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Bacon v. Henn. Co. Medical Center: US District Court : EMPLOYMENT - employer waived FMLA incapacity Question; but emplyee violated call-in policy1According to WebMD:Hives, also known as urticaria, are an outbreak of swollen, pale red bumps, patches, or welts on the skin that appear suddenly — either as a result of the body’s adverse reaction to certain allergens, or for other reasons. Hives usually cause itching, but may also burn or sting. They can appear anywhere on the body, including the face, UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA MELONDY BACON, Plaintiff, v. HENNEPIN COUNTY MEDICAL CENTER, Defendant. Case No. 06-CV-2359 (PJS/RLE) MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Mark A. Greenman and Ruth Y. Ostrom, GREENMAN & OSTROM, for plaintiff. Beverly J. Wolfe, HENNEPIN COUNTY ATTORNEY’S OFFICE, for defendant. Plaintiff Melondy Bacon, a former janitor at defendant Hennepin County Medical Center (“HCMC”), contends that HCMC violated the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601-2654, by firing her while she was on medical leave. Bacon and HCMC both move for summary judgment. For the reasons that follow, the Court grants summary judgment to HCMC and denies summary judgment to Bacon. I. BACKGROUND Bacon began working in 1992 as a janitor at HCMC, a public hospital in Minneapolis. Wolfe Aff. Opp. S.J. Ex. 12 (“Bacon Dep.”) at 12 [Docket No. 39]. As early as January 2000, Bacon went to the emergency room at HCMC during her shift to be treated for a skin condition that may have been hives.1 See Greenman Decl. Ex. B [Docket No. 31]. Bacon again broke out lips, tongue, throat, or ears. . . . They can last for hours, or up to several days before fading. Angioedema is similar to urticaria, but the swelling occurs beneath the skin instead of on the surface. . . . Occasionally, severe, prolonged tissue swelling can be disfiguring. Rarely, angioedema of the throat, tongue or lungs can block the airways, causing difficulty breathing. This may become life threatening. WebMD.com, Hives (Urticaria and Angioedema), http://www.webmd.com/allergies/guide/ hives-urticaria-angioedema (last visited Nov. 19, 2007) (archived permanently at http://www.webcitation.org/5TTT2GSlY). - 2 - in hives during a shift in August 2003, and yet again during a shift in July 2004. On both occasions, she was seen in the HCMC emergency room. Id. Exs. A, C. According to Bacon, between the summer of 2003 and July 2004, she broke out in hives at work about ten times. Bacon Decl. ¶ 3 [Docket No. 29]. Bacon’s hives outbreak in July 2004 led her to take a leave of absence. About a week after the outbreak — on July 14 — Bacon had an appointment with her primary-care physician, Dr. Priya Kohli. Kohli examined Bacon, discussed Bacon’s history of hives, and filled out an FMLA form entitled “Certification of Health Care Provider.” Greenman Decl. Exs. H (certification form), J (Kohli’s notes from visit); Bacon Decl. ¶ 3. The FMLA form had been provided to Bacon by HCMC. A few days later — on July 19, 2004 — Bacon’s supervisor, Richard Smyrak, partially filled out a “Supervisor’s FMLA Approval Form.” Smyrak signed the form, but he did not check a box to indicate whether he approved or disapproved Bacon’s leave request. Greenman Decl. Ex. K. Also on July 19 — the same day that Smyrak partially filled out the approval form — Kohli filled out a second certification form similar to the July 14 form. Wolfe Aff. Opp. S.J. Ex. 19 at HC00000129-32. Bacon says that Smyrak directed her to get this second doctor’s 2According to Bacon, Smyrak “signed [m]y FMLA request with the condition that I get a note from [my] doctor . . . . I complied and went back to Dr. [Kohli] the same day. Dr. [Kohli] gave me a note for HCMC that I could not work until I saw an allergist and an occupational therapist.” Bacon Decl. ¶ 7. 3According to HCMC, Bacon “claims for the first time” in her summary-judgment memorandum that she got a note from Kohli on July 19, but Bacon “never disclosed this note during discovery nor does she attach a copy of this note to her declaration. There is no documented evidence to show that such a ‘note’ ever existed.” Def. Resp. Mem. Opp. Pl. Mot. S.J. (“Def. SJ Opp.”) at 11 [Docket No. 36] (emphasis in original). HCMC asserts that “no such note can be found in . . . the documents in [Bacon’s] medical files at both the Emergency Room at HCMC and Health Partners (Wolfe, Exs. 18, 19) . . . . Simply put, other than [Bacon’s] hearsay claim, there is no evidence that this ‘phantom’ note ever existed.” Id. at 15. In fact, as noted in the text, this “phantom” note is not a phantom at all: It is the second certification form (dated July 19), which was among the documents produced by HCMC itself. Indeed, the July 19 certification form is found in the very exhibit (Exhibit 19 to the Wolfe affidavit in opposition to Bacon’s summary-judgment motion) that HCMC asserts does not contain a July 19 note from Kohli. HCMC needs to take care that what it asserts in federal court is true. - 3 - certification form when he signed her approval form on July 19. Bacon Decl. ¶ 7;2 see also Greenman Decl. Ex. L. Although it is not clear from the record exactly when and to whom Bacon turned in her forms, it is undisputed that two key forms — Kohli’s July 14 certification form and Smyrak’s July 19 approval form — were in her personnel file. Compare Kelley Aff. Opp. S.J. ¶¶ 12, 14, 16 [Docket No. 37] (asserting that forms were provided to Employee Health Services and forwarded to Smyrak) with Bacon Dep. at 131-32 (asserting that supervisor-approval form was given to Wanda Weber, Smyrak’s supervisor, who gave it to Smyrak). As to the July 19 certification form, HCMC strenuously asserts that there is no evidence that such a form ever existed.3 HCMC’s assertion is inexplicable. Records produced by HCMC during discovery in this case include a “Certification of Health Care Provider” signed and dated by Kohli on July 19, 2004. Wolfe Aff. Opp. S.J. Ex. 19 at HC00000129-32 [Docket No. 39]. - 4 - Both health-care-provider certifications filled out by Kohli support, albeit in a somewhat equivocal manner, Bacon’s request for FMLA leave: On the July 14 form, Kohli checked a box to indicate that Bacon had a chronic “serious health condition” as defined under the FMLA. Greenman Decl. Ex. H at 0002. At the same time, however, Kohli indicated that Bacon was not “presently incapacitated.” Id.