time, which Defendants contend
was an essential function of her job as an Account Executive.
The FMLA provides that, upon return from FMLA leave, an employee must be
restored to the position of employment she held when the leave began or to an equivalent
position with equivalent benefits, pay, and other terms and conditions of employment.
29 U.S.C. 2614(a). FMLA regulations state that [i]f the employee is unable to
perform an essential function of the position because of a physical or mental condition,
including the continuation of a serious health condition, the employee has no right to
restoration to another position under the FMLA, though the employers obligations may
be governed by the Americans with Disabilities Act (ADA). 29 C.F.R. 825.214(b).
Unlike the ADA, the FMLA does not include a reasonable accommodation provision.
29 C.F.R. 825.702(a) (stating that the leave provisions of the [FMLA] are wholly
distinct from the reasonable accommodation obligations of employers covered under the
[ADA]). The FMLA requires an examination of whether the employee can perform the
essential functions of a position within her current environment. Duty v. Norton-Alcoa
Proppants, 293 F.3d 481, 495 (8th Cir. 2002). If the employee cannot perform the
essential functions of the job at the time the employees FMLA leave has expired, the
employee cannot maintain a job restoration claim under the FMLA. Hatchett v.
Philander Smith College, 251 F.3d 670, 677 (8th Cir. 2001).
Womack asserts that Defendants failed to return to her certain accounts she
serviced before her FMLA leave began. Womack contends that instead of returning these
accounts, on which she had based her revenue generation requirements before her leave,
Defendants directed her to choose new accounts from a list of clients no other Account
Executive serviced and for which there was little or no sales activity. According to
Womack, it would have been impossible for her to meet her sales targets servicing these
accounts. Womack argues that, instead of earning her former compensation, she might
have ended up owing RCM money had she been assigned these accounts. Womack also
contends that being directed to service these accounts, rather than her former clients, was
a directive that she go dumpster diving. (Doc. No. 126 3, Ex. 1 at 307.)
An employee returning from leave is entitled to a position that is virtually
identical to the employees former position in terms of pay, benefits, and working
conditions, including privileges, perquisites and status. 29 C.F.R. 825.215(a) (emphasis
added). The job to which the employee returns must involve the same or substantially
similar duties and responsibilities, which must entail substantially equivalent skill, effort,
responsibility, and authority. Id. Therefore, it is possible to state a claim of interference
under the FMLA where an employees job responsibilities are altered upon return from
leave in ways other than the most tangible, such as job title, salary and benefits. See, e.g.,
Connor v. Sun Trust Bank, 546 F. Supp. 2d 1360 (N.D. Ga. 2008) (employee raised an
issue of fact as to whether she was returned to the same or an equivalent position when
her supervisory responsibilities had been transferred away and her number of direct
reports reduced); Cooper v. Olin Corp., 246 F.3d 1083, 1091-92 (8th Cir. 2001) (holding
that, where the plaintiff retained title, salary, and benefits of locomotive engineer but was
assigned office work, the restoration of salary, title, and benefits does not necessarily
constitute restoration to the same position . . . when the job duties and essential functions
of the newly assigned position are materially different from those of the employees
pre-leave position).
In Johnson v. Campbell Mithun, a court in this district held that an issue of
material fact existed regarding whether an employee was restored to the same or an
equivalent position when she was removed from advertising accounts on which she
worked before her leave. 401 F. Supp. 2d 964 (D. Minn. 2005). In Johnson, the plaintiff
asserted that she had substantially less work to do upon her return from leave, that the
work that she was given was very low-level, and that higher-level work was available but
not given to her. Id. at 972. Similarly, RCMs removal of Womacks accounts and
direction to generate work from accounts where there was little or no sales activity could
constitute interference with Womacks right of restoration.
In order for Womack to state such a claim, however, she must show she was
entitled to be restored to the same or an equivalent position, and to do that she must show
she was able to perform the essential functions of that job. Defendants contend Womack
fails to make this showing because it is undisputed that Womack was unable to work
full-time when she returned to work. Instead, Womack requested an accommodation
under the ADA to work half-time for six weeks upon her return and to work 30 hours per
week for several months after that. Defendants contend that the Account Executive
position required full-time work and that a full-time schedule was an essential function of
the job.
