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Leclair v. Berkshire Union Free School District

October 28, 2010




Presently before the Court is a Motion for summary judgment by Defendant Berkshire Union Free School District ("BUFSD") against Jacqueline LeClair ("Plaintiff"). Dkt. No. 28. In her Complaint, Plaintiff brings claims for inference with her rights under the Family and Medical Leave Act ("FMLA"), interference with Plaintiff's ability to exercise her rights under the FMLA because of failure to provide notice, and retaliation against Plaintiff for attempting to exercise her FMLA rights. Dkt. No. 1. For the reasons that follow, Defendant's Motion is granted with respect to Plaintiff's claim for interference, but denied with respect to Plaintiff's claims for failure to provide notice and for retaliation.


In September 2006, Defendant hired Plaintiff as a probationary Teaching Assistant. Dkt. No. 1 ¶ 7. After being hired by Defendant, Plaintiff joined the Berkshire Teacher's Union. Defendant's Motion (Dkt. No. 28), Gaudette Aff. ¶ 6. The Berkshire Teacher's Union and Defendant had negotiated a Collective Bargaining Agreement ("CBA"), under which Plaintiff and other union employees were eligible for a specified amount of paid sick, personal, and bereavement leave during their first five years of employment. Id. ¶ 4. Plaintiff was provided with a copy of this agreement at the time of her entrance interview. Leclair Aff. (Dkt. No. 32) ¶54. Defendant informs all probationary employees that, irrespective of the amount of leave they are eligible for under the CBA, attendance is a significant factor in Defendant's decision as to whether the employee will continue to work for the Defendant and/or receive tenure. Gaudette Aff. ¶ 6.

The procedure for taking leave in the School District depends on whether the employee anticipates in advance that leave will be needed. Gaudette Aff. ¶ 9. If the employee anticipates in advance that she will need leave, she is required to submit a "Time Off Request Form." Id. However, if the employee is not able to anticipate that she will need leave ahead of time, the employee is supposed to call a central number and report that she is unable to come into work. Gaudette Aff. ¶ 9. Plaintiff was informed of this procedure for requesting leave shortly after her initial hire. Defendant's Motion, Ex. M at 66-67.

During Plaintiff's employment, Sherri Spanoil, an employee of Defendant, stated that she posted a FMLA notice in the teacher's lounge. Defendant's Motion, Ex. P at 19:11-20:7. Also, the School District did maintain an FMLA policy, School District Policy No. 6551, during Plaintiff's employment. Gaudette Aff., ¶ Ex. B; Defendant's Motion, Ex. N at 70. This policy was kept in the Superintendent's office and was available upon request, but was not automatically sent to Defendant's employees. Hoke Decl., Ex. K, 70:9-21. Moreover, according to the evidence provided by Plaintiff, during Plaintiff's employment, employees were not otherwise notified of their rights and responsibilities under the FMLA. Hoke Decl. (Dkt. No. 31), Ex. K, 69:1-10; 70:15.

Because the FMLA requires an employee to work at least 12 months before they become eligible for FMLA protections, 29 U.S.C. § 2611(2)(A)(i), Plaintiff was not covered by the FMLA during the 2006-2007 school year but she was covered during the 2007-2008 school year. During the 2006-2007 school year, Plaintiff took leave on 17 separate occasions which totaled approximately 12.5 days of sick leaves, 4 days of personal leave, and 3 days of bereavement leave. Gaudette Aff. ¶ 9, Ex. A. In March 2007, Superintendent of Schools James Gaudette ("Superintendent Gaudette") became aware that Plaintiff had exceeded the amount of paid leave she was eligible for under her contract. Id. ¶ 9. Superintendent Gaudette reviewed the "Absence Verification Summary" for Plaintiff, which summarizes all the leave taken by a specific employee and also includes the date, amount, and categorical reason that the leave was taken. Id. By March 2007, Plaintiff had taken approximately twelve and a half days of leave on seventeen separate occasions. Id. Under the terms of the CBA, Plaintiff had been eligible for 10 days of sick leave, four days of personal leave, and three days of bereavement leave. Gaudette Aff. ¶ 9, Ex. A. Plaintiff had exceeded her sick leave under the CBA for the 2006-2007 school year, and therefore she received unpaid leave, which is not covered by the CBA. Gaudette Aff. ¶ 9.

In reviewing Plaintiff's Absence Verification Summary, Superintendent Gaudette also became concerned that many of Plaintiff's absences had occurred during extended holidays and weekends. Id. Plaintiff had taken leave on four separate Mondays, one Friday, a conjoining Monday, Tuesday, and Wednesday, a conjoining Monday and Tuesday, and the day after the New Years holiday. Id. By this time, Plaintiff had requested leave in advance four times by filling out Time Off Request Forms; and she only once provided a basis on the form for the requested leave. Id.

After reviewing Plaintiff's Absence Verification Summary, Superintendent Gaudette issued Plaintiff a letter informing her that he had concerns about her absenteeism. Gaudette Aff. ¶ 9, Ex. E. Plaintiff requested additional leave in the 2006-2007 school year, with her leave during that year totaling nearly fourteen days on twenty separate occasions. Gaudette Aff. ¶ 10, Ex. F. Plaintiff's Summative Evaluation Report for the 2006-2007 school year noted that Plaintiff needed to improve her attendance record during the following school year. Gaudette Aff. ¶ 10, Ex. G.

