NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

DEBRA NICHOLL-KENNER,

 Plaintiff,

 v.

LAWRENCEVILLE UROLOGY, P.A., 

et al.,

 Defendants.

 CIVIL ACTION NO. 11-195 (MLC)

 MEMORANDUM OPINION

COOPER, District Judge

The plaintiff, Debra Nicholl-Kenner (“Kenner”), commenced 

this action against the defendants, Lawrenceville Urology, P.A. 

(“LUPA”), Premier Urology Associates, LLC (“PUA”), and Julie 

Prettyman (“Prettyman”) (collectively, “Defendants”). (See dkt. 

entry no. 1, Compl.) Kenner seeks damages under the Fair Labor 

Standards Act, 29 U.S.C. § 201, et seq. (“FLSA”), the New Jersey 

Wage and Hour Law, N.J.S.A. § 34:11-4.1, et seq. (“NJWHL”), the 

Family and Medical Leave Act, 29 U.S.C. § 2601, et seq.

(“FMLA”), and the New Jersey Law Against Discrimination, 

N.J.S.A. § 10:5-1, et seq. (“NJLAD”). (Id.)

Kenner moves for summary judgment (“the Motion”) with 

respect to her FLSA and NJWHL claims (“Overtime Claims”), on the 

issue of liability. (Dkt. entry no. 20, Motion.) Defendants 

cross-move for summary judgment with respect to Kenner’s 

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interference claim under the FMLA (“Interference Claim”), her 

discrimination claim under NJLAD (“Discrimination Claim”), and 

her retaliation claims under both the FMLA and NJLAD 

(“Retaliation Claims”). (Dkt. entry no. 23, Cross Motion.) 

The Court will resolve both the Motion and Cross Motion 

without oral argument pursuant to Local Civil Rule 78.1(b).

I. Background

Kenner was hired by and worked as a certified research 

coordinator (“CRC”) for the Advance Med Research (“AMR”) 

division of LUPA. (Dkt. entry no. 29-2, Kenner Dep. at 50-51, 

55; dkt. entry no. 29-3, Prettyman Dep. at 6-7, 12.) LUPA 

merged with several other practices and, in February of 2010,

became a part of PUA. (Kenner Dep. at 64; dkt. entry no. 22-2, 

Milstein Cert., Ex. J, Karlin Dep. at 6.) PUA continued to 

employ Kenner in the AMR division. (Prettyman Dep. at 6-7.) 

During her tenure with both LUPA and PUA, Kenner was supervised 

by Prettyman. (Kenner Dep. at 58; Prettyman Dep. at 10-11; 

Karlin Dep. at 8, 35.)

Kenner required surgery in 2010, and thus asked for and was 

granted approval for eight weeks of FMLA leave. (See Kenner 

Dep. at 67-69; Prettyman Dep. at 41-43; dkt. entry no. 29-4, Wye 

Dep. at 15, 37-38, 41.) Kenner ultimately took a total of 

twelve weeks’ leave because she required additional and

unforeseen surgery. (Kenner Dep. at 69-70; Prettyman Dep. at 

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42.) She returned to work in September of 2010. (Kenner Dep. 

at 74-75.)

PUA terminated Kenner’s employment in November of 2010, 

approximately eight weeks after she returned from FMLA leave. 

(Kenner Dep. at 75; Prettyman Dep. at 43.) Both Prettyman and 

Dr. Gary S. Karlin, the doctor who oversaw the AMR division and 

served as President of PUA, testified at their respective 

depositions that the decision to terminate Kenner was based on: 

(1) a prolonged lack of enrollment in AMR studies, which led to 

decreased revenue from the AMR division; and (2) Kenner’s lack 

of seniority, as compared with other AMR CRCs. (Prettyman Dep. 

at 12, 14-15, 50; Karlin Dep. at 20, 43, 53-54.)