For some jobs, working full-time or filling a particular schedule is an essential
function of the position. See, e.g., Baker v. Hunter Douglas Inc., 270 Fed. Appx. 159 (3d
Cir. 2008); Voskuil v. Environmental Health Ctr. Dallas, No. 3:96-CV-0683-D, 1997
WL 527309 (N.D. Tex. Aug. 18, 1997). For instance, in Tardie v. Rehabilitation
Hospital of Rhode Island, the court decided that the plaintiff had no right to job
restoration under the FMLA when she was no longer able to work 50 to 70 hours per
week at the time she returned to work from FMLA leave. 6 F. Supp. 2d 125 (D.R.I.
1998). The court determined that working such hours was an essential function of the
plaintiffs job as a human resources director because the position required that the
plaintiff be available twenty-four hours per day and seven days a week, she was
frequently required to be present at the facility during some portion of all three shifts and,
prior to going on leave, the plaintiff often returned to the facility after going home in the
evening to handle issues after business hours. Id. at 128, 132.
Even so, the Court does not conclude that full-time work is, as a matter of law, an
essential function of all positions. Determining the essential functions of a particular job
necessarily requires some degree of case-by-case analysis since the functions of different
jobs vary from one another, and the FMLA and applicable regulations do not make a
return to full-time work a prerequisite for relief. The Eighth Circuit has considered
several cases in which employees sought to return to work less than full-time after an
FMLA leave, and in each case the Eighth Circuit concluded that the plaintiffs failed to
establish they could perform the essential functions of their jobs while working part-time.
Hatchett, 251 F.3d at 676; Reynolds v. Phillips & Temro Indus., Inc., 195 F.3d 411 (8th
Cir. 1999). In those cases, however, the plaintiffs were unable to perform essential
functions necessary to their jobs apart from the number of hours they worked. Hatchett,
251 F.3d at 674, 676 (noting that employees job required holding monthly meetings,
attending seminars, and meeting with students, but at the end of her FMLA leave the
employee could only work on one-on-one projects, became confused and emotionally
upset when she was faced with conflict, and was recommended not to confer with
students or attend staff or other large meetings); Reynolds, 195 F.3d at 414 (stating that
employee could not perform essential functions when he was unable to lift up to
100 pounds, lift substantial weight above his head, climb, and remain on his feet all day,
and his position regularly required these activities).
The record contains some evidence that full-time work was required, or at least
contemplated, for Womacks position. For instance, when Womack returned to work she
acknowledged that RCM had no permanent part-time positions, and she requested a
salary calculation based on a 50-hour work week. (Doc. No. 126 18, Ex. 16; 14,
Ex. 12.) The record also contains evidence, however, suggesting that essential functions
of the Account Executive position were not measured by the number of hours worked per
week. For instance, the record reflects that RCM expected all Account Executives to
make three starts per month. (Doc. No. 138 2, Ex. 3m.) Further, in response to an
e-mail in which Womack noted her office hours for that day, Mueller responded in an
e-mail stating:
As you know, sales professionals do not normally work shifts or split
shifts as you mention. Sales professionals sell whenever and whereever
[sic] possible totally dictated by the client and the clients calendar and
availability to meet with the sales professional (before business hours,
during business hours, after business hours). A sales professional does not
work normal office hours like a [sic] office worker or a manufacturing
worker, etc. Ultimately, sales professionals [sic] metrics will dictate
success (or lack of success). Did the sales professional sell the companys
services/products or didnt they? It is very clear how sales professionals
are measured. RCM is no different in measuring the success of sales
professionals RCMs sales metric, as you know, is 3 starts a month and 5
new requirements a week (qualified). These are the metrics all sales
professionals at RCM are held accountable to.
(Id. 2, Ex. 5g.) Muellers e-mail to Womack went on to state that Womack was being
held accountable for sales/quota and noted: In reality, you shouldnt been [sic] in the
office anyway if you are out selling and meeting with your clients. (Id.)
Womack also contends that, had she been reassigned her pre-FMLA leave
accounts, she could have adequately serviced these accounts while working less than
full-time. According to Womack, she had long-standing relationships with clients, built
over years as a salesperson at different firms, and that the client contacts at these firms
were invested in her success. Further, there is no evidence in the record suggesting that,
upon her return from FMLA leave, Womack was unable to perform the essential
functions of a sales person position apart from the number of hours she was to work. For
instance, there is no evidence that she was unable to arrange and hold client meetings, or
use the telephone or computer to communicate with clients.
Therefore, the record contains conflicting evidence regarding whether a full-time
schedule was an essential function of Womacks sales person job as an Account
Executive. At this stage of the case, the Court must weigh the evidence and draw
reasonable inferences in the light most favorable to Womack. Enter. Bank, 92 F.3d at
747. The court concludes that there are material issues of disputed fact regarding
whether Womack could perform essential functions of job within her reduced schedule
and whether RCM interfered with her right to reinstatement by refusing to reassign
Womacks pre-FMLA accounts back to her.
