Brown v. Lester E. Cox Medical Centers dba CoxHealth
Filing
68
ORDER denying 55 motion for summary judgment. Signed on 1/22/2016 by District Judge M. Douglas Harpool. (Hance, Breanna)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
MIKYLA BROWN,
Plaintiff,
v.
LESTER E. COX MEDICAL CENTERS
d/b/a COXHEALTH ,
Defendant.
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Case No. 6:14-cv-03529-MDH
ORDER
Before the Court is Defendant’s Motion for Summary Judgment (Doc. 59). Upon careful
review of the issues presented and legal arguments provided by the parties, the Court hereby
DENIES Defendant’s motion.1
I. BACKGROUND
Plaintiff Mikyla Brown brings this lawsuit alleging her former employer, Lester E. Cox
Medical Centers d/b/a CoxHealth, terminated her employment in violation of the Family and
Medical Leave Act (“FMLA”). According to Plaintiff, “Defendant’s failure and refusal to allow
plaintiff medical leave under the FMLA, and/or defendant’s failure to continue employment of
plaintiff following absences from work due to her illness and/or her son’s illness, was done in
violation of the FMLA and/or retaliation[.]” Plaintiff seeks lost wages and benefits, interest for
lost wages and benefits, attorney fees, expert fees, and costs.
Following the close of discovery, Defendant now moves for summary judgment.
Defendant argues summary judgment is proper in this case because the undisputed material facts
show Plaintiff failed to provide adequate notice to Defendant, prior to her termination for
1
Although Defendant requested oral argument on its motion, the Court finds oral argument would be neither
necessary nor beneficial to help the Court understand the facts and legal arguments presented.
violating the attendance policy, that her absences were for FMLA-protected reasons. Defendant
argues Plaintiff should not be permitted “to blindside CoxHealth and raise the issue of FMLA
protection for the first time after being notified of her termination” and “to elevate ordinary,
unexcused absences with no reasonable notice whatsoever” into an FMLA claim. Plaintiff
argues Defendant is not entitled to summary judgment because genuine issues of material fact
exist as to whether Defendant was put on notice of Plaintiff’s potentially FMLA-protected
absences and whether Plaintiff’s son’s condition was FMLA- protected.
II. STANDARD
Summary judgment is proper where, viewing the evidence in the light most favorable to
the non-moving party, there is no genuine issue of material fact and the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(a); Reich v. ConAgra, Inc., 987 F.2d 1357,
1359 (8th Cir. 1993). In other words, “[w]here there is no dispute of material fact and reasonable
fact finders could not find in favor of the nonmoving party, summary judgment is appropriate.”
Quinn v. St. Louis County, 653 F.3d 745, 750 (8th Cir. 2011). Initially, the moving party bears
the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). If the movant meets the initial step, the burden shifts to the
nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
To satisfy this burden, the
nonmoving party must “do more than simply show there is some metaphysical doubt as to the
material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
III. DISCUSSION
Viewing the evidence in the light most favorable to Plaintiff, the Court finds there are
genuine issues of material fact that preclude summary judgment.
2
A. Undisputed Material Facts
CoxHealth (“Defendant”) hired Mikyla Brown (“Plaintiff”) as a Patient Care Assistant in
2012. Prior to starting at CoxHealth, Plaintiff attended orientation and training with Defendant
during which she was advised of Defendant’s policies and procedures, including Defendant’s
policies regarding discipline, absences, and tardiness. Defendant’s attendance policy was a
progressive discipline policy under which an employee could incur four absences in a twelve
month rolling period without discipline, the employee was subject to progressive discipline
starting at the fifth absence, and the employee was subject to discharge upon the eighth absence.
Defendant’s FMLA policy provided “unpaid, job-protected Family and Medical Leave of
Absence as a benefit to the eligible employees to meet their needs.” The FMLA policy stated
that an employee taking unforeseeable leave “should provide the Human Resources Department
with notice as soon as practicable” and “should also comply with any call-in procedures used in
the employee’s department.”2
2
Cheryl Dunn, Human Resources for CoxHealth, testified as follows regarding the relationship between the
attendance policy and the FMLA policy:
Q: Okay. And has there ever been a situation that you’re aware of where you’ve looked back and said this
person meets the number of absences, but some of these may be protected, so they should apply for FMLA
at this point?
A: Not to apply, but if we’re reviewing -- for instance, we’re at that stage, we might say, you know, would
that have perhaps met the criteria? Let’s take it out of the count. We just disregard that period.
