Opinion
No. 00-2355
May 30, 2001
ORDER REASONS
Before the Court is Defendant's Motion for Summary Judgment (Rec. Doc. 12). After considering the record, the arguments of counsel and the applicable law, IT IS ORDERED that the Motion is hereby GRANTED, and Plaintiff's Complaint is hereby DISMISSED WITH PREJUDICE.
Standard of Review
A district court can grant a motion for summary judgment only when the "`pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P. 56(c)). When considering a motion for summary judgment, the district court "will review the facts drawing all inferences most favorable to the party opposing the motion." Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986). The court must find "[a] factual dispute . . . [to be] `genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party . . . [and a] fact . . . [to be] `material' if it might affect the outcome of the suit under the governing substantive law." Beck v. Somerset Techs., Inc., 882 F.2d 993, 996 (5th Cir. 1989) (citingAnderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
"If the moving party meets the initial burden of showing that there is no genuine issue of material fact, the burden shifts to the non-moving party to produce evidence or designate specific facts showing the existence of a genuine issue for trial." Engstrom v. First Nat'l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995) (citing Celotex, 477 U.S. at 322-24, and Fed.R.Civ.P. 56(e)). The mere argued existence of a factual dispute will not defeat an otherwise properly supported motion.See Anderson, 477 U.S. at 248. "If the evidence is merely colorable, or is not significantly probative," summary judgment is appropriate. Id. at 249-50 (citations omitted).
Factual Background
Plaintiff had worked for Murphy, U.S.A., Inc. ("Murphy"), an oil refinery operating in Meraux, Louisiana, since April 1977. She was initially hired as an "H" operator/shift breaker. She eventually became an operator in Area III, where she worked as a lab assistant. Shortly after beginning her employment at Murphy, Pichon became a member of the United Steelworkers of America, Local 8363 ("Union"). The Union negotiated a collective bargaining agreement ("CBA") with Murphy effective March 1, 1996 through February 28, 1999, and the CBA was extended in the same form on December 15, 1998 for an additional three year period. Under the CBA, Murphy employees are entitled to take leaves of absence for "legitimate reasons if their absence will not adversely affect production efficiency." Murphy is required, pursuant to the terms of the CBA, to grant leaves of absence to employees for family emergencies. The CBA provides that the "leaves will be applied in harmony with the Family Medical Leave Act of 1993 (FMLA)." The CBA also contains a provision regarding the arbitration of grievances. Specifically, Article X, Section 1 of the CBA states:
See Plaintiff's Exh. A (hereinafter "Pichon Deposition") at 57-61. The same document can be found at Defendant's Exh. A.
100% of Murphy's employees at the Meraux refinery are represented by the Union. See Defendant's Memorandum at 7.
See Plaintiff's Exh. F. The same document can be found at Defendant's Exh. F.
See id. at 29.
See id.
Id. The Family Medical Leave Act of 1993 (hereinafter "FMLA") is codified at 29 U.S.C. § 2601 et seq.
It is the intent and purpose of this Article, which shall be available to both the Union and the Company, to provide for the presentation and equitable adjustment of grievances. There shall be no lockouts, strikes, interruptions, or cessation of work during the term of this Agreement. Should any grievance arise between the Company and the Union or any employee, the same shall be disposed of in accordance with the provisions of this Article.
Plaintiff's Exh. F at 34.
If, after presenting her case to the Grievance Committee (Step 2) and appealing the adverse decision to the appropriate officials (Step 3), an employee is still not satisfied with the outcome, then the employee may bring her claim to arbitration (Step 4). Section 5 of Article X explains that the arbitrator for the grievance process "shall have jurisdiction and authority only to interpret, apply or determine compliance with the provisions of this Agreement. The arbitrator shall not have jurisdiction or authority to add to, detract from or alter in any way the provisions of this Agreement."
See id. at 34-37.
Id. at 37-38.