B. Retaliation Claim
The FMLA prohibits employers from discriminating against an employee for
asserting her rights under the FMLA. Darby v. Bratch, 287 F.3d 673, 679 (8th Cir.
2002); 29 U.S.C. 2615(a)(2)). This prohibition necessarily includes consideration of
an employees use of FMLA leave as a negative factor in an employment action.
Darby, 287 F.3d at 679. Basing an adverse employment action on an employees use of
leave is, therefore, actionable. Smith v. Allen Health Sys., Inc., 302 F.3d 827, 832 (8th
Cir. 2002).
Where there is no direct evidence of retaliation, FMLA retaliation claims are
analyzed under the McDonnell Douglas burden-shifting framework. Phillips v. Mathews,
547 F.3d 905, 912 (8th Cir. 2008); McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-06 (1973). Womack must first establish a prima facie case, which requires her to
show that she exercised rights afforded by the Act, that she suffered an adverse
employment action, and that there was a causal connection between her exercise of rights
and the adverse employment action. Smith, 302 F.3d at 832. If Womack does so, the
burden shifts to the Defendants to come forward with evidence of a legitimate,
nondiscriminatory reason for the adverse action. Id. at 833. Their burden is not onerous
and the showing need not be made by a preponderance of the evidence. Wallace v.
Sparks Health Sys., 415 F.3d 853, 860 (8th Cir. 2005). If Defendants do so, Womack
must come forward with evidence that creates an issue of fact as to whether the asserted
reason was pretext for discrimination. Smith, 302 F.3d at 833.
The parties do not dispute that Womack exercised rights afforded by the FMLA.
Defendants contend, however, that Womack has not shown she suffered an adverse
employment action. Defendants assert that RCM could reassign accounts at any time and
that Womack was aware of this fact. Defendants also note that the FMLA does not
entitle employees to any greater right to benefits or conditions of employment than if the
employee had been continuously employed. 29 C.F.R. 825.216(a). Therefore,
according to Defendants, because Womack had no right to service particular accounts,
RCMs refusal to reassign her pre-FMLA leave accounts to her could not constitute
The Court disagrees. Though RCM had discretion to assign accounts to its staff as
it saw fit, the FMLA prohibits an employer from using such discretion in a retaliatory
manner. Further, Womack contends she sought to service the accounts on which she
worked prior to her FMLA leave, not better or more lucrative accounts. Viewing the
facts in the light most favorable to Womack, she returned from FMLA leave to find her
pre-leave accounts reassigned, and her employer refused to reassign the accounts to her.
Instead, she was told to choose new accounts from which to build a portfolio, but her
only option was to choose from accounts that had little or no economic activity. Womack
feared she would not be able to generate sufficient income from those accounts and might
even end up owing RCM money. At the same time, Mueller reminded her that she was
being held accountable for meeting the sales metric according to which RCM measured
all Account Executives. (Doc. No. 138 2, Ex. 5g.)
Further, there is evidence in the record that the refusal to reassign the accounts
was related to Womacks illness and subsequent FMLA leave. Womacks initial
assignment to the Account Executive position may have been in part due to financial
issues for RCMs Minnesota branch, but it also was proposed in connection with
Muellers concern that Womack would have insufficient energy for the job due to her
cancer and treatment. (Id. 2, Ex. 3b.) Mueller characterized Womack as unproductive,
but Womack asserts that she had never received negative feedback on her performance
prior to her FMLA leave. Mueller also noted that if Womack intended to leverage
FMLA, he wanted to start the process of looking for a replacement for her. (Id. 2,
Ex. 3e.) There is also an e-mail message Mueller sent to Schappert regarding Womack
stating: I just wish she would go away . . . .1 (Id. 2, Ex. 3n.) Therefore, the Court
concludes that Womack has established a prima facie case of FMLA retaliation.
