Bachman v. Laser Spine Institute LLC

Filing 38

ORDER denying 32 Motion for Summary Judgment. The Court will set a final pretrial conference by separate order. Signed by Judge David G Campbell on 1/14/2016.(DGC, nvo)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Karen Bachman,

No. CV-15-00418-PHX-DGC
Plaintiff,

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v.

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ORDER

Laser Spine Institute LLC,

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Defendant.

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Defendant Laser Spine Institute, LLC (“LSI”) moves for summary judgment on

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Plaintiff Karen Bachman’s claim that LSI unlawfully interfered with her exercise of

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rights under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. Ch. 28. Doc. 32.

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Bachman has filed a response and LSI has replied. Docs. 34, 36. The Court concludes

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that oral argument will not aid in the disposition of this matter.1 For the reasons set forth

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below, the Court will deny LSI’s motion.

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I.

Background.

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In January 2011, LSI hired Bachman to work as a Certified Registered Nurse

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Anesthetist (“CRNA”) in its Scottsdale, Arizona facility. Doc. 33, ¶ 2. Bachman was

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responsible for meeting with patients before surgery, escorting them to and from the

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operating room, and providing sedation. Id., ¶ 10. Bachman reported to LSI’s Executive

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Director, Heidi Kruger, and to its Director of Anesthesia, Dr. Paul Gaitan. Id., ¶¶ 3-4.

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The parties’ requests for oral argument are therefore denied. See Fed. R. Civ. P.
78(b); Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998).

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While employed at LSI, Bachman was subject to the company’s attendance and

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absence policy. The policy required employees to refrain from unscheduled absences,

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tardy arrivals, or early departures (“occurrences”), except in cases of “unexpected illness”

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or other “unavoidable situations.”

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employees were expected to notify their supervisor of the reason and expected length of

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the absence at least two hours before their scheduled start time. Id. Failure to provide

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timely notice was treated as a “no show” for that day. Id. Employees who failed to

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comply with LSI’s attendance policy were subject to escalating corrective actions that

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will be described in more detail below.

Doc. 33-1 at 72.

Even in these special cases,

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Bachman apparently complied with this policy without incident for over a year

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and a half after beginning at LSI. At the beginning of her shift on November 13, 2012,

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however, Bachman scheduled a same-day doctor’s appointment to address an increase in

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her blood pressure she had noticed the day before. Doc. 33, ¶¶ 13-17, Doc. 35, ¶¶ 15, 17.

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She then sent a text message to her supervisor, Dr. Lahud, requesting permission to leave

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work for a few hours to attend the appointment. Doc. 33, ¶ 20. Dr. Lahud came to the

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operating room where Bachman was working to discuss her request and asked her what

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time she needed to leave and whether she needed to take the day off. Doc. 35, ¶ 21. He

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left without explicitly approving or denying Bachman’s request. Doc. 33, ¶ 21.

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When Dr. Lahud did not return and had not made arrangements for another CRNA

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to take over Bachman’s immediate work, Bachman asked Dr. Weiss, the surgeon she was

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working with at the time, for permission to attend the appointment. Doc. 35, ¶ 23. Dr.

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Weiss did not object to the request, and made arrangements for another CRNA to replace

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Bachman. Doc. 35, ¶ 43. After briefing her replacement on the ongoing surgery,

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Bachman left to attend her appointment. Doc. 35-1, ¶ 3. She returned a few hours later

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and completed her work for that day. Doc. 33, ¶ 25. Although LSI now contends that

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this incident was a violation of its attendance and absence policy, Bachman was never

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written up over the incident, and at no time during 2012 did any of Bachman’s

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supervisors indicate that her actions were improper. Doc. 36, ¶ 74.

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On November 15, 2012, Bachman delivered a letter to LSI’s Human Resources

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department complaining of intolerable working conditions at LSI. Doc. 33-1 at 54. The

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letter complained that LSI had refused to permit her to take lunch or bathroom breaks,

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and that she had “[n]o time off to see [her] physician at [her] physician’s request to see

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[her] on an urgent basis.” Id. Bachman stated that she might be forced to resign if these

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conditions did not improve, and asserted the right to take a 15-day leave of absence under

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A.R.S. § 23-1502(c), Arizona’s constructive discharge statute. Id. Upon receipt of this

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letter, LSI’s Human Resource Director instructed Bachman to leave early and to take

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time off. Doc. 33, ¶ 31. Bachman did so, taking approximately two weeks of leave. Id.,

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¶ 32.
On November 27, 2012, LSI’s Executive Director, Heidi Kruger, responded to

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Bachman’s letter.

