UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION AT DAYTON 

Brittany N. Clark, et al., 

Plaintiffs,

v. Case No. 3:17-cv-074 

Judge Thomas M. Rose 

Cherryhill Management, Inc., et al., 

Defendants.

ENTRY AND ORDER DENYING DEFENDANTS’ MOTION 

FOR SUMMARY JUDGMENT, ECF 22, AND GRANTING 

PLAINTIFFS’ CROSS-MOTION FOR PARTIAL SUMMARY 

JUDGMENT, ECF 23. 

Pending before the Court is a Motion for Summary Judgment filed by Defendants 

Cherryhill Management, Inc., Judith V. Negrete, and Michael J. Walsh. (ECF 22), and a Cross 

Motion for Partial Summary Judgment filed by Plaintiffs Brittany N. Clark and Robert 

Sammons. ECF 23. Each party seeks summary judgment as to liability. Plaintiffs’ motion 

would leave the question of the amount of damages open. The parties are largely in agreement 

as to the facts. Because Defendants failed to inquire as to whether Plaintiffs needed continued 

leave under the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq., after Plaintiffs 

informed them of their need for it, Defendants’ motion will be denied and Plaintiff’s motion will 

be granted. 

I. Background 
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 Defendant Cherryhill Management Inc. operates the Valley Thrift Store in Kettering, 

Ohio. Plaintiffs Brittany Clark and Robert Sammons are former employees of Defendant 

Cherryhill who were fired under similar circumstances. Both were approved for intermittent 

FMLA leave. Answer ¶13-14, ¶22 (Doc. 13, PageID165-67); Negrete Depo., at 124. Cherryhill 

terminated Sammons and Clark for the same reason: two subsequent “no-call, no-shows.” 

Deposition of J. Negrete, at 63, 98. Each of Plaintiffs’ “no-call, no-shows” occurred on the two 

days immediately after they had taken FMLA leave. Sammons UCRC Trans., at 8-9 (Doc. 6-2, 

PageID 66); Clark UCRC Trans, at 11 (Doc. 6-1, PageID 39). Both Plaintiffs were absent from 

work due to a serious medical condition. Sammons UCRC Trans., at 12 (Doc. 6-2, PageID 70); 

Clark UCRC Trans, at 22-24 (Doc. 6-1, PageID 52-54). In neither case did Cherryhill request 

medical certification for the absence. Answer ¶18, 28 (Doc. 13, PageID166, 168); Negrete Depo. 

78-79. Nor did Cherryhill advise Clark and Sammons of the consequences of a failure to 

provide adequate medical certification. Id. 

 Sammons was employed by Cherryhill as a delivery driver for nearly ten years: 

November 13, 2006 to October 1, 2016. Sammons UCRC Trans., at 7 (Doc. 6-2, PageID 65) 

Defendants Judith V. Negrete and Michael J. Walsh were Cherryhill store managers and 

supervisors. Id. at 6, (Doc. 6-2, PageID 64-66). Negrete and Walsh had immediate control over 

Sammons’ employment. Answer ¶20-21 (Doc. 13; PageID 167). Defendants had the authority 

to accept or reject Sammons’s employment; train him; supervise him; discipline him; maintain 

employment records on him; set his work hours; and direct and control his work assignments. 

Answer ¶13-14, ¶22 (Doc. 13, PageID165-67); Negrete Depo., at 124. 
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On August 16, 2016, Sammons was diagnosed with a serious health condition, PageID 

544-45, and Cherryhill approved him for intermittent FMLA leave. Negrete Depo. at 117-18. 

Sammons’s FMLA paperwork was current and Cherryhill had previously accepted his FMLA 

paperwork certifying his need for FMLA leave. Id. 

On September 28, 2016, Sammons left work after notifying Cherryhill that he was 

suffering symptoms of his serious health condition. Negrete Depo., at 104, 106; Sammons Depo. 

at 81 (Doc. 22-4; PageID 331). Sammons, for his part, told Cherryhill expressly: “I’m having a 

panic, anxiety attack, and I got to take my FMLA and I’m going to try to go see a doctor.” 

