Brown v. Amesbury Management

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

JOERICA BROWN

VERSUS CIVIL ACTION

NO. 22-675-JWD-EWD

AMESBURY MANAGEMENT, LLC

RULING AND ORDER

This matter comes before the Court on the Motion for Summary Judgment (Doc. 43) filed

by defendant Amesbury Management LLC (“Amesbury” or “Defendant”). Plaintiff Joerica Brown

(“Brown” or “Plaintiff”) opposes the motion. (Doc. 49.) Defendant has filed a reply. (Doc. 52.)

Oral argument is not necessary. The Court has carefully considered the law, the facts in the record,

and the arguments and submissions of the parties and is prepared to rule. For the following reasons,

the Motion for Summary Judgment is granted in part and denied in part.

I. RELEVANT FACTUAL BACKGROUND1

Defendant “is a property management company, which oversees rental properties in

Louisiana and Texas on behalf of the properties’ owners[,]” dealing with the properties’ upkeep

and leasing. (SUMF, Doc. 43-2 at 1, ¶¶ 1–2.) The Chief Executive Officer (“CEO”) of Defendant

is Robert Peek (“Peek”), and the Chief Operating Officer (“COO”) is Denise Scelfo (“Scelfo”).

(Id. at ¶ 3.) Defendant’s properties each have a Site Manager, also known as a Community

Director, who oversees the property’s operations. (Id. at ¶ 4.)

The Site Manager is responsible for performing a wide variety of tasks in

connection with the particular property or properties, including determining a rental

rate, marketing the property, screening tenants, preparing for tenant move ins and

move outs, collecting rent, evicting tenants, managing finances, maintaining the

1 Unless otherwise indicated, when the Court cites to the Statement of Undisputed Material Facts (“SUMF”) in support

of a fact, that fact has been admitted by the opposing party. See M.D. La. Civ. R. 56(f)

property, managing tenant complaints, supervising employees and vendors, and

maintaining tenant ledgers and files.

(Id. at ¶ 5.)

In 2019, the owner of two properties in Baton Rouge, Louisiana, Hidden Oaks at Siegen

Apartments (“Hidden Oaks”) and Bluebonnet Ridge Apartments (“Bluebonnet Ridge”)

(collectively, the “Properties”), approached Peek about buying the Properties. (Id. at 2, ¶ 7.) Peek,

along with other Amesbury employees, inspected the Properties, but Peek decided to only manage,

not purchase them. (Id. at ¶¶ 8–9.) SunRidge Fee Management Group (“SunRidge”) was the

previous management company. (Id. at ¶ 10.)

Because Defendant lacked experience with the Properties, it wished to employ some

individuals who had worked for SunRidge. (Id. at 3, ¶ 13.) “Scelfo and Kristin Miesch

[(“Miesch”)], the Regional Property Director for Amesbury, met with the SunRidge employees to

determine if they wanted to hire any of those employees to work for Amesbury.” (Id. at ¶ 14.)

Plaintiff was Site Manager at Bluebonnet Ridge and was one of the employees Scelfo and Miesch

met. (Id. at ¶ 15.) Defendant hired five employees from SunRidge, including Plaintiff. (Id. at ¶ 17.)

Defendant also hired Bobby Wilson (“Wilson”), a maintenance worker that worked for SunRidge

as an independent contractor. (Id. at ¶ 18.) All employees were required “to submit employment

applications, take drug tests and undergo background checks, and all employees received new hire

dates.” (Id. at ¶ 20.)

The Properties were tax credit properties, which “provide affordable housing to low-

income families and individuals in exchange for which the property owner can claim federal tax

credits.” (Id. at 4, ¶ 24–25.) Plaintiff had knowledge of this type of property, including the extra

documentation required to receive tax credits. (Id. at ¶¶ 24–26.) “Scelfo made the decision to hire

plaintiff, a decision Miesch and Peek agreed with.” (Id. at 5, ¶ 27.)

Scelfo, Miesch, and Peek were aware that Plaintiff was visibly pregnant when she was

hired. (Id. at ¶ 28.) Plaintiff began working for Defendant on June 14, 2019, with a salary of

$48,000, about $10,000 more than she was paid by SunRidge. (Id. at ¶¶ 31–32.) Although Plaintiff

was Site Manager for Bluebonnet Ridge, she told Scelfo “she wanted to be the Site Manager at

Hidden Oaks . . . and Scelfo approved plaintiff’s request in this regard.” (Id. at ¶ 34.) “Yolanda

Givens [(“Givens”)] became the Site Manager at Bluebonnet Ridge and plaintiff helped out as

needed.” (Id. at 6, ¶ 36.)

Approximately a month later, on July 24, 2019, Scelfo suggested that Plaintiff begin her

maternity leave because she was due to give birth within the next week, and Plaintiff began her

leave. (Id. at ¶¶ 37–38.) “Plaintiff did not disagree with starting her leave on July 24 . . . .” (Id. at

¶ 40.) Plaintiff gave birth on July 30, 2019. (Id. at ¶ 39.) Plaintiff and Scelfo did not discuss how

long Plaintiff’s leave would last. (Id. at ¶ 42.)

On August 12, 2019, while Plaintiff was on maternity leave, Defendant hired Tamara

Lewis (“Lewis”) as the Hidden Oaks Site Manager. (Id. at 8, ¶ 56.) “Scelfo wanted to help plaintiff

and was trying to find a different position for plaintiff with Amesbury if plaintiff wanted to return

to work.” (Id. at ¶ 57.) In September 2019, Plaintiff reached out to Scelfo about returning to work,

but Scelfo informed Plaintiff that another Site Manager had been permanently hired. (Id. at ¶ 59.)

“Scelfo informed plaintiff that she would contact plaintiff once staffing was figured out.” (Id. at ¶

60.) However, there were no alternative positions, and Scelfo informed Plaintiff on September 30,

2019, that her employment would be terminated. (Id. at 9, ¶¶ 61–62.) Plaintiff and Scelfo did not

discuss the reasons for keeping Lewis as the permanent Site Manager. (Id. ¶ 63–65.)

“On approximately January 6, 2022, plaintiff filed a charge with the Equal Employment

Opportunity Commission (‘EEOC’).” (Id. at ¶ 69.) This filing “was the first time Amesbury was

aware that plaintiff was alleging she was discriminated against because of her pregnancy.” (Id. ¶

70.) Until Plaintiff was fired while on maternity leave, her relationship with Defendant and its

management was good. (Id. at 10, ¶¶ 72–76.)

There are two other companies associated with Defendant, Amesbury Construction

Services, LLC (“Construction”) and Amesbury Living, LLC (“Living”). (Id. at ¶ 78.)

“Construction is a small construction company that provides interior painting and other smaller-

scale construction services for multi-family and commercial real estate in Louisiana and Texas.”

(Id. at 11, ¶ 79.) “Living is in the corporate housing business and leases apartments on a short-term

basis for clients.” (Id. at ¶ 80.) Living does not have, and has never had, employees. (Id. at ¶ 81.)

Plaintiff only worked for Defendant, and did not do any work for Construction. (Id. at ¶¶ 82–88.)

Miesch and Scelfo, Plaintiff’s supervisors, were solely employed by Defendant and did not

perform any work for Construction. (Id. at 12, ¶¶ 89–91.)

Peek is the only common manager between Defendant and Construction. (Id. at ¶ 92.)

Defendant and Construction operate separately, and their files, financial records, books, taxes,

bank accounts, and equipment are separate. (Id. at ¶¶ 95–96.) Defendant and Construction use the

same vendor for payroll and human services, they have separate agreements with the vendor and

each one pays for those services separately. (Id. at 13, ¶ 100.)

Plaintiff had not been employed by Defendant for twelve months prior to beginning her

maternity leave and had not worked at least 1,250 hours for Defendant. (Id. at ¶¶ 106–107.) Before

Defendant took over management of the Properties, Plaintiff “put in her notice to quit her job at

SunRidge . . . [,]” but withdrew the notice when Defendant took over. (Id. at 14, ¶ 116.)

