Jurczyk v. Cox Communications Kansas LLC et al
Filing
47
OPINION AND ORDER by Judge Terence Kern ; lifting the stay; directing parties to file joint status report ( Status Report due by 6/24/2016); granting in part and denying in part 38 Motion for Summary Judgment (Re: 44 Minute Order,, Staying Case,, Ruling on Motion to Stay, ) (lmc, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
AMANDA JURCZYK,
Plaintiff,
vs.
COXCOM, LLC,
Defendant.
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Case No. 14-CV-454-TCK-FHM
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OPINION AND ORDER
Before the Court is Defendant’s Motion for Summary Judgment (Doc. 38).
I.
Factual Background
Plaintiff Amanda Jurczyk was employed by Defendant CoxCom, LLC (“Cox”) or its
predecessor from April 19, 1999 until August 23, 2013, when Cox terminated her employment.
Plaintiff began employment as a Customer Care Representative, a position which requires answering
calls from Cox customers. In 2007, Plaintiff was promoted to Customer Care Representative II. Her
supervisors and customers praised her service skills throughout her employment, and there is no
dispute that Plaintiff performed her job well when she attended work.
Plaintiff suffers from chronic migraine headaches. In August 2005, Plaintiff first received
certification for leave under the Family and Medical Leave Act (“FMLA”) based on her migraines.
Plaintiff routinely exhausted her twelve weeks of FMLA leave in a given year. Plaintiff also had
unexcused absences and received several warnings under Cox’s attendance policy during her
employment. On January 11, 2013, Plaintiff received a Final Written Attendance Warning (“Final
Warning”) stating that she would be subject to termination if she had another unexcused absence
within six months of that date, effectively creating a “one strike” period lasting six months.
At relevant times, Cox’s third-party FMLA administrator was Unum Group (“Unum”). On
May 16, 2013, Unum sent a letter to Plaintiff stating that her request for intermittent FMLA leave
was approved from April 30, 2013 through October 17, 2013 (“May 2013 Approval”). She received
authorization to take leave for treatments and during episodes of incapacity. According to the
approval letter, Plaintiff only had 48 minutes of FMLA leave remaining at that time. The May 2013
Approval was based upon a medical certification provided by Plaintiff’s neurologist, Dr. Jeanne
Edwards.
During the “one strike” period under the Final Warning, on May 31, 2013, Plaintiff suffered
a severe migraine headache while at work. Her husband picked her up, and she was hospitalized
due to the severity of the migraine. It is undisputed that Plaintiff had exhausted available FMLA
leave, and that the May 31, 2013 absence could have resulted in her termination under the Final
Warning. However, on June 3, 2013, Plaintiff filed an Unexcused Absence Exemption Request
(“UAER”) describing the circumstances of her absence. Plaintiff’s supervisor, Sheryl Lay (“Lay”),
and Cox Senior Manager, Joe Scranton (“Scranton”), both recommended denial of the UAER.
Because they knew Plaintiff was under the Final Warning, they essentially recommended her
termination. In the “comments” section, Lay wrote:
Amanda is a tenured employee who has ongoing attendance issues. Her medical
situation makes me want to approve this extenuating circumstance and the fact that
she has really good customer service skills. With that being said, I cannot depend
on her for being @ work to handle our phone calls. Currently on a final for
attendance. Termination depends upon the approval/disapproval of extenuating
circumstances form. Per HR only. 78 available FMLA1
1
It is unclear what Lay meant by “78 available FMLA,” given that the record is undisputed
that Plaintiff had exhausted FMLA leave as of May 31, 2013.
2
(Ex. 7 to Pl.’s Resp. to Def.’s Mot. for Summ. J. (footnote added).) The UAER was then sent to Cox
Vice President, Shelli Osborn (“Osborn”), who had final authority to approve or deny the UAER.
On June 5, 2013, Lay or another Cox employee requested a Termination Review Form for
Plaintiff. On June 11, 2013, contrary to the recommendations of Lay and Scranton, Osborn
approved the UAER. Plaintiff therefore avoided termination at that time. For reasons unclear to the
Court, Cox first informed Plaintiff of Osborn’s decision approximately two weeks later on June 25,
2013.
Sometime prior to June 21, 2013, Cox Human Resources Business Partner Melissa Cruts
(“Cruts”), who works in Tulsa, began communicating with Cox Human Resources Manager Beth
Tittiger (“Tittiger”), who works in Atlanta. On June 21, 2013, Cruts sent an email to Tittiger stating
she “wanted to share with [Tittiger] some of the information we have pulled together on [Plaintiff]
in case you need it when you speak with Unum.” (Ex. 1 to Pl.’s Resp. to Def.’s Mot. for Summ. J.)
The “information” was a chart setting forth dates of Plaintiff’s FMLA leave and Plaintiff’s hours
worked in the previous rolling twelve months. (See id.) Later, Tittiger responded:
I talked with Sam Kidwell at Unum and he is comfortable with us moving forward
with a recert now. To that end, I sent him a copy of this email with the attachment.
