Clark v. Macon County Greyhound Park, Inc.

Filing 33

MEMORANDUM OPINION AND ORDER that 16 MOTION for Summary Judgment is GRANTED in part and DENIED in part as follows: said motion is GRANTED as to Clark's claim for interference with her right to reinstatement under the FMLA; said motion is DENIE D as to Clark's claim for interference with her right to take FMLA leave; said motion is DENIED as to Clark's FMLA retaliation claim; that to the extent that the Motion for Summary Judgment contains arguments relating to various types of da mages or equitable relief, other than those which have been addressed here, the motion is DENIED without prejudice to these arguments being raised at an appropriate point during trial. Signed by Hon. Chief Judge Mark E. Fuller on 7/23/2010. (Attachments: # 1 Civil Appeals Checklist)(cc, )

C l a r k v. Macon County Greyhound Park, Inc.

D o c . 33

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION C A N D IS CLARK, P L A IN T IF F , v. M A C O N COUNTY GREYHOUND PARK, INC., DEFEND AN T. ) ) ) ) ) CASE NO.: 3:09-cv-556-MEF ) ) (WO- Recommended for Publication) ) ) )

M E M O R A N D U M OPINION AND ORDER T h is case is an employment discrimination case in which the plaintiff, Candis Clark (" C la rk " ) challenges the termination of her employment with Macon County Greyhound P a rk , Inc. ("MCGP"). She contends the termination of her employment violated her rights u n d e r the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. (hereinafter " F M L A " ). MCGP has filed a Motion for Summary Judgment (Doc. # 16), which Clark has o p p o s e d . After careful consideration of the arguments of counsel, the relevant law, and the re c o rd as a whole, the Court finds that the motion for summary judgment is due to be D E N IE D in part and GRANTED in part as set out below. JURISDICTION AND VENUE T h e Court exercises subject matter jurisdiction over Clark's FMLA claims pursuant to 28 U.S.C. § 1331 (federal question) and 29 U.S.C. § 2617(a)(2). The parties do not c o n te st personal jurisdiction or venue, and the Court finds adequate allegations supporting b o th .

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S U M M A R Y JUDGMENT STANDARD U n d e r Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is a p p ro p ria te "if the pleadings, depositions, answers to interrogatories, and admissions on file, to g e th e r with the affidavits, if any, show that there is no genuine issue as to any material fact a n d that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. C a tre tt, 477 U.S. 317, 322 (1986). The party asking for summary judgment "always bears th e initial responsibility of informing the district court of the basis for its motion, and id e n tif yin g those portions of `the pleadings, depositions, answers to interrogatories, and a d m is s io n s on file, together with the affidavits, if any,' which it believes demonstrate the a b se n c e of a genuine issue of material fact." Id. at 323. The movant can meet this burden b y presenting evidence showing there is no dispute of material fact, or by showing the nonm o v in g party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Id. at 322-23. O n c e the moving party has met its burden, Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by [his] own affidavits, or by the `depositions, answers to in t e rr o g a to r ie s , and admissions on file,' designate `specific facts showing that there is a g e n u i n e issue for trial.'" Id. at 324. To avoid summary judgment, the nonmoving party " m u s t do more than simply show that there is some metaphysical doubt as to the material f a cts ." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). On the o th e r hand, a court ruling on a motion for summary judgment must believe the evidence of

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th e non-movant and must draw all justifiable inferences from the evidence in the non-moving p a rty's favor. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986);

M c C o r m ic k v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003) (the evidence a n d all reasonable inferences from the evidence must be viewed in the light most favorable to the nonmovant). After the nonmoving party has responded to the motion for summary ju d g m e n t, the court must grant summary judgment if there is no genuine issue of material f a c t and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 5 6 (c). T h e mere existence of some factual dispute will not defeat s u m m a ry judgment unless that factual dispute is material to an is s u e affecting the outcome of the case. The relevant rules of s u b s ta n tiv e law dictate the materiality of a disputed fact. A g e n u in e issue of material fact does not exist unless there is s u f f icien t evidence favoring the nonmoving party for a re a s o n a b le jury to return a verdict in its favor. Chapman v. AI Transp., 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (quoting Haves v. C ity of Miami, 52 F.3d 918, 921 (11th Cir. 1995) (internal marks and citations omitted)). F A C T S AND PROCEDURAL HISTORY T h e Court has carefully considered all deposition excerpts and documents submitted in support of and in opposition to the motion. The submissions of the parties, viewed in the lig h t most favorable to the non-moving party, establish the following facts: M C G P hired Clark in November of 1994. Initially, she worked as a maintenance s e c re ta ry. Clark was very comfortable in this position. She enjoyed the working conditions

