Goodman v. Kingston, City of (PLR1)

Filing 34

ORDER denying 22 the City of Kingston's motion for summary judgment in its entirety. Signed by District Judge Pamela L Reeves on July 25, 2017. (AYB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE

JIMMY L. GOODMAN,
Plaintiff,
v.
CITY OF KINGSTON, TENNESSEE,
Defendant.

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No. 3:16-cv-00097
REEVES/SHIRLEY

MEMORANDUM AND ORDER

Jimmy Goodman filed this action against his former employer, the City of Kingston,
alleging he was not afforded his rights and protections under the Family Medical Leave
Act (FMLA), and was unlawfully terminated in violation of the FMLA.
This matter is before the court on the City’s motion for summary judgment [R. 22].
The City submits that Goodman cannot establish that he was discharged, interfered, or
retaliated against because of his use of FMLA leave. The City submits Goodman never
put it on notice that he suffered from a serious health condition or requested FMLA leave;
and Goodman was terminated from his employment for a legitimate, nondiscriminatory
reason, that he failed to return from leave and abandoned his job.
Goodman responds that the notices given to his employer on multiple occasions
were sufficient to put the City of notice of a serious back condition and the City failed to

inform him of his rights to take unpaid leave under the FMLA after he had exhausted his
paid sick leave.
I. Background
Goodman worked for the City for fifteen years prior to his termination on February
27, 2014. Goodman was a supervisor in the Public Works Department, a position he held
for approximately ten years. Goodman’s duties included supervising the men on his crew
and performing general Public Works Department tasks.
The City’s Personnel Policies and Procedures manual deals with benefits including
vacation leave, sick leave, and FMLA. Goodman signed that he had received a copy of the
personnel policies when he was first employed with the City. The City also posted notices
throughout the workplace to provide employees with notice of their rights under multiple
laws and regulations including the FMLA. The policy manual specifically provided that
vacation time had to be scheduled in advance so proper adjustments could be made in work
schedules.
The record shows that between December 19, 2013 and February 27, 2014,
Goodman worked only one day. During his 39-day absence, Goodman saw various
physicians for earaches, dizziness, stomachaches, headaches, anxiety, and other ailments
for which he sought medical care and treatment. The City does not dispute Goodman had
earned sick leave to take time off for these ailments.
Goodman’s medical records show that he saw Dr. Willett for sinus symptoms,
tightness of skin, and fatigue on December 26, 2013. There is no reference to back or neck
problems. On physical exam, examination of Goodman’s neck was normal. On January
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3, 2014, Goodman again saw Dr. Willett, complaining of abdominal pain, sinus symptoms,
and vertigo. There is no reference to neck or back pain.
On January 13, 2014, Goodman returned to Dr. Willett with complaints of dizziness.
There is no mention of neck or back pain; instead, examination of Goodman’s neck was
normal. Dr. Willett gave Goodman a return to work form stating Goodman could return to
work on January 22 with “no restrictions.” The next day, Goodman saw Dr. Willett
complaining of dizziness with references to pain and headache. Again, examination of
Goodman’s neck was normal. Goodman received a work excuse from Dr. Willett stating
Goodman is excused from work 1/22/14 – 1/30/14 for “medical reasons.”
Goodman missed several weeks of work in January 2007, due to issues with his
spine. In November 2013, he began experiencing pain in his spine. When he continued to
have problems with his spine, he saw neurologist Dr. Lynch on January 10, 2014. Dr.
Lynch, noted that in years past, Goodman had suffered from neck and back pain, but “most
of those symptoms have actually resolved.” Dr. Lynch further noted Goodman had a
complaint of abdominal pain with poor appetite.
On January 30, 2014, Goodman returned to Dr. Lynch and had discussions about
neck and back pain. Dr. Lynch gave Goodman a note indicating he could return to work
“when testing is concluded” and noted “cervical/lumbar radiculopathy.”

Dr. Lynch

referred Goodman to Oak Ridge Neurosurgery.
On February 14, 2014, the testing ordered by Dr. Lynch was completed. On
February 18, 2014, Dr. Lynch noted that the MRI revealed that Goodman had arthritis in

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his neck and his back “looked ok.” Dr. Lynch referred Goodman to Dr. Maccree at Oak
Ridge Neurosurgery.
On February 19, 2014, Goodman saw Dr. Willett complaining of dizziness and
hearing problems. Goodman made no complaints of neck or back pain, and received no
treatment for neck or back pain on that occasion.
Goodman’s sick leave exhausted on February 19, 2014. Goodman did not return to
work, nor did he request any vacation time after his sick leave expired. The City avers that
Goodman was required to ask for vacation time in advance, failed to do so, and the City
considered him to have abandoned his job. On February 27, 2014, the City sent a letter to
Goodman advising that his employment was terminated due to violations of City policy,
exhaustion of sick leave, and his failure to comply with the policy related to vacation leave.
Two weeks after his termination, Goodman saw Dr. Maccree, a neurosurgeon, on
March 6, 2014. Dr. Maccree noted Goodman had “very mild stenosis” in the cervical
spine; but noted he could not find a medical reason to explain Goodman’s symptoms. On
March 27, 2014, Dr. Maccree noted Goodman “has a fairly unremarkable history other
than a sense of generalized numbness including the top of his head to the bottom of his
feet.” He further noted, the MRI “does not show any significant neural impingement at
any level, that in his cervical spine, the patient only has minimal findings that would affect
specifically a C5 nerve root distribution, not generalized symptoms as he has. Therefore,
I do not feel that finding has anything to do with his overall symptoms as it does not
compromise the cord in any way.”

