Opinion
Civil Action No. RDB-07-1322.
July 22, 2008
MEMORANDUM OPINION
In this action, Doris Brantley ("Brantley" or "Plaintiff") alleges that her former employer, Nationwide Mutual Insurance Co. ("Nationwide" or "Defendant"), violated the Family and Medical Leave Act of 1993 ("FMLA" or "the Act"), 29 U.S.C. §§ 2601 et seq., by failing to notify her of her rights under the Act, failing to designate certain leave time as FMLA leave, and ultimately terminating her employment in retaliation for using FMLA leave. Currently pending is Nationwide's Motion for Summary Judgment (Paper No. 19). The parties' submissions have been reviewed and no hearing is necessary. See Local Rule 105.6 (D. Md. 2008). For the reasons that follow, Defendant's Motion for Summary Judgment is DENIED.
BACKGROUND AND PROCEDURAL HISTORY
The facts are viewed in a light most favorable to Plaintiff as the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Doris Brantley was employed as a claims investigator by Nationwide Mutual Insurance Co. in its Columbia, Maryland, center beginning on December 3, 2001. (Compl. Ex. A; Brantley Decl. ¶ 1.) Her supervisor was Tanya Wright ("Wright"). When she began working with Nationwide, Brantley participated in a group training session explaining the company's FMLA policies. (Brantley Dep. 23:18-24:11.)
On April 1, 2005, Brantley was absent from work for "pregnancy-related" reasons, as indicated in the company's time-off planning service or "TOPS" system. (Stalter Decl. ¶ 2.) Kathleen Stalter ("Stalter"), a registered nurse and Disability Management Consultant for Nationwide, was assigned to manage Brantley's absences. (Id. ¶ 3.) On April 5, 2005, Brantley called Stalter on the telephone and informed Stalter that she was pregnant and that was the reason for her absence from work. ( Id.; Brantley Decl. ¶ 3.) Stalter told Brantley she would send her the company's "having a baby packet" and that she needed to fill out a pregnancy confirmation statement that would be mailed to her home. (Brantley Decl. ¶ 3; Stalter Decl. ¶ 3; Pl.'s Mem. Opp'n Summ. J. Ex. 3.) The "having a baby packet" contains a brief description of a pregnant woman's right to take up to twelve weeks off for a serious health condition under the FMLA and indicates that the pregnancy confirmation statement "also provide[s] necessary documentation for FMLA job protection." (See Stalter Decl. Ex. 2, at pp. 2, 6.)
There is a dispute as to whether Stalter reviewed Brantley's rights and the relevant procedures she had to follow under the FMLA during the April 5, 2005 telephone call. Brantley contends that the conversation related solely to Nationwide's maternity leave policies and that the FMLA was never mentioned. (Brantley Decl. ¶ 3.) In contrast, Stalter claims she "reviewed FMLA benefits and procedures" with Brantley. (Stalter Decl. ¶ 3.) However, the TOPS system automatically generates a written notification of FMLA rights once an employee reports an absence that might be covered by the FMLA, and such a notice was sent to Brantley on April 6, 2005, just one day after the phone call with Stalter. (Herath Decl. ¶¶ 5, 14, Ex. 5.)
Additional notices were sent April 26, April 30, May 18, and May 21, 2005. (Herath Decl. Ex. 5.)
On April 14, 2005, Brantley called 911 around 1:00 a.m. because her symptoms of intense morning sickness, high fever, and dehydration were so severe. (Brantley Decl. ¶ 5; Pl.'s Mem. Opp'n Summ. J. Ex. 6.) Around 5:15 a.m., four hours later, Brantley called Wright to inform her supervisor that she was unable to come into work due to pregnancy-related complications. (Brantley Decl. ¶ 5; Pl.'s Mem. Opp'n Summ. J. Ex. 6.) Brantley was absent from work due to the pregnancy-related complications again on April 15, 18, and 22, 2005, and, on each day, she notified Wright by telephone of the reason for her absence early in the morning. (Brantley Decl. ¶¶ 6-8; Pl.'s Mem. Opp'n Summ. J. Exs. 6-8.) On April 23, 2005, Brantley's obstetrician diagnosed her with a pregnancy-related complication known as hyperemesis gravidarum. (Pl.'s Mem. Opp'n Summ. J. Ex. 4; Brantley Decl. ¶ 9.) Brantley was prescribed four medications to treat the condition. (Id.) During the remainder of April 2005, Brantley was absent an additional three days: April 26, 28, and 29, 2005. (Brantley Decl. ¶¶ 10, 12-13.) Each day, she called Wright to inform her that her absence was due to symptoms of hyperemesis gravidarum. (Pl.'s Mem. Opp'n Summ. J. Exs. 9, 11-12.) On April 27, 2005, Stalter sent Brantley an email inquiring why she was being treated in the hospital and whether it was related to her pregnancy. (Brantley Decl. ¶ 11; Pl.'s Mem. Opp'n Summ. J. Ex. 10.) Brantley contends that Stalter did not tell her to provide medical certification for her absences, but admits that she did not reply to the e-mail. (Brantley Decl. ¶ 11.)
