IN THE UNITE D STATE S DIST RICT COURT F OR THE DIS TRICT OF COLUM BIA

__________________________________________) RICHARD LANE HOP KIN S, ) ) P laintif f, ) ) v. ) Civil Action No. 10-cv- 2025 (RM C) ) GR ANT THORNTON INTE RNATIONAL ) and GRANT THORNTON LL P , ) ) Defendan ts. ) ) __________________________________________)

MEMORAN DUM OP INION ON CROSS MOTIO NS F OR SUMMAR Y JUDG MENT Richard L ane H opkins claims that Grant Thor nton L L P interfer ed with his rig hts to leave w ithout pay

for a serious medica l condition and also reta liated ag ainst him for askingfor such leave by

firinghim. Mr. Hopkins misperceive s his lega l rig hts and the standar ds that perta in to his claims. Finding that his cla ims have no merit, the Court will g rant summary judgme nt to Grant Thornton. I

. F ACTS

Mr. Hopkins started w orking for Gr ant Thornton L L P in September 2007 a s a 1

Mr. Hopkins initially

sued Gra nt Thornton International, which is the pare nt company 1 of Gra nt Thonton L L P. Amended Compl., [ Dkt. # 12] ¶ 6. Although he a mended his Complaint to add Gra

nt Thornton L L P, his di rec t employ er, he ref used to dismiss Grant Thornton International without dis cover y , fea ringthat the two entities may constitute a sing le employ er a nd that Gra nt Thornton L L P may

lack the r esourc es to satisfy his claims. The Court stayed all such discovery pendinga dec ision on the merits ag ainst the more immediate e mploy ing de fenda nt. Given the Court’s disposition of the motion for summary judgme nt filed by

Gra nt Thornton L L P, the Court will also dismi ss Grant Thor nton I nternational from this suit.Senior Consultant with t he Global Public Sector ( “GPS”) division based in Alexandria, Vir g inia.

Fr om September 2007 to April 2008, he w orked on a contra ct with the Depa

rtment of Homela

nd Security for its Security

I mmigration and Customs Enforc ement Student Ex chang e Visitor Prog ram in the District of Columbia. Howe ver, Mr . Thornton was una ble to obtain nece ssary clea ranc es, and he was re moved from that pr oject. He found a ne w opportunity on the Iraq Business a

nd Stabilit y

Oper ations Progr am (“ Iraq Stability Prog ram” ) under

contra ct with the Depa rtment of De fense (“D oD”) . The Iraq Stability Prog ram wa s desig ned to improve business and stability

operations in I raq; a

majority of the e mploy ees in the G PS di vision worked on the Prog ram, providing

consulting a

nd procur ement advisory

service s. Mr. Thornton worke d in Ba g hdad and E rbil, Iraq on this Prog ram.

Fundingissues led to a re duced D oD contra ct in the summer of 2009. Mr

. Hopkins’ position in Bag hdad ende d in August 2009, and he re turned to this country . As a Senior Consultant, Mr. Hopkins was obligated to find alternative work within Gra nt Thornton to maintain sufficie nt client-billable hours. He looked f or work in the I

raq Stability

Prog ram a

nd 2 GPS Director Te rry

Gar man place d him with the Iraq I nvestment Confere nce f

or appr ox imately six wee ks betwee n September a nd October

of 2009, duringwhich time he wor ked in the District. The c uts in August we re f ollowed by

a “stop wor

k” orde r on De cembe r 19, 2009,

GPS employ ees who work dire ctly on client projec ts are e x pecte d to work 2 approximately

1,790 hours a year

on client projec ts, approxim ately 150 hours a month. Those employ ees who are not eng ag ed full time on a c lient specific pr oject ar e “on the bench” and have responsibility , with help from GPS’s Resource Manag ement De partment, c ompany mentors and coac hes, and othe rs, to find more wor k to do. When work is lacking , GPS’s Human Resource s (“H R”) De partment provide s consultants with formal notice tha t they must find charg eable work or fa ce te rmination. These notice s may be re scinded if the e mploy ee is a ble to find cha

rg eable work in the mea

ntime. -2-due to a lac k of funding . Ms. Garma n order ed all employ ees a ssociated with the Iraq Stability Prog ram to stop perf

orming work immediately . On Dec ember 31, 2009, DoD dire cted GPS to reduc e the c ost of the contra ct by 20%, re quiring adjustments and some down-sizing. The Iraq Stabilit y Prog ram c ontrac t was ultimately terminated in Mar ch 2010. Gr ant Thornton attributes Mr. Hopkins’ discha

rg e to the nec essar

y reduc tions in force a

nd eventua l dissolut ion of the International Division of GPS

.

Mr. Hopkins’ billable hours tra cked the decline of the Iraq Stability

Project. His hours in August (171), September (191), a nd October

2009 (184) we re ve ry

high. I n November 2009, he had only

79.5 billable hours, and in De cembe r 2009, he ha d only 83. In Dec ember , he

was a ctively

“looking for billable wor k” bec ause he “knew

he could not sit around a nd not do any thing.” Id . at ¶ 114.

