Paulson v. Superior Plating, Inc.

Full title: Perry Paulson, Plaintiff, v. Superior Plating, Inc., Defendant

Court: United States District Court, D. Minnesota

Date published: Sep 27, 2004

Civ. No. 03-3118 (RHK/AJB) (D. Minn. Sep. 27, 2004)

Opinion

Civ. No. 03-3118 (RHK/AJB).

September 27, 2004

Ruth Y. Ostrom and Mark A. Greenman, Greenman Ostrom, Minneapolis, Minnesota, for Plaintiff.

Douglas R. Christensen and Ilyse S. Goldsmith, Dorsey Whitney, LLP, Minneapolis, Minnesota, for Defendant.

MEMORANDUM OPINION AND ORDER

RICHARD KYLE, District Judge

Introduction

Plaintiff Perry Paulson worked for Defendant Superior Plating, Inc. ("Superior") from October 1998 until he was terminated in May 2002. Paulson brings this action alleging claims of interference with his right to medical leave in violation of the Family Medical Leave Act ("FMLA"), retaliation in violation of the FMLA, and negligent infliction of emotional distress. Superior has moved for summary judgment on all claims. At oral argument, Paulson voluntarily dismissed his FMLA retaliation and negligent infliction of emotional distress claims. For the reasons set forth below, the Court will deny Superior's Motion as to Paulson's remaining FMLA interference claim.

Background

During his tenure at Superior, Paulson availed himself of FMLA leave on multiple occasions. For example, in August and September 2001, as well as in March 2002, Paulson took FMLA leave due to his asthma-bronchitis. (See Stover Aff. ¶¶ 8-9, 10, 14, 15, Exs. 1, 2, 5, 6.) In March 2002, Superior required Paulson to provide a Certification of Health Care Provider ("Certification") from his physician regarding his need for FMLA leave and required that he re-certify that need every 30 days. (Id. ¶ 14, Ex. 5.) Complying with Superior's request, Paulson returned the Certification on March 26, 2002. (Id. ¶ 15, Ex. 6.) The Certification, which was completed by Paulson's physician using the United States Department of Labor's Form WH-380, indicated that Paulson's "asthmatic bronchitis" was a "serious health condition" under FMLA's "absence plus treatment" category and that the duration of his incapacity was from March 21 to March 27, 2002. (Id. Ex. 6.) The physician also answered "No" to whether it was "necessary for [Paulson] to take work only intermittently¹ or to work on a less than full schedule as a result of the condition." (Id. (footnote added).)

1 "Intermittent leave means leave taken in separate periods of time due to a single illness or injury, rather than for one continuous period of time, and may include leave of periods from an hour or more to several weeks." 29 C.F.R. § 825.800.

On May 1 and 2, 2002, Paulson informed Superior that he would be unable to work due to his asthma. (Paulson Dep. Tr. at 68-69; Stover Aff. ¶ 16.) On Friday May 3, 2002, Paulson returned to work, although he was still feeling short of breath, shaky, and dizzy from his asthma, and provided a physician's note for his May 1 and 2 absences. (Paulson Aff. ¶ 3; Stover Aff. ¶ 17, Ex. 10.) The note stated: "seen today for asthma[;] off work 5/1-2/02 RTW when able." (Stover Aff. Ex. 10.) When Laura Stover, Superior's Human Resources Manager, received the note, she examined Paulson's March 2002 Certification and noticed that it was more than 30 days old. (Stover Aff. ¶ 18.)

