Romero v Randle Eastern Response to MSJ

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

Miami Division

Case No.: 08-23179-civ-MORENO/TORRES LAZARA ROMERO, Plaintiff, v. RANDLE EASTERN AMBULANCE SERVICE, INC. a Florida for-profit corporation, & JAYME BURGMAN & GREGORY JONES, Defendants. _______________________________________/

ROMERO’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Pursuant to Rule 56 and Local Rule 7.5, Plaintiff, Lazara Romero, files her Response in

Opposition to Defendants’ (collectively “Randle Eastern” unless otherwise noted) Motion for

Summary Judgment (the “Motion”). [D.E. 19]. Romero is contemporaneously filing her

Response to Randle Eastern’s Statement of Undisputed Material Facts and incorporates by

reference that entire document into this Response. For the reasons stated below, the Motion

must be denied.

Introduction

This interference and retaliation lawsuit brought pursuant to the Family and Medical

Leave Act (“FMLA”) is premised on a lie. Randle Eastern initially claimed throughout

discovery and in its Motion that Romero’s position was eliminated while she was on FMLA

leave pursuant to a reduction-in-force (“RIF”) of approximately 12% (80 or more employees) of

its Florida workforce. But the documentary evidence produced by Randle Eastern (only

recently, and only after an Order of this Court) demonstrates beyond all doubt not only that no

such RIF occurred, but also that Romero’s position was never eliminated. Randle Eastern has no

admissible evidence of this purported RIF except for the highly incredible and suspect testimony

of co-defendant Jayme Burgman, the Director of Florida Operations for Randle Eastern’s parent

Page 1 of 20 SARELSON & SHAFIR LLP, 1401 Brickell Avenue, Suite 510, Miami, Florida 33131, 305-379-0305, 800-421-9954 (fax)

www.sarelson-shafir.com

Case 1:08-cv-23179-FAM Document 33 Entered on FLSD Docket 02/20/2009 Page 1 of 20

company, American Medical Response, Inc. (“AMR”). Romero initially intended to argue in

this Response only that Randle Eastern’s purported RIF was a ruse and a reasonable jury could

and likely would reject the affirmative defense raised by Randle Eastern in its Motion. To

support her argument, Romero intended to limit her Response to a critical review of Burgman’s

suspect testimony and to demonstrate his inconsistencies and incredibility by comparing his

testimony to other portions of his own testimony – Burgman contradicts himself repeatedly – and

to the testimony of Walter Beam (human resources director) and co-defendant Greg Jones

(human resources manager) – Beam and Jones both contradict each other and Burgman

repeatedly. Burgman’s testimony is further contradicted by what limited documents Randle

Eastern initially produced. This alone is sufficient to defeat the Motion, because when a party

moves for summary judgment on an affirmative defense where it carries the burden of proof at

trial, as is the case here, the non-moving party’s obligation is merely to show inconsistencies and

gaps in the evidence sufficient for a reasonable jury to reject the affirmative defense (i.e., it is not

more likely than not that Romero would have been terminated when she was terminated even

absent her FMLA leave).

But all that changed on February 13, 2009. Much to Romero’s surprise, Randle Eastern

on that date, in response to a Court Order, produced documents that not only prove Romero’s

claims, but prove that both Randle Eastern and its attorneys engaged in a nefarious scheme to

defraud the Court. According to Randle Eastern’s testimony, Romero’s position, “Assistant,

Safety & Risk Management,” was eliminated as part of a RIF shortly after she returned from

approved FMLA in August 2008 with no duties or responsibilities, and her duties were taken

over by Deleana Hernandez, Randle Eastern’s human resources representative (directly

underneath Jones), the employee who was temporarily covering for Romero while she was on

FMLA leave. (AMF, at ¶¶ 2, 12-15)1 The problem is, according to an AMR contact list created

on October 10, 2008 and produced only after being compelled by this Court, Hernandez’ title is

now “Assistant, Safety & Risk Management.” (AMF, at ¶¶ 20-22) Randle Eastern’s argument,

which was highly suspect to begin with, that Romero’s position was eliminated as part of RIF is

1 The abbreviation “AMF,” as used herein, refers to Plaintiff’s Statement of Additional Material Facts, contained in Plaintiff’s Response to Defendants’ Statement of Undisputed Facts, filed contemporaneously herewith.




demonstrably false.2 Romero was fired and Hernandez is now in the exact same position that

Randle Eastern testified that it eliminated as part of a RIF.

Material Facts

The disputed facts are highlighted extensively in Romero’s Response to Randle Eastern’s

Statement of Undisputed Facts, filed contemporaneously with this Response. Only a few

material facts are in dispute, but those few disputed facts are highly disputed and the parties

strongly disagree on the interpretation and implication of those facts.3 In addition to the

existence of disputed facts, Romero will identify numerous deficiencies in Burgman’s testimony

because Randle Eastern’s Motion is premised almost exclusively on Burgman’s false testimony.4

I. Several Material Facts are Disputed

1. Romero’s position of “Assistant, Safety & Risk Management,” was not eliminated

as claimed by Randle Eastern because the position of “Assistant, Safety & Risk Management” is

now held by Deleana Hernandez, the HR representative who was temporarily covering for

Romero was she was on FMLA leave. (AMF, at ¶ 20-22) When asked, both Burgman and Jones

testified that Hernandez’ title was HR representative and both made no mention of her “secret”

title. (AMF, at ¶ 22).

2. There was no RIF. No documentary evidence exists of any purported RIF,

despite Randle Eastern’s contention that the RIF affected at least eighty (80) positions. Indeed,

the documentary evidence demonstrates that no RIF has occurred, and that Randle Eastern has

been actively hiring during the time period of this supposed RIF. (AMF, at ¶ 25).