¶ 3.c. Likewise, on the July 19 form, Kohli indicated both that Bacon had a chronic condition and that Bacon was not presently incapacitated by that condition. Wolfe Aff. Opp. S.J. Ex. 19 at HC00000129 ¶ 5.c. On the July 14 form, Kohli answered “yes” to the question whether Bacon needed “to take off work only intermittently or work on a reduced work schedule . . . .” Greenman Decl. Ex. H ¶ 3.b. With respect to the “probable duration” of intermittent leave or a reduced work schedule, Kohli commented: “Difficult to assess[;] when symptoms occur [Bacon] cannot be at work for [about 24 hours]. Frequency varies, may be once/month [and] may last rest of life.” Id. On the July 19 form, Kohli indicated that Bacon would need to work intermittently or on a lessthan- full schedule only “when condition is active.” Wolfe Aff. Opp. S.J. Ex. 19 at HC00000129 ¶ 5.b. Kohli indicated on both forms that she was referring Bacon to an allergist. Greenman Decl. Ex. H ¶ 4.a-.b; Wolfe Aff. Opp. Mot. S.J. Ex. 19 at HC00000129 ¶ 6.a. On the July 14 form, Kohli estimated that Bacon would need to be absent from work about one day per month to visit an allergist for treatment. Greenman Decl. Ex. H ¶ 4.a-.b. At the same time, however, on the July 14 form, Kohli answered “yes” to the question whether Bacon was “unable to perform work of any kind,” and commented: “[N]eeds to avoid work environment as offensive chemical may be causing this[.] Continued exposure may lead to - 5 - life threatening state.” Id. ¶ 5.a (emphasis added). Similarly, on the July 19 form, in response to the same question about whether Bacon was “unable to perform work of any kind,” Kohli wrote, “Yes as may be environmental exposure.” Wolfe Aff. Opp. S.J. Ex. 19 at HC00000130 ¶ 7 (emphasis added). Kohli further indicated, on the July 14 form, that Bacon’s “regimen of continuing treatment” would require, in addition to medication, “avoidance of offending agent (? chemical at work).” Greenman Decl. Ex. H ¶ 4.c. And in response to a question on the July 14 form about whether Bacon would need to be “absent from work for treatment,” Kohli wrote “N/A,” i.e., not applicable, because Kohli had found Bacon to be “unable to perform work of any kind.” Id. ¶ 5.c. This answer conflicts with Kohli’s indication, earlier in that same form, that Bacon needed to be absent from work once per month for treatment. Id. ¶ 4.a. Bacon never returned to work after her July hives outbreak. On the day of the outbreak, Bacon was coincidentally suspended for three days for earlier absences. Bacon Dep. at 79-81; Wolfe Aff. Opp. S.J. Ex. 13 at HC00000345 (Bacon Dep. Ex. 49). For about a month following that three-day suspension, Bacon called HCMC on every day that she was scheduled to work to report that she would not be coming in. Ostrom Decl. Opp. S.J. Exs. CC-FF [Docket No. 44]; Bacon Decl. ¶ 4. By calling in her absences, Bacon was complying with HCMC’s attendance policy. That policy, which Bacon knew about, requires an employee on indefinite sick leave to 4An HCMC employee need not call in her absences if she “has provided [her] supervisor with written medical documentation specifying length of absence, including tentative date for return to work.” Weber Aff. Opp. S.J. Ex. 2 at HC00000891. There is no dispute that Bacon’s medical documentation neither specified the length of her absence nor provided a tentative return-to-work date. - 6 - call in her absences every day.4 Weber Aff. Opp. S.J. Ex. 2 at HC00000891 [Docket No. 38]; Bacon Dep. at 34-36. On August 2 — while Bacon was still complying with HCMC’s call-in policy — Bacon saw Dr. Rolf Sigford, the allergist to whom Kohli had referred her. Sigford’s notes include these remarks: [Bacon] has been out of work, by her report, since June [sic] 14. She states it’s because of the hives issue that she cannot get back to work. She’s not having hives now. She thinks the hives seem to be worse in the workplace and occur only at the workplace. . . . Allergy skin testing is negative . . . . ASSESSMENT: Urticaria. This may most likely actually turn out to be idiopathic. . . . PLAN: It’s not even totally clear to me that this is exclusively a workplace-related issue. In addition, if she’s only having hives for two or three days, every couple months, I don’t really fully understand why she should not be back at work. I’ll ask for Occupational Health consult. We’ll check CBC, thyroid, sed[imentation] rate, liver function to rule out other causes of this issue. . . . [C]ontact me [after] seeing Occupational Health and getting the blood work done. Wolfe Aff. (Second) Supp. S.J. Ex. 75 at HC00000137 [Docket No. 49]. That same day, after her appointment with Sigford, Bacon stopped by HCMC’s Employee Health Services department. Kelley Aff. Opp. S.J. Ex. 1 at HC00000669. Bacon told an HCMC nurse that she 5Bacon also failed to show up or call in her absence beforehand for her scheduled shift on August 11. Ostrom Decl. Opp. S.J. Ex. GG. By that time, however, Bacon had already accumulated three “no call/no show” absences — August 5, 9, and 10 — and HCMC fired Bacon based on those three absences. - 7 - would be scheduling followup visits with Kohli and with an occupational-health specialist. Id. at HC00000671. In the meantime, however, Bacon stopped calling in her absences. On August 5, just three days after seeing Sigford and stopping by HCMC, Bacon failed to show up for a scheduled shift, and she failed to alert HCMC that she would be absent. Bacon Dep. at 92. Bacon also failed to show up, or to call in her absence beforehand, for her next two scheduled shifts on August 9 and 10. Id. at 93; Weber Aff. Opp. S.J. ¶ 34; Ostrom Decl. Opp. S.J. Ex. GG [Docket No. 46]. On August 11, Wanda Weber, the director of the department in which Bacon worked, wrote Bacon a letter informing her that because she had been absent without calling for three days (August 5, 9, and 10), Bacon was “deemed to have resigned” from HCMC. Greenman Decl. Ex. P.5 In response to Weber’s August 11 letter, Bacon wrote back that she was on FMLA leave and had not resigned. Greenman Decl. Ex. Q. Bacon did not give any reason for her failure to call in her absences after August 4. She did, however, ask for “clarification” of Weber’s August 11 letter. Weber responded by a letter in which she asserted that Bacon “did not submit papers that qualified [her] for Family Medical Leave” and therefore was not on FMLA leave on August 5, 9, and 10. Greenman Decl. Ex. S. Weber called Bacon’s attention to the