Nicely v. Safeway Inc
Filing
78
MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 7/3/14. (sat, Chambers)
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
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