LAURIE SMITH CAMP, United States District Judge
Plaintiff Lori Hall filed a petition in state district court, which was removed to this Court by the Defendant EGS Electric ("EGS"). Hall alleges that EGS interfered with her right to take family and medical leave in violation of the Family and Medical Leave Act, 29 U.S.C. § 2601-54. ("FMLA"). EGS denies interfering with her right to leave under the FMLA and contends that it had the right to enforce its attendance policy separate and apart from the FMLA.
The matter came on for trial beginning Monday, March 24, 2003, and concluding on March 26, 2003. Having considered all the evidence and the arguments of counsel, the Court makes the following findings of fact:
Plaintiff Lori Hall is a resident of Columbus, Nebraska. Hall was employed by EGS and its predecessor beginning in May 1990, and through August 13, 2001. She was so employed for more than 1,250 hours in the year preceding August 1, 2001.
EGS is a corporation duly qualified to do business in Nebraska, and it operates a manufacturing facility in Columbus, Nebraska, that employs more than 50 employees. EGS employed more than 50 employees for each workday during each of 20 or more calendar work weeks during the calendar year 2001. Its predecessor was Appleton Electric Company.
Hall has three children, one of whom has some serious health problems, and Hall had previously taken family and medical leave under the FMLA at EGS and its predecessor company to care for herself and for her child.
In July and August 2001, Hall was working for EGS as a general machine operator ("GMO"). This position required employees to stand, walk, sit, twist, bend, lift between 15 and 70 pounds, and use their hands to assemble component parts.
On August 1, 2001, Hall was earning $9.79 per hour. A wage rate increase took effect at EGS on October 1, 2001, through which Hall would have been earning $10.03 per hour.
In August 2000, Hall suffered an injury to her lower back that was not work-related. The injury caused intermittent pain throughout the remainder of 2000 and through much of 2001.
Based on a physician's note, Hall was absent from work from July 26 through July 30, 2001, because of back pain. (Ex. 30B)
Hall returned to work on or about July 30, 2001, with a note from her physical therapist that outlined several work restrictions (Ex. 30C). Hall gave this note to her immediate supervisor, Dwight Wagoner, who in turn gave it to EGS's occupational nurse, Heidi Benne. Later that day, Wagoner escorted Hall to Benne's office, and Benne provided Hall with a blank Duty Status Report form that Benne told Hall was to be completed by Hall's physician, and then returned to Benne. Benne also told Hall that she could not return to work until she had been released to return to work without restrictions by her physician.
On August 1, 2001, Hall told Benne during a telephone conversation that Hall's physician anticipated that she would return to full duty work on August 6, 2001 (Ex. 30A(4)).
The next day, Benne wrote to Wagoner and Dan Barber, EGS's Human Resource/Safety Coordinator, via e-mail:
"I received a call from Lori Hall yesterday. She said that her doctor had taken her off of work until Monday when she will be re-evaluated. She will not return before Tuesday, August 7th. She will bring in her documentation today stating that she needs to be off of work and knows that she must be cleared by Dan or I before she can clock in and return to work on Tuesday. . . ." (Ex. 17).
Hall returned the physician-completed Duty Status Report as promised. (Ex. 30A4)
Dan Barber had responsibility for processing all FMLA requests during the relevant time. On August 6, 2001, Hall did not return to work, but left a voice mail message for Barber telling him that she needed medical leave and asking him to send her an FMLA application. Hall also left voice messages for her former supervisor, Harry Dilfer, who had temporarily transferred to another shift, and for Benne, requesting an application for short term disability ("STD") benefits. At the time, Benne administered the STD program for EGS
Immediately upon receiving Hall's verbal request for FMLA, Barber sent an application for FMLA leave, by certified mail, to Hall. Hall received the application on August 7, 2001. In the cover letter, Barber wrote, in part: "Please complete and return this form to us no later than August 15, 2001." (Ex. 159) The application identified the medical leave start date as August 1, 2001. Barber initially marked August 6, 2001, as the start date, but later crossed out that date and inserted August 1, 2001. (Ex. 31A)
At Benne's request, Barber sent Hall an application for STD benefits at the same time he sent the FMLA application. If Hall had been found eligible for short term disability benefits, she would have been entitled to 26 weeks of temporary disability benefits.
