Nicely v. Safeway Inc

Filing 78

MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 7/3/14. (sat, Chambers)

Download PDF
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : DIANA M. NICELY : v. : Civil Action No. DKC 13-2827 : SAFEWAY, INC. : MEMORANDUM OPINION Presently pending and ready for review in this Family Medical Leave Act case is the motion for summary judgment filed by Defendant Safeway, Inc. (ECF No. 47). The issues have been fully briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, the motion for summary judgment will be denied. I. Background1 Plaintiff Diana M. Nicely was a meat wrapper at Defendant’s grocery store in Damascus, Maryland. On June 25, 2010, she went into the store’s freezer to get a product, and while in there, she slipped and hit her back on a stack of wood pallets. On June 29, 2010, she visited a local medical clinic, complaining of lower back pain. A workers’ compensation claim was filed with Defendant, she obtained a note excusing her from work, and 1 Unless otherwise noted, construed in the light most nonmoving party. the facts outlined here favorable to Plaintiff, are the returned to work on July 5, 2010. medical professionals in complain of back pain. the She made numerous visits to following months, continuing to She also visited Nurse Practitioner Kate Smith at the Opal Medical Group on August 16, 2010 to treat an upper respiratory infection. Anwar examined Plaintiff On November 4, 2010, Dr. Samina for continuing back issues and authorized light duty, instructing her to avoid heavy lifting of more than Ramakrishna ten pounds Kosuri for and recommended physical therapy that and she pain see Dr. management. Ms. Sandy John, a registered nurse representing Defendant who accompanied Plaintiff to this appointment, sent in the light duty note and office. (ECF Plaintiff was referral No. put to 60-1, on Defendant’s at light 95-96). duty in workers’ compensation Beginning the meat that day, department. Defendant scheduled an independent medical examination (“IME”) with Dr. David Johnson on November 18, 2010. Plaintiff failed to make this appointment and it was rescheduled for December 13, 2010. On November 22, 23, and 24, 2010, Plaintiff called in sick, but never spoke with a store manager or assistant store manager as required by Safeway policy, instead leaving messages with lower-level available. employees when told management (ECF No. 60-1, at 4-5, Plaintiff Aff.).2 2 was not Plaintiff Defendant’s employee handbook states that “[w]hen it is necessary for you to be away from work because of illness or for 2 was out of work for the entire week of November 29, 2010, this time after speaking with the Assistant Store Manager. In her affidavit, Plaintiff states that after Dr. Anwar recommended office to she see schedule Dr. an Kosuri, she appointment telephoned but was Dr. told approval from her worker’s compensation office. Kosuri’s she needed She states that she called and left a message with Ms. John and Ms. John’s supervisor but no one ever got back to her. According to Plaintiff, she eventually discovered that Defendant would not pay for treatment by Dr. Kosuri. Plaintiff offered to pay for it herself, but Dr. Kosuri would not accept this arrangement because it was a workers’ compensation injury. (ECF No. 60-1, at 5-6). Defendant’s employees to be FMLA placed policy on contemplates FMLA-leave: (1) two by methods the for employee any reason, you are required to contact your manager in advance. If advance notice is not possible, you should make a sincere effort to contact the manager or person in charge within the first hour of your scheduled work shift.” (ECF No. 47-2, at 15). Mr. Mark Woodfield, the store manager, testified that a note was left on his desk stating that Plaintiff had been trying to contact him or get a call from a manager and she wants him to call her. Mr. Woodfield went to Plaintiff’s supervisor to get Plaintiff’s phone number, but the supervisor only had her husband’s phone number. Mr. Woodfield stated that he called Plaintiff’s husband but could not recall whether he spoke with him, or when this note was given to him as it was undated. (ECF No. 60-1, at 61-62, Trans. 61:5 – 63:2; id. at 65 (copy of the note)). 3 initiating a request for leave, or (2) the employer initiating the leave process when it has been notified that the employee is absent on account of a serious health condition. at 113). (ECF No. 47-2, The policy goes on to provide that: If an employee is absent from work for a Family Leave-qualifying reason, and the absence has not yet been designated by the Company as Family Leave, upon return to work the employee has 3 business days to notify the Company that the absence may qualify for Family Leave. The employee must support the request with the required health care provider certification. If the employee fails to report the qualifying reason and to provide the required certification within 5 business days, the absence will not be designated as Family Leave and the employee will have no family leave protection for the absence. . . . The Company may designate an employee’s time off as Family Leave if available information indicates that the time off meets leave criteria. . . . Whenever a Health Care Provider Certification is required, the employee has 15 calendar days from the date of the Company’s request to provide it. (Id. at 113-14). A footnote to the above portion states that “[m]erely contacting one’s supervisor to ‘call in sick’ is not notice to the Company of a ‘serious health condition’ nor is it sufficient to notify the Company that the employee’s absence may 4 qualify for Family Leave designation under this policy.” (Id. at 116). On December 6, 2010, Mr. Mark Woodfield, the store manager, called Plaintiff and informed her that she was scheduled to work light duty for the week beginning the next day. According to Mr. Woodfield, Plaintiff told him she would call back and let him know whether she could work light duty or not, which Plaintiff never did. Mr. Woodfield also states that he asked Plaintiff medical claims. to provide documentation to (ECF No. 47-1, at 65, Trans. 