United States District Court, D. Nevada
EDWARD B. DOUGLAS, Plaintiff
DREAMDEALERS USA, LLC, ROMAIN THIEVEN, and DAVID PERISSET, Defendants
ORDER (1) GRANTING IN PART THE DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT AND (2) DENYING THE
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [ECF NOS. 31,
P. GORDON UNITED STATES DISTRICT JUDGE
Edward Douglas was the chief financial officer (CFO) for
defendant Dreamdealers USA, LLC. Douglas applied for and
Dreamdealers granted him intermittent leave under the Family
Medical Leave Act (FMLA) so he could care for his ailing
wife. About a year later, Dreamdealers advised Douglas that
it was removing him from the CFO position. The parties
dispute whether Dreamdealers thereafter offered Douglas an
equivalent position at the company. Douglas has never
returned to work at Dreamdealers, although the company still
considers him an employee. Douglas claims Dreamdealers and
two of its chief executive officers (CEOs), defendants Romain
Thieven and David Perisset, interfered with his FMLA rights
and retaliated against him for complaining about their
unlawful conduct. The parties each move for summary judgment.
the defendants’ motion as to Douglas’s claim that
that the defendants violated the FMLA by failing to respond
to his request for recertification of his FMLA leave. I deny
the remainder of the defendants’ motion and the
entirety of Douglas’s motion because genuine disputes
remain as to whether the defendants interfered with
Douglas’s FMLA rights and retaliated against him for
engaging in protected activity.
Dreamdealers’ CFO, Douglas was responsible for
accounting, taxes, ensuring the company’s books and
records were in order, and other similar duties. ECF No. 31-2
at 7-8; ECF No. 31-5 at 8. Perisset and Thieven are
Dreamdealers’ co-CEOs. ECF Nos. 1 at 2; 5 at 2; 31-2 at
6. Perisset testified that he believed Douglas was doing a
good job until sometime in approximately 2014, when Perisset
noticed that Douglas communicated with him less frequently
and was absent from the office more often. ECF No. 31-2 at 9,
14. Perisset never disciplined Douglas or brought performance
issues to his attention, however. Id. at 7, 19; ECF
No. 31-5 at 8.
2015, Ashley Leach, Dreamdealers’ human resources
manager, suggested Douglas apply for intermittent FMLA leave
so he could attend to his wife who was having medical
problems. ECF Nos. 31-1 at 2; 31-5 at 24-25. Douglas formally
requested FMLA leave on August 19, 2015. ECF No. 31-8.
issued to Douglas a Notice of Eligibility and Rights &
Responsibilities form, which stated that he was eligible for
FMLA leave. Id. The form also stated that due to
Douglas’s status within the company, he was designated
as a “key employee, ” meaning the company could
refuse to restore Douglas to his employment following FMLA
leave “on the grounds that such restoration will cause
substantial and grievous economic harm” to the company.
Id. at 3. Dreamdealers marked the form to indicate
it had determined that restoring Douglas to employment at the
conclusion of FMLA leave would cause substantial and grievous
harm to the company. Id. (“We _√_ have/__have not determined that
restoring you to employment at the conclusion of FMLA leave
will cause substantial and grievous economic harm to
us.”). Perisset testified that he had not done an
analysis in August 2015 that would have supported this
determination. ECF No. 32-2 at 9-10. Dreamdealers
subsequently approved Douglas’s FMLA leave request. ECF
October 2015, the State of Nevada Department of Taxation
(Department) contacted Douglas to advise him that it intended
to conduct a sales and use tax audit on Las Vegas Supercars,
a company related to Dreamdealers. ECF No. 31-6 at 2, 10.
According to Perisset, Douglas had not informed him about the
audit and he found out about it when he noticed a calendar
entry for a meeting with a consultant that Douglas had hired.
ECF No. 31-2 at 9-10. Perisset subsequently learned that
Douglas had stopped paying the sales tax on the
company’s vehicles. Id. at 10-11.
February 26, 2016, the Department provided the results of its
audit and issued a deficiency notice. ECF No. 31-6 at 9-12.
The audit found that the “books of record were in
disarray, ” and that an outside consultant was
“contracted to compile auditable records when the
Department issued notice of audit.” Id. at 10.
The audit concluded that Las Vegas Supercars “did not
collect sales tax or remit use tax on either the purchase
price of the vehicles or on any form of any revenue streams
after 1/1/2014 except for the second and third quarters of
2015, for which no detail could be found.” Id.
As a result, Las Vegas Supercars had to pay the Department
$70, 047.08. Id. at 8-10.
weeks after the Department issued its decision, Douglas
started applying for jobs at other companies. ECF No. 31-5 at
18-21. Douglas claims the timing was coincidental.
Id. at 21.
