Basham v. Select Specialty Hospital

Filing 62

MEMORANDUM OPINION AND ORDER granting in part and denying in part defendant's 43 MOTION for Summary Judgment; granting said motion with respect to Basham's interference claim and denied with respect to her retaliation claim. Signed by Judge John T. Copenhaver, Jr. on 6/1/2017. (cc: counsel of record; any unrepresented parties) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
DEBBIE DEA BASHAM,
Plaintiff,
v.

Civil Action No. 2:15-15432

SELECT SPECIALTY HOSPITAL,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending is defendant’s Motion for Summary Judgment (ECF
No. 43), filed on October 19, 2016.
I.

Facts and Procedural History

Plaintiff Debbie Dea Basham worked for defendant Select
Specialty Hospital (“Select Specialty” or “the hospital”) as a
respiratory therapist, an at-will employee, for almost fourteen
years before her termination on May 22, 2015.

Select Specialty is

an acute care medical facility inside St. Francis Hospital in
Charleston, West Virginia.

Basham was a superior employee who

received excellent performance reviews.

See Pl.’s Resp. to Def.’s

Mot. for Summ. J. (hereinafter “Resp.”) Ex. 2.
During the course of her employment, Basham requested
and received leave under the Family and Medical Leave Act
(“FMLA”), 29 U.S.C. § 2601 et seq., on several occasions.

Most

recently, Basham requested and received intermittent FMLA leave
beginning in 2010 to care for her chronically ill mother.
“The FMLA’s central provision guarantees eligible
employees 12 weeks of leave in a 1–year period following certain
events: a disabling health problem; a family member’s serious
illness; or the arrival of a new son or daughter.”

Ragsdale v.

Wolverine World Wide, Inc., 535 U.S. 81, 86; 29 U.S.C. §
2612(a)(1).

Furthermore, leave “must be granted, when ‘medically

necessary,’ on an intermittent or part-time basis.”
U.S. at 86; 29 U.S.C. § 2612(b)(1).

Ragsdale, 535

Employers may require

employees to certify their FMLA leave, which involves having a
physician attest to the necessity of the leave.

As a particular

instance of protected leave goes on, the employer may require the
employee periodically to “recertify” that leave as well.
e.g., 29 C.F.R. 825.308(c).

See,

Select Specialty terminated Basham in

May 2015 after she allegedly failed to recertify her FMLA leave on
time.
As an employee of Select Specialty, Basham was subject
to the hospital’s attendance policy.

That policy provided that

employees must notify a supervising officer of the reason and
expected length of an absence in advance.

Additionally, Select

Specialty’s policy required that, when calling in, an employee
state that a leave request was FMLA-related in order for that
2

absence not to accrue “points” in the employee’s attendance
record.

Employees received three points for each unprotected

absence, and disciplinary actions could occur under the policy
after a certain number of points accrued.

The policy further

provided as follows:
All counseling levels . . . should be given prior to
termination with the exception of non-point based
attendance infractions or those actions rising to the
level of immediate termination. . . . Attendance
infractions will follow a separate progressive
disciplinary track from non-attendance based
infractions.
Employees receiving disciplinary action under this
policy are expected to improve their attendance.
Failure to improve and/or sustain improvement may
result in the employee receiving additional
disciplinary action up to and including termination.
Resp. Ex. 6 § 5 (hereinafter “Policy”).

The policy also contains

a catchall disclaimer at its conclusion stating that “[Select
Specialty] retains the authority to review infraction of the
Attendance Policy on a case by case basis for possible exception
upon the review and approval of the Executive Vice President of
Human Resources.”

Policy at p. 6.

The “counseling” levels are

(1) an “Attendance Policy Review” after six points, (2) a
“Documented First Warning” after twelve points, (3) a “Documented
Written Warning” after sixteen points, and (4) termination after
twenty points.

Id. § 5.

3

Basham sought, and Select Specialty approved,
intermittent FMLA leave beginning in 2010 to care for her mother,
generally requiring her to miss between zero and four days of work
per month.

Following this certification, Select Specialty

required Basham to recertify her leave at subsequent but somewhat
irregular intervals over the following five years.

Basham did not

first recertify her leave until February 28, 2012, and recertified
again four more times on December 11, 2012 (roughly nine months
later), July 1, 2013 (roughly seven months later), April 16, 2014
(roughly nine months later), and November 25, 2014 (roughly seven
months later).

Resp. Ex. 3.

On each occasion, she timely

recertified her leave and Select Specialty protected her absences
under the FMLA.

Charles Stephens, Select Specialty’s Human

Resources Coordinator at the time of Basham’s termination,
explained in his discharge memorandum that “[b]ecause of the
irregularity of [Basham’s] work attendance, [the hospital] had to
schedule another [respiratory therapist] to insure [sic]
consistent patient care.
company.”

This was an additional cost to the

Resp. Ex. 5 at 2 (hereinafter “Stephens Discharge

Mem.”).
On January 16, 2015, Stephens, then the new HR
Coordinator, sent Basham a letter reminding her of the importance
of stating that her leave is FMLA-related when calling in to
report an absence.

Resp. Ex. 10.
4

Basham disputes that she ever

received this letter.
Dep.”).

Resp. Ex. 8 at 73-74 (hereinafter “Basham

Then, on February 24, 2015, Basham apparently received

“counseling” under the hospital’s attendance policy, in a letter
designated a “Final Warning” (which appears to be the same as the
“Documented Written Warning,” the counseling given after
accumulating sixteen or more points) stating that Basham had
accumulated twenty-nine points in total.

Resp. Ex. 7.