However, the School District offered Plaintiff employment for the 2007-2008 school year. Gaudette Aff. ¶ 10. In October 2007, Plaintiff's husband suffered a series of seizures that required emergency medical attention, and Plaintiff appeared in Superintendent Gaudette's office in order to explain to him that her husband was sick and that she would need a few days off to take him to the doctor. Gaudette Aff. ¶ 11; LeClair Aff. ¶ 35. Plaintiff explained to Superintendent Gaudette that because her husband's health had taken a turn for the worse, she would need additional leave to take him to medical appointments. Gaudette Aff. ¶ 35. Superintendent Gaudette responded by telling Plaintiff to take as much time as she needed. Gaudette Aff. ¶ 11

Plaintiff was arrested for petty larceny on March 13, 2008 because she was accused of using a credit card in the name of her husband's employer without permission, and Defendant was notified of this arrest in April. Gaudette Aff. ¶ 12, Ex. H. The School District decided not to take any action against Plaintiff with regard to her arrest until her legal case was resolved. Hoke Decl., Ex. L at 45:15-48:5. The charges were eventually dropped, and no disciplinary action was taken against Plaintiff as a result of her arrest. Gaudette Aff. ¶ 12.

During the 2007-2008 academic school year, Plaintiff requested leave on twenty-seven occasions totaling 15.5 sick and personal leave days. LeClair Aff, Ex. I. According to Plaintiff, all but 3.499 days of non-qualified sick and personal time and 2.462 days of funeral leave for the death of a family member were taken to care for Plaintiff's chronically ill husband. LeClair Aff. ¶¶ 16-20; Gaudette Aff., Ex. L. She requested leave in advance ten times with regard to eleven instances of leave. Gaudette Aff. ¶ 13, Ex. J. Three of Plaintiff's Time Off Request Forms noted she was taking her husband to the doctor as the reason she needed leave. Gaudette Aff. ¶ 13, Ex. J; Defendant's Motion, Ex. N at 93-94.

In a letter dated June 19, 2008, Superintendent Gaudette informed Plaintiff that he intended to recommend that the Board of Education terminate her. Defendant's Motion, Ex. K. According to Plaintiff, she was aware of the existence of the FMLA before July 2008, but she thought this legislation was for pregnancy-related absences. LeClair Aff. ¶ 50. However, after learning she was likely to be terminated, Plaintiff further researched her rights as an employee under the FMLA. LeClair Aff. ¶ 43.

Plaintiff once again approached Superintendent Gaudette after receiving his letter and told him that many of her undocumented absences were related to providing care for her husband. Gaudette Aff. ¶ 14. She also provided Superintendent Gaudette with a copy of her 2007-2008 Absence Verification Summary that contained notations in an effort to substantiate her absences. Gaudette Aff. ¶ 14, Ex. L; Defendant's Motion, Ex. M at 99. These notations indicated that twelve of Plaintiff's absences during the 2007-2008 school year related to assisting her husband for a total of seven days of leave. Gaudette Aff. ¶ 14, Ex. L. On July 8, 2008, Plaintiff also wrote to Superintendent Gaudette and the President of BUFSD's Board of Education. This letter informed Secretary Gaudette that Plaintiff's "husband in October 2007 took a turn for the worse having seizures. He was hospitalized on October 11th and immediately the following week I had a meeting with you of the current situation and explaining that I would be taking intermittent time to for his diagnostic and treatment appointments. I assured you that I would do my best to arrange appointments so that it would affect my attendance as little as possible." LeClair Aff., Exs. G and H. This letter also informed Superintendent Gaudette that Plaintiff believed her FMLA rights were being infringed upon and that her termination was in retaliation for exercising her FMLA rights. Id.

After Superintendent Gaudette received Plaintiff's July 8 letter, she was called to the Superintendent's office where he reaffirmed that she would be terminated for her excessive absences. Gaudette Aff. ¶ 45. On July 25, 2008, Plaintiff was again informed in a letter by Superintendent Gaudette that her performance was being terminated for absences. This letter noted that Plaintiff had been absent "on average 15 days per year since the commencement of your employment with the District," that she had been absent "a total of 15 1/2 sick and personal days" in 2007-2008, and that "half or your sick and personal time resulted in an extension of a weekend." LeClair Aff., Ex. I.

Plaintiff was never told in advance that she could not take leave to care for her husband, or that she would suffer adverse employment consequences for taking such leave. Gaudette Aff., ¶ 15. However, Superintendent Gaudette did indicate during his deposition that Plaintiff's termination was the result of her overall absenteeism, coupled with two other factors: her arrest and using time from the sick bank. Hoke Decl., Ex. K at 112:10-19. Superintendent Gaudette specifically noted that five absences would not have been considered excessive, and noted that he only becomes concerned about absenteeism once absences enter the double digits. Hoke Decl., Ex. K at 61:19- 62:4, 48:9-10. During Plaintiff's employment, performance evaluations consistently rated her as above-average at fulfilling her duties as a Teaching Assistant. LeClair Aff. ¶ 39, Exs. D, E, F.

Superintendent Gaudette recommended Plaintiff's termination to the Board of Education. Gaudette Aff. ¶14. On August 18, 2008, the School Board accepted Mr. Gaudette's recommendation and voted to terminate Plaintiff's employment. Gaudette Aff. ¶14.


A. Legal Standard for Summary ...

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