Later on May 3, Stover asserts that she explained to Paulson that his Certification was out of date, that it did not indicate that he needed intermittent leave, and that he needed to obtain a re-certification in order for the absences to be considered FMLA leave. (Id. ¶ 21; Stover Dep. Tr. at 42.) Paulson asserts that Stover told him only that his physician's excuses would not be accepted and that May 1 and 2 would count against him under Superior's attendance policy. (See Paulson Aff. ¶ 3.) In any event, Paulson responded angrily to what Stover had said and ended the conversation. (Stover Aff. ¶ 22; Paulson Aff. ¶ 3.) Had Paulson not left, Stover would have provided him with the necessary paperwork for FMLA leave — i.e., a copy of his rights and responsibilities, the Employee Response, and a blank certification form — and fifteen days to complete it. (Stover Aff. ¶ 23.) Pending a new certification, his May 1 and 2 absences would continue to have been provisionally treated as FMLA leave. (Id.)

As a result of his conversation with Stover, Paulson felt short of breath, shaky, dizzy, and nauseated — he felt he was having an asthma attack. (Paulson Aff. ¶ 3.) Feeling as he did, he left work. (Id.) Although he did not tell Stover or his immediate supervisor, Matthew Kruse, how he was feeling (Stover Aff. ¶¶ 22, 26), he contends that he told the First Shift Supervisor, Marty Meister, that he "needed to leave because I was as sick as a dog" (Paulson Aff. ¶ 3). Meister disputes that Paulson told him he was leaving or was sick. (Meister Aff. ¶¶ 5, 6.) On his way home, Paulson felt he could not drive and called a friend to pick him up. (Id. ¶ 4.) Upon arriving home, he left a voicemail message with Superior's Vice President, Ken Harasyn, that "I'm very ill; I need you to call me as soon as possible. I am not well; I'm not doing well" and "Please call." (Id. ¶ 4.) Harasyn received a phone message from Paulson (Harasyn Dep. Tr. at 6-7), but the two dispute whether Harasyn returned the call (id. at 7; Paulson Aff. ¶ 4).

On Monday May 6, 2002, Stover and Harasyn discussed Paulson's May 3 conduct and Harasyn determined that Paulson would be terminated. (Stover Aff. ¶ 29.) Harasyn concluded that Paulson had violated Section 4 of Superior's Work Rules Policy when he left work without punching out or informing his supervisor. (Id.; Stover Dep. Tr. at 58, 69; Harasyn Dep. Tr. at 14-15.) Section 4 provides,

Section 4. LEAVING PLANT DURING WORKING HOURS:

An employee who leaves the plant during working hours must:

1. Notify their Supervisor or the shift Supervisor on duty.

2. Punch out before leaving and punch in immediately upon returning to work.

3. In case of serious injury on the job preventing punching out, or if an employee's work assignment takes them out of the plant, this rule shall not apply.

(Stover Aff. Ex. 8.)

After Paulson arrived at work on May 6, Harasyn and Stover convened a meeting to inform him of his termination. (Id. ¶ 31; Paulson Aff. ¶ 5.) Also present at the meeting was Kruse, Oscar Jones (Paulson's union steward) and Mike Loeffler (another union steward). (Stover Aff. ¶ 31; Paulson Aff. ¶ 5.) Stover contends that at no time during the meeting did Paulson mention that he did not feel well on May 3 or attempt to present a physician's note. (Id. ¶¶ 32, 34; see Jones Dep. Tr. at 7-8.) Paulson, in contrast, contends he explained during the May 6 meeting that he had problems with his asthma on May 3 and had secured a physician's note to cover it, which he had with him, but that Stover and Harasyn refused to look at the note. (Paulson Aff. ¶ 5; Paulson Dep. Tr. at 137-39.)² That note, dated May 6, states, "Was seen for asthma 5/2/02[;] missed work 5/2 3[;] Can RTW 5/6/02." (Stover Aff. Ex. 10.)