Basham

testified that she had not received either of the first two
counseling levels prior to receiving the final “Documented Written
Warning” on February 24, 2015, and Select Specialty’s records
appear to confirm that she had not received any prior counseling.
Compare Basham Dep. at 86 with Resp. Ex. 9.
On April 16, 2015, Select Specialty requested by letter
a sixth recertification from Basham by May 8, 2015, extended to
May 18, 2015.

The hospital asked for this recertification to be

made in less than six months after the last recertification, being
an interval shorter than the interval for prior recertifications
by Basham.

Resp. Ex. 3.

Select Specialty states that it issued

the recertification sooner than usual because Basham’s usage of
intermittent leave had increased.

On Basham’s prior

recertification form, her mother’s treating physician indicated
that her mother would need intermittent care approximately one day
per week for two to four hours, and also that her mother’s
condition would cause flare-ups and related incapacity for eight
5

hours at a time for one to two days per month.
Resp. (hereinafter “Reply”) Ex. 27.

Def.’s Reply to

Brittany Shakespeare, Select

Specialty’s Leave Specialist who evaluated Basham’s FMLA leave,
for some reason chose to interpret the treating physician’s
statements on the form to mean that Basham’s leave “would be only
one to two days per month.”

Reply Ex. 28 at 2.

Shakespeare noted

that, in fact, Basham required three days of leave in January
2015, four days in March 2015, and four days in just the first ten
days of April 2015, being less than two weeks in the first onefourth or so of the year.

Id.

Select Specialty requested that Basham submit her
recertification paperwork, part of which had to be completed by
the treating physician, by May 8, 2015, twenty-two days after
issuing its request.

Basham provided the paperwork to her

mother’s physician, who completed it on April 26, 2015.

Basham,

however, did not return the paperwork immediately, testifying that
her mother was so seriously ill that she “actually kind of forgot
that [the paperwork] was there.”

Basham Dep. 121.

Basham told

Select Specialty that she could not get the paperwork to Select
Specialty in time, and they agreed to extend the deadline by ten
days to May 18, 2015.

Id. at 108.

The parties agree that at 8 p.m. on Saturday, May 16,
2015, two days before the deadline, Basham attempted to return the
6

recertification paperwork to Select Specialty by faxing it from
the nursing station at Select Specialty’s Charleston facility to
the corporate office.

Reply 4.

After faxing prior

recertification paperwork, Basham had received a fax confirmation
page and, on the lower half of her confirmation page, a replica of
the first page of the faxed document.
J. (hereinafter “Def.’s Mot.”) Ex. 15.

See Def.’s Mot. for Summ.
On the May 16 fax

confirmation sheet, however, she received a one-page confirmation
sheet showing that she had faxed a document with four pages but
without a replica of the first page of the fax.

Resp. Ex. 14.

The confirmation page was blank on the bottom half of the page
except for several grainy lines.

Resp. Ex. 14.

In the corporate office, Shakespeare received a one-page
transmission record accompanied by four pages that were
“essentially blank,” Resp. at 6, appearing only to give a hint of
grainy lines and perhaps some text without identifying the sender,
see Def.’s Mot. Ex. 17.

Basham did not attempt to follow up on

the fax before the May 18 deadline, and Select Specialty did not
inquire regarding her missing recertification form.

Shakespeare

testified that it is not Select Specialty’s policy to contact
employees “directly,” except by written communications.

Reply 5.

Basham called Select Specialty twice and left a voice message with
Shakespeare on May 21st, and Shakespeare testified that she
returned the call, but the two never spoke.
7

Resp. Ex. 4 at 121

(hereinafter “Shakespeare Dep.”).

Consequently, Select Specialty

claims it did not receive a completed recertification form by the
May 18 deadline.

However, Barbara Foster, Select Specialty’s

Regional Human Resources Director, testified that there was not
much question that Basham made a “reasonable attempt” to recertify
on time.

Reply Ex. 33 at 68 (“Q:

-- but you would agree with me

that there is not really much of a question that Debbie Basham
made a reasonable attempt to try to get the paperwork in on time?
A: Correct --”) (hereinafter “Foster Dep.”).
Without a completed form, Shakespeare and Stephens
treated Basham’s absences as unprotected after the April 16th
letter requesting a sixth recertification from her, and Select
Specialty assessed Basham with a total of 49 attendance points as
of May 19, 2015.

Shakespeare sent an email to Stephens at 11 a.m.

on May 18th notifying him that Basham had not returned the
paperwork; she did not contact Basham regarding the paperwork.
Shakespeare Dep. at 95, 98.

Consequently, the hospital’s CEO,

Frank Weber, decided to terminate Basham, and on May 22, 2015,
Basham was called in to meet a final time with Stephens and the
Chief Nursing Officer, Francis Stump, for her discharge meeting.
During the discharge meeting, Basham alerted Stephens and Stump
that she had faxed the forms prior to the deadline.
Discharge Mem. at 2.
Basham that day.

Stephens

Nevertheless, Select Specialty terminated

Stephens testified when asked why he did not
8

revisit her termination after speaking with Basham at her
discharge meeting that “number one, policies and procedures;
that’s what I follow.”
Dep.”).

Resp. Ex. 1 at 144 (hereinafter “Stephens

Although Stephens did not make the termination decision,

he also testified that he might have been able to “suggest we
follow up and hold off [on the termination] at that point.”
Stephens Dep. 146.

Weber, however, later attested that neither

Stephens nor Stump had the authority to reverse his termination
decision.

Def.’s Mot. Ex. 21.

Stephens also testified that if

Basham had turned in the paperwork on time, she would not have
been terminated.

Stephens Dep. 82 (“Q. So to simplify the issue,

if Debbie turns in this, the paperwork on time, she’s not
terminated?

A. Correct.”).

On September 4, 2015, Basham filed this case in the
Circuit Court of Kanawha County, West Virginia, alleging a single
count containing each an interference claim and a retaliation
claim under the FMLA.

Compl. ¶¶ 19-26.

