                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 14a0093n.06

                                            No. 13-1414

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

                                                                                  FILED
Telitha L. Clements,                                 )                      Feb 03, 2014
                                                     )                  DEBORAH S. HUNT, Clerk
       Plaintiff-Appellant,                          )
                                                     )
v.                                                   )   ON APPEAL FROM THE UNITED
                                                     )   STATES DISTRICT COURT FOR THE
Prudential Protective Services, LLC,                 )   EASTERN DISTRICT OF MICHIGAN
                                                     )
       Defendant-Appellee.                           )
                                                     )
                                                     )



BEFORE:         MERRITT, SUTTON and STRANCH, Circuit Judges.

       MERRITT, Circuit Judge. The plaintiff, Telitha Clements, was a security guard for

defendant Prudential Protective Services, LLC. Defendant provides security guards for buildings

in and around the Detroit area. Plaintiff alleges violations of the Family and Medical Leave Act1

in connection with her pregnancy leave. She claims on appeal that the district court erred in granting

summary judgment to defendant because genuine issues of material fact exist surrounding her failure

to return to work after her leave. The issues in part arise from the failure of defendant to give notice




       1
         The Family and Medical Leave Act, 29 U.S.C. § 2601 et seq., entitles eligible employees
to 12 weeks per year of unpaid leave for various reasons, including the birth of a child. The Act
entitles an eligible employee who takes leave to be reinstated to the same or an equivalent position
upon return from leave. Id. § 2614(a)(1).
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Clements v. Prudential Protective Servs., LLC

to its employees of the Act or their rights under the Act.2 Because we agree that genuine issues of

material fact exist as to whether plaintiff was “laid off” during her leave, whether a similar job

existed to which she could have returned at the end of her leave and, if so, whether she was aware

of this fact, the award of summary judgment to defendant was in error and we remand to the district

court for further proceedings.

                                                 I.

       Plaintiff was hired as a security guard by defendant in October in 2006, and she worked at

the New Center, Fisher and Kahn buildings in Detroit, Michigan. She had been working as a guard

at the New Center complex for many years under other employers prior to her employment with

defendant. During the entire time she worked at the New Center complex for various security

companies, including defendant, her supervisor was Lamont Lively. Lively scheduled employees




       2
        The regulations under the Act require that the employer inform its employees of their rights
under the Act:
       (c) Rights and responsibilities notice.
               (1) Employers shall provide written notice detailing the specific
               expectations and obligations of the employee and explaining any
               consequences of a failure to meet these obligations. . . .
       ...

       (e) Consequences of failing to provide notice. Failure to follow the notice
       requirements set forth in this section may constitute an interference with,
       restraint, or denial of the exercise of an employee’s FMLA rights. An employer
       may be liable for compensation and benefits lost by reason of the violation, for
       other actual monetary losses sustained as a direct result of the violation, and for
       appropriate equitable or other relief, including employment, reinstatement,
       promotion, or any other relief tailored to the harm suffered. See § 825.400(c).

29 C.F.R. § 825.300.

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Clements v. Prudential Protective Servs., LLC

and had the authority to approve vacation requests. The record is in dispute as to whether Lively

had the sole authority to hire or fire employees or to grant requests for leave or whether these

requests needed to be cleared with defendant’s main office.

       Plaintiff became pregnant with her second child in 2008 and gave birth to him in June 2009.

She gave notice of her pregnancy to Lively and her last day of work was May 23, 2009. As he had

done with her first pregnancy in 2006, Lively told plaintiff to call him when she was ready to return

to work and he would put her back on the schedule.3 Lively testified that he informed plaintiff that

she would need to contact the main office in order to properly schedule her maternity leave, Lively

Dep. at 22, 34-35, 45, 60-61, but it is undisputed that neither Lively nor plaintiff ever contacted the

main office regarding plaintiff’s leave prior to the birth of her second child in June 2009. Clements

Dep. at 27; Lively Dep. at 50. It appears from the record that no paperwork was filled out by either

plaintiff or Lively relating to her time off from work and she was not paid during this time.

       It is also undisputed that no employee of defendant ever talked with plaintiff about her rights

under the Family and Medical Leave Act prior to her taking leave. Defendant did not provide its

employees with information regarding the Act other than referring the employee to the text of the

Family and Medical Leave Act if the employee inquired about it and the presence of a wall poster

at certain locations where the guards sign in and out for their shifts. Keywell Dep. at 65-69.


       3
         Although not directly at issue in this appeal, it is disputed whether Lively directed plaintiff
to report to the main office and inform the company of her first pregnancy leave and whether she
ever did so. In any event, when plaintiff was ready to come back to work after the birth of her first
child, she called Lively, who did not give her back her previous job as a “command center operator”
because there were no openings, but reassigned her as a security guard at the New Center at the same
rate of pay as a command center operator, a higher-paying position than a security guard.

