Opinion
CASE NO. 4:02CV3134
March 10, 2003
MEMORANDUM AND ORDER
This matter is before the Court on the Motion of the Defendant EGS Electric ("EGS") for Summary Judgment (Filing No. 31), EGS's Motion to Strike Index (Filing No. 53), and EGS's Motion for Leave to Submit Reply Brief, Instanter (Filing No. 64). EGS has submitted an Index and Evidence (Filing No. 33) in support of its Motion for Summary Judgment, and the Plaintiff, Lori Hall ("Hall"), has submitted an Index and an Amended Index of Evidence (Filing Nos. 43 and 49) in opposition, which are also the subject of EGS's Motion to Strike and its Motion for Leave to Submit a Reply Brief. EGS has also submitted an Index and Evidence (Filing No. 54) in support of its Motion to Strike Hall's Index and Evidence, and EGS has sought Leave to File deposition pages previously referenced in its brief in support of its Motion to Strike (Filing No. 63). The parties have submitted briefs with respect to the Motion for Summary Judgment and the Motion to Strike. For the reasons stated below, EGS's Motion for Leave to Submit Reply Brief will be granted, its Motion to Strike will be granted in part and denied in part, its Motion for Leave to File deposition pages will be granted, and its Motion for Summary Judgment will be denied.
MOTION FOR LEAVE TO SUBMIT REPLY BRIEF
The Court may, in its discretion, accept and consider a reply brief. EGS's Motion for Leave to Submit Reply Brief was filed on February 17, 2003, twenty-one days after the filing of Hall's Brief in Opposition to Defendant's Motion to Strike. EGS did attach a copy of the proposed Reply Brief to its Motion. While it might be argued that the Motion for Leave to Submit Reply Brief and the proposed Reply Brief could have been filed earlier, the acceptance and consideration of the Reply Brief will not delay the progress of this case. The Court will grant the Motion (Filing No. 64) and will accept and consider the Reply Brief.
MOTION TO STRIKE INDEX
Among the documents submitted by Hall in opposition to EGS's Motion for Summary Judgment were her own Affidavit and the deposition of Dr. Ronald Klutman. EGS has moved to strike several statements from the Hall Affidavit, as well as Exhibits attached to the Affidavit, and the entire deposition of Dr. Klutman. The Court will grant leave of EGS to file the deposition pages that it had inadvertently failed to file, but which were referenced in its original brief in support of the Motion to Strike (Filing No. 63)
All references to Plaintiff's Evidence will be to the Amended Index of Evidence at Filing No. 49. The affidavit of Lori Hall and the attachments thereto are located at Filing No. 49, Part 1, pages 1-37. For ease of reference, this document will be cited as "Hall Aff." at the applicable page number or exhibit number.
Attendance Record :
Attached to Hall's Affidavit as Exhibit C is an attendance record regarding her employment at EGS in July and August of 2001. EGS argues that the record should be stricken because Hall does not have personal knowledge about the preparation of the record, and therefore it is hearsay, not authenticated, and lacks adequate foundation. Hall argues that the document was produced by EGS, shown to Hall during her deposition, and was accepted into evidence at the Pretrial Conference as Exhibit 4, without objection by EGS. EGS's motion to strike Exhibit C, the attendance record, and statements contained in the second paragraph of page 2 of the Hall Affidavit, is denied.
Duty Status Report:
Attached to Hall's Affidavit as Exhibit F is a "duty status report" dated July 31, 2001, and allegedly completed by Hall's physician, Dr. Klutman. Hall contends that the duty status report form was given to her on July 30, 2001, by EGS's plant nurse, Heidi Benne, who, along with Dwight Wagoner, one of Hall's supervisors, told Hall not to return to work until she had a doctor's release. (Hall Aff. at 2-3) In her Affidavit, Hall states that she returned to work on July 31, 2001, with the completed duty status report. (Id. at 3.) EGS argues that the document is hearsay, not authenticated, and lacks adequate foundation. EGS notes that Hall did not remember the document at the time of her deposition and did not recall giving it to anyone. Hall argues that the document was received in evidence at the pretrial conference (referring to the Exhibit alternatively as 150 and 158), and that EGS offered no objection to it. The Court will deny EGS's Motion to Strike Exhibit F to Hall's Affidavit. With respect to Hall's statement in her Affidavit to the effect that she returned to work on July 31, 2001, with the duty status report, the Court recognizes that EGS disputes that fact. The Court finds that this dispute does not rise to a genuine issue of material fact precluding summary judgment in this case, and, for purposes of the Court's review of EGS's Motion for Summary Judgment, the Court will assume that Hall did not deliver the duty status report to any representative of EGS when she returned to work on July 31, 2001. EGS's Motion to Strike page three, lines 1-4 of the Hall Affidavit is denied.