Mr. Hopkins worke d 80 billable hours on a tempor ary assig nment for the I

raq Stabilit y Prog ram in January

2010. Ms. Garma

n cautioned him that ther e would be no f urther work on the Prog ram a

nd he must work with HR to find another position. On J anuar

y 20, 2010, HR informed Mr. H opkins that he nee ded to find billable work by Fe bruar y 12, 2010, or he would be ter

minated. Mr. Hopkins advised a friend tha

t the news wa s “amusing ” but “ve ry stressful.” D ef.’ s SOF ¶ 52. How ever , a we ek later , his Grant Thornton “ coac h” sug g ested a n assig nment at the Washing ton Headqua rters Ser vice Projec t (“WHS Project”) in Ar lington, Virg inia. Mr. Hopkins interviewe d for the position and be g an wor k almost imm ediately

on Fe bruar y 3, 2010. At the same time, Mr. H opkins ex perie nced pr oblems with a persona l relationship that cause d him to ex perie nce a high le vel of stre ss. He attributes diff iculty that he experienc ed

-3-on the WHS P rojec t to this stress; his new mana g ers noted that he fa iled to appea r for work at the client site without notice and e x hibited rude a nd distracted pe rfor

mance when he was ther e. Although he was c ounseled a bout these per formanc e proble ms, Mr. Hopkins was unable to improve quickly , so on Fe bruar y 23, the WHS P rojec t leader s, Robert Misch and John Adams,

remove d him from the Project.

After this, Mr. Hopkins sought assistance from the he ad Partne r for the GPS International Division, Rhoda Canter . He told Ms. Canter that he had fa iled to appea r at the client site, communicate d badly with WHS Project lea dership, and c aused que stions from the client but that his behavior wa s due to the diffic ulties ensuing f rom the bre ak-up of

a per sonal relationship. Now that his partner ha d returne d, he assur ed her that his inappropriate behavior “would neve r happe n ag ain.” De f.’s SOF ¶ 82. Ms. Canter a dvised that his poor perf ormanc e on the WHS P rojec t would make it more diff icult for Mr. Hopkins to find new work at Grant Thornton and that it posed a serious issue in light of the number of pe rsons losing positions with the Iraq Stability

Prog ram, who w ere also looking f or newwork. Mr. H opkins imm ediately beg an re aching

out to friends and c olleagues in an e ffor t to find bill able wor

k. Howeve r, thing s went fr om bad to worse. O n Marc h 10, 2010, GPS learned tha t DoD had te rminated the c ontrac t for the Iraq Stability Prog ram a

nd would no longe r nee d Gra nt Thornton’s ser

vices a fter Ma

rch 29, 2010. Scott King , a GPS Partner, c ommunicated this news to the entire Iraq Stability Team at 8:28 p.m. on March 10, a nd told them that Ms. Garman would be mee ting with HR in the morningand then c ontactingeac h employ ee “ with instructions” about their future at the compa

ny . Def .’s SOF ¶ 124. On the af ternoon of Ma

rch 11, Mor g an King horn, Chief Ope ratingOffic er of

-4-Gra

nt Thornton, instructed Cathy Carney -Peters, he ad of H uman Resourc es, re g ardingemploy ees aff ecte d by the termination of the pr og ram: For those employ ees hire d specific ally for this eng ag ement: def

ault, remove . For

other e mploy ees, ba sed on per formanc e, etc ., if no issues, g ive them 30 day s to ge t fully billable; if not remove . . . . We simply cannot a ffor d to keep f

olks in [ I ]nt ernational unless there is a sig nificant rea son; and no one that doe s not have billable wor k. SOF ¶¶ 126-127. Also on Marc h 11, 2010, duringa leng thy transition meetingdealing with the end of the Iraq Stability

Prog ram, Ms. Carne y -Peters a nd GPS leadership discussed pla ns for downsizi ng the Interna

tional Division and, specifica lly , those twenty -odd GPS employ ees who would be af

fec ted. At the end of

the meeting , Mr. Hopkins was pr eliminarily slated for termination as of Ma

rch 16, 2010. The pa

rties dispute whethe r Mr. Hopkins had be en “on the 3 bench” for a

continuous amounts of time betwee n the end of 2009 and beg inning of

2010, but

can a g ree that Mr. Hopkins was on a nd off pr ojects at this time. I t is undisput ed that Mr. Hopkins did not work over 90 c harg eable hours in any month between N ovember 2009 and Marc h 2010. I n addition, Mr. Hopkins was “on the bench” as of F ebrua ry 23, 2010 and could not find place ment on a cha

rg eable projec t. No work mate rialized for Mr. H opkins after this date, and Ms. Canter g ave f

inal authorization to terminate Mr. Hopkins on Mar ch 15. The e ntire GPS I nternational Division was dissolved as a re sult of the termination of the Iraq Stability

