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Debra Dorsey v. Jacobson Holman

December 21, 2010


The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge


Suffering from carpel tunnel syndrome in both of her wrists, Plaintiff Debra Dorsey took leave from her position as a secretary at the law firm of Jacobson Holman, PLLC, for surgery in September 2007. The firm treated her absence as protected under the Family Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601, et seq., and the District of Columbia Family and Medical Leave Act ("DCFMLA"), D.C. Code §§ 32-501, et seq., although it gave her no notice of those rights. Plaintiff had surgery on one wrist in September 2007 and surgery on the other wrist in December 2007. In February 2008, she completed paperwork to apply for disability insurance and delivered a copy to her boss. In June 2008, her application for disability insurance was approved, retroactive to December 2007. Plaintiff sues here alleging the following violations: (1) failure to make a year-end contribution to the Jacobson Holman PLLC Profit Sharing Plan ("Profit Sharing Plan") on her behalf; (2) failure to pay her a 2007 year-end bonus; (3) failure to pay her accumulated vacation leave; and (4) retaliation via termination of her employment and interference regarding her rights under the FMLA/DCFMLA. Defendants are the law firm, the Profit Sharing Plan, and John C. Holman as Plan Administrator of the Profit Sharing Plan, all of whom move for summary judgment.

Defendants' motion for summary judgment will be granted in part and denied in part. Because Plaintiff could not perform her job at the end of the FMLA/DCFMLA protection period, the Court will grant summary judgment to Defendants on the claims of violation of FMLA/DCFMLA for termination of her position and interference with her rights under those statutes. The Court will also grant summary judgment on the claim that Plaintiff was not paid a discretionary year-end bonus, contrary to the D.C. Wage Payment Act. Summary judgment will be denied on all other claims.


Plaintiff worked as a secretary for Jacobson Holman since February of 1991. On September 17, 2007, Plaintiff went out on workers' compensation due to her carpel tunnel syndrome. She worked for member John "Jace" Holman during the entire period of employment. Plaintiff underwent surgery for her carpel tunnel syndrome on September 18, 2007 for one wrist and December 16, 2007 for the other wrist.

Unfortunately, these surgeries did not improve Plaintiff's condition and she continued to experience severe pain. Ultimately, on February 20, 2008, Plaintiff applied for disability insurance. When she applied for disability, Plaintiff gave a copy of the application to Mr. Holman on February 22, 2008. Her accompanying letter asked for "all documentation necessary to roll over my Fidelity profit sharing and 401(k) funds to my new account." Defs.' Mem. in Support of its Mot. For Sum. J. ("Defs.' Mem.") [Dkt. #25], Ex. 4. Simor Moskowitz of Jacobson Holman wrote to Plaintiff on February 26, 2007, indicating that "it is understood that you have resigned your employment" as a result of her conversation with Mr. Holman, but he noted that her letter "does not specifically say that you have resigned," which he stated the law firm needed in order to initiate the roll-over paperwork. Defs.' Mem., Ex. 5. Mr. Moskowitz asked for "a written letter of resignation, simply stating that you have resigned from and are no longer employed by Jacobson Holman PLLC." Id. Plaintiff's response is not reflected in the record, but Mr. Moskowitz wrote to her again on March 4, 2008, to tell her that Jacobson Holman "consider[s] that you have resigned as of February 22, 2008." Id., Ex. 6. Mr. Moskowitz sent the necessary forms for Plaintiff to roll over her retirement accounts. Id. Plaintiff signed the space by which she "[a]cknowledged and [r]eceived" that letter. Id.

In June 2008, Plaintiff's application for disability insurance was approved by the insuror, retroactive to mid-December 2007.

Defendants maintained a Profit Sharing Plan, which was an employee benefit pension plan offered by Defendants for the benefit of its employees. Second Am. Compl. ¶ 5. The Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. §§ 1001, et seq., provides employees certain rights under the Profit Sharing Plan, including enforcement rights in federal court. Pl.'s Mem. in Opp'n to Mot. for Sum. J. ("Pl.'s Mem.") [Dkt. # 31], Ex. 3, at19--20. Under section III (B)(1) of the Profit Sharing Plan, to be eligible for profit sharing contributions, an employee must "complete at least 1,000 hours of service during the Plan Year and be employed as of the last day of the Plan Year." Id., p. 9. Plaintiff completed 1,000 hours of service in 2007. Id. at 8.

Defendants admit that Plaintiff "was not paid a profit sharing contribution for Plan Year 2007," Defs.' Facts in Support of its Mot. for Sum. J. [Dkt. # 25] ("Defs.' Facts") ¶ 6; "was not paid a bonus for 2007," id. ¶ 4; and "was paid for 4.51 hours of accrued but unused leave" later than required under the D.C. Wage Payment Act, id. ¶ 5. Defendants insist that Plaintiff was not discharged, but rather, that she resigned. Id. ¶ 8.



Under certain circumstances, the FMLA and its DC counterpart, the DCFMLA, grant an employee the right to take temporary medical leave from employment, without the threat of, or actual termination, from her job. The FMLA provides that "an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period . . . [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), and the DCFMLA provides that "any employee who becomes unable to perform the functions of the employee's position because of a serious health condition shall be entitled to medical leave for as long as the employee is unable to perform the functions, except that the medical leave shall not exceed 16 workweeks during any 24-month period." D.C. Code § 32-503.

As stated in Roseboro v. Billington, 606 F. Supp. 2d 104 (D.D.C. 2009), there are two viable claims under the FMLA:

(1) an interference claim under §§ 2615(a)(1), in which the employer has restrained, denied, or interfered with the employee's substantive rights under the Act, and (2) a retaliation claim under §§ 2615(a)(2), in which the employer has taken adverse action against the employee because the employee took leave ...

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