...
Q: At the time Ms. Brown was employed, was there any date by which he or she, someone using FMLA,
would have to submit their request for FMLA after an absence, an unplanned absence?
A: Do you mean to qualify for FML?
Q: Right.
A: Yes -- well, they could always ask, you know, to apply. There may be some of those absences that
wouldn’t be designated as FML because of the time frame, but, again, if we’re talking about termination,
we’re not going to terminate someone using absences, whether or not they’re designated if -- because of
timing. So, for instance, if a manager comes to me and says, well, I’ve got 10 absences, and I’m ready to
move on to termination, and as we’re looking we say 10 months ago one of those absences might have
qualified, we’re not going to designate that as FML at that time because it’s too late, but we’re going to
take it out of consideration for termination.
...
Q: So you would disregard those dates, regardless of whether or not you had received an FMLA request at
that point?
A: Yes.
3
In September of 2012, Plaintiff provided Annie Durrington, Assistant Nurse Manager,
with an ER note explaining that she had been having migraines, had a spinal tap and blood patch,
and was directed not to work for a couple of days. Ms. Durrington accepted the notice and stated
that Plaintiff could just call in rather than bringing the note to her office. In September of 2012,
Defendant advised Plaintiff in writing that she was not eligible for FMLA leave due to lack of
hours worked. Plaintiff denies receiving a letter from Defendant.
In August of 2013, Plaintiff received a Corrective Action Memo for her fifth absence in a
rolling twelve month period. Plaintiff understood at that time that eight absences in a rolling
twelve month period would result in her discharge from CoxHealth. In September of 2013,
Plaintiff received a Corrective Action Memo for her sixth absence in a rolling twelve month
period. Plaintiff understood at that time that eight absences in a rolling twelve month period
would result in her discharge from CoxHealth.
In October of 2013, Plaintiff received a
Corrective Action Memo for her seventh absence in a rolling twelve month period. Plaintiff
understood at that time that eight absences in a rolling twelve month period would result in her
discharge from CoxHealth. Plaintiff knew at that time that she was getting close to termination.
In November of 2013, Plaintiff received a Corrective Action Memo again for her seventh
absence in a rolling twelve month period.3 Plaintiff testified that she knew she had one absence
remaining before discharge and she admitted coming into work sick or with little sleep in order
...
Q: And if some of those [absences] are protected, they won’t count?
A: Correct.
Q: Regardless of whether you had received an FMLA request at that point?
A: If [sic] the event that we should have or could have, then we’ll take it out of the count.
See Ex. P, 5-7.
3
One of the absences previously included in the seven absences as of October 2013 had dropped outside the twelve
month rolling period.
4
to avoid receiving her eighth absence in a rolling twelve month period. On December 31, 2013,
Plaintiff received her eighth absence in a rolling twelve month period.
On January 20, 2014, Plaintiff met with her supervisor, Annie Durrington, Assistant
Nurse Manager, who informed Plaintiff that she was being terminated for violating Defendant’s
attendance policy. At the meeting, Plaintiff raised an issue of whether her eighth and final
absence had been an excused absence, specifically, a “mandatory.” Ms. Durrington stopped the
meeting, told Plaintiff to go home, and told Plaintiff she would talk to Thelma Gillette, Nurse
Manager, to see whether Plaintiff’s final absence was considered an excused absence. When
Plaintiff went home that evening, she spoke to her mother, a manager of human resources for a
different company, and Plaintiff’s mother asked Plaintiff why she had not applied for FMLA
leave related to her migraine headaches. Plaintiff testified that she did not realize migraine
headaches were “something that could be anything for FMLA.”
The next day, January 21, 2014, Plaintiff met with her supervisor, Thelma Gillette, Nurse
Manager, who informed Plaintiff that her eighth absence was not excused and that Plaintiff was
subject to termination. Plaintiff then inquired about her eligibility for FMLA leave related to
migraines. Plaintiff testified that “I asked her can I at least get FMLA for the time that I had
migraines because a lot of my – a lot of the days I missed were due to migraines.” According to
Plaintiff, “[Ms. Gillette] said she would have me – she would talk to Cheryl in HR, and she
would get back to me and let me know; to pick up some papers for FMLA and have my doctor
fill them out, and I would be placed on suspension until then.” Plaintiff obtained FMLA
certification paperwork from Defendant and submitted the physician-completed paperwork to
Defendant on February 3, 2014. The FMLA certification paperwork submitted by Plaintiff
indicated that Plaintiff suffers from migraines, that she should receive intermittent FMLA leave,
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and that she saw a physician for migraines on August 1, 2013, September 27, 2013, October 21,
2013, and January 23, 2014.