Sammons depo., at 81:10-18. He did not return to work the next two days. Id. 

Cherryhill’s employee handbook includes the following attendance policy: 

Two Day No Call, No Show. Any Employee who misses two (2) 

scheduled work days in a row without calling in one (1) hour prior 

to absence shall be terminated. When calling in, the employee 

must speak with a supervisor or store manager when calling off of 

work. 

Id., at 2. Plaintiffs admit receiving a copy of Cherryhill’s employee handbook. Clark depo., at 

38:1-16; Sammons depo., at 123:14-17; Negrete Affidavit, at Exhibit B.3 and B.6. 

Sammons did not have a fixed delivery route, but had a fixed schedule of MondayFriday. Negrete Depo. at 105. Cherryhill terminated Sammons’s employment for consecutive 

“no-call, no-show” days after Sammons did not report for work on September 29 and 30, 2016. 

Sammons UCRC Trans., at 8 (Doc. 6-2, PageID 66). Sammons had received a doctor’s note 

excusing him from work on September 29 and 30, 2016, the two “no-call, no-show” days. Id. at 

12 (Doc. 6-2, PageID 70). On September 30, 2016, Cherryhill advised Sammons of its decision 

to terminate his employment, despite having previously approved Sammons for intermittent 
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FMLA leave. Id. at 8 (Doc. 6-2, PageID 66). Cherryhill never gave Sammons written notice of 

a need for additional medical certification. Answer ¶18, 28 (Doc. 13, PageID 166, 168) 

Cherryhill never provided Sammons with written notice of the consequences for failing to timely 

provide sufficient medical certification. Id. 

 Clark also suffered from a serious health condition. Clark UCRC Trans, at 22-23 (Doc. 6-

1, PageID 50-51). She requested FMLA leave from June 13, 2016 through June 27, 2016 and 

Cherryhill accepted FMLA leave forms and documentation from her physician. Id. at 11 (Doc. 6-

1, PageID 39). Cherryhill accepted Clark’s FMLA leave forms documenting her need to take 

intermittent FMLA leave beyond June 27, 2016. Id. at 14 (Doc. 6-1, PageID 42). The 

intermittent leave forms were completed by Clark’s physician. Id. at 10-11, 14 (Doc. 6-1, PageID 

38-39, 42). Clark was on approved FMLA leave from June 13, 2016 through June 27, 2016. 

Clark UCRC Trans, at 11, 20 (Doc. 6-1, PageID 39, 48). Clark did not report on June 28-29, 

2016. Cherryhill terminated Clark’s employment on June 30, 2016 for consecutive “no-call, noshow” days. Id. at 11, 20 (Doc. 6-1, PageID 37). 

 Clark did not have a fixed employee schedule. Negrete Depo. at 79-80. Employee 

schedules were posted in the store on Saturdays for the upcoming week. Clark UCRC Trans, at 9 

(Doc. 6-1, PageID 37). Cherryhill never called or informed Clark that she was scheduled to 

work on June 28 or 29, 2016. Clark UCRC Trans, at 15 (Doc. 6-1, PageID 43). Cherryhill never 

gave Clark written notice of a need for additional medical certification. Id. at 16 (Doc. 6-1, 

PageID 44). Cherryhill never provided Clark with a fifteen-day period of time before 

terminating her employment to produce additional medical certification.). Id.; Walsh Depo., at 
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53-55; Answer ¶18 (Doc. 13; PageID 166). Cherryhill never provided Clark with written notice 

of the consequences for failing to timely provide sufficient medical certification. Id. 

On March 3, 2017, Plaintiffs filed a complaint alleging Cherryhill violated the FMLA by 

not providing Clark or Sammons with written notice that, if they were still taking FMLA, they 

needed further documentation. Plaintiffs assert claims for FMLA retaliation and interference. 

