Opinion
Cause No. IP99-1285-C-T/G
August 21, 2000
Kevin Betz, Sutherlin Benz, Indianapolis, IN., John P Young, Young Young, Indianapolis, IN., for Plaintiff.
Jeffery M Mallamad, Bingham Summers Welsh Spilman, Indianapolis, IN., for Defendant.
ENTRY ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Plaintiff Michelle Schober sued her former employer, Defendant SMC Pneumatics, Inc. ("SMC"), alleging it violated the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601-2654. SMC has moved for summary judgment on the Amended Complaint. This entry addresses the motion.
In addition to filing a Statement of Additional Material Facts pursuant to Local Rule 56.1(b)(2), Ms. Schober also filed a document entitled, "Plaintiff's Statement of Material Facts In Support Of Her Brief In Opposition To Defendant's Motion For Summary Judgment." Local Rule 56.1, however, does not provide for the filing of a "Statement of Material Facts" in addition to a "Statement of Additional Material Facts." Thus, this additional filing will not be considered by the court in ruling on SMC's summary judgment motion. The court considers only those factual assertions set forth in the statements and responses filed in accordance with Local Rule 56.1.
These facts are taken from the parties' factual statements and responses thereto as supported by admissible evidence and viewed in the light most favorable to Ms. Schober, the nonmovant. Where a fact is disputed, the court accepts as true that version which is more favorable to Ms. Schober.
Ms. Schober was an FMLA — eligible employee of SMC. SMC had an employee attendance policy which provided for both paid personal leave and vacation leave. An employee was required to obtain authorization from his or her group leader for paid personal and vacation leaves of absences. Absences in excess of an employee's available personal and vacation leave were subject to discipline. The policy established four levels of disciplinary action for unexcused absences: a documented verbal warning; a written warning; a pre-discharge written warning accompanied by a 3-day unpaid suspension; and, finally, termination. The warnings were retained in the employee's personnel file. (SMC's Non-Exempt Attendance Policy, Def.'s Ex. 6 at 5.) At oral argument, defense counsel argued that although the policy established progressive levels of discipline, it also reserved the right of SMC to disregard the progressive levels of discipline if warranted. Counsel was unable to refer the court to the particular provision in the policy, and the court could find only one potentially applicable provision, but that provision appears to apply only when an employee is placed on leave of absence status.
That provision provides in pertinent part:
any absence in excess of 30 days will automatically place the employee on leave of absence status. In the event an employee remains on leave of absence for more than one year, his/her employment will be terminated. The Company reserves the right to terminate employment sooner, should the facts warrant that action.
(Id. at 4.) Nothing in the record suggests that Ms. Schober was placed on leave of absence status.
During June, July and August 1998, Ms. Schober took time off work to care for her young son, Jason, who was ill. On June 30, she was called by someone from Jason's day care who informed her that Jason was ill and needed to be taken home. Ms. Schober notified Ms. Grow, her group leader, that she needed to leave work early to pick up her son, and Ms. Grow authorized her to leave early.
On July 2, Ms. Schober was absent from work to care for Jason while he was ill and home from day care. The absence was approved by Ms. Grow as a paid vacation leave of absence.
On Monday morning July 6, Jason was sick, and Ms. Schober called Ms. Grow to request a personal leave of absence from work that day and explain Jason's health condition. Ms. Grow authorized her request and told her to update her on Jason's condition.
On Tuesday, July 7, Jason was still ill. Ms. Schober called Ms. Grow to explain Jason's condition, indicating that Jason was suffering from ear infections, nausea and fever. Ms. Schober told Ms. Grow that she would be unable to come into work that day because Jason was unable to attend day care due to his illness. Ms. Schober requested paid personal leave for the day, and Ms. Grow authorized her request. Ms. Schober then contacted Dr. Stegemoller, her family physician and Jason's primary care physician throughout 1998, and notified him of Jason's illness. Dr. Stegemoller prescribed an oral antibiotic for Jason.
On Wednesday, July 8, Jason still had a 101 degree temperature, an ear infection and nausea. Ms. Schober called Ms. Grow in the morning, informed her of Jason's continuing illness and requested paid personal leave of absences from work through Friday, July 10 to allow Jason time to fully recuperate so she could return to work on Monday, July 13. Ms. Grow authorized her request. During their conversation, Ms. Schober inquired of Ms. Grow whether the FMLA applied to her absences from work due to Jason's illness, and Ms. Grow responded she would have to investigate it and get back to Ms. Schober.
