1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA 

BRIAN SOLES : Civil Action No. 4:14-CV-01791 

 : 

 Plaintiff, : (Judge Brann) 

 : 

 v. : 

 : 

ZARTMAN CONSTRUCTION, : 

INC., ET AL., : 

 : 

 Defendants. : 

MEMORANDUM 

June 24, 2016 

 Pending before this Court is a motion for summary judgment filed by 

Defendant Zartman Construction, Inc. (hereinafter “Zartman”)1

 against Plaintiff 

Brian Soles (hereinafter “Mr. Soles”). The motion seeks to dismiss Mr. Soles’ 

complaint in its entirety, including two counts of interference and one count of 

retaliation under the Family and Medical Leave Act (hereinafter “FMLA”). 

Though Zartman has not filed a reply brief, the time for briefing has concluded and 

this matter is now ripe for disposition. In accordance with the following reasoning, 

Zartman’s motion for summary judgment is denied. 

 

1

 John Does 1-10 are also identified as defendants in this case. The instant motion for summary judgment does not 

address whether it was filed on behalf of all Defendants or only Defendant Zartman; therefore, this Court will 

proceed on the assumption that it was filed only on behalf of Defendant Zartman. 

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I. BACKGROUND 

 This case arises from an employment relationship between the parties. Mr. 

Soles was hired by Zartman in August 2008 to work as an Operator. While an 

employee, Mr. Soles sought treatment of atopic dermatitis, also known as severe 

eczema, a condition he was diagnosed with in 1982. Around August 2012, Mr. 

Soles’ physician prescribed a treatment plan for his condition which involved 

undergoing ultraviolet light therapy three times per week for an undetermined 

amount of time, to begin in September 2012. After four years of employment, Mr. 

Soles was terminated on September 17, 2012. Mr. Soles alleges that he was 

terminated for either requesting FMLA leave, or for taking leave that should have 

been classified as FMLA leave, for the treatment of his eczema. 

II. LEGAL STANDARD 

Summary judgment is appropriate where “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.”2

 A fact is “material” where it “might affect the outcome of the suit 

under the governing law.”3

 A dispute is “genuine” where “the evidence is such 

that a reasonable jury,” giving credence to the evidence favoring the nonmovant 

 

2

 Fed. R. Civ. P. 56(a). 

3 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 

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and making all inferences in the nonmovant’s favor, “could return a verdict for the 

nonmoving party.”4

 

 The burden of establishing the nonexistence of a “genuine issue” is on the 

party moving for summary judgment.5

 The moving party may satisfy this burden 

by either (i) submitting affirmative evidence that negates an essential element of 

the nonmoving party’s claim; or (ii) demonstrating to the Court that the nonmoving 

party’s evidence is insufficient to establish an essential element of the nonmoving 

party’s case.6

 

 Where the moving party’s motion is properly supported, the nonmoving 

party, to avoid summary judgment in his opponent’s favor, must answer by setting 

forth “genuine factual issues that properly can be resolved only by a finder of fact 

because they may reasonably be resolved in favor of either party.”7

 For movants 

and nonmovants alike, the assertion “that a fact cannot be or is genuinely disputed 

must” be supported by “materials in the record” that go beyond mere allegations, 

or by “showing that the materials cited do not establish the absence or presence of 

a genuine dispute, or that an adverse party cannot produce admissible evidence to 

support the fact.”8

 

 

4 Id. 5 In re Bressman, 327 F.3d 229, 237 (3d Cir. 2003) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 331 (1986) 

(Brennan, J., dissenting)). 

6 Id. at 331. 7 Anderson, 477 U.S. at 250. 8

 Fed. R. Civ. P. 56(c)(1); see also Anderson, 477 U.S. at 248–50. 