1 The Court is aware that e-mail is a difficult medium from an evidentiary
perspective because e-mails do not always convey the full intended meaning of the writer
and often the question of what an e-mail says and means becomes a question of witness
credibility. At this stage of the case, however, the Court must view the facts and draw
reasonable inferences in the light most favorable to Womack and may not make
(Footnote Continued on Next Page)
The burden next shifts to Defendants to show a legitimate, nonretaliatory reason
for the decision not to return Womacks accounts. The record reflects, however,
inconsistencies between RCMs statements about its refusal to reassign the accounts at
the time Womack returned and its current position regarding why this occurred.2 At the
time Womack returned from leave, Mueller indicated that Womacks accounts were
VMS accounts and that these accounts were no longer being assigned to Account
Executives. Now, however, Defendants contend that Womacks accounts were not
reassigned to her to ensure continuous full-time service while Womack worked
part-time. (Doc. No. 128 41.) Defendants do not state what they intended to do with
these accounts when Womack returned to full-time status. Given that Defendants have
offered inconsistent explanations, and viewing the facts in the light most favorable to
Womack, she has established facts sufficient to survive summary judgment that the
refusal to reassign her pre-FMLA accounts was related to her FMLA leave.
Womack also contends she suffered an adverse employment action because her
working circumstances when she returned from FMLA leave were intolerable and,
therefore, that she was constructively discharged in retaliation for her exercise of her
FMLA rights. Womack argues that her supervisors were hostile to her and treated her
(Footnote Continued From Previous Page)
credibility judgments. Should this matter proceed to trial, the parties may make a full
exposition regarding the evidentiary record.
2 There are other inconsistencies between the Defendants statements now and at the
time events occurred. For instance, Defendants argue that Womack had few contacts
through which to sell RCM services, though in an e-mail in July 2006, Mueller notes that
Womack ha[d] so many relationships in the Twin Cities. (Doc. No. 138 2, Ex. 5b.)
poorly when she returned. She notes she was prohibited from discussing her health with
her co-workers, she was made to check in about her whereabouts during the day but was
chided when she did so, and she was ignored when she attempted to make contributions
during staff meetings. Defendants argue that these circumstances are insufficient to
support Womacks claim of constructive discharge.
In order to establish a claim of constructive discharge, an employee must show
that the employer created intolerable working conditions with the intention of forcing the
employee to resign or that the employer could reasonably foresee that its actions would
result in the employees resignation. Pribil v. Archdiocese of St. Paul & Minneapolis,
533 N.W.2d 410, 412-13 (Minn. Ct. App. 1995). The employers intent can be proven
with direct or circumstantial evidence, or it can be inferred upon a showing that the
employees resignation was a reasonably foreseeable result of the employers conduct.
Id. at 413. Whether the conditions were in fact intolerable for the employee are judged
by a reasonable-person standard. Diez v. Minn. Mining & Mfg., 564 N.W.2d 575, 579
(Minn. Ct. App. 1997).
If Womacks only evidence in support of her constructive discharge argument was
that she was treated poorly upon her return, the Court would agree with Defendants.
Being ignored in meetings, prohibited from discussing her health condition, and
micromanaged, are actions which would be considered in turn unprofessional, somewhat
strange, and unpleasant; they are, however, insufficient to amount to constructive
discharge. Haley v. Alliance Compressor LLC, 391 F.3d 644, 652 (5th Cir. 2004)
(concluding that employee showed she was ostracized and micromanaged, but that
employers actions did not rise to the level of badgering or harassment required for a
constructive discharge claim). Womack, however, also alleges that RCM interfered with
her ability to meet her quotas by refusing to reassign her pre-FMLA leave accounts, that
it would have been difficult to earn her commission, and that she could possibly have
owed RCM money. The Court concludes that a reasonable person would find this
circumstance intolerable.3 Though not leading directly to a finding of constructive
discharge, the other hostile actions Womack alleges are persuasive evidence of RCMs
intent and the connection between its actions and her FMLA leave.
Defendants also argue that Womacks constructive discharge argument must fail
because she did not give RCM a reasonable opportunity to correct the problem. To
successfully claim constructive discharge, an employee must give her employer a
reasonable opportunity to work out the problems prior to resigning. Hanenburg v.
Principal Mut. Life Ins. Co., 118 F.3d 570, 575 (8th Cir. 1997). Defendants contend that
Womack did not attempt to work out the problems she experienced at RCM prior to
giving her notice. The record, however, contains evidence that Womack and RCM
negotiated back and forth several times regarding the proposed account list, that Womack
made clear that she was concerned about the assignment of accounts, and that she felt that
RCM was making it difficult for her to create a financially plausible portfolio of
3 Defendants submit the same arguments in response to both Womacks state law
constructive discharge claim and her claim that she was constructively discharged as an
adverse employment action under the FMLA. The Court addresses these arguments in
the context of its FMLA analysis and, finding that Womack has sufficiently shown
constructive discharge, does not address these arguments again independent of the FMLA
accounts. Ultimately, for almost a month after Womack returned, the parties were unable
to reach an agreement regarding the most basic aspects of Womacks employment her
clients, her sales quota, and her compensation. The Court concludes that Womack
provided the Defendants with sufficient notice that there was a problem that needed
III. Claims Against Schappert
In addition to asserting claims against RCM, Womack has also brought claims
against Schappert individually. Defendants argue that Womacks claims against
Schappert should be dismissed because he cannot be considered an employer under the
Under the FMLA, the term employer includes any person who acts, directly or
indirectly, in the interest of an employer to any of the employees of such employer . . . .
