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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

KEITH D. BROWN

v. CONOPCO, INC.

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Civil No. CCB-06-2668

MEMORANDUM Plaintiff Keith D. Brown ("Mr. Brown") was employed as a machine operator at the Baltimore Foods factory operated by the defendant Conopco, Inc., d/b/a Unilever Bestfoods, N.A. ("Unilever"). Unilever terminated Mr. Brown's employment in 2004, and Mr. Brown is suing Unilever for allegedly violating the Family and Medical Leave Act ("FMLA"). Unilever has moved for summary judgment. The issue is fully briefed1 and no hearing is necessary. See Local Rule 105.6. For the reasons articulated below, Unilever's motion will be granted.

Mr. Brown has filed two memoranda in opposition to the motion for summary judgment: a response, which was timely filed on July 20, 2007, and a Supplemental Memorandum, which was filed three days after his opposition was due. Mr. Brown obviously foresaw the need to file an additional memorandum; he included a note in his original opposition filing that "Plaintiff will file a supplemental response in opposition that incorporates and supplements this argument." (Pl's Opp'n Mot. at 18 n.14.) For the purposes of this ruling, the procedural deficiency in this late filing will not be considered and the supplemental memorandum will be incorporated into the initial filing. 1

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BACKGROUND The facts, viewed in the light most favorable to the plaintiff, follow. Mr. Brown began working for Unilever in December 1997 as a forklift operator; he later became a machine operator. Mr. Brown also was a union shop steward, a job he held concomitant with his other duties at the factory. In approximately 2001 or 2002, Mr. Brown began requesting FMLA leave to accompany his foster mother, Marion Whiting ("Mrs. Whiting") to the doctor. Mrs. Whiting had been diagnosed with dementia; her short-term memory was unreliable and the doctors had advised that another adult be present at doctor visits. In accordance with Unilever's leave policy, Mr. Brown submitted a medical certification in 2003 to support his request for intermittent Family/Medical leave. That form indicated that Mrs. Whiting had a "Chronic Condition[] Requiring Treatment," and that she required assistance with "medical, personal, safety, or transportation needs." Mr. Brown submitted a recertification in 2004. As Mrs. Whiting's health deteriorated, Mr. Brown began providing more care for her; according to Mr. Brown, there were "times when [he] would do the food, the care, medicine, and sometimes . . . I just had to be there with her because, you know, she just really couldn't do anything at all." (Def's Mot. Summ. J. Ex. A. at 50-51.) The events leading up to Mr. Brown's termination took place in October 2004. On October 6, Mr. Brown received a call at work from Mrs. Whiting's apartment complex, telling him that her apartment had flooded. Before leaving work, Mr. Brown submitted a form requesting that the time off be treated as FMLA leave. Mr. Brown described Mrs. Whiting's condition that day as upset, and said that "the best [he] could do [was] provide some comfort and calm mom down and get her out of the apartment." (Def's Mot. Summ. J. Ex. A at 73.)

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Two days later, on October 8, Mr. Brown left work again, after receiving a phone message regarding Mrs. Whiting's apartment. Mr. Brown was told that insurance people were coming in to look at his mother's apartment. Again, Mr. Brown submitted a form requesting that his time off be treated as FMLA leave before leaving work. When he arrived at the apartment, however, he discovered workers from the apartment complex, not insurance adjusters. The crew needed Mrs. Whiting to be out of the apartment so that they could lift up the carpet and dry it out; Mr. Brown took his mother to get something to eat and did not return to work that day. On October 11, 2004, Mr. Brown was called into a meeting with Timothy Manvilla ("Mr. Manvilla"), his boss, and Marian Perry ("Ms. Perry"), another union shop steward. At that meeting, Mr. Manvilla asked Mr. Brown to provide documentation in support of his absences on October 6th and 8th; the deadline given was October 18, one week later. Mr. Brown agreed to attempt to provide the information. The October 18th deadline came and went without Mr. Brown's having provided any documentation from the apartment complex. Mr. Brown states that he "tried to talk to the head of the apartment complex" and that he "could not get it." (Def's Mot. Summ. J. Ex. A at 93-94.) Mr. Brown also testified, in his deposition, that he attempted to communicate to Mr. Manvilla on the 18th that he was not able to obtain the documentation, but Mr. Manvilla was not at work that day; he testified that he relayed a similar message, however, to Marian Perry, the shop steward. Mr. Brown did approach Mr. Manvilla on the 21st and told him that he would get him the information as soon as possible. Mr. Brown had provided advance notice of a planned absence on October 22nd, a day on which he needed to take his mother to a therapy appointment. At this point, he had yet to provide documentation for his absences on the 6th and the 8th. According to Mr. Manvilla, the

