Yaskowsky v. Phantom Eagle, LLC, Civil No. 4:19cv9

Dennis A. Yaskowsky, Plaintiff, v. Phantom Eagle, LLC, Defendant.

Civil No. 4:19cv9

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA Newport News Division

February 18, 2020

OPINION AND ORDER

This matter is before the Court on a Motion to Dismiss filed by Defendant Phantom Eagle, LLC ("Defendant" or "Phantom Eagle"), pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No. 12. For the reasons stated below, Defendant's motion to dismiss is DENIED.

I. FACTUAL BACKGROUND¹

A. Plaintiff's Employment with Defendant

Plaintiff Dennis Yaskowsky ("Plaintiff" or "Yaskowsky") is a retired Air Force Officer who was "hired to fulfill a logistics position" as part of a third-party contract at Langley Air Force Base ("Langley AFB") since September 2000. Compl. ¶¶ 6-7, ECF No. 1. From 2000 to 2013 the contract was awarded to various defense contractors, with Plaintiff remaining in his logistics positionwith each successive contract. Id. ¶ 8. In 2013, Phantom Eagle won the contract for a five-year term with a contract proposal that stated it would retain "100 percent of the . . . incumbent team." Id. ¶ 9.

Plaintiff began his employment with Phantom Eagle on August 27, 2014, in the same role as Logistics/Communications Focal Point Manager that he had with prior contractors. Id. ¶ 11. Upon beginning his employment with Defendant, Plaintiff was required to take a pay cut of $47,985.60. Id. ¶ 15. Plaintiff's manager, Phantom Eagle employee Brian Echelle, told Plaintiff "he needed to 'take one for the team' because he was the oldest person[] on the contract and would be retiring soon anyway." Id. Plaintiff was 72 years old at the time. Id. ¶ 16. During Plaintiff's employment with Defendant, Mr. Echelle "repeatedly subjected [Plaintiff to] ageist remarks" such as "[s]uggesting that Mr. Yaskowsky retire because he was old" and "[r]eferring to Mr. Yaskowsky as 'old man.'" Id. ¶ 17.

B. Plaintiff's Medical Conditions

During his time in the Air Force, Plaintiff "developed spinal stenosis and paralysis of a back nerve" for which he had lumbar stabilization surgery in 1991. Id. ¶ 18. The surgery "largely mitigated the effects of his back injury," and he was discharged and issued a disability rating of fifty-two percent by the Air Force. Id. In approximately 2009, Plaintiff's back condition"gradually began to deteriorate" which limited his range of motion and his ability to bend, lift, and walk. Id. ¶ 19.

In October 2014, Plaintiff had full knee replacement surgery. Id. ¶ 20. When he continued to experience pain beyond the expected six-week recovery period, he found out that he had a partially torn tendon in the same knee and underwent a second surgery on March 18, 2015. Id.

Around the same time as his second knee surgery, Plaintiff's back condition "began to dramatically worsen as the result of nerve compression in his spine," making him: unable to walk on an incline or climb stairs without assistance or support, increasingly reliant on a cane or rollator walker to walk, unable to lift anything over ten pounds, unable to bend over and pick up items without a grabber tool, and unable to dress without the assistance of his spouse. Id. ¶ 21. After consultation with his physician, Plaintiff was told "he would need a series of back injections, which could be followed by a spinal stabilization surgery." Id. ¶ 22. On October 20, 2015, Plaintiff received two steroid injections, but they "were unsuccessful in alleviating his pain." Id. ¶ 24.

In addition to the issues with his back, Plaintiff had partially successful cataract surgery on his right eye on November 19, 2015, which required an additional eye surgery. Id.

C. Plaintiff's Request for Leave

On December 1, 2015, Plaintiff "requested 12 weeks of medical leave from Phantom Eagle's Office Manager, Debbie Gray, to take care of his various medical issues, primarily his deteriorating and painful back conditions." Id. ¶ 25. On or around December 10, 2015, Brian Echelle informed Plaintiff that Defendant "would not permit him the 12 weeks of medical leave that he had requested." Id. ¶ 28 (emphasis added). Instead, Mr. Echelle informed Plaintiff that Defendant "would approve six months of leave without pay to take care of his various medical issues and need for surgeries, whereupon Mr. Yaskowski would be able to return to his position as the Logistics/Communications Focal Point Manager." Id. Defendant "did not inform Mr. Yaskowky of his FMLA rights when he requested medical leave." Id. ¶ 29. At the time Plaintiff requested leave, he "did not know that the FMLA provided him a right to be restored to the same or equivalent position . . . but that his restoration rights expire[d] after twelve weeks of leave." Id. ¶ 30.

