Court won’t reconsider denial of summary judgment to employer who arguably fired worker based on FMLA-qualifying absences

An employer who fired a worker after he received three disciplinary notices, two of which may have been issued based on FMLA-qualifying absences, failed to persuade a Kentucky federal court to reconsider its prior decision denying summary judgment on the employee’s FMLA interference and retaliation claims. The court rejected the employee’s assertion that the employer had access to medical records of his “chronic” back condition through the third-party benefits administrator, but found that triable issues still existed as to whether the employer had notice of his potential need for FMLA leave based on the fact that he called in sick every day, provided other medical records, and was instructed by a manager to return to the doctor to obtain further documentation.

Called in daily.

The employee, who worked at Pella’s manufacturing plant since 2004, allegedly had a history of attendance issues. In June 2014, he suffered an on-the-job back injury and began calling in sick on June 9. He continued to call in every day until he returned on August 26, each time stating that he could not work due to back pain or spasms. He claimed that in doing so, he was following the same procedure as when he was off from work for several days in 2005 due severe gum disease, at which time Pella had sent him FMLA paperwork.

Met with HR.

When he first visited his physician on June 26, he was diagnosed with lumbar and muscle spasms and prescribed multiple medications. He gave the doctor’s note to the HR manager, who provided him with contact information to apply for short-term disability but not FMLA paperwork (the HR manager disputed this, claiming he gave him the FMLA paperwork). The employee applied for short-term disability but his application was denied.

Disciplinary notices.

While he was still out, the employee’s manager advised him to go back to the doctor. On July 31, he saw his doctor, who performed an x-ray that revealed severe arthritis and degenerative disc disease and prescribed multiple medications. When he returned to work in late August, he received two “corrective action letters,” one for failing to report for mandatory overtime during his absence and the other for “excessive absenteeism” from the first day he called out until HR received his doctor’s note. He was required to sign both or be terminated.

Terminated.

About five months later, he was terminated following disputed absenteeism issues that resulted in a third “corrective action letter.” Pella claimed that he had taken six sick days, that some were vacation days, and that one was for personal business. The employee, on the other hand, said that he had only taken off one or two of the days and that the remaining days he was training another employee and had been sent home because he was no longer needed. The company’s attendance records were also inconsistent.

Medical records not needed for notice.

Pella argued that the court erroneously relied on the employee’s July 31 medical records-which contained new diagnoses and described his injuries as chronic-as evidence that it had notice of his FMLA-qualifying condition, since the employee only provided a boilerplate note after the visit. While the court rejected the employee’s unsupported assertion that Pella had knowledge of the medical records through its third-party benefits administrator, it found that it did not matter whether Pella had access to the records. Rather, triable issues still existed as to whether it was notice of his FMLA qualifying condition based on evidence that he repeatedly called in sick due to back injury, provided his June 26 medical records, and was instructed by Pella to obtain further documentation from his doctor.

Indeed, the fact that his manager undisputedly instructed him in July to return to his doctor to obtain medical documentation for his absences created a jury question as to whether he put Pella on notice of its duty to inquire further about whether FMLA leave was being sought. It did not appear that he was told to obtain a certification from his doctor, that he was provided such a form in anticipation of that visit, or that Pella advised him of the consequences of failing to bring a completed certification or adequate medical documentation following the appointment. There was also no evidence that Pella advised him that the generic note he did provide was inadequate.

Wrong standard applied, but no harm no foul.

In denying summary judgment, the court had held that Pella’s assertion that it terminated the employee based solely on his February 2015 absences was insufficient since he disputed whether he missed each of the days and his termination notice referenced all three of his disciplinary letters (thus including the potentially FMLA-qualifying absences). Pella now argued that this analysis was error since its burden was only to produce the reason, not actually persuade the court that the reason motivated its decision. The court agreed, finding it apparently conflated the third and fourth steps of the McDonnell Douglass analysis. However, because its analysis was valid under the pretext prong, it stood by the initial reasoning.

Triable issues on pretext.

Pella also asserted that it terminated the employee based on his 2014 and 2015 absences together over a twelve-month period, which it claimed was a legitimate ground for terminations. However, as the court explained in its prior order denying summary judgment, that reason was “intimately intertwined” with his potentially FMLA-qualifying leave since triable issues existed as to whether it had adequate notice of his alleged need for FMLA leave for those 2014 absences.

Honest belief doctrine. Lastly, the court rejected Pella’s assertion that summary judgment was warranted based on the honest belief doctrine. Even if the company honestly believed the 2014 corrective action letters were warranted, a jury might find that the employee’s 2014 absences were FMLA-qualifying and terminating him based on the 2014 letters violated the FMLA.

SOURCE: West v. Pella Corp., (W.D. Ky.), No. 5:16-cv-00154-TBR-LLK, January 9, 2018.
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