Becknell v. University of Kentucky
Filing
57
MEMORANDUM OPINION & ORDER: (1) GRANTING IN PART & DENYING IN PART pla's 33 MOTION for Summary Judgment; granting on her FMLA interference claim arising from the corrective action memo for her failure to comply w/College of Dentistry noti ce policy; otherwise, pla's motion is denied; (2) GRANTING IN PART & DENYING IN PART dft's 34 MOTION for Summary Judgment; granting on FMLA interference claims arising from the refusal to allow Becknell to use paid leave, the request for Becknell's marriage license & the request for Becknell's training list; otherwise dft's motion is denied. Signed by Judge Joseph M. Hood on 4/22/19.(KJR)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
LEE ANNA BECKNELL,
Plaintiff,
v.
UNIVERSITY OF KENTUCKY,
Defendant.
Plaintiff
Lee
Anna
)
)
)
)
)
)
)
)
)
)
)
Case No.
5:17-cv-490-JMH-MAS
MEMORANDUM OPINION
AND ORDER
***
Becknell,
a
former
employee
of
the
University of Kentucky College of Dentistry, alleges that the
University violated the Family and Medical Leave Act (“FMLA”), 29
U.S.C. §§ 2601-2654, when it engaged in certain actions and
eventually terminated Becknell’s employment after she was granted
FMLA
leave.
Becknell
alleges
both
FMLA
interference
and
retaliation.
In response, the University argues that Becknell’s claims are
barred based on sovereign immunity and that, in any event, it is
also entitled to summary judgment on the substantive claims as a
matter of law.
The parties have filed cross motions for summary judgment.
Having considered those motions, Becknell’s motion for summary
judgment [DE 33] is GRANTED IN PART and DENIED IN PART. Similarly,
1
the University’s motion for summary judgment [DE 34] is GRANTED IN
PART and DENIED IN PART.
First, Becknell’s claims are not barred based on sovereign
immunity because, in Nev. Dep’t of Human Resources v. Hibbs, 538
U.S. 721 (2003), the United States Supreme Court held that Congress
expressly abrogated sovereign immunity under the family-leave
provision of the FMLA.
Second, Becknell is entitled to summary judgment on her claim
for FMLA interference arising from the University’s decision to
discipline Becknell for failing to comply with the College od
Dentistry’s
twenty-four-hour
notice
policy
for
temporary
disability leave. Otherwise, the University is entitled to summary
judgment pertaining to FMLA interference for refusal to allow
Becknell to use paid leave and requests for Becknell’s marriage
license and training list.
Third, summary judgment for both parties is denied on the
FMLA retaliation claim because genuine disputes of material fact
exist pertaining to whether the University had a legitimate, nondiscriminatory
reason
for
terminating
Becknell’s
employment.
Fourth, and finally, summary judgment on the issue of damages
is premature at this point and is denied.
I.
Procedural and Factual Background
Plaintiff Lee Anna Becknell was employed at the University of
Kentucky College of Dentistry.
Most recently, Becknell served in
2
the position of Account Clerk 3.
[DE 34-1 at 4-5, Pg ID 254-55].
In this role, Becknell was responsible for accounts receivable
reports (“ARRs”) and explanations of benefits (“EOBs”) for patient
accounts.
[Id.].
In the evening on Wednesday, March 8, 2017, Becknell’s husband
was hospitalized due to an apparent diabetic coma.
ID 257; DE 33-1 at 5, Pg ID 122].
[Id. at 7, Pg
Becknell contacted her direct
supervisor, Adrian Thompson, that same night to notify him of her
husband’s medical emergency. [DE 33-3 at 13, Pg ID 157]. Becknell
was
absent
from
work
on
the
subsequent
following her husband’s hospitalization.
Thursday
and
Friday
[Id. at 14, Pg ID 158].
Then, Becknell submitted an initial request for FMLA leave on
Monday, March 13, 2017.
[DE 34-19 at 1, DE 34-11 at 8, Pg ID 329].
Becknell requested FMLA leave from March 9, 2017, until April 3,
2017.1
[DE 34-19 at 1-5, Pg ID 382-86].
On March 15, 2017, while Becknell’s FMLA request was pending,
a representative from the University of Kentucky Medical Center
contacted Becknell to notify her that her husband would be released
1
The FMLA leave request form contains two different start dates
for the requested FMLA leave.
It is unclear if these are two
separate forms or the same forms with conflicting dates. The first
page, which was apparently completed by Becknell, requests FMLA
leave beginning on March 9, 2017. [See DE 34-11 at 8, Pg ID 329;
DE 34-19 at 1, Pg ID 382]. The second page, which was apparently
completed by a physician or physician’s employee, requests FMLA
leave beginning on March 10, 2017. [See DE 34-11 at 8, Pg ID 329;
DE 34-19 at 2, Pg ID 383]. Still, it is undisputed that Becknell’s
husband was hospitalized in the evening on March 8, 2017.
3
later that day and that she must be present to receive care
instructions before he could be discharged.
ID 122-23].
[DE 33-1 at 5-6, Pg
Becknell submitted an absence request that morning so
that she could be at the hospital when her husband was discharged.
[DE 33-13 at 1, Pg ID 212].
Later,
initially
on
March
denied
by
22,
the
2017,
Becknell’s
University
of
FMLA
request
was
Kentucky
because
the
University claimed their records did not show that Becknell was
currently married.
[DE 33-14 at 1, Pg ID 213].
Additionally,
that same day, Thompson issued a corrective action memorandum due
to Becknell’s failure to provide twenty-four hours’ advance notice
when she left work early on March 15, 2017, the day of her husband’s
discharge from the hospital. [DE 33-17 at 1, Pg ID 218]. According
to the memorandum, the College of Dentistry Attendance and Time
Reporting Policy requires that scheduled temporary disability
leave “be approved by the supervisor no later than 24 hours in
advance.”
[Id. (emphasis omitted)].
Subsequently, on March 24, 2017, Becknell’s FMLA leave was
approved by the University, with a retroactive effective date for
FMLA leave beginning on March 8, 2017, and extending until April
3, 2017.2
[DE 33-19 at 1, Pg ID 221].
Still, retroactive
2
Initially, Becknell’s FMLA leave was approved beginning on March
13, 2017. [DE 33-16 at 1, Pg ID 217]. But the University amended
the FMLA leave to begin on March 8, 2017. [DE 33-19 at 1, Pg ID
221].
4
application of Becknell’s FMLA leave did not restore her pay for
the afternoon of March 15, 2017, because Becknell “had violated
the University’s time and attendance policy.”
[DE 34-1 at 10, Pg
ID 260; see also DE 34-8 at 4, Pg ID 315; DE 34-21 at 7, Pg ID
394].
On April 4, 2017, the day Becknell returned from her approved
FMLA leave, the University provided a due process statement to
Becknell.
[DE 33-20 at 1-2, Pg ID 222-23].
The due process
statement inquired about two work related items: (1) EOBs from
December 2016 that the University claimed had not been completed,
even
though
Becknell
allegedly
indicated
that
they
had
been
completed; and (2) EOBs where the transaction note date and the
date of entry into the University’s axiUm database did not match.
