Skrynnikov v. Federal National Mortgage Assoc. , 226 F. Supp. 3d 26 ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
TIMOTHY SKRYNNIKOV,
Plaintiff,
v. Civil Action No. 11-609 {GK)
FEDERAL NATIONAL MORTGAGE
ASSOCIATION,
Defendant.
MEMORANDUM OPINION
Plaintiff Timothy Skrynnikov ("Plaintiff" or "Skrynnikov")
brings this action against Defendant Federal National Mortgage
Association ("Defendant" or "Fannie Mae") alleging retaliation
under the Federal False Claims Act ("FCA"), 31 U.S.C. § 3729 et
seq. , and interference with his rights under both the Federal
Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq.,
and the related District of Columbia Family and Medical Leave Act
("DCFMLA"), D.C. Code § 32-501 et seq.
This matter is before the Court on Plaintiff's Motion for
Summary Judgment ("Mot.") [Dkt. No. 54] and Defendant's Cross-
Motion for Summary Judgment ("Cross-Mot.") [Dkt. No. 55] . Upon
consideration of the Motion, the Cross-Motion, Oppositions [Dkt.
Nos. 55 and 57], and Replies [Dkt. Nos. 57 and 59], and the entire
record herein, and for the reasons set forth below, Plaintiff's
1
Motion for Summary Judgment is denied, and Defendant's Cross-
Motion for Summary Judgment is denied.
I . BACKGOUND
A. Factual Background
Fannie Mae is a government-sponsored corporation chartered by
Congress, with its headquarters in the District of Columbia.
Second Amended Complaint § 5 ("SAC") [Dkt. No. 23] . Mr. Skrynnikov
was employed by Fannie Mae as a Senior Financial Analyst in the
Financial Planning & Analysts group ("FP&A") from October 9, 2007
until November 13, 2009, when his employment was terminated. SAC
`` 6, 38. Mr. Skrynnikov's job responsibilities included preparing
a monthly document known as the Business Segment Allocation Report
("BSA Report"). Plaintiff's Statement of Undisputed Material Facts
~ 5 ("Pl. 's SMF") [Dkt. No. 54-1] . The BSA Reports included
information on "Executive Incentive Compensation." Id. ~ 7.
On March 18, 2009, United States Senator Charles Grassley
requested "Fannie Mae and Fredie Mac to account for their retention
bonus programs" ("the Grassley Request"). Pl. 's Ex. 36 [Dkt. No.
54-8]. Fannie Mae submitted its response to Senator Grassley on
March 27, 2009. Def.'s Ex. 87 [Dkt. No. 55-29]. At some point in
March 2009, Mr. Skrynnikov learned of the Grassley Request and
Fannie Mae's response through a daily news blast emailed to Fannie
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Mae employees. Arbitration Transcript at 134-35 ("Tr.") [Dkt. No.
54 - 3] .
Mr. Skrynnikov alleges that he became concerned that the
executive retention bonus data that Fannie Mae reported to Sen.
Grassley did not match the numbers in the BSA Reports he had seen.
Mot. at 2; Pl.'s SMF ~ 12. He alleges that he raised these concerns
with his supervisor at the time, Ms. Kristin DeMent Harrison. Id.
He also claims that Ms. Harrison told him that the reported numbers
would be updated in the next quarter. Id.
Mr. Skrynnikov claims that he raised these concerns again
with Ms. Harrison on April 28, 2009. Mot. at 3; Pl.'s SMF ~ 14.
According to Mr. Skrynnikov, Ms. Harrison responded to his concerns
with "agitation and anger." Id. Defendant denies that these
conversations between Ms. Harrison and Mr. Skrynnikov took place.
Cross-Mot. at 14; Tr. at 571-72. Mr. Skrynnikov alleges that after
he raised his concerns about the Grassley Request with Ms.
Harrison, she began to question his job performance. Mot. at 3.
Defendant disputes this assertion.
On July 1, 2009, Ms. Harrison gave Mr. Skrynnikov a Written
Warning for Unsatisfactory Job Performance informing him that
Fannie Mae would terminate him if he did not improve within a
reasonable time period. Pl.'s SMF ~ 16.
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On July 9, 2009, Mr. Skrynnikov sought permission from Ms.
