Blаnche PAYLOR, Plaintiff-Appellant, v. HARTFORD FIRE INSURANCE COMPANY, Defendant-Appellee.
No. 13-12696
United States Court of Appeals, Eleventh Circuit.
April 8, 2014.
748 F.3d 1117
Before TJOFLAT, COX, and ALARCON, Circuit Judges.
V
“The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” Olmstead v. United States, 277 U.S. 438, 479, 48 S.Ct. 564, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting). The monitoring and recording of the privileged attorney-client conversations between Mr. Studivant and Ms. Gennusa, without notice and without a warrant, violated their clearly established Fourth Amendment rights. So too, on this record, did the warrantless seizure of Mr. Studivant‘s written statement from Ms. Gennusa. The district court‘s grant of summary judgment in favor of Mr. Studivant and Ms. Gennusa is affirmed, and the case is remanded for further proceedings.
AFFIRMED.
Mary Evelyn Lytle, David Victor Barszcz, Danielle Lee Upton, Lytle & Barszcz Law Offices, Maitland, FL, for Plaintiff-Appellant.
Donald Carlton Works, III, Jessica Debono Anderson, Jackson Lewis, LLP, Orlando, FL, for Defendant-Appellee.
Blanche Paylor appeals the District Court‘s grant of summary judgment for her former employer, Hartford Fire Insurance Company (“Hartford“), on her claims of interference and retaliation under the Family Medical Leave Act of 1993,
I.
We first describe the events leading up to Paylor‘s lawsuit and then recount the course of this litigation.
A.
Hartford sells insurance and investment products. Hartford employed Paylor in a
Sometime in late August or early September, 2009, Paylor submitted a request for additional FMLA leave. A September 4, 2009, e-mail to Paylor from Hartford apparently acknowledged this request because it included, in attachments, various administrative forms for Paylor to complete as part of her FMLA request. Hartford contends that this e-mail constituted approval of Paylor‘s leave, pointing to Paylor‘s deposition testimony that “I was first approved for Family Medical Leave” in a letter (not an e-mail) dated September 4. Paylor now says that she misspoke in her deposition: she claims that the body of the September 4 e-mail was blank, and so could not have communicated FMLA approval, while the September 4 letter similarly communicated only acknowledgment, not approval.
Paylor‘s last performance review was apparently on September 11, 2009. A document signed on that day by Paylor‘s supervisor included a performance warning, сriticized the quality of her work, and explained what she would have to do to keep her job. Several days later, on September 16, Paylor‘s supervisors initiated a meeting and gave her a choice: she could accept a one-time offer of 13 weeks of severance benefits in exchange for signing a Severance Agreement, under which Paylor waived any claims she might have had under the FMLA, or she could agree to a performance-improvement plan (“PIP“), requiring her to meet various performance benchmarks or face termination.
Paylor signed the Severance Agreement on September 17. Paylor now says that she only signed the agreement because her stress level had become unmanageable: she had requested FMLA leave in the first place to care for her ailing mother, and between her mother‘s deteriorating health and the pressures she experienced at work, she “just wanted out.”
B.
Paylor joined two other named plaintiffs in filing a complaint against Hartford for violations of the FMLA, along with other claims not relevant to this appeal. The complaint alleged, without elaborating, that Hartford interfered with Paylor‘s FMLA rights and retaliated against her for exеrcising her rights. Hartford filed an answer denying the allegations in the complaint and asserting that Paylor‘s FMLA claim was barred by her execution of the Severance Agreement.
After protracted discovery, Hartford filed a motion for summary judgment, arguing that Paylor waived all FMLA claims when she signed the Severance Agreement. In particular, Hartford argued that Paylor signed the release knowingly and voluntarily and that Paylor signed the release after the events allegedly giving rise to her FMLA claims.
