Eriksen v. Wal-Mart Associates
Filing
37
FINDINGS AND RECOMMENDATIONS re 23 MOTION for Summary Judgment filed by Wal-Mart Associates. IT IS RECOMMENDED that Wal-Marts summary judgment motion 23 be GRANTED as to Count Two and as to the alleged violations of the FMLA not ice provisions contained in Count One, but DENIED as to the remainder of Count One. Any objections to the F&R are due within 14 days. Signed by Magistrate Judge Carolyn S Ostby on 2/19/2016. (EMH, ) Modified on 2/19/2016 to change to opinion (EMH, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
LORRETTA LYNN ERIKSEN,
CV 14-155-BLG-SPW-CSO
Plaintiff,
v.
WAL-MART ASSOCIATES, INC.,
FINDINGS AND
RECOMMENDATION OF
UNITED STATES
MAGISTRATE JUDGE
Defendant.
Plaintiff Lorretta Lynn Eriksen (“Eriksen”) filed this wrongful
termination action alleging violations of the Family Medical Leave Act
(“FMLA”) (Count One), and violations of Montana’s Wrongful Discharge
from Employment Act (“WDEA”) (Count Two).
Although the Defendant named in the Complaint is “Wal-Mart
Associates, Inc.”, Defendant states that the correctly named party is
Wal-Mart Stores, Inc. (“Wal-Mart”), and Plaintiff apparently agrees.
Now pending is Wal-Mart’s summary judgment motion. ECF No. 23.
Having considered the parties’ submissions and the applicable law, the
Court recommends that the motion be granted in part and denied in
part, as discussed below.
Page 1
I.
BACKGROUND
Eriksen began working for Wal-Mart as an overnight stocker on
July 2, 2009. ECF No. 32 at 2. Her duties included “zoning work areas,
arranging and organizing merchandise and supplies, stocking and
rotating merchandise, removing damaged or out-of-date goods, setting
up, cleaning, and organizing product displays, signing and pricing
merchandise appropriately, and securing fragile and high-shrink
merchandise.” Id.; see also ECF No. 24-3 at 1. A stocker must be able to
perform the following physical tasks:
[M]ove up and down a ladder; grasp, turn, and manipulate
objects of varying sizes and weight; reach overhead and
below the knees, including bending, twisting, pulling, and
stooping; and move, lift, carry, and place merchandize and
supplies weighing up to 50 pounds without assistance.
ECF No. 32 at 2.
On or about July 3, 2013, Eriksen reported to Jill Hegle (“Hegle”),
in Human Resources, that she had suffered a workplace injury. Hegle
filled out an incident report and gave Eriksen an Associate Incident
Report, which Eriksen completed the same day. Hegle also gave
Eriksen FMLA leave request forms. Id. at 7–8.
Page 2
Sedgwick Claims Management Services, Inc. (“Sedgwick”), WalMart’s third party leave administrator, sent Eriksen a letter on
September 6, 2013, indicating that on September 5, 2013, they had
become aware of her request “to take Family Medical Leave beginning
on July 08, 2013 due to a serious health condition that makes [her]
unable to perform the essential functions of [her] job.” ECF No. 27 at
21. The letter indicated that Eriksen needed to complete and return the
Medical Authorization for Release of Information form as well as the
certification form enclosed in the letter. Id.
On September 26, 2013, Sedgwick sent a second letter to Eriksen
requesting additional information regarding the “anticipated frequency
and/or duration of incapacity or treatment schedule.” Id. at 47; ECF No.
32 at 17. Sedgwick requested that they receive the additional
information by October 8, 2013. ECF No. 27 at 47. During her
deposition, Eriksen indicated that she did not know when she received
the second letter but that “it was way later than September 26th.” ECF
No. 24-3 at 98. On October 9, 2016, a Sedgwick representative called
Eriksen regarding the request for additional information. ECF No. 32
at 17. On October 10, 2013, Sedgwick informed Eriksen that her
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request for FMLA leave was denied due to an incomplete certification.
ECF No. 27 at 49.