[Id.].
Becknell provided handwritten responses to each of the
inquiries.
[Id.].
Ultimately, the University of Kentucky terminated Becknell’s
employment on April 12, 2017.
[DE 33-21 at 1, Pg ID 224].
The
employee separation sheet explained that Becknell was “terminated
due to falsification of other records.”
[Id.].
Of course, the
parties dispute the actual reason that Becknell was terminated.
According to the University, Becknell was terminated because
she changed the date field in the transaction notes in the axiUm
database system, entering dates that did not represent the actual
date that she entered the note into the patient’s file.
5
[Id.; see
also DE 34-1 at 10-13, Pg Id 260-63].
The University asserts that
Adrian Thompson, Becknell’s supervisor, discovered this practice
when working on Becknell’s accounts while she was on FMLA leave.
[DE 34-1 at 10, Pg ID 260].
Additionally, the University states
that an audit of Becknell’s records, initiated after the University
received her responses on the due process statement, found that
several other accounts had been falsified. [Id. at 12, Pg ID 262].
The University argues that Becknell’s practice of changing the
transaction date constitutes falsification of University records
in violation of University Policy # 12.0.
[DE 33-21 at 2, Pg ID
225].
Alternatively,
Becknell
because she took FMLA leave.
argues
that
she
was
terminated
Becknell claims that there was no
policy preventing her practice of changing the transaction dates
and that her supervisors were aware of her method for inputting
patient data.
[DE 33-1 at 9, Pg ID 126].
Furthermore, Becknell
argues that she was singled out while on FMLA leave because the
College of Dentistry failed to investigate whether any other
accounts receivable counselors had engaged in the same method of
data entry.
As such, Becknell asserts she was fired based on her
decision to take FMLA leave.
As a result, Becknell initiated the present lawsuit in Fayette
Circuit Court claiming FMLA retaliation, FMLA interference, and a
claim for unpaid wages pursuant to K.R.S. § 337.010(1)(c).
6
The
action was removed to this Court pursuant to 28 U.S.C. § 1331,
arising under jurisdiction, on December 15, 2017.
[DE 1].
After
discovery, the parties filed cross motions for summary judgment.
[DE 33; DE 34].
Those motions have been fully briefed and are
ripe for review.
[See DE 35; DE 37; DE 38; DE 41].
II.
Standard of Review
Summary judgment is appropriate only when no genuine dispute
exists as to any material fact and the movant is entitled to
judgment as a matter of law.
Fed. R. Civ. P. 56(a).
A material
fact is one “that might affect the outcome of the suit under
governing law.”
248 (1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
The moving party has the burden to show that “there
is an absence of evidence to support the nonmoving party’s case.”
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
“A dispute
about a material fact is genuine if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”
Smith v. Perkins Bd. of Educ., 708 F.3d 821, 825 (6th Cir. 2013)
(internal quotations omitted).
The Court construes the facts in
the light most favorable to the nonmoving party and draws all
reasonable
inferences
in
the
non-moving
party’s
favor.
See
Anderson, 477 U.S. at 248; Hamilton Cty. Educ. Ass'n v. Hamilton
Cty. Bd. of Educ., 822 F.3d 831, 835 (6th Cir. 2016).
7
III.
Analysis
In the present motion for summary judgment, Becknell argues
that she is entitled to summary judgment on her FMLA interference
and retaliation claims. Becknell also asserts that she is entitled
to summary judgment on Defendant’s mitigation of damages defense
and that she is entitled to damages under the FMLA as a matter of
law.
Alternatively, the University of Kentucky asserts that it is
entitled to summary judgment based on all of Becknell’s claims,
based on sovereign immunity and because the University had a
legitimate, non-discriminatory reason for terminating Becknell’s
employment.
These arguments are addressed in turn below.
A.
Sovereign Immunity
Initially, the University claims that Becknell’s claims for
FMLA interference and FMLA retaliation are barred by sovereign
immunity.
But the University’s argument amounts largely to an
invitation for this Court to disregard over fifteen-years of
binding Supreme Court precedent.
In so doing, the University asks
this Court to violate the maxim that there are old judges and bold
judges, but there are no old, bold judges.
The Eleventh Amendment to the United States Constitution bars
suits by private litigants in federal courts against states and
state
agencies,
Kentucky.
including
agencies
the
University
of
U.S. Const. amend. XI; Alabama v. Pugh, 438 U.S. 781,
8
like
781-82 (1978); Hutsell v. Sayre, 5 F.3d 996, 999-1003 (6th Cir.
1993) (discussing sovereign immunity and finding that a suit
against the University of Kentucky Board of Trustees and University
employees in their official capacities was a suit against the state
for Eleventh Amendment purposes).
Still, as the University concedes, sovereign immunity under
the Eleventh Amendment is not absolute and is subject to certain
limited exceptions.
Relevant here, sovereign immunity may be
abrogated by Congress with respect to rights protected by the
Fourteenth Amendment.
Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89, 99 (1984) (citing Fitzpatrick v. Bitker, 427 U.S. 445
(1976)).
Still, the United States Supreme Court has “required an
unequivocal expression of congressional intent to ‘overturn the
constitutionally guaranteed immunity of the several States.’”
Id.
(quoting Quern v. Jordan, 440 U.S. 332, 342 (1979) (holding that
42 U.S.C. § 1983 does not override States' Eleventh Amendment
immunity)).
In Nev. Dep’t of Human Res. v. Hibbs, the United States
Supreme Court held that Congress clearly explicated an intent to
abrogate the sovereign immunity of states for the purposes of the
family-care portion of the FMLA and that, in doing so, Congress
acted within its authority under the enforcement section of the
Fourteenth
Amendment.
538
U.S.
721,
726-40
(2003).
This
abrogation of sovereign immunity by Congress for the family-leave
9
provision of the FMLA has been recognized by the Sixth Circuit and
other courts.
See, e.g., Diaz v. Michigan Dep’t of Corr., 703
F.3d 956, 960-61 (6th Cir. 2013); Touvell v. Ohio Dep’t of Mental
Retardation & Developmental Disabilities, 422 F.3d 392, 394, 39798 (6th Cir. 2005) (discussing Hibbs and stating that the Supreme
Court
held
“that
the
‘family-care’
provision
of
the
Act,
§
2612(A)(1)(C), which entitles employees to take leave to care for
seriously ill family members, abrogated state immunity.”); Algie
v. Northern Ky. Univ., No. 08-cv-109-DLB-JGW, 2013 WL 624396, at
*5 (E.D. Ky. Feb. 20, 2013).
Here, it is undisputed that Becknell requested FMLA leave
under the family-care provision of 29 U.S.C. § 2612(a)(1)(C). Even
so, notwithstanding the status of Hibbs as binding precedent, the
University claims it is entitled to sovereign immunity in two ways.
First, the University invites this Court to adopt the holding
of the three dissenting justices in Hibbs.
See Hibbs, 538 U.S. at
744-59 (Kennedy, J., joined by Scalia & Thomas, JJ., dissenting).
Moreover, the University also points to concurrences in Coleman v.
