JOY FLOWERS CONTI, Chief District Judge.
Pending before the court in this employment action is a motion for new trial and partial judgment as a matter of law filed by plaintiff Jamie Lichtenstein ("plaintiff"). (ECF No. 112.) Plaintiff sued her employers, defendants University of Pittsburgh Medical Center, UPMC Presbyterian Shadyside, UPMC Braddock, and Deborah Lidey ("Lidey" and collectively with the other defendants, "defendants"), for firing her in violation of the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq. (ECF No. 10.) This case was tried before a jury, which rendered its verdict in favor of defendants on March 5, 2013. (ECF No. 109.) For the reasons set forth in this memorandum opinion, plaintiff's motion will be denied because she did not establish grounds warranting a new trial or a partial judgment as a matter of law under either Federal Rule of Civil Procedure 50(b) or 59(a)(1)(A).
II. Procedural History
On October 6, 2009, plaintiff filed a two-count complaint alleging defendants denied her leave of absence and wrongfully discharged her in violation of the FMLA. (ECF No. 1.) The basis of plaintiff's complaint is that she was fired on January 10, 2008, for calling off work on January 3, 2008, to take care of her ailing mother, an absence plaintiff argues was protected under the FMLA. Plaintiff asserted her claim for denial of leave of absence under 29 U.S.C. § 2615(a)(1), which makes it unlawful for an employer to interfere with an employee's exercise of his or her rights under the FMLA. (Id. ¶ 30; Callison v. Phila. , 430 F.3d 117, 119 (3d Cir. 2005).) Plaintiff asserted her claim for wrongful discharge under 29 U.S.C. § 2615(a)(2), which makes it unlawful for an employer to retaliate against an employee for exercising his or her rights under the FMLA. (ECF No. 1 ¶ 37; Callison , 430 F.3d at 119.)
On December 14, 2009, defendants filed an answer to the complaint asserting that, among other things, plaintiff was fired "because of excessive lateness and absenteeism." (ECF No. 6 at 3.) On January 11, 2010, plaintiff filed an amended complaint asserting the same claims raised in the original complaint. (ECF No. 10.) On January 25, 2010, defendants filed an answer to the amended complaint. (ECF No. 15.) On September 17, 2010, defendants with leave of court filed an amended answer. (ECF No. 25.)
On February 25, 2011, defendants filed a motion for summary judgment with respect to both claims asserted against them. (ECF No. 34.) On April 7, 2011, plaintiff filed a brief in opposition to defendants' motion for summary judgment. (ECF No. 42.) On August 3, 2011, the court granted defendants' motion for summary judgment in its entirety. (ECF Nos. 53, 54.) Plaintiff appealed the court's decision. The Third Circuit Court of Appeals vacated the decision of the district court and remanded the case for further proceedings because genuine issues of material fact existed with respect to whether (1) plaintiff's notice of FMLA-leave was adequate under the FMLA; (2) defendants considered plaintiff's exercise of her FMLA rights as a negative factor in her termination; and (3) defendants' legitimate, non-retaliatory reason for firing plaintiff was pretext for retaliation. Lichtenstein v. Univ. of Pgh. Med. Cntr. , 691 F.3d 294, 306-12 (3d Cir. 2012).
The parties prior to the start of trial filed various motions in limine. (ECF Nos. 74, 76, 83, 84.) On February 1, 2013, the court heard argument on the motions in limine. The court on motion by defendants dismissed plaintiff's claim for interference asserted under 29 U.S.C. § 2615(a)(1). On February 25, 2013, a jury trial commenced, and plaintiff's claim for retaliation asserted under 29 U.S.C. § 2615(a)(2) was tried before a jury. On March 5, 2013, the jury found in favor of defendants, i.e., the jury found defendants did not terminate plaintiff's employment in violation of her rights under the FMLA. (ECF No. 109 at 1.)