It shows the number of FMLA days taken but it isn’t clear which days bumped up
to PTO, HOL and off days. Can either one of you pull that together and Janice, can
you forward to him? Jkidwell@unum.com
He said we can’t do 2nd opinion until the next annual recert (in Oct.) but he’s added
a note to her case already to communicate to us prior to a final decision on that
certification so we can determine if a 2nd opinion is needed at that time.
Also...my bad. I misunderstood the FMLA regs. They only have to meet the 1250
FMLA hours once a year during their annual recert. After that they can drop below
those hours during the year but would need to be back at 1250 for the next annual
recert to continue to be eligible. Sorry to mislead! I was thinking of their banked
hours which are reviewed on a regular basis.
(Id.)
3
Upon receipt of this email, which made clear that Plaintiff satisfied the 1250 hour
requirement, Cruts then directed Lay to prepare a calendar showing Plaintiff’s excused and
unexcused absences from November 2009 to June 2013 and attempting to show which FMLA days
“bumped up” to paid time off, scheduled days off, and holidays, as suggested by Tittiger. According
to Cruts, upon reviewing the calendar, she “reached the conclusion that [Plaintiff’s] FMLA absences
regularly occurred immediately before and/or after her regularly scheduled days off.” (Cruts Aff.
¶ 11, Ex. 2 to Def.’s Mot. for Summ. J.)
On June 24, 2013, Cruts sent an email to Sam Kidwell (“Kidwell”) at Unum stating that
Tittiger asked Cruts to “send you the calendar we have created that shows the pattern of FMLA
usage for [Plaintiff]” and attaching the calendar. The calendar is color-coded with gray for days off,
green for paid time off, and orange for office closed. Also on June 24, 2013, Kidwell sent an
internal email to another Unum employee referring to the calendar and stating: “Please see below.
Per their request please recertify this leave based on a pattern of absences.” (Id.)
On June 25 2013, Unum sent Plaintiff the following letter:
...
This letter is to notify you of the need to submit a medical certification.
Your leave was approved from April 30, 2013 through October 17, 2013. Your
approval dates have changed to April 20, 2013 through June 20, 2013 because of the
following.
A pattern of absences has been identified as you have routinely reported absences for
the day prior to and the day following your normally scheduled days off.
Specifically, you have reported the following absences:
4
4/30/2013 8:00 AM
Tue
4/30/2013 7:00 PM
Tue
10h, 0m
Episode
5/8/2013 8:00 AM
Wed
5/08/2013 7:00 PM
Wed
10h, 0m
Episode
5/24/2013 8:00 AM
Fri
5/24/2013 7:00 PM
Fri
10h, 0m
Episode
6/14/2013 8:00 AM
Fri
6/14/2013 7:00 PM
Fri
10h, 0m
Episode
6/17/2013 8:00 AM
Mon
6/17/2013 7:00 PM
Mon
10h, 0m
Episode
6/20/2013 8:00 AM
Thu
6/20/2013 7:00 PM
Thu
10h, 0m
Episode
The Health Care Provider must indicate whether the above pattern of absence is
consistent with your/the patient’s serious health condition and/or need for care.
Please provide the Health Care Provider with a copy of this letter (with the enclosed
form).
In order to approve any additional leave, the enclosed medical certification form
must be completed and submitted to Unum no later than July 13, 2013. If
certification is not received by this date, additional leave may not be approved.
...
Any leave approved will be designated and counted against your FMLA
entitlement(s). Any leave not approved will not be designated or counted against
your available FMLA entitlement(s) and could be treated according to your
employer’s absenteeism policy.
(Ex. 21 to Pl.’s Resp. to Def.’s Mot. for Summ. J.) The letter did not attach the color-coded
calendar, explain Plaintiff’s work schedule, or otherwise clarify the “pattern” shown in the above
chart.
Also on June 25, 2013, Osborn’s decision on the UAER was first communicated to Plaintiff
in a document entitled “Official Reprimand.” Although Cox’s “Official Reprimand” form is
different than the Final Warning, it has the same effect of creating a “one strike” period during
which any unexcused absence results in termination. It reads:
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Amanda, the Customer Care Leadership team including our V.P. Shelli Osborn
reviewed your [UAER] submitted on 6/3/13 and approved it on 6/11/13. This
approval extends your Final Written Attendance Reprimand for an additional six
months from the approval date -- your warning will expire on 12/11/13. . . . Cox
Customer Care expects immediate improvement in this area of performance. Future
violations will result in progressive disciplinary action up to and including
termination . . . .
(Ex. 40 to Pl.’s Resp. to Def.’s Mot. for Summ. J.) Thus, Plaintiff’s new “one strike” period was
extended from July 2013 to December 2013.
The next day, on June 26, 2013, Cruts and Lay met with Plaintiff. They discussed approval
of the UAER and also explained that they had identified a pattern in her FMLA use that caused them
concern because her FMLA leave was consistently “bumping up” to days off and holidays, resulting
in long weekends. Plaintiff informed them she had chronic migraines and did not think about what
days she was taking off. Plaintiff further explained she had an auto-immune disease and was seeing
various specialists. Cruts told Plaintiff that Cox was “working with UNUM to understand if the
pattern we see is in alignment with the medical condition that she is certified for and that we would
continue to watch the situation.” (Ex. 8 to Pl.’s Resp. to Def.’s Mot. for Summ. J.)