Paylor argued, in her opposition to Hartford‘s motion for summary judgment, that she did not waive her FMLA rights by signing the Severance Agreement. Pointing to
The District Court sided with Hartford, writing “[a]lthough the Eleventh Circuit Court of Appeals has not directly addressed the legality of a release of FMLA claims based on past employer conduct, the [District] Court is confident that such a release would be held enforceable pursuant to Regulation § 825.220(d).” Hollinger, No. 6:11-cv-59-Orl-19TBS, ECF Doc. 57, at 20-21. The District Court reasoned that Paylor‘s FMLA rights were not “prospective” because the conduct she claimed was unlawful—i.e., presenting her with the choice of a PIP or the Severance Agreement—all happened before she signed the Severance Agreement. The District Court accordingly granted summary judgment for Hartford on Paylor‘s FMLA claim. This appeal followed.
II.
Congress enacted the FMLA to “balance the demands of the workplace with the needs of families.”
There is no dispute in this case that the FMLA applies to Hartford, that Paylor was an “eligible employee” as defined by the statute, or that Paylor was entitled to FMLA leave at the time she requested it. Nor is the question whether Hartford in fact interfered with or retaliated against Paylor‘s assertion of her FMLA rights. The question before us concerns only the validity of the Severance Agreement that Paylor signed on September 17, 2009. If the agreement is valid, then the District Court was correct in concluding that Paylor waived her FMLA claims and that Hartford was entitled to judgment as a matter of lаw.
Because the District Court disposed of Paylor‘s FMLA claims on summary judgment, we exercise de novo review. Brooks v. Cnty. Comm‘n of Jefferson Cnty., Ala., 446 F.3d 1160, 1161-62 (11th Cir. 2006). We consider all the evidence in the record, and make all reasonable factual inferences, in the light most favorable to the non-moving party. See Crawford v. Carroll, 529 F.3d 961, 964 (11th Cir. 2008). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Brooks, 446 F.3d at 1162. At the outset, the moving party has the burden of demonstrating that there are no genuine issues of material fact, but once that burden is met the burden shifts to the nonmoving party to bring the court‘s attention to evidence demonstrating a genuine issue for trial. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997). Overcoming that burden requires more than speculation or a mere scintilla of evidence. Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). With these standards in mind, we consider whether the District Court erred in concluding that Hartford was entitled to summary judgment on Paylor‘s FMLA claims.
III.
Paylor raises three arguments on appeal. First, she argues that the Severance Agreement is invalid under DOL regulations insofar as it purports to release Paylor‘s “prospective” FMLA rights. Second, Paylor argues that she did not sign the Severance Agreement knowingly and voluntarily. And third, she argues that the Severance Agreement should be held invalid because it is contrary to the public policy manifested by the FMLA.
A.
Paylor‘s principal argument is that the District Court erred in concluding that she waived her FMLA claims when she signed the Severance Agreement. Paylor says this waiver cannot be enforceable against her because the FMLA does not permit employees to waive “prospective rights” without DOL or court approval, and her rights in this case were “prospective” in the sense that she had—at the time she signed the agreement—an outstanding request for FMLA leave. According to Paylor, then, the District Court ought to have found the waiver invalid and allowed her to proceed on her FMLA claim.
1.
Evaluating this argument requires a brief detour to discuss the history of the DOL regulation at issue. Before 2009,
The Fourth Circuit reached a different conclusion, and disagreed explicitly with Faris, in holding that “[t]he regulation‘s plain language prohibits both the retrospective and prospective waiver or release of an employee‘s FMLA rights.” Taylor v. Progress Energy, Inc., 415 F.3d 364, 368 (4th Cir. 2005), vacated, No. 04-1525, 2006 U.S.App. LEXIS 15744 (4th Cir. June 14, 2006) (“Taylor I“). The defendant in Taylor I filed a petition for rehearing en banc, and the DOL filed an amicus brief supporting that petition. On rehearing before the panel that wrote Taylor I, the DOL argued that
In January, 2009, the Department of Labor amended the regulation to include the word “prospective,” thereby endorsing
Employees cannot waive, nor may employers induce employees to waive, their prospective rights under FMLA. For example, employees (or their collective bargaining representative) cannot “trade off” the right to take FMLA leave against some other benefit offered by the employer. This does not prevent the settlement or release of FMLA claims by employees based on past employer conduct without the approval of the [DOL] or a court.