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it presented and her co-workers. In January of 2007, MCGP began moving employees into different jobs. In the m id d le of April of 2007, MCGP moved Clark into a new job as a money sorter. As a money s o rte r, Clark worked with other money sorters in the money room. This was a small, noisy, a n d crowded room, which was kept locked.1 The room had a single door with a window in it. Clark also found her new job responsibilities of counting and sorting money to be s tre ss f u l. Clark has bipolar disorder.2 She found that her new working environment was m a k in g her bipolar disorder harder to manage. It was causing her to suffer panic attacks and to feel as if she no longer wanted to live. After she had been working in the money room for about six weeks, Clark ac co m p an ied her mother to a doctor's appointment. While examining Clark's mother, Dr. R u s s e ll noticed Clark's distress. Dr. Russell told Clark she needed to take FMLA leave and w ro te her two excuses on his stock "Certificate to Return to Work/School" form, each for a period of one month. Dr. Russell also told Clark to come back to see him the next day and to go back to see Dr. Shaw 3 because Dr. Russell couldn't help Clark himself. Evidence in

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Clark has a phobia about locked doors.

According to Clark, she received this diagnosis about three months before she re q u e ste d FMLA leave. Clark testified, however, that she has been taking prescription antid e p re ss a n t medications for six years. It is undisputed that many employees of MCGP knew o f Clark's diagnosis. Dr. Shaw is a psychiatrist who works at Hillside Mental Health. Dr. Shaw d ia g n o se d Clark's bipolar disorder and provided treatment to Clark. 4
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the record indicates that Dr. Russell saw Clark on June 14, 2007. The last day that Clark w o rk e d in MCGP's money room was June 12, 2007. The record contains no evidence in d ic a tin g the next date on which Clark was scheduled to work. According to Clark, she called her supervisor on that day and told her that when she h a d taken her mother to the doctor, the doctor had told her that she was in worse shape than h e r mother.4 Clark also went to see Jeanette Bowling ("Bowling"), the personnel manager f o r MCGP. She gave Bowling one of the excuses5 that Dr. Russell had written for her. This e x c u se was a "Certificate to Return to Work/School" signed by Dr. Russell which indicated th a t Clark had been under Dr. Russell's care from June 12, 2007 to July 16, 2007 and that she c o u ld return to her regular duties on July 16, 2007. According to Clark's testimony, Bowling gave her certain forms to be completed by C la rk and her doctor. One set of forms was an application for short term disability and the o th e r set of forms related to an application for FMLA leave. According to Clark's testimony, B o w lin g told Clark to send all the completed forms to the insurance company in Birmingham w h ic h managed the short term disability insurance.6 Clark had the impression that at some

According to a document from her personnel file, Clark called and spoke to Zach G rif f in on June 15, 2007. MCGP argues that this is not the case, but Clark's deposition testimony is evidence f ro m which a reasonable jury could find this to be the case. See Doc. # 19 Ex. 1 Clark Dep. a t p. 38, line 9 to p. 39, line 12. It is undisputed that on November 20, 2001, Clark received a copy of the Employee H a n d b o o k for MCGP. It is undisputed that the Employee Handbook included a discussion o f the FMLA and indicated that "An employee requesting leave is required to provide 5
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p o int the forms would be returned to her and she would then take them to Bowling. Clark n e v e r took the completed FMLA paperwork to MCGP because she did not receive them back f ro m the insurance company until weeks after the termination of her employment. C la rk and her doctor completed the forms and mailed them to the insurance company ju s t as Bowling had instructed. It appears that Dr. Russell signed the Physician's statement th a t was part of the claim for short term disability insurance on June 21, 2007. In that s ta te m e n t, Dr. Russell indicated that Clark's symptoms began in late March of 2007 and that h e had last seen Clark on June 14, 2007. He also indicated that the expected date for Clark's re tu rn to work was unknown. Similarly, on Clark's request form for FMLA leave, it in d ica tes that the requested leave would begin on June 14, 2007 and that her expected date o f return was unknown. Moreover, the Certification of Health Care Provider completed by D r. Russell on June 21, 2007 in support of Clark's application for FMLA leave indicates that C lar k was incapacitated and needed to be absent from work because she was unable to p e rf o rm work of any kind, that the condition commenced on June 14, 2007, and that probable d u ra tio n of the condition was unknown. On July 2, 2007, MCGP terminated Clark's employment. The personnel paperwork in d ic a te s that the reason for the termination of Clark's employment was "job abandonment."

