Free Response to Motion - District Court of Arizona - Arizona

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F ENNEMORE C RAIG
PROFESSIONAL CORPORATION P HOENIX

FENNEMORE CRAIG Ronald J. Stolkin (No. 002552) Whitney Sedwick Meister (No. 022686) 3003 North Central Avenue Suite 2600 Phoenix, AZ 85012-2913 Telephone: (602) 916-5000 Email: [email protected] Email: [email protected] Attorneys for Defendants Regis Corporation; Super Cuts

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA MARY CSANYI, a single woman, Plaintiff, v. REGIS CORPORATION; SUPER CUTS, Defendants. No. CV 03-1987 PHX JAT DEFENDANT SUPER CUTS' RESPONSE TO PLAINTIFF'S MOTION FOR A DETERMINATION OF DAMAGES

I.

INTRODUCTION In her "Joint Status Report," Plaintiff identified the following as the remedies she

seeks under the Family and Medical Leave Act ("FMLA"): (1) a bench trial; (2) medical expenses of $3,800.00 from September 17 through December 10, 2003; (3) lost wages of $15,667.00; and (4) lost medical treatment of $56,140.00.1 Following the parties' submission of their separate Status Reports, the Court entered its June 12, 2008 Order ("Order"), giving Plaintiff the opportunity to do four things:
1

Defendant addresses only those remedies Plaintiff seeks that are relevant to her Motion For a Determination of Damages. Case 2:03-cv-01987-JAT Document 135 Filed 07/21/2008 Page 1 of 11

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F ENNEMORE C RAIG
PROFESSIONAL CORPORATION P HOENIX

1. Overcome the presumption that any remedies under the FMLA would be based on the existing evidence submitted at the original trial, by indicating what evidence she wished to submit and why that evidence was not and could not have been presented in the original trial. 2. Indicate what additional evidence she wished to submit and explain why that evidence could not have been submitted in the original trial; 3. Show a nexus between the Ninth Circuit's mandate and her reason for not previously submitting this evidence, e.g., if the evidence plaintiff wanted to submit at trial was found by the Ninth Circuit to have been erroneously excluded by the trial court; and 4. Show how her request for reimbursement of medical expenses of $3,800.00, lost wages in the amount of $15,667.00 and lost medical treatment of $56,140.00 arise from her FMLA claim and cite to specific evidence in the record to support her calculation of damages. In response to the Court's Order, Plaintiff filed her Motion for Determination of Damages ("Motion"). In her Motion, Plaintiff changed her requested relief from what she outlined in her Status Report to the following: (1) alleged medical expenses of $3,800.00; (2) $6,201.60 for 12 weeks of alleged lost hourly wages and tips; and (3) 82 weeks of alleged lost earnings and tips of $42,377.60. As will be demonstrated below, Plaintiff is seeking remedies not authorized by the Ninth Circuit's mandate and that are not provided by the FMLA, itself. Further, she has failed to support the remedies she seeks with citations to evidence in the record and the remedies she seeks conflict with the evidence in the record. II. ANOTHER BENCH TRIAL IS NOT WARRANTED A. Plaintiff Has Failed To Justify Another Bench Trial Plaintiff appears to have abandoned her request for a new bench trial and/or conceded that a new trial is not warranted. ("Plaintiff will comply with the remainder of this order on the assumption that the court will not be taking in new evidence on damages." Motion at 2.) If, however, Defendant has misread Plaintiff's intent, it submits the following argument opposing any request for a second bench trial. / / /
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F ENNEMORE C RAIG
PROFESSIONAL CORPORATION P HOENIX