The Complaint

specifically alleges as follows:
23. . . . Defendant attempted to interfere with
Plaintiff’s ability to use FMLA leave by “counseling”
Plaintiff on her absences (despite knowing that the
absences were protected by the FMLA) and then falsely
claiming that Plaintiff’s leave would not be protected
unless she expressly mentioned the “FMLA.”
24. Defendant then retaliated against Plaintiff for
invoking her rights under the FMLA by terminating her
9

employment as describe [sic] in the preceding
paragraphs.
Id. ¶¶ 23-24.

Defendant removed to this court on November 20,

2015, and filed its motion for summary judgment on October 19,
2016.
In its motion, Select Specialty argues that both
Basham’s interference claim and her retaliation claim must fail.
First, Select Specialty asserts that its recertification
procedures are permissible under the FMLA and that Basham did not
properly assert a harm arising from the counseling and call-in
requirements imposed by Select Specialty.

Second, Select

Specialty contends that, even if Basham can make out a case of
prima facie retaliation, she cannot show that Select Specialty’s
assertion that it fired her because of her unprotected absences
was pretext for retaliation.
Basham responds first that the hospital interfered with
her rights by terminating her.

Select Specialty, she claims,

interfered with her right to take FMLA leave after she made
diligent, good faith efforts to recertify and then to notify the
hospital that she had made that attempt.

Basham further contends

that her termination was unlawful because the recertification
request violated the FMLA’s rules for when employers can issue
such requests.

Second, with respect to retaliation, Basham

asserts that Select Specialty’s stated reason for termination was
10

pretextual because of the unusual timing of the recertification
request, because Select Specialty ignored its own policy in
terminating her, and because its explanation is generally not
credible given Basham’s history at Select Specialty.
In its reply, the hospital contends that Basham has
abandoned the interference claim set forth in her complaint, to
wit, that it interfered with her FMLA rights in two ways: by
counseling her and by requiring her to state that her leave was
FMLA-related when calling in.

Instead, Select Specialty argues

that Basham, in her response to its motion, has improperly
asserted at the summary judgment stage a new claim that the
hospital interfered with her FMLA rights by terminating her.
The court will address Basham’s interference claim and
her retaliation claim in turn.
II.
a.

Discussion

Summary Judgment Standard

A party is entitled to summary judgment “if the
pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter of
law.”

Fed. R. Civ. P. 56(c).

Material facts are those necessary

11

to establish the elements of a party’s cause of action.

Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A genuine issue of material fact exists if, in viewing
the record and all reasonable inferences drawn therefrom in a
light most favorable to the non-moving party, a reasonable factfinder could return a verdict for the non-movant.

Id.

The moving

party has the burden of showing - “that is, pointing out to the
district court - that there is an absence of evidence to support
the nonmoving party’s case.”
317, 325 (1986).

Celotex Corp. v. Catrett, 477 U.S.

If the movant satisfies this burden, then the

non-movant must set forth specific facts as would be admissible in
evidence that demonstrate the existence of a genuine issue of fact
for trial.

Fed. R. Civ. P. 56(c); id. at 322-23.
A party is entitled to summary judgment if the record as

a whole could not lead a rational trier of fact to find in favor
of the non-movant.
Cir. 1991).

Williams v. Griffin, 952 F.2d 820, 823 (4th

Conversely, summary judgment is inappropriate if the

evidence is sufficient for a reasonable fact-finder to return a
verdict in favor of the non-moving party.
248.

Anderson, 477 U.S. at

A court must neither resolve disputed facts nor weigh the

evidence, Russell v. Microdyne Corp., 65 F.3d 1229, 1239 (4th Cir.
1995), nor make determinations of credibility, Sosebee v. Murphy,
797 F.2d 179, 182 (4th Cir. 1986).
12

Inferences that are “drawn

from the underlying facts . . . must be viewed in the light most
favorable to the party opposing the motion.”

United States v.

Diebold, Inc., 369 U.S. 654, 655 (1962).
b.

FMLA Legal Standard

Basham makes two claims regarding her treatment as a
Select Specialty employee under the Family Medical Leave Act – an
interference claim and a retaliation claim.

See Yashenko v.

Harrah’s NC Casino Co., LLC, 446 F.3d 541, 546 (4th Cir. 2006)
(referring to interference and retaliation claims as claims of
violations of “prescriptive” and “proscriptive” rights,
respectively).

“[T]he difference is that [a retaliation] claim

requires proof of discriminatory or retaliatory intent while [an
interference claim] requires only proof that the employer denied
the employee his or her entitlements under the Act.”

Kauffman v.

Fed. Exp. Corp., 426 F.3d 880, 884 (7th Cir. 2005).
c.

The Interference Claim

An FMLA interference claim arises under 29 U.S.C. §
2615(a)(1), which states that “[i]t shall be unlawful for any
employer to interfere with, restrain, or deny the exercise of or
the attempt to exercise, any right provided under this
subchapter.”

13

The FMLA’s central provision guarantees eligible
employees 12 weeks of leave in a 1–year period
following certain events: a disabling health problem;
a family member’s serious illness; or the arrival of a
new son or daughter. 29 U.S.C. § 2612(a)(1). During
the mandatory 12 weeks, the employer must maintain the
employee’s group health coverage. § 2614(c)(1). Leave
must be granted, when “medically necessary,” on an
intermittent or part-time basis. § 2612(b)(1). Upon
the employee’s timely return, the employer must
reinstate the employee to his or her former position
or an equivalent. § 2614(a)(1). The Act makes it
unlawful for an employer to “interfere with, restrain,
or deny the exercise of” these rights, § 2615(a)(1),
and violators are subject to consequential damages and
appropriate equitable relief, § 2617(a)(1).
Ragsdale, 535 U.S. at 86–87.

