Cobbs v. Bluemercury, Inc.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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:
ADELE COBBS, : CASE NO. 1:08-CV-1634
:
Plaintiff, :
:
vs. : OPINION
: [Resolving Doc. No. 11]
BLUEMERCURY, INC., et al., :
:
Defendants. :
:
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JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:

Plaintiff Adele Cobbs filed suit under the Family and Medical Leave Act (FMLA) and

District of Columbia Family and Medical Leave Act (DCFMLA) alleging that her former employer

Defendant Bluemercury, Inc. retaliated against her and interfered with her rights under the Acts.

Defendants Bluemercury, Inc. and its Chief Executive Officer Marla Beck and Chief Operating

Officer Barry Beck (collectively “Bluemercury”) move for summary judgment on all claims. [Doc.

11.] Plaintiff Cobbs partially opposes the motion. [Doc. 14.] Defendants have replied. [Doc. 16.]

For the following reasons, the Court GRANTS Defendants’ motion for summary judgment

on all Plaintiff’s claims.

I. Background

From April 2007 until her termination in July 2008, Plaintiff Cobbs worked at Defendant

Bluemercury, a large cosmetics retail chain with stores in several states. During her fifteen-month

employ, Cobbs was injured in two non-work-related car accidents; both required her to miss

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significant work. Cobbs says Bluemercury interfered with her rights and terminated her in retaliation

for her taking protected leave. Responding, Bluemercury says it gave Cobbs all the leave she needed

and terminated her as part of a company-wide reduction in force.

Defendant Bluemercury employed Plaintiff Cobbs as an accounts-payable coordinator at its

District of Columbia headquarters. Cobbs’s job involved posting invoices in Bluemercury’s

accounting software, reconciling checks, and communicating with vendors. [Adele Cobbs Dep. 9:7-

22, Apr. 8, 2009.] When Cobbs started in April 2007, Bluemercury was expanding at a rapid clip

and Cobbs worked long hours—often 9:00 am to 7:30 pm. [Cobbs Dep. 12:17-20.] At its peak,

Bluemercury employed three accounts payable coordinators—Adele Cobbs, Victoria Korsch, and

Michael Shafa—and an accounts payable manager—Ann Washington. [Doc. 14 at 5.]

Bluemercury’s controller, Bernie Locraft, oversaw the entire accounts payable department. [Doc.

14 at 5.]

From the get-go, Cobbs suffered serious non-work-related illnesses and injuries. In June

2007, six weeks after she started with Bluemercury, Cobbs missed two days to have a large abscess

drained and removed. [Cobbs Dep. 26:11-16.] Later that month, Cobbs injured her neck and back

in a car accident and missed three work days. [Doc. 14 at 2; Cobbs Dep. 28:17-24.] And in July,

August, and September 2007, Cobbs missed several work days to treat “internal medicine” and

cold/flu issues. [Cobbs Dep. 29:2 - 31:14, 32:18-25.]

At the time of these ailments, Cobbs had not worked the requisite one year to qualify for

FMLA and DCFMLA statutory leave. Nonetheless, Bluemercury voluntarily granted Cobbs’s

requests for time off and accommodated her in several ways. [Cobbs Dep. 22:6-11.] For example,

Cobbs had not yet accrued sick-leave time, but Bluemercury allowed her to take time off using a

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combination of paid-vacation and unpaid leave, at her choosing. [Cobbs Dep. 30:1-10, 34:1-13.]

Moreover, instead of docking her pay for missed hours, Bluemercury adjusted Cobbs’s starting time

to accommodate her car-accident-related physical therapy three to five days per week. [Cobbs Dep.

29:2 - 32:22; 37:7-13; 39:6-24.] Bluemercury voluntarily accommodated Cobbs for ten months until

her April 2008 one-year anniversary when she qualified for statutory leave. Content with her

schedule and Bluemercury’s accommodations, Cobbs continued to take voluntary leave after her

anniversary and did not formally request FMLA or DCFMLA leave. [Cobbs Dep. 40:7-12.]