Prog ram. Gr ant Thornton made the business dec ision to wit hdrawfrom simil ar inter

national work. A

pproxi mately

50 employ ees w ere terminated dur ing the spring and

Mr. Hopkins disputes this fact, stating that he “w as cle arly terminated w ithout any 3 notice bec ause he reque sted [FML A] leave.” Pl’s Resp. to Def.’s L ocal Rule 7(H ) Statement of Materia l Fac ts [ Dkt. # 36] ¶ 131. However , he does not dispute that he w as slated f or termination at this time. -5-Ms. Canter, the he ad Partne r in the Division, was involuntarily terminated f

rom Gra nt Thornton in J uly

. After

the announc ement that the Iraq Stability Prog ram wa s officia lly

canc elled, Mr. Hopkins contac ted Kar en L . Campbell, an HR Mana g er, e arly in the morningon Marc h 11 and aske d to meet with her. Mr . Hopkins discussed his poor per formanc e on the WHS Project with Ms. Campbell. He a lso commented that “the issues . . . were transpiringin [ his] life,” 4 including the loss of a collea g ue and pr oblems in a persona l relationship. Def .’s SOF ¶ 189. Ms. Campbell noted that Gra

nt Thornton offe red va

rious benef

its that mi g ht help Mr. Hopkins, such as paid time off

, short-term disability , and leave under the Fa mily and Medic al L eave Act (“F ML A”) . The e x act nature of this discussion is contested – Mr. Hopkins say s that he “re quested” FMLA leave at the time and Ms. Campbell say s that FMLA leave was only one potential benef

it that was mentioned – but the par ties ag ree that Ms. Campbell therea fter se nt an email to Mr. Hopkins with an F ML A informational pa cket a nd application for

m. Pl.’s S OF ¶

¶ 4- 5; Def.’ s SOF ¶¶

196-198. Ther e is no dispute conce rning GPS’s normal policy by which HR avoids specif

ic discussion of FMLA leave until an employ ee submits an applica tion and medical

cer tification, which a llows evaluation of whe ther the e mploy ee qua lifies for suc h leave . Mr. Ms. Campbell reporte d to Ms. Canter that she met with Mr. Hopkins on Mar ch 11, 4 2010, and that he w as conc erne d that a Gr ant Thornton mana g er, c onsideringhim for work on a new pr oject, had a sked him about his “poor rating” on the WHS project. Pl.’s Opp.’n To De f.’s Mot. for Summ. J . Ex . 2 [Dkt. # 36-1] at 2. Ms. Campbell noted that Ms. Canter wa s “not opposed to Rich workingon this new eng ag ement . . . and w e would also support it.” Id. L ater on Marc h 11, howeve r, Ms. Campbell repor ted to Ms. Canter that the mana g er on the potential new pr oject for

Mr. Hopkins “ha s now cha ng ed her mind about Rich beca

use he w ould be the only GT staff ‘on the g round,’ [dealingon-site with the client] on this enga g ement and [she] feels nervous a bout that.” Id. at 1. In response , at 4:54 pm on March 11, Ms. Cante r direc ted, “I am afr aid we ne ed to g ive him notice of ter mination.” Id. At this ti me, Ms. Canter did not know that Mr. Hopkins had be en provide d an F ML A application. -6-Hopkins knew that he neede d to complete the f orms befor e he c ould be appr oved for FML A leave . SOF ¶¶

199-200. Mr. Hopkins asse rts that he wa s entitled to 15 day s within which to return his medic al provider cer tification under f

eder al re g ulations. Pl .’s SOF ¶ 5; see29 C.F.R. § 825.305(b). Ms. Campbell and Mr. Hopkins had a nother c onversation on March 16, 2010, a nd Ms. Campbell asked Mr. Hopkins if he had located any billable work. He explained that he had made e ffor

ts and was hope ful something w ould come through, but nothing had materialized as of y et. Ms. Campbell informed Mr. H opkins that HR had attempted to locate work for him but was not succe ssful. She then told him t hat he wa s terminated f or lac k of work, tha

t he was e ligible for r ehire , that he would re ceive four we eks of se vera nce pa y , leave time, and that he would

rec eive be nefits throug h the end of the month. His termination was ef fec tive as of Ma

rch 16, 2010. As a re sult, Mr. Hopkins did not receive two-we eks’ notice in March that he would be terminated in the f

uture, a lthough he did rec eive f our-we eks’ se vera

nce pa y and hea lth insurance throug h the end of

Marc h 2010. As a re medy , Mr. Hopkins demands damag es base d upon lost wag es and be nefits.

II. LEGAL STANDARD Under Rule 56 of the F eder al Rules of Civil P roce dure, summar y judgme nt shall be g rante d “if the mova

nt shows that there is no g enuine dispute a s to any materia l fac t and the movant is entitled to judgeme nt as a matter of law.” F E D . R. C I V . P. 56(a); Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247 (1986); see also Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986); Diamond v. Atwood , 43 F.3d 1538, 1540 ( D.C. Cir. 1995). To deter mine which fa cts are “mater ial,” a c ourt must look to t he substantive law on which ea ch cla im rests. Anderson , 477

