COVERT v. THE LANE CONSTRUCTION CORPORATION

Filing 33

MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN JR. on 03/29/2013. For the reasons set forth herein, IT IS ORDERED that Defendant's Motion for Summary Judgment (Doc. 17 ) is GRANTED INPART AND DENIED IN PART. The motion is DENIED as to Plaintiff's interference claim based on absences resulting from his health condition from October 7 to October 11 and from October 12 to October 17. The motion is GRANTED as to Plaintiff's interference claim based on all other absences.(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DALE EDWARD COVERT,
Plaintiff,
v.
THE LANE CONSTRUCTION
CORPORATION,
Defendant.

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1:11CV1156

MEMORANDUM OPINION AND ORDER
OSTEEN, Jr., District Judge
Presently before this court is Defendant’s Motion for
Summary Judgment (Doc. 17).

Defendant has filed a memorandum in

support of its motion (Doc. 18), Plaintiff has filed both a
response in opposition and a memorandum in support of his
response (Docs. 20 and 21, respectively), and Defendant has
filed its reply (Doc. 22).

Defendant’s motion is now ripe for

adjudication, and for the reasons that follow, this court will
grant the motion in part and deny the motion in part.1

1

This Memorandum Opinion and Order only addresses
Plaintiff’s Family and Medical Leave Act (FMLA) claim. The
Complaint also states a claim under the Consolidated Omnibus
Budget Reconciliation Act (COBRA) alleging that Defendant failed
to provide timely and proper notice of Plaintiff’s right to
continued health coverage. (Complaint (“Compl.”) (Doc. 1)
¶¶ 32-35.) Defendant has not moved for summary judgment as to
that claim.

I.

BACKGROUND
Viewed in the light most favorable to Plaintiff, the

evidence shows the following.
Dale Edward Covert (“Plaintiff”) is a former employee of
The Lane Construction Corporation (“Defendant”).2

He was hired

in November 1998 as a laborer in the grading and stone base
division, and promoted to stone base crew foreman in 2000.
(Pl.’s Resp. in Opp’n to Def.’s Mot. for Summ. J. (“Pl.’s
Resp.”), Attach. 1, Deposition of Dale Edward Covert (“Covert
Dep.”) (Doc. 20-1) at 3-6.)3

In June 2010, Plaintiff was

transferred from Defendant’s grading and stone division to the
paving division, maintaining his position as foreman.

(Id. at

7-8; Def.’s Mem. in Supp. of Mot. for Summ. J. (“Def.’s Mem.”),
Ex. 1, Declaration of Dominic V. Barilla, Jr. (“Barilla Decl.”)
(Doc. 18-1) ¶ 2.)

After this transfer, the general

superintendent, Dominic Barilla, became his immediate
supervisor.

(Barilla Decl. ¶ 2.)

Barilla reported to the local

2

Plaintiff worked for Rea Contracting, one of the divisions
of Lane Construction, in Charlotte, North Carolina. For ease of
discussion, Lane Construction and Rea Contracting will be
referred to jointly as “Defendant.”
3

All citations in this Memorandum Opinion and Order to
documents filed with the court refer to the page numbers located
at the bottom right-hand corner of the documents as they appear
on CM/ECF.

plant manager, Danny Eudy. (Pl.’s Resp., Attach. 2, Deposition
of Danny Eudy (“Eudy Dep.”) (Doc. 20-2) at 5; Attach. 3,
Deposition of Dominic V. Barilla, Jr. (“Barilla Dep.”) (Doc.
20-3) at 4.)
Plaintiff suffered a heart attack in June 2009. (Covert
Dep. (Doc. 20-1) at 9.)
approximately four days.

He remained in the hospital for
(Id. at 10.)

During that time, the

doctors performed a heart catheterization and placed a stent in
his heart.

(Id.)

After his release, Plaintiff was treated by

Dr. Kelling, his primary care physician.

(Id. at 10-11.)

He

was medically released to return to work on July 26, 2009. (Id.
at 12; Def.’s Mem., Ex. 2, pt. 2, Covert Dep. Exhibits (Doc.
18-3) at 4.)
During his leave, Plaintiff was placed on family and
medical leave. (Covert Dep. (Doc. 20-1) at 11; Def.’s Mem., Ex.
5, pt. 2, Blackmon Dep. Exhibits (Doc. 18-8) at 2.)

