Schomburg v . Dell 06-CV-177-JD 10/15/07 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

William Schomburg

v. Civil N o . 06-cv-177-JD Opinion N o .

Dell, Inc.

O R D E R

William Schomburg brings claims against his former employer,

Dell, Inc., alleging violations of the Family and Medical Leave

Act ("FMLA") and the Americans with Disabilities Act ("ADA"),

along with state law claims of breach of contract,

misrepresentation, wrongful discharge, and negligent infliction

of emotional distress. Dell moves for summary judgment on all of

Schomburg's claims. Schomburg opposes summary judgment.

Standard of Review

Summary judgment is appropriate when “the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

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

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

56(c). The party seeking summary judgment must first demonstrate

the absence of a genuine issue of material fact in the record. See Celotex Corp. v . Catrett,

1 7 , 323 (1986). A party

opposing a properly supported motion for summary judgment must

present competent evidence of record that shows a genuine issue

for trial. See Anderson v . Liberty Lobby, Inc.,

4 2 ,

256 (1986). All reasonable inferences and all credibility issues

are resolved in favor of the nonmoving party. See id. at 255.

Background1

Schomburg was employed as a systems engineer at Dell for

more than nine years. His job required travel during the work

week, and weekend work was scheduled once per quarter. Schomburg

expressed dissatisfaction with the requirements of his job. In

2004, following a merger of Schomburg's team with another Dell

team, Schomburg's job also required more frequent weekend travel

with little or no advance notice.

On April 1 4 , 2005, Schomburg told his supervisor that the

job related stress he was experiencing was too much. He said

that he would not work that weekend and resigned. He later told

his supervisor that he did not intend to resign but that he

wanted to take some time away and to look for another job within

1 Schomburg lists facts that he contends are disputed with citations to the record. To the extent he has not opposed the properly supported facts provided by Dell in his statement of material facts, those facts will be deemed to be admitted by Schomburg. LR 7.2(b)(2).

2 Dell. He asked to take accumulated sick leave and vacation time

for that purpose, which was denied. Instead, he was told that he

could apply for leave under the Family and Medical Leave Act

("FMLA").

Schomburg contacted UnumProvident Corporation, Dell's

benefits plan administrator, about FMLA leave on April 1 8 , 2005. He was approved for FMLA leave the next day. The FMLA approval

letter from UnumProvident notified Schomburg about information

needed to process the leave, the conditions pertaining to leave,

and Dell's policy for continuing leave and returning to work.

With respect to returning to work, the notice informed Schomburg

that he would be required to submit certain documentation of his

fitness to work before he could return to his job and that

"failure or delay in the submission of fitness for duty

information could result in the termination of your employment." The letter provided a "Fitness for Duty Certification."

Schomburg was treated by D r . Miller for depression. Dr.

Miller provided documentation that Schomburg was not able to

return to his job at Dell. D r . Miller advised Schomburg to find

a different job that would be less stressful.

On June 2 9 , 2005, Dell sent Schomburg a notice that he was

approaching the end of his FMLA leave. That notice included a

table of steps Schomburg would have to take, with deadlines,

contact persons, and telephone numbers, to notify Dell as to

3 whether he would or would not be returning to work. The notice

also warned that failure to respond could result in termination.

Schomburg did not respond to the notice. Schomburg states in his

affidavit that he did not receive the leave exhaustion notice

until weeks after it was mailed. In his deposition, Schomburg

stated that he did not remember when he received the notice. Dell represents that Schomburg's leave expired on July 1 1 ,

2005. That date is the last day of twelve weeks following the

approval of his leave on April 1 9 , 2005. Dell's termination

letter, however, states that Schomburg's leave began on April 2 0 ,

which would make July 12 the last day of the leave.

On July 1 2 , Dell's leave and disability advisor, Julie

Lundquist contacted Schomburg's supervisor at Dell and the

representative at UnumProvident to get a status report on

Schomburg. Lundquist found that Schomburg had not responded to the June 29 leave exhaustion notice, had not contacted the

supervisor, and had not provided additional information to

Unumprovident.