Prior to the denial of Eriksen’s FMLA leave, Eriksen failed to
show up for her shift on July 21, 2013, and did not call the Associate
Information Line to report the absence, as required by Wal-Mart’s
attendance policy. ECF No. 24-3 at 6; ECF No. 32 at 19. Eriksen had
previously received her first “written coaching” for attendance issues on
August 14, 2012, and received her second “written coaching” for
attendance issues on November 27, 2012. Id. at 18. A “written
coaching” is the method by which Wal-Mart indicates to its employees
that the employee’s job performance “fails to meet the reasonable
expectations and standards for all employees in the same or similar
position or if [the employee’s] conduct violates a company policy.” ECF
No. 24-3 at 7. This includes violations of the attendance policy. Id. 5–6.
When Eriksen received her third written coaching for attendance
issues on July 21, 2013, she was instructed that, if her behavior
continued, the next level of action would be termination. Id. at 11.
On October 5 and 6, 2013, Eriksen again missed her scheduled
shifts and did not call the Associate Information Line, but instead called
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only Sedgwick. ECF No. 32 at 20. Wal-Mart terminated Eriksen’s
employment on October 19, 2013, for violating the attendance policy.
Id. at 20–21.
II.
PARTIES’ ARGUMENTS
Wal-Mart argues that it is entitled to summary judgment on both
Counts of the Complaint. ECF No. 24.
As to Count One, Wal-Mart presents three arguments. First, WalMart argues that it complied with FMLA notice requirements because it
posts notices outside the breakroom and because Eriksen was provided
with FMLA forms when she reported her condition to Human
Resources. Id. at 6–7. Second, Wal-Mart argues Eriksen was not
entitled to FMLA leave because she failed to provide the necessary
medical certification. Id. at 7. Wal-Mart argues that after Sedgwick
identified Eriksen’s initial certification as deficient, it provided her
twelve days to cure the deficiencies but that Eriksen still failed to
submit medical documentation sufficient to discern the expected
frequency and duration of her requested leave. Id. at 8. It argues that
as a result of the insufficient medical documentation, Sedgwick’s denial
of Eriksen’s FMLA leave request was proper. Id.
Page 5
Third, Wal-Mart argues that Eriksen was not prejudiced by any
alleged interference with her FMLA leave because she could not
perform the essential functions of her position. Id. at 9. It argues that
Eriksen admitted that she could not perform the essential functions of
her position “during the period of July 3, 2013 until her termination on
October 19, 2013” and that “even today, she would be unable to perform
her duties or the duties of a ‘substantially equivalent position.’ ” Id. at
10. Wal-Mart argues that as a result, “[e]ven if Eriksen was entitled to
twelve weeks of unpaid leave under the FMLA . . . Wal-Mart was not
obligated to return her to work because Eriksen was (and still is) unable
to perform the essential functions of her position or a substantially
equivalent position.” Id. at 11.
As to Count Two, Wal-Mart seeks summary judgment, arguing
that: (1) Eriksen failed to timely appeal her termination under WalMart’s internal grievance procedure; (2) Wal-Mart had good cause to
terminate Eriksen for violations of Wal-Mart’s attendance policies; and
(3) Wal-Mart at all times complied with its employment policies. Id. at
12–16.
Page 6
In response, Eriksen argues that Wal-Mart is not entitled to
summary judgment on the FMLA claim because Wal-Mart “has
supplied no evidence that it complied” with FMLA’s notice
requirements. ECF No. 29 at 3. Eriksen argues that Wal-Mart has not
shown that in addition to posting FMLA rights in a conspicuous place, it
provided “a general notice of FMLA rights in an employee handbook”
and duplicated “all information found in WHD Publication 1420 in the
posters and handbooks.” Id. She argues that she submitted FMLA
certification documents to Wal-Mart’s Human Resources Department
on July 10, 2013, but that neither Wal-Mart nor Sedgwick retained
copies. Id. at 4. She argues that the only way she “found out about the
possibility of getting FMLA was from her co-workers.” Id. at 5 (citing
Lorrie Depo., 134:22 to 135:15).1
Eriksen argues that she submitted proper medical certification
because, although she applied for intermittent leave, the doctor who
Although Eriksen’s brief cites to pages of her deposition, this
deposition was not attached to her Response Brief, or to the Statement
of Disputed Facts. Nor was it filed after the Court gave additional time
“to file the portions of documents specifically referenced in either the
brief or the Statement of Disputed Facts.” See ECF 34. Some, but not
all, of the deposition pages cited by Ericksen were located among the
documents filed by Wal-Mart.