-7-U.S. at 248 (1986). “ [S ]um mary judgme nt will not l ie if the dispute about a materia l fac t is ‘g enuine,’ that is, if the evidenc e is such that a r easona ble jury could re turn a ve rdict for the nonmoving pa

rty .” Id

. Moreove r, summary

judgme nt is properly

g rante d ag ainst a par

ty that “af ter adequate time for discove ry and upon motion . . . fails to make a show ing suf ficient to establish the exist ence of an e lement essential to that par ty ’s ca se, and on which that par ty will bear the burden of proof at trial.” Celotex , 477 U.S. at 322. III. ANALYSIS Mr. Hopkins claims that his rig hts have be en violated, a s g uara nteed by fede ral law under the FMLA, 29 U.S.C. § 2601, and its local counter part, the D istrict of Columbia Family Medica l L eave Act (“ DCFMLA”) , D.C. Code §32-501, et seq . First, Mr. Hopkins a lleg es that his termination on Marc h 16, 2010 was in direc t reta liation for his Marc h 11 reque st for lea ve under the FMLA. Am. Compl., Count One. Second, he a lleg es that his termination was “ discriminatory” bec ause it interf ere d with his FML A rig hts. Id ., Count Two. Third, he alleg es that his termination interfe red w ith his rights under the FMLA “be cause he wa s entitled to request lea ve without interfe renc e fr om the company .” Id. , Count Three. F inally , he asse rts the same violations under the DCFML

A. Id. , Counts Four, F ive and Six

. A. Mr . Hopk ins’ Claims under the F MLA Fe dera l law provides that a n “elig ible employ ee” may be entitled to twelve w eeks 5 Havingworke d at least 1250 hours w ithin the 12 months prec edinghis termination, Mr. 5 Hopkins was an “ elig ible employ ee” entitled to FMLA leave if he ha d a “se rious medical condition” as de fined by

the law a nd prec edent. See29 U.S.C. § 2611(2); Id . at § 2612(a )(1) (D).

-8-of unpaid lea ve duringany

twelve- month period if a “ serious hea lth condition” preve nts him from per forminghis job functions. 29 U.S.C. § 2612(a)(1)( D). Mr. H opkins has two rele vant claims under the FMLA:

The FMLA cre ates two ty pes of claims: interfe renc e claims, in which an employ ee asser

ts that his employ er denied or otherwise interfe red with his substantive rig hts under the Act, see 29 U.S.C. § 2615(a) (1), and reta liation claims, in which an employ ee asser ts that his employ er discriminated ag ainst him beca use he eng ag ed in activity protec ted by the Act, see 29 U.S.C. § 2615(a) (1) & (2); 2 9 C.F.R. § 825.220(c)

.

. . . 6 Strickland v. W

aterworks and Sewer Bd. of the City of Birmingham , 239 F.3d 1199, 1206 ( 11th Cir. 2001); see also Roseboro v. Billington , 606 F.Supp.2d 104, 107 (D.D .C. 2009) (discussing reta liation claims as those only under § 2615( a)( 2)). Prohibited retaliatory

conduct unde r the F ML A includes: 1) unde r 29 U.S.C. § 2615(a) (1) “ the Act' s prohibition aga inst ‘interfer ence ’ prohibits an employ er f rom discriminating or

reta liating a g ainst an employ ee or prospec tive employ ee f

or havingexercised or Mr. Hopkins prese nts evidence that he wa s diag nosed with depre ssion, stress, and anxiety prior to March 11, 2010. G rant Thor nton challeng es the suff

iciency of this evidence and notes that, in any event, it was ne ver submitted to the company . Mr. Hopkins conc edes that his medical cer tification was ne ver submitted to Gra nt Thornton. Instead, his ar g ument rests on the fa ct that he wa s discharg ed bef

ore the end of a

15-day period in which to submit such documentation, which, he a

rgues, both interfe red w ith his FMLA rig hts and discriminated/re taliated ag ainst him beca use he r equeste d FMLA leave . The que stion of whether Mr. Hopkins ac tually

suffe red f

rom a ser ious medical condition will not be resolved by the Court and it will assume that, put to the proof, Mr. H opkins could satisfy this fundamental re quirement of the statute. As a r esult, this particula r fa ct dispute, althoug h materia l in other ca ses, is not material her e and ne ed not prec lude summary

judgme nt. Whil e the text of the FMLA does not cle arly label these two claims as ones f or 6 “re taliation” and f

or “inter fer ence ,” “those are the labels c ourts have use d in describingan employ ee’ s conduct unde r the Ac t.” Strickland , 239 F.3d at n.9. As such, the ter m retaliation will be used in this opinion t o descr ibe prohibited discriminatory or re taliatory

conduct unde r the Act, whe ther it is under § 2615(a )(1) or § 2615(a )(2)

. -9-attempted to exercise F ML A rig hts,” see29 C.F.R. § 825.220(c) ; and 2) unde r 29 U.S.C. §

2615(a) (2) a

n employ er is prohibited fr om “dischar g [i ng ] or in any other manne r discriminat[ing] ag ainst any

individual for opposing any prac tice made unlawful by [t he F ML A]” meaningthat “[i] ndividuals ... are pr otected f rom reta liation for opposing(e.g ., filing a complaint about) a

ny prac tice which is unlaw ful under the [FML A],” 29 C.F.R. § 825.220(e)

. See also Strickland , 239 F.3d at 1206 (explaining employ ee’ s retaliation cla im under 29 U.S.C. § 2615(a)( 1)); Deloatch v