II. Standard of Review

The Court must grant summary judgment if the moving party 

shows both that there is no genuine dispute as to any material 

fact and that the moving party is entitled to judgment as a 

matter of law. Fed.R.Civ.P. 56(a). The Court, in deciding a 

motion for summary judgment, must construe the facts and 

inferences in the light most favorable to the nonmoving party.

Pollock v. Am. Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d 

Cir. 1986). After making all reasonable inferences in the 

nonmoving party’s favor, a genuine issue of material fact exists 

if a reasonable jury could find for the nonmoving party. 

Pignataro v. Port Auth., 593 F.3d 265, 268 (3d Cir. 2010).

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“‘With respect to an issue on which the nonmoving party bears 

the burden of proof, the burden on the moving party may be 

discharged by ‘showing’ -- that is, pointing out to the district 

court -- that there is an absence of evidence to support the 

nonmoving party’s case.’” Conoshenti v. Pub. Serv. Elec. & Gas 

Co., 364 F.3d 135, 145-46 (3d Cir. 2004) (citation omitted).

The Court, during summary judgment proceedings, is not 

tasked with “weigh[ing] the evidence and determin[ing] the truth 

of the matter[s]” raised in the Complaint and referenced in the 

parties’ motions. Anderson v. Liberty Lobby, Inc., 477 U.S. 

242, 249 (1986). The Court, instead, is tasked simply with

determining “whether there is a genuine issue for trial.” Id.

III. The Motion

Kenner asks the Court to enter judgment in her favor and 

against Defendants with respect to her Overtime Claims, on the 

issue of liability. (See generally dkt. entry no. 19, Kenner 

Br.) She specifically asks the Court to resolve three issues in 

her favor, i.e.: (1) whether Kenner meets the basic requirements 

for relief under the FLSA and NJWHL (“Overtime Laws”); 

(2) whether, as Defendants assert, Kenner is an “exempt 

employee”, i.e., an “administrative” or “professional” employee 

who is not entitled to relief under the Overtime Laws; and 

(3) whether the Court may, at this juncture, find Prettyman 

individually liable. (Id.)

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A. Kenner Satisfies the Basic Requirements for Relief 

under the Overtime Laws

Neither Kenner nor Defendants have explicitly or directly 

addressed whether Kenner meets the basic requirements for relief 

under the Overtime Laws. They appear instead to assume that she 

meets those requirements. (See id. (addressing issues relating 

to exemption without first addressing basic requirements); see

dkt. entry no. 22-2, Defs.’ Opp’n Br. (same).) 

The Overtime Laws generally ensure that employees who work 

more than forty hours per week (“Overtime”) receive Overtime pay 

equal to at least one and one-half times their regular hourly 

wage. 29 U.S.C. § 207(a) (requiring Overtime pay equal to at 

least one and one-half of an employee’s regular hourly wage); 

N.J.S.A. § 34:11-56a4 (requiring Overtime pay equal to one and 

one-half of an employee’s regular hourly wage).1

 1 The NJWHL mirrors the FLSA in most respects. See, e.g., 

N.J.A.C. § 12:56-7.2 (“the provisions of 29 CFR [sic] Part 541 

are adopted herein by reference”); Garcia v. Freedom Mortg. 

Corp., 790 F.Supp.2d 283, 288 n.7 (D.N.J. 2011) (“The NJWHL is 

patterned after the FLSA, and New Jersey courts look to the FLSA 

for guidance.”) It is thus appropriate to examine the Overtime 

Claims under federal law. (See id.) 

 It appears that 

the parties agree that Kenner was an employee, that LUPA and PUA 

were employers, and that Kenner worked more than forty hours per 

week. (See dkt. entry no. entry no. 19-6, Time Cards.) The 

Court accordingly concludes that Kenner satisfies the basic 

requirements for relief under the Overtime Laws.

