United States District Court, E.D. Virginia, Norfolk Division
LISA T. PERRY, Plaintiff,
ISLE OF WIGHT COUNTY, Defendant.
MEMORANDUM OPINION AND ORDER
Raymond A, Jackson United States District Judge
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.
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.
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
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
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
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.
Additional Factual Findings
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,
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,
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.
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.
5. Defendant considered Plaintiffs failure to appear at work
on Friday, August 1, 2014 as a voluntary resignation from her