On July 10, 2013, Plaintiff missed work due to a migraine. The following day, Plaintiff
requested an extension from Unum in advance of her July 13, 2013 recertification deadline. Unum
forwarded Plaintiff’s extension request to Tittiger:
The employee states, after talking with her provider, that the physician may not be
able to have the certification . . . as the physician has a lot of paperwork backed up.
The physician told the employee that he [sic] would submit the certification as soon
as possible.
(Ex. 5 to Pl.’s Resp. to Def.’s Mot. for Summ. J.) Tittiger responded by stating that “this is not an
extenuating circumstance so her original deadline is in place. Also, this is an employee we recently
6
asked to recertify due to intermittent leave overuse so I would stress that she needs to do her best
to adhere to the deadline.” (Id.)
On July 12, 2013, Dr. Edwards returned the recertification form. The form was not dated,
and it was identical to the certification she originally provided. As did the original certification, this
certification answered question 13 by stating:
a. Is it medically necessary for the patient to be off work due to episodic flare ups
on an intermitten basis or to work less than the patient’s normal work schedule?
_X_ Yes __ No
...
b. Episodic flare ups:
- Estimated episode frequency _4-5_ times per __week __X__ month __ year
- Estimated episode duration ____ hours (or) _1-3_days( ) per flare up
(Ex. 26 to Pl.’s Resp. to Def.’s Mot. for Summ. J.)
On July 15, 2013, Unum informed Plaintiff that the recertification was incomplete for the
following reasons: (1) Dr. Edwards’ response to question 13 was “insufficient because the pattern
of absence was not addressed or is not supported;” and (2) the form was undated. Unum extended
the deadline to July 25, 2013 and stated that if certification was not received by that date, her “leave
will not be approved.” (Ex. 24 to Pl.’s Resp. to Def.’s Mot. for Summ. J.) On July 15, 2013, Dr.
Edwards sent the identical form, except that it was now dated. Plaintiff did not receive further
notification that this recertification was deemed insufficient, and Plaintiff was not terminated at that
time.
On July 24, 2013, Plaintiff was again absent due to a migraine. On July 26, 2013, after
expiration of the July 25, 2013 deadline, Unum sent Plaintiff a letter stating that her recertification
was insufficient and that her request for leave was not approved from June 21, 2013 through a date
to be determined.
7
On August 16, 2013, Dr. Edwards sent to Unum the identical form she had sent twice before,
except she hand-wrote the following in the margin next to question 13: “Migraines are unpredictable
& absences cannot be determined accurately.” (Ex. 43 to Pl.’s Resp. to Def.’s Mot. for Summ. J.)
Apparently, this was sufficient to explain or verify the alleged “pattern of absences,” as Unum sent
Plaintiff a letter on August 19, 2013 stating that leave would be approved on a going-forward basis
from August 16, 2013 through October 17, 2013. However, the letter also informed Plaintiff that
any migraine-related leave taken from June 21 through August 15, 2013, would not be covered by
the FMLA due to incomplete documentation on file during that time.
Based on Cox’s denial of FMLA coverage for this three-week period, Plaintiff’s July 10 and
July 24 absences were deemed non-FMLA, unexcused for purposes of Cox’s attendance policy and
her “one strike” period. On August 23, 2013, Cox terminated Plaintiff’s employment. The
Termination Review Form, which was first requested by a Cox employee back on June 5, 2013 and
finally completed on August 23, 2013, cites violation of the attendance policy as the basis for
termination.
On July 10, 2014, Plaintiff filed this lawsuit asserting four claims for relief. Based on the
parties’ arguments and the Court’s prior dismissal of Plaintiff’s claim for intentional infliction of
emotional distress, the following claims and theories remain: (1) Cox terminated Plaintiff based on
the disability of chronic migraines, in violation of 42 U.S.C. § 12112 of the Americans with
Disabilities Act (“ADA”) (“ADA Discrimination”);2 (2) Cox terminated Plaintiff in retaliation for
exercising her FMLA rights, in violation of 29 U.S.C. § 2615(a)(2) (“FMLA Retaliation”); and (3)
2
Plaintiff abandoned any ADA theory based exclusively upon a failure to provide a
reasonable accommodation. Instead, she focused her ADA claim upon a disability-based
termination. (See Pl.’s Resp. to Def.’s Mot. for Summ. J. 36-42.)
8
Cox interfered with Plaintiff’s exercise of FMLA rights, in violation of 29 U.S.C. § 2615(a)(2)
(“FMLA Interference”). Cox moves for summary judgment on all remaining claims.
II.
Summary Judgment Standard
Summary judgment is proper only if “there is no genuine issue as to any material fact, and
the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). The moving
party bears the burden of showing that no genuine issue of material fact exists. See Zamora v. Elite
Logistics, Inc., 449 F.3d 1106, 1112 (10th Cir. 2006). The Court resolves all factual disputes and
draws all reasonable inferences in favor of the non-moving party. Id. However, the party seeking
to overcome a motion for summary judgment may not “rest on mere allegations” in his complaint
but must “set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P.
