Anderson v. Nissan North America, Inc.
Filing
31
ORDER granting 20 Motion for Summary Judgment; finding as moot 30 Motion to Strike Signed by District Judge Henry T. Wingate on 9/30/11 (tn)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
ANNETTE ANDERSON
vs.
PLAINTIFF
Civil Action No. 3:09-cv-525 HTW-LRA
NISSAN NORTH AMERICA, INC.
DEFENDANT
ORDER GRANTING SUMMARY JUDGMENT
Before this court is Nissan North America’s (“Nissan”) Motion for Summary
Judgment. Pursuant to Rule 56,1 Federal Rules of Civil Procedure, Nissan moves the
court to enter summary judgment in its favor on the grounds that plaintiff, Annette
Anderson (“Anderson”) cannot adduce any evidence from which a reasonable juror
could conclude that she was subject to disparate treatment on the basis of her sex in
violation of Title VII, codified in Title 42 U.S.C. §2000e-2, et seq.,2 when Nissan
terminated her employment for excessive absenteeism. The male comparator identified
by Anderson, says Nissan, is not similarly situated to Anderson for purposes of Title VII
because his corrective action history concerning attendance issues, and individual
1
Fed.R.Civ.P. 56(a) states:
A party may move for summary judgment, identifying each claim or defense—or the part of each
claim or defense—on which summary judgment is sought. The court shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law. The court should state on the record the
reasons for granting or denying the motion.
2
Title 42 U.S.C. § 2000e et seq., prohibits discrimination by covered employers on the
basis of race, color, religion, sex or national origin.
attendance history, was materially different from that of Anderson. Moreover, adds
Nissan, nine of the ten employees discharged for attendance infractions during the
relevant time period were male. Accordingly, says Nissan, summary judgment should
be granted to it concerning Anderson’s sex discrimination claim.
Anderson’s claim for interference with protected rights under the Family and
Medical Leave Act of 1993 (“FMLA”), Title 29 U.S.C. 2601 et. seq.,3 also should be
dismissed, argues Nissan, because Anderson’s termination under Nissan’s Attendance
Corrective Action Guidelines was based on non-FMLA protected occurrences, and
without regard to any alleged FMLA-protected tardiness or absence.
Finally, concludes Nissan, Anderson’s allegations of intentional infliction of
emotional distress, based on the same allegations which support her alleged claims of
discrimination and FMLA interference, fall far short of the heightened burden of proof
required to maintain such a claim under Mississippi law.4
Plaintiff Annette Anderson opposes Nissan’s motion. She contends that she has
presented sufficient evidence for this court to deny defendant’s motion and schedule
this dispute for a jury trial.
In her response to Nissan’s motion for summary judgment, plaintiff Annette
Anderson has withdrawn her claim under Title VII (Count I) and has failed to make any
3
“The Family Medical Leave Act of 1993 was enacted to permit employees to take
reasonable leave for medical reasons, for birth or adoption of a child, and for the care of a child,
spouse, or parent who has a serious health condition.FN6 The Act seeks to meet the needs of
families in a manner that accommodates the legitimate interests of employers.” Bocalbos v.
National Western Life Ins. Co., 162 F.3d 379, 382 (5th Cir. 1998).
4
As prescribed by Erie R.R. Company v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed.
1188 (1938), this court applies the substantive law of the State of Mississippi to this claim.
2
response whatsoever concerning Nissan’s motion for summary judgment as to her
intentional infliction of emotional distress claim (Count III) under state law. Plaintiff’s
brief in response to defendant’s motions for summary judgment, docket no. 26. Both of
these claims are dismissed with prejudice.
Relative to plaintiff’s remaining FMLA claims, then, this court agrees with
Nissan’s stance on the law as applied to the undisputed material facts. Accordingly, this
court grants summary judgment to Nissan for the reasons which follow.
The defendant has also filed a motion to strike [docket no. 30], which this court
finds moot.