Defendant

mailed to Plaintiff notice of his FMLA rights, a medical
certification form, and other FMLA-related documents.

(Def.’s

Mem., Ex. 5, pt. 1, Deposition of Kristy Blackman (“Blackmon
Dep.”) (Doc. 18-7) at 5-6; Ex. 5, pt. 2, Blackmon Dep. Exhibits
(Doc. 18-8) at 10-20.)

Although Plaintiff signed and returned

- 3 -

the FMLA form (Blackman Dep. (Doc. 18-7) at 5; Ex. 5, pt. 2,
Blackmon Dep. Exhibits (Doc. 18-8) at 2-9), Plaintiff did not
realize that he had been placed on family and medical leave
(Covert Dep. (Doc. 20-1) at 11).
As part of his recovery, Plaintiff attended cardiac
rehabilitation sessions for several weeks, going several times
each week.

(Id. at 14.)

He would attend a session for an hour

or so in the morning and then work for Defendant.
13-14.)

(Id. at

Defendant accommodated his rehabilitation schedule.

(Id.)
After this rehabilitation period, Plaintiff returned to
active work and had no further recorded medical difficulties for
approximately six months.

(Id. at 15.)

However, according to

Defendant’s records, from August 30, 2010 to September 14, 2011,
Plaintiff missed work, was tardy, or left work early twenty
times.

(Barilla Decl. (Doc. 18-1) ¶¶ 4-5.)

Although Plaintiff

at times would inform Defendant that an absence was due to
illness or a medical appointment, on other occasions he provided
a non-health related reason or no reason at all.

(Id. ¶ 5.)

Plaintiff provided doctor’s excuses when they were requested.
(Barilla Dep. (Doc. 20-3) at 12.)
each of these absences.

Defendant paid Plaintiff for

(Barilla Decl. (Doc. 18-1) ¶ 5.)
- 4 -

Plaintiff attributes these absences to a number of
recurring medical conditions including weight loss, numbness,
lightheadedness, nausea, and chest pains. (Covert Dep. (Doc.
20-1) at 15, 18.)

Doctors could not diagnose a particular

condition or determine what was causing Plaintiff’s medical
issues.

(Id. at 17-18, 21.)

information to Barilla.
19-20.)

Plaintiff communicated this

(Id. at 21; Barilla Dep. (Doc. 20-3) at

Barilla observed Plaintiff ill at work “[f]our or five,

six times.”

(Barilla Dep. (Doc. 20-3) at 14.)

These absences put a strain on Barilla and the other
superintendents who had to cover Plaintiff’s shifts.

(Barilla

Decl. (Doc. 18-1) ¶ 5; Barilla Dep. (Doc. 20-3) at 10; Eudy Dep.
(Doc. 20-2) at 8, 14-15.)

On at least several of these

occasions, Plaintiff called at the last minute, leaving Barilla
little time to find someone to take the shift.
(Doc. 18-1) ¶ 5.)

Plaintiff and Barilla had a few discussions

regarding Plaintiff’s absences.
8-11, 31.)

(Barilla Decl.

(Barilla Dep. (Doc. 20-3) at

In addition, Barilla suggested in several informal

conversations that Plaintiff look into short-term disability
(id. at 12-13; Covert Dep. (Doc. 20-1) at 17-19); he never
mentioned the possibility of family and medical leave (Barilla
Dep. (Doc. 20-3) at 12).

Plaintiff was not interested in short- 5 -

term disability because it would have required him to be out of
work for a minimum of seven days.
18-19.)

(Covert Dep. (Doc. 20-1) at

He did discuss this possibility with his doctor, but

his doctor would not certify that he was disabled.
17-18.)

(Id. at

Plaintiff never requested family and medical leave for

his absences because he believed that the FMLA covered family
rather than personal illnesses.

(Id. at 19-20.)

The following events ultimately led to Plaintiff’s
termination.

Plaintiff worked his overnight shift on Thursday,

October 6, 2011.

(Id. at 22.)

He felt ill when he returned to

his house around eight o’clock the following morning and went to
sleep late that morning.

(Id.)

When he awoke around five

o’clock that afternoon, Plaintiff felt nauseous and lightheaded,
and also had diarrhea.

(Id. at 23.)

He called Barilla to

report that he would be absent. (Id.; Def.’s Mem., Ex. 3, pt. 1,
Deposition of Dominic Barilla (“Barilla Dep.”) (Doc. 18-4) at
13.)