It is now, therefore, well-settled that an employee may not waive “prospective” rights under the FMLA, but an employee can release FMLA claims that concern past employer behavior. The only remaining issue is the meaning of the word “prospective” as it concerns FMLA rights, which is a question of first impression in our circuit.
2.
Paylor interprets “prospective rights” under the FMLA to mean “the unexercised rights of a current eligible employee to take FMLA leave and to be restored to the same or an equivalent position after the leave.” Appellant‘s Br. at 15. The problem with this interpretation is obvious: it proves too much. All eligible employees possess an “unexercised” right, in the abstract, to FMLA leave. If by “prospective” rights the DOL regulation really meant “unexercised” rights, the FMLA would make it unlawful to fire any eligible employee, or at least any eligible employee with an outstanding request for FMLA leave. That is not the law: substantive FMLA rights are not absolute. For example, an employer is not liable for interference if the employer can show that it refused to restore an employee to his position of employment for a rеason unrelated to his FMLA leave. See Spakes v. Broward Cnty. Sheriff‘s Office, 631 F.3d 1307, 1310 (11th Cir. 2011); Strickland v. Water Works & Sewer Bd. of City of Birmingham, 239 F.3d 1199, 1208 (11th Cir. 2001) (“An employer can deny the right to reinstatement... if it can demonstrate that it would have discharged the employee had he not been on FMLA leave.“). Paylor‘s interpretation of “prospective rights” is thus too expansive.
The better interpretation of “prospective rights,” and the one that emerges quite clearly from the plain language of
Paylor‘s circumstances are different. The Sevеrance Agreement she signed did not ask Paylor to assent to a
3.
Having answered the interpretive question, all that remains is the application of
B.
Paylor‘s second аrgument is that her waiver was not “knowing and voluntary.” We have said that employees can waive employment claims when their waiver is “voluntary and knowing based on the totality of the circumstances.” Myricks v. Fed. Reserve Bank of Atlanta, 480 F.3d 1036, 1040 (11th Cir. 2007).1 Specifically, we consider (1) the education and business experience of the employee; (2) the time the employee spent considering the agreement before signing it; (3) the clarity of the language in the agreement; (4) the employee‘s opportunity to consult with an attorney; (5) whether the employer encouraged or discouraged consultation with an аttorney; and (6) the consideration given in exchange for the release compared to the benefits the employee was already entitled to receive. Id.
The District Court did not err in concluding that Paylor executed the Severance Agreement knowingly and voluntarily. Paylor was 56 years old at the time she signed the agreement, and had worked in the insurance industry for more than 20 years. Though she did not graduate from high school or college, Paylor had attended college classes and taken additional courses relating to the insurance industry. Paylor took only one day to consider the Severаnce Agreement, but said in her deposition that she did not know how long she had to review it because she did not read it thoroughly. The agreement ex-
C.
Paylor‘s final argument is that the waiver she signed is contrary to public policy. She argues, in brief, that the FMLA was passed “so employees would not have to choose between their jobs and their families.” Appellant‘s Reply Br. at 7. Because Hartford presented Paylor with the Severance Agreement before definitively informing her that her most recent FMLA request had been approved, Paylor says she was “forced into an uninformed choice,” and that “violates the very tenants of the FMLA and undermines the purposes for which Congress enacted the FMLA.” Id.
We need not address Paylor‘s public-policy argument because she did not raise the issue before the District Court. We have said repeatedly that we will not consider an issue raised for the first time on appeal. See, e.g., Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (“The reason for this prohibition is plain: as a court of appeals, we review claims of judicial error in the trial courts.“) (emphasis added).2 Because Paylor did not make her public-policy argument in the District Court, we will not consider the argument for the first time in this court.
IV.