Doctor's Release :
Hall states in her Affidavit that she was told by Ms. Benne and her supervisor, Dwight Wagoner, not to return to work until she had a doctor's release. (Hall Aff. at 2-3.) EGS argues that any statements made by Benne or Wagoner are hearsay and must be stricken. "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Fed.R.Evid. 801(c). If Benne or Wagoner told Hall to go home and not return until she had a doctor's release, Hall may testify to that fact in her Affidavit. Perhaps Benne or Wagoner will deny making the statements (although based upon the evidence offered by EGS in support of its Motion for Summary Judgment it does not appear that such statements will be denied), but the statements are not "hearsay." They are not offered to prove some matter asserted by Benne or Wagoner. They are simply offered to prove why Hall thought she was supposed to go home and not return to work until she had a doctor's release. Hall argues that the statements are admissible under Fed.R.Evid. 801(d)(2) as admissions of a party opponent. The Court finds merit in that argument, but need not reach that analysis, because the Court finds the statements are not hearsay under the most basic definition in Fed.R. Ev. 801(c). EGS's Motion to Strike the last sentence of page 2 of the Hall Affidavit is denied.
"Usual and Customary" Practice :
In Hall's Affidavit, she states that it was the usual and customary practice of EGS to give employees a written warning the first time they violated the EGS three-day no-call, no-show rule. (Hall Aff. at 4-5.) She notes that she was counseled for such a violation in 1995. (Hall Aff. at 4, and Exhibit I.) EGS moves to strike Hall's statement for lack of foundation, noting that the EGS employee handbook specifically states: "If you are absent for three consecutive working days without notifying your Supervisor, you will be considered to have voluntarily resigned and your employment will be terminated." (Hall Aff. at Ex. B at 26.) Hall alleges that not only was she counseled for such a violation in 1995, but the EGS Employee Manual provides for progressive discipline ranging from consultation and warning for a first offense, written warning for a second offense, final written warning for a third offense, and then termination. Hall Aff. at Ex. B at 27. EGS's Motion to Strike Hall's testimony in the last two lines of page 4 and the first line of page 5 of her Affidavit is denied. Her statement will be accepted as her understanding of EGS's "usual and customary practice" based upon her employment experience with EGS.
Ability to Return to Work/Dr. Klutman's Release :
In Hall's Affidavit, she states that she was able to return to work as an "assembler" at EGS by October 24, 2001. Hall Aff. at 5. She also states that her physician, Dr. Klutman, gave her a release to return to work in January 2002. Id. at 6. She attaches a release from Dr. Klutman dated July 2002. (Hall Aff. at Ex. L.) EGS objects to the statements, noting that at her deposition Hall stated that she did not apply for work in 2001 because of her back, and that she had not seen a doctor until after she applied for work at Wal-Mart on June 16, 2002. EGS moves to strike the statements contained in the second and third paragraphs of page 6 of the Hall Affidavit concerning Hall's ability to return to work by October 24, 2001, and her reference to the alleged release to return to work from Dr. Klutman in January 2002, as lacking in foundation, not based on personal knowledge, and contradicted by her previous sworn deposition testimony. Hall does not address this portion of EGS's Motion to Strike in her brief in opposition, and, therefore, the Motion will be granted.
Unemployment Office Statement :
EGS moves to strike Exhibit K to the Hall Affidavit, which is a letter dated August 24, 2001, addressed to Hall, which she contends she received from the Department of Labor, Unemployment Insurance Division. EGS contends that the letter is hearsay, and that Hall's reference in her Affidavit to the letter and to her understanding that she needed a release from her doctor to return to work is also inadmissible hearsay. Hall notes that EGS does not attack the authenticity of Exhibit K and that it is admissible under Fed.R. Ev. 803(8) as a record of a public office or agency. Hall contends that the exhibit is relevant because she was not eligible for unemployment benefits as long as she was unable to work. She contends that she was released from her doctor to return to work in January 2002, and she began to receive unemployment benefits on January 29, 2002. EGS's Motion to Strike Exhibit K to the Hall Affidavit, and to strike Hall's reference to that Exhibit in her Affidavit, is denied.
