Cooper v. Beelman Truck Co.
Filing
29
OPINION: Defendant's Motion for Summary Judgment 18 is DENIED. Plaintiff's Motion for Summary Judgment 19 is DENIED. SEE WRITTEN OPINION. Entered by Judge Richard Mills on 01/03/2020. (SKN, ilcd)
E-FILED
Monday, 06 January, 2020 02:27:22 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
MARK COOPER,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
BEELMAN TRUCK CO.,
Defendant.
Case No. 17-3102
OPINION
RICHARD MILLS, United States District Judge:
The Plaintiff alleges the Defendant interfered with his rights under the Family
and Medical Leave Act (“FMLA”), pursuant to 29 U.S.C. § 2601 et seq.
Pending are motions for summary judgment filed by both parties.
I.
FACTUAL BACKGROUND
(A)
Plaintiff Mark Cooper was employed by Defendant Beelman Truck Co. from
March 2014 through October 5, 2016. Beelman is a Delaware corporation that does
business in Illinois providing dry bulk commodity transportation services (i.e.,
commercial trucking) with facilities throughout the Midwest. Cooper worked out of
Beelman’s Springfield, Illinois location. In 2015, approximately 90 employees
1
worked for Beelman out of Springfield. After January 1, 2016 through Cooper’s
termination, Beelman employed approximately 78 drivers in Springfield.
At the start of his employment, Cooper was given a copy of Beelman’s
Employee Handbook, which included the company’s written policies regarding sick
leave, FMLA leave, call-out procedures and progressive discipline. Cooper signed
to indicate he had read and understood the handbook. Beelman has a poster
describing the FMLA in the break room of its Springfield facility.
Mick Butler has worked for Beelman from 2011 through the present.
Throughout his employment with Beelman, Butler has held the position of Terminal
Manager at the Springfield location. Butler hired Cooper and was Cooper’s direct
supervisor during his employment. Cooper did not have any other boss or supervisor
in Springfield. Throughout 2015 and 2016, Cooper worked approximately 50 hours
per week.
Cooper alleges he suffered a herniated disc approximately 15 years before
joining Beelman and continued to have flare-ups of acute back pain intermittently
over the years. The flare-ups would occur suddenly and unpredictably. Beelman
disputes Cooper’s assertion and claims no objective medical evidence supports it.
The records show mild degenerative disc disease at the L5-S1 level.
On February 17, 2015, Cooper reinjured his back while at work. Cooper
reported that he had increased pain when leaning forward and his pain increased
2
when he was driving his truck at work due to bouncing that would occur. At the
emergency room, Cooper was diagnosed as having low back pain and back muscle
spasms. He was prescribed Flexeril, Ibuprofen and home exercises. On February
19, 2015, the doctor wrote a note stating: “Please stay home from work tomorrow to
rest back.” Cooper was discharged from the hospital on February 19, 2015.
Cooper was absent from work due to his back injury from February 23 through
February 26, 2015 and was treated for his back pain. Beelman disputes that Butler
knew Cooper had injured his back in February of 2015, except that he was aware
Cooper had those days off and said it was because of his back. Cooper returned to
work without pain or restrictions.
Cooper testified he aggravated his back in May of 2016. He did not report the
injury to Beelman and did not seek medical treatment. Cooper testified that he called
Mick Butler and told him he was going to take a few days off because his back was
hurting from shoveling ash.
Cooper did not report any specific incident to
Beelman’s safety department. He testified that he did not feel like it was that bad.
Cooper did not work from September 4, 2016 through September 6, 2016, in
order to have a colonoscopy. He returned to work on September 7, 2016. On that
same day, Cooper was hauling a load of pumpkins from Southern Illinois to Morton,
Illinois. Cooper alleges that, during the drive, he drove his truck over bumpy roads,
which resulted in him experiencing back pain that evening. Beelman disputes the
3
allegation on the basis that Mick Butler asked if he had injured his back and Cooper
responded, “not that he was aware of.”
