Barker v. Genesys PHO, LLC et al

Filing 22

OPINION AND ORDER Denying Defendant Genesys PHO, LLC's 14 Motion for Summary Judgment. Signed by District Judge Matthew F. Leitman. (Monda, H)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARIANNE BARKER,
Plaintiff,

Case No. 13-CV-11828
Hon. Matthew F. Leitman

v.
GENESYS PHO, LLC
Defendant.
_________________________________/
OPINION AND ORDER DENYING DEFENDANT GENESYS PHO, LLC’S
MOTION FOR SUMMARY JUDGMENT (ECF #14)
INTRODUCTION

In July of 2011, Plaintiff Marianne Barker (“Ms. Barker”), an employee of
Defendant Genesys PHO, LLC (“Genesys”), experienced very serious medical
complications after her dog bit her hand. Ms. Barker told Genesys that her health
problems were so serious that they prevented her from coming to work, and she did
not report to work for her scheduled shifts between July 6 and July 21. Genesys
concluded that Ms. Barker’s absences were not protected by the Family Medical
Leave Act, 29 USC § 2601 et seq. (the “FMLA”) – or excused for any other reason
– and it terminated her employment.

In this action, Ms. Barker alleges that

Genesys interfered with her rights under the FMLA.

1

Genesys says that when Ms. Barker announced her need for time off, it
exercised its right under the FMLA to require her to submit – within fifteen days –
a physician’s certification that her condition prevented her from working. Genesys
insists that Ms. Barker failed to provide this certification within the fifteen-day
period, that her leave was thus not protected under the FMLA, and that it could
(and did) lawfully terminate her employment for missing work. Genesys seeks
summary judgment on this defense. (See Genesys Mot. and Br., ECF #14.)
However, there are material factual disputes as to whether the fifteen-day
period for Ms. Barker to submit the certification began to run on the date that
Genesys started counting (and, indeed, as to whether it began to run at all) and
whether it was practicable for Ms. Barker to provide a certification within fifteen
days. These fact questions preclude entry of summary judgment in Genesys’
favor. Accordingly, the Court DENIES Genesys’ motion.
FACTUAL BACKGROUND
A.

Genesys Hires Ms. Barker
In 2009, Genesys hired Ms. Barker as a “Health Navigator/Quality

Management Coordinator.” (See Ms. Barker’s Deposition, ECF #17-18 at 150, Pg.
ID 378.)

Ms. Barker’s responsibilities included working with primary care

physicians to develop health care plans and making recommendations for the

2

improved delivery of health care services. (See Genesys Job Description, ECF
#14-4; Ms. Barker Dep. at 31, Pg. ID 259.)
B.

Genesys’ Attendance and Medical Leave Policies
When Genesys hired Ms. Barker, it gave her a copy of its Human Resource

Manual. (See Ms. Barker’s Dep. at 30, Pg. ID 258; see also Verification Form,
ECF #14-5.) Ms. Barker agreed to “abide by” the “rules and regulations” included
in the manual. (ECF #14-5.)
Two policies included in the manual are relevant to this action: Genesys’
“Attendance and Punctuality” policy (see the “Attendance Policy,” ECF #14-6)
and its “Family and Medical Leave” policy (see the “FML Policy,” ECF #14-7).
In relevant part, the Attendance Policy states that “[e]mployees whose unscheduled
absences … exceed acceptable levels are subject to corrective action up to and
including termination.” (Attendance Policy at 1, Pg. ID 90.) The policy further
provides:
1.

If an employee will be absent from work, he/she must
notify his/her supervisor … at least one hour before
scheduled work time … If an employee’s unplanned
absence continues for more than a day, the employee
must call in daily to update his/her supervisor …
[….]

3.

An occurrence of an unreported absence is defined as
part or all of a single working day or series of
consecutive working days. Unreported absences which
exceed two (2) per year are considered excessive and
3

subject to corrective action up to and including
termination. …
(Id.)
Genesys’ FML Policy “grant[s] up to 12 weeks of family and medical leave
during any 12 month period, in accordance with the [FMLA].” (FML Policy at 1,
Pg. ID 93.) The FML Policy allows an “employee [to] take a leave because of a
serious health condition that makes the employee unable to perform the functions
of the employee’s position.” (Id. at 2, Pg. ID 94.) The FML Policy states that
Genesys “will require an employee to provide a doctor’s certification of the serious
health condition.” (Id.) The required certification must, among other things,
“[d]escribe the [relevant] medical facts …. [s]tate the approximate date the
conditions commenced, and the probable duration of the condition.” (ECF #1411.)
The FML Policy instructs employees that they “should respond to the
request for [a] certification within 15 days of the request or provide a reason for the
delay.” (FML Policy at 1, Pg. ID 93.) The FML Policy does not specifically
inform employees that failure to provide a certification could result in the
termination of their employment. (See id. at 3, Pg. ID 95.) But the FML Policy
does state that “[f]ailure to provide [a] certification may result in denial of the
leave.” (Id.)

4

C.

Ms. Barker is Bitten by Her Dog, and She Informs Genesys of Her Need
for Leave
On July 4, 2011, Ms. Barker’s dog bit her hand. (See Ms. Barker Dep. at

91-92, Pg. ID 319-320.)

The bite required stiches and immediate antibiotic

treatment from a local emergency room. (See id. at 151, Pg. ID 379.) The next
night (the evening of July 5), Ms. Barker’s “hand started to swell and ooze.” (Id.)
Ms. Barker planned to see her doctor the following morning, July 6, which was her
first scheduled day of work after the bite. (See id. at 99-100, Pg. ID 327-328.)
In compliance with the Attendance Policy, Ms. Barker called her supervisor
on the morning of July 6. Ms. Barker reported that she had been bitten by her dog,
believed that her hand was infected, was going to see her doctor that morning, and
would be absent from work. (See id.; see also id. at 151-152, Pg. ID 379-380.)
At the time Ms. Barker spoke to her supervisor on July 6, she had used up all
of her available time off. She understood that “unless [she] had a justifiable excuse
to be away from work[,] there was nothing that covered [her] absences at that
[time].” (Id. at 127, Pg ID. 355; see also id. at 95, Pg. ID 323.) Ms. Barker
therefore intended to seek leave under the FMLA and pursuant to Genesys’ FML
Policy.
Ms. Barker was aware of the statement in Genesys’ FML Policy that
Genesys will require an employee seeking FMLA leave to submit a physician
certification within 15 days of a request. (See id. at 166, Pg. ID 394.) She also
5

acknowledges that when she spoke to her supervisor on July 6, she “would have
been thinking [about] or been advised to fill out” a certification. (Id. at 95, Pg. ID
323.) Moreover, on July 6, Ms. Barker had a blank certification form in her
possession. (See id. at 110-111, Pg. ID 338-339.) She had obtained that form in
April of that year when she was dealing with a different medical condition. (See
id.)
There is no evidence that Genesys made a written request for a certification
on July 6. Nor does the record contain evidence that on July 6 Genesys advised
Ms. Barker in writing of the consequences for failing to submit a certification
within fifteen days.
D.

