Michener v. BryanLGH Health System

Filing 35

MEMORANDUM AND ORDER - The defendant's motion for summary judgment (filing 25 ) is denied. Ordered by Judge Richard G. Kopf. (GJG)

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF NEBRASKA

M IC H E L L E R. MICHENER, Plaintiff, v. B R Y A N L G H HEALTH SYSTEM, Defendant.

) ) ) ) ) ) ) )

4 :0 8 C V 3 2 0 2

M EM ORANDUM A N D ORDER

T h e plaintiff, Michelle R. Michener ("Michener") was formerly employed as a payroll specialist by the defendant, BryanLGH Medical Center ("BryanLGH"). Her e m p lo y m e n t was terminated on April 15, 2008, after she had been absent from work fo r approximately one month. Michener claims that BryanLGH violated the Family M e d ic a l and Leave Act ("FMLA"), 29 U.S.C. §2615(a)(1), by interfering with, re stra in in g , or denying the exercise of rights provided by the Act when it terminated h e r employment. BryanLGH contends that Michener failed to comply with the FMLA b y not providing medical certification of her inability to work. B ry a n L G H now seeks summary judgment on Michener's claim, and, pursuant to Nebraska Civil Rule 56.1(a), submits that there is no genuine dispute as to the f o l lo w in g material facts:1 1 . Michelle R. Michener is a resident of Lincoln, Nebraska. Summary judgment is appropriate if there are no genuine disputes of material fa c t and the moving party is entitled to judgment as a matter of law. Chial v. S p r in t/U n ite d Management Co., 569 F.3d 850, 853 (8th Cir. 2009). A dispute is g e n u in e if the evidence is such that it could cause a reasonable jury to return a verdict fo r either party; a fact is material if its resolution affects the outcome of the case. Id. (c itin g Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
1

(C o m p la in t (filing 1), ¶3; Answer (filing 13), ¶2) 2 . BryanLGH Medical System and BryanLGH Medical Center are re la te d Nebraska not-for-profit corporations which operate a hospital in th e city of Lincoln, Nebraska. At various times, Michener was an e m p lo y e e of the Medical System and the Medical Center (referred to c o lle c tiv e ly as "BryanLGH") (Complaint ¶4; Answer ¶2; Anderson Aff. (f ilin g 26-7), ¶3) 3 . Michener was employed as a Payroll Specialist in the Payroll D e p a r tm e n t. (Complaint, ¶3; Answer, ¶2) Her supervisor was Barbara B re ttm a n n . (Michener Depo. (filing 26-2) 5:19-20) 4 . Michener was absent from work on March 10, 2008. On M a rc h 11, she left a voice message at BryanLGH's Employee Health D e p a rtm e n t stating that she had been off work since March 10 due to an e ar infection and the "flu." She said that she would get whatever p a p e rw o rk BryanLGH needed concerning her absence. Tracey L. J o h n s o n , a Case Manager in the Employee Health Department listened to Michener's message on March 12. (Johnson Aff. (filing 26-6), ¶5) 5 . Johnson started a Case Progress Notes Report on March 13 w h ic h summarized the information concerning Michener's absence and re q u e s t for leave and her notes concerning her contacts with Michener a n d others concerning Michener's leave request and employment s itu a tio n . (Johnson Aff., ¶6, Att. B) 6. After Johnson's initial contact with Michener, she c o m m u n ic ate d with Michener by telephone and by e-mail during March a n d April 2008 concerning her leave status. Johnson also had regular c o n ta ct with Brettmann, Michener's supervisor, and she discussed M ic h e n e r's situation with Ron Anderson, the Director of Employee R e la tio n s . (Johnson Aff., ¶6) Michener also admits that she had contact w ith Brettmann, Johnson and Anderson about her absence. (Michener D e p o . 26:15-18)