Though it is undisputed that Ms. Schober did not ask anyone in SMC's Human Resources department about the availability of FMLA leave prior to August 5, 1998, there is evidence in the record that she asked Ms. Grow about her entitlement to FMLA leave first on July 8, 1998, and again on July 13, 1998. SMC argues that Ms. Schober's uncorroborated testimony in this regard is insufficient to create a genuine issue of material fact. (Reply Br. Supp. SMC's Mot. Summ. J. at 1, 2-4.) None of the authority it cites stands for such a proposition. Indeed, a plaintiff's own testimony alone can suffice to create a genuine issue of material fact.
Jason continued to have a temperature of 101 degrees through Friday, July 10, when Ms. Schober called Ms. Grow to let her know that Jason's fever was not breaking and she did not know whether his condition would improve over the weekend.
Also on Friday Ms. Schober called Dr. Stegemoller who gave her instructions on how to treat Jason's fever. The doctor told her to take Jason to an emergency room if his condition did not improve over the next day or two. Jason's condition did not improve until Monday, July 13 when his fever broke to 99 degrees and his ear infection, nausea and diarrhea began to subside.
On Monday, July 13, Ms. Schober called Ms. Grow to inform her of Jason's continued illness, his inability to return to day care and her need to be off from work. Ms. Grow became upset with her and threatened her job if she did not return to work, but nevertheless granted her request for paid personal leave for the day. During their conversation, Ms. Schober again asked Ms. Grow about FMLA leave. She responded that FMLA leave did not apply to Ms. Schober's situation. Ms. Grow, however, had no training regarding the FMLA or SMC's FMLA policy.
From Tuesday, July 14 through Friday, July 17, Jason continued to suffer from a 99 degree temperature, an ear infection, nausea and diarrhea. Each morning Ms. Schober contacted Ms. Grow to notify her of Jason's condition and request personal leave for that day. Each such request was granted. However, on or about July 17, 1998, Ms. Schober received a written disciplinary warning for excessive absenteeism.
Ms. Schober returned to work on Monday, July 20, at which time she had exhausted all available paid personal leave. That day, Ms. Grow gave her a disciplinary memorandum indicating that she was abusing SMC's attendance policy. The memorandum stated that "As SMC is a `hire/fire' at will company . . . further abuse of the attendance policy will not be condoned." (Def.'s Ex. 8.)
On Sunday, August 2, Ms. Schober took Jason to an emergency room at which time he was diagnosed with strep throat, bronchitis, an ear infection, and, possibly, mononucleosis. He was not admitted but was discharged. The discharging physician prescribed antibiotics and recommended that Jason be examined by his primary care physician. That same day, Ms. Schober called Ms. Grow to inform her of Jason's need for an appointment, and she requested vacation leave for Tuesday, August 4 in order to take him to Dr. Stegemoller. Ms. Grow approved that request.
Ms. Schober was able to work on Monday, August 3, because her live-in friend Pat Manker, also an SMC employee, was able to stay home with Jason.
On August 4, Ms. Schober took Jason to be examined by Dr. Stegemoller who diagnosed him with strep throat, swollen lymph nodes and an enlarged spleen. Dr. Stegemoller ordered a blood test and prescribed an oral antibiotic. He instructed Ms. Schober to bring Jason back for a follow-up examination and referred him to Dr. Susan Slakes, a specialist in otolaryngology. Based on his examination of Jason, Dr. Stegemoller opined that he would not be able to return to daycare for about one week. He therefore authorized a note asking that Ms. Schober be excused from work on August 4-10 because her son was "very ill." (Def.'s Ex. 9.) After visiting Dr. Stegemoller, Ms. Schober called Ms. Grow, told her of Jason's appointment with Dr. Slakes the next day and requested vacation leave for the 5th. Her request was granted. During their conversation, Ms. Schober again asked Ms. Grow about the FMLA; Ms. Grow responded that Ms. Schober should contact Roger Nieman, SMC's Human Resources Manager.
On August 4, Mr. Nieman was approached by Mr. Manker who inquired on Ms. Schober's behalf about the availability of leave under the FMLA. Mr. Nieman explained the FMLA to Mr. Manker and gave him documentation, including an FMLA Certification Form.
Though Ms. Schober was aware that Mr. Manker had spoken to Mr. Nieman on her behalf, there is evidence that she never received any of the documentation given to Mr. Manker.
This evidence creates a jury question regarding whether SMC gave Ms. Schober sufficient notice of her rights and obligations under the FMLA as well as FMLA documentation through its communications and provision of documentation to Mr. Manker.
At this summary judgment stage, the court views the evidence in the light most favorable to Ms. Schober; such evidence supports the finding that before August 5, SMC did not give her sufficient notice of her rights and obligations under the FMLA, including FMLA documentation such as SMC's FMLA Policy and a Certification Form.