Carrie Lee, Fannie Mae's Human Resources representative, to take
medical leave because of the stress he claims stemmed from his
poor working relationship with Ms. Harrison. Pl.'s SMF ~ 19. Ms.
Lee directed Mr. Skrynnikov to contact the Reed Group, an
independent company contracted by Fannie Mae to administer medical
leaves of absence. Id. `` 20-23.
The Reed Group approved Mr. Skrynnikov' s application for
FMLA/DCFMLA leave. Id. ~ 29. The Parties disagree on the original
date until which Mr. Skrynnikov was originally granted leave.
Nevertheless, after what appears to be extensive communication
between Mr. Skrynnikov, his doctors, the Reed Group, and Fannie
Mae's HR team, Mr. Skrynnikov was granted an extension of his FMLA
leave through October 1, 2009, which represents the full twelve
weeks permitted under the statute. Pl.'s SMF ~ 29; Def.'s Resp. to
Pl.' s SMF ~ 29 [Dkt. No. 55-30].
Mr. Skrynnikov asserts that the communication between Fannie
Mae and the Reed Group regarding the paperwork supporting his leave
differed from Fannie Mae's normal practices regarding its
involvement in the Reed Group's approval of employee leave. Mot.
at 5-8. Defendant denies these allegations.
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On October 26, after receiving additional paperwork from Mr.
Skrynnikov' s doctors justifying an extension of his leave, the
Reed Group retroactively approved an extension of his leave under
the DCFMLA which permits a maximum of 16 weeks leave, and Fannie
Mae's short-term disability leave (STD), which is not protected
leave. Cross-Mot. at 1; Pl.'s SMF, 29; Def.'s Resp. to Pl.'s SMF
, 29.
Mr. Skrynnikov claims that he was ready and able to return to
work after recovering from his depression and stress on October
26, 2009. Pl.'s Opp. at 12-13, n. 12. However, on October 21, 2009,
he wrote to Ms. Lee requesting to use vacation time for up to a
week because of a newly sustained rib injury. Pl.'s SMF, 40; Pl.'s
Ex. 68 [Dkt. No. 54-22]. Ms. Lee informed Mr. Skrynnikov that he
would have to speak to management and the Reed Group regarding his
request. Pl.'s SMF , 43. Ms. Lee also stated that he could not
return to work "unless [he was] cleared to return to work for both
conditions" by the Reed Group. Id.
The approved return-to-work date of October 26, 2009 came and
went without Mr. Skrynnikov providing the Reed Group with a new
return-to-work clearance from a doctor. He did not return to work
on that date. Pl.'s SMF, 48. Fannie Mae instructed the Reed Group
to place "the highest level of scrutiny" on Mr. Skrynnikov' s
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return-to-work certification regarding his rib injury. Pl.'s SMF
, 50; Def. Resp. to Pl.' s SMF , 50. On October 30, 2009, Mr.
Skrynnikov finally sent the Reed Group a return-to-work
certification from a doctor indicating that he would be ready to
return to work on November 2, 2009. Pl.' s SMF ,, 52, 54; Def. Resp.
to Pl. 's SMF ,, 52, 54. That same day, Mr. Skrynnikov was
retroactively approved for DCFMLA leave through October 29, 2009
and for STD through November 1, 2009, with a return to work date
of November 2, 2009. Pl.'s SMF, 55; Def. Resp. to Pl.'s SMF, 55;
Pl. 's Ex. 74 [Dkt. No. 54-24] .
On October 30, 2009, Mr. Skrynnikov received a letter from
Fannie Mae saying that he had exhausted his FMLA and DCFMLA leave
and that Fannie Mae made a business decision not to hold his
position open. Pl.'s SMF, 58; Def. Resp. to Pl.'s SMF, 58. Mr.
Skrynnikov was terminated a few days later when his STD leave
expired.
On November 15, 2009, Mr. Skrynnikov faxed a letter to Sen.
Grassley detailing his concerns regarding Fannie Mae's reporting
of executive incentive compensation. Pl.'s SMF, 60; Pl.'s Ex. 61
[Dkt. No. 54-18].
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B. Procedural Background
Mr. Skrynnikov filed his Complaint with this Court on March
23, 2011. [Dkt. No. 1]. On June 12, 2012, Mr. Skrynnikov filed his
First Amended Complaint. [DkL No. 21]. On October 11, 2012, Mr.
