Ahmed v. The Salvation Army
Filing
20
MEMORANDUM. Signed by Judge Catherine C. Blake on 12/28/2012. (aos, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ROBERTA AHMED,
Plaintiff,
v.
THE SALVATION ARMY
Defendant.
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Civil No. CCB 12-707
MEMORANDUM
Plaintiff Roberta Ahmed (“Ms. Ahmed”) brought this action against defendant The
Salvation Army (“The Salvation Army” or “defendant”), alleging that The Salvation Army
terminated her employment in violation of the Family and Medical Leave Act (“FMLA”) and the
Americans with Disabilities Act (“ADA”). Now pending before the court are the following
motions: (i) The Salvation Army‟s motion to dismiss or, in the alternative, for summary
judgment (ECF No. 7); (ii) Ms. Ahmed‟s motion for partial summary judgment on the issue of
her FMLA claim (ECF No. 12); (iii) Ms. Ahmed‟s motion for Rule 56(d) relief requesting time
to conduct discovery on the issue of her ADA claim (ECF No. 13); and (iv) Ms. Ahmed‟s motion
to file an amended complaint (ECF No. 14). The issues have been fully briefed, and the court
finds no hearing is necessary. See Local Rule 105.6. For the reasons stated below, The
Salvation Army‟s motion to dismiss or, in the alternative, for summary judgment will be granted;
Ms. Ahmed‟s motion for partial summary judgment will be denied; Ms. Ahmed‟s Rule 56(d)
motion will be denied; and Ms. Ahmed‟s motion to file an amended complaint will be denied as
moot.
BACKGROUND
Ms. Ahmed began her employment with The Salvation Army in 2008, working as a
“Corps Accountant” in Annapolis, Maryland. (Compl. ¶ 9; Def.‟s Mem. Summ. J., Decl. at ¶ 3.)
In the fall of 2010, Ms. Ahmed‟s treating physician advised her that she would require open heart
surgery to correct her aortic and mitral valve. (Pl.‟s Mem. Partial Summ. J., Ex. 2 at ¶¶ 1, 2.)
Around September 2010, Ms. Ahmed reported to her supervisor, Captain Richard New, that she
had a heart-related condition that would require surgery and would cause her to be absent from
work later that fall. (Def.‟s Mem. Summ. J., Decl. at ¶¶ 4, 6.) Under The Salvation Army‟s
leave policy, employees who require leave for a serious health condition can take leave under the
FMLA. (Def.‟s Mem. Summ. J., Decl. at ¶ 7, Ex. 2.)1
In an email dated October 20, 2010, Ms. Ahmed asked Heather A. Grueninger, The
Salvation Army‟s Assistant General Secretary/Human Resources Director, to “explain the
employee process for obtaining FMLA.” (Def.‟s Mem. Summ. J., Decl. at ¶ 7, Ex. 4.) Also on
October 20, 2010, Ms. Ahmed informed Captain Richard New and Captain Ruth New—both of
whom are Corps Officers for The Salvation Army—that she would need open heart surgery
sometime in the middle of November and would be requesting FMLA leave to begin on the date
of her surgery. (Def.‟s Mem. Summ. J., Decl. at ¶ 8, Ex. 6; Pl.‟s Mem. Partial Summ. J., Ex. 2 at
¶ 4.) At that time, Ms. Ahmed did not know a “firm date for surgery or necessary time for
recovery.” (Def.‟s Mem. Summ. J., Decl., Ex. 6.) She explained, however, that her surgery
1
According to The Salvation Army, Captain Richard New attempted to provide Ms. Ahmed
with correspondence informing her of her rights and obligations under the FMLA, but Ms.
Ahmed refused to accept such correspondence. (Def.‟s Mot. Summ. J., Decl. at ¶ 7, Ex. 3, 5).
Ms. Ahmed, however, contends that she never refused to accept this correspondence. (Pl.‟s
Opp‟n at 1-2.) This purported factual dispute is without consequence as this fact is immaterial to
the outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)
(noting that a fact is material if it “might affect the outcome of the suit under the governing
law”).
would be scheduled sometime after her November 2, 2010 surgical consult appointment and her
previous open heart surgery required eighteen weeks for recovery. (Id.)
On October 27, 2010, The Salvation Army responded by letter and provided Ms. Ahmed
with several FMLA forms, including “Notice of Eligibility and Rights & Responsibilities,”
“Request for FMLA Leave,” and “Certification of Health Care Provider.” (Def.‟s Mem. Summ.
J., Decl. at ¶ 9, Ex. 7; Pl.‟s Mem. Partial Summ. J., Ex. 2 at ¶ 5.) Although the letter stated The
Salvation Army was “preliminarily designating [Ms. Ahmed‟s] leave as family and medical
leave,” it instructed Ms. Ahmed to return the Request for FMLA by November 3, 2010 and to
return the Certification of Health Provider (the “Certification Form”) by November 11, 2010.