collectivebargaining agreement governing Bacon’s position, under which Bacon’s unexcused absence for three days entitled HCMC to treat Bacon as having abandoned her job. Id. - 8 - Bacon applied to the Minnesota Department of Employment and Economic Development for unemployment benefits. The department initially denied her application. Bacon Dep. at 15. Bacon successfully appealed the denial. In connection with the appeal, Bacon submitted a written statement in January 2005. In that statement, Bacon gave the following explanation for her failure to call in her post-August 4 absences: I had been calling in per the union contract until I received information on the federal guidelines for FMLA which did not require any call-ins. The Hennepin County personnel policies on Family Medical Leave . . . did not contain any directive to call in either. Therefore, I stopped calling in per the federal and County guidelines that I did not have to and worked on keeping doctor’s appointments and getting better. Greenman Decl. Ex. L (emphasis added). Two years after making this statement to state authorities, Bacon was deposed in connection with this case and claimed for the first time that she stopped calling in her absences because her supervisor, Richard Smyrak, had told her that she did not have to call in while on FMLA leave. Bacon Dep. at 93. Smyrak denies having said any such thing to Bacon. Smyrak Aff. Supp. S.J. ¶¶ 4-5 [Docket No. 50]. Bacon also provides no real explanation for why she did not mention her conversation with Smyrak to Weber in August 2004 or during the unemployment-compensation proceedings in late 2004 and early 2005. In the declaration that Bacon submitted to support her summary-judgment motion, Bacon offers yet another explanation for her failure to call in her absences after August 4, 2004 — one that differs from the explanation that she provided at her deposition. She now asserts: On August 2nd, while I was at HCMC filling out the workers’ compensation forms, a union representative informed me that because I was out on FMLA leave, under the FMLA Regulations I was not required to call in every day I was going to be absent. 6The Court quotes the version of Rule 56 that became effective December 1, 2007. The restyled rule is in substance the same as the version that was in effect when the parties briefed their summary-judgment motions. See Fed. R. Civ. P. 56 advisory committee’s note on 2007 amendments. - 9 - Relying on this information, I did not call in [my] absences after August 2nd. Bacon Decl. ¶ 9 (emphasis added). Bacon does not assert in the declaration that she filed in support of her summary-judgment motion that Smyrak told her that she could stop calling in her absences. She thus seems to be distancing herself from her own deposition testimony. II. ANALYSIS A. Standard of Review Summary judgment is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).6 A dispute over a fact is “material” only if its resolution might affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over a fact is “genuine” only if the evidence is such that a reasonable jury could return a verdict for either party. Ohio Cas. Ins. Co. v. Union Pac. R.R., 469 F.3d 1158, 1162 (8th Cir. 2006). In considering a motion for summary judgment, a court must assume that the nonmoving party’s evidence is true. Taylor v. White, 321 F.3d 710, 715 (8th Cir. 2003). B. Bacon’s FMLA Claim The FMLA, as relevant to this case, gives an eligible employee with a sufficiently serious medical condition the right to take up to twelve weeks of leave, paid or unpaid, within a twelvemonth period. 29 U.S.C. §§ 2612(a)(1)(D), 2612(c)-(d). An employee who takes FMLA leave - 10 - generally has the right, upon returning from leave, to be reinstated either to the position that she occupied when she went on leave or to an equivalent position. 29 U.S.C. § 2614(a)(1). The FMLA creates two types of claims: “interference” claims and “retaliation” claims. Interference claims are based on 29 U.S.C. § 2615(a)(1), which forbids employers to interfere with or deny the exercise of any right provided by the FMLA. Retaliation claims are based on 29 U.S.C. § 2615(a)(2), which forbids employers to discriminate against employees for exercising their FMLA rights. Establishing discriminatory intent on the part of the employer is essential to proving a retaliation claim, but irrelevant to proving an interference claim. Throneberry v. McGehee Desha County Hosp., 403 F.3d 972, 976 (8th Cir. 2005). Bacon’s amended complaint includes both retaliation and interference claims, Am. Compl. ¶¶ 25-26 [Docket No. 3], but Bacon has abandoned the retaliation claim and now pursues only the interference claim. Pl. Mem. Supp. Mot. S.J. (“Pl. SJ Mem.”) at 20 [Docket No. 28] (“Plaintiff’s claim is an (a)(1) interference claim.”). To prevail on the interference claim, Bacon must establish (1) that she was entitled to FMLA leave, and (2) that HCMC unlawfully interfered with that leave. See Stallings v. Hussmann Corp., 447 F.3d 1041, 1050 (8th Cir. 2006). With respect to the first element (Bacon’s entitlement to FMLA leave), the Court understands Bacon to be contending that she was entitled to take FMLA leave because of her hives until a doctor cleared her to return to work (or until she reached the twelve-week statutory limit), and that she would have been entitled to reinstatement on her return from leave. With respect to the second element, Bacon contends that HCMC interfered with those rights when it fired her for not calling in her absences for three consecutive shifts in August 2004. For its part, HCMC argues that Bacon can make out neither element of her interference claim. According to HCMC, Bacon was not entitled to FMLA leave at all, and, even if she was, 7The FMLA actually defines two types of “serious health conditions,” one that requires inpatient treatment, and a second that requires “continuing treatment by a health care provider” (but not inpatient treatment). 