In May 2008, while still attending physical therapy related to the first accident, Cobbs hurt

her neck and arm in a second car accident. [Cobbs Dep. 38:12-14.] Cobbs says she approached her

second-level supervisor Bernie Locraft and asked for an additional four or five days off but Locraft

said no:

[Cobbs]: [W]hen the second accident occurred, I told him how much time my doctor
recommended me to remain out of the office, and he said that was not acceptable,
that I would have to come in. And so what I did is I came in. I had the doctor adjust
the dates that he initially had me out of the office so that I could work, so that I could
be there. . . .

Q: And so the doctor said you were medically able to go back to work?

[Cobbs]: He said you can go, but you’re going to have to wear this brace and this
arm is going to still have to stay in the sling, and you’re just going to have to limit
what you can do.

Q. Okay. And the company accepted you back under those conditions?

[Cobbs]: Yes.

[Cobbs Dep. 89:7-90:2.] Responding, Bluemercury says Cobbs did not need these days off because

it allowed her to work in a neck brace and arm sling. [Doc. 11-1 at 7.] Bluemercury did, however,

continue to grant Cobbs intermittent leave so she could attend physical therapy. [Doc. 14 at 3.]

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After her second car accident, Bluemercury says Cobbs’s unplanned absences became more

frequent. In turn, it asked her to submit a disability certificate and a medical treatment plan. [Cobbs

Dep. 49:19 - 51:21; Ann Washington Dep. 44:9-19, Apr. 29, 2009.] Generally, Bluemercury and

Cobbs agreed that Cobbs would attend physical therapy in the morning and arrive to work between

12:00 and 1:00 pm and stay until 9:00 or 10:00 pm. [Cobbs Dep. 54:1-5; 139:2-3.]

Cobbs failed to arrive by 1:00 pm some days. As a result, Cobbs’s supervisor Ann

Washington reprimanded her for tardiness:

(1) June 6, 2008 - Tardiness: Adele, you have excess daily tardiness. The last
medical appointment submitted was for June 3, 2008. Your reporting Manager has
no schedule of medical appointments nor an expected time of arrival. Adele you are
late daily without an excuse, verbal or written. Your arrival has extended past 2 p.m.
...

(2) June 26, 2008 - Tardiness: We need you to come to work on time. As you know,
you came into work today at 1:30 pm. After submitting your medical appointment
schedule to us you committed to arrive by 12:00 noon, but not later than 1:00pm.
Your arrival times have exceeded that time recently. Your arrival time has even
extended past 2pm. You need to immediately improve your on time arrival.

[Doc. 14-9.]

Cobbs says that in the wake of her second car accident Bluemercury’s management began

to harass her. Cobbs alleges that: (1) Ann Washington scrutinized insignificant details of her

performance and undervalued her; (2) Marla Beck, Bluemercury’s CEO, did not speak to her at all

when she came into the office; (3) Barry Beck, Bluemercury’s COO, questioned her several times

in front of her coworkers as to how long she would need to be in a cast; (4) Barry Beck stopped

socializing with her; and (5) Barry Beck cancelled her parking pass. [Cobbs Dep. 64:17 - 76:17.]

As a result of this harassment, Cobbs continues, she felt pressured to forgo a scheduled physical

therapy session because the therapist’s office was unusually busy that day and it was clear that she

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could not receive therapy and arrive at work by 1:00 pm. [Cobbs Dep. 76:24 - 80:7, 80:18 - 81:19.]

Bluemercury’s former Vice President of Human Resources says that she had to remind Barry

Beck several times that Plaintiff Cobbs had the right to take FMLA and DCFMLA leave. [Doc. 14

at 10.] This former employee also says that, in her opinion, Barry Beck was frustrated with Cobbs

and “had doubts as to whether or not [Cobbs] needed the time that she was taking.” [Doc. 14 at 11.]

Beck denies that he harassed Cobbs and says he “just wanted to understand how long [her treatment]

would last, and [] I think it was our right to do so, to understand that.” [Barry Beck Dep. 8:2-15,

Apr. 9, 2009.]