(Def.‟s Mem. Summ. J., Decl. at ¶ 9, Ex. 7.)
On November 6, 2010, Ms. Ahmed submitted a Request for FMLA leave for the period
from November 29, 2010 to February 18, 2011 along with the Certification Form signed by her
health care provider, Dr. Duke Cameron. (Def.‟s Mem. Summ. J., Decl. at ¶ 10, Ex. 8, 9.)
Section III of the Certification Form, which was to be completed by Ms. Ahmed‟s health care
provider, was left largely blank. (Def.‟s Mem. Summ. J., Decl., Ex. 9.) The only information
provided was a note in the “Additional Information” section identifying the name of the
surgery—“For Redo Aortic + Mitral Valve Replacement”—and indicating that the surgery
would take place on December 1, 2010. (Id.) Ms. Ahmed‟s heath care provider did not respond
to the seven numbered questions in Section III of the Certification Form or their various subparts. (See id.) For example, the Certification Form did not contain any information regarding
Ms. Ahmed‟s expected period of incapacity or the amount of leave that she would require
following her surgery. (See id.)
The Salvation Army responded to Ms. Ahmed‟s Certification Form on November 11,
2010, informing Ms. Ahmed that her Certification Form was “not complete and [did] not have
sufficient information” for an FMLA determination to be made. (Def.‟s Mem. Summ. J., Decl.,
Ex. 10.) The letter and attached FMLA Designation Notice informed Ms. Ahmed that The
Salvation Army could not designate her leave as FMLA, and it instructed her to “submit a
complete and legible [Certification Form] by November 19, 2010” or her leave may be denied.
(Id.) In response, Ms. Ahmed submitted a second Certification Form on November 18, 2010.
(Def.‟s Mem. Summ. J., Decl., Ex. 11.) The November 18 Certification Form was virtually
identical to the November 6 Certification Form—the only change was made by Ms. Ahmed, who
printed the name of the surgery more legibly in the “Additional Information” section. (Id.; Pl.‟s
Mem. Partial Summ. J., Ex. 2 at ¶ 9.) Like the November 6 Certification Form, the November
18 Certification Form did not provide any responses to the seven numbered questions or their
various sub-parts, nor did it indicate Ms. Ahmed‟s expected period of incapacity or the amount
of leave she would need following her surgery. (See Def.‟s Mem. Summ. J., Decl., Ex. 11.)
On November 24, 2010, The Salvation Army again informed Ms. Ahmed that her
Certification Form “did not include sufficient information for The Salvation Army to designate
[Ms. Ahmed‟s] leave as Family/Medical Leave.” (Def.‟s Mem. Summ. J., Decl., Ex. 12.) The
Salvation Army explained that some of the information needed to designate FLMA leave,
including Ms. Ahmed‟s “ability to perform some or all of [her] job functions” and her “period of
incapacity,” was not completed. (Id.; Pl.‟s Mem. Partial Summ. J., Ex. 2 at ¶ 10.) The Salvation
Army also enclosed a new Certification Form and informed Ms. Ahmed that it would be “happy
to reconsider [her] request for leave” if it received the Certification Form with all sections
completed. (Def.‟s Mem. Summ. J., Decl., Ex. 12.)
Ms. Ahmed did not submit an additional Certification Form, and beginning on November
29, 2010, she was absent from work. (Def.‟s Mem. Summ. J., Decl. at ¶ 14.) On December 1,
2010, Ms. Ahmed underwent heart surgery and remained in the hospital through December 12,
2010. (Pl.‟s Mem. Partial Summ. J., Ex. 2 at ¶ 11.) From December 12, 2010 through midJanuary 2011, Ms. Ahmed was recovering from surgery at her home and was being cared for by
her sister. (Pl.‟s Mem. Partial Summ. J., Ex. 2 at ¶ 12.)
The Salvation Army‟s policies provide for termination of employment after three days of
unauthorized absence. (Def.‟s Mem. Summ. J., Decl. at ¶ 14 n.2.) On December 2, 2010, after
Ms. Ahmed had been absent from work for three days, The Salvation Army sent Ms. Ahmed a
letter to inform her that she was absent “without acceptable documentation.” (Def.‟s Mem.
Summ. J., Ex. 13.) The letter instructed Ms. Ahmed to submit a completed Certification Form
by December 8, 2010, as documentation for her unauthorized absences until that date and for any
continued absences going forward. (Id.) The Salvation Army explained that the failure to do so
would result in the termination of Ms. Ahmed‟s employment. (Id.) Some time after mailing the
December 2, 2010 letter to Ms. Ahmed, The Salvation Army discovered that the postal service
failed to scan the letter into its tracking system, and therefore could not confirm that Ms. Ahmed
received the letter. (Def.‟s Mem. Summ. J., Decl. at ¶ 15.) Therefore, The Salvation Army
resent the December 2, 2010 letter via overnight mail on December 16, 2010, and it was received
at Ms. Ahmed‟s residence the following day. (Def.‟s Mem. Summ. J., Decl. at ¶ 15, Ex. 14.)