Schomburg represents that he talked to Victoria Musa, the

Human Resources Director at Dell, on July 1 2 , 2005. He states

that Musa "indicated that [he] was being terminated." In his

deposition, however, Schomburg testified that Musa told him that

"the process for termination has already begun. As a result,

Schomburg states, he "did not believe there was any point to

4 reapplying or negotiating for [his] job." Lundquist states that

she called Schomburg twice on July 15 to ask about his plans.

Schomburg did not return her calls until July 2 1 .

In a letter dated July 2 0 , 2005, Dell notified Schomburg

that he had been on leave since April 2 0 , 2005, that his leave

had expired, and that his employment was terminated because he had not responded to the exhaustion of leave notice. The letter

provided other information about termination. Schomburg

testified in his deposition that he was not terminated until he

received that letter.

Discussion

Schomburg contends that the circumstances of his termination

violated the FMLA and the ADA and provide the basis for state law

claims of breach of contract, misrepresentation, wrongful

discharge, and negligent infliction of emotional distress. Dell

moves for summary judgment on the ground that the undisputed

record evidence does not support Schomburg's claims.

A. FMLA

Schomburg asserts that his employment at Dell was terminated

because he took FMLA leave. Dell states that Schomburg was

5 terminated because he failed to return to work after his FMLA

leave o r , alternatively, to request and document the need for an

extended leave.

The FMLA provides substantive rights and prohibits

retaliation against those who exercise FMLA rights. Colburn v .

Parker Hannifin/Nichols Portland Div.,

(1st Cir. 2005). An eligible employee is entitled to a maximum of

twelve weeks of leave during a twelve-month period when leave is

medically necessary.

; Engelhardt v . S.P.

Richards Co., Inc.,

, 3 (1st Cir. 2006). "It is

'unlawful for any employer to interfere with, restrain, or deny

the exercise of or the attempt to exercise, any right provided

under [the FMLA].'"

(quoting

). "With

limited exceptions, . . . upon the employee's return from a

qualified leave, the employer must reinstate the employee to the same position or an alternate position with equivalent pay,

benefits, and working conditions, and without loss of accrued

seniority." Colburn,

.

It is undisputed that Schomburg did not return to work after

his FMLA leave. It is also undisputed that Schomburg did not

provide any of the information he had been told would be

necessary for him to return to work. Schomburg asserts that he

was terminated on July 1 2 , 2005, when he talked to Victoria Musa,

Dell's Human Resources Director. Based on that conversation, he

6 contends that he was terminated during his FMLA leave and before

the deadline to submit the documentation that would have allowed

him to return to his job.

The record is somewhat unclear as to when Schomburg's leave

began, which determines when it ended. UnumProvident stated in

the letter dated April 1 9 , 2005, that Schomburg requested that his leave begin on April 19 and to continue until May 1 8 , 2005.

That request was granted. In the termination letter dated July

2 0 , 2005, Dell stated that Schomburg had been on leave since

April 2 0 , 2005. As that is the latest date used as the beginning

of the leave period, that date is most favorable to Schomburg.

Based on a beginning date of April 2 0 , the last day of

Schomburg's leave would have been July 1 2 , 2005. Therefore,

Schomburg's conversation with Musa occurred on the last day of

his leave. Schomburg does not dispute that the April 19 letter

approving his request for FMLA leave provided important

information about the leave including a warning that "failure or

delay in the submission of fitness for duty information could

result in the termination of [his] employment." The leave

exhaustion letter explicitly spelled out his obligations for

returning to work and the deadlines for complying with those

requirements. Although Schomburg claims not to have received

that letter "until weeks after the date it was purported mailed,"

7 during his deposition he testified that he did not recall when he

received the leave exhaustion letter. The certified mail receipt

indicates that the letter was received by Schomburg's wife on

July 1 1 , 2005. Schomburg's notes on the letter also are dated

July 1 1 , 2005. The notes indicate that he sent the letter to his

physician, D r . Miller, on July 1 1 . Therefore, Schomburg knew on July 11 that he had to comply with certain requirements to show

that he was able to return to work.