Stalter sent additional emails between April 28, 2005 and May 2, 2005, but Brantley did not receive them as she was at home and could not log into the Nationwide e-mail system. ( Id. ¶ 15.) On April 29, 2005, Stalter removed the FMLA designation in TOPS for Brantley's April 14, 15, and 18 absences because Brantley had not submitted an attending physician's statement. (Stalter Decl. ¶ 8.) On May 2, 2005, Stalter further removed the FMLA designation for Brantley's April 22 and 26 absences. ( See Pl.'s Mem. Opp'n Summ. J. Ex. 15.) That same day, Stalter ultimately made personal contact with Brantley by contacting her at her grandfather's home. At that time, she explained the contents of the emails that had been previously sent, and informed Brantley that she needed to submit medical documentation for the April 22 and 26 absences by May 9, 2005, in order to reinstate the FMLA designation. (Brantley Decl. ¶ 18.) Brantley was absent from work on May 2-3 and 9-13, 2005. ( Id. ¶¶ 14, 19, 21-25.) However, she finally submitted medical documentation, specifically a pregnancy confirmation statement, on or around May 13, 2005, indicating that she was diagnosed on April 5, 2005 with pregnancy-related complications. ( Id. ¶ 26; Stalter Decl. Ex. 1.)
Stalter claims that the pregnancy confirmation statement was submitted April 13, 2005, however, the form was dated May 3, 2005, by Brantley and May 5, 2005, by her medical provider. (Stalter Decl. ¶ 6, Ex. 1.) Thus, there is conflicting information as to when Brantley submitted the pregnancy confirmation statement.
On May 16, 2005, Brantley again visited her obstetrician and was told she could return to work the next day, May 17, 2005. ( See Pl.'s Mem. Opp'n Summ. J. Ex. 19.) On May 17, 2005, Brantley printed out and sent an attending physician statement to her physician to fill out. (Brantley Decl. ¶ 28.) That same day, Stalter informed her that the FMLA designation would be removed from her May 9-13 absences. ( Id.) On May 18, 2005, Stalter and Wright discussed Brantley's absences via email and Stalter suggested a meeting with Joyce Beal of Human Resources prior to taking disciplinary action. (Pl.'s Mem. Opp'n Summ. J. Ex. 20.)
On May 19, 2005, Brantley was admitted to the hospital for vomiting blood and fainting spells — both related to hyperemesis gravidarum — and she was placed on bed rest from May 19-28, 2005. (Id. at Ex. 21.) The next day, she called Wright and informed her that she was on bed rest. (Id. at Ex. 22.) The following week, Brantley called Wright each day to remind her supervisor that she was on bed rest due to her pregnancy-related condition. (Brantley Decl. ¶¶ 32-35, 37.) On May 26, 2005, Stalter told Brantley that her pregnancy confirmation statement was incomplete but did not specify what was missing. (Brantley Decl. ¶ 26; Pl.'s Mem. Opp'n Summ. J. Ex. 25.) The next day, Brantley told Stalter that Stalter was harassing her while she was out on FMLA-qualifying leave. (See Brantley Decl. ¶ 37; Pl.'s Mem. Opp'n Summ. J. Ex. 25.)
Beginning May 31, 2005, Brantley did not come to work because of her pregnancy-related condition, which was further complicated when she was in a car accident on June 4, 2005. (Brantley Decl. ¶¶ 39-41, 45, 47-48, 50-51.) She called her supervisor, Wright, each day and updated her as to the reason for her absence from work. (Id.)
On June 2, 2005, Brantley received a Benefits Interruption Letter informing her that she had to submit an attending physician statement by June 9, 2005, or "she would risk not receiving compensation for any unapproved absences." (Stalter Decl. ¶ 15; Brantley Decl. ¶ 42.) On June 6, 2005, Brantley's physician completed the statement and faxed it to Stalter. (Pl.'s Mem. Opp'n Summ. J. Ex. 35; Stalter Decl. ¶ 16, Ex 4.) The statement from the doctor essentially said Brantley's pregnancy was normal and that she was free to return to work; it made no mention of hyperemesis gravidarum or a treatment program. ((Pl.'s Mem. Opp'n Summ. J. Ex. 35; Stalter Decl. ¶ 16, Ex 4.) On June 8, 2005, Stalter found that the physician's statement did not support an FMLA designation for Brantley's absences "beginning 5/20/05" and decided to stop her pay beginning June 9, 2005. (Pl.'s Mem. Opp'n Summ. J. Ex. 36.) On June 10, 2005, Brantley was notified that her employment with Nationwide was terminated because she had not been to work since May 19, 2005. (Compton Decl. ¶¶ 4-5, Ex. 1.)
In July 2005, Brantley applied for and was interviewed in connection with a job at the AARP. (Brantley Decl. ¶ 55.) However, she was not chosen for the position. (Id.) Brantley developed preeclampsia, a high blood pressure condition resulting from pregnancy, that contributed to her daughter being born prematurely at a low weight. (Id.) Brantley chose to stay at home with her daughter until she returned to a normal weight. (Id.) From November of 2006 to April of 2007, she worked at a Lord Taylor department store in Annapolis, Maryland, and, in August of 2007, she began working for a Lucky Brand store in Annapolis. (Id.)
Brantley filed a complaint with the United States Department of Labor in early 2006 alleging that her rights under the FMLA had been violated. After an investigation, on June 27, 2006, the Department of Labor issued a written determination that Nationwide had violated the FMLA in the following ways:
It is unclear exactly when Brantley first notified the Department of Labor, but its case summary indicates that the case was registered, assigned, and under investigation on March 24, 2006. (See Pl.'s Mem. Opp'n Summ. J. Ex. 1.)
