Exemar v. Urban League of Greater Miami, Inc.
21 Fla. L. Weekly Fed. D436 (S.D. Fla. 2008)
Plaintiff alleged two claims under the Family and Medical Leave Act for interference with her exercise of her rights under the FMLA, and for retaliation because of her attempt to exercise her FMLA rights. The employer asserted that it is not subject to the FMLA because it employs less than fifty people. The employee failed to point to any evidence undermining the employer's affidavit evidence showing that the combined number of employees of the employer and related agencies was under fifty but argued that, instead of relying on the affidavit, “941" tax forms for all of the employer’s integrated entities. The court explained that the a plaintiff cannot successfully defend a motion for summary judgment by merely attacking the defendant’s evidence that disproves her claim. Moreover, the employer was not required to present payroll evidence to the exclusion of other types of evidence, despite a Department of Labor policy. The best evidence rule, Fed. R. Evid. 1002, did not apply to the evidence. The employer’s motion for summary judgment was granted.