August 2016, Perisset determined that reinstating Douglas to
his position as CFO would injure the company because of
Douglas’s poor job performance relating to the failure
to pay the sales and use taxes and failing to keep the books
in order. ECF No. 32-2 at 17, 24. Perisset also stated that
injuries would result due to Douglas’s absences.
Id. at 25. In making this determination, Perisset
did not distinguish between absences taken under the FMLA and
other absences. ECF No. 31-2 at 25-26. According to Perisset,
Douglas had essentially abandoned his job for the prior two
years, had ceased communicating with him, and “was not
showing up at work a lot.” ECF No. 32-2 at 19, 22.
testified that he was going to have a conversation with
Douglas about his performance issues in the months leading up
to August 2016, but Douglas was rarely in the office so he
could not have that meeting. Id. at 20. Perisset
also testified that Douglas’s absences started long
before he applied for FMLA leave and Perisset denied he had
any issue with Douglas taking FMLA leave. ECF Nos. 31-2 at
26-27; 32-2 at 26. But he testified he had an issue with
non-FMLA absences because he did not “have a CFO on
site” so communication was lacking. ECF No. 32-2 at 27.
He also stated that the “absences were almost all the
time at that point towards the end, FMLA or not, ” but
what triggered the decision not to reinstate Douglas was the
financial irregularities. Id. at 29.
August 11, 2016, Leach advised Douglas that his FMLA leave
was going to expire on August 16 and that she had put forms
to recertify on his desk. ECF Nos. 31-13; 32-8. Leach also
told Douglas that he had used 140 hours of FMLA leave during
the prior year. ECF No. 31-9. Douglas signed the
recertification forms the same day, obtained a certification
from a healthcare provider the next day, and returned the
forms to Dreamdealers. ECF Nos. 31-14; 31-15; 32-3 at 12;
August 12, Leach wrote to Douglas advising him that
Dreamdealers would be removing him from the CFO position. ECF
No. 31-12 (the “removal letter”). The removal
letter stated that:
Since August 2015, you have continued to receive full pay and
benefits, despite the fact that you have been consistently
absent, have failed to notify us when we can expect your
presence in the office, and have failed to account for time
spent or tasks accomplished while ‘working from
home.’ As a result, the responsibilities of CFO have
been distributed to, and handled by, a number of different
employees and departments within the company.
As of August 16, 2016, the conclusion of your leave period
under the FMLA, the company will have a position open for
you, with similar responsibilities to that of CFO. However,
the company has determined that full reinstatement of your
position as CFO would cause substantial and grievous economic
injury to our operations. Your continued absences and
inability to dedicate your full-time efforts to the company
would be too great an injury for the company to bear, both
from a financial and an operational standpoint.
Id. The removal letter does not refer to the audit
or the failure to keep the books and records in order.
responded the next day by asking what the new
position’s duties would be, who he would report to, and
whether he would be allowed to work remotely. ECF No. 32-14.
Leach replied that the company would prefer to discuss those
issues in person and she proposed a meeting for the following
Monday. Id. Douglas requested they discuss the new
position via email. Id. He also stated that he
noticed that his access to the company’s computer
system had been restricted, which would affect his ability to
perform his job. Id.
August 19, Perisset sent an email to Douglas stating that
Douglas was still employed by the company but that Perisset
had “not seen [Douglas] at the office for months, nor
had any meetings with [him], the CFO of the company.”
Id. at 2-3. Perisset requested a meeting with
Douglas and told him to bring along his company laptop and
hard drive. Id.
met with Perisset and Leach on August 22 to discuss the fact
that he was not going to be retained as CFO and to
“explore . . . another position for him.” ECF
Nos. 31-2 at 39; 31-4 at 28; 32-3 at 16. Perisset had some
ideas for the position but “nothing had been defined
yet.” ECF No. 31-2 at 34. Perisset testified that he
contemplated paying Douglas an equivalent salary, although he
stated he did not have “a specific amount in
mind.” ECF Nos. 31-2 at 35; 32- 2 at 41. Leach likewise
testified that the pay would not have changed, but she did
not know whether that was communicated to Douglas. ECF No.
31-4 at 23-24. Douglas was asked for his input about what the
new job would entail. Id. at 29. The meeting ended
with Douglas stating he was going to go home and think things
over. Id. at 28; ECF No. 31-5 at 37.
further discussions took place and no decisions were made
about the replacement job’s pay, responsibilities, or
title, because Douglas hired an attorney. ECF Nos. 31-5 at
39; 32-2 at 40-41. Douglas testified that he did not contact
the company again because he was told he could no longer work
from home and they could not determine a job for him until he
guaranteed that he could work at the office for 40 hours per
week. ECF No. 38-19 at 5.
is still employed by the company even though he has not
worked there since August 2016. ECF No. 31-4 at 12. The
company has treated him as being on a personal leave of
absence. ECF No. 31-5 at 41.