81:14-19). a different version of events. back up her Plaintiff has According to her, she told Mr. Woodfield that she needed to get off the schedule because she was in a lot of pain on account of her back injury and the worker’s compensation office was not following through on the referral to Dr. Kosuri. According to Plaintiff, Mr. Woodfield responded that she was on the schedule for light duty and that she was to report for light duty. Plaintiff asked Mr. Woodfield if he would help her get an appointment with Dr. Kosuri. Woodfield stated responsibility.3 he would not, because that was Mr. Plaintiff’s According to Plaintiff, Mr. Woodfield never 3 Mr. Woodfield gave testimony similar to Plaintiff’s version in Plaintiff’s 2011 worker’s compensation hearing: Q: [W]hen I [Plaintiff] called you I asked you to take me off the schedule because I 5 asked her for medical documentation nor did he ever tell her to call him back. (ECF No. 60-1, at 6). Plaintiff did not show up for work or call to inform the store of her absence for her scheduled shifts on December 7, 8, 10, and 11, 2010. unexcused absence that week, Mr. Woodfield For each wrote up a “Confirmation of Performance Interview” documenting Plaintiff’s substandard attendance, although these forms were never signed by Plaintiff to acknowledge receipt. In her affidavit, Plaintiff states that she called Dr. Anwar on December 6 and requested that she be taken off work for needed to get – to see a doctor and they weren’t following through, correct? A: Correct. . . . A: At that time I told you that you were on the schedule for light duty and that you needed to report to work on light duty and I would work any arrangements that you had for doctor’s appointments or anything like that, but you were to report to work on light duty. . . . Q: So on November – December 6th when I was calling around trying to get this appointment and get the help – did you call to try to help me keep my job by (inaudible) scheduling a doctor’s appointment? A: No, that’s your responsibility. (See ECF No. 60-1, at 72-73, Trans. 81:17 – 83:6) 6 December 3 through December 13 because of her pain. Dr. Anwar sent a letter Plaintiff’s family doctor. to Dr. Waseem of the That day, Opal Group, The letter stated that [Plaintiff] was seen in my office for a follow up visit on 11-04-2010. The patient was diagnosed with lower lumbar and sacral radiculopathy. The patient was advised to avoid lifting more than 10 pounds. I recommended for the patient to be seen for physical therapy and pain management, she was given the name and number to Dr. Kosuri’s office. In the meantime, she can continue anti-inflammatory medicine, Lyrica and muscle relaxant as needed. I will see her back in my office only on an as needed basis. (ECF No. 60-1, at 110). Nurse Practitioner who On December 7, 2010, Ms. Smith – the treated Plaintiff in August 2010 – provided a note that Plaintiff has been unable to return to work from December 3 to December 10, 2010. (ECF No. 47-2, at 118). Plaintiff testified that neither Ms. Smith nor anyone at Opal Medical Group treated Plaintiff that day. Trans. 159:11-14). (ECF No. 47-1, at 23, Plaintiff has provided what appears to be a call log from Opal that has the following entry for December 7, 2010: “Left message for [Plaintiff] to call our office she requested a work note and Kate said that’s fine to do we just need to know th[e] dates she needs. 106).4 TR.” (ECF No. 60-1, at Plaintiff faxed this note to 301-391-6222, which she 4 Plaintiff does not reference this document anywhere in her brief or explain what it is. 7 believed letter to be Defendant’s accompanying Doctors 12-13-10 Hagerstown. at 138).5 the still facsimile note, she waiting number. wrote: on call In “Called from Need off until we know what due.” her to cover confirm Robinwood in (ECF No. 47-2, Mr. Jim Unger, owner of CTI Underground, LLC, provided an affidavit stating that his company owns that fax number and provided a corroborating phone bill. (Id. at 120-136). Plaintiff testified that she called Defendant after sending the fax and confirmed that it was received, although she could not remember with whom she spoke at Safeway.6 Defendant’s doctor, David Johnson, noted that Ms. Smith’s note did not document a reason for Plaintiff’s excusal for this time period. Plaintiff was not seen by Ms. Smith during that time; the last note in the record from Ms. Smith was from nearly four months prior, for acute bronchitis and sinusitis. (ECF No. 47-2, at 140). On December 7, 2010, Defendant’s human resources department was informed of Plaintiff’s apparently unexcused absences and 5 Robinwood appears to be the orthopedic center that employs Dr. Kosuri. 6 In her complaint, Plaintiff states that she sent two faxes to Defendant on December 7, 2010. The first was the note from Ms. Smith, and the second was from Plaintiff advising “that she needed additional time off because of the on-going severity of the pain in her back and that she was waiting for approval from her employer to see a specialist for it.” (ECF No. 5 ¶ 5). Plaintiff appears to have abandoned this version of events, as her response to Defendant’s motion mentions only the fax containing Ms. Smith’s note. 8 determined that, based on the number of consecutive absences without proper notice, it appeared Plaintiff had abandoned her job. The HR department spoke with its workers’ compensation office which confirmed that according to the documentation it had received, Plaintiff was able to work light duty. Following the Confirmation of Performance Interview notices, HR rechecked with the workers’ compensation office to see if it had any documentation to support the absences and confirmed there was none, but was informed that Plaintiff had an IME scheduled in the near future. (ECF No. 47-1, at 140-41, Shahan Aff.). The IME was rescheduled for December 13, 2010. Defendant arranged for transportation for Plaintiff, but no one answered the door when the driver arrived at Plaintiff’s residence. Plaintiff states that no one ever came to pick her up as her dogs would bark whenever someone came to the door and the dogs never barked. IMEs and department her Based on Plaintiff’s failure to show up for the repeated terminated unexcused Plaintiff’s absences, employment Defendant’s on December HR 14, 2010, in accordance with Defendant’s job abandonment policy.7 Defendant states that it has no record that Plaintiff requested Family Medical Leave or any documentation 7 indicating that Defendant’s job abandonment policy provides that “absence without notice for three (3) consecutive shifts will constitute job abandonment and will result in termination.” (ECF No. 47-2, at 8). Defendant states that this policy is provided to all employees at the time they are hired. 9 Plaintiff was unable to work in November or December 2010 on account of a serious health condition. Dr. Johnson – after examining Plaintiff on February 14, 2011 and June 13, 2011 – concluded that the symptoms Plaintiff was experiencing stemmed from her preexisting back problems, and “therefore any time off between 12/03/2010 and 12/30/2010, in my opinion, would not be related to the injury of 06/25/2010.” (ECF No. 47-2, at 130). Plaintiff’s doctor, Michael Franchetti, arrived at a different conclusion in a January 7, 2011 report, finding that Plaintiff’s back problems were due to the June 25, 2010 injury, but she would be available for limited duties at work. at 48-49). (ECF No. 60-1, Plaintiff filed a claim with the state Worker’s Compensation Commission, which was eventually settled. On September 27, 2012, Plaintiff filed a complaint in the Circuit Court for Prince George’s County, Maryland, alleging that Defendant terminated her employment instead of giving her the leave to which she was entitled under the Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2601, et. seq (“Count I”), and that she was terminated because she filed a worker’s compensation claim, in violation of Md. Code Ann., Lab. & Empl. § 9-1105 (“Count II”). (ECF No. 5). Defendant answered on February 1, 2013 (ECF No. 13), and discovery commenced. On July 24, 2013, Defendant moved for summary judgment on both counts. (ECF No. 47). Plaintiff filed her opposition on September 18, 10 2013 (ECF Nos. 60), to which Defendant replied on November 7, 2013 (ECF No. 71). Defendant removed the case to this court on September 25, 2013, citing federal question and diversity of citizenship as the jurisdictional bases. Plaintiff filed a motion to remand, which was denied in a Memorandum Opinion and Order on December 12, 2013, ruling that only Count I was removed to this court. II. (ECF No. 75).8 Standard of Review A motion for summary judgment will be granted only if there exists no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 (1986). The moving party bears the burden of showing that there is no genuine dispute as to any material fact. U.S. 242, 250 However, no genuine dispute of material fact exists if the nonmoving party fails to make a sufficient showing on an essential element of his or her case as to which he or she would have the burden of proof. Celotex, 477 U.S. at 322–23. Therefore, on those issues on which the nonmoving party has the burden of proof, it is his or her responsibility to confront the summary judgment motion 8 28 U.S.C. § 1445(c) prohibits an action in state court arising under the workmen’s compensation laws of such state to be removed. 11 with an affidavit or other similar evidence showing that there is a genuine dispute for trial. Summary judgment is appropriate under Federal Rule of Civil Procedure Rule 56(a) when there is no genuine dispute as to any material fact, and the moving party is plainly judgment in its favor as a matter of law. Liberty Lobby, Inc., the Supreme Court In entitled to Anderson v. explained that, in considering a motion for summary judgment, the “judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” 477 U.S. at 249 (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.” Id. Thus, “the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fairminded jury could return a verdict for the [nonmoving party] on the evidence presented.” Id. at 252. In undertaking this inquiry, a court must view the facts and the reasonable inferences drawn therefrom “in the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also E.E.O.C. v. Navy Fed. Credit Union, 424 F.3d 397, 405 (4th Cir. 2005). The mere existence of a “scintilla” of 12 evidence in support of the non-moving party’s case is sufficient to preclude an order granting summary judgment. not See Anderson, 477 U.S. at 252. A “party cannot create a genuine dispute of material fact through mere speculation or compilation of inferences.” Shin v. Shalala, 166 F.Supp.2d 373, 375 (D.Md. 2001) (citation omitted). Indeed, this court has an affirmative obligation to prevent factually unsupported claims and defenses from going to trial. See Drewitt v. Pratt, 999 F.2d 774, 778–79 (4th Cir. 1993) (quoting Felty v. Graves–Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987)). III. Analysis A. Workers’ Compensation Settlement Defendant’s first argument is that Plaintiff agreed to release Defendant from all claims stemming from these events as part of claim. the settlement of Plaintiff’s workers’ compensation To memorialize their agreement, the parties used Form H- 09, created by the Maryland Workers’ Compensation Commission. Defendant points to the following clause of Form H-09: The Claimant