We add, as a final note, thаt the attorneys in this case could have saved themselves, their clients, and the courts considerable time, expense, and heartache had they only paused to better identify the issues before diving into discovery. The dispute in this case was really very narrow: Paylor requested FMLA leave on one day, and a short time later her employer asked her to choose between a PIP and the Severance Agreement. The parties agreed at oral argument—but only at oral argument—that the entire dispute boils down to the temporal proximity between Paylor‘s FMLA request and Hartford‘s offering the Severance Agreement. That‘s the whole case.
That such a straightforward dispute metastasized into the years-long discovery sinkhole before us on appeal is just the latest instantiation of the “shotgun pleading” problem. See Davis v. Coca-Cola Bottling Co., 516 F.3d 955, 979 (11th Cir. 2008) (“[T]his court has been roundly, repeatedly, and consistently condemning [shotgun pleadings] for years, long before this lawsuit was filed.“). The story is, by
In this case, Paylor‘s counsel conceded outright at oral argument that Paylor‘s complaint “doesn‘t meet the [Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)] standard.” And indeed, both the complaint and the amended complaint are almost totally useless. The reader learns that there is a statute called the Family Medical Leave Act, and hears in Counts II and III the allegation that “[Hartford] violated the Family Medical Leave Act by interfering with and/or denying [Paylor‘s] leave under the act and by ultimately terminating [Paylor],” and that “[Hartford] has violated the FMLA by retaliating against [Paylor] for [Paylor‘s] exercising and/or attempting to exercise [her] rights under the Family Medical Leave Act,” but that is all the reader learns. No specific factual allegation informs the reader how, precisely, the defendant interfered with or retaliated against the plaintiff.
Defense attorneys, of course, are not helpless in the face of shotgun pleadings—even though, inexplicably, they often behave as though they are. A defendant served with a shotgun complaint should move the district court to dismiss the complaint pursuant to
Rather than availing itself of the protective tools in the Federal Rules of Civil Procedure, Hartford responded to Paylor‘s shotgun pleading with a shotgun answer: 19 one-line affirmative defenses, none of which refers to a particular count, and none of which indicates that Hartford was even aware of when the retaliation and interference allegedly occurred. At oral argument, Hartford‘s counsel acknowledged that the complaint was totally lacking in specifics, but maintained—in essence—that all‘s well that ends well: after all, the parties were able to sort things out through discovery. Even if that were true—and it isn‘t, as evidenced by the parties’ ongoing bickering over even the most picayune facts in the case—why should parties wait until discovery to identify, with precision, the subject of the litigation? That is exactly backward. Civil pleadings are supposed to mark the boundaries for discovery; discovery is not supposed to substitute for definite pleading.
In any case, the parties delivered this mess to the District Court. Instead of demanding a repleadеr, see Davis, 516 F.3d at 984 (“In light of defense counsel‘s failure to request a repleader, the court, acting sua sponte, should have struck the plaintiff‘s complaint, and the defendants’ answer, and instructed plaintiff‘s counsel to file a more definite statement. The necessity for doing so should have become starkly apparent on reading the complaint.“), the District Court tossed the case overboard to a Magistrate Judge for discovery.
At that point it was too late: the discovery goat rodeo had begun. Because a Magistrate Judge has no authority to narrow the scope of discovery (becausе that would constitute a dispositive ruling, a power forbidden to Magistrate Judges, see
The persistence of the shotgun pleading problem is particularly frustrating because the relevant actors all have it within their power to avoid it. Nothing is stopping plaintiffs from refraining from writing shotgun pleadings. Certainly nothing is stopping defense lawyers from asking for a more definite statement; indeed, their clients would be well-served by efforts to resolve, upfront, the specific contours of the dispute, thereby lessening or even eliminating the need for costly discovery. And nothing should stop District Courts from demanding, on their own initiative, that the parties replead the case. Indeed, “[i]f the trial judge does not quickly demand repleader, all is lost—extended and largely aimless discovery will com-
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Because Paylor waived her claims against Hartford by signing the Severance Agreement, the District Court correctly entered summary judgment on behalf of the defendant on Paylor‘s FMLA claims. The judgment of the District Court is, accordingly,
AFFIRMED.
Notes
A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired. If the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order.