Plaintiff also called his primary care physician’s office

and was told to go to an urgent care facility.
(Doc. 20-1) at 23.)

(Covert Dep.

While preparing to go there, he received a

phone call from the on-call doctor telling Plaintiff to proceed
to the emergency room rather than the urgent care facility.
(Id.)

The emergency room doctor determined that Plaintiff was
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“severely dehydrated” and put him on IV fluids.

(Id. at 24.)

He was provided with a work release form excusing him from work
until October 11.
20-5) at 2.)

(Id. at 32-33; Covert Dep. Exhibits (Doc.

A superintendent had to cover Plaintiff’s shifts

on October 7 and 8.

(Def.’s Mem., Ex. 3, pt. 1, Barilla Dep.

(Doc. 18-4) at 13.)
On October 11, the following Tuesday, Plaintiff attended a
follow-up appointment with his primary care physician. (Covert
Dep. (Doc. 20-1) at 25.)

After this appointment, Plaintiff

called Barilla, who asked Plaintiff to go to the office for a
meeting with Barilla and Eudy.

(Id.)

terminate Plaintiff at this meeting.

They intended to
(Barilla Dep. (Doc. 20-3)

at 21-22; Eudy Dep. (Doc. 20-2) at 9.)

According to Barilla, it

was the cumulative impact of Plaintiff’s absences rather than a
“final incident” that led to their decision to terminate
Plaintiff.

(Barilla Dep. (Doc. 20-3) at 20.)

On the other

hand, when asked what motivated the October 11 meeting, Eudy
responded: “I’m sure it was from being out the previous week and
weekend.

That was just –- the numbers were piling up and it was

becoming more and more intolerable.”
15-16.)

- 7 -

(Eudy Dep. (Doc. 20-2) at

At the meeting, Plaintiff, Eudy, and Barilla discussed
Plaintiff’s absences.

(Covert Dep. (Doc. 20-1) at 26.)

Eudy

was aware that at least some of Plaintiff’s absences were health
related.

(See Eudy Dep. (Doc. 20-2) at 8.)

During the meeting,

Eudy also noted that Plaintiff might be terminated if he could
not take disability leave.

(Covert Dep. (Doc. 20-1) at 26; Eudy

Dep. (Doc. 20-2) at 8-11; Barilla Dep. (Doc. 20-3) at 25.)
Plaintiff told Eudy and Barilla that he had “no intentions of
missing any more time.”

(Covert Dep. (Doc. 20-1) at 26-27.)

Plaintiff left the meeting with the understanding that he would
work that evening if it did not rain.

(Id. at 28; Barilla Dep.

(Doc. 20-3) at 25.)
After leaving the meeting, Plaintiff called his doctor’s
office to ask about the procedure for being placed on disability
leave.

(Covert Dep. (Doc. 20-1) at 27.)

He spoke with a nurse

practitioner, who told him that he could not just be placed on
disability.

(Id. at 27-28.)

information to Barilla.

Plaintiff reported this

(Id. at 28.)

Late that afternoon, Barilla determined that it was going
to be too wet to work that evening and asked Plaintiff to call
the crew.

(Id.)

After Plaintiff made these calls, they spoke

again and Barilla told Plaintiff that everything they had talked
- 8 -

about during their meeting was “kaputs” and “off the table” and
that there was going to be another meeting the following
morning.

(Id. at 28-29.)

Plaintiff believed that Eudy and

Barilla “had come up with a different decision” as to how they
were “going to correct the problem.”

(Id. at 29.)

In his

handwritten notes, Plaintiff wrote that he believed that they
were going to terminate him at the October 12 meeting. (Def.’s
Mem., Ex. 2, pt. 2, Covert Dep. Exhibits (Doc. 18-3 at 20.)
After this conversation, Plaintiff started experiencing
chest pressure and tingling in his arms.
20-1) at 30.)

(Covert Dep. (Doc.

By the time the paramedics arrived to take him to

the hospital where he was admitted that night, Plaintiff was
hyperventilating.

(Id. at 30-31.)

Plaintiff’s wife spoke with

Barilla that evening and told him that Plaintiff would not be
able to attend the meeting the following morning.

(Id.)

On the

morning of either October 12 or October 13, Plaintiff’s doctor
performed a heart catheterization.

(Id. at 31.)

