Opinion
Civil Action No. 01-2060-CM.
February 1, 2002
MEMORANDUM AND ORDER
Plaintiff Audeana Connel filed the instant lawsuit against defendant Hallmark Cards, Inc. for retaliation and wrongful termination in violation of Family and Medical Leave Act (FMLA), 29 U.S.C, § 2601 et seq. This matter is before the court on defendant's motion for summary judgment (Doc. 33).
The court construes the facts in the light most favorable to plaintiff as the non-moving party pursuant to Fed.R.Civ.P. 56.
Plaintiff began her employment with defendant in September 1976. From April 2000, until the termination of her employment on November 16, 2000, plaintiff was assigned to work the second shift, 3:30 p.m. to 12:00 a.m., at defendant's plant in Leavenworth, Kansas. Plaintiff's immediate supervisor was Eric Boldridge, who in turn was supervised by Pat McGlinn. Janice Wallace was the Human Resource Manager.
For at least thirteen years prior to plaintiff's termination, plaintiff had been active in 4-H, and she and her family had participated in and attended the Leavenworth County Fair (the Fair), which is held in August each year. Plaintiff's daughters showed animals at the Fair, and plaintiff often talked to her co-workers about her daughters' involvement in 4-H and the Fair. Plaintiff attended the Fair each year from 1994-1999. In the years1994, 1995, 1996, 1997, plaintiff took vacation leave for the week of the Fair. In 1998, plaintiff took vacation leave and VTO for the week of the Fair. In 1999, plaintiff was on FMLA leave from July 19 through October 5, which included the week of the Fair. Plaintiff attended the Fair in 1999 and camped at the fairgrounds. That year, plaintiff's managers learned of complaints from plaintiff's co-workers about plaintiff taking advantage of defendant's FMLA policy by going to the 1999 Fair while on paid FMLA leave.
When production is slow, defendant offers VTO to employees, which is unpaid time off from work that does not count against an employee's attendance record.
At the beginning of August 2000, plaintiff had only four days of vacation remaining for the year. Plaintiff previously had told her supervisor, Mr. Boldridge, that she intended to take vacation time for her daughter's wedding, which was planned for November 4, 2000. She also told Mr. Boldridge that she wanted to take time off for the Fair, but she was not specific about the amount of time or the dates she planned to be away from work.
On August 2, 2000, four days before the Fair began, plaintiff called Mr. Boldridge and told him she would not be in to work that day because she was "sick with a migraine headache and unable to move." Mr. Boldridge commented that he was sorry and guessed plaintiff would miss the Fair. In response, plaintiff said, "Yes, I've been looking forward to it all year." Mr. Boldridge testified that, during that conversation, he was misled into believing that plaintiff would not be attending the Fair because of her health condition. Mr. Boldridge further testified that he took notes of this conversation with plaintiff because he suspected that plaintiff was going to take FMLA leave to attend the Fair.
Defendant provided plaintiff with FMLA paperwork on August 7, 2000. Defendant received plaintiff's FMLA Medical Certification Form on August 15, 2000. The form was completed by plaintiff's treating physician, Dr. Mark Strehlow, and requested FMLA leave from August 2, 2000 through August 25, 2000 for plaintiff's condition of "severe tension headaches with associated cervical spasms." The form further stated that plaintiff was "unable to perform all duties during period of incapacity." Defendant's FMLA Medical Certification Form defines "incapacity" for purposes of FMLA as the "inability to work, attend school, or perform other regular daily activities due to the serious health condition, treatment therefor, or recovery therefrom." Defendant approved plaintiff's request for FMLA leave from August 2 through August 25, 2000. Beginning August 2, plaintiff was being paid pursuant to defendant's short-term disability (STD) policy.
Defendant's STD plan provides for up to six months of paid illness annually for a non-exempt employee with over ten years of service.
Plaintiff camped at the Fair campgrounds during the entire week of the August 2000 Fair and attended Fair activities throughout the week. Specifically, plaintiff attended the Fair on Tuesday, August 8 during the hours of her regularly scheduled work shift. Plaintiff also attended the auction at the Fair on Friday, August 11 during the hours of her regularly scheduled work shift.
