Opinion
Civil Action. No. 05-6007.
August 10, 2006
MEMORANDUM
Nextgen Healthcare Information Systems, Inc. (Nextgen) asks this Court to grant summary judgment against Plaintiff David Flannery on his Family Medical Leave Act (FMLA) claim alleging Nextgen failed to notify him he was eligible for FMLA leave and/or to designate his medical leave as FMLA-qualifying leave. I will grant Nextgen's Motion for Summary Judgment because Flannery does not qualify as an eligible employee for FMLA benefits and has not proven he suffered from a serious health condition.
Flannery also asserted an interference with plan benefits claim (Count II) and retaliatory discharge claim (Count III) under Section 510 of the Employee Retirement Income Security Act (ERISA), 29 U.S.C. §§ 1132, 1140. (Compl. ¶¶ 41-50.) Nextgen moved for summary judgment on both counts. (Def.'s Mem. Supp. Summ. J. 1.) Flannery agreed to voluntarily dismiss those claims. (Pl.'s Br. 17.)
The facts represent those that are undisputed or unchallenged by the parties.
Nextgen develops and sells electronic medical record systems and electronic practice management systems for use by medical practices. (Pl.'s Dep. 63, May, 4, 2006.) Nextgen hired Flannery as customer support analyst for its Horsham, Pennsylvania office effective October 1, 2002. ( Id. at 55.) Flannery's job required him to take telephone calls from clients and to help resolve issues or problems with Nextgen® software products. ( Id. at 62-65.) He spent 85% of his work day sitting at a desk working with a computer and phone, and the remaining 15% walking or standing. ( Id. at 73.) There were no significant physical activities associated with his job. ( Id. at 73.)
On August 2, 2003, Flannery suffered a non-work related back injury which required a one-day hospital stay. ( Id. at 43-44, 90-91.) Beginning on August, 4, 2003, his next scheduled day of work, Flannery began a medical leave due to his back condition. ( Id. at 45.) He was on bed rest for approximately three or four weeks and was prescribed medications. ( Id. at 99, 113-14.) Flannery paid at least five visits to Dr. Andrew Star of the Orthopaedic Specialty Center between August, 2003 and November, 2003. (Def.'s Mem. Supp. Summ. J. Ex. 4.) He never underwent surgery or physical therapy. (Pl.'s Dep. 98.)
On October 2, 2003, Flannery had a doctor's visit, at which time he underwent a bone scan which was normal and reported he was feeling better and felt almost pain free for several days. (Def.'s Mem. Supp. Summ. J. Ex. 4. at 2.) Dr. Star observed Flannery's flexibility, while limited, had improved and his back was not tender or swollen. ( Id.) In his medical opinion, he did "not see anything very dangerous or emergent," and left it to Flannery to decide when he felt he could sit long enough to return to work. ( Id.) He provided Flannery a note that gave him unrestricted medical clearance to return to work on October 3, 2003. (Def.'s Mem. Supp. Summ. J. Ex. 5 at 7.) Dr. Star never performed any tests to determine how many hours per day Flannery could walk, sit, and/or stand. (Pl.'s Dep. 215-16.) Nevertheless, Flannery admits he was functioning at a 95% level and more than capable of returning to work as of October 2, 2003. ( Id. at 47; Def.'s Mem. Supp. Summ. J. Ex. 8.)
Nextgen never received Dr. Star's October 2, 2003 note releasing Flannery to return to work with no restrictions. (Pl.'s Dep. 174; Def.'s Mem. Supp. Summ. J. Ex. 6, Gibbons Dep. 164, May 18, 2006.) Instead, Flannery emailed Anne Gibbons, Director of Customer Support, on October 2, 2003, that he would return to work on October 3, 2003. (Def.'s Mem. Supp. Summ. J. Ex. 9.) He informed Gibbons his doctor was "reluctant" to clear him but nevertheless did so after prescribing him more pain medication. Gibbons initially responded that Nextgen required a doctor's note clearing him to return to work (Def.'s Mem. Supp. Summ. J. Ex. 9), but sent a follow-up email raising concern about the doctor being "reluctant" to release him (Def.'s Mem. Supp. Summ. J. Ex. 10). She encouraged Flannery take a few days until his doctor deemed him 100% better (Def.'s Mem. Supp. Summ. J. Ex. 10) and keep Nextgen informed on his doctor's recommended return-to-work dates (Def.'s Mem. Supp. Summ. J. Ex. 11).