• The firm's healthcare administrator (RN) failed to receive permission from the complainant [Brantley] prior to contacting her healthcare practitioner.
• The firm failed to provide the complainant with specific written notification concerning her rights under the Act.
• The firm failed to provide the complainant with specific written notification concerning the denial of her medical certification due to its reported deficiencies.
• The firm failed to allow the complainant 15 days to return a requested medical certification.
• The firm failed to properly designate the complainant's FMLA qualifying absences.
• The firm imposed disciplinary action on the complainant during a FMLA related absence as a result of her failure to submit a requested medical certification within the designated period.
• The firm used the complainant's FMLA qualifying absence as a negative factor in its employment actions and by its improper termination of the complainant's position.
(Compl. Ex. A., at p. 8.) The Department of Labor concluded that Brantley was entitled to $45,197.80 in back wages. (Id. at p. 11.) However, a resolution could not be reached with Nationwide, which maintained that it had complied with the FMLA. (Id.)
The parties dispute whether the Department of Labor's findings are admissible in support of Plaintiff's case. Defendant argues that the report should not be admitted because it was not authenticated and because interim agency reports do not always fall within the scope of the hearsay exception. (Def.'s Reply 14.) However, Plaintiff notes that courts have found administrative reports to be admissible as long as "both sides were given an opportunity to be heard following a fair and full investigation." (Pl.'s Mem. Opp'n Summ. J. 23 (citing Plummer v. Western Int'l Hotels Co., 656 F.2d 502 (9th Cir. 1981); Blizard v. Fielding, 572 F.2d 13 (1st Cir. 1978); Smith v. Universal Servs., 454 F.2d 154 (5th Cir. 1972); Abrams v. Lightolier, Inc. 702 F. Supp. 509 (D.N.J. 1988) rev'd on other grounds, 50 F.3d 1204 (3d Cir. 1995).) While the Department of Labor's summary of its investigation is persuasive, this Court does not need to rely on it to find genuine issues of material fact in this case and rule on Defendant's Motion for Summary Judgment.
On March 30, 2007, Brantley filed a lawsuit against Nationwide in the Circuit Court for Prince George's County, Maryland. Nationwide removed the case to this Court on May 18, 2007, on the grounds that the claims arose from a federal statute — the FMLA — and that, therefore, this Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331. The Complaint contains a single count in which Plaintiff seeks damages for Nationwide's violations of the FMLA. The one-count Complaint lists a series of alleged violations. Specifically, Brantley alleges that Nationwide violated the FMLA by failing to provide written notification of her FMLA rights and the rejection of her medical certification as deficient, failing to allow her fifteen days to return a requested medical certification, failing to designate certain of her leave time as covered by the FMLA, disciplining her while on FMLA leave, and firing her in retaliation for taking FMLA leave — essentially the same violations found by the Department of Labor. (Paper No. 2.) On November 13, 2007, Nationwide filed a Motion for Summary Judgment. (Paper No. 19.) Brantley filed her Response on December 10, 2007 (Paper No. 22), and Nationwide filed its Reply on December 21, 2007 (Paper No. 23).
These violations found by the Department of Labor include an incident in October of 2004 when Brantley requested FMLA leave for an unrelated health condition and Nationwide contacted her health care provider directly to discuss the matter in violation of 29 U.S.C. § 825.307(a). (Compl. ¶¶ 10-12.) However, the record is clear that Plaintiff's health care provider was contacted in reference to paid leave benefits, not the FMLA, and Plaintiff has not provided any further substantiation for this claim in the subject Complaint. (Herath Decl. ¶¶ 9-10.) Thus, the Plaintiff will not be permitted to proceed with this claim at the trial of this case. This Court will address this matter in a motion in limine prior to trial.
STANDARD OF REVIEW
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c) (emphasis added). In Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), the Supreme Court explained that only "facts that might affect the outcome of the suit under the governing law" are material. Id. at 248. Moreover, a dispute over a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The Court further explained that, in considering a motion for summary judgment, a judge's function is limited to determining whether sufficient evidence supporting a claimed factual dispute exists to warrant submission of the matter to a jury for resolution at trial. Id. at 249. In that context, a court must consider the facts and all reasonable inferences in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
A genuine issue of material fact may exist if the evidence presented to the court is sufficient to indicate the existence of a factual dispute that could be resolved in favor of the non-moving party at trial. Rachael-Smith v. FTDATA, Inc., 247 F. Supp. 2d 734, 742 (D. Md. 2003) (citing Anderson, 477 U.S. at 248-49). Moreover, any inferences drawn from disputed evidence must be accorded to the non-moving party. See Matsushita, 475 U.S. at 587-88; E.E.O.C. v. Navy Federal Credit Union, 424 F.3d 397, 405 (4th Cir. 2005).
DISCUSSION
Defendant Nationwide Mutual Insurance Co. contends in its pending Motion for Summary Judgment that Plaintiff Doris Brantley has failed to present evidence sufficient to create any genuine issues of material fact as to any of the FMLA claims set forth in the Complaint. Nationwide contends that it is entitled to judgment as a matter of law. Its argument is without merit. A review of the various claims of FMLA violations indicates genuine issues of material fact to be resolved by the jury in this case.