. Harris Teeter, Inc ., 797 F. Supp. 2d 48, 67 (D.D .C. 2011) (explaining individual’s re taliation claim under

29 U.S.C. § 2615(a)(2) ). 1. “Discrim ination ” Claim – Count II Mr. Hopkins adva

nces both a

“discrimination” a

nd a “r etaliation” c laim, based on the same f

act pattern. SeeAm., Compl. C ount 1, ¶ 32 (“Plaintiff suff ere d an adve rse employ ment action, name ly

Plaintiff was terminate d beca use he r equeste d FMLA leave ”); Id . at Count 2, ¶ 39 (“Plaintiff re quested F ML A leave and by virtue of ter

minating Plaintiff, Def endants did substantially

and willfully

discriminate ag ainst Plainti ff by interfe ring with Plaintiff’s FMLA rig hts.”). Mr Hopkins notes that the te rms discrimination and re taliation are used interc hang eably

in local ca se law unde r the DCF ML A. See W ashington Convention Ct r. Auth. v. Johnson , 953 A.2d 1064, 1075-76 (D .C. 2008); Hamilton v. Howard Univ. , 960 A.2d 308, 317 (D.C. 2008). He arg ues that since G rant Thor nton chose to file a

n Answer and did not move to dismiss either his re taliation or discrimination claims, he ca n proce ed her e on both. Not so. There is no alleg ation that Mr. Hopkins opposed any prac tice made unlawful unde r the FMLA and wa s retaliate d ag ainst on those g rounds. Mr. Hopkins’ c laim in Count 2 for “discrimination” is esse ntially the same c laim he makes in Count 1 for “ reta liation” for

-10-attempting to e x erc ise his FMLA rights. Consequently , Count 2 of the Amended Complaint will

be dismissed. 2. “Ret aliation” Clai m - Count I

Mr. Hopkins alleg es that the ter mination of his employ

ment violated the F ML A beca use he w as terminate d in retaliation for his request for

FMLA leave . Claims of retaliation under the FMLA ar e ana ly zed under the bur den-shiftingframework a dopted in McD onnell Douglas Corp. v. Green , 411 U.S. 792 (1973). See R oseboro , 606 F. Supp. 2d at 109. Unde r that burden- shifting f

rame work, an employ ee ma

y establish a prima f

acie case cre ating a presumption of re taliation by showing (1) that he exercised r ights aff orded by the [FML A], (2) that he suff ere d an adve rse employ ment action, and ( 3) that there was a causa l connec tion betwee n the exercise of

his rights a

nd the adve rse e mploy

ment action. Id . (citation omitted). “I f a pr ima fac ie ca se is established, the bur den then shifts to the def endant to overc ome this presumption by proff eringa leg itimate basis for this adver se ac tion, and then the burde n shifts back to a pla intiff to show that the proff ere d rea son is pretextual.” Dorsey v

. Jacobson H

olman , PLLC , 756 F. Supp. 2d 30, 37 (D.D .C. 2010) (citing Roseboro , 606 F. Supp. 2d. at 109). I n order

to find that Mr. Hopkins has made a prima f acie case , the Court will assume that Mr. Hopkins re quested F ML A leave in his discussion wit h Ms. Cambell and, thus, eng ag ed in protec ted ac tivity on Marc h 11, 2010 under the Act. See Skrjanc v . Great Lake Power Servic e Co , 272 F.3d 309, 314 ( 6th Cir. 2001) (findingnotification to an employ er of the intent to or a re quest for le ave to be protec ted ac tivity). Mr. Hopkins ce rtainly experience d an

-11-adver se employ ment action whe n he wa s terminated on Ma rch 16, 2010. The short period of time betwee n his protected a ctivity and his termination lend support to the ar g ument that the former was the ba sis for the latter

. See Clark Cnty. Sc hool Dist. v. Breede n , 532 U.S. 268, 273 (2001) ( causa l connec tion may be esta blished when time “ve ry

close” ). I t is also noteworthy that Ms. Campbell, with whom he had the discussion about F ML A leave , is also the individual who delivere d the termination messag e. Unde r this set of fa cts, Mr. Hopkins establishes a prima fa cie

case of re taliation.

Even so, Gr ant Thornton pre sents a leg itimate, non-reta liatory rea son for its decision to dischar g e Mr. Thor nton on March 16, 2010: 1) he had be en insuffic iently billable for months; 2) he had no re al prospec ts of future billable w ork, espe cially g iven his failure on the WHS P rojec t; and 3) DoD shut down the I raq Stability