Ct. of App. of Md. to support its contention that Hibbs was
incorrectly decided.
See 566 U.S. 30, 44-45 (2012) (Scalia, J.,
& Thomas, J., concurring).
But, in our common-law legal tradition, courts decide the
applicable law by interpreting statutes and applying precedent
based on the principle of stare decisis.
10
“Stare decisis ‘promotes
the evenhanded, predictable, and consistent development of legal
principles,
fosters
reliance
on
judicial
decisions,
and
contributes to the actual and perceived integrity of the judicial
process.’”
Pearson v. Callahan, 555 U.S. 223, 233 (2009) (quoting
Payne v. Tennessee, 501 U.S. 808, 827 (1991)).
Thus, while
“[s]tare
courts
decisis
is
not
an
inexorable
command,”
must
“approach the reconsideration of [their] decisions . . . with the
utmost caution.”
State Oil Co. v. Khan, 522 U.S. 3, 20 (1997)
(internal quotation marks omitted).
In its motion for summary judgment, the University’s argument
largely amounts to regurgitation of dissents and concurrences from
previous
cases.
[See
DE
34-1
at
17-19,
Pg
ID
267-69].
Additionally, and more importantly, the University has failed to
develop
a
compelling
argument
the
departure from the holding in Hibbs.
would
justify
considering
For instance, the University
has not argued that abandoning the precedent from Hibbs “would not
upset expectations.”
See Pearson, 555 U.S. at 233.
To the
contrary, holding that Hibbs was incorrectly decided would uproot
nearly fifteen years of precedent, constituting a major shift in
the applicable law.
its
reluctance
interpretation.”
to
Furthermore, the Supreme Court “has expressed
overrule
decisions
involving
statutory
Khan, 522 U.S. at 20 (citing Ill. Brick Co. v.
Illinois, 431 U.S. 720, 736 (1977)).
In Hibbs, the holding rests
on the Supreme Court’s interpretation of the FMLA statute and the
11
power of Congress to abrogate the sovereign immunity of the states.
Finally, the University has not argued that experience has pointed
to precedential shortcomings of the Hibbs decision.
the
University
justification
has
for
not
this
provided
Court
to
a
As a result,
sufficiently
consider
compelling
departing
from
the
precedent in Hibbs.
As a result, absent an extremely compelling justification to
consider departing from Hibbs, which is lacking here, this Court
is bound by the holding of the United States Supreme Court and
refuses to consider the propriety of the holding in Hibbs.
If the
University genuinely believes that there is a compelling reason to
depart from the rule of law announced in Hibbs, that argument must
be raised before the Supreme Court.
Second, the University argues that it is entitled to sovereign
immunity
on
Becknell’s
FMLA
retaliation
claim
because
the
University argues that Hibbs is limited to FMLA interference claims
under 29 U.S.C. § 2612(a)(1).
But neither the statutory language
in § 2612(a)(1) nor the holding in Hibbs is as limited as the
University asserts.
The relevant statutory provision of the FMLA states,
[A]n eligible employee shall be entitled to a total of
12 workweeks of leave during any 12-month period for one
or more of the following:
. . .
12
(C) In order to care for the spouse, or a son,
daughter, or parent, of the employee, if such spouse,
son, daughter, or parent has a serious health condition.
29 U.S.C. § 2612(a)(1)(c).
statutory
provision
Nothing in the plain language of this
pertaining
to
family-care
distinguishes
between FMLA interference and retaliation.
Additionally, the Supreme Court’s holding in Hibbs is not
limited to situations involving FMLA interference.
The holding of
the Supreme Court in Hibbs is “that employees of the State of
Nevada may recover money damages in the event of the State's
failure to comply with the family-care provision of the Act.”
Hibbs, 538 U.S. at 725.
The Court did not limit its holding to
interference with the family-care provision of the FMLA as opposed
to retaliation or discrimination under the FMLA.
Instead, the
Supreme Court held that Congress abrogated sovereign immunity in
the event of a state’s failure to comply with the family-care
provision of the FMLA.
The Sixth Circuit has acknowledged a similar understanding of
the holding in Hibbs.
In Diaz, the court explained that “[i]n
Nevada Department of Human Resources v. Hibbs, the Supreme Court
held that a state employee may recover money damages in federal
court
for
a
state's
failure
to
comply
with
provision of the Family Medical Leave Act.”
(emphasis added).
13
the
family-care
703 F.3d at 958
Finally, the University has not cited any authority, nor is
this Court aware of any binding authority, that interprets Hibbs
to be limited to the FMLA interference context.
As a result, the
University’s argument for sovereign immunity on Becknell’s FMLA
retaliation claim is unavailing.
In sum, Hibbs constitutes binding precedent that stands for
the proposition that Congress expressly abrogated the sovereign
immunity of the states for failure to comply with the FMLA familycare provision.
As such, the University’s claim for summary
judgment based on sovereign immunity under the Eleventh Amendment
must be denied.
B.
FMLA Interference
Both parties argue that they are entitled to summary judgment
on the FMLA interference claim in various ways.
The main point of
contention
is
between
the
parties,
however,
whether
the
University’s decision to discipline Becknell and refusal to pay
Becknell for violation of the College of Dentistry’s Attendance
and Time Reporting Policy constitutes FMLA interference.
The FMLA creates substantive rights.
As such, “[i]f an
employer interferes with the FMLA-created right to medical leave
or to reinstatement following the leave, a violation has occurred.”
Robinson v. T-Mobile, 663 F. Supp. 2d 604, 612 (E.D. Tenn. 2009);
see also 29 U.S.C. § 2615(a)(1) (requiring that an employer not
“interfere with, restrain, or deny the exercise of” FMLA rights).
14
In the FMLA interference context, the intent of the employer is
not relevant.
In the Sixth Circuit, the McDonnell-Douglas burden-shifting
framework is applied in the FMLA interference context.
Donald v.
Sabra, Inc., 667 F.3d 757, 762-63 (6th Cir. 2012).
In order to establish a prima facie case of FMLA interference,
Becknell must prove five elements:
(1) she was an eligible employee, (2) the defendant was
an employer as defined under the FMLA, (3) she was
entitled to leave under the FMLA, (4) she gave the
employer notice of her intention to take leave, and (5)
the employer denied the employee FMLA benefits to which
she was entitled.
Donald, 667 F.3d at 761 (quoting Killian v. Yorozu Auto. Tenn.,
Inc., 454 F.3d 549, 556 (6th Cir. 2006)). Here, only the last two
elements are in dispute.
If Becknell meets her prima facie burden, the University “may
prove
it
had
a
legitimate
reason
unrelated
of FMLA rights for terminating [Becknell].”
to
the
exercise
Donald, 667 F.3d at
762 (citing Grace v. USCAR, 521 F.3d 655, 670 (6th Cir. 2008)).
But Becknell may “rebut the [University’s] reason by showing that
the proffered reason had no basis in fact, did not motivate the
termination, or was insufficient to warrant the termination.”
(1)
Id.