advance notice and medical certification. An employee may not retroactively attempt to in v o k e FMLA after an unexcused absence from work." Notably absent from the Employee H a n d b o o k is any information indicating to whom the notice and medical certification are to b e provided. The Employee Handbook also indicates that MCGP viewed absence of two c o n se c u tiv e working days without proper notification an offense warranting termination of e m p l o ym e n t . 6

T h e personnel form recording the termination action stated that Clark had called the office a n d spoken with Zach Griffin on June 15, 2007. She told him that she had paperwork from h e r doctor to place her on medical leave, but according to the form, she did not turn it in. A MCGP employee told Clark that news that she had been fired was circulating at w o rk . Clark called Bowling and said that she had heard this rumor, but that she was on F M L A leave. Bowling told Clark that her employment had been terminated. According to C la rk , Bowling said that Clark had failed to do her FMLA paperwork properly. After h ea rin g of the termination decision, Clark delivered a copy of the second excuse from Dr. R u ssell to bowling so that it would be in her file. This excuse was the Certificate to Return to Work/School signed by Dr. Russell which indicated that she was under his care from July 1 6 , 2007 to August 31, 2007 and that she could return to work on August 31, 2007. At the time of the termination of her employment on July 2, 2007, Clark admits that s h e had not delivered the completed FMLA application and certification forms to MCGP. A cc o rdin g to her testimony, she had not done so because she had followed Bowling's in s tru c tio n s and sent them to Unimerica, which had not yet returned them to Clark. It was n o t until late July of 2007, that Clark received notice from the insurance company that her c la im for short term disability insurance had been denied. After the termination of her employment in July of 2007, Clark applied for u n e m p lo ym e n t compensation. She solicited Dr. Russell's help with a certification that she h a d been under his care, but that she was able to work. In so doing she explained that she

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h a d been denied short term disability insurance and fired from her job and that she could not o b ta in unemployment benefits unless he certified a date on which she could return to the w o rk f o rc e . Dr. Russell provided a certification dated July 19, 2007, in which he opined that s h e was able to work, but not in her usual occupation. He also stated that he had been tre a tin g her from June 15, 2007 to July 15, 2007 for phobia and fatigue. Clark received tw e n ty-six weeks of unemployment compensation. In late September of 2007, Clark applied Social Security Disability benefits. As part o f her application process, she told the Social Security Administration that she had become u n a b le to work because of her condition on June 12, 2007 and that as of September 25, 2007, s h e continued to be unable to work. After Clark submitted to a psychological examination, th e Social Security Administration approved her application for disability benefits. She b e g a n receiving these benefits in December of 2007 or January of 2008. On June 12, 2009, Clark filed suit in this Court against MCGP. Clark seeks

c o m p e n s a to ry damages, punitive damages, declaratory relief, injunctive relief including m o d if ic a tio n of MCGP's employment practices, and attorney's fees. Clark alleges that M C G P violated the FMLA in two ways. First, Clark alleges that MCGP failed and refused to permit her to take leave to which she was entitled under the FMLA. Second, she alleges th a t MCGP terminated her employment as retaliation against her on the basis of her protected a c tiv ity of invoking leave under the FMLA. MCGP denies Clark's allegations and seeks s u m m a ry judgment on a variety of bases discussed below.

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D IS C U S S IO N C o n g re ss enacted the FMLA to assist families in balancing the demands of the w o rk p la c e with the needs of the family and to entitle employees to take reasonable leave for m e d ic a l reasons, for the birth or adoption of a child, and for the care of a child, spouse, or p a re n t who has a serious health condition. See 29 U.S.C. § 2601(b) (2009). To that end, a c o v e re d employer must allow an eligible employee to take a total of twelve work weeks of le a v e during any twelve month period for one of several enumerated reasons. See 29 U.S.C. § 2612(a) (2009). The employer is not required to pay the employee for FMLA leave. See 2 9 U.S.C. § 2612(c) (2009). The FMLA further provides that subject to certain exceptions w h ic h the parties have not argued apply in this case, any eligible employee who takes leave under section 2612 of this title for the in te n d e d purpose of the leave shall be entitled, on return from such leave ­ (A) to be restored by the employer to the position of employment held by the e m p l o ye e when the leave commenced; or (B) to be restored to an equivalent p o s itio n with equivalent employment benefits, pay, and other terms and c o n d itio n s of employment. 29 U.S.C. § 2614(a)(1) (2009). The FMLA permits employers to require employees on leave "to report periodically to the employer on the status and intention of the employee to return to work." 29 U.S.C. § 2614(a)(5) (2009). Moreover, employers are entitled to require that th e need for leave be supported by the certification of a health care provider. 29 U.S.C. § 2 6 1 4 (a)(4) (2009). It is unlawful for any employer to interfere with, restrain, or deny the exercise, or the a ttem p t to exercise, any right provided by the FMLA. 29 U.S.C. § 2615(a)(1) (2009). This