II. SUMMARY JUDGMENT STANDARD

“The court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). “The movant bears the initial burden and must identify ‘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.’ ”

Pioneer Expl., L.L.C. v. Steadfast Ins. Co., 767 F.3d 503, 511 (5th Cir. 2014) (quoting Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted)).

However, “the movant ‘need not negate the elements of the nonmovant’s case.’ ” Id.

(quoting Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005) (quoting Little v.

Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc))). That is, “[a] movant for summary

judgment need not set forth evidence when the nonmovant bears the burden of persuasion at trial.”

Wease v. Ocwen Loan Servicing, L.L.C., 915 F.3d 987, 997 (5th Cir. 2019) (citing Celotex, 477

U.S. at 323 (“we find no express or implied requirement in Rule 56 that the moving party support

its motion with affidavits or other similar materials negating the opponent’s claim.”) (emphasis in

original)). “The moving party may meet its burden to demonstrate the absence of a genuine issue

of material fact by pointing out that the record contains no support for the non-moving party’s

claim.” Id. (citing Stahl v. Novartis Pharms. Corp., 283 F.3d 254, 263 (5th Cir. 2002)).

If the mover bears his burden of showing that there is no genuine issue of fact, “its opponent

must do more than simply show that there is some metaphysical doubt as to the material facts. . .

. [T]he nonmoving party must come forward with ‘specific facts showing that there is a genuine

issue for trial.’ ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986)

(internal citations omitted). The non-mover’s burden is not satisfied by “conclusory allegations,

by unsubstantiated assertions, or by only a scintilla of evidence.” Little v. Liquid Air Corp., 37

F.3d 1069, 1075 (5th Cir. 1994) (citations and internal quotations omitted).

Ultimately, “[w]here the record taken as a whole could not lead a rational trier of fact to

find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., 475

U.S. at 587 (cleaned up). Further:

In resolving the motion, the court may not undertake to evaluate the

credibility of the witnesses, weigh the evidence, or resolve factual

disputes; so long as the evidence in the record is such that a reasonable

jury drawing all inferences in favor of the nonmoving party could arrive

at a verdict in that party’s favor, the court must deny the motion.

Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991) (citations

omitted).

III. DISCUSSION

A. Parties Arguments

i. Motion for Summary Judgment (Doc. 43)

1. FMLA

a. Employer

Defendant first argues that it is not considered an employer under the Family Medical

Leave Act (“FMLA”). (Doc. 43-1 at 8.) In order to be such, it must employ “50 or more employees

for each working day during each of 20 or more calendar work weeks in the current or preceding

calendar year . . . .” (Id. (quoting 29 U.S.C. § 2611(4)).) Defendant contends that “[i]t is undisputed

that” it did not employ more than 50 employees in 2018 and 2019. (Id.) It anticipates that Plaintiff

will attempt to argue that Defendant and Construction are joint or integrated employers, which

would cause Defendant to meet the 50-employee threshold. (Id. at 9 (citing 29 C.F.R. §§ 825.106;

825.104(c)).)

Defendant first argues that it and Construction are not joint employers.2 (Id. at 9–11.)

Defendant then argues that it and Construction are not an integrated employer. (Id. at 11.) Two

separate entities may be considered an integrated employer, depending on the factors set forth in

29 C.F.R. § 825.104(c)(2): “(1) common management, (2) interrelation between operations, (3)

centralized control of labor relations, and (4) degree of common ownership/financial control.” (Id.

(cleaned up).)

Discussing the first factor, common management, Defendant argues that there is only one

common manager between it and Construction: Peek. (Id.) Defendant has officers other than Peek

who are not involved with Construction, and Construction likewise has other officers who are not

involved with Defendant. (Id.) Thus, Defendant argues, this factor weighs against finding an

integrated employer. (Id.)

As to the second factor, interrelation between operations, Defendant contends that the

evidence in the record indicates that it operates separately from Construction. (Id. at 12.)

The companies have separate employee files, financial records, and company

books; file separate tax returns; have separate bank accounts; purchase equipment

and supplies separately; enter into separate agreements with clients and vendors;

have different managers (aside from Peek); and have separate insurance policies.

(Peek Decl. ¶ 13) Both companies are fully capitalized and make all purchases and

pay the wages of their employees with their own funds. (Peek Decl. ¶ 13) The nature

of the companies’ businesses is distinct, and employees are never transferred

between the companies. (Scelfo at 8-9, 16-17; Peek Decl. ¶ 13)

(Id.) Further, Defendant says that although it and Construction use the same payroll and human

resources vendors, they have separate agreements and operate separately. (Id.) Defendant

acknowledges that it and Construction share the same office space, but “each company pays its

portion of the rent to lease the office space.” (Id.) Defendant cites Hukill v. Auto Care, Inc., 192

2 Plaintiff concedes that she is not attempting to seek FMLA coverage through the joint employer doctrine (Doc. 49

at 22, n.96), so discussion of this argument is omitted.

F.3d 437, 433–44 (4th Cir. 1999) for the proposition that shared vendors and office space have no

bearing on the interrelation between the companies. (Id.) Defendant asserts that while it,

Construction, and Living are sometimes collectively called “Amesbury Companies,” this is simply

used for marketing and does not reflect interrelated companies. (Id. at 12–13.)

As to the third factor, centralized control of labor relations, Defendant argues that its labor

decisions are made independently of Construction. (Id. at 13.) It says that Peek has similar roles in

the management of both companies. (Id.) However, Peek’s decisions regarding Defendant are

separate from his decisions regarding Construction. (Id.) Defendant argues that Peek’s similar

roles are not evidence of centralized labor relations. (Id. (citing Kieffer v. CPR Restoration &

Cleaning Serv., LLC, 200 F. Supp 3d 520, 531 (E.D. Penn. 2016)).)

Finally, Defendant concedes that it and Construction are owned by SDS Interests, Ltd.

(“SDS”), which is wholly owned by Peek. (Id. at 14.) This makes the final factor, common

ownership, weigh in favor of an integrated employer. (Id.) But, argues Defendant, this factor is not

dispositive, and “common ownership alone is insufficient to establish that two entities are an

integrated employer.” (Id. (citing Morrison v. Magic Carpet Aviation, 383 F.3d 1253, 1257 (11th

Cir. 2004)).)

b. Eligible Employee

In the alternative, Defendant argues that Plaintiff was not an eligible employee under the

FMLA. (Id.) It asserts that an employee must have worked for the employer for at least 12 months

and for at least 1,250 hours during those 12 months. (Id. (citing 29 U.S.C. § 2611(2)(A); 29 C.F.R.

§ 825.110(a)(1)–(2)).) Plaintiff only worked for Defendant for about a month before taking her

maternity leave. (Id.) Defendant argues that Plaintiff’s attempt to assert coverage through the

“successor in interest” provision lacks merit. (Id.) It contends that it is not a successor in interest

to SunRidge, Plaintiff’s former employer, because the factors weigh against it. (Id. at 14–15 (citing

29 C.F.R. § 825.107(a)).) These factors are:

(1) Substantial continuity of the same business operations;

(2) Use of the same plant;

(3) Continuity of the work force;

(4) Similarity of jobs and working conditions;

(5) Similarity of supervisory personnel;

(6) Similarity in machinery, equipment, and production methods;

(7) Similarity of products or services; and

(8) The ability of the predecessor to provide relief.

(Id. at 15 (citing 29 C.F.R. § 825.107(a)).)

Defendant acknowledges that factors (1) and (7) weigh in favor of a successor in interest,

because it and SunRidge performed property management for Bluebonnet Ridge and Hidden Oaks.