On July 1, 2008, Cobbs joined a pending lawsuit against Bluemercury alleging that the

Defendants owed her and other employees overtime wages. [Cobbs Dep. 60:1-5.] On July 3 Cobbs

formally requested intermittent FMLA and DCFMLA leave. [Cobbs Dep. 71:21 - 72:3.] A week

later, Bluemercury fired her. [Cobbs Dep. 102:11-23.]

Against this backdrop, Bluemercury itself was hemorrhaging money. Bluemercury lost

“more than $2 million” in 2007 and 2008 was “looking worse.” [Beck Dep. 68:1-10.] Defendant

Barry Beck says “we were going bankrupt, and still face that problem [today].” [Beck Dep. 69:2-3.]

As a result, in May 2008 Bluemercury decided that a reduction in force was necessary. [Doc. 11-1

at 7.] Beck determined that two of the three accounts payable coordinator positions were redundant,

but did not himself select which coordinators to terminate. [Doc. 11-1 at 7.] Instead, Beck asked

controller Bernie Locraft to rank each coordinator based on performance. [Doc. 11-1 at 8.]

Locraft determined that Michael Shifaw was by far his best employee. He gave Plaintiff

Cobbs his second-highest ranking, and Korsch his third.

Q. And when you say that Mr. Shifaw was the best, by far the best of the group, on

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what objective criteria were you relying?

[Locraft]: We didn’t have objective criteria. It was based on a review of his daily
performance. . . .

Q. Can you identify for me today exactly what factors you relied on . . . ?

[Locraft]: I looked at whether they were caught up with the vendors that they work
on. Mike was always caught up. He was doing maybe 10 or 15 percent more work
in a given time than the others were doing. He would ask for additional work,
voluntarily request work to keep him busy, because he was sufficient.

[Doc. 14 at 7.]

On June 16, 2008 Barry Beck emailed CEO Marla Beck suggesting Bluemercury lay off eight

employees, including Cobbs and Korsch. [Doc 11-3 at 6.] In making his termination

recommendations, Barry Beck relied entirely on Locraft’s rankings: “[Locraft] told me that Mike

Shifaw had set the standard, and he [performed] above the rest. Today [Shifaw is] running the

department himself . . . [s]o clearly our decision was correct.” [Barry Beck Dep. 61:12-17; 63:2-4.]

Bluemercury terminated Cobbs, Korsh, and six other employees on July 11, 2008. [Doc 11-3

at 3.] Cobbs filed the instant suit on September 25, 2008 alleging: (1) FMLA retaliation; (2) FMLA

interference; (3) DCFMLA retaliation; (4) DCFMLA interference; and (5) DC Minimum Wage Act

retaliation. [Doc. 1.]

II. Legal Standard

1. Summary Judgment

Under Federal Rule of Civil Procedure 56(c), summary judgment is proper “if the pleadings,

the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue

as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(c); see also Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994).

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Under the summary judgment standard, the moving party bears the “initial responsibility of

informing the district court of the basis for [its] motion, and identifying those portions of the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits

which [it] believe[s] demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986). In response, the non-moving party must “go beyond the

pleadings and by [its] own affidavits, or depositions, answers to interrogatories, and admissions on

file, ‘designate’ specific facts showing that there is a genuine issue for trial.” Id. at 324 (internal

citations omitted).

Although a court should draw all inferences from the supporting records submitted by the

nonmoving party, the mere existence of a factual dispute, by itself, is insufficient to bar summary

judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To be material, the

factual assertion must be capable of affecting the substantive outcome of the litigation; to be genuine,

the issue must be supported by sufficient admissible evidence that a reasonable trier-of-fact could

find for the nonmoving party. Laningham v. U.S. Navy, 813 F.2d 1236, 1242-43 (D.C. Cir. 1987).

“Mere allegations or denials in the adverse party’s pleadings are insufficient to defeat an

otherwise proper motion for summary judgment.” Williams v. Callaghan, 938 F.Supp. 46, 49

(D.D.C. 1996). Instead, while the movant bears the initial responsibility of identifying those portions

of the record that demonstrate the absence of a genuine issue of material fact, the burden shifts to

the non-movant to “come forward with ‘specific facts showing that there is a genuine issue for trial.’

” Id. at 587 (citing Fed. R. Civ. P. 56(e)) (emphasis in original).