The December 16, 2010 correspondence informed Ms. Ahmed that unless she submitted a
completed Certification Form by December 21, 2010, it would be necessary for The Salvation
Army to terminate her employment. (Id.)
Ms. Ahmed did not provide an additional Certification Form by December 21, 2010.
(Def.‟s Mem. Summ. J., Decl. at ¶ 16.) Accordingly, on December 29, 2010, The Salvation
Army sent Ms. Ahmed a final letter explaining that after twenty-three days of unapproved
absences, her employment with The Salvation Army was terminated. (Def.‟s Mem. Summ. J.,
Decl., Ex. 15; see also Def.‟s Mem. Summ. J., Decl., Ex. 16.)
In March 2011, Ms. Ahmed filed a charge of disability discrimination against The
Salvation Army with the Maryland Commission on Human Relations (the “Commission”). (Pl.‟s
Mem. Partial Summ. J., Ex. 3.) After conducting an investigation, the Commission dismissed
Ms. Ahmed‟s disability charge, concluding that her “disability played no factor in the
determination to terminate [her] employment” and that The Salvation Army‟s actions “were
found to be legitimate and non-discriminatory.” (Def.‟s Mem. Summ. J., Decl., Ex. 17 at 7.)
Ms. Ahmed subsequently brought this suit for violations of the FMLA and the ADA arising out
of her termination of employment by The Salvation Army.
ANALYSIS
I.
The Dispositive Motions
As an initial matter, The Salvation Army has styled its pending motion as a motion to
dismiss or, in the alternative, a motion for summary judgment.2 Federal Rule of Civil Procedure
12(d) provides that when a court considers matters outside the pleadings, a motion to dismiss
“must be treated as one for summary judgment under Rule 56,” and “[a]ll parties must be given a
reasonable opportunity to present all the material that is pertinent to the motion.” Fed. R. Civ. P.
2
In her opposition, Ms. Ahmed states that The Salvation Army moved only to dismiss the ADA
claim and did not move in the alternative for summary judgment. (Pl.‟s Opp‟n at 1-2.)
However, in its Motion to Dismiss / Motion for Summary Judgment, The Salvation Army
expressly states that Ms. Ahmed “has failed to state a claim” under the ADA and that it is “also
entitled to judgment with respect to the ADA claim.” (Def.‟s Mot. Summ. J. at 2.)
12(d). When the moving party expressly captions its motion “in the alternative” as one for
summary judgment and submits matters outside the pleadings for the court‟s consideration, the
parties are deemed to be on notice that conversion under Rule 12(d) may occur—the court “does
not have an obligation to notify parties of the obvious.” Laughlin v. Metro. Washington Airports
Auth., 149 F.3d 253, 261 (4th Cir. 1998). Here, Ms. Ahmed received adequate notice (ECF No.
7) and has responded appropriately (ECF No. 13).
In deciding The Salvation Army‟s pending motion at to both the FMLA and ADA claims,
this court must consider evidence outside the pleadings. Therefore, The Salvation Army‟s
motion will be treated as a motion for summary judgment and will be reviewed under the Rule
56 standard. See Talbot v. U.S. Foodservice, Inc., 191 F. Supp. 2d 637, 639 (D. Md. 2002)
(treating motion to dismiss as motion for summary judgment where the court had to consider
“two items of evidence extrinsic to the pleadings”). Of course, Ms. Ahmed‟s motion for partial
summary judgment as to her FMLA claim will also be reviewed under the Rule 56 standard.
Federal Rule of Civil Procedure 56(a)3 provides that summary judgment shall be granted
“if the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” The Supreme Court has clarified that this does not
mean that any factual dispute will defeat the motion. “By its very terms, this standard provides
that the mere existence of some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the requirement is that there be no
genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)
(emphasis in original). Whether a fact is material depends upon the substantive law. See id.
3
Rule 56 was amended effective December 1, 2010; the amendments moved (without making
material change) the substance of subsection (c) to subsection (a).
“A party opposing a properly supported motion for summary judgment „may not rest
upon the mere allegations or denials of [his] pleadings,‟ but rather must „set forth specific facts
showing that there is a genuine issue for trial.‟” Bouchat v. Baltimore Ravens Football Club,
Inc., 346 F.3d 514, 525 (4th Cir. 2003) (alteration in original) (quoting former Fed. R. Civ. P.
56(e)). The court must “view the evidence in the light most favorable to … the nonmovant, and
draw all reasonable inferences in her favor without weighing the evidence or assessing the
witness‟ credibility,” Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th
Cir. 2002), but the court also must abide by the “affirmative obligation of the trial judge to
prevent factually unsupported claims and defenses from proceeding to trial,” Bouchat, 346 F.3d
at 526 (internal quotation marks omitted) (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th
Cir. 1993) and citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)). When, as here, the
parties have filed cross-motions for summary judgment, the court must consider “each motion
separately on its own merits to determine whether either of the parties deserves judgment as a
matter of law.” Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (internal quotation and
citation omitted).