On Wednesday, August 8, 2001, Wagoner inquired of Barber and Benne, via e-mail, whether they had heard from Hall. Wagoner stated, "We do not know her status. Harry has done some work on absenteeism for Lori. She is due for a written warning, unless there are some circumstances which we are not aware of." (Ex. 160).
Barber responded to Wagoner's e-mail, either on the same day or the following day. Barber's response stated:
"I received a voice mail from her on Monday, 8/6/01, stating that she wanted to request FMLA. I have sent, via certified mail, a request to her home address, with a suspense of one week to return the request to me. However, request [sic] FMLA or anything else, DOES NOT preclude the employee from following all the normal Company Policies and Procedures pertaining to absences and notification procedures, until such time as the FMLA is approved. The team leader/supervisor is given/sent a copy of documents I do for employees on FMLA. They can follow the process from start to finish by these documents. Of course, at any time they can call me or Heidi to clarify an issue or ask questions. I have not heard from [her] since Monday's voice mail. Let me know if you have a[ny] further questions. Dan Barber" (Ex. 160).
On August 9, 2001, Hall went to her physician, Ronald Klutman, M.D., for treatment. Because Hall was unable to get out of her friend's vehicle at the medical clinic, Dr. Klutman came to the vehicle to assess Hall's physical condition. Dr. Klutman telephoned a prescription for pain medication to Hall's pharmacy. During that visit, Hall gave Dr. Klutman the STD physician's certification to complete.
On Monday, August 13, 2001, Dr. Klutman certified Hall's STD application. On August 15, 2001, Hall delivered the certification to EGS, as well as her application for FMLA leave. On August 16, 2001, Benne faxed Hall's application for short term disability benefits and Dr. Klutman's certification to EGS's short term disability insurance carrier.
It is undisputed that after August 6, 2001, when Hall left voice messages at EGS, and until Hall personally delivered her FMLA application to EGS on August 15, 2001, no one at EGS had contact with Hall.
Hall did not call EGS on August 7, 8, 9, 10, or 13, and no one from EGS called Hall to inquire about her physical condition.
Jeff Hess, the Director of EGS Human Resources, generally instructed EGS's human resources employees, including Barber, not to contact any employees when they were absent, except in case of emergency. Hess's stated reason was that if the company representatives called to inquire about one employee's status, then, to be fair, they would have to do it for all employees, and that would impose too great a burden on the human resources employees.
EGS had a long-standing policy, referred to as the "three-day, no-call, no-show rule" that provided for the termination of any employee who was absent from work for three consecutive days and did not call the supervisor or the human resources department with an explanation. After three consecutive days, the employee was deemed to have abandoned his or her job, and the termination was considered a voluntary resignation. If an EGS employee's leave were approved under the FMLA, EGS's policy was that the employee was required to call in every 30 days with a status report. This written policy was found on the back of the FMLA application. (Ex. 31A, page 2)
If an employee requested leave under the FMLA, and the application was pending but not approved, EGS's policy was that the general call-in requirement applied and that employees were required to call in every day that was not otherwise covered by a physician's note. EGS had no written policy informing its employees that the general call-in requirement specifically applied to them even after they had notified the company that they were requesting leave under the FMLA. This verbal policy had exceptions — for example, if the employee's absence was otherwise covered by a physician's note or in the case of an emergency.
The employees' responsibility to make daily contact pending approval of an unforeseeable request for leave under the FMLA was not addressed is EGS's Family and Medical Leave Act Policy (Ex. 24).