III. Discussion

A. Plaintiff’s DC Minimum Wage Act Retaliation Claim

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In Count V of her complaint, Plaintiff Cobbs says Bluemercury fired her because she joined

a pending lawsuit alleging that the Defendants owed her overtime wages. [Doc. 1 at 13.] In the

instant motion, Bluemercury says it first learned Cobbs had opted into the lawsuit two weeks after

Barry Beck had selected Cobbs for termination. [Doc. 11-1 at 9.] Responding, Cobbs

“acknowledges that in discovery Defendants produced such proof as to convince her that this claim

was due to be dismissed.” [Doc. 14 at 29.] Accordingly, the Court grants summary judgment to

Defendants on Plaintiff’s DC Minimum Wage Act retaliation claim.

B. Plaintiff’s FMLA and DCFMLA Retaliation Claims

In Counts I and III of her complaint, Plaintiff Cobbs says Bluemercury terminated her

because she took FMLA and DCFMLA leave to attend physical therapy and doctor’s appointments.

Responding, Bluemercury says Cobbs’s termination was part of a planned reduction in force.

Because Cobbs has not adduced sufficient evidence to create a material fact or law issue on her

retaliation claims, the Court grants summary judgment to Defendants.

Courts interpret the FMLA and the DCFMLA similarly. See Winder v. Erste, 511 F. Supp.

2d 160, 184 (D.D.C. 2007). Both Acts make it unlawful for a covered employer to retaliate against

employees for exercising rights protected under the Acts’ respective provisions, which are, for

present purposes, coterminous. See 29 U.S.C. § 2615(a)(1); D.C.Code 32-507(a).

The Court analyzes Cobbs’s retaliation claims according to the McDonnell Douglas

framework. See Gleklen v. Democratic Congressional Campaign Comm., Inc., 199 F.3d 1365, 1367

(D.C. Cir. 2000) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). Under this

framework: (1) Cobbs must establish a prima facie case that Bluemercury terminated her in violation

of the Acts; (2) if Cobbs meets that burden, the burden shifts to Bluemercury to articulate a

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legitimate, non-Acts-violating reason for her termination; and (3) if Bluemercury meets its burden,

the burden shifts back to Cobbs to produce substantial evidence that Bluemercury’s proffered reason

is merely a pretext for terminating her. See Butler v. District of Columbia Housing Finance Agency,

593 F. Supp. 2d 61, 65 (D.D.C. 2009).

To establish a prima facie case, Cobbs must show: (a) she engaged in protected activity; (b)

she suffered an adverse employment action; and (c) the protected activity and the adverse

employment action were causally connected. See Winder, 511 F. Supp. 2d at 184 (noting also that

the elements of a prima facie case are the same under both Acts).

In this case, at the prima facie stage Defendants only contest the causation element. Straight

to the point, Bluemercury asks: Why would we voluntarily accommodate Plaintiff for a year and then

terminate her shortly after she was FMLA and DCFMLA protected? [Doc. 11-1 at 14, 16.]

Moreover, Bluemercury continues, it eliminated Cobbs’s position as part of a planned reduction in

force. Responding, Cobbs says the layoffs are a subterfuge for retaliation because Bluemercury did

not utilize any objective or measurable criteria when it ranked Shifaw, Cobbs, and Korsch. [Doc.

14 at 22-25.] Cobbs adds that Ann Washington, Berry Beck, and Marla Beck harassed her about

taking leave just weeks before she was fired. [Doc. 14 at 22-25.]

A planned reduction in force necessitated by business conditions is a legitimate reason for

terminating an employee. See Kakeh v. United Planning Org., 537 F. Supp. 2d 65, 74 (D.D.C.

2008). Bluemercury, a cosmetics retailer, was not immune to 2008’s global recession. Indeed, Barry

Beck says the company was (and still is) teetering on bankruptcy. [Beck Dep. 69:2-3.] To cut costs,

Beck identified two redundant accounts payable positions and asked Bernie Locraft to rank his

subordinates. Locraft ranked Michael Shifaw first. With this information in hand, Barry Beck

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terminated Plaintiff Cobbs and Korsch.