Because plaintiff has pled violation of a federal statute, this court has federal
question subject matter jurisdiction, under Title 28 U.S.C. § 1331,5 over the claims
founded in federal statutes, and supplemental jurisdiction, under Title 28 U.S.C. §
1367(a),6 over the state law claims which arise from the same set of facts and
circumstances.
I. Background
Anderson became employed by Nissan as a production technician in Nissan’s
Trim & Chassis Plant at the company’s Canton, Mississippi, facility on or about June 23,
5
Title 28 U.S.C. § 1331 states, “[t]he district courts shall have original jurisdiction of all
civil actions arising under the Constitution, laws, or treaties of the United States.”
6
Title 28 U.S.C. § 1367(a) states in pertinent part:
Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal
statute, in any civil action of which the district courts have original jurisdiction, the district courts
shall have supplemental jurisdiction over all other claims that are so related to claims in the
action within such original jurisdiction that they form part of the same case or controversy under
Article III of the United States Constitution.
3
2003. See Deposition of Annette Anderson, Exhibit A to Motion (hereinafter “Anderson
Depo.”) at 19-21. At the time Anderson became employed, she received a copy of the
Nissan North America, Inc., Employee Handbook (“Handbook”). Anderson Depo., Exs.
1 and 2. Anderson also acknowledged that she was an at-will employee of Nissan, and
that her at-will Nissan employment was subject to “such rules, regulations, personnel
practices and policies, and changes therein as [Nissan] may from time to time adopt ...
.” Anderson Depo., Ex. 3.
In 2005, Nissan supplemented the “Attendance Policy” in its Handbook
(Anderson Depo., Ex. 2) with its “Attendance Policy Corrective Action Guidelines,” which
set forth corrective action guidelines for both unexcused and excused (but unpaid and
unprotected) absences. Anderson Depo., Ex. 4 (hereinafter “Corrective Action
Guidelines”). Anderson admits that she received and was aware of the Corrective
Action Guidelines from the time of their issuance. Anderson Depo. at 21.
The Corrective Action Guidelines, together with the corrective action provisions
of the Handbook (Handbook, Exhibit 2 to Anderson Depo. at 24-27), enact a
progressive counseling and discipline system designed to give employees early notice
of attendance issues and ample opportunity to correct their behavior before losing their
job. Affidavit of Jay Kerr, Exhibit B to Motion at ¶ 5 (hereinafter “Kerr Aff.”). As set forth
in the Corrective Action Guidelines, the following corrective action steps are normally
utilized in series by Nissan to give employees full and fair notice of developing
attendance problems and a corresponding opportunity to correct their behavior: (1)
Counseling; (2) Verbal Reminder; (3) Written Reminder; (4) Final Written Reminder; and
4
(5) Termination of Employment. Anderson Depo., Ex. 4; Kerr Aff. at 6.
Under Nissan’s policies, excessive absences, unapproved absences and other
violations of the attendance policy can result in corrective action.7 Anderson Depo., Ex.
4; Kerr Aff. at 8. An employee will receive “points” when an absence is unexcused or
when an absence is excused, but unpaid and unprotected.8 Id. Nissan employees
accrue “paid time off” or “PTO” hours each month. Employees can use their accrued
PTO if they are ill or if they have personal business that cannot be handled outside of
the work day. Kerr Aff. at 9. If an employee has sufficient PTO to cover an absence, he
will receive no points, even if the absence is not otherwise protected. Id. Nissan
employees can earn vacation time based on their length of service to the company.
Kerr Aff. at 10. However, unlike with PTO, an employee cannot cover an unplanned
absence with vacation time; he will receive points for the unplanned absence even if he
has vacation time available. Id. Put another way, an employee may not retroactively
apply vacation time to an absence that Nissan’s management did not schedule, at least
24 hours prior to the absence as the employee’s vacation time. Id. Without
management’s pre-approval, the absence will result in the employee accumulating
7
Under the system, employees are assigned “points” for various occurrences or
excused (but unpaid and unprotected) absences. The assignment of points is done on a nofault” basis. This means that the reason for the absence or tardiness is irrelevant under the
Corrective Action Guidelines unless it is a “paid” or “protected” absence as defined under the
Corrective Action Guidelines. Kerr Aff. at 8; Anderson Depo., Ex. 4.
