Drake v. Walmart Stores, Inc.
Filing
40
OPINION AND ORDER denying 25 Motion for summary judgment; denying 29 Motion for summary judgment. Signed by Judge John E. Steele on 7/23/2012. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
GARY DRAKE,
Plaintiff,
vs.
Case No.
2:10-cv-679-FtM-29SPC
WALMART STORES, East L.P., Inc., an
Arkansas Corporation,
Defendant.
___________________________________
OPINION AND ORDER
This matter comes before the Court on Plaintiff’s Statement of
Undisputed Facts, Dispositive Motion for Summary Judgment, and
Incorporated Memorandum of Law (Doc. #29) and Defendant’s Motion
for Summary Judgment, Including Statement of Undisputed Material
Facts, and Memorandum of Law in Support (Doc. #25), which were both
filed on April 6, 2012. Both parties filed Responses (Docs. ## 32,
33) on April 20, 2012.
For the reasons set forth below, both
motions are denied.
I.
Summary
judgment
is
appropriate
only
when
the
Court
is
satisfied that “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
R. Civ. P. 56(a).
Fed.
“An issue of fact is ‘genuine’ if the record
taken as a whole could lead a rational trier of fact to find for
the nonmoving party.”
Baby Buddies, Inc. v. Toys R Us, Inc., 611
F.3d 1308, 1314 (11th Cir. 2010)(citation omitted).
A fact is
“material” if it may affect the outcome of the suit under governing
law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party bears the burden of identifying those portions of
the pleadings, depositions, answers to interrogatories, admissions,
and/or affidavits which it believes demonstrate the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986); Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d
1256, 1259-60 (11th Cir. 2004).
To avoid the entry of summary
judgment, a party faced with a properly supported summary judgment
motion must come forward with extrinsic evidence, i.e., affidavits,
depositions, answers to interrogatories, and/or admissions, which
are sufficient to establish the existence of the essential elements
to that party’s case, and the elements on which that party will
bear the burden of proof at trial.
Celotex, 477 U.S. at 322;
Hilburn v. Murata Elecs. N. Am., Inc., 181 F.3d 1220, 1225 (11th
Cir. 1999).
In ruling on a motion for summary judgment, the Court views
all evidence and draws all reasonable inferences in favor of the
non-moving party.
Scott v. Harris, 550 U.S. 372, 378 (2007); Tana
v. Dantanna’s, 611 F.3d 767, 772 (11th Cir. 2010).
However, “[i]f
reasonable minds might differ on the inferences arising from
undisputed facts, then the court should deny summary judgment.”
St. Charles Foods Inc. v. Am.’s Favorite Chicken Co., 198 F.3d 815,
819 (11th Cir. 1999)(quoting Warrior Tombigbee Transp. Co. v. M/V
-2-
Nan Fung, 695 F.2d 1294, 1296 (11th Cir. 1983)(finding summary
judgment “may be inappropriate even where the parties agree on the
basic facts, but disagree about the factual inferences that should
be drawn from these facts”)).
“If a reasonable fact finder
evaluating the evidence could draw more than one inference from the
facts, and if that inference introduces a genuine issue of material
fact, then the court should not grant summary judgment.”
Allen v.
Bd. of Pub. Educ., 495 F.3d 1306, 1315 (11th Cir. 2007).
II.
Plaintiff Gary Drake filed an Amended Complaint (Doc. #16)
against Wal-Mart Stores East L.P. seeking relief under the Family
and Medical Leave Act of 1993 (FMLA) for unlawful interference with
and retaliation for the exercise of his statutory rights.
The
summary judgment facts are as follows.
Plaintiff began his employment with Wal-Mart on September 11,
1991, as a department manager at a Wal-Mart store located in
Prescott, Arizona and remained with Wal-Mart until 2010.
#18, ¶ 8.)
(Doc.
Plaintiff became employed with Wal-Mart’s Clewiston,
Florida store as a full time Assistant Manager on April 19, 2010.
(Doc. #29-3, p. 35.)
Plaintiff reported to Shift Supervisor
Latanya Mitchell and Store Manager Matthew Butts.
(Id., p. 44.)
The parties agree that plaintiff was an eligible employee under the
FMLA.
(Doc. #18, ¶ 6.)
-3-
According to plaintiff, on June 7, 2010, he informed Butts
around 9:00 a.m. that he had to leave for the day because his son
was suffering from post-traumatic stress disorder, however, Butts
told him he had to remain until 2:00 p.m. to assist with store
coverage.
(Doc. #29-3, pp. 94-95.)
When plaintiff tried to leave
at 2:00 p.m., Butts told plaintiff that he had to complete his
shift.
(Id.)
Plaintiff returned to work on his next scheduled
work day, June 10, 2010, and met with Butts and advised him that he
would take vacation time to help his son.
(Id., pp. 97, 101.)
Butts approved plaintiff’s request. (Id., p. 101.) The Joint PreTrial Statement (Doc. #34) fails to make any reference to these
events, and therefore they have been abandoned as a basis for the
FMLA claim.
On plaintiff’s first day back after taking the vacation time,
June 19, 2010, plaintiff told Mitchell that he was unable to work
that day because he was having an anxiety attack.
93.)
(Id., pp. 92-
Mitchell told plaintiff that he needed to take a leave of
absence and gave plaintiff Wal-Mart’s leave of absence packet.
(Id., p. 93.) Mitchell requested that plaintiff remain at work for
a
couple
of
hours
so
that
plaintiff
could
inform
the
other
assistant manager on duty what tasks needed to be completed while
he was out on leave. (Id.)