29 U.S.C. § 2611(11)(A)-(B). Because Bacon was never hospitalized, the Court discusses only the continuing-treatment regulations, and not the inpatienttreatment regulations. See 29 C.F.R. § 825.114(a)(2) (defining “[a] serious health condition involving continuing treatment by a health care provider”). For the sake of simplicity, the Court uses the shorthand expression “serious health condition” to mean “serious health condition involving continuing treatment by a health care provider.” - 11 - HCMC did not interfere with that leave by firing her. The Court addresses the two elements of Bacon’s interference claim in turn. 1. Bacon’s Entitlement to FMLA Leave To establish her entitlement to FMLA leave, Bacon must prove two things. First, she must prove that she gave adequate notice to HCMC of her need for FMLA leave. See Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990-91 (8th Cir. 2005). Second, she must prove that she had a “serious health condition” under 29 U.S.C. § 2612(a)(1)(D). See Stekloff v. St. John’s Mercy Health Systems, 218 F.3d 858, 861-62 (8th Cir. 2000). HCMC does not seriously dispute that Bacon notified HCMC of her need for FMLA leave when she submitted FMLA paperwork to HCMC in July 2004. The remaining question, then, is whether Bacon had a “serious health condition” that entitled her to FMLA leave. a. “Serious” versus “chronic serious” health condition An FMLA regulation — 29 C.F.R. § 825.114 — provides guidance as to what qualifies as a “serious health condition” under the FMLA.7 Two subsections of that regulation potentially apply in this case. First, subsection (a)(2)(i) provides that an employee has a “serious health condition” if she experiences “a period of incapacity . . . of more than three consecutive calendar days” and meets certain other conditions related to treatment of the condition. 29 C.F.R. § 825.114(a)(2)(i). Second, subsection (a)(2)(iii) provides that an employee has a “serious - 12 - health condition” if she experiences “[a]ny period of incapacity or treatment for such incapacity due to a chronic serious health condition.” 29 C.F.R. § 825.114(a)(2)(iii) (emphasis added). Subsection (a)(2)(iii) then defines the term “chronic serious health condition.” Id. In her summary-judgment brief, Bacon argues that the undisputed facts establish that she had a “serious health condition” under subsection (a)(2)(i); she does not argue that she had a “chronic serious health condition” under subsection (a)(2)(iii). Pl. SJ Mem. at 20-22. HCMC cries foul, arguing that because Bacon’s complaint is phrased in terms of a “chronic serious health condition,” it is unfair for Bacon to now argue that she had merely a serious (but not a chronic) health condition. Def. Resp. Mem. Opp. Pl. Mot. S.J. (“Def. SJ Opp.”) at 22-23 [Docket No. 36]. The Court disagrees. Although Bacon’s complaint generally uses the term “chronic serious health condition,” it also uses the phrase “serious health condition.” Compare Am. Compl. ¶¶ 7-12 with id. ¶ 13. More importantly, the FMLA itself uses only the term “serious health condition”; the distinction between “chronic” serious health conditions and all other serious health conditions is found only in 29 C.F.R. § 825.114(a). The difference between a “serious health condition” under subsection (a)(2)(i) of that regulation and a “chronic serious health condition” under subsection (a)(2)(iii) is not the sort of difference that requires a defendant to take different discovery or to take a fundamentally different approach to defending the case. Accordingly, the Court finds that the complaint put HCMC sufficiently on notice of the nature of Bacon’s claim and that HCMC has suffered no prejudice from Bacon’s use of the phrase “chronic serious health condition” in the complaint. The Court therefore addresses the merits of Bacon’s contention that she had a “serious health condition” under subsection (a)(2)(i). 8See Def. SJ Opp. at 22-23 (challenging Bacon’s “incapacity” but not the number of times she was treated); Def. Mem. Supp. Mot. S.J. at 12-16 (“Def. SJ Mem.”) [Docket No. 24] (asserting that hives is not “serious” and that Bacon was not “incapacitated” but not disputing the number of times she was treated); Def. Reply Mem. Supp. Mot. S.J. (“Def. SJ Reply”) at 6-8 [Docket No. 47] (same). Apart from whether Bacon saw a doctor at least twice for her hives, she probably also satisfies the alternative portion of the third part of the “serious health condition” test by having seen Kohli once and been placed under a regimen of continuing treatment. But the Court need not reach this question. - 13 - b. Bacon’s “Serious Health Condition” Subsection (a)(2)(i) of 29 C.F.R. § 825.114 establishes an objective test for determining whether an employee has a “serious health condition” under the FMLA. See Rankin v. Seagate Technologies, Inc., 246 F.3d 1145, 1148 (8th Cir. 2001). An employee can satisfy this test if she can prove that (1) she had an illness, injury, or the like; (2) the illness or injury caused a period of incapacity of more than three consecutive calendar days; and (3) either (a) she was treated by a doctor two or more times or (b) she was treated by a doctor once and then subjected to a “regimen of continuing treatment” under medical supervision. See 29 C.F.R. § 825.114(a)(2)(i); Rankin, 248 F.3d at 1147-48. HCMC does not dispute that Bacon was treated two or more times for her hives (item 3 above).8 It is also uncontested that Bacon had hives, which is an “illness, injury, or the like” (item 1 above). HCMC argues, however, that hives are such a minor medical condition that they cannot qualify as a “serious health condition” under the FMLA. Def. Mem. Supp. Mot. S.J. (“Def. SJ Mem.”) at 12-14 [Docket No. 24]; Def. SJ Opp. at 24-25. HCMC misunderstands the FMLA and the governing regulations, which establish an objective test for assessing the seriousness of a health condition. If a health condition meets the objective test set forth in 29 C.F.R. § 825.114(a)(2)(i), then it is a “serious” health condition, regardless of how serious it 9 Section 825.305(d) provides: At the time the employer requests certification, the employer must also advise an employee of the anticipated consequences of an employee’s failure to provide adequate certification. The employer shall advise an employee whenever the employer finds a certification incomplete, and provide the employee a reasonable opportunity to cure any such deficiency. 