Wade v. Baptist Health et al

Filing 26

ORDER suspending the trial date in this matter. An Amended Order will issue. 12 Motion for Summary Judgment is denied, but without prejudice on FMLA damages and the wrongful-termination claim. Supplemental brief due from Wade by 20 June 2014 and from the hospital defendants by 3 July 2014. Signed by Judge D. P. Marshall Jr. on 6/10/2014. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION

DENISE WADE

v.

PLAINTIFF

No. 4:13-cv-48-DPM

BAPTIST HEALTH; DEBRA LANGLEY;
and NAOMI WALLIS

DEFENDANTS

ORDER
1. Denise Wade is a nurse. She’s sued her former employer, Baptist
Health, and her former supervisors there, Debra Langley and Naomi Wallis,
alleging violations of the Family Medical Leave Act, and the Employee
Retirement Income Security Program, as well as wrongful termination. The
hospital defendants seek summary judgment.
2. Most all the facts are agreed. ¹ 22; ¹ 23; ¹ 25. Exactly why Baptist
fired Wade in December 2012, though, is much disputed. Here’s what
happened, taking the record in the light most favorable to Wade.

In the year before she lost her job, Wade had gotten two written
warnings for excessive absences under the hospital’s progressive discipline
policy. ¹ 22 at ¶¶ 2, 3. A third written warning—for any reason—equals
termination. ¹ 22 at ¶ 5. In September 2012, three months before Wade was
fired, she hurt her back while lifting a patient. ¹ 22 at ¶ 6. Though she
returned to work with restrictions, Wade was being treated for these injuries.
¹ 19 at 1–2. Baptist coordinated her doctor visits because Wade was
pursuing a workers’ compensation claim. ¹ 19 at 2; ¹ 25 at ¶ 6. In October
2012, Wade took about two weeks of approved FMLA leave to care for her
son after a surgery. ¹ 14-6; ¹ 14-7. She worked off and on in late November
and early December. A timeline is the best way to show the events thereafter,
which culminated in Wade’s firing.

3 December 2012

Reminder email to Wade: get flu shot by 15
December 2012. ¹ 14-11.

10 December 2012

Baptist filled out leave-of-absence forms on
Wade’s behalf. ¹ 14-4 at 43–44.

12 December 2012

Wade had missed work for three consecutive
days. ¹ 14 at 3; ¹ 19 at 3.

14 December 2012

Baptist drafted a letter on Wade’s behalf,
preliminarily approving intermittent FMLA
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leave effective 25 October 2012 until a date
unknown. ¹ 14-9; ¹ 22 at ¶ 9.
15 December 2012

Flu shot deadline. ¹ 14-4 at 27; ¹ 19-3 at
11–12.

18 December 2012

Baptist filled out preliminary FMLA
Designation on Wade’s behalf effective 9
December 2012 to date unknown. ¹ 14-8; ¹
22 at ¶ 9.

19 December 2012

Wade scheduled to work, but didn’t show up.
¹ 22 at ¶ 10. Wade appointment with Doctor
Nallu made by Baptist. ¹ 14-4 at 30. Wade got
flu shot. ¹ 22 at ¶ 13.

20 December 2012

Wade signed form granting FMLA leave
effective 9 December 2012. ¹ 14-8. Naomi
Wallis issued Wade written warning for not
calling in or reporting to work on 19 December
2012. ¹ 22 at ¶ 11; ¹ 14-4 at 26. Wallis also
issued Wade written warning for not getting
flu shot by 15 December 2012. ¹ 22 at ¶ 14.
Wallis and Langley fired Wade. ¹ 1 at ¶ 24.

3. To make a prima facie case of FMLA discrimination, Wade must show
a protected activity, an adverse employment action, and a causal connection
between the two. Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996,
1007 (8th Cir. 2012). Wade says she exercised her rights under the FMLA in
December 2012. ¹ 19 at 6. Baptist knew Wade had injured her back on the

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job in September, was being treated for the injury, and was missing work. ¹
22 at ¶ 6; ¹ 19-4 at 19. When Wade was out more than three consecutive days
in early December, Baptist began the FMLA leave application process on her
behalf. ¹ 22 at ¶ 9; ¹ 14-4 at 36–44. Wade had “provid[ed] enough
information to put [Baptist] on notice that [she] may be in need of FMLA
leave.” Phillips v. Mathews, 547 F.3d 905, 909 (8th Cir. 2008); ¹ 19-4 at 19.
And she was fired contemporaneously for having gotten her flu shot late and
having missed work without calling in. ¹ 1 at ¶ 24; ¹ 22 at ¶¶ 11, 14, 16.
This case comes down to whether Wade’s third and fourth warnings
were in retaliation for her need for more FMLA leave. Wade argues these
warnings should never have been issued after she’d been preliminarily
approved for leave. ¹ 19 at 2–3; ¹ 25 at ¶ 10. She says Defendants issued
them to get rid of her and avoid giving her back pay. ¹ 14-4 at 16; ¹ 19 at
8. Pointing to some emails about her workers’ compensation claim, she
argues Baptist didn’t like that she had been missing work for her back injury
and had previously missed work for a knee injury. ¹ 14-4 at 16; ¹ 19-4 at
19–20.