FMLA Leave on March 15, 2017
Here, the University argues that Becknell failed to comply
with University policy when she requested leave on March 15, 2017,
15
without
providing
twenty-four
notice.3
hours’
As
such,
the
University claims that it is entitled to discipline and deny
Becknell pay based on her failure to provide notice, even though
she was granted FMLA pay for a time period that included March 15,
2017.
On
this
issue,
the
material
facts
Becknell’s husband was in the hospital.
15, 2017, Becknell reported to work.
are
not
in
dispute.
On the morning of March
A representative from the
University of Kentucky Medical Center called Becknell to notify
her that her husband would be released at approximately 12:30 p.m.
that day and that Becknell’s presence was required before her
husband could be discharged.
It is undisputed that Becknell was
unaware that her husband was being discharged before this call.
Then, at around 9:16 a.m. that same day, Becknell submitted
a leave request explaining that her husband was being released
from the hospital and that she needed to be present before his
3
A reading of the plain text of the College of Dentistry’s
Attendance and Time Reporting Policy, as outlined in the corrective
action memorandum, suggests that Becknell did not actually violate
the policy. The policy states, “[s]cheduled temporary disability
leave shall be approved by the supervisor no less than 24 hours in
advance.” [DE 33-17 ay 1, Pg ID 218 (emphasis in original)]. But
here, it does not appear that Becknell’s request for disability
leave was “scheduled” because she was unaware of her need for leave
until a few hours before her husband’s discharge from the hospital.
As a result, the University’s disciplinary action appears to
disregard the word “scheduled” in the policy. Regardless, Becknell
has not argued that she did not actually violate the College of
Dentistry’s leave policy, but instead only argues that the policy’s
notice requirement is inconsistent with the FMLA.
16
discharge to receive care instructions.
Becknell left work and
did not work in the afternoon on March 15th.
In response, the
University issued Becknell a written disciplinary warning in a
corrective action memorandum for her failure to comply with the
College of Dentistry’s twenty-four hour leave policy.
Then, on March 24, 2017, the University approved Becknell’s
FMLA leave request, with a retroactive effective date for FMLA
leave beginning on March 8, 2017.
But the University did not
rescind the written warning for Becknell’s violation of the College
of
Dentistry
Attendance
and
Time
Reporting
Policy
not
was
Becknell’s pay restored for the afternoon of March 15th.
i.
Proper Notice Under the FMLA
Where the need for FMLA leave is foreseeable, “[a]n employer
may require an employee to comply with the employer's usual and
customary notice and procedural requirements for requesting leave,
absent unusual circumstances.”
29 C.F.R. § 825.302(d).
In these
situations, an employer may require employees to provide written
notice with reasons for the requested leave or contact a specific
individual to notify them of the need for FMLA leave.
Id.
But the rub is that FMLA regulations do not require notice
where an employee’s need to take FMLA leave is unforeseeable.
Federal regulations explain that “[w]hen the approximate timing of
the need for leave is not foreseeable, an employee should give
notice to the employer of the need for FMLA leave as soon as
17
practicable under the facts and circumstances of the particular
case.”
29 C.F.R. § 825.303(a) (emphasis added).
Additionally,
“in the case of an emergency requiring leave because of a FMLA–
qualifying
reason,
written
advance
notice
pursuant
to
an
employer's internal rules and procedures may not be required when
FMLA leave is involved.”
29 C.F.R. § 825.303(c).
As such, Becknell provided the University with proper notice
of her need to take unforeseen FMLA leave on March 15, 2017, as
soon as she became aware of that she needed to take FMLA leave.
Becknell was unaware of that her husband was being discharged from
the hospital on March 15th and notified her employer promptly when
she discovered she required leave that afternoon.
Becknell’s
notice comports with federal FMLA regulations for unforeseen leave
and satisfies the fourth element of an FMLA interference claim,
which requires that an employee demonstrate that she gave her
employer notice of her intention to take leave.
ii.
Denial of FMLA Benefits and Burden Shifting
Thus, the only remaining question is whether the University’s
corrective action memorandum and refusal to allow Becknell to use
accrued sick leave for her absence on March 15th denied Becknell
FMLA benefits to which she was entitled and whether the University
had
a
legitimate
reason
unrelated to the FMLA.
for
disciplining
that
was
Of course, Becknell was retroactively
granted FMLA leave on March 15th.
18
Becknell
Still, she was also issued a
corrective action warning and was not allowed to use accrued sick
leave based on her failure to provide notice pursuant to the
University’s leave policy.
a.
Corrective Action Memorandum
First, Becknell argues that she was disciplined for failure
to give notice before taking FMLA leave on March 15, 2017, even
though no notice was required under FMLA regulations.
An employee
has a right to invoke substantive rights provided by the FMLA
without being punished for invoking FMLA protections.
In fact,
employers may not consider “FMLA leave as a negative factor in
employment actions, such as hiring, promotions or disciplinary
actions.”
29 C.F.R. § 825.220(c) (emphasis added).
Here, the University’s FMLA procedure policy incorporated the
College of Dentistry Attendance and Time Reporting policy by
reference. The University FMLA policy explains that “[a]n employee
shall
follow
standard
departmental
notification of absence(s).”
policies
or
practices
[DE 34-21 at 7, Pg ID 394].
for
As a
result, the College of Dentistry’s Attendance and Time Reporting
Policy required employees to provide twenty-four hours’ notice
before taking any leave, including unforeseen FMLA leave.
Still,
Kathleen
Hertz,
Manager
of
Billing
and
Collections/Financial Analyst Coordinator at the University of
Kentucky, was asked the following question at her deposition,
“Would you agree with me that when Lee Anna [Becknell] got the
19
call from the hospital on March 15th, that she had to be there for
the discharge of her husband, that it was impossible under those
circumstances for her to give 24-hours advance notice?”
at 7-8, Pg ID 167-68].
[DE 33-4
Hertz replied, “That would be impossible,
but it’s still a corrective action.”
[Id. at 8, Pg ID 168].
Ultimately, the University of Kentucky’s FMLA process, which
incorporates
violates
the
the
FMLA
College
in
of
Dentistry’s
situations
where
notice
requirement,
unusual
circumstances
require employees to take unforeseen FMLA leave.
There is no
apparent exclusion in the University’s FMLA policy for unforeseen
situations or emergency FMLA leave.
This notice requirement,
without some allowance for unusual or unforeseen circumstances,
conflicts with FMLA regulations that only require an employee to
provide notice to take unforeseen FMLA leave as soon as practicable
in emergency or unforeseen situations.
Thus, Becknell was disciplined for her failure to comply with
the College of Dentistry’s notice policy, even though her request
for FMLA benefits was retroactively approved and a University
representative admitted that it was impossible for Becknell to
comply with the policy under the factual circumstances of this
case.
As a result, the University’s corrective action memorandum,
which faulted Becknell for failure to provide twenty-four hours’
notice before taking unforeseen leave, effectively disciplined
Becknell for taking FMLA leave to which she was entitled.
20
This
discipline, which is related to Becknell’s use of FMLA leave and
the University’s FMLA leave policy, constitutes FMLA interference.