On April 26, 2017, Defendants filed a Motion to Dismiss Case as Frivolous. ECF 6. The Court 

denied the motion and sanctioned Defendants for seeking sanctions. ECF 11. The Court noted 

“if what Plaintiffs allege is true, Defendants had an obligation to make an inquiry prior to 

terminating Plaintiffs [and . . .] Plaintiffs’ terminations plainly violate the FMLA. . .” (ECF 11; 

PageID 152). 

On July 16, 2018, Defendants filed a motion for summary judgment. ECF 22. This was 

met with a Response and Cross-Motion for Partial Summary Judgment, ECF 23, by Plaintiffs, 

who seek summary judgment only as to liability. 

II. Standard 

A moving party is entitled to summary judgment if the pleadings, the discovery and the 

disclosure materials on file, and any affidavits “show [ ] 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). 

There is no genuine issue for trial where the record “taken as a whole could not lead a rational 

trier of fact to find for the non–moving party.” Matsushita Elec. Indus., Co. v. Zenith Radio 

Corp., 475 U.S. 574, 587 (1986). A court must ultimately decide “whether the evidence 

presents a sufficient disagreement to require submission to a jury or whether it is so one–sided 

that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 
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251–52 (1986). In doing so, the evidence is construed and all reasonable inferences are drawn 

in favor of the nonmoving party. Hawkins v. Anheuser–Busch, Inc., 517 F.3d 321, 332 (6th Cir. 

2008). 

III. Analysis 

Plaintiffs Brittany N. Clark and Robert Sammons have asserted two claims against 

Defendants Cherryhill Management, Inc., Judith V. Negrete, and Michael J. Walsh: one for 

interference with and violation of rights under the Family and Medical Leave Act of 1993, 29 

U.S.C. § 2601, et seq., and another for unlawful retaliation for exercising rights protected by the 

FMLA. Plaintiffs claim Defendants did not follow the statutory and regulatory procedures in 29 

U.S.C. § 2613 and 29 C.F.R. § 825.305 and 825.311 and retaliated for trying to exercise their right 

to leave under the FMLA. 

The FMLA creates an entitlement Ato a total of 12 work weeks of leave during any 12-

month period Y [b]ecause of a serious health condition that makes the employee unable to perform 

the functions of the position of such employee.@ 29 U.S.C. § 2612(a)(1)(D). Under certain 

conditions, the employee may take the 12-week allotment of FMLA leave intermittently or by 

working a reduced schedule. 29 U.S.C. § 2612(b). 

The FMLA makes it Aunlawful for any employer to interfere with, restrain, or deny the 

exercise of or the attempt to exercise any right that [the FMLA] affords.@ 29 U.S.C. § 2615(a)(1). 

FMLA interference is proven by showing that the employer interfered with or denied FMLA 

benefits to which the employee was entitled. “This inquiry is an objective one divorced from the 

employer’s motives, with the central question being simply whether the employee was entitled to 

the FMLA benefits at issue.” Edgar v. JAC Prods., Inc., 443 F.3d 501, 511 (6th Cir. 2006). 
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A plaintiff must show: (1) the employee was an eligible employee; (2) the defendant was 

an employer as defined under the FMLA; (3) the employee was entitled to leave under the FMLA; 

(4) the employee gave the employer notice of her intention to take leave; (5) the employer denied 

the employee FMLA benefits to which she was entitled; and (6) the employer’s violation caused 

them harm. Reeder v. Cty. of Wayne, 694 F. App’x 1001, 1006 (6th Cir. 2017); Wallace v. FedEx 

Corp., 764 F.3d 571, 585 (6th Cir. 2014)(adding that employees seeking relief under the 

interference theory must also establish that the employer’s violation caused them harm). If the 

above is proven, the employer will only be able to escape liability if it can show it had a “legitimate 

reason unrelated to the exercise of FMLA rights for engaging in the challenged conduct.” Wallace 

v. FedEx Corp., 764 F.3d 571, 585 (6th Cir. 2014).