New Employment :
EGS moves to strike the last paragraph of page 7 of Hall's Affidavit because the information was not disclosed in discovery pursuant to Fed.R.Civ.P. 26(e)(2) and, therefore, should be stricken pursuant to Fed.R.Civ.P. 37(c)(1). Fed.R.Civ.P. 26(e)(2) requires a party to supplement or correct disclosures if the party learns that the earlier response is in some material respect incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing. In the last paragraph of Hall's Affidavit, on page 7, she states that she is employed at Building One Solutions cleaning restrooms and break rooms. She generally describes her work duties and salary, and states that she has had no further back problems. In her brief, Hall argues that the Affidavit itself satisfies the requirements of Fed.R.Civ.P. 26(e)(2) because it was signed December 5, 2002, filed December 10, 2002, and Hall's employment with Building One Solutions didn't begin until on November 22, 2002. The Affidavit does not state when Hall's employment with Building One Solutions began, but leads the reader to believe that the employment began in July or August 2002. Because the Court perceives a conflict in the information provided in the Hall Affidavit and in her brief, and because the Court finds that the information in the final paragraph of the Hall Affidavit does not give rise to any genuine issue of material fact which would preclude summary judgment in any event, the Court will sustain EGS's Motion to Strike the final paragraph of the Hall Affidavit for purposes of the Court's ruling on the Motion for Summary Judgment.
Dr. Klutman's Deposition :
EGS moves to strike the deposition of Dr. Klutman on the basis that the deposition was taken after the expiration of the original deadline for depositions (Filing No. 49, Part 1 at 38). EGS notes that the deposition was taken on December 3, 2002, the same day that Magistrate Judge Jaudzemis ordered the deposition held in abeyance pending resolution of EGS's objection to the deposition. On December 27, 2002, EGS's objection to the deposition was overruled (Filing No. 56). Accordingly, EGS's Motion to Strike the deposition is denied.
FACTS
Hall was employed by EGS at its Columbus, Nebraska, plant from May 1990 to August 14, 2001. (Hall Aff. at 1; Filing No. 49 at Part 2 at 9, hereafter "Barber Dep." at Ex. 102.) In August 2000, Hall suffered an injury to her back which was not work-related. (Hall Aff. at 1.) By July of 2001, Hall was working intermittently at EGS, using accumulated sick and vacation leave, because her back pain interfered with her ability to perform her regular job duties as an "assembler." (Hall Aff. at 1-2.) On July 26, 2001, Hall's physician, Dr. Ronald Klutman, wrote a note for Hall stating that she had low back strain and projecting a "return to work" of July 30, 2001. (Hall Aff. at Ex. D.) Hall furnished the note to EGS on July 26, 2001, and began physical therapy. (Hall Aff. at 2.) On July 27, 2001, Hall's physical therapist, Randy Perault, furnished her with a note outlining his suggested restrictions on her work activities. (Hall Aff. at Ex. E.) On July 30, 2001, Hall returned to work and gave Perault's note to one of her supervisors, Dwight Wagoner. (Hall Aff. at 2.) Heidi Benne, EGS's plant nurse, gave Hall a form titled "Duty Status Report" and told Hall to have her physician complete the report. Benne and Wagoner told Hall not to return to work until she had a doctor's release. (Hall Aff. at 2-3.) On July 31, 2001, Hall returned to EGS with the Duty Status Report completed by Dr. Klutman, projecting a return-to-work date of August 6, 2001. (Hall Aff. at 3.) It is unclear from the record what Hall did with the Duty Status Report and whether it was given to EGS representatives.
On August 1, 2001, Hall called Benne and told Benne that Hall was having severe back pain and would not be back to work until she could be reevaluated by her doctor. (Hall Aff. at 3.) On August 6, 2001, Hall called Benne and said Hall would not be in to work "for a while" and requested leave under the federal Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. ("FMLA".) Hall also called Dan Barber, EGS's Human Resources/Safety Coordinator and left a message on his answering machine, telling him that her back still prevented her from working and that she requested FMLA leave. (Hall Aff. at 3.) Barber prepared an application for FMLA leave by completing the top portion of the application form, and mailed the form to Hall on August 6, 2001. Barber originally indicated on the form that the date of Hall's request was August 6, 2001. He then changed that date to August 1, 2001. (Barber Dep. at 50-53, Ex. 92.) He sent a letter with the form, stating that Hall had until August 15, 2001, to return the form. (Barber Dep. at 52-53.) Hall received the form on August 7, 2001, completed it, and signed it on August 9, 2001. (Hall Aff. at 3, Ex. G.)
