Opinion
ACTION NO. 4:02-CV-188-Y
September 9, 2003
ORDER PARTIALLY GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Pending before the Court is defendant City of Arlington, Robin Paulsgrove, and Larry Brawner's Motion for Summary Judgment [doc. # 11-1], filed February 21, 2003. Having carefully considered the motion, response, and reply, the Court concludes that the motion should be PARTIALLY GRANTED.
Paulsgrove is the chief of the Arlington Fire Department.
I. RELEVANT BACKGROUND
In April 2000, plaintiff Kim W. Lubke, who had been employed as a firefighter for the City of Arlington for 22 years, was terminated for not adequately substantiating leave he took on December 31, 1999, and January 1, 2000. On December 30, 1999, Lubke left a message at the Arlington Fire Department stating that he would be unable to work on December 31, 1999, and January 1, 2000, which was the Y2K weekend, because he needed to stay at home to care for his ill wife, Debbie Lubke. Upon his return to work on January 3, 2000, defendant Brawner, assistant fire chief, requested that Lubke submit a "Leave/Substantiation" form. Lubke completed this form, attaching a written physician statement and three prescription-drug receipts. Later that day, Brawner disapproved Lubke's request for leave because of "insufficient substantiation." In addition, Brawner requested that the internal affairs department investigate Lubke's absence over the Y2K weekend. The investigation took approximately three months and eventually resulted in the termination of Lubke. Subsequently, Lubke filed a complaint against the defendants on February 8, 2002, alleging entitlement and retaliation claims under the Family Medical Leave Act, 29 U.S.C. § 2601 et seq., and overtime and retaliation claims under the Fair Labor Standards Act.
The Y2K weekend was described by one web site as:
"Y2K" stands for the YEAR 2000 and is also referred to as the Millennium Bug. The Y2K problem stands for a failure that many computers and software will experience on January 1, 2000. There are a lot of computers that represent the year using two digits instead of four. For example, they use "98" instead of "1998". This works fine for dates between 1900 and 1999 ("00" to "99"). However, computers that use two-digit years might interpret the year 2000 as 1900 because both of these years end in "00".See http://www.ams-i.com/Pages/y2kfaq.htm.
The case was originally filed in state court. It was subsequently removed by the defendants to this Court on March 7, 2002. Lubke filed an amended complaint on May 12, 2003.
II. SUMMARY-JUDGMENT STANDARD
Summary judgment is proper when the record establishes "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. Civ. P. 56(c). An issue is considered "genuine" if "it is real and substantial as opposed to merely formal, pretended, or a sham." Bazan v. Hidalgo Cty., 246 F.3d 481, 489 (5th Cir. 2001) (citing Wilkinson v. Powell, 149 F.2d 335, 337 (5th Cir. 1945)). Facts are considered "material" if they "might affect the outcome of the suit under governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To determine whether there are any genuine issues of material fact, the Court must first consult the applicable substantive law to ascertain what factual issues are material. Lavespere v. Niagra Mach. Tool Works, 910 F.2d 167, 178 (5th Cir. 1990). Next, the Court must review the evidence on those issues, viewing the facts in the light most favorable to the nonmoving party. Id.; Newell v. Oxford Mgmt. Inc., 912 F.2d 793, 795 (5th Cir. 1990); Medlin v. Palmer, 874 F.2d 1085, 1089 (5th Cir. 1989).In making its determination on the motion, the Court must look at the full record including the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits. See FED. R. Civ. P. 56(c); Williams v. Adams, 836 F.2d 958, 961 (5th Cir. 1988). Rule 56, however, "does not impose on the district court a duty to sift through the record in search of evidence to support" a party's motion for, or opposition to, summary judgment. Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 n. 7 (5th Cir. 1992). Thus, parties should "identify specific evidence in the record, and articulate" precisely how that evidence supports their claims. Forsyth v. Barr, 19 F.3d 1527, 1536 (5th Cir. 1994). Further, the Court's function is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249.
To prevail on a motion for summary judgment, the moving party has the initial burden of demonstrating that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law. See Celotex Corp v. Catrett, 477 U.S. 317, 323 (1986). A defendant moving for summary judgment may submit evidence that negates a material element of the plaintiff s claim or show that there is no evidence to support an essential element of the plaintiff s claim. See Celotex Corp., 477 U.S. at 322-24; Crescent Towing and Salvage Co. v. M/V Anax, 40 F.3d 741, 744 (5th Cir. 1994); Lavespere, 910 F.2d at 178.
