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O'Dea-Evans v. A Place for Mom

July 15, 2009

PATRICIA O'DEA-EVANS, PLAINTIFF,
v.
A PLACE FOR MOM, INC. DEFENDANT.



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Plaintiff, Patricia O' Dea-Evans ("O' Dea-Evans"), filed this lawsuit on February 5, 2007. Her complaint [1] comprises a single count and alleges violations of the Family and Medical Leave Act (29 U.S.C. § 2601 et seq.) (the "FMLA" or "Act"). The Court has jurisdiction under 28 U.S.C. § 1331 and 29 U.S.C. § 2617(a)(2). O' Dea-Evans' s complaint states that she was an employee of Defendant, A Place for Mom, Inc. (the "Company"), and that she requested one or two weeks of flexible scheduling to care for her son, who has Asperger' s syndrome, and her mother, who has Parkinson' s disease.

The Company allegedly responded to the request by placing O' Dea-Evans on extended leave and then terminating her employment. The Company'sAnswer [84] generally denies O'Dea-Evans's allegations and states that its conduct did not violate the FMLA.

Before the Court is the Company's motion for summary judgment [85]. The Company contends that it is entitled to judgment as a matter of law because O' Dea-Evans is not an eligible employee within the scope of the FMLA' s coverage. To be eligible, a plaintiff's employer must have at least 50 employees within 75 miles of the plaintiff's "worksite." For an employee who does not have a fixed worksite, a Department of Labor regulation specifies that the worksite is the location from which the employee receives assignments or to which the employee reports. Because there are genuine issues of material fact concerning the location of O' Dea-Evans's worksite under the FMLA regulations, the Company's motion for summary judgment [85] is denied.

I. Facts

The Court takes the relevant facts primarily from the parties'Local Rule ("L.R.") 56.1 statements: Defendant' s Statement of Facts ("Def. SOF") [87], Plaintiff's Response to Defendant' s Statement of Facts ("Pl. Resp. Def. SOF") [90], Plaintiff's Statement of Additional Facts ("Pl. SOAF") [91], and Defendant' s Response to Plaintiff's Statement of Additional Facts ("Pl. Resp. Def. SOAF") [101].*fn1

A. O'Dea-Evans's Work and Worksite

The Company is an elder care referral service, headquartered in Seattle (the "Seattle office"). (Def. SOF ¶¶ 1, 33.) The Company provides information to families about nearby elder care options (id. ¶ 1) and gets paid a fee by the elder care facility that a family selects. (Pl. SOAF ¶ 6; Pl. Aff. ¶ 9.) As part of the operation, the Company employs "Advisors" (such as O' Dea-Evans) throughout the United States. (Def. SOF ¶ 2.) O' Dea-Evans held the position of Advisor starting in March 2003 (id. ¶ 3) and was assigned to the Chicago region (id.; Pl. Resp. Def. SOF ¶ 4). She worked on a straight commission basis and the vast majority of her successful transactions were based on either "Internet leads"*fn2 routed from a computer server in Seattle or professional relationships that she cultivated in Illinois. (Def. SOF ¶ 8; Def. Resp. SOAF ¶ 5.)

The chief dispute between the parties pertains to whether the Seattle office was the place from which O' Dea-Evans received assignments, to which she reported, or both. Those questions, in turn, depend on the role that O' Dea-Evans' s Market Development Coach ("Coach") Dea-Evans' s termination, her Coach was Connie Adams, who works out of her home in Cookeville, Tennessee. (Def. SOF ¶ 25.) The Company marshals facts suggesting that Coaches exert considerable influence over an Advisor's day-today goings on. According to the Company, after five or six months of employment, an Advisor is assigned to a Coach*fn3 (like Connie Adams). (Id. ¶ 7.) These Coaches are, in essence, "regional managers."(Temple Dep. at 42.) For example, according to the Company's CEO, Pamala Temple ("Temple"), Adams "would come to Chicago on a regular basis and meet face to face with the advisors" and "would go out on sales calls with the advisors." (Id. at 81.) Adams also played within the Company. At the time of O' made sure that O' Dea-Evans met her quota (id. at 165); strategized with O' Dea-Evans (id. at 166); disciplined her (Adams Aff. ¶ 8); and told her that she was fired (Temple Dep. at 167).

O' Dea-Evans disputes the Company's version of the facts, relying primarily on her own affidavit and those of several former Advisors.*fn4 O' Dea-Evans' s evidence suggests that Coaches play only a modest role in the work of Advisors. As an initial matter, Advisors were never informed that their Coaches were supervisors or managers. (Pl. Aff. ¶¶ 54-55; Watson Aff. ¶¶ 47-48.) Rather, Coaches were billed as "Sales Greatness Coaches," people who were available to assist the Advisors in generating ideas. (Pl. Aff. ¶ 55.) In 2004, experienced advisors were told that they would have no Coach (id. ¶ 50; Watson Aff. ¶ 47), and at one point O' Dea-Evans had a Coach who she did not even know about (Pl. Aff. ¶ 51). With respect to Connie Adams in particular, O' Dea-Evans says that her Coach never conducted "ride alongs" as Temple testified (Pl. SOAF ¶ 28(b)), that O' Dea-Evans and Adams spoke only every three or four weeks (id. ¶ 28(a)), and that the two did not meet in person unless there was a regional meeting that was run by the Seattle office (id. ¶ 28(c)). Although O'Dea-Evans concedes that Adams put her on a performance improvement plan and that Adams terminated her employment, she claims (citing temporal and language-based ambiguity in Temple's testimony) that Adams did not have discretion in taking either step. (Pl. Resp. Def. SOF ¶ 27(i).) "Coaches mainly collected and compiled data to submit to [the Seattle office]." (Watson Aff. ¶ 51.)

O' Dea-Evans also provides evidence that the Seattle office, rather than Connie Adams's residence, was the place from which she received assignments and to which she reported. She was interviewed and hired by corporate officers located in Seattle. (Pl. SOF ¶ 2; Def. SOF, Ex. 3-A). Seattle is also where training for new Advisors took place. (Watson Aff. ¶¶ 14-15.)

O' Dea-Evans says that she and Temple were, for a time at least, in "frequent contact * * * several times a month to discuss contracts, marketing ideas, and tips on training new advisors." (Pl. Aff. ¶ 38.) During conference calls, Temple provided direction to Advisors (id. ¶ 11(e)), and Temple controlled the size of O' Dea-Evans's sales territory (id. ¶¶ 21-23). Finally, although a "typical sales transaction" included regular contact with the Seattle office (id. ¶ 68), Coaches played "no role" in completing sales (id. ¶ 69).

B. O'Dea-Evans's Termination

At the time that O' (Def. SOF ¶ 23.) O' Dea-Evans was placed on extended leave after she sent an email on November 6, 2006, to Carroll Dale, a Coach who was substituting for Connie Adams. (Id. ¶¶ 32, 36.) In the email that O' Dea-Evans ...


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