Basham alleges that defendant here

interfered with her entitlement to leave to care for her mother
under the FMLA.
“To make out an ‘interference’ claim under the FMLA, an
employee must thus demonstrate that (1) he is entitled to an FMLA
benefit; (2) his employer interfered with the provision of that
benefit; and (3) that interference caused harm.”

Adams v. Anne

Arundel Cty. Pub. Sch., 789 F.3d 422, 427 (4th Cir. 2015) (citing
Ragsdale, 535 U.S. at 89).

A denial of FMLA leave to which an

employee is entitled is a violation of the statute.

Id.

Employees likewise “have a right ‘to be restored by the employer
to the position of employment held by the employee when the leave
commenced.’”

Yashenko, 446 F.3d at 546 (quoting 29 U.S.C.

2614(a)(1)).

As the Tenth Circuit has said, “[i]f an employer

interferes with the FMLA-created right to medical leave or to
14

reinstatement following the leave, a deprivation of this right is
a violation regardless of the employer’s intent.”

Smith v. Diffee

Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 960-61 (10th Cir. 2002)
(noting that “an employee may be dismissed, preventing her from
exercising her statutory right to FMLA leave — but only if the
dismissal would have occurred regardless of the employee’s request
for or taking of FMLA leave”).
The Supreme Court has further elaborated on the concern
ensconced in the third prong of the Adams interference framework,
the harm inflicted on the employee.

In particular, an FMLA

interference claim can provide “no relief unless the employee has
been prejudiced by the violation: The employer is liable only for
compensation and benefits lost ‘by reason of the violation,’ §
2617(a)(1)(A)(i)(I), for other monetary losses sustained ‘as a
direct result of the violation,’ § 2617(a)(1)(A)(i)(II), and for
‘appropriate’ equitable relief, including employment,
reinstatement, and promotion, § 2617(a)(1)(B).
tailored to the harm suffered.”

The remedy is

Ragsdale, 535 U.S. at 89.

Select Specialty contends that Basham has not made out a
claim for interference because she cannot show actual harm to her
as a result of the counseling she received or the call-in
procedure requiring her to mention FMLA.

Basham appears to

respond that Select Specialty interfered with her FMLA
15

entitlements by terminating her.

Select Specialty is correct,

however, that Basham cannot amend her pleadings at this stage to
allege a new interference violation different from that alleged in
her complaint.
A complaint is essential to the course of a legal action
and orients the parties and their contentions through the
adversary process.
Because a complaint “guides the parties’ discovery,
putting the defendant on notice of the evidence it
needs to adduce in order to defend against the
plaintiff’s allegations,” constructive amendment of
the complaint at summary judgment undermines the
complaint’s purpose and can thus unfairly prejudice
the defendant.
Harris v. Reston Hosp. Ctr., LLC, 523 F. App’x 938, 946 (4th Cir.
2013).

Asserting a “new theory” or “new argument” at the summary

judgment stage prejudices the defendant because it requires
“different discoverable inquiries.”

Id. at 947.

See also Gilmour

v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004) (“A
plaintiff may not amend her complaint through argument in a brief
opposing summary judgment.”); Barclay White Skanska, Inc. v.
Battelle Mem’l Inst., 262 F. App’x 556, 563 (4th Cir. 2008)
(“Additionally, despite the liberal pleading rules outlined by the
Supreme Court, plaintiffs may not raise new claims without
amending their complaints after discovery has begun.”).

16

Plaintiff’s interference theory in her response brief is
clearly different from the theory asserted in her complaint and,
consequently, she has abandoned her interference claim.

Plaintiff

has never amended her complaint in this action, and as earlier
noted, her original complaint reads as follows:
23. . . . Defendant attempted to interfere with
Plaintiff’s ability to use FMLA leave by “counseling”
Plaintiff on her absences (despite knowing that the
absences were protected by the FMLA) and then falsely
claiming that Plaintiff’s leave would not be protected
unless she expressly mentioned the “FMLA.”
Compl. ¶ 23.

Evidencing defendant’s reliance on this claim, its

entire interference argument in its motion for summary judgment is
devoted to rebutting the claim that it improperly counseled her or
applied its call-in policy unlawfully.

For example, defendant

states, after citing the provision in the complaint noted above,
that “[s]tated differently, she claims that her February 2015
final warning for unsatisfactory attendance constituted an
unlawful application of Select Specialty’s attendance policy and
related call-in procedure.”

Def.’s Mot. 10-11.

Defendant further

correctly explains that Basham cannot allege any harm resulting
from the counseling and call-in policy.

Basham was not fired, or

otherwise harmed, because of the counseling or the application of
the call-in policy but rather because she allegedly failed to
recertify her leave on time.

Stephens Dep. 82 (“Q. So to simplify

the issue, if Debbie turns in this, the paperwork on time, she’s
17

not terminated?

A. Correct.”); Resp. 10 (“Here, there is no

serious dispute that Debbie Basham was fired as a result of using
leave to care for her mother. . . .

[T]he company denied Ms.

Basham’s FMLA request based entirely upon her purported failure to
timely re-certify . . . .” (emphasis original)).
Basham’s response does not rebut these contentions.
Instead, she newly asserts that Select Specialty interfered with
her FMLA rights by terminating her employment.

She asserts that

there is “no serious dispute that [she] was fired as a result of
using leave to care for her mother.
simply one of entitlement.”

Instead, the question is

Resp. 10.

Interference claims may

indeed sometimes be based on a failure to reinstate an employee.
Ragsdale, 535 U.S. at 86 (“Upon the employee’s timely return, the
employer must reinstate the employee to his or her former position
or an equivalent.”).