Hall saw Dr. Klutman on August 9, 2001, and again on August 15, 2001. (Hall Aff. at 3-4.) Dr. Klutman gave Hall another written note on August 15, 2001, stating that she "will try to return to work 9-3-01." (Hall Aff. at Ex. H.) Hall took the FMLA leave request to EGS along with the note from Dr. Klutman on August 15, 2001, and left them at the front desk. EGS date-stamped the FMLA form acknowledging receipt on August 15, 2001. (Barber Dep. at Ex. 92.) The FMLA form included the language: "If I fail to return to work on the required date, or if I fail to contact EGS Electrical Group — Columbus Plant while I am on leave, for over 30 days, I understand that EGS Electrical Group — Columbus Plant will consider that I have abandoned my position and terminate me from employment."
When Hall returned home on August 15, 2001, she received a letter from EGS, dated August 13, 2001, stating that she had "voluntarily resigned" due to her failure to appear for work or to call in for three consecutive days, and that her employment was finalized. (Hall Aff. at 4, Barber Dep. at Ex. 102.) EGS's employee manual does contain a "no call, no show" policy which states: "If you are going to be absent from work for any reason, you are required to report it to your Supervisor 30 minutes prior to the start of your shift. . . . If you are absent for three consecutive working days without notifying your Supervisor, you will be considered to have voluntarily resigned and your employment will be terminated." (Hall Aff., Ex. B at 26.) Hall contends that her attendance record with EGS originally reflected that she was sick on July 26, 27, 28, 30, 31, and August 1 and 6, but that the entries for August 1, 2, 3, and 6 were later altered to indicate that she was a "no call/no show" on those dates. (Hall Aff. at 5, Ex. C.)
Hall did not apply for any jobs for the remainder of 2001 due to continuing concerns about her back. (Hall Dep. at 80:21-81:1 at Filing No. 33, Part 5, Pigsley Aff. at Ex. 1C, hereafter "Hall Dep.") Hall obtained a written release from Dr. Klutman acknowledging that she could return to work without restrictions on July 30, 2002. (Filing No. 33, Exhibit 1K, Plaintiff's Answer to Defendant's Request No. 7 for Production of Documents, Defendant's Index of Evidence in Support of Summary Judgment.) Hall's earliest employment application was dated June 10, 2002. (Filing No. 33, Ex. 1B, Plaintiff's Answer to Defendant's Interrogatory No. 6.)
STANDARD OF REVIEW
The Court must examine the record in the light most favorable to the nonmoving party in the context of a summary judgment motion. U.S. ex rel. Quirk v. Madonna Towers, Inc., 278 F.3d 765, 767 (8th Cir. 2002.) The proponent of a motion for summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P. 56(c)). The proponent need not, however, negate the opponent's claims or defenses. Id. at 324-25.
In response to the proponent's showing, the opponent's burden is to "come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (quoting Fed.R.Civ.P. 56(e)). A "genuine" issue of material fact is more than "some metaphysical doubt as to the material facts." Id.
Summary judgment is "properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp., 477 U.S. at 325. Nevertheless, the Court's function is not to weigh the credibility and persuasiveness of evidence in the context of a motion for summary judgment. Kampouris v. St. Louis Symphony Soc'y, 210 F.3d 845, 847 (8th Cir. 2000).
ANALYSIS
Hall brought this action against EGS under 29 U.S.C. § 2617 for an alleged violation of FMLA. Specifically, Hall alleges that EGS violated 29 U.S.C. § 2615 by interfering with, restraining, or denying Hall's exercise of, or her attempt to exercise, her right to medical leave. FMLA provides eligible employees with a total of 12 work weeks of leave during any 12-month period due to a serious health condition that makes the employee unable to perform the functions of her job. 29 U.S.C. § 2612(1).
The parties agree that Hall was an "eligible employee" under 29 U.S.C. § 2611(2), and that EGS was an "employer" under 29 U.S.C. § 2611(4).
EGS contends that it is entitled to summary judgment because (1) Hall voluntarily resigned her employment with EGS when she was absent without calling her supervisor at least 30 minutes before the beginning of her shift each day for three consecutive days, in violation of the EGS Employee Handbook, and (2) Hall was physically unable to return to work at the end of the 12-week FMLA leave period.