Plaintiff was discovered at the Fair on August 8 by Damian Haddock, a section manager. Mr. Haddock testified that he had decided to go to the Fair that year because his neighbor's children were showing animals. Before that day, Mr. Haddock talked with Mr. McGlinn, Mr. Haddock's supervisor, and told Mr. McGlinn that he was going to the Fair and that he would keep an eye out for plaintiff. Mr. McGlinn suggested that Mr. Haddock take the company camera. While at the Fair, Mr. Haddock spotted plaintiff at the Fair and took two photographs of her. The following morning, Mr. Haddock took the film to be developed at the local one hour service and then showed the photographs to Mr. McGlinn, Mr. Boldridge, and Ms. Wallace. All three agreed that plaintiff's attendance at the Fair warranted further investigation.
At Ms. Wallace's direction, Mr. Boldridge contacted plaintiff on August 14 and directed plaintiff to come in to meet with Ms. Wallace. Ms. Wallace testified that, at the meeting, plaintiff admitted that she had attended the Fair on the evening of August 11 and for a short time on August 12 but denied attending the Fair on any evening other than August 11 and denied camping at the fairgrounds. Ms. Wallace memorialized the conversation in a memo to the file. Plaintiff denies that she met with Ms. Wallace on August 14, 2000 and further denies the contents of the meeting as testified to by Ms. Wallace. In her response brief, plaintiff contends that the meeting with Ms. Wallace occurred on August 21. In her deposition, plaintiff testified that she was not sure exactly what she said to Ms. Wallace during the meeting but that she did remember telling Ms. Wallace she was at the Fair on Friday (August 11). Plaintiff further testified that she did not think she misled Ms. Wallace into thinking that she (plaintiff) did not spend the night at the Fair but instead merely told Ms. Wallace that she "was down and watched [her daughters] participate." However, plaintiff admits in her statement of facts that the investigation revealed that plaintiff said she only attended the Fair on August 11 and that she told Ms. Wallace that she did not camp at the Fair.
For support, plaintiff cites to "plaintiff's Exhibit 15." The court notes that there is no exhibit numbered "15" attached to plaintiff's response. Rather, plaintiff's exhibits range in number from one to fourteen. However, plaintiff's exhibit "14" is a declaration by plaintiff in which she denies having talked with Ms. Wallace on August 14 and states that she does "not recall" having told Ms. Wallace that she was not at the fair on August 8 or that she had been camping. The court will presume that plaintiff mistakenly referred to exhibit "15" when in fact she was referring to exhibit "14."
On August 15, 2000, Debora Harlow, the nurse at defendant's Leavenworth plant, requested Dr. T.J. Kloiber, director of defendant's medical department, to conduct an STD evaluation. Nurse Harlow made this request pursuant to defendant's policies and based on plaintiff's stated condition (tension headaches) on her FMLA certification form, the length of her requested leave (approximately one month), and given that defendant knew that plaintiff had gone to the Fair while on leave.
Debora Harlow is responsible for determining whether employees' requests for FMLA leave are approved or denied.
Dr. Kloiber plays no role in determining whether an employee's request for FMLA is granted or denied. Rather, Dr. Kloiber recommends whether an employee should be paid for leave pursuant to defendant's STD plan. Dr. Kloiber reviews medical information from the employee's doctor and compares the information to guidelines to determine the expected time of disability. Dr. Koibler can then recommend to the human resource department to stop STD pay and obtain a third party evaluation.
In response to nurse Harlow's request, Dr. Kloiber called Dr. Strehlow's office on August 15 to determine whether plaintiff's medical condition warranted further payment of STD. Dr. Kloiber talked to nurse Libby Ling, who advised that plaintiff may have a herniated disc and would undergo an MRI and start physical therapy. Dr. Kloiber used the diagnosis of herniated pulposus to check the guidelines for the recommended time of disability. Dr. Kloiber testified that, according to the guidelines, plaintiff was at optimum time for return to work for sedentary duty after eight days and for light duty after fourteen days. He concluded that plaintiff should have been able to perform light duty on August 15. Dr. Kloiber decided at that time that STD pay could be stopped on August 15 and the matter should be sent to a third party for review. Then, by letter dated August 15, 2000, Dr. Kloiber wrote to Dr. Strehlow in an attempt to find out from Dr. Strehlow whether it would be appropriate for plaintiff to return to light duty work given her condition. Dr. Strehlow, however, never responded to Dr. Kloiber's letter.