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 “When opposing summary judgment, the non-movant may not rest upon 

mere allegations, but rather must ‘identify those facts of record which would 

contradict the facts identified by the movant.’”9

 Furthermore, “[i]f a party fails to 

properly support an assertion of fact or fails to properly address another party’s 

assertion of fact as required by Rule 56(c), the court may . . . consider the fact 

undisputed for purposes of the motion.”10 

 In deciding the merits of a party’s motion for summary judgment, the 

Court’s role is not to evaluate the evidence and decide the truth of the matter, but 

to determine whether there is a genuine issue for trial.11 Credibility determinations 

are the province of the factfinder, not the district court.12 Although the Court may 

consider any materials in the record, it need only consider those materials cited.13 

III. DISCUSSION 

In his complaint, Mr. Soles asserts three counts, all alleging violations of the 

FMLA. First, he contends that Zartman interfered with his rights under the FMLA 

by failing to provide him with individualized notice of his FMLA rights, an FMLA 

mandated eligibility notice, an FMLA mandated rights and responsibilities notice, 

and by failing to permit him to take FMLA-qualifying leave and failing to 

 

9 Port Auth. of N.Y. and N.J. v. Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2003). 10 Fed. R. Civ. P. 56(e)(2). 

11 Anderson, 477 U.S. at 249. 12 BWM, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). 13 Fed. R. Civ. P. 56(c)(3). 

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designate his absences as FMLA leave.14 Second, Mr. Soles alleges that Zartman 

violated the FMLA by terminating him either to prevent him from taking FMLAqualifying leave or by considering leave taken by Mr. Soles that should have been 

designated as FMLA leave in making its decision to terminate him.15 Lastly, Mr. 

Soles alleges that Zartman violated the FMLA by disciplining and firing him for 

having taken leave that should have been treated as FMLA leave.16 

Zartman advances three arguments in seeking dismissal of Mr. Soles’ 

complaint in its entirety. First, Zartman contends that Mr. Soles did not qualify for 

leave under the FMLA because his medical condition did not qualify as a “serious 

health condition.” Second, Zartman alleges that it was unaware of Mr. Soles’ 

medical condition or need to take any medical-related leave. Third, Zartman argues 

that Mr. Soles fails to establish a prima facie case of retaliation because he fails to 

establish that Zartman’s reasons for terminating him were pretextual. 

The FMLA, 29 U.S.C. § 2601 et al., provides that eligible employees are 

entitled to a total of twelve weeks of leave over any twelve-month period when it is 

taken “[b]ecause of a serious health condition that makes the employee unable to 

perform the functions of the position of such employee.”17 Pursuant to the FMLA, 

employers may not “interfere with, restrain, or deny the exercise of or the attempt 

 

14 ECF No. 1 ¶¶ 41-45. 

15 Id. at ¶¶ 48-50. 16 Id. at ¶ 53. 17 29 U.S.C. § 2612(a)(1)(D). 

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to exercise” an employee’s rights under the FMLA.18 This type of claim, referred 

to as an interference claim, is said to “set [the floor] for employer conduct.”19 “To 

assert an interference claim, ‘the employee only needs to show that he was entitled 

to benefits under the FMLA and that he was denied them.’”20 Because 

discrimination need not be shown to allege an inference claim, the McDonnellDouglas burden-shifting analysis, discussed below, is not required.21 

 In addition to an interference claim, employees fired after making a valid 

request for FMLA may also bring a claim of retaliation.22 To succeed on a 

retaliation claim under the FMLA, the employee must prove the following 

elements: 1) the employee invoked his right to FMLA-qualifying leave, 2) the 

employee suffered an adverse employment action, and 3) the adverse action was 

causally related to the employee’s invocation of his FMLA rights.23 Unlike 

interference claims, retaliation claims require proof of the employer’s retaliatory 

intent; “[a]ccordingly, claims based on circumstantial evidence have been assessed 

under the burden-shifting framework established in McDonnell Douglas Corp. v. 

Green.

24”25 

 

18 29 U.S.C. § 2615(a)(1). 

19 Sommer v. The Vanguard Group, 461 F.3d 397, 399 (3d Cir. 2006) (citing Callison v. City of Philadelphia, 430 

F.3d 117, 119 (3d Cir. 2005)). 

