Romero V Randle Eastern Response To MSJ

Case 1:08-cv-23179-FAM Document 33 Entered on FLSD Docket 02/20/2009 Page 1 of 20
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
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.
Page 2 of 20
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.
Page 3 of 20
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).
Page 4 of 20
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) .
Page 5 of 20
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.
Page 6 of 20
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).
Page 7 of 20
• 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.
Page 8 of 20
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
Page 9 of 20
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
9
satisfied its “heavy” burden of proving its affirmative defense “beyond peradventure.”).
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.
Page 10 of 20
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.
Page 11 of 20
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
Page 12 of 20
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.
Page 13 of 20
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).
Page 14 of 20
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
Page 15 of 20
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.
Page 16 of 20
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.
Page 17 of 20
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.
Page 18 of 20
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.
Page 19 of 20
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_________

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

Fla. Bar No. 888281
Michael A. Shafir, Esq.
Fla. Bar No. 660671
SARELSON & SHAFIR LLP
1401 Brickell Avenue, Suite 510
305-379-0305
800-421-9954 (fax)
msarelson@sarelson-shafir.com
mshafir@sarelson-shafir.com
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
305-579-3250
305-579-3201 (fax)
rtuschman@ebglaw.com
jpoole@ebglaw.com
C:\data\matt\Lazara Romero\Pleadings\Romero_MSJ_Response_Version4.doc
Page 20 of 20

Romero V Randle Eastern Response To MSJ

Enviado por

Dados do documento

Título original

Direitos autorais

Formatos disponíveis

Compartilhar este documento

Compartilhar ou incorporar documento

Opções de compartilhamento

Você considera este documento útil?

Este conteúdo é inapropriado?

Direitos autorais:

Formatos disponíveis

Romero V Randle Eastern Response To MSJ

Enviado por

Direitos autorais:

Formatos disponíveis

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

UNITED STATES DISTRICT COURT

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

RANDLE EASTERN AMBULANCE SERVICE, INC.

ROMERO’S RESPONSE IN OPPOSITION TO

I. SUMMARY JUDGMENT IN AN EMPLOYMENT CASE WHERE THE

II. ROMERO WILL PREVAIL ON HER INTERFERENCE CLAIM

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

III. ROMERO WILL PREVAIL ON HER RETALIATION CASE

IV. JAYME BURGMAN IS ROMERO’S EMPLOYER

_/s/ Matthew Sarelson___

_/s/ Matthew Sarelson_______

Matthew Seth Sarelson, Esq.

Richard D. Tuschman, Esq.

Você também pode gostar