29 C.F.R. § 825.305(d) (emphasis added). - 14 - seems to the judge or the employer’s attorney or any other layperson. See Rankin, 246 F.3d at 1147-48; Thorson v. Gemini, Inc., 205 F.3d 370, 380 (8th Cir. 2000). The only remaining question, then, is whether Bacon was incapacitated by her hives for more than three consecutive calendar days (item 2 above). Bacon contends that, for two reasons, the Court must find that she was incapacitated under the FMLA for the requisite period. First, Bacon argues that because HCMC neglected to follow FMLA-prescribed procedures to challenge her claim of incapacity in 2004, HCMC has waived its right to make such a challenge now. Pl. SJ Mem. at 23-28; Pl. Reply Mem. Supp. Mot. S.J. at 4 [Docket No. 52]. Second, Bacon argues that even if HCMC is still entitled to challenge her claim of incapacity, HCMC’s challenge fails on the merits because the undisputed facts establish that she was incapacitated under the FMLA in July and August 2004. Pl. Mem. Opp. Def. Mot. S.J. (“Pl. SJ Opp.”) at 23- 25 [Docket No. 43]. The Court addresses each argument in turn. i. Waiver The FMLA and its implementing regulations establish procedures for employers to follow in challenging employees’ requests for FMLA leave. If an employer finds that an employee’s FMLA certification form is “incomplete,” the employer must so notify the employee, and must give the employee a chance to correct any deficiency. 29 C.F.R. § 825.305(d).9 And if 10Section 2613(c) provides: (1) In general. In any case in which the employer has reason to doubt the validity of the certification provided under subsection (a) of this section for leave under subparagraph (C) or (D) of [29 U.S.C. § 2612(a)(1)], the employer may require, at the expense of the employer, that the eligible employee obtain the opinion of a second health care provider designated or approved by the employer concerning any information certified under subsection (b) of this section for such leave. (2) Limitation. A health care provider designated or approved under paragraph (1) shall not be employed on a regular basis by the employer. 29 U.S.C. § 2613(c). - 15 - an employer doubts the accuracy of the medical information contained in an employee’s FMLA certification form, the employer may seek an independent second medical opinion. 29 U.S.C. § 2613(c).10 If that second opinion conflicts with the FMLA certification form, the employer may request a third and final medical opinion, which binds both the employer and the employee. 29 U.S.C. § 2613(d). In this case, HCMC never directed Bacon to seek a second opinion, as was its right under 29 U.S.C. § 2613(c). Nor did HCMC inform Bacon that her certification was “incomplete,” as mandated by 29 C.F.R. § 825.305(d). Indeed, it appears that no one at HCMC even looked carefully at Bacon’s FMLA paperwork until some time in early August 2004. See Kelley Aff. Opp. S.J. ¶ 14; Weber Aff. Supp. S.J. ¶ 28 [Docket No. 26]; Greenman Decl. Ex. G at 39. Does this mean that HCMC cannot now dispute that Bacon qualified for FMLA leave? Eighth Circuit case law leaves the answer unclear. Bacon relies on Thorson v. Gemini, Inc., 205 F.3d 370 (8th Cir. 2000), to argue that by failing, in 2004, to challenge her claim of incapacity, HCMC waived its right to mount such a challenge now. Pl. SJ Mem. at 23-26. Language from Thorson indeed supports Bacon’s - 16 - contention. The employer in Thorson argued, in an FMLA suit brought by an employee (Thorson), that the employee had never been incapacitated and therefore had not been eligible for FMLA leave during the disputed time period. The Eighth Circuit rejected the argument, saying: It may well be that Thorson’s illness did not actually require that she be absent from work, but because the company did not resort to the protections for employers provided by the FMLA to address just this sort of situation, there is no genuine issue of fact on this part of the “serious health condition” question. 205 F.3d at 381. The “protections for employers provided by the FMLA” referred to in the quoted passage are the statute and regulation discussed above (i.e., 29 U.S.C. § 2613 and 29 C.F.R. § 825.305). At the same time, however, Thorson went on to consider the merits of the employer’s challenge to the employee’s FMLA eligibility. Thorson found the employer’s evidence legally insufficient: [I]n defending against Thorson’s motion for summary judgment, Gemini [the employer] had to rely upon a physician’s evaluation of Thorson performed many months after the termination and for purposes of this litigation, which stated that there was no obvious reason Thorson should have missed work in February 1994, and upon a psychologist’s opinion, based on an evaluation made two years after Thorson’s termination, that Thorson’s physical problems were manifestations of a psychological problem. In the face of the contemporaneous notes from Thorson’s physician indicating that she was not to work, we agree with the District Court that Gemini cannot show, with its evaluations made long after the fact, that there remains a genuine issue of material fact on the question of Thorson’s capacity to perform her job. 205 F.3d at 382. It thus appears that although Thorson articulated a straightforward waiverbased rationale for rejecting an employer’s after-the-fact challenge to an employee’s FMLA eligibility, Thorson did not necessarily rely on that rationale alone. - 17 - Soon after deciding Thorson, the Eighth Circuit, in Stekloff v. St. John’s Mercy Health Systems, Inc., cast serious doubt on Thorson’s waiver rationale. 218 F.3d 858 (8th Cir. 2000). In rejecting an employee’s argument that her employer “waived its right to contest her assertion that she had a ‘serious health condition’” by failing to seek a second opinion under 29 U.S.C. § 2613(c), Stekloff said: The language of § 2613(c)(1) [about requiring second opinions], however, is merely permissive: It states that an employer with “reason to doubt the validity” of the employee’s certification “may” require the employee to obtain the opinion of a second health care provider. We do not read § 2613(c)(1) as requiring an employer to obtain a second opinion or else waive any future opportunity to contest the validity of the certification. We note, moreover, that several of our recent cases involving the FMLA have considered employer arguments that an employee did not have a serious medical condition in spite of the fact that no second opinion was sought. See, e. g., Thorson v. Gemini, Inc., 205 F.3d 370, 375, 381-82 (8th Cir. 2000). We turn, therefore, to the merits of the parties’ arguments. 