56(e). The party seeking to overcome a motion for summary judgment must also make a showing
sufficient to establish the existence of those elements essential to that party’s case. See Celotex
Corp. v. Catrett, 477 U.S. 317, 323-33 (1986).
III.
FMLA Interference
The FMLA “provides that eligible employees of certain employers have the right to take
unpaid medical leave for a period of up to twelve work weeks in any twelve month period for a
serious health condition as defined by the Act.” Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298
F.3d 955, 959 (10th Cir. 2002). The FMLA makes it unlawful for an employer to interfere with,
restrain, or deny the exercise of or the attempt to exercise these rights, 29 U.S.C. § 2615(a)(1), and
such a claim is referred to as an “interference” claim.
To establish an FMLA interference claim, Plaintiff must show: (1) she was entitled to FMLA
leave; (2) an adverse action by Cox interfered with her right to take FMLA leave; and (3) Cox’s
9
adverse action was related to the exercise or attempted exercise of her FMLA rights. Campbell v.
Gambro Healthcare, Inc., 478 F.3d 1282, 1287 (10th Cir. 2007). A denial, interference, or restraint
of FMLA rights is a violation regardless of the employer’s intent, and the burden-shifting analysis
applied to Title VII and FMLA retaliation claims does not apply to FMLA interference claims. See
Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1180 (10th Cir. 2006).
Cox challenges the first and second elements -- entitlement and interference. Cox contends
Plaintiff was not entitled to FMLA leave on the dates of the absences which triggered her
termination (July 10 or 24, 2013) because the undisputed facts demonstrate that Plaintiff failed to
comply with the recertification request for absences occurring from June 21, 2013 to August 15,
2013. Without entitlement to leave, Cox contends, it could not have interfered with her FMLA
rights. Plaintiff argues that jury questions abound as to whether the recertification request was
reasonable, whether the recertification adequately explained the pattern of absences for which
clarification was sought, and whether Dr. Edwards’ responses prior to August 16, 2013, complied
with the request. Because the analyses of entitlement and interference substantially overlap, the
Court addresses both elements simultaneously.
A.
Decision to Request Recertification
By statute, an employer may “obtain subsequent recertifications on a reasonable basis.” 29
U.S.C. § 1613(e). “An unreasonable demand for recertification may interfere with FMLA rights.”
Smith v. City of Niles, 505 F. App’x 482, 484 (6th Cir. 2012).
10
The May 2013 Approval informed Plaintiff that she was entitled to intermittent FMLA leave
from April 20, 2013 through October 17, 2013.3 Where, as here, the medical certification indicates
the employee will need intermittent leave for an indefinite duration, an employer may generally
request recertification only every six months and in connection with a specific absence. 29 C.F.R.
§ 825.308(b).
However, exceptions exist if: (1) the employee requests an extension; (2)
circumstances described by the previous certification have changed significantly (e.g., the duration
of the illness, the nature of the illness, or complications); or (3) the employer receives information
casting doubt on upon the continuing validity of the certification. 29 C.F.R. § 825.308(c).
Cox relies on the second exception -- significantly changed circumstances -- to justify its
requesting recertification earlier than six months. The regulations provide the following relevant
example of a significant change in circumstances:
[I]f an employee had a pattern of using unscheduled FMLA leave for migraines in
conjunction with his or her scheduled days off, then the timing of the absences also
might constitute a significant change in circumstances sufficient for an employer to
request a recertification more frequently than every 30 days[.]
Id. Cox contends that, because this was precisely its stated reason for requesting recertification, its
request was reasonable as a matter of law.
Construing all facts in favor of Plaintiff, a jury could deem the request for recertification as
unreasonable. Cox purported to identify a “pattern” of taking FMLA leave “prior to and the day
following” Plaintiff’s “normally scheduled days off.” (Pl.’s Ex. 21.) There are problems with this
justification that render summary judgment improper. Plaintiff worked a four-day workweek
consisting of Monday, Tuesday, Wednesday, and Friday, with scheduled days off on Sunday,
3
“Intermittent leave” is FMLA leave taken “in separate blocks of time due to a single
qualifying reason.” 29 C.F.R. § 825.202.
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Thursday, and Saturday. Under this schedule, only one day a week (Tuesday) would not abut a
“scheduled day off.” Therefore, in order to avoid taking absences that abutted days off, Plaintiff’s
migraines would need to occur on a Tuesday and last only one day. However, Dr. Edwards’ prior
medical certification had already informed Cox that Plaintiff’s condition had an episode frequency
of 4-5 times per month with a duration of 1-3 days per flare-up.