Dr. Miller testified at his deposition that he never

discussed with Schomburg whether he was able to return to his job

at Dell and also testified that Schomburg would not have been

able to return to that job. D r . Miller did not complete any

forms or documentation that would have allowed Schomburg to

return to work. Julie Lundquist called Schomburg twice on July

1 5 , but he did not return her calls until July 2 1 . The termination letter was sent on July 2 0 .

Schomburg relies on his conversation with Musa, as evidence

that he was terminated during his leave. Schomburg testified at

his deposition that Musa told him that the termination process

had begun. Because of that, he did not believe there was any

point in reapplying or negotiating for his job. Schomburg has

admitted, however, that he was not terminated until July 2 0 . He

also has admitted that he did not intend to go back to his former

job at Dell.

8 The record establishes that Schomburg had notice before the

end of his FMLA leave that he had to provide certain

documentation of his fitness to return to his job or of his need

for an extended leave before the end of the twelve weeks of

leave. He did not comply with those requirements. The record

also establishes that he was not terminated from his job until July 2 0 . Further, he had decided not to return to his job at

Dell before he was terminated on July 2 0 . Based on those

undisputed circumstances, no trialworthy issue exists to support

Schomburg's theory that Dell terminated him because he took FMLA

leave.

B. ADA

Schomburg alleged that he was a qualified individual with a

disability within the meaning of the ADA. He alleged that his

disability was caused by major depression due to a family tragedy

so that he was unable to work until July 1 0 , 2005. He also

alleged that he had "a record of disability and impairment and/or

the Defendant Company regarded him as being substantially

impaired and disabled." Am. Compl. ¶ 2 5 . He claimed that Dell

violated the ADA by failing to provide reasonable accommodations

"Plaintiff's know [sic] disability, or the perception of

Plaintiff as having disabilities."

¶ 2 7 .

In its motion for summary judgment, Dell asserts that

9 Schomburg cannot show that he was disabled within the meaning of

the ADA. Dell points to evidence from Schomburg and D r . Miller

that he was able to do work, except not at the job he left at

Dell. Dell also asserts, albeit in a footnote, that there is no

evidence that Dell erroneously believed that Schomburg was

disabled. In his objection to summary judgment, Schomburg argues that a factual issue exists as to whether Dell regarded Schomburg

as being disabled and terminated him because of that erroneous

perception.

"Under the ADA, plaintiff is 'regarded a s ' disabled if h e : (1) Has a physical or mental impairment that does not substantially limit major life activities but is treated by a covered entity as constituting such limitation; (2) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or (3) Has none of the impairments defined in paragraph (h)(1) or (2) of this section but is treated by a covered entity as having a substantially limiting impairment."

Arrieta-Colon v . Wal-Mart P.R., Inc.,

5 , 88 (1st Cir.

2006) (quoting

(l)). To prove a "regarded as"

claim, "the employee must demonstrate not only that the employer

thought he was impaired in his ability to do the job that he

held, but also that the employer regarded him as substantially

impaired in either a class of jobs or a broad range of jobs in

various classes as compared with the average person having

10 comparable training, skills, and abilities." Sullivan v . Neiman

Marcus Group, Inc.,

1 0 , 117 (1st Cir. 2004).

Schomburg's FMLA leave was based on his inability to

continue to do his specific job that required extensive and

unpredictable travel because of the stress the job caused him.

He has not shown that anyone at Dell believed he was impaired by stress beyond what he himself claimed. He also provides no

evidence that anyone at Dell believed he was disabled from either

a particular class of jobs or a broad range of jobs. Therefore,

no evidence has been provided to support Schomburg's ADA claim,

and Dell is entitled to summary judgment.