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allegations “very seriously” and stated that LSI had “thoroughly investigated [her]

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allegations, and hope[d] . . . to discuss [her] concerns at length when [she] return[ed] to

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work.” Id. The next day, Bachman informed Kruger that her doctors had not yet cleared

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her to return to work. Doc. 33-3 at 2. She requested an additional four weeks of leave to

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address her medical issues.2 Id. at 3. Shortly thereafter, Kruger provided Bachman with

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FMLA paperwork, which Bachman completed.

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paperwork, LSI approved FMLA leave from November 28, 2012 until February 20, 2013.

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Id., ¶ 37.

Doc. 33-1 at 56.

Kruger assured Bachman that LSI took her

Id., ¶ 36.

Upon receipt of this

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On January 1, 2013, Dr. Weiss recommended that Bachman be reappointed to

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active staff and granted privileges at the LSI for two more years. Doc. 35-1 at 25. LSI

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sent Bachman a letter informing her of her reappointment. Id. at 23.

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On February 13, 2013, Bachman delivered a letter to LSI concerning her return to

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work. Doc. 35-1 at 8. The letter stated that Bachman was “ready, willing, and able to

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Bachman’s medical issues during this time included hypertension, stress, fatigue,
and syncope (i.e., temporary loss of consciousness due to sudden decrease in blood
pressure). Doc. 33-1 at 59. Bachman was admitted to the emergency room on
November 28, 2012 in connection with these issues. Id.
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return to work and perform all of [her] job responsibilities.” Id. The letter included an

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attachment from Bachman’s doctor indicating that Bachman should work only six hours a

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day for her first week back, and that she should not engage in any “prolonged repetitive

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bending or twisting” during that week. Id. at 9. The letter also explained that Bachman

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expected to attend her final physical therapy appointment on February 22nd. Id. at 8.

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When Bachman returned to work on February 19, 2013, LSI provided Bachman

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with a notice that her employment was terminated “[b]ased on incidents occurring in the

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workplace prior to your commencement of your leave of absence.” Doc. 33-1 at 83. LSI

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asserts that it “terminated [Bachman’s] employment due to her failure to follow company

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policy and her abandonment of her job duties on November 13, 2012.” Id. at 4-5.

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II.

Legal Standard.

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A party seeking summary judgment “bears the initial responsibility of informing

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the district court of the basis for its motion, and identifying those portions of [the record]

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which it believes demonstrate the absence of a genuine issue of material fact.” Celotex

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Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is appropriate if the

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evidence, viewed in the light most favorable to the nonmoving party, shows “that there is

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no genuine dispute as to any material fact and the movant is entitled to judgment as a

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matter of law.” Fed. R. Civ. P. 56(a). Summary judgment is also appropriate against a

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party who “fails to make a showing sufficient to establish the existence of an element

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essential to that party's case, and on which that party will bear the burden of proof at

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trial.” Celotex, 477 U.S. at 322. Only disputes over facts that might affect the outcome

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of the suit will preclude the entry of summary judgment, and the disputed evidence must

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be “such that a reasonable jury could return a verdict for the nonmoving party.”

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

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III.

Analysis.

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The FMLA establishes the “minimum labor standard for leave” in the United

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States. Bachelder v. Am. West Airlines, Inc., 259 F.3d 1112, 1122 (9th Cir. 2001) (citing

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S. Rep. No. 103-3 at 4). Employees covered by the FMLA are entitled to take up to

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twelve weeks of leave each year for family or medical reasons, and must be reinstated to

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their original position (or an equivalent) upon return. 29 U.S.C. §§ 2612(a), 2614(a). It

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is unlawful for an employer to “interfere with, restrain, or deny the exercise of or the

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attempt to exercise, any right provided” by the FMLA.

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Department of Labor interprets this provision as prohibiting employers from using an

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employee’s taking of FMLA leave “as a negative factor in employment actions, such as

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hiring, promotions or disciplinary actions.” 29 C.F.R. § 825.220(c). Thus, an employee

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will prevail on a claim for unlawful interference with FMLA rights if she shows that

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(1) she took FMLA protected leave, (2) she suffered an adverse employment action, and

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(3) her use of protected leave was a factor contributing to her employer’s decision.