hereby accepts this Agreement and the aforesaid payment(s) in final compromise and settlement of any and all Claims which the Claimant, his or her personal representative, dependents, wife and children or any other parties who become beneficiaries under the Workers’ Compensation Law, might now or could hereafter have under the provision of said 13 Law, arising out of the aforesaid injury or disablement or the disability resulting therefrom, and does hereby, on behalf of himself or herself and all of said other parties, release and forever discharge the Employer and insurer, their personal representative, heirs, successors and assigns, from all other claims of whatsoever kind which might or could hereafter arise under the Law from the said injury, disablement or disability. (ECF No. 47-2, at 146). Defendant argues that this clause eliminates all claims stemming from Plaintiff’s June 25, 2010 injury, not just those claims that could be brought under the workers’ compensation laws. It points to the clause’s two uses of the term “Law”: first, it refers to “the provision of said Law,” clearly referring mentioned just earlier. to the “Workers’ Compensation Law” The second use, however, does not have any modifier; instead it bars all claims that could “arise under the Law from the said injury.” Defendant’s arguments are unpersuasive. “The cardinal rule of contract interpretation is to give effect to the parties’ intentions.” Cemetery Dumbarton Improvement Ass’n, Inc. v. Druid Ridge Co., 434 Md. 37, 51 (2013). The court’s job in interpreting a contract is to “determine from the language of the agreement itself what a reasonable person in the position of the parties would have meant at the time it was effectuated.” Gen. Motors (1985). Acceptance Corp. v. Daniels, 303 Md. 254, 261 “[T]he contract must be construed in its entirety and, 14 if reasonably possible, effect must be given to each clause so that a court will not find an interpretation which casts out or disregards a meaningful part of the language of the writing unless no other course can be sensibly and reasonably followed.” Sagner v. Glenangus Farms, Inc., 234 Md. 156, 167 (1964). capitalization of the word “Law” controls this The issue. Generally, one capitalizes a general term when desiring to use it as shorthand for a specific thing or concept. Here, the thing that “Law” refers to is the earlier reference in the same clause to “Workers’ Compensation Law.” contract demonstrate that the Other portions of the capitalization of “Law” was intentional as it uses this tool elsewhere: the phrase “any workers’ compensation benefit” is used to refer to the general concept of workers’ compensation while the capitalized “Workers’ Compensation Law” is intended to refer to the specific law of Maryland. Furthermore, the preamble to the contract states that the “parties have reached an agreement providing . . . for a final compromise and settlement of any and all claims which the Claimant . . . might now or could hereafter have under the provisions of the Workers’ Compensation Law against the Employer and/or the Insurer.” This clause further illustrates that the parties intended to preclude only those claims stemming from Plaintiff’s injury that arise under the Maryland Workers’ Compensation Law, not all potential claims under any law. 15 Defendant cites to two cases which are not helpful to its position. One case involved a contract that clearly stated that the claimant had no claim under the law that was at issue in his subsequent complaint, Ellett v. Giant Food, Inc., 66 Md.App. 695, 701 (1986), and the other would be applicable only if the term “Law” refers to all laws instead of just the Maryland Workers’ Compensation Law, which the language of this contract does not support, Pope v. Bethesda Health Ctr., Inc., 813 F.2d 1306, 1307-08 (4th Cir. 1987). Consequently, Plaintiff’s FMLA claim is not subject to the release agreed to as part of the settlement of Plaintiff’s workers’ compensation claim. B. FMLA Claim The FMLA provides that an eligible employee9 must be allowed to take up to twelve work weeks of unpaid leave during any twelve-month period because of a serious health condition that prevents the employee from performing his or her job. § 2612(a)(1)(D). 29 U.S.C. Two types of claims exist under the FMLA: (1) “interference,” in which the employee alleges that an employer denied or interfered with her substantive rights under the FMLA, and (2) “retaliation,” in which the employee alleges that the employer discriminated against 9 her for exercising her FMLA An “eligible employee” is one who has been employed for more than twelve months before requesting leave under the FMLA, and has worked at least 1,250 hours within that period. 29 U.S.C. § 2611(2)(A). There is no dispute that Plaintiff was an “eligible employee.” 16 rights. Cir. See Dotson v. Pfizer, Inc., 558 F.3d 284, 294-95 (4th 2009). In her complaint, Plaintiff claims that “[t]erminating the Plaintiff, without allowing her medical leave to address her serious violation of the [FMLA].” medical condition, (ECF No. 5 ¶ 14). constituted a Defendant, in its motion, construed Plaintiff’s claim as one for interference, and Plaintiff responded in kind. To establish unlawful interference with an entitlement to FMLA benefits, an employee must prove that: (1) she was an eligible employee; (2) her employer was covered by the statute; (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. Wonasue v. Univ. of Md. Alumni Ass’n, --- F.Supp.2d ----, at *13 (D.Md. Nov. 22, 2013) (quoting Rodriguez v. Smithfield Packing Co., 545 F.Supp.2d 508, 515 (D.Md. 2008)). The employee also must prove “that the violation prejudiced her in some way.” Anderson v. Discovery Commc’ns, LLC, 517 F.App’x 190, 197 (4th Cir. 2013) (citing Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, disputes 89 (2002); that requirements; 29 U.S.C. Plaintiff Defendant has argues § 2617(a)). satisfied that Neither the Plaintiff has party first failed two to demonstrate the entitlement and notice prongs and, in addition, it had a legitimate reason for termination wholly unrelated to Plaintiff’s FMLA leave. 