Of course, “an employer may enforce its usual and customary
notice and procedural requirements against an employee claiming
FMLA-protected leave, unless unusual circumstances justify the
employee's failure to comply with the employer's requirements.”
Srouder v. Dana Light Axle Mfg., LLC, 725 F.3d 608, 615 (6th Cir.
2013).
Here, the University claims that they disciplined Becknell
due to her violation of University leave policy and not based on
her decision to take FMLA leave.
Still, in this instance, the
College of Dentistry leave policy and University’s internal FMLA
policy are inextricably intertwined such that disciplining an
employee
for
failing
to
comply
with
the
leave
policy
also
constitutes disciplining an employee for taking unforeseen FMLA
leave.
As
a
result,
the
University’s
stated
reason
for
disciplining Becknell is not legitimate because it is not unrelated
to her FMLA leave.
Additionally, the disciplinary action in this case may be
distinguished from other cases that have upheld disciplining or
terminating an employee for failure to comply with an employer’s
internal policies.
For instance, in Srouder, the Sixth Circuit
held that an employer did not interfere with an employee’s FMLA
rights when the employee failed to comply with the employer’s call
in policy when he missed work due to medical complications from a
21
hernia.
See id. at 611-12, 615.
In so holding, the Court stated
that the employee had “produced no evidence demonstrating the type
of ‘unusual circumstances’ that would have justified his failure
to follow the call-in requirements of Dana's attendance policy”
because the employee’s condition was unclear on the dates that he
missed work and failed to call in.
Id. at 615, 615 n.7.
By contrast, the present case involves a situation where
unusual circumstances prevented Becknell from complying with the
University’s internal policy.
It is undisputed that Becknell
requested FMLA leave based on an unforeseen situation and that, as
a result, she could not have complied with the University’s policy.
In
sum,
the
corrective
action
memorandum
constituted
disciplinary action based on Becknell taking FMLA leave without
providing the University twenty-four hours’ notice, which is not
required by the FMLA in unusual or emergency circumstances.
To
hold
of
otherwise
Kentucky
to
indirectly
would
allow
implement
discourage
employers
leave
and
employees
like
the
attendance
from
using
University
policies
FMLA
that
leave
in
unforeseen circumstances, contravening the substantive protections
in the Act.
At bottom, there is no genuine dispute of material
fact pertaining to whether the University’s disciplinary action
constituted
FMLA
interference.
The
University’s
failure
to
rescind the written policy violation warning in the corrective
action
memorandum,
after
Becknell
22
was
granted
FMLA
leave,
constituted FMLA interference and entitles Becknell to summary
judgment on this issue.
b.
Refusal of Accrued Paid Leave
Second, Becknell asserts that the University’s refusal to
allow her to use paid leave for her absence on March 15, 2017,
effectively docked her pay and constitutes FMLA interference.
There
is
no
entitlement
to
paid
leave
under
the
FMLA.
Instead, the FMLA “provides for unpaid leave for up to twelve weeks
in a twelve[-]month period for employees” to care for a family
member with a serious health condition.
Allen v. Butler Cty.
Comm’rs, 331 F. App’x 389, 392 (6th Cir. 2009); see also 29 U.S.C.
§ 2612(c)(1)(C).
Still, FMLA regulations allow employers to run paid leave
programs concurrent with unpaid FMLA leave.
Relevant regulations
provide that,
Generally, FMLA leave is unpaid leave. However,
under the circumstances described in this section, FMLA
permits an eligible employee to choose to substitute
accrued paid leave for FMLA leave. If an employee does
not choose to substitute accrued paid leave, the
employer may require the employee to substitute accrued
paid leave for unpaid FMLA leave. The term substitute
means that the paid leave provided by the employer, and
accrued pursuant to established policies of the
employer, will run concurrently with the unpaid FMLA
leave. Accordingly, the employee receives pay pursuant
to the employer's applicable paid leave policy during
the period of otherwise unpaid FMLA leave. An employee's
ability to substitute accrued paid leave is determined
by the terms and conditions of the employer's normal
leave policy. When an employee chooses, or an employer
requires, substitution of accrued paid leave, the
23
employer must inform the employee that the employee must
satisfy any procedural requirements of the paid leave
policy only in connection with the receipt of such
payment. See § 825.300(c). If an employee does not comply
with the additional requirements in an employer's paid
leave policy, the employee is not entitled to substitute
accrued paid leave, but the employee remains entitled to
take unpaid FMLA leave. Employers may not discriminate
against employees on FMLA leave in the administration of
their paid leave policies.
29 C.F.R. § 825.207(a) (emphasis added).
In the present case, the University of Kentucky chose to
require its employees to substitute paid leave for FMLA leave.
The University’s internal FMLA policy provides that “[a] staff
employee’s leave accruals shall be used concurrently with FMLA.”
[DE 34-21 at 6, Pg ID 393].
The policy also states that “[a]ccrued
balances of TDL and vacation leave, as applicable, shall be used
prior to the employee being placed on FMLA without pay.”
Here,
Becknell
argues
that
the
University
FMLA
[Id.].
policy
required her to use accrued paid leave concurrently with FMLA leave
and that the University’s decision not to allow her to use her
accrued paid leave constitutes FMLA interference.
Becknell
argues
that
“[t]he
Defendant
Specifically,
interfered
with
Ms.
Becknell’s FMLA rights when it denied Ms. Becknell her paid time
off that she otherwise would have received, but for her failure to
comply
with
requirement.”
the
Defendant’s
invalid
[DE 35 at 15, Pg ID 430].
24
internal
FMLA
notice
But here, the University’s refusal to allow Becknell to use
accrued paid leave while on FMLA leave did not deny Becknell FMLA
benefits to which she was entitled.
The FMLA does not provide
employees any right to use paid leave while on FMLA leave.
As a
result, Becknell cannot satisfy the fifth element of the FMLA
interference
analysis
because
the
University
because
the
University did not deny her a benefit to which she was entitled
under the FMLA when it refused to allow her to use accrued paid
leave.
Of course, that is not to say that the University’s decision
on paid leave did not violate the University’s own internal leave
policy or that the University’s policies are not inconsistent.
Still, assuming, for the sake of argument, that the University’s
decision was a violation of internal University policy, that does
not mean that the University interfered with Becknell’s FMLA
rights.
Ultimately, while the University may not discipline Becknell
for her failure to give twenty-four hours’ notice before taking
FMLA leave, the University may base an employee’s ability to
substitute paid leave time on the employer’s own leave policy.
See 29 C.F.R. § 825.207(a); see also Allen, 331 F. App’x at 39397.
Here, the University refused to allow Becknell to use accrued
paid leave for failure to comply with its internal leave policy.
This decision does not constitute FMLA interference because, even
25
if there is a right to paid leave under internal University
policies, there is no right to paid leave under the FMLA.
As such,
the University is entitled to summary judgment on this issue of
FMLA interference as a result of the refusal to allow Becknell
paid leave because the University’s action did not deny Becknell
a benefit to which she was entitled under the FMLA.