Ms. Barker is Hospitalized and Informs Genesys That She Will Miss
Additional Work
After Ms. Barker’s doctor examined her hand on July 6, the physician “sent

[Ms. Barker] directly to the hospital” for inpatient treatment. (Id. at 96, Pg. ID
324.) After arriving at the hospital, Ms. Barker called her office (for the second
time that day) to say that she was “going to [be] directly admit[ted] []into the
hospital” and would be absent from work. (Id. at 99, Pg. ID 327.)
Ms. Barker remained hospitalized for several days. (See id. at 96, Pg. ID
324.) Ms. Barker was diagnosed with cellulitis – an infection – that required
aggressive therapy. (See id. at 152-153, Pg. ID 380-381.) The hospital treated Ms.

6

Barker with “IV antibiotics” and “pain control” medications. (Id. at 96-97, Pg.
ID 324-325.)
E.

Ms. Barker Suffers Additional Severe Complications and She
Communicates With Genesys Regarding the Certification
The hospital discharged Ms. Barker on July 9. (See id. at 153, Pg. ID 381.)

At that time, Ms. Barker’s doctors believed her condition had improved, and they
even allowed her to make a very brief appearance at a wedding that afternoon.
(See id.) Ms. Barker, however, remained on prescribed narcotics, and her doctors
recommended that she not return to work until after a post-hospital checkup on
July 13. (See id. at 100, Pg. ID 327.)
On July 12, Ms. Barker “started not to feel well.” (Id. at 153, Pg. ID 381.)
Ms. Barker says that on that day she began suffering “uncontrollable diarrhea” and
other complications she believed to be the result of an infection. (Id. at 153-154.)
The next day (July 13), Ms. Barker saw her doctor for her post-hospital
checkup.

During this appointment, Ms. Barker’s physician “removed [Ms.

Barker’s] stitches” and diagnosed Ms. Barker with a “systemic infection” in her
“bloodstream.” (Id. at 101-103; Pg. ID 329-331.) The doctor told Ms. Barker that
she should continue to stay home from work. (See id. at 102-103, Pg. ID 330-331.)
It appears that during this appointment, Ms. Barker gave her doctor a
certification form – the one she had left over from her April health issue – and

7

asked her doctor to complete it.1 (See id. at 111-113, Pg. ID 339-341.) Ms.
Barker’s doctor did not complete the form at that time, and Ms. Barker left her
doctor’s office without it. (See id. at 121, Pg. ID 349.) That same day, July 13,
Genesys mailed Ms. Barker a new set of unidentified “FMLA forms…” (Id. at 109,
Pg. ID 337.)2
Following her doctor’s appointment on July 13, Ms. Barker told her
supervisor that her doctor was running tests “trying to figure out what the systemic
[infection] was being caused from.” (Id.) During this conversation (and others),
Ms. Barker’s supervisor “impress[ed] upon [Ms. Barker] the importance of doing
something to provide medical substantiation other than [her] description of [her]
symptoms.” (Id. at 154, Pg. ID 382.) Ms. Barker says that she explained to her
supervisor that her return date “kept being pushed back because of [her]
complications,” and she asked the supervisor for guidance as to how her physician
should complete the certification form given that both the precise cause of her
ailments and her return date were unknown. (Id. at 113, Pg. ID 341; 116, Pg. ID

1

Ms. Barker testified that she “probably took [the certification form to her doctor]
on the 13th” but she could not specifically remember when she gave the form to
her physician. (Id. at 121-122, Pg. ID. 349-350.)

2

The record does not contain a copy of the exact “forms” Genesys sent to Ms.
Barker. Therefore, it is unknown whether Genesys simply sent Ms. Barker a
certification form, or if the documents it sent Ms. Barker included a request to
complete a certification and explained the consequences for Ms. Barker’s failure to
do so within fifteen days.
8

344.) According to Ms. Barker, neither her supervisor nor anyone else at Genesys
provided any advice or answers to resolve her confusion. (See id. at 113, Pg. ID
341.) Ms. Barker also says her supervisor never directed her (Ms. Barker) to
submit a certification by any particular date. (See id. at 155.)
F.

Ms. Barker’s Physician Fills Out a Certification Form, But Ms. Barker
Says She Was Too Ill to Retrieve the Form and Submit it to Genesys
After Ms. Barker left her doctor’s appointment on July 13, her doctor filled

out the certification form Ms. Barker had given her.

(See the “Completed

Certification,” ECF #14-11.) Although the Completed Certification is undated,
Ms. Barker believes that her physician filled out the Completed Certification
“around the 13th or 14th” of July. (Ms. Barker Dep. at 120, Pg. ID 348.) On the
Completed Certification, Ms. Barker’s physician wrote that Ms. Barker had been
“admitted to McLaren Regional Medical Center” for several days following a dog
bite. (The Completed Certification at 1, Pg. ID 108.) The form twice asked the
physician to address the “probable duration” of Ms. Barker’s condition. (Id.) The
physician responded: “7/4/11 to approx. 7/18/11” and “no work until 7/18/2011.”
(Id.) The Completed Certification did not specifically address any of Ms. Barker’s
post-hospitalization complications or infections. (See id.)
Ms. Barker says that she could not retrieve the Completed Certification
because her complications had worsened and she “couldn’t get out of her house.”
(Ms. Barker Dep. at 120, Pg. ID 348.) For example, Ms. Barker says that on July
9

15 she was suffering from “severe diarrhea, abdominal pain, [and a] fever.” (Id. at
104, Pg. ID 332.) And Ms. Barker says that she was so ill on July 18 that she
“couldn’t even get into the doctor’s office” because she “[couldn’t] get out of the
bathroom.” (Id.)
Ms. Barker claims that her family members were likewise unable to pick up
the Completed Certification and deliver it to Genesys. According to Ms. Barker,
her husband had just started a new job and could not leave work to pick up the
Completed Certification, and her daughter was occupied caring for a newborn.
(See id. at 134, Pg. ID 362.) Ms. Barker also explained that her doctor would not
fax the Completed Certification directly to Genesys because the doctor did not
want to assume responsibility for successful delivery of the form. (See id.)
G.