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p ro v isio n not only proscribes discriminatory treatment, but also prohibits failure to comply w ith the FMLA's prescriptive provisions such as the section requiring an employer to allow f o r leave in the enumerated circumstances and for reinstatement after leave. See, e.g., S tr ic k la n d v. Water Works & Sewer Bd. of the City of Birmingham, 239 F.3d 1199 (11th Cir. 2 0 0 1 ) (holding that district court erred by construing claim solely as a retaliation claim where p la in tif f claimed his termination while on leave constituted both retaliation and a denial of h is right to reinstatement under the FMLA); Peters v. Cmty. Action Comm., Inc. of C h a m b ers-T a lla p o o sa -C o o s a , 977 F. Supp. 1428, 1433 (M.D. Ala. 1997) (explaining the p ro te c tio n s available under the prospective and prescriptive provisions of the FMLA). To preserve the availability of these rights, and to enforce them, the FMLA creates t w o types of claims: interference claims, in which an employee asserts that her employer d e n ie d or otherwise interfered with his substantive rights under the Act, see 29 U.S.C. § 2 6 1 5 (a )(1 ) (2009), and retaliation claims, in which an employee asserts that her employer d is c rim in a te d against her because he engaged in activity protected by the Act, see 29 U.S.C. § 2615(a)(1) & (2) (2009).7 To state a FMLA claim of interference with a substantive right, a n employee need only demonstrate by a preponderance of the evidence that she was entitled to the benefit denied. O'Connor v. PCA Family Health Plan, Inc., 200 F.3d 1349, 1353-54 ( 1 1 t h Cir. 2000). To the contrary, to succeed on a FMLA retaliation claim, an employee

The Eleventh Circuit has clarified that "[w]hile the FMLA does not clearly delineate th e se two claims with the labels `interference' and `retaliation,' those are the labels courts h a v e used in describing an employee's claims under the Act." Strickland, 239 F.3d at 1206 n .9 (citation omitted). 10

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m u s t demonstrate that her employer intentionally discriminated against her in the form of an a d v e rs e employment action for having exercised an FMLA right. See Strickland, 239 F.3d a t 1207 (delineating between the two forms of FMLA claims). "In other words, a plaintiff b rin g ing a retaliation claim faces the increased burden of showing that [her] employer's a c tio n s `were motivated by an impermissible retaliatory or discriminatory animus.'" Id. (c ita tio n omitted). These two types of FMLA claims, however, can be asserted

s im u lta n e o u s ly. Id. (holding that district court erred by construing claim solely as a re talia tio n claim where plaintiff claimed his termination while on leave constituted both re talia tio n and a denial of his right to reinstatement under the FMLA); Peters, 977 F. Supp. a t 1433 (explaining the protections available under the prospective and prescriptive p r o v is io n s of the FMLA). Clark follows this precedent and asserts both interference and re ta lia tio n claims under the FMLA. A. Interference Claims A s articulated in the Complaint, Clark's sole interference claim arises out of her c o n te n tio n that MCGP illegally interfered with her FMLA rights by denying her FMLA le a v e. As a practical matter, however, she also injects the possibility of a second interference c l a i m through her repeated requests for reinstatement. Failure to reinstate after an FMLA le a v e is a separate kind of interference claim. The Court will discuss these two interference c la im s separately.