1
Page 7
filled out her medical certification forms indicated that she should be
approved for continuous leave. Id. at 6. She argues that the “only
logical conclusion one could make after receiving this information is
that [she] qualified for continuous FMLA leave.” Id. Eriksen argues
that the plain language of her certification was ignored. Id. As a
result, Eriksen argues, Oumou Diop (“Diop”), a Sedgwick
representative, incorrectly requested that she provide information
regarding the frequency and duration of treatment. Id. She also argues
that if Diop or anyone at Wal-Mart had questions about her condition,
they could have requested a second opinion, but did not do so. Id.
Eriksen further argues that Wal-Mart did not provide enough
time for her to respond to the request for additional information
because the letter requesting the information did not get mailed until
September 27, 2013, and Eriksen did not receive it until October 4,
2013, at the earliest. Id. at 7. She argues that she made five attempts
to comply with the request, but was unable to fax the documents to
Sedgwick because she was given an incorrect fax number. Id. She also
argues that she left several messages for Diop, but that Diop did not
return her calls until October 9, 2013, which was the day after the
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clarification documents were due. Id. She argues this demonstrates
that she was not given adequate time to comply with the perceived
defect in her medical certification. Id. at 8.
Next, Eriksen argues that Wal-Mart’s actions prejudiced her
because she was put to work doing tasks she was not permitted to do,
and was fired for not showing up for work that she couldn’t possibly do
without the 12 weeks of FMLA leave. Id. at 9. She argues that she was
prejudiced by not having a chance to get the rest her doctor ordered,
which might have healed her. Id. She argues that if she had been
granted FMLA leave as requested, she may have been able to recover
from her injury. Id. at 10. Eriksen argues she was also prejudiced by
Wal-Mart when she was terminated because the termination deprived
her of the medical insurance she would have had if she was granted
FMLA leave. Id. at 11.
Regarding the WDEA claim (Count Two), Eriksen argues that she
complied with Wal-Mart’s grievance procedure because she did not
understand the procedure when she was terminated but took action
immediately when she realized she had a right to appeal. Id. at 11–12.
She argues that regardless of the timeline of the appeal, an
Page 9
investigation was still opened and her termination was investigated, so
she should not barred from asserting her WDEA claim on that basis.
Id.
Finally, Eriksen argues that she was not terminated for good
cause, because if Wal-Mart had followed the law and approved her
FMLA leave, she would not have been terminated. Id. at 13. She
argues that Wal-Mart “made no secret that the absences that should
have been covered by FMLA were used against her[,]” and that “[n]o
worse cause exists for terminating someone than wrongly denying
FMLA leave.” Id. She further argues that Wal-Mart has an FMLA
policy, and that “Wal-Mart violated its FMLA policy when it failed to
provide notice to [Eriksen] and when it interfered with her right to
FMLA leave.” Id.
In reply, Wal-Mart argues that Eriksen did not comply with Local
Rule 56.1 because instead of filing her Statement of Disputed Facts
simultaneously with her Response Brief, she filed a second, and longer,
Statement of Disputed Facts five days later. ECF No. 33 at 2–4. WalMart also argues the local rule was violated because Eriksen did not
provide pinpoint citations to “a specific pleading, deposition, answer to
Page 10
interrogatory, admission, or affidavit before the Court to oppose each
fact[.]” Id.