Ms. Barker Informs Genesys She Does Not Know When She Will Be
Healthy Enough to Return to Work
Ms. Barker was scheduled to work on July 19. That morning, she called

Genesys to say that she was still suffering from complications due to her
medications and that she did not know when she would be healthy enough to return
to work. (See id. at 114-116, Pg. ID 342-344.) Ms. Barker made this call at
approximately 10:07 a.m., a little more than an hour after her shift started. (See id.
at 126-127, Pg. ID 354-355.) Pursuant to Genesys’ Attendance Policy, Ms. Barker
should have made this call prior to the start of her shift. (See id.) Ms. Barker
explained that she called after the deadline because she “had been up all night in
10

the bathroom,” fell asleep just before morning, and inadvertently slept later than
she intended. (Id.)3
H.

Genesys Terminates Ms. Barker’s Employment on July 21
On July 21, Genesys terminated Ms. Barker’s employment. (See the

“Termination Letter,” ECF #14-10.) In the Termination Letter, Genesys Chief
Operating Officer Paul Garson (“Mr. Garson”) wrote that Ms. Barker’s “continued
absence from July 6, 2011 through the present date ha[d] been categorized as
repeated unreported absences.” (Id.) Mr. Garson specifically cited Ms. Barker’s
failure to submit a certification as grounds for her termination: “As you should be
aware, the purpose of providing the FMLA documentation from your physician is
to ensure you qualify for FMLA Leave … The 15-day period for supplying the
requisite physician certification has expired as of today.” (Id.) As Mr. Garson’s
letter makes clear, the “15-day period,” as calculated by Genesys, began to run on
July 6, 2011.

3

Ms. Barker continued to have complications for the next several weeks. On July
25, and again on August 3, emergency room doctors treated Ms. Barker for a
“severe allergic reaction” to her prescribed medications. (Id. at 105, Pg. ID 333.)
And as late as August 25, the date Ms. Barker’s doctors cleared her to return to
work, Ms. Barker still continued to suffer from “diarrhea three to four times a
day….” (Id. at 105-106, Pg. ID 333-334.)
11

I.

After Her Termination,
Certification

Ms.

Barker

Submits

the

Completed

After Ms. Barker received the Termination Letter, she obtained the
Completed Certification that her physician had prepared roughly ten days earlier.
On July 25, Ms. Barker submitted the Completed Certification to Genesys, and she
asked Genesys to reinstate her. (See Ms. Barker’s Dep. at 118-119, Pg. ID 346347.) As noted above, the Completed Certification accounted for Ms. Barker’s
absences through at least July 18, but it did not unambiguously excuse her from
work after that date and did not address any of her post-hospitalization
complications. (See the Completed Certification at 1, Pg. ID 108.)
Ms. Barker recognized that the Completed Certification did not cover the
full time that she had been absent, and she indicated to Genesys that she intended
to have her physician update the form. Specifically, when Ms. Barker delivered
the Completed Certification, she hand-wrote on the top of it: “Note: My physician
will update to reflect additional time off due to complications.” (Id.) Ms. Barker
explains that the Completed Certification, as filled out by her physician, did not
cover the entire period of her absence because the physician finished it “before”
she had many “of the complications” that caused her to miss so much work. (Ms.
Barker Dep. at 120, Pg. ID 348.)

12

J.

Genesys Refuses to Reverse the Termination
After receiving the Completed Certification, Genesys refused to reconsider

its termination of Ms. Barker’s employment, and it rebuffed her requests for a
meeting. In a letter to Ms. Barker dated July 28, 2011, Mr. Garson said that the
Completed Certification “clearly indicates [she was] authorized by [her] physician
to return to work after July 18, 2011” and thus “even if the documents had been
supplied” earlier “the outcome would be the same” because Ms. Barker was absent
beyond July 18. (Mr. Garson July 28 Correspondence, ECF #14-12.) Mr. Garson
told Ms. Barker that “[h]aving further discussions regarding the termination will
not result in a change in the decision.” (Id.)
There is no evidence in the record that Ms. Barker continued to seek – nor
that she obtained – an updated certification from her physician after Mr. Garson
told her that Genesys’ decision to fire her was final.
PROCEDURAL HISTORY
On April 23, 2013, Ms. Barker filed this action against Genesys. (See
Compl., ECF #1.) Ms. Barker asserts that Genesys interfered with her FMLA
rights when it “refused to restore [her] to her employment” after her doctors
cleared her to return to work. (Compl. at ¶19.) Following discovery, Genesys
moved for summary judgment. (See Genesys Mot. and Br., ECF #14.) The Court
held oral argument on Genesys’ motion on July 9, 2014.

13

GOVERNING LEGAL STANDARD
A movant is entitled to summary judgment when it “shows that there is no
genuine dispute as to any material fact....” U.S. SEC v. Sierra Brokerage Services,
Inc., 712 F.3d 321, 326–27 (6th Cir. 2013) (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251–52 (1986)) (quotations omitted). When reviewing the record,
“the court must view the evidence in the light most favorable to the non-moving
party and draw all reasonable inferences in its favor.” Id. “The mere existence of
a scintilla of evidence in support of the [non-moving party’s] position will be
insufficient; there must be evidence on which the jury could reasonably find for
[that party].” Anderson, 477 U.S. at 252. However, summary judgment is not
appropriate when “the evidence presents a sufficient disagreement to require
submission to a jury.” Id. at 251-252. Indeed, “[c]redibility determinations, the
weighing of the evidence, and the drafting of legitimate inferences from the facts
are jury functions, not those of a judge…” Id. at 255.
ANALYSIS
A.

The FMLA and Its Implementing Regulations
1.

The FMLA Allows Eligible Employees to Take Leave Due to a
Serious Medical Condition

The FMLA allows an eligible employee “a total of 12 workweeks of leave
during any 12-month period for … a serious health condition that makes the
employee unable to perform the functions of the position of such employee.” 29
14

U.S.C. § 2612(a)(1)(D). A “serious health condition” is defined as “an illness,
injury, impairment, or physical or mental condition that involves (A) inpatient care
in a hospital, hospice, or residential medical care facility; or (B) continuing
treatment by a health care provider.” 29 U.S.C. § 2611(11).
An employee entitled to FMLA leave must, upon “return from such leave… 
be restored by the employer to the position of employment held by the employee
when the leave commenced.” 29 U.S.C. § 2614(a)(1)(A). Moreover, “[t]he taking
of leave … shall not result in the loss of any employment benefit accrued prior to
the date on which the leave commenced.” 29. U.S.C. § 2614(a)(2).
An employee seeking time off for a serious medical condition “need not
expressly assert rights under the FMLA or even mention the FMLA” in order to be
eligible for FMLA leave. 29 C.F.R. § 825.303(b) (2009).4 Instead, an employee
“gives sufficient notice when he provides enough information for the employer to