Defendant determined that plaintiff's FMLA leave could continue until August 25 but that her STD pay should be terminated. Plaintiff was informed of this decision by Ms. Wallace on or about August 15.
On August 16, 2000, plaintiff returned to work. In plaintiff's exhibit "14," plaintiff asserts that, on that day, Mr. Boldridge called her at home and told her to come to work in half an hour if she wanted to keep her job. Plaintiff in fact worked that day and was given light duty. Plaintiff did not provide, and defendant did not require from plaintiff, a fitness for duty release, which the FMLA form requires when an employee is returning to work after being on FMLA leave. With respect to the next day, there is conflicting evidence in the record as to whether plaintiff worked. Plaintiff then worked light duty the weeks of August 21 and August 28. She took a vacation day on September 6 and 7, and requested and was granted another paid FMLA leave until September 25, at which time she was authorized to return to work light duty for half days the following month.
In the meantime, Ms. Wallace continued her investigation. Ms. Wallace wanted to know whether plaintiff had any medical restrictions that would have prevented her from going to the Fair or camping. Pursuant to a request from nurse Harlow, Dr. Kloiber called Dr. Strehlow's office again on August 17 and left a voice mail message inquiring whether plaintiff had any medical restrictions that would have prevented her from going to the Fair. On August 22, 2000, Ms. Ling spoke with Dr. Kloiber on the telephone. Both Dr. Kloiber and Ms. Ling testified that Ms. Ling told Dr. Kloiber that Dr. Strehlow stated that he (Dr. Strehlow) did not tell plaintiff that she could go to the Fair or camping. However, Dr. Kloiber testified that Ms. Ling also stated that Dr. Strehlow felt that plaintiff could not do so with a severe headache, while Ms. Ling testified that she said plaintiff probably wouldn't be at the Fair if she had a severe headache. Dr. Kloiber memorialized his version of the conversation in a written note.
Dr. Kloiber reported by e-mail dated August 23 to nurse Harlow that Ms. Ling said "he did not tell her she could go to the fair" and that "my [Dr. Kloiber's] understanding is that if her headache were bad enough to be off work then it is too bad to be at the fair." Nurse Harlow forwarded Dr. Kloiber's e-mail to Ms. Wallace. Based on Dr. Kloiber's e-mail, plant management believed that if plaintiff's headache was too bad to be at work, then it was too bad to attend the Fair.
Mr. Boldridge formally recommended the termination of plaintiff's employment on September 29, 2000. The stated reason for the termination recommendation is "fraud." More specifically, defendant sets forth that the reasons for terminating plaintiff's employment were 1) misleading her supervisor, Mr. Boldridge, when she spoke to him on August 2 by telling him that she was so sick she couldn't move and that she would miss the Fair because of her condition; 2) lying to Ms. Wallace when plaintiff stated that she had not attended the Fair on any other evening besides August 11 and that she had not camped at the Fair; 3) attending the Fair even though plaintiff's doctor had not authorized such an outing; and 4) attending the Fair while claiming to be too sick to work. Plaintiff's termination became effective on November 16, 2000.
II. Standards
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact"and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Id. (citing Anderson, 477 U.S. at 248).
The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Id. at 670-71. In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. Id. at 671 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256; see Adler, 144 F.3d at 671 n. 1 (concerning shifting burdens on summary judgment). The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Anderson, 477 U.S. at 256. Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Adler, 144 F.3d at 671. "To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein." Id.
Finally, the court notes that summary judgment is not a "disfavored procedural shortcut;" rather, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action." Celotex, 477 U.S. at 327 (quoting Fed.R.Civ.P. 1).
III. Discussion
The FMLA requires that eligible employees be given twelve weeks of leave during any twelve month period because of a "serious heath condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612(a)(1)(D). The FMLA also provides for certification requirements to enable an employer to verify the existence of a serious health condition. Id. § 2613. Employers are specifically prohibited from interfering with an employee's rights under the FMLA or discriminating against an employee who has exercised such rights. Id. § 2615(a).
