                           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

                                                  -2-
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.
                                              -3-
       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.



                                           -4-
        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
                                      -5-
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].




                                            -6-
               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.



                                                  -7-
             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

.I
  !   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,
                                                   -8-
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

                                               -9-
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
                                               -10~
      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
                                                  -11-
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
                                          -12-
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
                                   -13-
...




          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.
                                     -14-
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
                                   -15-
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.



                                           -16-
       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.



                                            -17-
        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




                                         -18-
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 ) .



                                                           -19-
        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



                                           -20-
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

                                         -21-
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."
                                            -22-
       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
                                           -23-
.,




     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.



                                       -24-
      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
                                       -25-
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.




                                    -26-
  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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