Following Plaintiff’s meeting with Ms. Gillette, Cheryl Dunn with Human Resources
spoke to Ms. Gillette, reviewed the absence logs, and contacted Plaintiff to ask what dates in the
attendance log Plaintiff was disciplined for that Plaintiff thought should be considered off the
record. According to Ms. Dunn, Plaintiff responded, “How the heck do I know?” According to
Plaintiff, “[Ms. Dunn] kept asking me what days I thought should be removed, but she wouldn’t
let me see any of the days that I missed, so I couldn’t help her. . . . She just wasn’t showing me
the days that I missed. She wasn’t giving me enough information. I don’t know if she just
expected me to remember off the top of my head what days I missed . . .” Ms. Dunn admitted
that she did not provide Plaintiff any information to go through or look at during their
conversation but she stated that Plaintiff should have been aware of the dates of her absences
based on her memory and the Corrective Action Memos previously provided to her. Ms. Dunn
wrote on February 7, 2014 that “I don’t find any evidence that your managers were aware of any
chronic condition. You had responsibility prior to the final meeting. We will move forward with
termination.” Plaintiff’s termination was processed and finalized on February 11, 2014 with an
effective termination date of January 20, 2014.
Defendant’s records reflect that Plaintiff was absent on April 3, 2013 for “ill-headache”;
on April 26, 2013 for “ill”; on May 9, 2013 for “son ill”; on July 31, 2013 for “ill”; on August
22, 2013 for “left ill @ 2300”; on September 17, 2013 for “left shift early – sick”; on October 8,
2013 and October 11, 2013 for “gma sick” and “gma in hospital” (counted as one absence); and
on December 31, 2013 for “son sick urgent care.” This information comes from Defendant’s
sick log, which was completed by the rotating charge nurse on duty on the date that Plaintiff
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called in to report her absence. See Ex. I.4 Plaintiff testified that she did not know what was
written in the sick log regarding the reason she called in for her absences and Ms. Dunn testified
that Plaintiff was never provided access to the logbook showing the reason recorded for
Plaintiff’s absences. Plaintiff testified that she missed work for migraines on April 3, 2013,
April 26, 2013, and July 21, 2013, and that she left early for a migraine on either August 22,
2013 or September 17, 2013. Plaintiff specifically testified that she “called in” for a migraine on
April 3, 2013 and that she “probably just called in and said I was having another migraine” on
April 26, 2013.
Plaintiff testified that she spoke to several, if not all, of the night shift charge nurses about
her migraines and the medications that she was taking for her migraines, including charge nurses
Elizabeth S., Chelsea C., Maxine A., Ruth V., Sue W., and Jennifer H. According to Plaintiff,
“[e]ach of the RN’s rotate schedules for being the nurse in charge for the evening. When you
report an absence for the day, you report the absence first to the charge nurse for the floor.”
Plaintiff testified that she also had multiple discussions with PCA’s about her migraines and
migraine treatment, including PCA’s Cathy M., Melinda F., Paige W., Cody P., Cheryl S., Ebony
L., Debbie W., Ashley S., and Cindy. As to Ms. Durrington, the Assistant Nurse Manager,
Plaintiff testified:
I did not talk to [her] very often since [she] worked the day shift. I did tell
Annie, in September, about the migraines, about the -- that I had the whole -the whole blood patch and everything all because of the migraine that started
the whole thing. I told her about that. When she would ask me, you know, I
would see her in the morning and she would ask how I was doing or
something, and I would tell her, oh, like if I had a bad headache that day I
would tell her, you know, just in passing.
4
According to Plaintiff, when she reported an absence she “called in to my floor, talked to the charge nurse, and
then they transfer you to the nurse’s office or the staffing office, and you talk to them as well.”
7
Plaintiff admitted, however, that she did not talk to Ms. Durrington about her migraines when
Ms. Durrington counseled her for absenteeism on at least three separate occasions. Plaintiff
further admitted that she did not tell Ms. Gillette, the Nurse Manager, that she suffered from
migraines until their meeting on January 21, 2014.