C. Breach of Contract and Misrepresentation

Schomburg alleges that Dell agreed to provide him FMLA leave

until July 1 3 , 2005, and breached that agreement by terminating

his employment on July 1 2 . He also alleges that Dell

intentionally misrepresented that it would provide leave until

July 1 3 . As is discussed above, the record establishes that even

if Victoria Musa told Schomburg on July 12 that the termination

process had begun, he was not terminated until July 2 0 , after the

FMLA leave ended. Therefore, Dell is entitled to summary

judgment on both claims.

D. Wrongful Discharge

11 In the amended complaint, Schomburg alleges in conclusory

fashion that Dell terminated him "because he performed an act

that public policy would encourage or refused to do something

that public policy would condemn" and was "motivated by bad

faith, malice or retaliation." Am. Compl. ¶ 45 & ¶ 4 6 ; see,

e.g., Lacasse v . Spaulding Youth Ctr.,

(2006)("To succeed on [a wrongful discharge claim], a plaintiff

must prove: [that] the termination of employment was motivated by

bad faith, retaliation or malice; and (2) that she was terminated

for performing an act that public policy would encourage or for

refusing to do something that public policy would condemn.")

(internal quotation marks omitted).

Schomburg now asserts that his wrongful discharge claim is

based on his belief that he was terminated "because of a

perceived disability (see above), in retaliation for his FMLA request, for his vocal opposition to the defendant in meetings or

for his high pay."2 Schomburg's belief is not sufficient to

successfully oppose Dell's motion for summary judgment. Fed. R.

Civ. P. 56(e); Quinones v . Buick,

8 4 , 291 (1st Cir.

2 Previously, in response to Dell's motion to dismiss, Schomburg's wrongful discharge claim was dismissed to the extent he relied on a public policy to protect an employee from being terminated because of illness or disability. Schomburg v . Dell, Inc.,

at *2 (D.N.H. Oct. 4 , 2006).

12 2006). Instead, he must present competent evidence showing that

a factual dispute exists as to the reason for his termination.

See Anderson,

. Because Schomburg has failed to

comply with the requirements of Rule 56(e), Dell is entitled to

summary judgment on his wrongful discharge claim.

E. Negligent Infliction of Emotional Distress

Schomburg alleged that Dell was aware of his "stress

condition" and terminated him "for a reason that violates public

policy and the FMLA." Am. Compl. ¶¶ 49 & 5 0 . Dell moves for

summary judgment on the grounds that Schomburg cannot prove that

Dell was negligent or that he suffered from serious mental and

emotional harm accompanied by objective physical symptoms. In

response, Schomburg merely argues that he experienced emotional

distress and that it is for the jury to decide whether Dell was

negligent.

Under New Hampshire law, a claim for negligent infliction of

emotional distress depends upon proof that the plaintiff suffered

physical symptoms caused by his emotional distress. Palmer v .

Nan King Restaurant, Inc.,

8 1 , 684 (2002). Proof that

emotional distress caused physical symptoms requires expert

testimony. Silva v . Warden,

7 2 , 374 (2003).

Schomburg offers no evidence of any kind that he suffered

physical symptoms caused by his emotional distress. Therefore,

13 he cannot prove his claim. Dell is entitled to summary judgment

on Schomburg's negligent infliction of emotional distress claim.

Conclusion

For the foregoing reasons, the defendant's motion for

summary judgment (doc. n o . 33) is granted as to all claims

brought in this case. The clerk of court shall enter judgment

accordingly and close the case.

SO ORDERED.

)Joseph A. DiClerico, Jr __ . vjJoseph United States District Judge October 1 5 , 2007

cc: Kevin M . Fitzgerald, Esquire Christopher H . Hahn, Esquire Paul Lanagan, Esquire Bradley M . Lown, Esquire

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