In addition to the CBA, Murphy had other employee policies in place. Particularly relevant to this litigation is Murphy's Absenteeism Control Program ("ACP"), which Murphy implemented in June 1984 in an attempt to monitor and limit employee absences. Murphy's ACP focuses on "absence occurrences." Absence for one or more consecutive working days counts as a single "absence occurrence" under the program. However, arriving at work late or leaving work early also counts as one occurrence, even if the employee works the majority of her shift. Murphy classifies employees' records in "steps," according to the number of absence occurrences they have accrued in the previous twelve month period. The calculation is made on a rolling basis, so that, for example, absences from March 1995 will no longer be included in the relevant twelve-month period under review in April 1996. When an employee has four absence occurrences in the previous twelve month period, he is classified as Step I; five absences reaches Step II; six absences rises to Step III. At each of these levels, an employee receives counseling and warnings from the Company regarding his attendance record.
See Plaintiff's Exh. B. The same document can be found at Defendant's Exh. B.
See id. at § 3.
See id. at § 5.
After seven absences, an employee reaches Step IV, at which time "the supervisor will advise the employee by written letter that any additional absence during a one year period will subject him to termination for excessive absenteeism without the benefit of further counselling [sic] or discipline." However, "[b]efore terminating an employee the Company will consider the employee's length of service, his overall attendance record during his tenure with the Company, and the nature of absences during the period for which counselling [sic] was given." Therefore, according to Defendant, the ACP in practice incorporates a Step IV+, which occurs when the Company has looked at the employee's "entire attendance record, length of past service and everything and the person is given another chance."
Id. at § 6(A)(4).
Id. at § 6(C).
See Plaintiff's Exh. G at 24-25 (Transcript of Arbitration). Excerpts from the same document can be found at Defendant's Exh. U.
Having accumulated numerous absence occurrences, Plaintiff Pichon has been classified in Step I, Step III, Step IV and Step IV+ from 1996 through 1999. Pichon entered Step III in April 1996 after accumulating six absences between May 1995 and February 1996. On May 9, 1996, Murphy counseled Pichon that her absenteeism needed to be remedied, but Pichon explained that "she son (sic] having asthma should excuse some of the occurrences." On July 31, 1996, Pichon was written up for entering Step IV after eleven absence occurrences were noted from October 1995 through July 1996. Pichon entered Step IV a second time on May 29, 1997, with eight absence occurrences. Pichon improved her attendance record, but entered Step I after accumulating three occurrences between June 1997 and March 1998. Another Step I writeup went into Pichon's record on May 16, 1998. Pichon returned to Step III in September 1998, and was back at Step IV+ by November 1998, at which time Pichon was suspended for one week. Pichon submitted requests that her emergency absence on January 2, 1999 to take her son to the hospital, and her absence on February 15, 1999 to care for her sick baby be counted as FMLA leave. Both of these requests were granted by Murphy after Pichon provided documentary proof. However, in March 1999, Pichon was counseled after additional absence occurrences again brought her to Step IV. When Pichon was late on April 2, 1999 because of a problem with her alarm clock, she reentered Step IV+, and was notified in writing two weeks later that she was being terminated for "excessive absenteeism."
The explanations for the absences were as follows: May 15, 1995 — headache; June 23, 1995 — took son to hospital; October 9, 1995 — out 8 days sick; December 3, 1995 — out 14 days sick; January 11, 1996 — left work early because baby sick; and February 7, 1996 — did not come into work because of car trouble and already late. See Defendant's Exh. G.
See id.
At this time, October 9, 1995, December 3, 1995, January 11, 1996 and February 7, 1996 absences were included in the calculation, along with absence occurrences on February 23, 1996 — late half-hour because baby sick; March 5, 1996 — out 11 days sick; April 26, 1996 — son sick with fever (out 1 day); May 20, 1996 — mother sick (out 1 day); June 3, 1996 — out with personal problems; June 15, 1996 — out 16 days sick; and July 25, 1996 — left work 5.5 hours early. See Defendant's Exh. H.