20 Id. (citing Callison 430 F.3d at 119). 21 Id. (citing Parker v. Hanhemann Univ. Hosp., 234 F. Supp. 2d 478, 485 (D.N.J. 2002)). 22 Lichtenstein v. Univ. of Pittsburgh Medical Center, 691 F.3d 294, 301 (3d Cir. 2012) (citing Erdman v. 

Nationwide Ins. Co., 582 F.3d 500, 509 (3d Cir. 2009)). 23 Lichtenstein, 691 F.3d at 302 (citing Erdman, 582 F.3d at 508–09). 24 411 U.S. 792 (1973). 

25 Lichtenstein, 691 F.3d at 302. 

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Under the McDonnell-Douglas framework, the plaintiff bears the burden of 

establishing a prima facie case of retaliation, pointing to evidence in the record 

sufficient to create a genuine factual dispute as to each of the three retaliation 

claim elements.26 If he succeeds, the burden shifts to the defendant to “articulate 

some legitimate, nondiscriminatory reason” for the adverse employment action.27

Once articulated, the plaintiff must then “point to some evidence, direct or 

circumstantial, from which a factfinder could reasonably ... disbelieve [the 

defendant’s] articulated legitimate reasons.”28 

As stated above, Zartman asserts three arguments in support of its motion for 

summary judgment. Its first two arguments bear on both Mr. Soles’ interference 

and retaliation claims; its third argument bears on Mr. Soles’ retaliation claim. The 

Court will address each argument in turn. 

A. Whether Mr. Soles’ medical condition qualifies as a “serious health 

condition” under the FMLA is a genuine issue of material fact precluding 

summary judgment. 

 Zartman alleges that Mr. Soles’ medical condition does not qualify as a 

“serious health condition” under the FMLA because Mr. Soles never missed work 

for more than three consecutive days related to his medical condition. Additionally, 

in his deposition, Mr. Soles testifies that his medical condition does not prevent 

him from performing any of his job duties and does not interfere with any normal 

 

26 Id. 27 Id. (quoting McDonnell Douglas, 411 U.S. at 802). 28 Id. (quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)). 

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daily activities.29 Mr. Soles argues that evidence in the record clearly establishes 

that his medical condition is one that qualifies for FMLA. 

 The FMLA defines “serious health condition” as “an illness, injury, 

impairment, or physical or mental condition that involves (A) inpatient care in a 

hospital, hospice, or residential medical care facility; or (B) continuing treatment 

by a health care provider.”30 A serious health condition involving continuing 

treatment by a health care provider includes conditions requiring multiple 

treatments when there is a “period of absence to receive multiple treatments . . . 

[for] a condition that would likely result in a period of incapacity of more than 

three consecutive, full calendar days in the absence of medical intervention or 

treatment . . .”31 

 Various courts have visited the question of whether eczema qualifies as a 

“serious health condition” for the purposes of the FMLA. In Beal v. Rubbermaid 

Commercial Products Inc.,

32 the United States District Court for the Southern 

District of Iowa held that a plaintiff’s eczema did not qualify for the FMLA where 

her eczema had only caused incapacitation for one day and caused her to leave 

 

29 During Mr. Soles’ deposition, he was asked whether his symptoms prevent him from performing his job duties, to 

which he replied “not really.” He was subsequently asked if there were “any normal daily activities that [he is] 

unable to perform because of this health condition,” to which Mr. Soles replied “no.” ECF No. 17-1 at 5. In looking 

at these answers in the context of the questioning, however, it seems likely that Mr. Soles responded to these 

questions generally and not specific to a severe flare-up, which, according to the remainder of his testimony and 

medical records, seems to indicate otherwise. 

30 29 U.S.C. § 2611(11). 

31 29 C.F.R. § 825.115(e)(2). 

32 972 F. Supp. 1216 (S.D. Iowa 1997). 