I. Written Notification of FMLA Rights
First, Plaintiff alleges that Defendant failed to provide her with "specific written notification" of her rights pursuant to the FMLA. (Compl. ¶ 18.) Any employer subject to the requirements of the FMLA must "provide [each] employee with written notice detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations." 29 C.F.R. § 825.301(b)(1) (2008). If an employee requests FMLA leave, such notice "shall be given within a reasonable time after notice of the need for leave is given by the employee — within one or two business days if feasible." Id. § 825.301(c).
On April 5, 2005, Brantley called Stalter on the telephone and informed Stalter that she was pregnant and that was the reason for her absence from work. (Id.; Brantley Decl. ¶ 3.) To comply with 29 C.F.R. § 825.301(c), Nationwide should have sent written notice "detailing the specific expectations and obligations of the employee" within the next two business days. Although the exact date is unclear, Plaintiff was mailed a "having a baby packet", which contained a brief description of a pregnant woman's right to take up to twelve weeks off for a serious health condition under the FMLA and noted that the pregnancy confirmation statement "also provide[s] necessary documentation for FMLA job protection." (See Stalter Decl. Ex. 2, at pp. 2, 6.) This packet was clearly insufficient to provide Brantley with notice of her rights under the FMLA.
It is undisputed that, in addition to the packet, TOPS automatically generated a written notification of FMLA rights that was sent to Brantley on April 6, 2005, just one day after the phone call with Stalter. (Herath Decl. ¶¶ 5, 14, Ex. 5.) This notice informed Brantley that she had to submit medical certification within fifteen days of requesting FMLA leave and that Nationwide could request updated certifications as needed, or else the FMLA benefits could be "denied or curtailed." (Id. at Ex. 5.) Similar notices were allegedly sent to Brantley on at least four other dates in April and May of 2005 following her absences for pregnancy-related complications. (Id.) Brantley claims she did not receive these notices, although she confirmed that the address was correct. (Brantley Dep. 74:1-9, 81:3-9.)
Additional notices were sent April 26, April 30, May 18, and May 21, 2005. (Herath Decl. Ex. 5.)
The United States Court of Appeals for the Fourth Circuit has recognized that "[u]nder Maryland law, a presumption of delivery and receipt of mail arises when material is properly mailed." Benner v. Nationwide Mut. Ins. Co., 93 F.3d 1228, 1234 (4th Cir. 1996) (citations omitted). "Evidence of ordinary business practices concerning the mailing of notices is sufficient to create the presumption of both sending and receiving." Id. (citations omitted). "While the presumption may be rebutted so as to create a question of fact, testimony by the addressee that he did not receive, or does not remember receiving, the material is not conclusive." Id. at 1234-35 (citations omitted). Rather, "[t]he trier of fact should consider that proof along with all of the other evidence offered in the case to determine whether the item was mailed and received." Id. at 1235 (citations omitted).
In this case, there is evidence that notices were repeatedly sent to Brantley automatically by Nationwide's TOPS system. ( See Herath Decl. ¶¶ 5, 14, Ex. 5.) However, there is conflicting evidence by Brantley that she did not receive the notices, and, under Benner, her testimony is sufficient to create a triable issue of fact as to whether the materials were delivered. Accordingly, Plaintiff has created a genuine issue of material fact as to whether she received notice of her FMLA rights by her employer.
II. Written Notification of Denial of Medical Certification
Second, Plaintiff alleges that Defendant failed to provide her with notice that the medial documentation she submitted was insufficient. Specifically, after Plaintiff submitted a pregnancy confirmation statement on May 13, 2005, indicating that she had been diagnosed on April 5, 2005 with pregnancy-related complications, Plaintiff contends that she did not receive written notification that the form was insufficient to document her condition for purposes of the FMLA until the Benefits Interruption Letter arrived on June 2, 2005. (Brantley Decl. ¶ 26; Stalter Decl. Ex. 1;.) The Benefits Interruption Letter informed her that she had to submit an attending physician's statement by June 9, 2005, or "she would risk not receiving compensation for any unapproved absences." (Stalter Decl. ¶ 15; Brantley Decl. ¶ 42.)
As noted supra in note 2, there is conflicting information as to when Brantley actually submitted the pregnancy confirmation statement.
Pursuant to regulations implementing the FMLA, an "employer shall advise an employee whenever the employer finds a certification incomplete, and provide the employee a reasonable opportunity to cure any such deficiency." 29 C.F.R. § 825.305(d). Brantley's health care provider submitted two different Nationwide forms at her request — the pregnancy confirmation statement on or around May 13, 2005, and the attending physician statement on June 6, 2005. Nationwide appears to only recognize the June 6, 2005 attending physician's statement form as "medical certification" and ignores the fact that she submitted the pregnancy confirmation statement in May of 2005 containing the pregnancy diagnosis. However, the "having a baby packet" Nationwide sends to its pregnant employees specifically says that a pregnancy confirmation statement "provide[s] necessary documentation for FMLA job protection." ( See Stalter Decl. Ex. 2, at p. 2.) Thus, by Nationwide's own policy, if the pregnancy confirmation statement was insufficient or incomplete to confer FMLA protection on Brantley, Nationwide should have sent her written notice of what she needed to do to correct the deficiencies. Plaintiff has presented evidence that she received no written notices regarding her medical certification until the Benefits Interruption Letter was sent on June 2, 2005. Accordingly, there is a genuine issue of material fact as to whether Nationwide failed to send Brantley written notification that the pregnancy confirmation statement was insufficient to confer protection under the FMLA and give her time to fix the deficiencies.