That, however, was not the interference

theory asserted in Basham’s complaint.
Defendant’s reply points out as much:
The lone interference claim asserted in Basham’s
Complaint surrounds her allegation that her February
2015 final [counseling] for unsatisfactory attendance
constituted an unlawful application of Select
Specialty’s attendance policy and related call-in
procedure. Basham now asserts, for the first time in
her response . . . a new interference claim arising
from her discharge.

18

Resp. 7-8.

Defendant is correct that Basham’s response does not

address the interference claim stated in her complaint, and
consequently, she has abandoned it on summary judgment.

Because

she cannot raise a new claim at this stage, however, no valid
interference claim remains.

Accordingly, the court dismisses her

interference claim for failure to raise a genuine issue of
material fact.
d.

The Retaliation Claim

Retaliation claims are distinct from interference claims
to the extent that they require a plaintiff to prove a retaliatory
intent.

See 29 U.S.C. § 2615(a)(2) (“It shall be unlawful for any

employer to discharge or in any other manner discriminate against
any individual for opposing any practice made unlawful by this
subchapter.”); Stallings v. Hussmann Corp., 447 F.3d 1041, 1051
(8th Cir. 2006) (a “retaliation claim requires proof of
retaliatory intent”).

“Plaintiff must prove three elements to

establish a prima facie case of retaliation: (1) she engaged in a
protected activity; (2) her employer took an adverse employment
action against her; and (3) there was a causal link between the
two events.”

Adams, 789 F.3d at 429 (quotation marks omitted)

(citing Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 281
(4th Cir. 2015) (en banc)).

19

Retaliation claims follow Title VII’s burden-shifting
framework after a plaintiff makes out a prima facie case.
Yashenko v. Harrah’s NC Casino Co., LLC, 446 F.3d 541, 551 (4th
Cir. 2006) (retaliation claims “are analogous to those derived
under Title VII and so are analyzed under the burden-shifting
framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800–
06, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)”).

An employer must

provide a nondiscriminatory reason for its adverse employment
action, and
once an employer has met its burden of producing a
legitimate nondiscriminatory explanation for its
decision, the plaintiff is afforded the “opportunity
to prove by a preponderance of the evidence that the
legitimate reasons offered by the defendant were not
its true reasons, but were pretext for
discrimination.” Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d
207 (1981). That is, [plaintiff] could attempt to
establish that she was the victim of intentional
discrimination by “showing that the employer’s
proffered explanation is unworthy of credence.” Id.
at 256, 101 S.Ct. 1089.
Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 646
(4th Cir. 2002); Adams, 789 F.3d at 429 (plaintiff must show that
“taking the adverse employment action was pretextual”); Pulczinski
v. Trinity Structural Towers, Inc., 691 F.3d 996, 1003 (8th Cir.
2012) (“To prove that the employer's explanation was false, the
employee must show the employer did not truly believe that the
employee violated company rules.”).

The Fourth Circuit has

distinguished “pretext” and “retaliatory animus” as two
20

independent bases that justify a finding of retaliation.

See

Dotson v. Pfizer, Inc., 558 F.3d 284, 296 (4th Cir. 2009)
(declining to address respondent’s argument regarding retaliatory
animus because plaintiff “put on sufficient evidence [at trial] .
. . show[ing] that a jury could rationally find” respondent’s
stated reason for termination was pretextual).

Of course,

“[d]efendants of even minimal sophistication will neither admit
discriminatory animus nor leave a paper trail demonstrating it.”
Riordan v. Kempiners, 831 F.2d 690, 697 (7th Cir. 1987).
Plaintiff here presents her claim as an argument that Select
Specialty’s reasons were pretextual.

That is, Basham argues that

her alleged failure to recertify was pretext for a deeper subtext
of retaliation.
The FMLA’s regulations govern recertification.

“An

employer may require that a request for leave . . . be supported
by a certification issued by the health care provider of the
eligible employee.”

29 U.S.C. § 2613(a).

Employers may likewise

require periodic recertifications of the initial certification for
leave.

See 29 C.F.R. 825.308(c).

FMLA’s regulations provide

that, with respect to timing for providing a response to a
recertification request,
[t]he employee must provide the requested
recertification to the employer within the time frame
requested by the employer (which must allow at least
15 calendar days after the employer’s request), unless
21

it is not practicable under the particular
circumstances to do so despite the employee’s
diligent, good faith efforts.
29 C.F.R. § 825.308(d).

In addition, consequences may be imposed

for failing to provide a recertification:
An employee must provide recertification within the
time requested by the employer (which must allow at
least 15 calendar days after the request) or as soon
as practicable under the particular facts and
circumstances. If an employee fails to provide a
recertification within a reasonable time under the
particular facts and circumstances, then the employer
may deny continuation of the FMLA leave protections
until the employee produces a sufficient
recertification. If the employee never produces the
recertification, the leave is not FMLA leave.
29 C.F.R. § 825.313(c).

For an at-will employee, the consequence

of taking leave not deemed covered under the FMLA may sometimes be
termination.

See, e.g., Yashenko, 446 F.3d at 551 (finding that

employee’s termination was the result of legitimate reasons
unrelated to FMLA request rather than retaliation).
Select Specialty contends that Basham cannot make out a
prima facie showing of discrimination because she cannot show she
engaged in protected activity.

Select Specialty, however,

terminated Basham immediately after she took what she believed to
be protected FMLA leave and attempted to recertify within the
deadlines provided to her.

“While evidence as to the closeness in

time [between taking leave and termination] far from conclusively
establishes the requisite causal connection, it certainly
22

satisfies the less onerous burden of making a prima facie case of
causality.”

Id. (quotation marks omitted).

Furthermore, under

the regulations quoted above, a company may deny FMLA leave only
“[i]f an employee fails to provide a recertification within a
reasonable time under the particular facts and circumstances.”
C.F.R. § 825.313(c).