Project on which he – and many others – had bee n workingso that he – and ma ny others – we re te rminated. Mr. Hopkins cha lleng es the immediac y of his discharg e without two wee ks’ prior notice. Howe ver, he had bee n repe atedly advised that he neede d to find new wor k to retain his position and, most particularly , had bee n told of his impending discha rg e in J anuar

y 2010, if he did not find new work. A t that time, Mr. Hopkins succee ded in joining the WHS Project, but his

succe ss was short-lived a nd the Project mana g ers let him g o within three we eks. Undoubtedly this was a kind of “ perf

ect storm” f

or Mr. Hopkins per sonally : he lost the secur ity of work on the Iraq Stability

Project, he lost a c olleague, and he lost an important personal r elationship at approximately

the same time. The rea sons for his distress and a nx iety may be obvious. So too, howeve r, ar e the a dvance notices he r ece ived offic ially and in counse ling that his job was a t risk. There is no evidence that the lack of an additional two-w eek notice befor e ter mination in March -12-2010 was tied to re taliation for havingsoug ht unpaid leave under the FMLA. Mr. Hopkins does

not respond to this defense in his cross motion for summary judgme nt, but challeng es it as prete x tual in opposing Gr ant Thornton’s motion for summary judgme nt. Be fore analy

zing the alleg ed pre text , the Court notes that Mr. Hopkins has admitted that the re ason for his discharg e wa s “compa ny cuts.” Pl.’s Mot. for Summ J ., Ex . M [Dkt. # 33-1] at 165 (De position of Erin Baker) . Mr. Hopkins saw a phy sician’s a ssistant, Erin Ba ker, in late winter 2010 c oncer ning his a nx iety . Ms. Baker sa

w Mr. Hopkins sometime bef ore Fe bruar y 23 and on F ebrua

ry 23, Marc h 10, and Mar ch 29 in that y ear . More c ritically , when questioned by

Mr. Hopkins’ counse l duringher de position, Ms . Ba ker ve rified the a ccur acy

of her note s which unequivoc ally stated that Mr. Hopkins told her that he was te rminated be cause of reduc tions in force, not re taliation:

Q. You mentioned a lso when re fer ring to Ex hibit 6 that Mr. Hopkins told y ou something a bout company

cuts? A. Yes. Q. Did he tell you if that was the r eason the company g ave him for firinghim or if that was wha t he believe d the re ason for firinghim was? A. He be lieved the r eason f or firinghim was company cuts. Q. Was he informe d by

the company

that he wa s fired f

or company cuts? A. That I don’t know. Q. So he ac tually

told y ou “I

believe I was fir ed for

company cuts”? A. Yes. Pl.’s Ex . M, at 165-66. Counsel’s ar g ument conce rning prete x t is significa ntly underc ut by

this contempora

neous statement by

Mr. Hopkins attributing his discha rg e to re ductions in force , which is exactly

the re ason g iven by

Gra nt Thornton. I n consideringMr. Hopkins’ conte ntion that Grant Thornton ha s no leg itimate -13-defe nse to his retaliation cla im, the Court notes that the test is “whether [he] produce d sufficie nt evidenc e for

a re asonable jury

to find that the employ er’ s asserte d non-discriminatory rea son was not the actua l rea son and that the e mploy er intentionally [retaliated] ag ainst the plaintiff on a prohibited basis.” Cooke v . Rosenke r , 601 F. Supp. 2d 64, 73 (D.D .C. 2009) (quotingAdey emi v. Dist. of Col umbia , 424 F.3d 1222, 1226 ( D.C. Cir. 2008)).

First, Mr. Hopkins c ites the short time period betwe en his conve rsation with Ms. Campbell conce rningFMLA leave on Marc h 11, 2010, and his offic ial discharg e on Mar ch 16, 2010. This timi ngis not determinative in light of the pre -existi ng decline in wor k under the Iraq Stabilit y Project and the formal a

nd informal wa

rning s of job loss that Mr. Hopkins rece ived befor e Mar ch 16, 2010.

Next, Mr. Hopkins states that beca use the De fenda

nt has provided thre e diffe rent

rea sons for his termination, “a lack of billable work, poor pe rfor mance , and a de partmenta l shutdown” his termination is suspicious. P l.’s Mem. in Opp’n to Def .’s Mot. For Summ. J . [Dkt. # 36] at 14. However , they are , in fac t, one and the sa me: without work, Gra

nt Thornton does not employ

consultants. Mr. Hopkins did not have wor k, had not had suff

icient work in months, and had no pr ospect for

obtaining w ork within the company

. Mr. Hopkins also alleg es disparate treatment beca use he w as not provided with notice prior to his termination, whe rea s other employ ees w ere . I f this alleg ation is true, it does not particular ly

point to any

discriminatory

motive in light of the fa ct that the Iraq Stability Project wa s endingthe same month that Mr. Hopkins wa s terminated f rom employ

ment. Mr. Hopkins also cites to various e -mails, which he c laims show that there w ere unusual circ umstances r eg ardinghis firing . Howeve r, these e -mails do not cast any question upon the -14-rea son for Mr. H opkins’ termination. Fina lly , Mr. Hopkins alleg es that Gra nt Thornton was hiring at the time of his termination. This ag ain is of no conse quence ; a company may be experiencingissues and nee d to make cuts in one a rea of its business while needing to fill positions for another a

rea or sea rchingfor e mploy ees w ith a differ ent skill set. Mr. Hopkins’ pre text claim has no mer it. He admitted that “c ompany cuts”

cause d his termination. I n addition, the rec ord evide nce is c lear that (1) Gr ant Thornton lost work unde r the Iraq Stability Project contra ct over

the per iod from August 2009 to March 2010; (2) ove r the same months, Mr. Hopkins was unable to find c onsultant work within Grant Thornton to keep himself a dequate ly billable; (3) Mr. Hopkins wa s warne d officia lly and informally

since at least J anuar

y 2010 that his job was in jeopardy without new work; a

nd (4) the termination of the c ontrac t for the I raq Stability

Project ca

used a r eduction in forc e that re sulted in the termination of 50 or more consultants and at lea st one partne r at Gr ant Thornton, not just Mr. Hopkins. The Court will g rant summary judgme nt in favor of