Skrynnikov filed a Motion to Amend his Complaint [Dkt. No. 22],
which the Court granted by Minute Order on October 15, 2012. On
October 15, 2012, Mr. Skrynnikov filed his Second Amended
Complaint, which is the operative Complaint in these proceedings.
On December 6, 2012, Defendant filed a Motion to Dismiss and
to Compel Arbitration. [Dkt. No. 26]. On May 8, 2013, the Court
denied Defendant's Motion to Dismiss without prejudice, but
granted Defendant's Motion to Compel Arbitration and stayed the
case pending the results of arbitration. May 8, 2013 Order [Dkt.
No. 31].
On November 4, 2014, the Arbitrator issued a final award
finding that Mr. Skrynnikov failed to prove the claims of both
Count 1 (Retaliation under the False Claims Act) and Count 2
(Family and Medical Leave Interference). November 24, 2014 Joint
Status Report at 1 [Dkt. No. 48]. On November 13, 2014, Mr.
Skrynnikov rejected the Arbitrator's Award in its entirety, as
provided for in Defendant's Dispute Resolution Policy. Id.
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On February 4,. 2015, Mr. Skrynnikov filed a Motion for Summary
Judgment. On March 3, 2015, Defendant filed its Cross-Motion for
Summary Judgment and Opposition to Plaintiff's Motion for Summary
Judgment. On April 3, 2015, Mr. Skrynnikov filed his Opposition to
the Cross-Motion and Reply in support of his Motion for Summary
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! Judgment ("Pl. 's Opp.") [Dkt. No. 57]. On May 4, 2015, Defendant
filed its Reply in support of its Cross-Motion for Summary Judgment
("Def.' s Rep.") [Dkt. No. 59] .
II. STANDARD OF REVIEW
Summary judgment should be granted only if the moving party
has shown that there is no genuine dispute of material fact and
that the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56, see also Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986); Johnson v. Perez, 823 F.3d 701, 705 (D.C. Cir.
2016) . A dispute of material fact is "'genuine' . if the
evidence is such that a reasonable jury could return a verdict for
the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986).
In a summary judgment motion, the moving party has the
responsibility for "informing the district court of the basis for
its motion, and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file,
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together with the affidavits, if any, which it believes demonstrate
the absence of a genuine issue of material fact." Celotex, 477
U.S. at 323 (internal quotation omitted).
The court should view the evidence in favor of the nonmoving
party and draw all reasonable inferences in favor of that party
making credibility determinations or weighing the evidence.
Johnson, 823 F.3d at 705. "However, the nonmoving party may not
rely solely on allegations or conclusory statements. Rather, the
nonmoving party must present specific facts that would enable a
reasonable jury to find in its favor." Krishnan v. Foxx, 177 F.
Supp. 3d 496, 503 (D.D.C. 2016) (citing Greene v. Dalton, 164 F.3d
671, 675 (D.C. Cir. 1999).
III. ANALYSIS
A. Retaliation under the False Claims Act {Count I)
The FCA was "designed to protect persons who assist the
discovery and prosecution of fraud and thus to improve the federal
government's prospects of deterring and redressing crime." U.S. ex
rel. Schweizer v. Oce N.V., 677 F.3d 1228, 1237 (D.C. Cir. 2012)
(internal citations omitted). To establish a claim for retaliation
under the FCA, a Plaintiff must establish: "(1) acts by the
employee 'in furtherance of' a suit under § 3730-acts also known
as 'protected activity'; and (2) retaliation by the employer
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against the employee 'because of' those acts." U.S. ex rel.
Schweizer, 677 F.3d at 1237 (quoting United States ex rel. Yesudian
v. Howard Univ., 153 F.3d 731, 736 (D.C. Cir. 1998)).
To establish the first element of a claim under the FCA, a
plaintiff must show that he had an "objectively reasonable basis
to believe that []he was investigating matters that reasonably
could lead to a viable False Claims Act case." Hoyte v. Am. Nat.
Red Cross, 518 F.3d 61, 68 (D.C. Cir. 2008) (internal quotations
omitted). A plaintiff's belief's must have been based on "the facts
known by the employee at the time." Mann v. Heckler & Koch Def.,
Inc., 630 F.3d 338, 344 (4th Cir. 2010). Furthermore, "[a]
protected activity must evince some attempt to expose
possible fraud." U.S. ex rel. Owens v. First Kuwaiti Gen. Trading
& Contracting Co., 612 F.3d 724, 735 (4th Cir. 2010).