June 19 was plaintiff’s last day at
work.
-4-
On June 24, 2010, plaintiff sent a text message to Butts
updating him on the status of his medical situation.
Doc. #29-4.)
Butts replied that plaintiff needed to “call him by
noon tomorrow.”
did call back.
(Id., p. 110;
(Doc. #29-4.)
Plaintiff does not remember if he
(Doc. #29-3, p. 101.)
On June 28, 2010, Dr. Usberghi examined plaintiff for 20
minutes and diagnosed him as suffering from hypertension, high
blood pressure, depression and anxiety.
(Doc. #29-5, pp. 12, 15.)
Dr. Usberghi developed a treatment plan for plaintiff that included
anti-hypertensives and anti-anxiety/depression medication.
p. 17.)
(Id.,
A follow up appointment was scheduled for July 22, 2010.
(Id., p. 22.)
Plaintiff went to the Clewiston Wal-Mart store the next day
and discussed his ongoing medical issues with Butts.
pp. 111-113.)
(Doc. #29-3,
Plaintiff explained that he would be off work at
least another month.
(Id.)
It is not clear exactly when, but after plaintiff’s June 28
examination with Dr. Usberghi, plaintiff gave the Wal-Mart FMLA
packet to a member of Dr. Usberghi’s staff. Dr. Usberghi completed
the FMLA Medical Certification on July 7, 2010.
7.)
(Doc. #29-4, p.
The parties dispute if and when Dr. Usberghi sent the FMLA
packet back to Wal-Mart.
Plaintiff asserts that it was sent on
July 19, 2010 and attaches a fax confirmation in support (Doc. #297), but Wal-Mart denies receiving a copy.
-5-
As previously scheduled, on July 22, 2010, plaintiff returned
to Dr. Usberghi for a follow up examination and told him that he
was feeling better and would like to return to work.
pp. 26-27.)
(Doc. #29-5,
Dr. Usberghi issued a back to work release to be
effective for August 5.
(Id.)
Dr. Usberghi faxed the release to
Wal-Mart the day of the examination.
(Doc. #29-10.)
Wal-Mart
admits that they received the July 22 fax. (Doc. #25, p. 7.)
Wal-Mart terminated plaintiff’s employment on July 20, 2012
for “job abandonment/three unreported absences.”
(Id., pp. 6-7.)
Plaintiff first learned of his termination on August 3, 2010.
(Doc. #29-3, p. 44.)
III.
Plaintiff now brings a single count claim asserting that WalMart
violated
employment.
his
rights
under
the
FMLA
by
terminating
his
The Family and Medical Leave Act of 1993 (FMLA)
provides eligible employees with up to twelve weeks of unpaid leave
annually if a serious health condition makes the employee unable to
perform the functions of his or her position as an employee.
U.S.C. § 2612(a)(1)(D).
action
for
violations.
equitable
29
The FMLA also creates a private right of
relief
and
money
damages
for
employer
29 U.S.C. § 2615(a)(1), 2617(a).
Wal-Mart argues that it had a right to terminate plaintiff’s
employment
because
he
failed
to
-6-
provide
a
timely
medical
certification to justify his leave.
Wal-Mart’s FMLA Leave of
Absence Packet states in relevant part:
In addition to the Request for Leave Form, you must
submit a completed copy of the appropriate Certification
Form, as indicated below, within 15 calendar days of the
first workday missed. . . .
It is your responsibility to provide the Certification
Form to the appropriate health care provider and ensure
that he or she completes the form and signs it. You are
required to return the completed form to your Human
Resources representative promptly, generally within 15
calendar days from the first day of your requested leave
of absence.
If circumstances outside your control
prevent you from doing so, you are required to submit the
form as soon as possible thereafter.
If you do not
provide reasonable notice and/or a timely certification,
as described above, you may have your leave of absence
delayed and/or your absences may not be protected.
(Doc. #16-1)(emphasis
added).
At
the
very
least,
there
are
material issues of disputed fact in this case as to the timeliness
of the requested certification in this case.
The relevant regulation provides that: “The employee must
provide the requested certification to the employer within 15
calendar
days
after
the
employer’s
request,
unless
it
not
practicable under the particular circumstances to do so despite the
employee’s diligent, good faith efforts. . . .”
825.305(b).
29 C.F.R. §
As noted, Wal-Mart’s Leave of Absence Packet provided
for a similar, non-mandatory time period.
There is at least a
factual dispute as to whether the untimeliness of plaintiff’s
medical certification was excused, i.e., submitting the medical
certification
within
15
days
was
-7-
“not
practicable
under
the
particular circumstances to do so despite the employee’s diligent,
good faith efforts” or “[i]f circumstances outside [plaintiff’s]
control prevent[ed] [him] from doing so.”
Since there are genuine
issues of material fact as to whether plaintiff was entitled to
FMLA leave, there are also issues of material fact as to whether he
engaged in statutorily protected leave.
Therefore, the Court must
deny both plaintiff’s and defendant’s summary judgment motions.
Accordingly, it is now
ORDERED:
1.
Plaintiff’s Statement of Undisputed Facts, Dispositive
Motion for Summary Judgment, and Incorporated Memorandum of Law
(Doc. #29) is DENIED.
2.
Defendant’s Motion for Summary Judgment, Including
Statement of Undisputed Material Facts, and Memorandum of Law in
Support (Doc. #25) is DENIED.
DONE AND ORDERED at Fort Myers, Florida, this
July, 2012.
Copies: Counsel of record
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23rd
day of
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