A. Family and Medical Leave Act Claim
Both The Salvation Army and Ms. Ahmed have moved for summary judgment as to the
FMLA claim. Ms. Ahmed alleges that The Salvation Army unlawfully interfered with the
exercise of her FMLA rights when it discharged her while she was on FMLA leave. (Pl.‟s Mem.
Partial Summ. at 12.) The Salvation Army counters that Ms. Ahmed was not on actual FMLA
leave when it terminated her employment, and, therefore, she has no actionable FMLA claim.
(Def.‟s Mem. Summ. J. at 9.) Because Ms. Ahmed‟s Certification Form was incomplete as a
matter of law, her motion for partial summary judgment will be denied and The Salvation
Army‟s motion for summary judgment will be granted.
The FMLA is designed “to entitle employees to take reasonable leave for medical
reasons.” 29 U.S.C. § 2601(b)(2). When the FMLA applies, it allows eligible employees to take
up to a total of twelve workweeks of leave during any twelve-month period, id. § 2612(a)(1), and
gives them the right to return to the same or equivalent position held when such leave
commenced, id. § 2614(a)(1)(A)-(B). An employee is entitled to FMLA leave for, among other
things, “a serious health condition that makes the employee unable to perform the functions of
the position of such employee.” Id. § 2612(a)(1)(D).
The FMLA creates two types of claims: interference and retaliation. Interference claims
are based on alleged attempts by an employer to “interfere with, restrain, or deny the exercise of
or the attempt to exercise” any right protected by the FMLA. Id. § 2615(a)(1). These claims
encompass violations of the right to be reinstated to a similar position after taking leave.
Retaliation claims result from an employer allegedly “discharg[ing] or in any other manner
discriminat[ing] against any individual for opposing any practice made unlawful by” the FMLA.
Id. § 2615(a)(2). Here, Ms. Ahmed claims only an interference violation, alleging The Salvation
Army‟s “termination of [Ms. Ahmed‟s] employment on or about December 29, 2010 was in
violation of the FMLA, … which prohibits interference with an employee‟s exercise of her
FMLA rights.” (Compl. ¶ 31.)
To establish an FMLA interference claim, an employee must prove that: (1) she was an
eligible employee; (2) her employer was covered by the FMLA; (3) she was entitled to leave
under the FMLA; (4) she gave her employer adequate notice of her intention to take leave; and
(5) the employer denied her FMLA benefits to which she was entitled. Rodriguez v. Smithfield
Packing Co., 545 F. Supp. 2d 508, 516 (D. Md. 2008) (citing Edgar v. JAC Prods., Inc., 443
F.3d 501, 507 (6th Cir. 2006)). In the present case, the parties do not dispute that Ms. Ahmed
was an eligible employee, see 29 U.S.C. § 2611(2)(A), or that The Salvation Army was covered
by the FMLA, see 29 U.S.C. § 2611(4)(A)(i). Moreover, for purposes of this decision, this court
assumes that Ms. Ahmed was entitled to leave under the FMLA, as the need for open heart
surgery constitutes a “serious health condition” that rendered Ms. Ahmed unable to perform the
functions of her job. See 29 U.S.C. § 2612(a)(1)(D). Therefore, if Ms. Ahmed had otherwise
complied with the FMLA‟s requirements, her entitlement to the substantive protections under the
FMLA would be clear.
Before an employee can bring an interference claim, however, she must demonstrate that
she was entitled to protections under the FMLA. Specifically, the employee must provide
“adequate notice of her intention to take leave.” Rodriguez, 545 F. Supp. 2d at 516. An
employer may require that a request for leave be supported by “a certification issued by the
health care provider of the eligible employee.” 29 U.S.C. § 2613(a); see also Rhoads v. F.D.I.C.,
257 F.3d 373, 383 (4th Cir. 2001). A certification is sufficient “if it articulates: the date on
which the serious health condition commenced; its probable duration; the „appropriate medical
facts,‟ within the health care provider‟s knowledge, regarding this condition; and a statement that
the employee is unable to perform the functions of her position.” Rhoads, 257 F.3d at 383
(quoting 29 U.S.C. § 2613(b)(1)-(3), (4)(B)). A certification is incomplete “if the employer
receives a certification, but one or more of the applicable entries have not been completed.” 29
C.F.R. § 825.305(c). If the employer considers the certification incomplete, the employer shall
advise the employee of this belief, “state in writing what additional information is necessary to
make the certification complete and sufficient,” and “provide the employee with seven calendar
days (unless not practicable under the particular circumstances despite the employee‟s diligent
good faith efforts) to cure” any deficiency. Id.