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Clements v. Prudential Protective Servs., LLC

        Plaintiff attempted to contact Lively in early July 2009, approximately six weeks after her

leave began, to request that she be put back on the schedule. She was unable to reach Lively on

several occasions because he was gone for a period of time due to the death of his mother. In his

absence, plaintiff spoke to a woman named “Sabrina” who relayed messages between Lively and

plaintiff. It is undisputed that Lively told Sabrina to tell plaintiff that the number of hours scheduled

for security guards at the New Center complex had been cut due to lack of business and that he could

not put plaintiff back on the schedule at the New Center complex at that time. Clements Dep. at 60-

72, 117-18; Lively Dep. at 49. There is a dispute, however, as to whether Lively ever told plaintiff

to report to defendant’s main office to request an assignment to a different site. Lively testified that

he did tell plaintiff, through Sabrina, to report to the main office, but plaintiff denies ever receiving

such a message from Lively directly or from Sabrina. Clements Dep. at 71-72; Lively Dep. at 49.

        Plaintiff visited defendant’s main office on at least two occasions between July and

September 2009 to receive paperwork from defendant that would allow her to receive

unemployment benefits and to get verification that she was not working so that she could defer her

credit card payments. Clements Dep. at 86, 116-18. At her visit on August 24, 2009, she received

a lay-off letter from Danielle Todaro, an employee in defendant’s main office, stating:

        To Whom It May Concern:

               Talitha [sic] Clements is currently laid off from Prudential Protective
        Services. She left on maternity leave on May 23rd. When a position becomes
        available she will be called back to work . . . .

        ______/s/____
        Danielle Todaro
        Human Resources

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Clements v. Prudential Protective Servs., LLC

Defendant’s Ex. F to Motion for Summary Judgment. At the visit to the main office on August 24,

2009, plaintiff also spoke with Matthew Keywell, defendant’s vice-president of operations, who told

plaintiff that she was not laid off because there were jobs available at other sites. During this

encounter, plaintiff neither requested nor was offered a position by Keywell. Clements Dep. at 112.

Defendant claims that plaintiff remains listed as an employee and that she can be assigned work if

she makes a request. Defendant stopped authorizing plaintiff’s unemployment benefits and credit

card payment deferral after this meeting. Plaintiff continued calling Lively on a weekly basis until

October 2009, but was not put back to work at the New Center complex. Clements Dep. at 67-72.

Plaintiff filed a charge with the Equal Employment Opportunity Office in February 2010 and was

issued a right-to-sue letter in May 2011. Plaintiff filed suit in July 2011, claiming violations of the

Family and Medical Leave Act.

                                                  II.

       We review a grant of summary judgment de novo. Thom v. Am. Standard, Inc., 666 F.3d

968, 972 (6th Cir. 2012).

       Plaintiff claims that defendant interfered with her rights under the Act because plaintiff was

entitled “on return from such leave (A) to be restored by the employer to the position of employment

held by the employee when the leave commenced; or (B) to be restored to an equivalent position.”

29 U.S.C. § 2614(a)(1). To prevail on an interference claim, plaintiff must establish that: (1) she

was an eligible employee; (2) defendant was an employer as defined in the Act; (3) she was entitled

to leave under the Act; (4) she gave defendant notice of her intention to take leave; and (5) defendant




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Clements v. Prudential Protective Servs., LLC

denied her Family and Medical Leave Act benefits to which she was entitled. Killian v. Yorozu

Auto. Tennessee, Inc., 454 F.3d 549, 556 (6th Cir. 2006).

        Defendant sought summary judgment on three grounds: (1) that plaintiff had failed to

comply with the Family and Medical Leave Act notice requirements prior to taking leave; (2)

plaintiff suffered no prejudice from any alleged violation by defendant of the Family and Medical

Leave Act because plaintiff would have been laid off from her prior position even if she had not

been on leave; and (3) plaintiff voluntarily failed to seek reassignment to a different job site despite

having the knowledge and ability to do so. The record is confusing on these points concerning

notice, prejudice and reassignment.

        Defendant contends that plaintiff failed to follow defendant’s “usual and customary” notice

requirements for requesting leave because she failed to contact the main office prior to taking leave

in late May 2009; but plaintiff contends that defendant had no “usual and customary” leave

procedures. The district court found that a factual dispute exists as to defendant’s compliance with

the Act’s notice requirements and as to plaintiff’s compliance with any notice provisions.

Specifically, it found that if, as plaintiff alleges, defendant failed to fulfill its own duties regarding

notice to employees under the Act, it could not defeat plaintiff’s claim under the Act by alleging that

plaintiff did not follow procedures that did not exist. But, the district court then found that plaintiff

did not establish that she suffered any prejudice as a result of any failure by defendant to provide

notice procedures as required under the Act.

        An employee must prove that the employer interfered with her exercise of Family and

Medical Leave Act rights and caused prejudice thereby. Ragsdale v. Wolverine World Wide, Inc.,

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Clements v. Prudential Protective Servs., LLC

535 U.S. 81, 89 (2002). Plaintiff was allowed, and did take, leave for the birth of her second child

and the record supports the district court’s ruling that plaintiff suffered no prejudice as it relates to

her ability to take leave under the Family and Medical Leave Act. But the record is unclear and

creates uncertainty about whether plaintiff suffered prejudice as to her right under the Act to return

to her previous position or an equivalent position. Defendant’s lack of internal procedures for

employees preparing to take leave, those on leave and those seeking to return from leave are the

source of the dispute in this case.

        The record is also unsettled on the question of plaintiff’s reassignment and why she was

placed on “lay-off” status. Did the defendant in fact lay her off rather than reassign her to another

security job? The district court acknowledged at the beginning of its opinion that there “is some

dispute” as to whether Lively, the supervisor, instructed plaintiff to report to defendant’s main office

to request a new assignment at a different location. Op. at 4. The district court recognized that

plaintiff knew that she could be reassigned to a different location. Id. at 5. It appears that plaintiff

knew she could go to the main office to receive a new assignment, Clements Dep. at 116-18, but she

did not think that she must go and receive a reassignment. Instead, plaintiff filed for unemployment

and apparently wanted to wait for an opening at the New Center complex.

        Plaintiff seems to have believed that she had the choice of receiving unemployment benefits

or a reassignment with defendant to a different location. This choice is consistent with the approval

of an employee of defendant, Danielle Todaro, who signed a letter on the company letterhead stating

that plaintiff was “laid off.” She did this so that plaintiff could provide proof to the government

unemployment office that no suitable position for plaintiff existed at the company. This letter

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Clements v. Prudential Protective Servs., LLC

indicates that defendant apparently approved, or at least allowed, plaintiff to file for unemployment

benefits in early July 2009 after plaintiff was told there were no openings at the New Center

complex. Defendant is responsible for its agent’s conduct.

                                                III.

       These inconsistencies in defendant’s interaction with the plaintiff and the lack of

communication led to the confusion about plaintiff’s status with the company. Even a cursory

review of the record reveals that defendant had virtually nothing in the way of written policies and

procedures for any aspect of its business. Matthew Keywell, vice-president of operations for

defendant, described the hierarchy of the reporting system at the company as “kind of loose.”

Keywell Dep. at 11-12. Keywell’s deposition testimony reflects that it was impossible to pin him

down on explaining any direct chain of command or lines of communication at the company from

the guard positions and site supervisors who were located in various buildings and parking lots

across the metro Detroit area all the way up through to the “operations managers” who worked in

the “main office” as it was called. Keywell Dep. at 11-15. No paperwork of any kind was prepared

by Lively, Keywell or anyone in the main office when an employee went on “leave.” Keywell

testified that the procedure of instructing employees to inform the main office about leave is not

written down anywhere, and there were no forms that an employee who wished to take leave would

have filled out. Keywell Dep. at 28-29, 65.

       In the letter signed by Danielle Todaro, Todaro represents that she is connected with “Human

Resources” for defendant, that plaintiff is “laid off,” and that “[w]hen a position becomes available

[Clements] will be called back to work.” Ex. F to Summary Judgment Motion. In her deposition,

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Clements v. Prudential Protective Servs., LLC

Todaro said that she is an administrative assistant to Matthew Keywell, vice-president of operations

for defendant, and that she mostly handles accounts payable and receivable, Todaro Dep. at 6, and

that in 2009, during the period when plaintiff took her leave and the letter was written, she was a

receptionist. Todaro Dep. at 7. In contrast to Todaro’s representations on behalf of the company

in the “lay off” letter, Keywell stated repeatedly that plaintiff was not laid off and that she could

return to work whenever she wanted – just not to the New Center complex.

       The record is full of inconsistent statements like this by defendant’s employees, and it is

unclear whether plaintiff was “laid off” or whether defendant wanted plaintiff to return to work at

a location other than New Center. Keywell understates the situation when he explains in his

deposition that the defendant’s employment policies were “kind of loose.” It seems that there were

no policies. In light of this lack of clarity and the failure of defendant to give its employees notice

of how to proceed upon completion of leave under the Act, we do not believe that summary

judgment for defendant is appropriate.

       We remand to the district court for further proceedings consistent with this opinion.




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