Plaintiff was

told not to return to work until October 17, and he communicated
this information to Barilla.

(Id.; Barilla Dep. (Doc. 20-3) at

26-28.)
Barilla terminated Plaintiff on October 13, 2011.
time, both Eudy and Barilla were aware of Plaintiff’s
- 9 -

By that

hospitalization.

(See Barilla Dep. (Doc. 20-3) at 26-28; Eudy

Dep. (Doc. 20-2) at 19-22.)
II.

LEGAL STANDARD
Summary judgment is appropriate where an examination of the

pleadings, affidavits, and other proper discovery materials
before the court demonstrates that no genuine issue of material
fact exists and that the moving party is entitled to judgment as
a matter of law.

See Fed. R. Civ. P. 56.

The moving party

bears the burden of initially demonstrating the absence of a
genuine issue of material fact.
U.S. 317, 323 (1986).

Celotex Corp. v. Catrett, 477

If the moving party has met that burden,

then the nonmoving party must persuade the court that a genuine
issue remains for trial by “go[ing] beyond the pleadings” and
introducing evidence that establishes “specific facts showing
that there is a genuine issue for trial.”

Id. at 324 (internal

quotation marks omitted).
In considering a motion for summary judgment, the court is
not to weigh the evidence, but rather must determine whether
there is a genuine issue for trial.
Inc., 477 U.S. 242, 249 (1986).

Anderson v. Liberty Lobby,

The court must view the facts

in the light most favorable to the nonmovant, drawing all
justifiable inferences in that party’s favor.
- 10 -

Id. at 255.

A

mere factual dispute is insufficient to prevent summary
judgment; the fact in question must be material, and the dispute
must be genuine.
247-48.

Fed. R. Civ. P. 56; Anderson, 477 U.S. at

Material facts are those facts necessary to establish

the elements of a party’s cause of action.
at 248.

Anderson, 477 U.S.

A dispute is only “genuine” if “the evidence is such

that a reasonable jury could return a verdict for the nonmoving
party.”

Id.

III. ANALYSIS
Defendant has moved for summary judgment as to Plaintiff’s
claim alleging a violation of the Family and Medical Leave Act
(“FMLA”).

Under the FMLA, eligible employees are entitled to

“12 workweeks of leave during any 12-month period” for several
reasons, including “a serious health condition that makes the
employee unable to perform the functions” of his or her
position.

29 U.S.C. § 2612(a)(1).

Such employees have a

qualified right to be restored to the same or equivalent
position as the one they held when their leave commenced.
29 U.S.C. § 2614(a)(1).
It is unlawful for an employer “to interfere with,
restrain, or deny the exercise of or the attempt to exercise,
any right provided under [the FMLA].”
- 11 -

29 U.S.C. § 2615(a)(1).

The Act’s prohibition against interference
prohibits an employer from discriminating or
retaliating against an employee . . . for having
exercised or attempted to exercise FMLA rights. . . .
By the same token, employers cannot use the taking of
FMLA leave as a negative factor in employment actions,
such as hiring, promotions or disciplinary actions.
29 C.F.R. § 825.220(c).
The FMLA does not require an employee “to specifically
invoke its protections in order to benefit from it.”

Dotson v.

Pfizer, Inc., 558 F.3d 284, 293 (4th Cir. 2009); see also id. at
295 (refusing to allow employers to use their “own failure to
determine whether leave should be designated as FMLA-protected
to block liability”).

However, an employee must “provide

sufficient information for an employer to reasonably determine
whether the FMLA may apply to the leave request.”

29 C.F.R.

§ 825.303(b); see also id. (“Calling in ‘sick’ without providing
more information will not be considered sufficient notice to
trigger an employer’s obligations under the Act.”); Phillips v.
Quebecor World RAI, Inc., 450 F.3d 308, 312 (7th Cir. 2006).
After receiving adequate notice, an employer “will be expected
to obtain any additional required information through informal
means.”

29 C.F.R. § 825.303(b).

To establish a violation of the FMLA, it is the plaintiff’s
burden to “prove the existence of an FMLA-qualifying condition.”
- 12 -

Stroder v. United Parcel Serv., Inc., 750 F. Supp. 2d 582, 589
(M.D.N.C. 2010).

“Where absences are not attributable to a

‘serious health condition,’ . . . FMLA is not implicated and
does not protect an employee against disciplinary action based
upon such absences.”

