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Morse v. TBC Retail Group, Inc.

United States District Court, First Circuit

December 19, 2013

Matthew R. Morse, Plaintiff
TBC Retail Group, Inc., Defendant Opinion No. 2013 DNH 174


STEVEN J. McAULIFFE, District Judge.

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.


In September of 2010, Mr. 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 28, 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 no. 1) at para. 25. 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 Mr. Morse was not there." Id. at para. 30. 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." Id. at para. 31. 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 ground, it has filed a "Motion to Dismiss, or in the Alternative, for Summary Judgment." Plaintiff objects.


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 surreply.

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, etc.). Plainly, then, the parties have treated defendant's motion as one for summary judgment. The court will do the same. See generally Santiago v. Canon U.S.A., Inc. , 138 F.3d 1, 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 , 904 F.2d 112, 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. , 103 F.3d 196, 199-200 (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. , 477 U.S. 242, 249-50 (1986) (citations omitted).

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 no. 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 ...

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