Exhibit 23 was the EGS Attendance Policy (other versions are contained in the handbooks, Exs. 18 and 20). The "Medical Leave of Absence" portion of EGS's Attendance Policy was separate from the call-in requirement, and there is no mention of the need to make daily contact with EGS in the medical leave portion. That Medical Leave of Absence Policy states: "Employees who are absent for reasons of illness or injury for more than five days will be placed on a medical leave of absence. In order to return to work, employees on medical leave of absence must present to the plant nurse a medical release from their physician." (Ex. 23)
As the human resources manager, Barber took it upon himself to meet with Wagoner to discuss Hall's absences and her termination. Before he talked to Wagoner about Hall's possible termination, Barber asked Benne and Dilfer whether they had heard from Hall since August 6, 2001, and they said they had not. When he met with Wagoner, who had previously informed Barber that Hall might be due for a written warning unless there were circumstances that he did not know, Barber informed Wagoner that Barber, Dilfer, and Benne had not heard from Hall. Barber recommended that Hall be terminated based on her violation of EGS's three-day, no-call, no-show policy. Wagoner agreed.
Barber took the recommendation to fire Hall to his supervisor, Hess. Hess approved the termination.
On August 13, 2001, Barber prepared and mailed a letter of termination to Hall. (Ex. 25). The letter, postmarked August 14, 2001, and sent by certified mail, return receipt requested, was delivered to Hall's residence on August 15, 2001. Her mother, Pat Galley, signed for it. The letter stated that due to Hall's failure to report to work for three consecutive working days and her failure to contact EGS consistent with the call-in policy, she was considered to have voluntarily resigned her position with EGS effective August 13, 2001. The letter does not mention her request for medical leave under the FMLA.
On August 15, 2001, Dr. Klutman examined Hall again and found that her pain in her back had worsened. Dr. Klutman stated that he did not know at the time he examined her that she had been terminated from EGS. Following that examination, Dr. Klutman projected a return to work date of September 3, 2001. (Ex. 35, Dr. Klutman Deposition at Ex. 4). Hall received the letter of termination on August 15, 2001, when she returned home after delivering her FMLA application to EGS.
Hall's pain did not diminish. She was treated by Dr. Klutman's partner, Kipton Anderson, M.D., on August 24, 2001. Hall testified that her pain continued.
Hall saw a medical specialist, Dr. Smith, in Omaha, Nebraska, on September 10, 2001. He prescribed a new medication, Viox, which Hall said helped her back "tremendously." She said that after taking Viox, she was able to walk, straighten up, bend, twist, and turn. She said her condition continued to get better throughout September. In Hall's opinion, she could have performed her job at EGS by October 24, 2001. After September 10, 2001, Hall did not seek treatment for her low back pain again in 2001.
Hall's medical leave under FMLA would have concluded, at the latest, on October 24, 2001.
The Court finds that Hall could have performed her job at EGS by October 24, 2001.
After Hall was terminated by EGS on August 13, 2001, she did not apply for any employment during the remainder of calendar year 2001.
Hall did not seek other employment following her termination because she was "down" and not feeling good about herself because she had been terminated, had been unable to provide for her children, and had lost her health insurance. She also testified that she had sought very few jobs in her adult years.
The Court finds that the combination of her depressed mental and emotional state, her inexperience in seeking employment, and her lack of job skills combined and contributed to her failure to conduct an adequate job search in a timely manner.
Hall collected unemployment benefits, and she received her first benefit check on or about January 30, 2002. Her weekly benefit was $204, and she was paid through approximately October 17, 2002. (Exs. 182 and 34). Hall's only sources of income during the period after August 15, 2001, and before she became employed again in November 2002, were Supplemental Security Income (SSI) for her daughter, child support, and unemployment benefits.
Hall applied for work with only a handful of employers in calendar year 2002. The earliest employment applications she completed (for Wal-Mart and Dollar General) that are dated June 10, 2002. (Exs. 176 and 177).
Following her deposition, on July 30, 2002, Hall returned to Dr. Klutman and obtained from him a release to return to full-time work without medical restrictions.
Hall became employed at American Building Maintenance on November 22, 2002, at $7.50 per hour for a 40-hour week.
Issues Presented at Trial
The issues presented at trial included whether EGS interfered with, denied, or restrained Hall's exercise or attempt to exercise her right to family and medical leave under the FMLA by firing Hall for violation of EGS's attendance policy while Hall's application for FMLA was pending. For the reasons that follow, the Court concludes that EGS did interfere with Hall's rights under the FMLA. The other issues presented at trial were whether Hall is entitled to damages, and, if so, in what amount.