To establish the second element of a claim under the FCA, a
plaintiff must show that "(1) the employer ha [d] knowledge the
employee was engaged in protected activity; and (2) [] the
employer's adverse action against the employee [was] motivated, at
least in part, by the employee's engaging in that protected
activity." Id. (internal quotations omitted). To bring a
successful FCA claim an employee need not alert his or her employer
to the prospect of a FCA suit because the employee need not know
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that his or her investigation or actions may lead to an FCA suit.
Id. However, a plaintiff must raise concerns of fraud or
illegality to his employer outside the normal scope of his job.
See Id.
1. Plaintiff's Motion
In support of his FCA claim, Mr. Skrynnikov argues that "the
force driving [his] termination was retaliation for his vocal
________o_bj_e_c.t_i_ons__t_o__his__s_up_endsor,__ Kristin_neMent__Harris_on,_mr_er__ F_anni_e__ _
Mae's misrepresentations to the United States Senate regarding the
bonuses that Fannie Mae paid to its executives." Mot. At 1 7.
Considered in the light most favorable to Defendant, Mr.
Skrynnikov's Motion for Summary Judgment must be denied on this
claim.
The Court cannot grant summary judgment on Mr. Skrynnikov's
FCA claim because there is a genuine dispute of material fact as
to whether he had an "objectively reasonable belief,u Hoyte, 518
F.3d at 68, that Fannie Mae was defrauding the government based on
"the facts known by [Mr. Skrynnikov] at the time," Mann, 630 F.3d
at 344.
Defendant asserts that Mr. Skrynnikov could not have had a
good faith basis for his belief that Fannie Mae was defrauding the
government in its response to Sen. Grassley's request for
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information regarding Fannie Mae's bonus compensation, because Mr.
Skrynnikov was not privy to either the details of Sen. Grassley's
Request or the financial records and bonus plan designs relevant
to Fannie Mae's response. Defendant states that neither Mr.
Skrynnikov nor his supervisors were involved in Fannie Mae's
response to the Grassley Request. Tr. at 178, 573. Plaintiff
himself has admitted that he was not involved in preparing Fannie
Mae's response to Senator Grassley. Plaintiff's Response to
Defendant's Statement of Material Facts,, 3-17, 19, 21-22 ("Pl.'s
Resp. to SMF") [Dkt. No. 57-1].
Furthermore, the information provided to Sen. Grassley was
"highly restricted" and not readily available to all employees.
Roden Dep. 11 [Dkt. No. 55-4] Defendant asserts that any
information provided to employees on the FP&A team, including Mr.
Skrynnikov, did not contain any payroll or incentive compensation
data that would have been relevant to Sen. Grassley' s Request.
Id.; Tr. 571. Without access to this information, Mr. Skrynnikov's
view that Fannie Mae's reporting of its retention bonus information
was fraudulent could not have been objectively reasonable based on
the facts available to him at the time. See Hoyte, 518 F.3d at 68-
69 (quoting Lang v. Nw. Univ., 472 F.3d 493, 495 (7th Cir. 2006)
("What [FCA relator] actually believed is irrelevant, for people
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believe the most fantastic things in perfect good faith; a kind
heart but empty head is not enough. The right question is whether
[his] belief had a reasonable objective basis .... ").
Therefore, in the light most favorable to Defendant, there
remains a genuine dispute of material facts as to whether Mr.
Skrynnikov's view that Fannie Mae was defrauding the government
was objectively reasonable based on the facts at his disposal.
Defendant also argues that even if Mr. Skrynnikov did engage
in protected activity, he cannot satisfy the second element of a
claim under the FCA because he has not established that Fannie Mae
knew that he was engaging in FCA-protected activity. Cross-Mot. at
13. In order to satisfy this element, Mr. Skrynnikov must show
that he put Fannie Mae on notice that he was working outside the
usual course of his employment to expose the alleged fraudulent
reporting to Sen. Grassley. See Owens, 612 F.3d at 735; Schweizer,
677 F.3d at 1238-39. "Simply reporting his concern of a mischarging
to the government to his supervisor does not suffice" to establish
that Mr. Skrynnikov was acting to expose the alleged fraud. Owens,
612 F.3d at 735.
Mr. Skrynnikov alleges that he raised concerns to his
supervisors about Fannie Mae's reporting to Sen. Grassley. Pl.'s
SMF at 11; Mot. at 19. However, Mr. Skrynnikov's supervisors have
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...
testified that Mr. Skrynnikov never raised these concerns. Ms.