While the employee has a right to take leave under the FMLA, the employee must give his 

employer notice of his intention to take leave in order to be entitled to it. See 29 U.S.C. § 

2612(e)(1)-(2); Srouder v. Dana Light Axle Mfg., LLC, 725 F.3d 608, 614 (6th Cir. 2013). The 

employee must provide “at least verbal notice sufficient to make the employer aware that the 

employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave.” 29 

C.F.R. § 825.302(c). 

Defendant asserts that Plaintiffs could have informed Defendant of their ongoing need for 

FMLA leave as required by the Cherryhill employee handbook. While this is true–as 

Defendants point out, Plaintiffs could have telephoned their employer from their doctor’s office, 

ECF 22, PageID 194–Defendant has not established that it “request[ed] (in writing) that [the] 

employee[s] provide medical certification that [they were] suffering from a serious medical 

condition.” Walton v. Ford Motor Co., 424 F.3d 481, 488 (6th Cir. 2005). 
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Walton is nearly the exact situation as this case, and as such, merits extended review: 

“[T]o invoke the protection of the FMLA, an employee must 

provide notice and a qualifying reason for requesting the leave.” 

Brohm v. JH Props., Inc., 149 F.3d 517, 523 (6th Cir. 1998) (citing 

Manuel v. Westlake Polymers Corp., 66 F.3d 758, 762 (5th Cir. 

1995)). Under the regulations in place at the time of these events, 

this notice must have been given “as soon as practicable under the 

facts and circumstances of the particular case.” 29 C.F.R. § 

825.303(a). Moreover, “[t]he employee need not expressly assert 

rights under the FMLA or even mention the FMLA, but may only 

state that leave is needed. The employer will be expected to 

obtain any additional required information through informal 

means.” § 825.303(b) (emphasis added). The employee’s burden 

is not heavy. “‘[A]n employee gives his employer sufficient 

notice that he is requesting leave for an FMLA-qualifying 

condition when he gives the employer enough information for the 

employer to reasonably conclude that an event described in the 

FMLA § [2612(a)(1) ] has occurred.’ “ Cavin, 346 F.3d at 723–24 

(quoting Hammon v. DHL Airways, Inc., 165 F.3d 441, 451 (6th 

Cir. 1999)) (alterations in original). In addition, part of reasonable 

notice generally includes an indication of “the anticipated timing 

and duration of the leave.” 29 C.F.R. § 825.302(c). After all, even 

though a qualifying employee is permitted up to twelve weeks of 

leave in a calendar year under the statute, many injuries and 

illnesses will not require the full allotment of time off. See 29 

U.S.C. § 2612(a)(1). 

In its cross-appeal, FedEx argues that “Wallace failed to present 

any evidence showing that she provided FedEx notice of an 

intention to take FMLA leave beyond the non-FMLA leave she 

received for August 15th through 29th.” Second Br. at 38; see also 

Fourth Br. at 13. Specifically, FedEx focuses upon Wallace’s 

failure to return the medical-certification form or to indicate that 

she desired leave beyond August 29. 

By focusing on whether Wallace provided enough documentation 

for continued leave, FedEx largely misses the point of this notice 

element. The relevant question is whether Wallace provided 

FedEx with notice that she needed FMLA leave, not whether she 

provided notice that she needed a certain amount of FMLA leave. 

See Cavin, 346 F.3d at 725 (finding a plaintiff’s notice to the 

defendant “sufficient to apprise [the defendant] of his request to 

take time off for a serious health condition” (internal quotation 
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marks omitted)). Based on the record in this case, the jury found 

in favor of Wallace—a reasonable decision. R. 56 at 1 (Jury 

Verdict) (Page ID # 836). Wallace provided Phillips with a note 

from Dr. Kasser, indicating that Wallace had a serious medical 

condition that required her to take leave from work. See Ex. App’x 

at 3; R. 54 at 180:10–182:20 (Mar. 30 Trial Tr.) (Page ID # 2189–

91). Moreover, Phillips understood that Wallace needed FMLA 

leave as evidenced by the fact that he discussed the FMLA with inhouse counsel and then provided Wallace with FMLA paperwork. 