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B. The Court Cannot Resolve the Motion, insofar as the 

Motion Concerns Application of Exemptions to the 

Overtime Laws, Because the Parties Have Presented 

Genuine, Disputed Issues of Material Fact

Defendants assert that the administrative and professional 

exemptions to the Overtime Laws preclude an entry of summary 

judgment in Kenner’s favor. (See dkt. entry no. 12, Am. Answer; 

Defs.’ Opp’n Br. at 17-25.) Kenner argues that, as a matter of 

law, neither exemption applies to this matter. (Kenner Br. at 

5, 8-15.) 

We note that exemptions to the FLSA “should be construed 

narrowly, that is, against the employer.” Lawrence v. City of 

Phila., 527 F.3d 299, 310 (3d. Cir. 2008). Further, “an 

employer seeking to apply an exemption to the FLSA must prove 

that the employee and/or employer comes [sic] plainly and 

unmistakably within the exemption’s terms.” Id. (quotations 

marks omitted, emphasis in original).

1. Kenner’s Duties as a CRC

The deposition transcripts submitted by the parties 

demonstrate that Kenner’s duties, like those of other AMR CRCs, 

were evenly split between three categories of activities, i.e.: 

(1) meeting patients enrolled in AMR studies, reviewing informed 

consent paperwork with patients, and collecting patients’ 

information; (2) data entry; and (3) administering treatments, 

providing instruction to patients regarding self-administration 

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of treatment, and shipping lab samples. (Kenner Br. at 2; see 

also dkt. entry no. 22-2, Ex. L, Adamson Dep. at 10-16, 19 

(detailing CRC responsibilities); dkt. entry no. 29-3, Prettyman 

Dep. at 20-21, 23-26, 28, 85 (same).)

2. The Administrative Exemption to the Overtime Laws

The administrative exemption to the Overtime Laws applies 

to employees: (1) who receive at least $455/week in 

compensation; (2) whose primary duty is the performance of 

office or non-manual work directly related to the management or 

general business operations of the employer or the employer’s 

customers; and (3) whose primary duty includes the exercise of 

discretion and independent judgment with respect to matters of 

significance. 29 C.F.R. § 541.200. Kenner argues that she is 

not an administrative employee because she did not participate 

in either the management or general business operations of her 

employers, and she lacked discretion in the discharge of her 

duties. (Kenner Br. at 12-15.) 

Defendants argue that Kenner did, in fact, participate in 

the general business operations of both LUPA and PUA. They cite

the regulations relating to the FMLA in support of their 

position, which state that “[t]o meet this requirement, an 

employee must perform work directly related to assisting with 

the running or servicing of the business, as distinguished, for 

example, from working on a manufacturing production line or 

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selling a product in a retail or service establishment.” 

(Defs.’ Opp’n Br. at 18-19 (citing 21 C.F.R. § 541.201).) 

Defendants also argue that Kenner had discretion in choosing how 

to contact patients, review informed consent documents, answer 

patients’ questions about informed consent and treatments, 

recruiting patients, and performing complex medical functions. 

(Id. at 20.)

3. The Professional Exemption to the Overtime Laws

The professional exemption applies to employees who earn 

at least $455 per week, whose primary duty is the performance 

of work that requires “knowledge of an advanced type in a field 

of science or learning customarily acquired by a prolonged 

course of specialized intellectual instruction”. 29 C.F.R. 

§§ 541.300(a)(1), (2)(i).2

Kenner argues that she is not, as a matter of law, a 

professional employee because AMR CRCs do not perform work 

that requires “advanced” knowledge in science. (Kenner Br. at 

10-11.) She also argues that most AMR CRCs learn their 

responsibilities through on-the-job training instead of through 

“a prolonged course of specialized intellectual instruction.” 

 

 2 The professional exemption also applies to employees whose 

primary duty is the performance of work requiring “invention, 

imagination, originality or talent in a recognized field of 

artistic or creative endeavor.” 29 C.F.R. §§ 541.300(a)(2)(ii). 

Defendants have not, however, asserted the so-called “artistic 

professional” exemption as a defense to the Overtime Claims.

