Deborah A. Carter v. A. O. Smith Corp.

Filing 34

MEMORANDUM OF THE COURT. Signed by Chief Judge Todd J. Campbell on 7/26/11. (rd)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
DEBORAH A. CARTER
v.
A.O. SMITH CORPORATION

)
)
) NO. 3-10-0737
) JUDGE CAMPBELL
)
MEMORANDUM

Pending before the Court is Defendant’s Motion for Summary Judgment (Docket No. 21).
For the reasons stated herein, Defendant’s Motion is GRANTED, and this action is DISMISSED.
FACTS
Plaintiff brought this action against Defendant, her former employer, pursuant to the Family
Medical Leave Act (“FMLA”), alleging that Defendant unlawfully terminated her employment in
retaliation for her taking approved leave pursuant to the FMLA. Docket No. 1. Plaintiff contends
that Defendant’s alleged reason for her termination - attendance problems - was merely a pretext for
that retaliation. Id.
Defendant argues that Plaintiff was fired on April 7, 2009, because she had accrued at least
seven absentee points1 in a rolling twelve-month period, which prompted termination under
Defendant’s attendance policy. Defendant also claims that Plaintiff was not certified for FMLA
leave and that she failed properly to report or request FMLA leave as required by Defendant’s call-in
policy.1

1

According to Defendant’s records, Plaintiff’s absence points were for May 8, 2008,
May 20, 2008, May 22, 2008, June 6, 2008, January 29, 2009, March 3, 2009, April 1, 2009, and
April 2, 2009. Docket No. 26. Absences not covered by FMLA leave count as points under
Defendants’ attendance policy. Docket No. 23-4.
1

Plaintiff admits that employees are required to call in to report FMLA absences and
that “you need to say FMLA.” Docket No. 22-1, p. 18.

SUMMARY JUDGMENT
Summary judgment is appropriate where there is no genuine issue as to any material fact and
the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Pennington v. State
Farm Mut. Automobile Ins. Co., 553 F.3d 447, 450 (6th Cir. 2009). The party bringing the summary
judgment motion has the initial burden of informing the Court of the basis for its motion and
identifying portions of the record that demonstrate the absence of a genuine dispute over material
facts. Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir. 2003). The moving party may satisfy this
burden by presenting affirmative evidence that negates an element of the non-moving party’s claim
or by demonstrating an absence of evidence to support the nonmoving party’s case. Id.
In deciding a motion for summary judgment, the Court must review all the evidence, facts
and inferences in the light most favorable to the nonmoving party. Pennington, 553 F.3d at 450;
Van Gorder v. Grand Trunk Western Railroad, Inc., 509 F.3d 265, 268 (6th Cir. 2007). The mere
existence of a scintilla of evidence in support of the nonmoving party’s position will be insufficient
to survive summary judgment; rather, there must be evidence on which the jury could reasonably
find for the nonmoving party. Rodgers, 344 F.3d at 595 (citing Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 252 (1986).
FMLA RETALIATION
The FMLA prohibits employers from taking adverse employment actions against employees
based on the employee’s exercise of FMLA leave. Bryant v. Dollar General Corp., 538 F.3d 394,
401 (6th Cir. 2008). Absent direct evidence of unlawful conduct, FMLA-retaliation claims are
evaluated according to the burden-shifting framework used in Title VII discrimination claims.

2

Hunter v. Valley View Local Schools, 579 F.3d 688, 692 (6th Cir. 2009); Bryson v. Regis Corp., 498
F.3d 561, 570 (6th Cir. 2007).
A plaintiff makes a prima facie case of retaliation under the FMLA by showing that: (1) she
engaged in a statutorily protected activity; (2) she suffered an adverse employment action; and (3)
there was a causal connection between the adverse employment action and the protected activity.
Davis v. Wayne State University, 2011 WL 2786186 at * 3 (E.D. Mich. July 15, 2011) (citing
Bryson, 498 F.3d at 570) and Clark v. Walgreen Co., 2011 WL 2023432 at * 5 (6th Cir. May 24,
2011).
In this case, Plaintiff contends that she engaged in protected activity when she took FMLA
leave. Defendant maintains that Plaintiff’s leave was never FMLA approved because her absences
were never certified by a physician2 and she failed to use the company’s required policy of
requesting FMLA leave. Plaintiff asserts that her doctor, Dr. Schott, had certified her for FMLA
leave purposes on a continuous basis since January of 2007 and that she did call in, for every
absence, and did ask for FMLA leave.
Plaintiff claims that the FMLA leave that was improperly counted against her was for
intermittent FMLA leave related to elevated blood pressure. Docket No. 1, ¶ 7; Docket No. 22-1,
pp. 23-24. The relevant medical certificate produced in evidence is dated August 28, 2008, and
Plaintiff has testified that it was good for 23 weeks. Docket No. 22-1, p.73 and Ex. 5.3 Both

2

Defendant’s policy requires medical certification of the employee’s serious health
condition within 15 days of the request for FMLA leave. Docket No. 24, p. 83. Plaintiff has not
challenged this policy.
3

Defendant’s human resources representative stated that these certifications typically
last for six months. Docket No. 22-2, pp. 22 and 32.
3

Plaintiff and Defendant have referenced a May 29, 2009 medical certificate issued in connection
with unemployment benefits, but a medical certificate issued after Plaintiff’s termination is
irrelevant to this issue. Given Plaintiff’s admission that the one medical certificate in evidence was
good for 23 weeks, then the only absence which could have been certified is Plaintiff’s absence on
January 28, 2009.
Even if Plaintiff had followed Defendant’s call-in policy and properly requested FMLA leave
for the January 28, 2009 absence, which Defendant insists she did not, there are still seven absences
for which no FLMA medical certificate has been produced. Under Defendant’s attendance policy,
seven absence points results in termination. Docket No. 23-4.4
Even if the one January 28, 2009 absence qualified as Plaintiff’s engaging in protected
activity, Plaintiff has not show a causal connection between that one absence and the adverse
employment action of her firing, since she could have been fired even without counting that absence.
Thus, Plaintiff has not established the first element of her retaliation claim.
For these reasons, Plaintiff has failed to show that there are genuine issues of material fact
with regard to her FMLA retaliation claim, and Defendant is entitled to judgment as a matter of law.5

4

Plaintiff was given a “Corrective Action for Absenteeism” on August 28, 2008,
indicating that she had accumulated 4.5 absence points within the twelve-month rolling period.
Docket No. 22-1, Ex. 7. In addition, Plaintiff knew, on March 3, 2009, that she had accumulated
5.5 absentee points in the twelve-month rolling period, because she was given a written warning.
Docket No. 22-1, Ex. 6.
5

To the extent Plaintiff is asserting an FMLA “interference” claim, which the Court
does not find in the Complaint, that claim would also require evidence that Plaintiff was entitled to
FMLA leave, which Plaintiff has not shown.
4

CONCLUSION
Defendant’s Motion for Summary Judgment (Docket No.21) is GRANTED, and this action
is DISMISSED.
IT IS SO ORDERED.

___________________________________
TODD J. CAMPBELL
UNITED STATES DISTRICT JUDGE

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