See id. at 185:12–186:19 (Page ID # 2194–95); R. 53 at 140:19–

141:24 (Mar. 29 Trial Tr.) (Page ID # 1597–98). Given these two 

pieces of evidence, a reasonable juror could conclude that Wallace 

had provided FedEx with sufficient notice. 

* * * * * * * * * 

FedEx also argues that no reasonable jury could find that FedEx’s 

termination of Wallace’s employment was an interference with her 

rights under the FMLA because Wallace’s failure to return the 

medical-certification form meant that she was not eligible for leave 

under the statute. This broad argument triggers a number of 

questions: (a) whether FedEx provided Wallace with sufficient 

notice regarding the consequences of failing to return a medicalcertification form; (b) if not, whether 29 C.F.R. § 825.305—which 

sets forth the standard for sufficient notice—is arbitrary and 

capricious; and (c) if not, whether FedEx nonetheless had a 

legitimate reason, independent of FMLA-related leave, to 

terminate Wallace’s employment. Ultimately, the answers to each 

of these questions favor Wallace, and thus, we AFFIRM the 

magistrate judge’s denial of FedEx’s request for judgment as a 

matter of law on these points. 

FedEx’s Noncompliance with 29 C.F.R. § 825.305 

Under the Department of Labor’s regulations, an employer has the 

option of requesting (in writing) that an employee provide medical 

certification that she is suffering from a serious medical condition. 

29 C.F.R. § 825.305(a). In cases like this one, where the need for 

a leave of absence is unforeseeable, an employer must give an 

employee at least fifteen days to return a medical-certification 

form. §§ 825.305(b); 825.311(b). “If an employee fails to provide 

a medical certification within a reasonable time under the pertinent 

circumstances, the employer may delay the employee’s 

continuation of FMLA leave. If the employee never produces the 
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certification, the leave is not FMLA leave.” § 825.311(b). 

However, in order to impose these sanctions, “[a]t the time the 

employer requests certification, the employer must also advise an 

employee of the anticipated consequences of an employee’s failure 

to provide adequate certification.” § 825.305(d). 

Walton, 424 F.3d at 486. 

Sammons, for his part, told Cherryhill expressly: “I’m having a panic, anxiety attack, and 

I got to take my FMLA and I’m going to try to go see a doctor.” Sammons depo., at 81:10-18. 

Cherryhill asserts that while Sammons “arguably” gave notice that he wanted leave to see a 

doctor on September 28, 2016, the Cherryhill employee manual places a higher duty to notify on 

the employee than the FMLA, and somehow Cherryhill was no longer aware of his situation the 

next two days, September 29 and 30, 2016. Sammons depo., at 87. 

Cherryhill accepted Clark’s FMLA leave forms documenting her need to take 

intermittent FMLA leave beyond June 27, 2016. (Doc. 6-1, PageID 42). In spite of this, 

Cherryhill scheduled Clark to work on June 28-29, 2016, shifts for which Clark did not show and 

of which Clark was unaware. 

While the FMLA “does not require an employer to be clairvoyant.” Brenneman v. 

MedCentral Health Sys., 366 F.3d 412, 428 (6th Cir. 2004), once an employee gives notice that 

they are taking FMLA leave, the burden shifts to the employer to inquire of the employee 

whether they are still taking FMLA leave. Here, “Plaintiffs inform[ed] the company about their 

continued need for FMLA leave.” Order denying motion to dismiss, Doc. No. 11, at 10; Page 

ID#154. The boundaries of the FMLA are not determined by Cherryhill’s Employee Manual, 

but by the FMLA, the regulations implementing it, and case law. AThe critical question is 

whether the information imparted to the employer is sufficient to reasonably apprise it of the 
11 

employee=s request to take time off for a serious health condition.@ Wallace v. FedEx Corp., 764 

F.3d 571, 586-88 (6th Cir. 2014). The Sixth Circuit recently reaffirmed Wallace’s holding. 