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1 . Denial of FMLA Leave Claim a . Notice of Need for Leave T h e re is no dispute in this case that MCGP is an employer within the scope of the F M L A 's coverage or that Clark was eligible under the FMLA for leave in a properly q u a lif ie d situation.8 To prevail on her interference claim arising out of what she contends w a s a denial of FMLA leave, Clark must first demonstrate that she was entitled to the benefit o f FMLA because she gave proper notice to MCGP and that she suffered from a "serious h e a lth condition." If she can do both of those things, she must then demonstrate that MCGP d e n ie d her that leave to which she was entitled. In this case, this MCGP does not dispute for p u rp o s e s of its motion that Clark suffered from a serious health condition or that it never g ra n ted Clark's request for FMLA leave. Thus, the real issue is whether Clark complied with th e applicable notice requirements. An employee in need of FMLA leave must provide her employer with notice of the n e e d for leave. If the need for the leave is foreseeable, then the employee must, if practicable g iv e no less than thirty days' notice before the date the leave is to begin. See 29 U.S.C. § 2 6 1 2 (e )(2 )(B ) (2009); 29 C.F.R. § 825.302(a) (2009). Where, as here, the need for leave is n o t foreseeable,9 notice to the employer must be given "as soon as practicable under the facts

There is no dispute about the fact that as of June 2007, Clark had worked for more th a n twelve months and more than 1,250 hours for MCGP during the previous twelve m o n th s . MCGP does not argue that the need for the leave here was foreseeable. Viewed in th e light most favorable to Clark, the Court is satisfied that Clark's need for leave was not 12
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a n d circumstances of the particular case." See 29 C.F.R. § 825.303(a) (2009). The Eleventh C ir c u it Court of Appeals has held that "where an employee's need for FMLA leave is u n f o re se e ab le , the employee need only provide her employer with notice sufficient to make h e r employer aware that her absence is due to a potentially FMLA-qualifying reason." Cruz v . Publix Super Markets, Inc., 428 F.3d 1379, 1382 (11th Cir. 2005) (citation omitted). G e n e ra lly, it is expected that under these circumstances, an employee will provide notice w ith in no more than one or two working days of learning the need for the leave. 29 C.F.R. § 825.303(a) (2009). Notice to the employer may be given in person or by other means, including fax or te le p h o n e . 29 C.F.R. § 825.303(b) (2009). In giving notice of the need for leave, the e m p lo ye e need not expressly invoke the FMLA or mention it at all; rather, if the employee s ta te s that "leave is needed," the employer will thereafter be expected to obtain any a d d itio n a l required information through informal means." Id.; see Stickland, 239 F.3d at 1 2 0 9 (recognizing that once notice has been given, the "regulations place on the employer th e burden of ascertaining whether the employee's absence actually qualified for FMLA p r o t e c ti o n . " ) D u e to the procedural posture of this case, the Court must view the facts properly p re se n te d in the light most favorable to Clark, the person against whom summary judgment

foreseeable. Her condition worsened after she was moved to the money room, and she began to have suicidal thoughts. It was not until she spoke to her doctor in June of 2007, that she k n e w that her working conditions had caused her mental condition to deteriorate. 13

is sought. When the Court views the facts in this fashion, it is clear that a reasonable jury c o u ld find that Clark timely put her employer on notice of her need for FMLA leave. A c c o rd in g to Clark's testimony, she called her supervisor1 0 and went to see Bowling within a day or two of her doctor's visit where the seriousness of her medical condition and its cause w e re revealed to her. Moreover, Clark has testified that she presented Bowling with a

sign ed doctor's excuse indicating that Clark was under a doctor's care and could not return to work until July 16, 2007. Clark testified that she asked Bowling if she could go out on F M L A leave. It is undisputed that Bowling gave Clark the forms with which to apply both f o r FMLA leave and the forms with which to apply for short term disability insurance b e n e f its . There is no question then that MCGP had notice of Clark's request for FMLA le a v e. b . Certification M C G P contends that Clark never returned the forms for FMLA leave to it and that it co n seq u en tly terminated her employment pursuant to its policies for job abandonment. Clark re sp o n d s that she fully complied with the instructions MCGP gave her regarding completion a n d delivery of the forms. These conflicting positions require the Court to closely consider th e nature of the FMLA's requirements regarding certification as well as what evidence e x is ts in the factual record before the Court concerning MCGP's request for certification.