Genuine Issues of Material Fact Remian as to Whether EGS's Proffered Reason for Hall's Termination Was Pretextual
To establish a prima facie case of retaliatory discharge under FMLA, an employee must establish that (1) the employee engaged in protected activity, such as a request for FMLA leave, (2) the employer took adverse employment action against the employee, such as termination, and (3) there is a causal connection between the employee's protected activity and the employer's adverse employment action. Darby v. Bratch, 287 F.3d 673, 679 (8th Cir. 2002) (holding that plaintiff presented sufficient evidence to create a genuine issue of material fact on the question whether defendants retaliated against her for her use of FMLA leave). With regard to third element, the Eighth Circuit Court has recognized that "[g]enerally, more than a temporal connection between the protected conduct and the adverse employment action is required to present a genuine factual issue on retaliation." Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999) (en banc). However, the Eighth Circuit Court has also acknowledged, even after Kiel, that temporal proximity can sometimes be sufficient to establish a prima facie case of causation. See Sprenger v. Federal Home Loan Bank, 253 F.3d 1106, 1113-14 (8th Cir. 2001) (temporal proximity sufficient to establish prima facie case of disability discrimination, but not to show pretext). In a recent FMLA retaliation case, the Eighth Circuit Court found that a two week period between the plaintiff's commencement of family leave and her discharge were "extremely close in time" and that "under our precedent this is sufficient, but barely so, to establish causation." Smith v. Allen Health Systems, Inc., 302 F.3d 827, 832-833 (8th Cir. 2002) and cases cited therein. The Smith Court characterized its holding in the case as "consistent with the overarching philosophy of the McDonnell Douglas system of proof, which requires only a minimal showing before requiring the employer to explain its actions."
Once the prima facie case is shown, then the burden-shifting analysis established by the United States Supreme Court for employment discrimination cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), is used. The employer must articulate a legitimate, non-discriminatory reason for the adverse employment action. If the employer does so, the employee must demonstrate that the proffered reason was not the true reason for the employment decision and that the employee's participation in the protected activity was, in fact, the real reason for the employment action at issue. Id. at 802, Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
Hall has met her burden of establishing a prima facie case. On July 30, 2001, the EGS plant nurse, Benne, and Hall's supervisor, Wagoner, told Hall not to return to work until she had a doctor's release. On August 6, 2001, Hall told Benne, and the EGS Human Resources/Safety Coordinator, Barber, that Hall requested FMLA leave. She was informed by Barber that she would have until August 15, 2001, to complete and submit her FMLA form. She returned the application form and a doctor's statement projecting a return-to-work date well within the FMLA leave allowance. The form contained a statement that Hall would be considered to have abandoned her employment with EGS if she failed to contact EGS for over 30 days. EGS terminated Hall's employment on August 13, 2001.
EGS proffers as its legitimate, nondiscriminatory reason for Hall's termination the fact that she did not call her supervisor each day for three consecutive days to report her absence. EGS acknowledged that employees on FMLA leave would not be required to call in daily under the Employee Handbook mandate. (Filing No. 33, Ex. 4, Aff. of Jeff Hess at 4.) Hall had been counseled for a violation of EGS's three-day no-call/no-show rule in 1995, and had not been terminated. (Hall Aff. at 4, Exhibit I.) The EGS Employee Handbook which contains the no-call/no-show rule also contains language providing for progressive discipline for violation of EGS rules. (Hall Aff. Ex. B at 27.) EGS dated Hall's FMLA application form indicating that the leave requested was to commence August 1, 2001. (Hall Aff. at Ex. G.) If the FMLA leave she requested had been approved, Hall would have been on FMLA leave when she allegedly violated the no-call/no-show rule. EGS offers no reason why Hall's FMLA leave request would have been denied, other than its contention that she "voluntarily resigned" due to her violation of the no-call/no-show rule. The apparent alterations to Hall's time sheet, changing days recorded as sick leave to days reflecting "no-call/no-show" (Hall Aff. at Ex. C.) raise a question about EGS's good faith.