8
“Paid” or “protected” absences under the Corrective Action Guidelines include:
absences covered by an employee’s accrued “paid time-off;” holidays; previously and properly
approved vacation days; military or jury duty service; disability or bereavement leaves; leaves
protected by the Family and Medical Leave Act; approved personal leaves; and approved
parental or bonding leaves. No points are given for these absences. Kerr Aff. At 9; Anderson
Depo., Ex. 4.
5
points for it under Corrective Action Guidelines. Id.
While the accumulation of “points” under the attendance system provides the
company with benchmarks to gauge an employee’s attendance standing at any given
time, the progressive corrective action steps are key to employee discipline and
discharge for attendance violations. The critical point is this: employment discharges for
attendance violations at Nissan are determined based upon completion of the
progressive corrective action steps, not by the level of points achieved under the
attendance system. Kerr Aff. at 12. This is because the purpose of the corrective
action guidelines is to give employees an opportunity to correct their behavior before
serious discipline results. Id. Since Nissan’s corrective action steps are progressive,
situations can arise where the corrective action issued does not coincide with the point
level for that corrective action step stated in the Correction Action Guidelines. Kerr Aff.
at 11. For example, if an employee has an unexcused absence which brings his point
total to 8 points, this would justify a Verbal Reminder under the Corrective Action
Guidelines. Id. However, if, while management is preparing the Verbal Reminder, the
employee is tardy twice again and raises his point total to 14 points (thereby justifying a
Written Reminder under the Corrective Action Guidelines), Nissan will normally only
issue the Verbal Reminder to the employee, even though at the time the Verbal
Reminder is issued, the employee’s point total has risen to a level which would justify a
Written Reminder under the Corrective Action Guidelines. Id. The employee would not
receive the next step in the corrective action progression until the next incurrence of
points following the issuance of the Verbal Reminder. Id. Thus, because Nissan strives
6
to give employees notice of attendance problems and an opportunity to correct their
behavior, it will not discharge an employee for attendance problems until the last stage
in the corrective action progression prior to discharge (i.e., “Final Written Reminder”)
has occurred. Id. For this reason, occasions can arise when employees receive 20 or
more points without being terminated. Id. Discharge depends upon whether, at the
time the employee reaches 20 or more points, he has previously received a Final
Written Reminder for attendance. Id. If so, the employee will be discharged at the time
he receives 20 or more points. If not, the employee will be issued a Final Written
Reminder for attendance, with termination to follow on the next incurrence of points
under the Correction Action Guidelines. Id.
Anderson’s disciplinary history for attendance problems from May 2007 through
her employment termination in February 2008 is as follows:
1.
On May 24, 2007, Anderson received a Verbal Reminder
under the Attendance Corrective Action Guidelines because
she had accumulated 9 attendance points. Anderson Depo.
at 25-26 and Ex. 5.
2
Anderson received a Written Reminder for attendance
issues on August 15, 2007. Anderson Depo. at 26-27 and
Ex. 6. Anderson received this Written Reminder because
she accumulated 2 additional points for missing 4 hours of
work to take her child to the dentist on June 4, 2007, and 3
additional points for being tardy due to traffic on July 9,
2007, which, when coupled with the 9 points she already
had, raised her point total to 14 points.9 Id. This Written
9
The following absences or tardies during this same time period were not counted
against Anderson (and did not contribute to the issuance of her Written Reminder) so that
Anderson would have the opportunity to submit FMLA paperwork for them: June 20 and 21
absence due to husband allegedly having surgery (4 points); July 16 doctor’s appointment (2
points); and August 13 non-stop nosebleed (2 points). These occurrences were not counted
against Anderson, but she still had enough points for the June 4, 2007, absence and July 9,
7
Reminder was presented to Anderson and advised her that
future violation of the attendance policy would subject her to
further corrective action up to and including termination of
employment. Anderson Depo. at 26-27 and Ex. 6.