Further, the facts and communications leading to creation of the “pattern of absences”
calendar could raise an inference that there was not any genuine change in circumstances justifying
the recertification request. The Termination Request Form executed in August 2013 was first
generated on June 5, 2013. Only after Osborn approved the UAER and essentially allowed Plaintiff
to maintain employment despite Lay and others’ recommendations to terminate, Struts, Lay, and
Tittiger began scrutinizing and discussing Plaintiff’s FMLA leave. Their communications could be
viewed as brainstorming possible problems with Plaintiff’s FMLA leave that could be used to either
deny leave or justify a recertification request. The possible problems identified included her number
of qualifying hours and her use of FMLA days “bumping up” to scheduled days off. Only after
realizing Plaintiff met the hour requirement, Cruts instructed Lay to develop a calendar showing
when Plaintiff took leave in relation to scheduled days off or holidays. A jury could conclude that
the calendar was a concocted justification to request recertification, curtail a period of previously
granted FMLA leave, make it difficult for Plaintiff and Dr. Edwards to comply, and count the next
migraine-related absence as the one strike needed for her termination. The Court rejects Cox’s
argument that, because its stated reason for requesting recertification is provided as an example in
the regulation, its recertification request on July 25, 2013 was reasonable as a matter of law.
12
B.
Denial of Recertification for July 10 and 24
Even assuming the request itself was reasonable and based on a good-faith belief that
Plaintiff’s circumstances had changed in how she was taking FMLA leave, a jury could still find
Plaintiff was entitled to FMLA leave on July 10 and 24. Cox urges that summary judgment is proper
because Plaintiff did not timely comply with the recertification request for these dates. However,
numerous facts preclude entry of summary judgment in favor of Cox on this question. First, the
letter to Plaintiff and her doctor identifying the “pattern of absences” is unclear. The letter informs
Plaintiff that she has “routinely reported absences for the day prior to and the day following your
normally scheduled days off” and then lists six absences on Tuesday, April 30; Wednesday, May
8; Friday, May 24; Friday, June 14; Monday, June 17; and Thursday, June 20. It then asks Dr.
Edwards to indicate “whether the above pattern of absence is consistent” with migraines. But the
letter does not include Plaintiff’s work schedule, rendering the chart virtually meaningless and
making it difficult to understand the “pattern” necessitating clarification. In addition, Dr. Edwards
had already indicated that the migraines were episodic, could occur 4-5 times in the same month,
and could last 1-3 days. A jury could find a lack of clarity as to what else Dr. Edwards needed to
provide, except somehow inform Cox/Unum that she either did or did not believe Plaintiff was
telling the truth about suffering migraines on these specific days.
Second, a jury could conclude that Dr. Edwards’ response to question 13 was sufficient to
address the “pattern” in light of the limited information she was provided. Although Dr. Edwards
did not provide additional information beyond that provided in prior forms, she did resubmit signed,
completed paperwork by the extended deadline of July 15, 2013. This is not a case where the
plaintiff and her doctor were ignoring the requests and making no efforts at all. Further, when
13
Cox/Unum did finally approve the recertification in August on a going-forward basis only, it was
apparently based upon Dr. Edwards’ hand-written note in the margin that “migraines are
unpredictable & absences cannot be determined accurately.” (Pl.’s Ex. 43.) A jury could view these
notes as simply repeating what was already clear rather than adding any substantive medical
verification that the “pattern” of absences was indeed consistent with Plaintiff’s health condition.
In sum, a reasonable jury could conclude Cox interfered with FMLA leave to which Plaintiff
was entitled because: (1) the request for certification was unreasonable; (2) the denial of
recertification was not justified; and/or (3) the termination was based upon absences that should
have been covered by the FMLA. That the triggering absences on July 10 and 24, 2013, occurred
during a short period of alleged technical non-compliance, and that Plaintiff ultimately obtained
approval with only a few more words from her doctor, contribute to the existence of a jury question.
Cox relies on Hobbs v. Sloan Valve Co., No. 1:14-CV-03482, 2015 WL 4231743, at *9 (N.D.
Ill. July 10, 2015), wherein the court granted summary judgment to an employer that denied
recertification based upon an incomplete recertification form and then terminated the employee
based on absences. Hobbs is distinguishable. First, that case involved a routine recertification at
the expiration of a previously granted term of intermittent leave, rather than in the middle of leave
previously granted. Nor were there emails raising an inference of intentional interference with
previously granted leave. The facts here render the request for and denial of recertification more
suspect. Second, in that case, the doctor had answered every question but on several different
versions of forms, and the court held the employer was not obligated to cobble them together. Here,
the doctor answered every enumerated question on the form but failed to “write in” an explanation
14
in the margins or otherwise “explain” the purported pattern of absences identified in the
accompanying letter. Finally, the facts of Hobbs actually demonstrate why Cox is not entitled to
summary judgment. The court in Hobbs noted that, prior to answering a specifically enumerated
question about the employee’s pattern of absences (question 22 on the form), the doctor had
“received a copy of Plaintiff’s job description and the absence history necessary to answer question
22.” Id. at *2. In this case, there was no expressly enumerated question requiring a hand-written
answer, no clear location on the form for Dr. Edwards to offer an explanation, and minimal and
possibly misleading information given regarding the “pattern of absences” at issue.
IV.