While it is not clear to the Court if this fact is supported by MCGP's records, the C o u rt notes that an MCGP document verifies a call to someone at MCGP named Zach G r i f f ith on June 15, 2007, during which Clark advised that she had paperwork from her d o c to r to place her on a medical leave. See Doc. # 17-4. 14

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T h e provisions of the FMLA specify that an employer "may require that a request for le a v e [because of a serious health condition that makes the employee unable to perform the f u n c tio n s of the position of such employee] be supported by certification issued by the health c a re provider of the eligible employee." 29 U.S.C. § 2613(a) (2009); Baldwin-Love v. E le c tr o n i c Data Sys. Corp., 307 F. Supp. 2d 1222, 1229 (M.D. Ala. 2004). Such a c e rtif ic a tio n is legally sufficient if it states: (1) the date on which the serious health condition c o m m e n c e d ; (2) the probable duration of the condition; (3) the appropriate medical facts w ith in the knowledge of the health care provider regarding the condition; and a statement th a t the employee is unable to perform the functions of the position of the employee. 29 U .S .C . § 2613(b)(1) - (4) (2009). Accord, Parris v. Miami Herald Publ'g Co., 216 F.3d 1 2 9 8 , 1302 n.2 (11th Cir. 2000); Baldwin-Love, 307 F. Supp. 2d at 1229. Once provided with a request for such a certification, the employee must "provide, in a timely manner, a copy of such certification to the employer." 29 U.S.C. § 2613(a) (2009). T h e Department of Labor regulations are more specific in that they require the employee to p ro v id e the requested certification within fifteen calendar days of the employer's request for c e rtif ic a tio n unless it is not practicable under the circumstances or unless the employer a llo w s a longer period of time for the return of the certification. See 29 C.F.R. § 825.305(b) (2 0 0 9 ). "At the time the employer requests certification, the employer must also advise an e m p lo ye e of the anticipated consequences of an employee's failure to provide adequate c e rtif ic a tio n ." 29 C.F.R. § 825.305(d) (2009). See also Baldwin-Love, 307 F. Supp. 2d at

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1 2 2 9 . "An employee's failure to meet the certification requirements renders the employee's a b se n c e unprotected by the FMLA." Baldwin-Love, 307 F. Supp. 2d at 1229.1 1 W h e re an employer has failed to offer evidence that it told the employee of the d e a d lin e for returning the certification to the employer at the time the employer requested the c e rtif ic a tio n or has failed to offer evidence that it advised the employee of the consequences f o r failing to timely return the certification, the employer cannot be entitled to judgment as a matter of law on the employee's interference claim under the FMLA. See, e.g., Michener v . Bryanlgh Health Sys., No. 4:08cv3202, 2009 WL 2840530 at *5 (D. Neb. Aug. 31, 2009) ( g e n u in e issues of material fact existed as to whether employer notified employee that m ed ical certification was required or consequences to employee of failure to timely return th e certification to the employer, therefore employer's summary judgment motion was d e n ied ); Bodrick v. BellSouth Bus. Sys., Inc., No.Civ. A. 1:05cv663RLV, 2006 WL 559239 a t *8 (N.D. Ga. Mar. 1, 2006) (denying employer's motion for summary judgment on in te rf e re n c e claim where there was a factual dispute concerning whether plaintiff was

MCGP relies on Baldwin-Love in its argument in favor of summary judgment. Im p o rta n tly, in Baldwin-Love, there was ample evidence that the employer had repeatedly a d v is e d the employee of the requirement of returning the certification and warned her of the c o n s e q u e n c e s for failing to do so. 307 F. Supp. 2d at 1234. Thus, Baldwin-Love is m a te ria lly different from the facts of this case. Moreover, MCGP relies on Cash v. Smith, 2 3 1 F.3d 1301 (11th Cir. 2000). It too is distinguishable because it was undisputed that the e m p lo ye e in Cash had received the required information about the need to timely return the c e rtif ic a tio n and the consequences should the employee fail to do so. Id. The employee's p ro b le m in Cash was not a lack of information, but rather the failure of the employee's p h ysic ian , who completed the necessary paperwork which was returned to the employer, to c e rtif y that the FMLA prerequisites for leave were satisfied. Id. 16