As noted below, pregnancy-related morning sickness is specifically mentioned as an example of "incapacity" potentially entitling an employee to FMLA protection. (Pl.'s Mem. Opp'n Summ. J. 20 (citing 29 C.F.R. § 825.114(e)).)
As to the June 6, 2005 attending physician's statement, Defendant argues that 29 C.F.R. § 825.305(d) merely requires an employer to send written notice if the medical certification is "incomplete" not insufficient. Nationwide acknowledges that the form was completed properly but contends that the health care provider's own notes lacked any indication that Brantley suffered from a serious health condition. (Def.'s Mem. Supp. Summ. J. 29.) It further points out that at least one other jurisdiction has held that "incomplete" and "insufficient" are not interchangeable for purposes of triggering 29 C.F.R. § 825.305(d). See Shtab v. Great Bay Hotel Casino, Inc., 173 F. Supp. 2d 255, 264-65 (D.N.J. 2001). However, after reaching that conclusion based on a "literal reading" of the regulation, the Shtab court went on to say that whether the alleged deficiencies in the medical certification at issue in that case rendered the document "incomplete" was a "question of material fact for a jury to decide." Id. at 265. Similarly, in this case, the attending physician's statement arguably contained the basic information about Plaintiff's pregnancy but failed to include the detailed history of her diagnosis with hyperemesis gravidarum or the prescriptions associated with that condition. (Pl.'s Mem. Opp'n Summ. J. Ex. 35; Stalter Decl. ¶ 16, Ex 4.) A reasonable jury could find that the omission of Plaintiff's history of hyperemesis gravidarum — especially in light of her frequent phone calls to Wright apprising Wright of her symptoms and doctor's visits as well as Stalter's own notes reflect awareness that Brantley was taking two medications that treat hypremesis gravidarum and that she had "GI bleed" and "morning sickness" — rendered the attending physician's statement incomplete. Therefore, there is a genuine issue of material fact as to whether Nationwide failed to give Brantley written notice that her attending physician's statement was incomplete and permit her time to supplement it.
This argument does not apply to the pregnancy confirmation statement because Kathleen Stalter, the case manager for Brantley's absences, stated that the pregnancy confirmation statement was "incomplete." (Stalter Decl. ¶ 6.)
A reasonable jury could also find that the forms were both complete and sufficient, and that Nationwide's real violation was not designating Brantley's leave as covered by the FMLA. See infra Part III.
III. Time Period to Return Medical Certification
Plaintiff claims that Defendant violated the FMLA by not giving her fifteen days to return a medical certification in support of her requested FMLA leave. As noted above, the FMLA permits an employer to request medical documentation before granting FMLA leave. 29 C.F.R. § 825.305(a). When the leave is unforeseeable "the employee must provide the requested certification to the employer within the time frame requested by the employer (which must allow at least 15 calendar days after the employer's request) unless it is not practicable under the particular circumstances to do so despite the employee's diligent, good faith efforts." Id. § 825.305(b) (emphasis added).
On June 2, 2005, Brantley received a Benefits Interruption Letter informing her that she had to submit a medical certification for her absences beginning May 20, 2005 before June 9, 2005 — five business days or seven calendar days later. (Stalter Decl. Ex. 3.) The letter indicated that Nationwide's policy generally required employees to provide medical documentation "within 10 days of the first day of the absence" although the letter made no mention of the FMLA. ( Id.) The policy of permitting only ten days after the first absence to submit medical certification does not comply with the FMLA's regulations of permitting at least fifteen days. In addition, Plaintiff contends that she did not even know that the pregnancy confirmation statement she submitted was not enough to confer her FMLA designation for pregnancy-related absences until June 2, 2005, when she received the Benefits Interruption Letter. (Pl.'s Mem. Opp'n Summ. J. 20.) This is supported by the fact that the "having a baby packet" indicates that the pregnancy confirmation statement "provide[s] necessary documentation for FMLA job protection." ( See Stalter Decl. Ex. 2, at pp. 2.)
Finally, there is conflicting evidence as to whether Plaintiff could have reasonably gotten the attending physician's statement within fifteen days of May 20, 2005, because Plaintiff was admitted to the hospital emergency room the previous day for severe symptoms related to her pregnancy, and she was placed on bed rest until May 28, 2005. (Brantley Decl. ¶ 30; Pl.'s Mem. Opp'n Summ. J. Ex. 21.) During this time, a reasonable jury could find that "it [wa]s not practicable under the particular circumstances" for Plaintiff to get an attending physician's statement filled out by her physician. See 29 C.F.R. § 825.305(d).
There is a note from the Bowie Health Center dated May 19, 2005, indicating that Brantley would not be able to return to work until May 28, 2005. (Pl.'s Mem. Opp'n Summ. J. Ex. 21.) It is unclear why Plaintiff did not forward this doctor's note to Wright or Stalter. However, in light of Defendant's apparent policy of only accepting a complete attending physician's statement form as justification for FMLA leave, the note would have been insufficient anyway.
Accordingly, a reasonable jury could find that Nationwide improperly denied Plaintiff sufficient time to submit a medical certification, in violation of 29 C.F.R. § 825.305(b). There is quite simply a genuine issue of material of fact as to this question.