Based on the undisputed facts established in this record, viewed in the light most
favorable to Ms. Ahmed, it is clear Ms. Ahmed‟s Certification Form was incomplete as a matter
of law. Shortly after Ms. Ahmed notified The Salvation Army that she would need open heart
surgery and would be absent from work, The Salvation Army instructed Ms. Ahmed to complete
and return several FMLA forms, including a Certification Form. Although Ms. Ahmed returned
a Certification Form signed by her health care provider on November 6, 2010, the form only
identified the medical name of her upcoming surgery: “For Redo Aortic + Mitral Valve
Replacement.” (See Def.‟s Mem. Summ. J., Decl., Ex. 9.) It did not include responses to the
seven separately numbered questions or their various sub-parts. Most importantly, the
Certification Form did not contain any information regarding the date on which Ms. Ahmed‟s
heart condition commenced, the condition‟s expected duration, Ms. Ahmed‟s expected period of
incapacity, or a statement that Ms. Ahmed was unable to perform the functions of her job. (See
id.) On November 11, 2010, The Salvation Army notified Ms. Ahmed that it considered her
Certification Form to be incomplete and allowed her until November 19, 2010 to submit a
“complete and legible” form. (Id. at Ex. 10.) Ms. Ahmed submitted a new Certification Form on
November 18, 2010, which was virtually identical to the November 6 Certification Form. (Id. at
Ex. 11.) Both the November 6 and November 18 Certification Forms were incomplete as a
matter of law because they did not contain any information regarding the date on which Ms.
Ahmed‟s serious health condition commenced, the health condition‟s expected duration, Ms.
Ahmed‟s expected period of incapacity, or a statement that Ms. Ahmed was unable to perform
the functions of her job. See Rhoads, 257 F.3d at 383; 29 U.S.C. § 2613(b)(1)-(3), (4)(B).
Despite never receiving a complete Certification Form, The Salvation Army would not be
entitled to summary judgment if Ms. Ahmed could show The Salvation Army did not comply
with relevant FMLA regulations. However, the undisputed facts demonstrate The Salvation
Army complied with the FMLA‟s regulations before it terminated Ms. Ahmed‟s employment.
Because The Salvation Army considered Ms. Ahmed‟s Certification Forms to be incomplete, it
was required to “state in writing what additional information is necessary to make the
certification complete and sufficient.” 29 C.F.R. § 825.305(c). As described above, on
November 11, 2010, The Salvation Army notified Ms. Ahmed that it considered her November 6
Certification Form incomplete and allowed her until November 19, 2010 to submit a “complete
and legible” form. (Def.‟s Mem. Summ. J., Decl., Ex. 10.) Ms. Ahmed correctly notes that the
November 11, 2010 correspondence “fails to specifically state what information is being
requested” and therefore may not satisfy 29 C.F.R. § 825.305(c). (Pl.‟s Mem. Partial Summ. J.
at 9.) However, on November 24, 2010—after Ms. Ahmed submitted the revised November 18
Certification Form—The Salvation Army again informed Ms. Ahmed that her Certification Form
“did not include sufficient information for The Salvation Army to designate [Ms. Ahmed‟s]
leave as Family/Medical Leave.” (Def.‟s Mem. Summ. J., Decl., Ex. 12.) This time, The
Salvation Army explained that several necessary items were not completed, including
information regarding Ms. Ahmed‟s “ability to perform some or all of [her] job functions” and
her “period of incapacity.” (Id.) Ms. Ahmed concedes that the November 24, 2010
correspondence stated with sufficient specificity what additional information The Salvation
Army required for Ms. Ahmed‟s Certification Form to be complete. (Pl.‟s Mem. Partial Summ.
J. at 9-10.) Accordingly, on November 24, 2010, The Salvation Army satisfied the requirement
under 29 C.F.R. § 825.305(c) to state in writing what additional information was necessary to
make Ms. Ahmed‟s Certification Form complete.
Moreover, contrary to Ms. Ahmed‟s contention, the undisputed facts show The Salvation
Army provided Ms. Ahmed with a reasonable time to cure the deficiencies in her Certification
Forms. See 29 C.F.R. § 825.305(c). After notifying an employee that her Certification Form is
incomplete, an employer must “provide the employee with seven calendar days (unless not
practicable under the particular circumstances despite the employee‟s diligent good faith efforts)
to cure” any deficiency. Id. The Salvation Army specifically informed Ms. Ahmed what
additional information was necessary to make her Certification Form complete on November 24,
2010.4 Thus, under the FMLA regulations, Ms. Ahmed had until December 1, 2010 to submit a
complete Certification Form. On December 2, 2010, after Ms. Ahmed had been absent from
work for three days “without acceptable documentation,” The Salvation Army asked Ms. Ahmed
to submit a completed Certification Form by December 8, 2010. (Def.‟s Mem. Summ. J., Decl.,
Ex. 13.) This deadline was extended to December 21, 2010 after The Salvation Army could not
confirm that Ms. Ahmed received the December 2, 2010 correspondence. (Id. at Ex. 14.) Ms.