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i n f o r m e d of the deadline for returning the certification forms and the consequences for f a ilin g to hand in the forms); Peter v. Lincoln Tech. Inst., Inc., 255 F. Supp. 2d 417, 443 (E .D . Pa. 2002) (employer's failure to provide employee with deadline for providing ce rtifica tio n or with notice that she might be discharged precluded entry of summary ju d g m e n t for employer); Marrero v. Camden County Bd. of Social Serv., 164 F. Supp. 2d 4 5 5 , 466 (D.N.J. 2001) (employer's motion for summary judgment on the employee's FMLA i n t e r f e r e n c e claim because even assuming policies in employee handbook were sufficient n o tice that medical certification was required for FMLA, employer was required to inform the employee that she had 15 days to provide such certification). Indeed, at least one court h a s gone farther and held that the failure of the employer to provide the notice set forth in the re g u la tio n s at the time it requests an FMLA certification itself constituted interfering with, re s tra in in g or denying the exercise of rights provided by the FMLA. See Chenoweth v. WalM a r t Stores, Inc., 159 F. Supp. 2d 1032, 1037 (S.D. Ohio 2001). According to Clark, Bowling instructed her how to fill out portions of the forms and h o w to have her doctor complete portions of the forms, but then told her to send all of the c o m p le te d forms to Unimerica, the company handling the short term disability insurance claim . MCGP has not offered evidence that directly disputes this testimony. MCGP offers n o deposition testimony from Bowling contradicting Clark on this point. MCGP cites the p o rtio n of its employee handbook that addresses leave, including FMLA leave. See Doc. # 1 7 -3 . The handbook makes it plain that MCGP expected its employees to seek approval for

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lea v e s of absence from their positions and that failure to comply with this requirement could re su lt in discharge. As for FMLA specifically, the text states that an employee requesting lea v e is required to provide notice and medical certification, but it in no way indicates to w h o m the medical certification is to be submitted or the time frame in which it must be p ro v id e d . MCGP had not submitted any evidence regarding any other information conveyed to Clark that would have indicated that she was to submit her FMLA certification form to M C G P rather than to Unimerica or that she must do so within fifteen days of being given the f o rm or that failure to do so would result in a denial of FMLA leave and termination of her e m p lo ym e n t.1 2 In light of the facts before this Court and the applicable law set forth above,

Two of the documents Clark provided to the Court clearly relate to FMLA leave ra th e r than to her claim for disability benefits: (1) a Request for Family and Medical Leave (F M L A ) form, see Doc. # 19-3; and (2) Certification of Health Care Provider (Family and M ed ical Leave Act of 1993), see Doc. # 19-10. Unlike each of the forms relating to the c laim for disability benefits which clearly state on their faces that they are to be sent to U n i m e r i c a , these two FMLA forms do not indicate to whom they are to be sent. The C e rtific a tio n of Health Care Provider (Family and Medical Leave Act of 1993) form is d e v o i d any information whatsoever about the intended recipient of the form. The Request f o r Family and Medical Leave (FMLA) form is somewhat more ambiguous. The bottom of th is form has a line where the employee's supervisor should sign it and other processing in f o rm a tio n which suggests that a copy should go to corporate human resources, a copy s h o u ld go to the employee, and a copy should go in the employee's personnel file. A d d itio n a lly, nearer to the top of the form there was a statement in all capital letters which b eg ins: "YOU HAVE 15 DAYS TO RETURN ...." Unfortunately, this language appears to have been either crossed out or highlighted and neither party has explained (1) what the o b lite ra te d text said, (2) whether that text was crossed out or highlighted, and (3) when the f o rm was altered in this fashion. Given the state of the factual record and the procedural p o s tu re of the case, if the Court were to draw any inference from this form with Request for F am ily and Medical Leave (FMLA) form, it would be that the instructions to return the form w i th i n 15 days were crossed out before it was given to Clark. In any event, there is no s ta te m e n t on either document that advises Clark of the consequences for failing to return the d o c u m e n ts to MCGP within fifteen days. 18

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it is compelled to deny MCGP's motion for summary judgment as to Clark's FMLA in te rf e re n c e claim. 2. Denial of Reinstatement Claim M C G P contends that Clark's denial of reinstatement claim under the FMLA fails b e c au s e Clark was unwilling or unable to perform the essential functions of her job at the end o f the twelve-week FMLA leave period. Clark fails to address this legal contention or to c laim that any of the material facts relating to this contention are in dispute. Here, it is u n d is p u te d that Clark admits that she has remained unable to return to work at her MCGP jo b since she left MCGP in June of 2007. An employee has no right to reinstatement under th e FMLA if the employee is unable to perform an essential function of her position even w h e n that inability to perform results from the continuation of the serious health condition w h ic h brought about an entitlement to FMLA leave in the first place. See, e.g., 29 C.F.R. 8 2 5 .2 1 6 (c ) (2009); Colburn v. Parker Hannifin/Nichols Portland Div., 429 F.3d 325, 332 (1 s t Cir. 2005). This is true even when the employer terminates the employee's employment p rio r to the end of the twelve-week period of leave. Id. at 329-332. The Court finds that on th e undisputed factual record before it Clark was incapable of performing the essential duties o f her former job as of twelve weeks after the date she began what she thought was going to b e FMLA leave and that as a matter of law her claims for reinstatement under the FMLA f a ils . To the extent that MCGP has sought summary judgment on this claim, it is due to be GRANTED.