218 F.3d at 860. As this paragraph makes plain, Stekloff purported to be consistent with Thorson. Some subsequent decisions, in this district and elsewhere, have attempted to harmonize Thorson and Stekloff by essentially limiting Thorson to its facts. See Rhoads v. Fed. Deposit Ins. Corp., 257 F.3d 373, 385-86 (4th Cir. 2001); Dillaway v. Ferrante, No. 02-715, 2003 WL 23109696, at *7- 9, 2003 U.S. Dist. LEXIS 23468, at *22-24 (D. Minn. Dec. 9, 2003). The undersigned is reluctant to follow the lead of those courts. To assert that an opinion of an appellate court has been “limited to its facts” is usually a polite way of saying “implicitly overruled,” especially when, as is true with respect to Thorson, there was nothing particularly unusual about the facts of the earlier case. Rather than pretend that something unique about Thorson made it “limit-able” to its facts, the undersigned prefers to acknowledge, as did another 11Swanson v. Senior Res. Connection, 254 F. Supp. 2d 945 (S.D. Ohio 2003). The Swanson court observed: Stekloff, a case in which the Eighth Circuit held that an employer need not rebut medical evidence with other medical evidence, is of little persuasive value because the circuit court completely misstated, and thus ignored, its earlier opinion in Thorson, which held to the contrary. Id. at 956 (citations omitted). - 18 - district court,11 that Thorson and Stekloff are at odds on the waiver issue, creating an intra-circuit conflict. The Eighth Circuit has said: “When we are confronted with conflicting circuit precedent, the better practice normally is to follow the earliest opinion, as it should have controlled the subsequent panels that created the conflict.” T.L. ex rel. Ingram v. United States, 443 F.3d 956, 960 (8th Cir. 2006). Accordingly, to the extent that Thorson and Stekloff are in conflict, this Court is bound to follow Thorson. Under Thorson, once Bacon provided HCMC with a certification form from Kohli supporting Bacon’s need for FMLA leave, HCMC “became obligated either to count [Bacon’s] absence as FMLA leave under the ‘serious health condition’ provision or to follow the procedures set out in the statute and the regulations designed to prevent employee abuse of the Act.” Thorson, 205 F.3d at 381. HCMC did not follow the FMLA’s procedure for challenging Bacon’s FMLA certification. The Court therefore agrees with Bacon that, under Thorson, HCMC cannot now deny that Bacon was “incapacitated” and therefore experiencing a “serious health condition” for purposes of the FMLA. This conclusion about Bacon’s incapacity does not, however, turn solely on the Court’s interpretation of Thorson and Stekloff. As explained below, the Court also finds that, even if HCMC had not waived its right to challenge Bacon’s eligibility for FMLA leave, the undisputed 12Further, as noted earlier, HCMC denies the existence of the July 19 form, despite having produced the form in discovery from its own files. The Court focuses in this section of its opinion on the July 14 form because it is the basis of HCMC’s argument. Considering the July 19 form would not change the Court’s analysis. - 19 - facts establish that Bacon was “incapacitated” under the FMLA and therefore had a “serious health condition.” ii. Undisputed Facts About Incapacity FMLA regulations define the “incapacity” element of a “serious health condition” as an “inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefor, or recovery therefrom[.]” 29 C.F.R. § 825.114(a)(2)(i). The Eighth Circuit has held that an “inability to work” for FMLA purposes is job-specific, not generalized: “[A] demonstration that an employee is unable to work in his or her current job due to a serious health condition is enough to show that the employee is incapacitated, even if that job is the only one that the employee is unable to perform.” Stekloff, 218 F.3d at 861. Contrary to HCMC’s contentions, both of the FMLA certification forms completed by Kohli establish that Bacon was unable to work at her job when she went on leave. On both the July 14 and July 19 forms, Kohli answered “yes” to the question whether Bacon was “unable to perform work of any kind.” Greenman Decl. Ex. H at ¶ 5.a.; Wolfe Aff. Opp. S.J. Ex. 19 at HC00000130. On the July 14 form, Kohli further explained that Bacon “needs to avoid work environment as offensive chemical may be causing this[.] Continued exposure may lead to life threatening state.” Greenman Decl. Ex. H at ¶ 5.a (emphasis added). HCMC chooses to ignore Kohli’s affirmation that Bacon was unable to work.12 HCMC instead directs the Court’s attention to Bacon’s understanding of the July 14 form; to Kohli’s apparent affirmation, on that same form, that Bacon was not presently incapacitated; and to - 20 - Kohli’s indication that Bacon would need about twenty-four hours off if she became symptomatic, which was likely to happen about once a month. Def. SJ Mem. at 14-15. But these three issues are, for the most part, a sideshow; they do little to undermine the evidence that establishes Bacon’s incapacity. First, what Bacon read the form to mean at her deposition is irrelevant; the Court is capable of reading the form itself. Second, Kohli’s assertion that Bacon was not incapacitated during her July 14 visit is only superficially inconsistent with Bacon’s claim of incapacity under the FMLA. Kohli said that Bacon was unable to return to her job, which, under the Eighth Circuit case law described above, establishes Bacon’s incapacity for FMLA purposes. Kohli’s conclusion that Bacon was not incapacitated at the July 14 visit obviously referred to “incapacity” in a layperson’s sense (i.e., to an inability to undertake gainful employment of any kind). Finally, HCMC overemphasizes Kohli’s comment that when Bacon became symptomatic, she would need to take twenty-four hours off work. See Greenman Decl. Ex. H at ¶ 3.b. This comment conflicts with Kohli’s assertion elsewhere on the certification form that Bacon was unable to do her job at all because Bacon needed to avoid her work environment or else risk a “life threatening state.” Id. ¶ 5.a. HCMC also argues that even if Bacon was incapacitated for FMLA purposes as of her July 14 visit to Kohli, Bacon’s incapacity ended when she saw an allergist on August 2. Def. Reply Mem. Supp. Mot. S.J. (“Def. SJ Reply”) at 9-11 [Docket No. 47]. It is true that Kohli referred Bacon to an allergist to determine the cause of her hives. Greenman Decl. Ex. H at ¶ 4.a. It is also true (according to Bacon) that Kohli told Bacon not to return to work until after she saw the allergist. Bacon Decl. ¶ 6; Wolfe Aff. (Second) Supp. S.J. Ex. 76 (Bacon’s answer to Interrogatory 6). And it is true that Bacon saw an allergist (Dr. Rolf Sigford) on August 2. 