Burgman testified that Romero’s position would have been eliminated as part of a

supposed RIF regardless of Romero’s FMLA leave. (SMF, at ¶¶ 17 & 23). However, AMR’s

Safety & Risk contact lists prove that Hernandez assumed Romero’s position not only during her

FMLA leave, but permanently since Romero’s termination. (AMF, at ¶¶ 20-21). The contact list

2 Indeed, as set forth herein, the documents demonstrate that the supposed RIF never took place. 3 See, e.g., Lighting Fixture & Elec. Supply Co. v. Continental Ins. Co., 420 F. 2d 1211, 1213 (5th Cir. 1969) (“A summary judgment may be improper even though the basic facts are undisputed if the parties disagree regarding the material factual inferences that properly may be drawn from these facts.”). 4 Burgman’s testimony is by far the most important because he and he alone made the decision and had the authority to terminate Romero and/or to eliminate her position. (AMF, at ¶ 49). Randle Eastern testified in an interrogatory response that Burgman and Beam participated in the decision to terminate Romero. See Exhibit A. Beam, however, testified that his entire involvement in the termination was a single email (no other communication of any kind) and that the email was merely a “suggestion.” (Beam Dep. pp. 17-18) He admits he had no authority to terminate Romero and he admits he never recommended that she be terminated. Id. Based on Beam’s testimony, it is apparent that Burgman, and Burgman alone, made the decision to terminate Romero, notwithstanding Randle Eastern’s interrogatory response to the contrary.




created on August 25, 2008 – after Romero’s termination – continues to refer to Romero as

“Assistant, Safety & Risk Management,” and referred to Hernandez as “covering” Romero’s

position. (AMF, at ¶ 19). The next contact list, dated October 10, 2008, suddenly reveals that

Hernandez is Randle Eastern’s “Assistant, Safety & Risk Management.” (AMF, at ¶¶ 20-21).

As if to underscore that Hernandez filled Romero’s exact position, Hernandez’s name does not

appear in alphabetical order, like the rest of the list, but rather appears in the exact spot where

Romero’s name appeared on prior lists. Id.

Moreover, during the time that the RIF was purportedly underway, Randle Eastern

advertised no less than twenty (20) available positions, many of which were the exact positions

Burgman claimed were subject to the RIF in the first place. (AMF, at ¶¶ 40, 50, 58-61)

Burgman also testified (as did Jones and Beam) that the elimination of Romero’s position was

part of a company-wide effort to require each “business unit” to handle its own workers’

compensation issues internally. (AMF, at ¶ 26) However, there is not a single document

evidencing, or even referring obliquely to, this supposed “company-wide directive.” Indeed,

Burgman contradicts himself by admitting that Hernandez – Romero’s replacement – currently

handles workers’ compensation issues for two distinct business units despite the mandate for

each business unit to handle its own claims. (AMF, at ¶ 27) Even a cursory review of the

aforementioned contact lists demonstrates that not one Safety & Risk employee’s activities are

restricted to a single business unit. (AMF, at ¶ 29)5

3. Romero’s position was not slated for elimination as part of a RIF or a

restructuring. Prior to taking approved FMLA leave to undergo and recover from a

hysterectomy on June 8, 2008, Romero was Randle Eastern’s “Assistant, Safety & Risk

Management” employee. (SMF, at ¶ 5) Her official title is awkward and non-descriptive (and

indeed there is no job description), but essentially she handled workers’ compensation issues.6

(AMF, at ¶ 1). Upon Romero taking FMLA leave, Romero’s then-boss, Kami Tehrani, Randle

5 Similarly, Beam testified that prior to her FMLA leave, a portion of Romero’s duties were taken away from her as part of this supposed “directive.” (AMF, at ¶ 11). Romero vehemently disputes this assertion, and testified that the only time any of her responsibilities were taken from her was immediately upon her return from FMLA leave. Id. Beam also testified that each business unit’s HR department was supposed to be handling workers’ compensation for the unit as part of the restructuring, but the workers’ compensation claims in his own business unit – western Florida – are being handled by a Safety & Risk Administrative Supervisor, not HR. (AMF, at ¶ 27). 6 Although Randle Eastern now claims that workers’ compensation was only 50% of her job, Romero testified that it was at least 90% of her job. Greg Jones (who actually fired Romero), Walter Beam (who also was involved in the termination decision), and Jayme Burgman (who made the underlying decision to terminate Romero), testified that workers’ compensation was either the bulk of her duties or all of her duties. (AMF, at ¶ 1).




Eastern’s then-General Manager, directed Greg Jones, who heads human resources (“HR”) for

Miami-Dade County, to handle Romero’s responsibilities temporarily until she returned from

FMLA leave. (AMF, at ¶ 2). Jones assigned Romero’s duties to Deleana Hernandez

temporarily – and Hernandez remains the person handling those duties even today. Id. Jones

admits that he understood the assignment was temporary, and at least during the beginning of

Romero’s eight weeks of leave, he understood that Romero would be reassuming those

responsibilities upon her return from FMLA leave on August 4, 2008. Id.

On or about July 26, 2008, Tehrani, Romero’s then boss, was terminated for what Randle

Eastern will only describe as “compliance” issues,7 (AMF, at ¶ 3), and Burgman was transferred

from Pittsburgh to Miami as a result of Tehrani’s mysterious termination on the same date. Id.

On Thursday, July 31, 2008, three short days after arriving in Miami, Burgman sent an email to

Jones and Beam that stated, in full:

Laz [Romero] will be back at work after FMLA on Monday. Greg [Jones] has taken over WC [workers’ compensation] issues in her absence. I would like to keep wc under Greg since it is done well now and is under control. Since we do not know what else Laz does, next week, in my absence, will be very awkward. We have no idea what she will do? I’m not ready to cut her loose yet until I understand her function. Walter, we need some guidance here. Thanks, GJB.