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B . Retaliation Claim In Clark's final claim, she contends that MCGP violated the FMLA's anti-retaliation p ro v isio n when it terminated her employment on the basis of her having invoked her rights u n d e r the FMLA and having taken leave because of her serious health condition. "Where, a s here, a plaintiff alleges an FMLA retaliation claim without direct evidence of the e m p lo ye r's retaliatory intent, [courts] apply the burden shifting framework established by the S u p r e m e Court in McDonnell Douglas Corp. v. Green." Hurlbert v. St. Mary's Health Care S y s., Inc., 439 F.3d 1286, 1297 (11th Cir. 2006) (internal citation omitted). To establish a prima facie case of retaliation, the plaintiff must show that: (1) h e engaged in statutorily protected activity; (2) he experienced an adverse e m p l o ym e n t action; and (3) there is a causal connection between the protected a c tiv ity and the adverse action. It the plaintiff makes out a prima facie case, th e burden then shifts to the defendant to articulate a legitimate reason for the a d v e rs e action. If the defendant does so, the plaintiff must then show that the d e f e n d a n t's proffered reason for the adverse action is pretextual. Id . (internal citations omitted). Clark has offered sufficient evidence to establish a prima facie case of retaliation. W i t h regard to the first element, it is undisputed that Clark contacted her employer asking to take FMLA leave. There is evidence from which reasonable jurors could conclude that s h e took time off work on account of a serious health condition that prevented her from being a b le to perform her job with MCGP and that MCGP knew that Clark's doctor had excused

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h e r from work until mid-July.1 3 Termination of employment is an adverse employment a c tio n . See Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791, 798 (11th Cir. 2000), cert. d e n ie d , 532 U.S. 1037 (2001). The close temporal proximity between her request for FMLA le a v e and the termination of her employment constitutes sufficient circumstantial evidence to create a genuine issue of material fact as to causation. See, e.g., Hurlbert, 439 F.3d at 1 2 9 7 -9 8 ; Snelling v. Stark Props., Inc., No. 5:05CV46DF, 2006 WL 2078562 at *14-*15 (M .D . Ga. July 24, 2006). MCGP proffers Clark's failure to return the certification form and her absences from w o rk as legitimate, non-discriminatory reasons for the termination of her employment. When t h e facts are viewed in the light most favorable to Clark, it appears that MCGP's own p e rs o n n e l representative specifically told Clark that she should send the FMLA paper to the d is a b ility insurance company first and then when it was returned submit it to MCGP. N o n e th e le s s , having given these misleading directions to Clark in mid-June, MCGP te rm in a te d Clark's employment on July 2, 2007 because she had not returned the completed ce rtifica tio n form to it within fifteen days of Clark having been given the form. Yet, there is no evidence whatsoever that MCGP ever advised Clark of the potential consequences of h e r failure to return the certification paperwork to MCGP within fifteen days. In such

While it is true that MCGP did not have an executed copy of its certification form b a c k from Clark's doctor, according to Clark's testimony it did have a copy of the first e x c u se note that Clark's doctor had given her excusing her from work from mid-June through m id -J u ly. Thus, MCGP knew Clark was asking for FMLA leave and that her doctor thought sh e should be excused from work during this period before it terminated her employment. 21

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c irc u m s ta n c es , there exists a genuine issue of material fact as to whether MCGP's proffered rea so n for terminating Clark's employment was pretextual, and consequently, summary ju d g m e n t is inappropriate on Clark's retaliation claim. CONCLUSION F o r the foregoing reasons, it is hereby ORDERED that the Motion for Summary J u d g m e n t (Doc. # 16) is GRANTED in part and DENIED in part as follows: 1 . The Motion for Summary Judgment is GRANTED as to Clark's claim for in te rf e re n c e with her right to reinstatement under the FMLA. 2. The Motion for Summary Judgment is DENIED as to Clark's claim for

in te rf e re n c e with her right to take FMLA leave. 3 . The Motion for Summary Judgment is DENIED as to Clark's FMLA retaliation c la im . 4 . To the extent that the Motion for Summary Judgment contains arguments relating to various types of damages or equitable relief, other than those which have been addressed h e re , the motion is DENIED without prejudice to these arguments being raised at an a p p ro p ria te point during trial. DONE this the 23rd day of July, 2010. /s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE

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