Flannery proceeded to continue his medical leave for six weeks and obtained two doctor's notes with return-to-work dates contingent on the outcome of more doctor's visits or tests. (Def.'s Mem. Supp. Summ. J. Ex. 5 at 8-9.) Dr. Star's last visit with Flannery was on November 12, 2003. In the medical chart note he commented Flannery "has had a bone scan, CAT scan and MRI scan, all of which have shown no acute trauma to the lower back. . . . From my standpoint I do not have anything to offer him. I do not recommend surgery for this or other extensive treatment." (Def.'s Mem. Supp. Summ. J. Ex. 4 at 4.) He suggested Flannery seek out a physical medicine and rehabilitation specialist if his back problems continued. Dr. Star issued a final doctor's note setting Flannery's return-to-work date as December 1, 2003. (Def.'s Mem. Supp. Summ. J. Ex. 5 at 10.) Flannery emailed Gibbons on November 16, 2003, though, that the return-to-work date in Dr. Star's last note was uncertain as he was hoping to see his family doctor and a different specialist. (Def.'s Mem. Supp. Summ. J. Ex. 13.)
Nextgen held Flannery's job open for over three months but needed someone to fill the customer service position because of Nextgen's growing customer base. (Def.'s Mem. Supp. Summ. J. Ex. 6, Gibbons Dep. 22-27.) Due to headcount restrictions, Nextgen could not hire a new employee without firing an existing one. ( Id. at 151; Def.'s Mem. Supp. Summ. J. Ex. 7, Cristaldi Dep. 15-17, May 12, 2006.) Nextgen terminated Flannery's job effective November 19, 2003. (Def.'s Mem. Supp. Summ. J. Ex. 14.) Flannery viewed himself as physically capable to work from October 2, 2003 to November 19, 2003 and more than capable of doing his job as of his termination date. (Pl.'s Dep. 52-53.)
DISCUSSION
A motion for summary judgment will only be granted if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). This initially requires a court to determine whether the moving party has demonstrated there is no dispute concerning the factual resolution of an essential element of the cause of action. A district court must consider the evidence presented by the moving party and draw all reasonable inferences in favor of the non-moving party. Med. Protective Co. v. Watkins, 198 F.3d 100, 103 (3d Cir. 1999); Celotex Corp. v. Catrett, 477 U.S. 317 (1986). If the moving party carries the initial burden of demonstrating there is no genuine issue of material fact, then the non-moving party, to withstand a motion for summary judgment, must "come forward with specific facts showing there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing Fed.R.Civ.P. 56(e)).
To prove Nextgen failed to provide him with medical leave under the FMLA, Flannery must prove he was entitled to FMLA benefits. The FMLA provides "an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period. . . ." 29 U.S.C. § 2612(a). An eligible employee is one "who has been employed for at least 12 months by the employer with respect to whom leave is requested under section 2612 of this title." 29 U.S.C. § 2611(2)(A)(i). The FMLA is silent as to the date from which the one-year work requirement flows. Congress, though, expressly delegated to the United States Department of Labor the authority to promulgate regulations implementing the FMLA. 29 U.S.C. § 2654. According to the those regulations, the determination of whether the employee has worked for twelve months "must be made as of the date the leave commences." 29 C.F.R. § 825.110(d). Therefore, at least one year must span the period between the date when the employee was hired and when the medical leave begins.
It is undisputed Flannery began his employment at Nextgen on October 1, 2002 and his medical leave commenced August, 4, 2003. Therefore, he worked for less than 12 months as of the date his leave commenced. Flannery contends he became eligible on October 1, 2003, his one-year anniversary date, while on leave. The regulation, though, is clear: the 12-month work requirement triggers " as of" the day the leave commences, not while on leave. 29 C.F.R. § 825.110(d) (emphasis added). It is well-established a court has to defer to an agency's interpretation unless it is "arbitrary, capricious, or manifestly contrary to the statute." Chevron U.S.A. Inc. v. NRDC, Inc., 467 U.S. 837, 844 (1984). Because the Department of Labor's construction of the "eligible employee" requirement is reasonable, I must defer to the regulation and find Flannery does not qualify as an eligible employee.
This Court's conclusion § 825.110(d) must be strictly construed is consonant with the courts that have addressed this issue. Walker v. Elmore County Bd. Of Educ., 379 F.3d 1249, 1252 n. 10 (11th Cir. 2004) (deeming employee ineligible for FMLA because not employed for twelve months prior to leave commencing); Willemssen v. Conveyor Co., 359 F. Supp. 2d 813, 819 (N.D. Iowa 2005) (same); Landendorf v. Intel Corp., 2004 U.S. Dist. LEXIS 29776, at *12-13 (D. Oregon Mar. 19, 2004); McEachern v. Prime Hospitality Corp., 2003 U.S. Dist. LEXIS 7997, *8-10 (D. Minn. May 8, 2003) (same); Sewall v. Chicago Transit Auth., 2001 U.S. Dist. LEXIS 330, at *14-16 (N.D. Ill. Jan. 16, 2001) (same).