[D.E. 23-5] (emphasis added). Accordingly, this email memorializes Burgman’s decision to

make what was universally understood to be a temporary FMLA-driven reassignment permanent

“since it is done well now and is under control” and is the only documentary evidence that

specifically refers to Romero’s position and the transfer of her duties to HR. (AMF, at ¶¶ 4-7)

But Burgman admitted that he had no evidence and no reason to think that workers’

compensation was not being done well or was not under control under Romero. (AMF, at ¶ 6)

Burgman’s email makes no mention of or even an obscure reference to any other reason behind

the decision. Id. When asked why his email made no mention of the position being eliminated,

he responded, “It was definitely on my list, though.” (AMF, at ¶ 7). When pressed, he admitted

his “list” of positions to be eliminated and persons to be terminated was “in my head.” Id. Most

importantly, the email makes no reference to any of the convenient reasons now proffered by

Randle Eastern in its Motion. Finally, despite alleging that the decision to make the

7 At the advice of counsel, Burgman refused to elaborate what that meant except to say it was unrelated to the purported restructuring that claimed Romero’s job. (AMF, at ¶ 3) .




reassignment permanent in late July 2008 would have happened even absent Romero’s FMLA

leave, Burgman admits he has no other documentary evidence proving, or even suggesting, that

Romero’s position was slated for elimination or consolidation. (AMF, at ¶ 7).

In response to Burgman’s email, Walter Beam, human resource director for AMR’s

Atlantic Coast Division, stated that “All Operations have taken over their own WC issues . . . I

do not think there is a WC role for her….” (AMF, at ¶ 4). The fact that this statement is made in

response to Burgman’s email is a subtle but important point. Burgman testified that Romero

would have been terminated anyway because Hadassa Fyffe, AMR’s Director of Risk & Safety,

“recommended” that HR assume the workers’ compensation duties even before Romero took

FMLA leave in April 2008.8 (AMF, at ¶¶ 18 & 26). It begs the question then, why did Burgman

make no mention of Fyffe’s “recommendation” or some restructuring or some cost-cutting

measure in his email, and why did he have to ask Beam how to handle Romero and her return

from FMLA leave?

4. Romero was not reinstated to the same or equivalent position because when she

returned to work on schedule and fully capable of working on August 4, 2008 – two business

days after Burgman’s “what do we do with Laz” email – she had absolutely no duties or

responsibilities. (AMF, at ¶ 12). Other than her salary, every term and condition of Romero’s

pre-FMLA employment had disappeared. Id. Jones sent Burgman an email at 11:30 a.m. on the

morning of Romero’s return and told him that, “as expected, Laz doesn’t have much to do,” and

that he told Romero that HR was taking over her workers’ compensation duties “for the time

being.” (AMF, at ¶ 13). Later that day he sent another email to Burgman telling him that

Romero is “idle” and is being given “busy work.” Id. With the exception of a small and single

temporary assignment to cover for a co-worker who was on vacation, Romero did absolutely

nothing for Randle Eastern between her August 4 return from FMLA leave and her August 21

termination. (AMF, at ¶ 15). Randle Eastern does not deny this.

At an August 11 or 12, 2008 meeting requested by Romero, Burgman told her that he

“does not know what to do with” her and that he does not have a position for her. (AMF, at ¶

16). But he did not tell Romero that she was going to be terminated or that the position was 8 Actually, Burgman testified that Fyffe (who had no seniority over him) issued a “directive” in April 2008 that HR assume the workers’ compensation duties, but when pressed for proof of this “directive,” he admitted that it was not actually a “directive” but merely a “recommendation.” (AMF, at ¶¶ 26 & 42). Either way, this is inadmissible hearsay and Fyffe never provided testimony and was not listed by Randle Eastern as a person with knowledge, and Burgman admits he has no proof of this recommendation. Id.




going to be eliminated. Id. He further admits that the decision to eliminate Romero’s position

was made after the August 11 or 12 meeting. Id. On August 21, 2008, seventeen days after

returning from FMLA leave without any job duties or responsibilities, Jones informed Romero

that her “position was eliminated” and Romero’s employment ended on that day. (AMF, at ¶

17).

II. The Testimony of Jayme Burgman is Not Credible

Burgman’s deposition testimony (which Randle Eastern conveniently ignores in the

Motion) is self-contradictory and at times defies credulity and simple logic. In particular, his

testimony regarding the supposed RIF is highly suspect and subject to impeachment. Burgman’s

credibility gaps are relevant to both the major issues raised in the Motion, and to smaller

individual matters that, when considered as a whole, should give the Court serious pause

regarding his testimony. Major examples of these patent inconsistencies include:

• Burgman could only recall one employee whose position was eliminated as part of the

major Florida-wide RIF (over 10% of the work force) prior to Romero’s termination –

Joe Fisher. But Fisher was not subject to the RIF – he was immediately replaced and

Randle Eastern is still looking to fill his position permanently. (AMF, at ¶¶ 38-40).

• At least one of the positions Burgman purportedly eliminated as part of the RIF is open

and Randle Eastern has advertised to fill it. (AMF, at ¶ 41).

• Burgman testified he reviewed (unproduced) financial documents for the Miami-Dade

and Florida business units when determining which positions would be affected by the

RIF, but Romero’s position falls under neither the Miami-Dade County nor the overall

Florida budget, which means that the documents Burgman reviewed would not have

contemplated her position. (AMF, at ¶ 37).

• Burgman testified that the company issued a “directive” for each business unit to handle

its own workers’ compensation issues, but when pressed, however, Burgman admitted

that no such “directive” exists, and that it was merely a “recommendation.” (AMF, at ¶

42).

• When pressed further, Burgman admitted that Hernandez currently handles workers’

compensation for Miami-Dade and Key West. Beam, on the other hand, testified that

Key West and Miami-Dade should have each been managing their own workers’

compensation claims. (AMF, at ¶¶ 27).




• Burgman initially testified that the RIF affected “hundreds” of AMR employees in

Florida. When pressed, Burgman immediately reduced that number to “seventy or

eighty,” and denied having said that the RIF affected “hundreds” just seconds earlier.