On the morning of September 8, 2016, Cooper called Butler to inform him
that his back was bothering him and he would not be coming to work. Cooper did
not tell Butler how long he would be out. Butler informed Cooper that he needed to
bring a doctor’s excuse stating he could come to work without any restrictions in
order to return to work. Beelman contends the notice Cooper provided that he was
not coming into work did not comply with Beelman’s call-in procedures. Cooper
disputes the allegation, alleging the record fails to establish what time he called off
work on September 8, 2016, or what time he was scheduled to work that day.
The same day, Cooper went to the Memorial Hospital Emergency Room due
to what he says was severe back pain. Beelman claims that the records do not
support his assertion that he went for “severe back pain.” The hospital records state:
The patient presents with back pain and had severe back pain 20 years
ago that resolved after steroid injections. He had severe back pain 2
years ago that also resolved. The back pain started yesterday while
driving a semi truck over bumpy country roads. Feels similar, no new
injury.
The doctor reported the following “Impression: low back pain.” Cooper was
discharged to home with his condition improved.
Cooper was given prescriptions for medications which included hydrocodoneacetaminophen, hydromorphone and Flexeril, which he was instructed to take from
4
September 8, 2016 through September 11, 2016. He was also prescribed prednisone
which he was instructed to take from September 8, 2016 through September 15,
2016. Cooper was also prescribed an injection of Dilaudid. The prescription orders
given to Cooper for the hydrocodone-acetaminophen stated, “DO NOT OPERATE
MACHINERY OR DRIVE.”
Cooper took the medications as prescribed. When discharged, Cooper was
instructed to follow up with a physician if his symptoms continued or worsened. On
September 12, 2016, Cooper saw his physician, Dr. Akshra Verma, at SIU School
of Medicine as a follow up to his hospital visit and for further treatment of his back
pain. Cooper claims that he had continued to experience back pain since his visit to
the emergency room despite taking his prescribed medications.
Dr. Verma
diagnosed the Plaintiff as having lumbar back pain.
Cooper alleges that, from September 8, 2016 through September 14, 2016, his
back pain made it nearly impossible for him to drive. He struggled to get out of bed
without help, had trouble bending over and had difficulty getting dressed. Beelman
disputes these allegations and claims that Cooper merely told Butler his back was
bothering him.
Moreover, the medical records do not reflect or support this
statement.
Dr. Verma prescribed Flexeril and Norco to take for his back pain as needed.
Cooper took the medications as prescribed. He was still taking the prednisone that
5
was prescribed at the emergency room. Dr. Verma also gave Cooper a note stating
only that he could return to full duties at work as of September 15, 2016. Beelman
claims the letter lacks details and neither supports the contention that Cooper had a
serious medical condition nor does it provide notice to Beelman that implicated the
FMLA. The letter does not state the reason why Cooper should be off work, the date
his problems began and what treatment, if any, Cooper was provided.
Cooper gave Butler his doctor’s note. Butler did not ask Cooper for any
additional information. Cooper returned to work on September 15, 2016. He did
not experience any additional back flare-ups between September 15, 2016 and
October 5, 2016.
On September 28, 2016 Cooper’s dispatcher, Pat Sadler, asked for volunteers
to work over the weekend of October 1-2, 2016. Cooper said he could not work
because he would be out of town.
Cooper was absent from work on October 3 and 4, 2016, because he had the
flu. On October 3, 2016, Cooper emailed Sadler at 9:11 a.m. to inform her he would
not make it in because he was sick. Sadler responded by telling Cooper to come
back with a doctor’s note before returning to work. Cooper replied, “im not spending
money to go to the doctors. i just got some medicine from the store.” Cooper refused
to provide a doctor’s note.
6
On October 4, 2016, Cooper did not inform Sadler that he would not be at
work due to illness. If Cooper contacted Butler to tell him he was not coming in on
October 4, 2016, he would have given this notice around 7:00 a.m. During this time
frame, Cooper generally began his workday at 3:00 or 3:30 a.m.