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Bachelder, 259 F.3d at 1125. A plaintiff may prove these elements “by using either

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direct or circumstantial evidence, or both.” Id.

Id. § 2615(a)(1).

The

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LSI does not dispute that Bachman took FMLA protected leave or that she

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suffered an adverse employment action immediately upon her return. Instead, LSI argues

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that “[it] would have terminated her employment regardless of [her] request for and use

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of FMLA leave.” Doc. 32 at 9. LSI contends that it would have terminated her for

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“fail[ing] to comply with company policy on November 13, 2012.” Id. at 8. For several

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reasons, the Court concludes that factual issues preclude summary judgment.

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First, LSI presents no evidence that Bachman was written up for the November 13,

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2012 incident or that any of her supervisors suggested it was improper until shortly

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before she was terminated. Indeed, more than a month and a half after the incident,

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Bachman was reappointed to active staff and granted privileges at LSI as recommended

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by Dr. Weiss. Doc. 35-1 at 23.

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Second, LSI’s stated policy on “Attendance and Absences/Tardies” provides that

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any unscheduled absence constitutes an “occurrence.” Doc. 37-1 at 22. Under the

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heading of “Corrective Action,” the policy then states that “[u]nscheduled absences will

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be monitored and addressed through corrective action according to the following

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schedule.” Id. at 23. The schedule provides that two occurrences in a 12-month period

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will result in “Documented Verbal Coaching,” three will result in a “Written Warning,”

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four will result in a “Final Written Warning,” and five will result in “Separation of

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Employment.” Id. at 24. Even if Bachman’s departure from work on November 13,

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2012 could somehow be characterized as a more serious “No call – No show,” the

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schedule states that the first such event will result in a “Final Written Warning” and only

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the second will result in “Separation of employment.” Id.

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LSI emphasizes that Bachman was an employee at will and could be terminated

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for any reason. It also cites a portion of its policy which lists “leaving work without

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authorization” among 36 categories of possible infractions and states that the listed

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infractions could result in disciplinary action “up to and including immediate

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termination.” Id. at 28. But the list of possible infractions includes such serious offenses

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as sexual harassment, sale of illegal drugs on the job, reporting to work intoxicated, and

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destruction of company property. Id. at 28-29. A reasonable jury could conclude that the

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prospect of “immediate termination” identified with this list applies to these more serious

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infractions; that the detailed and precise schedule of corrective steps for absences from

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work applies to Bachman’s absence on November 13, 2012; that LSI did not follow its

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own schedule of escalating corrective actions in her case; and that LSI’s decision,

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therefore, was not made for policy reasons. This is particularly true in light of the facts

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surrounding Bachman’s absence: (1) she left work to attend a doctor’s appointment, (2)

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for the purpose of addressing recently-appearing high blood pressure that LSI does not

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dispute, (3) with permission from the surgeon for whom she was working, (4) only after

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she had been replaced in the operating room by another CRNA and had briefed the

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CRNA on the patient, (5) she texted Dr. Lahud while away to apprise him of when she

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would return, and (6) she returned to work later that day and completed her shift.

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Third, Bachman states in her affidavit that the company’s stated reasons for her

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termination, and its description of when the termination decision was made, changed over

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time. This testimony by Bachman could cause a reasonable jury to doubt LSI’s professed

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reason for its decision.

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Citing Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002),

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LSI argues that these are “uncorroborated and self-serving” statements by Bachman

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should be disregarded by the Court. But as the Ninth Circuit has noted, the declaration at

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issue in Villiarimo “included facts beyond the declarant’s personal knowledge and

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provided no indication how she knows these facts to be true.” S.E.C. v. Phan, 500 F.3d

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895, 910 (9th Cir. 2007) (quotation marks and brackets omitted). The same is not true of

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Bachman’s affidavit, which recounts a conversation she personally had with an LSI

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officer. Doc. 35-1 at 3.

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Fourth, a jury could take into account the timing of Bachman’s termination in

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deciding whether it was related to her FMLA leave. It occurred immediately after her

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return from an extended FMLA leave and immediately after she had informed LSI that

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further leave would be required.

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Because Bachman has presented evidence that raises factual issues regarding the
reasons for her termination, the Court must deny LSI’s motion for summary judgment.

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IT IS ORDERED:

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1.

Defendant’s motion for summary judgment (Doc. 32) is denied.

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2.

The Court will set a final pretrial conference by separate order.

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Dated this 14th day of January, 2016.

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