On August 5, Ms. Schober took Jason to Dr. Slakes who treated him for strep throat and for lymphadenopathy (swollen lymph nodes). Because Jason's condition had worsened despite treatment with two oral antibiotics and because he was dehydrated, Dr. Slakes admitted Jason to the hospital for intravenous antibiotics and fluids. Ms. Schober called Ms. Grow from the hospital to inform her Jason had been admitted and to request vacation leave for August 6 and 7. Though Ms. Grow denied her request for vacation leave, Ms. Schober was given personal leave for those days, (see Def.'s Ex. 18.)
Subsequently that same day, Ms. Schober called Mr. Nieman, and told him that she would be absent on the 6th and 7th. She advised him that Jason was being pulled out of day care for a while and would have regular doctor visits every week after being discharged from the hospital. He told her he would send her a copy of SMC's FMLA
Certification Form and SMC's FMLA Policy, and after their conversation, he did so. He also explained to her that she needed to have the FMLA Certification Form completed and returned in order to qualify for FMLA leave. With regard to the consequences for failing to comply with SMC's medical certification requirement, SMC's FMLA Policy provides only that an employee who fails to comply with SMC's documentation and certification requirements will not receive FMLA leave. (Pl.'s Ex. 23 at 2.) The Medical Certification Form itself contains no information about the consequences of a failure to return the form.
(Pl.'s Ex. 23.) There is no evidence that SMC explained to Ms. Schober in writing that the FMLA afforded her 15 days within which to return the form or of the consequences — the termination of her employment — should she not return the form by the specified date.
On Friday, August 7, Dr. Slakes discharged Jason from the hospital, with instructions to follow-up with a visit in four days, on August 11. She recommended that Jason continue on antibiotics until August 25, 1998. She did not release him to return to day care at that time. Ms. Schober sent the discharge form to Ms. Grow on or about August 8.
On Monday, August 10, Ms. Schober telephoned Ms. Grow and told her that she would not be returning to work because Jason was not cleared to return to day care. Ms. Schober then contacted Mr. Nieman to tell him that Dr. Stegemoller was unavailable to complete the FMLA Certification Form and inquire whether Dr. Slakes or Dr. Thaddeus Poe (Dr. Stegemoller's partner) could complete the form. Mr. Nieman responded that form had to be completed by Jason's attending physician, Dr. Stegemoller. Ms. Schober then sent SMC's FMLA Certification Form to Dr. Stegemoller's office.
On August 11, 1998, Ms. Schober took Jason to Dr. Slakes' office where he was examined by the doctor. Dr. Slakes did not release Jason back to day care at that time.
It is noted that SMC disputes this fact. Dr. Slakes did testify that as long as the day care could ensure that Jason received his antibiotic as prescribed, she knew of no medical reason why he could not return to day care. (Slakes Dep. at 54.) However, in her deposition, Ms. Schober testified that Dr. Slakes was not releasing Jason back to day care, but told her to keep him home until he was seen again the following week. (Schober Dep. II at 119-20.) Dr. Slakes testified that it is possible she had a discussion with Ms. Schober about Jason not returning to day care, but at the time of her deposition, she had no recollection of it. (Id. at 70-71.) There is no documentation in Dr. Slakes' records of whether or not Jason was released to return to day care on August 11. (Slakes Dep. at 70.)
On August 12, Ms. Schober met with Mr. Nieman and Ms. Grow, at which time Ms. Schober indicated she did not have the completed Certification Form because the Dr. Stegemoller was unavailable. She did, however, provide Mr. Nieman with an invoice from the August 11 appointment with Dr. Slakes, an invoice of Jason's August 5-7 hospital stay, an invoice for Jason's office visits with Dr. Stegemoller and two doctor's statements from Dr. Poe excusing her from work. Mr. Nieman considered the documentation to be insufficient and stressed that she needed to return the FMLA Certification Form as soon as possible. He gave her until the following week to have Dr. Stegemoller complete the form and return it to him. During the meeting Ms. Schober indicated she did not know when she would be able to return to work, but would let them know as soon as she could.
She was given a written warning for excessive absences, and Ms. Grow indicated that if she did not return to work, she would lose her job. Mr. Nieman also stated that continued absences from work without approval would lead to termination of her employment. He did not, however, inform her in writing that she could be terminated if she failed to return the forms by the 15 day certification deadline.
Ms. Schober remained absent from work the rest of that week and through August 18. SMC required her to use her remaining vacation leave for those absences. On both Thursday, August 13 and Friday August 14, Ms. Schober contacted Mr. Nieman to inform him that she was still trying to get the Certification Form from Dr. Stegemoller.
