“Because the earlier statements in this case were never accepted or adopted, judicial estoppel was inappropriate.”
How later courts described this case
- “Because the earlier statements in this case were never accepted or adopted, judicial estoppel was inappropriate.”
- “When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.” (footnote omitted)
- “As we have previously noted, this is not a formalistic or stringent standard.”
- holding that “firing an employee for a valid request for FMLA leave may constitute interference with the employee’s FMLA rights as well as retaliation against the employee”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
WILLIAM HARTZELL, CIVIL ACTION
Plaintiff,
NO. 21-1873-KSM
v.
ADAPTABLE SYSTEMS CORP.,
Defendant.
MEMORANDUM
MARSTON, J. May 11, 2022
Plaintiff William Hartzell brings claims against his former employer, Adaptable Systems
Corporation, doing business as Corporate Payroll Services, for violations of the Families First
Coronavirus Response Act (“FFCRA”), the Fair Labor Standards Act (“FLSA”), and the Family
and Medical Leave Act (“FMLA”). In essence, Hartzell argues that Adaptable Systems misled
him about his right to leave under the FFCRA and terminated him when he was unable to
telework while caring for his daughter, who was attending virtual school from home. Before us
is Adaptable Systems’s Motion for Summary Judgment (Doc. No. 26). For the reasons discussed
below, that motion is denied.1
FACTUAL BACKGROUND
Viewing the evidence in the light most favorable to Hartzell, the relevant facts are as
follows.
1 Adaptable Systems also filed a motion to dismiss. (Doc. No. 20.) Because the motion for
summary judgment raises almost identical arguments to the motion to dismiss, we focus on this later
motion and the evidence in the record.
Adaptable Systems hired Hartzell as an outside sales representative for its Pennsylvania
office on March 2, 2020. (Doc. No. 31-13 at ¶ 2.A; see also Doc. No. 26-9 at ¶ 4.)
Approximately two weeks later, the COVID-19 pandemic dramatically changed life in the
United States, and Adaptable Systems, like many companies, directed its employees to begin
teleworking. (Doc. No. 31-13 at ¶ 16.) Per the company’s teleworking policy, Hartzell and
other sales representatives were required to make around 60 sales calls per hour.2 (See Doc. No.
26-9 at ¶ 4; Doc. No. 31-2 at 10:9–14. But see Doc. No. 31-4 at 16:17–17:3 (Fierle testifying
that the call requirement was 20 to 30 calls per hour); Doc. No. 31-11 (email from Fierle to
Hartzell saying, “Try to hit about 25–30 calls an hour and keep pushing to keep people on the
phone if you can.”).) While Hartzell was adjusting to these changes at work, Pennsylvania
Governor Tom Wolf issued an executive order requiring schools to transition to remote learning,
and Hartzell’s eleven-year-old daughter and his fiancée’s teenage son began virtually attending
classes from home. (Doc. No. 31-2 at 9:17–10:3, 25:3–9.)
A. Hartzell Speaks with Sales Manager Frank Fierle
In the days that followed, Hartzell struggled to meet his call quota while also caring for
his daughter,3 and on April 8, 2020, he emailed his supervisor, Sales Manager Frank Fierle,
about his options. (Doc. No. 31-11 (email from Hartzell telling Fierle, “There is no possible way
for me to be able to perform my work and take care of family at the same time. Do you know
what I can do? Is this something I should reach out to George [Sebastian] about?”).) Fierle
called Hartzell that morning to reiterate that he needed to be making the required calls. (Doc.
2 The call quota appears to have been a new requirement, implemented because the sales
representatives were forced to work from home instead of going door-to-door as they had before.
3 Although Hartzell was engaged at the time and living with his fiancée and her son, he was the
sole caregiver for his daughter and did not share those responsibilities with his fiancée. (Doc. No. 31-2 at
25:21–26:2.)
No. 31-4 at 23:10–15; see also Doc. No. 31-10 (transcript of their conversation).) Hartzell
explained his family situation and asked Fierle about a poster published by the United States
Department of Labor that the company’s Human Resources Director, George Sebastian, had sent
out the week before. (See Doc. No. 31-3 at 29:22–30:8; Doc. No. 31-10 (“William [Hartzell]:
I’m wondering if I am covered under the CARES Act or the number 5 that they sent out.”); see
also Doc. No. 31-9 (email from Sebastian to all employees circulating the “notice of employee
rights from the Department of Labor for the Families First Coronavirus Response Act
(FFCRA)”).)
The poster is titled, “Employee Rights,” and it states that the “Families First Coronavirus
Response Act (FFCRA or Act) requires certain employers to provide their employees with paid
sick leave and expanded family and medical leave for specified reasons related to COVID-19.”
(Doc. No. 31-6.) The poster then lists six “qualifying reasons” that would entitle an employee to
leave, including if he or she is unable to telework because they are caring for a child:
An employee is entitled to take leave related to COVID-19 if the
employee is unable to work, including unable to telework, because
the employee . . . 5. Is caring for his or her child whose school or
place of care is closed (or child care provider is unavailable) due to
COVID-19 related reasons . . . .
(Id.) According to the poster, an employee who falls within this fifth category is entitled to “[u]p
to two weeks of fully or partially paid sick leave” and an additional 10 weeks of “expanded
family and medical leave paid at 2/3 . . . for up to $200 daily and $12,000 total.” (Id.)
Fierle knew nothing about the poster or Hartzell’s rights and directed him to Sebastian.
(Doc. No. 31-2 at 13:13–17, 13:22–14:4; Doc. No. 31-4 at 22:22–23:9, 29:4–30:6.)
B. Hartzell Speaks with Sebastian
A couple of hours after Hartzell’s conversation with Fierle, Sebastian called Hartzell to
discuss his lack of productivity. Sebastian began by noting that Hartzell had not made any
outbound calls all morning. (Doc. No. 31-12 at 0:18.) Hartzell responded that he has “two kids
and everybody is working from home,” and that he could not meet the call quota “under these
circumstances.” (Id. at 0:33 (Hartzell telling Sebastian, “It’s just kind of bad timing. . . . I was
here for two weeks and then I got basically sent home and, you know, just cold calling people,
but I have a whole house here you know I got kids to take care of it’s just kind of
distracting . . . .”); see also Doc. No. 31-10 (Hartzell telling Fierle, “I mean it’s just, it’s just
crazy what’s happening obviously . . . . I know there’s nothing we can do at this point, but like I
said I just . . . with the kids and stuff like that everybody here at home is trapped in here, it’s, I
don’t have a big house[. W]e live in like a little twin.”).) And he asked Sebastian about the
poster: “I am reading the poster that we got sent out a week ago, I guess it was, and I was
wondering if I fit under . . . any of the circumstances here.” (Doc. No. 31-12 at 0:33.) At first,
Sebastian seemed confused by the request:
George Sebastian: Um, circumstances as far as like the uh the paid
sick leave?
1:18 – William Hartzell: Yeah, I guess. I mean, I’ll be honest with
you, George. I’m shocked I’m even here. Like you know, and it’s
nobody’s fault. I don’t blame the company or anyone personally. I
mean, it’s just bad timing. I mean this is crazy what’s going on. So,
you know, I know some people were getting laid off and I just
assumed that I’d be one of them and you know I get it it’s like I said
bad timing. But I’ve been home. I have been trying to make the
calls, but I feel like we got hit before you guys did.[4] And
everything is closed and you know like I said I am dealing with kids
running around here. They need food. . . . They got schooling and
homework and stuff, and . . . I’ve been trying to make the calls, but
I am also like making them lunch in between like trying to dial a
number here or two, and . . . it’s just getting kind of crazy up here,
so I am wondering if I fit under I guess number 5 of the thing.
4 Hartzell worked out of the company’s Philadelphia office, while Sebastian worked out of the
Atlanta, Georgia office.
(Id. at 1:18; see also Doc. No. 31-3 at 54:7–19 (Sebastian conceding that Hartzell’s reference to
“number 5” “may have been” a reference to number five on the FFCRA poster).) Sebastian
asked for further clarification:
2:12 – George Sebastian: So wait. When you say ‘number 5’, are
you talking about the, um, the paid sick leave? Or like the FMLA,
or are you talking more about like the CARES Act?
2:22 – William Hartzell: I thought it was the CARES Act to be
honest with you. I mean that’s—
2:26 – George Sebastian: Well I mean the CARES Act talks about
you know um the unemployment laws. They are a little bit more
flexible, and then you know you apply for unemployment, and then
you get $600 dollars above what you would normally get for
unemployment. Um the EFMLA and the EPFL um that has to do
with paid . . . uh . . . Normally you wouldn’t get time off, but you
wouldn’t get paid for sick leave. That says if you get paid for your
sick leave up to two weeks, up to 80 hours of time. But that would
mean that would require that you get diagnosed with like COVID
19 or like you know somebody in your family.
William Hartzell: Yeah, that was like the first three numbers, right?