13The key passages from Sigford’s note are quoted at length in the background section above. Sigford says that it is “not even totally clear” to him that Bacon’s hives were workplacerelated; but he does not say her hives were not workplace-related. Wolfe Aff. (Second) Supp. S.J. Ex. 75 at HC00000137. And while Sigford says that he does not “really fully understand why she should not be back at work,” he does not say that Bacon should be back at work. Id. - 21 - But just because Bacon saw an allergist on August 2 does not mean that her incapacity ended that day, as HCMC seems to believe. Suppose that Sigford had told Bacon that she was, indeed, allergic to a chemical at work and that the allergy could kill her. Would HCMC argue that because Bacon “saw” Sigford, on August 2 her incapacity to do her job ended on that date? Of course not. HCMC emphasizes Sigford’s skepticism about whether Bacon’s hives were work-related (specifically, Sigford’s comment that he did not understand why Bacon was not back at work). Def. SJ Reply at 10 n.4. It is apparent from the note that Sigford was indeed skeptical, but it is also apparent that his skepticism was tentative. Sigford was thinking out loud, not asserting that Bacon should definitely go back to work.13 Sigford not only ordered further tests, but he also referred Bacon to an occupational-health specialist. Wolfe Aff. (Second) Supp. S.J. Ex. 75 at HC00000137. The test results were not given to Bacon until August 17. See id. at HC00000140. Bacon did not see an occupational-health specialist until late September. See id. at HC00000145-48. Further, Kohli’s notes from an appointment on August 23 make plain both that Sigford’s conclusions were tentative and that Bacon was not yet cleared for work. Kohli observed: [Bacon] saw Dr. Sigford recently on 8/2/04. He was not sure at that time whether her symptoms were work related . . . although he was doing further testing and also sending [Bacon] to Occupational Therapy as well for assessment. . . . . . . Urticaria. Doing well with Claritin. It looks likely to be idiopathic but we will await Occupational Health’s assessment. - 22 - Id. at HC00000143 (emphasis added). As these notes make clear, neither Sigford nor Kohli had yet concluded that Bacon’s hives were not work-related and that she could therefore return to work. That determination was not made until September 23, when an occupational-health specialist (Dr. Ralph Bovard) “did complete a [work ability] form for her with clearance to return to regular duty without restrictions.” Id. at HC00000148 (emphasis added). Accordingly, the undisputed facts establish that Bacon remained incapacitated through at least August 11. Bacon was therefore entitled to FMLA leave at the time that HCMC fired her. 2. HCMC’s Enforcement of Its Attendance Policy By firing Bacon while she was on FMLA leave, HCMC “interfered” with that leave in the everyday sense of that word. But because HCMC was entitled to fire Bacon for having violated HCMC’s call-in policy, HCMC did not “interfere” with her leave in the legal sense. As the Eighth Circuit has held, the FMLA does not make employers strictly liable for interfering with employees’ FMLA rights. Throneberry v. McGehee Desha County Hosp., 403 F.3d 972, 974 (8th Cir. 2005). Rather, “an employer who interferes with an employee’s FMLA rights will not be liable if the employer can prove it would have made the same decision had the employee not exercised the employee’s FMLA rights.” Id. at 977. Moreover, FMLA regulations expressly permit employers to enforce absence-notification policies like HCMC’s daily call-in policy. Under those regulations, “[a]n employer may require an employee on FMLA leave to report periodically on the employee’s status and intent to return to work,” as long as the employer’s call-in policy is nondiscriminatory and takes into account an employee’s particular circumstances. 29 C.F.R. § 825.309(a); see also Throneberry, 403 F.3d at 978 (“The Department of Labor . . . permits employers to lawfully interfere with employees’ rights to take FMLA leave.”). 14Bacon does not argue — and the record contains no evidence suggesting — that HCMC enforced its call-in policy in a discriminatory manner by firing Bacon for conduct that would not have resulted in dismissal if committed by an employee who was not on FMLA leave. - 23 - The HCMC attendance and call-in policy at issue in this case requires employees on FMLA leave either to provide HCMC with a tentative date for their return to work or to call in daily to report their absence. Weber Aff. Opp. S.J. Ex. 2 at HC00000891. Such a policy is permissible under § 825.309(a), and employers who enforce such policies by firing employees on FMLA leave for noncompliance do not violate the FMLA. See Lewis v. Holsum of Fort Wayne, Inc., 278 F.3d 706, 710 (7th Cir. 2002) (“[T]he FMLA does not authorize employees on leave to keep their employers in the dark about when they will return.”) (quotations omitted). Accordingly, the Court rejects Bacon’s contention that HCMC’s attendance policy is unenforceable because it unlawfully diminishes her rights under the FMLA. See Pl. SJ Opp. at 9-15. To the contrary, HCMC’s policy is consistent both with the FMLA regulations discussed above and with the FMLA itself.14 The FMLA is not a purely pro-employee statute. Rather, it is designed to strike a balance between the needs of employees and employers. See 29 U.S.C. § 2601(b)(1). HCMC’s attendance policy reflects its legitimate need for information about employee availability — information on which HCMC relies in making daily staffing decisions that affect the health and well-being of HCMC’s employees, patients, and visitors. See Weber Aff. Supp. S.J. ¶ 4. The Court further holds that no reasonable jury could find that HCMC excused Bacon from complying with its attendance policy. Bacon asserts in her summary-judgment brief that two different people — a union representative and her supervisor, Smyrak — told her around 15In Bacon’s January 2005 narrative submitted in connection with her unemployment hearing, she said: “I had been calling in per the union contract until I received information on the federal guidelines for FMLA which did not require any call-ins.” Greenman Decl. Ex. L (emphasis added). Bacon did not identify the source of this alleged information. - 24 - August 2 that she no longer needed to call in her absences every day. Pl. SJ Opp. at 4. The first assertion is irrelevant, the second incredible. For the first time since being fired in 2004, Bacon claims, in her declaration, that a union representative told her that she did not have to comply with HCMC’s call-in policy. Bacon Decl. ¶ 