(Id. at 15–17.) Defendant argues that factor (2) weighs in its favor because Plaintiff worked at

Bluebonnet Ridge while employed with SunRidge, but worked at Hidden Oaks when Defendant

took over. (Id. at 16.) Defendant asserts that this also causes factor (4) to weigh against successor

in interest because the two properties differ in “size and location.” (Id.) Further, Defendant says

that its work environment was better for Plaintiff than SunRidge. (Id. at 16–17 (citing Brown Dep.,

Doc. 43-3 at 57:18–25).) It contends that there was not great continuity of workforce—factor (3)—

because only five SunRidge employees were hired by Defendant. (Id. at 16.) These employees

were required to go through an application process and were given new hire dates. (Id.) Similarly,

Defendant says that it did not hire supervisory personnel from SunRidge, so factor (5) weighs in

its favor. (Id. at 17.) Defendant asserts that it “brought its own supplies and equipment when it

began management of the properties[,]” making factor (6) weigh in its favor. (Id.) Finally,

Defendant says factor (8) “is irrelevant in this case since plaintiff’s leave occurred after

[Defendant] hired plaintiff.” (Id.)

Defendant argues that even if it were a successor in interest to SunRidge, and an integrated

employer with Construction, Plaintiff would still not qualify as an eligible employee. (Id. at 18.)

Excluded from eligible employees is an employee who works at a jobsite where there are fewer

than 50 employees employed within 75 miles of the site, determined at the time of notice of the

employee’s need for leave. (Id. (quoting 29 U.S.C. § 2611(2)(B)(ii); 29 C.F.R. § 825.110(a)(1),

(f)).) Defendant says that during the time at issue, July 2019, it and Construction did not employ

50 employees within 75 miles of Baton Rouge. (Id.)

Plaintiff’s worksite was Hidden Oaks, which is located in Baton Rouge, Louisiana.

(Scelfo at 54; Brown at 27) In July 2019, [Defendant] had only approximately 25

employees in Louisiana and within 75 miles of plaintiff’s worksite. (Peek Decl. ¶

19) Its remaining employees, approximately fifteen, worked in Texas. (Peek Decl.

¶ 19) If the employees in Construction are counted, the number of employees still

falls significantly short of the requisite threshold. Construction employed only

approximately five employees in Louisiana in July 2019. (Peek Decl. ¶ 20) All of

its other employees, approximately ten, worked in Texas. (Peek Decl. ¶ 20) Thus,

at most, during the pertinent time period, there were only 30 employees employed

within 75 miles of plaintiff’s worksite. See McLaughlin v. Tuthill Transfer Sys.,

2002 U.S. Dist. LEXIS 8735, at *3 (E.D. La. May 9, 2002) (dismissing plaintiff’s

FMLA claims because defendant did not employ more than 50 employees where

plaintiff worked, or within 75 miles).

(Id. at 18–19.)

c. Timeliness

Defendant’s final argument in support of summary judgment on the FMLA claim is that

Plaintiff’s claim is untimely. (Id. at 19.) The FMLA has a sliding statute of limitations: two years,

unless there is a willful violation, which changes the statute of limitations to three years. (Id. (citing

29 U.S.C. § 2617(c)).) Defendant asserts that Plaintiff cannot meet her burden of showing a willful

violation. (Id.) It says that it “reasonably believed that it was not covered by the FMLA and, even

if covered, plaintiff was not eligible for FMLA leave[,]” and Plaintiff cannot produce evidence to

the contrary. (Id.) Defendant argues that because Plaintiff was fired on September 30, 2019, and

did not commence this action until September 23, 2022, the suit is untimely. (Id.)

2. PDA

Defendant argues that, under the McDonnell Douglas burden shifting approach, Plaintiff’s

Pregnancy Discrimination Act (“PDA”) claim cannot succeed. (Id. at 19–20 (citing McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973).) This framework requires Plaintiff to first establish

a prima facie case of discrimination; then the burden shifts to Defendant to identify “a legitimate,

nondiscriminatory reason for its decision[,]”and then the burden shifts back to Plaintiff to prove

that the offered reason is pretext. (Id. at 20 (citing McCoy v. City of Shreveport, 492 F.3d 551, 556

(5th Cir. 2007)).)

Defendant assumes for the purposes of the Motion that Plaintiff can establish a prima facie

case of discrimination. (Id. at 21.) Its reason for terminating Plaintiff is: “it did not have a position

available for her when she indicated she was ready to return to work.” (Id.) It says that it initially

hired Lewis to cover Plaintiff’s position temporarily, but an audit done shortly after Plaintiff began

her leave revealed problems with files that Plaintiff had handled at Bluebonnet Ridge. (Id.)

Defendant says “Lewis was performing much better than plaintiff in the Site Manager position and

[Defendant] was not willing to put plaintiff back into that position due to her performance.” (Id.)

Defendant asserts that Scelfo attempted to find a different position for Plaintiff when she returned,

but there were no available positions. (Id.)

Defendant argues that Plaintiff will not be able to present evidence showing that its reasons

for terminating her employment were pretext and that Plaintiffs allegations are only based on

speculation. (Id. at 21–22.) Defendant asserts that it would not have discriminated against Plaintiff

because of her pregnancy and childbirth (id. at 22) and that Scelfo was supportive of Plaintiff while

she was on leave, the hiring team knew Plaintiff was pregnant when she began working, and

several other employees were pregnant and gave birth around this time (id. at 22–23).

Defendant anticipates that Plaintiff will try to show pretext by arguing that she was never

made aware of the audit and its findings. (Id. at 23.) It says “Scelfo saw no reason to worry plaintiff

while she was on maternity leave by sharing the findings, particularly if Scelfo could find another

position for her.” (Id.) Further, it says that Plaintiff cannot point to the EEOC statement of position

to show pretext. (Id. at 23–24.) The EEOC statement did not mention the audit. (Id. at 23.) It says

that it is not presenting inconsistent reasons for terminating Plaintiff’s employment, “only

additional reasons,” which do not support “an inference of pretext.” (Id. at 23–24 (citing Bennett

v. Consolidated Gravity Drainage Dist. No. 1, 648 F. App’x 425, 431 (5th Cir. 2016) (per

curiam)).) Defendant maintains its position as stated in its EEOC statement, that Plaintiff did not

notify Scelfo of her intent to return, and the audit findings were additional reasons to hire Lewis

permanently. (Id. at 24.) Even if these reasons are inconsistent, Defendant contends that “no

reasonable jury could conclude that the real reason for plaintiff’s termination was intentional

discrimination.” (Id.) Finally, Defendant asserts that Plaintiff is not required to simply present

evidence of pretext, it needs to present evidence to give rise to an inference of discrimination. (Id.

at 25.) It maintains that Plaintiff has not done this. (Id.)

ii. Opposition (Doc. 49)

1. FMLA

Plaintiff argues that there are genuine issues of fact as to whether Defendant was an

employee under the FMLA, and she was an eligible employee. (Doc. 49 at 19.)

a. Eligible Employee

First, she argues that Defendant was SunRidge’s successor in interest. (Id.) She concedes

that, simply looking at her time employed by Defendant, she did not work for the required year

before taking her leave. (Id.) However, she argues that her time with SunRidge should be

considered. (Id.) She analyzes the factors set forth in 29 C.F.R. § 825.107, saying that she need

not establish every factor in her favor to show a successor in interest. (Id. at 19–20.) As discussed

above, Defendant conceded that factors (1), substantial continuity of business operation, and (7),

similarity of products or services, favor Plaintiff. (Id. at 20–21.) Plaintiff argues that factor (2), use

of the same facilities, weighs in her favor, because she worked at both Bluebonnet Ridge and

Hidden Oaks while employed with SunRidge. (Id. at 20.) She says that factor (3), continuity of

workforce, weighs in her favor, because although not every employee was hired by Defendant,

five employees that Plaintiff worked with were hired. (Id. at 21.) Plaintiff argues that factor (4),

similarity of jobs and working conditions, does not favor Defendant, because the jobs at the

management companies were the same, regardless of her feelings about her employer or how much

of a raise she got. (Id.) She asserts that factor (5), similarity of supervisory personnel, can go both

ways, because some middle management, like herself, were retained, but the higher management

officials were replaced. (Id.) Plaintiff rejects Defendant’s argument that factor (6), similarity of

equipment, weighs in Defendant’s favor, because the relevant equipment is the apartment complex,

which stayed the same. (Id.) Finally, as to factor (8), ability of predecessor to provide relief,

Plaintiff argues that SunRidge cannot provide relief because it did not violate her rights, so she

must seek relief from Defendant. (Id.)