With respect to the FMLA claim, Wal-Mart argues that Eriksen
should not be able to expand her claim beyond her Complaint, which
only claims that Wal-Mart violated the FMLA when it “failed to post
notice of its duties under the FMLA and failed to provide Ms. Eriksen
with such notice.” Id. at 5. Wal-Mart argues that Eriksen does not
dispute that it posted an FMLA notice in the hall, nor does she dispute
that Wal-Mart provided Eriksen with FMLA forms when she first
reported her condition. Id. Wal-Mart argues that any alleged failure to
comply with technical notice requirements also fails because Eriksen
has not shown any resulting prejudice because she received an FMLA
packet right after her injury and was clearly on notice of her FMLA
rights. Id. at 6.
Wal-Mart argues that Eriksen’s assertion that she submitted a
July 2013 FMLA request fails because she does not provide any
admissible evidence to support the assertion. Id. It argues that based
on the FMLA request that Eriksen did submit, Eriksen requested
intermittent leave. Id. at 7. Wal-Mart argues that Sedgwick was not
Page 11
obligated to assume Eriksen was seeking continuous leave merely
because her doctor indicated that the requirement of not lifting heavy
objects would be ongoing. Id. Wal-Mart argues that Sedgwick’s request
for additional information was appropriate based on the information
contained in the FMLA application. Id. Wal-Mart argues that because
“Eriksen failed to submit medical documentation sufficient to discern
the expected frequency and duration of her requested intermittent
leave, Sedgwick’s denial was proper under the FMLA.” Id. Wal-Mart
argues that Eriksen cannot shift the blame to cure the defects in her
application to Wal-Mart because the FMLA expressly places that
obligation on Eriksen. Id. at 8.
Next, Wal-Mart argues that Eriksen was not prejudiced by the
denial of her FMLA request. Id. at 8–9. It argues that from July 3,
2013, until her termination, Eriksen was unable to perform the
essential functions of her position and that even today she remains
unable to perform the duties or the duties of a substantially equivalent
position. Id. at 9. As a result, Wal-Mart argues that she has failed to
demonstrate she was prejudiced by the denial of FMLA leave. Id.
Page 12
In reply to Eriksen’s arguments on the WDEA claim, Wal-Mart
argues that Eriksen’s untimely appeal bars her claim. Id. at 10. WalMart argues that Eriksen received and signed her Termination Appeal
Notice, which informed her of Wal-Mart’s appeal procedures, and that
her failure to comply and exhaust the appeal process is a complete bar
to her WDEA claim. Id.
Wal-Mart argues that it terminated Eriksen for good cause
because she violated Wal-Mart’s attendance policy. It argues that
Eriksen cannot now circumvent the FMLA through the WDEA by
“claiming, for the first time, she bases this claim on Wal-Mart’s FMLA
Policy when she has not even submitted it into evidence.” Id. at 11.
Wal-Mart argues that “because the FMLA provides its own separate
remedy and procedure, the WDEA does not apply to FMLA claims.” Id.
at 11–12.
III. LEGAL STANDARD
“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.” Fed. R. Civ. P. 56(a). A
party seeking summary judgment always bears the initial responsibility
Page 13
of informing the court of the basis for its motion, and identifying those
portions of the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, which it believes
demonstrate the absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Material facts are those which may affect the outcome of the case.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as
to a material fact is genuine if there is sufficient evidence for a
reasonable fact-finder to return a verdict for the nonmoving party. Id.
If the moving party meets its initial responsibility, the burden then
shifts to the opposing party to establish that a genuine issue of fact
exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986).
The purpose of summary judgment is to pierce the pleadings and
to assess the proof in order to see whether there is a genuine need for
trial. Id. at 587 (quotation omitted). In resolving a summary judgment
motion, the evidence of the opposing party is to be believed, Anderson,
477 U.S. at 255, and all reasonable inferences that may be drawn from
Page 14
the facts placed before the Court must be drawn in favor of the opposing
party, Matsushita, 475 U.S. at 587 (citation omitted).
IV.
ANALYSIS
A.