On April 3, 2013, plaintiff filed a motion for new trial and partial judgment as a matter of law and a brief in support of that motion, pursuant to Federal Rules of Civil Procedure 50(b) and 59(a)(1)(A). (ECF Nos. 112, 113.) On April 29, 2013, defendants filed a response in opposition to plaintiff's post-trial motion. (ECF No. 120.) Plaintiff's post-trial motion having been fully brief is now ripe to be decided by the court.
III. Standards of Review
Plaintiff asserts her motion for new trial under Federal Rules of Civil Procedure 50(b) and 59(a)(1)(A). Rule 50(b) provides:
(b) Renewing the Motion After Trial; Alternative Motion for a New Trial. If the court does not grant a motion for judgment as a matter of law made under Rule 50(a), the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion. No later than 28 days after the entry of judgment-or if the motion addresses a jury issue not decided by a verdict, no later than 28 days after the jury was discharged-the movant may file a renewed motion for judgment as a matter of law and may include an alternative or joint request for a new trial under Rule 59. In ruling on the renewed motion, the court may:
(1) allow judgment on the verdict, if the jury returned a verdict;
(2) order a new trial; or
(3) direct the entry of judgment as a matter of law.
FED. R. CIV. P. 50(b). Under Rule 50(b), the court must determine "whether viewing the evidence in the light most favorable to the nonmovant and giving it the advantage of every fair and reasonable inference, there is insufficient evidence from which a jury reasonably could find liability.'" Eshelman v. Agere Sys., Inc. , 554 F.3d 426, 433 (3d Cir. 2009) (quoting Lightning Lube, Inc. v. Witco Corp. , 4 F.3d 1153, 1166 (3d Cir. 1993)). "Although judgment as a matter of law should be granted sparingly, [the court shall] grant it where the record is critically deficient of the minimum quantum of evidence' in support of the verdict." Eshelman , 554 F.3d at 433 (quoting Gomez v. Allegheny Health Servs., Inc. , 71 F.3d 1079, 1083 (3d Cir. 1995)). The Third Circuit Court of Appeals has instructed that "[i]n performing this narrow inquiry, [the court] must refrain from weighing the evidence, determining the credibility of witnesses, or substituting [its] own version of the facts for that of the jury.'" Eshelman , 554 F.3d at 433 (quoting Marra v. Phila. House. Auth. , 497 F.3d 283, 300 (3d Cir. 2007)).
Rule 59 "addresses motions for a new trial under 59(a) or to alter or amend a judgment under 59(e)." Graboff v. Colleran Firm, Civ. No. 10-17-10, 2013 WL 1286662, at *14 (E.D. Pa. Mar. 28, 2013). Rule 59(a)(1)(A) provides:
(a) In General.
(1) Grounds for New Trial. The court may, on motion, grant a new trial on all or some of the issues-and to any party-as follows:
(A) after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court; FED. R. CIV. P. 59(a). "A new trial may be granted when the verdict is contrary to the great weight of the evidence; that is where a miscarriage of justice would result if the verdict were to stand' or when the court believes the verdict results from jury confusion." Brown v. Nutrition Mgmt. Servs. Co. , 370 F.Appx. 267, 268-70 (3d Cir. 2010) (quoting Pryer v. C.O. 3 Slavic , 251 F.3d 448, 453 (3d Cir. 2001)).
Plaintiff argues she is entitled to a judgment as a matter of law under Federal Rule of Civil Procedure 50(b) with respect to the adequacy of the notice plaintiff gave to defendants concerning her need for FMLA leave. Plaintiff also argues she is entitled to a new trial under Federal Rule of Civil Procedure 59(a)(1)(A) because the court erred when it: (1) dismissed plaintiff's claim for interference; (2) instructed the jury with respect to the "same decision" defense under the mixed-motive framework; (3) denied plaintiff's request for three specific jury instructions; and (4) denied plaintiff's oral motion for judgment as a matter of law with respect to the adequacy of the notice plaintiff gave to defendants concerning her need for FMLA leave. The court will address each of these arguments below.
