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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : : : ANTHONY PASSAUER : : CIVIL NO. CCB-03-159 v. : : QUEST DIAGNOSTICS, INC. : : : ...o0o... MEMORANDUM

Plaintiff Anthony Passauer has brought this action against Defendant Quest Diagnostics, Inc. ("Quest"), for violation of the Family and Medical Leave Act ("FMLA"), negligent misrepresentation, promissory estoppel, breach of contract, and fraud, arising from the termination of plaintiff's employment following a medical leave of absence under the FMLA. Now pending before the Court is Defendant Quest's motion for summary judgment. For the reasons stated below, the motion will be granted. I. Plaintiff Anthony Passauer was employed by SmithKline Beecham Clinical Laboratories ("SmithKline") as a warehouse coordinator. In August 1999, Defendant Quest Diagnostics, Inc., acquired the operations of SmithKline, including the warehouse in Owings Mills, Maryland, where Passauer worked. The Owings Mills warehouse closed during the first quarter of 2000, and most of the employees transferred to Quest's warehouse on Caton Avenue in Arbutus, Maryland. Due to a shoulder injury which required surgery and recovery time, Passauer requested a leave

of absence from his job in December 1999. In a letter dated January 17, 2000, Quest informed Passauer that it had designated the requested absence as leave under the FMLA and that his leave would start on January 18, 2000. Plaintiff's maximum leave entitlement was twelve weeks within a twelve-month period, and plaintiff would be required to present a fitness-for-duty certificate from his doctor prior to being restored to employment. The letter further explained that "if the fitness-for-duty certification sets out any restrictions on your ability to perform the essential functions of your job, the Company will consider it a request for temporary accomodation and will work with you in an effort to accomodate you. Where your restrictions cannot be accomodated, the Company will consider other options, including requiring you to take additional leave or another open position." On April 5, 2000, Passauer presented to Quest's Human Resources Department a fitness-forduty certificate from his doctor, stating that he could return to work on April 10, 2000, the last day of his maximum twelve weeks of leave. The certificate restricted plaintiff from lifting over thirty pounds until May 1, 2000. Marilyn Martin, the Quest Human Resources Generalist who received the certificate conferred with Director of Human Resources Lynn Neidenbach about Passauer's ability to return to work. Neidenbach subsequently spoke to Warehouse Manager Larry Bauernshub about whether Passauer's work restriction could be accomodated in the warehouse. According to Neidenbach, Bauernshub told her that all of the jobs at the Caton Avenue warehouse, including those of work leaders, supervisors, and managers, required lifting more than thirty pounds. Bauernshub told Neidenbach that, as such, he did not have any jobs in the warehouse that could accomodate Passauer's lifting restriction. Martin called Passauer at home later that day to inform him of the company's decision. She left -2-

a message on his answering machine indicating that no accomodation was available at the warehouse and stating: "Until you can come back at full duty and be able to work with no restrictions we cannot have you return to work." Dep. Ex. 9. On April 19, 2000, Quest sent Passauer a letter notifying him that his FMLA leave had expired on April 11, 2000, and that he no longer had any job restoration rights under the FMLA. Plaintiff went to the Caton Avenue warehouse and attempted to return to work on May 8, 2000. Bauernshub told him, and Martin confirmed, that neither his former job nor any equivalent job was available for him. Martin then suggested that Passauer could apply for a possible position as "supervisor of logistics;" however, at the time, Martin did not realize that the posting period for the position had already expired. Two days later, the position was offered to a candidate already interviewed. Martin informed Passauer that the position had been filled and that his employment was therefore terminated. Plaintiff has brought suit for violation of the FMLA in addition to claims for negligent misrepresentation, promissory estoppel, breach of contract, and fraud arising from his termination. II. Quest has moved for summary judgment. Summary judgment is appropriate only where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A disputed fact presents a genuine issue "if the evidence is such that a reasonable jury could return a -3-

verdict for the non-moving party." Id. A. Passauer's FMLA claim is time-barred under the FMLA statute of limitations. Claims for violations of the FMLA must generally be brought within two years of the date of the last event constituting the alleged violation. 29 U.S.C.

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