WAL-MART’S CHALLENGE TO ERIKSEN’S
STATEMENT OF DISPUTED FACTS
The Court first addresses Wal-Mart’s two challenges to Eriksen’s
Statement of Disputed facts. Wal-Mart argues that the Court should
disregard Eriksen’s Statement of Disputed Facts for violating Local
Rule 56.1 as it: (1) was untimely; and (2) did not properly include
citations, let alone pinpoint citations, for each disputed fact. ECF No.
33 at 2–4. Here, Eriksen did timely file a Statement of Disputed Facts.
But five days later, without the Court’s leave, Eriksen filed a second
Statement of Disputed Facts, and included additional facts as well as
exhibits not included in the first Statement of Disputed Facts.
The Ninth Circuit has “repeatedly held that a motion for summary
judgment cannot be granted simply because the non-moving party
violated a local rule.” Couveau v. American Airlines, Inc., 218 F.3d
1078, 1081–82 (9th Cir. 2000). It is well-settled that cases should be
decided on their merits whenever reasonably possible. See Pena v.
Seguros La Comercial, S.A., 770 F.2d 811, 814 (9th Cir. 1985).
Page 15
Turning first to Wal-Mart’s argument that the second Statement
of Disputed Facts should be disregarded as untimely, the Court does not
condone violations of the Local Rules that thwart the administration of
justice or that work unfair prejudice upon opposing parties. But here,
Wal-Mart has neither argued that it suffered prejudice nor shown any
actual prejudice resulting from the five-day delay in Eriksen’s filing of
her second Statement of Disputed Facts. Nor has Wal-Mart moved to
strike the filing. Under these circumstances, and without in any
manner condoning violations of the Local Rules, the Court here deems it
appropriate to review both of Eriksen’s statements of disputed facts in
considering Wal-Mart’s summary judgment motion.
Second, it is true that Eriksen at times failed to comply with the
local rule requiring “a pinpoint cite to a specific pleading, deposition,
answer to interrogatory, admission or affidavit before the Court to
oppose each fact[.]” L.R. 56.1(b)(1)(B). As to some of the facts that
Eriksen indicated are disputed, she did not include specific citations to
the record. Most of the citations were to items not in the record before
the Court. As a result, the Court will review the disputed facts insofar
as the Court is able to locate the documents specifically cited.
Page 16
B.
COUNT TWO: WDEA CLAIM
Eriksen’s WDEA claim is premised on alleged FMLA violations.
In her response brief, Eriksen argues that she was terminated for
“absences that should have been covered by FMLA[.]” ECF No. 29 at
13. She argues that she was not terminated for good cause because
“[n]o worse cause exists for terminating someone than wrongly denying
FMLA leave.” Id. Next, she argues that Wal-Mart violated its
employment policies when it terminated her. She specifically asserts
that the policy at issue is the policy regarding FMLA, and argues that
“Wal-Mart violated its FMLA policy when it failed to provide notice to
[Eriksen] and when it interfered with her right to FMLA leave.” Id.
The FMLA provides a detailed remedial scheme for damages
available to an eligible employee for violations under the act.
Recoverable damages include: compensatory damages, interest,
liquidated damages, attorney’s fees and costs, and other equitable relief
such as employment, reinstatement, and promotion. 28 U.S.C. § 2617.
Most courts that have considered the question have concluded that
FMLA’s remedial scheme sets forth the exclusive remedies for an FMLA
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violation. See, e.g., Kastor v. Cash Exp. of Tennessee, LLC, 2015 WL
128051, *9 (W.D. Ky. Jan. 8, 2015); McAllister v. Quality Mobile X-Ray
Services, Inc., 2012 WL 3042972, *7 (M.D. Tenn. July 25, 2012); Alvarez
v. Hi-Temp Inc., 2004 WL 603489, *3 (N.D. Ill. Mar. 24, 2004); Cavin v.
Honda of Am. Mfg., Inc., 138 F. Supp. 2d 987, 994–998 (S.D. Ohio 2001).
