Morse v . TBC Retail Group, Inc. 13-CV-065-SM 12/19/13 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Matthew R. Morse, Plaintiff

v. Case N o . 13-cv-65-SM Opinion N o .

TBC Retail Group, Inc., Defendant

O R D E R

Matthew Morse brings this action seeking damages for what he

claims was the unlawful termination of his employment.

Specifically, he says he was fired in retaliation for having

taken leave time that was protected under the Family Medical

Leave Act (“FMLA”). Defendant moves for summary judgment,

asserting that Morse was not an “eligible employee” under the

FMLA and, therefore, his claim fails as a matter of law.

For the reasons discussed, defendant’s motion for summary

judgment is granted.

Background

In September of 2010, M r . Morse began working at Carroll

Tire Company, a wholesale tire warehouse in Lebanon, New

Hampshire. In December of 2011, after he had exhausted all of

his allotted vacation and personal days, Morse injured himself and was admitted to the hospital. As a consequence, he missed

three days of work. Morse informed his supervisor of the

situation on December 2 8 , 2011. Although the supervisor was

aware that Morse had already used all his personal and vacation

time for the year, he assured Morse that it was not a problem.

Morse was paid for the three days he missed work.

About three weeks later (in January of 2012), Morse asked

his supervisor if he could take a vacation day. He claims his

request was denied because “he had taken too much time off in

2011.” Complaint (document n o . 1 ) at para. 2 5 . Morse complained

to the human resources representative and was subsequently

permitted to take the day off. A month later, Morse’s employment

was terminated. He says he was told that he had been “out a lot

and [his employer] could not run the place if M r . Morse was not

there.”

at para. 3 0 . Based upon those facts, Morse

concludes that, “It is clear that [his] termination was in

retaliation for his taking a medical leave in late-December.”

at para. 3 1 . That, says Morse, violated his rights under the

FMLA.

Defendant says Morse’s claim fails as a matter of law

because he was not an “eligible employee” under the FMLA, so the

FMLA’s provisions are not applicable in this case. On that

2 ground, it has filed a “Motion to Dismiss, or in the Alternative,

for Summary Judgment.” Plaintiff objects.

Discussion

I. Defendant’s Motion is One for Summary Judgment.

It is probably best to begin by identifying the precise

nature of defendant’s motion (and the appropriate standard of

review). Although the motion seeks relief in the alternative -

dismissal or summary judgment - at this juncture, it is plain

that the court must treat it as one for summary judgment. In

response to defendant’s motion, plaintiff filed an objection.

That prompted defendant to file a reply. And that, in turn,

prompted plaintiff to file a motion for leave to file a sur-reply

(which the court granted, over defendant’s objection). Finally,

plaintiff thought it necessary to file a motion to strike

defendant’s objection to his motion for leave to file a sur-

reply.

The salient point is this: the parties have submitted a

substantial volume of material outside of the original complaint,

in the form of affidavits and attachments (e.g., printouts of

webpages from the Internet, corporate organizational charts, tax

and payroll records, e t c . ) . Plainly, then, the parties have

treated defendant’s motion as one for summary judgment. The

3 court will do the same. See generally Santiago v . Canon U.S.A.,

Inc.,

, 4 n.5 (1st Cir. 1998).

Because defendant’s motion is properly treated as one 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). Summary

judgment is appropriate when the record reveals “no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). In this

context, “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.” Int’l Ass’n of Machinists & Aerospace Workers v .

Winship Green Nursing Ctr.,

(1st Cir. 1996)

(citations omitted). Nevertheless, if the non-moving party’s

“evidence is merely colorable, or is not significantly

probative,” no genuine dispute as to a material fact has been

proved, and “summary judgment may be granted.” Anderson v .

Liberty Lobby, Inc.,

4 2 , 249-50 (1986) (citations

omitted).

4 Parenthetically, the court notes that plaintiff’s counsel

has suggested - but not moved - that the court delay ruling on

defendant’s motion until discovery has closed. See Plaintiff’s

objection (document n o . 6-1) at 9 (“Defendant’s instant Motion

for Summary Judgment is premature, and the Court should reserve a

ruling on the Motion until following the close of discovery in

this case.”). Although counsel alludes to Rule 56(d) of the

Federal Rules of Civil Procedure, she has not complied with its

requirements - no doubt recognizing that she could not, in good

faith, argue that additional discovery would provide any relevant

information that defendant has not already supplied.