Harrison testified that Mr. Skrynnikov never spoke to her about
the Grassley request at all. Tr. at 30, 571-572. Mr. Skrynnikov's
other supervisors, Mr. Roden, Ms. Lee, and Ms. McGwin, also
testified that Mr. Skrynnikov did not raise concerns about the
Grassley request to them. Roden Dep. at 17; Tr. at 405, 536. Viewed
in the light most favorable to Defendant, Mr. Skrynnikov has not
shown based on undisputed facts that he put Fannie Mae on notice
of his investigation of the alleged fraud. 1
2. Defendant's Cross-Motion
Defendant argues that it is entitled to summary judgment on
Mr. Skrynnikov's FCA claim. Drawing all reasonable inferences in
favor of Mr. Skrynnikov, this court finds that genuine disputes of
fact remain such that a reasonable jury could return a verdict for
Mr. Skrynnikov on Claim I.
Defendant argues that Mr. Skrynnikov did not engage in an
activity entitling him to the protections of the FCA because he
did not have an objectively reasonable belief that Fannie Mae was
1
Since the facts cannot support Mr. Skrynnikov's establishment of
the knowledge prong of the second element of a FCA claim, this
court will not address whether Mr. Skrynnikov has satisfied the
causation prong.
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defrauded the government. Cross-Mot. at 8-13. Defendant primarily
argues that Mr. Skrynnikov could not have held an objectively
reasonable belief that Fannie Mae fraudulently reported an
incentive compensation amount that was only twenty percent of the
actual incentive compensation amount because he was not involved
in Fannie Mae's response to the Grassley Request and he was not
privy to the information sources for Fannie Mae's response.
Mr. Skrynnikov's response to these arguments raises material
facts in dispute. Mr. Skrynnikov states that he did, in fact, have
access to the retention bonus information that Sen. Grassley was
seeking. Pl.'s Opp. at 19. One of Mr. Skrynnikov's responsibilities
in the FP&A group was to prepare a monthly BSA Report. Pl.'s SMF
~ 5: Mr. Skrynnikov alleges that this document included executive
incentive compensation data that was relevant to Sen. Grassley's
Request. Id. ~ 9; Pl.'s Exs. 29, 30, 31 [Dkt. Nos. 54-5, 54-6, 54-
7]. Mr. Skrynnikov explains that after seeing Fannie Mae's response
to Sen. Grassley, he realized that the reported numbers were only
about twenty percent of the number appearing in the BSA Report.
Mot. at 19.
Defendant argues that Mr. Skrynnikov's suspicions of fraud
could not have been reasonable because he was not involved in
preparing Fannie Mae's response and therefore could not have known
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if the response was correct. Cross-Mot. at 8-13. However, Mr.
Skrynnikov need not have been involved in the preparation of Fannie
Mae's response to Sen. Grassley in order to have learned of the
contents of the request and response.
Mr. Skrynnikov testified that he learned of Sen. Grassley's
Request through a daily news blast emailed to Fannie Mae employees.
Tr. at 134-35. Mr. Skrynnikov was able to read the text of Sen.
Grassley's Request online. See Pl.'s Ex. 36 at 2. With the text of
Sen. Grassley's Request in hand, Mr. Skrynnikov could reasonably
assume that his request for bonus amounts relating to the
"Retention Program and any other bonus compensation arrangements,"
Id., included the total amount of executive incentive compensation
included in the BSA Reports.
Defendant also argues that merely comparing the BSA Report
numbers to those in Fannie Mae's response to Sen. Grassley and
raising concerns of fraudulent reporting to supervisors is not
enough to constitute an act in furtherance of a suit under the
FCA. However, "internal reporting" that involves "gather [ing]
evidence" and "shar [ing] that evidence with [] superiors" "is a
classic example of protected activity." Schweizer, 677 F.3d at
1240.