On December 10, 2015, Defendant's Program Administrator, Donald Gray, "spoke with Mr. Yaskowsky and confirmed that the Company would provide him six months of leave without pay to care for his medical issues." Id. ¶ 31. Mr. Gray then "emailed various members of Phantom Eagle's senior team" saying the same. Id. On December 11, 2015, Plaintiff replied to this email chain "to placehis 'formal request confirming LWOP starting 14 Dec[ember] 2015 for a period of 6 month[s] returning to work on 16 June 2016." Id. ¶ 32. In that same reply email, Plaintiff wrote that he understood that during the six months of leave he would "remain an employee of Phantom Eagle with the full intensions [sic] of returning to [his] position after [the six months]." Id. Robert Donze, the President of Phantom Eagle, then replied to Plaintiff's email the same day stating "[r]eceived. Approved." Id. ¶ 33. Plaintiff commenced his leave period on December 14, 2015. Id. ¶ 34.

In the twelve months of employment before Plaintiff's leave, Plaintiff "had worked at least 1,250 hours for Phantom Eagle." Id. ¶ 26. In addition, Plaintiff "worked at a location where Phantom Eagle had at least 50 employees within 75 miles." Id. ¶ 27.

D. Plaintiff's Leave and Return

During his six month period of leave, Plaintiff "periodically updated Defendant regarding his health conditions," "continued paying his share of premiums under the Company's health insurance plan," "retained all I.D.'s and security clearances required," and "stopped by Langley AFB occasionally." Id. ¶¶ 39-40. On April 27, 2016, Mr. Donze, Defendant's President, "emailed Mr. Yaskowsky to inform him that his 'position duties will no longer be funded.' Mr. Yaskowsky did not receive that email because he did not haveaccess to his company email account during his medical leave." Id. ¶ 44. On May 26, 2016, Plaintiff "had spinal surgery, which required an inpatient hospital stay of five days." Id. ¶ 43. Plaintiff also had a second eye surgery and received multiple spinal injections during his leave. Id. ¶ 42. On June 6, 2016, "Mr. Donze emailed Mr. Yaskowky at his personal email account and notified him that "[e]ffective 6 June 2016, [his] position was no longer available for rehire." Id. ¶ 45. However, Plaintiff asserts that the contract Defendant was awarded at Langley AFB that included Plaintiff's position was funded "for all positions . . . until August 31, 2016." Id. ¶ 47. When Plaintiff attempted to return to work on June 13, 2016, Mr. Echelle informed Plaintiff that he "no longer had a position." Id.

On January 23, 2019, when Plaintiff filed his Complaint, he stated that his back pain had "largely subsided as the result of his back surgery." Id. ¶ 50. Plaintiff still had a "lifting restriction of 20 lbs." Id. Plaintiff could not "climb or descend stairs without using [a] railing" and he required "the use of a cane when walking distances in excess of 100 feet." Id. Plaintiff also required "the use of a grabber tool to retrieve items on the ground, and he require[d] the assistance of his spouse to get dressed for the day." Id. Plaintiff "has been assigned a 60 percent disability rating by the Department of Veterans Affairs and handicap placards by the states of Florida and Virginia." Id.

II. PROCEDURAL HISTORY

On January 23, 2019, Yaskowsky filed his Complaint against Phantom Eagle. The Complaint includes four counts: Count I alleges Age Discrimination pursuant to 29 U.S.C. §§ 621-634 ("The Age Discrimination in Employment Act"), id. ¶¶ 51-58; Count II alleges FMLA Interference pursuant to 29 U.S.C. §§ 2611-2619 ("The Family Medical Leave Act" or "FMLA"), id. ¶¶ 59-66;² Count 3 alleges Failure to Accommodate pursuant to 42 U.S.C. § 12101-12213 ("The Americans with Disabilities Act"), id. ¶¶ 67-73; and Count 4 alleges Wrongful Termination pursuant to The Americans with Disabilities Act, id. ¶¶ 74-84. Plaintiff attempted to serve the complaint on Defendant on March 11, 2019, ECF No. 2, but because of the security at Defendant's place of business, Defendant did not receive notice of the complaint until late March, ECF No. 10. Defendant subsequently filed an unopposed motion for an extension to file a responsive pleading on April 12, 2019, ECF No. 9, and such motion was granted on April 15, 2019. ECF No. 11.

On April 26, 2019, Defendant filed the now-pending Motion to Dismiss for Failure to State a Claim. ECF No. 12. The Motion and accompanying Memorandum, ECF No. 13 ("Memo"), primarily challenge Count II, arguing that Count II is time-barred, or alternatively, even if Count II is not time-barred: (1) that Defendant did nothave a duty to reinstate Plaintiff under the FMLA; and (2) even if there was a duty under the FMLA, Plaintiff was unable to return to work after twelve weeks.

Plaintiff filed his Response to Defendant's Motion on May 10, 2019. ECF No. 14 ("Resp."). Plaintiff argues that Count II is timely, that the doctrine of equitable estoppel should bar Defendant from arguing it had no duty to restore Plaintiff, and that Defendant is assuming facts not in the record to conclude that Plaintiff could not return to work after twelve weeks. Id. Alternatively, Plaintiff requests leave to amend his complaint to provide additional factual detail about his ability to...