FMLA Retaliation
The FMLA prohibits an employer from retaliating against an employee for opposing a
practice made unlawful by the FMLA. 29 U.S.C. § 2615(a)(2). FMLA retaliation claims are subject
to the burden-shifting framework of McDonnell–Douglas Corp. v. Green, 411 U.S. 792 (1973).
Campbell, 478 F.3d at1287. To make out a prima facie FMLA retaliation claim, Plaintiff must show
that (1) she engaged in protected FMLA activity; (2) Cox took an action that a reasonable employee
would have found materially adverse; and (3) there exists a causal connection between the protected
activity and the adverse action. Metzler, 464 F.3d at 1171. If shown, the burden shifts to the
employer to articulate a legitimate, non-discriminatory reason for the adverse action. Id. at 1290.
The burden then shifts back to the plaintiff to show there is a genuine dispute of material fact as to
whether the employer’s reasons for terminating her are pretextual. Id. at 1172. To establish a
genuine dispute of material fact as to pretext, a plaintiff cannot rely solely on temporal proximity
of her FMLA leave and the adverse employment action but instead must offer some other evidence
15
of retaliatory motive. Id. Cox challenges the adequacy of Plaintiff’s evidence as to causal
connection and pretext.
The third element of a prima facie case for FMLA retaliation requires a showing of “bad
intent” or “retaliatory motive” by the employer. Campbell, 478 F.3d at 1287. The Court has already
concluded Plaintiff may reach a jury on whether Cox interfered with her FMLA rights by denying
her requests for leave on July 10 and 24, 2013 and terminating her for those absences. Now the
question is whether Plaintiff has created questions of fact as to whether Cox did so with bad intent
or retaliatory motive.
In Part III.A, the Court concluded that Cox’s recertification request could be deemed
unreasonable. For substantially the same reasons, a jury could conclude that (1) there exists a causal
link between Plaintiff’s use of FMLA leave and her ultimate termination; and (2) Cox’s stated
reason for Plaintiff’s termination was a pretext for retaliating against Plaintiff based on excessive
FMLA use. While Cox asserts it fired Plaintiff based on a non-FMLA qualifying absence under its
attendance policy, a jury could conclude that the termination-triggering absence: (1) was in fact
FMLA-covered (rendering the causal link with protected activity readily apparent); and/or (2) would
have been covered by the May 2013 Approval but for the retaliatory motive of Cox employees,
which led to the recertification request in the first place. In other words, a jury could conclude Cox
became unhappy with Plaintiff’s “overuse” of FMLA, interfered with her ability to take FMLA leave
by unreasonably requesting and denying FMLA leave, and then terminated her. This is sufficient
to establish a prima facie case of causation and to create questions of fact on pretext. See Oliver v.
Williams Co., Inc., No. 12-CV-0585-CVE-PJC, 2014 WL 1344496, at *8 (N.D. Okla. Apr. 4, 2014)
(denying summary judgment on FMLA retaliation claim, in part, because emails suggesting that
16
employer was dissatisfied with amount of leave taken by plaintiff “supports a finding that
defendant’s termination of plaintiff’s employment was retaliatory”).
Cox argues its prior allowance of FMLA leave for several years counsels against any finding
of bad intent on this occasion. However, that is simply a fact for a jury to weigh in assessing Cox’s
motives, rather than a fact that entitles it to summary judgment. Cox also relies upon Plaintiff’s
deposition testimony that (1) Lay and Cruts were nice to her during the June 26, 2013 meeting, and
(2) she believes her termination was based on a miscommunication to show a lack of retaliatory
intent. That Lays and Cruts did not display outward animosity toward Plaintiff does not mean Cox
did not retaliate against her as a matter of undisputed fact and law. Further, Plaintiff’s deposition
testimony as a whole reveals that she felt wrongly and unfairly singled out when they requested
recertification in the middle of a leave period that had already been granted.
In its reply brief, Cox cites the general principle that an employer’s good-faith, reasonable
belief that an employee has abused FMLA leave, even if mistaken, would not constitute a
discriminatory firing. See generally Medley v. Polk Co., 260 F.3d 1202, 1208 (10th Cir. 2001)
(holding that defendant’s requested “honest belief” charge should have been given to a jury and
remanding for a new trial). This principle does not entitle Cox to summary judgment because, as
the Court has explained, questions of fact exist as to whether Cox had an honest, reasonable belief
or suspicion that Plaintiff had “abused” her FMLA leave when it requested recertification, when it
denied recertification for a discrete period, and when it terminated her. Further, the facts do not fit
neatly into the “honest but mistaken” line of decisions because Cox ultimately approved Plaintiff’s
leave request and fired her due to a brief period of technical non-compliance rather than an “honest
but mistaken” belief of FMLA abuse. Under Cox’s version of events, it identified a concerning
17
“pattern of absences” but then decided the pattern was adequately explained by Dr. Edwards’ handwritten explanation that migraines were “unpredictable.” Cox nonetheless felt compelled to
terminate her for absences during a period when it had virtually the same information via past
medical certifications. Thus, the “honest belief” rule does not entitle Cox to summary judgment in
this case.
V.