7 . In March 2008, BryanLGH had a written procedure on " F a m ily and Medical Leave," H.R.A. 93, which outlined the process for -2-

e m p l o y e e s to obtain benefits under the Family and Medical Leave Act (" F M L A ").2 (Johnson Aff. ¶4, Att. A) 8 . After receiving the initial call from Michener concerning her illn e s s , Johnson reviewed Michener's employment records on March 13 to determine whether she had been employed by BryanLGH for 12 m o n th s and had worked at least 1250 hours, and determined that she met th e minimum requirements for an employee to be eligible for FMLA le av e . That day, Michener left a voice message that her meeting with her p h y s ic ia n had been rescheduled to March 17. Johnson made a note to r e -e v a lu a te her status on March 18. (Johnson Aff., ¶7) 9. On March 14, Johnson sent Michener a packet of information c o n c e rn in g the FMLA and BryanLGH's Short-Term Disability ("STD") p o lic y . Included in the packet was BryanLGH's standard Health Care P r o v id e r Report form.3 (Johnson Aff., ¶8, Att. C) On March 14, the

The written procedure stated, among other things, that "[Employee Health S e rv ic e s ] staff will send Medical Certification Form to the employee which is to be c o m p le te d by the family member's provider. Employee Health will review requests/ m e d ic al certification and determine eligibility. Employee Health/Human Resources w ill notify the employee (via letter) and manager (via email) of approval decision." (J o h n s o n Aff., Att. A (paragraph formatting and numbering omitted), filing 26-6, p. 7)
3

2

Johnson's cover letter reads as follows:

E n c lo s e d is a packet of information about Short - Term Disability (STD) a n d the Family Medical Leave Act (FMLA). If after reviewing it you h a v e any questions please call me. T h e first 40 hours of missed scheduled work is not paid by the STD b e n e fit, but the remainder of your medical leave will be automatically in c lu d e d in your bi-weekly paycheck. I have also enclosed a form titled Health Care Provider Report. Your p r o v id e r can use this form to document your medical and work status. T h is form can be returned to me via fax or in the envelope provided.

-3 -

E m p lo y e e Health Department also sent Michener a standard FMLA n o tic e .4 (Id., ¶8, Attachment D) Michener received both letters.

(Johnson Aff., Att. C, filing 26-6, p. 17) The "Health Care Provider Report" is not d e s ig n a te d "Medical Certification Form" as referenced in BryanLGH's "Family and M e d ic a l Leave" procedures, nor is there any other indication that the report pertains to FMLA leave. The form does not even conform to 29 U.S.C. § 2613(b)(4)(B), w h ic h requires certification that "the employee is unable to perform the functions of th e position of the employee." The accompanying information sheet regarding shortte rm disability benefits specifically instructed Michener that "when a medical absence la s ts longer than 24 hours of scheduled work within a 7-day period, you will need to p r o v id e medical documentation from your health care provider." (Id., p. 20) The FMLA notice was signed by Ron Anderson, Director Employee R e la tio n s . It reads as follows: O n 03/12/2008, you notified us of your need to take medical leave due to a serious health condition. You indicated your leave should begin 0 3 /1 0 /2 0 0 8 . T h is letter is to inform you that you are eligible for leave under the F a m ily Medical Leave Act (FMLA). The time you are off work related to this absence will be counted toward your annual FMLA entitlement. Y o u have a right under the FMLA to receive up to twelve weeks of paid o r unpaid leave in a twelve-month period. According to the regulation, y o u r health benefits must be maintained during your leave. If you will b e using accrued personal time bank (PTB) or short term disability, your p r e m iu m payments will be paid through payroll deduction, as usual. If y o u r leave is unpaid, you will need to make arrangements with the B e n e fits staff in Human Resources to pay your monthly premiums while y o u are on leave. T h e regulation also requires that BryanLGH must provide job protection fo r you during your leave (up to twelve weeks). When you return to w o rk you must be reinstated to the same or an equivalent job with the s a m e pay, benefits, and terms and conditions of employment. If you are u n a b le to return to work within the twelve-week period, job protection -4 4