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(Id.) Kenner notes that her AMR co-workers, CRCs David Adamson 

and Melissa Ciatteo, performed their work without the benefit 

of relevant education. (Id.) Adamson, for example, held a 

college degree that was unrelated to his workplace 

responsibilities and learned to discharge those responsibilities 

only through on-the-job training. (Adamson Dep. at 8-10.) 

Ciatteo held only a high school diploma and had not worked in a 

similar capacity. (Prettyman Dep. at 16, 18, 26.) She, like 

Adamson, learned her CRC responsibilities through on-the-job 

training. (Id. at 18-19.) 

Defendants, in their opposition papers, shift the focus

from Adamson’s and Ciatteo’s qualifications and training to 

Kenner’s education and training. Defendants argue that Kenner

-- who studied at Rutgers University, earned a certificate in 

medical assistance from the Lyons Institute, earned a separate 

CRC certificate, and regularly attended continuing education 

related to medical studies -- had the specialized knowledge 

referred to by the federal regulations. (Defs.’ Opp’n Br. at 

24-25; see also Kenner Dep. at 5-15 (describing Kenner’s 

educational background).) Defendants also note that Kenner 

described her CRC responsibilities as “professional”. (Defs.’ 

Opp’n Br. at 24-25.)

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4. Both Parties Failed to Address Kenner’s “Primary 

Duties”, as that Phrase Appears in Definitions 

for Both the Administrative and Professional 

Exemptions

Neither party has discussed or otherwise referenced the 

applicability of 29 C.F.R. § 541.700 (“Section 541.700”), which 

defines the “primary” aspect of the “primary duties” referenced

in the regulations pertaining to both the administrative and 

professional exemptions. In FLSA cases, a court must first 

determine the employee’s primary duty, and then determine 

whether that primary duty exempts the employee from any group 

that might enjoy the FLSA’s protections. See, e.g., Maestas v. 

Day & Zimmerman, LLC, 664 F.3d 822, 827 (10th Cir. 2012). 

Section 541.700 provides:

(a) To qualify for exemption under this part, an 

employee's “primary duty” must be the performance of 

exempt work. The term “primary duty” means the 

principal, main, major or most important duty that the 

employee performs. Determination of an employee’s 

primary duty must be based on all the facts in a 

particular case, with the major emphasis on the 

character of the employee’s job as a whole. Factors 

to consider when determining the primary duty of an 

employee include, but are not limited to, the relative 

importance of the exempt duties as compared with other 

types of duties; the amount of time spent performing 

exempt work; the employee’s relative freedom from 

direct supervision; and the relationship between the 

employee’s salary and the wages paid to other 

employees for the kind of nonexempt work performed by 

the employee.

(b) The amount of time spent performing exempt work 

can be a useful guide in determining whether exempt 

work is the primary duty of an employee. Thus, 

employees who spend more than 50 percent of their time 

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performing exempt work will generally satisfy the 

primary duty requirement. Time alone, however, is not 

the sole test, and nothing in this section requires 

that exempt employees spend more than 50 percent of 

their time performing exempt work. Employees who do 

not spend more than 50 percent of their time 

performing exempt duties may nonetheless meet the 

primary duty requirement if the other factors support 

such a conclusion.

29 C.F.R. § 541.700(a)-(b). 

Section 541.700 sets forth a qualitative rather than a 

quantitative test. See Soehnle v. Hess Corp., 399 Fed. Appx. 

749, 751-52 (3d Cir. 2010) (emphasis added) (applying 29 C.F.R. 

§ 541.700 to another FLSA exemption); see also VanStory-Frazier 

v. CHHS Hosp. Co., LLC, No. 08-3910, 2011 WL 5942112, at *5-9 

(E.D. Pa. Nov. 29, 2011) (setting forth qualitative analysis of 

plaintiff’s primary duty for purposes of applying administrative 

exemption to plaintiff’s FLSA claim). 