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Defendant further asserts that Mr. Skrynnikov cannot sustain
a claim under the FCA because he did not notify Fannie Mae that he
suspected fraud or illegality and did not do so outside the scope
of his job. Cross-Mot. at 13. However, Mr. Skrynnikov testified
that he raised his concerns about the discrepancies between the
BSA Reports and Fannie Mae's response to Sen. Grassley with Ms.
Harrison twice, because he "knew that you need to be absolutely
honest when you're answering an officer of the U.S. Government .
. and I did not feel that the answer was what was being asked,
that it was a full answer." Tr. at 148. Defendant denies that Mr.
Skrynnikov raised his concerns with Ms. Harrison, but viewed in
the light most favorable to Mr. Skrynnikov this Court cannot find
that he did not notify Defendant of his concerns.
Finally, Defendant argues that Mr. Skrynnikov was not fired
because of his investigation into Fannie Mae's response to Sen.
Grassley. Instead, Defendant argues that Mr. Skrynnikov was fired
"after he exhausted all his job-protected leave because his
position had been eliminated and there was not another open
position for which he was qualified." Def.'s Rep. at 7. Defendant
also points to Mr. Skrynnikov's poor job performance as a
legitimate reason for his termination. Cross-Mot. at 17.
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Drawing all reasonable inferences in favor of Mr. Skrynnikov,
this Court finds that a juror could credit his testimony that Ms.
Harrison's behavior towards him changed after he expressed his
concerns about the Grassley Request. Mr. Skrynnikov also alleges
that the Fannie Mae HR department was far more involved in his
FMLA/DCFMLA leave certification process than was their custom
leaving Mr. Skrynnikov to draw the inference that Fannie Mae was
doing so in an attempt to terminate him in retaliation for his
investigation into the company's response to the Grassley Request.
Given that this case is before the Court on a Motion for Summary
Judgment, the Court is required to deny it because a reasonable
juror could credit Mr. Skrynnikov's testimony.
B. Interference with Plaintiff's Family Medical Leave
(Count II)
"The FMLA [] guarantees eligible employees 12 weeks of leave
in a 1-year period following . . a disabling health problem."
Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 86 (2002).
The DCFMLA provides the same protection for a period of 16 weeks.
D. C. Code § 32-503. "Leave must be granted, when medically
necessary, on an intermittent or part-time basis," and "[u]pon the
empJ.oyee's timeJy return, the empJoyer must reinstate the employee
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to his or her former position or an equivalent." Id. (internal
citations omitted) .
Under the FMLA, it is unlawful "for any employer to interfere
with, restrain, or deny the exercise of or the attempt to exercise,
any right provided under this chapter." 29 U.S.C. § 2615(a) (1).
The DCFMLA provides substantially similar protections. See D.C.
Code 35-507i DCMR 4-1621.1.
To state a claim of interference under the FMLA or DCFMLA, a
plaintiff must establish: (1) that his employer interfered with his
exercise of protected rights and (2) that the interference caused
prejudice. See McFadden v. Ballard, Spahr, Andrews & Ingersoll,
LLP, 611 F.3d 1, 7 (D.C.Cir. June 29, 2010). "An employer
interferes with protected rights when it interferes with,
restrains, or denies the exercise of any right provided by the
Acts." Cobbs v. Bluemercury, Inc., 746 F. Supp. 2d 137, 144 (D.D.C.
2010) i 29 U.S.C. § 2615 (a) (1) i D.C.Code § 32-507. "Prejudice exists
where an employee loses compensation or benefits by reason of the
violation, sustains other monetary losses as a direct result of
the violation, or suffers some loss in employment status remediable
through appropriate equitable relief. Cobbs, 746 F. Supp. 2d at
14 4 i 2 9 U . S . C . § 2 61 7 ( a) ( 1 ) i D . c . Code § 3 2 - 5 o9 ( b) ( 6 ) .
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Neither Party disputes that Mr. Skrynnikov was fired from his
job at Fannie Mae. Nor do the Parties dispute that termination
would constitute "prejudice" under the second element of a
FMLA/DCFMLA claim. Thus, the Parties' dispute revolves around the
first element of a claim under the FMLA/DCFMLA, that is, whether
Fannie Mae interfered with Mr. Skrynnikov's exercise of a right
under the FMLA/DCFMLA.