4

The regulations implementing the FMLA have undergone revisions during the
past decade (first in 2009, then again in 2013). Where applicable, the Court has
cited to and has applied the version of the FMLA regulations in effect during July
2011 – the time period of this dispute. Those regulations apply to this action. See,
e.g., Branham v. Gannett Satellite Information Network, Inc., 619 F.3d 563, 569
n.9 (6th Cir. 2010) (internal citations omitted) (“The Department of Labor recently
promulgated revised regulations interpreting the FMLA. Those regulations took
effect … after the events giving rise to this suit occurred. Therefore, we apply the
regulations in place at the time of the events in question”); Righi v. SMC Corp.,
632 F.3d 404, 408–09 (7th Cir. 2011) (“[W]e apply the version [of the FMLA
regulations that were in place] … when these events occurred…”).
15

reasonably conclude” that leave is needed for a serious health condition. Perry v.
Jaguar of Troy, 353 F.3d 510, 513 (6th Cr. 2003).
2.

An Employer May Require an Employee to Submit a Physician
Certification of a Serious Health Condition

The FMLA does not compel every employee seeking leave to provide a
physician certification confirming the existence of a serious health condition.
However, the FMLA does allow an employer to “require” that a request for FMLA
leave “be supported by a certification issued by the [employee’s] health care
provider….” 29 U.S.C. § 2613.

Such a physician certification must include,

among other things, “[t]he approximate date on which the serious health condition
commenced, and its probable duration.” 29 C.F.R. § 825.306(a)(1) (2009).
“At the time the employer requests [that the employee provide a physician]
certification, the employer must also advise an employee of the anticipated
consequences of an employee's failure to provide adequate certification.”

29

C.F.R. § 825.305(d) (2009). A request for certification is not “proper” unless,
among other things, it informs the employee of these consequences. Branham, 619
F.3d at 573-574.
3.

If an Employer Requests a Physician Certification, the Employer
Must Give the Employee at Least Fifteen Days From the Request
to Submit It

The FMLA requires an employee to deliver a properly requested physician
certification “‘in a timely manner.’” Branham, 619 F.3d at 572 (quoting 29 U.S.C.
16

§ 2613(a).)

The timeliness of the certification depends upon whether the

employee’s request for leave is foreseeable or unforeseeable.

Where an

employee’s request for FMLA leave is unforeseeable (as it was in this case), “the
employer must give the employee at least fifteen calendar days to provide the
requested certification, and more time if it is not practicable under the
circumstances to do so within 15 days.” Id.; See also 29 C.F.R. § 825.305(b)
(2009).
Importantly, the fifteen-day period to provide a certification begins (if at all)
on the date the employer properly requests the certification, not on the date that the
employee seeks or begins leave.

See 29 C.F.R. § 825.305(b) (2009) (“The

employee must provide the requested certification to the employer within 15
calendar days after the employer's request, unless it is not practicable under the
particular circumstances to do so despite the employee's diligent, good faith efforts
or the employer provides more than 15 calendar days to return the requested
certification”) (emphasis added).

Indeed, an employee’s duty to provide a

physician certification is not “triggered” unless and until an employer makes a
“proper request” for the certification. Branham, 619 F.3d at 573-74. This point
bears special emphasis because at various points in these proceedings, Genesys has
suggested that Ms. Barker was obligated to submit a physician certification “within
15 days from the commencement of her leave.” (Genesys Reply Br., ECF #18 at 3,

17

Pg. ID 409.)

5

If an employer “terminates the employee before giving her the full

fifteen-day period to provide a certification, the employer has violated the FMLA.”
Branham, 619 F.3d at 572.
It is equally clear, though, that an employer may fire an employee who fails
to meet the fifteen-day deadline – even if the employee misses the deadline by only
a single day. See Frazier v. Honda of Am. Mfg., Inc., 431 F.3d 563, 567 (6th Cir.
2005) (affirming summary judgment in favor of employer when employee
submitted requested physician certification one day after fifteen-day deadline
expired). But an employee’s failure to timely provide a physician certification is a
defense to an FMLA interference claim only if the employer properly asked for a
certification in the first place and if the employee failed to respond within required
time frame. See Kinds v. Ohio Bell Telephone Company, 724 F.3d 648, 652 (6th
Cir. 2013) (“Failure to timely provide a medical certification for which an
employer has properly asked will generally preclude an employee’s FMLAinterference claim”) (emphasis added).
To the extent employees have questions about the employer’s request for a
physician certification – or any other questions “concerning their rights and

5

Notably, Genesys’ FML Policy properly recognizes that the request for a
certification starts the fifteen-day time period. The policy provides that Genesys
“will require an employee to provide a … certification of the serious health
condition” and that an employee “should respond to the request for [a] certification
within fifteen days of the request…” (FML Policy at 1, Pg. Id. 93.) (Emphasis
added.)
18

responsibilities under the FMLA” – “[e]mployers are [] expected to responsively
answer [these] questions from employees...” 29 C.F.R. § 825.300(c)(5) (2009).
B.

There is a Material Factual Dispute as to Whether Genesys Had the
Right to Fire Ms. Barker on July 21 on the Ground That Her Absences
From Work Were Unexcused Because She Failed to Timely Submit a
Certification
Ms. Barker asserts that Genesys unlawfully interfered with her FMLA rights

when it terminated her on July 21. (See, e.g., Compl. at ¶ 19.) To prevail on that
claim, Ms. Barker must establish (1) that she is an “eligible employee”; (2) that
“[Genesys] is an employer”; (3) that she “was entitled to leave under the FMLA”;
(4) that she “gave [Genesys] notice of [her] intention to take leave”; and (5) that
Genesys “denied [her] FMLA benefits to which [s]he was entitled.” Wysong v.
Dow Chemical Co., 503 F.3d 441, 447 (6th Cir. 2007).
For the purposes of this Motion, Genesys does not contest elements 1, 2, and
4 of Ms. Barker’s claim. 6 (Genesys Mot. and Br., ECF #14 at 15, n.1, Pg. ID 55.)
Instead, Genesys argues that Ms. Barker was not “entitled to leave under the
FMLA” (element three).