At issue in this case is whether defendant terminated plaintiff's employment in retaliation for plaintiff's taking of FMLA leave. When evaluating a retaliation claim under the FMLA, this court must first determine whether the plaintiff has presented direct evidence of retaliatory intent. Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 n. 3 (10th Cir. 1997). If no direct evidence of retaliatory intent is presented, this court must apply the burden shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Richmond v. ONEOK, Inc., 120 F.3d 205, 208-9 (10th Cir. 1997).
A. Direct Evidence
Plaintiff claims that she has direct evidence of retaliatory intent. Direct evidence is "'[e]vidence, which if believed, proves [the] existence of [a] fact in issue without inference or presumption.'" Shorter v. ICG Holdings, Inc., 188 F.3d 1204, 1207 (10th Cir. 1999) (citing Black's Law Dictionary 460 (6th ed. 1990)). For example, direct evidence can be oral or written statements on the part of a defendant showing a discriminatory motivation. Kendrick v. Penske Transp. Servs., 220 F.3d 1220, 1225 (10th Cir. 2000). However, such evidence must speak directly to the alleged discriminatory intent.
Contrary to her assertion, plaintiff has failed to produce any direct evidence of discrimination. Plaintiff contends that, although defendant's managers did not state outrightly that plaintiff was fired for exercising her rights under FMLA, "they did admit time and again about it as having weighed heavily in their decision-making process." In essence, plaintiff argues that defendant terminated her employment because she took FMLA leave. But the fact that defendant terminated plaintiff's employment for events that occurred while plaintiff was on FMLA leave does not necessarily mean that defendant fired her because she took FMLA leave. Upon review of the record, the court finds no statement by any of defendant's managers that plaintiff's exercise of her FMLA rights was a factor in her discharge. Rather, defendant's managers stated time and again that it was plaintiff's misuse of her FMLA leave and her subsequent dishonesty that were factors in her discharge. Having found no direct evidence of retaliation, the court turns to the burden shifting analysis of McDonnell Douglas.
B. Burden Shifting Test
Under the McDonnell Douglas framework, in order to survive summary judgment, plaintiff must first establish a prima facie case of discrimination. If plaintiff establishes a prima facie case, the burden shifts to the employer to offer a legitimate, nondiscriminatory reason for its employment decision. If the employer comes forward with a nondiscriminatory reason for its actions, the burden then reverts to the plaintiff to show a genuine dispute of material fact as to whether the proffered reason for the challenged action is pretextual.
To establish a prima facie case, a plaintiff must show 1) she availed herself of a protected right under the FMLA; 2) she was adversely affected by an employment decision; and 3) there is a causal connection between the two actions. Morgan, 108 F.3d at 1325. Defendant assumes, for purposes of this motion, that plaintiff may state a prima facie case. As such, the burden shifts to defendant to offer a legitimate, nondiscriminatory reason for terminating plaintiff's employment.
Defendant has articulated at least two legitimate, nondiscriminatory reasons for its decision to terminate plaintiff's employment. The first reason is defendant's belief that plaintiff had been using FMLA leave for non-FMLA purposes. On August 2, plaintiff called Mr. Boldridge and told him she was so sick with a headache that she could not move. Based on that conversation, Mr. Boldridge believed that plaintiff would not be attending the Fair because of her health condition. The following week, plaintiff attended the Fair and camped at the fairgrounds. Plaintiff was photographed at the Fair on the evening of August 8, during her regularly scheduled work shift. Defendant then found out, through conversations between Ms. Ling and Dr. Kloiber, that Dr. Strehlow stated that he (Dr. Strehlow) did not tell plaintiff that she could go to the Fair or camping. Defendant argues that it relied in good faith on this information in determining that plaintiff's conduct was inconsistent with her doctor's advice and that, if plaintiff was well enough to attend the Fair, then she was well enough to work. The court concludes that abuse of FMLA leave constitutes a legitimate, nondiscriminatory reason for plaintiff's discharge. Stonum v. U.S. Airways, Inc., 83 F. Supp.2d 894, 900 (S.D.Ohio 1999).