29

The relevant inquiry is not whether the

court thinks that Basham’s actions were reasonable under the
particular facts and circumstances.

Rather, the question is

whether the plaintiff has offered evidence sufficient to allow a
reasonable jury to conclude that they were.

See, e.g., Anderson,

477 U.S. at 248.
The question of whether her leave was protected under
prong (1) of the Adams retaliation test (that is, whether she
engaged in protected activity) does depend on whether she complied
with the recertification requirements.

Select Specialty

apparently did not receive anything from Basham other than a fourpage fax with a few grainy lines.

Def.’s Mot. Ex. 17.

There is

evidence, however, to suggest that, under the particular facts and
circumstances, Basham believed that she had diligently provided a
recertification form to the hospital on May 16, 2015, using its
fax machine, before the deadline of May 18th, Basham Dep. 110-113,
and she subsequently asserted that fact at her discharge meeting a
few days later on May 22nd, Stephens Discharge Mem. at 2.

Basham

might reasonably have believed that the fact that she received
23

only a mostly blank confirmation page nevertheless did not affect
transmission of the recertification form to Select Specialty.
Def.’s Mot. Ex. 17.

Furthermore, Basham did attempt to confirm

transmission of the fax on May 21st, after not hearing from Select
Specialty concerning her fax on May 16th.

Basham Dep. 125.

Especially given that Basham had faxed the document at 8 p.m. on a
Saturday night, a jury might believe it reasonable that she would
not immediately follow up on the fax with Select Specialty.
Def.’s Mot. Ex. 17.
Considering the problems that Basham apparently
encountered with using the hospital’s own fax machine and her
attempt to follow up, a jury might reasonably conclude that in
attempting to recertify and failing to do so because of an
apparent technical error, Basham made diligent, good faith efforts
to comply with Select Specialty’s request.
825.313(c).

See 29 C.F.R. §

Select Specialty’s Regional Human Resources Director,

Barbara Foster, effectively admitted as much when she agreed that
there was not much question that Basham “made a reasonable
attempt” to recertify on time. See Foster Dep. at 68.
Consequently, Basham has for summary judgment purposes made out a
prima facie case that she engaged in protected FMLA leave and that
her taking that leave was the “but-for” cause of her termination
shortly thereafter.

See Adams, 789 F.3d at 429.

24

Once a plaintiff has made out a prima facie case of
retaliation, the analysis follows Title VII’s burden-shifting
framework requiring a plaintiff to show pretext.
F.3d at 551.

Yashenko, 446

Of course, defendant contends that it fired Basham

for a nondiscriminatory reason: her failure timely to recertify.
Def.’s Mot. 17.

Basham notes that, for purposes of her summary

judgment response, she does not dispute that the hospital has
proffered a nondiscriminatory reason.

Resp. 17.

In order to

prevail on a retaliation claim, however, Basham must show that
this reason is pretext for a deeper subtext of retaliation.
Adams, 789 F.3d at 429.

Basham can do this by showing that the

reason given was “unworthy of credence.”

Dennis, 290 F.3d at 646.

Skepticism of the reason given permits the trier of fact
ultimately to infer intentional discrimination.

Reeves v.

Sanderson Plumbing Prod., Inc., 530 U.S. 133, 134 (2000).

“[A]n

employer’s deviation from its own standard procedures may serve as
evidence of pretext.”

Hurlbert v. St. Mary's Health Care Sys.,

Inc., 439 F.3d 1286, 1299 (11th Cir. 2006); Rudin v. Lincoln Land
Cmty. Coll., 420 F.3d 712, 727 (7th Cir. 2005) (same).

An

inference of pretext may also be permissible where an employee has
received good employment reviews.

Morris v. City of Chillicothe,

512 F.3d 1013, 1019 (8th Cir. 2008) (“Pretext may be shown with .
. . evidence that the plaintiffs recently received favorable
reviews . . . .”).

Furthermore, “[i]n retaliation cases, the
25

whole is sometimes greater than the sum of the parts. . . .

[T]he

bits and pieces of evidence recounted [ ], taken collectively,
[may] have significant probative value.”

Harrington v. Aggregate

Indus. Ne. Region, Inc., 668 F.3d 25, 34 (1st Cir. 2012).
Basham makes three primary contentions in favor of
pretext.

First, she contends that the timing of the

recertification request departed from Select Specialty’s normal
timing.

Def.’s Mot. 18.

Select Specialty did in fact certify and

recertify Basham’s leave over the course of several years, and
their relationship appears to have been amicable until this latest
recertification request.

See Resp. Ex. 2.

Prior recertifications

were made at intervals of about seven to nine months or more,
Resp. Ex. 3, which was in line with Shakespeare’s testimony about
the hospital’s policy, see Shakespeare Dep. 54-55.

The hospital

issued this last request, however, so as to require
recertification less than six months after the previous one.
Defendant contends that its certification request was
earlier because Basham’s absences began to spike in December 2014.
Under 29 C.F.R. 825.308(c), an employer may request
recertification more frequently if “[c]ircumstances described by
the previous certification have changed significantly (e.g., . . .
[the] frequency of the absence . . . ).”

Here, a jury could find

that no significant change in circumstances had occurred.
26

In

particular, Basham’s mother’s physician had estimated on the
previous recertification form that her mother would need care
intermittently on approximately one day per week for two to four
hours.

Reply Ex. 27 at 3.

The physician also estimated that the

patient would have “flare-ups” and “related incapacity”
approximately one to two times per month for eight hours.
4.

Id. at

Select Specialty appears to collapse these estimates by

claiming that the doctor stated that Basham would only need to be
absent once or twice per month.

Reply 2.

The doctor, however,

did not provide a specific estimate of the number of days Basham
would need to take leave each month.

Reply Ex. 27 at 3-4.