To this end, Plaintiff Cobbs says a jury must decide whether Locraft’s ranking system

“subjective and unquantifiable . . . .” [Doc 14 at 19.] In support, Cobbs cites out-of-Circuit

decisions for the suggestion that Bluemercury is under some duty to identify “objective or

measurable” criteria on how it ranked Shifaw, Cobbs, and Korsch. See Richmond v. ONEOK, 120

F.3d 205, 209 (10th Cir. 1997); Bohl v. Haysfeld, 2008 WL 3200639, at *6 (S.D. Ohio Aug. 5,

2008); Hillman v. Hamilton College, 1998 WL 166827, at *9 (N.D.N.Y. Apr. 9, 1998). Candidly,

those cases have nothing to do with the causation element of Cobbs’s prima facie case. See Bohl

v. Haysfeld, 2008 WL 3200639, at *6 (considering irregularities in employer’s evaluation process

in pretext analysis); Hillman, 1998 WL 166827, at *9 (same); Richmond, 120 F.3d at 209

(considering documentation of plaintiff’s poor performance in pretext analysis).

Objectively measurable or not, Locraft considered Shifaw to be head-and-shoulders above

Cobbs and Korsch: “He was doing maybe 10 or 15 percent more work in a given time than the

others were doing. He would ask for additional work, voluntarily request work to keep him busy,

because he was efficient.” [Doc. 14 at 7.] Moreover, Cobbs does not allege that Locraft, the

supervisor who actually ranked her, retaliated against her. (Unlike Cobbs’s other three

superiors—Ann Washington, Barry Beck, and Marla Beck—all of whom Cobbs says harassed her.)

Thus, whatever animus Cobbs’s other supervisors may have had, these individuals did not influence

the evenhanded evaluation which led to Cobbs’s termination. On this evidence, a reasonable jury

could only conclude that Bluemercury’s staff reduction to stave off bankruptcy caused Cobbs’s

termination. Accordingly, Cobbs fails to satisfy the third prong of her prima facie case. The Court

therefore grants summary judgment to Defendants on Plaintiff’s retaliation claims.

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Finally, even if there were a material issue regarding causation, Bluemercury has articulated

a non-discriminatory explanation for terminating Plaintiff Cobbs and Cobbs has failed to show that

Defendants’ reason is pretextual. Defendants’ motion provides ample evidence of a legitimate

motive for Plaintiff’s termination—a reduction in force. See Goss v. George Washington University,

942 F. Supp. 659, 664 (D.C. Cir. 1996). Again, Cobbs contends that the layoffs are pretext and faults

Bernie Locraft for using a subjective and unquantifiable ranking system. But, with no evidence that

Locraft was influenced by a forbidden consideration, the Court will not “judge the wisdom of a

corporation’s business decisions.” Id. (quotation omitted). The Court thus finds that Plaintiff has

failed to adduce sufficient evidence from which a reasonable jury could infer that Bluemercury’s

reduction in force was a pretext for retaliation.

C. Plaintiff’s FMLA and DCFMLA Interference Claims

In Counts II and IV of her complaint, Plaintiff Cobbs says Defendants interfered with her

ability to take FMLA and DCFMLA leave. Specifically, Cobbs alleges that the Defendants denied

her four or five days leave after her second car accident and harassed her into missing a scheduled

physical therapy session. Responding, Bluemercury says Cobbs did not need leave after her second

car accident and denies that it pressured Cobbs into missing therapy. Because Cobbs has not suffered

a cognizable loss under the Acts, the Court grants summary judgment to Bluemercury on Cobbs’s

interference claims.

In order to succeed on her FMLA and DCFMLA interference claims, Cobbs must prove both

that Bluemercury interfered with her exercise of protected rights and that the interference caused

prejudice. McFadden v. Ballard, Spahr, Andrews & Ingersoll, LLP, 611 F.3d 1, 7 (D.C. Cir. June

29, 2010). An employer interferes with protected rights when it interferes with, restrains, or denies

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the exercise of any right provided by the Acts. 29 U.S.C. § 2615(a)(1); D.C. Code § 32-507.