Plaintiff states she wanted to submit evidence that her husband broke his left shoulder in October, 2003 and that she paid his medical expenses. She says she could not have presented this evidence because her attorney was not ready for trial and because her request for continuance was denied. Neither reason is valid. First, Plaintiff's husband's alleged injury occurred nearly three (3) years before the trial of this case, which was held June 7-13, 2006. There is no reason Plaintiff could not have been prepared to present this evidence at trial and Plaintiff offers none. Second, Plaintiff engaged attorney Angela Wilson-Goodman to represent her nine months before trial. (See Ms. Wilson-Goodman's Notice of Appearance dated September 20, 2005, Docket #56.) No reason has been offered to justify Plaintiff's and/or her attorney's failure to introduce evidence of an event that occurred three years before trial. Third, any evidence of Plaintiff's husband's injury and any alleged medical expenses resulting therefrom would have been (and still would be) inadmissible for at least two reasons. First, Plaintiff never disclosed her husband's alleged injury or his medical expenses as an element of her damages prior to trial. This evidence therefore would have been inadmissible at trial, even if Plaintiff had sought to offer it (which she did not). (See Rule 26(a)(1)(A)(iii).) Second, Plaintiff never listed her husband, Josef Csanyi, as a witness. (See Final Pretrial Order dated January 17, 2006, Docket #76.) Thus, Mr. Csanyi would not have been permitted to testify and any testimony from a third party about his injury would have lacked foundation and/or been inadmissible hearsay. Fourth, as to Plaintiff's complaint that her request for a continuance was denied, the Ninth Circuit affirmed this Court's ruling denying Plaintiff's motion to continue on the day of trial: The district court did not abuse its discretion by denying Csanyi's motion to continue the trial. Csanyi failed to establish prejudice because all of her witnesses testified and she has not identified what additional testimony would have been offered or how such testimony would have changed the result.
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F ENNEMORE C RAIG
PROFESSIONAL CORPORATION P HOENIX

Ninth Circuit's Memorandum at 3 (citations omitted). B. The Ninth Circuit Did Not Mandate a New Bench Trial

This Court directed that, in its Response, Defendant should justify its position that a second bench trial is not mandated. Simply stated, the appellate court's mandate did not remand this matter for a retrial but, rather, for a determination of appropriate remedies under the FMLA. Had the Ninth Circuit contemplated a second bench trial on damages, it would not simply have "remand[ed] for a determination of appropriate remedies under [the FMLA]," but, rather, it would have remanded for a new trial on the issue of remedies under the FMLA. III. PLAINTIFF HAS NOT IDENTIFIED ADDITIONAL EVIDENCE AND WHY THAT EVIDENCE WAS NOT SUBMITTED IN THE TRIAL. Other than her husband's shoulder injury, Plaintiff has not identified any additional evidence she wished to submit and why that evidence could not have been submitted in the original trial. Other than Defendant's Response in Section II, supra, no further

response on this point is necessary. IV. PLAINTIFF HAS SHOWN NO NEXUS BETWEEN THE NINTH CIRCUIT'S MANDATE AND HER REASON FOR NOT PREVIOUSLY SUBMITTING EVIDENCE. Again, other than her husband's shoulder injury, Plaintiff has pointed to no evidence she wished to submit at trial. With respect to evidence of her husband's injury, Plaintiff has presented no nexus between her not offering that evidence and the Ninth Circuit's mandate, e.g., that evidence Plaintiff sought to submit at trial was found by the Ninth Circuit to have been erroneously excluded by the trial court. As noted above, the Ninth Circuit affirmed this Court's denial of Plaintiff's last minute motion to continue. / / / / / / / / /
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F ENNEMORE C RAIG
PROFESSIONAL CORPORATION P HOENIX

V.

PLAINTIFF HAS FAILED TO TIE CLAIMS FOR MEDICAL EXPENSES, LOST WAGES AND LOST MEDICAL TREATMENT TO HER FMLA CLAIM AND TO CITE TO SPECIFIC EVIDENCE IN THE RECORD. In her Motion, Plaintiff simply declares that: (1) she paid "about $3,800.00" for

medication (Motion at 2); (2) she is entitled to $6,201.60 for 12 weeks of hourly wages and tips between September 24 and December 17, 2003 (Motion at 2); and (3) she was prevented from working for 19 months, is still unable to work and, therefore, she has suffered lost earnings and tips of $42,377.60 (Motion at 3-4). Plaintiff has failed to cite to any evidence in the record to support any of these alleged damages/expenses, one of her claims directly conflicts with Plaintiff's trial testimony and two of the remedies she seeks are not provided by the FMLA. Plaintiff's remedies request, therefore, must be denied. 1. Plaintiff's request for $3,800.00 for medication must be denied.