Included in this report were the absences from May 20, 1996, June 3, 1996, June 15, 1996, and July 25, 1996, along with those from December 27, 1996 — accident cutting hand, 35 stitches required; February 12, 1997 — stayed home with infant running fever; March 4, 1997 — left work early because daughter in an accident; and May 17, 1997 — stomach virus. See Defendant's Exh. I.
The May 17, 1997 occurrence was included, along with absences on June 30, 1997 — pain over left eye; November 29, 1997 — sick with chills and fever; and March 9, 1998 — trouble with sinus. See Defendant's Exh. K.
The four absences were on June 30, 1997, November 29, 1997, March 9, 1998 and May 5, 1998 — taking baby to doctor. See Defendant's Exh. L.
The six absences included those on November 29, 1997, March 9, 1998, and May 5, 1998, as well as June 12, 1998 — out 1 day with stomach virus; July 9, 1998 — did not show up because Plaintiff thought she was not scheduled to work; and September 11, 1998 — one hour late with car trouble. See Defendant's Exh. M.
This write-up covered the absences on November 29, 1997, March 9, 1998, May 5, 1998, June 12, 1998, July 9, 1998, and September 11, 1998, along with occurrences on September 23, 1998 — out 2 days because "sick not feeling well `cold' `weak'"; and October 29, 1998 — did not appear at a required safety/environmental class. See Defendant's Exh. N.
See Defendant's Exh. 0 P. See also Plaintiff's Exh. 12.
The relevant absence occurrences were on May 5, 1998, June 12, 1998, July 9, 1998, September 11, 1998, September 23, 1998, November 29, 1998 and March 10, 1999, when she was out sick with a cold. See Defendant's Exh. Q.
See Defendant's Exh. R.
See Defendant's Exh. S.
Pursuant to the CBA, Pichon submitted a grievance over her termination. In particular, Pichon felt that termination after only one suspension was improper because many of her occurrences, including those relating to her sinuses and her absence for a stomach virus, "could have been excused." During arbitration, and in this lawsuit, Pichon maintains that she would not have been terminated if those absences had not counted against her, because she would not have exceeded Step IV of the program if those absences had been dropped. Pichon's grievance proceeded through the procedure outlined in the CBA, and ultimately a full hearing was held before an arbitrator. The issue presented to the arbitrator, as stipulated by the parties, was whether Pichon was terminated for just cause pursuant to the provisions of the CBA. The arbitrator acknowledged his duty to adjudicate the issue of just cause termination, which requires the employer to demonstrate by clear and convincing evidence that
See Pichon Deposition at 217-19.
See id. at 218. At her deposition, Plaintiff also asserted that there were other men working at Murphy who had been suspended between two and four times prior to being terminated. Although Pichon pursued these claims in arbitration, she has dropped those allegations from this litigation. See Rec. Doc. 10.
See Plaintiff's Exh. 15 (hereinafter "Arbitration Decision"). The same document can be found at Defendant's Exh. T. Plaintiff testified on her own behalf, along with the President of her Local, Byran Cassagne. Four representatives from Murphy who had been involved in Pichon's termination — Carl Zornes, Manager of Industrial Relations; Kathy Denley, Payroll Clerk; Dave Mendrick, Manager of Operations; and Jim Kowitz, Manager of Refinery — testified for the Company. The Union represented Pichon at the arbitration and introduced documentary evidence to support her claims and cross-examined Murphy's witnesses. See id. at 2-3.
See id. at 3.
(a) the standard being imposed is reasonable and is a generally accepted employment standard that has been properly communicated to the Employee; that (b) the evidence proves that the Employee engaged in the misconduct which violated the standard; and that (c) the discipline assessed is appropriate for the offense under the just cause doctrine after considering any mitigating or extenuating circumstances.
Id. at 13.