George Sebastian: Yeah.
(Doc. No. 31-12 at 2:12–2:26; Doc. No. 31-3 at 54:20–55:4 (Sebastian conceding that he was the
first one to mention the CARES Act); id. at 57:21–58:3 (Sebastian explaining that he believed a
COVID-19 diagnosis was “required” to receive leave).)
Sebastian then turned away from the poster and expressed his sympathy for Hartzell’s
situation, telling him, “I mean, I totally get what you are saying, though. I mean it’s just the
timing of it all, and for me as HR, I have had the same discussion with a lot of people, you know,
and they tell me the same thing.” (Doc. No. 31-12 at 2:26.) And he encouraged Hartzell, “At the
end of the day, if you don’t feel like you haven’t [sic] accomplished anything, you know
something’s not right. I totally get it. I totally understand.” (Id.) Hartzell then reiterated his
frustrations teleworking during the pandemic:
William Hartzell: I was shocked like because we’ve been doing this
for three weeks, you know, everything is closed. Like there’s
nobody around and obviously that’s who I’m calling up here um you
know obviously when I got hired, telemarketing wasn’t my forte. I
guess I am a door knocker. . . . I have been trying to do it, but
obviously I am not getting much luck getting like reaching through
to people.
George Sebastian: . . . . It was totally understandable. It was kind
of like an overload especially for somebody who hasn’t been here a
long time. . . . I totally get it, and that’s kind of why I was asking
Frank you know kind of coach him you know so he’s not too
shocked into it. . . . But you know at the end of the day man I totally
get it if . . . you’re not doing something you are not [sic] passionate
about I totally get it.
William Hartzell: Nah, I would have loved to have like a fair shot
at this . . . . I don’t want to just quit obviously, you know, but I am
reading these things. Like I said, I got kids. . . . My kids got
schooling now. Like they are doing it all online and stuff like that,
and you know I got to kind of be there to help them make sure
they’re on and they’re doing it and make sure things are getting done
here. Obviously, they need to feed. They go outside. I got to make
sure they are social distancing from the neighbor’s kids and stuff
like that, but I am still like required to sit here and make phone calls
. . . . [M]e and Frank had a conversation about making a certain
amount and I am just not really able to get there like with kind of
everything that’s going on.
(Id. at 2:26.) Sebastian explained Hartzell’s options:
George Sebastian: [T]hat’s fair, man. What I can do on my end
is . . . after . . . we take any kind of like employment actions we
include notes in there everything like eligibility for rehire and
eligibility to reapply and things like that. I will put a note in there
that once the situation is a little bit better you know um once we start
restructuring the position to be back in the office and everything . . .
if you are open and still okay with it, I can reach back out to you[.
T]here is really not much flexibility on our end either . . . .
7:15 – William Hartzell: No, no, I understand. . . . [W]hen it all
kinda happened back in like March 11th[,] 12th at least in
Philadelphia while I was at home, I’m like well you’re done here . . .
and I was grateful that you did keep me to be honest with you um
and I felt being home alright maybe we can make this work. It’s just
it’s just not working out like, you know, at least making the volume
of phone calls that they’re looking for, I guess.
(Id. at 2:26–7:15.) At this point, the conversation turned toward wrapping up Hartzell’s
employment, including returning company equipment and filing for unemployment:
George Sebastian: Yeah, no I totally understand that. . . . I will ask,
um, Frank to . . . swing by your place . . . so that way we can collect
the IPAD and . . . I will send your separation notice and all that stuff
. . . digitally to you.
8:28 – William Hartzell: So you will not fight me on unemployment
at this point? Cause I know it’s still going to get a bit complicated.
I don’t even think I’ve been here long enough . . . for it to go off of
you guys. I’ve been here 4 weeks maybe.
8:39 – George Sebastian: Yeah, yeah, so yeah I don’t, I don’t think
um you qualify, but again, you know, Philadelphia it’s one of those
things where it’s almost like a guaranteed thing now especially with
the pandemic going on and everything like that, and. . . you have to
earn at least I think, um, $7,900 or something like that in um, uh,
Pennsylvania, but I’ll, um, I’ll, I’ll fill out that form for you and I’ll
send it to you and um you can . . . reach out to me directly . . . .
(Id. at 7:15–8:39.) The two men ended the call with Sebastian telling Hartzell, “I’m sorry it
didn’t work out man.” (Id. at 10:13.)
C. Sebastian’s Follow Up Emails
A few minutes after his conversation with Hartzell, Sebastian sent an email to Fierle and
other managerial employees summarizing the call. (Doc. No. 31-7.) After explaining that
Hartzell was struggling to meet his call quota while also caring for his children, Sebastian states,
“[H]e felt that the fair thing for both of us was for him to look into whether he qualifies for any
of the provisions under the CARES act or FFCRA. I outlined my FFCRA eligibility matrix and
communicated that he does not qualify without himself or someone close to him being diagnosed
or at risk of contracting COVID-19.” (Id.) Sebastian then recounted Hartzell’s questions about
unemployment and summarized his own response as, “I told him each state is different and
[unemployment insurance] was already in favor of the employee in PA and the new legislation
only makes it more favorable for the employee and that we review each case before deciding
how to proceed.” (Id.)
Sebastian also sent a follow-up email to Hartzell. (Doc. No. 31-13 at ¶ 3.) He thanked
Hartzell for his “honesty and feedback during the discussion today,” and conceded that “[i]t is
fair what you said about the distractions with the kids and significant other being at home.” (Id.)
Sebastian then referenced Hartzell’s request, “When you asked about qualifying for the CARES
Act, I didn’t have it pulled up in front of me to give you the exact provisions that were relevant:
Please see the link below as Title III has all of the Labor Provisions.” (Id.) The web link leads
to a copy of the Senate bill that became the CARES Act. (See id. (citing
https://www.congress.gov/bill/116th-congress/senate-bill/3548/text).) Last, Sebastian reminded
Hartzell that Fierle would contact him about collecting work equipment and that he should send
his work passcodes and final expense report to Sebastian. (Id.)
In response to Sebastian’s email, Hartzell said, “I really do hope that when this pandemic
is resolved, that you will reach out to me if you are hiring. Stay safe.” (Id.)
D. Hartzell Applies for Unemployment
After Hartzell left Adaptable Systems, he applied for unemployment with the
Pennsylvania Department of Labor (“DOL”). (Doc. No. 31-2 at 28:10–14.) As part of his
application, Hartzell completed a claimant questionnaire. (Id. at 29:8–11; id. at Ex. C.) The
questionnaire asked whether he “quit [his] job or t[ook] a leave of absence.” (Doc. No. 31-2 at
29:24–30:7; see also id. at Ex C.) Because Hartzell believed he had not been offered a leave of
absence and because his application could not be processed unless he checked off one of the two
boxes, Hartzell checked the box beside the word “quit.” (Doc. No. 31-14 at ¶¶ 3–7 (explaining
that he tried calling the DOL but could not reach anyone and “[a]fter trying to get through to the
DOL for several days, [he] checked off the only box that [he] could in order for [his] application
for unemployment compensation to get processed during the pandemic”); see also Doc. No. 31-2
at 29:24–30:7; id. at Ex C.) However, in the section asking him to “explain the reason [he] quit
[his] job,” Hartzell said: “Covid 19[.] I told employer I have to watch my child who’s [sic]
school closed[.] I brought up CARES Act and was told to go to unemployment.” (Doc. No. 31-
2, Ex. C; see also id. (“Had a phone call with HR Rep and was told to go on unemployment[.]
Explained situation about child care.”).) At the end of the questionnaire, Hartzell certified that
“the information [he] provided is true to the best of [his] knowledge.” (Id. at 30:19; see also id.
at Ex. C.) During his deposition, Hartzell conceded that he was incorrect when he said he quit
his job. (Id. at 31:12–18.)
Hartzell temporarily received unemployment, but his claim was later denied when the
DOL found that he voluntarily quit his job. (Id. at 27:13–28:14.) Hartzell appealed this
decision, and in the box labeled “Determination Disagreement” explained that he filed for
unemployment at the suggestion of Sebastian:
I started my position on 03/03/2020. I was in training for 3 weeks
before being sent to work from home. My job title was outside sales
rep selling payroll to small business. I was supposed to get 2 to 3
appointments a day to close sales. When I was sent home, the job
was now a telemarketing position. I was required to make 60 calls
[per] hour. At the same time my daughter[’]s school closed due to
COVID 19. I was unable to make the amount of calls [r]equired and
take care of my daughter[’]s needs (virtual classes, lunch, making
sure she was social distancing outside). I explained this to the HR
representative, George S[e]basti[a]n, and asked to go on the Family
First Coronavirus Response Act, where you were able to receive
2/3rd the employee[’]s regular rate for up to 10 weeks. He said he
completely understood and unemployment would be best since
unemployment benefits now had an extra $600 available. I agreed
and was sent an email regarding this conversation. I did not quit.