A. Plaintiff is not entitled to a judgment as a matter of law with respect to the adequacy of the notice plaintiff gave to defendants concerning her need for FMLA leave, and the court did not at trial err when it denied plaintiff's oral motion for judgment as a matter of law with respect to plaintiff's notice of need for FMLA-leave.
In the court of appeals' decision in this case, it held that "the adequacy of Lichtenstein's notice [was] a question of fact." Lichtenstein , 691 F.3d at 304. The court explained that the "critical test' is not whether the employee gave every necessary detail to determine if the FMLA applies, but how the information conveyed to the employer is reasonably interpreted.'" Id . at 303 (quoting Sarnowski v. Air Brooke Limousine, Inc. , 510 F.3d 398, 402 (3d Cir. 2007)). The court noted that "[h]ow the employee's notice is reasonably interpreted is generally a question of fact, not law." Lichtenstein , 691 F.3d at 303. The court determined that the trier-of-fact, considering the totality of the evidence, could find the notice Lichtenstein provided to the nursing supervisor was adequate. The court explained:
Finally, in considering the adequacy of Lichtenstein's notice, we find it instructive to compare the information she conveyed with the guidance provided in 29 C.F.R. § 825.303(b). According to this regulation, an employee whose family member has a serious health condition may provide adequate notice by stating that the "family member is under the continuing care of a health care provider, " or, that the family member has a condition that renders her "unable to perform daily activities." Id . A trier-of-fact could reasonably conclude that the information conveyed by Lichtenstein did both. Lichtenstein stated that her mother was still at the hospital, which implies "continuing care, " and it could be reasonably inferred that a person brought by ambulance to an emergency room and remaining at the hospital is "unable to perform daily activities."
Id. at 305. The court determined that the trier-of-fact could also find that, based upon the totality of the evidence, plaintiff's notice to the nursing supervisor was not adequate under the FMLA. The court commented:
Of course, a trier-of-fact could also consider Lichtenstein's failure to provide any further information to UPMC about her mother's condition when she returned to work the very next day. Lichtenstein was not necessarily obligated, however, to provide additional information. The regulations state that if an employee's initial notice reasonably apprises the employer that FMLA may apply, it is the employer's burden to request additional information if necessary. 29 C.F.R. § 825.303(a). Thus, since we believe there is a genuine dispute about whether Lichtenstein's phone call to the nursing supervisor met this standard, her failure to provide further information on the following day at work does not defeat her claim at this stage.
Id. (emphasis added). The court denied defendants' motion for summary judgment based upon its determination that a reasonable jury could find plaintiff's notice was adequate under the FMLA.
At trial, plaintiff testified that she called the nursing supervisor on January 3, 2008, and informed the nursing supervisor that her mother was taken by ambulance to the emergency room and that plaintiff could not work that day. At the close of evidence, plaintiff requested a judgment as a matter of law with respect to the issue of notice under the FMLA, i.e., plaintiff argued a reasonable jury could only find that plaintiff's notice to defendants was adequate under the FMLA. The court denied plaintiff's motion finding that based upon the evidence, the jury could find the information plaintiff conveyed to defendants was not sufficient to allow defendants to determine reasonably whether the FMLA may apply to plaintiff's request.
Defendants in this case do not dispute that on January 3, 2008, plaintiff told the nursing supervisor that her mother was taken to the emergency room by ambulance. (T.T. 3/4/13 (ECF No. 112-1) at 66.) Defendants and plaintiff disagree, however, about the import of that evidence. Plaintiff argues that based upon the information she relayed to the nursing supervisor, the jury could only find plaintiff provided defendants information sufficient to allow defendants to determine reasonably that the FMLA may apply to her request for leave on January 3, 2008. Defendants argue that in accordance with the court of appeals' ruling, which was based upon testimony plaintiff gave at her deposition and is identical to plaintiff's testimony at trial, the jury could find that the information plaintiff conveyed to defendants was not sufficient to allow defendants to determine reasonably whether the FMLA may apply to plaintiff's absence on January 3, 2008.