(2)
Request for Becknell’s
Training List
Marriage
License
and
Becknell’s
In her initial complaint, Becknell appears to argue that the
University
interfered
additional ways.
with
her
use
of
FMLA
benefits
[DE 1-1 at 8-9, Pg ID 12-13].
in
two
First, Becknell
contends that the University required her to produce a marriage
license before granting her FMLA leave request.
Second, Becknell
asserts that a University staff member contacted her while she was
on FMLA leave to request a training list.
The University argues
that they are entitled to summary judgment on the interference
claims arising from these incidents.
[DE 34-1 at 25-26, Pg ID
275-76].
Initially,
it
is
worth
noting
that
Becknell
did
not
meaningfully respond in opposition to the University’s arguments
for summary judgment based on the requests for Becknell’s marriage
license and training list.
[See DE 35 at 12-15, Pg ID 427-30].
Furthermore, Becknell has not moved for summary judgment on her
FMLA interference claim based on these incidents.
26
[DE 33-1 at 12-
15, Pg ID 129-32].
Becknell’s motion for summary judgment and
response in opposition to the University’s motion for summary
judgment exclusively discuss and address the disciplinary action
and refusal to grant paid leave arising from the March 15, 2017,
absence.
Becknell’s failure to respond to the University’s arguments
for summary judgment indicates that these facts are undisputed and
that any arguments to the contrary have been waived.
The Court’s
scheduling order provides that “[f]ailure to make a response in
compliance with sections (c) and (d) above, within the time periods
provided by the Local Rules for motion practice, shall indicate
that the asserted facts are not disputed for the purposes of
summary judgment.”
[DE 11 at 6, Pg ID 62].
Additionally, the
Sixth Circuit has explained that failure to oppose a motion shall
constitute grounds for the Court to conclude that any arguments in
opposition to said motion are waived.
See Humphrey v. United
States Attorney Gen. Office, 279 F. App’x 328, 331 (6th Cir. 2008).
Finally, “issues referred to in a perfunctory manner without
developed argumentation are deemed waived.” Id. As such, Becknell
appears
to
have
waived
any
arguments
in
opposition
to
the
University’s motion for summary judgment on interference arising
from the requests for the marriage license and the training list.
Still,
consideration
of
the
merits
of
the
University’s
arguments demonstrates that they are entitled to summary judgment
27
on these issues.
Becknell was not denied any FMLA benefits as a
result of these actions.
First,
“[f]or
purposes
of
confirmation
of
family
relationship, the employer may require the employee giving notice
of the need for leave to provide reasonable documentation or
statement of family relationship. This documentation may take the
form of a simple statement from the employee, or a child's birth
certificate, a court document, etc.”
Thus,
pursuant
to
federal
29 C.F.R. § 825.122(k).
regulations,
the
University
has
a
legitimate right to require documentation, including a marriage
license, to confirm the family relationship between Becknell and
her husband. Additionally, Becknell was granted all the FMLA leave
she was requested, so there are no facts to indicate that the
request of her marriage license denied Becknell an FMLA benefit to
which she was entitled and the University is entitled to summary
judgment on interference related to the request for Becknell’s
marriage license.
Second, the contact between Becknell and Thompson pertaining
to her training list appears to have been limited in time and there
is no proof that this contact interfered with Becknell’s FMLA
leave.
On March 15, 2017, while Becknell’s was working and her
FMLA request was pending, Thompson emailed Becknell to discuss
Becknell’s training needs and follow-up on a previous conversation
about training.
[DE 34-23 1-4, Pg IF 399-402].
28
Still, even while
on
FMLA
leave,
it
appears
that
Becknell
chose
to
work
intermittently.
Subsequently, on March 20, 2017, Thompson sent Becknell a
short email that said, “I know you have been dealing with your
family, but are you working on your Training list[?]”
at 1-2, Pg ID 403-04].
[DE 34-24
Becknell responded, stating that she had
not worked on the training list but indicating that she was working
on other matters on March 20, 2017.4
[Id. at 1, Pg ID 403].
There
is no evidence that the University contacted Becknell on while she
was on FMLA leave other than this one short email on March 20,
2017.
That
email,
standing
alone,
cannot
be
said
to
have
interfered with Becknell’s FMLA leave. Thompson’s email was short,
did not indicate that it required an urgent response, and was
apparently sent on a day that Becknell was working, even though
she was on FMLA leave.
As such, the University is entitled to
summary judgment on alleged FMLA interference arising from the
email request for Becknell’s training list.
To summarize, the University interfered with Becknell’s FMLA
rights when it disciplined her for failure to comply with the
College of Dentistry’s twenty-four-hour notice policy, even though
4
It is unclear based on the email correspondence between Thompson
and Becknell whether Becknell was working from home or at the
office on March 20, 2017. Regardless, Becknell’s email response
indicated that she had “been working on e mails and answering phone
calls” on March 20th. [DE 34-24 at 1, Pg ID 403].
29
Becknell was retroactively granted FMLA leave during this time
period.
Still, the University is entitled to summary judgment on
Becknell’s allegations of interference arising from the refusal to
allow
Becknell
Becknell’s
to
use
marriage
accrued
license,
paid
and
the
leave,
the
request
request
for
for
Becknell’s
training list because these incidents did not result in a denial
of FMLA benefits to which Becknell was entitled.
C.
FMLA Retaliation
Federal regulations prevent an employer “from discriminating
or retaliating against an employee or prospective employee for
having exercised or attempted to exercise FMLA rights.”
§825.220(c).
29 C.F.R.
“The central issue raised by the retaliation theory
. . . is ‘whether the employer took the adverse action because of
a
prohibited
reason.’”
reason
or
for
a
legitimate
nondiscriminatory
Seeger v. Cincinnati Bell Tel. Co., LLC, 681 F.3d 274,
282 (6th Cir. 2012) (quoting Edgar, 443 F.3d at 508).
In the
retaliation context, “[t]he employer’s motive is relevant because
retaliation claims impose liability on employers that act against
employees specifically because those employees invoked their FMLA
rights.”
Id. (internal citations and quotations omitted).
An aggrieved employee may prove FMLA retaliation with direct
or circumstantial or inferential evidence of FMLA retaliation.
Kline v. Tenn. Valley Auth., 128 F.3d 337, 348 (6th Cir. 1997).
30
A
plaintiff need only prove retaliation based on either direct or
circumstantial evidence, not both.
(1)
Id. at 348-49.
Direct Evidence of FMLA Retaliation
Direct
evidence
is
evidence
that
“does
not
require
a
factfinder to draw any inferences in order to conclude that the
challenged employment action was motivated at least in part by
prejudice against members of the protected group.”
DiCarlo v.
Potter, 358 F.3d 408, 415 (6th Cir. 2004), overruled on other
grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180
(2009); see also Griffith v. City of Des Moines, 387 F.3d 733, 736
(8th Cir. 2004) (“[D]irect evidence is evidence showing a specific
link between the alleged discriminatory animus and the challenged
decision, sufficient to support a finding by a reasonable fact
finder
that
an
illegitimate
criterion
actually
motivated
the
adverse employment action.” (internal citations and quotations
omitted))).
Direct evidence of discrimination “must establish not
only that the plaintiff's employer was predisposed to discriminate
on the basis of [FMLA leave], but also that the employer acted on
that predisposition.”