(M ic h e n e r Depo. 41:24-42:15) 1 0 . Michener gave the Health Care Provider Report form to her p h y s ic ia n to complete. (Michener Depo. 43:16-24) On March 17, M ic h e n e r called Johnson to discuss her medical condition. During that c o n v e rs a tio n , Johnson discussed BryanLGH's FMLA and STD benefits a n d told Michener that she needed to return the medical documentation in support of her FMLA and STD requests. (Johnson Aff., ¶9) 11. On March 21, Michener left a voice message for Johnson s ta tin g that she had left the Health Care Provider Report form at her p h y s ic ia n 's office and thought someone would call her to get it. When th e y did not call her, Michener thought that the form had been sent or fa x e d to Johnson. (Johnson Aff., ¶10) 1 2 . Sometime after March 14, 2008, Ron Anderson, the Employee R e la tio n s Manager, became aware that Michener was absent from work

is not guaranteed. In this event, the Medical Center reserves the right to fill your position. W h ile on leave, you will be required to furnish periodic reports of your s ta tu s and intent to return to work. If the circumstances of your leave c h a n g e and you are able to return to work earlier than planned, you must n o tif y us at least two working days prior to the date you intend to report fo r work. You will be required to present a fitness-for-duty certificate p rio r to being restored to employment. If such documentation is not re c e iv e d , your return to work may be delayed until it is provided. P le a s e feel free to contact Tracey Johnson, RN, CCM, Case Manager, if th e re are any questions related to this information. (J o h n s o n Aff., Att. D, filing 26-6, pp. 24-26) Enclosed with the letter was a poster e n title d "Your Rights under the Family and Medical Leave Act of 1993". Among o th e r information provided, the poster stated that "[a]n employer may require medical c e rtific a tio n to support a request for leave because of a serious health condition, and m a y require second or third opinions (at the employer's expense) and a fitness for d u ty report to return to work. (Id., p. 26) -5 -

a n d had not provided any documentation concerning her reasons for her a b s e n c e . Anderson was contacted by Michener's supervisor, Brettmann, w h o expressed concern about Michener's absence and the need to have s o m e o n e in Michener's position in order to complete the work of her D e p a rtm e n t. Brettmann was also concerned that Michener would not ta lk with her directly during the workday, but instead was leaving a fte r-h o u rs messages for Brettmann. (Anderson Aff., ¶5) 1 3 . Anderson called Michener's home phone number and left a m e s s a g e on her voice mail in which he asked her not to call Brettmann a b o u t her employment situation after work hours. (Anderson Aff., ¶6; M ic h e n e r Depo. 28:4-24) On or about March 25, Anderson left another v o ic e message for Michener informing her that BryanLGH had not re ce iv e d any documentation concerning her absence and that the hospital n e e d e d to fill her position if we did not receive her medical d o c u m e n ta tio n by March 26. Anderson said that they still considered her to be an employee of BryanLGH. (Anderson Aff., ¶6; Michener Depo. 2 8 :2 2 - 2 9 :8 ; 50:22-52:15) 14. On March 25, Johnson received an e-mail message from M ic h e n e r stating that "I will have the paperwork you/BryanLGH are re q u e s tin g on 03/31/08. The delay is due to the doctor wanting me to c o m e in regarding my treatment/paperwork." Michener also expressed c o n c e rn about Anderson's message concerning her absence and the h o s p ita l's intention to fill her position after March 26. (Michener Depo. E x . 5 (filing 26-4)). Johnson responded by e-mail, explaining that Mr. A n d e rs o n "is just trying to understand and account for the delay in d o c u m e n ta tio n from your provider, and express the importance of re ce iv in g this documentation." (Johnson Aff., ¶11, Att. B; Michener D e p o . Ex. 5) 15. On April 2, Michener sent Johnson another e-mail message in w h ic h she said that her physician told her "he cannot sign the paperwork b e c a u s e it is after the date and would be illegal for him to sign." Johnson re s p o n d e d by e-mail, explaining that even if Michener's physician could n o t document her inability to work prior to March 31, "we need him to a t least update and document your work status as of your appointment on M o n d a y ." (Johnson Aff., ¶12, Att. B) Michener understood that the fa ilu re to provide the medical documentation could be a problem. -6-