Ahmed never submitted an additional Certification Form, and after giving Ms. Ahmed far more
than the required seven days to cure the deficiency, The Salvation Army terminated Ms.
Ahmed‟s employment on December 29, 2010. (See Def.‟s Mem. Summ. J., Decl., Ex. 15.) At
this point Ms. Ahmed had been out of the hospital for seventeen days. Accordingly, The
4
Ms. Ahmed argues that The Salvation Army was required to “advise Ms. Ahmed of the
requisite seven (7) calendar days to submit a corrected [Certification Form].” (Pl.‟s Mem. Partial
Summ. J. at 10.) This argument is without merit, however, as the FMLA regulations do not
require the employer to specifically inform the employee of the seven day cure period. See 29
C.F.R. § 825.305(c).
Salvation Army satisfied the requirement under 29 C.F.R. § 825.305(c) to provide Ms. Ahmed
with at least seven calendar days to cure the deficiencies in her Certification Forms.
Ms. Ahmed further argues that even if The Salvation Army provided her with seven days
to cure the deficiencies in her Certification Forms, “such time would not have been practicable
under the circumstances” in light of her heart surgery on December 1, 2010. (Pl.‟s Mem. Partial
Summ. J. at 11.) In so arguing, Ms. Ahmed seeks to invoke the equitable provision of 29 C.F.R.
§ 825.305(c), which specifies that an employer must “provide the employee with seven calendar
days (unless not practicable under the particular circumstances despite the employee’s diligent
good faith efforts) to cure” any deficiency. 29 C.F.R. § 825.305(c) (emphasis added). In Peter v.
Lincoln Technical Inst., Inc., 255 F. Supp. 2d 417, 441 (E.D. Pa. 2002), the United States District
Court for the Eastern District of Pennsylvania analyzed identical regulatory language from 29
C.F.R. § 825.305(b) and noted that good faith requires “at least that the employee contact his
employer by telephone and make it aware that he is unable to return his [Certification Form]
before the deadline.” While it is true that Ms. Ahmed underwent heart surgery on December 1,
2010, she has not presented evidence of her good faith efforts to cure the deficiencies in her
Certification Forms between November 24, 2010 (the date on which she was specifically notified
of the deficiencies) and December 29, 2010 (more than seven days after the second notification
of the deficiencies). She did not even contact her doctor to ask him to complete the Certification
Form. Accordingly, Ms. Ahmed‟s argument fails.
Finally, despite Ms. Ahmed arguments to the contrary, The Salvation Army was not
required to contact Ms. Ahmed‟s health care provider directly for clarification of her
Certification Forms. (See Pl.‟s Mem. Partial Summ. J. at 12.) The FMLA regulations state that
an employer “may contact the health care provider for purposes of clarification” after an
employee submits a complete and sufficient Certification Form. 29 C.F.R. § 825.307(a)
(emphasis added). Because the term “may” is permissive, The Salvation Army was not required
to contact the Ms. Ahmed‟s health care provider for clarification. See, e.g., Rhoads, 257 F.3d at
385-86 (analyzing the FMLA‟s “second opinion” statutory and regulatory language and
concluding that “[b]ecause the term „may‟ is permissive, the plain language of the statute
indicates that an employer who questions the validity of a certification has the option of seeking
a second or third opinion, without being required to do so”). Moreover, the term “clarification”
means “contacting the health care provider to understand the handwriting on the [Certification
Form] or to understand the meaning of a response.” 29 C.F.R. § 825.307(a). When, as here, the
employee‟s Certification Form is incomplete, this FMLA regulation is inapplicable. Therefore,
Ms. Ahmed‟s argument is without merit.
Because Ms. Ahmed did not submit a completed Certification Form, The Salvation
Army‟s duty to provide FMLA leave was never triggered, and Ms. Ahmed was not entitled to
protections under the FMLA. In addition, The Salvation Army complied with the FMLA and its
corresponding regulations by advising Ms. Ahmed that her Certification Form was incomplete,
stating in writing what additional information was necessary to make the form complete, and
providing Ms. Ahmed with more than seven calendar days to cure the deficiency. See 29 C.F.R.
§ 825.305(c). Accordingly, The Salvation Army‟s motion for summary judgment as to Ms.
Ahmed‟s FMLA claim will be granted, and Ms. Ahmed‟s motion for partial summary judgment
will be denied.
B. Americans with Disabilities Act Claim
In Count II of her complaint, Ms. Ahmed claims that The Salvation Army “discriminated
against [her] by firing her on the pretext that she did not completely fill out her medical
certification” and that the “true motivation for terminating [Ms. Ahmed‟s] employment was
because of her disability.” (Compl. ¶ 38.) Title I of the ADA provides that “[n]o covered entity
shall discriminate against a qualified individual on the basis of disability in regard to …
discharge of employees … and other terms, conditions, and privileges of employment.” 42
U.S.C. § 12112(a). Wrongful discharge claims under the ADA are analyzed under the
framework announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Ennis v.