In finding conflict preemption with state statutes, these courts
have reasoned that, while the FMLA does contain a savings clause that
expressly allows states to provide greater rights for family and medical
leave, it does not allow states to provide additional remedies for FMLA
violations. Kastor, 2015 WL at *9; McAllister, 2012 WL at *7. This
Court has similarly found that allowing a claimant to bring a state law
tort claim to rectify an FMLA violation, and thereby recover damages
not recoverable under the FMLA, would circumvent the remedial
scheme Congress devised to accomplish the FMLA’s objectives. Hetu v.
Charter Commun., LLC, 2015 WL 2085215 (D. Mont. May 1, 2015).
Eriksen may not assert a WDEA claim premised on FMLA
violations, and she has come forth with no evidence regarding other
alleged WDEA claims. The FMLA preempts a WDEA claim of this
nature. Accordingly, Wal-Mart is entitled to judgment as a matter of
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law on this claim and the Court recommends that Wal-Mart’s summary
judgment motion be granted as to Count Two of the Complaint.
C.
FMLA CLAIM
The FMLA provides that a qualified employee is entitled to up to
twelve weeks of unpaid leave within a twelve-month period if he or she
has a “serious health condition that makes the employee unable to
perform the functions of the position of such employee.” 29 U.S.C. §
2612. Leave must be granted when medically necessary, but an
employer may require that an employee provide a medical certification
to support an FMLA leave request. Ragsdale v. Wolverine World Wide,
Inc., 535 U.S. 81, 89 (2002); 29 U.S.C. § 2613. If an employer requests
certification, “the employer must also advise an employee of the
anticipated consequences of an employee's failure to provide adequate
certification,” and if the certification is incomplete, the employer must
provide the employee an opportunity to cure the deficiency. 29 C.F.R. §
825.305. It is the employee’s responsibility to furnish a complete and
sufficient certification, and if the employee fails to do so, the employer
may deny the taking of FMLA leave. Id.
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To protect the rights granted by the FMLA, the act prohibits an
employer from “interfer[ing] with, restrain[ing], or deny[ing] the
exercise of or the attempt to exercise” an employee’s right to take leave.
29 U.S.C. § 2615(a). “Interfering with the exercise of an employee's
rights would include, for example, not only refusing to authorize FMLA
leave, but discouraging an employee from using such leave.” 29 C.F.R.
§ 825.220. Additionally, “[t]he failure to notify an employee of her
rights under the FMLA can constitute interference if it affects the
employee’s rights under the FMLA.” Liston v. Nevada ex rel. its Dept. of
Bus. and Indus., 311 Fed. Appx. 1000, 1002 (9th Cir. 2009)
(unpublished) (citing Xin Liu v. Amway Corp., 347 F.3d 1125, 1133–34
(9th Cir. 2003). But the FMLA does not provide relief “unless the
employee has been prejudiced by the violation.” Ragsdale, 535 U.S. at
89.
The Complaint alleges two interference claims under the FMLA,
one based on inadequate notice, and one based on Wal-Mart’s refusal to
authorize FMLA leave, as well as a claim for failure to restore Eriksen
to her former position. ECF No. 3 at 12–13. The Court will address
each in turn.
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1.
FMLA Notice Requirements
For a plaintiff to succeed on a claim of interference based on an
alleged failure to give the required notice, the plaintiff must show that
the alleged failure caused the plaintiff some prejudice, rendering the
plaintiff unable to exercise that right in a meaningful way, thereby
causing injury. Stewart v. Sears, Roebuck and Co., 2005 WL 545359, at
*11 (D. Or. Mar. 7, 2005); see also Farina v. Compuware Corp., 256 F.
Supp. 2d 1033, 1056 (D. Ariz. 2003).
Eriksen argues that Wal-Mart violated the FMLA by failing to
post notice of its duties under the FMLA and failed to provide Eriksen
with such notice. ECF No. 3 at 12–13. Eriksen argues that (1) WalMart failed to “provide a general notice of FMLA rights in an employee
handbook and to duplicate all information found in WHD Publication
1420 in the posters and handbooks[;]” (2) she submitted “FMLA
certification documents, completed by her doctor, to Wal-Mart’s HR
Department on July 10, 2013[,]” but that “neither Wal-Mart nor
Sedgwick kept any copies;” and (3) there is no evidence that anyone at
Wal-Mart informed Eriksen of her FMLA rights and that she only found
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out about the possibility of FMLA leave from her co-workers. ECF No.