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work only sporadically.33 The plaintiff had further never been hospitalized for the 

condition and had only visited a health care provider three times in five years for 

her eczema.34 Moreover, the plaintiff rarely, if ever, used prescription medication 

for treatment of her eczema.35 

 On the other hand, the United States District Court for the District of Oregon 

held that a plaintiff who had repeatedly missed work due to his eczema raised a 

genuine issue of material fact when he was denied leave under the FMLA.36

Similarly, the United States Court of Appeals for the Sixth Circuit granted 

summary judgment for a plaintiff on his FMLA interference claim when the 

underlying medical condition was severe eczema.37 

 In the matter at hand, the record reflects that there is a genuine issue of 

material fact as to whether Mr. Soles’ eczema qualifies as a “serious medical 

condition” under the FMLA. Medical records submitted by Mr. Soles indicate that 

Mr. Soles was seen by (or corresponded with) his physician for the treatment of his 

eczema on, at least, July 20, 2010, August 20, 2010, August 24, 2010, October 26, 

2010, December 27, 2010, February 10, 2011, March 31, 2011, June 17, 2011, 

August 24, 2011, June 25, 2012, August 31, 2012, and September 11, 2012.38 The 

 

33 Id. at 1224. 34 Id. 35 Id. 36 Farrell v. Tri-County Metropolitan Transp. Dist. of Or., 2005 WL 1307695, *8-9 (D. Or. May 31, 2005). 37 Verhoff v. Time Warner Cable, Inc., 299 Fed. Appx. 488 (6th Cir. 2008). 38 ECF No. 19-3. 

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medical records diagnose Mr. Soles with “severe atopic dermatitis” or “severe 

eczematous dermatitis.” Mr. Soles’ physician further described his condition as 

“most severe,” and indicated that patches of eczema were found on “the trunk and 

extremities” and on his “arms, neck, and legs.”39 

The medical records also corroborate Mr. Soles’ deposition statements that 

he communicated to his physicians that he had been diagnosed in 1982, had been 

prescribed Prednisone every month for multiple years, and had attempted to treat 

his eczema with various treatments, including UV light therapy, various topical 

steroids, and oral prescription medications.40 The records also indicate that Mr. 

Soles reported to his physicians that during a flare-up his skin breaks open and 

bleeds, and that he has missed work due to his eczema.41 

In his deposition, Mr. Soles also testified that he was medically discharged 

from the military due to his eczema.42 He indicated that his medical condition 

affected his ability to serve in the military because his skin was “leaking fluid 24 

hours a day” on his arms and legs.43 He explained that the fluid consisted of blood 

and pus from infections.44 He further testified that he has been hospitalized due to 

his condition “on and off.”45 

 

39 Id. 40 Id. 41 Id. 42 ECF No. 17-1 at 8. 

43 Id. 44 Id. 45 Id. 

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In his statement of facts, Mr. Soles alleges that his flare-ups have been so 

severe as to affect his ability to sleep, walk, and perform fine motor skills tasks.46

He also alleges that he suffered a flare-up in 1992 so severe that he was admitted to 

a hospital for one or two nights47 and a subsequent flare-up in either 1993 or 1994 

that resulted in an emergency room visit and the prescription of a powerful 

sedative which resulted in uninterrupted sleep for four to five straight days and 

nights.48 Zartman disputes these allegations, further supporting this Court’s 

conclusion that whether Mr. Soles’ eczema qualifies as a “serious medical 

condition” under the FMLA is an issue of fact for a jury to decide. 

B. Whether Zartman was put on notice of Mr. Soles’ need for FMLA leave is 

a genuine issue of material fact precluding summary judgment. 

 To request FMLA leave, an employee must “provide at least verbal notice 

sufficient to make the employer aware that [he] needs FMLA-qualifying leave . . . 

[and] need not expressly assert rights under the FMLA or even mention the FMLA 

. . .”49 Communicating an “intention to take such leave in the future” can constitute 

requisite notice under the FMLA if “the information that the employee conveyed to 

the employer was reasonably adequate to apprise the employer of the employee’s 

request to take leave for a serious health condition that rendered him unable to 

 

46 ECF No. 19-2 at ¶ 14. 

47 Id. at ¶ 15. 48 Id. at ¶ 19. 

49 29 C.F.R. § 825.302(c). 