IV. Sufficiency of Medical Certification to Designate FMLA Leave
Next, Plaintiff claims that Defendant should have found her medical certification sufficient to designate her absences as FMLA leave. A "serious health condition" is defined by the FMLA regulations as "an illness, injury, impairment, or physical or mental condition that involves: (1) Inpatient care . . . [or] (2) Continuing treatment by a healthcare provider. . . ." 29 C.F.R. § 825.114(a). Defendant contends that the attending physician's statement "simply confirmed Plaintiff's pregnancy diagnosis and . . . described a normal pregnancy with no unusual restrictions." (Def.'s Mem. Supp. Summ. J. 10; Stalter Decl. Ex. 4.)
The Fourth Circuit has held that "the FMLA defines `serious health condition' broadly" and that "the regulations promulgated by the Secretary of Labor establish a definition of `serious health condition' that focuses on the effect of an illness on the employee and the extent of necessary treatment rather than on the particular diagnosis." Miller v. AT T Corp., 250 F.3d 820, 835 (4th Cir. 2001). Defendant contends that "pregnancy in and of itself is not a serious health condition" and that it "was entitled to require Plaintiff to substantiate her request for FMLA leave with a medical certification." (Def.'s Reply 3; see also Def.'s Mem. Supp. Summ. J. 14 (citing a series of cases distinguishing between pregnancy and incapacity due to pregnancy).) However, one type of "serious health condition" expressly stated in the FMLA regulations is "[a]ny period of incapacity due to pregnancy, or for prenatal care." Id. § 825.114(a)(2)(ii). In addition, morning sickness — a symptom from which Brantley suffered — is specifically listed as an example of "incapacity" entitling her to FMLA protection. (Pl.'s Mem. Opp'n Summ. J. 20; 29 C.F.R. § 825.114(e) ("Absences attributable to incapacity under paragraphs (a)(2)(ii) or (iii) qualify for FMLA leave even though the employee or the immediate family member does not receive treatment from a health care provider during the absence. For example . . . [a]n employee who is pregnant may be unable to report to work because of severe morning sickness." (emphasis added)).) There is certainly evidence on the record from which a reasonable jury could conclude that Plaintiff suffered from a serious health condition, hyperemesis gravidarum, and that she received treatment for it, including both medication and bed rest. (Pl.'s Mem. Opp'n Summ. J. Exs. 4, 20; Brantley Decl. ¶ 9.) Rather, as Nationwide aptly notes, the real issue is whether it was put on notice of Brantley's pregnancy-related complications through the receipt of a medical certification. (Def.'s Reply 3.)
Defendant contends that it never received medical certification for Plaintiff's absences because the attending physician's statement failed to mention any treatment for hyperemesis gravidarum or restrictions on Plaintiff's capacity to work. (Def.'s Mem. Supp. Summ. J. 10.) However, Plaintiff called her supervisor, Tanya Wright, virtually every day she was absent to explain that she was staying home due to pregnancy-related complications, including the fact that she was hospitalized and placed on bed rest following a particularly severe episode of vomiting and fainting. (See, e.g., Pl.'s Mem. Opp'n Summ. J. Exs. 6-9, 11-12, 21.) At the very least, in one of the communications between Wright and Stalter, Wright could have informed Stalter of the content of Brantley's phone calls and the specific reasons for her absences. In addition, Stalter's own notes reflect awareness that Brantley was taking two medications that treat hypremesis gravidarum and that she had "GI bleed" and "morning sickness." (Id. at Ex. 15.) A reasonable jury could find that Nationwide was sufficiently on notice that Brantley suffered from pregnancy-related complications or that the attending physician's statement form would have at least triggered an inquiry as to why the diagnosis of and treatment for hyperemesis gravidarum were not mentioned. There is a genuine issue of material fact on this matter.
This Court notes that under 29 C.F.R. § 825.114(e), "[a]bsences attributable to incapacity under paragraphs (a)(2)(ii) or (iii) qualify for FMLA leave even though the employee . . . does not receive treatment from a health care provider during the absence."
Defendant claims that it "has not, however, moved for summary judgment on the basis that Plaintiff failed to provide sufficient notice" but rather that she did not submit proper medical certification. (Def.'s Reply 9.) However, the "having a baby packet" specifically says that the pregnancy confirmation statement "provide[s] necessary documentation for FMLA job protection." (See Stalter Decl. Ex. 2, at pp. 2.)
V. Termination
Plaintiff also alleges in the Complaint that she was "disciplined" for taking FMLA leave. (Compl. ¶ 22.) However, it appears that this refers to her termination.
Brantley claims that she was fired in violation of three FMLA regulations: 29 C.F.R. § 825.220(c), which prohibits discrimination against employees for taking FMLA leave; 29 C.F.R. § 825.220(b), which provides that any other violation of the FMLA constitutes an unlawful interference with an employee's FMLA rights; and 29 C.F.R. § 825.305(b), discussed supra, which provides that an employee has at least fifteen days after the first absence from work to provide medical certification. In the one-count Complaint alleging a series of violations, the Plaintiff does not specifically allege retaliation in the context of alleging improper termination. However, she specifically alleges a violation of 29 C.F.R. § 825.220(c). The Fourth Circuit has specifically held that "FMLA claims arising under the retaliation theory are analogous to those derived under Title VII and so are analyzed under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-06 (1973)." Yashenko v. Harrah's NC Casino Co., LLC, 446 F.3d 541, 550-51 (4th Cir. 2006). Accordingly, this Court analyzes the termination both in the context of compliance with the FMLA as well as in a retaliatory context.