(Id. at Ex. D.)
Hartzell was not represented by an attorney during the unemployment compensation
hearings. (Id. at 28:19–22.) According to Hartzell, if he had been advised of his eligibility for
leave under the FFCRA, he would have taken that leave and never would have pursued
unemployment. (Id. at 68:22–69:6; see also id. at 69:13–14 (“Q: Did you ever intend to quit?
A: No.”).)
E. Hartzell Files this Action
Hartzell filed this action on April 22, 2021. (Doc. No. 1.) In the First Amended
Complaint, Hartzell alleges that Adaptable Systems violated his rights under the FFCRA, the
FLSA, and the FMLA when Sebastian misled him about his entitlement to leave, discouraged
him from seeking leave, failed to compensate him for his qualifying leave, and terminated him in
retaliation for requesting leave under the FFCRA. (Doc. No. 7 at ¶ 33.) He asserts three counts:
(1) Wrongful termination and retaliation under the FFCRA and the FLSA (Count I);
(2) interference and retaliation under the FFCRA and FMLA (Count II), and (3) unpaid wages
under the FFCRA and FLSA (Count III).
Adaptable Systems moves for summary judgment on all three counts.5 (Doc. No. 26.)
Hartzell opposes the motion. (Doc. No. 31.)
LEGAL STANDARD
Summary judgment is appropriate when the “pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48
(1986). “[A]t the summary judgment stage the judge’s function is not himself to weigh the
5 As mentioned above, see supra n.1, Adaptable Systems’s motion for summary judgment raises
similar arguments to those raised in its motion to dismiss. (Compare Doc. No. 20, with Doc. No. 26.)
The Court focuses on the motion for summary judgment.
evidence and determine the truth of the matter but to determine whether there is a genuine issue
for trial.” Anderson, 477 U.S. at 249.
“[A] party seeking summary judgment always bears the initial responsibility of 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, together with the affidavits, if
any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quotation marks omitted); see also id. at 325 (“[T]he
burden on the moving party may be discharged by ‘showing’—that is, pointing out to the district
court—that there is an absence of evidence to support the nonmoving party’s case.”). After the
moving party has met its burden, the nonmoving party is required to “designate specific facts
showing that there is a genuine issue for trial.” Id. at 323 (quotation marks omitted); see also
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (“When the moving
party has carried its burden under Rule 56(c), its opponent must do more than simply show that
there is some metaphysical doubt as to the material facts.” (footnote omitted)).
DISCUSSION
Adaptable Systems argues that it is entitled to summary judgment on each count of
Hartzell’s First Amended Complaint. (Doc. No. 26.) Before turning to its substantive
arguments, however, the Court must first address its assertion that Hartzell is judicially estopped
from claiming he was fired.
A. Estoppel
Adaptable Systems argues that Hartzell is judicially estopped from arguing that he was
terminated because in his application for unemployment benefits, he indicated that he “quit” his
position at Adaptable Systems. (Doc. No. 26 at p. 8.)
Judicial estoppel is an equitable doctrine that “bars a litigant from asserting a position
that is inconsistent with one he or she previously took before a court or agency.” Montrose Med.
Grp. Participating Sav. Plan v. Bulger, 243 F.3d 773, 779 (3d Cir. 2001). For the doctrine to
apply, the party requesting estoppel must show that three conditions are met. “First, the party to
be estopped must have taken two positions that are irreconcilably inconsistent.” Id. “Second,
judicial estoppel is unwarranted unless the party changed his or her position ‘in bad faith—i.e.,
with intent to play fast and loose with the court.’” Id. (quoting Ryan Operations G.P. v.
Santiam-Midwest Lumber Co., 81 F.3d 355, 361 (3d Cir. 1996)). Third, judicial estoppel must
be “‘tailored to address the harm identified,’” and the court must find that “no lesser sanction
would adequately remedy the damage done by the litigant’s misconduct.” Id. at 779–80 (quoting
Klein v. Stahl GMBH & Co. Maschinefabrik, 185 F.3d 98, 109 (3d Cir. 1999)). Adaptable
Systems has failed to show that any of these conditions are satisfied here.
1. Irreconcilably Inconsistent Positions
First, the Court questions whether Hartzell’s current argument—that Adaptable Systems
terminated him—is inconsistent with the assertions he made in his initial application. Adaptable
Systems focuses on Hartzell’s claimant questionnaire, where he checked the box indicating that
he “quit [his] job.” (See Doc. No. 26 at p. 8.) Were this evidence viewed in a vacuum, the Court
would agree that Hartzell’s assertion that he “quit” is at odds with his current argument that he
was terminated. But the Court must consider Hartzell’s assertion in context. See Ocasio v.
Ollson, 596 F. Supp. 2d 890, 903–04 (E.D. Pa. 2009) (“Plaintiff has not asserted a position in
this Court which is contrary to nor inconsistent with the description of his injuries that was
contained in the [Compromise and Release Agreement (“C&R”)]. To constrain Plaintiff to the
limited injury claims that Defendants suggest would require the Court to ignore important
language contained in the C&R and would also require the Court to consider the language of the
C&R in a vacuum. . . . Reading the C&R as a whole, it is evident that Plaintiff has not
maintained an inconsistent position in this litigation, especially considering the circumstances at
the proceedings before the Workers’ Compensation Court.”); cf. Motley v. N.J. State Police, 196
F.3d 160, 167 (3d Cir. 1999) (“Motley, relying on several specific and severe physical injuries,
asserted that he was ‘permanently and totally disabled.’ This was not a mere blanket statement
of complete disability checked on a box in order to obtain pension benefits. Rather, the assertion
was supported by Motley’s additional statements concerning the type and extent of his injuries.
Furthermore, the medical board diagnosis, uncontested by Motley, also concluded that Motley
was permanently incapacitated for police officer duties. On their face, these assertions are
patently inconsistent with his present claims that he was a ‘qualified individual’ under the
ADA.”).
Viewing the claimant questionnaire in context, we find it relevant that the questionnaire
gave Hartzell only two options—he had to indicate either that he “quit [his] job” or that he
“t[ook] a leave of absence.” (Doc. No. 31-2, Ex C.) Notably, “terminated” was not an option.
In addition, later in the questionnaire, in the section asking Hartzell to “explain the reason [he]
quit [his] job,” Hartzell made the same factual assertions that he makes here: “Covid 19[.] I told
employer I have to watch my child who’s [sic] school closed[.] I brought up [the] CARES Act
and was told to go to unemployment.” (Id. (emphasis added).) Hartzell reiterated this same
explanation throughout the questionnaire. (See id. (“Had a phone call with HR Rep and was told
to go on unemployment[.] Explained situation about child care.” (emphasis added)).) And when
he appealed the DOL’s decision to deny his application, Hartzell explicitly disputed that he had
quit: “I was unable to make the amount of calls [r]equired and take care of my daughter[’]s
needs . . . . I explained this to the HR representative, George S[e]basti[a]n, and asked to go on
the [FFCRA.] He said he completely understood and unemployment would be best since
unemployment benefits now had an extra $600 available. I agreed and was sent an email
regarding this conversation. I did not quit.” (Id. at Ex. D (emphasis added).)
Because Hartzell’s statements before the DOL are not “irreconcilably inconsistent” with
his arguments in this case, judicial estoppel is inappropriate. But even assuming that Hartzell’s
two statements are inconsistent, judicial estoppel would still be inappropriate in this case because
Adaptable Systems cannot merely show that the two statements are inconsistent. It must also
show that Hartzell took those inconsistent positions in bad faith and that estoppel is necessary to
protect the court’s integrity. Neither condition is met here.
2. Bad Faith
As to the second condition, we cannot find that Hartzell acted in bad faith for at least two
reasons. First, as is clear from our previous discussion, on the claimant questionnaire, Hartzell
was required to select either the box indicating that he “quit” or the box indicating that he took a
“leave of absence.” Hartzell testified that he tried contacting the DOL for clarification on this
issue but was unable to get through to the agency given the flood of calls to state unemployment
agencies during the first few weeks of the pandemic. Without guidance, and forced to select one
of the two boxes for his application to be processed, Hartzell chose the box indicating that he
“quit” his position and then explained his situation in the application’s narrative section. Given
Hartzell’s circumstances, we cannot find that he acted in “bad faith.” See Baier v. Jersey Shore
State Bank, No. 4:07-CV-2236, 2009 WL 2843325, at *8 (M.D. Pa. Aug. 31, 2009) (finding no
bad faith because although the defendant argued on appeal in an unemployment compensation
matter that the plaintiff was terminated for cause—a position at odds with its argument in this
later litigation that the plaintiff resigned—the defendant was “essentially forestalled” from
raising a contrary argument during the appeal: “At that point, [the defendant] could either
handcuff itself to the [Board]’s decision and argue in favor of its validity, as one would expect,
or permit plaintiff’s appeal to proceed unopposed. We find it incredibly unreasonable to punish
[the defendant] for selecting the former, especially since we hardly consider the latter a
legitimate option.”).