(B)
On October 5, 2016, when Cooper reported for work, Butler terminated him
for absenteeism. Beelman claims absenteeism was not the only reason for Cooper’s
termination. Beelman alleges Cooper failed to follow company policy for reporting
time off in a timely matter on two occasions and for not providing a doctor’s excuse
slip for the absence on September 8, 2016, after waiting four days to go to the doctor
a second time on September 12. Moreover, Cooper was terminated for being
insubordinate in refusing to provide a doctor’s note for his alleged absence due to
the flu on October 3-4, 2016, per company policy.
According to an email dated October 3, 2016, Butler said Cooper’s absences
had made it harder for Cooper’s dispatcher to get her work done. Butler asked Scot
Walker, Beelman’s safety director, whether he thought Cooper needed to bring a
doctor’s note with him when he returned from his alleged flu on October 3 and 4,
2016.
The Employee Handbook sets forth the Call-In Procedure and Absenteeism
Policy, to wit:
7
If you are unable to work because of sickness or injury, you must call
in and inform your dispatch or terminal manager at least three (3) hours
prior to your scheduled departure time. You must give reason for
your absence at this time.
If you are going to be late for work, you must contact your dispatch or
terminal manager as soon as possible and inform them of why you will
be late. The dispatcher or terminal manager will take the necessary
measures to handle the situation at that time.
As a driver, your presence on time is vitally important. Excessive and/or
unexplained absences, tardiness, or failure to follow the call-in procedure
will result in disciplinary action and could jeopardize your future with the
company.
Repetitive or habitual absenteeism or tardiness will not be tolerated and
will subject the employee to disciplinary action.
Any absence over one consecutive working day will require a doctor’s
note. The note must be given to your dispatcher or terminal manager.
This note should detail the reason as to why you have been off work.
Any employee who fails to call-in within 24 hours will be considered
AWOL. Anyone who reaches AWOL status will be suspended without
pay pending termination to investigate the reasons why he/she did not
call in.
The Company Standards for Beelman in the Handbook state:
Disciplinary action, ranging from counseling to discharge, depending
on the seriousness of the offense, will be taken for violations of the
following company rules:
*****
*Repetitive or habitual absenteeism and lateness. An employee who is
unable to report to work must inform his/her dispatch, supervisor, or
terminal manager. Notice must be given a minimum of three hours
prior to scheduled departure time.”
*****
*Failing to obey instructions of authorized personnel.
*****
8
*Ignoring or violating safety rules or common sense safety practices.
The handbook also contains a FMLA policy, which reads in pertinent part:
Except where leave is not foreseeable, all employees requesting FMLA
leave must submit the request in writing to their terminal manager. The
Vice President of Operations of the Company must approve all leaves.
When an employee plans to take FMLA leave, the employee must give the
Company thirty (30) days’ notice. If it is not possible to give 30 days’
notice, the employee must give as much notice as is practicable. An
employee undergoing planned medical treatment is required to make a
reasonable effort to schedule the treatment to minimize disruptions to
the Company’s operations.
In the event the leave is not foreseeable, notice must be given to the
employee’s manager or to the Vice President of Operations, within
forty-eight (48) hours of the time when the employee determines that a
request for leave was made.
Employees requesting leave for his/her own serious health condition or
the serious health condition of a family member will be required to provide
certification of the need for the leave before the request will be approved.
When an employee has taken FMLA leave for his/her own serious health
condition, a doctor’s release authorizing the return to work must be
provided before the employee will be permitted to return to work.
The Handbook further states, “Employees on FMLA leave must use all of their
unused vacation and any other accrued paid time off before beginning unpaid
leave.”
Mick Butler alone decided to terminate Cooper. Butler never discussed the
FMLA with Cooper. He did not refer Cooper to Beelman’s corporate office so he
could apply for FMLA leave. Butler never gave Cooper any documents, including
application forms, regarding the FMLA.