As an initial matter, Defendant argues that Plaintiff had already exhausted all of her FMLA leave by the time she was fired. (Def.'s Mem. Supp. Summ. J. 11.) Under the FMLA, "an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period. . . ." 29 U.S.C. § 2612. Twelve workweeks of leave is equivalent to 465 hours in Brantley's case, as she works 7.75 hours a day. Using data from the TOPS system, Defendant calculated that, as of April 1, 2005, Plaintiff had used 335.75 hours of FMLA leave. (Herath Decl. ¶ 11, Ex. 3; Def.'s Mem. Supp. Summ. J. Ex. E.) Assuming she received FMLA designation for her absences on April 14-15, 18, 22, 26, and 28-29, 2005, and May 2-3 and 9-13, 2005, she would have used 444.25 hours by May 13, 2005. ( Id. ¶ 17, Ex. 3.) Thus, Defendant concludes, assuming Plaintiff's absences beginning May 20, 2005 were designated as FMLA leave, she would have used all of her FMLA leave by midday May 24, 2005. (Def.'s Mem. Supp. Summ. J. 11.) Thus, Defendant argues, Plaintiff was not entitled to FMLA leave for approximately twelve business days before she was fired on June 10, 2005.
Plaintiff disputes that she had used 335.75 hours of FMLA leave as of April 1, 2005. According to her records, most of the absences cited by Defendant in 2004 were for personal reasons, utilizing vacation and sick leave, and were not designated as FMLA leave. (Pl.'s Mem. Opp'n Summ. J. Ex. 2.) Even some of the days she believed were FMLA-qualifying were never designated as such. (Id.) Thus, she calculated ten work days of FMLA leave remaining at the time she was fired on June 10, 2005, referring to her 2004 and 2005 planners. (Brantley Decl. ¶ 2; Pl.'s Mem. Opp'n Summ. J. Exs. 2, 27, 27A.) Defendant argues that there is insufficient evidence to back up Brantley's personal recollection of the reasons for her absences, because her planner notes were not always consistent. (Def.'s Reply 10.) However, Defendant presented the medical documentation Brantley submitted in connection with the dates she concedes she did request medical leave, but did not attach the same form of proof with respect to each of the remaining absences that were supposedly designated FMLA leave. (See Def.'s Mem. Supp. Summ. J. Ex. F.) Accordingly, this Court finds that Plaintiff has presented sufficient evidence to create a dispute of fact — the weight of the two sides' evidence will be determined by the jury.
In addition, this Court notes that Nationwide did not, in fact, designate Brantley's absences beginning May 20, 2005 as FMLA leave and has contested other requested leave in April and May of 2005. Thus, even by Defendant's own calculation, Plaintiff's FMLA leave was not, in fact, exhausted when she was fired. Defendant counters that Plaintiff would still have to show that she was prejudiced. (See id. at 20 (citing Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002).) In Ragsdale, the Supreme Court held that the FMLA
Plaintiff further notes that she had vacation and sick leave remaining at the time she was fired. She cites an opinion of the United States Court of Appeals for the Seventh Circuit in which that court held that "[a]s a general principle, the FMLA authorizes substitution of paid leave for FMLA leave." Brotherhood of Maintenance of Way Employees v. CSX Transp., Inc., 478 F.3d 814, 817 (7th Cir. 2007) (citing 29 U.S.C. § 2612(d)(2) ("An eligible employee may elect . . . to substitute any of the accrued paid vacation leave, personal leave, or family leave of the employee for leave provided under subparagraph (A), (B), (C), or (E) of subsection (a)(1) for any part of the 12-week period of such leave under such subsection.")). However, it does not appear from the record that Brantley attempted to make a substitution of FMLA leave for any of the paid leave she still had. Accordingly, Defendant could not be found in violation of the FMLA for failing to follow its own policies relating to paid leave if, in fact, she was denied use of that leave.
provides no relief unless the employee has been prejudiced by the violation: The employer is liable only for compensation and benefits lost "by reason of the violation," § 2617(a)(1)(A)(i)(I), for other monetary losses sustained "as a direct result of the violation," § 2617(a)(1)(A)(i)(II), and for "appropriate" equitable relief, including employment, reinstatement, and promotion, § 2617(a)(1)(B). The remedy is tailored to the harm suffered.535 U.S. at 89. The Supreme Court struck down a regulation purporting to enable the employee to retain FMLA leave that her employer failed to notify her would count against her total, holding that there was no prejudice to the plaintiff since she would have taken the leave anyway. Id. at 90-91. Defendant argues that, under Ragsdale, it faces no liability because "Plaintiff can proffer no evidence to establish that she would have taken less leave but for the designation or redesignation of her leave as FMLA-qualifying." (Def.'s Mem. Supp. Summ. J. 20.) However, the particular regulation in question only applied to situations where the employer gave employees more than the minimum twelve weeks FMLA leave, which is not the case here. Ragsdale, 535 U.S. at 87-89. In addition, there are still issues of fact as to whether Plaintiff had used her FMLA leave or would have chosen to use another form of leave. Accordingly, this Court will consider the merits of Brantley's claims that Nationwide violated the FMLA by firing her.