B. Application
FMLA regulations state that “[w]hen the approximate timing of the need for leave is not
foreseeable, an employee must provide notice to the employer as soon as practicable under the
facts and circumstances of the particular case.” 29 C.F.R. § 825.303(a). The employee must
“comply with the employer’s usual and customary notice and procedural requirements for
requesting leave, absent unusual circumstances.” Id. at § 825.303(c). The employee’s notice
must “provide sufficient information for an employer to reasonably determine whether the
FMLA may apply to the leave request.” Id. at § 825.303(b). “When an employee seeks leave for
the first time for a FMLA–qualifying reason, the employee need not expressly assert rights under
the FMLA or even mention the FMLA”; however, “[c]alling in ‘sick’ without providing more
information will not be considered sufficient notice to trigger an employer’s obligations under
the Act.” Id. Once the employer’s obligations are triggered under the Act, the employer “will be
expected to obtain any additional required information through informal means” and the
employee “has an obligation to respond to an employer’s questions designed to determine
whether an absence is potentially FMLA-qualifying.” Id.
The Eighth Circuit interprets this language as placing an “affirmative duty” on the
employee to notify his or her employer of the need for leave that might be FMLA-qualifying.
Scobey v. Nucor Steel-Arkansas, 580 F.3d 781, 785-86, 88 (8th Cir. 2009). While the employee
“is not required to understand when she may take FMLA leave, or to state explicitly that she
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intends to take FMLA leave, or, indeed, even know that the FMLA exists[,]” the employee must
“apprise her employer of the specifics of her health condition in a way that makes it reasonably
plain that it is serious and tell her employer that this is why she will be absent.” Rask v.
Fresenius Med. Care N. Am., 509 F.3d 466, 474 (8th Cir. 2007). “Her employer would then
have the duty to investigate whether she is entitled to FMLA leave.” Id.; see also Spangler v.
Fed. Home Loan Bank of Des Moines, 278 F.3d 847, 852 (8th Cir. 2002) (“Under the FMLA, the
employer’s duties are triggered when the employee provides enough information to put the
employer on notice that the employee may be in need of FMLA leave.”). The Eighth Circuit has
reiterated that an employee must to do more than simply call in “sick” in order to trigger the
employer’s duties under the FMLA; the employee must provide sufficient information to allow
the employer to distinguish the specific absence as a type of “unusual and privileged absence” as
opposed to an “ordinary sick day” because “[t]o hold otherwise would create an unreasonable
burden for employers, requiring them to investigate virtually every absence to ensure that it does
not qualify for FMLA leave.” Id. at 472.
Here, the parties do not dispute that migraine headaches constitute a serious health
condition that may entitle an employee to intermittent leave under the FMLA. See 29 C.F.R. §
825.113(d) (“headaches other than migraine . . . are examples of conditions that do not meet the
definition of a serious health condition” (emphasis added)).5 Nor do the parties dispute that an
employee calling in “sick” or with a “headache,” alone, is insufficient to provide notice to the
employer under the FMLA. See Ware v. Stahl Specialty Co., No. 97-0436-CV-W-6, 1998 WL
184267, at *4-5 (W.D. Mo. Apr. 9, 1998) (unpub.) (“The court agrees with defendant's
contention that merely reporting that one will be out sick or with a headache is insufficient notice
5
Indeed, Ms. Dunn from CoxHealth HR testified that “I would say that my knowledge is migraines as a condition
qualify for intermittent FML” and “it’s one issue that we typically see for intermittent FML that we have hundreds
of employees taking intermittent FML for that.” See Ex. P, at 16.
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under the FMLA.”); see also Cruz v. Publix Super Markets, Inc., 428 F.3d 1379, 1385 (11th Cir.
2005) (“For example, if you have brain cancer but just tell your employer that you have a
headache, you have not given the notice that the FMLA requires.”). The issue in dispute here is
whether Plaintiff’s notice was adequate under the totality of the circumstances. “Our cases
instruct that the adequacy of an employee’s notice requires consideration of the totality of the
circumstances, e.g., Scobey, 580 F.3d at 787, and is typically a jury question, Phillips, 547 F.3d
at 909.” Murphy v. FedEx Nat. LTL, Inc., 618 F.3d 893, 903 (8th Cir. 2010). The Court finds
the answer to that question is better left for the jury in this case. See, e.g., Murphy, 618 F.3d 893
(8th Cir. 2010); Spangler v. Federal Home Loan Bank of Des Moines, 278 F.3d 847 (8th Cir.