To negate a material element of the plaintiff's claim, the defendant must negate an element that would affect the outcome of the action. See Anderson, 477 U.S. at 247. If the defendant moves for summary judgment alleging no evidence to support an essential element of the plaintiff's claim, the defendant need not produce evidence showing the absence of a genuine issue of fact on that essential element. Rather, the defendant need only show that the plaintiff, who bears the burden of proof, has adduced no evidence to support an essential element of his case. See Celotex, 477 U.S. at 325; Teply v. Mobil Oil Corp., 859 F.2d 375, 379 (5th Cir. 1988).
When the moving party has carried its summary-judgment burden, the respondent must go beyond the pleadings and by his own evidence set forth specific facts showing there is a genuine issue for trial. Fed.R.Civ.P. 56(e). This burden is not satisfied by creating some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). If the evidence is merely colorable or is not significantly probative, summary judgment may be granted. See Anderson, 477 U.S. at 249-50.
III. ANALYSIS
A. Family Medical Leave Act ("FMLA") Claims
The purposes of the FMLA include "balanc[ing] the demands of the workplace with the needs of families" and "entitl[ing] employees to take reasonable leave for . . . the care of a . . . spouse . . . who has a serious health condition." 29 U.S.C.A. § 2601(b)(1) (2) (West 1999). The FMLA seeks to accomplish these two purposes "in a matter that accommodates the legitimate interests of employers." 29 U.S.C.A. § 2601(b)(3) (West 1999); see also 29 C.F.R. § 825.101 (b) (2002) ("The enactment of the FMLA was predicated on two fundamental concerns — the needs of the American workforce, and the development of high-performance organizations"). "A plaintiff can seek recovery for a violation of the FMLA under two different theories, the entitlement theory and the retaliation theory." Parker v. Hahnemann Univ. Hosp., 234 F. Supp.2d 478, 485 (D. N.J. 2002) citing Hodgens v. Gen'l Dynamics Corp., 144 F.3d 151, 159 (1st Cir. 1998).
1. Entitlement Claim
"The first theory of recovery under the FMLA is the entitlement, or interference, theory." Parker, 234 F. Supp.2d at 485. "It is based on the prescriptive sections of the FMLA which create substantive rights for eligible employees. Id. Under the FMLA, an eligible employee is entitled to 12 work-weeks of leave in a 12-month period for several reasons, including to care for a spouse who has a serious health condition. 29 U.S.C.A. § 2612(a)(1)(C) (West 1999). To determine whether an employee's leave request qualifies for FMLA protection, the employer must assess whether the request is based on a "serious health condition," and, for that purpose, may request supporting medical documentation. See 29 U.S.C.A. §§ 2613 2612(a)(1)(C) (West 1999); 29 C.F.R. § 825.302(c) (2002). A "serious health condition" as relevant here "means an illness, injury, impairment, or physical . . . condition that involves . . . continuing treatment by a health care provider." 29 U.S.C. § 2611(11) (West 1999).
The Act applies to private-sector employers of 50 or more employees. 29 U.S.C.A. § 2611(4) (West 1999). An employee is "eligible" for FMLA leave if he has worked for a covered employee for at least 1,250 hours during the preceding 12 months. 29 U.S.C.A. § 2611(2) (West 1999).
Whether a condition is a "serious health condition" under the FMLA is "one of those ubiquitous mixed questions of fact and law." Thorson v. Gemini, Inc., 205 F.3d 370, 377 (8th Cir. 2000). "It is for the fact-finder to look at the record and decide if the evidence supports the elements of [the objective test set out in the FMLA regulations]." Id.
The regulations define "serious health condition" as an "illness, injury, impairment, or physical or mental condition that involves:
(2) Continuing treatment by a health care provider. A serious health condition involving continuing treatment by a health care provider includes any one or more of the following:
(i) A period of incapacity . . . of more than three consecutive calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves:
(A) Treatment two or more times by a health care provider . . .; or
(B) Treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider.
. . . .
(iii) Any period of incapacity or treatment for such incapacity due to a chronic serious health condition. A chronic serious health condition is one which:
(A) Requires periodic visits for treatment by a health care provider . . .;
(B) Continues over an extended period of time (including recurring episodes of a single underlying condition); and
(C) May cause episodic rather than a continuing period of incapacity ( e.g., asthma, diabetes, epilepsy, etc.).
(iv) A period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective. The employee or family member must be under the continuing supervision of, but need not be receiving active treatment by, a health care provider. Examples include Alzheimer's, a severe stroke, or the terminal stages of a disease. . . .29 C.F.R. § 825.114(a) (2002).