( M ic h e n e r Depo. 55:22-56:5) 16. On April 7, Johnson sent Anderson and Brettmann an e-mail m e ss ag e that she had not had any further contact from Michener and had n o t received any documentation from her medical provider about her c o n d itio n or work status. (Johnson Aff. ¶13) 17. On April 15, Anderson asked Johnson for an update about c o m m u n ic a tio n and documentation from Michener and her provider. J o h n s o n told Anderson that she had not received anything. Anderson s a id that the time had come to terminate Michener. (Johnson Aff., ¶14; A n d e rs o n Aff., ¶8) 1 8 . On April 16, Johnson received another e-mail message from M ic h e n e r, concerning her medical condition and her plans to have a d o c to r' s appointment on April 22. Johnson had no further contact with M s . Michener after April 16, 2008. (Johnson Aff., ¶15) 19. Between March 14, 2008, when Johnson first advised M ic h e n e r of her need to provide medical documentation from her p h y s ic ia n in support of her FMLA and STD requests, until Michener's la s t e-mail message to Johnson on April 16, 2008, Michener did not s u b m it any information from any heath care provider to support her re q u e s t for medical leave under BryanLGH's FMLA policy. (Johnson A f f., ¶16) 20. On April 15, Anderson prepared a letter informing Michener th a t her employment was being terminated. The letter stated the p rim a ry reason for her termination was "because [of] your lack of c o m m u n ic a tio n with us as to what is going on." (Anderson Aff., ¶8, A tt. A) ( D e f e n d a n t' s Brief (filing 27), pp. 3-8 (headings omitted, hyperlinks added).)

U n d e r our local rules, "[t]he party opposing a summary judgment motion s h o u ld include in its brief a concise response to the moving party's statement of

-7-

m a te r ia l facts. The response should address each numbered paragraph in the movant's s ta te m en t and, in the case of any disagreement, contain pinpoint references to a f fid a v its , pleadings, discovery responses, deposition testimony (by page and line), o r other materials upon which the opposing party relies. Properly referenced material fa c ts in the movant's statement are considered admitted unless controverted in the o p p o s in g party's response." NECivR 56.1(b)(1) (emphasis in original). B e c a u s e Michener has not responded directly to BryanLGH's 20-paragraph s ta te m e n t of material facts,5 they will be treated as established. These undisputed facts a re insufficient, however, to prove that the termination of Michener's employment did n o t violate the FMLA. " B e ca u s e the FMLA was intended to permit `reasonable leave for medical re a s o n s . . . in a manner that accommodates the legitimate interests of employers,' 2 9 U.S.C. § 2601(b)(2)-(3), employers are entitled to require absent employees to fu rn is h reports on their `status and intention . . . to return to work' and verification of a n employee's claimed need for medical leave. Id. §§ 2613, 2614(a)(5). They may re q u ire certification from a health care provider that `the employee is unable to p e rf o r m the functions of [her] position' and will remain unable to work for an e s tim a te d period of time due to specific `medical facts.' Id. § 2613(b)." Woods v. D a im le r C h r y sle r Corp., 409 F.3d 984, 991 (8th Cir. 2005). " I n most cases, the employer should request that an employee furnish c e rtific a tio n from a health care provider at the time the employee gives notice of the n e e d for leave or within two business days thereafter, or, in the case of unforeseen le av e , within two business days after the leave commences." 29 C.F.R. § 825.305(c)

Michener has merely stated her own numbered paragraphs of material facts a n d interspersed additional facts throughout her brief. -8 -