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perform his job.”50 There are no “magic words” that are required to provide 

notice.51 The employee must only provide enough information to the employer “to 

show that he may need FMLA leave.”52 

 The issue of whether Zartman had notice of Mr. Soles’ need for FMLA 

leave is aggressively disputed by the parties. In his deposition, Mr. Soles testifies 

that the same day that he saw his physician and had the first UV light therapy 

treatment, he notified his supervisor, Harold Reich, of his need to take time off 

from work three days a week for his medical treatment. He indicates that he 

provided Mr. Reich with the medical records from the visit on August 31, 2012. 

The medical documents from that visit indicate that they would “start narrow band 

light therapy (at 500 mJ) today with plan to increase by 100 mJ per treatment for 

long term treatment” and that the “[p]atient receives treatment three times 

weekly.”53 

 In his deposition, Mr. Reich testified that throughout Mr. Soles’ 

employment, he left work for medical reasons and would indicate that he had to go 

to the doctor because his arm itched and irritated him.54 He also stated that, on one 

occasion, Mr. Soles showed him his arm and “the skin was all like broke open” and 

 

50 Sarnowski v. Air Brooke Limousine, Inc., 510 F.3d 398, 402 (3d Cir. 2007) (citing Skrjanc v. Great Lakes Power 

Serv. Co., 272 F.3d 309, 314 (6th Cir. 2001)). 51 Id. 52 Id. (citing Woods v. Daimler Chrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005) (emphasis added)). 53 ECF No. 19-3 at 36, 41. 

54 See ECF No. 19-11 at 2 (“Q. Do you remember what he took off for? A. I can remember this. He would come to 

me – and it happened more than once – and say, I have to get to the doctor, this is driving me crazy (Indicating). Q. 

You just rubbed your arm. A. He rubbed his arm like it itched. And that’s all he would say.”) 

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bleeding.55 Mr. Reich indicated, on that occasion, Mr. Soles requested to take time 

off to go to the hospital.56 

 On the other hand, Mr. Reich stated that Mr. Soles never showed him any 

medical documentation regarding his eczema.57 During his deposition, Mr. Reich 

reviewed Mr. Soles’ August 31, 2012 medical documentation and testified that he 

had never seen and was never given those documents.58 He further indicated that 

Mr. Soles “never told [him] anything about his treatment” or that he would need to 

get treatment for part of the day three days a week.59

 As such, the testimony reveals that the issue of whether Mr. Soles 

communicated the requisite notice as required under the FMLA is a genuine issue 

of material fact for the fact-finder. 

C. Whether Zartman’s nondiscriminatory reason for terminating Mr. Soles 

was pretextual is a genuine issue of material fact precluding summary 

judgment. 

Lastly, Zartman argues that the record is devoid of any evidence of 

retaliatory intent and, therefore, Mr. Soles’ FMLA retaliation claim must be 

dismissed. As stated above, for a retaliation claim to survive, a plaintiff must first 

point to evidence in the record supporting each of the three elements of a 

 

55 Id. 56 Id. 57 Id. 58 Id. at 3. 

59 Id. at 2. 

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retaliation claim.60 The defendant must then provide a non-discriminatory reason 

for the adverse employment action, which the plaintiff then argues is pretextual, 

supporting his claim with evidence from the record.61 

Here, Mr. Soles argues that he invoked his right to FMLA leave (which this 

Court determined is an issue of material fact), that he was terminated (which is 

undisputed), and that the termination was in retaliation for either his request for 

FMLA leave or for taking FMLA-qualifying leave. Zartman’s reason for 

terminating Mr. Soles, however, is unclear from the record. Zartman’s answer to 

Mr. Soles’ complaint indicates that Mr. Soles was terminated for a legitimate, nondiscriminatory reason, but does not provide the reason.62 Zartman’s brief in support 

of its motion for summary judgment suggests that Mr. Soles was terminated after 

receiving verbal and written warnings and disciplinary action “throughout his 

employment with Defendant.”63 Mr. Soles argues, however, that this explanation 

for termination is not reflected by the evidence. 

