In the case of Nocella v. Basement Experts of America, ___ F. Supp.2d ___, 2007 WL 1959214 (N.D. Ohio), Basement Experts of America went down the wrong path when it came to eliminating an employee’s position while she was on FMLA leave and even after her return from FMLA leave, resulting in its summary judgment motion being soundly denied.

Sarah Nocella worked for Basement Experts at its Maumee, Ohio location. She began her employment there on December 9, 2002 and worked until her termination on October 24, 2005. In January 2005, Nocella informed her employer that she was pregnant. On July 15, 2005, Nocella went on leave pursuant to the Family Medical Leave Act . She requested 10 weeks of leave with a return to work date of September 28, 2005.

Immediately prior to her leave, Nocella worked as the Maumee facility’s Office Manager. Her duties as Office Manager included supervising Rebecca Potts and Shelly Timofeev. Nocella also claimed to have supervisory duties over other employees in the company’s Detroit, Grand Rapids and St. Louis locations. Basement Experts disputed this claim. A small part of Nocella’s duties included working as an assistant to her immediate supervisor, Kraig Mackett. While Nocella was on leave, Mackett resigned his employment with Basement Experts and James Quigley (owner) decided not to replace Mackett but to take on Mackett’s work himself. Potts and Timofeev took on Nocella’s duties while she was on FMLA leave.


On September 19, 2005, Quigley sent a letter to Nocella telling her that as a result of Mackett’s resignation and his decision to absorb Mackett’s duties himself, Nocella’s position as Office Manager had been eliminated. Potts and Timofeev would continue to perform Nocella’s other duties that did not involve assisting Mackett. Quigley also stated in his letter that he would find another position for Nocella upon her return to work. Quigley informed Nocella that she was to return to work after the expiration of 12 weeks instead of the previously agreed upon 10 weeks; however, Quigely “miscalculated” the end of 12 weeks as October 17, 2005 instead of October 7, 2005. In essence, Nocella was on leave for more than 13 weeks. Nocella did try to return to work on October 3, 2005 but was prevented from doing so by Basement Experts.

When Nocella did finally return to work, Quigley assigned her a project under the company controller that required reviewing all of the company’s employees’ records to ensure compliance with an October 2005 investigation by the U.S. Department of Labor which had found the company’s employees’ records to be lacking I-9 information. Quigley assigned Nocella to work in the accounting department backroom without access to a computer or telephone at her desk.

On her fourth day back from leave, Nocella received a letter from Quigley stressing to her the importance of her I-9 compliance work as well as the urgent need for her to complete this work in the accounting backroom. Quigley’s assistant reinforced this by stating that “people were going to start losing their jobs” if Nocella dared to attempt working at her former desk instead. Upset with Quigley’s puerile behavior, Nocella left work to see her father. Defendants claimed that Nocella was seen crying, shredding documents and gather her personal effects.

Nocella returned to work the following day, but Quigley’s messenger informed her that Quigley wanted Nocella to go home and to return to work on Monday at 11 a.m. to meet with Quigley. Nocella returned to meet with Quigley, his assistant and another employee. Nocella denied shredding any documents at this meeting but Quigley fired her for doing so, as well as for completing no work since her return from leave, and that she had already quit on Thursday. Nocella’s remaining personal effects were mailed to her after her termination.

Dissatisfied with her termination, Nocella filed suit alleging violations of her FMLA rights. After a period for discovery, Basement Experts moved for summary judgment.

To prevail on her FMLA entitlement claim, Plaintiff must show that (1) she was an eligible employee; (2) Defendant was an employer covered by the FMLA; (3) Plaintiff was entitled to leave under the FMLA; (4) she gave her employer notice of her intent to leave; and (5) the employer denied her FMLA benefits or interfered with FMLA rights to which Plaintiff was entitled.

The only element in contention was whether defendants denied or interfered with Plaintiff’s right to reinstatement “to an equivalent position with equivalent employment benefits, pay, and other terms and conditoins of employment. Defendants argued that Plaintiff was not entitled to reinstatement, and, in the alternative, she was reinstated to an equivalent position. Regarding their claim that Plaintiff was not entitled to reinstatement, Defendants argued that they were under no obligation to return Plaintiff to work because her position was eliminated while she was on leave. Defendants cite to the following FMLA regulation for support:

If an employee is laid off during the course of taking FMLA leave and employment is terminated, the employer’s responsibility to continue FMLA leave, maintain group health plan benefits and restore the employee cease at the time the employee is laid off, provided the employer has no continuing obligations under a collective bargaining agreement or otherwise. An employer would have the burden of proving that an employee would have been laid off during the FMLA leave period and, therefore, would not be entitled to restoration. 29 C.F.R. ยง 825.216(a)(1)

The Northern District of Ohio quickly dispatched with Defendants’ arguement by noting that Defendants had instructed Plaintiff to return to work and thus were never relieved of their duty to reinstate her to an equivalent position. The court went further and stated that even if Plaintiff was laid off and her employment was terminated while she was on leave, “Defendants have not met their burden of showing that Plaintiff would have been laid off had she not taken the FMLA leave.” The court noted that much of Plaintiff’s duties were taken on by her underlings which begs the question of why was Plaintiff’s position eliminated and not the position of one of her reports. A genuine issue existed as to whether Plaintiff’s position was eliminated because Mackett left or simply because she was on leave at the time Mackett left.

Defendants’ next argument was that it did in fact return Plaintiff to an equivalent position after the end of her leave. The court noted that Plaintiff had no supervisory authority in her new backroom position and was unconvinced by Defendants’ argument that Plaintiff was still performing “administrative/clerical” work in the same building for the same number of hours, stating that this was “hardly a standard by which ‘equivalency’ can be measured.”

Concerning Plaintiff’s FMLA retaliation claim, Defendants disputed that there was any causal connection between the protected activity and plaintiff’s termination. The district court put a strong emphasis on the temporal proximity between Plaintiff’s return from her FMLA leave and her firing (about a week) as evidence of a causal connection. The court also pointed to the 8-9 week period between the beginning of Plaintiff’s leave and the elimination of her position as well as the 5 week span between the elimination of her position and her final firing as evidence of a causal connection. Other evidence of a causal link included the letter unilaterally lengthening her leave; Defendants’ rejection of Plaintiff’s attempt to return to work on October 3; and Defendant’s refusal to let Plaintiff return to work immediately prior to her firing. All of these instances reflected a consistent effort to keep Plaintiff from returning to work.

The court spent little time on Defendants’ reasons for firing the Plaintiff: (1) she left work early and without notice on October 24, 2005 and (2) she shredded documents. The court seemed to credit Plaintiff’s explanation that she denied shredding documents and that she did not quit as she had left personal effects at work. Perhaps the district court felt that pretext existed as a result of the other questionable actions of the employer which reflected a discriminatory intent.

Basement experts clearly did not proceed in a lawful manner when it came to terminating Nocella’s employment. They left a trail of evidence reflecting a clear intent to eliminate her position most likely as a result of her taking FMLA leave.

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