Rankin v. Seagate Techs., Inc., 246 F.3d

1145, 1147 (8th Cir. 2001).
The FMLA defines a “serious health condition” as an
“illness, injury, impairment, or physical or mental condition”
that involves either “inpatient care in a hospital, hospice, or
residential medical care facility” or “continuing treatment by a
health care provider.”
§ 825.113.

29 U.S.C. § 2611(11); see also 29 C.F.R.

The implementing regulations issued by the Secretary

of Labor further define these terms.

Plaintiff appears to

proceed under only the “continuing treatment” portion of the
definition.

(See Pl.’s Mem. in Opp’n to Def.’s Mot. for Summ.

J. (“Pl.’s Mem.”) (Doc. 21) at 5-7.)
The relevant regulation provides five definitions of a
“serious health condition involving continuing treatment by a
healthcare provider.”

Plaintiff suggests that two of these

definitions are relevant to his case.
in relevant part:

- 13 -

Those definitions provide

A serious health condition involving continuing
treatment by a health care provider includes any one
or more of the following:
(a) Incapacity and treatment. A
of more than three consecutive,
and any subsequent treatment or
relating to the same condition,

period of incapacity
full calendar days,
period of incapacity
that also involves:

(1) Treatment two or more times, within 30
days of the first day of incapacity, unless
extenuating circumstances exist, by a health
care provider, by a nurse under direct
supervision of a health care provider, or by
a provider of health care services (e.g.,
physical therapist) under orders of, or on
referral by, a health care provider; or
(2) Treatment by a health care provider on
at least one occasion, which results in a
regimen of continuing treatment under the
supervision of the health care provider.
(3) The requirement in paragraphs (a)(1) and
(2) of this section for treatment by a
health care provider means an in-person
visit to a health care provider. The first
(or only) in-person treatment visit must
take place within seven days of the first
day of incapacity.
(4) Whether additional treatment visits or a
regimen of continuing treatment is necessary
within the 30–day period shall be determined
by the health care provider.
. . . .
(c) Chronic conditions. Any period of incapacity or
treatment for such incapacity due to a chronic serious
health condition. A chronic serious health condition
is one which:

- 14 -

(1) Requires periodic visits (defined as at
least twice a year) for treatment by a
health care provider, or by a nurse under
direct supervision of a health care
provider;
(2) Continues over an extended period of
time (including recurring episodes of a
single underlying condition); and
(3) May cause episodic rather than a
continuing period of incapacity (e.g.,
asthma, diabetes, epilepsy, etc.).
29 C.F.R. § 825.115.

“The term treatment includes (but is not

limited to) examinations to determine if a serious health
condition exists and evaluations of the condition.”

29 C.F.R.

§ 825.113(c).
Serious Health Condition
Because the FMLA does not protect all absences, this court
first considers whether Plaintiff has presented evidence that
any of his absences were covered by the FMLA because he had a
serious health condition.

The absences are addressed in three

categories: (1) those from August 30, 2010 to September 14,
2011, which Plaintiff contends were the result of a chronic
serious health condition; (2) the absences resulting from
Plaintiff’s condition from October 7, 2011 to October 11, 2011;

- 15 -

and (3) the absences resulting from Plaintiff’s condition from
October 12, 2011 to October 17, 2011.4
As to the first category of absences, those from August 30,
2010 to September 14, 2011, because he was never incapacitated
for more than three consecutive days, Plaintiff proceeds under
the argument that he had a chronic serious health condition.
The FMLA covers “[a]ny period of incapacity or treatment for
such incapacity due to a chronic serious health condition.”
29 C.F.R. § 825.115(c).

As noted above, a chronic serious

health condition is one that requires periodic treatment,
continues over an extended period of time, and may result in
periodic incapacity.

Id.

This court finds that Plaintiff has not presented
sufficient evidence to preclude summary judgment as to his
absences from August 30, 2010 to September 14, 2011.

Although

Plaintiff testified that these absences were the result of
medical issues including weight loss, numbness, lightheadedness,
nausea, and chest pains, he has presented no evidence that any
symptoms or treatment during this period were related to a

4

In his response, Plaintiff appears to argue that his
absences from August 30, 2010 through October 2011 constitute a
single FMLA-qualifying condition under 29 C.F.R. § 825.115(c)
and (e). (Pl.’s Mem. (Doc. 21) at 7.) For the reasons
discussed hereinafter, this court disagrees.
- 16 -

chronic condition as opposed to unrelated medical issues.