The only document produced by Randle Eastern purporting to identify positions affected

by the RIF listed seven (7) employees, of whom Romero was the first to be terminated.

(AMF, at ¶¶ 43 & 39).

• Burgman initially stated that there are “less than five hundred” AMR employees in

Florida, but when pressed, stated “If you’re really going to push me…it looks to be

around seven hundred…[.]” (AMF, at ¶ 44).

• Burgman testified that he was considering the potential elimination of Romero’s position

as far back as April of 2008, yet he waited until Romero returned from FMLA leave

before putting this purported plan into action. (AMF, at ¶ 28).

• When asked why there is no documentation of a RIF purporting to affect between 10-

15% of AMR’s 700 Florida workers, Burgman incredibly responded that there was “no

need” to document such a thing. (AMF, at ¶ 31).

• Burgman testified that Romero was terminated as part of a RIF, but when pressed, he

admitted that Romero’s termination was actually “an isolated cost-cutting move….”

(AMF, at ¶ 31).

Burgman’s inconsistencies and incredibilities with respect to both material facts and less

than dispositive facts are sufficient for a reasonable jury to reject Randle Eastern’s affirmative

defense.




Memorandum of Law

I. SUMMARY JUDGMENT IN AN EMPLOYMENT CASE WHERE THE EMPLOYER CARRIES THE BURDEN OF PROOF AT TRIAL, NOT JUST PRODUCTION, IS RARELY APPROPRIATE AND IS INAPPROPRIATE HERE

Employment disputes are inherently challenging for plaintiffs because most, if not all, of

the relevant facts and evidence rests with the defendants and because employers are in a far

better position to create or identify an otherwise non-discriminatory or non-retaliatory

explanation for its actions after the adverse employment action occurs. This is exactly what

occurred here – Randle Eastern purportedly decided that it could do away with Romero while

and because she was on FMLA leave and then, upon her return, attempted to figure out how to

handle her and then, upon being served with this lawsuit, attempted to figure out how to

retroactively justify its employment decision by applying the convenient “we would have fired

her anyway” affirmative defense. Moreover, the October 10, 2008 contact list indicates that her

position was not actually eliminated as Randle Eastern testified to and claims – Hernandez is

now listed as “Assistant, Safety & Risk Management.”

“It is difficult for a Court to ever grant summary judgment on an affirmative defense

raised by the party carrying the burden of proof.” Madden v. Chattanooga City Wide Service

Dep’t, 2007 WL 3120054, n.2 (E.D. Tenn. Oct. 22, 2007). See also Meacham v. Knolls Atomic

Power Lab., 128 S.Ct. 2395, 2406 (Jun. 19, 2008) (reversing summary judgment and holding

that the Age Discrimination in Employment Act’s affirmative defenses require the employer to

defend its own hiring and firing decisions with proof at trial); Martin v. Brevard Cty Pub.

Schools, 543 F.3d 1261, 1267 (11th Cir. 2008) (reversing district court for improperly granting

summary judgment on same affirmative defense in similar FMLA action and expressly noting

that the employer bears the burden of proof); Mickelson v. New York Life Ins. Co., 460 F.3d

1304, 1311-12 (10th Cir. 2006) (reversing district court in Equal Pay Act case because the

employer failed to produce “sufficient evidence such that no rational jury could conclude but that

the proffered reasons actually motivated the [adverse employment action] of which the plaintiff

complains.”); Strickland v. City of Birmingham, 239 F. 3d 1199, 1208 (11th Cir. 2001) (reversing

for trial on similar FMLA interference claim because employer has burden of proof on same

affirmative defense); Parris v. Miami Herald Publ’g Co., 216 F.3d 1298, 1301 n.1 (11th Cir.

2000) (reversing summary judgment because the employer’s evidence supporting its affirmative




defense merely created a jury question as to whether the same action would have occurred absent

the FMLA leave); Stanziale v. Jargowsky, 200 F. 3d 101, 107-09 (3d Cir. 2000) (reversing

summary judgment on Equal Pay Act claim because employer failed to prove its affirmative

defense “so clearly that no rational jury could find to the contrary.”); Wright v. Southland Corp.,

187 F. 3d 1287 (11th Cir. 1999) (reversing summary judgment on affirmative defense);

Thorsteinsson v. M/V Drangur, 891 F.2d 1547, 1550-51 (11th Cir. 1990) (reversing district court

for misapplying the burden of proof on an affirmative defense); Fontenot v. Upjohn Co., 780

F.2d 1190, 1194 (5th Cir. 1986) (“if the movant . . . is asserting an affirmative defense, he must

establish beyond peradventure all of the essential elements of the claim or defense to warrant

judgment in his favor.”) (emphasis in original); Connor v. Sun Trust Bank, 546 F. Supp. 2d 1360

(N.D. Ga. 2008) (denying employer’s motion for summary judgment on same affirmative

defense under the FMLA where employer had evidence that adverse employment action was

made for legitimate business reasons); Kirkwood v. Inca Metal Prods. Corp., 2008 WL 245941,

*9 (N.D. Tex. Jan. 30, 2008) (denying summary judgment because the employer had not

satisfied its “heavy” burden of proving its affirmative defense “beyond peradventure.”).9

Unlike the familiar McDonnell-Douglas protocol used in retaliation claims, Randle

Eastern’s burden with respect to Romero’s interference claim is not merely to articulate a facially

neutral, lawful reason for its actions. To the contrary, Randle Eastern’s burden on summary

judgment is to “prove beyond peradventure” that no reasonable jury could reject its argument

and evidence that Romero’s job would have been eliminated in July 2008 even if Romero did not

take FMLA leave. Simply put, if a reasonable jury could conclude that Randle Eastern has not

proven by a preponderance of the evidence that it would have made the transfer anyway, then

summary judgment is not appropriate and this case must proceed to trial.