Plaintiff asserts that equitable considerations weigh in her favor, because she was six

months pregnant when Defendant took over from SunRidge, she had vested FMLA rights through

her employment with SunRidge, and she had no control over the switch. (Id.) “It would be deeply

unjust to hold the result of this decision could be to undercut statutory rights which she had already

earned and vested.” (Id. at 22.)

She argues that the question of whether Defendant employed 50 employees within 75 miles

of her worksite should be left to the jury. (Id. at 23.) She points to Scelfo’s testimony “that the

Construction workers are in Youngsville, less than 75 miles from Baton Rouge.” (Id. at 23–24.)

Plaintiff argues that since Construction does work on Defendant’s properties, they must be

geographically close. (Id. at 24.) She says, “most convincingly,” Defendant’s payroll protection

plan (“PPP”) loan application lists more than 50 employees and lists the location as Baton Rouge.

(Id.) She argues that this creates a genuine issue of material fact, and summary judgment should

not be granted. (Id.)

b. Employer

Plaintiff argues that Defendant and all other Amesbury companies should be considered an

integrated employer for the purpose of counting employees. (Id. at 22.) She concedes that

Defendant, by itself, does not employ 50 employees. (Id.) She asserts that, when counting the

employees of other Amesbury companies, there are more than 50 employees. (Id.) She says that

the integrated employer test is a question for the jury. (Id.)

First, she says that there is common management between Defendant and Construction

because Peek “is the sole owner and the sole officer of all Amesbury Companies.” (Id.) Plaintiff

argues that Peek was heavily involved in the takeover of the Properties. (Id.) Scelfo and Miesch

have no role in Construction; Plaintiff avers that management need not be identical. (Id.)

Second, Plaintiff asserts that Defendant and Construction “are generally in the business of

providing apartment and rental services under the command of Robert Peek, and their operations

are not so unrelated and disparate as to justify using that as an excuse to take away their employees’

statutory right to medical leave.” (Id. at 23.)

Third, Plaintiff argues that labor relations of Defendant and Construction are “wholly

vested in Mr. Peek.” (Id.) She points to both companies’ use of the same handbook, payroll

provider, and office space. (Id.)

Finally, Defendant acknowledged that there is total common ownership of Defendant and

Construction, and Plaintiff argues that this factor, weighed alongside the other factors, indicates

that Defendant and Construction are an integrated employer. (Id.)

Plaintiff says that separate bank accounts and separate tax returns are irrelevant, because

those are piercing the corporate veil factors. (Id.) She argues that the factors are similar, but

different, and the Court should abide by the regulatory factors. (Id.) The question of integration

should be left to the jury. (Id.)

c. Timeliness

Plaintiff argues that the question of whether the FMLA violation is willful—therefore

extending her time to file—is a question for the jury. (Id. at 24.) She says that a reasonable jury

could find a willful violation. (Id.) She looks to Defendant’s actions in replacing her two and a

half weeks into her leave, without telling her the true reason for her termination. (Id.) She says that

shifting justifications, as discussed in the pregnancy discrimination section, indicate Defendant’s

willfulness. (Id. at 24–25 (citing Benjamin v. United Merchs. & Mfrs., Inc., 873 F.2d 41, 44–45

(2d Cir. 1989)).) Finally, she says that there is no evidence that Defendant attempted to determine

if it was required to give her leave under the FMLA. (Id. at 25.) “This total lack of concern for its

legal obligations certainly qualifies as reckless disregard.” (Id.) Therefore, she argues that there

remains a genuine issue of material fact. (Id.)

2. PDA

Plaintiff agrees that the McDonnell Douglas burden shifting approach applies here. (Id. at

6.) She argues that Defendant’s shifting justifications for firing her indicate that their proffered

justification is pretext. (Id. at 7 (citing Pierson v. Quad/Graphics Printing Corp., 749 F.3d 530,

540 (6th Cir. 2014)).) She says that the Fifth Circuit has called inconsistent explanations an

indicator of pretext. (Id. (quoting Robinson v. Jackson State Univ., 714 F. App’x 354, 363 (5th Cir.

2017)).) “This is because ‘[w]hen an employer offers inconsistent explanations for its employment

decision at different times, as here, the jury may infer that the employer’s proffered reasons are

pretextual.’ ” (Id. at 7–8 (quoting Staten v. New Palace Casino, LLC, 187 F. App’x 350, 359 (5th

Cir. 2006)).)

Plaintiff argues that Defendant has shifted its reasoning for firing her. (Id. at 8.) She first

looks to the explanation Scelfo gave her when she was terminated. (Id.) Plaintiff says that Scelfo

said nothing about her performance, simply saying that there were no positions for her. (Id.) She

argues that her performance could not have been the motivation behind her firing, because Scelfo

wanted to “help find her another job in the industry.” (Id. at 8–9.) Plaintiff then looks to the

explanation given in the EEOC statement, that she never told Scelfo if she would return from

maternity leave. (Id. at 9.) Plaintiff argues that if the allegations about her misconduct uncovered

during the audit were true, Defendant would have cited it as the reason for her termination in the

EEOC statement. (Id.) She says that this version of the story was repeated in a status report to this

Court in February 2023. (Id. at 10.)

Plaintiff argues that Defendant has not produced any evidence of an audit. (Id.) Further,

she says that there is no evidence of wrongdoing on her part, and she was not questioned about the

audit findings in her deposition in January 2024. (Id.) Plaintiff contends that the first time the audit

and its role in her termination were mentioned was in Scelfo’s deposition, but there is no written

documentation to support Scelfo’s claims. (Id. at 10–11.) She asserts that this is the same

justification Defendant sets forth in its Motion, and says it is unsupported by any contemporaneous

documentation. (Id. at 11.)

Plaintiff says that Bennett, cited by Defendant, is inapplicable here, because that case dealt

with supplementary information. (Id. at 11–12 (citing Bennett, 648 F. App’x at 430).) Conversely,

Defendant here has changed its reasoning multiple times. (Id. at 12 (citing Burton v. Freescale

Semiconductor, Inc., 798 F.3d 222, 238–39 (5th Cir. 2015)).) Plaintiff argues that Defendant has

admitted that its reasoning from the EEOC statement is not true, because it said in its Motion that

Plaintiff never indicated that she would not return to work. (Id. (citing Doc. 43-1 at 5, n.5)).)

Further, Plaintiff argues that Defendant has added defenses pointing to her disputes with former

coworkers. (Id.)

Plaintiff contends that there is a “clear and apparent connection between [her] pregnancy

and her replacement and eventual termination, as the new manager was hired during [Plaintiff’s]

pregnancy leave (while [Defendant] apparently tried to hide that fact from [Plaintiff]).” (Id. at 12–

13.) She says that this “is enough to raise an inference of intentional discrimination and squarely

places the burden on the employer to provide a robust justification.” (Id. at 13.) She argues that

the inconsistent, unsupported explanations, compounded with the timing of her termination, is

strong evidence of discrimination. (Id.) Defendant’s current explanation lacks merit, she argues,

especially because “it conflicts with its prior actions.” (Id. (emphasis omitted).) If she “was a poor

manager who couldn’t get along with her employees, and left important tax documentation

incomplete or inaccurate[,]” then Scelfo would not have attempted to find her another job. (Id.)

Plaintiff argues that the shifting explanations create a credibility issue, which should be left to the

jury. (Id.)