The second reason defendant contends it terminated plaintiff's employment was because, defendant asserts, plaintiff lied when she told Ms. Wallace that she had not gone to the Fair on any evening but August 11 and that she had not camped at the fairgrounds. It is uncontroverted that plaintiff in fact attended the Fair on August 8, 11, and 12, and camped at the fairgrounds throughout the week. Plaintiff's dishonesty may constitute a legitimate, nondiscriminatory reason for plaintiff's discharge. Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1399-1400 (10th Cir. 1997).
Because defendant has come forward with nondiscriminatory reasons for its actions, the burden reverts to plaintiff to show a genuine dispute of material fact as to whether defendant's proffered reasons are pretextual. "A plaintiff can demonstrate pretext by showing weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's reasons for its action, which a reasonable factfinder could rationally find unworthy of credence." Richmond, 120 F.3d at 209.
Plaintiff argues that defendant went on a "witch hunt" to catch her at the Fair and that such conduct shows that defendant's alleged legitimate reasons for her termination were pretextual. Defendant admits that it was suspicious that plaintiff would use her FMLA leave to go to the Fair. At the time plaintiff phoned Mr. Boldridge to request FMLA leave, defendant knew that plaintiff went to the Fair every year and that she went to the Fair in 1999 while on paid FMLA leave. Defendant also knew that in August 2000 plaintiff had only four days of vacation remaining for the year and had plans to take vacation for her daughter's wedding in November. The fact that defendant was suspicious or that its suspicions were confirmed does not raise an inference that defendant acted with a retaliatory motive. To establish a question of fact as to defendant's motive, plaintiff would have to point to evidence in the record suggesting that defendant investigated her merely because she took FMLA leave. Kariotis v. Navistar Int'l Transp. Corp., 131 F.3d 672, 677 (7th Cir. 1997). Plaintiff has failed to produce such evidence. To the contrary, defendant reasonably suspected that plaintiff intended to misuse her FMLA leave and, accordingly, conducted an investigation into the matter. The investigation, which included photographing plaintiff at the Fair, does not raise a question of fact as to pretext. Gibbs v. G.D. Searle Co., 1996 WL 450760, at *8 (N.D.Ill. 1996) (holding that employer's decision to arrange video surveillance did not raise inference of pretext to conceal retaliatory motive).
Plaintiff's argument that she was "trapped" into some denial or inconsistency is similarly unavailing. Plaintiff asserts that the reason for the meeting between her and Ms. Wallace was to set plaintiff up to give some answer that could be used for plaintiff's termination. However, the court views such a meeting as important to the investigation by allowing plaintiff to tell her side of the events. Whether Ms. Wallace withheld information about the fact that defendant had a photograph of plaintiff at the Fair is irrelevant. It was plaintiff's decision to be untruthful regarding the evenings she attended the Fair, and Ms. Wallace's questioning of plaintiff cannot be viewed as retaliatory.
Plaintiff further argues that defendant attempted to "build-up a file" to justify her termination and that this suggests retaliatory motive. In support of her argument, plaintiff points to the fact that Dr. Kloiber made additional contact with Dr. Strehlow's office inquiring about plaintiff's restrictions after Dr. Kloiber already had decided to stop plaintiff's STD pay. In his deposition, Dr. Kloiber stated that his further inquiries had nothing to do with FMLA but rather he was trying to find out medical restrictions as they may have related to plaintiff's STD pay. Plaintiff's FMLA leave already had been approved, but it was Dr. Kloiber's responsibility to assess whether plaintiff should be paid for the entirety of that approved leave. Dr. Kloiber testified that he made further contact with Dr. Strehlow because additional medical information could have changed his decision to stop plaintiff's STD pay. However, plaintiff points out that, had Dr. Kloiber determined plaintiff was eligible for STD pay, finding restrictions could have changed his mind. But because Dr. Kloiber already had decided plaintiff was ineligible for STD pay, obtaining additional information on further restrictions would not provide any reason to change his mind. Thus, a reasonable finder of fact could conclude that Dr. Kloiber's stated reason for obtaining additional medical information after August 15 — that he was trying to find out restrictions merely for STD purposes — is unworthy of belief.