9
Cooper alleges that, other than the Employee Handbook distributed to him at
orientation, no other Beelman representative gave Cooper any documents regarding
the FMLA. Beelman disputes the allegation and states that it also displayed an
FMLA poster in the driver’s break room. Cooper never spoke to anyone at Beelman
regarding FMLA leave.
Approximately seven months after Cooper’s termination, on May 9, 2017, he
returned to SIU because of a flare-up with his back pain due to his degenerative disc
disease of L5-S1. The physician prescribed Flexeril, Norco and Gabapentin for his
back pain.
Cooper alleges that he was terminated because of absences which qualified
for FMLA protection, thereby interfering with and violating his rights under the
FMLA. Cooper alleges summary judgment is warranted on that basis.
Beelman contends Cooper did not have a “serious health condition” under the
FMLA and was not denied benefits to which he was entitled. Beelman asserts it is
entitled to summary judgment for those reasons.
II. DISCUSSION
A. Legal standard
Summary judgment is appropriate if the motion is properly supported and
“there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” See Fed. R. Civ. P. 56(a). The Court construes all
10
inferences in favor of the non-movant. See Siliven v. Indiana Dept. of Child
Services, 635 F.3d 921, 925 (7th Cir. 2011). When cross-motions for summary
judgment are under consideration, a court construes “all inferences in favor of the
party against whom the motion under consideration is made.” Kort v. Diversified
Collection Services, Inc., 394 F.3d 530, 536 (7th Cir. 2005). To create a genuine
factual dispute, however, any such inference must be based on something more than
“speculation or conjecture.” See Harper v. C.R. England, Inc., 687 F.3d 297, 306
(7th Cir. 2012) (citation omitted). Because summary judgment “is the put up or
shut up moment in a lawsuit,” a “hunch” about the opposing party’s motives is not
enough to withstand a properly supported motion. See Springer v. Durflinger, 518
F.3d 479, 484 (7th Cir. 2008). Ultimately, there must be enough evidence in favor
of the non-movant to permit a jury to return a verdict in its favor. See id.
B. Defendant Beelman’s motion
(1)
Beelman seeks the entry of summary judgment, claiming that: (1) Cooper did
not have a qualifying “serious health condition” under the FMLA; (2) he did not
provide sufficient notice to Beelman as required under its policy; and (3) Beelman
did not deny Cooper FMLA benefits to which he was entitled because Cooper had
not used his unused vacation days pursuant to Beelman’s policy, and Beelman would
have terminated Cooper regardless of the application of any FMLA related leave.
11
Under the FMLA, an employer must not “interfere with, restrain, or deny the
exercise of or the attempt to exercise” an employee’s FMLA rights. 29 U.S.C. §
2615(a)(1). “An employee is entitled to leave under the FMLA if (1) []he is afflicted
with a serious health condition, and (2) that condition renders [him] unable to
perform the functions of [his] job.” Hansen v. Fincantieri Marine Group, LLC, 763
F.3d 832, 836 (7th Cir. 2014) (internal quotation marks and citation omitted). A
“serious health condition” is defined in part as “an illness, . . . impairment, or . . .
mental condition that involves . . . continuing treatment by a health care provider,”
29 U.S.C. § 2611(11)(B), and a “period of incapacity of more than three consecutive,
full calendar days.” 29 C.F.R. § 825.115(a). “Incapacity” means the “inability to
work . . . or perform other regular daily activities due to the serious health condition.”
29 C.F.R. § 825.113(b). “Because ‘incapacity’ means the employee is unable to
work ‘due to the serious health condition,’ a finding of incapacitation goes toward
the second prong of our analysis as to when an employee is entitled to leave.”
Hansen, 763 F.3d at 836. Given that an employee with a chronic health condition
might not always visit a medical provider during a flare-up of that condition,
incapacity can be established by lay testimony. See Hansen, 763 F.3d at 839.