17 The illness, FMLA defines injury, “serious impairment, health or condition” physical or as: mental “an condition that involves – (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider.” also grants the Secretary 29 U.S.C. § 2611(11). of Labor regulations implementing the Act. authority, defining the Secretary “serious health authority Id. § 2654. promulgated condition.” a to The FMLA promulgate Pursuant to this regulation The further regulation states: “(a) For purposes of FMLA, ‘serious health condition’ entitling an employee to FMLA leave means an illness, injury, impairment or physical or mental condition that involves inpatient care as defined in § 825.114 or continuing treatment by a health care provider as defined in § 825.115.” regulation provides that 29 C.F.R. § 825.113(a). “[t]he term ‘incapacity’ The means inability to work, attend school or perform other regular daily activities due to the serious therefore, or recovery therefrom.” health condition, treatment Id. § 825.113(b). Plaintiff does not allege that she experienced inpatient care, so the focus falls on whether Plaintiff’s condition involved “continuing treatment by a health care provider.” The regulations provide that such a situation exists in either of the following circumstances: 18 (a) Incapacity and treatment. A period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves: (1) Treatment two or more times, within 30 days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider, by a nurse under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider; or (2) Treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider. 29 C.F.R. § 825.115(a). Defendant argues that Plaintiff has failed adequate notice of her need for FMLA leave. to provide “An employee is mandated to provide notice to her employer when she requires FMLA leave.” Rhoads v. FDIC, 257 F.3d 373, 382 (4th Cir. 2001); see also Rodriguez v. Smithfield Packing Co., 545 F.Supp.2d 508, 515-16 (D.Md. 2008) (“The core requirements for triggering an employer’s obligations [under the FMLA] are a serious health condition and adequate communication, meaning a timely communication sufficient to put an employer on notice that the protections of the Act may apply.” (emphasis in original)). The Fourth Circuit has explained the notice requirement as follows: 19 Where the need for leave is unforeseeable, “an employee should give notice to the employer . . . as soon as practicable under the facts and circumstances of the particular case.” [29 C.F.R.] § 825.303(a). At bottom, “[a]n employee shall provide at least verbal notice sufficient to make the employer aware that the employee needs FMLAqualifying leave, and the anticipated timing and duration of the leave.” Id. § 825.302(c). The employee, however, “need not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed. . . .” Id. The employer should inquire further to ascertain whether it is FMLA leave that is being sought and to obtain further details of this leave. See id. Rhoads, 257 F.3d at 382-83 (second alternation in original). The employer will be expected to obtain any additional required information through informal means. An employee has an obligation to respond to an employer’s questions designed to determine whether an absence is potentially FMLA-qualifying. Failure to respond to reasonable employer inquiries regarding the leave request may result in denial of FMLA protection if the employer is unable to determine whether the leave is FMLA-qualifying. 29 C.F.R. § 825.303(b). Most courts to consider the issue view notice for the purposes of the FMLA as a question of fact. See Clinkscale v. St. Therese of New Hope, 701 F.3d 825, 827 (8th Cir. 2012); Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 303 (3d Cir. 2012); Burnett v. LFW, Inc., 472 F.3d 471, 479 (7th Cir. 2006). The United States Court of Appeals for the Sixth Circuit has taken a slightly different tack, holding that 20 “it is within the province of the jury to determine the facts of the notice given, [but] it is for the court to determine whether those facts are sufficient reasonably to give an employer notice as required by the FMLA.” Cavin v. Honda of Am. Mfg., Inc., 346 F.3d 713, 723 (6th Cir. 2003). Defendant is not clear as to how it views Plaintiff’s notice as insufficient as it provides a great deal of discussion on the standards but does not connect Plaintiff’s alleged actions or inactions. those standards with Given its citations, it appears to argue that Plaintiff did not put Defendant on notice because she merely called in sick without providing more information, a situation the regulations and case law have found to be insufficient. See 29 C.F.R. § 825.303(b) (“Calling in ‘sick’ without providing more information will not be considered sufficient notice to trigger an employer’s obligations under the Act.”); 2011) Adams (“simply v. Wallenstein, calling in 814 ‘sick’ F.Supp.2d is 516, insufficient 526 to (D.Md. put an employer on notice that FMLA leave may be needed”). Plaintiff argues that the reports from Ms. John to Safeway put Defendant on notice that Plaintiff had a “serious health condition” which could trigger FMLA-leave, and she provided notice that she was taking leave because of that “serious health condition” when she spoke with Mr. Woodfield on December 6, 2010. As to general notice of a potential FMLA issue, she 21 refers to the November 23, 2010 report from Ms. John to Ms. Milazzo, a member of Defendant’s workers’ compensation office. The report lists Plaintiff’s current diagnosis as “[l]ower back pain with lumbar radiculopathy.” An MRI