9 More generally, summary judgment in employment cases, like here, where intent, credibility and other subjective feelings play dominant roles, should be granted only with great caution. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (“Neither do we suggest that the trial courts should act other than with caution in granting summary judgment or that the trial court may not deny summary judgment in a case where there is reason to believe that the better course would be to proceed to a full trial.”); United States v. Aikens, 460 U.S. 711, 716 (1983) (vacating bench verdict for employer and noting “All courts have recognized that the question facing triers of fact in discrimination cases is both sensitive and difficult.”) (emphasis added); (internal citations omitted); Alexander v. Wisc. Dept. of Heath & Family Servs., 263 F. 3d 673, 680-81 (7th Cir. 2001) (noting that summary judgment in employment cases requires “added vigor” due to the nature of the claim, the role that witness credibility plays and the statutory right to trial by jury); Wright., 187 F.3d at 1290 (“A discrimination suit . . . puts the plaintiff in the difficult position of having to prove the state of mind of the person making the employment decision.”). This difficulty is especially significant where, like here, the employer is in possession, custody or control of all the relevant documents and could easily withhold or manipulate the documents.




Randle Eastern, like virtually every employer defending an FMLA claim, is seeking to

avoid liability on the grounds that it would have made the same exact employment decision

when it did even if Romero was continuously employed and not on FMLA leave. See 29 C.F.R.

§ 825.216(a). This is a well-recognized, often pled but narrowly construed affirmative defense

where Randle Eastern has the burden of proof – it cannot “show,” “demonstrate” or “establish” –

it must prove.10 See § 825.216(a)(1) (“An employer would have the burden of proving that an

employee would have been laid off during the FMLA leave…”).

In recent years, the Eleventh Circuit has thrice reversed summary judgment in similar

FMLA actions where the employer moved for summary judgment on its § 825.216 affirmative

defense. See Martin, 543 F.3d at 1267 (“Even if that [legitimate] reason [for terminating

employee] is true, however, the record does not establish beyond dispute that the [employer]

would have discharged [employee] had he not taken FMLA leave.”) (emphasis in original);

Strickland, 239 F. 3d at 1208; Parris, 216 F.3d at 1301 n.1. Randle Eastern did not even attempt

to distinguish any of these three binding cases. Moreover, the Eleventh Circuit has never

affirmed summary judgment on an FMLA interference claim premised on Randle Eastern’s

affirmative defense.

When viewed in the light most favorable to Romero, there is ample evidence to support a

jury verdict in her favor. What a reasonable jury would or probably would do is irrelevant –

what matters is what a reasonable jury could do and here a reasonable jury could (and likely will)

find in favor of Romero. See Arban v. West Publishing Corp., 345 F.3d 390, 401 (6th Cir. 2003)

(affirming jury verdict for employee in similar FMLA action where the employer “presented

considerable evidence that the decision to terminate [plaintiff] had been made before [plaintiff]

went on medical leave…”) (emphasis added).

10 Not surprisingly, nowhere in Randle Eastern’s Motion did it acknowledge that its argument is an affirmative defense and that it bears the ultimate burden of proof on the issue. In fact, Randle Eastern purposefully misstates the law by arguing that “the employer can assert as a defense that it would have discharged the employee even if she had not taken FMLA leave.” See Motion, p. 2. This purposeful mischaracterization of the law is intellectually dishonest.




II. ROMERO WILL PREVAIL ON HER INTERFERENCE CLAIM

1. Randle Eastern Unlawfully Denied Romero Her Right to Restoration

The FMLA created two causes of action – interference and retaliation. See Strickland,

239 F.3d at 1206. “To prove FMLA interference, an employee must demonstrate that he was

denied a benefit to which he was entitled under the FMLA.” Martin, 543 F. 3d at 1266-67.

That’s it. Unlike a retaliation claim, “an employee need not allege that his employer intended to

deny the right; the employer’s motives are irrelevant.” Id. “An employee has the right following

FMLA leave to be restored by the employer to the position of employment held by the employee

when the leave commenced or to an equivalent position.” Id.; see also 29 U.S.C. § 2614(a).

“An equivalent position is one that is virtually identical to the employee’s former position in

terms of pay, benefits and working conditions, including privileges, perquisites and status. It

must involve the same or substantially similar duties and responsibilities, which must entail

substantially equivalent skill, effort, responsibility, and authority.” 29 C.F.R. § 825.215(a).

Importantly, “an employee is entitled to such reinstatement even if the employee has been

replaced or his or her position has been restructured to accommodate the employee’s absence.”

29 C.F.R. § 825.214(a) (emphasis added). (Nowhere did Randle Eastern acknowledge §

825.214(a)).

Here, Romero returned from FMLA leave to find that all of her duties and

responsibilities were being permanently performed by the employee who was temporarily

handing those duties while she was on FMLA leave. (AMF, at ¶ 12). The only aspect of her

employment that remained the same was her pay, but every court that has considered the issue

has correctly held that merely restoring an employee’s rate of pay to its pre-FMLA level is

insufficient to satisfy the substantive right of restoration under the FMLA. See, e.g., Donahoo v.