2 Superior contends that Paulson's allegations contained in his Affidavit contradict his deposition testimony and cannot create a genuine issue of material fact. (Def.'s Reply Mem. in Supp. at 2-3, 3 n. 2 (citing American Airlines, Inc. v. KLM Royal Dutch Airlines, Inc., 114 F.3d 108, 111 (8th Cir. 1997)).) The following exchange occurred during Paulson's deposition in the midst of questions regarding the May 6 meeting: "Q. And did you, during that meeting, offer any defense or explanation for your actions on May 3rd? A. I guess I don't recall because I was in such shock over what was going on." (Paulson Dep. Tr. at 97.) While a party cannot defeat summary judgment by contradicting earlier testimony, Paulson's Affidavit is not the "sudden and unexplained revision of testimony" that ordinarily raises concern. See American Airlines, 114 F.3d at 111 (citation and internal quotations omitted). Any ambiguity or conflicts in his testimony are "matters for the jury to sort out." Id. (citation and internal quotations omitted).

Shortly after his termination, Paulson's union filed a grievance on his behalf. (Jones Aff. ¶ 12.) At the time, Paulson did not know of the union's action. (Paulson Aff. ¶ 6.)³ On May 8, 2002, Superior and the union held a grievance meeting, which Paulson did not attend, and Superior agreed to reinstate Paulson effective May 13, 2002, treat his absences for May 1 and 2 as FMLA leave, and change the termination to a five day suspension. (Stover Aff. ¶ 36.) The union, which was responsible for notifying Paulson of this decision (Stover Dep. Tr. at 72; Jones Dep. Tr. at 15), made several unsuccessful attempts to contact him (Jones Aff. ¶¶ 18-23; Earley Aff. ¶¶ 15-24, 26-30). For example, the union sent Paulson a certified letter, and left phone messages with someone at what it believed to be his phone number, stating that he was reinstated and needed to return to work on May 13, 2002. (Jones Dep. Tr. at 9-10; Earley Aff. ¶¶ 16, 17, Ex.1.) Stover also left voicemail messages at what she believed to be his number. (Stover Dep. Tr. at 80; Stover Aff. ¶¶ 39, 41.)

3 Superior again contends that Paulson's allegation contained in his Affidavit contradicts his deposition testimony, in which he testified that the union told him "they were going to . . . have a meeting with everyone here and get this back on track because he said you're terminated right now." (Def.'s Reply Mem. in Supp. at 3 n. 2 (citing Paulson Dep. Tr. at 98).) For the reasons set forth in footnote 2, these "conflicts" are for the jury to sort out.

On May 16, 2002, Stover sent Paulson a certified letter explaining that because he did not return to work Superior considered him to have voluntarily ended his employment effective May 15, 2002. (Stover Aff. ¶ 42, Ex. 9.) That same day, the union also sent Paulson a certified letter stating that it could no longer proceed on his grievance. (Earley Aff. ¶ 26, Ex. 2.)

From May 6 until May 20, 2002, Paulson contends he never received any communications from the union or Superior. (Paulson Aff. ¶ 6; Abrahamson Aff. ¶ 1.) On May 20, 2002, Paulson received the three certified letters that were sent to him. (Paulson Aff. ¶ 7.) He was not home when the post office had previously attempted delivery and only then did he learn that his union grieved his termination and that he had been reinstated. (Id.)

Nearly a year later, on May 12, 2003, Paulson initiated this lawsuit. Superior's summary judgment motion followed.

Standard of Review

Summary judgment is proper if, drawing all reasonable inferences favorable to the nonmoving party, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). The moving party bears the burden of showing that the material facts in the case are undisputed. See Celotex, 477 U.S. at 322; Mems v. City of St. Paul, Dep't of Fire Safety Servs., 224 F.3d 735, 738 (8th Cir. 2000). The court must view the evidence, and the inferences that may be reasonably drawn from it, in the light most favorable to the nonmoving party. See Graves v. Arkansas Dep't of Fin. Admin., 229 F.3d 721, 723 (8th Cir. 2000);Calvit v. Minneapolis Pub. Schs., 122 F.3d 1112, 1116 (8th Cir. 1997). The nonmoving party may not rest on mere allegations or denials, but must show through the presentation of admissible evidence that specific facts exist creating a genuine issue for trial. See Anderson, 477 U.S. at 256; Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995).