Second, we cannot find bad faith because, as Hartzell points out, he was ultimately
unsuccessful in seeking unemployment benefits. The Third Circuit has held that it “does not
constitute bad faith to assert contrary positions in different proceedings when the initial claim
was never accepted or adopted by a court or agency.” Montrose Med. Grp. Participating Sav.
Plan, 243 F.3d at 781; see also Fleck v. KDI Sylvan Pools, Inc., 981 F.2d 107, 121 (3d Cir. 1992)
(“[W]here a party assumes a certain position in a legal proceeding, and succeeds in maintaining
that position, he may not thereafter, simply because his interests have changed, assume a
contrary position . . . .” (cleaned up)). In other words, the party must “succeed[ ] in maintaining
[its prior] position” for judicial estoppel to apply. New Hampshire v. Maine, 532 U.S. 742, 749
(2001); see also Pegram v. Herdrich, 530 U.S. 211, 227 n.8 (2000) (explaining that judicial
estoppel “generally prevents a party from prevailing in one phase of a case on an argument and
then relying on a contradictory argument to prevail in another phase” (emphasis added)); MD
Mall Assocs., LLC v. CSX Transp., Inc., 715 F.3d 479, 487 (3d Cir. 2013) (“Judicial estoppel
thus does not apply here because [the plaintiff] did not obtain a benefit from the arguments it
made in the District court. The arguments it made did not prevail in any meaningful sense
[because t]he District Court instead granted summary judgment to [the defendant].”); Montrose
Med. Grp. Participating Sav. Plan, 243 F.3d at 778 (“Because the earlier statements in this case
were never accepted or adopted, judicial estoppel was inappropriate.”). Here, although Hartzell
was initially granted unemployment benefits, the DOL ultimately denied his application. (See
Doc. No. 31-2 at 27:13–28:14.) Therefore, Hartzell did not “succeed” or obtain a benefit from
the arguments he made before the DOL, and Adaptable Systems has failed to show that Hartzell
acted in bad faith.6
3. Miscarriage of Justice
Finally, under the third condition, the Third Circuit has described judicial estoppel as “an
extraordinary remedy”—“often the harshest remedy”—“that should be employed only when a
party’s inconsistent behavior would otherwise result in a miscarriage of justice.” Id. at 784
(cleaned up). Accordingly, a district court may invoke the doctrine only when “(1) no sanction
established by the Federal Rules or a pertinent statute is up to the task of remedying the damage
done by a litigant’s malfeasance; and (2) the sanction of judicial estoppel is tailored to address
the harm identified.” Id. (cleaned up). Here, because Hartzell did not benefit from his arguments
before the DOL, the Court finds that no miscarriage of justice will result in allowing Hartzell to
argue that he was terminated. See New Hampshire, 532 U.S. at 750–51 (“Absent success in a
prior proceeding, a party’s later inconsistent position introduces no risk of inconsistent court
determinations, and thus poses little threat to judicial integrity.”); MD Mall Assocs., LLC., 715
6 As this discussion demonstrates, the law on this issue is clear: a party acts with bad faith for
purposes of judicial estoppel only when he or she prevails before the underlying tribunal. Here, it is
undisputed that Hartzell was unsuccessful in his request for unemployment compensation. Given this, it
should have been immediately apparent to defense counsel that Hartzell did not act in bad faith, and thus,
judicial estoppel is inappropriate in this case. Nevertheless, defense counsel not only pursued a theory of
judicial estoppel, he also boldly stated that “Mr. Hartzell played fast and loose with the Court” because
the Department of Labor adopted Mr. Hartzell’s position that he quit.” (Doc. No. 26-1 at p. 10.) Defense
counsel is the only one playing “fast and loose with the Court,” and this clearly misplaced judicial
estoppel argument leads the Court to question both his candor and his credibility. See 204 Pa. Code
§ 3.3(1) (“A lawyer shall not knowingly . . . make a false statement of material fact or law to a tribunal or
fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.”);
Fischer & Porter Co. v. Tolson, No. CIV. A. 91-7822, 1993 WL 427351, at *2 (E.D. Pa. Oct. 19, 1993)
(“An attorney has an obligation of candor to the court. Model Rules of Professional Conduct Rule 3.3(3)
(1983). Although this rule specifically refers to an attorney’s obligation to disclose controlling precedent
to the court, it necessarily applies as well to the disclosure of material facts and ‘any development which
may conceivably affect an outcome of the litigation.’” (quoting In re Universal Minerals v. De le Puente,
755 F.2d 313, 313 (3d Cir. 1985))).
F.3d at 487 (“In this case, [the plaintiff] did not benefit from its inconsistent position in the
District Court, and no miscarriage of justice would result from our entertaining the argument it
now advances on appeal.”).
* * *
In sum, Adaptable Systems has failed to satisfy any of the elements for judicial estoppel.
Estoppel is inappropriate, and the Court will not foreclose Hartzell from asserting that he was
terminated from Adaptable Systems.
B. The FFCRA Claims
With the factual dispute resolved, we turn now to Adaptable Systems’s substantive
arguments for summary judgment. Because Counts I, II, and III are brought, in part, under the
FFCRA, we begin with a brief explanation of the Act, its purpose, and its connection to the
FLSA and FMLA.
Congress passed the FFCRA in March 2020, as the COVID-19 pandemic began to take
hold in the United States. “Broadly speaking . . . the FFCRA obligates employers to offer sick
leave and emergency family leave to employees who are unable to work because of the
pandemic.” New York v. U.S. Dep’t of Labor, 477 F. Supp. 3d 1, 5 (S.D.N.Y. 2020). “The
purpose of the FFCRA is to provide relief to American workers and to promote public health.”
Jones v. E. Airlines, LLC, Civil Action No. 20-1927, 2021 WL 2456650, at *4 (E.D. Pa. June 16,
2021) (quotation marks omitted); see also Gracia v. Law Officers of Alexander E. Borell, P.A.,
535 F. Supp. 3d 1268, 1270–71 (M.D. Fla. Apr. 19, 2021) (explaining that the “broad purpose”
of one portion of the FFCRA is to “obviate the pressure on employees ‘to choose between their
paycheck and their health’” (quoting 166 Cong. Rec. H.1675-09, H1689 (daily ed. Mar. 13,
2020) (statement of Rep. Scott)))).
Two divisions of the FFCRA are at issue here. The first is titled the “Emergency Paid
Sick Leave Act” (the “EPSLA”). Under the EPSLA, an employer is required to “provide to each
employee . . . paid sick time to the extent that the employee is unable to work (or telework) due
to a need for leave because [t]he employee is caring for a son or daughter [and] the school or
place of care of the son or daughter has been closed, or the child care provider of such son or
daughter is unavailable, due to COVID-19 precautions.” FFCRA § 5102(a)(5), 134 Stat. 195
(2020); see also Piotrowski v. Signature Collision Ctrs., LLC, Case No. 2:21-cv-02115-JDW,
2021 WL 4709721, at *1 (E.D. Pa. Oct. 8, 2021) (explaining that the EPSLA requires “covered
employers to provide employees who are unable to work or telework with up to eighty hours of
paid sick leave due to a variety of reasons related to COVID-19”). An employer who fails to pay
wages to a qualifying employee as required by § 5102 of the EPSLA is “considered to have
failed to pay minimum wages in violation of section 6 of the FLSA (29 U.S.C. § 206).” FFCRA
§ 5105(a)(1), 134 Stat. 197 (2020).
The EPSLA also renders it “unlawful for any employer to discharge, discipline, or in any
other manner discriminate against any employee, who—(1) takes leave in accordance with this
Act; and (2) has filed any complaint or instituted or caused to be instituted any proceeding under
or related to this Act . . . or has testified or is about to testify in any such proceeding.” FFCRA
§ 5104, 134 Stat. 196 (2020). If an employer violates § 5104, it may be subject to liability under
the enforcement provisions of the FLSA. Specifically, if an employer “willfully violates section
5104” it is “considered to be in violation of [§ 215(a)(3)] of the Fair Labor Standards Act” and
the employer may be “subject to the penalties described” in §§ 216 and 217 of the FLSA.
FFCRA § 5105(b), 134 Stat. 197 (2020).
The second division of the FFCRA that is relevant here is titled the “Emergency Family
and Medical Leave Expansion Act” (“EFMLEA”). The EFMLEA expanded entitlement to leave
under the FMLA, entitling “an eligible employee . . . to a total of 12 workweeks of leave during
any 12-month period . . . because of a qualifying need related to a public health emergency in
accordance with section 2620 of this title.” 29 U.S.C. § 2612(a)(1)(F). Section 2620, in turn,
broadens the definition of “eligible employee,” to include any “employee who has been
employed for at least 30 calendar days by the employer,” and it defines “qualifying need related
to a public health emergency” to mean “the employee is unable to work (or telework) due to a
need for leave to care for the son or daughter under 18 years of age of such employee if the
school or place of care has been closed, or the child care provider of such son or daughter is
unavailable, due to a public health emergency.” Id. § 2620(a)(2)(A). A violation of the
EFMLEA is a violation of the FMLA.