scan revealed that Plaintiff still had a bulging disc in her back, but that it is a “little bit more prominent.” The report recounts that Plaintiff requested to be placed in an off work status, but Dr. Anwar would only provide a light duty release and a referral to Dr. Kosuri who would determine work restrictions additional treatment was necessary. and if any (ECF No. 60-1, at 28-29). In addition, she had missed work from June 29 through July 4, 2010 because of her injury and had been Defendant’s workers’ compensation office. in contact with Viewing the evidence in the light most favorable to Plaintiff, Safeway was on notice that she had a “serious health condition.” The question then becomes whether Plaintiff put Defendant on notice of her need for leave because of that “serious health condition.” between That turns the focus to the December 6, 2010 call Plaintiff F.Supp.2d at 518 and Mr. (“The Woodfield. critical See question Rodriguez, is whether 545 the information imparted to the employer is sufficient to reasonably apprise it of the employee’s request to take time off for a serious health condition.” (emphasis in original)). In her affidavit, Plaintiff states that “Mark Woodfield called me and 22 told me that I was on the schedule this week. I told him that I needed to get off the schedule because I was in a lot of pain on account of my back injury, that I needed to see a specialist and the Workers Compensation Department was not following through on the recommendation K[o]suri.” compensation of Dr. Samir (ECF No. 60-1, at 6).10 hearing, Mr. Woodfield Anwar’s referral to Dr. At Plaintiff’s workers’ testified that when he called Plaintiff and told her she was on the schedule to work, Plaintiff told him that she could not work. 71, Trans. 70:8-11). (ECF No. 60-1, at Later, Plaintiff asked Mr. Woodfield to 10 In its reply, Defendant argues that Plaintiff’s affidavit should be stricken as a sham as Plaintiff is contradicting her prior testimony in an attempt to create a genuine dispute of material fact. “[A] party cannot create a genuine issue of fact sufficient to survive summary judgment simply by contradicting his or her own previous sworn statement (by, say, filing a later affidavit that flatly contradicts that party’s earlier sworn deposition) without explaining the contradiction or attempting to resolve the disparity.” Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999). “Application of the sham affidavit rule at the summary judgment stage must be carefully limited to situations involving flat contradictions of material fact.” Elat v. Ngoubene, --- F.Supp.2d ----, 2014 WL 253411, at *23 (D.Md. Jan. 21, 2014) (quoting Zimmerman v. Novartis Pharm. Corp., 287 F.R.D. 357, 362 (D.Md. 2012)). Defendant’s arguments concerning Plaintiff’s affidavit will be rejected. In certain respects Plaintiff’s affidavit contradicts her prior testimony. For example, she previously stated that it was she who called Mr. Woodfield, but now states that Mr. Woodfield called her. But in terms of the material dispute presently at issue – whether Plaintiff put Defendant on notice of her need for FMLA leave in the December 6, 2010 phone call – Defendant has pointed to nothing in Plaintiff’s prior testimony that would indicate that the relevant portions of her affidavit are a “flat contradiction” to her current position. 23 confirm that when they spoke she asked him to take her off the schedule because she needed to see a doctor and they were not following through. Mr. Woodfield confirmed this version. at 72, Trans. 81:17-21). (Id. In a deposition, Mr. Woodfield stated that Plaintiff told him that “she could not work and that she was going to call me back with more specifics about whether she could do light duty or not.” 81:13-19). (ECF No. 47-1, at 65, Trans. Taking the evidence in the light most favorable to Plaintiff, there is a genuine dispute as to whether she gave sufficient notice to Defendant that she needed leave because of her serious health condition. An employer employee; it documentation does can not insist supporting have that to accept the word employee provide leave its the request. 29 of the medical U.S.C. § 2613(a); 29 C.F.R. § 825.303(b); Rhoads, 257 F.3d at 382-83. Defendant’s FMLA policy provides that either the employee can initiate the leave request or the employer will initiate it when it has been notified that the employee is absent from work on account of a serious health condition. The employee will be asked to provide a “health care provider’s certification,” which is to include probable “the duration, date on which appropriate the medical condition facts began, the concerning the condition, and a certification that the employee is unable to perform the functions of his or her job.” 24 In a situation where the employee is absent from work for an FMLA-qualifying reason and the absence has not yet been designated by Safeway as FMLAleave, “upon return to work the employee has 3 business days to notify the Leave. Company that the absence may qualify for Family The employee must support the request with the required health care provider certification,” which must be done within five business days or else the absence will not be designated as FMLA-leave. The policy also states that “[w]henever a Health Care Provider Certification is required, the employee has 15 calendar days from the date of the Company’s request to provide it.” (ECF No. 47-2, at 113-14). The parties dispute whether Mr. Woodfield told Plaintiff that Safeway needed medical documentation to back up her leave request. otherwise. Mr. Woodfield states that he did; Plaintiff states It is undisputed that Plaintiff sought and obtained a note from Ms. Smith of the Opal Group stating that Plaintiff should be excused from work from December 3, 2010 to December 10, 2010. Plaintiff states that she sent it to a fax number that she