Defendant's principal argument why it did not violate the FMLA by firing Brantley is that she had not submitted "sufficient medical certification to establish that she had a serious health condition during the time period in issue. . . ." (Def.'s Mem. Supp. Summ. J. 13.) This argument was addressed supra, where this Court concluded that a reasonable jury could find that Nationwide improperly rejected Plaintiff's medical documentation or, at the least, did not give her sufficient time to correct or supplement it. Thus, as to 29 C.F.R. §§ 825.220(b) and 305(b), Plaintiff has presented sufficient evidence to create a genuine issue of material fact.
As to the allegation of a violation of 29 C.F.R. § 825.220(c), the Fourth Circuit's opinion in Yashenko, 446 F.3d at 541, requires an analysis under the retaliation theory analogous to a Title VII analysis under McDonnell Douglas Corp., 411 U.S. at 800-06. First, a plaintiff must present enough evidence to prove a prima facie case of discrimination. Reeves v. Sanderson Plumbing Products, 530 U.S. 133, 142-43 (2000). Second, once the plaintiff establishes a prima facie case, the burden shifts to the defendants to produce evidence that the adverse employment actions were taken against the plaintiff "for a legitimate, nondiscriminatory reason." Id. at 142 (citing Tex. Dept. Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981)). Third, the plaintiff is "afforded the `opportunity to prove by a preponderance of evidence that the legitimate reasons offered by the defendant[s] were not [their] true reasons, but were a pretext for discrimination.'" Id. (quoting Burdine, 450 U.S. at 253).
A prima facie case of retaliation requires a showing by Brantley that (1) that she engaged in a protected activity, (2) that her employer took an employment action against her that a reasonable employee would have found materially adverse, and (3) that there was a causal connection between the protected activity and the adverse employment action. Burlington Northern Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006); Yashenko, 446 F.3d at 551. The first element can be satisfied by Brantley taking FMLA leave. Likewise, it is undisputed that she was fired, in satisfaction of the second element. As to the third element, the Yashenko court concluded that close proximity in time between the FMLA leave and the adverse employment event is sufficient. Here, although there are disputes as to which absences in April, May, and June of 2005 were afforded FMLA designation, it is clear that they all occurred within a short period of time before Plaintiff's June 10, 2005 termination. Thus, Brantley has satisfied the prima facie case.
The burden shifts to Nationwide to articulate a legitimate, nondiscriminatory reason for firing her. Defendant points to the letter of termination sent to Plaintiff, which stated that she was being fired for not reporting to work since May 19, 2005, and failing to get those absences "certified." (Compton Decl. Ex. 1.) Noncompliance with company policy is a legitimate, nondiscriminatory reason for firing someone, so Nationwide has met its burden. Brantley thus has to show that this reason was pretext for retaliation.
As Defendant points out in its Reply, Plaintiff's Response lacks any particular discussion of her retaliation claim. However, she did submit evidence that Wright commented to Brantley that "people get pregnant all the time" and that Wright was constantly in communication with Plaintiff during her absences and knew of her pregnancy-related complications. ( See, e.g., Pl.'s Mem. Opp'n Summ. J. Exs. 6-9, 11-12, 21; Brantley Dep. 112:1-2.) It is unclear if Wright was involved in the firing decision. It appears from the declaration of April Compton, Human Resources Manager for the Defendant, that she personally reviewed Brantley's file and concluded that she violated company policy by being absent for a period of time. (Compton Decl. 1-5.) However, the letter of termination was signed by Wright, and there is evidence that Stalter, whose notes following the June 6, 2005 attending physician's statement indicate that she was going to stop Brantley's pay, was also involved. (Pl.'s Mem. Opp'n Summ. J. Ex. 36.) Stalter also mentions in her notes "I believe that the plan was to consider this a job abandonment", despite knowledge of Plaintiff's condition, so it is possible that she and others were involved in the decisionmaking process. (Id.) Thus, there is evidence that Wright, Stalter, and the Human Resources Department were all in contact regarding Plaintiff's case.
Defendant argues that "[a]s long as an employee has an honest belief in its proffered non-discriminatory reason for discharging an employee, the employee cannot establish that the reason was pretextual simply because it is ultimately shown to be incorrect." (Def.'s Mem. Supp. Summ. J. 23 (citing Price v. Thompson, 380 F.3d 209, 214 n. 1 (4th Cir. 2004)).) However, it is up to a jury to evaluate the facts and determine whether the decisionmakers actually believed Brantley abandoned her job or whether they considered her usage of FMLA leave in deciding to fire her. There are certainly triable issues of fact in light of the evidence that Wright and Stalter had been in communication with Brantley and knew of her pregnancy-related complications, regardless of what the attending physician statement said. As the Supreme Court noted in Burlington Northern, such an employment action could "dissuade a reasonable worker from making or supporting a charge of discrimination." 548 U.S. at 68 (citation omitted). There is a genuine issue of material fact to be resolved by the jury in this case with respect to whether the employment act in question would have had such a chilling effect and dissuaded similarly situated women from requesting FMLA leave.
Accordingly, Defendant's Motion for Summary Judgment is DENIED.
CONCLUSION
For the reasons stated above, Defendant Nationwide Mutual Insurance Co.'s Motion for Summary Judgment is DENIED. A separate Order follows.
ORDER
For the reasons stated in the foregoing Memorandum Opinion, this 22nd day of July 2008, it is HEREBY ORDERED that:
A. Defendant's Motion for Summary Judgment (Paper No. 19) is DENIED; and
B. The Clerk of the Court transmit copies of this Order and accompanying Memorandum Opinion to counsel for the parties.