29 at 3–4.
Wal-Mart argues that there is no dispute that it posted notices
regarding the FMLA and that Eriksen received FMLA forms when she
first reported her medical condition to the human resources
department. ECF No. 24 at 6–7. Wal-Mart argues that any failure to
comply with a technical notice requirements also fails because Eriksen
cannot show any resulting prejudice. ECF No. 33 at 6.
Here, Wal-Mart has demonstrated, and Eriksen does not dispute,
that: (1) it posted a notice regarding the FMLA “in the hallway outside
the breakroom, directly across from where employees check in before
each shift, ECF No. 24 at 6; ECF No. 32 at 7; (2) Eriksen received
FMLA forms from Hegle when she first reported her injury, ECF No. 24
at 7; ECF No. 32 at 8; and (3) Eriksen submitted an application for
FMLA leave, ECF No. 32 at 15–16.
Although Eriksen argues that the September 5, 2013 application
for FMLA leave was not the first request she had made, there is no
evidence in the record before the Court to support her position. See
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ECF No. 32 at 15. She cites only to portions of her deposition that were
not submitted to the Court.
Finally, Eriksen argues that Wal-Mart failed to present evidence
demonstrating that it provided sufficient information in the employee
handbook and posters. ECF No. 29 at 3. But Eriksen has not claimed,
nor has she presented any evidence to demonstrate that such an alleged
failure interfered with her exercise of, or attempt to exercise, her FMLA
rights. Stewart, 2005 WL at *11. Eriksen’s arguments regarding
prejudice all stem from the denial of her FMLA leave request, not from
alleged deficiencies in the notice provided to her prior to her attempt to
invoke FMLA leave rights.
Once the moving party meets its initial burden on a summary
judgment motion, the burden shifts to the opposing party to
demonstrate that a genuine issue of fact exists. Matsushita Elec. Indus.
Co., 475 U.S. at 586. Here, Wal-Mart has shown both that it posted
notice of FMLA rights and that it provided Eriksen with FMLA leave
forms once she reported her accident. ECF No. 32 at 7–8. It has
additionally shown that Eriksen attempted to invoke any FMLA rights
she might have by applying for FMLA leave. Id. at 15–16. Once she
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submitted a request for leave, she received a letter that outlined her
rights, the requirements for medical certification, and the consequences
of failure to comply. ECF No. 27 at 21–25. For an FMLA claim based
on insufficient notice, Eriksen has the burden to demonstrate a real
impairment of her rights and resulting prejudice. Ragsdale, 535 U.S. at
90–91. There is no evidence in the record to suggest that Eriksen was
prejudiced by the alleged notice deficiencies.
The Court recommends that, based on the lack of prejudice caused
by any alleged violation of the FMLA notice provisions, summary
judgment be granted for Wal-Mart on Eriksen’s claim that Wal-Mart
“failed to post notice of its duties under the FMLA and failed to provide
Ms. Eriksen with such notice;” ECF No. 3 at 12–13.
2.
FMLA Interference and Failure to Restore to
Former Position:
Eriksen argues that, in addition to her arguments regarding
notice, Wal-Mart “interfered with, restrained, and denied Ms. Eriksen’s
right to twelve (12) weeks of medical leave[.]” ECF No. 3 at 12–13. She
argues that: (1) she provided proper medical certification and timely
submitted it to Sedgwick, ECF No. 29 at 5–6; (2) Sedgwick’s request for
additional information was improper, id.; (3) Sedgwick did not provide
Page 24
adequate time for Eriksen to respond to the request for additional
information, id. at 6–7; (4) the denial of her leave request was improper
because Sedgwick made no attempt to contact Eriksen’s doctor, or avail
itself of its right to a second opinion, id. at 6–8; and (5) she was
prejudiced by the denial of her application because she was forced to
continue working rather than take the leave she requested, and lost her
medical insurance after being terminated for the absences she
requested be considered FMLA leave, id. at 9–11.