Analysis

Paulson alleges that his absence from work on May 3, 2002 was protected under the FMLA and that Superior unlawfully interfered with his exercise of FMLA rights when it terminated his employment on May 6. (Pl.'s Mem. in Opp'n at 8, 9.) Under the FMLA, an eligible employee is entitled to twelve workweeks of leave during any twelve-month period if he or she 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)(D); see Spangler v. Federal Home Loan Bank of Des Moines, 278 F.3d 847, 851 (8th Cir. 2002). The FMLA prohibits an employer from interfering with an employee's right to take medical leave. 29 U.S.C. § 2615(a)(1). Any violation of the FMLA or its regulations constitutes interference. 29 C.F.R. § 825.220(b).

When an employee's need for leave is unforeseeable,⁴ the employee "should give notice to the employer of the need for FMLA leave as soon as practicable under the facts and circumstances of the particular case. It is expected that an employee will give notice to the employer within no more than one or two working days of learning of the need for leave." 29 C.F.R. § 825.303(a). "`An employee need not invoke the FMLA by name in order to put an employer on notice that the Act may have relevance to the employee's absence from work.'"Spangler, 278 F.3d at 852 (quoting Thorson v. Gemini, Inc., 205 F.3d 370, 381 (8th Cir. 2000)). Rather, "`[u]nder the FMLA, the employer's duties are triggered when the employee provides enough information to put the employer on notice that the employee may be in need of FMLA leave.'" Id. (citing Thorson, 205 F.3d at 381; Browning v. Liberty Mut. Ins. Co., 178 F.3d 1043, 1049 (8th Cir. 1999)); see 29 C.F.R. § 825.303(b) ("The employee need not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed."). In such situations, "[t]he employer will be expected to obtain any additional required information through informal means." 29 C.F.R. § 825.303(b).

4 The FMLA regulations treat foreseeable and unforeseeable leave differently. There is no suggestion from either party that Paulson's leave on May 3 was foreseeable.

A. Notice on May 3

Superior argues that Paulson's FMLA interference claim fails because he did not provide adequate notice of his need for leave on May 3, 2002.⁵ (Def.'s Mem. in Supp. at 11-13.) Superior challenges as inadequate Paulson's May 3 statement to Meister that he "needed to leave" because he was "sick as a dog" and his May 3 phone message to Harasyn that "I'm very ill; I need you to call me as soon as possible. I am not well; I'm not doing well." Relying principally upon Collins v. NTN-Bower Corp., 272 F.3d 1006 (7th Cir. 2001), Superior argues that these statements are insufficient to put it on notice. (Def.'s Mem. in Supp. at 11-12.) In Collins, the Seventh Circuit affirmed summary judgment for the employer when an employee suffering from depression called and advised her employer only that she was "sick." 272 F.3d at 1007. The court concluded that the notice was inadequate as a matter of law because "sick" did not imply a "serious health condition." Id. at 1008.

5 Superior concedes for the purposes of this Motion that Paulson suffered from a "serious health condition." (Def.'s Reply Mem. in Supp. at 3.)

Paulson responds that Superior had sufficient notice on May 3 that his absence for that day was FMLA protected. (Pl.'s Mem. in Opp'n at 16-18.) Relying upon Spangler v. Federal Home Loan Bank of Des Moines, 278 F.3d 847 (8th Cir. 2002), he contends that Superior was on notice as a result of his statements to Meister and Harasyn and Superior's knowledge that he was coming off of two consecutive asthma-related absences. (Id. at 17, 18.) InSpangler, the employee informed her employer that she was suffering from "depression again." Spangler, 278 F.3d at 852. The court viewed the employee's statement, coupled with the employer's knowledge that the employee had previously needed leave for depression, "as a potentially valid request for FMLA leave." Id. at 852.