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failure to provide documentation raised Unilever's suspicions about Mr. Brown's use of FMLA leave. It may also be true that Unilever was predisposed to be suspicious about Mr. Brown; in his deposition, Mr. Manvilla stated that Mr. Brown was "the only person that on a consistent basis refused to provide documentation." (Def's Mot. Summ. J. Ex. B at 44.) Unilever hired Comprehensive Investigations, Inc., to conduct surveillance of Mr. Brown on October 22nd. Comprehensive arrived at Mrs. Whiting's home at 6:50 AM. After confirming that Mrs. Whiting was inside, the investigator remained at her apartment until 2:30PM; Mrs. Whiting did not leave. The investigator also attempted to stake out Mr. Brown's residence; that failed, however, because Mr. Brown had just purchased a new home and had spent the night there. Mr. Brown testified that he waited at his new residence for his sister to bring his mother to visit. When she arrived, Mrs. Whiting became upset because she realized that she would not be able to live in Mr. Brown's home. She was so upset that Mr. Brown called Pam Del Nero, Mrs. Brown's therapist, and cancelled Mrs. Brown's appointment. Mr. Brown testified that he then took his mother to lunch, to buy hair supplies, and to a dollar store. He returned his mother to her apartment that afternoon and then picked up his foster son from school. On October 25th, Mr. Manvilla requested a meeting with Mr. Brown; also present were several other officials from the company. Mr. Brown was again asked about the documentation for the 6th and the 8th, and given a new deadline - October 29th - for providing information regarding his whereabouts on those days. He also was asked about his activities on October 22nd. Mr. Brown testified that he told the meeting participants he was having some difficulties getting the October 6th and 8th documentation and that "it was pretty much out of [his] control and [he] had to wait for the management office to actually send it." (Def's Mot. Opp'n Summ. J.

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Ex. A at 99.) Mr. Brown also told them that his mother's appointment on the 22nd had been cancelled because she was "upset." It is unclear whether Mr. Brown was explicitly told at this point that he would be suspended if he did not comply with the deadline. The following day, Mr. Brown met with Mike Johnston, the production manager at Unilever, and Ms. Perry. Mr. Brown explained to Mr. Johnston that he was having some difficulty getting the information from the Village Oaks apartment. At that meeting, Mr. Johnston explained to Mr. Brown that he would be suspended if he did not produce the documentation. Two days later, on October 28th, Mr. Brown submitted a brief note on Village Oaks Apartments stationery. In the note, Assistant Community Manager Tyra Gillard explained that Mr. Brown was "at our property assisting his mother with cleaning of her apartment due to a flood," and that "[t]his incident took place on Wednesday, October 6, 2004 and October 8, 2004." (Pl's Opp'n Mot. Ex. 5.) Mr. Brown claims that he had never told Mr. Manvilla, or anyone at Unilever, that he was going to meet an insurance adjuster at his mother's house on the 8th. Regardless, Mr. Manvilla requested additional documentation from Village Oaks about the presence of an insurance adjuster, and Mr. Brown also was asked to provide documentation for the absence on October 22nd. The deadline given was November 2nd. When no additional information was produced by the 2nd, Mr. Brown was suspended from work. The parties met again on November 9th, at which point Mr. Brown produced the letter from Pam Del Nero at Key Point. That letter states, in its entirety, "Per Mr. Brown's request, this letter is to confirm that he had an appointment for his mother on Friday, October 22nd but he had to cancel it. It was rescheduled for Friday, November 5, 2004 at 10:30am."

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(Def's Mot. Summ. J. Ex. N.) Mr. Brown explained to his employers at this meeting that the documentation "took as long as it did because of the HIPPA [sic] laws and the waiver rights . . . that's why [Manvilla] didn't get it until the 9th." (Def's Mot. Summ. J. Ex. A at 125-26.) At this meeting, Unilever requested that Mr. Brown submit a copy of his phone bill, utilities bills, and a copy of his deed - apparently to confirm what Brown had said earlier about where he was residing on the 22nd of October. Mr. Brown provided these documents on November 23rd and was asked to provide similar documentation from his mother. He provided that information to Ellis Staten, a union leader. Mr. Brown's employment was terminated on December 3 for gross insubordination in refusing to provide documentation related to his FMLA absences. He grieved his termination, but the grievance was denied. The Union chose not to pursue arbitration, apparently agreeing that Mr. Brown had improperly refused to provide documentation to support his requests for FMLA leave. (Def's Mot. Summ. J. Ex. P.) Mr. Brown filed this lawsuit in October of 2006. He alleges that Unilever "willfuly violated

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