3.
On February 13, 2008, Anderson was issued a Final Written
Reminder for attendance because on January 10, 2008, she
missed several hours of work when she went to the hospital
with her husband, resulting in incurrence of an additional 4
points which brought her total points to 18 points, justifying a
Final Written Reminder under the Corrective Action Guidelines. Anderson Depo. at 26-27 and Ex. 7. This Final
Written Reminder was given to and discussed with Ms.
Anderson by her Section Manager, John Smith. Anderson
Depo. at 26-27. The Final Written Reminder states in part:
“this Final Written Reminder is your last chance to correct
your unacceptable attendance. It is the third step of the four
step correction action process. This step is sometimes
called the decision-making stage. You are encouraged to
continue working with the understanding that you must
correct your problem.” Anderson Depo. at Ex. 7.
As of February 13, 2008, Anderson was aware of the following: (1) she had at least 18
points under the attendance system; (2) she had been given a Final Written Reminder
about her attendance problems by Nissan; and (3) that the next step for any subsequent
attendance issue resulting in points under the attendance system would be termination
of employment. Anderson Depo. At 26-27, Ex. 7.10
On February 20, 2008, Anderson was tardy because she overslept. Kerr Aff., ¶
2007, tardy to bring her point total to 14, thus justifying a Written Reminder under the Corrective
Action Guidelines.
10
Significantly, Anderson had two other attendance occurrences between her August
2007 Written Reminder and her February 13, 2008, Final Written Reminder. They were: (1) a
tardy on January 22, 2008 (3 points); and (2) a tardy on February 1, 2008, due to Anderson’s
having her leased vehicle serviced (3 points). While these could have been considered and
included by Nissan in arriving at Anderson’s February 13, 2008, Final Written Reminder, they
were not considered by the company in connection with the Final Written Reminder. Anderson
Depo., Ex. 7.
8
14, Ex. 2; see also Summary of Corrective Action Appeal for Peer Review, Exhibit C.
Anderson requested vacation time for this tardiness, but this request was denied
because her vacation request was not made and scheduled at least 24 hours in
advance as required by Nissan policy. This tardy resulted in Anderson’s incurrence of
an additional 3 points under the attendance system, bringing the number of points
having been counted by Nissan in arriving at Anderson’s attendance-related corrective
action to 21 points.
On February 27, 2008, Anderson’s Department Manager, Norris Poynter,
recommended that Anderson be discharged for unacceptable attendance. See Kerr
Aff., ¶¶ 13, 15 and Ex. 1. Poynter’s recommendation that Anderson be discharged was
subsequently approved by the company. Kerr Aff., ¶¶ 13, 16 and Ex. 1.
On February 28, 2008, Anderson was advised that her employment was being
terminated because of unacceptable attendance. Kerr. Aff., ¶ 16.
Anderson’s complaint asserts a claim for “Direct Violation of the Requirements of
FMLA.” Specifically, her complaint alleges:
10. In December of 2007, Plaintiff applied for FMLA leave in
order to have breast surgery.
11. While out on FMLA leave, Plaintiff was disciplined for
her absences and received points against her attendance,
which she did not deserve.
Complaint, ¶¶ 10, 11. Anderson’s response to Nissan’s interrogatory about her FMLA
claims states: “... Defendant improperly terminated plaintiff instead of allowing plaintiff to
take FMLA leave.” See Anderson’s response to Nissan’s Interrogatory No. 7, attached
9
as Exhibit D to Motion.11
To prevail on an FMLA interference claim, Anderson must show: (1) that she was
eligible for the FMLA’s protections; (2) that Nissan was covered by the FMLA; (3) that
she was entitled to leave under the FMLA; (4) that she provided sufficient notice of her
intent to take leave; and (5) that Nissan denied her FMLA leave to which she was
entitled. De La Rama v. Illinois Dept. of Human Services, 542 F.3d 681, 686-87 (7th cir.