Id.
If believed, direct evidence of discrimination “requires the
conclusion that unlawful discrimination was at least a motivating
factor in the employer's actions.”
Demyanovich v. Cadon Plating
& Coatings, LLC, 747 F.3d 419, 432 (6th Cir. 2014).
31
Becknell claims that the sworn deposition testimony of her
direct supervisor, Adrian Thompson, constitutes direct evidence of
FMLA retaliation.
letter
that
he
At the deposition, Thompson was asked about a
prepared
and
sent
to
the
University’s
Human
Resources Department to oppose Becknell’s unemployment claim.
The
following colloquy occurred during the deposition,
Counsel for Plaintiff: So Exhibit 2,5 are you listing
all the reasons you believe supports her termination in
Exhibit 2?
Thompson: Yes.
Counsel for Plaintiff: Including her
Medical Leave on March 15th, correct?
taking
Family
Thompson: Yes, uh-huh (AFFIRMATIVE).
Counsel for Plaintiff: That’s a yes?
Thompson: Yes, uh-huh. (AFFIRMATIVE).
[DE 33-10 at 9-10, Pg ID 195-96].
Later
in
the
deposition,
counsel
asked
Thompson
whether
Becknell’s failure to work while on FMLA leave was a contributing
factor
in
employment.
the
University’s
decision
to
terminate
Becknell’s
The following conversation occurred,
Counsel for Plaintiff: The Exhibit 2 that we were looking
at, one of the entries you had in here is March 20th of
’17, email Lee or training list. Do you mean to say,
emailed Lee for training list?
Thompson: Yes.
5
Exhibit 2 refers to the letter that Thompson prepared for the
University’s Human Resources Department after Becknell applied for
unemployment benefits. [DE 33-22 at 1, Pg ID 226].
32
. . .
Counsel for Plaintiff: She was on FMLA leave at the time?
. . .
Thompson: Yes, I believe she was on FMLA leave time.
Counsel for Plaintiff: But her failure to do that work
while on FMLA leave, in your mind, was one of the reasons
supporting termination, correct?
Thompson: It was one, yes, uh-huh (AFFIRMATIVE).
[DE 34-7 at 5, Pg ID 311].
On re-cross examination, counsel for the University attempted
to clarify, asking Thompson,
Counsel for Defense: Mr. Roark was just asking you
questions, and maybe I didn’t hear the question
correctly, so correct me if I’m mischaracterizing it, he
asked you if one of the reasons Ms. Becknell was
terminated was because of FMLA leave. Was that one of
the reasons why Ms. Becknell was terminated was because
she took FMLA leave?
Thompson: No.
[Id.].
In
Thompson’s
letter,
which
was
discussed
during
the
deposition, Thompson states that Becknell was terminated because
she falsified University of Kentucky documents.
Pg ID 226].
[DE 33-22 at 1,
Additionally, Thompson provided a timeline of events
regarding Becknell, including, “Emailed Lee [for] Training List,”
and
“Corrective
Action-Violation
of
College
of
Attendance and Time Reporting Policy For No Pay Status.”
33
Dentistry
[Id.].
Based
on
the
foregoing
evidence,
Becknell
has
submitted
enough proof to allow a reasonable fact finder to conclude that
the termination of Becknell’s employment was motivated, at least
in part, by Becknell’s use of FMLA leave.
During his deposition,
Thompson initially stated unequivocally that Becknell’s decision
to take FMLA leave on March 15, 2017, was a factor in the decision
to terminate her employment.
Moreover, Thompson also admitted
that Becknell’s refusal to work while on FMLA leave was a factor
in
her
termination.
These
two
admissions
constitute
direct
evidence of FMLA retaliation.
The University argues that Becknell may not rely on the
deposition testimony of Thompson to demonstrate direct evidence of
FMLA
retaliation
because
Thompson
was
not
the
decisionmaker pertaining to Becknell’s termination.
ultimate
In support of
its argument, the University cites this Court’s previous decision
in Land v. S. States Coop., Inc., where the Court explained that
“actions by nondecisionmakers cannot alone prove pretext. Neither
can
decisionmakers'
statements
decisionmaking process.”
or
actions
outside
of
the
No. 15-cv-83-JMH, 2016 WL 4726541, at *9
(E.D. Ky. Sept. 9, 2016), aff’d, 740 F. App’x 845 (6th Cir. 2018).
But
the
University’s
litigation
is
reliance
misplaced.
on
The
Land
Land
at
this
opinion
stage
stands
in
the
for
the
proposition that the actions or statements of nondecisionmakers,
standing alone, may not prove pretext.
34
But pretext is only
considered
when
the
employer
articulates
a
legitimate,
non-
discriminatory reason for the adverse employment action and the
burden
shifts
back
to
the
employee
to
demonstrate
that
the
proffered reason was pretext.
Additionally, the present case is factually distinguishable
from Land.
In Land, the plaintiff had a subjective belief that
his supervisors disapproved of his use of leave because the
plaintiff told his supervisors about his knee, hip, and lower-back
pain.
But the Court explained in Land that the plaintiff’s direct
supervisors were not involved in the termination decision.
Land,
2016 WL 4726541, at *9.
By contrast, Thompson may not have been the only or final
person
who
decided
to
terminate
Becknell’s
employment,
but
Thompson was very clearly involved in the decision to terminate
Becknell’s employment.
First, Thompson discovered Becknell’s
alleged falsification of records, which resulted in an audit of
Becknell’s record entries.
Furthermore, Thompson wrote the March
22, 2017, corrective action memorandum pertaining to Becknell’s
failure to comply with the College of Dentistry’s twenty-four-hour
notice policy.
Similarly, Thompson signed the University of
Kentucky Employee Separation sheet.
Finally, this is not a case
where Becknell had a subjective belief, based on the conduct of
her supervisor, that Becknell’s use of FMLA leave was a factor in
the adverse employment decision.
35
Instead, in this case, Thompson
unequivocally admitted that Becknell’s use of FMLA leave played a
role in the decision to terminate her.
Thompson
was
directly
involved
in
These facts indicate that
the
employee
disciplinary
process and would have knowledge about the reasons for terminating
Becknell’s employment, even if he was not the final decisionmaker.
Additionally, the Sixth Circuit has held that deposition
testimony from a direct supervisor may constitute direct evidence
of FMLA retaliation.
In Hunter v. Valley View Local Sch., the
plaintiff’s direct supervisor testified in a deposition that the
plaintiff was placed on involuntary leave based on plaintiff’s
medical
restrictions
and
plaintiff’s use of FMLA leave.
permanent
absenteeism,
including
579 F.3d 688, 692 (6th Cir. 2009).
In Hunter, the Sixth Circuit found that the deposition testimony
of
plaintiff’s
direct
supervisor
plaintiff’s FMLA retaliation claim.
provided
direct
support
for
Id.
Ultimately, Thompson testified that Becknell’s decision to
use FMLA leave on March 15, 2017, and her refusal to work while on
FMLA leave were contributing factors in the University’s decision
to
terminate
Becknell’s
employment.