Plaintiff next argues that stopping plaintiff's STD pay was intended to punish her for being at the Fair while on FMLA leave. Plaintiff asserts that defendant's decision to stop plaintiff's STD pay creates an inference that defendant intended to force plaintiff back to work, thereby destroying Dr. Strehlow's FMLA excuse by means of an opinion by defendant's own doctor.
The FMLA provides twelve weeks of unpaid leave during any twelve month period because of a serious heath condition. 29 U.S.C. § 2612(a), (c). In this case, defendant approved plaintiff's request for FMLA leave. However, pay for FMLA leave is not automatic. Rather, the leave must qualify for pay under defendant's STD policy. The law allows for an employer to administer its own temporary disability plan and further provides that, if the requirements to qualify for an employer's temporary disability plan are more stringent than those of FMLA, the employee must meet the more stringent requirements of the employer's plan to receive payments. 29 C.F.R. § 825.207(d)(1).
Given plaintiff's condition as described on her FMLA form, the length of the requested leave, and defendant's knowledge that plaintiff had attended the Fair while on leave, nurse Harlow requested an STD pay evaluation. As part of the evaluation, Dr. Kloiber sought information on August 15 from Dr. Strehlow's office and learned that plaintiff had tension headaches and that she might have had a cervical disk problem. The disability guidelines provided that fourteen days was an optimum recovery period for this condition. Interestingly, had Dr. Kloiber relied on the guidelines for the condition of tension headaches as stated in plaintiff's FMLA Certification Form, the optimum length for recovery would have been two days. In any event, Dr. Kloiber determined that plaintiff's STD pay should be stopped at fourteen days. Dr. Kloiber then sought by letter Dr. Strehlow's opinion regarding plaintiff's return to work, but Dr. Strehlow never responded. Defendant's decision to stop plaintiff's STD pay falls squarely within the letter of the law. However, defendant's decision, while lawful, could be viewed by a fact finder as evidence that defendant intended to interfere with plaintiff's exercise of her FMLA rights.
Plaintiff further contends that stopping plaintiff's STD pay was intended to force her back to work in violation of defendant's own policies with respect to obtaining a fitness for duty release. Foremost, defendant argues, and the court agrees, that stopping plaintiff's STD pay did not "force" her back to work. Rather, it was plaintiff's choice to return to work. In any event, defendant's policies provide that an employee who has been off work for more than five days must bring a fitness for duty release before returning to work. Defendant contends that allowing plaintiff to come back to work without a doctor's release was a benefit since it relieved plaintiff of the need to provide a release when she obviously was able to work. On the other hand, because defendant chose not to follow its own policy in allowing plaintiff to return to work without a release, a finder of fact could infer that defendant disregarded its policy so that plaintiff would have to return before her FMLA leave was over if she wanted to be paid. Viewing the facts in the light most favorable to plaintiff, the court finds that letting plaintiff return to work before her FMLA leave expired without a doctor's release may raise an inference of retaliation.
Plaintiff does contend that on August 16 Mr. Boldridge called her at home and told her to come to work in half an hour if she wanted to keep her job. However, for support, plaintiff relies on her declaration. The declaration, which is in fact merely a statement signed by plaintiff, is not sworn, nor is it subscribed by plaintiff as true under penalty of perjury. The court finds that, because plaintiff offers no other support in the record, the testimony presented in plaintiff's unsworn declaration is not sufficient to establish a genuine issue of fact regarding whether Mr. Boldridge threatened plaintiff to come back to work.
Plaintiff also argues that defendant used the STD process to circumvent the FMLA's procedures for obtaining a second medical opinion. The court declines to reach the merits of plaintiff's argument since plaintiff has presented evidence to get past summary judgment.
The court does not suggest that, standing alone, each of defendant's particular actions would be enough to demonstrate pretext. However, in evaluating the totality of the circumstances here, the court believes that, in drawing all inferences favorably to the non-moving party, plaintiff has presented enough evidence to survive summary judgment.
IT IS THEREFORE ORDERED that defendant's motion for summary judgment (Doc. 33) is denied.