Gra nt Thornton on Count 1, reta liatory

discharg e for

exercising FMLA rig hts. 2. Interfere nce Claim – Count III Relying on the FMLA re g ulation at 29 C.F.R. § 825.305(b), Mr. Hopkins argues 7 This regulation provides that: “In most cases, the e mploy er should re quest that an 7 employ ee f

urnish cer tification at the time the e mploy ee g ives notice of the need f or leave or within five business day s therea fter, or , in the case of unfor esee n leave , within five business day s afte r the lea

ve commenc es. The e mploy er ma y reque st certific ation at some later date if the employ er la

ter ha s rea son to question the appropriateness of the leave or its duration. The employ ee must provide the re quested c ertification to t he em ployer within 15 calendar days after the employ er's request , unless it is not prac ticable unde r the pa rticular c ircumstance s to do so despite the e mploy ee' s diligent, g ood faith ef forts or the e mploy er pr ovides more than 15 -15-that Gra

nt Thornton was re quired to g ive him 15 day s to present medic al documentation after his reque st for F MLA leave and that his dischar g e duringthat time interfer ed with his rig hts. He cites multiple cases f

or the proposition that an a dverse action duringthat short period may interfe re w ith FML A rig hts despite the lack of substantiated proof of

a ser ious medical condition. The Court does not quibble with the princ iple, but it is inapplicable he re.

Rights to FMLA leave – whether in the application phase , medical c ertification phase, or off- work pha se – do not protec t an employee’ s job ag ainst a leg itimate, unrelate d,

rea son for sepa

ration fr om employ

ment. Thus, employ ers’ bankruptc ies, g oings- out-of-business, loss-of-c ontrac ts, and other e vents have just as much impact on the employ ee w ith FML A rig hts as on his co-w orker s. See Sm ith v. Diffee Ford-Lincoln-M ercury , Inc. , 298 F.3d 955, 961 ( 10th Cir. 2002) (“[A]n employ ee ma y be dismissed, preve nting he r fr om exercising he r statutory rig ht to FMLA leave — but only if the dismissal would have occ urre d reg ardle ss of the employ ee' s reque st for or takingof F ML A leave .”); Edgar v. JA C Products, 443 F.3d 501, 508 ( 6th Cir. 2006) (“ [I ]nt erf

ere nce w ith an employ ee' s FMLA rig hts does not constitute a violation if the employ er ha s a leg itimate rea son unrelate d to the exercise of FML A rig hts for eng ag ing in the challeng ed conduc t.”); Sarnowski v. Air Brooke Limousine, Inc ., 510 F.3d 398, 403 ( 3d Cir. 2007) (“ [T] he F ML A does not provide e mploy ees w ith a rig ht ag ainst termination for a rea son other than inter fer ence with rig hts under the F ML A.”) ; see, e .g. Throneberry v . McG ehee Desha Cnty. Hosp ., 403 F.3d 972, 977, 980 ( 8th Cir. 2005) (“The FMLA simply does not forc e an employ er to re tain an employ ee on F ML A leave when the e mploy er w ould not have re tained the

cale ndar da

y s to return the r equeste d cer tification.” 29 C.F.R. § 825.305(b) (empha sis added). -16-employ ee ha d the employ ee not be en on F ML A leave . . . [An] example of an e mploy er' s lawful

ability to interfer e with an e mploy ee' s FMLA leave rig hts might be whe n an employ er g oes out of business while an e mploy ee is on F ML A leave .”); Y ashenko v . Harrah’s NC Casi no Co. , LLC , 446 F.3d 541, 547 ( 4th Cir. 2006) (same) ; Grubb v. Southwest Airlines , 296 Fe d. Appx. 383, 391 (5th Cir. 2008) (same ); Cracco v. V itran Express, Inc ., 559 F.3d 625, 636 ( 7th Cir. 2009) (same)

. The many courts that have considere d this iss ue have rea ched this same conclusion throug h their re adingof 29 C.F.R. § 825.216(a ), which pr ovides “[a]n employ ee ha s no g reater rig ht to reinstatement or to other benef its and conditions of employ ment than if the employ ee ha d been c ontinuously employ ed duringthe FMLA leave period. An e mploy er must be able to show that a

n employ ee w ould not otherwise have been e mploy ed at the time reinstateme nt is requested in orde r to deny restoration to employ

ment.” 29 C.F.R. § 825.216(a ). Relying on this text, t he Courts of Appe als for the Eig ht, Ninth, and Tenth Circuits have conclude d that an employ er ha s the burden of proving that an employee dismissed duringFMLA leave would have be en dismissed reg ardle ss of the employee’ s reque st for leave. Smith , 298 F.3d at 963; Sanders , 657 F.3d at 780; Throneberry , 403 F.3d at 989. In this circumstance , if the burden is on Gr ant Thornton to show that it had a le g itimate rea son, unrelate d to the exercise of FMLA rig hts, to terminate Mr. Hopkins, it has met this burden.