On Monday August 17, Ms. Schober took Jason to Dr. Stegemoller's partner, Dr. Poe because Dr. Stegemoller was still unavailable. She was informed that the office would have Dr. Stegemoller complete the Certification Form and send it back to her as soon as possible. She called Mr. Nieman and relayed this information. He responded that something would have to be done if he did not receive the form soon.
On Tuesday August 18, Ms. Schober took Jason to see Dr. Slakes. In a telephone conversation with Mr. Nieman that day, Ms. Schober indicated that she was still waiting for Dr. Stegemoller to complete the FMLA Certification Form, and she understood that he was working on it. She sent Mr. Nieman an invoice of Jason's visit to Dr. Slakes that day.
As of August 19, Ms. Schober had not reported for work, had not provided SMC with the FMLA Certification Form, and had no available personal or vacation leave remaining. Mr. Nieman decided that Ms. Schober's failure to provide any medical documentation prevented her from qualifying for FMLA leave as it related to her continuing absences from work. He believed that SMC had given Ms. Schober "all the chances in the world to maintain her employment. And she chose not to provide documentation and in my mind rationale for keeping her position." (Nieman Dep. at 52.) After reviewing her personnel file, Mr. Nieman terminated Ms. Schober's employment by a letter dated August 19, 1998. Her employment was terminated for the following reasons: (1) she was not making proper attempts to return the Certification Form; (2) she did not provide a completed form; and (3) excessive absenteeism.
SMC's Statement of Material Fact #100 asserts: "Since Schober had exhausted all of her available personal and vacation leave and since she continued to be absent from work, Nieman believed that termination was warranted." Though the cited deposition testimony does not support this assertion, (see Nieman Dep. at 106-07, 109), Ms. Schober does not dispute this fact; and more importantly, the termination letter raises the reasonable inference that Ms. Schober's excessive absences were a factor in the decision to terminate her employment. (See Def.'s Ex. 15.) Further support for this fact is found in SMC's answers to Plaintiff's Interrogatories, wherein SMC states that "plaintiff's employment was terminated because of frequent unauthorized absences." (Def.'s Answer to Interrog. No. 9, Pl.'s Ex. 26 at 5.)
II. Summary Judgment Standard
Summary judgment should be granted 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." FED. R. CIV. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); King v. Preferred Tech. Group, 166 F.3d 887, 890 (7th Cir. 1999). All facts are construed in the light most favorable to the non-moving party and all reasonable inferences are drawn in the nonmovant's favor. See, e.g., Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970); King, 166 F.3d at 890; Haefling v. United Parcel Serv., Inc., 169 F.3d 494, 500 (7th Cir.), cert. denied, 120 S.Ct. 64 (1999).III. Discussion
"The FMLA establishes two categories of broad protections for employees." King v. Preferred Tech. Group, 166 F.3d 887, 891 (7th Cir. 1999). First, it "contains prescriptive protections that are expressed as substantive statutory rights." Id.; see Diaz v. Fort Wayne Foundry Corp., 131 F.3d 711, 712-13 (7th Cir. 1997); accord Hodgens v. General Dynamics Corp., 144 F.3d 151, 159 (1st Cir. 1998). Eligible employees are entitled "to a total of 12 workweeks of leave during any 12-month period . . . [i]n order to care for . . . a son . . . of the employee, if such . . . son . . . has a serious health condition." 29 U.S.C. § 2612(a)(1)(C). The FMLA makes it "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided." 29 U.S.C. § 2615 (a)(1); 29 C.F.R. § 825.220(a)(1). When an employee alleges interference with or denial of a benefit provided by the FMLA, she "must demonstrate by a preponderance of the evidence only entitlement to the disputed leave. In such cases, the intent of the employer is immaterial." King, 166 F.3d at 891; see Diaz, 131 F.3d at 713 ("We shall continue to resolve suits under the FMLA . . . by asking whether the plaintiff has established, by a preponderance of the evidence, that he is entitled to the benefit he claims."); Hodgens, 144 F.3d at 159 ("Because the issue is the right to an entitlement, the employee is due the benefit if the statutory requirements are satisfied, regardless of the intent of the employer."). Second, the FMLA makes it unlawful for an employer "to discharge or in any manner discriminate against any individual" who has used or attempted to use FMLA leave. See 29 U.S.C. § 2615(a)(2); King, 166 F.3d at 891; Hodgens, 144 F.3d at 159-60; 29 C.F.R. § 825.220(c) (interpreting § 2615(a)(2) as prohibiting an employer from discriminating against an employee for having used FMLA leave).