The parties’ failure to set forth which of Kenner’s duties

comprised her “primary duties” controls the disposition of this 

matter. Viewing the evidence in the light most favorable to the 

nonmoving party, i.e., to Defendants, the Court concludes that 

this -- the determination of Kenner’s primary duties as a CRC --

constitutes a genuine issue of material fact and precludes the 

entry of summary judgment upon Defendants’ liability for the 

Overtime Claims. The record demonstrates that at least some of 

Kenner’s workplace duties, if they were her primary duties,

would support Defendants’ argument that the administrative 

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and/or the professional exemptions apply. See Pignataro, 593 

F.3d at 268; Conoshenti, 364 F.3d at 145-46. The qualitative 

analysis of Kenner’s duties will thus remain an issue for trial.

C. Issues of Material Fact also Preclude Determination of 

Whether Prettyman May be Held Individually Liable

The parties disagree whether Prettyman was an “employer” 

within the definition provided by the FLSA, which states that an 

“employer” is “any person acting directly or indirectly in the 

interest of an employer in relation to an employee”. 29 U.S.C. 

§ 203(d). Kenner argues that the Court must broadly construe 

the term “employer”. (Kenner Br. at 16.) Kenner also argues 

that Prettyman acted as an employer because Prettyman supervised 

Kenner’s division, answered Kenner’s questions relating to 

Overtime pay, and answered Kenner’s interrogatories in this 

matter. (Id. at 16-17.)

The Court must, as noted above, construe all facts in the 

light most favorable to the nonmoving party. See Pignataro, 593 

F.3d at 268. Prettyman and Karlin testified that Prettyman 

informed but ultimately lacked authority to make managerial 

decisions, such as decisions relating to the continued 

employment or termination of CRCs. (Prettyman Dep. at 12, 14, 

70-72, 74; Karlin Dep. at 12-14.) Because such facts, viewed in 

the light favoring Prettyman, tend to prove that Prettyman did 

not “act . . . in the interest of an employer in relation to an 

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employee”, a determination concerning Prettyman’s individual 

liability is an issue best left for trial. See Pignataro, 593 

F.3d at 268

IV. The Cross Motion

Defendants raise three arguments in the Cross Motion, i.e., 

that: (1) as a matter of law, Kenner’s interference and 

retaliation claims under the FMLA fail because Kenner was not 

eligible for FMLA leave; (2) the Interference Claim fails 

because Kenner has not produced evidence to support that claim; 

and (3) both the Discrimination Claim and Retaliation Claims 

fail because Defendants have demonstrated that Kenner was 

terminated for non-discriminatory reasons. 

A. Because Defendants Represented that Kenner was 

Eligible for and Granted Her FMLA Leave, Defendants 

are Now Estopped From Asserting Ineligibility as a 

Defense. 

Defendants argue that Kenner’s various FMLA claims -- that 

is, the Interference Claim and one of the two Retaliation Claims 

-- fail as a matter of law because Kenner was allegedly 

ineligible for FMLA leave. They assert that Kenner was 

ineligible for FMLA leave because she did not work for a 

qualified employer for the entirety of the twelve-month period 

preceding her leave. (Defs.’ Opp’n Br. at 27-28.) 

Kenner raises several arguments in response. (See dkt. 

entry no. 25, Kenner Opp’n to Cross Motion.) The most pertinent 

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and persuasive argument, however, is that Defendants are now 

estopped from asserting this defense. (Id. at 12 (“Defendants 

conclusively approved Plaintiff as eligible under the FMLA and 

granted her FMLA leave such that it [sic] would be estopped from 

asserting Plaintiff was not FMLA eligible.”).)