Plaintiff requests $3,800.00 for medication. She fails to cite to specific evidence in the record to support this claim. In fact, there is no such evidence (testimony or

documents) in the record. Plaintiff's evidence of damages resulting from the alleged cancellation of her insurance was limited to the evidence Plaintiff herself submitted at the trial of this matter through Exhibits 6 and 44. (Copies of Exhibits 6 and 44, attached hereto as Exhibit A.) After her FMLA ceased on November 3, 2003, Plaintiff decided that she no longer wanted to drive to the Bell Road store and quit her job without notice. As a result: (1) she was no longer an employee of Defendant; (2) she was no longer entitled to employee health insurance through Defendant; and (3) medical expenses and health insurance after October 30, 2003 were solely Plaintiff's responsibility.2 / / / / / /

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Having quit her job, Plaintiff could have elected to continue her coverage under COBRA or purchase her own coverage. Under either alternative, the responsibility was solely Plaintiff's. Case 2:03-cv-01987-JAT Document 135 - 5 Filed 07/21/2008 Page 5 of 11

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F ENNEMORE C RAIG
PROFESSIONAL CORPORATION P HOENIX

2.

Plaintiff's request for 12 weeks of wages and tips must be denied.

Plaintiff requests $6,201.60 for 12 weeks of hourly wages and tips. For three reasons, this request must be denied because Plaintiff: (1) fails to cite to specific evidence in the record to support this claim; (2) fails to provide any factual or legal basis for requesting 12 weeks of wages and tips under the FMLA;3 and (3) seeks a remedy not provided by the Ninth Circuit. a. The evidence does not support this claim

Plaintiff never claimed that she was denied FMLA leave or an extension of that leave. Indeed, all of her requests for FMLA leave were granted. (Trial Transcript, June 7, 2006, 162:9-164:17; 180:7-9; attached hereto as Exhibit B; also see copies of Exhibits 10 and 11, attached hereto as Exhibit C.) Further, Plaintiff was not fired for exercising her right to take FMLA leave, and she never made such a claim. Indeed, Plaintiff admitted that she was not terminated. (Trial Transcript, June 8, 2006, 240:19-241:7, attached hereto as Exhibit D.) Rather, at the end of her FMLA leave, and though she was

physically and mentally able to work, she chose not to request an extension of her FMLA leave and not to return to her job at Defendant's Bell Road store (the store where she worked when she commenced her FMLA leave) because she did not want to drive that far.4 (Exhibit D at 241:8-23; 261:2-12; Exhibit B at 181:13-21.) / / /
3

Not only did Plaintiff fail to disclose a claim for lost wages due to an alleged violation of the FMLA prior to or during trial, this claim does not even relate to the evidence presented at trial. Plaintiff's FMLA leave commenced on September 18, 2003 and, after an approved extension, terminated on November 3, 2003. Her leave, therefore, was not 12 weeks; it was 47 days, or slightly less than seven weeks. 4 At trial, Plaintiff suggested Defendant should have moved her to a store of her choice because her doctor did not want her to drive the distance to the Bell Road store. Plaintiff mistakenly confused Defendant's responsibilities under the FMLA with an employer's responsibilities under the Americans with Disabilities Act ("ADA") ­ erroneously contending that Defendant should have accommodated Plaintiff's desire to work closer to home. There was, however, no ADA claim in this lawsuit and, therefore, no duty to provide an accommodation. Under the FMLA, when Plaintiff was released back to work, Defendant's obligation was to return her to the position she held when her leave commenced ­ which it tried to do. 29 C.F.R. § 825.214. Document 135 - 6 Filed 07/21/2008

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F ENNEMORE C RAIG
PROFESSIONAL CORPORATION P HOENIX

b.

