Jarry v. ECC Corp.

581 F.Supp.3d 376

Kristen JARRY, Plaintiff,

v.ECC CORPORATION, and John Cartier, Defendants.

C.A. No. 21-047 WES

United States District Court, D. Rhode Island.

Signed January 24, 2022

Vicki J. Bejma, Robinson & Clapham, Providence, RI, for Plaintiff.

Daniel Calabro, Jr., Daniel Calabro Jr., Attorney at Law, Providence, RI, for Defendants.

MEMORANDUM AND ORDER

William E. Smith, District Judge Before the Court is a Motion to Dismiss, ECF No. 9, filed by ECC Corporation and its chief executive officer, Mr. John Cartier (collectively "Defendants"). For the reasons explained below, Defendants’ Motion is DENIED in part and GRANTED in part.

I. BACKGROUND

In January 2020, just prior to the advent of the COVID-19 pandemic, Ms. Kristen Jarry was hired by Defendants as an office manager. See Am. Compl. ¶ 3, ECF No. 8. From the start of the pandemic in the spring of 2020 through early summer 2020, she worked remotely from home, as did all ECC employees. See id. ¶ 6. As the summer unfolded, employees of ECC Corporation began returning to the office, at which point Ms. Jarry requested to continue working from home due to her child's summer school schedule. Id. ¶ 7. Her request was denied.¹ Id. ¶ 8. Ms. Jarry alleges once she became aware her son's school would be partially remote (hybrid) for the 2020-2021 school year, she again requested to work from home for the three days each week that her son would be attending school remotely. Id. ¶¶ 9, 12-13. Again, her request was denied and instead, Defendants offered to allow her to work from home on Fridays, which were already half-day workdays. Id. ¶ 15. Nonetheless, Ms. Jarry continued to work in-person through the summer. See Defs.’ Mot. Dismiss 9, ECF No. 9.

In early September 2020, days after Ms. Jarry's last request was denied, Mr. Cartier terminated her employment, citing a work product error that occurred in June of 2020. See Am. Compl. ¶¶ 12, 21. Ms. Jarry contends that this work was reviewed and accepted by Mr. Cartier at that time and that the fault he finds with it now amounts to a purely pretextual reason for her termination. See Am. Compl. ¶¶ 21-22. Defendants maintain Ms. Jarry's termination was for cause based on the work product error, and that her firing had nothing to do with her requests to work remotely. See Mot. Dismiss 6-9.

Shortly after her termination, Ms. Jarry filed a three-count Complaint against Defendants, alleging violations of the Families First Coronavirus Response Act ("FFCRA"), the Rhode Island Healthy and Safe Families and Workplaces Act, and tortious interference with economic advantage. See Am. Compl. ¶¶ 25-53. Ms. Jarry's FFCRA claim specifically alleges Defendants violated both the interference and retaliation protections afforded to employees under the Family Medical Leave Act ("FMLA"), which the FFCRA extended to employees needing leave for reasons specific to the COVID-19 pandemic. Id. ¶ 36.

II. LEGAL STANDARD

In reviewing a motion to dismiss filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, courts accept as true the factual allegations of the complaint and draw all reasonable inferences in favor of the plaintiff. See Cook v. Gates, 528 F.3d 42, 48 (1st Cir. 2008) ; McCloskey v. Mueller, 446 F.3d 262, 266 (1st Cir. 2006). The Court must determine whether the well-pled facts, taken as true, are sufficient to support "the reasonable inference that the defendant is liable for the misconduct alleged." Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). In making this assessment, the Court should ignore legal conclusions that do not rest on pleaded facts. Menard v. CSX Transp., Inc., 698 F.3d 40, 44-45 & n.5 (1st Cir. 2012). "This is so not only of legal boilerplate (e.g., ‘conspiracy,’ ‘willfully’) but also of assertions nominally cast in factual terms but so general and conclusory as to amount merely to an assertion that unspecified facts exist to conform to the legal blueprint." Id. at 45.

III. DISCUSSION

A. FFCRA's Enforcement Under FMLA

In addition to other provisions not relevant here, the FFCRA amends the FMLA to provide protected leave for employees with a "qualifying need related to a public health emergency." See H.R. 6201, 116th Cong. §§ 3101-06 (2020). This new provision, the Emergency Family Medical Leave Emergency Act ("EFMLEA"), became effective on April 1, 2020, and expired on December 31, 2020. Due to this narrow timeframe, "there is scant caselaw interpreting the possible issues arising from the statute or the regulations." Colombe v. SGN, Inc., No. 5:20-CV-374-REW, 2021 WL 1198304, at *2 (E.D. Ky. Mar. 28, 2021) (citing Valdivia v. Paducah Ctr. for Health & Rehab., LLC, 507 F.Supp.3d 805, 810-11 (W.D. Ky. 2020) (noting the dearth of case law)). The Department of Labor, however, issued regulations clarifying that the anti-retaliation and anti-interference provisions of the FMLA, 29 U.S.C. § 2615, apply fully to rights created by the EFMLEA. See 29 C.F.R. § 826.151(a) (2020) ; Figueroa Collazo v. Ferrovial Construcción PR, LLC, CIVIL NO. 20-1612 (DRD), 2021 WL 4482268, *5 (D.P.R. Sept. 30, 2021) (appeal pending) ("The acts that are prohibited as to FMLA, are equally prohibited as to EFMLEA, such as, interference with the exercise of rights, discrimination, and interference of proceedings."). For this reason, the Court looks not only to the plain text of the statute and relevant regulations, but also to FMLA cases more broadly to construe the EFMLEA.