In construing the facts in a light most favorable to Paulson, a genuine issue of material fact exists as to whether Paulson provided adequate notice on May 3. See Spangler, 278 F.3d at 852-53. In Spangler, the court distinguished Collins on the ground that "[u]nlike Collins, the [employer] here knew [the employee] suffered from depression, knew she needed leave in the past for depression and knew from [the employee] specifically [on the day in question] she was suffering from `depression again.'"Id. at 852. The same can be said in this case: Superior knew Paulson suffered from asthma, knew he needed leave in the past for asthma — in fact, it knew that he was just returning from two consecutive days away from work because of asthma — and knew from Paulson specifically on May 3 that he "needed to leave" because he was "sick as a dog" and "I'm very ill; I need you to call me as soon as possible. I am not well; I'm not doing well." Paulson is not required to invoke the FMLA by name in order to put Superior on notice; rather Superior's duties under the FMLA are triggered when Paulson provides enough information to put it on notice that he may be in need of FMLA leave. Id. at 852. As such, Superior had the burden "to obtain any additional required information through informal means." 29 C.F.R. § 825.303(b). Given Paulson's statements and Superior's knowledge, the Court views Paulson's statements as potentially valid requests for FMLA leave. See Spangler, 278 F.3d at 852.⁶

B. Notice on May 6

6 Superior's reliance on two other cases — Bailey v. Amsted Indus. Inc., 172 F.3d 1041 (8th Cir. 1999) and Slaughter v. Am. Bldg. Maintenance Co., 64 F. Supp. 2d 319 (S.D.N.Y. 1999) — is misplaced. (Def.'s Mem. in Supp. at 12.) Unlike Paulson, theBailey plaintiff failed to provide adequate notice because he relied solely upon his employer's "knowledge that he had serious medical conditions, was under medical care, and needed to miss work from time to time." 172 F.3d at 1046. Also unlike Paulson, the Slaughter plaintiff failed to provide adequate notice because he merely told his employer that he was "sick." 64 F. Supp. 2d at 328. As noted above, Superior's awareness of Paulson's recent asthma-related leave distinguishes this case from Slaughter. Moreover, although the Slaughter court ultimately found plaintiff's notice inadequate, it noted that "an employee's notice to his or her employer should be evaluated in light of the employee's prior need for absences and/or the employer's general awareness of the employee's health condition."Id.

Superior also argues that any notice it received on May 6 was untimely.⁷ (Def.'s Mem. in Supp. at 12-15.) First, it asserts that such notice was untimely because it was not "as soon as practicable." (Id. at 12-14.) The Court disagrees. The applicable regulations state that when leave is unforeseeable, the employee "should give notice to the employer of the need for FMLA leave as soon as practicable under the facts and circumstances of the particular case. It is expected that an employee will give notice to the employer within no more than one or two working days of learning of the need for leave." 29 C.F.R. § 825.303(a). In this case, while Paulson needed to provide notice "as soon as practicable," he had "no more than one or two working days" to do so. Id.; see, e.g., Carter v. Ford Motor Co., 121 F.3d 1146, 1148 (8th Cir. 1997) (citing § 825.303(a) and stating that notice "`as soon as practicable'" generally "means no more than two days after learning of the need for leave"). While this may reflect "the outer limit of reasonable notice," Holmes v. Boeing Co., No. 98-3056, 1999 WL 9760, at *3 (10th Cir. Jan. 12, 1999) (cited in Def.'s Mem. in Supp. at 13), Superior did not wait to terminate Paulson until the time afforded under the regulations had expired — Monday May 6 was less than "two working days" from Friday May 3.

7 Although Paulson has produced sufficient evidence of adequate notice on May 3 to withstand summary judgment, the Court will also consider the evidence of notice on May 6.