Nevertheless, Flannery relies on a Fourth Circuit decision in which the court deemed an employee eligible for FMLA benefits despite working less than twelve months before her initial leave commenced. Babcock v. BellSouth Adver. and Publ'g Corp., 348 F.3d 73, 77-78 (4th Cir. 2003). I will accord no weight to the Babcock decision because it is factually distinct from the instant matter. In Babcock, a BellSouth employee's short-term disability (STD) leave ended on May 27, 2000, before her anniversary date, and BellSouth required her to return to work June 9, 2000, after the anniversary date, or risk losing her job. Id. at 77. On June 9th, Babcock asked for additional, unpaid medical leave and subsequently remained out of work. Id. BellSouth subsequently terminated Babcock's job on June 14th. Id. In determining Babcock qualified as an eligible employee, the Fourth Circuit focused on the fact BellSouth viewed Babcock's STD leave as authorized but no out-of-work time thereafter. Id. Babcock could not both be on leave and on an unexcused absence after May 27th, and because the court defined leave only as authorized leave, a second leave period commenced on June 9th when Babcock asked for additional leave time. Id. The Fourth Circuit concluded a reasonable jury could find Babcock qualified as an eligible employer as of June 9th based on her request for additional, unpaid leave because her initial leave period had ended and her one-year anniversary of employment had passed. Id. at 77-78.
Unlike Babcock, I find no evidence Nextgen ever deemed any period after August 4, 2003, the date Flannery's leave commenced, as unauthorized. It is undisputed Flannery's authorized STD leave ended on October 31, 2003 (Def.'s Mem. Supp. Summ. J. Ex. 15). Nextgen, though, neither expressly disapproved of Flannery's absence from work between November 1st and November 19th nor threatened the loss of his job if Flannery did not return to work by a set date. The fact Nextgen management permitted Flannery to continue his medical leave after his scheduled October 3rd return date, which was past his anniversary date, is irrelevant. Nextgen never viewed his continued leave as unauthorized and consequently did not create two distinct leave periods as in Babcock.
Nor do I find credible Flannery's claim Nextgen interfered with his October 3, 2003 return-to-work date and therefore cannot rely on the 12-month work requirement to escape liability. (Pl.'s Br. 12.) It is true Dr. Star medically cleared Flannery to return to work on October 3rd, but Nextgen never received Dr. Star's October 2nd note. Instead, Flannery informed Nextgen management his doctor was reluctant to clear him from work. While Nextgen was willing to have Flannery return with an appropriate doctor's note, Gibbons expressed concern for Flannery's return because of Dr. Star's reported reluctance. At best, I find Flannery's characterization of his medical status precipitated his continued leave, not any interference on Nextgen's part. Gibbons may have encouraged Flannery to extend his medical leave, but she did not require Flannery to do so.
Flannery also asks this Court to limit the reach of 29 U.S.C. § 2612(a) in this case because Nextgen manipulated its leave policies in order to avoid liability. (Pl.'s Br. 12.) The only reference in Plaintiff's submissions about Nextgen's leave policies and its relation to the FMLA is the lack of clarity as to the FMLA policy in Nextgen's handbook and Nextgen's failure to post FMLA notices in the company. (Pl.'s Br. 8-9.) Even accepting as true Flannery's characterization of the state of Nextgen's handbook and its inaction as to FMLA notices, which Federal Rule of Civil Procedure 56(c) requires of me, Flannery still cannot escape summary judgment. The Third Circuit has recognized an employee can maintain an action against the employer for interfering with FMLA rights by not informing the employee of those rights. Conoshenti v. Public Service Elec. Gas Co., 364 F.3d 135, 143-44 (3d Cir. 2004). However, Conoshenti involved an employee who was eligible for FMLA leave and had a serious medical condition. Id. at 141 n. 6. As I have already determined, Flannery is not eligible for FMLA rights because he does not qualify as an eligible employee. Therefore, Nextgen owed no obligations or duties to inform Flannery of his FMLA rights.
Even if Flannery qualifies as an eligible employee, FMLA mandates he suffer a serious health condition to qualify for leave. A serious health condition is one "that makes the employee unable to perform the functions of the position of such employee." 29 C.F.R. § 2612(a)(1)(d). Flannery correctly notes the Department of Labor regulations define serious health condition as "an illness or injury that requires inpatient care in a hospital or any subsequent treatment provided in connection with such care," 29 C.F.R. § 825.114, and his injury certainly qualifies as a serious health condition. The FMLA, however, mandates a higher showing — the injury must be one that renders the employee unable to return to his or her job. As of Flannery's one-year anniversary date, Dr. Star had deemed Flannery capable of returning to work without restrictions. By Flannery's own admission, he was at 95% and more than capable of returning to work. He further viewed himself as physically capable to work from October 2, 2003 to his termination date on November 19, 2003. Indeed, Flannery acknowledges he was more than capable of doing his job as of his termination date. Because Flannery has not pointed this Court to any evidence in the record that would raise a genuine issue as to whether his injury rendered him incapable of returning to work, summary judgment is proper.
An appropriate Order follows.