In further opposition to the Motion, Plaintiff avers that Defendant has failed to produce

contemporaneous written evidence supporting its defense. (Id. at 14.) She says there is no evidence

that her coworkers disliked her, nor evidence of an audit. (Id.) She argues that there is no evidence

of problems with the files she handled, and she was not even questioned about the issues, indicating

that, at best, there is a credibility issue for the jury to determine. (Id. at 14–15.) Plaintiff cites to

Fifth Circuit caselaw, saying “[w]here the defendant relies almost exclusively on its own

manager’s testimony in depositions and declarations, without any supporting objective evidence,

summary judgment is not proper.” (Id. at 15 (citing Heinsohn v. Carabin & Shaw, P.C., 832 F.3d

224, 245 (5th Cir. 2016)).) She says that Defendant has failed to provide contemporaneous written

evidence, consistent with its current justification, so summary judgment must be denied. (Id. at

15–16.)

Plaintiff argues that even if Scelfo and Miesch liked her personally, her termination while

on maternity leave is pregnancy discrimination. (Id. at 16.) She likens this case to Ruh v. Superior

Home Health Care, Inc., No. 15-439, 2017 WL 2702225 (M.D. La. June 22, 2017), where

summary judgment was denied even though the plaintiff’s supervisor cited the baby’s health as

her reason for encouraging the plaintiff to take maternity leave early. (Id.) Plaintiff says that the

same is true here. (Id. at 16–17.) “Even if Scelfo’s decision was made in part due to benign or

beneficial reasons such as a desire for [Plaintiff] to take better care for her baby or a legitimate

concern about the rising cost of child care, that would still qualify as pregnancy discrimination

under the law.” (Id. at 17 (citing Hillins v. Mktg. Architects, Inc., 808 F. Supp. 2d 1145, 1154 (D.

Minn. 2011)).)

Plaintiff says that the fact that other employees were allowed to take maternity leave and

were not fired is irrelevant. (Id.) She argues that Miesch, who took maternity leave, is not a

comparator, because she is Scelfo’s daughter. (Id.) Plaintiff again cites to Ruh, where the owner

being seemingly supportive of the plaintiff’s pregnancy leave did not entitle the defendant to

summary judgment. (Id. at 17–18 (citing Ruh, 2017 WL 2702225 at * 4).)

Finally, Plaintiff argues “[t]he clear weight of jurisprudence holds that defendants are not

entitled to summary judgment when they terminate an employee during her pregnancy-related

medical leave.” (Id. at 18 (citing Valentine v. Legendary Marine Fwb, No. 09-334, 2011 U.S. Dist.

LEXIS 169709, at *15 (N.D. Fla. Jan. 14, 2011); Doe v. CARS Protection Plus, Inc., 527 F.3d 358

(3d Cir. 2008); Asmo v. Keanse, Inc., 471 F.3d 588, 598 (6th Cir. 2006)).) She says that the

temporal proximity between her leave and her termination indicates that there was some

connection between the two. (Id. at 18–19.) Therefore, she argues, the Motion for Summary

Judgment should be denied as to the pregnancy discrimination claim. (Id. at 19.)

iii. Reply (Doc. 52)

1. FMLA

Defendant argues that Plaintiff fails to defeat summary judgment on every element of her

FMLA claim. (Doc. 52 at 2.) It first looks to the 75-mile radius requirement, and says that Scelfo’s

testimony about Construction employees in Youngsville was related to those employees’ current

whereabouts. (Id.) Further, it contends that Plaintiff’s citation to the PPP loan data is irrelevant not

only because the data is from 2020, not July 2019, but the information submitted does not indicate

where those employees work. (Id.)

As to the integrated employer test, Defendant argues that the factors indicate that

Defendant and Construction are not integrated. (Id. at 3.) It says that Plaintiff admitted that Peek

was the only common manager in both companies, and that there is no other crossover in

management. (Id.) “While [Defendant] acknowledges that ‘there is no requirement that

management be identical, at every level,’ a single common manager is insufficient to satisfy the

first factor of the integrated employer test.” (Id. (citing Kieffer, 200 F. Supp. At 530).)

Next, Defendant argues that Plaintiff’s mischaracterization of the businesses defeats her

argument for interrelation of operations. (Id.) Defendant asserts that it “is a property management

company, and Construction is a construction company.” (Id.) Even so, the characterization of the

businesses is not what matters, but to what extent the businesses are comingling. (Id.) Defendant

says that the overwhelming evidence shows that there is no comingling. (Id.) It adds in a footnote

that the “veil piercing” considerations are commonly used in evaluating this factor. (Id. at 3, n.2

(citing Hukill, 192 F.3d at 443).)

Finally, Defendant avers that labor relations are not centralized, because any involvement

that Peek has in Defendant’s hiring processes is separate from Construction. (Id. at 3–4.) It argues

that the use of the same handbook does not mean that each company has control of the other’s

labor relations. (Id. at 4 (citing Cardinale v. S. Homes of Polk Cnty., Inc., No. 06-1295, 2008 WL

788460 (M.D. Fla. Mar. 19, 2008)).)

Defendant urges that Plaintiff cannot show a willful violation of the FMLA because

shifting reasons for termination is not properly considered regarding an FMLA claim. (Id.) It says

that the cases cited by Plaintiff dealt with “willfulness for purposes of liquidated damages in the

context of the Age Discrimination Act . . . [,]” thus are not applicable. (Id.) Defendant argues that

Plaintiff has failed to produce evidence that it willfully disregarded the FMLA, and if it did violate

federal law, it did so negligently. (Id. at 4–5.) Therefore, Defendant argues that the two-year statute

of limitations should apply, making this action untimely. (Id. at 5.)

2. PDA

Defendant reiterates its argument that it has not changed its reasoning for firing Plaintiff:

“there was no position available for her when she contacted Scelfo about returning to work . . . .”

(Id. at 5.) Defendant argues that Plaintiff is required to rebut each of its justifications and has failed

to do so. (Id. at 5–6 (citing Jackson v. Watkins, 619 F.3d 463, 467 (5th Cir. 2010)).) Specifically,

Plaintiff has not rebutted its position that Plaintiff was terminated because there were no positions

available. (Id. at 5.) Defendant asserts that any evidence of Plaintiff’s poor relationship with

employees had nothing to do with its decision to hire Lewis permanently. (Id. at 7.) While the audit

findings led to Defendant’s decision to hire Lewis permanently, Lewis was performing better in

the position but intended to give Plaintiff another position. (Id. at 7–8.)

Defendant argues that Plaintiff has offered no evidence that would indicate that

Defendant’s true intentions were to discriminate her based on her pregnancy (id. at 8) or had

anything to do with her pregnancy. (Id. at 8–9.) It distinguishes Ruh, saying that the facts of Ruh

are a “far cry” from this case. (Id. at 9.) Further, it asserts that the fact that Scelfo, Miesch, and

Peek knew Plaintiff was pregnant when they hired her, and that there were multiple other pregnant

employees at the time is very relevant to this inquiry. (Id.) Finally, Defendant argues that temporal

proximity alone is not evidence of discrimination, and simply because Plaintiff was fired while on

maternity leave does not mean she was discriminated against. (Id. at 9–10 (citing Shafrir v. Ass’n

of Reform Zionists of Am., 998 F. Supp. 355, 361 (S.D.N.Y. 1998)).) Therefore, Defendant says it

is entitled to summary judgment on the pregnancy discrimination issue. (Id. at 10.)

B. Law and Analysis

i. FMLA

The FMLA entitles eligible employees “to a total of 12 workweeks of leave during any 12-

month period for one or more of the following: Because of the birth of a son or daughter of the

employee and in order to care for such son or daughter.” 29 U.S.C. § 2612(a)(1)(A) (cleaned up).

The term “eligible employee” means an employee who has been employed—

(i) for at least 12 months by the employer with respect to whom leave is requested

under section 2612 of this title; and

(ii) for at least 1,250 hours of service with such employer during the previous 12-

month period.