FMLA CLAIM
Hall brought this suit pursuant to Title
29 U.S.C. § 2601 et seq. (Family and Medical Leave Act).
FMLA allows eligible employees to take up to a total of 12 workweeks of leave per year under various circumstances, including when a "serious health condition" renders the employee unable to perform her job.
29 U.S.C. § 2612(a)(1)(D).
Hall was an eligible employee under the FMLA.
The Eighth Circuit Court has found that claims under the FMLA, excepting claims based on retaliation, "do not depend on discrimination." Rankin v. Seagate Technologies, Inc.,
246 F.3d 1145, 1148 (8th Cir. 2001), reh'g en banc denied, quoting Diaz v. Fort Wayne Foundry Corp.,
131 F.3d 711, 712 (7th Cir. 1997). Consequently, the Eighth Circuit Court has held that the McDonnell Douglas burden-shifting analysis should not be used to analyze substantive, entitlement-type FMLA claims.
Though it was not clear based on the evidence and briefs submitted in connection with EGS's motion for summary judgment, the parties conceded at the conclusion of trial that Hall's claims alleged that EGS interfered with Hall's right to medical leave under the FMLA and not that EGS retaliated against her.
The Eighth Circuit Court, in the case of an employee claiming entitlement to leave under the FMLA, has applied an objective test in determining whether the employee was suffering from a serious health condition. See Rankin,
246 F.3d at 1148. Under that objective test, to demonstrate that she suffered from a serious health condition, Hall was required to prove (1) that she had a "period of incapacitation requiring absence from work," (2) that this period of incapacity exceeded three days, and (3) that she received continuing treatment by a health care provider." Id.
Hall proved by a preponderance of the evidence that she had a serious health condition under the FMLA.
Hall alleges that EGS interfered with her rights under the FMLA because it fired her before she was able to obtain FMLA leave that EGS knew she was seeking. In its defense, EGS contends that the FMLA, the federal regulations that relate to it, and case law interpreting it, require that an employee abide by the customary rules and policies of an employer, even while the employee may be on FMLA leave.
EGS fired Hall because she violated EGS's three-day, no-call, no-show rule.
Whether EGS's application of its three-day, no-call, no-show rule under the circumstances presented here constitutes an unlawful interference with Hall's substantive rights under the FMLA is at the heart of this case.
Two federal regulations relating to the application of the FMLA, state as follows
An employer may also require an employee to comply with the employer's usual and customary notice and procedural requirements for requesting leave. For example, an employer may require that written notice set forth the reason for the requested leave, the anticipated duration of the leave, and the anticipated start of the leave. However, failure to follow such internal employee procedures will not permit an employer to disallow or delay an employee's taking FMLA leave if the employee gives timely verbal or other notice.
29 C.F.R. § 825.302(d);
and
When the leave is foreseeable and at least 30 days notice has been provided, the employee should provide the medical certification before the leave begins. When this is not possible, the employee must provide the requested certification 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 it is not practicable under the particular circumstances to do so despite the employee's diligent, good faith efforts.
29 C.F.R. § 825.305(b).
Under the FMLA, the employer's duties are triggered when the employee provides enough information to put the employer on notice that the employee may be in need of FMLA leave. Browning v. Liberty Mut. Ins. Co.,
178 F.3d 1043, 1049 (8th Cir. 1999). The employee need not specifically mention FMLA leave, but must state that leave is needed, and the statement should be made within one or two business days.
29 C.F.R. § 825.303.
The Court concludes that Hall provided sufficient information to put EGS on notice that she was in need of medical leave under the FMLA as of August 6, 2001. Hall did not foresee the need to request medical leave under the FMLA before August 6, 2001. When she realized she would require medical leave, she contacted Barber to request the FMLA application, and she did so before the date she was expected to return to work based on the Duty Status Report. Barber gave her 15 days from August 1, 2001 — the date that he decided to use as her medical leave start date — to return her application for FMLA to him.
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 Act.
29 U.S.C. § 2615(a)(1). The Court concludes that Hall has shown by a preponderance of the evidence that EGS interfered with Hall's right to medical leave under the FMLA when it terminated her employment based on a violation of its three-day, no-call, no-show rule on August 13, 2001, just two days before her deadline to return the FMLA application.