Although Basham’s absences did increase somewhat from one day in
December 2014 to four days in April 2015, at least the March and
April absences took place after she had already received her
February 24th disciplinary “Final Warning.”

Resp. Ex. 7.

This

might suggest that any “spike” in absences was not the cause of at
least the final warning leading up to the recertification request.
In sum, a jury could find that Basham’s absences did not “spike”
so dramatically as to justify an early recertification demand.
Such a finding is probative of retaliation to the extent that “an
employer’s deviation from its own standard procedures may serve as
evidence of pretext.”

Hurlbert, 439 F.3d at 1299.

27

Second, Basham contends that Select Specialty ignored
other policies in order to justify her termination.

The company’s

attendance guidelines provide as follows:
All counseling levels . . . should be given prior to
termination with the exception of non-point based
attendance infractions or those actions rising to the
level of immediate termination. . . .
. . . . Failure to improve and/or sustain improvement
may result in the employee receiving additional
disciplinary action up to and including termination.
Policy § 5.

Ordinarily, the company provided delinquent employees

with three counseling opportunities prior to termination: (1) an
“Attendance Policy Review” after six points, (2) a “Documented
First Warning” after twelve points, and (3) a “Documented Written
Warning” after sixteen points.

Id.

Basham aptly notes that

Stephens, the hospital’s HR Coordinator, emphasized his dedication
to enforcing Select Specialty’s employment policy.

See, e.g.,

Stephens Dep. 144 (“Q: Why wouldn’t you just do what the company
had done before and reopen the Leave after talking to Debbie
Basham?

A: I’ve already addressed his [sic] earlier, and that

being, number one, policies and procedures; that’s what I
follow.”).

Basham, however, testified that she had not received

either of the counseling levels set forth in the disciplinary
policy prior to receiving the “Final Warning” on February 24,
2015, see Basham Dep. at 86, and defendant’s documents appear to

28

bear that out, Resp. Ex. 9.1

Select Specialty’s policies, to be

frictionless justifications for adverse employment actions, must
be applied consistently.

See Harrington, 668 F.3d at 33

(“[W]eaknesses, implausibilities, inconsistencies, incoherencies,
or contradictions in the employer's proffer[ ] can give rise to an
inference of pretext.” (quotation marks omitted)).

The failure to

provide Basham with either an “Attendance Policy Review” or a
“Documented First Warning” would indicate a sharp deviation from
policy.
Third, Basham argues that Select Specialty’s explanation
for her termination is implausible as a whole.
Finally, Select Specialty’s explanation is, quite
simply, unbelievable. Ms. Basham had worked for the
company for almost fourteen years. She had utilized
the FMLA on several occasions without any doubt of her
need for leave, or the propriety of her usage of the
leave. She had certified and re-certified the leave at
least six times, Exhibit 3, and she returned – or at
least attempted to return – the re-certification
paperwork on time. The company then began the
termination process before the deadline, (Shakespeare
Dep. 95: 2-24; 96: 1-3), refused to contact Ms. Basham
to inquire as to the paperwork (when doing so would
have cured any deficiency prior to the deadline),
(Shakespeare Dep. 98: 23-24) (“We do not contact the

1

Select Specialty claims that on January 16, 2015, it sent Basham
a letter reminding her of the importance of complying with the
call-in policy, but Basham disputes ever having received that
letter. Basham Dep. 73-74. Regardless, Select Specialty does not
assert that the reminder letter would have constituted either an
“Attendance Policy Review,” the first level of counseling, or a
“Documented First Warning,” the second level. Policy § 5.
29

employees directly”), and ignored Ms. Basham’s phone
calls.
Resp. 19-20.

Basham’s general contention is well struck.

Basham is correct that the company began the termination
process before the deadline had yet expired and did not inquire as
to the missing paperwork.

Shakespeare sent an email to Stephens

at 11 a.m. on May 18th notifying him that Basham had not returned
the paperwork, hours before the deadline actually expired, and she
did not contact Basham regarding the paperwork.
95, 98.

Shakespeare Dep.

After attempting to contact Select Specialty on May 21st

to confirm her fax, Basham explained to Stephens and Stump in her
discharge meeting the following day that she had faxed the
recertification paperwork.

Stephens Discharge Mem. at 2.

Nevertheless, Select Specialty made no attempt to revisit the
termination decision despite the fact that Stephens later
testified that he might have been able to “suggest we follow up
and hold off [on the termination] at that point.”
145-46.

Stephens Dep.

Basham also supplies at least one motivation to explain

why Select Specialty would be looking for an excuse to terminate
her: her absences required the hospital to hire a second
respiratory therapist who cost it money.

Stephens Discharge Mem.

at 2 (“Because of the irregularity of [Basham’s] work attendance,
we had to schedule another [respiratory therapist] to insure [sic]

30

consistent patient care.

This was an additional cost to the

company.”).
Furthermore, Select Specialty had not before notified
Basham that she had incurred any attendance “points,” but brought
that to Basham’s attention with its February 24th “Final Warning.”
Resp. Ex. 7.

Basham’s strong prior employee reviews may also

contribute to an inference of pretext.

Resp. Ex. 2; Morris, 512

F.3d at 1019 (“Pretext may be shown with . . . evidence that the
plaintiffs recently received favorable reviews . . . .”).

On the

other hand, it is true that Select Specialty did grant Basham’s
request for an extension of the recertification deadline, perhaps
mitigating against an inference of pretext.

Basham Dep. 108.

However, “[t]he court’s function at the summary judgment stage is
not to weigh the evidence.”

Russell, 65 F.3d at 1239.

The entire

assemblage of facts and inferences, when drawn in the light most
favorable to the non-movant, Diebold, 369 U.S. at 655, can
certainly depict a story in which Basham’s alleged failure to
recertify provided a pretext for Select Specialty to terminate
her.