Id. at § 2611(2)(A)(i–ii). There is an exception for “any employee of an employer who is employed

at a worksite at which such employer employs less than 50 employees if the total number of

employees employed by that employer within 75 miles of that worksite is less than 50.” Id. at §

2611(2)(b).

The term “employer”—

(i) means any person engaged in commerce or in any industry or activity affecting

commerce who employs 50 or more employees for each working day during each

of 20 or more calendar workweeks in the current or preceding calendar year;

(ii) includes—

(I) any person who acts, directly or indirectly, in the interest of an employer to any

of the employees of such employer; and

(II) any successor in interest of an employer[.]

Id. at § 2611(4).

1. Employer

Defendant argues first that it is not an employer under the FMLA because it did not employ

more than 50 employees during the relevant time period, 2018 to 2019. (Doc. 43-1 at 8.) Plaintiff

counters that Defendant, when combined with Construction as an integrated employer, does

employ at least 50 employees. (Doc. 49 at 22.) 29 C.F.R. § 825.104 provides the rule for integrated

employers:

Separate entities will be deemed to be parts of a single employer for purposes of

FMLA if they meet the integrated employer test. Where this test is met, the

employees of all entities making up the integrated employer will be counted in

determining employer coverage and employee eligibility. A determination of

whether or not separate entities are an integrated employer is not determined by the

application of any single criterion, but rather the entire relationship is to be

reviewed in its totality. Factors considered in determining whether two or more

entities are an integrated employer include:

(i) Common management;

(ii) Interrelation between operations;

(iii) Centralized control of labor relations; and

(iv) Degree of common ownership/financial control.

29 C.F.R. § 825.104(c)(2)(i–iv).

Two of the four factors were discussed in detail by the Fifth Circuit in Perry v. VHS San

Antonio Partners, LLC, 990 F.3d 918, 927–28; see also Leggett v. Mac Haik Ford, Ltd., No. 21-

789, 2024 WL 3488127, at * 3 (W.D. Tex. July 19, 2024) (discussing Perry in relation to the

FMLA integrated employer test); Jurek v. Williams WPC-I, Inc., No. 08-1451, 2009 WL 1748732,

at *5 (S.D. Tex. June 17, 2009) (linking the integrated employer tests from Title VII and the

FMLA). Regarding interrelation of operations, the court said that this factor “ ‘ultimately focuses

on whether’ one entity ‘excessively influenced or interfered with the business operations’ of the

other.” Perry, 990 F.3d at 927 (citing Lusk v. Foxmeyer Health Corp., 129 F.3d 773, 778 (5th Cir.

1997)).

Evidence suggestive of interrelated operations includes (1) one entity’s

involvement in the other’s daily decisions relating to production, distribution,

marketing, and advertising; (2) shared employees, services, records, and

equipment; (3) commingled bank accounts, accounts receivable, inventories, and

credit lines; (4) one entity’s maintenance of the other’s books; (5) one entity’s

issuance of the other’s paychecks; and (6) one entity’s preparation and filing of the

other’s tax returns.

Id. (citing Lusk, 129 F.3d at 778).

Plaintiff does not dispute that Defendant and Construction “have separate employee files,

financial records, and company books; file separate tax returns; have separate bank accounts;

purchase equipment and supplies separately, enter into separate agreements with clients and

vendors; have different managers (aside from Peek); and have separate insurance policies.”

(Plaintiff’s Response to Statement of Material Facts (“PRSMF”), Doc. 49-11 at 17, ¶ 96.) Plaintiff

also does not dispute that while Defendant and Construction use the same payroll vendor, their

accounts are separate. (Id. at ¶ 100.) The undisputed facts indicate that Defendant and Construction

operate separately. Even when viewing the evidence in a light most favorable to Plaintiff, this

factor weighs against finding an integrated employer.

The next factor discussed by Perry is centralized control of labor relations, which the Fifth

Circuit says “has been called the most important one.” Perry, 990 F.3d at 927 (quoting Johnson v.

Crown Enterprises, Inc., 398 F.3d 339, 343 (5th Cir. 2005)) (internal quotation marks omitted).

The Fifth Circuit has “refined the inquiry into one question: What entity made the final decisions

on employment matters regarding the person claiming discrimination?” Id. at 927–28 (citing

Johnson, 398 F.3d at 343). Here, Plaintiff focuses her argument on Peek’s role in both companies,

companies’ payroll vendor, and the location of the companies, saying that all labor relations “are

wholly vested in Mr. Peek.” (Doc. 49 at 23.)

While the record supports the notion that Peek is involved in the labor relations of

Defendant, Plaintiff fails to produce evidence of Peek’s involvement of the labor relations in

Construction. Further, Scelfo testified at her deposition that she made the decision to hire Plaintiff,

which Scelfo assumed involved the input of Miesch and Peek. (Scelfo Dep., Doc. 43-4 at 39:23–

40:5.) Peek, Scelfo, and Miesch were all involved in the decision to have Plaintiff replaced as

manager of Hidden Oaks. (Peek Dep., Doc. 43-5 at 26:4–22.) Scelfo and Miesch do not work for

Construction, and Plaintiff does not allege that they make employment decisions at Construction.

(Scelfo Dep., Doc. 43-4 at 17:16–18.)

Plaintiff has not presented any evidence that Peek, in his capacity as CEO of Construction,

made the decision to terminate her employment. Plaintiff says multiple times in the PRSMF that

Peek ultimately makes the labor decisions for both Defendant and Construction but provides no

evidence to support this conclusion. (PRSMF, Doc. 49-11 at 18, ¶¶ 102–05.) She cites to page 49

of Peek’s deposition, but page 49 was not provided to the Court. (Id. at ¶ 102.) The Fifth Circuit

has declined to find centralized labor relations when a plaintiff “failed to present any evidence that

the parent entity actually made any of the subsidiary’s labor decisions, including decisions

regarding the underlying litigation.” Oaktree Capital Mgmt., LP v. N.L.R.B., 452 F. App’x 433,

442 (5th Cir. 2011) (quoting Johnson, 398 F.3d at 344 (5th Cir. 2005) (cleaned up); see also

Kieffer, 200 F. Supp 3d at 531 (citing Grace v. USCAR, 521 F.3d 655, 665 (6th Cir. 2008)

(“However, Kieffer has offered no evidence that one business exerted control of the labor relations

of the other.”) Plaintiff bears the burden of producing “specific facts showing that there is a

genuine issue for trial” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986) (internal citations omitted). This burden may not be satisfied by “conclusory allegations,

by unsubstantiated assertions, or by only a scintilla of evidence.” Little v. Liquid Air Corp., 37

F.3d 1069, 1075 (5th Cir. 1994) (citations and internal quotations omitted). Plaintiff has failed to

produce evidence to create a genuine issue of material fact as to whether Defendant and

Construction have centralized labor relations. Based on the evidence in the record, a reasonable

jury would not be able to find that there are centralized labor relations. Therefore, this factor

weighs against an integrated employer.

The Third Circuit Court of Appeals has addressed the factors considered in determining

whether there is common management. Pearson v. Component Tech. Corp., 247 F.3d 471, 498 (3d

Cir. 2001). It said that this factor typically asks whether the companies “(1) actually have the same

people occupying officer or director positions with both companies; (2) repeatedly transfer

management-level personnel between the companies; or (3) have officers and directors of one

company occupying some sort of formal management position with respect to the second

company.” Id. (citing Frank v. U.S. West, Inc., 3 F.3d 1357, 1364 (10th Cir. 1993)).

Peek is the only common officer between Defendant and Construction. (SUMF, Doc. 43-2

at 12, ¶ 92.) In 2019, Scelfo was the COO of Defendant, and Miesch was the only regional director.