The arbitrator noted that "[p]rimarily, the Union, who left no stone unturned in defending Ms. Bailey, based its argument on Management's misapplication of FMLA provisions as they related to the occurrences accumulated by the Grievant." The Union also alleged that Murphy did not consider the entire record of Pichon's employment prior to terminating her. However, the arbitrator rejected this argument, finding that "[t]he record will simply not support such a conclusion," noting that Pichon had "been on the `bubble'" ever since the ACP was instituted in 1984, and that Murphy had "walked the proverbial third mile in an attempt to salvage [Pichon's] job." Regarding Pichon's sinusitis, the arbitrator found that the FMLA provisions clearly provide that a sinus condition, even one which recurs regularly, does not qualify as a serious health condition, and that in most of her explanations of her ailments to her employer, her sinuses were not even mentioned. At the hearing, Pichon had submitted two letters from doctors to support her claim of a serious health condition, but the arbitrator classified these as "too little, too late," because "a Company's decision to terminate an Employee must rise or fall on the information available to Management at the time of discharge."
Id. at 14. In Plaintiff's defense, the Union also pointed out that Pichon had been written up for failing to attend a environmental/safety class, but explained to the arbitrator that she had not been informed that she was required to attend the class, and had actually worked on the day in question. See id. at 11.
See id.
Id.
See id. at 15.
Id.
Following her unsuccessful adjudication before the arbitrator, Pichon filed this lawsuit in federal court, claiming that her termination violated the FMLA. Defendant has moved for summary judgment on two distinct bases. First, Defendant maintains that Pichon's claims have been fully adjudicated in arbitration pursuant to the CBA, and therefore she is precluded from bringing a claim under the FMLA in federal court. Second, Murphy insists that Pichon's sinus condition does not qualify as a "serious medical condition" under the statute, and therefore, that Murphy is entitled to judgment as a matter of law. The Court shall address each of these arguments in turn.
Plaintiff voluntarily dismissed any claims of discrimination on the basis of race and sex from this lawsuit on May 7, 2001. See Rec. Doc. 10.
Plaintiff's Right to Litigate in Federal Court
The dispute between the parties about this issue concerns whether Plaintiff has waived her right to bring a FMLA claim in federal court due to the arbitration agreement contained in the CBA. This question has caused much consternation in the courts, due in part to the uncertain relationship among three Supreme Court decisions — Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991), and Wright v. Universal Maritime Service Corp., 525 U.S. 70 (1998). The issue of whether Plaintiff has lost her ability to litigate in federal court requires a close examination of the holdings in these three cases.
In Gardner-Denver, the Supreme Court held that "an individual does not forfeit his private cause of action [under Title VII] if he first pursues his grievance to final arbitration under the nondiscrimination clause of a collective-bargaining agreement." 415 U.S. at 49. The district court had ruled that a litigant who had already proceeded through arbitration would be precluded from obtaining what seemed to be a "second bite at the apple" under the election of remedies doctrine. See id. While acknowledging that it might appear on the surface as though the employee gets "two bites," the Court reversed the trial judge's decision because, in fact, distinct rights were at stake in the two different proceedings. The arbitration proceedings conducted pursuant to the CBA were designed to allow the parties to vindicate their rights under the contract, whereas an employee who tiles an antidiscrimination suit in federal court asserts statutorily-protected rights. See id. An employer enters into a collective bargaining agreement so as to avoid labor shutdowns, and employees do so to maximize their wages and working conditions on the job. However, antidiscrimination statutes cannot be understood in the same light (i.e., as reciprocal promises), because "an employer cannot be the victim of discriminatory employment practices." Id. at 54. Therefore, an agreement to arbitrate disputes arising between the union or an aggrieved employee and the employer does not strip an employee of his right to bring statutory claims in a federal forum.