Furthermore, the regulations further state that "a regimen of continuing treatment includes, for example, a course of prescription medication (e.g., an antibiotic)." 29 C.F.R. § 825.114(b).
"To present an [entitlement] claim under the FMLA, a plaintiff must show (1) [he] is an eligible employee under the FMLA, (2) defendant is an employer subject to the requirements of the FMLA, (3) [he] was entitled to leave under the FMLA, (4) [he] gave notice to the defendant of [his] intention to take FMLA leave, and (5) the defendant denied [him] the benefits to which [he] was entitled under the FMLA." Parker, 234 F. Supp.2d at 483. The employee bears the burden of proving that he was entitled to FMLA leave and that the employer violated the statute by denying him such leave. See De Hoyos v. Bristol Lab. Corp., 218 F. Supp.2d 222, 224 (D. P.R. 2002). In this case, the parties do not dispute the first two elements: that Lubke was an eligible employee and the City of Arlington is an employer subject to the requirements of the FMLA. However, the parties do disagree over elements three and four: whether Lubke was entitled to FMLA leave and whether he gave notice to the defendants of his intention to take such leave.
The defendants claim that they are entitled to summary judgment because of two main reasons: (1) Lubke was not entitled to FMLA leave because he elected to pursue leave under the City's sick-leave policy; (2) Lubke was not entitled to FMLA leave because he did not provide timely and sufficient medical certification of a serious health condition. When, as in this case, the need for FMLA leave is unforeseeable, an 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." 29 C.F.R. § 825.303 (2002). With respect to notice, the regulations further state:
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, except in extraordinary circumstances where such notice is not feasible. In the case of a medical emergency requiring leave . . . to care for a family member with a serious health condition, written advance notice pursuant to an employer's internal rules and procedure may not be required when FMLA leave is involved. . . . The employee need not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed. The employer will be expected to obtain any additional required information through informal means. The employee or spokesperson will be expected to provide more information when it can readily be accomplished as a practical matter, taking into consideration the exigencies of the situation.29 C.F.R. § 825.303 (2002) (emphasis added). "In determining whether an employee's leave request qualified for FMLA protection, the employer must assess whether the request is based on a `serious health condition', and, for that purpose may request supporting medical documentation." Satterfield v. Wal-Mart Stores, Inc., 135 F.3d 973, 975 (5th Cir. 1998) (citing 29 U.S.C. § 2613). "What is practicable, both in terms of the timing of the notice and its content, will depend upon the facts and circumstances of each individual case." Id. at 977. "The critical question is whether the information imparted to the employer is sufficient to reasonably apprise it of the employee's request to take time off for a serious health condition." Id.
"An employer may require that a request for leave . . . be supported by a certification issued by the health care provider of the eligible . . . spouse." 29 U.S.C.A. § 2613 (West 1999); see 29 C.F.R. § 825.305 (2002). See also 29 C.F.R. § 825.307 (2002). "The responsibility to request FMLA certification is the employer's." Thorson, 205 F.3d at 381-82.
"Whether an employee has given adequate notice [of a serious health condition] is generally an issue of fact for the jury to decide." De Hoyos, 218 F. Supp.2d at 226; see Mora v. Chem-Tronics, Inc., 16 F. Supp.2d 1192, 1209 (S.D. Cal. 1998). However, the defendants cite to several cases in which the courts found that summary judgment was appropriate on this issue. See, e.g., Satterfield, 135 F.3d at 980 (stating that the employer is not required to be "clairvoyant"); Price v. Marathon Cheese Corp., 119 F.3d 330, 335 (5th Cir. 1997) (finding that the plaintiff had "failed to adduce sufficient evidence to allow a reasonable jury to find that she suffered from a serious health condition"); Walthall v. Fulton Co. Sch. Dist., 18 F. Supp.2d 1378, 1383 (N.D. Ga. 1998) (stating that the plaintiff, having elected to take paid sick leave, may not now claim that she was taking FMLA leave in order to state a FMLA claim); De Hoyos, 218 F. Supp.2d at 227 (FMLA claim is an afterthought and there was no evidence that plaintiff was exercising FMLA rights by taking paid leave to care for mother). After reviewing these cases and other applicable case law, the Court concludes that the facts in this case create a genuine issue of material fact as to whether Lubke gave adequate notice to the defendants of his need for FMLA leave. In the cases cited by the defendants, the plaintiffs seeking to be protected by the FMLA either, without question, sought leave under their paid sick-leave policy, or were promptly terminated after they obviously failed to provide adequate notice of their need for FMLA leave. In this case, Lubke was not terminated immediately after his unscheduled leave on December 31, 1999, and January 1, 2000, at a time when the defendants, arguably, had limited notice and information relating to the reasons for Lubke's unscheduled absence. Instead, the defendants initiated a lengthy internal investigation into Lubke's absence in which they gained additional information concerning the details surrounding Lubke's absence.
