Employment - FMLA - ADA.

Byline: Mass. Lawyers Weekly Staff

Where a plaintiff employee has alleged violations of the Family and Medical Leave Act, Massachusetts state law and the Americans with Disabilities Act, and tortious interference, the defendant employer's motion for summary judgment is granted, except as to the plaintiff's claim that the defendants retaliated against him for asserting his FMLA rights by issuing a performance improvement plan and completing the review after he resigned.

"Elliott Eichenholz is suing his former employer, Brink's Incorporated ('Brink's'), and his former supervisor, Gordon Campbell, for alleged violations of the Family and Medical Leave Act ('FMLA'), discrimination under Massachusetts state law and the Americans with Disabilities Act ('ADA'), and tortious interference. At the conclusion of discovery, Eichenholz moved for summary judgment on the FMLA claims and the defendants cross-moved for summary judgment on all claims.

"On October 14, 2015, Eichenholz saw a doctor and decided to have surgery to correct a problem he was experiencing with his left foot. The same day, he notified his supervisor, Campbell, that he intended to have surgery.

"Eichenholz received multiple extensions of his leave, and the entire period of time was treated as FMLA leave, for which he was fully paid.

"A few days before Eichenholz's leave was set to begin, he had a phone call with Campbell where Campbell discussed areas in which he wanted Eichenholz to improve, and the topic of a performance improvement plan ('PIP') came up. On November 11, 2015, while Eichenholz was on leave, Brink's sent Eichenholz a PIP by mail to his home.

"On February 1, 2016, Eichenholz sent an email to Campbell, copying Jordan, in which he resigned from his position at Brink's. Eichenholz stated that he was resigning 'in order to ensure that [he was] no longer subjected to a hostile work environment' and mentioned the 'improper and pretextual Performance Improvement Plan' issued while he was on leave.

"Eichenholz moves for summary judgment on the FMLA retaliation claim (Count I) and the FMLA interference claim (Count II).

"In order to establish a prima facie case of FMLA retaliation, Eichenholz must establish that: (1) he availed himself of a protected FMLA right; (2) he was adversely affected by an employment decision; and (3) there was a causal connection between his protected conduct and the adverse employment action. Germanowski v. Harris, 854 F.3d 68, 73 (1st Cir. 2017)...