Opinion
Case No. 3:00-CV-1852-X
September 24, 2001
MEMORANDUM OPINION AND ORDER
Before the Court is: Defendant's Motion for Summary Judgment, filed May 9, 2001; Plaintiff's Response to the Motion for Summary Judgment, filed May 31, 2001; and Defendant's Reply in Support of the Motion for Summary Judgment, filed July 30, 2001. For the reasons stated below, the Court GRANTS Defendant's Motion for Summary Judgment.
I. BACKGROUND
Plaintiff, Debra Collins ("Collins"), brought this action against her former employer, Merck-Medco RX Services of Texas, L.L.C. ("Merck-Medco") for denying her leave under the Family Medical Leave Act of 1993 ("FMLA") and retaliating against her for exercising her rights under the FMLA.
Collins began working for Merck-Medco in 1997 as a customer service representative. Her primary responsibility was to answer calls from doctors and patients regarding prescriptions. In 1999, Collins began to have medical problems which included tumors on her uterus. Collins last day of work was March 7, 2000. On March 8, 2000, Collins visited her physician, Dr. Linda Prentice, complaining of intense abdominal pain. She began a treatment plan with Dr. Prentice which included surgery to remove the tumor. Collins requested certification forms so she could take leave under the FMLA. Collins filled out her portion of the forms and submitted the certification forms to Dr. Prentice. On March 23, 2000, Merck-Medco received the completed certification form. Dr. Prentice had indicated that Collins suffered from a "serious health condition" but stated that Collins was not incapacitated and could perform the essential functions of her job. See Def. App. at 86-87.
Based on this certification from Dr. Prentice, Merck-Medco denied Collins FMLA leave. Collins was not happy with this decision and urged Elizabeth Brown, Merck-Medco's Human Resources Representative, to reconsider the FMLA application in light of short-term disability paperwork that was to be submitted by Dr. Prentice. At some point, Merck-Medco received the short-term disability paperwork from Dr. Prentice. Dr. Prentice indicated that Collins could "perform her own job with breaks for times when she has excessive bleeding and pain." Def. App. at 94.
There is a dispute among the parties as to when Merck-Medco received the short-term disability papers and from whom the paperwork was received. However, this dispute is not material and does not impact the Court's decision to grant summary judgment.
As of April 21, 2000, Collins had missed over four weeks of work without excuse since she was certified by her own physician to be capable of work. Thus, Merck-Medco sent a letter to Collins terminating her for excessive absences. See Def. App. at 95. On May 8, 2000, Dr. Prentice faxed an addendum to Merck-Medco indicating that Collins was placed on total disability until six weeks after Collins was to have surgery. See Def. App. at 102. Upon receiving this addendum, David Garza, Merck-Medco's Senior Manager of Human Resources, phoned Collins and indicated that she was being reinstated.
On September 13, 2000, Dr. Prentice released Collins for work but Collins did not go back to Merck-Medco. Because she did not return to work, Merck-Medco terminated Collins for job abandonment on October 2, 2000.
II. ANALYSIS
A. Summary Judgment Standard
Summary judgment is appropriate when, viewing evidence in the light most favorable to the nonmoving party, the summary judgment record demonstrates that no genuine issue of material fact exists, and therefore, the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). Once the movant has met this threshold, the burden shifts to the nonmovant to establish, with significant probative evidence, that a material issue of fact exists. See Kansa Reins. Co., Ltd. v. Congressional Mortgage Corp. of Texas, 20 F.3d 1362, 1371 (5thCir. 1994). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." See Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). The nonmovant may not rest on the pleadings, conclusory allegations or unsubstantiated assertions, but must identify specific facts that establish a genuine issue exists for trial. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). The nonmovant "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The nonmovant must "set forth specific facts showing that there is a genuine issue for trial." Liberty Lobby, 477 U.S. at 256.
Furthermore, the summary judgment movant need not supply evidence disproving the opponent's case. "[O]nce the movant establishes that there is an absence of evidence to support the nonmovant's case, the burden is on the nonmovant to make a showing sufficient to establish an issue of fact for each element as to which that party will have the burden of proof at trial." Epps v. NCNB Texas Nat'l Bank, 838 F. Supp. 296, 299 (N.D. Tex. 1993) (citing Celotex, 477 U.S. at 322-25). Courts do not assume, in the absence of any proof, "that the moving party could or would prove the necessary facts." See Little, 37 F.3d at 1075 (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871 (1990)).
B. FMLA Claims
Merck-Medco challenges both of Collins's FMLA claims. First, Merck-Medco argues that it did not violate the FMLA because Collins was not entitled to take leave under the FMLA. Second, Merck-Medco argues that Collins has produced no evidence to support her claim for retaliation. For the reasons set forth below, the Court agrees with both of these arguments.