See, e.g., De Hoyos, 218 F. Supp.2d at 226 (noting that De Hoyos did not request leave under the FMLA either in writing or orally even when the leave form had a separately identified checkbox in which an employee could request FMLA leave); Walthall, 18 F. Supp.2d at 1383 (noting that the plaintiff's supervisor wrote her a letter stating specifically that her absence would be covered by the board's sick leave policy and the plaintiff did not, at any time, exercise her right to substitute paid sick leave for FMLA leave); Chaff in, No. Civ. A 96-2127, 1998 WL 19624 (E.D. La. Jan. 20, 1998).
See, e.g., Satterfield, 135 F.3d at 981 (stating that FMLA-leave was not implicated when "the only information [the plaintiff] imparted to Wal-Mart prior to its discharge decision was a note delivered to Wal-Mart by her mother . . . advising that she `was having a lot of pain in her side' and would not be able to work that day . . ., and her mother's statement to Neighbors that [the plaintiff] was `sick'"); see also Carter v. Ford Motor Co., 121 F.3d 1146, 1148-49 (8th Cir. 1997) (stating that even assuming the employee had a "serious health condition", the employee did not give Ford adequate or timely notice of his need to take leave because of such condition); Gay v. Gilman Paper Co., 125 F.3d 1432 (11th Cir. 1997).
The Court concludes that the following evidence, in combination, raises genuine issues of material fact:
(1) On December 30, 2000, at 8:11 p.m., Lubke left a telephone message on the "unscheduled leave call box" that his wife was ill, that he was taking family sick leave, that he would not be reporting to work on December 31, 1999, or January 1, 2000, and that the leave would be substantiated (Pl.'s App. at 283-84; 1057, 1142);
(2) when Lubke returned to work on January 3, 2000, he submitted, as requested by Brawner, a "Leave/Substantiation" form;
0n this form, Lubke indicated that he had "attached receipt(s) as required" and the leave was for a "family illness". In the space marked "Reasons for Absence," Lubke wrote, "Wife was ill with severe bronchitis/possible pneumonia. During coughing spells had strained back muscles and could not get out of bed. Needed my assistance." (Pl.'s App. at 4.) Lubke attached a written physician statement, dated December 22, 1999, from The Neighborhood Doctor that was signed by Dr. Alice Wilkerson. In the statement Wilkerson diagnosed Debbie with "Acute URI/Bronchitis," noted that she had a history of illness for one week, indicated that she had been given two breathing treatments, and prescriptions. Lubke also attached receipts indicating that Lubke was prescribed medicine on December 22, 1999, by Dr. Wilkerson and on December 29, 1999, by Dr. S. Pulliam. (Pl.'s App. at 6.)
(3) Debbie Lubke's testimony that "[f]rom the afternoon of December 29, 1999, through the early morning of January 3, 2000, [her] back pain had increased and remained at the point that [she] could not get up and down out of bed by [her]self [or] go to the bathroom by [herself]." (Debbie Lubke Aff. at 6; Pl.'s App. at 1106.)
(4) on January 18, 2000, during an internal investigation interview into his absence, Lubke stated:
(a) that his wife had a bronchial infection and that she had been ill with cold and flu symptoms for some time (Pl.'s App. at 87);
(b) that his wife's condition progressively got worse, she started complaining that her back was bothering her, and she had experienced problems in the past with her mid and upper back ( Id.);
(c) that Debbie had obtained two prescriptions, dated December 29, 1999, one of which was for her back ( Id. at 87-89); (d) on the evening of December 30, 1999, her back hurt so bad that she could not get up out of bed and Lubke was needed to assist her ( Id. at 88-89);
(5) on February 1, 2002, during an interview, Debbie Lubke stated that she had a history of back problems for which she had been under a doctor's care, off and on, for years; that she needed Lubke to assist her in getting in and out of bed and to the bathroom; and that she was still having residual back problems (Pl.'s App. at 108, 483, 1107-12);
(6) testimony from Debbie Lubke's supervisor, Lee Hitchcock, that since Debbie had returned to work, she continued to show signs that she was still ill and that her back was still hurting her (PI.'s App. at 258);
(7) evidence that the human resource department of the City of Arlington never asked for medical certification from Lubke and that his supervisors repeatedly turned down his requests for clarification of the reasons that his substantiation of his absence was not sufficient (Pl.'s App. at 628, 1142-46);
(8) a memo dated February 9, 2000, to Lubke, in which Brawner stated:
The purpose of this memorandum is to respond to your attached grievance dated February 2, 2000, and received in my office on that date.
