The opinion of the court was delivered by: Rosemary M. Collyer United States District Court
MEMORANDUM OPINION ON CROSS MOTIONS FOR SUMMARY JUDGMENT
Richard Lane Hopkins claims that Grant Thornton LLP interfered with his rights to leave without pay for a serious medical condition and also retaliated against him for asking for such leave by firing him. Mr. Hopkins misperceives his legal rights and the standards that pertain to his claims. Finding that his claims have no merit, the Court will grant summary judgment to Grant Thornton.
Mr. Hopkins started working for Grant Thornton LLP*fn1 in September 2007 as a Senior Consultant with the Global Public Sector ("GPS") division based in Alexandria, Virginia. From September 2007 to April 2008, he worked on a contract with the Department of Homeland Security for its Security Immigration and Customs Enforcement Student Exchange Visitor Program in the District of Columbia. However, Mr. Thornton was unable to obtain necessary clearances, and he was removed from that project. He found a new opportunity on the Iraq Business and Stability Operations Program ("Iraq Stability Program") under contract with the Department of Defense ("DoD"). The Iraq Stability Program was designed to improve business and stability operations in Iraq; a majority of the employees in the GPS division worked on the Program, providing consulting and procurement advisory services. Mr. Thornton worked in Baghdad and Erbil, Iraq on this Program.
Funding issues led to a reduced DoD contract in the summer of 2009. Mr. Hopkins' position in Baghdad ended in August 2009, and he returned to this country. As a Senior Consultant, Mr. Hopkins was obligated to find alternative work within Grant Thornton to maintain sufficient client-billable hours.*fn2 He looked for work in the Iraq Stability Program and GPS Director Terry Garman placed him with the Iraq Investment Conference for approximately six weeks between September and October of 2009, during which time he worked in the District.
The cuts in August were followed by a "stop work" order on December 19, 2009, due to a lack of funding. Ms. Garman ordered all employees associated with the Iraq Stability Program to stop performing work immediately. On December 31, 2009, DoD directed GPS to reduce the cost of the contract by 20%, requiring adjustments and some down-sizing. The Iraq Stability Program contract was ultimately terminated in March 2010. Grant Thornton attributes Mr. Hopkins' discharge to the necessary reductions in force and eventual dissolution of the International Division of GPS.
Mr. Hopkins' billable hours tracked the decline of the Iraq Stability Project. His hours in August (171), September (191), and October 2009 (184) were very high. In November 2009, he had only 79.5 billable hours, and in December 2009, he had only 83. In December, he was actively "looking for billable work" because he "knew he could not sit around and not do anything." Id. at ¶ 114.
Mr. Hopkins worked 80 billable hours on a temporary assignment for the Iraq Stability Program in January 2010. Ms. Garman cautioned him that there would be no further work on the Program and he must work with HR to find another position. On January 20, 2010, HR informed Mr. Hopkins that he needed to find billable work by February 12, 2010, or he would be terminated. Mr. Hopkins advised a friend that the news was "amusing" but "very stressful." Def.'s SOF ¶ 52. However, a week later, his Grant Thornton "coach" suggested an assignment at the Washington Headquarters Service Project ("WHS Project") in Arlington, Virginia. Mr. Hopkins interviewed for the position and began work almost immediately on February 3, 2010.
At the same time, Mr. Hopkins experienced problems with a personal relationship that caused him to experience a high level of stress. He attributes difficulty that he experienced on the WHS Project to this stress; his new managers noted that he failed to appear for work at the client site without notice and exhibited rude and distracted performance when he was there. Although he was counseled about these performance problems, Mr. Hopkins was unable to improve quickly, so on February 23, the WHS Project leaders, Robert Misch and John Adams, removed him from the Project.
After this, Mr. Hopkins sought assistance from the head Partner for the GPS International Division, Rhoda Canter. He told Ms. Canter that he had failed to appear at the client site, communicated badly with WHS Project leadership, and caused questions from the client but that his behavior was due to the difficulties ensuing from the break-up of a personal relationship. Now that his partner had returned, he assured her that his inappropriate behavior "would never happen again." Def.'s SOF ¶ 82. Ms. Canter advised that his poor performance on the WHS Project would make it more difficult for Mr. Hopkins to find new work at Grant Thornton and that it posed a serious issue in light of the number of persons losing positions with the Iraq Stability Program, who were also looking for new work. Mr. Hopkins immediately began reaching out to friends and colleagues in an effort to find billable work.
