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In June 2016, AmSurg Corp. and Envision Healthcare Holdings, Inc. (Envision) announced they have signed a definitive merger agreement pursuant to which the companies will combine in an all-stock transaction. Upon completion of the merger, which is expected to be tax-free to the shareholders of both organizations, the combined company will be named Envision Healthcare Corporation and co-headquartered in Nashville, Tennessee and Greenwood Village, Colorado. The company's common stock is expected to trade on the New York Stock Exchange under the ticker symbol: EVHC. Bass, Berry & Sims served as lead counsel on the transaction, led by Jim Jenkins. Read more.

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Inside the FCA blogInside the FCA blog features ongoing updates related to the False Claims Act (FCA), including insight on the latest legal decisions, regulatory developments and FCA settlements. The blog provides timely updates for corporate boards, directors, compliance managers, general counsel and other parties interested in the organizational impact and legal developments stemming from issues potentially giving rise to FCA liability.

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Chris Lazarini Comments on Prima Facie FMLA Discrimination Case

Securities Litigation Commentator

Publications

May 16, 2016

Bass, Berry & Sims attorney Chris Lazarini commented on the case of Cisneros vs. FirstMerit Corp. & LPL Financial, LLC in which a former bank employee claimed she was the victim of multiple retaliatory actions and, ultimately, termination, following her return from an extended medical absence. The court earlier granted summary judgment but on reconsideration conceded it erred in not considering Plaintiff's allegations of disparate treatment as evidencing causation. 

Chris provided the analysis for Securities Litigation Commentator (SLC). The full text of the analysis is below and used with permission from the publication. If you would like to receive additional content from the SLC, please visit the SLC website to sign up for the newsletter.

Cisneros vs. FirstMerit Corp. & LPL Financial, LLC, No. 14-cv-14893 (E.D. Mich., 4/26/16) 

*A motion for reconsideration may be granted where the moving party shows a palpable defect that, if corrected, will cause a different disposition.
**Evidence of disparate treatment by one's employer may make out a
prima facie case for discrimination in violation of the Family and Medical Leave Act.
***In an employment discrimination case, a plaintiff may rebut the employer's claim that it fired the plaintiff for failure to sign and comply with performance improvement plans by presenting evidence that the employer itself failed to follow through on its prior remedial action plans with respect to the plaintiff. 

Plaintiff, a former FirstMerit bank employee licensed through LPL, sued under the Family and Medical Leave Act, claiming to be the victim of multiple retaliatory actions and, ultimately, termination, following her return from an extended medical absence. In an earlier opinion, the Court granted Defendants' motion for summary judgment, finding some of Defendants' disputed actions non-adverse and no causal connection between the remaining actions and Plaintiff's extended medical absence, based solely on the lack of temporal proximity between the events (SLA 2016-08). Plaintiff timely moved for reconsideration, arguing that the Court erred in not considering evidence of causation beyond temporal proximity.

The Court confirms most of its prior findings, but concedes that it erred in not considering Plaintiff's allegations of disparate treatment as evidencing causation. Looking anew at Plaintiff's claims, the Court finds no evidence of a pattern of unfair treatment in the setting of Plaintiff's sales goals when compared to those of other advisors. The Court similarly rejects Plaintiff's disparate treatment claims relating to the required use of pooled support staff and reduced incentive trips, finding no similarly situated employees against which to make comparisons. 

Turning to Plaintiff's claim that she was not assigned a replacement branch when several in the area were closed, while another advisor in the area was given a replacement, the Court describes the evidence as contradictory and confusing, but finds, as it must on a summary judgment motion, that Plaintiff demonstrated disparate treatment. Since Plaintiff has presented a prima facie case, the burden shifts to Defendants to offer evidence of legitimate, non-discriminatory reasons for the adverse action. Defendants point to Plaintiff's refusal to sign and comply with their performance improvement plans as the reason for termination. This is sufficient, the Court concludes, to shift the burden back to Plaintiff to show Defendants' reason as a pretext for discrimination.

Plaintiff countered with evidence that, prior to presenting her with the performance improvement plans, the bank changed how it evaluated her product mix, and her supervisor, who was supposed to assist her in changing her product mix, repeatedly failed to attend scheduled meetings. The Court concludes that Defendants' failure to follow through on its prior remedial action plans could lead a reasonable jury to conclude that the motivation for terminating Plaintiff was not tied to her sales activities but, rather, was retaliatory. The Court vacates its prior summary judgment ruling.


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