Nat’l Ass’n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 57-58 (4th Cir. 1995). Under this
framework, the plaintiff must first “prove a prima facie case of discrimination by a
preponderance of the evidence.” Id. at 58. If the plaintiff does so, “the burden shifts to the
defendant to articulate some legitimate, nondiscriminatory explanation ” for its employment
action. Id. Finally, if the defendant can present such a reason, “the burden shifts back to the
employee to show that the given reason was just a pretext for discrimination.” Evans v. Tech.
Applications & Serv. Co., 80 F.3d 954, 959 (4th Cir. 1996) (citations omitted). Based on the
record before this court, Ms. Ahmed has failed to satisfy her obligation.
To establish a prima facie case of wrongful discharge, a plaintiff must show: (1) she has a
disability; (2) she was otherwise qualified for the position; and (3) the “discharge occurred under
circumstances that raise a reasonable inference of unlawful discrimination.” Darcangelo v.
Verizon Md., Inc., 189 F. App‟x 217, 218 (4th Cir. 2006) (quoting Haulbrook v. Michelin N.
Am., Inc., 252 F.3d 696, 702 (4th Cir. 2001)). The Salvation Army has not argued that Ms.
Ahmed is not disabled under the ADA. Instead, The Salvation Army contends that it is entitled
to summary judgment because: (A) Ms. Ahmed is not a qualified individual with a disability; and
(B) she was not terminated because of any disability.5 Although “[p]roving a prima facie case is
a „relatively easy‟ burden,” Figueroa v. Geithner, 711 F. Supp. 2d 562, 572 n.12 (D. Md. 2010)
(citations omitted), Ms. Ahmed has not done so here.
Assuming without deciding that Ms. Ahmed was a qualified individual under the ADA,6
the undisputed facts demonstrate that The Salvation Army‟s decision to terminate Ms. Ahmed
was because of her unexcused absences and not because of a disability. As described above, The
Salvation Army made numerous attempts to obtain a completed Certification Form for Ms.
Ahmed‟s requested FMLA leave. Despite Ms. Ahmed having twice submitted incomplete
Certification Forms, The Salvation Army nevertheless gave her additional opportunities to cure
the deficiencies. It was not until Ms. Ahmed was absent for twenty-three days without approval
that The Salvation Army finally terminated her employment. Therefore, the undisputed evidence
precludes an inference that Ms. Ahmed‟s “discharge occurred under circumstances that raise a
reasonable inference of unlawful discrimination.” Haulbrook, 252 F.3d at 702 (citations
omitted).
5
The Salvation Army also contends that Ms. Ahmed‟s wrongful discharge claim should be
dismissed for failure to state a claim because it does not allege that she exhausted her
administrative remedies before filing suit. Because this court will deny as moot Ms. Ahmed‟s
motion to amend her complaint, this argument is not addressed. See infra Part III.
6
The ADA defines a “qualified individual” with a disability as “an individual who, with or
without accommodation, can perform the essential functions of the employment position that
such individual holds or desires.” 42 U.S.C. § 12111(8). The Salvation Army contends that the
factual allegations and the communications referenced in the complaint “preclude an inference
that [Ms. Ahmed] was a qualified individual” because she “was absent and unable to perform
any of the essential functions of her position.” (Def.‟s Mem. Summ. J. at 10-11). Although it is
true that “a regular and reliable level of attendance is a necessary element of most jobs” and that
“[a]n employee who cannot meet the attendance requirements of the job at issue cannot be
considered a „qualified‟ individual protected by the ADA,” see Tyndall v. Nat’l Educ. Ctrs., Inc.
of Cal., 31 F.3d 209, 213 (4th Cir. 1994) (citations omitted), this court need not decide the issue.
As explained below, The Salvation Army terminated Ms. Ahmed because of her unexcused
absences and not because of any disability.
Even if Ms. Ahmed could present a prima facie case of wrongful discharge, the
undisputed facts show a legitimate, non-discriminatory reason for The Salvation Army‟s decision
to discharge Ms. Ahmed. See Ennis, 53 F.3d at 58. The Salvation Army‟s burden here is one of
production, not persuasion. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142
(2000). The Salvation Army has presented evidence that its decision to terminate Ms. Ahmed‟s
employment was based on her unexcused absences. On December 2, 2010, after Ms. Ahmed had
been absent from work for three days without providing a completed FMLA Certification Form,
The Salvation Army explained that the failure to provide documentation for her unauthorized
absences would result in her termination. (Def.‟s Mem. Summ. J., Ex. 13.) The Salvation
Army‟s policies provide for termination of employment after three days of unauthorized absence.