Dr. Maccree further opined, “I do not think

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physiologically or radiologically there is evidence to suggest an underlying central nervous
system or radicular reason for his symptoms.”
Dr. Maccree’s notes show that on May 19, 2014, Goodman called Dr. Maccree and
asked him to change his notes to facilitate a worker’s compensation claim for Goodman.
Specifically, Goodman asked Dr. Maccree to change his notes to reflect that Goodman’s
symptoms came on as a result of jackhammering. Dr. Maccree declined to do so based on
his notes reflecting Goodman had told him his pain “had come on over a ten year period of
time.”
II. Standard of Review
Summary judgment under Rule 56 of the Federal Rules of Civil Procedure is proper
“if the movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party bears
the burden of establishing that no genuine issues of material fact exist. Celotex Corp. v.
Cattrett, 477 U.S. 317, 330 n. 2 (1986); Moore v. Philip Morris Co., Inc., 8 F.3d 335, 339
(6th Cir. 1993). All facts and inferences to be drawn therefrom must be viewed in the light
most favorable to the nonmoving party. Matsushita Elec. Indus. Co. Ltd v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986); Burchett v. Keifer, 301 F.3d 937, 942 (6th Cir. 2002).
Once the moving party presents evidence sufficient to support a motion under Rule
56, the nonmoving party is not entitled to a trial merely on the basis of allegations. Celotex,
477 U.S. at 317. To establish a genuine issue as to the existence of a particular element,
the nonmoving party must point to evidence in the record upon which a reasonable finder
of fact could find in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
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The genuine issue must also be material; that is, it must involve facts that might affect the
outcome of the suit under the governing law. Id.
The Court’s function at the point of summary judgment is limited to determining
whether sufficient evidence has been presented to make the issue of fact a proper question
for the factfinder. Id. at 250. The Court does not weigh the evidence or determine the truth
of the matter. Id. at 249. Nor does the Court search the record “to establish that it is bereft
of a genuine issue of fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir.
1989). Thus, “the inquiry performed is the threshold inquiry of determining whether there
is a need for a trial – whether, in other words, there are any genuine factual issues that
properly can be resolved only by a finder of fact because they may reasonably be resolved
in favor of either party.” Anderson, 477 U.S. at 250.
On May 5, 2016, an agreed order was entered dismissing all state claims [R. 13].
That order also dismissed any claims Goodman had for violations of his FMLA rights
accruing prior to February 5, 2014. The remaining issue before the court is whether the
City violated Goodman’s rights under the FMLA after Feburary 5, 2014, and when it
terminated him.
III. Analysis
A. FMLA Interference
Goodman alleges he was not afforded his rights and protections under the FMLA
and was unlawfully terminated by the City in violation of the FMLA. The FMLA entitles
qualifying employees to take up to twelve weeks of unpaid leave each year if, among other
things, an employee has a “serious health condition that makes the employee unable to
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perform the functions of the position of such employee.” Edgar v. JAC Products, Inc., 443
F.3d 501, 506 (6th Cir. 2006).
The FMLA makes it “unlawful for any employer to interfere with, restrain, or deny
the exercise of or the attempt to exercise any FMLA provision.” Donald v. Sybra, Inc.,
667 F.3d 757, 761 (6th Cir. 2012). The Sixth Circuit recognizes two distinct theories for
recovery under the FMLA: (1) the “entitlement” or “interference” theory arising from 29
U.S.C. § 2615(a)(1); and (2) the “retaliation” or “discrimination” theory arising from 29
U.S.C. § 2615(a)(2). Hoge v. Honda of Am. Mfg., Inc., 384 F.3d 238, 244 (6th Cir. 2004).
Goodman has asserted claims for both interference and retaliation.
The “interference” or “entitlement” provision of the FMLA makes it “unlawful for
any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise,
any right provided in [the FMLA].” 29 U.S.C. § 2615(a)(1). A violation of the Act exists
if an employer interferes with the FMLA-created right to medical leave or to reinstatement
after qualified leave. Arban v. West Pub. Corp., 345 F.3d 390, 401 (6th Cir. 2003). To
establish a prima facie claim of interference under the FMLA, Goodman must show that:
(1) he is an eligible employee, (2) the City is an employer covered by the FMLA, (3) he
was entitled to FMLA leave, (4) he gave the City notice of his intention to take leave, and
(5) the City denied him FMLA benefits to which he was entitled. See Hoge, 384 F.3d at
244.
In FMLA interference claims, the issue is “whether the employer provided the
employee with the entitlements provided by the FMLA.” Young v. United Parcel Service,
Inc., 992 F.Supp.2d 817, 827 (M.D.Tenn. 2014). The termination of one’s employment
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constitutes FMLA interference when the termination is to prevent the employee from
exercising the right to FMLA leave. See, e.g., Arban, 345 F.3d at 401 (“An employee
lawfully may be dismissed, preventing him from exercising his statutory rights to FMLA