As the First Circuit notes in Hodgens, the FMLA does not explicitly make it unlawful to discriminate against an employee for exercising her rights under the Act. See Hodgens, 144 F.3d at 160 n. 4. However, the regulations implementing the FMLA expressly provide that "[a]n employer is prohibited from discriminating against employees . . . who have used FMLA leave." 29 C.F.R. § 825.220(c). Congress expressly authorized the Secretary of Labor to promulgate regulations implementing the FMLA, see 29 U.S.C. § 2654, and those regulations are entitled to deference "so long as [they are] based on a reasonable reading of the statute." United States v. Dierckman, 201 F.3d 915, 923 (7th Cir. 2000); see Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44 (1984). The regulation, 29 C.F.R. § 825.220, is based on a reasonable interpretation of 29 U.S.C. § 2615(a)(1) and (a)(2).
Because the court, like SMC, had perceived some ambiguity as to whether Ms. Schober's FMLA claim was brought under both an interference theory and a discrimination theory, it held oral argument seeking clarification. Upon further consideration of the record, including Ms. Schober's Statement of Contentions, filed May 10, 2000, her answer brief, her surreply brief, her proposed jury instructions, and oral argument, the court concludes that she has not pled an FMLA claim under either a discrimination or retaliation theory, but only under an interference theory. It is noted, however, that actions which Ms. Schober raises as retaliation may also constitute interference.
The regulations promulgated pursuant to the FMLA provide that "[a]ny violations of the [FMLA] or of the regulations constitute interfering with, restraining, or denying the exercise of rights provided by the Act." 29 C.F.R. § 825.220(b). The regulations further define "interfering with" to include "for example, not only refusing to authorize FMLA leave, but discouraging an employee from using such leave." Id.; see also Dodgens v. Kent Mfg. Co., 955 F. Supp. 560, 564 (D.S.C. 1997).
Ms. Schober claims SMC interfered with or denied her exercise of rights under the FMLA by: (1) failing to respond to her July 1998 requests regarding FMLA leave; (2) failing to consider her ongoing absences from work resulting from Jason's illnesses as FMLA — qualifying; (3) instructing her that only Dr. Stegemoller could complete the FMLA Certification Form; (4) failing to give proper written notice regarding the FMLA's 15 day certification response deadline; (5) failing to afford her adequate time within which to return the Certification Form; (6) failing to properly inform her of the consequences of noncompliance with the certification response deadline; and (7) terminating her employment.
In its opening brief, SMC contends that Ms. Schober cannot prevail on an interference theory because she was not entitled to FMLA leave after August 10 and/or 11, 1998, because Jason did not suffer from a serious health condition after that time and, therefore, she should have returned to work no later than August 12, 1998. Then, for the first time in its reply brief, SMC argues that it did not interfere with Ms. Schober's FMLA rights in July 1998 because she was granted leave on each day for which she requested it and was allowed to return to her position. It also maintains that though Ms. Grow did give Ms. Schober a written warning for absences, the warning did not affect her employment. It contends that it did not interfere with Ms. Schober's FMLA rights by incorrectly advising her who could complete the FMLA Certification Form or by failing to provide her written notification of the date the form was to be returned and the consequences for not doing so.
It assumes, for purposes of summary judgment, that he suffered from a serious health condition on August 4-7, but argues such condition ceased after his discharge from the hospital on August 7.
The threshold question is whether Ms. Schober was entitled to FMLA leave. In a footnote in its reply brief SMC makes passing reference to the fact that Jason was not examined by a physician during the month of July 1998 and argues that if Ms. Schober did not believe his illness was worthy of a visit to a doctor, it should not have been expected to designate her absences as potentially pursuant to a serious health condition of a child. (Reply Br. at 3 n. 2.) To the extent that SMC is asserting that to qualify as a serious health condition, an individual must make a personal visit with a physician, there is some ambiguity in the regulations.
The applicable regulation provides:
§ 825.114 What is a "serious health condition" entitling an employee to FMLA leave?
(a) For purposes of FMLA, "serious health condition" entitling an employee to FMLA leave means an illness, injury, impairment, or physical or mental condition that involves:
(1) In patient care (i.e., an overnight stay) in a hospital . . ., including any period of incapacity (for purposes of this section, defined to mean inability to . . . attend school . . . due to the serious health condition, treatment therefor, or recovery therefrom), or any subsequent treatment in connection with such inpatient care; or
(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 (i.e., inability to . . . attend school . . . 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: . . .