(Scelfo Dep., Doc. 43-4 at 13:21–14:22.) Scelfo said in her deposition that Robert and Kurt Miller,

Sr. are the equivalent managers for Construction and said that Kurt Miller “runs the entire

company.” (Id. at 17:19–24.) Plaintiff does not offer any evidence about Peek’s role in

Construction, only pointing to Peek’s role in the take-over of managing the Properties. (Doc. 49 at

22.)

Simply because Peek was heavily involved in Defendant’s operations does not mean that

he is equally involved with Construction. Again, Plaintiff bears the burden of producing “specific

facts showing that there is a genuine issue for trial” Matsushita Elec. Indus. Co., 475 U.S. at 587

(internal citations omitted). This burden may not be satisfied by “conclusory allegations, by

unsubstantiated assertions, or by only a scintilla of evidence.” Little, 37 F.3d at 1075 (citations and

internal quotations omitted). With no evidentiary support for Plaintiff’s contention that Peek “is

the ultimate decisionmaker[,]” for both Defendant and Construction, compounded with the fact

that Construction has separate officers, there is no genuine issue of material fact as to this factor,

and it weighs against finding an integrated employer.

Finally, Defendant concedes that “during the relevant time period, [Defendant] and

Construction were both owned by SDS Interests, Ltd. (“SDS”), and Peek is the sole owner of

SDS.” (Doc. 43-1 at 14.) This factor weighs in favor of an integrated employer.

Three of the four factors from 29 C.F.R. § 825.104(c) weigh against finding an integrated

employer. The parties agree that common ownership alone is not sufficient to support a finding of

an integrated employer. (Doc. 49 at 23 (citing Morrison, 383 F.3d at 1257).) Even when viewing

the evidence in a light most favorable to Plaintiff, a reasonable jury could not conclude that

Defendant and Construction are a single employer. Construction’s employees may not be

attributed to Defendant. The parties agree that Defendant did not employ more than 50 employees

while Plaintiff worked there, so Defendant was not considered an “employer” by the FMLA. (Id.

at 22); 29 C.F.R. § 825.104(c). Therefore, Defendant is entitled to summary judgment on the

FMLA claim.

2. Eligible Employee

Further supporting this Court’s decision to grant summary judgment, even if Defendant

and Construction were integrated employers, Plaintiff was not an eligible employee. She has not

presented evidence to show that Defendant and Construction collectively employed 50 employees

within 75 miles of Plaintiff’s jobsite. An employee is not covered by the FMLA if there are fewer

than 50 employees within 75 miles of her worksite. 29 U.S.C. § 2611(2)(B)(ii). Peek stated in his

declaration in support of this Motion for Summary Judgment that in July 2019, Defendant

employed 25 employees in Louisiana and approximately 15 employees in Texas. (Peek Decl., Doc.

43-6 at 3, ¶ 19.) He also stated that only five of Construction’s employees were located in

Louisiana, and the other ten employees worked in Texas during this time. (Id. at ¶ 20.) Combined,

Defendant and Construction employed 30 employees in Louisiana, and 25 in Texas.

Plaintiff’s only evidence to rebut this statement is information from PPP loan data. These

reports indicate that Construction reported 11 jobs in its application for a PPP loan, and Defendant

reported 44 jobs for one PPP loan and 43 jobs for a loan approved a year later. (Doc. 49-9.) The

evidence submitted by Plaintiff does not indicate where these jobs are located, only listing Baton

Rouge as the location of the companies. (Id.) Plaintiff does not dispute that Defendant and

Construction do business in Texas. (PRSMF, Doc. 49-11 at 1, ¶ 1; 14 at ¶ 79.) The Texas state line

is more than 75 miles from Baton Rouge. See United States v. Herrera-Ochoa, 245 F.3d 495, 501–

02 (5th Cir. 2001) (holding that a court may take judicial notice of “a clear adjudicative fact:

geographical location.”) Plaintiff’s citation to Scelfo’s deposition has no relevance to her

argument. Scelfo testified that “[p]resently [Construction is] building 93 units in Youngsville.”

(Scelfo Dep., Doc. 49-3 at 8:22–25 (emphasis added).) The deposition was given on January 11,

2024, (Doc. 49-3 at 1) which is not indicative of Construction’s employees’ whereabouts in July

2019. Therefore, Plaintiff has failed to present evidence to rebut Defendant’s contention that fewer

than 50 workers were employed within 75 miles of her jobsite in Baton Rouge. There is no genuine

issue of material fact, and a reasonable jury would not be able to find in Plaintiff’s favor.

ii. PDA

The Pregnancy Discrimination Act makes clear that Title VII’s prohibition against

sex discrimination applies to discrimination based on pregnancy. It also says that

employers must treat “women affected by pregnancy . . . the same for all

employment-related purposes . . . as other persons not so affected but similar in

their ability or inability to work.”

Young v. United Parcel Serv., Inc., 575 U.S. 206, 210 (2015) (citing 42 U.S.C. § 2000e(k))

(omission in original. The Supreme Court said in Young that a plaintiff seeking “to show disparate

treatment through indirect evidence may do so through application of the McDonnell Douglas

framework.” Id. at 228 (discussing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).

First, Plaintiff must make a prima facie showing of discrimination, “showing actions taken

by the employer from which one can infer, if such actions remain unexplained, that it is more likely

than not that such actions were based on a discriminatory criterion illegal under Title VII.” Id.

(quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 575 (1978)) (internal quotation marks

omitted). Plaintiff must show that she

(1) is a member of a protected group; (2) was qualified for the position at issue; (3)

was discharged or suffered some adverse employment action by the employer; and

(4) was replaced by someone outside [her] protected group or was treated less

favorably than other similarly situated employees outside the protected group.

Carmona v. Dejoy, No. 22-20064, 2022 WL 16836978, at * 1 (5th Cir. Nov. 9, 2022) (per curiam)

(quoting Morris v. Town of Indep., 827 F.3d 396, 400 (5th Cir. 2016)) (internal quotation marks

omitted). Defendant did not argue that Plaintiff would fail on this step, and assumed for the purpose

of this Motion for Summary Judgment that Plaintiff could make a prima facie case. (Doc. 43-1 at

21.) The Court finds that Plaintiff has made a prima facie case here. As set forth in the undisputed

material facts, Plaintiff was pregnant, went on maternity leave, and was fired and replaced while

on maternity leave. (SUMF, Doc. 43-2 at 5–9, ¶¶ 28, 37, 56, 62.). Plaintiff had been in the position

at issue since before she was employed with Defendant, and Defendant does not dispute for these

purposes that Plaintiff was not qualified. (Doc. 43-1 at 21.) Plaintiff was replaced by Lewis, who

was not pregnant. (SUMF, Doc. 43-2 at 9, ¶ 62–63.). Therefore, a prima facie case of

discrimination has been shown.

Next, “[t]he employer may then seek to justify its refusal to accommodate the plaintiff by

relying on ‘legitimate, nondiscriminatory’ reasons for denying her accommodation.” Young, 575

U.S. at 229 (citing McDonnell Douglas, 411 U.S. at 802). “The employer’s burden is only one of

production, not persuasion, and involves no credibility assessment.” McCoy v. City of Shreveport,

492 F.3d 551, 557 (5th Cir. 2007), abrogated on other grounds by Hamilton v. Dallas Cnty., 79

F.4th 494 (5th Cir. 2023).

Defendant cites its reason for firing Plaintiff as “it did not have a position available for her

when she indicated she was ready to return to work.” (Doc. 43-1 at 21.) It says that it needed

someone to cover Plaintiff’s position while she was away. (Id.) Defendant hired Lewis as a

temporary manager, but soon hired her for a permanent position. (Id.) Defendant says that an audit

done of files that Plaintiff had maintained showed that Plaintiff was performing poorly in her

current position. (Id.) Poor performance is a legitimate, nondiscriminatory reason for termination,

thus Defendant has met its burden. See Feist v. Louisiana, Dept. of Just., Off. of the Att’y Gen.,

730 F.3d 450, 455 (5th Cir. 2013) (citing Medina v. Ramsey Steel Co., 238 F.3d 674, 684–85 (5th

Cir. 2001) (“noting that evidence of poor work performance satisfies burden”)).