As the court of appeals has noted, a party seeking relief

under Rule 56(d) (formerly, Rule 56(f)) must comply with certain

procedural requirements.

[T]he prophylaxis of Rule 56(f) is not available merely for the asking. A litigant who seeks to invoke the rule must act with due diligence to show that his predicament fits within its confines. To that end, the litigant must submit to the trial court an affidavit or other authoritative document showing (i) good cause for his inability to have discovered or marshalled the necessary facts earlier in the proceedings; (ii) a plausible basis for believing that additional facts probably exist and can be retrieved within a reasonable time; and (iii) an explanation of how those facts, if collected, will suffice to defeat the pending summary judgment motion.

Rivera-Torres v . Rey-Hernandez,

, 10 (1st Cir. 2007)

5 (citations omitted) (emphasis supplied). Moreover, absent

unusual circumstances, a party cannot object (on substantive

grounds) to a pending motion for summary judgment, while also

seeking time for additional discovery if that objection proves

unavailing - as Morse has attempted to do here. See, e.g., C.B.

Trucking, Inc. v . Waste Mngt., Inc.,

1 , 44 (1st Cir.

1998) (“a party ordinarily may not attempt to meet a summary

judgment challenge head-on but fall back on Rule 56(f) if its

first effort is unsuccessful.”).

To the extent plaintiff’s passing reference to Rule 56(d)

might be construed as a motion seeking relief under that rule (it

is not, see Local Rule 7.1(a)(1) and ( 2 ) ) , that request is

denied. It is not supported by an affidavit or declaration, nor

has counsel identified any additional information - beyond the

voluminous records already disclosed by defendant - she believes

would be necessary to defeat summary judgment.

II. Plaintiff is not an “Eligible Employee”

An individual is entitled to the protections afforded by the

FMLA only if he or she qualifies as an “eligible employee.”

Excluded from the definition of eligible employee i s :

any employee of an employer who is employed at a worksite at which such employer employs less than 50 employees if the total number of employees employed by

6 that employer within 75 miles of that worksite is less than 5 0 .

(2)(B)(ii).1 The pertinent regulations provide

that “whether 50 employees are employed within 75 miles to

ascertain an employee’s eligibility for FMLA benefits is

determined when the employee gives notice of the need for leave.”

(e). In this case, plaintiff notified his

employer of the need to be absent from work due to his injury on

December 2 8 , 2011. Complaint, at para. 2 1 .

Defendant says that because Carroll Tire Company did not

employ 50 or more people a t , or within 75 miles o f , Morse’s

worksite on December 2 8 , 2011 (or at any time in 2010 or 2011),

Morse does not qualify as an eligible employee under the FMLA

and, therefore, his claim necessarily fails. Morse objects on

several grounds. First, he simply “disputes” defendant’s

assertion that it (or Carroll Tire Company) employed fewer than

1 The 75-mile distance “is measured by surface miles, using surface transportation over public streets, roads, highways and waterways, by the shortest route from the facility where the employee needing leave is employed.”

(b). As the court of appeals for this circuit has observed, the “75–mile rule protects those employers (and their employees) whose businesses require separate worksites from the cumbersome requirement of relocating or commuting over large distances to cover for an employee on leave. Moreover, the 75–mile requirement prevents companies from establishing separate worksites in order to circumvent obligations under the FMLA and other labor rules.” Engelhardt v . S.P. Richards Co.,

, 6 (1st Cir. 2006).

7 50 people within the relevant 75 miles radius of his worksite.

But, aside from an unsupported contradiction, he points to

nothing that might substantiate his “eligible employee” status.

Unsupported, speculative declarations are of course insufficient

to defeat a properly supported motion for summary judgment. See

generally Serapion v . Martinez,

8 2 , 987 (1st Cir.

1997).

Next, Morse asserts that there is a genuine and material

dispute as to which corporate entity within a larger corporate

structure was actually his employer. And, he goes on to

(repeatedly) accuse defendant of trying to mislead the court

about critical facts and legal principles central to determining

his employment status. See Plaintiff’s Objection (document n o .

6-1) at 5 (“However, the defendant fails to apprise the Court as

to the applicable law for determining whether the employer

employed the requisite 50 employees.”); id. at 6 (“In a continued

effort to convince the Court that Plaintiff was an ineligible

employee under the FMLA, the Defendant boldly fails to disclose

one of its worksites to the Court.”).

Those accusations are, however, unfounded. No doubt part of

Morse’s confusion about his employment status (and concomitant

frustration) stems from the somewhat complex corporate structure

8 of which Carroll Tire Company is a part. It is described in

detail in the Declaration of Jolen Medwid (document n o . 11-1) and

need not be recounted. See also Affidavit of Patrick Dougherty

(document n o . 1 1 - 9 ) . It is sufficient to note that the parent

company is TBC Corporation - a holding company which, at all

times relevant to this litigation, had no employees of its own.

See Affidavit of Anthony Robinson (document n o . 4-2) at para. 1 2 .

Under the corporate umbrella of TBC Corporation, there are

several subsidiaries, including:

Carroll’s LLC, which operates wholesale tire warehouses under the name “Carroll Tire Company” (this is the entity defendant says employed Morse at the facility in Lebanon, New Hampshire; the closest Carroll Tire Company store is located in Auburn, Maine, approximately 130 miles from the Lebanon store);

TBC Retail Group, Inc., which is the named defendant and the entity Morse says was his employer. TBC Retail Group, Inc. operates automotive repair and service shops under the name “Tire Kingdom,” the closest of which is located in Williston, Vermont; and

NTW, LLC, which operates “National Tire & Battery” stores (also known as “NTB”), the closest of which is located in Manchester, New Hampshire.

But the apparent dispute over which of those corporate

entities actually employed Morse is not material. As discussed

below, even assuming that all the entities identified by Morse

that fall under the TBC Corporation corporate umbrella with a

presence even arguably within 75 miles of Morse’s worksite are

9 jointly treated as his employer for FMLA purposes, he still does

not qualify as an “eligible employee.”

In response to plaintiff’s unfounded accusations, defendant

is appropriately measured. First, it correctly points out that

whether it is an “employer” under the FMLA is not at issue in

this case. Hence, there is no need to “apprise” the court of the

relevant law on that point, nor is it necessary to submit data to

calculate the number of employees on its payroll for 20 or more

weeks in 2010 or 2011. 2

Next, defendant notes that it has not “boldly failed” to

disclose relevant worksites to the court. According to

defendant, one of the allegedly “omitted” worksites to which

Morse refers (the NTB store in Manchester, New Hampshire) is not

2 Plaintiff perhaps confuses the standard applicable in determining whether one is an “employer” under the FMLA with that applicable in determining whether one is an “eligible employee.” Only the former involves an inquiry into the number of employees on the payroll “for 20 or more calendar weeks in the current or preceding year.”

(4)(a)(i). That misunderstanding seems to be at the core of plaintiff’s accusation that defendant attempted to hide relevant information about the number of employees on its payroll during 2010 and 2011. See Plaintiff’s Objection (document n o . 6-1) at 5-6. In determining whether Morse was an “eligible employee” under the FMLA, there is only one relevant date - December 2 8 , 2011. Nevertheless, defendant has supplemented the record and provided payroll records for 2010 and 2011 for both Carroll’s, LLC and TBC Retail Group, Inc. (d/b/a Tire Kingdom), so there can be no dispute on that particular point.

10 operated by Morse’s corporate employer and, therefore, its

proximity to plaintiff’s worksite is irrelevant. The second

allegedly “omitted” worksite (the Tire Kingdom store in

Williston, Vermont) is not only operated by a different corporate

entity, but it is also more than 75 miles from Morse’s worksite

(as properly measured).

Nevertheless, says defendant, even if plaintiff were jointly

employed by the entity he claims (TBC Retail Group, Inc.) and the

entity defendant says was his employer (Carroll’s LLC) and the

entity that operates National Tire & Battery (NTW, L L C ) , and the

parent corporation (TBC Corporation), he still would not qualify

as an “eligible employee” under the FMLA, because those entities

combined do not employ more than 50 people within 75 miles of

Morse’s worksite. See generally Engelhardt v . S.P. Richards Co.,

(1st Cir. 2006) (discussing the concepts of “joint

employer” and “integrated employer”). The undisputed evidence of

record is that, as of December 2 8 , 2011, those entities employed

a total of 39 employees. See Affidavit of Patrick Dougherty

(document n o . 11-9) at paras. 8 , 1 1 , and 1 4 . See also Affidavit

of Julie Aramouni (document n o . 1 3 - 1 ) ; Affidavit of Anthony

Robinson (document n o . 4 - 2 ) .