The Court finds there are genuine issues of material fact
regarding these remaining portions of Eriksen’s FMLA claim. For
example, there are issues regarding whether the request for leave
should have been considered ongoing or intermittent based on the
doctor’s certification. ECF No. 27 at 34. In response to question 5 on
the doctor’s certification form, Eriksen’s doctor indicated that the
duration of her condition was “ongoing” and, in response to whether the
employee would be incapacitated for a single continuous time, the
doctor crossed the boxes out and wrote, “Yes, she was – I have not
released back to work but Occ. Health may have.” ECF No. 27 at 34. In
question 6, the doctor fails to indicate the frequency and duration of
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treatment. Id. Under the space provided to list the dates of scheduled
appointments, she writes, “Please contact Physical Therapy and
Occupational Health for details they have not sent me their
recommendations.” Id.
In drawing all reasonable inferences in favor of Eriksen, as it
must at this stage of the proceedings, the Court finds that the answers
on the form could reasonably indicate that the leave request should
have been interpreted as continuous leave rather than intermittent
leave. Although the form does not include the duration information
that would be required for a continuous leave request, Eriksen’s
application was denied for failure to provide the frequency and duration
information under question six, which was necessary for an
intermittent leave request. ECF No. 32-1 at 33–34. Thus, there are
fact issues regarding whether the application was for continuous or
intermittent leave and, because the notice of insufficient certification
was based on an intermittent leave request, there are fact issues
regarding whether the initial certification was sufficient.
Next, even if the request was properly interpreted as a request for
intermittent leave, there are fact issues regarding whether Eriksen had
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a reasonable opportunity to cure the alleged deficiency. Eriksen argues
that she did not receive the letter requesting additional information
until only a few days before the information was due to be returned to
Sedgwick. ECF No. 29 at 7. And regardless of when she received the
information, she alleges they prevented her from complying with the
request because they gave her incorrect contact information. Id.; ECF
No. 24-3 at 98. She argues that when she tried contacting Sedgwick,
they did not respond until after the deadline had passed. ECF No. 29 at
7; ECF No. 32-1 at 37. Thus, there are fact issues regarding whether
she was given an opportunity to comply because she was given incorrect
contact information, and whether she had an adequate amount of time
to comply with the request for additional information.
There also are fact issues regarding whether Eriksen was
prejudiced by the alleged violations. Wal-Mart argues Eriksen can
show no prejudice because she stated she would still be unable to return
to work. ECF No. 24 at 10; ECF No. 24-3 at 115–116. But Eriksen
argues that she may have been able to return to work if she had been
granted FMLA leave as requested and allowed to properly recover from
her injuries. ECF No. 29 at 11. She argues that because the leave was
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denied, she was forced to continue working, at Wal-Mart and elsewhere,
and lost her health insurance. Id. She argues all of this prejudiced her
and prevented her from recovering as anticipated at the time of her
leave request. Id. at 9–10. Finally, she alleges she was prejudiced
because the denial of her FMLA leave request changed the status of
previous absences from work, which meant she was terminated from
her employment. Id. at 11.
Accordingly, the Court recommends that the motion be denied as
to the remaining portions of Eriksen’s FMLA claim.
V.
CONCLUSION
Based on the foregoing,
IT IS RECOMMENDED that Wal-Mart’s summary judgment
motion (ECF No. 23) be GRANTED as to Count Two and as to the
alleged violations of the FMLA notice provisions contained in Count
One, but DENIED as to the remainder of Count One.
NOW, THEREFORE, IT IS ORDERED that the Clerk shall serve
a copy of the Findings and Recommendation of United States
Magistrate Judge upon the parties. The parties are advised that
pursuant to 28 U.S.C. § 636, any objections to the findings and
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recommendation must be filed with the Clerk of Court and copies
served on opposing counsel within fourteen (14) days after entry hereof,
or objection is waived. See Local Rule 72.3.
DATED this 19th day of February, 2016.
/s/ Carolyn S. Ostby
United States Magistrate Judge
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