(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)(i). The regulation does not specify that treatment requires a personal visit to or examination by a health care provider. Cf. 29 C.F.R. § 825.114(b) ("Treatment for purposes of paragraph (a) of this section includes (but is not limited to) examinations to determine if a serious health condition exists and evaluations of the condition. . . .") And, at oral argument, counsel for SMC indicated that he was unaware of any authority requiring a personal visit or examination by a health care provider for a condition to satisfy as a "serious health condition." In addition, the regulation explains that "[u]nder paragraph (a)(2)(i)(B), a regimen of continuing treatment includes, for example, a course of prescription medication (e.g., an antibiotic). . . ." If "continuing treatment" includes a course of prescription medication, then it is reasonable to construe "treatment" to include the prescribing of medication.
It is undisputed that Jason was unable to attend day care because of his health condition on the following days: July 6-10, July 13-17, and August 3, 6-10 and 11. In addition, he was hospitalized on August 5-7 and was seen by a physician on August 17 and 18. The record would support a finding that Ms. Schober's absences in July and on August 3, 6-10, 11, as well as at least in part on August 17 and 18, were due to Jason's serious health condition and in order to care for him. Further, because Ms. Schober has come forward with sufficient evidence to create a genuine issue of material fact as to whether Dr. Slakes released Jason to return to day care on August 11, there is a genuine issue of material fact as to whether her absences from work on August 12, 13 and 14 were FMLA — qualifying. Ms. Schober, therefore, has presented sufficient evidence from which a reasonable jury could find that she was entitled to FMLA leave for her absences in July through August 18, 1998.
It is unclear whether Ms. Schober was required to take the 17th and 18th off in their entirety in order to take Jason to his doctor's appointments.
By arguing that Ms. Schober did not ask anyone in SMC's Human Resources department about the availability of FMLA leave prior to August 5, 1998, SMC has questioned the sufficiency of Ms. Schober's notices of the need for FMLA leave prior to that time. The regulations promulgated under the FMLA require that an employee provide her employer with notice of the need for unforeseeable leave. Notice should be given "as soon as practicable under the facts and circumstances of the particular case." 29 C.F.R. § 825.303(a). The regulations expressly allow for notice provided by telephone. 29 C.F.R. § 825.303(b). When giving notice of the need for FMLA leave, an employee does not have to assert her rights under the FMLA or even mention the FMLA. See Stoops v. One Call Communications, Inc., 141 F.3d 309, 312 (7th Cir. 1998); Manuel v. Westlake Polymers Corp., 66 F.3d 758, 762 (5th Cir. 1995); Mora v. Chem-Tronics, Inc., 16 F. Supp.2d 1192, 1209 (S.D.Cal. 1998); 29 C.F.R. § 825.303(b). Notice is sufficient "if the employee gives the employer enough information to put the employer on notice that FMLA-qualifying leave is needed." Stoops, 141 F.3d at 312; Price v. City of Ft. Wayne, Ind., 117 F.3d 1022, 1025-26 (7th Cir. 1997) (holding request for leave for medical reasons accompanied by a doctor's note to take time off was sufficient notice); see also Viereck, 961 F. Supp. at 707 (holding employee's telephone call to employer, giving brief description of injuries and indicating she had been hospitalized and would be unable to return to work for some time because of her condition constituted sufficient notice); Brannon v. OshKosh B'Gosh, Inc., 897 F. Supp. 1028, 1039 (M.D.Tenn. 1995) ("On the mornings of January 10-11 and upon her return to work on January 12, 1994, Plaintiff told Ms. Crisp that her daughter was sick. This was sufficient to put Oshkosh on notice that the leave potentially qualified under 29 U.S.C. § 2612 (a)(1)(C)."); 29 C.F.R. § 825.208(a)(2) (employee needs to state a qualifying reason for the leave).
SMC has not contended that Ms. Schober gave untimely notice.
The record supports a finding that each time Ms. Schober needed a leave of absence from work in July 1998 and again on August 4, she contacted Ms. Grow and explained that her absence was because of Jason's illness and her need to care for him.
These contacts constitute sufficient notice of the need for FMLA leave under the regulations and case law. See, e.g., Stoops, 141 F.3d at 312; Manuel, 66 F.3d at 762.
Furthermore, the record supports a finding that on two separate occasions in July 1998, Ms. Schober specifically mentioned the FMLA by name and inquired of Ms. Grow as to whether her absences would entitle her to FMLA leave, giving SMC further notice of the need for FMLA leave.
Though it does not appear that SMC challenges the sufficiency of any notices Ms. Schober gave after August 5th, it is noted that the record is clear that for absences on the 5th through the 12th, Ms. Schober contacted either Ms. Grow or Mr. Nieman, or both, to advise that her absence was due to Jason's illness and her need to care for him. Such notice is sufficient.