Genesys says that Ms. Barker failed to submit a

certification by July 21, and thus her absences between July 6 and July 21 were
unexcused. (Id.) Genesys concludes that when it fired her on July 21 due to her

6

Likewise, Genesys has not challenged Ms. Barker’s FMLA leave by arguing, for
example, that she did not suffer from a “serious health condition” as defined by the
FMLA.
19

unexcused absence, it did not deny her “FMLA benefits to which she was entitled”
(element five). (Id.)
Genesys had the right on July 21 to deem Ms. Barker’s absences unexcused
for failing to submit a certification only if it had made a “proper request” for a
certification on July 6, such that Ms. Barker’s fifteen days to submit a certification
(and thereby excuse her absences) had expired. See, e.g., Branham, 619 F.3d at
573. Reviewing the record in the light most favorable to Ms. Barker, the Court
finds that there is a material factual dispute as to whether Genesys made a proper
request for a certification on July 6, and, even if Genesys did so, whether it was
practicable for Ms. Barker to respond within fifteen days. Genesys is thus not
entitled to summary judgment on the ground that Ms. Barker’s failure to submit a
certification by July 21 allowed Genesys to treat her absences as unexcused and to
fire her for those absences.
1.

There is a Material Factual Dispute as to Whether Genesys Made
a Proper Request for a Certification on July 6

The record contains little evidence concerning any statements by Genesys to
Ms. Barker on July 6, and it certainly does not contain undisputed evidence that
Genesys properly requested a certification from her on that date.

The only

competent evidence concerning communications between Genesys and Ms. Barker
on July 6 is Ms. Barker’s deposition testimony describing her call with her

20

supervisor that day.7 Ms. Barker testified that during that call she “would have
been thinking [about] or been advised to fill out FMLA paperwork.”

(Ms.

Barker’s Dep. at 95, Pg. ID 323.) (Emphasis added.) This testimony is, at best,
equivocal as to whether Ms. Barker’s supervisor actually “advised” her to
complete a certification. Indeed, the Court must construe this testimony in Ms.
Barker’s favor for purposes of this motion, and the most favorable construction of
this testimony for Ms. Barker is that she was thinking that she should complete the
form, not that the supervisor advised Ms. Barker to do so.
In any event, even if Ms. Barker’s supervisor had “advised” her to “fill out
FMLA paperwork” on July 6, there is a material question of fact regarding whether
that would have started the fifteen-day period. The supervisor’s request would

7

Genesys has submitted notes made by Ms. Barker’s supervisor in which the
supervisor appears to memorialize some of her communications with Ms. Barker.
(See ECF #14-9 at 2-3, Pg. ID 104-105.) In a notation that appears to be written on
July 6, Ms. Barker’s supervisor wrote that, Ms. Barker “state[d] that she is aware
that she does not have the [personal time off] to cover this and has not yet filled out
her FMLA paperwork. She states that she will today and turn it in when returns to
work.” (Id. at 2, Pg. ID 104.) The notes, however, are hearsay; the supervisor was
neither deposed nor submitted an affidavit in support of Genesys’ Motion. It “is
well established that a court may not consider inadmissible hearsay when deciding
a summary-judgment motion.” Flones v. Beaumont Health System, --- Fed. App’x
---, 2014 WL 2497557 at *5 (6th Cir. June 4, 2014). In any event, even if the
Court did consider the content of the notes, they contain no conclusive evidence
that Ms. Barker’s supervisor actually made a request for a certification on July 6 or
that she explained to Ms. Barker on that date the consequences if Ms. Barker failed
to return a certification within fifteen days. Furthermore, when the supervisor
summarized her July 6 communications with Ms. Barker on July 19, she did not
mention the FMLA or a certification. (See ECF #14-9 at 3, Pg. ID 105.)
21

have started the clock only if the supervisor also informed Ms. Barker of the
consequences of failing to submit a certification on time (i.e. within fifteen days).
See 29 C.F.R. § 825.305(d) (2009) (request for certification must “advise
[employee] of the anticipated consequences of [her] failure to provide adequate
certification”); Branham, 619 F.3d at 574 (reversing district court’s grant of
summary judgment to employer in FMLA interference dispute because, in part,
employer never “informed [the employee-plaintiff] of the consequences of failing
to provide” a physician certification). There is no definitive evidence in the record
that the supervisor informed Ms. Barker of these consequences during the July 6
conversation.
Moreover, the supervisor’s communications to Ms. Barker on July 6 were
oral, and it is not clear, based on this record, that an oral request for a certification
(had she made one that day) would have been sufficient to start the fifteen-day
time period. An oral request would be effective only if Genesys had made a
proper, written request for a certification from Ms. Barker within the twelve
months preceding her July leave. See 29 C.F.R. §§ 825.305(a), 825.300(c), and
825.300(b)(1)-(3) (2009). As Genesys has pointed out, there is evidence in the
record that in April 2011 Ms. Barker had a blank certification form in her
possession related to an earlier potential request for FMLA leave. (See Ms. Barker
Dep. at 110-111, Pg. ID 338-339.) However, there is no unequivocal evidence that

22

in April 2011 (or at any other time in the twelve months preceding July 2011)
Genesys actually provided Ms. Barker with written notice that (1) a certification
must be completed and timely submitted to Genesys in order for Ms. Barker to
qualify for leave and (2) she could lose her job if she failed to submit the form on
time.

Thus, there is at least a question of fact as to whether any oral

communications from Genesys to Ms. Barker on July 6th would have been
sufficient to start the fifteen-day period, and that question of fact precludes
summary judgment. See Branham, 619 F.3d at 573 (summary judgment
inappropriate when there is a material factual dispute as to whether oral
certification request satisfied applicable requirements).
In sum, there is a material factual dispute as to whether on July 6th, Genesys
properly requested that Ms. Barker submit a certification.

Given that factual

dispute, Genesys did not have a clear legal right on July 21 to deem Ms. Barker’s
absences unexcused for failing to submit a certification and terminate Ms. Barker’s
employment based on these absences. Accordingly, Genesys is not entitled to
summary judgment. See, e.g., Branham, supra; Schober v. SMC Pneumatics, Inc.,
2000 WL 1231557 (S.D. Ind. 2000) (denying employer’s motion for summary
judgment where jury could reasonably have found that, before expiration of 15-day
period, employer fired employee for failing to submit physician certification);

23

Chenoweth v. Wal-Mart Stores, Inc., 159 F.Supp.2d 1032 (S.D. Ohio 2001)
(same).
2.