Almost twenty years later, in Gilmer, the Supreme Court ruled that an individual could waive his right to litigate statutory claims in federal court. Gilmer, 500 U.S. at 35. After being hired by Interstate, Gilmer registered as a securities representative with several stock exchanges, including the New York Stock Exchange. In his registration application, Gilmer "agreed to arbitrate any dispute, claim or controversy arising between him and Interstate that is required to be arbitrated under the rules, constitutions or by-laws of the organizations" with which he was registering. Gilmer, 500 U.S. at 23. When Gilmer was 62 years old, he was fired by Interstate. Gilmer filed an age discrimination charge with the Equal Employment Opportunity Commission ("EEOC") and subsequently brought suit in federal court, alleging that Interstate had discharged him in violation of the Age Discrimination in Employment Act ("ADEA"). See id. at 23-24. In response to his lawsuit, Interstate moved to compel arbitration of the dispute pursuant to the provision contained within the registration application. Gilmer offered a laundry list of reasons why he should not be forced to arbitrate his ADEA claim, but the Court rejected all of them. Specifically, the Court distinguished Gardner-Denver from Gilmer by emphasizing that Gardner-Denver involved a contract that had been negotiated collectively by a union, which raised concerns that "the interest of the individual employee may be subordinated to the collective interests of all employees in the bargaining unit." Id. at 34. In Gardner-Denver and its progeny, the Court was analyzing collective bargaining agreements, which were different from individually-negotiated contracts, because where an employee is represented by a union, there is inevitably "tension between collective representation and individual statutory rights." Id. at 35.
Among the reasons offered by Gilmer were that (1) arbitration panels are biased, see 500 U.S. at 30; (2) discovery is more limited in arbitration proceedings, see id. at 31; (3) arbitrators do not issue written opinions, resulting in less public awareness about the discriminatory practices of employers, inability of employees to obtain appellate review and the retardation of the development of antidiscrimination precedent; see id. at 31-32; (4) arbitration does not offer broad equitable relief and class actions see id. at 32; and (5) the unequal bargaining power between employers and employees renders the arbitration provisions unenforceable, see id. at 33.
See McDonald v. West Branch, 466 U.S. 284 (1984); Barrentine v. Arkansas-Best Freight Sys., 450 U.S. 728 (1981).
The Court also noted two other distinctions between theGardner-Denver line of cases and Gilmer. First, the Court explained that those cases "did not involve the issue of the enforceability of an agreement to arbitrate statutory claims. Rather they involved the quite different issue whether arbitration of contract-based claims precluded subsequent judicial resolution of statutory claims." Id. at 35. Second,Gardner-Denver and its progeny were decided prior to the Federal Arbitration Act ("FAA"), 9 U.S.C. § 2, which "reflects a liberal federal policy favoring arbitration agreements." Id.
Seven years later, the Supreme Court attempted to resolve some of the confusion that resulted from the coexistence of Gilmer andGardner-Denver in Wright v. Universal Maritime Service Corp., 525 U.S. 70 (1998). Wright and the United States as amicus argued to the Court that the proper way to reconcile the two cases was to hold that "federal forum rights cannot be waived in union-negotiated CBAs even if they can be waived in individually executed contracts," a distinction that the Court noted "assuredly finds support in the text of Gilmer." Id. at 77. Universal, on the other hand, argued that Gilmer essentially overruledGardner-Denver, which means that a union can waive an employee's right to bring statutory claims in a federal forum. See id. The Court did not resolve this specific dispute, however, because it found that the CBA at issue did not contain a waiver. Although contractual claims arising under the CBA are presumptively arbitrable, the Court ruled that statutory rights are not subject to the presumption, and any CBA provision purporting to require arbitration must be "clear and unmistakable." Id. at 80. The Court left open the question as to whether a waiver in a CBA of statutory claims that met the "clear and unmistakable" requirement would be enforceable. See id. at 82 n. 2 ("Our conclusion that a union waiver of employee rights to a federal judicial forum for employment-discrimination claims must be clear and unmistakable means that, absent a clear waiver, it is not `appropriate,' within the meaning of this provision of the ADA, to find an agreement to arbitrate. We take no position, however, on the effect of this provision in cases where a CBA clearly encompasses employment-discrimination claims, or in areas outside collective bargaining.").