was told was Safeway’s and that she subsequently called the store and spoke with someone who confirmed they received the fax, although she could not remember who that person was. Defendant responds that the fax number Plaintiff used is not Safeway’s, but instead belongs to CTI Underground, LLC. Defendant provides an affidavit from the President and owner of 25 CTI along with CTI’s December 2010 phone bill indicating it was the holder of the fax number Plaintiff used. (ECF No. 47-2, at 120-21). This is strong evidence and Plaintiff provides no rebuttal. On this issue, it appears that Plaintiff did not send her to note Defendant Safeway does Plaintiff on December indicate received her that 7, it 2010 as received termination notice 2010, but does not specify the date. she the dated intended. note after December 14, (ECF No. 47, at 21). The FMLA, as codified in Defendant’s policy, however, provides that an employee has fifteen (15) calendar days to submit a medical certification when demanded. 29 C.F.R. § 825.305(b); id. § 825.313(b) (“In the case of unforeseeable leave, an employer may deny FMLA coverage for the requested leave if the employee fails to provide a certification within 15 calendar days from receipt of the request for certification unless not practicable due to extenuating circumstances.”). of events that it asked Even assuming Defendant’s version Plaintiff for a doctor’s note on December 6, it terminated her employment on December 14, well before the fifteen day deadline. Although Defendant points to the fact that Plaintiff did not attend her December 13, 2010 examination with the IME, that examination was in regard to her workers’ compensation benefits. (See ECF No. 47-1, at 83 (letter to Plaintiff rescheduled IME stating that “[f]ailure to attend this appointment could result 26 in termination of your workers compensation benefits.”)) compensation are not the same. The FMLA and workers’ An employee’s failure to comply with the latter’s requirements does not necessarily mean she is ineligible for the benefits of the former. 825.306(c) (“[T]he FMLA does not prevent See 29 C.F.R. § the employer from following the workers’ compensation provisions and information received under those provisions may be considered in determining the employee’s entitlement to FMLA-protected leave. . . . the employee fails to provide the information required If for receipt of such payments or benefits, such failure will not affect the employee’s entitlement to take unpaid FMLA leave.”). Defendant’s argument that Plaintiff does not have a “serious health condition” will be rejected for similar reasons. It argues that Plaintiff failed to provide a sufficient medical certification to demonstrate a serious health condition. The regulations provide that an employer can require an employee to obtain a medical certification from a health care provider that sets forth the following information: (3) A statement or description of appropriate medical facts regarding the patient’s health condition for which FMLA leave is requested. The medical facts must be sufficient to support the need for leave. Such medical facts may include information on symptoms, diagnosis, hospitalization, doctor visits, whether medication has been prescribed, any referrals for evaluation or treatment (physical therapy, for example), 27 or any other treatment; regimen of continuing (4) If the employee is the patient, information sufficient to establish that the employee cannot perform the essential functions of the employee’s job as well as the nature of any other work restrictions, and the likely duration of such inability. 29 C.F.R. § 825.306; see also 29 U.S.C. § 2613(b). Defendant argues that Plaintiff was out of work from June 30 through July 4, 2010 pursuant to a doctor’s note and has “never presented Safeway with another off duty note from a physician again before she abandoned November.” her (ECF job No. over 47, the at Thanksgiving 20). Defendant holidays argues in that Plaintiff abandoned her job in late November but, as discussed in more detail below, that is a supposition accepted at this stage of the proceedings. that cannot be First, Defendant does not dispute that Plaintiff spoke with the Assistant Store Manager and told him she would be out for the week of November 27 and there is no evidence that Defendant took any action at that time consistent with the view that Plaintiff had abandoned her job. Second, the medical certification requirement is not triggered until the employer demands it. Defendant makes no argument that it demanded such certification until the December 6 call between Plaintiff and Mr. Woodfield. Defendant argues that Ms. Smith’s note was inadequate as it was “unsupported by any exam, or medical records, did not state why Plaintiff needed 28 to be out of work or what Plaintiff’s medical condition was.” (Id. at 21). it demanded December 6, Even accepting Defendant’s version of events that Plaintiff an to provide inadequate medical certification certification does not on trigger consequences for the employee until fifteen calendar days after the demand is made. 29 C.F.R. § 825.313(b). Defendant cites to Novak v. MetroHealth Med. Ctr., 503 F.3d 572 (6th Cir. 2007), but the circumstances of that case were very different. employer found the medical certification There, the insufficient and carried out its duty to inform the employee of the deficiency and provide the employee a reasonable opportunity to cure it. Id. at 579. Here, taking the evidence in the light most favorable to the Plaintiff, there is a genuine dispute over whether Defendant “jumped the gun,” and did not give Plaintiff sufficient time to provide a medical certification before it terminated her employment such that Plaintiff has established a prima facie case. Defendant’s final argument is that even if Plaintiff is eligible for FMLA leave, her failure to comply with Safeway’s attendance and reporting requirements is a valid, independent reason for discipline. 