FMLA leave is unpaid

Plaintiff appears to believe she should have been paid for the time she was on FMLA leave. She is incorrect. Generally, FMLA leave is unpaid. 29 CFR § 825.207.5 For the above reasons, Plaintiff's request for 12 weeks of pay of $6,201.60 must be denied.6 c. Plaintiff's remedy is limited to insurance benefits

In its ruling, the Ninth Circuit provided only that Plaintiff was entitled to "health insurance [benefits] through the end of October 2003." (Memorandum at 4-5.) 3. Plaintiff's request for 82 weeks of lost earnings must be denied.

For the same reasons her request for 12 weeks of compensation must be denied (i.e., no citation to evidence in the record to support her claim; no factual or legal basis for her claim; and seeking a remedy not provided by the Ninth Circuit) this request for 82 weeks of alleged lost earning also must be denied.7 Not only is there no evidence to support this claim, Plaintiff's claim that she was prevented from working for 19 months and still is unable to work directly conflicts with her trial testimony. As the court will recall, Plaintiff testified as follows: · Dr. Martin released her to return to work after her second FMLA leave expired on November 3, 2003; · She was physically and emotionally able to work; · She made the choice not to return to the Bell Road store because she did not want to drive that far; · She was able to work at salons closer to her home;
5

An eligible employee may elect, or an employer may require, the employee to substitute any accrued paid vacation leave or personal leave for unpaid FMLA leave. 29 U.S.C. § 2612(d)(2)(A). Plaintiff offered no evidence that she had any accrued vacation or personal leave or that she elected to apply it to her FMLA leave. 6 Plaintiff was not on FMLA leave for 12 weeks. Further, Plaintiff would not have been entitled to pay under any circumstances after she voluntarily quit her job on November 3, 2003. 7 Undoubtedly, Plaintiff did not cite to the record because, as with her other claims, no evidence was presented during the trial that Plaintiff lost any wages or tips because her insurance for October, 2003 allegedly was cancelled. Case 2:03-cv-01987-JAT Document 135 - 7 Filed 07/21/2008 Page 7 of 11

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F ENNEMORE C RAIG
PROFESSIONAL CORPORATION P HOENIX

· She began working at Fantastic Sam's in February, 2004; · Approximately two to three weeks after she left Fantastic Sam's, she went to work for Great Clips; · She worked for Great Clips for approximately seven to eight months; · She went back to work at Fantastic Sam's just before Christmas of 2004 and she was still employed at Fantastic Sam's when the trial of this matter took place in June 2006. (Exhibit D at 224:23-229:18; 240:7-246:18; Exhibit B at 181:13-21; 203:11-210:9.) In light of her trial testimony, Plaintiff's claim that she was and remains unable to work is nothing short of ludicrous. Accordingly, Plaintiff's request for 82 weeks of lost earnings must be denied. VI. PLAINTIFF'S FMLA REMEDIES Plaintiff's only FMLA claim was that her health insurance ended on September 30, 2003 and that she should have received health insurance benefits through October, 2003. The Ninth Circuit ruled that the "appropriate remedies" in this case are limited to the "health insurance [benefits] through the end of October 2003." (Memorandum at 4-5.) The appellate court did not provide for anything else, including lost wages. Ironically, Plaintiff has failed to request the only remedy granted by the Ninth Circuit, i.e., "health insurance [benefits] through the end of October 2003." As previously noted in Defendant's Status Report (Docket #131), "[t]he correct measure of damages for lost insurance benefits in FMLA cases is either actual replacement cost for the insurance, or expenses actually incurred that would have been covered under a former insurance plan." Lubke v. City of Arlington, 455 F.3d 489 (5th Cir. 2006). [The] plain language [of 29 U.S.C. § 2617(a)(1)(A)] does not assist in answering whether, as the district court determined, the value of lost insurance benefits alone is a proper measure of damages. Our holdings in similar Age Discrimination in Employment Act ("ADEA") cases, however, are instructive. In ADEA cases, an employee "is limited to recovery of those
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F ENNEMORE C RAIG
PROFESSIONAL CORPORATION P HOENIX