Second, Superior asserts that any notice it received on May 6 was untimely because it had informed Paulson that he was terminated (or had decided he was to be terminated) before he informed it that he required FMLA leave. (Def.'s Mem. in Supp. at 14-15.) The Court again disagrees. Given Superior's precipitous decision to terminate, it should bear the risk that Paulson would later give notice as provided under 29 C.F.R. § 825.303(a). In a somewhat similar case, the Eighth Circuit observed the following about an employer's decision to terminate an employee before knowing whether the employee had taken leave to treat a serious health condition:

An employer does not avoid liability by discharging an employee who takes leave in order to seek treatment for a condition that is later held to be covered by the FMLA. The employer who precipitously fires an employee, when the latter claims the benefits of leave under the FMLA, bears the risk that the health condition in question later develops into a serious health condition within the meaning of 29 C.F.R. § 825.114(a).

Caldwell v. Holland of Texas, Inc., 208 F.3d 671, 677 (8th Cir. 2000). Caldwell's underlying rationale applies in this case. Were employers able to terminate employees before the time to provide notice allowed under the regulations has expired, then the protection afforded employees beset with unforeseeable leave would be rendered a nullity.⁸

C. "Negative Certification"

8 Superior relies on four cases to support its argument that Paulson's May 6 notice was untimely because he had already been terminated. (Def.'s Mem. in Supp. at 14-15.) Each are distinguishable. Three cases — Green v. Burton Rubber Processing, Inc., 30 Fed. Appx. 466 (6th Cir. 2002) (unpublished), Brohm v. JH Properties, Inc., 149 F.3d 517 (6th Cir. 1998), and Muska v. ATT Corp., No. 96C5952, 1998 WL 544407 (N.D. Ill. Aug. 25, 1998) (unpublished) — do not address the notice provision for unforeseeable leave contained in 29 C.F.R. § 825.303(a). The one case that does — Byers v. Toyota Motor Mfg., No. 97-297, 1997 U.S. Dist. Lexis 22901 (E.D. Ky. Dec. 22, 1997) — is distinguishable because in that case the plaintiff was terminated after missing "three consecutive work days," he did not inform his employer about why he missed work until a week after he was terminated, and he never requested medical leave.

Finally, Superior contends that even if Paulson had provided adequate and timely notice, his March 2002 Certification did not entitle him to leave. (Def.'s Mem. in Supp. at 15-17.) Specifically, it asserts that because his physician wrote "No" in the space where the Certification asked if he needed to take work intermittently or to work on a less than full schedule, it was not obligated to provide him with leave. In other words, Superior allegedly viewed the Certification as a "negative certification." (Id. at 16.) For support, it relies on Stoops v. One Call Communications, Inc., 141 F.3d 309 (7th Cir. 1998). In Stoops, the court found that the employee had not provided a qualifying reason for his leave because his physician's certification stated that he was not presently incapacitated and would not have to work intermittently or on a reduced work schedule. See 141 F.3d at 311, 312-13. As a result, the court held that "[w]here the employee provides the employer with a reason for his absence that the employer, based on the physician's certification, knows is not `qualifying,' the Act and the regulations place no obligation on the employer to grant the employee FMLA leave." Id. at 313. Central to the court's decision was its observation that despite the employee's knowledge that the employer was relying on this so-called "negative certification" and the employee's knowledge that continued absences would lead to termination, the employee "did nothing to obtain a contrary opinion." Id. Based on these observations, the court concluded that "[w]here an employer . . . requests from the employee and receives a physician's certification that indicates that 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 contrary medical opinion." Id.