Master Data Ctr., 282 F.Supp.2d 540, 552 (E.D. Mich. 2003) (expressly rejecting employer’s

argument that employee was returned to a similar position because it carried “equal pay and

benefits”). Unquestionably, Randle Eastern did not restore Romero to the same or equivalent

position because she had no duties or responsibilities upon her return and she did nothing for

Randle Eastern until her termination seventeen days later.11

11 The fact that Randle Eastern brought her back as scheduled even though her job was taken away from her days prior is irrelevant. An employer cannot eliminate a position while the employee is on FMLA leave and attempt to avoid liability by restoring the employee for a few days before actually terminating him. See Snelling v. Clarian Health Partners, Inc., 184 F. Supp. 2d 838, 847 (S.D. Ind. 2002) (denying summary judgment and noting: “To hold




2. Genuine Issues of Material Fact Exist Regarding Randle Eastern’s Affirmative Defense

In order to avoid liability on an FMLA interference claim, the employer must prove to the

jury that it would have taken the exact same adverse employment action at the same time it did

even if the employee had not taken FMLA leave. See 29 C.F.R. § 825.216(a). But this is a very

high standard because the employer must prove that the adverse employment decision was

“wholly unrelated to the FMLA leave.” Strickland, 239 F. 3d at 1208 (reversing for trial); see

also Connor, 546 F. Supp. 2d at 1370 (denying summary judgment on interference claim

because the stripping of her duties and responsibilities was not “wholly unrelated” to her taking

FMLA leave). Importantly, the test is not whether the employer “had legitimate business

reasons” for denying restoration of employment – it is whether the actual decision made would

have been made when it was made anyway. See Parker v. Hahnemann Univ. Hosp., 234 F.

Supp. 2d 478, 485 (D.N.J. 2002) (denying summary judgment).

Simply put, an employer cannot turn a temporary reassignment of duties due to an

employee’s FMLA leave into a permanent reassignment of duties because the employer likes the

new structure or because the employer concludes that it does not need the employee on leave.

See 29 C.F.R. § 825.214(a). Allowing an employer to use an employee’s FMLA leave as an

opportunity to restructure, consolidate or even shake things up runs completely contrary to the

underlying purpose of the FMLA - namely the right of eligible employees to take unpaid leave

without fear that their jobs will be gone when the leave ends.

Furthermore, it is axiomatic that an employer asserting that an employee’s position was

eliminated for reasons wholly unrelated to her FMLA leave must first prove that the employee’s

position was actually eliminated. See Connor, 546 F. Supp. 2d at 1374 (denying summary

judgment in part because the employer “did not actually eliminate her position because her duties

are still being performed within [the company], which is evidence of pretext.”). If the position

was not actually eliminated, then there is no reason to consider whether the elimination was

related to her FMLA leave. Despite Burgman’s testimony to the contrary, the “Assistant, Safety

& Risk Management” position was not eliminated, but was rather taken over by Hernandez.

(AMF, at ¶¶ 20-22).

otherwise would allow employers to circumvent the FMLA by restoring an employee on one day and then terminating that employee the next day.”). In order words, Randle Eastern’s argument that it acted in good faith by bringing her back anyway to see it could find her another position is no defense at all.




The evidence cited by Randle Eastern in support of its affirmative defense is inadmissible

hearsay, incomplete, incredible, internally inconsistent, and vague. Equally telling is the absence

of documentary evidence where a reasonable juror could conclude that Randle Eastern’s

argument and testimonial evidence should be supported by documentation, and where the

absence of documentary evidence substantially weakens the credibility of the argument. See,

e.g, EI v. Southeastern Penn. Transp. Authority, 479 F. 3d 232, 237-38 (3d Cir. 2007) (“When a

witness's credibility is critical to supporting the necessary findings of fact, the District Court

must consider whether there are sufficient grounds for impeachment that would place the facts to

which he testifies in legitimate dispute . . . Summary judgment is inappropriate when a case will

turn on credibility determinations.”) (internal citations omitted); Mickelson, 460 F.3d at 1312

(reversing summary judgment, in part, because “no documents were executed

contemporaneously” that support the employer’s affirmative defense); Wright, 187 F.3d at 1305

(reversing summary judgment and adding: “Consequently, there is a genuine issue of material

fact as to the cause of [employee’s] termination, an issue that turns largely on whether

[employee’s] witnesses or [employer’s] witnesses are to be believed. Such a credibility

determination can be made only after trial, and the entry of summary judgment on [employee’s]

ADEA claim was therefore inappropriate.”).12

The evidence in this case is analogous to several similar FMLA interference cases where

summary judgment was denied by the district court or reversed by the circuit court. For

example, in Parker, the district court denied summary judgment where “the status of the position

came up when plaintiff was due to return to work,” 234 F. Supp. 2d at 490, and where the

employer “learned that the performance of other employees could substitute for plaintiff’s

performance.” Id. at n 13. Here, the undisputed evidence is that the status of Romero’s job arose

in an email (and only the one single email; no other conversations) sent by Burgman just two

business days before she was scheduled to return to work. Burgman’s email expressly states that

it was being sent because of Romero’s imminent return from FMLA leave. The email does not

12 Here, Randle Eastern relies exclusively on three declarations prepared by its attorneys, despite have similar deposition testimony of the same three declarants. Using what is essentially leading evidence while discarding cross-examination testimony is telling – especially where Romero’s trial obligation is to show inconsistencies, gaps and incredibilities in Randle Eastern’s evidence. The Court should categorically disregard Randle Eastern’s summary judgment evidence. See Van T. Junkins & Assoc., Inc v. U.S. Indust., Inc., 736 F.2d 656 (11th Cir. 1984) (holding that a district court should discount an affidavit as a sham when it is used in lieu of similar deposition testimony at the summary judgment phase); Dwyer v. Ethan Allen Retail, Inc., 528 F. Supp. 2d 1297, 1300-01 (S.D. Fla. 2007) (discounting a sham affidavit when similar testimony was available).




discuss the role of “Assistant, Safety & Risk Management” in the abstract or in the context of a

RIF or cost-cutting plan. Most importantly, the employer in Parker “presented evidence that the

job was slated for change before plaintiff took FMLA leave and that the elimination of the job

was inevitable regardless of plaintiff’s leave.” Id. (noting that the employer had discussed the

employee’s job status directly with her before the employee’s FMLA leave). Here, Randle

Eastern has no evidence that Romero’s job was slated for elimination or consolidation and

Romero had absolutely no reason to believe her job was in jeopardy prior to the day she returned

from FMLA leave. See also Smith v. Aluminum Blanking Co., 2007 WL 496667, *6 (E.D. Mich.

