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Perry v. Isle Of Wight County

United States District Court, E.D. Virginia, Norfolk Division

August 10, 2017

LISA T. PERRY, Plaintiff,


          Raymond A, Jackson United States District Judge

         This Memorandum Opinion and Order is issued after a bench trial in the above-styled matter to resolve Lisa T. Perry's ("Plaintiff") claim against the Isle of Wight County ("Defendant") for failing to reinstate Plaintiff in violation of the Family Medical Leave Act ("FMLA"). Plaintiff was employed by Defendant and was not reinstated to her position after her FMLA leave ended. For the reasons set forth herein, the Court FINDS Defendant liable for violating the FMLA and enters judgment for Plaintiff.


         On May 12, 2015, Defendant removed this action from Isle of Wight Circuit Court. ECF No. 1. On October 28, 2015, Plaintiff filed an Amended Complaint alleging that Defendant had engaged in (1) Retaliation in Violation of the FMLA and (2) Failure to Reinstate in Violation of the FMLA. ECF No. 16. On January 24, 2017, after full briefing by the parties, the Court granted in part and denied in part Defendant's Motion for Summary Judgment. ECF No. 48. The Court dismissed Count I of the Amended Complaint, leaving Count II as the only remaining claim of the Amended Complaint.

         The Court held a bench trial on March 7, 2017. ECF No. 59. The parties have filed post-trial briefs and this matter is now ripe for judicial determination. The Court issues the following Findings of Fact and Conclusions of Law, as required by Rule 52(a) of the Federal Rules of Civil Procedure.


         A. Stipulated Facts

         The parties have stipulated to the following facts, which the Court accepts and finds:

1. On May 2, 2014, Plaintiff injured her shoulder by falling through a hatch on the deck of a large catamaran sailboat.
2. On approximately May 7, 2014, Plaintiff had an appointment with an orthopedic surgeon, Dr. Jason Smith. Dr. Smith took x-rays and informed Plaintiff she had a fracture in her upper left arm.
3. Dr. Smith prescribed Perry pain medication and instructed her to wear her arm in a sling for 30 days.
4. Except for taking off a few days at the end of May, 2014, Plaintiff worked through May and most of June.
5. On June 26, 2014, having obtained no relief, Plaintiff saw Dr. Douglas Boardman, who diagnosed Plaintiff with "frozen shoulder, " or "immobility in the shoulder area." Dr. Boardman prescribed aggressive physical therapy, pain medication, scheduled a follow-up appointment for July 31, 2014 and recommended that Plaintiff take at least 30 days off from work.
6. From June 27, 2014 until July 31, 2014, Lisa Perry was entitled to FMLA leave. At the July 31, 2014, appointment with Dr. Boardman, Plaintiff was advised by Dr. Boardman not to return to work until Monday, August 4lh. Perry did not inform Defendant of this on July 31, August 1, August 2, or August 3 (August 2 and 3, 2014, were a Saturday and Sunday). Plaintiff contends she was entitled to leave on August 1, a Friday, and should have been allowed to return to work on August 4. Defendant disputes this and contends her leave ended on July 31.
7. Plaintiff had a salary and benefit package at the point at which her employment terminated worth, at least, $98, 000 per year.
8. Plaintiffs Exhibits 1, 3, 5, 6 and 7 are authentic Isle of Wight documents and stipulated as admissible into the trial record without further testimony or support.

         B. Additional Factual Findings

         The Court has made the following additional factual findings:

1. On July 2, 2014, Plaintiff filled out, signed, and submitted Isle of Wight County's "Request for Family/Medical Leave" form. In the space labeled "Date Leave Ends, " Plaintiff wrote "7/31/14 *". Under that space, Plaintiff wrote, "* with doctor's approval." Def s Ex. 3; Trial Tr. 29:1-12, 108:4-25.
2. On July 9, 2014, Linda Tuck (Defendant's Human Resources Coordinator) called Plaintiff to discuss Plaintiffs FMLA leave. Plaintiff informed Ms. Tuck that she would be having an appointment with her orthopedic surgeon, Dr. Boardman, on July 31, 2014. Trial Tr. 32:24-33:25, 109:1-110:6.
3. On July 14, 2014, Dr. Boardman faxed Defendant a form certifying Plaintiffs FMLA leave. On the form, Dr. Boardman wrote that the probable duration of Plaintiffs condition was the end of July 2014. Dr. Boardman listed 7/31/14 as the date of Plaintiff s next appointment. Pi's Ex. 2; Trial Tr. 85:10-86:5.
4. On July 14, 2014, Defendant approved Plaintiffs request for FMLA leave and mailed Plaintiff two documents: the "Notice of Eligibility and Rights & Responsibilities, " Pi's Ex. 3, and the "Designation Notice, " Pi's Ex. 7. Trial Tr. 68:8-69:9.
5. Defendant considered Plaintiffs failure to appear at work on Friday, August 1, 2014 as a voluntary resignation from her ...

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