The Court specifically reserved the question of the applicability of the FAA to collective bargaining agreements. See 525 U.S. 77 n. 1. This past term, the Supreme Court ruled that only employment contracts of transportation were exempted from coverage by § 1 of the FAA. See Circuit City Stores, Inc. v. Adams, 121 S.Ct. 1302 (2001). However, the contract at issue in Circuit City had been individually-negotiated, rather than collectively bargained. Therefore, the Court did not even cite, let alone disturb, the holding in Wright.
Since Wright, most courts have only focused on the question of whether a CBA's waiver of a federal forum was "clear and unmistakable." Although the Fifth Circuit appears to have not yet tackled this question, this Court looked to cases both from this district and from sister circuits for guidance. Compare Rogers v. New York Univ., 220 F.3d 73, 76 (2d Cir. 2000) (waiver was not "clear and unmistakable"), Kennedy v. Superior Printing Co., 215 F.3d 650, 654-55 (6th Cir. 2000) (accord), Bratten v. SSI Servs., Inc., 185 F.3d 625, 631-32 (6th Cir. 1999) (accord), Jupiter v. Bellsouth Telecommunications, Inc., 1999 WL 1009829 at *6 (E.D. La. 1999) (Vance, J.) (accord) with Safrit v. Cone Mills Corp., 2001 WL 432493 (4th Cir. 2001) (finding waiver "clear and unmistakable"). These cases demonstrate that there are two factors that a court can examine to determine whether a waiver is "clear and unmistakable." First, "a waiver is sufficiently explicit if the arbitration clause contains a provision whereby employees specifically agree to submit all federal causes of action arising out of their employment to arbitration." Rogers, 220 F.3d at 76. An examination of the relevant provision in this case demonstrates that no such explicit waiver is contained in the CBA. No mention is made whatsoever regarding an employee's federal statutory rights. Second, "a waiver may be sufficiently clear and unmistakable when the CBA contains an explicit incorporation of the statutory anti-discrimination requirements in addition to a broad and general arbitration clause." Id. Specific incorporation requires identification of a statute by name or citation, and should make compliance with the statute "a contractual commitment that is subject to the arbitration clause." Id.
The relevant provision states
It is the intent and purpose of this Article, which shall be available to both the Union and the Company, to provide for the presentation and equitable adjustment of grievances. There shall be no lockouts, strikes, interruptions, or cessation of work during the term of this Agreement. Should any grievance arise between the Company and the Union or any employee, the same shall be disposed of in accordance with the provisions of this Article.See Plaintiff's Exh. F at 34.
In Rogers, the CBA provided that "employees are entitled to all provisions of the [FMLA] that are not specifically provided for in this agreement." Id. at 74. Yet, even though the FMLA was mentioned by name in the statute, the Second Circuit determined that the contract merely created contractual rights that were coextensive with the FMLA, but did not make compliance with the federal statute a contractual commitment that would be subject to the arbitration clause. Id. at 76. Therefore, the waiver was not sufficiently "clear and unmistakable" to satisfy Wright.
In Safrit, the relevant section (Section XX) of the CBA explicitly stated that the company and the union agreed that they would not discriminate on the basis of race, color, religion, age, sex, national origin or disability, and would "abide by all of the requirements of Title VII of the Civil Rights Act of 1964." Safrit, 2001 WL at *1. Also contained within Section XX was the agreement that "unresolved grievances arising under this Section are proper subjects for arbitration." Id. Therefore, the Fourth Circuit found that the waiver in the CBA was sufficiently explicit to comply with Wright's demanding standard.
The Court finds that any purported waiver contained in the CBA in this case falls much closer to Rogers than to Safrit, and therefore does not satisfy the "clear and unmistakable" requirement of Wright. The CBA provides that the FMLA shall be taken into account when defining the contours of Murphy's absentee policy, and by doing so, offers Murphy's employees contractual rights that are coextensive with federal statutory protection. Furthermore, the fact that the CBA refers to the FMLA in the section pertaining to leave, but is not mentioned in the section pertaining to the arbitration of grievances, convinces the Court that any purported waiver is insufficient under Wright.