ADA Discrimination
The ADA prohibits employment discrimination on the basis of an employee’s disability,
stating that “[n]o covered entity shall discriminate against a qualified individual on the basis of
disability in regard to job application procedures, the hiring, advancement, or discharge of
employees, employee compensation, job training, and other terms, conditions, and privileges of
employment.” 42 U.S.C. § 12112(a). “[I]n order to establish a prima facie case of disability
discrimination under the ADA, a plaintiff must demonstrate that he (1) is a disabled person as
defined by the ADA; (2) is qualified, with or without reasonable accommodation, to perform the
essential functions of the job held or desired; and (3) suffered discrimination by an employer or
prospective employer because of that disability.” E.E.O.C. v. C.R. England, Inc., 644 F.3d 1028,
1037-38 (10th Cir. 2011) (internal quotation marks omitted). Cox argues that Plaintiff cannot
establish the second or third elements and further argues that Plaintiff cannot demonstrate that Cox’s
stated reason for termination was a pretext for disability discrimination.
The Court concludes that with respect to disability discrimination, Plaintiff cannot satisfy
the third element of her prima facie case.4 As explained above, the evidence demonstrates possible
4
The Court does not reach the second element, including Cox’s arguments that she was not
qualified due to her need for medical leave and/or her because she declared on a Social Security
Disability Insurance that she was disabled and unable to work.
18
discrimination against Plaintiff based upon her taking actual FMLA leave or taking what should
have been FMLA leave. Although subtle, this is different than discriminating against Plaintiff
because of her disability of having chronic migraines. As explained by Judge Eagan in a recent,
similar case:
Plaintiff has produced no evidence that her disability was a motivating factor in her
termination, because this is not a case where a disability prevented her from
performing certain job functions. Instead, she completely failed to report to work and
her absences, not her underlying medical condition, prompted defendant to terminate
her employment. Plaintiff’s right to medical leave is protected by the FMLA, not the
ADA, and the Court has found that there is a genuine dispute as to whether plaintiff
was entitled to FMLA leave. . . . The Court finds no evidence suggesting that
defendant’s legitimate, non-discriminatory reason for terminating her employment
was pretext for disability discrimination, and defendant is entitled to summary
judgment on plaintiff's ADA claim.
Oliver, 2014 WL 1344496, at *10 (emphasis added). Likewise here, there is no evidence that
Plaintiff’s migraines impacted her work performance, except to make her entirely unable to attend
work. Further, the email communications supporting the Court’s finding of a jury question on
intentional discrimination relate exclusively to Plaintiff’s use of FMLA leave and not to Plaintiff’s
migraines or her inability to effectively perform her job when present. While some cases may
involve enough evidentiary overlap to reach a jury on both ADA and FMLA claims, the only
potential discrimination supported by Plaintiff’s evidence is based upon her use of the FMLA, not
based upon any disability for which she qualifies under the ADA. See id. (“While Plaintiff may
have missed work due to a medical condition, the FMLA and ADA protect an employee against
different types of discrimination.”).
VI.
FMLA Damages
The FMLA provides the following remedies:
19
Any employer who violates section 2615 of this title shall be liable to any eligible
employee affected-(A) for damages equal to-(i) the amount of-(I) any wages, salary, employment benefits, or other compensation denied or lost to
such employee by reason of the violation; or
(II) in a case in which wages, salary, employment benefits, or other compensation
have not been denied or lost to the employee, any actual monetary losses sustained
by the employee as a direct result of the violation, such as the cost of providing care,
up to a sum equal to 12 weeks (or 26 weeks, in a case involving leave under section
2612(a)(3) of this title) of wages or salary for the employee;
(ii) the interest on the amount described in clause (I) calculated at the prevailing rate;
and
(iii) an additional amount as liquidated damages equal to the sum of the amount
described in clause (I) and the interest described in clause (ii), except that if an
employer who has violated section 2615 of this title proves to the satisfaction of the
court that the act or omission which violated section 2615 of this title was in good
faith and that the employer had reasonable grounds for believing that the act or
omission was not a violation of section 2615 of this title, such court may, in the
discretion of the court, reduce the amount of the liability to the amount and interest
determined under clauses (I) and (ii), respectively; and
(B) for such equitable relief as may be appropriate, including employment,
reinstatement, and promotion.
29 U.S.C. § 2617(a)(1).
The remedial provisions of the FMLA are “strictly defined and measured by actual monetary
losses,” Nevada Department of Human Resources v. Hibbs, 538 U.S. 721, 738-40 (2003), and
“courts have consistently refused to award FMLA recovery for such other claims as consequential
damages and emotional distress damages,” Walker v. United Parcel Service, Inc., 240 F.3d 1268,
1277 (10th Cir. 2001) (internal citations omitted) (contrasting FMLA with Title VII remedies).
Nominal damages are not available for an FMLA violation resulting in no monetary loss. See id.
20
(affirming judgment in favor of defendant where employee who received wrongful five-day
suspension based on FMLA interference conceded she did not incur any monetary loss). Liquidated
damages are available but only as tied to “lost wages, salary, employment benefits, or other
compensation denied or lost to such employee by reason of the violation.” 29 U.S.C. § 2617(a)(i)(I)
& (iii). Punitive damages are not available. Saavedra v. Lowe’s Home Centers, Inc., 748 F. Supp.
