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December 18, 2002


The opinion of the court was delivered by: Jerome B. Simandle, District Judge


The Family and Medical Leave Act assures eligible employees that they will be able to take up to twelve weeks of needed medical leave in a year without losing their jobs. In this case, plaintiff Cora C. Parker alleges that her former employers, Hahnemann University Hospital, Tenet Healthcare Corporation, Tenet Healthsystem Hahnemann, LLC, Tenet Health Philadelphia, Inc., and John Does I to X, violated her rights under the Family and Medical Leave Act, 29 U.S.C. § 2601, ("FMLA"), when they discharged her when she returned from an approved medical leave. Presently before the Court are plaintiff's motion for summary judgment and defendants' cross-motion for summary judgment pursuant to Rule 56, Fed.R.Civ.P. These cross-motions require the Court to delineate the parties' respective burdens of proof for the two types of FMLA violations alleged, one brought under the entitlement theory and one under the retaliation theory, which presents an interesting and unsettled question of law. The ultimate issues to be resolved are (1) whether defendants deprived plaintiff of her right to reinstatement under the FMLA, and (2) whether defendants eliminated the position as retaliation against plaintiff for taking FMLA leave. For reasons discussed herein, the Court finds that questions of material fact remain on both issues and this Court will deny both motions for summary judgment.


Plaintiff, Cora C. Parker, a licensed and certified nurse in New Jersey and Pennsylvania, was employed by defendants in 1983 as a critical care nurse in the neurological surgical intensive care unit at Hahnemann University Hospital. ("Hahnemann") (Compl. ¶¶ 8, 11; Pl.'s Statement of Facts ¶ 2.) Sometime around 1986, plaintiff became a critical care nurse in Hahnemann's trauma unit and then around 1998, she became a part-time relief shift director. (Compl. ¶¶ 12, 13; Pl.'s Statement of Facts ¶ 3; Defs.' Statement of Facts ¶ 28.)

In November 1998, Tenet HealthSystem, Philadelphia, Inc., assumed operational control of the Hahnemann Hospital and offered plaintiff continued employment, which she accepted. (Scenna Cert., Ex. A.) About six months later, in May 1999, plaintiff assumed the duties of a new pilot position called bed chief, (Pl.'s Statement of Facts ¶¶ 4, 5), and in July 1999, the bed chief job became a full-time position, (Id. ¶ 5). As bed chief, plaintiff maintained the status of beds, ensured timely transfers of patients, placed admissions, and communicated with hospital units and the admissions office. (Defs.' Statement of Facts ¶ 29; Pl.'s Counterstatement of Facts ¶ 29.) The Senior Directors of Nursing, Leslie McChesney and Patricia Hushen, told plaintiff that the bed chief position was "here to stay" because the administration and the physicians were happy with it. (Pl.'s Statement of Facts ¶ 6.)

In March 2000, plaintiff became physically unable to perform her job duties as a result of a serious health condition, so she requested medical leave pursuant to the FMLA. (Id. ¶¶ 7, 8.) Defendants granted plaintiff's request for leave commencing March 20, 2000. (Id. ¶ 9.) When plaintiff left for her FMLA leave, the bed chief job was a full-time, Monday through Friday, 8:00 a.m. to 4:00 p.m., position. (Id. ¶ 18.)

The parties do not dispute that plaintiff was never told that her bed chief position was going to be eliminated or changed in any way while she was on FMLA leave. (Pl.'s Statement of Facts ¶ 12.) However, the parties do dispute whether plaintiff was aware when she left on FMLA leave that the bed chief job was a temporary job subject to change. Defendants say that plaintiff's supervisor, Sherri Shields, Senior Nursing Director, approached plaintiff in March 2000 before her leave to talk about restructuring the bed chief position to add staffing duties to it. (Defs.' Statement of Facts ¶ 32.) Defendants say that plaintiff "voiced her opposition" to the restructuring, but ultimately agreed that a bed chief could handle additional staffing duties. (Id. ¶¶ 32, 33.) Defendants say that the nursing directors continued to discuss the restructuring of the position at weekly meetings during plaintiff's leave, and that they finally decided the week before plaintiff returned to work that the position should be eliminated. (Id. ¶¶ 35, 36.) They say that the duties of staffing and patient placement go "hand in hand" so that separating out the patient placement role by having a bed chief was not best for the hospital. (Leming Cert., Ex. D, Tr. 27:13-28:9.)

Plaintiff agrees that she was approached by Sherri Shields in March 2000 about restructuring the bed chief position, but she says that Ms. Shields told her that she would be "tak[ing] some time to evaluate" the position and that she would "just sit tight" until the plaintiff returned from leave and would pursue it further at that time. (Pl.'s Counterstatement of Facts ¶ 31.) Plaintiff says that instead of waiting for her return from FMLA leave, the nursing directors decided to eliminate her position so that she would not return. (Id. ¶ 36.)