As this review shows, an employee who was “unable to work (or telework) due to a need
for leave to care for a son or daughter,” whose school closed because of COVID-19, would have
qualified for leave under both the EPSLA and the EFMLEA. In that case, the two-week EPSLA
period runs concurrent with the twelve-week EFMLEA period, and the employee is entitled to
twelve total weeks of pay at a rate of 2/3 her regular rate. See Jones, 2021 WL 2456650, at *6
(“Generally when an employee qualifies for leave under both Acts, an employee may first use
the two weeks of paid leave provided by the EPSLA. This use runs concurrent with the first two
weeks of unpaid leave under the EFMLEA. Any remaining leave taken for this purpose is paid
under the EFMLEA.” (quoting 85 Fed. Reg. 19,337 (Apr. 6, 2020))); see also FFCRA §
5110(5)(B)(ii), 134 Stat. 200 (2020) (“[W]ith respect to any paid sick time provided for any use
described in paragraph (4), (5), or (6) of section 5102(a), the employee’s required
compensation . . . shall be two-thirds” of the “employee’s regular rate of pay”); 29 U.S.C. §
2620(b) (“The first 10 days for which an employee takes leave under section 2612(a)(1)(F) of
this title [i.e., the EFMLEA] may consist of unpaid leave,” and the “employer shall provide paid
leave,” in an “amount that is not less than two-thirds of an employee’s regular rate of pay” for
“each day of leave under section 2612(a)(1)(F) of this title that an employee takes after taking
leave under such section for 10 days”).
With this framework in mind, we address Adaptable Systems’s arguments as to each
count in turn.
1. Count I: Wrongful Termination and Retaliation Under the EPSLA
and FLSA
In Count I, Hartzell claims that Adaptable Systems violated the EPSLA and FLSA when
it fired him in retaliation for requesting leave. (Doc. No. 7 at p. 7.) “The appropriate framework
for analyzing claims of unlawful retaliation under the FLSA is the familiar burden-shifting
framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).” Cononie v.
Allegheny Gen. Hosp., 29 F. App’x 94, 95 (3d Cir. 2002); see also Wadley v. Nat’l Railway
Equip. Co., __ F. Supp. 3d __, 2021 WL 5405225, at *6 (W.D. Ky. Nov. 17, 2021) (“And
because the EPSLA relies on the Fair Labor Standards Act (‘FLSA’) for its enforcement
provisions, courts use the FLSA McDonnel-Douglas framework to evaluate EPSLA claims.”)
(collecting cases). Under this framework, the employee bears “the initial burden of establishing
a prima facie case of retaliation” by showing: “(1) protected employee activity; (2) adverse
action by the employer either after or contemporaneous with the employee’s protected activity,
and (3) a causal connection between the employee’s protected activity and the employer’s
adverse action.” Marra v. Phila. Hous. Auth., 497 F.3d 286, 300 (3d Cir. 2007) (quotation marks
omitted). “If the employee establishes a prima facie case of retaliation, the burden of production
shifts to the employer to articulate some legitimate, non-retaliatory reason for the adverse
employment action.” Id. “If the employer meets its burden, the burden of production returns to
the employee, who must now show, by a preponderance of the evidence, that the employer’s
proffered explanation was false, and that retaliation was the real reason for the adverse
employment action.” Id. (quotation marks omitted).
Adaptable Systems contends that it is entitled to judgment in its favor on Count I because
Hartzell cannot show that he engaged in protected activity or that he was subject to an adverse
employment action. (Doc. No. 26 at pp. 12–16.) We address each issue in turn.
a. Protected Activity
Adaptable Systems argues that it is entitled to judgment on Count I because Hartzell did
not engage in a protected activity under § 5104 of the EPSLA—i.e., he did not “take[ ] leave”
under the EPSLA or “file[ ] any complaint or . . . proceeding under or related to this Act.” (Doc.
No. 26 at p. 13.) Adaptable Systems reasons that because Hartzell merely requested leave—as
opposed to actually taking leave—he did not engage in a protected activity. (Id.) Hartzell
responds that if we accept Adaptable Systems’s argument, it “would render the anti-retaliation
provisions of the FFCRA meaningless.” (Doc. No. 31-1 at pp. 16, 20.)
One court in this District recently addressed this issue in an unpublished opinion. See
Piotrowski, 2021 WL 4709721, at *3. In Piotrowski, the plaintiff, who had Type-1 diabetes and
a suppressed immune system, requested leave from his employer under the EPSLA. Id. at *1.
The employer rejected the plaintiff’s request and ultimately fired him for having “abandoned his
position.” Id. The plaintiff filed suit, arguing among other things that the employer failed to
provide leave as required by §5102 of the EPSLA and retaliated against him for requesting leave
in violation of § 5104. Id. at *2. On the employer’s motion to dismiss, the court found that the
plaintiff pleaded “a plausible claim for violation” of § 5102, which requires employer to provide
paid sick leave for employees who are unable to work because of one of the six enumerated
reasons. Id. at *2–3. However, the court dismissed the employee’s retaliation claim under
§ 5104. Id. at *3. It rejected the plaintiff’s argument that “his ‘request and attempt’ to take leave
under the EPSLA [wa]s sufficient in light of the Act’s ‘remedial and humanitarian purpose.’” Id.
The court reasoned that “[o]n its face, the EPSLA requires a plaintiff to take both steps—(1) take
leave and (2) file a complaint or institute a proceeding—in order to assert a retaliation claim,”
but in this case, the employee had failed to satisfy either step. Id. at *4 (emphasis added); see
also id. (“Even if the Court were certain that Congress did not mean to impose a conjunctive
requirement, the Court would not be free to disregard Congressional language in a quest to serve
a Congressional purpose. And the Parties have done nothing to demonstrate that Congress did
not intent to impose the requirement that it imposed as part of the EPSLA.”).
Adaptable Systems argues that Piotrowski supports its position here. Hartzell,
meanwhile, attempts to distinguish Piotrowski, arguing that controlling Third Circuit case law
requires a more lenient reading of § 5104’s text. Having considered the parties’ arguments and
the reasoning in Piotrowski, we see two issues of statutory interpretation that must be decided.
First, we must decide whether an employee must meet both subparts of § 5104 to show that he or
she engaged in protected activity, as the Piotrowski court found. Second, if an employee need
satisfy only one of the two subparts, we must consider what it means to “take” paid sick leave
under the FFCRA, and in particular, whether that phrase encompasses a request for leave when
the employee is fired before he can actually commence leave.
i. Conjunctive/Disjunctive Interpretation
In interpreting § 5104, we begin with the text of the statute. See United States v. Diallo,
575 F.3d 252, 256 (3d Cir. 2009) (“The role of the courts in interpreting a statute is to give effect
to Congress’s intent. Because it is presumed that Congress expresses its intent through the
ordinary meaning of its language, every exercise of statutory interpretation begins with an
examination of the plain language of the statute.” (cleaned up)). As a reminder, § 5104 reads:
It shall be unlawful for any employer to discharge, discipline, or in
any other manner discriminate against any employee who—
(1) takes leave in accordance with this Act; and
(2) has filed any complaint or instituted any proceeding that seeks
enforcement of this Act, or has testified or is about to testify in any
such proceeding.”
FFCRA § 5104. The Piotrowski court found that this text was not ambiguous and that the phrase
“and” must be read in the conjunctive as requiring the employee to satisfy both (1) and (2)
above. We agree that this is the most straightforward reading of the statute. However, we find
another interpretation equally plausible.
First, we find it telling that Congress used an em dash after § 5104’s opening phrase and
placed § 5104(1) and § 5104(2) in distinct, enumerated provisions. Federal courts in other
Circuits have found that “the presence of an em dash before a list in statutory language indicates
that the word or phrase preceding the dash should be distributed to modify each of the
succeeding list items individually.” United States v. Howell, 2021 WL 2000245, at *3 (C.D. Ill.
May 19, 2021); see also United States v. Williams, 553 U.S. 285, 294 (2008) (interpreting a
provision that referred to any person who “knowingly—(A) reproduces any child
pornography . . . or (B) advertises, promotes, presents” a “visual depiction of a minor engaging
in sexually explicit conduct,” 18 U.S.C. § 2252A(a)(3), and finding that “the first word of
§ 2252A(a)(3)—‘knowingly’—applies to both of the immediately following subdivisions . . .