Casagrande v. OhioHealth Corp., 666 Fed. App’x 491, 498 (2016) (“OhioHealth had the duty to 

make a correct FMLA-eligibility determination and notify Casagrande of his eligibility, of the 

requirements that flowed therefrom, and of the consequences of failing to adhere to them”). 

Plaintiffs each informed Defendants of their need for intermittent FMLA leave. 

Plaintiffs both informed Defendants of their need for a period of FMLA leave. When that 

period expired Defendants made no inquiry, choosing instead to summarily terminate them 

instead. For whatever reason, the FMLA seems to envision a world where an employer cares 

enough to inquire as to the health of an employee who has given notice of a serious health 

condition. Maybe it foresaw the possibility that an employee out on FMLA leave may have 

suffered a set-back, leaving the employee in a condition unable to return to work, and challenged 

to even inform the employer of this situation. Whatever the reasoning, the regulations and case 

law are clear: if what Plaintiffs allege is true, Defendants had an obligation to make an inquiry 

prior to terminating Plaintiffs. Per the Sixth Circuit’s ruling in Wallace, Plaintiffs’ terminations 

plainly violate the FMLA and the applicable regulation upon which Wallace is based, 29 C.F.R. 

§ 825.305.

Plaintiffs are entitled to summary judgment as to liability. See West v. Pella Corp., No. 

5:16-CV-154-TBR, 2017 U.S. Dist. LEXIS 173753, *27 (W.D. Ky. Oct. 20, 2017)(holding that, 

when the termination is for absences that were otherwise covered by the FMLA, the employer 

fails to articulate a legitimate, nondiscriminatory reason at the summary judgment stage); and 

Ashby v. Amscan, Inc., No. 3:15- CV-00643-GNS, 2017 U.S. Dist. LEXIS 33576, at *22 (W.D. 
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Ky. Mar. 8, 2017)(holding that there is no unrelated reason for termination when the employee’s 

failure to return to work upon exhaustion of her FMLA relates directly to the employer’s failure 

to give notice). When the employer fails to articulate a legitimate, unrelated reason, there is no 

need for an employee to prove pretext under a burden-shifting analysis. If the employee has 

proven a prima facie case, and the employer fails to meet its burden, summary judgment for the 

plaintiff is warranted. See Gostola v. Charter Communs., LLC, 72 F. Supp. 3d 796 

(E.D.Mich.2014). Defendants’ position that the Cherryhill employee manual supersedes the 

framework established by the FMLA is not a legitimate reason for Cherryhill’s actions. 

IV. Plaintiffs’ FMLA Retaliation Claims

Because the Court is granting Plaintiffs’ Motion for Summary Judgment on Plaintiffs’

interference claims, it need not reach the question of retaliation. Interference and retaliation are 

two theories of recovery under the FMLA. The recovery is the same, regardless of which theory 

(or both) are proven. Gostola v. Charter Communs., LLC, 72 F. Supp. 3d 796, 805 

(E.D.Mich.2014). Because Plaintiffs’ interference claims have prevailed, Defendants’ motion is 

moot with regard to the retaliation claim. 

V. Conclusion 

Because Defendants failed to inquire as to whether Plaintiffs needed continued leave 

under the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq., after Plaintiffs 

informed them of their need for it, Defendants’ Motion for Summary Judgment, (ECF 22), is 

DENIED. Plaintiffs’ Cross Motion for Partial Summary Judgment as to Liability, ECF 23, is

GRANTED. The case remains set for trial as to the question of damages. 

DONE and ORDERED in Dayton, Ohio, this Thursday, May 16, 2019. 
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s/Thomas M. Rose 

________________________________

THOMAS M. ROSE 

UNITED STATES DISTRICT JUDGE