If
believed,
Thompson’s
testimony clearly constitutes direct evidence of FMLA retaliation,
notwithstanding
his
answer
to
the
contrary
after
being
rehabilitated on re-cross during the deposition.
Still, that does not end the analysis.
“If an employee
successfully presents direct evidence that the employer acted with
36
discriminatory motive, ‘the burden shifts to the employer to prove
by a preponderance of the evidence that it would have made the
same decision absent the impermissible motive.’”
Demyanovich, 747
F.3d at 432 (quoting Weigel v. Baptist Hosp. of E. Tenn., 302 F.3d
367, 382 (6th Cir. 2002).
Here, the University contends that it terminated Becknell for
falsification of university records.
termination
of
employment
due
to
University policy justifies
falsification
of
university
records.
While it is undisputed that Becknell changed the transaction
dates on some of the records that she entered, the parties dispute
whether these acts constituted falsification of records.
Still,
Becknell argues that there was no policy preventing her practice
of changing the transaction dates and that the axiUm database
allowed a person entering data to change the transaction date.
[DE 33-1 at 9, Pg ID 126]. In fact, the axiUm user manual describes
the date field by saying, “This field indicates the date that
changes were made to this planned treatment. You can select the
current date or a past date, but you cannot select a future date.”
[DE 33-27 at 1, Pg ID 239 (emphasis added)].
Additionally, Becknell claims that her supervisors were aware
of her method for inputting patient data and that it did not become
an issue until after she took FMLA leave.
126].
Furthermore, Becknell argues that she was singled out while
37
[DE 33-1 at 9, Pg ID
on
FMLA
leave
because
the
College
of
Dentistry
failed
to
investigate whether any other accounts receivable counselors had
engaged in the same method of data entry.
As such, Becknell
asserts she was fired based on her decision to take FMLA leave and
not based on falsification of records.
As such, a genuine dispute of material fact exists as to
whether the University had a legitimate, non-discriminatory reason
for terminating Becknell’s employment.
On the one hand, a fact
finder may find by a preponderance of the evidence that Becknell’s
conduct
constitutes
falsification
of
records
University policy, justifying her termination.
however,
a
reasonable
fact
finder
could
in
violation
of
On the other hand,
conclude
that
the
University knew about Becknell’s practice of changing transaction
dates
and
singled
her
out
only
constituting FMLA retaliation.
a jury, not this Court.
after
she
took
FMLA
leave,
This conclusion must be reached by
As a result, the parties’ motions for
summary judgment on FMLA retaliation based on direct evidence must
be denied.
(2)
Circumstantial Evidence of FMLA Interference
Similarly, a genuine dispute of material fact also exists
pertaining to FMLA retaliation based on circumstantial evidence.
Courts
allow
circumstantial
plaintiffs
evidence
to
prove
based
on
discrimination
the
through
understanding
that
discriminatory intent can rarely be ascertained through direct
38
evidence because direct evidence is usually unavailable.
Kline, 128 F.3d at 248.
See
As a result, Courts use the McDonell-
Douglas burden-shifting framework when considering retaliation
claims based on circumstantial evidence.
Id. at 348-49.
To establish a prima facie case of FMLA retaliation, a
plaintiff must show that “(1) he engaged in protected activity,
(2) his employer was aware of the protected activity, (3) he was
subject to an adverse employment action, and (4) there was a causal
nexus between the protected activity and the adverse employment
action.”
Demyanovich, 747 F.3d at 432-33; see also Seeger, 681
F.3d at 283.
In the retaliation context, “the employer’s motive
is an integral part of the analysis.”
Edgar, 443 F.3d at 508
(emphasis omitted).
Here, Becknell has met her burden of proof to demonstrate a
prima facie case of FMLA retaliation.
First, it is undisputed
that Becknell clearly engaged in protected activity under the FMLA.
Second, and related to the first element, the University was
obviously aware that Becknell was invoking rights under the FMLA
because the University granted Becknell’s request to use FMLA
leave.
Third,
the
termination
of
constitutes an adverse employment action.
Becknell’s
employment
Fourth, and finally,
the University concedes that “Becknell is able to establish an
interference of temporal proximity in light of the timing of her
39
return from FMLA leave and her termination.”
[DE 37 at 6, Pg ID
539].
Having found that Becknell has demonstrated a prima facie
case of FMLA retaliation, the burden shifts to the University “to
articulate a legitimate nondiscriminatory reason for the adverse
employment actions.”
Marshall v. Rawlings Co., LLC, 854 F.3d 368,
382 (6th Cir. 2017).
articulating
a
If the Defendant carries the burden of
legitimate,
non-discriminatory
reason,
the
Plaintiff must prove the proffered reasons were pretextual. Kline,
128 F.3d at 342.
Again, the University contends that it terminated Becknell’s
employment because she falsified records and not due to her use of
FMLA benefits.
Still, a genuine dispute of material fact exists
on this point for the same reason as above in the direct evidence
context.
A reasonable fact finder could conclude that Becknell’s
practice of changing the transaction date in the axiUm database
system constituted falsification or records and justified her
termination based on University policy.
Even so, a reasonable
factfinder could also conclude that the University terminated
Becknell based on her invocation of FMLA benefits.
Becknell has
submitted proof, if believed, that would demonstrate that she may
have
been
singled
out
falsification of records.
in
the
University’s
investigation
of
Whether the University has a legitimate
reason to terminate Becknell’s employment must be decided by a
40
jury.
As such, the parties’ motions for summary judgment on FMLA
retaliation based on circumstantial evidence must also be denied.
D.
Unpaid Wages and Mitigation of Damages
“Employers who violate the FMLA are liable to the employee
for damages and such equitable relief as may be appropriate.”
Seeger, 681 F.3d at 281 (citing 29 U.S.C. § 2617(a)(1)).
consideration
litigation.
of
damages
is
premature
at
this
stage
Still,
in
the
The Court has found that the University interfered
with Becknell’s FMLA rights in one discrete instance.
Still,
genuine disputes of material fact exist pertaining to whether FMLA
retaliation occurred in this case.
As a result, the parties’
requests
damages
for
summary
judgment
on
issues,
including
mitigation of damages, must be denied at this juncture.
IV.
Conclusion
Based on the foregoing analysis, IT IS ORDERED as follows:
(1)
Plaintiff
Lee
Anna
Becknell’s
motion
for
judgment [DE 33] is GRANTED IN PART and DENIED IN PART.
summary
Plaintiff
is granted summary judgment on her FMLA interference claim arising
from the corrective action memorandum for her failure to comply
with
the
College
of
Dentistry
notice
policy.
Otherwise,
Plaintiff’s motion for summary judgment is denied; and
(2)
Defendant University of Kentucky’s motion for summary
judgment [DE 34] is GRANTED IN PART and DENIED IN PART.
Defendant
is granted summary judgment on FMLA interference claims arising
41
from the refusal to allow Becknell to use paid leave, the request
for Becknell’s marriage license, and the request for Becknell’s
training list.
Otherwise, Defendant’s motion for summary judgment
is denied.
This the 22nd day of April, 2019.
42
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