§ 2252A(3)(A) and . . . § 2252A(a)(3)(B)”); cf. Mitchell, 343 F.3d at 829 (“Section 2611(4)(A)
[of the FMLA] commences with ‘The term employer—’ and follows with four clauses
addressing what the term ‘employer’ ‘means’ and ‘includes.’ The use of an em dash following
‘employer’ indicates that clauses (i), (ii), (iii), and (iv) modify the term ‘employer.’” (citations
omitted).). Likewise, the use of enumerated subparts suggests that each subpart should be
viewed as a distinct provision; id. at 830 (“[I]n accordance with the plain text’s separation of the
clauses into distinct provisions, the structure of Section 2611(4)(A) patently demonstrates that
the individual liability provision and public agency provision are separate and distinct.”).
Applying this grammatical understanding to § 5104, we find it equally reasonable to read
that section as prohibiting an employer from discriminating against “any employee who takes
leave in accordance with this Act” and “any employee who has filed any complaint or instituted
any proceeding that seeks enforcement of this Act or, has testified or is about to testify in any
such proceeding.” When read this way, a qualifying employee need show only that he or she
satisfies either § 5104(1) or § 5104(2).
This broad reading is consistent with the Department of Labor’s regulations
implementing § 5104, which view taking leave and instituting proceedings as separate protected
acts:
Prohibited acts. An Employer is prohibited from discharging,
disciplining, or discriminating against any Employee because such
Employee took Paid Sick Leave under the EPSLA. Likewise, an
Employer is prohibited from discharging, disciplining, or
discriminating against any Employee because such Employee has
filed any complaint or instituted or caused to be instituted any
proceeding, including an enforcement proceeding, under or related
to the EPSLA, or has testified or is about to testify in any such
proceeding.
29 C.F.R. § 826.150(a) (Apr. 2, 2020). And although few district courts have analyzed this issue
in depth, we note that most of the courts applying § 5104 have found that an employee may bring
a claim for retaliation where his or her employer took an adverse employment action against the
employee for either taking leave or instituting proceedings. See, e.g., Figuero Collazo v.
Ferrovial Construcción PR, LLC, Civil No. 20-1612 (DRD), 2021 WL 4482268, at *4 (D.P.R.
Sept. 30, 2021) (“[F]ailing to provide the paid leave under EPSLA is a violation to federal wages
under the FLSA. Furthermore, any discrimination as to the employee taking said leave, or filing
and/or participating in a complaint related thereto, is a violation of the anti-retaliation provision
contained in the FLSA.” (emphasis added)); Colombe v. SGN, Inc., No. 5:20-CV-374-REW,
2021 WL 1198304, at *3 & n.6 (E.D. Ky. Mar. 29, 2021) (explaining that “Colombe must show
(based on her allegations) that she took leave under the EPSLA to establish the ‘protected
activity’ prong of the FFCRA retaliation claim” and noting that the “other types of protected
conduct” are “fil[ing] a complaint or institut[ing] a proceeding related to the EPSLA or
testif[ying] in such an enforcement proceeding”); see also, e.g., Johnson v. Gerresheimer Glass
Inc., No. 21-cv-4079, 2022 WL 117768, at * 4 (N.D. Ill. Jan. 12, 2022) (“[T]he plain language of
§ 5104 requires an employee to perform a certain activity—here, ‘tak[ing] leave in accordance
with’ the EPSLA—to recover for retaliation.” (quoting FFCRA § 5104(1)); Haddon v. Jesse
Stutts, Inc., Case No. 5:20-cv-01830-HNJ, 2021 WL 3089232, at *3 (N.D. Ala. July 22, 2021)
(“The EPSLA also prohibited employers from ‘discharging, disciplining, or in any other manner
discriminating against any employee who takes leave in accordance with this Act.’” (quoting
FFCRA § 5104(1)) (alterations adopted).); Gracia, 535 F. Supp. 3d at 1270 (“Additionally, an
employer cannot ‘discharge, discipline, or in any other manner discriminate against’ an
employee who ‘takes leave in accordance with this Act.’” (quoting FFCRA § 5104(1))). Indeed,
the Court has found no case where an employee brought an EPSLA retaliation claim after
engaging in both protected acts, suggesting that the narrow reading adopted in Piotrowski would
render § 5104’s protections virtually meaningless.
In addition, we imagine few employees would take leave or institute proceedings if they
knew that their employer could, without consequences, fire them in retaliation for doing so. See
Pub. Citizen v. United States Dep’t of Justice, 491 U.S. 440, 455 (1989) (“Looking beyond the
naked text for guidance is perfectly proper when the result it apparently decrees is difficult to
fathom or where it seems inconsistent with Congress’ intention . . . .”). As the Middle District of
Florida succinctly put it: “The Act strives to shield employees from COVID-19-related
discrimination—not insulate employers from EPSLA lawsuits.” Gracia, 535 F. Supp. 3d at
1272.
Having reviewed the text of § 5104, the Department of Labor’s implementing
regulations, and the opinions of other district courts, we decline to follow Piotrowski and find
that an employee asserting a retaliation claim need show only that he or she engaged in protected
activity under either § 5104(1) or § 5104(2).
ii. What It Means to “Take” Leave
Because it is sufficient for Hartzell to assert that he was fired for taking leave, we must
next determine what it means to “take” leave. Hartzell argues that the phrase encompasses a
situation, like the one here, where he requested leave but was fired before he could commence
leave. Adaptable Systems disagrees, arguing that the statute’s use of the phrase “took leave”
unambiguously requires Hartzell to have gone out on leave before being fired. District courts
across the country are split on this issue.7 In light of a Third Circuit opinion in the FMLA
context, we feel compelled to follow the broader approach.
7 Compare Piotrowski, 2021 WL 4709721, at *3 (rejecting the employee’s argument that “his
‘request and attempt’ to take leave under the EPSLA is sufficient in light of the Act’s ‘remedial and
humanitarian purpose’”) and Colombe, 2021 WL 1198304, at *3 (holding that the EPSLA’s retaliation
provision “does not extend to requests for or attempts at leave”) with Gracia, 535 F. Supp. 3d at 1269
(broadly interpreting § 5104 and finding that an employee could bring a retaliation claim where she was
fired one day after she requested leave but before the leave commenced) and Kofler v. Sayde Steeves
In Erdman v. Nationwide Insurance Company, an employee brought a claim against her
former employer for FMLA retaliation under a regulation that prohibited employers from
discriminating against “employees who have used FMLA leave.” 582 F.3d 500, 508 (3d Cir.
2009) (citing 29 C.F.R. § 825.220(c) (Jan. 15, 2009)). The employer argued that the employee
had not “used FMLA leave” because she had only requested leave under the FMLA but was fired
before the leave actually commenced. Id. at 509 (arguing that “because the regulation protects
‘employees who have used FMLA leave,’ . . . an employee cannot establish a retaliation claim
unless she actually commenced leave”). The Third Circuit disagreed, emphasizing that “it would
be patently absurd if an employer who wished to punish an employee for taking FMLA leave
could avoid liability by firing the employee before the leave begins.” Id. at 508. “Simply put,
this Court has never held that an employee fired after requesting FMLA leave but before the
leave begins cannot recover for retaliation” and to hold as much would “allow a[n] employer to
limit an FMLA plaintiff’s theories of recovery by preemptively firing her.” Id. at 509. To avoid
the absurdity of such a result, the Third Circuit interpreted “the requirement that an employee
‘take’ FMLA leave to connote invocation of FMLA rights, not actual commencement of leave,”
and it held that “firing an employee for a valid request for FMLA leave may constitute
interference with the employee’s FMLA rights as well as retaliation against the employee.” Id.
at 509. (emphasis added).
Although the court in Erdman interpreted an FMLA regulation and here we analyze a
provision of the EPSLA, given the factual similarities between the two cases, the fact that the
two provisions invoke nearly identical language, and the broad remedial purpose of both the
Cleaning Serv., Inc., 2020 WL 5016902, at *2 (M.D. Fla. Aug. 25, 2020) (“Kofler has plausibly alleged
that she engaged in protected activity under the FLSA by requesting FFCRA leave.” (emphasis added)).
FMLA and the FFCRA, we believe Erdman governs our analysis. Applying that ruling here, we
interpret § 5104’s requirement that an employee “took leave,” to encompass a situation, like the
one before us, where the employee requested leave under the EPSLA but was fired before that
leave commenced.8
* * *
With this interpretation of § 5104 in mind, the Court finds that Hartzell has shown that he
engaged in protected activity because he requested leave under the EPSLA.
b. Adverse Employment Action
In the alternative, Adaptable Systems argues that even if we reject its interpretation of
§ 5104, we must still dismiss Count I because Hartzell did not suffer an adverse employment
action. (Doc. No. 26 at p. 15.) This argument rests on Adaptable Systems’s assertion that
Hartzell voluntarily resigned from his position. In addition to the judicial estoppel argument
rejected above, the company argues that “[n]o reasonable jury could review the transcript and
conclude that Mr. Hartzell did not quit his position with Adaptable Systems.” (Id. at p. 16.) We
strongly disagree.