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Defendants contend Baptist had legitimate non-discriminatory reasons
for issuing the third and fourth written warnings. ¹ 14 at 13–14. Wade failed
to get a flu shot by the December 15th deadline; and it was Baptist policy for
every employee who missed the deadline to receive a written warning. ¹ 14
at 13–14. Wade was scheduled to work on December 19th and failed to call
in. It was her responsibility, the hospital defendants say, to inform her shift
supervisor about an absence, even though Baptist had preliminarily approved
her for FMLA leave a few days before. ¹ 14 at 13; ¹ 24 at 3–4.
In response, Wade says there was no official flu shot deadline; she got
the shot in time but Baptist lost her record; and, alternatively, she didn’t need
to get the shot because she was on FMLA leave. ¹ 19 at 2–3; ¹ 25 at ¶ 12.
She also argues Baptist was aware of her doctor’s appointment on December
19th because the hospital had scheduled it. ¹ 19 at 2; ¹ 14-4 at 8-9. She says
it was the health nurse’s responsibility to notify the shift supervisor about
Wade’s absence, which shouldn’t count anyway because the hospital had
already put Wade on FMLA leave. ¹ 19 at 2; ¹ 14-4 at 8-9; ¹ 25 at ¶ 10.
Whether considered at the prima facie stage or as a matter of pretext,
questions of material fact exist about the reasons for Wade’s third and fourth

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written warnings. A reasonable juror could conclude that Baptist fired Wade
for exercising her rights under the FMLA, not because she didn’t show up or
didn’t get a flu shot. A jury needs to answer whether the retroactive FMLA
leave Baptist preliminarily approved for Wade was in effect before her firing,
whether Wade was responsible for notifying her supervisor about her absence
and for getting a flu shot even if on leave, and whether Wade’s December
absences counted under Baptist policy if Wade was on leave. Based on the
depositions and records, reasonable people could disagree on the answers.
Brown v. City of Jacksonville, 711 F.3d 883, 891–92 (8th Cir. 2013).
4. There is a vexed damages question on the FMLA claim. Wade’s
application for Social Security disability is apparently still pending. ¹ 14-4
at 4. Wade is contending there that she’s been totally disabled since her
September 2012 back injury. ¹ 22 at ¶ 17. She hasn’t worked at all since
Baptist fired her. ¹ 14-4 at 4. Wade has abandoned any claim for back pay
or reinstatement in this case. ¹ 19 at 8. She seeks only some equitable award
of front pay. Ibid. The Court is puzzled about this. Wade, based on her
workers’ compensation claim, is unable to work at all. Is front pay available?
The hospital defendants’ motion is denied without prejudice on potential

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damages. But Wade must file a brief, with case citations and statutory
analysis, on this point by 20 June 2014. The hospital defendants should
respond by 3 July 2014. Then the Court will reconsider—no formal renewal
of the motion for summary judgment is required.
5. The Court agrees with the hospital defendants that Wade’s ERISA
claim rises or falls with her FMLA claim.
6. Wade’s wrongful-termination claim needs more briefing too. Does
it violate state public policy if Baptist violated the FMLA? Defendants’
argument seems to assume so. Wade pleads this claim only as a matter of the
FMLA. (Her briefing mentions retaliation for her workers’ compensation
claim, but this is no longer an adequate state-law ground to avoid the
employee-at-will doctrine. General Electric Co. v. Gilbert, 76 Ark. App. 375,
381, 65 S.W.3d 892, 897 (2002); ARK. CODE ANN. § 11-9-107(a)(d) & (e)). The
parties should also cover the federal/state policy issue in their supplemental
briefs.
7. The Court cannot keep the July trial date because of trial in an older
case. The Scheduling Order is suspended; an Amended Order will issue.
Supplemental brief due from Wade by 20 June 2014 and from the hospital

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defendants by 3 July 2014. Motion for summary judgment, ¹ 12, denied, but
without prejudice on FMLA damages and the wrongful-termination claim.
So Ordered.
__________________________
D.P. Marshall Jr.
United States District Judge
10 June 2014

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