EGS never made clear to Hall its requirement that she continue to call in even after she notified them of her need for medical leave. While the three-day, no-call, no-show rule is stated in both handbooks, the rule's application during the pendency of an FMLA request for an unforeseeable leave is unclear. No one told Hall on August 6, 2001, or at any time between August 6, 2001, and the date of her termination, that she was still required to call her supervisor or human resources representative daily. Rather, Hall was expressly informed that she could not return to work until she was released from her restrictions by a physician; she was expressly informed in the correspondence from Barber that she had until August 15, 2001, to submit her application for leave under the FMLA; and she was notified on the back of the FMLA application itself that she needed to call in every 30 days after her leave began. Barber decided that the start date on her application should be August 1, 2001. Because EGS's human resources representative told Hall that she had until August 15 to submit the application, the Court concludes that EGS's decision to terminate her on August 13, for a reason that bears some relationship to the request for FMLA, constitutes unlawful interference with her substantive rights.
EGS contends that case law supports an employer's right to require its employees follow the company's rules and regulations, citing Browning,
178 F.3d at 1049. The facts in Browning, however, are easily distinguished from the circumstances presented here. The employee, Browning, returned to work following a workers' compensation leave. Within a few days of her return, on June 5, Browning's sister called Browning's employer to state that Browning would not be in that day. Browning did not call in for the remainder of the week. The employer called Browning's physician twice that week and learned that Browning's restrictions had not changed and that she continued to be released to return to work. Because Browning failed to call in for more than three days, the employer fired her on June 9. Because Browning had not informed her employer that she was seeking leave under the FMLA, the Eighth Circuit Court found that "a reasonable jury could easily conclude . . . that Browning failed to give sufficient information to [her employer] such that [her employer] would be on notice that her situation qualified for FMLA leave." The same cannot be said relative to Hall. Hall had been out of work for one week with back pain that was supported by a physician's note before she requested FMLA leave. On August 6, she requested leave under FMLA. Barber understood the nature of her request. He sent her an application for leave under the FMLA. Browning relates to the sufficiency of an employee's notice to her employer, but in this case EGS does not dispute that Hall provided sufficient information to put EGS on notice that she was seeking leave under the FMLA.
EGS also relies on Gilliam v. United Parcel Service, Inc.,
233 F.3d 969 (7th Cir. 2000), for the proposition that "[n]othing in the FMLA or the implementing regulations prevents an employer from enforcing a rule requiring employees on FMLA leave to keep the employer informed about the employee's plans." Id. at 972. Gilliam involved the discharge of an employee who had taken a foreseeable leave associated with childbirth, but then failed to follow the rules set out in a collective bargaining agreement regarding the employee's obligation to notify the employer of his anticipated return date. The Seventh Circuit Court noted that neither Gilliam or the union contested the construction of the collective bargaining agreement, and that the Court was compelled to take the parties' construction as established. The district court and Seventh Circuit agreed that, "the FMLA does not provide leave on short notice when longer notice readily could have been given[; n]or . . . does it authorize employees on leave to keep their employers in the dark about when they will return." Id. at 971. In Hall's case, the leave was not foreseeable. Hall notified EGS when she became aware that her condition was not improving and that she required medical leave under the FMLA. She did so before the date that she was expected to have returned to work as stated in Ex. 7. On August 15, 2001, Hall obtained a note from Dr. Klutman that stated Hall's anticipated return-to-work date of September 3, 2001. Hall was not afforded a reasonable opportunity to inform EGS of her return-to-work date because her employment was terminated before her FMLA application was due to be returned.
EGS also argues that Hall cannot show a violation of her rights under the FMLA because she was unable to return to work within 12 weeks and because she did not receive a return-to-work slip until July 2002. EGS cites Cehrs v. Northeast Ohio Alzheimer's Research Center,
155 F.3d 775 (6th Cir. 1998); Soletro v. National Fed. of Indep. Business,
130 F. Supp.2d 906, 911-912 (N.D.Ohio. 2001); and Bellido-Sullivan v. American Int'l Group,
123 F. Supp.2d 161, 168 n. 10 (S.D.N.Y. 2000). However, this Court concludes that Hall was able to return to work within 12 weeks after her leave under the FMLA commenced. In 2001, she last saw a doctor on September 10. She said that she had significant relief from medications that she began taking at that time, and she continued to feel better over time. Hall testified that she believed that she could have performed her job responsibilities by October 24, 2001, the last possible day of her medical leave under FMLA. The Court is persuaded by her testimony in this regard.