Prejudice exists where an employee loses compensation or benefits by reason of the violation,

sustains other monetary losses as a direct result of the violation, or suffers some loss in employment

status remediable through appropriate equitable relief. 29 U.S.C. § 2617(a)(1); D.C. Code §

32-509(b)(6) (allowing also consequential damages).

Employers can be held liable both for denying their employees statutory leave and also for

interfering with their exercise of those rights, short of an outright denial. See McFadden, 611 F.3d

at 7. In McFadden, the plaintiff said her employer harassed her for taking too much leave to take

care of her dependant husband. Id. As a result, she claims, she took less time off than she was

entitled to and had to pay someone to take care of her husband. Id. The District of Columbia Circuit

made clear that the plaintiff needed only to show that her employer interfered with her exercise of

protected rights and that she suffered monetary losses as a direct result of the violation. Id.

In this case, Cobbs has failed to show that Bluemercury denied her protected leave after her

second car accident. To be sure, at the time of Cobbs’s May 2008 accident, Cobbs was a

FMLA/DCFMLA eligible employee. 29 U.S.C. § 2611(2)(A); D.C. Code § 32-501. However,

Cobbs presents no evidence that her second-accident injuries qualified as a “serious health condition

that makes the employee unable to perform the functions of the position of such employee.” 29

U.S.C. § 2611(a)(1)(D); D.C. Code § 32-503. Cobbs does not allege, for example, that her injuries

required hospitalization or rendered her unable to work. 29 C.F.R. § 825.113(a)-(b). Indeed,

Cobbs’s physician said “you can go [to work], but you’re going to have to wear this brace and this

arm is going to still have to stay in the sling, and you’re just going to have to limit what you can do.”

Under these limitations, Bluemercury allowed Cobbs to work.

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The Acts attempt to provide employees with “reasonable leave,” without completely ignoring

the legitimate “demands of the workplace.” 29 U.S.C. §§ 2601(b)(1)-(2). Considering

Bluemercury’s accommodations and Cobbs’s doctor’s accord, Defendants’ request that Cobbs show

up to work was reasonable. Accordingly, Plaintiff’s allegation that Defendants denied her protected

leave is without merit.

As to Cobbs’s claim that Defendants harassed her into missing physical therapy, the Court

will assume arguendo that Defendants interfered with Cobbs’s rights under the Acts. See McFadden,

611 F.3d at 7 (proceeding directly to prejudice prong). For damages, Cobbs says she “suffered and

will continue to suffer loss of wages and benefits, loss of employment opportunities and career

advancement, and damage to her professional reputation” because of Bluemercury’s interference.

[Doc 1.] As explained in the Court’s retaliation analysis above, however, there is no causal

connection between Cobbs’s protected leave and Bluemercury’s decision to terminate her. See

McFadden, 611 F.3d at 7 (requiring a “causal relationship” between employer’s interference and

employee’s harm). Thus, Cobbs cannot establish prejudice from lost or diminished wages.

Finally, Cobbs does not claim that Bluemercury’s supposed interference caused her additional

medical expenses or consequential damages. In McFadden, the employee had to hire a caretaker for

her husband after her employer dissuaded her from taking leave. Id. In this case, however, Cobbs

does not allege that she “sustain[ed] other monetary losses as a direct result of the violation, such as

the cost of providing care.” 29 U.S.C. § 2617(a)(1)(A)(i)(II). After a thorough review of the record

including a complete review of Cobbs’s deposition, the Court is unable to find any damages causally

related to Bluemercury’s alleged interference. The Court therefore grants summary judgment to

Defendants on Plaintiff’s interference claims.

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IV. Conclusion

Viewing the evidence provided by both parties, in the light most favorable to the Plaintiff,

the Court finds the Plaintiff fails to meet her burden of proof demonstrating FMLA/DCFMLA

retaliation and interference on the part of the Defendants. The Court finds that no dispute in genuine

issue of material fact or law exists in this case, entitling the Defendants to summary judgment. For

the foregoing reasons, the Court GRANTS Defendants’ motion for summary judgment.

A separate Order shall issue this date.

Dated: October 27, 2010 s/ James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

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