The notice given by Ms. Schober triggered several obligations on the part of SMC. Once an employee gives notice that FMLA leave is needed, the employer is obligated to inquire further if it needs additional information to determine whether the leave is potentially FMLA-qualifying. See, e.g., Stoops, 141 F.3d at 312; Price, 117 F.3d at 1026; 29 C.F.R. § 825.208(a) ("In all circumstances, it is the employer's responsibility to designate leave, paid or unpaid, as FMLA-qualifying. . . . In any circumstance where the employer does not have sufficient information about the reason for an employee's use of paid leave, the employer should inquire further of the employee or the spokesperson to ascertain whether the paid leave is potentially FMLA-qualifying."); 29 C.F.R. § 825.303(b) ("The employer will be expected to obtain any additional required information through informal means.").
Because the record supports the finding that Ms. Schober gave sufficient notice that FMLA leave was needed in July 1998, a reasonable jury could further find that SMC was obliged to make further inquiry if necessary to determine whether the requested leave was FMLA-qualifying. It failed to do so any time before August 5th. A jury could reasonably find that this failure interfered with Ms. Schober's exercise of her rights under the FMLA.
Once an employee provides notice of the need for FMLA leave, the employer also is obligated to "provide written guidance to [the] employee concerning all the employee's rights and obligations under the FMLA." 29 C.F.R. § 825.301(a)(2). In addition, "the employer shall provide the employee with notice detailing . . . the consequences of a failure to meet these obligations. See Williams v. Shenango, Inc., 986 F. Supp. 309, 319 (W.D. Pa. 1997); 29 C.F.R. § 825.301(b)(1). Though the record supports the finding that Ms. Schober gave notice to SMC of the need for FMLA leave on several occasions in July 1998 and again on August 2 and 4, at the earliest SMC provided written guidance to her concerning her rights and obligations under the FMLA on August 4. However, it is noted, that a reasonable jury could find that SMC did not provide such written guidance until August 5. In addition, at no time did it provide her with written notice detailing the consequences of any failure to meet her obligations, that is, the termination of her employment. A reasonable jury could find that these failures interfered with Ms. Schober's exercise of or attempt to exercise her rights under the FMLA.
A jury could reasonably find that SMC interfered with Ms. Schober's FMLA rights in another way. The FMLA does not require an employee to provide medical documentation of a serious health condition, but it does allow employers to request such documentation. See 29 U.S.C. § 2613 ("An employer may require that a request for leave . . . be supported by certification issued by the health care provider of the . . . son . . . of the employee, as appropriate."); Mora v. Chem-Tronics, Inc., 16 F. Supp.2d 1192, 1209 (S.D.Cal. 1998); 29 C.F.R. § 825.305(a). In the case of unforeseen leave, the employer's request for medical certification should be made "within two business days after the leave commences." 29 C.F.R. § 825.305(c). If the employer requests medical certification, it must provide specific written notice to the employee of its requirement for certification and must advise the employee of the anticipated consequences of any failure to provide adequate certification. See Williams, 986 F. Supp. at 319; 29 C.F.R. § 825.301(b)(1)(ii); 29 C.F.R. § 825.305(d); see also Mora, 16 F. Supp.2d at 1209. If the employer fails to provide specific written request for medical certification, it "may not take any action against the employee for failure to provide medical certification." Mora, 16 F. Supp.2d at 1209 (quotation omitted); see also 29 C.F.R. § 825.301(f).
A jury could reasonably find that SMC did not request medical certification from Ms. Schober until August 5, and thus failed to make the request when Ms. Schober first gave notice to SMC of the need for leave or within 2 business days. Thus, a jury could reasonably find that SMC interfered with the exercise of her rights by not requesting certification in a timely fashion. In addition, a jury could reasonably find that SMC failed to provide specific written notice to Ms. Schober of the consequences — termination of her employment — should she fails to return a completed Certification Form. This also constitutes interference with her FMLA rights. See Rager v. Dad Behring, Inc., 210 F.3d 776, 777 (7th Cir. 2000) (stating the FMLA requires "that the employee be informed in writing that he or she has 15 days in which to submit proof of a serious health condition, and of the consequences if it is not submitted within the deadline, which in this case was termination").
Moreover, the trier of fact could reasonably find that SMC interfered with Ms. Schober's FMLA rights in yet another way. The regulations provide that in the case of unforeseeable leave, the employer must allow at least 15 calender days for the employee to comply with the employer's request for certification. See Rager, 210 F.3d at 777; 29 C.F.R. § 825.305(b) ("the employee must provide the requested certification to the employer within the time frame requested by the employer (which must allow at least 15 calendar days after the employer's request), unless it is not practicable under the particular circumstances to do so despite the employee's diligent, good faith efforts."); 29 C.F.R. § 825.311(b) ("an employee must provide certification . . . within the time frame requested by the employer (which must allow at least 15 days after the employer's request) or as soon as reasonably possible under the particular facts and circumstances."). When the record is viewed in the light most favorable to Ms. Schober, as it must be at summary judgment, August 5th was the first date on which SMC requested her to provide medical certification.