However, things went from bad to worse. On March 10, 2010, GPS learned that DoD had terminated the contract for the Iraq Stability Program and would no longer need Grant Thornton's services after March 29, 2010. Scott King, a GPS Partner, communicated this news to the entire Iraq Stability Team at 8:28 p.m. on March 10, and told them that Ms. Garman would be meeting with HR in the morning and then contacting each employee "with instructions" about their future at the company. Def.'s SOF ¶ 124.
On the afternoon of March 11, Morgan Kinghorn, Chief Operating Officer of Grant Thornton, instructed Cathy Carney-Peters, head of Human Resources, regarding employees affected by the termination of the program:
For those employees hired specifically for this engagement: default, remove. For other employees, based on performance, etc., if no issues, give them 30 days to get fully billable; if not remove . . . . We simply cannot afford to keep folks in [I]nternational unless there is a significant reason; and no one that does not have billable work.
SOF ¶¶ 126-127. Also on March 11, 2010, during a lengthy transition meeting dealing with the end of the Iraq Stability Program, Ms. Carney-Peters and GPS leadership discussed plans for downsizing the International Division and, specifically, those twenty-odd GPS employees who would be affected. At the end of the meeting, Mr. Hopkins was preliminarily slated for termination as of March 16, 2010.*fn3 The parties dispute whether Mr. Hopkins had been "on the bench" for a continuous amounts of time between the end of 2009 and beginning of 2010, but can agree that Mr. Hopkins was on and off projects at this time. It is undisputed that Mr. Hopkins did not work over 90 chargeable hours in any month between November 2009 and March 2010. In addition, Mr. Hopkins was "on the bench" as of February 23, 2010 and could not find placement on a chargeable project. No work materialized for Mr. Hopkins after this date, and Ms. Canter gave final authorization to terminate Mr. Hopkins on March 15.
The entire GPS International Division was dissolved as a result of the termination of the Iraq Stability Program. Grant Thornton made the business decision to withdraw from similar international work. Approximately 50 employees were terminated during the spring and Ms. Canter, the head Partner in the Division, was involuntarily terminated from Grant Thornton in July.
After the announcement that the Iraq Stability Program was officially cancelled, Mr. Hopkins contacted Karen L. Campbell, an HR Manager, early in the morning on March 11 and asked to meet with her. Mr. Hopkins discussed his poor performance on the WHS Project with Ms. Campbell.*fn4 He also commented that "the issues . . . were transpiring in [his] life," including the loss of a colleague and problems in a personal relationship. Def.'s SOF ¶ 189. Ms. Campbell noted that Grant Thornton offered various benefits that might help Mr. Hopkins, such as paid time off, short-term disability, and leave under the Family and Medical Leave Act ("FMLA"). The exact nature of this discussion is contested -- Mr. Hopkins says that he "requested" FMLA leave at the time and Ms. Campbell says that FMLA leave was only one potential benefit that was mentioned -- but the parties agree that Ms. Campbell thereafter sent an email to Mr. Hopkins with an FMLA informational packet and application form. Pl.'s SOF ¶¶ 4-5; Def.'s SOF ¶¶ 196-198. There is no dispute concerning GPS's normal policy by which HR avoids specific discussion of FMLA leave until an employee submits an application and medical certification, which allows evaluation of whether the employee qualifies for such leave. Mr. Hopkins knew that he needed to complete the forms before he could be approved for FMLA leave. SOF ¶¶ 199-200. Mr. Hopkins asserts that he was entitled to 15 days within which to return his medical provider certification under federal regulations. Pl.'s SOF ¶ 5; see 29 C.F.R. § 825.305(b).
Ms. Campbell and Mr. Hopkins had another conversation on March 16, 2010, and Ms. Campbell asked Mr. Hopkins if he had located any billable work. He explained that he had made efforts and was hopeful something would come through, but nothing had materialized as of yet. Ms. Campbell informed Mr. Hopkins that HR had attempted to locate work for him but was not successful. She then told him that he was terminated for lack of work, that he was eligible for rehire, that he would receive four weeks of severance pay, leave time, and that he would receive benefits through the end of the month. His termination was effective as of March 16, 2010. As a result, Mr. Hopkins did not receive two-weeks' notice in March that he would be terminated in the future, although he did receive four-weeks' severance pay and health insurance through the end of March 2010.
As a remedy, Mr. Hopkins demands damages based upon lost wages and benefits.
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. 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 determine which facts are "material," a court must look to the substantive law on which each claim rests. Anderson, 477 U.S. at 248 (1986). "[S]ummary judgment will not lie if ...