Feb. 13, 2007) (denying summary judgment in FMLA interference claim because the employer

“simply testified that a final decision to reduce the [workforce] had been made at that time – not

that a final decision that Plaintiff would be the one [] staff member chosen for the reduction in

force has been made at that time.”) (emphasis in original).

In Strickland, the Eleventh Circuit reversed summary judgment for the employer in an

FMLA interference action solely because the reason given by the employer in its motion for

summary judgment, namely that the employee failed to properly handle a customer’s water bill

complaint, was conspicuously absent from a letter prepared by his employer notifying him of his

termination. 239 F.3d at 1208. The termination letter mentioned “insubordination and walking

off the job,” but made no mention of the customer complaint. Id. This is virtually identical to

the facts here. Randle Eastern alleges that Romero’s responsibilities were consolidated and her

position was eliminated as part of a RIF and at the direction of more senior management,

specifically including Hadassa Fyffe. The problem for Randle Eastern is, the only documentary

evidence that refers to Romero’s position specifically references her imminent return from

FMLA leave and states that Burgman wanted to make the temporary position permanent because

“it is being done well now and is under control.” Burgman also admits it was being done well

and was under control under Romero pre-FMLA leave. Like the letter in Strickland,

conspicuously absent from Burgman’s July 31, 2008 email is any reference whatsoever to the

purportedly legitimate reasons Randle Eastern has put forth in its Motion. This inconsistency

creates a genuine issue of material fact and would permit a reasonable jury to reject Randle

Eastern’s affirmative defense.

In Connor, 546 F. Supp. 2d at 1366, the district court denied summary judgment despite

the employer’s evidence that the employee was terminated after several of her direct reports were




transferred and the employer determined that other employees could absorb the plaintiff’s

functions while she was on FMLA leave. In Nocella v. Basement Experts of America, 499 F.

Supp. 2d 935 (N.D. Ohio 2007), summary judgment was denied with eerily similar facts. There,

while the employee was on FMLA leave, the employee’s supervisor resigned and the small

portion of her work (constituting 25% or less) that came from the supervisor had disappeared

because the supervisor’s replacement did not need the same services. Id. at 941. The remaining

75% or more of her work was distributed permanently to the two other employees who were

temporarily covering her duties while she was on FMLA leave. Id. The district court rejected

the employer’s argument that the employee’s position was eliminated because of the unrelated

resignation of her supervisor. Id. at 941-42. Finally, in Chester v. Quadco Rehabilitation Ctr.,

484 F. Supp. 2d 735, 738 & 740-41 (N.D. Ohio 2007), summary judgment was denied despite

the employer’s substantial evidence that it had been having financial difficulties for years, that

several employees were terminated through several rounds of layoffs, that the elimination of

plaintiff’s position had been discussed as part of a restructuring many months before he

requested FMLA leave and that plaintiff’s position was highly duplicative of other positions.

Randle Eastern relies primarily on O’Connor v. PCA Family Health Plan, Inc., 200 F.3d

1349 (11th Cir. 2000) and Yashenko v. Harrah’s NC Casino Co., LLC, 446 F.3d 541 (4th Cir.

2006) to support its affirmative defense. But these two cases are easily distinguished from the

facts here. First, in O’Connor, the Eleventh Circuit affirmed a trial verdict, not summary

judgment,13 and concluded that the employer “slated [plaintiff] for termination as part of the first

phase of its RIF, the legitimacy of which [plaintiff] has never challenged.” 200 F. 3d at 1354-55.

Unlike the facts here, the employer in O’Connor presented documentation that the plaintiff was

included on a list of 190 employees selected for termination. Id. at 1351.

Second, in Yashenko, the employee never challenged the employer’s argument that the

position was scheduled for elimination before he left on FMLA leave and instead he erroneously

argued that the FMLA creates an “absolute entitlement to restoration.” 446 F.3d at 547 & 550.

Unlike Randle Eastern, the employer in Yashenko offered “affidavits, deposition testimony,

internal memos, emails, letters and other documents” showing that “the finance department had

suggested a reorganization that would eliminate [plaintiff’s] position” even before plaintiff

13 Randle Eastern purposefully omitted O’Connor’s procedural posture in its Motion.




requested his FMLA leave and that final decision to eliminate the position was made “two

months prior to [plaintiff’s] request for leave.” Id.

Randle Eastern’s three secondary cases are similarly unpersuasive. First, in Smith v.

Goodwill Indust. of West Michigan, Inc., 622 N.W.2d 337 (Mich. Ct. App. 2001), the Michigan

Court of Appeals, in a case of first impression, improperly held that the McDonnell Douglas

protocol is used for interference claims under the FMLA and that “intent” is relevant. Id. at 443-

447. Nowhere did Randle Eastern point out that Smith analyzed the claims from a perspective

that has been categorically rejected by the Eleventh Circuit. Second, in Sauer v. McGraw-Hill

Cos., 2001 WL 1250099 (D. Colo. Jun. 12, 2001) (unreported), the district court first noted that

it was not clear whether the employer or employee carried the burden of proof (and thus its

analysis was structurally flawed), id. at *16, n.7., and that “plaintiff d[id] not respond directly to

defendants contentions” that it would have eliminated her position anyway. Id. at *16. There,

the company announced a reorganization that impacted several employees, id. at *2, and the

employee’s primary concern was that the company did not do enough to find her a replacement

position. Finally, Burke v. J.B. Hunt Transport Servs., Inc., 2006 WL 250711 (N.D. Ill. Jan. 30,

2006) (unreported) is wholly unpersuasive because it applied Seventh Circuit law, which, in

express conflict with virtually every other circuit, including the Eleventh, holds that § 825.216 is

not an affirmative defense. Id. at *5, n.5. There, the employee never challenged the employer’s

evidence that the position was eliminated “due to the renegotiation of [a] contract” and thus

failed to meet her burden.