There is a Material Factual Dispute as to Whether It Was
Practicable for Ms. Barker to Have Submitted the Completed
Certification by July 21

Even if the undisputed evidence established that Genesys made a proper
request for a certification on July 6, Ms. Barker would have been entitled to submit
the completed form after July 21 if it was “not practicable” for her to have met that
deadline. 29 C.F.R. § 825.305(b) (2009) (employee is entitled to more than fifteen
days to submit requested physician certification if “it is not practicable under the
particular circumstances [for the employee to respond to the employer’s proper
request] despite the employee's diligent, good faith efforts…”) (emphasis added).
There is a material factual dispute as to whether it was “practicable” for Ms.
Barker to have submitted the Completed Certification by July 21, and that dispute
is a further bar to summary judgment in favor of Genesys.
Ms. Barker testified repeatedly that in the days before Genesys’ July 21
deadline, she was so ill that she could not even leave her home, much less submit
paperwork to Genesys. For example, Ms. Barker says that on July 15 she had
“profuse diarrhea …. abdominal pain, [and had a] fever.” (Ms. Barker Dep. at
103-14, Pg. ID 332-333.) Ms. Barker further testified that on July 18, she was
suffering from severe diarrhea and a fever and was so sick she “couldn’t even get

24

to the doctor’s office.” (Id. at 104, Pg. ID 332.) That night, and into the morning
of July 19, Ms. Barker was so sick, she was “up all night in the bathroom.” (Id. at
126-127, Pg. ID 344-355.) Ms. Barker therefore insists she did not have “any
means to pick up [and submit] the [Completed Certification] earlier” than she did.
(Id. at 134, Pg. ID 362.)
Genesys argues that Ms. Barker could have submitted the Completed
Certification by July 21 because she “admitted leaving her home several times
during the 15 day certification period…” (Genesys Reply. Br. at 6, Pg. ID 412.)
Genesys notes that Ms. Barker attended a wedding on July 9 and went to a doctor’s
appointment on July 13. (Id.) But the wedding – which Ms. Barker attended for
only one hour – took place immediately after Ms. Barker was discharged from the
hospital and before Ms. Barker began suffering the severe post-hospitalization
complications that rendered her homebound. (Ms. Barker Dep. at 153, Pg. ID 381.)
Moreover, the wedding took place days before Ms. Barker believes she gave a
copy of the certification form to her doctor on July 13th or 14th and the physician
completed that form. (Id. at 121-122, Pg. ID 349-350.) That Ms. Barker briefly
attended a wedding during the narrow window of time between her discharge from
the hospital and the onset of disabling complications does not conclusively
establish that Ms. Barker was well enough days later to obtain the Completed
Certification from her physician and deliver it to Genesys. Likewise, the fact that

25

Ms. Barker attended doctor’s appointments falls far short of undisputed proof that
she was healthy enough to obtain and deliver the Completed Certification to
Genesys. That Ms. Barker was able to attend essential medical appointments to
address a severe illness does not necessarily mean that she was well enough to
make an additional stop at Genesys to deliver the Completed Certification.
Genesys also argues that somebody else could have obtained and submitted
the Completed Certification for Ms. Barker. However, Ms. Barker testified that
neither her daughter (who had just given birth) nor her husband (who had just
started a new job) could pick up the Completed Certification and submit it to
Genesys. (Id. at 134, Pg. ID 362.)
Finally, Genesys asserts that Ms. Barker’s physician could have sent the
Completed Certification to Genesys directly without requiring Ms. Barker to
physically pick the certification up from her doctor’s office.

As Ms. Barker

explained, though, this was not her doctor’s “usual” practice and is “not what they
did.” (Id.) Instead, Ms. Barker’s doctor required her patients to “pick [such
certification forms] up. [The doctor] didn’t want to be responsible.” (Id.)
There is a genuine issue of material fact as to whether it was practicable for
Ms. Barker to deliver the Completed Certification to Genesys by July 21. That
factual dispute precludes the grant of summary judgment in Genesys’ favor.

26

C.

There is a Material Factual Dispute as to Whether Genesys Ever
Properly Requested a Certification From Ms. Barker and, Thus, as to
Whether Genesys Ever Had the Right to Deem Her Absences
Unexcused For Failing to Submit a Certification
In addition to the material factual dispute as to whether Genesys properly

requested a certification from Ms. Barker on July 6, there is also such a dispute as
to whether Genesys ever properly requested a certification. The record contains
evidence that Genesys mailed certain unidentified “FMLA paperwork” to Ms.
Barker on July 13 (Ms. Barker Dep. at 109, Pg. ID 337), but the record contains no
evidence as to whether any of this “paperwork” communicated the essential
contents of a request for a certification under the applicable FMLA regulations.
See 29 C.F.R. § 825.305(d) (2009). Likewise, while the record contains evidence
that at some point after July 6, Ms. Barker’s supervisor “impressed upon her the
importance of doing something to provide medical substantiation of her health
condition” (Ms. Barker Dep. at 154, Pg. ID 382), for the reasons explained above
at pp. 22-23, a material question of fact exists as to whether these oral
communications qualified as a proper request for a certification. These questions
of fact further preclude the Court from holding that, as a matter of law, Genesys
had the right to deem Ms. Barker’s absences unexcused due to her failure to submit
a certification and terminate Ms. Barker’s employment for missing work. See, e.g.,
Branham, 619 F.3d at 573-574 (employee’s failure to provide medical certification
did not entitle employer to summary judgment because employer could not
27

definitively establish it complied with the applicable FMLA regulations when it
requested the certification).
The question of fact concerning whether Genesys ever properly requested a
certification is fatal to another of Genesys’s arguments – that it is entitled to
summary judgment because Ms. Barker never submitted a certification covering
the entire period of her absences. More specifically, Genesys argues that it is
entitled to judgment because even if the Completed Certification is considered, that
form only excuses Ms. Barker’s absences through July 18 and does not cover the
remaining days – through July 21 – that she missed prior to her termination.
Genesys insists that since Ms. Barker never submitted a certification covering the
days following July 18, her absences on those days are unexcused, and Genesys
could lawfully fire her based upon those unexcused absences. (See Genesys Reply
Br. at 7-8, Pg. ID 413-414.) However, since there is a material factual dispute as to
whether Genesys ever properly requested a certification, it is not clear, as a matter
of law, that it could lawfully declare her absences unexcused based on any failure
to submit a certification. Thus, under at least one plausible view of the facts, a jury
could find that Ms. Barker is entitled to recover even if, as Genesys insists, the
Completed Certification did not cover all of her absences.8

8

Genesys also argues that because Ms. Barker “never produced” a certification
that covered her absences after July 18, under the applicable regulations, her “leave
is not FMLA leave.” (Genesys Reply Br. at 7, Pg. ID 413, quoting 29 C.F.R. §
28

D.