In the alternative, however, the Court agrees with the Second Circuit's holding in Rogers that Gardner-Denver still answers the question of whether a union can prospectively waive an employee's statutorily protected rights — it may not.
Following Gilmer's lead, most lower courts have focused on the party negotiating the waiver of rights. When the arbitration provision has been negotiated by a union in a CBA, these courts have held that Gardner-Denver applies. Only the Fourth Circuit has concluded otherwise. The arbitration provision in the instant case, by which employees purport to waive their right to a federal forum with respect to statutory claims, is contained in a union-negotiated CBA. Under Gardner-Denver, to which this Court and a majority of others adhere, such provisions are not enforceable.Rogers, 220 F.3d at 75 (internal citations omitted); see also id. at n. 1 (citing cases). All of the reasons cited by the Gilmer court regarding why union-negotiated contracts must be viewed differently that individually negotiated ones — namely, the concern that "the interest of the individual employee may be subordinated to the collective interests of all employees in the bargaining unit," 500 U.S. at 34, and the "tension between collective representation and individual statutory rights," id. at 35 — still resonate clearly with this Court.Gardner-Denver remains good law until the Supreme Court directs otherwise, which means that an employee may not be barred from litigating a statutory claim in federal court based on any purported waiver of that right contained in a collective bargaining agreement.
Therefore, with regard to this issue, the Court finds that the arbitration provision contained in the CBA is not sufficiently "clear and unmistakable" as to waive Plaintiff's right to bring her FMLA claim in a federal forum. In the alternative, the Court finds that, underGardner-Denver, any waiver purportedly executed in the CBA by the union precluding Pichon from bringing her claim in a federal forum is not enforceable and shall not bar Plaintiff from vindicating her statutorily protected rights in court.
FMLA
The Court now proceeds to consider the merits of Pichon's claim brought under the FMLA. She maintains that her sinusitis is a "serious medical condition" that is protected under the statute, meaning that her absences should have been excused and that she should not have been terminated. Murphy asserts that sinusitis does not qualify under the statute.
In an attempt to avoid muddying the waters in the body of this opinion, the Court shall quickly dispose of some minor issues raised in the memoranda submitted regarding this Motion. First, although Defendant has maintained that it was not required to count Pichon's absences on January 2, 1999 and February 15, 1999 as FMLA absences, the Court does not consider this argument to be relevant to the motion for summary judgment, as even without these two absence occurrences, Pichon was in Step IV+. Therefore, the Court need not address Pichon's contention that Murphy is attempting to "retroactively deny FMLA benefits" given to her for those dates. See Plaintiff's Opposition at 22-23. Second, Plaintiff's absence occurrence on March 9, 1998, was not included in the twelve month period considered by Murphy, but to the extent that this absence is relevant, the Court's discussion of whether sinusitis qualifies as a "serious health condition," see infra, addresses her argument. Finally, in her Opposition, Plaintiff does not contest Defendant's assertion that her May 5, 1998 absence does not qualify as FMLA leave because her child was not suffering from a "serious health condition," as she only stayed home with him and administered over-the-counter medication, but did not take him to the doctor as she originally reported to her employer. See Defendant's Opposition at 29.
The FMLA entitles an employee to twelve work weeks of leave during any twelve-month period "[b]ecause of 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). The statute defines a "serious health condition" to be "an illness, injury, impairment, or physical or mental condition that involves . . . continuing treatment by a health care provider." 29 U.S.C. § 2611 (11)(B). Courts have frequently turned to the regulations for additional guidance in determining what qualifies as a serious health condition. See 29 C.F.R. § 825.114. The regulations provide in relevant part that 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 (i.e., inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefor, or recovery therefrom) 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.29 C.F.R. § 825.114 (a)(2).
The question of whether an ailment qualifies as a serious health condition has been considered either a pure question of law see Haefling v. United Parcel Serv., 169 F.3d 494, 499 (7th Cir. 1999), or a mixed question of law and fact, see Thorson v. Gemini, 205 F.3d 370, 377 (8th Cir. 2000). The Court finds the Eighth Circuit's explanation in Thorson regarding the nature of this question particularly helpful.