2008); Elsensohn v. St. Tammany Parish Sheriff’s Office, 530 F.3d 368, 372 (5th cir.
2008) (FMLA “interference” claim requires proof of right to take FMLA leave). Anderson
must also establish that she suffered employment-related loss “by reason of the [FMLA]
violation” or actual monetary loss “as a direct result of the violation.” See Title 29
U.S.C. § 2617(a)(1)(A)(i)(I); Title 29 U.S.C. § 2615.
11
Anderson’s complaint cannot be read as asserting a claim for retaliatory discharge
under FMLA. To assert an FMLA retaliation claim, Anderson must first plead, and then prove,
the following elements: (1) that she was protected under the FMLA; (2) that she suffered an
adverse employment decision; (3a) that she was treated less favorably than an employee who
had not requested leave under FMLA; or (3b) the adverse decision was made because she took
FMLA leave. See Elsensohn v. St. Tammany Parish Sheriff’s Office, 530 F.3d 368, 372 (5th Cir.
2008). If a prima facie case is established, the burden shifts to Nissan to establish a legitimate,
non-retaliatory reason for Anderson’s termination. Hunt v. Rapides Health Care System, LLC,
277 F.3d 756, 768-69 (5th Cir. 2001). If Nissan makes this showing, Anderson must then
demonstrate a triable issue of fact concerning whether Nissan’s articulated reason is a pretext
for retaliation. Hunt, 277 F.3d at 768.
Anderson’s complaint does not plead any of these elements. Accordingly, her complaint
fails to state a claim upon which relief can be granted for FMLA retaliation pursuant to Rule
12(b)(6), FRCP, and any such purported claim, even if asserted, is subject to dismissal for this
reason alone. See Bell Atlantic Corp. V. Twombly, 550 U.S. 544, 555 (2007) (complaint must
assert factual allegations sufficient to “raise a right to relief above the speculative level”). See
also Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (complaint offering only “labels and
conclusions” and “naked assertions” is insufficient). Anderson has therefor wholly failed to
properly or effectively plead a claim for retaliatory discharge under FMLA, and to the extent she
purports to assert such a claim, it should be dismissed. Regardless, Anderson has no proof
that her discharge for violation of Nissan’s Attendance Policy and Corrective Action Guidelines
is a pretext for FMLA retaliation.
10
II. Summary Judgment
A. Legal Standard
The court should grant a motion for summary judgment only if “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56; Turner v.
Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007). A fact is material if “it
might affect the outcome of the suit under the governing law.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). To
determine whether there is a genuine dispute as to any material fact, the court must
consider “all of the evidence in the record but refrain from making any credibility
determinations or weighing the evidence.” Turner, 476 F.3d at 343 (citing Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105
(2000)). The court must make all reasonable inferences in favor of the non-moving
party, Reeves, 530 U.S. at 150; “however, a party cannot defeat summary judgment
with conclusory allegations, unsubstantiated assertions, or ‘only a scintilla of evidence.’”
Id (citing Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
B. Analysis
Anderson’s interference claim in this case is premised upon alleged wrongful
denial of requested FMLA leave in connection with or following her December 2007
leave request to have breast surgery. See Complaint, ¶¶ 10-11.