(Def.‟s Mem. Summ. J., Decl. at ¶ 14 n.2.) Accordingly, The Salvation Army has articulated a
legitimate, non-discriminatory reason for Ms. Ahmed‟s discharge. Because The Salvation Army
can show a legitimate, non-discriminatory reason for discharging Ms. Ahmed, she would then be
required to carry the burden of demonstrating that the reasons for her termination were merely a
pretext for discrimination. See Evans, 80 F.3d at 960. Ms. Ahmed has not offered any evidence
of pretext and therefore has not met her burden here. Accordingly, The Salvation Army‟s
motion for summary judgment as to Ms. Ahmed‟s ADA claim will be granted.
II.
Ms. Ahmed’s Motion for Rule 56(d) Relief
Under Rule 56(d),7 “[i]f a nonmovant shows by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify its opposition [to a motion for summary
judgment], the court may: (1) defer considering the motion or deny it; (2) allow time to obtain
7
Rule 56 was amended effective December 1, 2010; the amendments moved (without making
material change) the substance of subsection (f) to subsection (d).
affidavits or declarations to take discovery; or (3) issue any other appropriate order.” A Rule
56(d) affidavit cannot conclusorily state that additional discovery is required. It must specify
“why facts precluding summary judgment cannot be presented. This includes identifying the
probable facts not available and what steps have been taken to obtain these facts.” Trask v.
Franco, 446 F.3d 1036, 1042 (10th Cir. 2006) (internal quotations omitted). Ms. Ahmed has not
presented grounds to permit discovery here.
In her Rule 56(d) affidavit, Ms. Ahmed states that discovery is necessary “to gain
additional evidence to properly rebut” The Salvation Army‟s statement of undisputed facts.
(Pl.‟s Opp‟n, Ex. 2 at 3.) Ms. Ahmed seeks: (i) to investigate the influence supervisors and
management had on each deciding official; (ii) to investigate whether The Salvation Army has
imposed less stringent Certification Form requirements on employees without any disabilities or
with less severe disabilities than Ms. Ahmed; (iii) to investigate the records, notes, and
documents relating to the incidents of employees requesting and The Salvation Army granting
leave; (iv) access to all testimony and evidence obtained in the EEOC investigation; and (v) to
examine the list of employees who have engaged in the same or more severe conduct as Ms.
Ahmed but who have not been disciplined and/or terminated. (Id. at 3-4.) Ms. Ahmed‟s
affidavit does not meet the standard outlined above, as it does nothing more than conclusorily
state that additional discovery is required. Her ADA cause of action would fail under Rule
12(b)(6), and the Rule 56(d) motion is simply “fishing” for facts to support a claim of disability
discrimination.8 Accordingly, Ms. Ahmed‟s Rule 56(d) motion will be denied.
8
Although not raised by The Salvation Army, it should be noted that Ms. Ahmed‟s complaint
does not seem to allege facts sufficient to state that she was disabled within the meaning of the
ADA. In her complaint, Ms. Ahmed alleges only that she “has suffered from a chronic heart
condition, and as such, is an individual with a disability under the [ADA].” (Compl. at ¶ 36.)
Assuming that Ms. Ahmed‟s chronic heart condition constitutes a physical impairment under the
III. Ms. Ahmed’s Motion to File Amended Complaint
Ms. Ahmed seeks leave to amend her complaint to specifically allege that she exhausted
her administrative remedies as required by the ADA. See Sydnor v. Fairfax Cnty., 681 F.3d 591,
593 (4th Cir. 2012) (explaining that the ADA incorporates the enforcement procedures that apply
under Title VII, including exhaustion of administrative remedies). Because this court will grant
The Salvation Army‟s motion for summary judgment as to Ms. Ahmed‟s ADA claim for reasons
unrelated to this minor pleading deficiency, Ms. Ahmed‟s motion to file an amended complaint
will be denied as moot.
CONCLUSION
For the foregoing reasons, The Salvation Army‟s motion to dismiss or, in the alternative,
for summary judgment will be granted; Ms. Ahmed‟s motion for partial summary judgment will
be denied; Ms. Ahmed‟s Rule 56(d) motion will be denied; and Ms. Ahmed‟s motion to file an
amended complaint will be denied as moot. A separate Order follows.
December 28, 2012
Date
/s/
Catherine C. Blake
United States District Judge
ADA, Ms. Ahmed has failed to allege that her condition substantially limits her in the
performance of a major life activity. Indeed, her complaint does not identify any major life
activity that is limited by her chronic heart condition, nor does it contain any facts regarding the
impact of her chronic heart condition on her ability to perform a major life activity. See Hale v.
King, 642 F.3d 492, 500 (5th Cir. 2011) (concluding that plaintiff did not allege “facts from
which [the court] can reasonably infer that he suffered from a disability under the ADA” where
the plaintiff “failed to allege that his conditions substantially limited him in his performance of a
major life activity”).
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