29 C.F.R. § 825.303(c) provides: [w]hen the need for leave is not foreseeable, an employee must comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. . . . 29 If an employee does not comply with the employer’s usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLAprotected leave may be delayed or denied. “[I]nterference with an employee’s FMLA rights does not constitute a violation if the employer has a legitimate reason unrelated to the exercise of FMLA rights for engaging in the challenged conduct.” Greene v. YRC, Inc., --- F.Supp.2d ----, 2013 WL 6537742, at *8 (D.Md. Dec. 12, 2013) (quoting Edgar v. JAC Prods., Inc., 443 F.3d 501, 508 (6th Cir. 2006)); see also Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 878 (10th Cir. 2004) (employee’s failure to adhere to employer’s call-in policy defeated her FMLA interference claim); Lewis v. Holsum of Fort Wayne, Inc., 278 F.3d 706, 710 (7th Cir. 2002) (same). Defendant argues that Plaintiff violated its absentee policy, which states that “absence without notice for three (3) consecutive result in shifts will termination.” constitute (ECF No. job abandonment 47-2, at 8). Employee Handbook states that [i]f, because of sickness or other emergency, you will not be able to report to work as scheduled, it is imperative that you advise the person in charge of the store as soon as possible. . . . When it is necessary for you to be away from work because of illness or for any other reason, you are required to contact your manager in advance. If advance notice is not possible, you should make a sincere effort to contact 30 and will Safeway’s the manager or person in charge within the first hour of your scheduled work shift. (Id. at 15). Defendant argues that “Plaintiff’s unexcused absences from work and failure to report to her supervisor from November 22, 2010 through December 14, 2011 clearly violated Safeway’s Absenteeism policies several times over.” (ECF No. 47, at 25). Defendant seems to acknowledge that Plaintiff gave notice to the Assistant Store Manager for the week of November 29, 2010. (See ECF No. 47-1, at 130 (log of Mr. Woodfield)). The absences for the week of December 6, 2010 are in dispute and cannot be considered at this time as unexcused. That leaves three allegedly unexcused absences: November 22, 23, and 24. On November 22, Mr. Woodfield’s log reflects that she texted “Tom,” a meat cutter at 8:09 am despite the fact that she was scheduled to work at 6:00 am that day. never did. The next day, She was told to call the store and she called “John,” manager, at 4:45 am and said she was sick. the grocery She later called “Irma” in customer service at about 8:00 pm and said she would not be in the next day. On the 24th, she again spoke with Tom in the meat department at 5:00 am and told him she would not be in. Mr. Woodfield’s log reflects that “[Plaintiff] has been told several times that she needed to call the manager and on all 3 31 days she had not talked to [Store Manager] or [Assistant Store Manager] as requested.” (Id.). Plaintiff has a different version of events. On November 22, the pain in her back had become unbearable and she called in to say that her back was hurting too much. She states that she spoke with “John,” the stock person, at 5:00 am and left a message to have Mr. Woodfield or Mr. Allan Kelly (head of the meat department) call her, but neither did. She called later that day and spoke to someone in the seafood department, and left a message for Mr. Kelly to call her. On November 23 and 24, she also called in, explaining that her back was hurting too much and she could not work. she spoke. Plaintiff cannot recall with whom (ECF No. 60-1, at 5).11 Stripping away Plaintiff’s absences during the weeks of November 29 and December 6, Defendant’s argument is that because she allegedly failed to speak with a store manager on these three days, she was eligible to be terminated. Defendant’s actions at this time, however, reflect the fact that they did 11 Defendant argues that Plaintiff’s affidavit should be ignored as it is a sham designed to create a genuine dispute of material fact. As an initial matter, the differences between Plaintiff’s affidavit and her prior deposition are not “flat contradictions” such that the affidavit should be disregarded as a sham. In the deposition, Plaintiff was hazy on the details of whom she spoke to and her reasons for calling out of work. In her affidavit, she is much more definite. That is not such a “flat contradiction” to be disregarded at the summary judgment stage. Furthermore, as will be discussed below, the reasons why she called or who she spoke to are not relevant for this matter. 32 not view Plaintiff’s actions as eligible for termination. Mr. Woodfield’s her log reflects that he reminded Plaintiff of obligation to speak with a manager when she calls out of work, but took no disciplinary action against her. The earliest disciplinary action in the record from this time period concerns her failure to December 7. show up or call for (ECF No. 47-1, at 132). believe that November 22, Plaintiff’s 23, and 24 allegedly were not an her scheduled shift on A reasonable jury could unexcused absences independent reason of for taking the disciplinary action against Plaintiff, but instead, it was only when combined with her later absences that Defendant initiated potentially termination. protected Because by the those FMLA, later absences are summary judgment for Defendant is not appropriate at this time. IV. Conclusion For the foregoing reasons, the motion for summary judgment filed by Defendant Safeway, Inc. will be denied. A separate order will follow. /s/ DEBORAH K. CHASANOW United States District Judge 33

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?