Creech v. Tift Regional Hospital Authority

Filing 41

ORDER granting in part and denying in part 25 Motion for Summary Judgment and lifting the stay on the briefing of 18 Sealed Motion. Ordered by Judge Hugh Lawson on 8/18/2010. (nbp)

Creech v. Tift Regional Hospital Authority

Doc. 41

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF GEORGIA V A L D O S T A DIVISION T E R R I CREECH, : : P la in t if f , : : v. : : T IF T REGIONAL HOSPITAL : A U T H O R IT Y , : : : D e fe n d a n t. _______________________________ : ORDER B e fo re the Court is Defendant Tift Regional Hospital Authority's ("Tift Regional") M o tio n for Summary Judgment (Doc. 25). For the following reasons, the motion is g ra n te d in part and denied in part. The stay regarding briefing on the pending sealed m o tio n for a psychiatric exam (Doc. 18) is lifted. I. F A C T U A L AND PROCEDURAL BACKGROUND 1 P la in tiff Terri Creech ("Creech") was hired in 2003 to work at Tift Regional as a re g is te re d nurse. (Creech Dep. at 13 and Ex. 1). Creech was assigned to work in the o p e ra tin g room department. (Creech Dep. at 13). Her supervisor was Tonia Garrett ("G a rre tt"). (Creech Dep. at 21). On October 31, 2005, Creech requested to take a medical leave of absence u n d e r the Family Medical Leave Act ("FMLA")2 because she needed hip surgery to treat

C iv il Action No. 7 :0 9 -C V -2 7 (HL)

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The Court views the facts in the light most favorable to the nonmoving party. The statute is codified at 29 U.S.C. § 2601 et seq.

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Dockets.Justia.com

a bone disease. (SOMF3 ¶ 8; Creech Dep. at 19). Creech expected to be able to re tu rn to work in January 2006. (Creech Dep. at 21). Tift Regional approved Creech's m e d ic a l leave of absence request and informed her of her FMLA rights and obligations. (SOMF ¶ 15). C re e c h 's surgery was unsuccessful and she was unable to return to work as s o o n as she hoped. (Creech Dep. at 20). It was not until April 2006 that Creech's p h y s ic ia n authorized her to perform light duty work. (Creech Dep. at 22; SOMF ¶ 17). Unfortunately for Creech, Garret told her that there were no desk positions available in the operating room department at that time. (Garrett Dep. at 50). Eventually, Creech returned to work in June 2006 after Garrett found a position fo r her in the operating room. (Garrett Dep. at 21). e x h a u s te d by the time she returned. (SOMF ¶¶ 17, 29). Creech's FMLA leave was Creech's new position was

c a lle d the Surgical Improvement Program ("SIP") coordinator; Creech did not work as a n operating room nurse. (SOMF ¶ 36; Creech Dep. at 30, 55). The SIP coordinator responsibilities involved entering operating room data, g a th e rin g medical records, pulling charts, and seeking out doctors to complete records. (C re e c h Dep. at 14; Eaton Dep. at 17). The SIP coordinator position was not an

a d m in is tra to r position, i.e. a full-time employee position. Instead, it was a nursing p o s itio n that did not involve active nursing. (Garrett Dep. at 16). Previously, several

"SOMF" refers to Tift Regional's Statement of Material Facts. The cited paragraphs are those admitted by Creech in her response to Tift Regional's Statement of Material Facts. 2

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operating room nurses performed the SIP responsibilities. (Garrett Dep. at 14). Creech was the first person to occupy the SIP coordinator position. (Creech Dep. at 343 5 ). The position opening was not posted for bidding; rather Garrett orally offered the jo b to Creech. (Creech Dep. at 34). Creech used a cane when walking at work. (Creech Dep. at 30). Garrett testified th a t Creech had a mobility issue and was "still having problems," so Garrett provided C re e c h a cart and she arranged for people to pick up medical records from around the h o s p ita l and bring them to Creech. (Garrett Dep. at 18, 20). Creech did not have to go u p stairs or use the elevator. (Garrett Dep. at 67). Creech testified that Garrett called h e r a liability for the hospital on several occasions and that Garrett would tell her to sit d o w n because Garrett was "scared to death" that Creech would fall. (Creech Dep. at 6 0 , 61, 62). At some point, Garrett informed Creech that the SIP coordinator position was e x p e c te d to be a permanent position because the amount and type of data collected w a s increasing. (Garrett Dep. at 17). Garrett also told Creech that she did not expect C re e c h to hold the SIP coordinator position permanently. (Garrett Dep. at 18). Garrett b e lie v e d Creech's physicial limitations would prevent Creech from holding the job p e rm a n e n tly . (Garrett Dep. at 19). No document was created informing Creech that s h e was to occupy the SIP coordinator position for a temporary period. (Garrett Dep. a t 22). As Creech's supervisor, Garrett evaluated Creech's performance as the SIP

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coordinator and found that she met the expectations of the job. (Garrett Dep. 32-33). Creech received a merit pay increase while working as the SIP coordinator. (Garrett D e p . 35; Ex. 5). In November 2006, Garrett became aware that the SIP coordinator position's n a m e was changing to Surgical Care Improvement Program ("SCIP") coordinator.4 (G a rre tt Dep. at 36, 40; SOMF ¶ 62). The SCIP coordinator would gather data from d e p a rtm e n ts outside the operating room. (Eaton Dep. at 17). Garrett also became a w a re that the position was transferring in the future from the operating room d e p a rtm e n t to the quality management department, also called the core measure g ro u p . (Garrett Dep. at 36). Ellen Sprouse Eaton ("Eaton"), director of human

re s o u rc e s at Tift Regional, testified that the decision to plan for a transfer occurred in th e fall of 2006 (Eaton Dep. at 41-42). In the meantime, Creech's job badge was changed to SCIP coordinator. (SOMF ¶ 63). Creech attended training for the SCIP coordinator position in North Carolina. (Creech Dep. at 64). In addition, Creech believed Rachel Davis, another nurse, had b e e n hired to help her perform the duties of the SCIP coordinator because Garrett told h e r that Rachel Davis was Creech's assistant. (Creech Dep. at 59). On February 12, 2007, Creech left work for a second FMLA medical leave of a b s e n c e because she required another hip surgery. (SOMF ¶ 47). She received a

The "SCIP" program is not voluntary; if the hospital does not participate in "SCIP" then the hospital receives less payment from Medicare. (McStott Dep. at 18). The SIP program, however, was an elective program. (McStott Dep. at 17). 4

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letter from Tift Regional approving her request for FMLA leave. The letter stated she w a s eligible to reinstatement to the same position before taking leave or to an e q u iv a le n t position. (Eaton Dep. Ex. 9). Lori Folsom ("Folsom"), personnel director of Tift Regional, approved Creech's re q u e s t to take FMLA leave. (Folsom Aff. ¶ 6). Folsom later determined that she made a mistake approving Creech's FMLA leave because Creech had not worked 1,250 h o u rs during the twelve months prior to her taking her second leave of absence. (Folsom Aff. ¶ 6).5 Creech did not keep track of the number of hours she worked. (C re e c h Aff. ¶ 3). If she knew she was ineligible for FMLA leave, Creech averred that s h e would have delayed her elective surgery. (Creech Aff. ¶ 4). Garrett testified that she told Creech before she left on her second medical leave o f absence about the decision to move the SCIP coordinator position to the quality m a n a g e m e n t department and that the position in the future would no longer be part of th e operating room department. Garrett told Creech that the SCIP coordinator position h a d been taken away from Garrett's department. (Garrett Dep. at 45-46). Garrett also te s tifie d that she told Creech that no assistant had been hired for her and that Rachel D a v is was a quality management employee who was going to perform the SCIP re s p o n s ib ilitie s once the transfer to the quality management department occurred.

B e tw e e n February 2006 and June 2006, Creech was on her first leave of a b s e n c e and between June 2006 and February 2007, she worked 1,127 hours. (Folsom Aff. Ex. B). 5

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(Garrett Dep. at 39, 45, 48). Rachel Davis' job title is clinical support. (McStott6 Dep. a t 7, 8). Creech returned to work from her second leave of absence on April 16, 2007. (S O M F ¶ 53). Upon returning, Garrett told Creech that she no longer had the job of th e SCIP coordinator. (SOMF ¶ 111). Creech testified that Garrett told her that the S C IP coordinator position transferred to quality management while she was on leave. (C re e c h Dep. at 59). The exact date of the transfer is not present in the record. Garrett told Creech that she needed to find another job. (Creech Dep. at 44). She also temporarily assigned Creech to a position in pain management while Creech lo o k e d for another job (Creech Dep. at 66). Creech began the application process for a wound care position and office m a n a g e r position. (Creech Dep. at 44, 46). At some point, she was told by Judy M o re y ("Morey"), the clinical recruiter at Tift Regional, that she was overqualified for th o s e positions and that Tift Regional did not have positions available that would a c c o m m o d a te Creech's disability. (Creech Dep. at 44, 46). Contrary to Creech's te s tim o n y , is an e-mail from Morey stating that Creech had withdrawn her interest in th e wound care position because Creech realized the position paid less than a re g is te re d nurse position. (Creech Dep. Ex. 12). Creech also testified that she asked Eaton for help in finding a job. (Creech Dep. a t 61). In response to Creech's request, Eaton told Creech that she would help Creech Melinda Nichols McStott is the director of the quality management department. (McStott Dep. at 6). 6
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if possible, but that Creech had to apply for positions and that Eaton would not force s o m e o n e to hire an employee. (Eaton Dep. at 62). Eaton testified that she would have c a lle d the hiring nurse manager and requested that the manager interview Creech if C re e c h had asked her to do so. (Eaton Dep. at 78). Creech applied to one position in the chemotherapy department. (Creech Dep. a t 67). She interviewed for the job, but ultimately was not selected. (Creech Dep. at 6 8 ). Aside from the chemotherapy position, Creech did not apply to any other available p o s itio n s at Tift Regional. (Creech Dep. at 71). She admitted she could not perform th e job requirements for many of the available positions, that for other positions she did n o t have required education, and that for some positions she did not see the job p o s tin g s . (Creech Dep. at 74-75). She did ask, however, if she could continue p e rfo rm in g the SCIP coordinator position. (Creech Dep. at 63-64). T h e re were case manager positions available when Creech returned from her s e c o n d leave of absence that Tift Regional did not offer to her. (Tift Regional

R e s p o n s e to Interrogatory, No. 1, Doc. 35). The case manager positions had similar d u tie s as the SCIP coordinator. (Tift Regional Response to Interrogatory, No. 1, Doc. 3 5 ). Creech did not apply for them. (Creech Dep. at 71). O n October 31, 2007, Garrett told Creech that she had thirty days left to find a n o th e r job or she would be terminated. (SOMF ¶ 138). Creech did not find another p o s itio n at Tift Regional, so her employment was terminated after the end of November 2 0 0 7 . (SOMF ¶ 139; Garrett Dep. Ex. 12). Garrett recommended to Folsom and

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Morey that Creech's employment be terminated. (SOMF ¶ 139; Garrett Dep. Ex. 12). N in e nondisabled, non-FMLA leave taking employees were terminated from their e m p lo y m e n t at Tift Regional between 2006 and 2008 when their jobs were eliminated. (S O M F ¶ 164). Creech filed an unverified intake questionnaire with the Equal Employment O p p o rtu n ity Commission ("EEOC") on July 2, 2007. (Creech Dep. Ex. 27).7 On

D e c e m b e r 3, 2008, the EEOC dismissed her charge of discrimination because it was "u n a b le to conclude that the information obtained establishes violations of the statutes." (Creech Compl. Ex. A). On March 2, 2009, Creech filed a complaint in this Court a g a in s t Tift Regional alleging that: (1) she was discriminated against on the basis of her d is a b ility when Tift Regional terminated her employment and refused to provide her re a s o n a b le accommodations in violation of the Americans with Disabilities Act ("ADA") 4 2 U.S.C. §§ 12101, et seq, ; and (2) Tift Regional violated the FMLA when it refused to restore Creech to her position of SCIP coordinator or to place Creech in an e q u iv a le n t position. Creech asks to be reinstated to her former position or an

e q u iv a le n t one, or alternatively she asks for front pay and benefits. She also asks for b a c k pay, lost wages, compensatory and punitive damages, prejudgment interest on

The Court has doubts as to whether Creech timely filed a charge of discrimination with the EEOC because the Court cannot locate a charge of discrimination in the record and because the unverified intake questionnaire does not constitute a charge. Nevertheless, because Tift Regional has not objected to the timeliness of the charge, it has waived that objection. See Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004) (finding that the employer waived any objection as to the timeliness of the EEOC charge when employer did not raise the objection). 8

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a lost compensation and profits award, and attorneys' fees and costs. On December 22, 2009, Tift Regional filed this motion for summary judgment. It argues it is entitled to judgment as a matter of law as to all issues raised in Creech's c o m p la in t. II. D IS C U S S IO N A. S u m m a r y Judgment Standard

S u m m a ry judgment must be granted if "the pleadings, the discovery and d is c lo s u re materials on file, and any affidavits show that there is no genuine issue as to any material facts and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In ruling on a defendant's motion for summary judgment, the c o u rt takes the facts in the light most favorable to the plaintiff. Stanley v. City of Dalton, 2 1 9 F.3d 1280, 1287 (11th Cir. 2000). The court may not, however, make credibility d e te rm in a tio n s or weigh the evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 2 5 5 , 106 S. Ct. 2505, 91 L.Ed.2d 202 (1986). T h e initial burden lies on the movant to demonstrate that the nonmovant lacks e v id e n c e to support an essential element of its claim. Lowe v. Aldridge, 958 F.2d 1565, 1 5 6 9 (11th Cir. 1992). The burden then shifts to the nonmovant, who must come fo rw a rd with some evidence that would allow a jury to find in his favor, even if the p a rtie s dispute that evidence. Id. If the evidence that the nonmovant presents, h o w e v e r, is "not significantly probative" or "merely colorable," then summary judgment m a y be granted. Liberty Lobby, 477 U.S. at 249.

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B.

A D A Claim

T h e ADA prohibits an employer from discriminating against "a qualified individual w ith a disability because of the disability of such individual in regard to . . . discharge o f employees . . . ." 42 U.S.C. § 12112(a). Creech claims that Tift Regional failed to p la c e her back in the position of the SCIP coordinator because of her disability and th e n failed to accommodate her disability on multiple occasions when she returned fro m her second leave of absence. a d d re s s e d in turn. 1. F a ilu r e To Place Creech Back in the SCIP Coordinator Position These claims fall within the ADA. Each is

P la in tiffs pursuing ADA claims based on circumstantial evidence are required to p ro v e discrimination under the traditional Title VII burden-shifting framework. Earl v. M e rv y n s , Inc., 207 F.3d 1361, 1365 (11th Cir. 2000). Here, there is no direct evidence o f discrimination against Creech. She must therefore prove discrimination through the b u rd e n -s h iftin g framework. The framework first requires the plaintiff to establish a prima facie case of d is c rim in a tio n . EEOC v. Joe's Stone Crabs, Inc., 196 F.3d 1265, 1272 (11th Cir. 2 0 0 2 ). Then the defendant must articulate a legitimate non-discriminatory reason for th e challenged action. Id. The Plaintiff must show that the Defendant's reason was a p re te x t for discrimination. Id. at 1272-73. T o establish a prima facie case of discrimination under the ADA, a plaintiff must s h o w : (1) she is disabled; (2) she is a qualified individual; and (3) she was subjected

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to unlawful discrimination because of her disability. Earl, 207 F.3d at 1365. Tift Regional does not dispute that Creech satisfies the first two prongs of an A D A prima facie case. It disputes the third prong and argues that there is no evidence s h o w in g that Creech's job, the SCIP coordinator position, was eliminated because of h e r disability; rather, the record shows that the position was eliminated because it tra n s fe rre d from the operating room department to the quality management department a n d then was folded into a clinical support position after Creech began her second m e d ic a l leave of absence. In response, Creech identifies the adverse, discriminatory employment action s h e suffered as Tift Regional's failure to place her back in the SCIP coordinator position a fte r Creech returned from her second medical leave of absence. Creech argues that th e re is record evidence showing that she suffered this adverse employment action b e c a u s e of her disability. The evidence she points to is: (1) the decision to transfer the p o s itio n to quality management in fall 2006, which was before Creech took her second m e d ic a l leave of absence; (2) her assignment to work as the SCIP coordinator position a fte r Rachel Davis was hired and up until she left for her second leave of absence; (3) G a rre tt calling her a liability for the hospital. Creech has not created a genuine issue of fact as to whether Tift Regional d e c id e d to not give Creech the SCIP coordinator position back because of her d is a b ility . Creech is correct in that it is undisputed that the decision to transfer the S C IP coordinator position to the quality management department occurred in the fall

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of 2006. However, it is also undisputed that the transfer went into effect while Creech w a s gone and that once the transfer went into effect, the SCIP coordinator position was s u b s u m e d into the clinical services position. Thus, Tift Regional could not discriminate a g a in s t Creech by failing to place her back in the SCIP coordinator position because th e SCIP coordinator position went out of existence while she was on her leave of a b s e n c e . There is nothing showing that the decision itself to transfer the position was in flu e n c e d by Creech's disability. Further, even accepting as true, as the Court must on summary judgment, that G a rre tt called Creech a liability and told Creech that Rachel Davis was Creech's a s s is ta n t, those facts do not create a genuine issue of material fact as to the third p ro n g of a prima facie case because there is no evidence showing that Garrett had a u th o rity to influence the timing of the transfer to the quality management department. Thus, these statements do not show that Tift Regional's decision to follow through with th e transfer of SCIP coordinator position and to subsume the position into the clinical s e rv ic e s position was because of Creech's disability. Since Creech has failed to create a genuine issue of fact as to the third prong of a prima facie ADA case, summary judgment must be granted to Tift Regional on C re e c h 's claim that Tift Regional violated the ADA by failing to place her back in the S C IP coordinator position. 2. F a ilu r e to Accommodate Claims

C re e c h argues that Tift Regional failed to accommodate her disability on multiple

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occasions after she was informed that the SCIP coordinator position had been e lim in a te d . The claims raised in her responsive brief are that Tift Regional: (1) did not a llo w her to continue to perform the SCIP coordinator position in the quality m a n a g e m e n t department; (2) did not place Creech in a vacant position within the h o s p ita l; (3) made no effort to assist Creech in obtaining positions for which she a p p lie d , including the oncology position; and (4) Morey told her that Tift Regional did n o t have jobs available that would accommodate her disability. T h e ADA prohibits an employer from not making "reasonable accommodations" fo r a qualified employee's known disability. 42 U.S.C. § 12112(b)(5)(A). Summary ju d g m e n t must be granted to Tift Regional on Creech's failure to accommodate claims b e c a u s e Tift Regional had no duty to continue to employ Creech after her job as the S C IP coordinator position had been eliminated due to internal restructuring. Creech, in effect, argues that Tift Regional should have treated her differently from the other n in e employees who were terminated when their jobs were eliminated by keeping her o n as an employee, by reassigning her, by creating a position for her, or by assisting h e r with finding another job because she was disabled. That argument misconstrues th e protections afforded to the disabled by the ADA. The ADA does not provide that d is a b le d employees are entitled to more than fair treatment, or more job security or a s s is ta n c e in finding a job than nondisabled employees. It is a statute designed to e lim in a te discrimination against persons with disabilities. American Ass'n of People w ith Disabilities v. Harris, 605 F.3d 1124, 1133 (11th Cir. 2010).

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Creech, like any other potential employee, had a duty to apply for available p o s itio n s . She was not entitled to more assistance from Tift Regional employees in s e c u rin g a job than nondisabled applicants. There is no evidence that Garrett and E a to n treated Creech differently from other applicants by not finding her a job. Thus, th e ir failure to find her a position alone is not evidence of disability discrimination. Further, the evidence establishes that the reasons Creech failed to apply for a v a ila b le positions at Tift Regional was because she believed that she was incapable o f performing the jobs, did not have the required education for some positions, and she d id not see certain job openings. Taking as true that Morey told Creech that there were n o jobs available that would accommodate her disability and that Creech was o v e rq u a lifie d for one position, Creech's own failure to apply to positions is a n o n d is c rim in a to ry reason for Tift Regional's failure to hire her.8 See Rickert v. Midland L u th e ra n College, 2009 WL 2840528, at *15 (D. Neb. 2009) (finding that plaintiff's c la im that she was discouraged from applying to a position did not survive summary ju d g m e n t when the evidence showed that plaintiff did not apply for the position because o f a separate, nondiscriminatory reason). Creech has shown there is not a genuine is s u e of fact as to whether Morey discouraged her from applying to jobs because C re e c h admitted that she did not apply to jobs for nondiscriminatory reasons. In their briefs, the parties raise Tift Regional's decision to place Creech in the SIP c o o rd in a to r position after returning from her first leave of absence. Unlike Creech's T h e burden shifting analysis applies to ADA failure to hire claims. Bennett v . Dominguez, 196 Fed. App'x 785, 791 (11th Cir. 2006). 14
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argument, the Court does not read Tift Regional's position to be that it should receive "e x tra credit" for having provided Creech the SIP coordinator position when the ADA d id not require it. The Court rather understands Tift Regional's position to be that the C o u rt should not penalize Tift Regional for failing to continue to employ Creech even th o u g h after she returned from her first leave of absence Tift Regional provided her the S IP coordinator position. An employer's failure to continue to make accommodations above what the ADA re q u ire s does not violate the ADA. Holbrook v. City of Alpharetta, Ga., 112 F.3d 1522, 1 5 2 8 (11th Cir. 1997). Here, whether Tift Regional went beyond what the ADA requires w h e n it first hired her for the SIP coordinator position is irrelevant to the question of w h e th e r the SCIP coordinator position was not given to Creech because of Creech's d is a b ility when she returned from her second leave of absence. Having determined th a t Creech's disability had no effect on when the SCIP coordinator position was tra n s fe rre d and eliminated, summary judgment must be granted to Tift Regional on C re e c h 's ADA failure to accommodate claims because Creech was not entitled to a c c o m m o d a tio n s after her position at Tift Regional was eliminated. C. C r e e c h 's FMLA Claim

T h e FMLA entitles an eligible employee to take twelve workweeks of leave d u rin g any 12-month period because of a serious health condition that makes the e m p lo y e e unable to perform the functions of the position of such employee. 29 U.S.C. § 2612(a)(1)(D). To preserve these rights to take leave, the FMLA creates two types

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of claims: interference claims, in which an employee alleges that his employer denied h im a benefit guaranteed under the Act, 29 U.S.C. § 2615(a)(1), and retaliation claims, in which an employee asserts that his employer discriminated against him because he e n g a g e d in activity protected by the Act. 29 U.S.C. § 2615(a)(2). In her complaint Creech alleges that upon returning to work in April 2007 Tift R e g io n a l was obligated to restore her to the SCIP coordinator position or that it was o b lig a te d to give her an equivalent position. The Court construes this allegation as s ta tin g a claim for interference on the basis that Tift Regional denied her the benefit of r e in s ta te m e n t. T o state an interference claim, a plaintiff must demonstrate that she was entitled to a benefit under the FMLA and the employer denied him the benefit. Strickland v. W a te r Works & Sewer Bd. of the City of Birmingham, 239 F.3d 1199, 1206-07 (11th C ir. 2006). The employer's motives are irrelevant. Id. at 1208. Tift Regional argues that Creech was not entitled to a benefit (reinstatement) u n d e r the FMLA when she took her second leave of absence because she was not an "e lig ib le employee" as defined by the FMLA. It alternatively argues that it did not deny C re e c h reinstatement because her position was eliminated irrespective of her taking F M L A leave. Creech argues that she was an eligible employee and even if the Court fin d s that she was not, Tift Regional should be estopped from asserting her ineligibility. She finally contends that there is a dispute of fact as to whether her position was e lim in a te d irrespective of her FMLA leave and that regardless, there was an equivalent

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position available at Tift Regional to which should have been assigned. 1. Whether Creech Was an Eligible Employee

T o obtain relief under the FMLA, a plaintiff must establish that he is an "eligible e m p lo y e e ." 29 U.S.C. § 2611. To be an "eligible employee" an employee must be e m p lo y e d for at least 12 months by the employer and must have worked at least 1,250 h o u rs during the previous 12-month period. 29 U.S.C. § 2611(2)(A). It is a two prong re q u ire m e n t. As to the second prong, whether the employee has worked the requisite re q u ire d number of hours is determined by the hours worked "during the 12-month p e r io d immediately preceding the commencement of the leave." 29 C.F.R. §

8 2 5 .1 1 0 (a )(2 ). Stated another way, "the determination of whether an employee has w o rk e d for the employer for at least 1,250 hours in the past 12 months . . . must be m a d e as of the date the FMLA leave is to start." 29 C.F.R. § 825.127(d). Tift Regional has presented evidence that Creech only worked 1,127 hours d u rin g the twelve month period immediately prior to her taking her second leave of a b s e n c e in February 2007; therefore, it asserts that she did not work the required n u m b e r of hours to render her an eligible employee for FMLA leave when she took her s e c o n d leave of absence. Creech does not dispute that the record shows the number o f hours she worked during the 12 months prior to taking leave totals 1,127 hours. She a rg u e s , however, that she had worked the requisite 12 months. C re e c h misunderstands the requirements for FMLA eligibility. Not only must she h a v e worked a total of 12 months for Tift Regional prior to taking leave, she also must

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have worked 1,250 hours during the 12 months immediately prior to taking leave. She h a s presented no evidence rebutting Tift Regional's evidence that she did not work the re q u is ite number of hours during the 12 months immediately prior to taking her second le a v e of absence. Accordingly, the Court finds that Creech has not created a genuine issue of fact a s to whether she was an eligible employee for FMLA leave. The Court next addresses C re e c h 's argument that Tift Regional should be estopped from asserting she was in e lig ib le for FMLA leave. 2. E q u ita b le Estoppel

T ift Regional admits that it mistakenly approved Creech's request to take a s e c o n d FMLA leave of absence beginning in February 2007. It sent Creech a letter a p p ro v in g her for FMLA leave. Creech relied on the approval letter when she took le a v e . T ift Regional argues Creech does not satisfy the requirements for equitable e s to p p e l. It separately argues that even if the Court finds Creech meets the re q u ire m e n ts for equitable estoppel, the Eleventh Circuit has never applied equitable e s to p p e l to FMLA eligibility claims and that district courts within the Eleventh Circuit h a v e consistently decided not to apply the doctrine. T h e Court first considers whether Creech has created disputes of fact as to w h e th e r she satisfies the equitable estoppel requirements. It then addresses the q u e s tio n of whether equitable estoppel should be used in FMLA eligibility cases.

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i.

E q u ita b le Estoppel Requirements

To satisfy the equitable estoppel requirements, a plaintiff must show: (1) that th e re was a misrepresentation of material fact; (2) the party to be estopped was aware o f the true facts; (3) there was an intention on the part of the party to be estopped that th e misrepresentation would be acted upon or that another party would rely on the m is re p re s e n ta tio n ; (4) the party asserting estoppel was unaware of the true facts and s h o u ld not have been aware of the true facts; and (5) the party asserting estoppel re a s o n a b ly and detrimentally relied on the misrepresentation. Martin v. Brevard County P u b . Sch., 543 F.3d 1261, 1266 n. 2 (11th Cir. 2005). T ift Regional contends that it did not make a misrepresentation of material fact to Creech because it merely made a mistake approving Creech's FMLA leave. It fu rth e r argues that Creech should have known from the hospital's handbook she was re q u ire d to work 1,250 hours before she was eligible for FMLA leave. It believes that C re e c h could not reasonably rely on the letter approving her FMLA leave because she s h o u ld have known she did not meet the 1,250 hour requirement since she worked only s e v e n months before returning from her first leave of absence and she had taken many v a c a tio n days. In contrast, Creech asserts that Tift Regional should have known that Creech w a s not qualified for FMLA leave because it maintained records reflecting the number o f hours Creech worked. Creech did not keep track of the number of hours she worked e a c h week. (Creech Aff. ¶ 3).

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Creech also explains that if Tift Regional had denied her request to take FMLA le a v e , then she would not have taken medical leave beginning in February 2007. (Creech Aff. ¶ 4). Her surgery was elective and could have been delayed. (Creech Aff. ¶ 4). Because Creech relied on the approval, she argues Tift Regional cannot now c la im that she was not entitled to FMLA leave. Regarding the first and second equitable estoppel factors, the Fifth Circuit has h e ld that "an employer who without intent to deceive makes a definite but erroneous re p re s e n ta tio n to his employee that she is an `eligible employee' and entitled to leave u n d e r FMLA" may be subject to estoppel if the employee reasonably relies on the m is re p re s e n ta tio n to her detriment and the employer had reason to believe that the e m p lo y e e will rely on the misrepresentation. Minard v. ITC Deltacom Commc'ns, Inc., 4 4 7 F.3d 352, 359 (5th Cir. 2006). The court noted that the Restatement of Torts does n o t require any intent to deceive by the party to be estopped. Id. at 359 (citing R ESTATEMENT (SECOND) OF TORTS at § 894(1). Estoppel is appropriate even where "the o n e making the representation believes that his statement is true." RESTATEMENT (S ECOND) OF TORTS at § 894(1), cmt. b. A p p ly in g the Fifth Circuit's view, the Court finds that an unintentional statement c o n s titu te s a misrepresentation for purposes of satisfying the first and second re q u ire m e n ts of equitable estoppel if the party making the statement had information th a t would enable it to make a true statement. Here, there is no dispute of fact that Tift R e g io n a l made a mistake when it approved Creech's request for FMLA leave and that

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it had the information before it­the hours log­that would have enabled it to make a true re p re s e n ta tio n . Accordingly, at the summary judgment stage, Creech has shown Tift R e g io n a l made a misrepresentation of material fact despite being aware of the true fa c ts . T ift Regional disputes the fourth and fifth requirements of equitable estoppel. As to the fourth requirement, it argues that Creech should have known the true facts: that s h e was required to work 1,250 hours before reaching FMLA eligibility. As to the fifth re q u ir e m e n t, it argues that Creech unreasonably relied on the misrepresentation b e c a u s e she should have known that she did not work 1,250 hours. Tift Regional is mistaken in what true facts Creech should have known. The true fa c ts are the number of hours Creech actually worked. Creech has presented evidence th a t only Tift Regional maintained a log of the number of hours Creech worked and that s h e did not keep track of the hours she worked. Tift Regional has not disputed the re a s o n a b le n e s s of Creech's failure to keep her own hours log. Thus, there is a dispute o f fact as to whether Creech should have known the actual number of hours she w o rk e d . Further, to be eligible for FMLA leave, an employee has to work approximately 3 1 weeks.9 Creech was short just 3 weeks of work prior to becoming eligible for FMLA le a v e . Given the proximity between the date that she took leave and the date that she w a s eligible for FMLA leave, the Court finds that there is evidence creating a dispute o f fact as to whether her reliance on Tift Regional's letter approving her FMLA leave

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The Court assumes that an employee works 40 hours each week. 21

was reasonable. Finally, a dispute of material fact exists as to whether Creech detrimentally relied o n Tift Regional's FMLA approval letter. A question of fact as to detrimental reliance e x is ts if the employee presents evidence that she would not have taken leave if she k n e w she was ineligible for FMLA leave. Minard, 447 F.3d at 359; see also Dobrowski v . Jay Dee Contractors, Inc., 571 F.3d 551, 557 (6th Cir. 2009) (finding no detrimental re lia n c e when there was no evidence that employee would have rescheduled his s u rg e ry if he had known he was not FMLA eligible). Here, Creech has averred that she would have delayed her elective surgery until s h e was eligible for FMLA leave. As she was short only 123 hours (three weeks of w o rk ), Creech stated that it would not have been a problem to delay her surgery until s h e was eligible for FMLA leave. Thus, there is a genuine dispute of fact as to whether s h e relied on Tift Regional's misrepresentation to her detriment. F o r summary judgment purposes, Creech has created a genuine dispute of fact a s to whether she satisfies the requirements of equitable estoppel. The Court therefore p ro c e e d s to determine whether the doctrine should be applied to prevent an employer fro m disputing the employee's FMLA eligibility. ii. W h e th e r the Doctrine Applies to FMLA Eligibility Cases

T h e Eleventh Circuit has never decided whether equitable estoppel may apply to prevent an employer from disputing an employee's eligibility for FMLA leave. District c o u rts within the Eleventh Circuit, however, have consistently declined to apply the

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doctrine to the FMLA employee eligibility requirements.

Kuczynski v. Lyra

M a n a g e m e n t, Inc., 2009 WL 2488295, at * 3 (S.D. Fla. Aug. 13, 2009) ("Plaintiff, th e re fo re , satisfies the elements of equitable estoppel . . . the undersigned has already d e c id e d that absent a directive from the Eleventh Circuit, this Court declines to apply th e doctrine.) (citation omitted); Peery v. CSB Behavioral Health Sys., 2008 WL 4 4 2 5 3 6 4 , at * 13 (S.D. Ga. Sept. 30, 2008) ("Based on this persuasive authority, this C o u rt sees no reason to apply the doctrine here.); Hegre v. Alberto-Culver USA, Inc., 2 0 0 7 WL 1481896, at *1 n. 1 (S.D. Ga. May 15, 2007) ("Initially, it should be noted that it is doubtful that the doctrine of equitable estoppel may be applied in FMLA cases); s e e Moore v. Sears Roebuck & Co., 2007 WL 1950405, at * 9 (N.D. Fla. July 2, 2007) (d e c lin in g to apply equitable estoppel in a case where plaintiff argued that defendant is equitably estopped from challenging her eligibility under the FMLA). O th e r circuit courts, however, have held that an employer may be equitably e s to p p e d from challenging an employee's eligibility for FMLA leave. Dobrowski, 571 F .3 d at 554 ("Our circuit recognizes that in certain circumstances equitable estoppel a p p lie s to employer statements regarding an employee's FMLA eligibility, preventing th e employer from raising non-eligibility as a defense."); Minard, 447 F.3d at 359 (e x p la in in g conditions for application of equitable estoppel in preventing an employer fro m asserting an employee's ineligibility for FMLA coverage); Duty v. Norton-Alcoa P ro p p a n ts , 293 F.3d 481, 494 (8th Cir. 2002) (no abuse of discretion in the district c o u rt's determination that employer should be estopped from contesting employee's

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eligibility to assert a FMLA claim); Plumley v. S. Container, Inc., 303 F.3d 364, 374 (1st C ir. 2002) (reviewing requirements of equitable estoppel and finding that employee did n o t meet them); Kosakow v. New Rochelle Radiology Assocs., P.C., 274 F.3d 706, 727 (2 d Cir. 2001) (finding that equitable estoppel doctrine applied to prevent employer fro m arguing employee did not meet requirements of FMLA if employer failed to inform e m p lo y e e of FMLA eligibility requirements); Dormeyer v. Comerica Bank-Illinois, 223 F .3 d 579, 582 (7th Cir.2000) (finding that FMLA did not exclude application of estoppel d o c trin e and recognizing that in an appropriate case equitable estoppel would apply). This Court sees no reason to find that equitable estoppel does not apply to FMLA e lig ib ility disputes merely because the Eleventh Circuit has not decided whether the d o c trin e applies. It is persuasive to the Court that circuit courts outside the Eleventh C irc u it have applied the doctrine. The Fifth Circuit's reasoning in Minard and the Sixth C irc u it's explanation in Dobrowski make sense. The courts noted that the eligibility re q u ire m e n ts for FMLA relief are not jurisdictional in nature and therefore equitable e s to p p e l principles may apply to estop an employer from contesting an employee's e lig ib ility . Minard, 447 F.3d at 356, 358; Dobrowski, 571 F.3d at 554 n. 1 and n. 2 (e x p la in in g that equitable estoppel is a judicial doctrine that bars the assertion of a c la im or defense, which is different from a statutory interpretation that provides for e s to p p e l-lik e liability). Moreover, each district court case cited above except Kuczynski found that even if the doctrine were to apply, the facts of the particular case did not satisfy the equitable

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estoppel elements. In contrast, the facts of this case, viewed in the light most favorable to Creech, squarely fit the requirements of equitable estoppel. Accordingly, the Court will apply the equitable estoppel doctrine to Creech's F M L A claim. For purposes of summary judgment, Tift Regional is estopped from a rg u in g that she was ineligible to take FMLA leave. The Court therefore reaches the m e rits of her interference claim. 3. W h e th e r Tift Regional Interfered with Creech's FMLA Rights

E m p lo y e e s who take FMLA leave are entitled to the position they had before ta k in g leave or an equivalent position. 29 U.S.C. § 2615(a)(1). Nonetheless, an e m p lo y e e does not have a right to reinstatement if she would not be entitled to the p o s itio n "had [she] not taken the leave." 29 U.S.C. § 2614(a)(3)(B). In other words, an e m p lo y e e 's right to reinstatment is subject to an employer's "opportunity to d e m o n s tra te it would have discharged the employee even had she not been on FMLA le a v e ." O'Connor v. PCA Family Health Plan, Inc., 200 F.3d 1349, 1354 (11th C ir .2 0 0 0 ) . Tift Regional disputes whether it interfered with Creech's FMLA rights. According to Tift Regional, the record evidence shows that Creech's job as the SCIP c o o rd in a to r was eliminated regardless of her use of FMLA leave and it contends that th e re were no equivalent positions available. In response, Creech argues that there is a dispute of fact as to whether the SCIP coordinator position was eliminated because o f her use of FMLA leave and alternatively, that there is a dispute of fact as to whether

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there were equivalent positions available that Tift Regional should have offered her b e fo re terminating her employment. As the Court has already explained, the unrebutted evidence establishes that T ift Regional would have eliminated Creech's SCIP coordinator position regardless of h e r disability. Likewise, the unrebutted evidence shows that the SCIP coordinator p o s itio n would have been eliminated regardless of Creech taking FMLA leave. The d e c is io n to transfer the SCIP coordinator responsibilities to the quality management d e p a rtm e n t was made prior to Creech taking leave. The responsibilities were then tra n s fe rre d to the quality management department and subsumed into the clinical s u p p o rt position while Creech was on leave. Since the decision to transfer was made b e fo re Creech requested to take FMLA leave for a second surgery, the transfer would h a v e occurred regardless of whether Creech took FMLA leave. On the other hand, there is a dispute of fact as to whether equivalent positions w e re available to Creech and thus, whether the failure to Tift Regional to provide her o n e of the available positions violated her FMLA right to reinstatement.1 0 Creech has p o in te d to case manager positions that were available at Tift Regional after she re tu rn e d from FMLA leave in April 2007, but were not offered to her. Tift Regional

The FMLA reinstatement question is different from the questions related to Creech's failure to accommodate ADA claims. Her ADA failure to a c c o m m o d a te claims raised questions of whether Creech was entitled to remain a n employee at Tift Regional even though her position was eliminated for reasons u n re la te d to her disability. The FMLA reinstatement question asks, however, w h e th e r she was entitled to remain an employee at Tift Regional in spite of taking F M L A leave. 26

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admits that the case manager positions had similar responsibilities as the SCIP c o o rd in a to r position. (See Res. Br. P. 14, citing Tift Regional's interrogatory response N o . 1, Doc. 35). Tift Regional does not, however, admit that the case manager p o s itio n s were equivalent to the SCIP coordinator position. It argues that the case m a n a g e r and SCIP coordinator positions were not equivalent because the case m a n a g e r positions were not limited to maintaining surgical statistics. An "equivalent position" must have the same or substantially similar duties and re s p o n s ib ilitie s , skill requirements, and authority as an employee's existing position. 29 C .F .R . § 825.215(a) (1997). Determining whether the job offered is equivalent is

g e n e ra lly a fact question for the jury. Parker v. Hanhemann Univ. Hos., 234 F. Supp. 2 d 478, 489 (D.N.J. 2002) (citing Watkins v. J & S Oil Co., 164 F.3d 55, 60 (1st Cir. 1 9 9 8 )). The SCIP coordinator and case manager positions had similar duties, but Tift R e g io n a l points to no support for its assertion that the case manager positions were not lim ite d to surgical statistics. The Court has no information regarding the job

re s p o n s ib ilitie s , skill requirements, and authority of the case manager positions. After r e v ie w in g the record, the Court is left with the unrebutted evidence that the case m a n a g e r and SCIP coordinator positions were similar. In the absence of additional e v id e n c e , the fact that the positions were admittedly similar creates a dispute of fact a s to whether the case manager positions constitute equivalents of the SCIP c o o rd in a to r position. Thus, a reasonable jury could conclude that Tift Regional's failure

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to offer her a case manager position with her right to take FMLA leave. Summary ju d g m e n t is not warranted on Creech's FMLA interference claim. III. C O N C L U S IO N T ift Regional's motion for summary judgment (Doc. 25) is granted in part and d e n ie d in part. The stay regarding the pending motion for a psychiatric exam (Doc. 18) is lifted. The parties may conduct discovery until September 17, 2010, for the limited p u rp o s e of completing Creech's deposition on the issue of damages. Tift Regional may file a reply brief on the motion for a psychiatric exam on or before August 31, 2010. The Court does not anticipate further briefing on the motion. S O ORDERED, this the 18th day of August, 2010.

s / Hugh Lawson HUGH LAWSON, SENIOR JUDGE lm c

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