Boisvert v . Wal-Mart CV-99-478-M 01/18/01 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

James Boisvert, Plaintiff

v. Civil N o . 99-478-M Opinion N o .

Wal-Mart Stores, Inc., Defendant

O R D E R

Plaintiff brings suit against his former employer asserting

claims under the Family Medical Leave Act (FMLA),

, et seq. (Count I ) , for wrongful termination (Counts II

and I V ) , and under the New Hampshire Consumer Protection Act,

N.H. Rev. Stat. Ann. (RSA) 358-A (Counts III and V ) . Defendant

moves for summary judgment on all counts (document n o . 9 ) .

Standard of Review

Summary judgment is appropriate when the record reveals “no

genuine issue as to any material fact and . . . the moving party

is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c). When ruling upon a party’s motion for summary judgment, the court must “view the entire record in the light most

hospitable to the party opposing summary judgment, indulging all

reasonable inferences in that party’s favor.” Griggs-Ryan v .

Smith,

1 2 , 115 (1st Cir. 1990).

The moving party “bears the initial responsibility of

informing the district court of the basis for its motion, and

identifying those portions of [the record] which it believes

demonstrate the absence of a genuine issue of material fact.”

Celotex Corp. v . Catrett,

1 7 , 323 (1986). If the

moving party carries its burden, the burden shifts to the

nonmoving party to demonstrate, with regard to each issue on

which it has the burden of proof, that a trier of fact could

reasonably find in its favor. See DeNovellis v . Shalala,

9 8 , 306 (1st Cir. 1997).

At this stage, the nonmoving party “may not rest upon mere

allegation or denials of [the movant’s] pleading, but must set

forth specific facts showing that there is a genuine issue” of

material fact as to each issue upon which he or she would bear

the ultimate burden of proof at trial.

(quoting Anderson v .

Liberty Lobby, Inc.,

4 2 , 256 (1986)). In this context,

2 “a fact is ‘material’ if it potentially affects the outcome of

the suit and a dispute over it is ‘genuine’ if the parties’

positions on the issue are supported by conflicting evidence.”

Intern’l Ass’n of Machinists and Aerospace Workers v . Winship

Green Nursing Center,

(1st Cir. 1996)

(citations omitted).

Factual Background

Plaintiff was employed by defendant on two separate

occasions. He was first hired in April 1993. In early 1996,

plaintiff began arriving at work late and missing shifts.

Sometime during this period, plaintiff’s mother became ill and

bedridden. On March 2 1 , 1996, plaintiff met with one of his

supervisors to discuss his tardiness and absenteeism. He was

informed that if his attendance did not improve, he would be

fired. Plaintiff continued to have problems with tardiness and

on July 2 8 , 1996, he met with another supervisor. They decided

he would prepare a plan of action for improving his attendance.

Little to no change followed, and, on September 2 8 , 1996,

3 defendant terminated plaintiff’s employment due to his tardiness

and absenteeism.

Defendant rehired plaintiff about two months later, in

November 1996, to work in receiving at a different location. In

late January 1998, more than a year after he resumed working for

defendant, plaintiff received an evaluation indicating he was not

working safely or carefully, resulting in his involvement in

several accidents. Subsequently, he was removed from the

receiving department and reassigned to the maintenance

department.

In April, plaintiff was notified by the Strafford County

Superior Court that he was required to appear for jury service on

April 6, 1 3 , 2 0 , and 2 7 . Defendant’s corporate policy regarding

jury service provides for compensation for time spent fulfilling

jury duty and permits schedule adjustments for employees, like

plaintiff, who usually work outside normal juror hours (i.e.,

night shifts). Such employees are allowed to miss their shifts

and still be compensated. However, the policy requires an

employee who is excused from jury service, and who has more than

four hours left in his or her shift, to return to work.

4 Having been told by a supervisor to take off the night

before jury service in addition to the actual day, plaintiff

submitted time adjustment requests for April 5 , 6, 1 2 , 1 3 , 1 9 ,

2 0 , 2 7 , and 2 8 , based on jury duty. Defendant’s records indicate

that plaintiff received jury duty pay for April 5 , 6, 1 3 , 1 4 , 2 0 ,

2 1 , 2 7 , and 2 8 . Defendant later obtained a Certificate of Jury

Attendance from the Clerk of the Superior Court, dated May 1 ,

1998, establishing that plaintiff served as a juror on April 6,

2 0 , 2 7 , 2 8 , and 2 9 . Plaintiff was terminated on May 8 , 1998, for

falsifying jury duty claims.

Plaintiff sues for wrongful discharge and violation of the

New Hampshire Consumer Protection Act in relation to both

terminations. Plaintiff also claims his FMLA rights were

violated when he was first dismissed in September of 1996, and

that the stated reason for his subsequent termination in May of

1998 was a pretext for discrimination based on his learning

disability, as well as retaliation for having missed work while

serving as a juror.

5 Discussion

A. Family Medical Leave Act (Count I )

Plaintiff claims that his attendance problems during his

first period of employment by defendant were the result of his

need to care for his ill, bedridden mother. The FMLA does

protect employees who miss work to care for a family member with

a serious medical condition. However, in order to benefit from

the FMLA’s protections, an employee must first notify his

employer of the need to take leave. See

(e)(2).