Viewing the evidence in the light most favorable to defendants, the court agrees with defendants; the evidence, viewed in the light most favorable to defendants, was sufficient for the jury to find plaintiff's notice was not sufficient to allow defendants to determine reasonably whether the FMLA may apply to plaintiff's absence on January 3, 2008. Plaintiff told the nursing supervisor her mother was taken to the hospital by ambulance on January 3, 2008, but plaintiff returned to work the next day and did not mention her mother's condition to defendants. This evidence is probative of whether defendants reasonably believed prior to terminating plaintiff that plaintiff's absence on January 3, 2008 was protected by the FMLA. Based upon the foregoing, plaintiff is not entitled to a new trial under Federal Rule of Civil Procedure 59 because the court did not err when it denied plaintiff's request for a judgment as a matter of law with respect to the adequacy of the notice plaintiff gave to defendants under Federal Rule of Civil Procedure 50. Plaintiff's post-trial motion with respect to the adequacy of notice will, therefore, be denied.
B. The court did not err when it dismissed plaintiff's claim for interference.
Plaintiff in the first amended complaint asserted claims for interference and retaliation against defendants. Prior to trial, however, defendants filed a motion in limine in which they argued plaintiff's interference claim should be dismissed because it was redundant to her retaliation claim. (ECF No. 75.) Plaintiff argued her "interference claim [was] readily distinguishable and premised on a different theory of recovery than her retaliation claim, " and should not be dismissed as redundant. (ECF No. 90 at 1.) The court granted defendants' motion and commented:
The problem I have here is that [plaintiff] was not denied taking her leave on January 3rd or January 8th. So the way it's framed now, she wasn't - her rights to take those leaves on those days were not interfered with.
The Court of Appeals noted in the decision in this very same case that it wasn't clear whether or not the plaintiff would have an automatic right to an interference claim when that claim is so clearly redundant to the retaliation claims. The court then cited to various circuits which have found redundancy and permitted only the retaliation claim to go forward, but felt that the plaintiff would have met the harder burden under the retaliation claim and so did not really address it.
(H.T. 2/1/13 (ECF No. 121) at 2.) The court's reference to the court of appeals' decision in this case was to the following passage:
It is not clear to us that Erdman necessarily guarantees that plaintiffs have an automatic right to claim interference where, as here, the claim is so clearly redundant to the retaliation claim. In recent years, several federal courts of appeals have affirmed dismissal of interference claims that-although not necessarily analogous to Lichtenstein's claim here-were duplicative of the plaintiffs' retaliation claims. E.g., Lovland , 674 F.3d at 811-12; Seeger v. Cincinnati Bell Telephone Co. , 681 F.3d 274, 282-83 (6th Cir.2012); Stallings v. Hussmann Corp. , 447 F.3d 1041, 1051 (8th Cir.2006); see also Atchison v. Sears , 666 F.Supp.2d 477, 489 (E.D.Pa.2009) ("[Plaintiff's] interference claim is identical to his retaliation claim, and premised on the same allegation.... He cannot escape the McDonnell Douglas analysis to prove his case merely by affixing an interference' label to one of his duplicative claims. Thus, [plaintiff's] FMLA violation allegations should be analyzed as a retaliation claim."). Since this issue was not raised below nor presented on appeal, we do not address it here.
Lichtenstein , 691 F.3d at 311. Decisions cited by the court of appeals in this passage, i.e., Seeger v. Cinncinati Bell Telephone Co., LLC , 681 F.3d 274 (6th Cir. 2012), Lovland v. Employers Mutual Casualty Co. , 674 F.3d 806 (8th Cir. 2012), and Stallings v. Hussman Corp. , 447 F.3d 1041, 1051 (8th Cir. 2006), are in accord with this court's decision in this case to dismiss plaintiff's claim for interference.