5

(2 0 0 8 ).6 "[T]he employee must provide the requested certification to the employer w ith in the time frame requested by the employer (which must allow at least 15 c a le n d a r days after the employer's request), unless it is not practicable under the p a rtic u la r circumstances to do so despite the employee's diligent, good faith efforts." 29 C.F.R. § 825.305(b) (2008). "An employer must give notice of a requirement for medical certification each tim e a certification is required; such notice must be written notice whenever required b y § 825.301." 29 C.F.R. § 825.305(a) (2008). "[I]f the employer is requiring m e d ic al certification . . ., written notice of the requirement shall be given with respect to each employee notice of a need for leave[,]" except that "[s]ubsequent written n o tific a tio n shall not be required if the initial notice in the six-months period and the e m p lo y e r handbook or other written documents (if any) describing the employer's le a v e policies, clearly provided that certification . . . would be required (e.g., by s ta tin g that certification would be required in all cases, [or] by stating that certification w o u ld be required in all cases in which leave of more than a specified number of days is taken, . . .)." 29 C.F.R. § 825.301(c)(2) (2008).7 "At the time the employer requests c e r tif ic atio n , the employer must also advise an employee of the anticipated c o n s e q u e n c e s of an employee's failure to provide adequate certification." 29 C.F.R. § 825.305(d) (2008). B ry a n L G H has failed to establish (1) that it gave Michener written notice that it was requiring medical certification, (2) that it specified a time frame for Michener to provide the certification, or (3) that it advised Michener she would be terminated if she failed to comply with the request for certification. Because of this failure of p ro o f, BryanLGH is not entitled to judgment as a matter of law. See, e.g., Paulson v. S u p e r io r Plating, Inc., No. 03-3118, 2004 WL 2203408, at *6 (D.Minn. Sept. 27,
6

This regulation was amended effective January 16, 2009. The prior version a p p lie s to this action.
7

This regulation was also amended effective January 16, 2009. -9 -

2 0 0 4 ) (finding existence of genuine issue of material fact as to whether employee k n e w that uncertified absences would lead to termination); Conrad v. Eaton Corp., 3 0 3 F.Supp.2d 987, 998-1000 (N.D.Iowa 2004) (even assuming that employee was p ro v id e d with FMLA summary stating that "medical certification will be required," g e n u in e issues of material fact existed as to whether such notice constituted specific re q u es t by employer for medical certification); Perry v. Jaguar of Troy, 353 F.3d 510, 5 1 4 (6th Cir. 2003) (regulations required employer to ask for medical certification e v e n though employee handbook stated need for certification; without evidence that e m p lo y e r requested certification pursuant to requirements of FMLA, employee's f a i l u r e to provide certification did not support summary judgment for employer); P e te r v. Lincoln Technical Institute, Inc., 255 F.Supp.2d 417, 443 (E.D.Pa. 2002) (e m p lo y e r's failure to provide employee with deadline for providing certification or w ith notice that she might be terminated precluded entry of summary judgment for e m p lo y e r) ; Marrero v. Camden County Bd. of Social Services, 164 F.Supp.2d 455, 4 6 6 (D.N.J. 2001) (even assuming that policies contained employee handbook were s u ffic ie n t notice that medical certification would be required for FMLA leave, e m p lo y e r was required to inform employee that she had 15 days to provide such c e rtif ic a tio n ); Chenoweth v. Wal-Mart Stores, Inc., 159 F.Supp.2d 1032, 1038 (S .D .O h io 2001) (finding jury question existed as to FMLA interference claim when e m p lo y er failed to warn employee that she could be terminated for not providing c e rtif ic a tio n ); Washington v. Fort James Operating Co., 110 F.Supp.2d 1325, 1332 (D .O r. 2000) (genuine issues of material fact existed as to whether employer a d e q u a te ly notified employee of consequences for failing to submit timely medical c e rtif ic a tio n ); Stubl v. T.A. Systems, Inc., 984 F.Supp. 1075, 1087 (E.D.Mich.1997) (e m p lo y e r did not comply with FMLA notice requirements when it failed to s p e cific ally inform employee of consequences for failing to provide medical c e rtific a tio n before employee took FMLA leave, although employee handbook n o tif ie d employees of need for certification). W h ile Michener knew that the "Health Care Provider Report" needed to be c o m p le te d by her physician and returned to BryanLGH, she does not appear to have -10-

b e e n informed that this was a prerequisite for approval of her FMLA leave.8 In fact, M ic h e n e r was told on March 14, 2008, that she was eligible for FMLA leave, and it a ls o appears that she subsequently received pay stubs which specifically noted her F M L A leave status.9 (Michener Aff. (f ilin g 33-9) ¶ 8) Furthermore, there is no e v id e n c e that Michener was warned that her employment would be terminated if the fo rm was not returned by a certain date.10 Without such evidence, a jury could