1. FMLA Leave
The FMLA applies to private-sector employers of 50 or more employees. See 29 U.S.C. § 2611(4). Employees are eligible for FMLA leave if they have worked for a "covered" employer for at least 1,250 hours during the preceding 12 months. See 29 U.S.C. § 2611(2). Under the FMLA, an eligible employee is entitled to twelve weeks of leave in a twelve month-period because of: (1) the birth of a child; (2) the adoption of a child; (3) to care for certain family members who have a serious health condition; or (4) if the employee has a "serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612(a)(1). An employee needs to provide at least verbal notice sufficient to make the employer aware that the employee needs FMLA leave. See 29 C.F.R. § 825.302(c). It is undisputed that Merck-Medco is an employer that is covered by the FMLA and Collins is an employee covered by the FMLA. It is also undisputed that Collins gave notice that she sought to take leave under the FMLA. The issue is whether Collins was entitled to take FMLA leave because of a "serious health condition."
Under the FMLA, an employer may require that requested leave "be supported by a certification issued by the health care provider of the eligible employee." 29 U.S.C. § 2613(a). If the requested certification indicates that the leave is not FMLA-qualifying, the employer must not designate it as FMLA leave. See 29 C.F.R. § 825.208(e)(2). When an employer "requests from the employee and receives a physician's certification that indicates than an employee's serious health condition does not require him to miss work, the employer may rely on that certification until the employee provides a contradictory medical opinion." Stoops v. One Call, 141 F.3d 309, 313 (7th Cir. 1998).
The undisputed evidence shows that Collins did request FMLA leave and had her physician, Dr. Prentice, fill out a certification form. Dr. Prentice indicated that Collins's medical condition did not prevent her from performing her job. See Def. App. at 86-87. This "negative certification" allowed Merck-Medco to deny Collins's requested FMLA leave because Collins's "serious health condition" did not render her unable to perform the functions of her job. When Collins failed to work for four weeks after her FMLA leave was denied, she was terminated pursuant to Merck-Medco's attendance policy. Collins does not dispute the initial findings of Dr. Prentice, nor does she dispute that the forms were correct. Since Collins was not qualified to take leave Merck-Medco's decision to terminate her does not violate the FMLA.
In fact, Collins concedes that assuming her absences were not excused, it was proper for Merck-Medco to terminate her pursuant to the attendance policy. See Collins Depo. at 64-67, reprinted in Def. Appendix 18-19.
Collins argues that Merck-Medco should have waited for Dr. Prentice to submit the short-term disability certification before making the decision to terminate her. Even if Merck-Medco waited for these additional papers, the decision to terminate Collins would have been the same since Dr. Prentice again stated that Collins could work and was not disabled. See Def. App. at 94.
On May 8, 2000, Collins did provide Merck-Medco with a contradictory medical opinion-Dr. Prentice's addendum of disability regarding Collins's condition. Once Merck-Medco received this addendum from Dr. Prentice, it is undisputed that Collins was reinstated and granted FMLA leave. After her period of leave was over, Collins refused to return to work and could provide no additional explanation for her refusal. Because she refused to return to work, Merck-Medco terminated Collins. Since her FMLA leave was completed, Merck-Medco's decision to terminate her does not violate the FMLA.
Collins has provided no evidence to this Court which demonstrates that Merck-Medco violated the FMLA. While there may be factual discrepancies regarding the timeline of events between Merck-Medco and Collins, none are sufficient to raise a material issue of fact. Thus, the Court grants Merck-Medco's Motion for Summary Judgment on this claim. This holding, however, does not affect Collins's right to state a claim for retaliation under the FMLA.
2. Retaliation
To establish a prima facie case for discrimination or retaliation under the FMLA, the plaintiff must demonstrate that: (1) the employee is protected under the FMLA; (2) the employee suffered an adverse employment decision; and either (3a) that the plaintiff was treated less favorably than an employee who had not requested leave under the FMLA; or (3b) the adverse decision was made because of plaintiff's request for leave. See Bocalbos v. Nat'l Western Life Ins. Co., 162 F.3d 379, 383 (5th Cir. 1998). In this case, Collins has failed to meet the first-prong of the test since she was not engaged in a protected activity. Though requesting FMLA leave is a protected activity, Collins does not claim that her request is the basis for her retaliation claim. See Collins Depo. at 102, reprinted in Def. App. at 28. Rather, she claims it was her taking leave and subsequent termination that qualify as retaliation. However, Collins was never qualified for FMLA leave. Thus, her absence from work was not protected by the FMLA and Merck-Medco's decision to terminate does not violate the FMLA.
Even if Collins was engaged in a protected activity, she can provide no evidence of an adverse employment action. Merck-Medco's initial determination to terminate Collins was based on Dr. Prentice's negative certification and was reversed when she was reinstated and granted the leave she requested. Collins claims that she was billed for her medical expenses because of Merck-Medco's decision to terminate her, yet she has provided this Court with no evidence to support the claim. She also claims that she lost wages because of Merck-Medco's decision to terminate her but again she has failed to produce any evidence to support her claim. Thus, the Court grants Merck-Medco's Motion for Summary Judgment on this claim.
III. CONCLUSION
For the reasons stated above, Defendant's Motion for Summary Judgment is in all things
GRANTED.
SO ORDERED.