A former version of Section 825.110 of Part 29 of the Code 

of Federal Regulations (“Section 825.110”) addressed facts

similar to those presented in this action. The former version 

of Section 825.110 stated that an employer that “confirms 

eligibility at the time the notice for leave is received” “may 

not subsequently challenge the employee’s eligibility.” 29 

C.F.R. § 825.110 (1995). Several courts, however, held that the 

former version of Section 825.110 was an impermissible

enlargement of the class of employees eligible for FMLA 

protections. See Erdman v. Nationwide Ins. Co., 582 F.3d 500 

(3d Cir. 2009); Woodford v. Cmty. Action of Green Cnty., Inc., 

268 F.3d 51 (2d Cir. 2001). These courts held that Section 

825.110 impermissibly enlarged the class of employees eligible 

for FMLA leave because the FMLA directly addressed and set 

limits on that class. Erdman, 582 F.3d at 506-07; Woodford, 268 

F.3d at 54-57. Section 825.110 was amended in 2010 and now 

lacks this language.

In Woodford, however, the United States Court of Appeals 

for the Second Circuit recognized that the FMLA did not set 

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limits on or otherwise address the application of traditional 

notions of equitable estoppel. The Second Circuit thus stated 

that:

even in the absence of a formal regulation, the 

doctrine of equitable estoppel itself may apply where 

an employer who has initially provided notice of 

eligibility for leave later seeks to challenge that 

eligibility. Thus, future employees who rely to their 

detriment upon the assurance of their employer that 

they qualify for leave under the FMLA may have 

recourse to the doctrine of equitable estoppel even 

without an enforceable regulation protecting their 

right to rely upon an employer’s notice of 

eligibility.

Woodford, 268 F.3d at 57. The United States Court of Appeals 

for the Eighth Circuit has adopted a similar position. See Duty 

v. Norton-Alcoa Proppants, 293 F.3d 481, 494 (8th Cir. 2001)

(recognizing and applying doctrine of equitable estoppel in FMLA 

action). The United States Court of Appeals for the Third 

Circuit (“Third Circuit”) has not yet addressed the application 

of equitable estoppel to FMLA claims.

We find the above-quoted passage from Woodford both 

instructive and persuasive. We thus hold that, pursuant to the 

reasoning set forth in Woodford and quoted above, traditional 

application of the doctrine of equitable estoppel may prevent an 

employer from asserting ineligibility for FMLA leave if: (1) the 

employer previously informed its employee that he or she was 

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eligible for such leave; and (2) the employee relied on that 

information to his or her detriment.

The evidence in the record demonstrates that Kenner asked 

her employers for and was granted FMLA leave. (See Kenner Dep. 

at 66-70; Prettyman Dep. at 76; Wye Dep. at 15, 18-19, 37-38.) 

That same evidence, viewed in the light most favorable to 

Kenner, demonstrates that she relied on her employers’ 

representation that she was eligible for FMLA leave. (See

Kenner Dep. at 66-70 (demonstrating that Kenner actually 

exercised FMLA leave); Prettyman Dep. at 76 (same); Wye Dep. at 

15, 18-19, 37-38 (same).) The Court thus concludes that it 

would be inappropriate to enter summary judgment in Defendants’ 

favor.3

B. Plaintiff Has Not Introduced Evidence of an 

Interference Claim under the FMLA

Defendants argue that the Court should enter judgment

against Kenner and in their favor with respect to the 

Interference Claim because Kenner has failed to produce any 

 3 Because we find that the evidence, as viewed in the light 

most favorable to Kenner, supports the argument that Defendants 

are equitably estopped from asserting that Kenner was not 

eligible for FMLA leave, we do not reach Defendants’ argument 

that LUPA and PUA were not joint employers. (See Defs.’ Opp’n 

Br. at 27-28.) If we reached this argument, we would defer 

decision upon it because the Third Circuit is currently 

considering this issue in a case of first impression. See

In re: Enterprise Rent-a-Car Wage and Hour Emp’t Litig., No. 

11-2883 (3d Cir.) (argued on May 15, 2012).

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evidence to support such a claim. (Defs.’ Opp’n Br. at 30-31.) 