Regardless of how it happened, plaintiff's job was eliminated. At the May 16, 2000 meeting, Human Resources Director, Maria Scenna told plaintiff about other available jobs at the hospital. (Id. ¶¶ 43-44; Defs.' Statement of Facts ¶ 42.) Plaintiff could apply for the position of unit director of oncology, could work as a relief shift director, staff nurse, or per diem staff nurse, or could contact the job posting hotline to search for another suitable position. (Pl.'s Statement of Facts ¶¶ 15, 19, 20, 21; Defs.' Statement of Facts ¶¶ 43, 44.) If she chose not to accept any of the positions, plaintiff would receive severance in the form of salary continuation for twelve weeks. (Vidal Cert., Ex. B.)

Plaintiff did not accept any of the jobs. She did not feel qualified for the position as unit director of oncology, a position that the hospital could not transfer her to unless she applied and interviewed for it in accordance with hospital policy. (Pl.'s Statement of Facts ¶ 16; Defs.' Statement of Facts ¶ 43.) She did not take the relief shift director, staff nurse, or per diem staff nurse positions because they were not full-time, daytime, Monday to Friday positions and because they were subordinate positions in status when compared to bed chief. (Pl.'s Counterstatement of Facts ¶ 44.) Plaintiff has not worked at the hospital since the May 16, 2000 meeting. (Defs.' Statement of Facts ¶ 44.)

On August 25, 2000, plaintiff filed a complaint in this Court alleging that defendants violated the FMLA by (1) failing to return plaintiff to the position she held prior to her leave, (2) failing to properly notify her that her position was being eliminated while she was on leave, and (3) failing to offer her an equivalent position upon eliminating her old one. (Compl. ¶ 25.) Plaintiff alleges that as a proximate cause of defendants' actions, she has suffered economic loss, loss of wages, loss of employment benefits, and emotional and physical pain and suffering. (Compl. ¶ 26.) Plaintiff seeks immediate reinstatement to her position as shift director/bed chief at HUH or immediate reinstatement in an equivalent position, compensatory damages in an unspecified amount, and attorneys' fees and costs related to this suit. (Id.)

On November 20, 2000, defendants filed a motion to dismiss plaintiff's FMLA claim and to compel arbitration pursuant to the terms of an employment agreement that plaintiff had signed. [Docket Item 6-1.] Defendants' motion was denied by this Court's Opinion and Order dated June 15, 2001. [Docket Items 9-1, 10-1.] Defendants filed a motion for reconsideration of the June 15th order on June 22, 2001, [Docket Item 11-1], which was denied by this Court on July 17, 2001, [Docket Item 13-1].

On June 12, 2002, plaintiff filed the present motion for summary judgment, [Docket Item 21-1], and defendants filed the present cross-motion for summary judgment, [Docket Item 24-1]. The case was referred to mediation on August 15, 2002 and all proceedings were stayed for ninety days. [Docket Item 36-1.] Mediation was not successful in resolving this dispute, so this Court will now consider the motions for summary judgment.


The Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601, et seq., was enacted to provide leave for workers whose personal or medical circumstances necessitate that they take time off from work in excess of what their employers are willing or able to provide. Victorelli v. Shadyside Hosp., 128 F.3d 184, 186 (3d Cir. 1997) (citing 29 C.F.R. § 825.101). The Act is intended "to balance the demands of the workplace with the needs of families . . . by establishing a minimum labor standard for leave" that lets employees "take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse or parent who has a serious health condition." Churchill v. Star Enters., 183 F.3d 184, 192 (3d Cir. 1999) (quoting 29 U.S.C. § 2601(b)(1), (2); S. Rep. No. 103-3 at 4).

To present a claim under the FMLA, a plaintiff must show (1) she is an eligible employee under the FMLA, (2) defendant is an employer subject to the requirements of the FMLA, (3) she was entitled to leave under the FMLA, (4) she gave notice to the defendant of her intention to take FMLA leave, and (5) the defendant denied her the benefits to which she was entitled under the FMLA. Spurlock v. NYNEX, 949 F. Supp. 1022, 1033 (W.D.N.Y. 1996); Belgrave v. City of New York, 1999 WL 692034, *44 (E.D.N.Y. Aug. 31, 1999), aff'd, 216 F.3d 1071 (2d Cir. 2000).

The parties do not dispute the first four factors; they agree that plaintiff was an eligible employee, that defendant was a covered employer, that plaintiff was entitled to FMLA leave, and that plaintiff requested FMLA leave. Their disagreement revolves around the fifth factor. Plaintiff argues that the defendant denied her the benefits to which she was entitled under the FMLA because she was not reinstated to her position or to an equivalent position when she returned from leave. Plaintiff also argues that she was denied the benefit because the defendants retaliated against her for taking FMLA leave. Defendants argue that they complied with the FMLA, eliminated plaintiff's position for legitimate reasons, and offered plaintiff equivalent positions that she chose not to take.

This Court finds that questions of fact remain about the circumstances of defendants' decision to eliminate plaintiff's job ...

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