Continuing treatment can include “a course of prescription medication.” 29 C.F.R.
§ 825.113(c).
12
Cooper testified that there were occasions at work upon finishing his shift that
he could barely get out of his truck or into his car. In his declaration, he states that
from September 8, 2016 through September 14, 2016, he had difficulty lying in bed
because of back pain and at times needed help getting out of bed. Cooper further
stated that he struggled to bend over and getting dressed was also painful.
An employee may be incapacitated not only due to a serious health condition,
but also due to the treatment of the condition. See 29 C.F.R. § 825.113(b). The
record establishes that Cooper was prescribed hydrocodone-acetaminophen (Norco)
on September 8, 2016, to be taken over a 3-day period. Therefore, his prescription
would have run out on September 11, 2018. The instructions for Norco stated,
“MAY CAUSE DROWSINESS, DO NOT OPERATE MACHINERY OR DRIVE.”
On September 12, 2016, Dr. Verma again prescribed Norco and gave Cooper a note
which stated, “Mr. Cooper may return to full duties at work as of 9/15/2016.”
Because Cooper worked as a truck driver, it would not have been advisable
for him to report to work while he was taking that prescription over the course of
seven days. Given that circumstance and based on Cooper’s statements regarding
his daily activities, the Court concludes there is at least a question of fact regarding
whether he was incapacitated for three or more days and, based on his course of
prescription medication, whether Cooper suffered from a serious health condition
because of that continuing treatment.
13
(2)
“An employee giving notice of the need for FMLA leave does not need to
expressly assert rights under the Act or even mention the FMLA to meet his or her
obligation to provide notice, though the employee would need to state a qualifying
reason for the needed leave and otherwise satisfy the notice requirements . . .
depending on whether the need for leave is foreseeable or unforeseeable.” 29 C.F.R.
§ 825.301(b). “An employee giving notice of the need for FMLA leave must explain
the reasons for the needed leave so as to allow the employer to determine whether
the leave qualifies under the Act. If the employee fails to explain the reasons, leave
may be denied.” Id. “[T]he notice inquiry is a fact-rich question . . . perhaps best
resolved by the trier of fact.” Pagel v. TIN Inc., 695 F.3d 622, 628 (7th Cir. 2012)
(internal quotation marks omitted).
Beelman notes that Cooper called Butler on September 8, 2016 and said he
was not coming to work because his back was not bothering him. He did not say he
could not perform the functions of his job duties. Moreover, Cooper did not say how
long he would be off work and did not indicate it would be more than three days.
Cooper did not say he was under a doctor’s continuing care or that he was supposed
to receive follow-up care. He did not mention that he had been prescribed a round
of medication.
14
While Cooper could have provided more detail, the Court notes that Butler
was aware Cooper had injured his back on at least two prior occasions. Cooper
provided Butler with a note stating Cooper could return to work after a 7-day
absence. Beelman could have requested that Cooper provide additional information
if it believed more was needed. Although it appears that on September 8, 2016,
Cooper may not have complied with Beelman’s call-in policy regarding the 3-hour
notice period for sickness or injury, the Court cannot make that determination
because the record does not specify what time Cooper called Butler or Cooper’s
specific departure time. Accordingly, the Court concludes there is a genuine issue
of material fact regarding whether the notice was sufficient.
(3)
A plaintiff must also establish that he was denied FMLA benefits to which he
was entitled. The Beelman Handbook states: “Employees on FMLA leave must use
all of their unused vacation and any other accrued paid time off before beginning
unpaid leave.” An employer may require an employee to substitute any accrued paid
vacation leave, personal leave or sick leave for leave provided under the FMLA. See
29 U.S.C. § 2612(d)(2)(A).
Even assuming that Cooper was required to exhaust his paid time off in order
to receive the protections of the FMLA, there appears to be a factual dispute
regarding whether Cooper had exhausted his accrued time off prior to his leave
15
beginning on September 8, 2016. Beelman contends that Cooper did not exhaust his
paid leave under the Beelman policy.
