City lawyers have filed a motion for a federal judge to dismiss what is left of a former staff member’s family leave lawsuit involving City Councilwoman Angelique Ashby.
Already U.S. District Judge Morrison C. England has thrown out significant chunks of the action filed by Ashby’s former director of constituent affairs, Sarah R. Novo.
On Monday, England will conduct a hearing to determine whether the remainder of the action charging that the city violated the Family Medical Leave Act can go to the jury in a trial that got underway earlier this week.
“In this case, Plaintiff has completed her case-in-chief and had the opportunity to cross-examine all the defense witnesses,” Senior Deputy City Attorney Kathleen Rogan said in a motion filed Thursday. “In short, all relevant evidence has been presented, and Plaintiff has been ‘fully heard.’ Despite having ample time to prove her case, Plaintiff has fallen short and the Defendant is entitled to judgment as a matter of law in its favor.”
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Testimony in the case concluded on Wednesday. Closing arguments will take place on Tuesday unless the judge dismisses the rest of the case at Monday’s hearing.
Novo sued Ashby – who was later dismissed from the suit – and the city in 2013 on grounds that they did not accommodate her when her husband and a daughter fell ill due to a toxic mold outbreak at their home in Granite Bay.
The former city employee’s lawyer, Robert F. Koehler, said in an interview Friday that a refusal by Ashby to let Novo take sick leave when she also began to feel symptoms of toxic mold illness a week before she was fired in March 2012 should be enough to send the case to jury.
Instead of sick time, Ashby instructed Novo to take vacation time to deal with her family’s problems, according to the plaintiff’s case.
“There should have been an investigation and she should have been apprised of her FMLA rights at that time,” Koehler said. “You don’t all of a sudden walk up to somebody and say, ‘You need to take a week off.’ That’s pretty outrageous.”
Judge England on Wednesday threw out one cause of action in Novo’s suit that sought damages for herself. The judge said there was no evidence presented at trial that Novo suffered from any serious health or medical conditions.
England also erased the possibility of any award for Novo based on the previous illness of one of her three children. The suit charges that the girl suffered repeated ear infections from the mold, but the judge said the condition did not rise to a necessary level of seriousness.
“Every parent who has ever had a child 3, 4, or 5 years old has had to deal with multiple ear infections,” the judge said from the bench.
What’s left in the case are allegations that the city failed to inform Novo about the FMLA, that city officials denied her benefits for which she would have qualified under the act, and that it retaliated against her when she requested them.
The city’s motion said Novo didn’t apply for FMLA benefits until after she was fired, when she no longer qualified for them.
Moreover, the city claimed in the dismissal motion, the plaintiffs did not put on enough evidence to make a case that Novo’s husband suffered a serious enough mold-related illness for her to qualify for FMLA relief.
Even if he did fall sufficiently ill, Novo never told the city she needed to take time off to care for him, the city’s motion said.
“Novo testified that she advised Ashby that her husband was ‘sick,’ but Novo did not testify that she needed time off to take care for her husband,” the motion said.
Ashby took the stand during the trial and testified about what she described as her “frustrations” with Novo’s “lack of presence in District One” to perform her job duties.
As an “at-will employee,” Novo did not enjoy any job protections, the councilwoman told the jury.
“I can let her go for any reason, for no reason,” Ashby testified. “She worked at my pleasure.”