2002); Ware, 1998 WL 184267 (W.D. Mo. Apr. 9, 1998).
First, there is a factual dispute as to what Plaintiff actually said when she called into the
hospital and spoke to the charge nurses to report her absences. Although the sick log states
Plaintiff was absent for “ill” and “headache” on the dates at issue, Plaintiff testified that she
missed work and “called in” for migraines on at least two of those dates. Defendant presented no
specific testimony from the charge nurses or otherwise to rebut Plaintiff’s assertion that she
“called in” for migraines, other than citing the sick log itself, arguing linguistic technicalities,
and arguing Plaintiff does not remember to whom she spoke on each occasion she called in with
a migraine. A reasonable juror could find that a charge nurse, the name of whom Plaintiff
reasonably cannot remember, simply wrote “ill” or “headache” rather than the more specific term
“migraine headache” on the sick log although Plaintiff actually reported a migraine headache.
Holding Plaintiff to the reasons written on the sick log without allowing explanation or
elaboration by Plaintiff would surely seem unjust, especially considering Plaintiff was not aware
of the reasons written on the sick log, she was not permitted to view the sick log prior to her
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termination or even while her termination was under review, and she testified she was previously
told by Ms. Durrington that she could “call in” to report an absence rather than bring in a notice.
Second, the reasons written on the sick log should not be viewed in a vacuum. Plaintiff’s
testimony indicates that it was well-known among the night shift employees, including the
charge nurses to whom Plaintiff reported her absences,6 that Plaintiff suffered from migraine
headaches and was on migraine medication. Plaintiff’s testimony further indicates that Ms.
Durrington, Plaintiff’s supervisor, had some knowledge of Plaintiff’s migraines through
Plaintiff’s episode in September of 2012 and through occasional comments in passing. Again,
Defendant presented no evidence to rebut either of these assertions. Viewing the evidence in the
light most favorable to Plaintiff, it is possible that the noted absence for “headache,” therefore,
may have been sufficient to trigger the employer’s obligation to investigate further in light of
Defendant’s prior knowledge. This is especially true where, as here, Plaintiff later brought her
migraines to the attention of the Nurse Manager and HR representative and specifically
mentioned the FMLA, where the employer’s practice according to an HR representative was to
“take out of consideration for termination” absences where an employee “should have or could
have” requested FMLA leave even though they failed to do so, and where Plaintiff was told to
submit FMLA paperwork and did, which included a doctor’s certification that Plaintiff suffers
from migraines requiring intermittent leave and that shows Plaintiff attended a doctor’s
appointment for migraines the day after one of her alleged absences for migraines.
6
The parties did not brief whether a charge nurse could be considered Plaintiff’s “employer” or “supervisor” under
the circumstances presented here, where the Nurse Manager and Assistant Nurse Manager worked the day shift,
where Plaintiff worked the night shift, and where, per protocol, Plaintiff reported her absences to the charge nurse on
duty. See generally 29 C.F.R. § 2611(4)(A)(ii) (stating the term employer includes “any person who acts, directly or
indirectly, in the interest of an employer to any of the employees of such employer”). While Defendant appears to
argue that the RN’s were merely Plaintiff’s coworkers and their prior knowledge of Plaintiff’s migraines is
insufficient to trigger any investigative duty on the part of Defendant, the parties did not brief the Court on who
Plaintiff reported to during her shift or who was considered Plaintiff’s acting supervisor while she was working the
night shift.
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IV. DECISION
For the reasons stated above, the Court finds a reasonable juror could find Plaintiff
provided adequate notice under the FMLA to trigger Defendant’s duty to further investigate.
Accordingly, a genuine issue of material fact exists for trial and Defendant’s Motion for
Summary Judgment (Doc. 59) is hereby DENIED.7
IT IS SO ORDERED.
Date: January 22, 2016
/s/ Douglas Harpool_______________
DOUGLAS HARPOOL
UNITED STATES DISTRICT JUDGE
7
Because the Court finds a genuine issue of material fact exists as to whether Plaintiff provided adequate notice that
her absences were for migraines, i.e. a serious health condition, the Court need not decide at this time whether a
genuine issue of material fact exists as to whether Plaintiff’s son’s condition was FMLA-protected. Defendant did
not move for summary judgment on that basis and it is not necessary to decide in denying Defendant’s motion for
summary judgment.
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