Genesys is Not Entitled to Summary Judgment on the Ground That Its
Alleged Violation of the FMLA Did Not Prejudice Ms. Barker
The FMLA “provides [a plaintiff/employee] no relief unless [she] has been

prejudiced by [the defendant/employer’s] violation” of the statute. Ragsdale v.
Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002). On this record, there is a
question of fact as to whether Ms. Barker suffered prejudice. She has presented
evidence from which a jury could find that (1) her absences qualified for FMLA
protection; (2) Genesys violated the FMLA when, on July 21, it deemed her
absences to be unexcused due to her failure to submit a physician certification, and
(3) that violation led directly to her unlawful termination. If a jury made these
findings, it would necessarily find that Ms. Barker suffered an injury “by reason
of” Genesys’ FMLA violation and, accordingly, that she suffered cognizable
prejudice. See, e.g., Lubke v. City of Arlington, 455 F.3d 489, 498 (5th Cir. 2006)
(employee established prejudice by showing that he had a medical condition that
qualified for FMLA protection; that he would have been granted FMLA leave had
he provided the certification; and the employer dismissed him without allowing her
the required minimum amount of time in which to submit the certification.)
Genesys counters that on this record and as a matter of law, Ms. Barker
cannot show prejudice. It argues that Ms. Barker “was not prejudiced by any

825.313(b) (2009) (“If the employee never produces the certification, the leave is
not FMLA leave”).) This regulation, however, is clearly premised on an employer
making a proper request in the first place.
29

failure by Genesys to give her written notice after she requested leave, because she
admitted that she was aware of the requirement that she submit [a] certification …
within fifteen days from the commencement of her leave.” (Genesys Reply Br at 2,
pg. ID 409.) There are several problems with this argument. First, the argument
rests upon the incorrect premise that Ms. Barker had fifteen days “from the
commencement of her leave” – as opposed to fifteen days from a proper request by
Genesys – to submit a certification.
Second, the argument construes Ms. Barker’s alleged “admissions” in the
light most favorable to Genesys, rather than in the light most favorable to Ms.
Barker. When construed in Ms. Barker’s favor, her testimony cannot be read to
include an “admission” that she knew she had to submit a certification by Genesys’
deadline of July 21. While she admitted that she was aware of the “15-day
requirement” in “the policy,” the FML Policy states only that an employee must
provide a certification within fifteen days of a “request.” (FML Policy at 1, Pg. ID
93.) (Emphasis added.) So, Ms. Barker’s admission that she was aware of “the
policy” is, for purposes of this motion, simply a recognition that if Genesys made a
proper request on July 6, then she would have fifteen days from that point to
provide a certification. And, as explained above at pp. 20-21, in the context of this
Motion, Ms. Barker’s testimony cannot be construed as an admission that her
supervisor requested a certification on July 6. Moreover, Ms. Barker testified that

30

her supervisor never gave her a specific date – much less July 21 – by which she
needed to submit a certification. (See Ms. Barker Dep. at 155, Pg. ID 383.) This
further undercuts Genesys’ argument that Ms. Barker “admitted” knowing that a
certification was due on July 21.
Third, Genesys’ argument that Ms. Barker suffered no prejudice because she
was aware of Genesys’ FML Policy and had been generally advised by her
supervisor to return FMLA paperwork, if accepted by this Court, would undermine
the FMLA’s implementing regulations concerning physician certifications. Those
regulations – detailed above – place the onus squarely on the employer to make a
proper request for a physician certification (i.e., one that contains the required
advice and warnings to the employee) and expressly provide that the 15-day time
period for an employee to provide the certification commences when the employer
makes the request. Starting the 15-day clock immediately upon an employee’s
absence, based upon an employee’s knowledge that her employer’s general policy
is to request a physician certification and general statements by an employer
representative, would compromise the protections that the regulations provide for
employees.
Genesys cites several cases in support its argument that Ms. Barker cannot
show prejudice, but none of the cases carry the day for Genesys.

Genesys

primarily relies upon the unpublished decision of the United States Court of

31

Appeals for the Sixth Circuit in Verkade v. United States Postal Service, 378 Fed.
App’x. 567 (6th Cir. 2010). Genesys describes Verkade and its application here as
follows:
In Verkade, the plaintiff failed to timely submit a medical
certification and the employer denied his leave. At the time the
employee requested leave, the employer did not provide the
plaintiff with written notice of the certification requirement or
the 15 day deadline to submit the certification. Id. at 574-575.
While finding that the employer "therefore technically violated
the FMLA regulations," the Court nevertheless affirmed
judgment in favor of the employer because the plaintiff was not
prejudiced by these technical violations since he was “well
aware of what was required” with respect to the medical
certification requirements based on his prior communications
with his employer. Id. at 575. Therefore, “any harm was not by
reason of the technical violation but by reason of his own
noncompliance with the certification requirement”
(Genesys Reply Br. at 2, Pg. ID 408.) (Original emphasis removed; current
emphasis added.)
But the Sixth Circuit in Verkade did not find a lack of prejudice “because”
the employee knew that the employer required a certification. On the contrary, the
court held that the employee failed to show prejudice because he “was not
terminated, disciplined or demoted because of his absence” and because he was
“compensated, at least in part, by a settlement for this absence and his position was
held open upon his return.” Verkade, 379 Fed. App’x. at 575.

The lack of

prejudice language that Genesys quotes from Verkade is dicta; it follows the
court’s holding that the employee suffered no prejudice because the employer took
32

no adverse action against him for failing to submit the certification in question.
The contrast between this case – in which Ms. Barker was terminated after
Genesys declared her absences unexcused due to her failure to provide a
certification by Genesys’ fifteen-day deadline – and Verkade – in which the
employee suffered no adverse consequences as a result of his failure to submit a
certification during this time period – is clear. Verkade cannot fairly be read to
support dismissal of an FMLA claim by an employee who otherwise qualified for
FMLA leave and was terminated for having unexcused absences due to the failure
to provide a physician certification.9
Genesys’s lack of prejudice argument also relies heavily on Lipscomb v.
Elec. Data. Sys. Corp., 462 F.Supp.2d 581(D. Del. 2006), aff’d on other grounds,
275 Fed. App’x. 144 (3d Cir. 2008) – a case that Genesys calls “directly on point.”
Genesys’ argument concerning Lipscomb, worth quoting at length, is as follows:
In Lipscomb v. Elec. Data. Sys. Corp., 462 F.Supp.2d 581, 585586, 590 (D. Del. 2006), aff'd on other grounds, 275 Fed. Appx.
144 (3d Cir. 2008), the plaintiff was terminated because she