9. But union representatives have no more authority to speak on behalf of HCMC’s management than do HCMC’s patients. See Minn. Licensed Practical Nurses Ass’n v. NLRB, 406 F.3d 1020, 1027 (8th Cir. 2005) (holding that employees were lawfully terminated even though they “may have acted in good faith in relying upon unsound advice from the Union and its legal counsel”). Unlike the union representative, Smyrak, as Bacon’s supervisor, at least had the authority to authorize her to stop calling in her absences. But no reasonable jury could conclude that Smyrak made the statement that Bacon attributes to him. As noted above, Bacon said absolutely nothing about the alleged statement when she responded, in writing, to Weber’s August 11, 2004 letter in which Weber told Bacon that HCMC deemed her to have resigned because of her failure to call in absences. See Greenman Decl. Ex. Q. It is impossible to believe that an employee, after being informed that she was being fired for failing to call in her absences, would not immediately and loudly protest that she was merely doing what her supervisor had explicitly authorized her to do. Bacon also did not specifically assert, at any time during her unemploymentcompensation proceedings, that she had received permission from Smyrak to stop calling in.15 - 25 - Once again, it is impossible to believe that an employee with a large financial incentive to prove that she had not been fired for misconduct would not clearly and specifically protest that she had been fired for conduct that had been explicitly authorized by her supervisor. The complaint in this case makes no mention of Smyrak’s having told Bacon that she could stop calling in — an omission that is inexplicable if Smyrak in fact made such a statement. And, tellingly, even the declaration that Bacon submitted in support of her own summaryjudgment motion says nothing about Smyrak’s alleged statement. Bacon told the Smyrak story only once, in her January 2007 deposition. If Smyrak in fact gave Bacon permission to stop calling in, surely she would have mentioned this crucial piece of information at some earlier point (such as in responding to Weber, in litigating her eligibility for unemployment benefits, or in her complaint) or at some later point (such as in her declaration). As a general rule, a court ruling on a summary-judgment motion must assume that the nonmoving party’s evidence is true. Taylor v. White, 321 F.3d 710, 715 (8th Cir. 2003). But that general rule must yield in those rare cases when testimony submitted by the nonmoving party is literally unbelievable. See Losch v. Borough of Parkesburg, 736 F.2d 903, 909 (3d Cir. 1984) (observing that “conflicts of credibility should not be resolved on a hearing on [a] motion for summary judgment unless the opponent's evidence is too incredible to be believed by reasonable minds”) (emphasis added; quotations omitted). Bacon’s claim that Smyrak authorized her to stop complying with HCMC’s call-in policy is such testimony; no reasonable jury could believe it. 3. Miscellaneous Arguments The Court addresses briefly three additional arguments, one raised by Bacon and two raised by HCMC. Bacon contends that she is entitled to summary judgment because the facts 16Subdivision 5a provides: No collateral estoppel. No findings of fact or decision or order issued by an unemployment law judge may be held conclusive or binding or used as evidence in any separate or subsequent action in any other forum, be it contractual, administrative, or judicial, except proceedings provided for under this chapter, regardless of whether the action involves the same or related parties or involves the same facts. Minn. Stat. § 268.105 subd. 5a. 17Like HCMC, Bacon needs to take care that what she asserts in federal court is true. - 26 - and issues decided at her state unemployment proceedings show that HCMC violated her FMLA rights, and this Court should give preclusive effect to those proceedings. Bacon is incorrect. Federal courts give preclusive effect to state-court decisions whenever state courts would do so. Allen v. McCurry, 449 U.S. 90, 95-96 (1980); 28 U.S.C. § 1738. Minnesota law unequivocally forbids Minnesota courts to give preclusive effect to the decisions of unemployment-law judges. Minn. Stat. § 268.105 subd. 5a.16 Bacon’s suggestion that this Court should do what state courts cannot is utterly without merit.17 For its part, HCMC argues that any claim for damages against it is barred by the doctrine of “vicarious qualified immunity.” Def. SJ Mem. at 29-31. The Eighth Circuit has squarely held that individual government employees cannot assert the defense of qualified immunity in FMLA suits. Darby v. Bratch, 287 F.3d 673, 681 (8th Cir. 2002). Further, as HCMC admits, no court in the country has ever granted vicarious qualified immunity to a government defendant in an FMLA suit. Def. SJ Reply at 17. This Court will not be the first to do so. HCMC also argues that Bacon did not make reasonable efforts to mitigate her damages by seeking work after HCMC fired her and, therefore, HCMC is entitled to summary judgment. Def. SJ Mem. at 28-29. But whether Bacon made reasonable efforts to find work after she was - 27 - fired is, on this record, an issue of fact for the jury. More importantly, regardless of whether Bacon failed to reasonably mitigate her damages, HCMC has not explained why a failure to reasonably mitigate damages would entirely bar monetary relief, rather than just reduce Bacon’s damages. (That, after all, is the normal effect of a defendant’s failure to mitigate damages.) Accordingly, Bacon’s alleged failure to mitigate her damages is irrelevant at this point. III. CONCLUSION Although Bacon was entitled to FMLA leave, she was not entitled to stop following HCMC’s attendance policy. Because HCMC lawfully fired Bacon for her failure to call in her absences on August 5, 9, and 10, HCMC did not unlawfully interfere with Bacon’s FMLA rights. ORDER Based on the foregoing, and on all of the files, records, and proceedings herein, IT IS HEREBY ORDERED THAT: 1. Defendant’s motion for summary judgment [Docket No. 18] is GRANTED. 2. Plaintiff’s motion for summary judgment [Docket No. 21] is DENIED. 3. Plaintiff’s amended complaint [Docket No. 3] is DISMISSED WITH PREJUDICE AND ON THE MERITS. LET JUDGMENT BE ENTERED ACCORDINGLY. Dated: December 11 , 2007 s/Patrick J. Schiltz Patrick J. Schiltz United States District Judge |
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