A

review of the stated reasons for the absences shows
representations like “dead car battery” and “wedding.”
Decl. (Doc. 18-1) ¶ 4.)

(Barilla

Additionally, other stated reasons

suggest isolated medical issues rather than chronic conditions.
For example, Plaintiff had partial-day absences for a doctor’s
appointment related to an auto accident and to take his wife to
the doctor.

(Id.)

Plaintiff has neither rebutted this evidence

nor provided any medical testimony that would allow a reasonable
jury to infer that his other absences were related to each
other.

There may have been some similarity of symptoms

exhibited on these occasions, but the evidence presented at
summary judgment would require speculation as to whether
Plaintiff had a chronic serious health condition.5
With respect to the second category of absences, that is,
those resulting from Plaintiff’s condition from October 7 to
October 11, this court finds that Plaintiff has presented
evidence from which a reasonable jury could find that he had a
5

This finding is not based on the fact that Plaintiff was
never diagnosed with a particular condition. See Krenzke v.
Alexandria Motor Cars, Inc., 289 F. App’x 629, 634 (4th Cir.
2008) (“[T]he framework created by the FMLA and its accompanying
regulations focus on the impact of the symptoms and the scope of
the treatment, not just the diagnosis which is eventually
made.”); see also Miller v. AT & T Corp., 250 F.3d 820, 835 (4th
Cir. 2001).
- 17 -

serious health condition on those dates.

Plaintiff had a

“serious health condition” during this period if he was
incapacitated for “more than three consecutive, full calendar
days” and received treatment “two or more times.”

See 29 C.F.R.

§ 825.115(a).
This court has found little authority interpreting the
phrase “more than three consecutive, full calendar days.”

The

Eleventh Circuit, however, has held that this regulation
requires only “a period of continuous incapacity extending more
than 72 hours.”

Russell v. N. Broward Hosp., 346 F.3d 1335,

1338 (11th Cir. 2003).

This court adopts that interpretation.

Here, Plaintiff has presented evidence that he had a
serious health condition from October 7 to October 11.
to the emergency room the evening of October 7.

He went

After

treatment, he was provided with a work release note stating that
he could return to work on October 11.

Therefore, Plaintiff has

presented evidence that he was incapacitated for “more than
three consecutive, full calendar days.”

He has also presented

evidence that he received treatment a second time when he
attended his follow-up appointment with his primary care
physician.

Barilla and Eudy knew that Plaintiff had been out of

work since October 7.

Furthermore, according to Plaintiff, when
- 18 -

he spoke with Barilla the morning of October 11, he told Barilla
that he was leaving his doctor’s office.
20-1) at 25.)

(Covert Dep. (Doc.

Thus, there is evidence that Barilla and Eudy

should have been aware that the FMLA may have covered
Plaintiff’s absences during this period.
Plaintiff “was sufficiently ill to see a physician two
times in a period of just a few days and that is all that the
plain language of” the regulation “requires for ‘continuing
treatment.’”

See Thorson v. Gemini, Inc., 205 F.3d 370, 379

(8th Cir. 2000); see also Miller, 250 F.3d at 830 (second visit
to a physician as result of the flu during which the physician
“conducted a physical examination and drew blood” constituted
“treatment”).
For similar reasons, Plaintiff has presented evidence that
he also had a serious health condition from October 12 to
October 17.

In addition to the length of his incapacity,

Plaintiff has presented evidence that he was hospitalized
overnight, during which time the doctors performed a
catheterization.

(Covert Dep. (Doc. 20-1) at 30-31.)

Thus, he

has also presented evidence to support a finding of a serious
health condition based on inpatient care.

See 29 C.F.R.

§ 825.114 (“Inpatient care means an overnight stay in a hospital
- 19 -

. . . , including any period of incapacity as defined in §
825.113(b), or any subsequent treatment in connection with such
inpatient care.”).
Interference6
To prevail on an interference claim under 29 U.S.C.
§ 2615(a)(1), a plaintiff must establish that: “(1) he was
eligible for the FMLA's protections, (2) his employer was
covered by the FMLA, (3) he was entitled to leave under the
FMLA, (4) he provided sufficient notice of his intent to take
leave, and (5) his employer denied him FMLA benefits to which he
was entitled.”