Mr. Reich, Mr. Soles’ direct supervisor, testified as to Zartman’s 

disciplinary policy.64 He indicated that the policy is progressive and there are 

typically three stages of discipline regarding one type of disciplinary issue. First 

there is a warning; second, a probationary period where conduct is monitored; and 

 

60 Lichtenstein, 691 F.3d at 302 (citing Erdman, 582 F.3d at 508–09). 61 Lichtenstein, 691 F.3d at 302. 62 ECF No. 5 at ¶¶ 64, 65. 

63 ECF No. 18 at 6. 

64 ECF No. 19-9 at 5. 

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third, suspension without pay.65 These three stages are all typically exhausted prior 

to termination.66 

Mr. Reich also testified as to Mr. Soles’ specific circumstances. Mr. Soles 

was given a written warning on March 18, 2011 for arriving at work late.67 Mr. 

Reich then testified that he was given a “written write-up” on August 20, 2012 for 

an incident occurring on July 19, 2012 in which he was “hauling five loads of 

material exceeding GVW weight by 2,000 to 3,000 pounds. Hauling one load 

exceeding 17,000 pounds.”68 Mr. Reich testified, however, that the “action taken” 

on August 20, 2012 as stated on the form was a “warning” with the following 

consequence noted should the incident happen again: “Employee responsible for 

future incidents. Suspension or possible termination.”69 He further testified that he 

did not consider the March 18, 2011 warning in issuing the August 20, 2012 

“warning” because the two incidents were considered separate, as they were for 

separate disciplinary issues.70

Mr. Reich further testified that he was not involved in the decision to 

terminate Mr. Soles.71 In response to whether he knew the reason for Mr. Soles’ 

termination, Mr. Reich stated that there was another incident regarding a “certain 

 

65 Id. 66 Id. 67 ECF No. 19-11 at 4. 

68 Id. 69 Id. 70 Id. at 5. 71 Id.

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job that took awfully long to do.”72 When he questioned Mr. Soles about the 

incident, Mr. Soles failed to provide an explanation as to why the project took so 

long to complete.73 Mr. Reich admitted, however, that he could not recall what Mr. 

Soles specifically stated when he was questioned.74 Mr. Reich then discussed the 

issue with Dean Paul, another Zartman supervisor, but also could not recall the 

conversation with Mr. Paul or whether there was a decision made to take any sort 

of action.75 Mr. Reich also indicated that he did not complete a written warning or 

write-up for this incident76 and was unable to recall when the incident took place.77

Mr. Soles contends that Zartman’s alleged reason for termination is 

pretextual because the two separate written warnings he received over a four-year 

employment period did not merit termination under Zartman’s own disciplinary 

policy. He further alleges that in response to his inquiry to Mr. Reich at the time of 

his termination as to why he was being terminated, Mr. Reich stated that he did not 

have a reason for the termination.78 Mr. Soles also points to a Request for 

Separation and Wage Information submitted to the Pennsylvania Department of 

 

72 Id. 73 Id. 74 Id. 75 Id. 76 Id. 77 Id. 78 ECF No. 1 at ¶ 28. 

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Labor and Industry and completed by Zartman which indicates that the reason for 

separation was “lack of work.”79 

Accordingly, there is clearly a genuine dispute of material fact regarding 

both the reason for Mr. Soles’ termination and whether the reason was a pretext to 

conduct which violated Mr. Soles’ rights under the FMLA.80 

IV. CONCLUSION 

Consequently, and consistent with the foregoing reasoning, Zartman’s 

motion for summary judgment is denied.

BY THE COURT: 

 /s Matthew W. Brann 

 Matthew W. Brann 

 United States District Judge 

 

79 ECF No. 19-15. 

80 Mr. Soles, in his counterstatement to Zartman’s statement of material facts, also correctly points out that Zartman 

fails to assert that its reason for firing Mr. Soles is undisputed, itself admitting that a genuine issue of material fact 

exists. 

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