1. Plaintiff's Motion
Mr. Skrynnikov alleges that Defendant violated his rights
under the FMLA/DCFMLA in two ways. Primarily, he argues that Fannie
Mae interfered with his right to reinstatement at the end of his
protected leave period.
Under the FMLA and DCFMLA, "an employee is entitled to be
returned to the same position the employee held when leave
commenced, or to an equivalent position . . even if his or her
position has been restructured to accommodate the employee's
absence. 29 CFR § 825.214; see Joyce v. Office of Architect of
Capitol, 966 F. Supp. 2d 15, 29 (D.D.C. 2013) (holding that under
the FMLA, an employee "must be given the option of returning to an
equivalent position") . Mr. Skrynnikov claims that Fannie Mae
denied him this right under the FMLA and DCFMLA by preventing him
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from returning to work on November 2, 2009 and by terminating his
employment at the same time.
Defendant argues that Mr. Skrynnikov's termination had
nothing to do with his FMLA leave; rather, he would have been
terminated anyway because his job became automated and because of
poor performance. See Washington Convention Ctr. Auth. v. Johnson,
953 A.2d 1064, 1077 (D.C. 2008) ("It is well-established that the
federal FMLA, to which we may look for guidance, simply does not
force an employer to retain an employee [who is] on FMLA leave
when the employer would not have retained the employee had the
employee not been on FMLA leave") (internal citations omitted).
"The burden is on the employer to show that, for other
reasons, an employee would not have been employed when the time
for reinstatement came." Washington Convention Ctr., 953 A.2d at
1077; Hopkins v. Grant Thornton Int'l, 851 F. Supp. 2d 146, 156
(D.D.C. 2012), aff'd sub nom. Hopkins v. Grant Thornton, LLP, 529
F. App' x 1 (D. C. Cir. 2013) ("an employer has the burden of proving
that · an employee dismissed during FMLA leave would have been
dismissed regardless of the employee's request for leave").
Viewed in the light most favorable to Defendant, Fannie Mae
has provided sufficient evidence in support of its argument to
withstand Plaintiff's Motion for Summary Judgment. A
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representative of Fannie Mae testified that Mr. Skrynnikov was
fired because "the work that he had been performing over time was
fully automated." Tr. at 618-19. Furthermore, she testified that
he "was not a strong performer." Id. at 613. Fannie Mae has
provided performance reviews to support this statement. See Def.'s
Ex. 33 [Dkt. No. 55-10]. Defendant also asserts that it could not
create a new role for Mr. Skrynnikov because FP&A "was under
extreme budget pressure at the time resulting from the financial
crisis then roiling the country, and nothing was backfilled for
Mr. Skrynnikov's particular position." Cross-Mot. at 27; see Tr.
at 619, 622.
Defendant also claims that Mr. Skrynnikov cannot succeed on
his FMLA/DCFMLA claim because he lacked the proper return-to-work
certification and was therefore unable to return to work when his
leave was exhausted on October 29, 2009. Cross-Mot. at 21.
Defendant argues that it was entitled to require additional return-
to-work certification from Mr. Skrynnikov because under D.C. Mun.
Regs. 4-1615. 9 (a), an employer may require that "an employee obtain
subsequent recertif ications if: (a) [t] he employee requests an
extension of leave or a different type or frequency of leave,
beyond what the employee requested in the employee's initial
certification or request for DCFMLA leave."
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It is undisputed that Mr. Skrynnikov. did not submit his
return-to-work certification for his rib injury until October 30,
2009- one day after his protected leave had expired. Pl.'s SMF ``
52, 54; Def. Resp. to Pl.'s SMF `` 52, 54. Mr. Skrynnikov denies
that his request for additional leave for his rib injury
constituted a request for DCFMLA leave, and that his injury was
serious enough to constitute a disabling health problem under the
DCFMLA. However, considered in the light most favorable to
Defendant, a juror could find that Mr. Skrynnikov was unable to
return to work when his DCFMLA leave expired due to lack of proper
return-to-work certification. Mr. Skrynnikov's Motion must
therefore be denied on this count.
2. Defendant's Cross-Motion
Defendant asks that this Court grant Summary Judgment on Mr.