Consequently, a reasonable jury may find that the subtext of

Basham’s termination was retaliation for her use of FMLA leave.
Defendant’s reply to Basham’s contentions is
unpersuasive.

First, defendant argues that Basham’s retaliation

claim fails to attribute retaliatory animus to Weber, Select
31

Specialty’s CEO, who ultimately made the hiring decision.

Yet,

this argument neglects evidence tending to show that Stephens, the
HR Coordinator, also had significant influence on the termination
decision.

For example, Stephens testified that he could not “make

the decisions, but [he] could have suggested [the hospital] follow
up and hold off at that point.”

Stephens Dep. 145-46.

Additionally, after receiving information regarding Basham’s
allegedly unprotected absences, Stephens emailed Shakespeare with
some questions regarding Basham’s recertification and stated that
“[a]fter talking with Barb Foster, she had mentioned a couple of
things to ask . . . since it looks like a termination for Ms.
Basham.”

Resp. Ex. 17.

These statements permit the inference

that Weber was not the only person to have control over the
decision to terminate.

Furthermore, as noted above, an argument

alleging pretext is distinct from one alleging “animus.”

See

Dotson, 558 F.3d at 296.
Select Specialty also contends that pretext cannot be
inferred from deviations from its progressive attendance policy
because that policy “was neither mandatory nor rigorously
followed.”

Reply 19.

A failure to enforce a disciplinary policy

may at times defeat an inference to pretext.

See, e.g., Morris,

512 F.3d at 1020 (caveats regarding a number of disciplinary steps
in a progressive discipline policy “negate its persuasiveness in
showing pretext”); Emmett v. Kwik Lok Corp., 528 F. App’x 257, 262
32

(3d Cir. 2013) (“little” can be inferred where policy not
“mandatory or rigorously followed”).

Defendant is correct that

its policy does contain a single, catchall disclaimer at its
conclusion stating that “[Select Specialty] retains the authority
to review infraction of the Attendance Policy on a case by case
basis for possible exception upon the review and approval of the
Executive Vice President of Human Resources.”

Policy at 6.

See

also Reply Ex. 31 (Stephens Aff.) (“Employees other than Debbie
Basham have been discharged by Select Specialty without going
through all steps of the progressive disciplinary policy
process.”).

On the other hand, Stephens testified, when asked why

he did not revisit Basham’s termination after hearing she had
attempted to fax the forms in, that the policy was dispositive in
her case: “number one, policies and procedures; that’s what I
follow.”

Stephens Dep. 144.

Stephens likewise agreed that “in

the ordinary course, [he] would expect an employee to roll through
[the disciplinary] process.”

Id. at 29.

These statements and

others like them certainly provide some evidence that Select
Specialty rigorously adhered to its attendance policy.

Again, the

relevant inquiry is whether plaintiff has offered evidence from
which a reasonable jury might infer pretext, without the court
weighing such evidence.

See, e.g., Anderson, 477 U.S. at 248.

such, the failure to put Basham through the entire disciplinary

33

As

process provides some minimal inferential value when evaluating
pretext.
Most important, as already discussed, the failure to
adhere to the attendance policy is only one fact among others
buttressing Basham’s claim of pretext.

See Harrington, 668 F.3d

at 34 (1st Cir. 2012) (“[In a retaliation claim,] the bits and
pieces of evidence recounted [ ], taken collectively, [may] have
significant probative value.”).

At least five other facts can

conjointly support an inference of pretext.

First, the costs that

Basham’s unpredictable and periodic absence imposed on Select
Specialty suggest a motive.

Second, the shortened length of the

interval predating the last recertification request may suggest an
additional deviation from the hospital’s normal policies.

Third,

the company’s unwillingness to revisit Basham’s termination, even
after she told Stephens that she had faxed in the recertification
forms, could support an inference that it was looking for an
excuse to fire her.

Fourth, by Barbara Foster’s own admission,

Basham made a “reasonable attempt” to recertify, calling in to
question the decision to terminate her after she did so.

Fifth

and finally, Basham’s superior record as an employee may also
support an inference of pretext.

This confluence of facts

permits, but does not require, a reasonable jury to infer that
Select Specialty retaliated against Basham.

34

ORDER AND NOTICE
Pursuant to L.R. Civ. P. 16.1, it is ORDERED that the
following dates are hereby fixed as the time by or on which
certain events must occur:
Consequently, Basham’s retaliation claim raises genuine
01/28/2016
Motions under F.R. Civ. P. 12(b), together with
supporting briefs, memoranda, affidavits, or other
issues of material fact sufficient to survive Select Specialty’s
such matter in support thereof. (All motions
unsupported by memoranda will be denied without
motion for summary judgment.
prejudice pursuant to L.R. Civ. P. 7.1 (a)).
02/08/2016

Last day for Rule 26(f) meeting.
III. Conclusion
02/15/2016
Last day to file Report of Parties= Planning
Meeting. See L.R. Civ. P. 16.1.
For the foregoing reasons, it is ORDERED that
02/22/2016
Scheduling conference at 4:30 p.m. at the Robert C.
defendant’s Motion for Summary Judgment be, and it hereby is,
Byrd United States Courthouse in Charleston, before
the undersigned, unless canceled. Lead counsel
granted with respect to Basham’s interference claim and denied
directed to appear.
with respect to her Entry of scheduling order.
retaliation claim.
02/29/2016
03/08/2016
Last day to serve F.R. Civ. P 26(a)(1) disclosures.
The Clerk is requested to transmit copies of this order
The Clerk is requested to transmit this Order and
to all counsel of record and any unrepresented parties.
Notice to all counsel of record and to any unrepresented
parties.
DATED: June 1, 2017
DATED: January 5, 2016
John T. Copenhaver, Jr.
United States District Judge

35