expenses actually incurred by either replacement of the lost insurance or occurrence of the insured risk." Although Lubke disputes the applicability of ADEA cases, the ADEA incorporates the remedies available under the Fair Labor Standards Act ("FLSA"). See 29 U.S.C. § 626(b). Moreover, "the legislative history of the FMLA reveals that Congress intended the remedial provisions of the FMLA to mirror those in the FLSA." Because the remedies available under the ADEA and the FMLA both track the FLSA, cases interpreting remedies under the statutes should be consistent. Consequently, we hold that the correct measure of damages for lost insurance benefits in FMLA cases is either actual replacement cost for the insurance, or expenses actually incurred that would have been covered under a former insurance plan. The lost "value" of benefits, absent actual costs to the plaintiff, is not recoverable. Lubke, 455 F. 3d at 499 (citations omitted; emphasis added).8 Plaintiff offered no evidence at trial of actual replacement cost for her insurance for the month of October 2003 or that she even replaced her insurance. Rather, her evidence of FMLA damages consisted of the expenses she actually incurred in October 2003: (1) the premium of $186 she paid for her insurance; and (2) her payment of $120 on October 21, 2003 for psychotherapy. (See Exhibit A; Exhibit B at 176:5-178:10.) That Plaintiff's FMLA claim was limited to her medical expenses in October, 2003, as set forth in Exhibit 44, was made clear in her attorney's closing argument: Under the FMLA, she's also entitled to reimbursement for the $286 (sic) she paid for her medical insurance in October [2003]. She's entitled to payment for her out-of-pocket medical expenses, and that's in Exhibit 44, what she paid to Dr. Martin. She's entitled to an equal amount of liquidated damages plus interest on that amount.9 (Trial Transcript, June 13, 2006, 92:25-93:5, attached hereto as Exhibit E.) (emphasis added.) / / /
8

Actual replacement cost for the insurance is not appropriate here because Plaintiff quit her job on November 3, 2003 and, therefore, was not entitled to Defendant's health insurance beyond October, 2003, except at her own cost through COBRA. 9 Plaintiff's medical insurance premium for October, 2003 was $186.00, not $286.00. See Trial Exhibit 6.
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F ENNEMORE C RAIG
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In addition, the evidence is clear that the expenses she actually incurred were those set forth in Exhibit 44: BY MS. WILSON-GOODMAN: Q. Mary, would you look at that Exhibit 44 that I just handed you? A. Yes. Q. Can you identify that document? A. Yes, I do. Q. What does that document mean to you? A. On the visits what I did to Dr. Martin and the payments. (Exhibit B at 174:23-175:6.) Plaintiff's own evidence, therefore, shows that her actual expenses in October, 2003 totaled $306.00. (Premium of $186.00 + $120.00 for psychotherapy on October 21, 2003 = $306.00.) VII. CONCLUSION For the reasons set forth above, the remedies requested by Plaintiff in her Status Report and/or in her Motion For a Determination of Damages should be denied. Instead, if any remedy is to be awarded for the alleged cancellation of insurance in October, 2003, it should be limited to Plaintiff's actual expenses of $306.00. DATED this 21st day of July, 2008. FENNEMORE CRAIG By /s/ Ronald J. Stolkin Ronald J. Stolkin Whitney M. Sedwick Attorneys for Defendants Regis Corporation; Super Cuts

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2086673.6/79228.006

CERTIFICATE OF SERVICE I hereby certify that on July 21, 2008, I electronically transmitted the attached document to the clerk's office using the CM/ECF system for filing and I served the attached document by mail on the following person is not a participant in the CM/ECF system: Mary Csanyi 8627 E. Northland Drive Scottsdale, Arizona 85251 /s/ Julie Calvano Tolby Julie Calvano Tolby

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