leave or reinstatement, but only if the dismissal would have occurred regardless of the
employee’s request for or taking of FMLA leave.”).
The City argues Goodman never put it on notice that he suffered from a “serious
health condition” or requested FMLA leave. The term “serious health condition” signifies
an illness, injury, impairment, physical, or mental condition that involves inpatient care in
a hospital, hospice, or residential medical care facility; or continuing treatment by a
healthcare provider. Brenneman v. MedCentral Health Sys., 366 F.3d 412, 420 (6th Cir.
2004). Goodman claims that he suffered from a serious medical issue in the form of spinal
stenosis and lower back disk problems starting in November, 2013.
The medical record shows that although Goodman saw various doctors during
December, he made no complaints of neck or back pain. It was not until January 10, 2014,
that Goodman saw his neurologist Dr. Lynch complaining of pain in his spine. Goodman
returned to Dr. Lynch on January 30, 2014, with continued complaints of neck and back
pain. Dr. Lynch gave Goodman a note indicating he could return to work “when testing is
concluded” and noted “cervical/lumbar radiculopathy.” Goodman underwent an MRI on
February 14, 2014. On February 18, 2014, Dr. Lynch noted that the MRI revealed that
Goodman had arthritis in his neck and his back “looked ok.” Dr. Lynch referred Goodman
to Dr. Maccree at Oak Ridge Neurosurgery. Goodman’s sick leave exhausted on February
19, 2014.
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In order to invoke the protection of the FMLA, an employee must provide notice
and a qualifying reason for requesting the leave.” Brohm v. JH Properties, Inc., 149 F.3d
517, 523 (6th Cir. 1998). While the employee need not actually mention the FMLA by
name, the critical question is whether the information imparted to the employer is sufficient
to reasonably apprise it of the employee’s request to take time off for a serious health
condition. Id. Here, the City was aware that Goodman had a spinal injury that required
treatment in 2007. More recently, Goodman provided the City with a note from Dr. Lynch
stating Goodman could return to work “when testing is concluded” and that the nature of
his illness was “cervical/lumbar radiculopathy.” This notice is sufficient to put the City on
notice that Goodman may have a recurrence of his spinal injury and that Goodman was
unable to perform the functions of his job.
Once an employer is on notice that an employee has a qualifying medical condition,
the employer must: (1) within five business days notify the employee of his eligibility to
take FMLA leave (29 C.F.R. § 825.300(b)(1)); (2) notify the employee in writing whether
the leave will be designated as FMLA leave (29 C.F.R. § 825.300(d)(1)); (3) provide
written notice detailing the employee’s obligations under the FMLA and explain any
consequences for failing to meet those obligations (29 C.F.R. § 825.300(c)(1)); and (4)
notify the employee of the specific amount of leave that will be counted against the
employee’s FMLA leave requirement (29 C.F.R. § 825.300(d)(6)). The City did not make
any inquires of Goodman or his medical providers. Instead, Carolyn Brewer, the City
employee charged with informing employees of their FMLA rights, testified “she does not
afford an employee FMLA rights until they specifically ask for it.”
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Here, taking the facts in a light favorable to Goodman, a jury could reasonably
conclude that the City failed in its obligations to inform Goodman of his right to take unpaid
leave under the FMLA once he had exhausted his paid sick leave. Accordingly, the City’s
motion for summary judgment on Goodman’s interference claim is denied.
B. FMLA Retaliation
Under the FMLA, an employer is prohibited from discharging or in any other
manner discriminating against an individual for opposing any practice made unlawful by
the FMLA. Donald v. Sybra, Inc., 667 F.3d 757, 761 (6th Cir. 2012). To state a prima
facie case of retaliation under the FMLA, Goodman must show that: (1) he was engaged
in an activity protected by the FMLA, (2) the City knew that he was exercising his rights
under the FMLA, (3) the City took an employment action adverse to him, and (4) there was
a causal connection between the protected FMLA activity and the adverse employment
action. Killian v. Yorozu Auto. Tennessee, Inc., 454 F.3d 549, 556 (6th Cir. 2006).
Because the court has already found that Goodman gave the City notice of a serious
medical condition and the City failed in its obligations to inform Goodman of his right to
take unpaid leave under the FMLA once he exhausted his paid sick leave, Goodman has
established the first three elements of a prima facie case. Moreover, Goodman has
established the fourth element because the City has offered no reason, other than his
unexcused absences, for his termination. Accordingly, the City’s motion for summary
judgment on Goodman’s retaliation claim is denied.

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In conclusion, the court finds that there are disputed issues of material fact which
preclude summary judgment, and the City of Kingston’s motion for summary judgment
[R. 22] is DENIED in its entirety.
IT IS SO ORDERED.

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UNITED STATES DISTRICT
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UNITED STATES DISTRICT JUDGE

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