The enclosure to the FMLA notice that was sent on March 14, 2008, informed M ic h e n e r that "[t]he employee may be required to provide advance leave notice and m e d ic al certification[,]" and that "[t]aking of leave may be denied if requirements are n o t met." (Johnson Aff., Att. D (emphasis supplied)) However, the FMLA notice itself o n ly instructed Michener that "[w]hile on leave, you will be required to furnish p e rio d ic reports of your status and intent to return to work." (Id.) Tracey Johnson's le tte r of the same date indicated that Michener's doctor could use the enclosed Health C a re Provider Report "to document your medical and work status." (Id.) During a te le p h o n e conversation with Tracey Johnson on March 17, Johnson simply "told M ic h e n e r that she needed to return the medical documentation in support of her F M L A and STD requests." (Defendant's Statement of Material Facts, ¶ 10) "Equitable estoppel is available to prevent a company from contesting an e m p lo y e e's right to assert a claim under the FMLA." Reed v. Lear Corp., 556 F.3d 6 7 4 , 678 (8th Cir. 2009) (citing Duty v. Norton-Alcoa Proppants, 293 F.3d 481, 494 ( 8 t h Cir. 2002). "The principle of [equitable] estoppel declares that a party who m a k e s a representation that misleads another person, who then reasonably relies on th a t representation to his detriment, may not deny the representation." Id. (quoting F a rle y v. Benefit Trust Life Ins. Co., 979 F.2d 653, 659 (8th Cir.1992)). On or about March 25, 2008, Ron Anderson left a voice message informing M ic h e n e r "that the hospital needed to fill her position if we did not receive her m e d ic a l documentation by March 26. Anderson said that they still considered her to b e an employee of BryanLGH." (Defendant's Statement of Material Facts ¶13) M ic h e n e r testified that when Anderson called about opening up her position, he stated th a t she "was still an employee with full benefits" and that she should "[l]et Tracey o r him know when it gets closer to the time that I'll be returning, so they can find me a n area to work in." (Michener Depo. 29:4-8) In response, Michener told Tracey J o h n s o n that she would have the paperwork on March 31 after visiting her doctor. On A p r il 2, Michener advised Johnson that the doctor would not sign the paperwork -1 1 10 9

8

re as o n a b ly conclude that BryanLGH denied or interfered with Michener's rights under th e FMLA.11 A c c o rd in g ly , IT IS ORDERED that the defendant's motion for summary judgment (filing 25) is denied. A u g u s t 31, 2009. B Y THE COURT: R ich a rd G. Kopf United States District Judge

"because it is after the date and would be illegal for him to sign." (Defendant's S ta te m e n t of Material Facts ¶15) Johnson replied that "we need him to at least update a n d document your work status as of your appointment on Monday [March 31]" (Id.), b u t did not tell her that the report was needed before April 15. Johnson's email to M ic h e n e r also stated: "As of today you are still employed with BryanLGH in the M o d ifie d Duty cost center. I was unable to authorize Short - Term Disability benefits d u e to the lack of documentation, so no STD will be in Friday's paycheck." (Johnson A ff. Att. B, filing 26-6, p. 11) Michener argues in her brief that her failure to provide medical certification w a s a pretext for her termination, and that the real reason she was fired was that she fre q u e n tly was absent from work due to medical problems. Michener has not alleged a retaliation claim in her complaint, however.
11

* T h is opinion may contain hyperlinks to other documents or Web sites. The U .S . District Court for the District of Nebraska does not endorse, recommend, a p p ro v e, or guarantee any third parties or the services or products they provide on th e ir Web sites. Likewise, the court has no agreements with any of these third parties o r their Web sites. The court accepts no responsibility for the availability or fu n c tio n a lity of any hyperlink. Thus, the fact that a hyperlink ceases to work or d ir e c ts the user to some other site does not affect the opinion of the court. -12-