Burnett v. LFW Inc., 472 F.3d 471, 477 (7th Cir.

2006); see also Sanders v. City of Newport, 657 F.3d 772, 778
(9th Cir. 2011); Hoge v. Honda of Am. Mfg., Inc., 384 F.3d 238,
244 (6th Cir. 2004); Ainsworth v. Loudon Cnty. Sch. Bd., 851
F. Supp. 2d 963, 975 (E.D. Va. 2012).

6

For interference claims,

The Complaint alleges that Defendant violated the FMLA “by
terminating Plaintiff for his otherwise FMLA covered absences
and/or interfering with his FMLA rights.” (Compl. (Doc. 1)
¶ 28.) As noted by Defendant, it is not clear from the face of
the Complaint whether Plaintiff is proceeding under a
discrimination or an interference theory. Defendant addressed
both theories, but Plaintiff did not respond to the retaliation
argument. Therefore, this court will construe Plaintiff’s claim
based on his discharge as one for interference with his
entitlements under the FMLA. See Kauffman v. Fed. Express Corp.,
426 F.3d 880, 884 (7th Cir. 2005) (“A claim under the FMLA for
wrongful termination can be brought under either a
discrimination/retaliation or interference/entitlement theory.”).
- 20 -

“no finding of ill intent is required.”

Burnett, 472 F.3d at

477.
Employees have a qualified right to restoration upon
returning from FMLA leave.

See 29 U.S.C. § 2614(a).

However,

“the FMLA does not require an employee to be restored to his
prior job after FMLA leave if he would have been discharged had
he not taken leave.”

Yashenko v. Harrah’s NC Casino Co., 446

F.3d 541, 547 (4th Cir. 2006); see also 29 C.F.R. § 825.216(a)
(“An employee has no greater right to reinstatement or to other
benefits and conditions of employment than if the employee had
been continuously employed during the FMLA leave period.”).

If

an employee is terminated while taking FMLA leave, the
employer’s responsibility to “restore the employee cease[s] at
the time the employee is laid off . . . .

An employer would

have the burden of proving that an employee would have been laid
off during the FMLA leave period and, therefore, would not be
entitled to restoration.”

29 C.F.R. § 825.216(a)(1).

The

Fourth Circuit has not yet resolved whether this regulation
places the ultimate burden of proof on the employer. See
Yashenko, 446 F.3d at 549.
The parties do not dispute that Defendant is a covered
employer and that, while employed, Plaintiff was a covered
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employee.

Because this court has already addressed whether

Plaintiff has presented evidence that any of his absences were
FMLA-protected, the primary issue remaining for purposes of
Plaintiff’s interference claim is whether Eudy and Barilla would
have still terminated Plaintiff if absences protected by the
FMLA had been ignored.

As discussed above, this court finds

that Plaintiff has presented evidence from which a reasonable
jury could find that Plaintiff’s absences from October 7 to
October 11 were the result of a serious health condition.
This court also finds that Plaintiff has presented
sufficient evidence that FMLA-protected absences were a
motivating factor in the decision to terminate him.

When asked

during his deposition what motivated the conversation on
October 11, Eudy responded: “I’m sure it was from being out the
previous week and weekend.

That was just –- the numbers were

piling up and it was becoming more and more intolerable.”
Dep. (Doc. 20-2) at 15-16.)

(Eudy

Therefore, this court finds that a

triable issue of fact remains as to the role any FMLA-protected
absences played in the decision reached by Eudy and Barilla to
terminate Plaintiff.
Because an issue of fact remains regarding the effect of
Plaintiff’s absences from October 7 to October 11 in the
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termination decision, this court finds that summary judgment
should be denied as to Plaintiff’s absences in October, 2011, as
related to Plaintiff’s claim of interference under 29 U.S.C.
§ 2615(a)(1).
IV.

CONCLUSION
For the reasons set forth herein, IT IS HEREBY ORDERED that

Defendant’s Motion for Summary Judgment (Doc. 17) is GRANTED IN
PART AND DENIED IN PART.

The motion is DENIED as to Plaintiff’s

interference claim based on absences resulting from his health
condition from October 7 to October 11 and from October 12 to
October 17.

The motion is GRANTED as to Plaintiff’s

interference claim based on all other absences.
This the 29th day of March, 2013.

_______________________________________
United States District Judge

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