Randle Eastern’s inability to cite even a single Eleventh Circuit case (or district court

case within the Eleventh Circuit’s jurisdiction) is telling, and its exclusive reliance on unreported

and state court decisions from jurisdictions that expressly conflict with the Eleventh Circuit is

even more telling.14 Here in the Eleventh Circuit, evidence that an employer would have

eliminated a position even absent the employee’s proper FMLA leave creates a jury question and

Randle Eastern will have the opportunity to persuade the jury on its affirmative defense where it

carries the burden of proof.

14 Randle Eastern’s reliance on unreported and foreign opinions, and its refusal to even acknowledge binding Eleventh Circuit case law to the contrary, comes dangerously close to violating counsel’s duty of candor toward the tribunal. See Rule 4-3.3 of The Florida Bar’s Rules of Professional Conduct.




III. ROMERO WILL PREVAIL ON HER RETALIATION CASE

Romero has ample evidence that Randle Eastern retaliated against her for taking FMLA

leave. See Martin, 543 F.3d at 1268 (reversing because the employer did not meet the “high

standard” of presenting “a reason that no reasonable jury could conclude was pretextual.”).

Quixotically, Randle Eastern does not actually challenge Romero’s prima facie case except to

state conclusively that “Romero cannot do so because no such evidence exists.” Motion, p. 11.

Randle Eastern then tersely concludes that Romero cannot overcome its legitimate justification

for termination, namely, the elimination of her position “in connection with a reduction in force.”

Id.

Randle Eastern’s one sentence argument that Romero cannot establish a prima facie case

is patently frivolous – Romero engaged in statutorily protected activity when she took FMLA

leave, she suffered an adverse employment action when she fired, and the two are causally

related because her duties were taken away from her while she was on FMLA leave and she was

terminated days after returning from FMLA leave with nothing to do. See Martin, 543 F.3d at

1268 (reversing summary judgment because “the close temporal proximately between the two –

[employee] was terminated while on FMLA leave – is more than sufficient to create a genuine

issue of material fact of causal connection.”).

As stated more fully above, Randle Eastern’s fabricated “reduction in force” argument is

its bad faith attempt to “game the system” by taking an adverse employment action that it was

prohibited from taking and then “backdooring” its action into its purported restructuring. There

is no evidence of a legitimate RIF and no evidence that Romero was slated for termination or

that her position was slated for elimination. Indeed, Randle Eastern’s own evidence proves that

no RIF occurred, and that Romero’s position was not actually eliminated.




IV. JAYME BURGMAN IS ROMERO’S EMPLOYER

Burgman is Romero’s employer within the meaning of the FMLA because he is a “person

who acts, directly or indirectly, in the interest of the employer to any of the employees of such

employer.” 29 U.S.C. § 2611(4)(A)(ii)(I).15 Individual liability under the FMLA is identical to

individual liability under the Fair Labor Standards Act and is construed “expansively” to provide

access to the remedy. See Wascura v. Carver, 169 F.3d 683, 685 (11th Cir. 1999).

Notwithstanding Randle Eastern’s unreported foreign decisions to the contrary, the plain

language of an unambiguous statute is controlling in this jurisdiction. See, e.g., Nowak v.

Lexington Ins. Co., 464 F. Supp. 2d 1248 (S.D. Fla. 2006) (Moreno, J.).

Burgman testified that he is now “Director of Florida Operations,” and was formerly

“Director of Finance for the Atlantic Coast Division” for AMR (not Randle Eastern). (AMF, at ¶

49).16 He further admitted that he “ultimately, made the decision to eliminate her position,” and

that he had full “authority” to make the decision without consulting any higher managers or

officers. Id. Accordingly, a reasonable jury could, and likely will, conclude that Burgman is a

“person who act[ed] . . . in the interest of [Randle Eastern”] when he terminated Romero in

violation of the FMLA.

Conclusion

For the reasons stated above, this Court should deny Defendants’ Motion for Summary

Judgment.

Respectfully submitted,

___/s/ Matthew Sarelson_____ Matthew Seth Sarelson, Esq. Fla. Bar No. 888281

Michael A. Shafir, Esq. Fla. Bar No. 660671 SARELSON & SHAFIR LLP 1401 Brickell Avenue, Suite 510 Miami, Florida 33131 305-379-0305 800-421-9954 (fax)

15 Romero concedes that co-defendant Gregory Jones is not an “employer” within the meaning of the FMLA because he is just a low-level “yes” man. 16 Although Randle Eastern never filed a corporate disclosure statement pursuant to Rule 7.1, it testified in an interrogatory that it is wholly owned by American Medical Response, Inc., which is then wholly owned by Emergency Medical Services Corporation, which is publicly traded on the New York Stock Exchange under ticker symbol EMS. See Exhibit A.






CERTIFICATE OF SERVICE I HEREBY CERTIFY that on February 20, 2009, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the forgoing document is being served this day on all counsel of record or pro se parties identified on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notices of Electronic Filing. ___/s/ Matthew Sarelson_________ Matthew Seth Sarelson, Esq.

Service List Case No.: 08-23179-civ-MORENO/TORRES

Matthew Seth Sarelson, Esq. Fla. Bar No. 888281 Michael A. Shafir, Esq. Fla. Bar No. 660671 SARELSON & SHAFIR LLP 1401 Brickell Avenue, Suite 510 Miami, Florida 33131 305-379-0305 800-421-9954 (fax) [email protected] [email protected] Counsel for Plaintiff Richard D. Tuschman, Esq. Fla. Bar No. 907480 Jennifer L. Poole, Esq. Fla. Bar No. 608661 EPSTEIN BECKER AND GREEN PC Wachovia Financial Center 200 S. Biscayne Blvd, Suite 4300 Miami, Florida 33131 305-579-3250 305-579-3201 (fax) [email protected] [email protected]

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Romero v Randle Eastern Response to MSJ