2d 1273, 1298 (D.N.M. 2010).
Cox seeks judgment on the issues of Plaintiff’s entitlement to back pay, front pay, or any
other statutory damages. Cox argues she may not recover these damages because: (1) she is
physically unable to perform work of any kind due to her frequent migraines; and/or (2) she has
failed to mitigate her damages.
See generally Thomsen v. City of Anadarko, Okla., No.
CIV-05-1196-F, 2006 WL 2773230, at *3 (W.D. Okla. Sept. 25, 2006) (“Generally, an employer
is not liable for back pay and front pay damages when an alleged improperly discharged employee
is unavailable for work due to a disability.”); Brooks v. Via Christi Reg’l Med. Ctr., Inc., No.
08-1376-JTM, 2010 WL 446523, at *13 (D. Kan. Feb. 4, 2010) (“The duty to mitigate damages is
applied in FMLA cases as well as other federal employment actions.”). (See Def.’s Statement of
Undisputed Facts 72-77; Def.’s Mot. for Summ. J., Proposition IV.) If Plaintiff is not entitled to
lost wages, she may not be entitled to any compensatory damages even with a successful verdict in
her favor on the FMLA claims. As explained above, neither emotional distress or nominal damages
are available in FMLA cases, and the Court granted summary judgment on the ADA claim.
In her response to Defendant’s statements of facts regarding damages issues, Plaintiff
contends:
This fact [regarding being unable to perform any work] is irrelevant, as her ability
to secure subsequent employment is an issue related to damages, not liability. . .
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Defendant could perform work with accommodations, and the Social Security
Administration does not consider accommodations when deciding if someone is
qualified for Social Security Disability Insurance benefits. . . . There are migraines
that keep Plaintiff from working, but there are other instances where she is able to
function while experiencing a headache or less severe migraine.
(Pl.’s Resp. to Statement of Facts 72-76.) In her deposition, Plaintiff stated:
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Okay. Has there ever been a point since August of -- August 23, 2013, that
you have been unable to perform any job or any circumstances in some time
period for that?
If I were to apply for a job or get a job, I would say it would have been no
different than if I was still working at Cox. The employer that I went to
interview with, I would -- if they asked me why I got fired I am an honest
person. I am going to tell them why, because I feel that upfront if they could
offer me something to help -- if I told them upfront that I have this issue and
they are aware of it, then it voids any conflict, but it would be no different if
I was still working at Cox.
Okay.
You know, I have migraines. They are -- I can't do anything about it. I had
one last week that I had to go to the emergency room for that lasted four days
and I had to have a brain scan because the whole left side of my body went
numb. So, I mean, it is unfortunate, but it is part of my life and I just feel I
have to deal with it.
Okay. And I thought I saw in your Social Security disability documents that
you were saying that you had between 15 and 20 migraines a month; is that
correct?
Uh-huh, that is correct.
All right. And how long have you had -- how long have you been having -since August of 2013, what period of time have you been having 15 to 20
migraines per month?
I had them about three months until I started my new medicine and so far,
like I said, I have had . . . [page cuts off]
(Jurczyk Dep. 167:18-168:25.) She also stated that some of her headaches were not debilitating.
(Id. at 171.)
Awards of back pay and front pay are equitable decisions ultimately committed to the
discretion of the Court. See Godinet v. Mgmt. & Training Corp., 56 F. App’x 865, 872 (10th Cir.
2003) (noting that district court “acted within the scope of its equitable discretion” in awarding
22
certain amount of back pay); Davoll v. Webb, 194 F.3d 1116, 1144 (10th Cir. 1999) (“The district
court may consider all evidence presented at trial in formulating the proper award.”). The Court will
not enter partial judgment on damages issues for two reasons: (1) Plaintiff’s deposition was taken
on September 22, 2015, and she may inform the Court and/or jury of any changes in her ability to
work and/or her mitigation efforts after that date; and (2) even Plaintiff’s deposition testimony to
date precludes a finding as a matter of law that she is entirely unable to work with accommodations
of leave for migraines when necessary. Her declaration to the Social Security Administration is not
dispositive of this issue. See Holmes v. Sw. Reg’l Med. Ctr., Inc., No. 12-CV-225-JED-PJC, 2014
WL 5494932, at *6 (N.D. Okla. Oct. 30, 2014) (denying motion in limine on same question).
Defendant is not precluded from filing a motion in limine on these issues, and Plaintiff is expected
to provide an adequate responsive argument (which she failed to do at the summary judgment stage).
However, the Court finds any ruling at this stage to be premature.
VI.
Conclusion
Defendants’ Motion for Summary Judgment (Doc. 38) is granted in part and denied in part.
It is denied as to FMLA Interference and FLMA Retaliation, and granted as to ADA Discrimination.
The stay (Doc. 44) is lifted. The parties are ordered to submit a Joint Status Report setting forth
proposed dates for remaining events no later than two weeks from the date of this Order.
SO ORDERED this 10th day of June, 2016.
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