On or after December 5, 2007, plaintiff requested and was granted FMLA leave
11
associated with breast surgery which occurred on November 29, 2007. Anderson
submitted, and Nissan accepted, as medical certification for that leave, a certification
form signed by her physician Dr. Dev. A. ManiSunDaram. Anderson Depo. At 27-30
and Ex. 8. This medical certification asserted plaintiff’s need for leave for a “condition
lasting more than 3 days.” Id. The boxes for “chronic condition” and “permanent or
long-term care requiring supervision” were not checked by the physician. The physician
noted the duration of the condition as four (4) days. Id. At the time the physician
completed and signed the medical certification form on December 5, 2007 (Anderson
Depo., Ex. 8), the physician represented to Nissan that Anderson was currently able to
work full duty. Id.
Although Anderson’s complaint accuses Nissan of denying her medical leave in
connection with the aforementioned breast surgery of November, 2007, the factual
record before the court does not support her contention. The record instead establishes
that no absence occurring in either November or December 2007 was ever counted
against Anderson, or included in any computation of disciplinary action against
Anderson. See Anderson Depo., Ex. 7 (Final Written Reminder); Kerr Aff., Ex. 1
(termination recommendation).12 Thus, Anderson’s contention that she was denied
FMLA leave associated with her breast surgery lacks any evidentiary foundation.
Anderson’s argument in her response to defendant’s motion for summary
judgment wanders far beyond the assertions in the four corners of her complaint. This
response focuses upon an incident occurring in January, 2008, concerning Anderson’s
12
Anderson’s Verbal and Written Reminders both predated November 2007. Anderson
Depo., Exs. 5, 6.
12
husband. This incident was not raised in her complaint; it surfaced only in plaintiff’s
response to defendant’s motion for summary judgment. This aspect, alone, is sufficient
ground for this court to dismiss this claim; nevertheless, the court will provide an
additional reason premised upon an analysis of FMLA jurisprudence.
As of late November, early December 2007 (the time at which she had her breast
surgery), Anderson had already received a Verbal Reminder and a Written Reminder
under Nissan’s corrective action matrix for attendance infractions. Anderson Depo.,
Exs. 5 and 6. The next step in the process for subsequent infractions was the Final
Written Reminder. Anderson received her Final Written Reminder on February 13,
2008, as a result of an absence from work on January 10, 2008. Anderson Depo., Ex.
7.
On January 10, 2008, Anderson was at work at Nissan when she received word
that her husband had left his job that day as a Fed Ex truck driver to go to a hospital
emergency room. Anderson Depo. at 30. When Anderson arrived at the hospital
emergency room, she learned that her husband had not had a heart attack, as she had
thought, but was suffering from anxiety. Anderson Depo. at 30-34. Anderson then took
her husband home from the hospital emergency room shortly after lunch on January 10.
Id. She reported back to work at Nissan on January 10 by 2:30 p.m. Id. She worked
the rest of the day up to and through 5:30 p.m. at Nissan. She thereafter worked every
other day following January 10 at Nissan on which she was scheduled to work up to and
through the time of her discharge. Anderson Depo. at 34.
Anderson contends this absence should have been covered under FMLA.
13
Nissan disagrees, arguing that it was legally correct in its decision to count this absence
against her. Nissan argues that the FMLA requires the employee to provide sufficient
notice for the employer to determine if the absence is covered by the FMLA. See
Satterfield v. Wal-Mart Stores, Inc., 135 F.3d 973 (5th Cir. 1998). This court agrees with
Nissan.
Eligible employees, under the FMLA, are entitled to up to 12 work-weeks of leave
during a 12-month period for various reasons, including a serious health condition
suffered by the employee which prevents her from working or to provide care for a
family member who has a serious health condition. See Urban v. Dolgencorp of Texas,
Inc., 393 F.3d 572, 574 (5th Cir. 2004); Title 29 U.S.C. § 2612(a)(1)(C).13 Under the Act,
it is illegal for an employer to “interfere with, restrain, or deny the exercise of or the
attempt to exercise, any right provided under” the FMLA. Title 29 U.S.C. § 2615(a);
Satterfield v. Wal-Mart Stores, Inc., 135 F.3d 973, 975 (5th Cir. 1998).