In Stallings, the court held that when a plaintiff is fired after taking and completing FMLA-leave, he or she may sue the employer for retaliation, but not interference, under the FMLA. Stallings , 447 F.3d at 1051. The court noted that "[a]lthough in some circumstances, a given set of facts will fall clearly into either (a)(1) or (a)(2), it appears that the lines between the two categories are not hard and fast.'" Id . (quoting Dillaway v. Derrante, Civ. No. 02-715 , 2003 WL 23109696, at *5 (D. Minn. Dec. 9, 2003)). The court explained:
In the present case, we conclude that the district court did not improperly analyze Stalling's FMLA claim as one of retaliation instead of interference. First, Hussmann granted every request Stallings made to take FMLA leave; therefore, Stallings has failed to establish that Hussmann and Groninger denied him a benefit to which he was entitled because he received all of the FMLA leave he requested. With regard to Groninger, Stallings failed to present evidence that Groninger was involved in the decision to terminate him. Second, neither Hussmann nor Groninger ever impeded Stallings's use of FMLA leave. Third, only after Stallings returned from FMLA leave did Hussmann question whether Stallings fraudulently used his FMLA leave and fire Stallings. Therefore, Stalling's claim is fundamentally a claim for retaliation and should be analyzed as such.
Stallings , 447 F.3d at 1051. In Lovland and Seeger, the courts relied upon Stallings to conclude that when an employee "received all of the FMLA leave to which he was entitled, " and the employer "did not shortchange his leave time, deny reinstatement, or otherwise interfere with his substantive FMLA rights, " the employee cannot sue the employer for interference. Seeger , 681 F.3d at 283; Lovland , 674 F.3d at 811-12.
Like the plaintiffs in Stallings, Lovland, and Seeger, plaintiff took FMLA leave, i.e., she did not report to work on January 3, 2008, and then returned to work upon completion of leave. Plaintiff alleges she was fired after she (1) made her request for FMLA leave, (2) completed leave, and (3) returned to work. Under those circumstances, and in accord with the reasoning of the Courts of Appeals for the Sixth and Eighth Circuits, plaintiff's claim is one for retaliation and not interference.
In plaintiff's motion for a new trial, however, she relies upon the different burdens of proof for claims of interference and retaliation to support of her argument that her interference claim should have been submitted to the jury. A difference in burdens of proof, however, is not a valid reason to instruct a jury on a claim for interference if in form and substance it is a claim for retaliation; indeed, in Stallings, Seeger, and Lovland, the courts acknowledged that an employee must prove intent for a retaliation claim, but not for an interference claim. This distinction did not change the courts' decisions that when an employee is fired after exercising his or her rights to FMLA leave, the claim is one for retaliation and not interference.
Plaintiff relies upon 29 C.F.R. § 825.220(c) in further support of her argument that this court erred when it did not submit her interference claim to the jury. (ECF No. 113 at 11.) Section 825.220(c) provides:
(c) The Act's prohibition against interference prohibits an employer from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise FMLA rights. For example, if an employee on leave without pay would otherwise be entitled to full benefits (other than health benefits), the same benefits would be required to be provided to an employee on unpaid FMLA leave. By the same token, employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under no fault attendance policies. See § 825.215.
29 C.F.R. § 825.220(c). This regulation, however, is not at odds with the court's holding in Stallings that when an employee is fired after completing FMLA leave, he or she may not maintain an action for interference under § 2615(a)(1). In Stallings, the court recognized that some factual scenarios may give rise to a claim for interference under § 2615(a)(1) and a claim for retaliation under § 2615(a)(2). For example, in Erdman v. Nationwide Insurance Co. , 582 F.3d 500 (3d Cir. 2009), the Third Circuit Court of Appeals held "that firing an employee for a valid request for FMLA leave may constitute interference with the employee's FMLA rights as well as retaliation against the employee." Erdman , 582 F.3d at 509. Under those facts, i.e., when an employer fires an employee after he or she requests FMLA leave, but before he or she completes leave, the employer interfered with the employee taking leave because he or she was fired prior to commencing leave and the employer retaliated against the employee for requesting such leave. As the court of appeals cautioned in this case, "[i]t is not clear... that Erdman necessarily guarantees that plaintiffs have an automatic right to claim interference where... the claim is so clearly redundant to the retaliation claim." Lichtenstein , 691 F.3d at 311. This statement is consistent with the court's concerns in Stallings that while some claims may be asserted under either the interference or retaliation provisions, when an employee is fired after requesting and completing FMLA leave, the employee's claim is fundamentally a retaliation claim and interference claims based upon the same facts should be dismissed. Under those circumstances, the court's decision to dismiss plaintiff's interference claim is not at odds with 29 C.F.R. § 825.220(c) and is in accord with the decisions cited by the court of appeals in this case.