A reasonable juror, viewing the evidence in the light most favorable to Hartzell, could
find that Hartzell was terminated when Sebastian chastised Hartzell for not meeting his call
quota, told him he was not entitled to leave, mentioned unemployment, and encouraged him to
pursue that route instead. See Simone v. Harborview Rehab. & Care Ctr. at Doylestown, LLC,
Civil Action No. 20-3551, 2021 WL 2291341, at *5 (E.D. Pa. June 4, 2021) (denying summary
judgment in FFCRA interference case because “there is a question of material fact regarding
8 Because we find the Third Circuit’s holding in Erdman controlling on this issue, we do not
repeat the lengthy statutory interpretation analysis discussed above. Nevertheless, we remain mindful of
the remedial purpose of the FFCRA, which supports a broad reading of the phrase “took leave.”
whether [the employee] was fired or quit” during a call with his supervisor where the employee
testified that he told his supervisor he could not “keep working without proper PPE” and the
supervisor testified that he interpreted the conversation as the employee resigning). Because
there is a dispute of fact about whether Hartzell was terminated during his call with Sebastian,
summary judgment is inappropriate on this issue.
* * *
In sum, Hartzell has put forth evidence to support a prima facie claim for retaliation
under § 5104. Because Adaptable Systems has not even attempted to put forth a legitimate, non-
discriminatory reason for terminating him, we deny Adaptable Systems’s request for summary
judgment as to Count I.
2. Count II: Interference and Retaliation Under the EFMLEA and
FMLA
In Count II, Hartzell claims that he sought and was entitled to leave under the EFMLEA,
that Adaptable Systems interfered with his rights under the EFMLEA when it misled and
misinformed him about those rights, and that Adaptable Systems retaliated against him for
requesting EFMLEA leave by terminating his employment during the call with Sebastian. (Doc.
No. 7 at ¶¶ 53–55.) Adaptable Systems moves for summary judgment on this Count, arguing
that Hartzell has put forth no evidence to support a claim for interference or retaliation.9
a. Interference
“An FMLA interference claim arises under 29 U.S.C. § 2615(a)(1), which makes it
‘unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to
exercise, any right provided under’ the FMLA.” Capps v. Mondelez Glob., LLC, 147 F. Supp. 3d
9 As we mentioned above, the EFMLEA expanded entitlement to leave under the FMLA, such
that a violation of the EFMLEA is a violation of the FMLA. Therefore, we rely on the law discussing
FMLA interference and retaliation in analyzing Hartzell’s claims.
327, 334 (E.D. Pa. 2015) (quoting 29 U.S.C. § 2615(a)(1)). To prove a claim of FMLA
interference, Hartzell must show that: (1) he “was an eligible employee under the FMLA,”
(2) Adaptable Systems was “an employer subject to the FMLA’s requirements,” (3) he “was
entitled to FMLA leave,” (4) he “gave notice to the defendant of his or her intention to take
FMLA leave,” and (5) he was “denied benefits to which he . . . was entitled under the FMLA.”
Ross v. Gilhuly, 755 F.3d 185, 191–92 (3d Cir. 2014). “An interference action is not about
discrimination[;] it is only about whether the employer provided the employee with the
entitlements guaranteed by the FMLA.” Capps, 147 F. Supp. 3d at 334 (quoting Callison v. City
of Philadelphia, 430 F.3d 117, 119 (3d Cir. 2005)).
Here, the first three elements are not in dispute—Hartzell was an eligible employee;
Adaptable Systems was a qualifying employer; and Hartzell was entitled to leave under the
EFMLEA because he was unable to telework while taking care of his daughter. Adaptable
Systems argues that Hartzell cannot show that he gave notice of his intent to take leave or that
Adaptable Systems withheld benefits to which he was entitled. (Doc. No. 26 at pp. 16–17.)
i. Notice
A reasonable juror viewing all the evidence in the light most favorable to Hartzell could
find that he gave adequate notice of his need for EFMLEA leave. See Lichtenstein v. Univ. of
Pittsburgh Med. Ctr., 691 F.3d 294, 303 (3d Cir. 2012) (explaining that the “critical test” for
notice is “not whether the employee gave every necessary detail to determine if the FMLA
applies, but ‘how the information conveyed to the employer is reasonably interpreted,’” and
“[h]ow the employee’s notice is reasonably interpreted is generally a question of fact, not law”
(quoting Sarnowski v. Air Brooke Limousine, Inc., 510 F.3d 398, 402 (3d Cir. 2007)); see also id.
at 307 (“A trier of fact considering” the question of notice is “entitled to consider the totality of
the circumstances . . . .” (question marks omitted)); Sarnowski, 510 F.3d at 402 (“In providing
notice, the employee need not use any magic words. The critical question is how the information
conveyed to the employer is reasonably interpreted. An employee who does not cite to the
FMLA or provide the exact dates or duration of the leave requested nonetheless may have
provided his employer with reasonably adequate information under the circumstances to
understand that the employee seeks leave under the FMLA.”).
Hartzell told Sebastian and Fierle that he needed leave because he could not telework
while also caring for his daughter who was attending virtual school because of COVID-19. That
is sufficient. See Payne v. Wood Servs., Inc., 520 F.3d 670, 675 (E.D. Pa. 2021) (“When ‘giving
notice of the need for FMLA leave,’ the employee must ‘state a qualifying reason for the needed
leave’” such that the employer can “‘determine whether the leave qualifies under the Act.’”
(quoting 29 C.F.R. § 825.301)); see also Lichtenstein, 691 F.3d at 303 (“As we have previously
noted, this is not a formalistic or stringent standard.”); cf. Sarnowski, 510 F.3d at 403 (“Indeed,
where courts have found notice to be deficient, it has been because the employee failed to
convey the reason for needing leave.”).
Notably, Hartzell not only stated his need for leave and the reason with specificity but
also explicitly and repeatedly referenced paragraph 5 of the FFCRA poster that Sebastian had
circulated to all employees. See Rashid v. Sovereign Bancorp, Inc., Civil Action No. 07-1056,
2008 WL 2485450, at *6 (E.D. Pa. June 19, 2008) (“Rashid testified at his deposition that, at the
September 19, 2006 meeting, he requested that he be granted leave to care for his sick mother
who was having health problems and would need a medical procedure. Because this evidence is
sufficient to permit a reasonable jury to find in Rashid’s favor on the question of notice, there is
a genuine issue of material fact and summary judgment must be denied.”).
Adaptable Systems argues that Hartzell’s notice was insufficient because he mentioned
the wrong statute. It reasons that because Hartzell referenced the CARES Act by name,
Sebastian did not have notice that Hartzell wanted to take leave under the EFMLEA. We find
this argument unavailing for two reasons. First, it is detrimental to Adaptable Systems’s
argument that Sebastian mentioned the CARES Act first. A reasonable juror could find that
Hartzell was entitled to rely on Sebastian’s understanding of who qualifies for leave under these
Acts. Second, as discussed above, Hartzell told Sebastian that he was looking for leave, not
unemployment compensation, because he needed to care for his daughter and specifically
referenced paragraph 5 of the FFCRA poster that Sebastian himself circulated.10 A reasonable
juror could find that Sebastian, as the Director of Human Resources, should have known that
Hartzell was pursuing his remedies under the FFCRA, not the CARES Act. Indeed, after his call
with Hartzell, Sebastian sent a summary email to other members of management, explaining he
had discussed Hartzell’s options under the CARES Act and the EFMLEA, suggesting that
Sebastian knew Hartzell was asking about his right to leave under EFMLEA.
For those reasons, we cannot find that Hartzell gave inadequate notice.
10 Hartzell consistently testified that he thought the CARES Act encompassed the leave he was
requesting and explained that he did not know it was limited to unemployment. (Doc. No. 31-2 at 18:8–
14 (explaining that he thought he was entitled to leave under the CARES Act but he “didn’t know what
the name of the actual act was”); id. at 21:3–16 (“I believe that the CARES Act was kind of everywhere,
you know, like—you know, that’s what everybody—it was the big talk, everybody knew—you know,
that was the one—I never heard of the—well, other than—I just assumed it was the CARES Act, to be
honest. I didn’t know the name of it, I didn’t know—I just knew the poster they sent me and I didn’t
know what the name of the bill was or really what it was, and that’s why I was inquiring about it.”); id. at
49:19–50:5 (“A: . . . I didn’t actually say the Family First Coronavirus Act, I did not say that [in the
conversation with Sebastian]. Q: You said a different act, you said the CARES Act; correct? A: I believe
the—I thought they were the same thing at the time, yes.”); id. at 72:12–19 (“Q: Okay. And you would
agree with me that you had mentioned the CARES Act on multiple occasions during that conversation?