The FMLA requires the employee to provide notice to the employer, “sufficient to
reasonably apprise [the employer] of the employee’s request to take time off for a
serious health condition.” See Title 29 C.F.R. §§ 825.302-303 (2009); Manuel v.
Westlake Polymers Corp., 66 F.3d 758, 764 (5th Cir. 1995). The employee is not
required specifically to invoke the FMLA. 66 F.3d at 762 (comparing the employee
13
Title 29 U.S.C. § 2612(a)(1)(C) states:
(1) Entitlement to leave
Subject to section 2613 of this title, an eligible employee shall be entitled to a total of 12
workweeks of leave during any 12-month period for one or more of the following:
...
(C) In order to care for the spouse, or a son, daughter, or parent, of the employee, if such
spouse, son, daughter, or parent has a serious health condition.
14
notice requirements for unforeseeable FMLA leave to the requirements for foreseeable
leave). And if the initial notification, be it verbal or written, is insufficient, “the employer
will be expected to obtain any additional required information through informal means.”
Title 28 C.F.R. § 825.303 (2009). The employee, however, has the obligation to
respond to the employer’s inquiries and “the leave request may result in denial of FMLA
protection if the employer is unable to determine whether the leave is FMLA-qualifying.”
Id.
In response to the defendant’s motion for summary judgment, plaintiff provided
her own affidavit, dated July 15, 2010, stating that her husband had an ongoing anxiety
condition. Anderson Aff., ¶9. Anderson clearly did not submit her affidavit to Nissan
prior to her termination, thus, it could not have served to provide Nissan with notice of a
“serious health condition” entitling her to protection by the FMLA.
Anderson also has provided two letters from Dr. Don Gibson, addressing her
husband’s emergency room visit on January 10, 2008. Plaintiff’s response to motion for
summary judgment, Ex. B. Plaintiff claims she submitted these letters to Nissan before
her termination. The letters are dated February 5 and 11, 2008. Following are the
contents of each letter:
February 5, 2008 letter:
Mr. Anthony Carl Anderson is a patient whom I have followed for a
number of years. He was seen on June 19, 2007 at the Magee General
Hospital Emergency Room. Mr. Anderson was last seen in my office on
June 28, 2007. During this visit, I strongly recommended him [sic] to take
some time off, and to have someone to help him with day to day activities.
It was understood that his wife would be the caretaker, and would be able
to take off work during this time.
15
If you need additional information, please give my office a call.
February 11, 2008 letter:
Annette Anderson is a patient whom I have followed for a number of
years. On January 10, 2008, she was notified at work that her husband
Anthony Andersen had been transported to Central Mississippi Medical
Center. According to the patient, she left work to be with her husband.
(please see hospital documentation). This incident falls under a medical
emergency, and I’m sure you will agree, that she did what any spouse
would have done under the same circumstances.
If you need additional information, please give my office a call.
The final written reminder issued on February 13, 2008, by Nissan indicates the
Human Resources department conducted an investigation into the January 10, 2008
incident. Plaintiff was familiar with the leave request procedure under the FMLA, having
requested and received approval for leave when she had breast surgery in November of
2007. Even assuming, arguendo, that plaintiff did submit Dr. Gibson’s letters to Nissan
during the Human Resources investigation, they do not provide sufficient evidence to
Nissan to find she or her husband suffered a “serious health condition” qualifying for
FMLA protection.
A “serious health condition” as defined in the FMLA “means an illness, injury,
impairment or physical or mental condition” requiring: (1) inpatient care resulting in an
overnight stay in a hospital; (2) continuing treatment by a healthcare provider which, at
a minimum, initially involved a period of incapacity of more than three consecutive
calendar days; (3) a period of incapacity related to pregnancy or prenatal care; or (4) a
period of incapacity due to a chronic serious health condition. See Title 29 C.F.R. §
825.114 (2007); Title 29 C.F.R. §§ 825.114 and 825.115 (2009); Mauder v. Met. Transit
16
Auth., 446 F.3d 574, 579-580 (5th Cir. 2006). The evidence provided by plaintiff to date
does not support a conclusion that her husband’s emergency room visit qualifies under
this definition.