If the need for leave is foreseeable, the employee is required to

make every effort to avoid scheduling conflicts and must give the

employer at least 30 days notice of the need for leave. See

If the need is unforseeable, the employee must notify the

employer as soon as practicable. See

The employee need not

specifically invoke his FMLA rights, but must give enough

information to put the employer on notice of the need for FMLA

leave. See Weeden v . Sears Roebuck & Co., N o . CIV98-435-JD,

, at *4 (D.N.H. Aug. 1 9 , 1999) (citing Gay v . Gilman

Paper Co.,

(11th Cir. 1997)). Defendant

6 contends that it did not violate plaintiff’s FMLA rights because

plaintiff never gave any notice that he was in need of leave.

The parties understand that whether notice was given i s ,

initially, one of material fact. If summary judgment is to be

avoided, dispute over some material fact must exist, and the

dispute must be genuine – meaning it must be supported by

evidence. Defendant says there is no genuine dispute over

notice. Defendant points to plaintiff’s deposition testimony in

which, when asked about the three meetings addressing his

attendance problems, plaintiff admitted he did not tell his

supervisors why he was late and missing shifts. See Def. Summ.

J. Mot. Ex. H , Boisvert Dep. at 3 1 , 3 3 , 36 (Boisvert Dep.)

(document n o . 9 ) . Plaintiff, on the other hand, has failed to

identify any evidence supporting his claim that he told his

employer about his mother’s illness and his need to care for her,

at any relevant time. He has not submitted an affidavit

identifying the person(s) he allegedly informed, how the

information was effectively communicated, or how defendant was

otherwise informed of the medical condition requiring leave.

Additionally, he does not dispute defendant’s reliance on his own

7 deposition testimony.1 Instead, in opposition to summary

judgment, plaintiff’s only argument suggests that future

depositions of his supervisors are necessary before the issue can

be decided.

This argument fails for two reasons. First, plaintiff’s

reliance on what future depositions might establish, without

offering any reason to think that the asserted facts will be

1 Defendant includes the following excerpt: Q . In the exit interview, did you tell M r . Pike [Plaintiff’s supervisor] why you were unable to comply with your attendance plan that you made up? A . Yes. Q . Okay. What did you tell him? A . I was helping my mother the following night with her treatment from her incident. Q . Tell me – and you remember saying this to M r . Pike at the exit interview? A. No. Q . You don’t remember that – saying that, do you? A . I don’t remember saying that. Boisvert Dep. at 3 6 .

While plaintiff’s initial answer does suggest that he did in fact notify defendant of his situation, the testimony also reveals that he does not remember telling his supervisor the reason he failed to comply with his attendance plan; plaintiff offers no other explanation supporting a conclusion that he did tell his supervisor that he had to care for his mother, notwithstanding his own lack of memory of the event.

8 established, is speculation, at best, and insufficient to rebut

the evidence presented by defendant.

Second, the depositions plaintiff proposes to take are of

Wayne Garland and Paul Spescha. But Garland and Spescha were

plaintiff’s supervisors during his second period of employment,

not his first, when attendance was a problem. The record is

clear and plaintiff does not dispute, that none of the

evaluations completed during plaintiff’s first period of

employment bear either Garland’s or Spescha’s name as supervisor.

Moreover, plaintiff’s deposition testimony reveals that plaintiff

spoke to Garland, who in turn spoke to Spescha, about his jury

service, an issue that arose during his second period of

employment. See Boisvert Dep. at 65-66. Because there is no

plausible basis for suggesting that either Garland or Spescha had

any contact with plaintiff during his first period of employment,

much less supervised him, their depositions would likely add

nothing at all relevant to whether notice of plaintiffs need for

an FMLA absence was given. Accordingly, on this record,

defendant is entitled to summary judgment on the FMLA count.

9 B. Wrongful Termination (Count IV)

The complaint suggests plaintiff may be asserting a claim

under the Americans with Disabilities Act,

, et

seq. (ADA). See Complaint ¶ 11 (alleging disability within

meaning of A D A ) . However, other than plaintiff’s statement in

his complaint that he was at all relevant times learning disabled

as defined by both New Hampshire and federal law, the record is

silent as to whether that asserted disability played any role in

his discharge. Although defendant concedes that it was aware of

plaintiff’s learning disability during both periods of

employment, that knowledge, alone, is hardly sufficient to

support an allegation that plaintiff was discharged because of

his disability. Plaintiff offers no evidence of causation such

as statements made by defendant’s officers or employees, prior

discipline related to his learning disability, or even any

argument (other than the allegation in the complaint) that his

learning disability somehow contributed to his dismissal.

10 Conclusion

Plaintiff has failed to present evidence sufficient to

establish a genuine issue of material fact with respect to his

FMLA claim (Count I ) or his possible ADA claim (Count I V ) . Given

the undisputed material facts, defendant is entitled to judgment

as a matter of law. Accordingly, defendant’s Motion for Summary

Judgment (document n o . 9 ) with respect to those claims is

granted.

Having disposed of plaintiff’s federal claims, the court

declines to exercise its supplemental jurisdiction over the

remaining state law claims. See generally, Camelio v . American

Federation,

(1st Cir. 1998). Accordingly, those

claims are dismissed without prejudice to refiling in state

court.

The Clerk shall enter judgment in accordance with the terms

of this order and close the case.

11 SO ORDERED.

Steven J. McAuliffe United States District Judge

January 1 8 , 2001

cc: Thomas P. Elias, Esq. E . Tupper Kinder, Esq. Pamela D. Connolly, Esq.

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