United States District Court, E.D. Louisiana
AHMED S. SALEM
WELLS ROBY, CHIEF UNITED STATES MAGISTRATE JUDGE.
the Court is the Defendant, Monsanto Company's
Partial Motion to Dismiss (R. Doc. 8). The
motion is opposed. R. Doc. 14. A reply to the opposition was
also filed with the Court's leave. R. Doc. 23. The motion
was heard on the briefs.
instant action was filed by the Plaintiff, Ahmed S. Salem
(“Salem” or “Plaintiff'), a Process
Engineer employed by Monsanto Company (“Monsanto”
or “Defendant”) alleging violations of the ADA
Amendment Act of 2008, the Family and Medical Leave Act, and
Title VII of the Civil Rights Act. R. Doc. 1. Monsanto is a
chemical company that operates a facility in Luling,
Louisiana. Id. at p. 2. The Plaintiff worked for
Monsanto for over four years at the time of his discharge in
April 2016. He alleges that he had a good work history up
until the time when (1) he needed to return to Egypt to care
for his father and (2) he began experiencing depression, a
alleges that at the end of 2015 he learned that his father,
who lives in Egypt, was suffering from a life-threatening
illness which required him to travel to Egypt in December of
2015 to care for his father. He alleges he requested and was
granted an additional few days to remain in Egypt with his
family. Id. Salem alleges that upon returning from
Egypt in early January of 2016 he suffered from a “deep
depression.” The Plaintiff argues that he went back to
work and during this time suffered from insomnia and lack of
ability to concentrate at work, which he attributed to
depression, stress, and anxiety. Id.
alleges that on or about January 7, 2016, he visited
Kristopher Steffen of Monsanto's Human Relations at his
office about the depression, stress, and anxiety of his
father's illness and his being located far away from his
father. The Plaintiff contends that at this meeting he asked
how he could return to Egypt to care for his father without
losing his job at Monsanto. Id. According to Salem,
shortly after the meeting he was informed by Steffen that he
should see a doctor about his medical condition, which if
verified, would allow Salem to apply for short-term
disability or that Salem could apply for FMLA leave without
seeing a doctor. Id.
Plaintiff alleges that he elected to see a doctor to get
medical help and on January 11, 2016 he visited Dr. Jackson
Hatfield who diagnosed him with acute depression, prescribed
an anti-depressant, and recommended that Salem not return to
work for eight weeks or until March 7, 2016. Id.
Salem contends that after seeing the doctor, and pursuant to
Steffen's instructions, he submitted a claim for
short-term disability benefits to Kristi Flann, Disability
Plan Specialist at Sedgwick Claims Management Services, Inc.
under Monsanto's disability insurance and that both Jim
Yarborough, his supervisor, and the Human Relations
Department approved of Salem's leave of absence while his
short-term disability claim was pending. Id. at pp.
3-4. Salem argues that he knows many employees of Monsanto
who have gone out on short-term disability and he discussed
the procedure with Jessica Gautier, a mechanical engineer,
whose national origin is that of the United States, about her
experience of being on short-term disability for five-months.
Id. at p. 4.
record indicates that after his January visit with
Monsanto's Human Resources he returned to Egypt to care
for his father. There is no indication of the exact date
which Salem left the country to travel to Egypt. He contends
that during the first week of February 2016 he was performing
caretaking duties in Egypt when he was contacted by Sedgwick
Claims Management, a non-party claims administrator, who
requested that he provide a second medical opinion on his
disability. Id. Salem argues that he was out of the
country and had been informed by his physician, Dr. Hatfield,
that in other cases Sedgwick had approved disability claims
based on his recommendation. Id. at pp. 4-5. The
Plaintiff alleges that Sedgwick insisted he was to provide a
second medical opinion from a U.S. psychiatrist, which he
states was impossible because he was in Egypt. Plaintiff
states that his short-term disability benefits were denied on
February 5, 2016. Id. at p. 5.
his short-term disability claim was denied the complaint
suggests that Salem stayed in contact with his supervisor at
Monsanto. Id. at p. 5. As a result, on March 24,
2016, he was advised by Kristopher Steffen of Monsanto's
Human Resources that it was his responsibility to contact
Monsanto's medical department and begin the FMLA
application process. Id. Salem began the FMLA
process in March and was referred to Danielle Breaux, a
Medical Administrative Assistant, to complete the necessary
paperwork, which he did. Id. Plaintiff further
states that on April 5, 2016 he was informed by Breaux that
all the forms necessary for the FMLA leave application had
been received. Id.
April 14, 2016, the Plaintiff contends that he was informed
by Human Resources that his FMLA leave was approved and this
his 12 weeks of FMLA leave ended on April 8, 2016, three days
after the application was received. Id. Plaintiff
contends that he was informed that because his FMLA leave was
exhausted he would be terminated if he did not return to work
by April 18, 2016, ten days after his FMLA expired.
Id. However, because he did not learn of this
deadline until April 14, 2018 he was given only 4 days to
return from Egypt. Salem alleges that he was unable to
substitute care for his father, make travel arrangements from
Egypt to Louisiana, and travel in such a short-period of
time. Id. at pp. 5-6. Salem believed and
communicated with Monsanto's Human Resources that he
should be given additional time to return to the United
States. Instead, he was terminated on April 18, 2016.
filed a charge of discrimination with the EEOC on November 7,
2016 and filed the instant lawsuit within ninety (90) days of
receiving his right to sue letter. Id. Salem
contends that: (1) Monsanto terminated him because he took
FMLA leave; (2) other Monsanto employees were allowed to take
leave and return to work; (3) Monsanto breached its duty to
provide written notice of his obligations and the
consequences of failing to comply; (4) Monsanto violated the
Americans with Disabilities Act because it failed to make a
reasonable accommodation for his disability, depression, and
treated others more favorably than he; and (5) Monsanto
terminated him because of his national origin.
seeks a dismissal of the national original claim arguing
that: (1) there is no link between Salem's national
origin and termination; (2) the alleged comparators listed in
the amended complaint were not similarly situated employees
because the employer's action must be taken in nearly
identical circumstances, the comparator employees must have
held the same job, supervisor, or their employment status
determined by the same person; and (3) Salem's alleged
comparators who were non-Egyptian engineers who were granted
leave due to family issues and allowed to return is deficient
such that the national origin discrimination claim should be
dismissed. R. Docs. 8, 23.
filed an opposition to the motion to dismiss the national
origin claim because other employees not in his protected
class were treated more favorably for failing to timely
return from FMLA leave and the reason for termination, Salem
had exhausted his leave, is a pretext for discrimination. R.
Doc. 14, pp. 1-2. The Plaintiff argues that these factual
allegations support his national origin discrimination claim.
R. Doc. 14. He argues that the comparators he identified are
adequate because they are non-Egyptian engineers who had
family issues, were granted four-to-five months of leave, and
allowed to resume their employment when Salem was not.
Id. at pp. 4-5.