9

Another relevant distinction between this case and Verkade relates to the
communication between employer and employee. In Verkade, the employee “had
communicated with the FMLA Office at considerable length regarding the
requirement elements of certification by the time he requested FMLA leave,” and
as a result of that communication he was “well aware of what was required.”
Verkade, 378 Fed. App’x. at 575. In contrast, Ms. Barker told her employer that in
light of uncertainty surrounding her condition and her return date, she was
confused about what form of certification Genesys would require, and she said that
her supervisor did not answer her questions on this point. (See, e.g., Ms. Barker
Dep. at 113, Pg. ID 341.)
33

failed to submit her medical certification form by the 15-day
deadline required by the employer, and her absences were
therefore unexcused pursuant to the employer's attendance
policy. In support of her FMLA interference claim, Plaintiff
alleged that she had not received written notice of the 15-day
deadline in which to submit a medical certification, and
summary judgment was therefore improper. Id. The court
disagreed, holding that “[e]ven were defendant's notice
improper in this case, plaintiff cannot meet her burden of
proving any real impairment of her rights and resulting
prejudice as required by Ragsdale” because she admitted that
she “knew that she had an obligation to substantiate her
absence” and was reminded by her supervisor “several times”
of this obligation. Id. at 589 (emphasis added.) It was the
plaintiff's conduct in failing to submit the certification that
caused her termination for unexcused absences. (Id.), The
plaintiff therefore suffered no prejudice by the employer's
alleged technical failure to provide notice of the certification
requirements. Id. at 590.
Lipscomb is directly on point and instructs that even if Genesys
allegedly failed to comply with the FMLA's notice
requirements, Plaintiff cannot meet her burden of proving an
impairment of her rights because of the notice issue since she
admitted that she had been “aware of the 15-day requirement,”
that “there was no question in [her] mind” that she would have
to submit the certification in order for her absences to be
excused, and that her supervisor continuously informed her of
her obligation to submit the medical certification. (ECF #18,
Reply p. 2-4.) As in Lipscomb, it was Plaintiff's failure to act
when she admitted she was required to, that caused her harm -her absences were unexcused, which in turn resulted in her
termination under the Genesys Attendance Policy. Plaintiff was
not prejudiced by any alleged technical FMLA violations.
Lipscomb, 462 F.Supp.2d at 590.

(Genesys Supplemental Br. at 3-4, Pg. ID 444-445.) (Original emphasis removed.)

34

There are important differences between Lipscomb and this case.

In

Lipscomb, the employer [through its outside FMLA administrator] “sent to plaintiff
no less than five letters requesting the medical information required to support her
request for FMLA benefits, and informing her that failure to timely submit the
required medical information could result in her being denied said benefits.”
Lipscomb, 462 F.Supp.2d at 588-589.

In one of these letters, the employer

“enclosed a Certification of Health Care Provider Statement form for FMLA
benefits, and stated that the ‘[f]ailure to provide this medical certification within 15
days of the date of this letter may result in denial of FMLA protection,’” and the
employer did not fire the employee until long after the fifteen days had expired.
Lipscomb, 462 F.Supp.2d at 585-87. The district court in Lipscomb therefore held
that the employer “gave proper notice of the need for a medical certification, and
of the consequences for failing to submit such, consistent with the FMLA.” Id. at
589. In light of the court’s holding that the employer did give proper notice of the
certification requirement, Lipscomb does not support summary judgment where
there is a material factual dispute about whether the employer failed to give such
proper notice. Lipscomb also stands in sharp contrast to this case in which there is
no evidence Genesys ever provided a written request for medical information or
specifically explained to Ms. Barker the consequences should she fail to produce
the requested medical information within fifteen days.

35

The distinctions between Lipscomb and this case run even deeper. The court
in Lipscomb stressed that the employer gave the employee multiple chances, well
beyond the initial fifteen day period, to provide the requested medical certification,
and even after the employee “miss[ed] the final 15-day deadline of July 2” she was
not terminated for another 11 days. Lipscomb, 462 F.Supp.2d at 589. Here,
Genesys fired Ms. Barker immediately upon the expiration of the 15 day period,
and it refused to consider even discussing her reinstatement after she provided the
Completed Certification.

Unlike Lipscomb, this is not a case in which the

employer provided “repeated opportunities [for] its employees to comply with its
requests…” Id. at 590, n.8. In addition, in Lipscomb, the employee-plaintiff
“never produced, or even tried to produce, a medical certification in support of her
absence.” Id. at 589. Here, Ms. Barker repeatedly updated her supervisor nearly
every day regarding her condition, she submitted the Completed Certification, and
she indicated a willingness to supplement that form if Genesys so requested.10
Genesys also relies upon Campbell v. Jefferson Univ. Physicians, --- F.
Supp.2d ---; 2014 WL 2194519 (E.D. Pa. May 27, 2014) and Armfield v. Key

10

Moreover, the lack-of-prejudice discussion from Lipscomb upon which Genesys
relies is dicta. Before discussing the prejudice issue, the court had already
concluded that the employer did not violate the FMLA. The decision of the United
States Court of Appeals for the Third Circuit affirming the district court confirms
that the prejudice discussion was not essential to the holding of the case. The Third
Circuit affirmed the district court’s holding that the employer did not violate the
FMLA and then saw “no need” to reach the prejudice issue. See Lipscomb, 275
Fed. App’x. at 149.
36

Plastics, LLC, 2011 WL 3022253 (N.D. Ind.), but those cases, too, are easily
distinguishable. In Campbell, the employee “was not fired for failing to obtain a
recertification” related to her request for FMLA leave, but instead was fired for
“failing to come to work or call to report her absences.” Campbell, 2014 WL
2194519 at *10 (emphasis added). Moreover, the employee in Campbell conceded
that the condition that originally justified her leave when she first took FMLA
leave “no longer” existed when the employer sought a re-certification to support an
extension of the leave, and thus the “time off would not have been covered under
the FMLA even if she had obtained a recertification.” Id. Here, in contrast, Ms.
Barker was fired for having unexcused absences due to her failure to provide a
certification, and she has presented evidence that she would have been eligible for
leave up through the date of her termination. (See, e.g., Letter from Dr. Jenese
Reynolds, ECF #17-9; Return to Work Statement, ECF #17-10.)
Likewise, in Armfield, “neither party dispute[d] that [the] plaintiff was fired
for accumulating three no call / no shows in violation of defendant’s ‘three strikes’
policy, not because she failed to return her medical certification.” Armfield, 2011
WL 3022253 at *7 (emphasis added). Because the employee was fired for a
legitimate reason that was wholly unconnected to whether she provided a requested
certification, the employee suffered no prejudice even though the termination
occurred less than fifteen days after the employer requested the certification. The

37

court in Armfield stressed that “[t]he FMLA does not provide for a fifteen-day
amnesty period wherein an employee cannot be terminated for any reason while
she seeks medical certification from her health care provider.” Id. (emphasis
added). Here, of course, Ms. Barker was fired after Genesys declared her absences
from work unexcused because she never submitted a certification.
CONCLUSION
For all of the reasons started above, the Court therefore DENIES Genesys’
Motion for Summary Judgment.

s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE

Dated: July 24, 2014

I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on July 24, 2014, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

38