29 U.S.C. 2611(4)(A)(ii)(I); see also 29 C.F.R. 825.104(a) (Employers covered by
[the] FMLA also include any person acting, directly or indirectly, in the interest of a
covered employer to any of the employees of the employer). In Darby, the Eighth
Circuit held the plain language of the FMLA permits suit against persons other than the
employing entity and subjects such individuals to personal liability. 287 F.3d at 681.
The FMLA regulations also note that:
The definition of employer in section 3(d) of the Fair Labor Standards
Act (FLSA), 29 U.S.C. 203(d), similarly includes any person acting directly
or indirectly in the interest of an employer in relation to an employee. As
under the FLSA, individuals such as corporate officers acting in the
interest of an employer are individually liable for any violations of the
requirements of FMLA.
29 C.F.R. 825.104(d). Both the FLSA and the FMLA define the term employer in
broad terms. In considering the definition of employer under the FLSA, courts examine
whether the alleged employer possessed the power to control the workers in question,
with an eye to the economic reality presented by the facts of each case. Goldberg v.
Whitaker House Coop., Inc., 366 U.S. 28, 33 (1961). The economic realities test takes
into account the real economic relationship between the employer who uses and benefits
from services of workers and the party that hires or assigns the workers to that
employer. Ansoumana v. Gristede's Operating Corp., 255 F. Supp. 2d 184 (S.D.N.Y.
2003). No single economic factor is dispositive. Dole v. Elliott Travel & Tours, Inc.,
942 F.2d 962, 965 (6th Cir. 1991). Instead, the economic reality test encompasses the
totality of the circumstances and any relevant evidence may be examined so as to avoid
having the test confined to a narrow legalistic definition. Rutherford Food Corp. v.
McComb, 331 U.S. 722, 730 (1947) (whether an employer-employee relationship exists
does not depend on isolated factors but rather upon the circumstances of the whole
activity). A number of courts have applied the economic reality test used in connection
with the FLSA in FMLA cases. See Brunelle v. Cytec Plastics, Inc., 225 F. Supp. 2d 67
(D. Me. 2002) (front-line supervisor who was personally responsible for decisions that
contributed to denial of FMLA leave was not prominent enough player in employers
operations to be considered an employer under the FMLA); Kilvitis v. County of Luzerne,
52 F. Supp. 2d 403 (M.D. Pa. 1999) (holding plaintiff stated an FMLA claim by
producing facts that judge had control over her employment when he personally wrote
the termination letter); Fegley v. Higgins, 19 F.3d 1126 (6th Cir. 1994) (an officer with
operational control of a corporations covered enterprise is an employer under the FLSA
and, by extension, an officer of a corporation also may be held jointly and severally liable
with a corporation for violations of the FMLA).
Here, though Schappert was involved in actions that a jury could find interfered
with Womacks FMLA rights or constituted retaliation for her exercise of those rights,
Womack has not shown that Schappert was in charge of the operations of RCM to the
degree necessary to subject him to personal liability. Schappert did not have the power to
hire and fire RCM workers. Further, the record reflects that much of Schapperts
negotiation and interaction with Womack was directed by, or conducted in consultation
with, RCMs human resources staff members. The Court concludes, therefore, that
Womacks claims against Schappert should be dismissed.
The Court concludes that disputed issues of material fact exist with respect to
Womacks claims under the FMLA and for constructive discharge, precluding summary
judgment. The Court, therefore, denies Defendants motion as to these claims. The
Court concludes, however, that Schappert cannot be considered an employer under the
FMLA. Therefore, the Court grants the Defendants motion as to Womacks claims
against Schappert and dismisses such claims.
Accordingly, IT IS HEREBY ORDERED that:
1. The Defendants Motion for Summary Judgment (Doc. No. 40) is
a. Defendants motion is DENIED as to Plaintiffs claims
against Defendant RCM Technologies (USA), Inc.;
b. Defendants motion is GRANTED with respect to Plaintiffs
claims against James Schappert and such claims are DISMISSED WITH
Dated: December 23, 2008 s/Donovan W. Frank
Judge of United States District Court


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