It is for the fact-finder to look at the record and decide if the evidence supports the elements of that test. Once the fact-finder has affirmatively found the necessary facts, the conclusion that a plaintiff had a "serious health condition" is inescapable as a matter of law. Therefore, if there are no genuine issues raised as to those facts, which are all material, then summary judgment on the question of "serious health condition" will likely be appropriate (at least if determining whether the plaintiff had a "serious health condition" will conclusively determine liability, as in this case).Id. In this case, Defendant does not dispute the factual assertions made by Plaintiff regarding her symptoms. Rather, Defendant points to the statute and the regulations in support of its argument that, even assuming that everything Plaintiff says regarding her condition is true, she would not qualify for protection under the statute. Therefore, the Court finds that there are no material facts in dispute and consideration of the motion for summary judgment is appropriate.
Under the statute and the regulations, a health condition is not "serious" unless it incapacitates a worker for more than three consecutive days. This means that a worker who is suffering from an ailment, but can continue to perform her job, is not eligible for leave under the FMLA. See Cole v. Sisters of Charity of the Incarnate Word, 79 F. Supp.2d 668, 672 (E.D. Tx. 1999) ("Common to each of the definitions under the regulations is the requirement of incapacity, that is, the inability to work or perform regular daily activities. The Fifth Circuit has essentially made this a prerequisite for recovery under this section of the FMLA.") (citing Murray v. Red Kap Indus., 124 F.3d 695, 698 (5th Cir. 1997)). Courts have justified this rule by noting that "Congress did not intend to provide coverage for minor health conditions which would be covered by an employer's sick leave policy." Id. at 671 (citing Boyce v. New York City Mission Soc'y, 963 F. Supp. 290, 299 (S.D.N.Y. 1997) (citing H.R. Rep. No. 8, 103rd Cong., 1st Sess., pt. 1 at 28).
The record contains the clear testimony of both Plaintiff and her treating physician, Dr. Hardges, that she was able to work while battling symptoms of sinusitis. In her deposition, Plaintiff testified that, even though she found it exhausting to work, she was able to perform her job while suffering from sinus infections. Dr. Hardges testified that a person suffering from sinusitis can generally perform his job and function, and that Pichon had, in fact, gone to work while dealing with this condition. In her Memorandum in Opposition, Pichon concedes that she was able to work on days when her symptoms of sinusitis were present. Because "the plain language of the statute requires that the person seeking protection under FMLA be unable to perform the functions of her position . . . the possibility that a person can work removes FMLA protection." Cole, 79 F. Supp.2d at 672 (citing Price v. Marathon, 119 F.3d 330 (5th Cir. 1997)). As the record in this case clearly demonstrates that Plaintiff was not incapacitated by her sinusitis, the Court need not speculate as to whether sinusitis could ever be found to qualify as a serious medical condition. See Hott v. VDO Yazaki Corp., 922 F. Supp. 1114, 1128 (W.D. Va. 1996) ("[T]he plaintiff could possibly prevail if she proved that sinobronchitis is an illness that, if not treated, would likely result in a period of incapacity of more than three days.").
See Pichon Deposition at 118-19.
See Plaintiff's Exh. 5 at 30 ("I believe that she did work with the condition on some occasions."). The same document can be found at Defendant's Exh. V.
See Plaintiff's Opposition at 5.
Likewise, the Court need not address Defendant's argument that Plaintiff was not incapacitated for three consecutive days prior to seeking medical treatment.
Because there are no disputed issues of material fact in this litigation, and because the issue of whether Plaintiff's particular case of sinusitis qualifies as a "serious health condition" is a question of law for the Court to decide, IT IS ORDERED that Defendant's Motion for Summary Judgment is hereby GRANTED, and Plaintiff's Complaint is hereby DISMISSED WITH PREJUDICE.