The EFMLEA defines "public health emergency leave" as the need to care for an employee's son or daughter under eighteen years of age if, due to a public health emergency, the child's school or place of care has been closed or childcare provider is unavailable. See 29 U.S.C. § 2620(a)(2)(A). The Department of Labor has clarified that employees may be eligible for EFMLEA leave if a child's school is either: (1) closed for in-person learning but operating on a full-time remote schedule, provided the employee needs to care for the child and there is no other suitable person available to do so; or (2) opening on a hybrid schedule where the child attends school in-person some days and remotely other days. See Families First Coronavirus Response Act: Questions and Answers, U.S. Dep't of Lab. (updated August 27, 2020), https://www.dol.gov/agencies/whd/pandemic/ffcra-questions. The employee qualifies for leave on the remote learning days, provided the employee needs to care for the child and there is no other suitable person available to do so. Id.

The EFMLEA also imposes an affirmative duty on employers to conspicuously post a notice on their premises explaining these specific leave rights. See FFCRA, Pub. L. No. 116-127, § 5103, 134 Stat. 178, 196 (2020); see also 29 C.F.R. § 826.80 (2020). Employers can satisfy the posting requirement by either distributing the notice online, posting the notice on the employer's website, or mailing or emailing the notice to employees. 29 C.F.R. § 826.80(a).

B. Count I: Ms. Jarry's EFMLEA Claim

Ms. Jarry argues that by denying her multiple requests to work remotely and terminating her because of her requests, Defendants interfered with her right to EFMLEA leave and retaliated against her for attempting to exercise that right. See Am. Compl. 2-3. To succeed on an interference claim, a plaintiff must show: (1) she is an eligible employee; (2) her employer is covered by the FMLA and EFMLEA; (3) her situation entitled her to leave; (4) she gave adequate notice to her employer; and (5) the employer nonetheless denied her leave. See Washington v. Honeywell Int'l, Inc., 323 F. Supp. 3d 309, 315-316 (D.R.I. 2018). For an EFMLEA retaliation claim, a plaintiff must show that: (1) she availed herself of a protected right; (2) the employer took an adverse action; and (3) there is a causal relationship between the employee's protected activity and the adverse action. See Gomes v. Steere House, 504 F. Supp. 3d 15, 18 (D.R.I. 2020) (citing Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 161 (1st Cir. 1998) ).

For her interference claim, it is undisputed that Plaintiff is an eligible employee, that her employer is covered by the FMLA and EFMLEA, and that her situation qualified for leave under the EFMLEA. See Mot. Dismiss 3, n.1. So, at this stage, the viability of that claim hinges on whether Ms. Jarry's requests to intermittently work from home may be reasonably construed as giving adequate notice to her employer that she was invoking her protected right to leave. For her retaliation claim, it is likewise undisputed that a firing constitutes an adverse employment action. Her retaliation claim therefore turns on the same question: whether she adequately availed herself of a protected right to leave by asking to work remotely.

The critical determination is whether the information communicated to the Defendants was sufficient to reasonably determine Ms. Jarry was requesting time off. See Family and Medical Leave Act of 1993, § 105(a)(1), 29 U.S.C. § 2615(a)(1) ; 29 C.F.R. § 825.303(a) - (b) (2021). An "employee need not expressly assert rights under the FMLA or even mention the FMLA" to invoke their right to FMLA leave. 29 C.F.R. § 825.303(b); see also Harrigan v. Dana Corp., 612 F. Supp. 2d 929, 941 (N.D. Ohio 2009). What is reasonable depends upon the facts and circumstances of each case. See 29 U.S.C. § 2612(a)(1)(D) ; 29 C.F.R. § 825.303(b) ; see also Treadaway v. Big Red Powersports, LLC, 611 F. Supp. 2d 768, 779 (E.D. Tenn. 2009).

In the context of the COVID-19 Pandemic, at least one court has concluded that an employee's request to work from home does not count as a request for leave, because working remotely and taking protected time off are substantially different requests. See Figueroa Collazo, 2021 WL 4482268 at *8 ("Even if the EFMLEA and EPSLA are to be construed liberally, in reality, Plaintiff merely requested a hybrid work accommodation, not paid leave...