Kenner does not directly address this argument. She instead 

impliedly argues that Defendants have misconstrued her 

retaliation claim under the FMLA as an interference claim under 

the FMLA. (See Kenner Opp’n to Cross Motion at 9-10.)

We will enter judgment in Defendants’ favor on Claim I of 

the Complaint -- the Claim at issue -- but only insofar as it 

raises a claim for interference under the FMLA. It will survive 

summary judgment, insofar as it raises a claim for retaliation 

under the FMLA.

C. Questions of Fact Control the Retaliation Claims and 

the Discrimination Claim

Both parties recognize that the Court should resolve the 

Cross Motion, as it pertains to the Retaliation Claims, using 

the burden-shifting framework announced in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973). (See Defs.’ Opp’n Br. at 

28-30, 31; Kenner Opp’n to Cross Motion at 12-24.) See also

Dimare v. MetLife Ins. Co., 369 Fed. Appx. 324 (3d Cir. 2010) 

(applying McDonnell Douglas analysis to NJLAD claims); Atchison 

v. Sears, 666 F.Supp.2d 477, 488 (recognizing application of 

McDonnell Douglas burden shifting analysis to FMLA retaliation 

claims). Defendants also urge the Court to use that framework 

as a “starting point” for analysis of Kenner’s retaliation 

claims under both the FMLA and NJLAD. (Defs.’ Opp’n Br. at 

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31-32 (citing Andersen v. Exxon Co., 446 A.2d 486 (N.J. 1982) 

(recognizing adoption of McDonnell Douglas analysis for purposes 

of resolving discrimination claims under NJLAD).)

Even assuming, arguendo, that Defendants have established a 

legitimate, non-discriminatory reason (“LNDR”) for terminating 

Kenner’s employment -- that is, as both Prettyman and Karlin

stated at their respective depositions, that Kenner’s employment 

was terminated based on low AMR study enrollment and Kenner’s 

lack of seniority -- questions of fact would control resolution 

of the Discrimination Claim and the Retaliation Claims. To 

resolve such claims, the Court must determine whether 

Defendants’ stated LNDR was a pretext for unlawful conduct. 

This determination necessarily involves a “pure question of 

fact”. See Pullman-Standard v. Swint, 456 U.S. 273, 287-88 

(1982) (finding that existence of discriminatory intent “is not 

a question of law and not a mixed question of law and fact” but, 

instead, a “pure question of fact”). Kenner has presented 

sufficient evidence to demonstrate that the LNDR may have been a 

pretext for unlawful conduct, including, inter alia, evidence of 

temporal proximity between Kenner’s FMLA leave and her 

termination. (See Kenner Br. at 8-20.)

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V. Conclusion

The Court will, for good cause shown, enter an appropriate 

Order and Judgment.4

 s/ Mary L. Cooper .

MARY L. COOPER

United States District Judge

Date: May 23, 2012

 4 Kenner has demanded a jury trial. (See, e.g. Compl. at 1, 

9.) It appears that Kenner has a right to a jury verdict upon 

at least some of her claims. See Frizzell v. Sw. Motor Freight, 

154 F.3d 641, 643-44 (6th Cir. 1998) (discussing a plaintiff’s 

right to trial by jury under the FLSA and FMLA); see also Curtis 

v. Loether, 415 U.S. 189, 195 (1974) (“The Seventh Amendment 

[applies] to actions enforcing statutory rights, and requires a 

jury trial upon demand, if the statute creates legal rights and 

remedies, enforceable in an action for damages in the ordinary 

courts of law.”).

The Court intends, upon the filing of a Final Pretrial 

Order in this matter, to issue an Order to Show Cause, ordering 

the parties to state and support their positions on whether each 

claim should be decided by a jury or by the Court. Such briefs 

shall, of course, provide citation to and analysis of relevant 

case law from the United States Court of Appeals for the Third 

Circuit, including, but not limited to, Cox v. Keystone Carbon 

Co., 861 F.2d 390, 392 (3d Cir. 1988).

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