Eriksen v. Wal-Mart Associates

Filing 43

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS IN FULL. 23 Motion for Summary Judgment- GRANTING as to Count Two and as to the alleged violations of the FMLA notice provision contained in Count One, but DENIED as to the remainder of Count One. Signed by Judge Susan P. Watters on 4/19/2016. (AMC, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONT ANA
BILLINGS DIVISION

LORETT A LYNN ERIKSEN,
CV 14-155-BLG-SPW
Plaintiff,
ORDER

vs.

FILED
APR

WAL-MART STORES, INC.,

!

9 20!6

Clerk, U.S. District Court
District Of Montana
81ll1ngs

Defendant.

Defendant Wal-Mart Stores, Inc. ("Walmart") moved for summary judgment
on all of Plaintiff Loretta Lynn Eriksen's claims. (Doc. 23). United States
Magistrate Judge Carolyn Ostby issued Findings and Recommendations on
February 19, 2016, recommending that the motion be granted in part and denied in
part and that this Court set the matter for trial. (Doc. 37). Walmart timely objected
to the Findings and Recommendations and is therefore entitled to de novo review
of the specified findings or recommendations to which it objects. 28 U.S.C. §
636(b )(1 ). For reasons stated below, this Court adopts Judge Ostby' s Findings and
Recommendations in full. Because the parties are familiar with the procedural and
factual background of this case, it will not be restated here.

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I.

Discussion
Walmart objects to Judge Ostby's findings that material issues of fact exist

with respect to (1) whether Eriksen's FLMA application was for continuous or
intermittent leave and whether the initial certification was sufficient; (2) whether
Eriksen had an adequate amount of time to comply with the request for additional
information following receipt of the incomplete certification; and (3) whether
Eriksen was prejudiced by the FMLA violations. (Doc. 38 at 6). The Court
addresses the objections in that order.

1.

Eriksen's FMLA Application

Construing the facts in the light most favorable to Eriksen, a reasonable jury
and not the Court, must decide whether Eriksen sought intermittent leave or
continuous leave. First, Dr. Coulson's remarks on the certification form are
ambiguous. (Doc. 27 at 34). Dr. Coulson initially checked the "no" box to the
question whether Eriksen would be incapacitated for a single period of time, then
drew a line through both of the "no" and "yes" boxes and wrote, "Yes, she was - I
have not released back to work, but Occ. Health may have." (Id.). Then Dr.
Coulson drew an arrow to the empty boxes provided for an end date of incapacity
and directed the reader to contact Physical Therapy and Occupational Health for
details. (Id.). No one reading the form knows with certainty whether Dr.
Coulson's certification was for intermittent or continuous leave. This is evidenced
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by the fact that Walmart notified Eriksen that the certification contained
insufficient information regarding her anticipated frequency and/or duration of
incapacity. (Doc. 49).
Walmart argues that Eriksen specifically requested intermittent leave, so it
was not obligated to determine whether her request was for continuous or
intermittent leave. (SOF 1 44, Doc. 25). Eriksen submitted her initial claim with
Walmart's Human Resources employee Jill Hegle, who then notified Walmart's
third-party leave administrator, Sedgwick Insurance Company. (Diop Depo.
11:24-12:15, Doc. 32-1). At that point, Sedgwick typically sends the employee a
medical certification to be completed by the employee's health care provider. (Id.
at 10: 1-6; 19:24-20:3). In the certification, the employee's doctor provides an
opinion about the frequency and duration of the employee's required leave. (Doc.
27 at 34). Presumably, Sedgwick's medical certification supersedes the
employee's initial oral request for leave because the certification is endorsed by a
medical provider and the claim cannot proceed without the certification. (Doc. 27
at 49).
Here, Sedgwick acknowledged that it could not tell if Eriksen had requested
intermittent or continuous leave, because Dr. Coulson did not submit a treatment
schedule or provide the frequency and duration of her leave. (Diop Depo. 23:4-23,
Doc. 32-1 ). A reasonable juror could find that Eriksen may have requested
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continuous leave or intermittent leave, based on the content of the certification. It
is impossible to tell just from the certification, for the reasons discussed above. Dr.
Coulson and Eriksen's testimony is critical to the issue. Accordingly, this disputed
fact is for the trier of fact to decide.

2.

Time Frame for Eriksen to Cure Certification Deficiency

Walmart contends that it is undisputed that Eriksen had an adequate amount
of time to comply with Sedgwick's request for additional information. The Court
disagrees. Regardless of when Sedgwick mailed its request for additional
information, Eriksen contends she received the letter just days before she was
required to comply. (Doc. 29 at 7). Further, Eriksen contends that Sedgwick gave
her incorrect contact information, which prevented her from complying within the
time frame provided. (Id.; Doc. 24-3 at 98). Ifin fact Eriksen did not receive the
documents until just before they were due, she could not have cured the
deficiencies in the time frame Sedgwick provided. Notably, Sedgwick provides for
problems such as these by allowing its representatives to extend the deadline for an
employee to reply. (Diop Depa. 42: 10-21, Doc. 32-1). In this case, the Sedgwick
representative did not offer Eriksen any type of extension, despite the fact that
Eriksen only had a day to comply. (Id. at 42:22-43:2). Accordingly, whether
Sedgwick allowed Eriksen "adequate" time to cure her certification deficiency is
an issue for the trier of fact.
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3. Prejudice from Denial of FMLA Benefits
Walmart argues that Eriksen cannot establish, as a matter of law, that she
was prejudiced by the denial of her FMLA leave. Walmart ignores the disputed
issues of material fact that exist with respect to this issue as well. Setting aside any
discussion of whether Eriksen's termination triggers the "exacerbation theory," a
question of fact exists about whether Eriksen's absences should have been excused
under FMLA, which turns on the disputed material facts discussed above. If they
should have been excused, Eriksen was undoubtedly prejudiced from the denial of
her FMLA benefits, because her absences were not excused and as a result, she lost
her job. (Doc. 39 at 11).
Walmart argues that Eriksen can show no prejudice because she would still
be unable to return to her employment due to her health condition. (Doc. 38 at 13).
Yet, Eriksen argues that if she had been able to take leave, she would not have lost
her job and would have been able to treat her condition and ultimately return to
work, because she would have had health insurance. (Doc. 29 at 9; Doc. 39 at 10).
Judge Ostby correctly determined that these credibility issues are suitable for a
trier of fact.

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II.

Conclusion
For the reasons set forth above, IT IS HEREBY ORDERED:
1. Judge Ostby' s Findings and Recommendations (Doc. 3 7) are ADOPTED

IN FULL.
2. Walmart' Motion for Summary Judgment (Doc. 23) is GRANTED as to
Count Two and as to the alleged violations of the FMLA notice provision
contained in Count One, but DENIED as to the remainder of Count One.

DATED th;, /

f ;J;'y of April 2016.

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SUSAN P. WATTERS
United States District Judge

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