Superior's reliance on Stoops is misplaced. First, there exists a genuine issue of material fact as to whether Paulson knew that Superior was relying on the March 2002 Certification as a negative certification. Such knowledge was significant to theStoops court because the employee "was the person most able to determine that the initial certification was `wrong' and was the person with the incentive, certainly the burden, to have it corrected." Id. at 313. In fact, the court faulted the employee for doing "nothing to obtain a contrary opinion." Id. Second, there exists a genuine issue of material fact as to whether Paulson knew that his asthma-related absences would lead to termination. Not only was such knowledge important in Stoops, see id. at 313, but the applicable regulation required Superior to advise Paulson of the consequences of an inadequate certification: "At the time the employer requests certification, the employer must also advise an employee of the anticipated consequences of an employee's failure to provide adequate certification." 29 C.F.R. § 825.305(d); see Chenoweth v. Wal-Mart Stores, Inc., 159 F. Supp. 2d 1032, 1038 (S.D. Ohio 2001) (finding jury question existed as to FMLA interference claim when employer failed to warn an employee that she could be terminated for not providing a certification). Finally, there exists a genuine issue of material fact as to whether Paulson provided Superior with a contrary medical opinion when he presented physician's notes on May 3 and May 6. This issue is not insignificant, as the Stoops court concluded that the employer could rely on the negative certification " until the employee provides a contrary medical opinion." Stoops, 141 F.3d at 313 (emphasis added).

Superior's reliance on Hoffman v. Prof'l Med Team, 270 F. Supp. 2d 954 (W.D. Mich. 2003) is similarly misplaced. (Def.'s Reply Mem. in Supp. at 8.) In Hoffman, plaintiff's physician answered "no" to the question asked in the certification as to whether plaintiff required intermittent leave or a reduced schedule. Id. at 963. Based on that answer, the employer denied plaintiff's request for leave and told her that it viewed her certification as not having "certified that [she] required any leave." Id. It then gave her "multiple opportunities to correct" the certification. Id. Given these circumstances, and relying on Stoops, the court concluded that plaintiff failed to show that her employer willfully⁹ violated the FMLA because she did not demonstrate that her employer knew its conduct violated the FMLA or that its interpretation of the certification was inconsistent with the FMLA, its regulations, or the Stoops decision. Id. at 964. In contrast to Hoffman, however, there exists genuine issues of material fact as to whether Paulson knew that Superior viewed his Certification as not certifying asthma-related leave and as to whether Paulson was given opportunities to correct the Certification. In further contrast, Superior does not argue that Paulson must show that it willfully violated the FMLA.¹⁰

9 Due to the statute of limitations applicable in that case, the Hoffman plaintiff was required to show a willful FMLA violation — i.e., she had to show either that her employer knew that its refusal to accept her physician's certification violated the FMLA or that its actions showed a reckless disregard for the FMLA. Id. at 962-63, 964; see 29 U.S.C. § 2617(c)(1), (2). In this case, however, neither party has suggested that Paulson has a similar burden.

10 Furthermore, Superior's current position with respect to the negative certification appears disingenuous. When Paulson came back to work on May 3, Superior was willing to give him fifteen days to obtain a new certification for his May 1 and 2 absences and would have provisionally considered those absences as FMLA qualifying. (See Stover Aff. ¶ 23); see also 29 C.F.R. § 825.311(b) (requiring employer to allow "at least 15 days" to obtain a recertification). This was so despite its now-asserted view that the negative certification did not entitle him to any asthma-related leave whatsoever.

Conclusion

Based on the foregoing, and all of the files, records, and proceedings herein, IT IS ORDERED that:

1. Count One of Plaintiff Perry Paulson's Complaint (Doc. No. 1), to the extent that it alleges retaliation in violation of the FMLA, has been voluntarily dismissed and therefore is DISMISSED WITH PREJUDICE;

2. Count Two of the Complaint, negligent infliction of emotional distress, has been voluntarily dismissed and therefore is DISMISSED WITH PREJUDICE; and

3. Defendant Superior Plating, Inc.'s Motion for Summary Judgment (Doc. No. 13) on Paulson's remaining Count One claim for interference in violation of the FMLA is DENIED and the case will proceed on that claim.¹¹

11 On a variety of grounds, Superior alleges that Paulson has suffered limited or no damages. (See Def.'s Mem. in Supp. at 22-25; Def.'s Reply Mem. in Supp. at 2.) These issues should be addressed at trial.