The Beelman handbook refers only to paid vacation time, which accrues on
the anniversary of the employee’s start date. Cooper started in March 2014. The
handbook provides that after one year of employment, an employee receives one
week of vacation. It further provides that after three years of employment, an
employment receives two weeks of vacation. Vacation accrues as of the employee’s
anniversary date and does not roll over from year to year. The handbook does not
provide for or define whether any paid time off other than vacation accrues to
employees. Butler testified that Cooper received one week of “paid time off” after
one year. According to the Driver Report, from March 14, 2016 through September
7, 2016, Cooper was absent 5 times, for a total of 7 days. Therefore, if Cooper
received one week total of paid time off, then he had exhausted it prior to his leave
on September 8, 2016. It appears that Cooper would have been entitled to one week
paid time off because he had not yet been employed for three years at Beelman.
However, Butler testified that Cooper would have had two weeks of vacation
after two years of employment. If this were the case, then Cooper would not have
exhausted his accrued time off on September 8, 2016.
16
Accordingly, the Court finds there is a factual dispute regarding how much
paid time off Cooper had accrued prior to September 8, 2016, and whether he had
exhausted it.
The reason given for Cooper’s termination was “repeated absences in
violation of Beelman’s attendance policy.” To the extent Beelman now claims that
Cooper was terminated for reasons other than excessive absences, there is at least a
genuine issue of material fact regarding the reason for termination. Accordingly,
there is a factual dispute regarding whether Cooper was terminated for his
absenteeism and, thus, whether Beelman denied him benefits and interfered with his
rights under the FMLA.
Based on the foregoing, there are genuine issues of material fact which
preclude the entry of summary judgment in favor of Beelman.
C. Plaintiff Cooper’s motion
Plaintiff Mark Cooper alleges the undisputed facts show that Beelman
deprived him of a substantive right under the FMLA. Cooper asserts the facts
establish: (1) he was eligible for the FMLA protections; (2) Beelman was covered
by the FMLA; (3) he was entitled to leave under the FMLA for his absence from
September 8 through 14, 2006; (4) he provided sufficient notice of his need to take
leave to his employer; and (5) Beelman failed to designate his leave as FMLA-
17
protected and, instead, terminated him because of his medical leave absences.
Cooper claims he is entitled to summary judgment as a result.
Beelman claims Cooper’s motion should be denied for the following reasons:
(1) Cooper has failed to show by uncontroverted material facts that he had a serious
health condition under the FMLA either as a chronic condition or under the
continuing treatment prongs of 29 C.F.R. § 825.115, in that there is no medical
evidence that his low back pain was a chronic condition, that he was unable to
perform the functions of his job or that he had continuing treatment for more than
three consecutive days; (2) Cooper has failed to demonstrate that he provided
Beelman with enough information to establish probable cause that Cooper may have
entitlement to FMLA leave; and (3) Cooper failed to show that Beelman denied him
benefits owed under the FMLA because Beelman did not and would not have needed
to rely on any allegedly FMLA-protected leave when it made its decision to
terminate Cooper.
The Court earlier determined that there were genuine factual disputes
regarding whether Cooper was incapacitated for three or more days and whether he
suffered from a serious health condition based on his course of treatment. Moreover,
the Court found there was a question of fact regarding whether Cooper provided
Beelman with sufficient notice of his need for FMLA leave. The Court also found
there was a genuine issue of material fact regarding whether Cooper had exhausted
18
his accrued leave and whether Beelman interfered with Cooper’s rights under the
FMLA.
Because of these factual disputes, the Court will deny the Plaintiff’s summary
judgment motion.
Ergo, the Defendant’s Motion for Summary Judgment [d/e 18] is DENIED.
The Plaintiff’s Motion for Summary Judgment [d/e 19] is DENIED.
ENTER: January 3, 2020
FOR THE COURT:
/s/ Richard Mills
Richard Mills
United States District Judge
19
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?