A: That’s what I—I’m sorry if that’s what you meant by—like, I agree that this is the conversation, but,
obviously, reading it, I had the CARES Act confused with the Family First Coronavirus Act.”); see also
Doc. No. 31-14 (“Although I referred to the ‘CARES Act’ in the Questionnaire (and at other times) I was
confusing that law with the FFCRA.”).)
ii. Denial of Benefits
Questions of fact also foreclose a ruling on whether Adaptable Systems denied Hartzell
benefits to which he was entitled under the FFCRA when Sebastian misled Hartzell about his
entitlement to leave and terminated him. Although Adaptable Systems denies that anything
Sebastian said was misleading, 11 a reasonable juror could find that Sebastian misled Hartzell
when he told Hartzell, incorrectly, that Hartzell would qualify for leave only if he or someone in
his family was diagnosed with COVID-19. Telling a qualifying employee that he does not
qualify for leave could certainly discourage or inhibit the employee from exercising his rights.
See Capps, 147 F. Supp. 3d at 335 (“In order to assert a claim of interference, an employee must
show that he was entitled to benefits under the FMLA and that his employer illegitimately
prevented him from obtaining those benefits.” (quoting Sarnowski, 510 F.3d at 401)); Wright v.
11 Notably, Joseph Beverly, President of Adaptable Systems since 1984, testified that Sebastian
“misspoke” when he told Hartzell that he or someone in his family had to be diagnosed with COVID to
receive leave:
Q: Okay. Just continuing on though at 2:26, I just want to read the rest of
that paragraph. When [Sebastian] says “Um, the EFMLA and the EPFL,
um, that has to do with paid, hu, normally you wouldn’t get time off, but
you wouldn’t get paid for sick leave. That says if you get paid for your
sick leave up to two weeks, up to 80 hours of time. But that would mean
that would require that you get diagnosed with like a COVID-19 or like,
you know, somebody in your family.” Knowing what you know now
sitting here today, was that an accurate statement of Mr. Hartzell’s rights?
A: I don’t think it was an accurate statement of his rights.
Q: Okay.
A: So I think that George misspoke there. I’d like to—I would really want
to listen to the recording again to make sure that it was ‘wouldn’t’ and it’s
very clear. Assuming that that is true, then I believe that George—he was
probably, you know, a little confused about the exact interpretation.
(Doc. No. 31-5 at 16:14–17:13 (Beverly Depo.); see also id. at 23:2–7 (“I believe that George misspoke
in that situation.”).)
Shore Memorial Hosp., Civil No. 11-5583 (JBS/AMD), 2013 WL 6080072, at *7 (D.N.J. Nov.
19, 2013) (explaining that “Courts in this Circuit have held that if [the] employers’ actions would
‘chill’ or ‘inhibit’ the employees from exercising FMLA rights, a claim for interference may
arise” and noting that a “jury could reasonably find that Defendant misinformed [the plaintiff]
that she had no FMLA eligibility after February 2011 . . . and that such misinformation was
interference with her FMLA rights”); Rashid, 2008 WL 2485450, at *6 (“Interfering with the
exercise of an employee’s rights would include, for example, not only refusing to authorize
FMLA leave, but discouraging an employee from using such leave.” (quotation marks omitted)).
In addition, as discussed above, a reasonable juror could find that Hartzell was terminated
after Sebastian referenced Hartzell’s failure to meet the call quota, told him he was not entitled to
leave, mentioned unemployment, and encouraged him to pursue that route instead. See Erdman,
582 F.3d at 509 (holding that “firing an employee for a valid request for FMLA leave may
constitute interference with the employee’s FMLA rights as well as retaliation against the
employee”); cf. Simone, 2021 WL 22971341, at *5 (denying summary judgment in FFCRA
interference case because “there is a question of material fact regarding whether [the employee]
was fired or quit” during a call with his supervisor where the employee testified that he told his
supervisor he could not “keep working without proper PPE” and the supervisor testified that he
interpreted the conversation as the employee resigning).
Therefore, disputes of fact also foreclose summary judgment on this issue. See Rashid,
2008 WL 2485450, at *6 (“Rashid testified that Stypulkoski and Forcey refused to address his
need for leave despite his repeated request that they do so. Moreover, he was fired very shortly
after his request for leave. Because there is sufficient evidence that a reasonable jury could
conclude that Sovereign interfered with Rashid’s right to FMLA leave, there is a genuine issue of
material fact and summary judgment must be denied.”).
* * *
In sum, disputes of fact preclude summary judgment on Hartzell’s FMLA interference
claim.
b. Retaliation
Next, we address Hartzell’s claim for retaliation. “An FMLA retaliation claim arises
under 29 U.S.C. § 2615(a)(2), which makes it ‘unlawful for any employer to discharge or in any
other manner discriminate against any individual for opposing any practice made unlawful’ by
the FMLA.” Capps, 147 F. Supp. 3d at 334 (quoting 29 U.S.C. § 2615(a)(2)). An FMLA
retaliation claim, unlike an interference claim, “requires proof of [the defendant’s] retaliatory
intent, and is therefore analyzed through the lens of employment discrimination law.” Capps,
147 F. Supp. 3d at 336. “Accordingly, a claim based on circumstantial evidence . . . is assessed
under the burden-shifting framework established in McDonnell Douglas Corp. v. Green . . . .”
Capps, 147 F. Supp. 3d at 336. At the first step of that framework, Hartzell must put forth a
prima facie case of FMLA retaliation by showing “that ‘(1) he invoked his right to FMLA-
qualifying leave, (2) he suffered an adverse employment decision, and (3) the adverse action was
causally related to his invocation of rights.’” Ross, 755 F.3d at 193 (quoting Lichtenstein, 691
F.3d at 302) (alterations adopted). Adaptable Systems argues that Hartzell has failed to meet his
burden as to the first two elements. We disagree.
Beginning with the first element, we find Hartzell invoked his right to FMLA-qualifying
leave for all the reasons mentioned in connection with Hartzell’s interference claim—he asked
for leave to care for his children who were home because their schools were closed for the
pandemic, and he mentioned paragraph 5 of the FFCRA poster. See Grosso v. UPMC, 857 F.
Supp. 2d 517, 542 (W.D. Pa. 2012) (“The Court of Appeals for the Third Circuit does not require
that an employee actually take FMLA leave; an ‘invocation of FMLA rights’ is sufficient. In
order to invoke FMLA rights, the employee must give the employer adequate notice of his or her
need for FMLA leave.” (citations omitted)). As for the second element, Adaptable Systems
argues that Hartzell cannot show he was subject to an adverse action because he admits that he
resigned voluntarily.12 We disagree. As we have discussed at length in this opinion, a
reasonable juror could find, after reviewing the transcript of Hartzell’s call with Sebastian, that
Hartzell had no intention of quitting and reasonably thought he had been terminated after he was
told he did not qualify for leave and was encouraged to pursue unemployment instead. See
Erdman, 582 F.3d at 509 (holding that “firing an employee for a valid request for FMLA leave
may constitute interference with the employee’s FMLA rights as well as retaliation against the
employee”).
Because Hartzell has stated a prima facie case of retaliation and Adaptable Systems has
not put forth a legitimate, non-discriminatory reason for terminating him, summary judgment is
also inappropriate on Hartzell’s FMLA retaliation claim.
* * *
For those reasons, we deny summary judgment as to Count II.
3. Count III: Unpaid Wages Under the FFCRA and FLSA
In Count III, Hartzell seeks unpaid wages under the FFCRA. (See Doc. No. 7 at p. 11.)
An employer who fails to pay wages to a qualifying employee as required by § 5102 of the
12 Although there is some confusion in the briefing about whether the wrongful termination falls
under Hartzell’s interference claim, it is more appropriately analyzed under a retaliation theory. See
Capps, 147 F. Supp. 3d at 336 (“Any assertion that Mondelez improperly considered his FMLA leave as
a factor in his termination is more properly brought as a retaliation claim, not an interference claim.”).
EPSLA is “considered to have failed to pay minimum wages in violation of section 6 of the
FLSA (29 U.S.C. § 206).” FFCRA § 5105(a)(1). Likewise, an employer who interferes with an
employee’s rights under the FMLA is liable to the eligible employee for damages equal to the
amount of “any wages . . . or other compensation denied or lost to such employee by reason of
the violation.” 29 U.S.C. § 2617(a)(1)(A).
Adaptable Systems argues that it is entitled to summary judgment on Count III for the
same reasons that it is entitled to summary judgment on Hartzell’s other counts. (See Doc. No.
26-1 at 22 (“In Count III, Plaintiff seeks lost wages as a result of Plaintiff’s alleged request for
leave, which did not occur as discussed supra. As Plaintiff has not established any violation of
the FFCRA or FLSA, Plaintiff cannot recover damages for unpaid wages as a result.” (citation
omitted)). Because factual disputes foreclose summary judgment as to Counts I and II, we
likewise decline to award summary judgment on Count III.
CONCLUSION
For the reasons discussed above, Adaptable Systems’s motion for summary judgment is
denied in its entirety. An appropriate order follows.