Since Defendant “has met its burden of production by proffering a legitimate,

nondiscriminatory reason for [Plaintiff’s] termination, the burden now shifts back to her to rebut

this reason as pretextual.” Offord v. City of Fulshear, 861 F. App’x 536, 541 (5th Cir. 2021). To

establish pretext, Plaintiff is required to

rebut each nondiscriminatory reason articulated by the employer.” [Wallace v.

Methodist Hosp. Sys., 271 F.3d 212, 220 (5th Cir. 2001).] A plaintiff may establish

pretext either through evidence of disparate treatment or by showing that the

employer’s proffered explanation is false or “unworthy of credence.” Id.; [Reeves

v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000).] An explanation is

false or unworthy of credence if it is not the real reason for the adverse employment

action. See Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 899 (5th Cir. 2002).

Evidence demonstrating that the employer's explanation is false or unworthy of

credence, taken together with the plaintiff's prima facie case, is likely to support an

inference of discrimination even without further evidence of defendant's true

motive. Id. at 897; [Russell v. McKinney Hosp. Venture, 235 F.3d 219, 223 (5th Cir.

2000).] No further evidence of discriminatory animus is required because “once the

employer's justification has been eliminated, discrimination may well be the most

likely alternative explanation....” Reeves, 530 U.S. at 147–48[]. The “rare”

instances in which a showing of pretext is insufficient to establish discrimination

are (1) when the record conclusively reveals some other, nondiscriminatory reason

for the employer's decision, or (2) when the plaintiff creates only a weak issue of

fact as to whether the employer's reason was untrue, and there was abundant and

uncontroverted evidence that no discrimination occurred. See Russell, 235 F.3d at

223 (citing Reeves, 530 U.S. at 148[]); [Rubinstein v. Administrators of Tulane

Educ. Fund, 218 F.3d 392 (5th Cir. 2000).] A decision as to whether judgment as a

matter of law is appropriate ultimately turns on “ ‘the strength of the plaintiff's

prima facie case, the probative value of the proof that the employer's explanation is

false, and any other evidence that supports the employer's case and that properly

may be considered on a motion for judgment as a matter of law.’ ” Wallace, 271

F.3d at 220 (quoting Reeves, 530 U.S. at 148–49[]).

Laxton v. Gap Inc., 333 F.3d 572, 578–79 (5th Cir. 2003).

Plaintiff argues that she established pretext because Defendant’s reasons for terminating

her have been inconsistent. (Doc. 49 at 7.) “When an employer offers inconsistent explanations

for its employment decision at different times, as here, the jury may infer that the employer’s

proffered reasons are pretextual.” Staten v. New Palace Casino, LLC, 187 F. App’x 350, 359 (5th

Cir. 2006) (per curiam) (citing Gee v. Principi, 289 F.3d 342, 347 (5th Cir. 2002)). The Court in

Staten explained that shifting explanations, along with the timing of the change of explanation,

can lead a factfinder to determine that an employer’s proffered justification is pretext. Id. at 359.

Contrary to Defendant’s assertions, there have been shifting justifications for Plaintiff’s

termination. In the EEOC statement of position, Defendant indicates that there was no position for

Plaintiff because Scelfo did not know if Plaintiff would return to work from maternity leave. (Doc.

49-8 at 2–3.)

However, when Brown left, she never provided Amesbury with an anticipated

return date. Instead, she indicated to Scelfo that she did not know if she was going

to come back to work at all in light of the fact that she already had three other

children and considering the cost of childcare relative to her compensation.

Had Brown indicated that she intended to return to work and provided Amesbury

with an anticipated return date, Amesbury was prepared to have someone

temporarily perform with Site Manager duties until Brown's return. However, since

Brown conveyed to Scelfo that she did not know if she was going to return to work,

Scelfo informed Brown that they would have to hire a new Site Manager for Hidden

Oaks. In response, Brown did not voice any objections and appeared to understand

that Amesbury would not be holding the Site Manager job open on the chance that

she decided to return to work at some unknown time in the future. In the event

Brown decided to return to work and there was a position available at Amesbury

for which she was qualified, Amesbury was certainly willing to consider Brown for

such position. Amesbury subsequently hired a new Site Manager for Hidden Oaks,

Tamara Lewis, another female.

(Id.) Defendant further says that it hired a permanent Site Manager for Hidden Oaks because

Plaintiff never notified Scelfo of her return date. (Id. at 4.)

In the briefing for this Motion for Summary Judgment, Defendant recounts a slightly

different version of the story. While the general reason for not having an available spot for Plaintiff

remains the same, Defendant’s alleged justification for this unavailability has changed. “It is

further undisputed that, shortly after plaintiff began her maternity leave, Amesbury discovered

significant issues in the files previously maintained by plaintiff at Bluebonnet Ridge, and thus, it

decided to hire Tamara Lewis for the Site Manager position on a permanent basis.” (Doc. 43-1 at

21.) Peek in his deposition stated that they realized Plaintiff’s employment did not need to continue

after finding discrepancies in the files she managed at Bluebonnet Ridge. (Peek Dep., Doc. 43-5

at 24:2–25:23.)

While Defendant cites to Bennett, arguing that it its justifications have not changed, Bennett

is not directly applicable. Bennett dealt with additional justifications for termination, not different

justifications. 648 F. App’x at 431. Bennett’s employer cited her performance issues as the reason

for termination in an EEOC filing, but later cited Bennett’s involvement in a workplace incident

where Bennett claimed someone put hand sanitizer in her drink, which her employers believed to

be false. Id. at 430. Notably, the employer did not abandon the plaintiff’s work performance as a

justification for her termination, but simply added the other two reasons later in litigation. Id. at

431. Here, Defendant offers the same general justification for firing Plaintiff—the lack of available

positions—but cites completely different reasons. (Doc. 43-1 at 22.) Defendant states in the EEOC

statement that it “wanted her to return to the Site Manager position[,]” after her leave. (Doc. 49-8

at 4.) This statement is inconsistent with its representation in the Motion for Summary Judgment

that Plaintiff was performing poorly in her role as Site Manager, and it “was not willing to put

plaintiff back into that position due to her performance.” (Doc. 43-1 at 21.) Defendant’s

justification is not additional; it is different. Therefore, Bennett does not control.

Plaintiff has established that there remains a genuine issue of material fact here. Defendant

has offered two differing accounts of the circumstances surrounding Plaintiff’s termination, which

a jury may infer to mean that Defendant’s reasons are pretextual. See Staten, 187 F. App’x at 359.

It is the jury’s role, as fact finder, not the Court’s, to make a credibility determination as to whether

to believe Defendant’s proffered justification. Russell, 235 F.3d at 225; Int’l Shortstop, Inc. v.

Rally’s, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991). When viewing the evidence in a light most

favorable to Plaintiff, a reasonable jury could conclude that Defendant’s proffered reasons for

firing Plaintiff are pretext. Therefore, Defendant’s Motion for Summary Judgment will be denied

as to the Pregnancy Discrimination Act claim.

IV. CONCLUSION

Accordingly,

IT IS ORDERED that the Motion for Summary Judgment (Doc. 43) filed by defendant

Amesbury Management LLC is GRANTED IN PART and DENIED IN PART.

IT IS FURTHER ORDERED that the Motion for Summary Judgment is DENIED as to

Plaintiff’s Pregnancy Discrimination Act claim.

IT IS FURTHER ORDERED that the Motion for Summary Judgment is GRANTED as

to Plaintiff’s Family Medical Leave Act claim, and that claim is DISMISSED WITH

PREJUDICE.

Signed in Baton Rouge, Louisiana, on March 26, 2025.

S

JUDGE JOHN W. deGRAVELLES

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA