Hudson v. Home Depot, U.S.A., Inc.

Filing 31

MEMORANDUM AND ORDER RE: MOTION FOR SUMMARY JUDGMENT. It is therefore ordered that defendant's motion for summary judgment be, and the same hereby is, DENIED. Signed by Judge William B. Shubb. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

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UNITED STATES DISTRICT COURT

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DISTRICT OF IDAHO

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----oo0oo----

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JENNIFER HUDSON,
Plaintiff,

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CIV. NO. 1:13-366 WBS
MEMORANDUM AND ORDER RE: MOTION
FOR SUMMARY JUDGMENT

v.
HOME DEPOT, U.S.A., INC., a
Delaware Corporation, d.b.a.
THE HOME DEPOT,

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Defendant.
----oo0oo---Plaintiff brought this action against her former
employer, Home Depot, alleging Home Depot relied on her Family
Medical Leave Act (“FMLA”)-qualifying absences as a negative
factor in its decision to terminate her employment.

Presently

before the court is Home Depot’s motion for summary judgment
pursuant to Federal Rule of Civil Procedure 56.
I. Factual and Procedural Background
Home Depot hired plaintiff as a part-time cashier in

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October 2001.

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19:2) (Docket No. 25-1).)

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special service desk position, in which she served customers

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picking up special orders, called vendors for updates and price

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points, offered credit and installations, directed customers to

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the appropriate associate who could provide assistance, and

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handled customer complaints.

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(Williams Decl. Ex. L (“Hudson Dep.”) at 16:10-22,
Plaintiff then moved into a full-time

(Id. at 20:7-12.)

At the time Home Depot first hired plaintiff, it
utilized a point system for attendance issues, whereby associates

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accrued points for absences or tardiness.

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(Docket No. 21-29.)

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absences or tardies exceeded a designated number, he or she would

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be subject to discipline.

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changed its policy, abandoning the point system in favor of a

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more flexible system.

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than three to five unexcused attendance or punctuality issues

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within a twelve-month period despite having been warned about the

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consequences of failing to improve, a manager was supposed to

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conduct a “final counseling session.”

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stated that “there is no policy governing the precise number of

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days absent or late that will result in disciplinary action

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because the discipline that is appropriate will vary according to

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the circumstances.”

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(Quanstrom Decl. ¶ 4

Under this new system, when an employee’s

(Id.)

In June 2010, Home Depot

(Id. ¶ 5.)

When an associate had greater

(Id.)

The written policy

(Id.)

Plaintiff’s mother began having severe health issues in

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2004.

(Hudson Decl. ¶ 4 (Docket No. 24).)

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care to her mother, which caused her to be late to work and

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occasionally absent.

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to be late or absent, she called into work and spoke to the

(Id.)

Plaintiff provided

Plaintiff states that when she had

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manager on duty to inform him or her of the absence or tardiness

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and explain that she was taking care of her ill mother.1

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5.)

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worry, that she should do what she needed to do to care for her

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mother, and that the tardiness or absence would be excused.

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(Id.)

(Id. ¶

Each time, the manager on duty told her that she need not

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Plaintiff’s absences and tardies persisted during the

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period from 2003 to 2011.2

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plaintiff to explain those attendance occurrences during her last

According to a chart prepared by

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year of employment, from the period of November 2010 to March

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2011, plaintiff was absent once and tardy nine times where the

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reason was caring for her mother.

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(Docket No. 21-28).)

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noted some tardies were for other reasons, including plaintiff’s

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knee injuries, a welfare appointment, and a doctor’s visit.

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(Id.)

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(Henderson Decl. Ex. 25

During that same period, plaintiff also

Plaintiff’s mother passed away.

Thereafter, from

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June 15, 2011, to July 22, 2011, plaintiff accrued seven more

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tardies, two absences, and two early departures, both of which

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In her deposition, plaintiff stated she never requested
time off in advance due to a pre-planned or anticipated need to
care for her mother. (Hudson Dep. 49:16-18.) Home Depot offers
these comments in support of their assertion that plaintiff never
requested FMLA leave; however, the deposition does not contradict
plaintiff’s statement that she notified her employer that her
unplanned late arrivals and absences were due to her mother’s
illness.
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Paperwork documenting written counseling indicates that
from 2003 to 2009, Home Depot counseled plaintiff regarding her
accrued points under the former point system for tardies,
absences, and “mispunches.” (See Henderson Decl. Exs. 3-20.)
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she states were excused due to the snow.3

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2011, plaintiff received a “final counseling” for her tardies and

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absences, where she was informed that additional attendance

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violations could result in termination.

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Five days later, on July 27, 2011, plaintiff was again absent

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from work.

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together with the district human resources manager Diana

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Quanstrom, stated that they believed plaintiff should be

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terminated because she was unwilling or unable to improve her

(Id. ¶ 8.)

(Id.)

On July 22,

(Quanstrom Decl. ¶ 7.)

Two managers at plaintiff’s store,

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attendance issues.

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Depot Associate Advice and Counsel Group, which concurred in the

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decision.

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2011.

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(Id.)

(Id. ¶ 8.)

They reached out to the Home

Home Depot terminated plaintiff on August 6,

Plaintiff brought a single claim against Home Depot,

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alleging that Home Depot impermissibly used plaintiff’s FMLA-

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protected leave as a negative factor in its decision to fire her.

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(Compl. ¶ 24-26.)

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arguing plaintiff’s termination did not violate the FMLA because

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plaintiffs’ absences and tardies were not protected by the act

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and, in any event, it did not rely on that leave as a negative

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factor in its decision to terminate plaintiff.

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II. Discussion

Home Depot now moves for summary judgment,

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A. Summary Judgment Standard

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Summary judgment is proper “if the movant shows that

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there is no genuine dispute as to any material fact and the
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The reasons plaintiff recorded for the tardies were car
problems, three of which were marked as “Ok’d.” The two absences
were recorded as “flu” and “headache.” (Henderson Decl. Ex. 28.)
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movant is entitled to judgment as a matter of law.”

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P. 56(a).

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of the suit, and a genuine issue is one that could permit a

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reasonable jury to enter a verdict in the non-moving party’s

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favor.

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(1986).

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burden of establishing the absence of a genuine issue of material

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fact and can satisfy this burden by presenting evidence that

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negates an essential element of the non-moving party’s case.

Fed. R. Civ.

A material fact is one that could affect the outcome

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
The party moving for summary judgment bears the initial

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Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

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Alternatively, the moving party can demonstrate that the non-

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moving party cannot produce evidence to support an essential

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element upon which it will bear the burden of proof at trial.

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Id.

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Once the moving party meets its initial burden, the

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burden shifts to the non-moving party to “designate ‘specific

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facts showing that there is a genuine issue for trial.’”

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324 (quoting then-Fed. R. Civ. P. 56(e)).

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the non-moving party must “do more than simply show that there is

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some metaphysical doubt as to the material facts.”

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Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

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“The mere existence of a scintilla of evidence . . . will be

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insufficient; there must be evidence on which the jury could

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reasonably find for the [non-moving party].”

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at 252.

Id. at

To carry this burden,

Matsushita

Anderson, 477 U.S.

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In deciding a summary judgment motion, the court must

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view the evidence in the light most favorable to the non-moving

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party and draw all justifiable inferences in its favor.
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Id. at

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255.

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and the drawing of legitimate inferences from the facts are jury

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functions, not those of a judge . . . ruling on a motion for

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summary judgment . . . .”

“Credibility determinations, the weighing of the evidence,

Id.

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B. Section 825.220(c)

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The FMLA entitles “employees to take reasonable leave

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for medical reasons, or the birth or adoption of a child, and for

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the care of a child, spouse, or parent who has a serious health

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condition.”

29 U.S.C. § 2601(b).

The Act permits an employee to

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take up to twelve weeks of leave during a twelve-month period.

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Id. § 2612.

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Section 825.220 of the federal regulations pursuant to

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the FMLA provides that “employers cannot use the taking of FMLA

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leave as a negative factor in employment actions, such as hiring,

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promotions or disciplinary actions; nor can FMLA leave be counted

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under no fault attendance policies.”

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Diverging from other circuits, the Ninth Circuit has “explicitly

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declined” to apply the McDonnell Douglas burden-shifting

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framework to § 825.220 claims.4

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29 C.F.R. § 825.220(c).

Xiu Liu v. Amway Corp., 347 F.3d

A plaintiff may prove a case of discrimination under
federal anti-discrimination law by invoking the burden-shifting
framework established in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Under this framework, the plaintiff must first
establish a prima facie case showing that 1) she belongs to a
protected class of persons; 2) she satisfactorily performed her
job; 3) she suffered an adverse employment action; and 4) her
employer treated her differently than similarly situated
employees not of the same protected class. Cornwell v. Electra
Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006) (citing
McDonnell Douglas, 411 U.S. at 802).
If the plaintiff successfully establishes her prima
facie case, the “burden of production, but not persuasion, []
shifts to the employer to articulate some legitimate,
nondiscriminatory reason for the challenged action.” Chuang v.
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1125, 1136 (9th Cir. 2003) (citing Bachelder v. Am. W. Airlines,

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259 F.3d 1112 (9th Cir. 2001)).

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held that although § 825.220(c) “refers to ‘discrimination,’ [it]

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actually pertains to the ‘interference with the exercise of

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rights’ section of the [FMLA], § 2614(a)(1), not the anti-

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retaliation or antidiscrimination sections, §§ 2615(a)(2) and

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(b).”

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burden-shifting framework from anti-discrimination law, “[in]

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order to prevail on her claim . . . [the plaintiff] need only

259 F.3d at 1124.

In Bachelder, the Ninth Circuit

Consequently, rather than using the

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prove by a preponderance of the evidence that her taking of FMLA-

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protected leave constituted a negative factor in the decision to

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terminate her.”

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that (1) she took FMLA-protected leave and (2) such leave

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constituted a negative factor in Home Depot’s decision to

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terminate her employment.

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WGC, 2014 WL 4699620, at *4 (D. Nev. Sept. 22, 2014); Jadwin v.

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County of Kern, 610 F. Supp. 2d 1129, 1159 (E.D. Cal. 2009)

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(citing Bachelder, 259 F.3d at 1122).

Id. at 1125.

Here, plaintiff must thus prove

Bement v. Cox, Civ. No. 3:12-475 MMD

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1. FMLA-Protected Leave

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As a threshold matter, coverage by the FMLA is limited

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to employers with over fifty employees, § 825.104, and employees

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who have worked for the employer for at least twelve months and

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Univ. of Cal. Davis, 225 F.3d 1115, 1123-24 (9th Cir. 2000)
(citing McDonnell Douglas, 411 U.S. at 802). Assuming the
employer carries its burden, the plaintiff “must [then] show that
the articulated reason[s][are] pretextual ‘either directly by
persuading the court that a discriminatory reason more likely
motivated the employer or indirectly by showing that the
employer’s proffered explanation is unworthy of credence.’”
Chuang, 225 F.3d at 1124 (citing Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 256 (1981)).
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1,250 hours, § 825.110.

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and plaintiff met these requirements, nor do they dispute that

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plaintiff’s mother’s condition was serious such that plaintiff’s

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care would have qualified under the Act, see 29 U.S.C. § 2612

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(covering leave for care of a parent with a “serious health

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condition”).

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provided sufficient notice for the attendance occurrences related

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to her mother’s illness to come within the protection of the

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FMLA.

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Parties do not dispute that Home Depot

Their disagreement is over whether plaintiff

Section 825.302 of the Department of Labor regulations

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covers notice requirements for “foreseeable” FMLA leave.

See 29

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C.F.R. § 825.302.

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adoption, or knows of planned medical treatment for her or her

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family member’s serious illness, she must provide either thirty

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days notice, or if that is not possible, she must notify her

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employer as soon as practicable.

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cases . . . the determination of when an employee could

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practicably provide notice must take into account the individual

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facts and circumstances.”

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foreseeable, the employee must provide “notice sufficient to make

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the employer aware that the employee needs FMLA-qualifying leave,

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and the anticipated timing and duration of leave.”

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825.302(c).

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a FMLA–qualifying reason, the employee need not expressly assert

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rights under the FMLA or even mention the FMLA.”

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employer previously provided FMLA leave for a particular

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qualifying reason, then “the employee must specifically reference

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the qualifying reason for leave or the need for FMLA leave.”

Where the employee expects a birth or

Id. § 825.302(a)-(b).

Id. § 825.302(b).

“In all

Where leave is

Id. §

“When an employee seeks leave for the first time for

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Id.

Where the

Id.

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In all cases, “[i]t is the employer’s responsibility to determine

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whether FMLA leave is appropriate, to inquire as to specific

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facts to make that determination, and to inform the employee of

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his or her entitlements.”

Xin Liu, 347 F.3d at 1134.

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According to plaintiff, at least ten of the attendance

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occurrences cited in her termination letter were attributable to

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caring for her mother.5

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tardy or absent to care for her ill mother, she called the Home

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Depot manager on duty to explain that her mother was the reason

Plaintiff states that when she had to be

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she could not be at work.

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Quanstrom corroborates that plaintiff put Home Depot on notice

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regarding attendance occurrences related to plaintiff’s care for

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her mother: she says, “when we were discussing the matter and

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determining what steps to take, we were aware that Ms. Hudson had

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been caring for her mother, who had died three months earlier . .

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. .”6

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that none of plaintiff’s supervisors were aware that plaintiff’s

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absences were related to caring for her mother.

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is thus a disputed issue of material fact regarding whether

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plaintiff’s supervisors were made aware that plaintiff’s

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(Hudson Decl. ¶ 5.)

HR manager

Defendant nonetheless took the position at oral argument

At best, there

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The August 6, 2011 termination letter listed thirtyfour attendance occurrences that contributed to her dismissal.
(Henderson Decl. Ex. 23 (Docket No. 21-26).) Plaintiff made a
chart explaining those occurrences. (See Henderson Decl. Ex. 25
(Docket No. 21-26).) According to the chart, at least ten
occurrences were attributable to caring for her mother. (Id.)
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Quanstrom goes on to state that although Home Depot was
aware of the reasons for plaintiff’s absences on those certain
occasion relating to her mother, “[w]e did not consider any
attendance issues related to the care of Ms. Hudson’s mother when
we reached our decision to terminate her employment.” (Quanstrom
Decl. ¶ 9.)
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attendance occurrences were attributable to providing care for

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her mother.

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The issue then becomes whether plaintiff’s notice was

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sufficient.

The record is silent on the “individual facts and

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circumstances” surrounding each attendance occurrence, making it

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difficult for the court to determine whether plaintiff’s notice

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was sufficient.

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stated that none of the absences related to her mother’s care

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were preplanned.

See 29 C.F.R. § 825.302(b).

(Hudson Dep. at 49:16-22).

Plaintiff, however,

This suggests that

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the tardies or absences were not “foreseeable,” such that §

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825.302 should even apply.7

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foreseeable, there is at least a triable issue as to whether

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plaintiff’s phone calls to the store constituted notice “as soon

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as practicable.”

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invoke the FMLA, see 29 C.F.R. § 825.302(c),8 the burden would

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have then shifted to Home Depot to determine, on each occasion,

If any tardies or absences were

Because plaintiff was not required to expressly

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Some courts have held that an employee must provide her
employer notice even when the absence is unforeseeable. See
Aubuchon v. Knauf Fiberglas, GMBH, 240 F. Supp. 2d 859, 865
(S.D. Ind. 2003) (“Where leave is not foreseeable, the employee
must provide notice ‘as soon as practicable.’”) (citing Collins
v. NTN-Bower Corp., 272 F.3d 1006, 1008 (7th Cir. 2001). Even
under this rule, a factual inquiry must be conducted into the
circumstances to determine when it would have been practicable to
give notice. 29 C.F.R. § 825.302(b).
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Plaintiff would have perhaps been required to expressly
request “FMLA leave” if Home Depot had previously afforded her
leave for the purpose of caring for her mother. See § 825.302
(c). However, nothing in the record suggests that Home Depot
ever expressly granted plaintiff FMLA-qualified leave. Plaintiff
was therefore not required to expressly invoke the FMLA when she
informed her managers that she would be late or absent due to her
mother’s illness.
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whether plaintiff’s absences or tardies were qualifying.

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Liu, 347 F.3d at 1134.

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that at least ten of plaintiff’s tardies and absences in her last

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year of employment qualify as FMLA-protected leave.9

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See Xin

A reasonable jury could thus conclude

Id.

“In the case of medical conditions, the employer may

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find it necessary to inquire further to determine if the leave is

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because of a serious health condition and may request medical

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certification to support the need for such leave.”

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825.302(c).

29 C.F.R. §

Failure to respond “may result in denial of FMLA

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protection if the employer is unable to determine whether the

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leave is FMLA qualifying.”

Id.

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Quanstrom states that in 2004 or 2005, when she learned

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plaintiff was caring for her ill mother, she asked her to provide

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medical certification relating to her mother’s illness so that

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any resulting absences would be covered by the FMLA.

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Decl. ¶ 13.)

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not want to take FMLA leave because she could not afford it.

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(Id.)

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took place.

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dispute over whether plaintiff was ever asked to provide medical

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certification.

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Depot’s request for medical certification, potentially precluding

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her from claiming leave related to her mother was FMLA-protected,

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remains a genuine dispute of material fact.

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She further states plaintiff responded that she did

Plaintiff, however, denies that this conversation ever

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(Quanstrom

(Hudson Decl. ¶ 8.)

There is accordingly a factual

Whether plaintiff failed to respond to Home

2. Negative Factor
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As previously discussed, defendant does not dispute
that plaintiff’s mother’s condition was serious enough for
plaintiff to qualify for leave under the FMLA. See 29 U.S.C. §
2612.
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Under § 825.220(c), it is impermissible for an employer

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to use FMLA-protected leave “as a negative factor at all” in its

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decision to fire an employee.

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Plaintiff “can prove this claim, as one might any ordinary

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statutory claim, by using either direct or circumstantial

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evidence, or both.”

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Bachelder, 259 F.3d at 1131.

Id. at 1125.

Quanstrom states that when she and store managers

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conferred, they did not consider any attendance issues related to

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the care of Ms. Hudson’s mother when they reached the decision to

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terminate plaintiff’s employment.

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documented phone calls between the Associate Store Manager and

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the Associate Advice and Counsel Group regarding plaintiff, noted

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the Associate Store Manager stated that “the associate was taking

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care of her mother, who recently died.

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addressed concerning her attendance issues.”

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Ex. 22 (Docket No. 21-25).)

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termination report states, “Schedule adherence is essential to

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ensure that the appropriate levels of staffing are available to

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meet our customer’s need.

As of today [plaintiff] has had

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thirty-four occurrences.”

(Id. Ex. 23 (Docket No. 21-26).)

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Several of the noted attendance occurrences in the termination

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notice (September 1 and 25, October 24 and 26, December 17 and

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23, 2010) were, according to plaintiff, related to caring for her

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mother.

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material fact such that a reasonable juror could conclude that

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Home Depot relied on FMLA-protected attendance occurrences as a

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“negative factor at all” in plaintiff’s termination.

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(See id.; Ex. 25.)

A July 27, 2011 report, which

But those days are not
(Henderson Decl.

However, the August 6, 2011

There is thus a genuine dispute of

Other circuits have held that an employer does not
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violate § 825.220 when it would have fired an employee regardless

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of the FMLA-protected leave.

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Electric and Gas Company, the plaintiff’s ninety-two absences,

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which exceeded the twelve weeks or eighty-four-day maximum the

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FMLA protects, violated the “Last Chance Agreement” he had signed

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with his employer.

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plaintiff in that case conceded that any violation of the

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Agreement would have automatically qualified him for termination.

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Id.

In Conoshenti v. Public Service

364 F.3d 135, 148 (3d Cir. 2004).

The

The court concluded that the record indicated that with the

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FMLA-protected leave removed from the calculus, it would have

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nevertheless made the same decision.

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Medpointe Healthcare, the court affirmed summary judgment for

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employer even though its termination letter identified FMLA-

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protected leave as part of the reason for terminating the

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employee, because the employer had “just cause” to terminate the

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employee due to her other non-FMLA leave which violated its

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absence policy.

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Accordingly, Home Depot argues that the fourteen non-FMLA

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attendance occurrences during plaintiff’s final year of

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employment, “standing alone, were sufficient to terminate

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[plaintiff’s] employment, as a matter of law.”

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2.)

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Id.

Similarly, in Smith v.

338 Fed. Appx. 230, 234 (3d Cir. 2009).

(Def.’s Mem. at

In Bachelder, the Ninth Circuit clearly contemplated a

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set of facts similar to Conoshenti and Smith and applied a more

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lenient standard to a “negative factor” claim:

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America West does not seriously contend that, even
though it considered an impermissible reason in firing
Bachelder, it would have fired her anyway for the
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other two reasons alone.
Even had it made such an
argument, of course, the regulations clearly prohibit
the use of FMLA-protected leave as a negative factor
at all. Therefore no further inquiry on the question
whether
America
West
violated
the
statue
in
discharging Bachelder is necessary.
Bachelder, 259 F.3d at 1131 (emphasis added).

In the Ninth

Circuit, even if the FMLA-protected leave was not a but-for
cause of the decision to terminate an employee, that does not
necessarily preclude an employee from prevailing under §
825.220(c) where the leave was a factor “at all.”

See also Xiu

Liu, 347 F.3d at 1136 (holding that summary judgment was not
appropriate where there was sufficient evidence that a
supervisor’s evaluation, in which he took FMLA-protected leave
into account in giving employee a low score, played a “central”
factor in her termination).10

From the termination letter, which

notes FMLA-protected leave as grounds for dismissal, the jury
could reasonably conclude that Home Depot used the leave as a

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Home Depot cites two Ninth Circuit cases in support of
its argument that plaintiff cannot prevail because her other nonFMLA-qualifying absences would have been sufficient grounds for
termination. (See Def.’s Reply at 4 (Docket No. 27).) The first
case, Buckman v. MCI World Com Inc., is inapposite. The court in
Buckman did not discuss the causation requirements of the
“negative factor” prong, because it determined plaintiff’s leave
was not qualifying for lack of proper notice. See Buckman v. MCI
World Com Inc., 374 Fed. Appx. 719, 720 (9th Cir. 2010) (holding
that leave was not FMLA-qualifying because plaintiff failed to
provide notice in accordance with employer policy). The second
case, Cooper v. T-Mobile USA, is distinguishable, because the
court found there was insufficient evidence in the record
suggesting that plaintiff had been terminated for any reason
other than her long history of objective complaints and
discipline. See 302 Fed. Appx. 581 (9th Cir. 2008). Here,
plaintiff has provided sufficient direct evidence, the
termination report, that Home Depot considered plaintiff’s FMLA
leave as a negative factor.
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negative factor, even if plaintiffs’ other attendance

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occurrences would have, in theory, been sufficient for

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plaintiff’s dismissal.

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The key issues of material fact in this case--whether

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plaintiff’s supervisors were aware that her absences and tardies

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were due to caring for her mother, whether plaintiff was ever

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asked to certify her mother’s condition, and whether defendant

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relied on FMLA-protected attendance occurrences in its

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termination decision--are all disputed and should be decided by

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a jury.

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grant summary judgment at this time.

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Accordingly, it would be inappropriate for the court to

IT IS THEREFORE ORDERED THAT defendant’s motion for

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summary judgment be, and the same hereby is, DENIED.

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Dated:

January 29, 2015

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