Mr. Hopkins was a

n at-will employ ee who could be discha rg ed at a ny time and for a ny rea son as long as the re ason wa s not ill eg al. Gra nt Thornton responds with the same leg itimate, nondiscriminatory rea son for its discharg e dec ision: Mr. Hopkins had no consulting work, ha d not had suffic ient billable consulting w ork in months, and had no prospe ct of sufficie nt billable consulting wor k beca use the I raq Stability

Project wa s terminated. -17-Mr. Hopkins prese nts a simple syllogism: he “w as g iven the medica l cer tification on Marc h 11, 2010 alongwith 15 day s to complete it, y et he wa s terminated only five da y s later on Marc h 16, 2010 . . . . Acc ording ly , Def endant inter fer ed with [his] FMLA rig hts.” Pl.’s Mem. of P. & A . in Supp. of Mot. S umm. J . [Dkt. # 33] at 8-9. While the log ic of the sy llogism appea rs sound, its conclusion fails in the fac e of G rant Thor nton’s leg itimate, non-discriminatory

rea son for the discha

rg e. The Court will g rant summary judgme nt in favor of

Gra nt Thornton on Count Three , interfe renc e in violation of the F ML A.

B. DCF MLA Claim s – Counts IV, V & VI Mr. Hopkins was of

fer ed employ

ment with Grant Thor

nton’s GPS divi sion “for the position of Senior Consult ant base d in [ its] Alexandria, Virg ina offic e.” H e mostly worke d for the G PS Divi sion of Gra nt Thornton in Virg ina and a broad in Iraq. I

t is undisput ed that while Mr. Hopkins was e mploy ed with Gra nt Thornton, he “did not spend more than 50% of his workingtime within the District of Columbi a.” D ef.’ s SOF ¶ 163. How ever , he did work on one projec t in the District, for six months from 2007 to 2008, and ag ain for a pproxi mately

six wee ks in the fall of 2009. F or most of his employ ment, he wa s based in either in Iraq or in Virg inia. Ba sed on his employ

ment history , Mr. Hopkins is not an employ ee tha t is eligible for

cover ag e under the DCFMLA.

The DCF ML A provides c overa g e to employ ees who work in the District. On November

19, 2010, the District of Columbia Offic e of H uman Rights (“ OHR”) a dopted a regulation stating that in orde r to be e ligible f or DCFMLA bene fits, an individual must spend more than 50% of his work time workingfor a n employ er in the D istrict. 4 D.C. Mun. Regs § -18-1603.5. Prior to that, the then D.C. Depa rtment of Human Rig hts, in a Notice of F inal Rulemaking , stated that the Ac t applied to employ ees “ in the District of Columbia.” 38 D.C.R. 8 4350 (Jul y

12, 1991). Whil e Mr. Hopkins c erta inly worke d in the District of Columbia for per iods of time, he was not a

n employ ee in the D istrict. He wa s hired to work out of G rant Thor nton’s Alexandria, Virg inia office and spent less than 30% of his time in the District. For the y ear leadingup to his termination, there is only a re cord of

six wee ks that he spent wor king in the District. This hardly

qualifies him as an e mploy ee in the D istrict of Columbia. Mr. Hopkins cites to a pr oposed D.C. re g ulation that would have pr ovided DCFMLA cove rag e for

those employ ees w orking within 75 mil es of the D istrict. Howeve r, this regulation was re

jected. Pl.’s Mem. of P. & A. in Supp. of Mot. for Summ. J . [Dkt. # 33] at 4. Mr. Hopkins ca

nnot attempt to ex pand the c overa g e of this Act ba sed on a r egulation that never took force

. The DCF ML A simply does not apply

to Mr. Hopkins. For this re ason, Counts Four , Five a

nd Six will be dismiss ed. IV. CONCLUSION Mr. Hopkins rea ds the law, the F MLA/DCFMLA re gulations, and his own situation in bl ack a

nd white, supportinghis claims to interfer ence and re taliation. He ig nores the larg er pic ture of c ommercia l events within Grant Thor nton where by

the loss of the contra ct for

Def endant’ s Counsel has provided a copy of these r egulations in their Opposition t o 8 Plaintiff’s Motion for Summary J udg ment, Dkt. # 34-1. The Court take s judicial notice of the copy of the re g ulations provided by counsel. -19-the Iraq Stability Project led to larg e re ductions in force , including the involuntary depar ture of a Gra nt Thornton partne r. The F ML A rig hts he claims ca nnot withstand the forc e of the larg er events. For

the re asons stated, De fenda nt’s Motion for Summary J udg ment, Dkt # 32, will be g rante d and Plaintiff’s Motion for Summary J udg ment, Dkt. # 33, will be denied. Gr ant Thornton International will also be dismis sed. A memoria liz ing O rder acc ompanies this Memorandum Opinion.

Date: Ma rch 31, 2012 /s/ ROSEMARY M. COL L YER United States District Court

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