11 The testimony of those affiants can be summarized as

follows: Entity Employees on Distance 12/28/11 “Carroll Tire Company” 19 0 miles Lebanon, New Hampshire (Carroll’s, LLC)

“Nat’l Tire & Battery” 11 72 miles Manchester, New Hampshire (NTW, LLC)

“Tire Kingdom” 9 93 miles Williston, Vermont (TBC Retail Group, Inc.) TBC Corporation 0 N/A

Total: 39

That fact is reinforced in M s . Aramouni’s affidavit, in which

she testified that:

Since January 1 , 2011, there has been only one TBC- affiliated location (i.e., a branch, store or facility or any entity owned, leased, or operated by TBC Corporation or by any of its subsidiaries or entities beneath those subsidiaries) within 75 surface travel miles (i.e., travel using public streets, roads, highways and/or waterways) of the Lebanon, New Hampshire Carroll’s location: the National Tire & Battery (“NTB”) store located at 1985 S . Willow Street, Manchester, New Hampshire. . . . .

Other than the Manchester NTB location, since January 1 , 2011, there have been no TBC-affiliated, owned, leased, or operated locations within 75 surface travel miles of the Lebanon Carroll’s location. In other words, since January 1 , 2011, other than the Manchester NTB location, there has been no location of an corporate entity beneath TBC Corporation’s large orate umbrella within 75 surface travel miles of

12 the Lebanon Carroll’s location (where plaintiff worked).

at paras. 4-5 (emphasis supplied).

The undisputed record evidence establishes that the various

entities Morse has identified - the NTB store in Manchester, the

Tire Kingdom store in Williston, and the Carroll Tire Company

store in Lebanon - employ too few people in the area for the

employees at the Lebanon, New Hampshire, Carroll Tire Company

store (like Morse) to be covered by the FMLA as “eligible

employees.” Because the FMLA permits only “eligible employees”

to bring civil actions against their employers for violations of

the statute, the sole count in Morse’s complaint fails as a

matter of law. See

(a)(1) (“Any employer who

violates section 2615 of this title shall be liable to any

eligible employee affected” for damages and/or equitable

relief.) (emphasis supplied).

To be sure, the court of appeals for this circuit has left

open the possibility that an employee who is not eligible for

FMLA leave might, under very unusual circumstances, still assert

a viable retaliation claim. McArdle v . Dracut,

(1st

Cir. 2103). The court posited that an employee who was fired

for having inquired into his or her eligibility for FMLA leave

13 might have a viable retaliation claim.

(noting that

firing an employee for asking about his or her eligibility under

the FMLA, whether actually eligible or not, would frustrate the

purposes of the statute by deterring employees from taking the

first step necessary to exercise their statutory rights).

Morse’s retaliation claim arises, however, in a very different

context, and the dicta in McArdle does not support his claim -

nowhere in his complaint is there even a suggestion that he was

aware of the FMLA when he notified his supervisor of his injury,

nor does he allege that he ever inquired about rights he might

have under that statute, nor does he allege that he was fired

for having made such an inquiry.

Conclusion

The undisputed material facts of record establish that, as

of the date on which he arguably (albeit implicitly) invoked

rights under the FMLA (December 2 8 , 2011), Morse was not an

“eligible employee.” Accordingly, his claim that he was the

victim of unlawful “discrimination and/or retaliation for having

taken FMLA-protected leave time,” Complaint at para. 5 0 , fails

as a matter of law.

For the foregoing reasons, as well as those set forth in

defendant’s memoranda, defendant’s Motion to Dismiss, or in the

14 Alternative, for Summary Judgment (document no. 4) is granted.

Plaintiff’s Motion to Strike Defendant’s Objection to

Plaintiff’s Motion for Leave to File a Surreply to Defendant’s

Reply to Plaintiff’s Objection to Defendant’s Motion to Dismiss

or, in the Alternative, for Summary Judgment (document no. 14)

is denied.

The Clerk of Court shall enter judgment in accordance with

this order and close the case.

SO ORDERED.

^ e n J. McAuliffe St nited States District Judge December 19, 2013

cc: Heather M Heather M . Burns, Esq. Anne Anne S . Bider, Esq. Dani Daniel B . Klein, Esq. Lauren S . Wachsman, Esq. Brian L. Michaelis, Esq.

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