Skrynnikov's FMLA/DCFMLA claims because his job was terminated for
legitimate reasons, no comparable jobs for which he was qualified
were available, and Mr. Skrynnikov did not return to work when his
DCFMLA leave was exhausted on October 29, 2009. Mr. Skrynnikov, on
the other hand, alleges that Defendant's "legitimate reasons" for
firing him were merely pretext for retaliation in violation of the
FCA and that he was willing and able to return to work before the
expiration of his DCFMLA leave. Viewed in the light most favorable
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.,
to Mr. Skrynnikov, the facts presented are sufficient to withstand
Defendant's Motion for Summary Judgment.
"For an employer lawfully to deny an employee's restoration
rights, it must show that the termination for other reasons
would have been lawful." Johnson, 953 A.2d at 1077. As detailed
above, Fannie Mae alleges that Mr. Skrynnikov was terminated
because his job became automated, because of budgetary
restrictions within his department, and because he was a poor
performer. See supra at 21-22; Price v. Washington Hosp. Ctr.,
321 F. Supp. 2d 38, 47 (D.D.C. 2004) (refusal to reinstate
employee after FMLA leave was legitimate when employee's
position was eliminated pursuant to a reduction in force;. Cross-
Mot. at 27; Tr. at 618-19, 622.
Mr. Skrynnikov alleges that these reasons are merely
pretext for retaliation in violation of the FCA. As explained
above, Mr. Skrynnikov h~s presented facts from which a
reasonable juror could conclude that he was terminated in
violation of the FCA. See supra at III.A.2. Therefore, at this
time, drawing all inferences in Mr. Skrynnikov's favor, the
Court cannot conclusively find that he was fired for legitimate
reasons.
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Defendant also claims that Mr. Skrynnikov cannot succeed on
his FMLA/DCFMLA claim that he was unable to return to work when
his leave was exhausted on October 29, 2009 because he lacked the
proper return-to-work certification. Cross-Mot. at 21. Defendant
cites D.C. Mun. Regs. 4-1615.9(a) in support of its decision to
prohibit Mr. Skrynnikov from returning to work without a return-
to-work certification for his rib injury. Def.'s Rep. at 9.
The regulations states that, "[t]he employer may require that
the employee obtain subsequent recertifications if: [t]he employee
requests an extension of leave or a different type or frequency of
leave, beyond what the employee requested in the employee's initial
certification or request for DCFMLA leave." This regulation does
not support Fannie Mae's position. As Mr. Skrynnikov correctly
notes, Section 1615 of the statute deals with certification for
DCFMLA leave, not for return to work. While a new request for leave
may trigger recertification requirements in order to implement the
leave, nothing in the statute indicates that a request based on a
new type of injury could automatically trigger return-to-work
certification requirements relating to the new injury without the
employer first approving DCFMLA leave for the new injury.
Defendant next argues that even though Mr. Skrynnikov did not
formally request DCFMLA leave for his rib injury, Fannie Mae was
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at liberty to single-handedly grant him DCFMLA leave. Cross-Mot.
at 22. This argument defies logic. As Mr. Skrynnikov points out,
the purpose of the DCFMLA is to protect employees, not to impose
unwanted leave on them and prevent them from returning to work for
which they are capable of performing. See Escriba v. Foster Poultry
Farms, Inc., 743 F.3d 1236, 1244 (9th Cir. 2014) Citing Wysong v.
Dow Chem. Co., 503 F.3d 441, 449 (6th Cir.2007) for the proposition
that "[a] n involuntary-leave claim," alleging that an "employer
forces an employee to take FMLA leave," is "really a type of
interference claim").
Drawing all reasonable inferences in Mr. Skrynnikov's favor,
he has presented facts that indicate that he did not want to be
placed on DCFMLA leave for his rib injury, but simply requested to
use vacation days while his ribs finished healing. See Pl.'s SMF
~40; Pl.'s Ex. 68. Assuming this is true, Fannie Mae was not at
liberty to prevent Mr. Skrynnikov from returning to work without
additional certification under the DCFMLA.
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IV. CONCLUSION
For the foregoing reasons, Plaintiff's Motion for Summary
Judgment shall be denied; and Defendant's Cross-Motion for Summary
Judgment shall be denied. An Order shall accompany this Memorandum
Opinion.
January 1_, 2017
Gladys Ke sler
United States District Judge
Copies to: attorneys on record via ECF
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