The Court acknowledges that Hall testified in her deposition that she did not seek another job in 2001 "because of my back," but this brief and general statement is insufficient, given all the evidence of other reasons she delayed her job search, to completely bar her recovery in this case. Rather, this evidence goes to Hall's failure to mitigate her damages.
To the extent any genuine question remains on the issue, the Court also concludes that in terminating Hall's employment, EGS effectively denied her request for leave under the FMLA, and EGS had no right to require Hall to submit a doctor's certification that she was fit to return to full-time work at the end of what would have been her medical leave under FMLA.
The FMLA provides that upon return from FMLA leave, an employee shall be restored to the position of employment she held when the leave began or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment.
29 U.S.C. § 2614(a)
The enforcement provision of the FMLA provides that any employer who violates § 2615 shall be liable for A) damages equal to the amount of wage, salary, and employment benefits lost to the employee because of the violation, and B) equitable relief as may be appropriate, including employment and reinstatement.
29 U.S.C. § 2617(1)(A) and (B).
The Court concludes that Hall is entitled to damages for back pay, though not for the entire time between October 24, 2001, and November 22, 2002, when she became re-employed. Hall failed to mitigate her damages in any significant manner from October 24, 2001, through June 10, 2002. The Court concludes that Hall is entitled to back pay damages for approximately 24 weeks, from June 10, 2002, through November 22, 2002, at the rate of $10.03 per hour, less the $204 per week she received for unemployment benefits through approximately October 17, 2002.
In addition, from November 22, 2002, through the date of these Findings of Fact and Conclusions of Law, approximately 20 weeks, Hall is entitled to receive back pay representing the difference between what she would have earned if she had been employed at EGS ($10.03 per hour) and what she was paid at American Maintenance Building ($7.50).
Based on this analysis, the Court concludes that Hall is entitled to an award of back pay in the amount of $7,500.
The Court concludes that Hall is not entitled to any damages for the loss of her medical and dental benefits because there was no evidence that she incurred any out-of-pocket expenses related to health care and dental care, and she and her family are currently covered under a Medicaid program.
The Court concludes that EGS is not liable to Hall for liquidated damages. Barber, Wagoner, and Hess, while participating in the process that led to the termination of Hall, were attempting to act "by the book." EGS's decision to fire Hall was bureaucratic and founded upon Hall's violation of the three-day, no-call, no-show rule. The Court concludes, however, that there is no evidence that EGS and its employees acted with malice or with any retaliatory motive in terminating Hall's employment.
Because this is a case where there is no apparent animosity, hostility or rancor between the parties, the Court also shall order that EGS reinstate Hall's employment. See Kucia v. Southeast Ark. Cmty. Action Corp.,
284 F.3d 944, 948-49 (8th Cir. 2002); Cox v. Dubuque Bank Trust Co.,
163 F.3d 492, 498-99 (8th Cir. 1998). The Court will require that EGS reinstate Hall's employment with the company in the position of employment that Hall held on August 1, 2001, when her leave began, or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment. Of course, it is up to Hall whether she will accept this remedy. Hall must decide whether she seeks to be reinstated at EGS and notify Jeff Hess of her decision within 14 days of the date of this order.
For all the reasons provided herein:
IT IS ORDERED:
The Court awards the Plaintiff back pay in the amount of $7,500 plus interest at the prevailing rate of 1.18 percent per year from the date of these Findings of Fact, Conclusions of Law and Judgment;
The Court awards no amount for employment benefits, liquidated damages, or front pay;
Plaintiff's employment at EGS Electric is hereby reinstated; and
To the extent the objections at Filing Nos. 47 and 48 were not ruled upon during the trial, they are denied as moot.