Because she was terminated only 14 calendar days thereafter, a jury could find that SMC did not allow her 15 calendar days within which to provide the certification. Thus, a jury could reasonably find that SMC failed to give Ms. Schober the minimum amount of time within which to submit the Certification Form and that its termination of her employment, based in part on her failure to return the medical certification form, interfered with and denied her rights under the FMLA.
In addition, there is a genuine issue of material fact as to whether it was even practicable under the circumstances for Ms. Schober to provide the Certification Form within 15 calendar days despite her diligent, good faith efforts.
As explained, a jury could reasonably find that SMC violated several of the regulations promulgated under the FMLA, and each such violation constitutes interference with Ms. Schober's exercise of rights protected by the Act. 29 C.F.R. § 825.220(b). Some district courts have held that to prevail on an interference claim based on inadequate notice, a plaintiff must establish that the defendant's failure to provide adequate notice of FMLA rights and procedures caused her to forfeit FMLA protections. See Mora v. Chem-Tronics, Inc., 16 F. Supp.2d 1192, 1227 (S.D.Cal. 1998); LaCoparra v. Pergament Home Ctrs., Inc., 982 F. Supp. 213, 220-22 (S.D.N.Y. 1997) (granting summary judgment for defendant where plaintiff received all benefits to which she would have been entitled under the FMLA); Dodgens v. Kent Mfg. Co., 955 F. Supp. 560, 564-65 (D.S.C. 1997) (granting summary judgment to employer where employee received all benefits he was guaranteed under FMLA).
A jury could reasonably find that SMC's interference caused Ms. Schober to forfeit rights under the FMLA: Though SMC has not at all times been consistent in the reasons offered for its termination of Ms. Schober's employment, there is evidence that it terminated Ms. Schober's employment because she did not return a medical Certification Form from Dr. Stegemoller in a timely manner and because of her excessive absences.
Consequently, Ms. Schober's interference claims arising from the termination of her employment, SMC's instruction to her that only Dr. Stegemoller could complete the FMLA Certification Form, its failure to give her written notice of the FMLA's 15 day response deadline, failure to properly inform her of the consequences of noncompliance with the response deadline, and failure to allow her sufficient time within which to return the Certification Form survive summary judgment. Though Ms. Schober did not argue it in response to SMC's summary judgment motion, it is noted that the evidence supports a finding that SMC failed to follow its own company attendance policy in terminating her employment: She was not given a pre-discharge written warning accompanied by a 3-day unpaid suspension prior to her discharge. Such evidence makes the decision to terminate Ms. Schober's employment suspect.
Ms. Schober need not show that lack of information about the deadline for returning the Certification Form or the consequences of failing to do so "caused her to fail to return to work once Jason was no longer suffering from a serious health condition," as SMC argues she must. (Reply Br. at 9.) It is sufficient that she has come forward with enough evidence to create a genuine issue of material fact as to whether she was properly given such information and whether her failure to return the Certification Form was a factor in the termination of her employment.
SMC's argument that it did not interfere with Ms. Schober's rights under the FMLA in July 1998 because she received all leave time she requested is unpersuasive. Ms. Schober has come forward with sufficient evidence to allow a reasonable jury to find that she was entitled to FMLA leave in July, she took such leave and was punished for taking that leave. There is evidence from which jury could reasonably find that Ms. Schober's FMLA-qualifying July absences and the written warnings from Ms. Grow were factors that led to the termination of her employment. Before making the decision to terminate Ms. Schober's employment, Mr. Nieman consulted her personnel file, the written warnings were retained in her file, and her employee attendance record reflects her July absences.
Furthermore, the regulations expressly provide for an interference claim arising out of an employer's refusal to authorize FMLA leave. See 29 C.F.R. § 825.220(b). By Ms. Grow's inaction in response to Ms. Schober's notice of the need for FMLA leave and her pointed inquiries to Ms. Grow regarding her entitlement to FMLA leave, SMC effectively refused to authorize FMLA leave. Thus, Ms. Schober's interference claims arising from SMC's failure to respond to her requests regarding FMLA leave in July 1998 and SMC's failure to consider her absences from work resulting from Jason's illnesses as qualifying for FMLA leave survive summary judgment.
IV. Conclusion
Genuine issues of material fact exist regarding Ms. Schober's interference claim under the FMLA; therefore, SMC's motion for summary judgment is DENIED.
ALL OF WHICH IS ORDERED this 21st day of August 2000.