The letters which Anderson claims to have provided to Nissan are from her
husband’s treating physician. They notably omit any mention of frequent or ongoing
treatment for a chronic health condition, or any diagnosis at all for chronic anxiety. They
state that Mr. Anderson had been admitted to an emergency room and plaintiff
reasonably responded by leaving work to meet her husband there, that the doctor had
counseled Mr. Anderson to take some time off, and that the doctor was under the
impression that the plaintiff could take off from work to assist him. This information, in
response to Nissan’s investigation, is insufficient to allow Nissan to determine if the
leave qualifies under the FMLA. The administrative regulations governing employee
notice requirements under the FMLA explicitly state that “the leave request may result in
denial of FMLA protection if the employer is unable to determine whether the leave is
FMLA-qualifying.” Title 28 C.F.R. § 825.303 (2009). In computing this absence against
plaintiff, Nissan did not violate any rights of Anderson under the FMLA
After receiving her Final Written Reminder on February 13, 2008, Anderson’s
employment discharge was precipitated by her next violation of the attendance policy
when she was tardy for work on February 20, 2008. On this occasion, Anderson
advised Nissan that on the night before February 20, 2008, she had had a
disagreement with her husband and that she had taken medication to help her sleep
and that it caused her to oversleep and be 20 minutes late for work. Kerr Aff., ¶ 10 and
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Ex. 2. See also Summary of Corrective Action Appeal for Peer Review, Exhibit C. On
February 20, 2008, Anderson asked Nissan if she could take a vacation day for
February 20, but she was advised that vacation coverage could not be allowed since it
was not requested and scheduled at least 24 hours in advance, pursuant to Company
policy. Kerr Aff., ¶ 10 and Ex. 2.
Again, Anderson contends that Nissan violated her rights under the FMLA.
Again, this court disagrees.
Tardiness due to oversleeping because of medication taken because of a
disagreement with a spouse is not an FMLA-covered event. See Title 29 C.F.R.
§ 825.114 (2007) and Title 29 C.F.R. §§ 825.114 and 825.115 (effective January 16,
2009). Moreover, Anderson was not, as she must be for FMLA-protection, rendered
unable by this event from performing the essential functions of her position at Nissan.
See Title 29 C.F.R. § 825.112(4) (in order to qualify as a serious health condition
covered by FMLA, employee’s condition must render employee unable to perform
functions of job). Anderson was 20 minutes late to work, but she thereafter came to
work and worked on February 20, 2008, and again, worked every other scheduled day
she was required to work up to and through the date of her discharge. Anderson Depo.
at 34.
The February 20, 2008, tardiness which precipitated Anderson’s discharge was
therefore not covered by the FMLA. Nissan gave Anderson all of the FMLA leave which
she properly and timely requested. Plaintiff failed to provide appropriate information to
Nissan sufficient for it to determine if her January 2008 absence was protected by the
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FMLA. No FMLA-covered event was counted against Anderson by the Company in
arriving at her various corrective action reminders and termination.
III. CONCLUSION
This court has reviewed the pleadings and record evidence to determine if any
genuine dispute of material fact remains requiring the hearing of a jury. Plaintiff has
conceded her Title VII claim and completely failed to support her claim of intentional
infliction of emotional distress. As for her FMLA claims, as explained above, this court
finds that they must be dismissed. This court grants defendant’s motion for summary
judgment [docket no. 20] and denies defendant’s motion to strike [docket no. 30] as
moot.
SO ORDERED, this, the 30th day of September, 2011.
s/ HENRY T. WINGATE
UNITED STATES DISTRICT COURT JUDGE
Civil Action No. 3:09-cv-525 HTW-LRA
Order Granting Summary Judgment
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