Plaintiff alleges she exercised her rights to take FMLA-protected leave, and then was fired for doing so. These facts support a claim for retaliation under § 2615(a)(2)-not interference under § 2615(a)(1). The court, therefore, did not error when it declined to instruct the jury on an interference claim. Plaintiff's motion for new trial will be denied with respect to her argument that the court erred by dismissing her claim for interference.
C. The court did not err when it instructed the jury with respect to the "same decision" defense under the mixed-motive framework.
During pretrial motions in this case, the court determined the mixed-motive framework applied to plaintiff's claim for retaliation under the FMLA. In Price Waterhouse v. Hopkins , 490 U.S. 228 (1989), the Supreme Court held:
once a "plaintiff in a Title VII case proves that [the plaintiff's membership in a protected class] played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken [that factor] into account."
Gross v. FBL Financial Services, Inc. , 557 U.S. 167, 174-75 (2009) (quoting Price Waterhouse , 490 U.S. at 258). Stated another way, "if the defendant initiated an allegedly adverse employment action as the result of both permissible and impermissible motives, the burden of persuasion shifts to the defendant to demonstrate that it would have taken the adverse action notwithstanding the improper motive." Smith v. Allentown , 589 F.3d 684, 690 (3d Cir. 2009) (citing Price Waterhouse , 490 U.S. at 244-45). "This burden-shifting framework has become known as the mixed-motive doctrine." Smith , 589 F.3d at 690. The Third Circuit Court of Appeals has applied the mixed-motive framework to claims asserted under the FMLA. See e.g., Conoshenti v. Pub. Serv. Elec. & Gas Co. , 364 F.3d 135, 147 (3d Cir. 2004).
On March 4, 2013, plaintiff out of the presence of the jury moved for a judgment as a matter of law with respect to defendants' affirmative defense "that plaintiff's employment would have been terminated regardless of any request for FMLA leave." (T.T. 3/4/13 (ECF No. 119) at 63-53.) Counsel for plaintiff argued:
It is plaintiff's position that there is no evidence to support that defense, and as an affirmative defense, the jury would only consider that argument after they had determined that a negative factor was the January 3rd absence. We don't believe there's any evidence from which this jury could find that the same decision would have been made anyway because if the January 3rd absence wasn't the last straw, there's no evidence that the decision maker would have considered Ms. Lichtenstein's employment without that last straw.
(Id.) The court denied plaintiff's motion, explaining:
It's really a point for argument. There was evidence, particularly when you consider her performance issues, there was the one correspondence from... Cindy Krautz to Ms. Lidey basically complaining about these things and talking about terminating her. And the response was: Before the holidays? So, I think there's enough there to say that there were other factors as well....
It's based upon the other evidence coming in about the performance issues that the tardiness wasn't the sole cause of that, that would have been taken anyway. It is somewhat of a close question, though, I will state for the record. I think there is some evidence, it will be for the parties to argue the weight.
(Id. at 64-65.) The court instructed the jury with respect to the mixed motive framework as follows:
If you find that the plaintiff has shown that her taking or requesting leave was a negative factor in the decision to terminate her employment, you must then consider whether defendants have demonstrated by a preponderance of the evidence that they would have taken the same action, i.e., terminated the plaintiff's employment even if they did not use plaintiff's taking or requesting leave as a negative factor. If you find that the defendants would have terminated plaintiff's employment ...