. . . .
Your documentation was and continues to be inadequate. It clearly did not meet the City's requirements generated by the Y2K weekend. You have provided nothing from a doctor in writing substantiating your wife's condition on December 31, 1999. You have provided nothing in writing from a doctor substantiating when the condition began, its expected duration, the medical facts that support the certification or a brief statement of treatment. Finally, you have provided nothing in writing from a doctor certifying that your wife required assistance and/or that your presence would be beneficial or assist in her recovery.
Absent the receipt of any further substantiation or certification from you, it is my decision to uphold the denial of paid sick leave from December 31, 1999.
(Pl.'s App. at 1158-59.)
Because there are genuine issues of material fact whether Lubke elected to pursue leave under the City of Arlington's sick leave policy instead of the FMLA, whether he gave adequate notice to the defendants of his need for FMLA leave, and whether the City of Arlington had requested further certification, the defendants' motion for summary judgment on this issue must be denied.
See, e.g., Brannon v. Oshkosh B'Gosh, Inc., 897 F. Supp. 1028 (M.D. Tenn. 1995).
2. Retaliation Claim
The FMLA also includes retaliation as a second theory of recovery. Parker, 234 F. Supp.2d at 487. Under this theory, the FMLA protects employees from being retaliated against because they have exercised their rights under the FMLA. Id. at 488; see 29 U.S.C.A. § 2615 (West 1999). In analyzing claims for retaliation under the FMLA where there is no direct evidence, "the Fifth Circuit has adopted the three-part burden-shifting framework under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1972)." Rogers v. Bell Helicopter Textron Inc., No. CA 3-990CV-988-R, 2000 WL 1175647, at *3 (N.D. Tex. Aug. 17, 2000); see Chaff in v. John H. Carter Co. Inc., 179 F.3d 316, 319 (5th Cir. 1999); Lottinger v. Shell Oil Co., 143 F. Supp.2d 743, 772 (S.D. Tex. 2001) ("Retaliation claims brought under the FMLA are analyzed under the same standards that are applied to retaliation claims brought under Title VII"). First, the plaintiff must establish a prima-facie case of retaliation by demonstrating that: (1) the plaintiff engaged in a protected activity; (2) the plaintiff was discharged; and (3) there is a causal connection between the protected activity and the discharge. See Chaffin, 179 F.3d at 319. "Once the plaintiff makes this preliminary showing, the employer must articulate a legitimate, nondiscriminatory reason for the plaintiff's termination." Chaffin, 179 F.3d at 320. If the employer does so, then to defeat summary judgment the plaintiff must produce substantial probative evidence that the proffered reason was a pretext for retaliation. Id.
In this case, the defendants admit that Lubke was fired for missing work without providing adequate medical substantiation. (Defs.' Reply at 9.) Thus, the only issue in Lubke's retaliation claim appears to be whether Lubke can establish the first element of a prima-facie case of retaliation — that Lubke was engaged in the protected activity of taking leave under the FMLA. Because, as noted above, there is a genuine issue of material fact as to whether Lubke engaged in activity protected under the FMLA, the Court concludes that the defendants are not entitled to summary judgment on the retaliation claim. See, e.g., Rogers, 2000 WL 1175647 at *3.
B. Fair Labor Standards Act ("FLSA") Claims
Lubke, in his response, wholly fails to address the defendants' claims that they are entitled to summary judgment on Lubke's FLSA claims. Consequently, after reviewing the defendants' motion and the applicable law, the Court concludes that the defendants are entitled to summary judgment on Lubke's FLSA claims for the reasons stated in the defendant's motion. See FED. R. Civ. P. 56(e).
This rule states:
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
FED. R. Civ. P. 56(e).
IV. CONCLUSION
Based on the foregoing, it is ORDERED that the defendants' Motion for Summary Judgment [doc. # 11-1] is GRANTED as to Lubke's claims under the FLSA but DENIED as to Lubke's claims under the FMLA.