EGS contends that this case is similar to Gilliam v. United Parcel Service, Inc., 233 F.3d 969 (7th Cir. 2000). UPS's termination of Gilliam was upheld on summary judgment, and affirmed by the Court of Appeals, because Gilliam violated a three-day no-call/no-show rule in the UPS collective bargaining agreement. On the day after Gilliam's child was born, Gilliam told his supervisor that he wanted to take a "couple" days or a "few" days off work. The request was granted, although Gilliam failed to comply with either 29 C.F.R. § 825.302(a) requiring 30-days' notice for FMLA leave for the birth of a child, or UPS's policy requiring 10 days' advance notice for such leave. After a week of leave, Gilliam failed to contact UPS and UPS terminated his employment for violation of a collective bargaining agreement three-day no-call/no-show provision. Gilliam alleged "retaliation" under FMLA and contended that he was entitled to stay away from work for up to 120 days without informing his employer when he would return. Gilliam, 233 F.3d at 970. The court disagreed, quoting from 29 C.F.R. § 825.302(d): "An employer may . . . require an employee to comply with the employer's usual and customary notice and procedural requirements for requesting leave." Gilliam, 23 F.3d at 971.
Unlike Gilliam, where the employer "did not think that he had taken FMLA leave in the first place" and where it appeared that the granting of leave "was simply a humane step by a caring supervisor willing to bend the rules," id. at 971, EGS knew full well that Hall had requested FMLA leave for a disability.
Although EGS has presented some evidence of a legitimate, nondiscriminatory reason for her termination, i.e., violation of the three-day no-call/no-show rule, Hall has presented evidence to support her contention that the real reason for her termination was her exercise of her rights under FMLA. A reasonable trier-of-fact could conclude that EGS invoked the three-day no-call/no-show rule as a pretext for terminating Hall's employment in retaliation for her request for leave under FMLA.
At a minimum, there are genuine issues of material fact regarding Hall's alleged "voluntary resignation" for violation of the no-call/no-show rule, and EGS is not entitled to summary judgment on its theory that Hall voluntarily resigned.
There Are a Genuine Issues of Material Fact as to Whether Hall Could Have Returned to her Job at EGS at the End of the FMLA Leave Period.
EGS has some evidence that Hall may not have been physically prepared to return to her job with EGS at the end of a 12-week FMLA leave period. Hall didn't work in 2001 and didn't apply for jobs until the summer of 2002. (Hall Dep. 80:21-81:1; 82:23-24.) This evidence is not conclusive, however. Disregarding Hall's own assertions which the Court has stricken for purposes of the Motion for Summary Judgment, the record still contains evidence from which a reasonable trier-of-fact could infer that Hall may have been able to return to her EGS job within, or at the end of, the FMLA leave period if EGS had not terminated her employment. Such evidence includes the written statements of Dr. Klutman, dated July 26, July 31, and August 15, 2001, in which he projects that Hall's recovery might be accomplished within a few days. (Hall Aff., Ex. D and F.) Although those projections may have been overly optimistic, they provide some evidence that her condition was one which, in the opinion of a medical professional, could improve rapidly. Because Hall's former job at EGS was not available to her at the end of what would have been the FMLA leave period, it is not possible for the Court to determine whether she could have attempted to return to work, and, if so, whether she could have succeeded in performing her job duties.
In Skrjanc v. Great Lakes Power Service Co., 272 F.3d 309 (6th Cir. 2001), the court found that Skrjanc had presented a prima facie case of retaliatory discharge under FMLA by showing that (1) he notified his employer of his intention to take leave, (2) he was adversely affected by an employment decision, i.e., discharge, and (3) there was proximity of time between his request for leave and the discharge. Id. at 314. The fact that Skrjanc did not begin work at a new job until five months after the surgery for which he had requested leave did not negate his prima facie case or warrant summary judgment for his former employer. The court noted that "the question of whether Skrjanc could have returned to his old job at Great Lakes Service at the end of twelve weeks would be a disputed issue of fact for the jury to decide." Id. at 314-15.
Because there are genuine issues of material fact as to whether Hall could have returned to work at the end of the FMLA leave period, EGS's Motion for Summary Judgment on the theory that Hall would not have returned to work at the end of the FMLA period is also denied.
IT IS ORDERED:
Defendant's Motion for Leave to Submit Reply Brief (Filling No. 64) is granted;
Defendant's Motion for Leave to File Deposition Pages (Filing No. 63) is granted;
Defendant's Motion to Strike Index (Filing No. 53) is granted with respect to (a) those portions of page 6, paragraphs 2 and 3 of Hall's Affidavit (contained in Filing 49) making reference to her ability to return to work on October 24, 2001, and the release she allegedly received from Dr. Klutman in January 2002; and (b) the final paragraph, page 7, of Hall's Affidavit (contained in Filing No. 49). The Defendant's Motion to Strike Index (Filing No. 53) is otherwise denied; and
Defendant's Motion for Summary Judgment (Filing No. 31) is denied.