Barry Gainsburg v. Steben & Co., Inc. , 519 F. App'x 199 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1476
BARRY R. GAINSBURG,
Plaintiff - Appellant,
v.
STEBEN & CO., INC.; KENNETH E. STEBEN,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, Senior District
Judge. (8:10-cv-00715-PJM)
Argued: March 19, 2013 Decided: April 29, 2013
Before TRAXLER, Chief Judge, and WILKINSON and NIEMEYER, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Philip J. Sweitzer, PHILIP J. SWEITZER, LLC, Baltimore,
Maryland, for Appellant. Eric Hemmendinger, SHAWE & ROSENTHAL,
LLP, Baltimore, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
This litigation stems from appellant Barry Gainsburg’s
termination by his former employer, appellee Steben & Co.
Gainsburg alleges that the firm and its president, appellee
Kenneth Steben, unlawfully discharged him in violation of the
Maryland Flexible Leave Act (“MFLA”), Md. Code Ann., Lab. &
Empl. § 3-802, which, inter alia, prohibits retaliation against
an employee who “has taken leave authorized under” the statute.
On November 16, 2009, Gainsburg sought to reclassify his
previously scheduled December vacation as medical leave because
his father had recently fallen ill. The appellees maintain that,
because of “a series of issues and incidents” that demonstrated
Gainsburg was “not competent,” Steben & Co. was already well
into the process of hiring a replacement for him when he made
this request. Br. of Appellees at 2. Four days after Gainsburg
sought to change the status of his future leave, the firm
terminated him, having offered his position to another
individual three days earlier.
In March 2010, Gainsburg commenced this diversity action
against both Steben & Co. and Kenneth Steben in the District of
Maryland, seeking monetary damages for his allegedly unlawful
discharge. At the motion-to-dismiss phase, Gainsburg argued that
his request to take protected leave was itself protected
activity because the MFLA requires employees to take leave in
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accordance with established employer policy, see Md. Code Ann.,
Lab. & Empl. § 3-802(e)(2), and here, Steben & Co. policy
required employees to provide advance notice before taking any
leave. Thus, Gainsburg contended, the fact that he requested but
never actually took the leave at issue should not categorically
bar a court from granting him relief under the MFLA.
The trial court disagreed and dismissed Gainsburg’s claim,
finding that he was not subject to the protections of the MFLA
because he had not “taken leave authorized under” the
statute. See id. § 3-802(f)(1). Rather, the court concluded,
Gainsburg merely gave advance notice of an intent to take
protected leave sometime in the future, placing him outside the
scope of the relevant statutory language.
On appeal, Gainsburg presses the same primary argument made
below, namely that “when an employee complies with employer
policy in using leave, by giving the employer the required
advance notice under the employer’s policy, he has ‘taken’ leave
under the statute.” Br. of Appellant at 21. But Gainsburg’s
argument once again misses the mark because, by its very terms,
the MFLA applies only to an employee who “has taken leave,” not
to an employee who has taken preliminary steps to obtain
employer approval for leave. The clear language of the statute
precludes any vague, atextual argument that requesting leave or
providing notice of leave -- rather than actually taking it by
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spending time away from work -- constitutes protected activity.
As the district court correctly noted, Gainsburg has not “taken
leave” protected by the statute; he requested future leave and
was terminated before his leave began. Therefore, he cannot
state a claim for wrongful termination under the MFLA. *
Having reviewed the briefs and heard argument, we find no
error in any of the trial court’s rulings. We thus affirm the
judgment.
AFFIRMED
*
In the proceedings below, Gainsburg sought to certify a
question to the Court of Appeals of Maryland to determine
whether the MFLA should be interpreted to protect his request
for leave. The district court declined to certify the question,
and we review that decision under the familiar abuse-of-
discretion standard. See Public Citizen, Health Research Grp.
v. Comm’n on Med. Discipline of Md., 573 F.2d 863, 866 (4th Cir.
1978) (per curiam). Given the deference owed to district courts
on issues of certification and the clear meaning of the phrase
“has taken leave” in the context of this case, the district
court in no way abused its discretion in rejecting Gainsburg’s
certification request.
Gainsburg also appeals the dismissal of a defamation claim
concerning statements made by Steben & Co. officers to the
effect that Gainsburg was trying to “extort” the firm by
overzealously discharging his duties as chief compliance
officer. The district court dismissed this defamation claim --
presented for the first time in Gainsburg’s second amended
complaint -- on statute-of-limitations grounds, finding that it
did not relate back to the filing of the original complaint. As
the district court correctly noted, Gainsburg’s prior complaints
did not fairly put the appellees on notice that Gainsburg was
pursuing relief based on the “extort” statement, and thus the
added claim does not relate back. See Grattan v. Burnett, 710
F.2d 160, 163 (4th Cir. 1983). Dismissal on statute-of-
limitations grounds was therefore appropriate.
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