Opinion
Civil No. 3:03-CV-1716-H.
May 20, 2004
MEMORANDUM OPINION AND ORDER
Before the Court are Defendant Carrier Refrigeration Corporation's (incorrectly named "Tyler Refrigeration Corporation") ("Carrier's") Motion for Summary Judgment against Plaintiff Julie Sherrouse ("Sherrouse"), filed March 12, 2004; Sherrouse's Response, filed April 2, 2004; Defendant's Reply, filed April 16, 2004; and Defendant's Supplemental Motion for Summary Judgment, filed April 7, 2004. Also before the Court are Sherrouse's Motion for Partial Summary Judgment (on the issue of liability) against Carrier, filed March 18, 2004; Defendant's Response, filed April 7, 2004; Defendant's Objections and Motion to Strike Plaintiff's Evidence, filed April 7, 2004; the Plaintiff's Reply thereto, filed April 16, 2004; and Defendant's Objections and Motion to Strike Plaintiff's Evidence, filed April 16, 2004. Upon review of the pleadings, briefs, and relevant authorities, the Court is of the opinion for the reasons stated below that Defendant's Motion for Summary Judgment should be GRANTED; Plaintiff's Motion for Summary Judgment should be DENIED; Defendant's Supplemental Motion for Summary Judgment and both Objections and Motions to Strike are TERMINATED as moot.
I. BACKGROUND
Sherrouse filed her complaint against Carrier, her former employer, on July 30, 2003 alleging that Carrier had terminated her employment on April 1, 2002, in violation of the Family Medical Leave Act, 29 U.S.C. § 2601, et. seq. ("FMLA") and in retaliation for her taking FMLA leave. (Compl. at 3.) In her Complaint Sherrouse claims that in terminating her, Carrier violated the exercise of her rights under the FMLA, because the FMLA creates an employee entitlement to a right to return to work after a qualified leave. ( Id.) She claims that at the time of her termination she was on FMLA leave for a back injury, and that her disability leave which had been certified by her doctor through March 31, 2002, had been extended through April 7th. ( Id.) Carrier denies that at the time of her termination Sherrouse was protected by the FMLA, and argues that it terminated her because she violated the Company attendance policy. (Def.'s Resp. at 8-10).
II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate where the facts and law as represented in the pleadings, affidavits and other summary judgment evidence show that no reasonable trier of fact could find for the nonmoving party as to any material fact. FED.R.CIV.P. 56; Lujan v. National Wildlife Federation, 497 U.S. 871, 888 (1990); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Innovative Database Systs. v. Morales, 990 F.2d 217 (5th Cir. 1993). "The moving party bears the initial burden of identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact, but is not required to negate elements of the nonmoving party's case." Lynch Properties, Inc. v. Potomac Ins. Co. of Ill., 140 F.3d 622, 625 (5th Cir. 1998) (citing Celotex, 477 U.S. at 322-25). If the movant fails to meet its initial burden, the motion must be denied, regardless of the nonmovant's response. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
If the movant does meet its burden, the nonmovant must go beyond the pleadings and designate specific facts showing that a genuine issue of material fact exists for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir. 1998). A party opposing summary judgment may not rest on mere conclusory allegations or denials in its pleadings unsupported by specific facts presented in affidavits opposing the motion for summary judgment. FED. R. CIV. P. 56(e); Lujan, 497 U.S. at 888; Hightower v. Texas Hosp. Assn., 65 F.3d 443, 447 (5th Cir. 1995).
In determining whether genuine issues of fact exist, "[f]actual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that a controversy exists." Lynch, 140 F.3d at 625; see also Eastman Kodak v. Image Technical Services, 504 U.S. 451 (1992). However, in the absence of any proof, the Court will not assume that the nonmoving party could or would prove the necessary facts. Lynch, 140 F.3d at 625. A party must do more than simply show some "metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. "If the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Friou v. Phillips Petroleum Co., 948 F.2d 972, 974 (5th Cir. 1991).
III. ANALYSIS
A. Employee Rights under the FMLA
The Family Medical Leave Act of 1993 allows eligible employees working for covered employers to take temporary leave for medical reasons. 29 U.S.C. § 2601(b)(2); see Hunt v. Rapides Healthcare System, 277 F.3d 757, 762 (5th Cir., 2002). When an eligible employee returns from leave taken under the FMLA, an employer must restore the employee "to the position of employment held by the employee when the leave commenced" or to an "equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment." 29 U.S.C. § 2614(a)(1)(A)(B); see Hunt, 277 F.3d at 763. The FMLA contains prohibitions against interfering with an employee's exercise of any right granted under the statute: "It 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." 29 U.S.C. § 2615(a); see Hunt, 277 F.3d at 763. "[E]mployers [thus] have a prescriptive obligation under the FMLA — they must grant employees substantive rights guaranteed by the FMLA — and they have a proscriptive obligation — they may not penalize employees for exercising these rights." Chaffin v. John H. Carter Co., 179 F.3d 316, 319 (5th Cir. 1999).
B. Plaintiff's Prima Facie Case for Discrimination or Retaliation under the FMLA
To establish a prima facie case for discrimination or retaliation under the FMLA, and to prevail in a motion for summary judgment, the plaintiff must demonstrate that: (1) she is protected under the FMLA; (2) she suffered an adverse employment decision; and either (3a) she was treated less favorably than an employee who had not requested leave under the FMLA; or (3b) the adverse decision was made because of the plaintiff's request for leave. See Bocalbos v. Nat'l Western Life Ins. Co., 162 F.3d 379, 383 (5th Cir. 1998). If the plaintiff succeeds in making a prima facie case, the burden shifts to the employer to articulate a legitimate nondiscriminatory or nonretaliatory reason for the termination. See id. Once the employer has done so, the plaintiff must show by a preponderance of the evidence that the employer's reason is a pretext for discrimination or retaliation. See id.
In the instant case, there is no dispute that her termination was an adverse employment decision. Sherrouse does not allege that any other employee who had not requested an FMLA leave was treated more favorably than she was. Therefore, in determining whether the Plaintiff has met her prima facie burden, the Court must assess (1) whether the Plaintiff was protected under the FMLA at the time of her termination, and (2) whether she was terminated because of her leave.
C. Was Sherrouse protected under the FMLA at the time of her termination?
Sherrouse was employed at Carrier as machine operator until April 1, 2002 when she was terminated. (Compl. at 2; Second Am. Ans. at 2.) Prior to her termination Sherrouse had been on an FMLA-protected disability leave beginning in February, 2002. Her chiropractor, Dr. Leath, certified her for leave until March 31, 2002. (Def.'s Mot. for Sum. J. App. at 193; Compl. at 2; Second Am. Ans. at 2.) Sherrouse points to the Affidavit of Gwendolyn V. Johnson ("Johnson"), the Human Resources Manager at Carrier to show that the Company was aware that Dr. Leath had certified her for disability leave until that date. (Def.'s Mot. for Sum. J. App. at 193).
Ms. Johnson's Affidavit at #15 states, in part: "On March 11, 2002, Ms. Sherrouse submitted a note from Dr. Leath stating she would not return to work until March 31, 2002 . . . I . . . scheduled Ms. Sherrouse to return to work on April 1, 2002. I also processed her wage continuation benefits through . . . March 31, 2002." (Def.'s Mot. for Sum. J. App. at 193)
The central issue in this case arises from Dr. Leath's March 28, 2002 extension of Sherrouse's disability leave until April 7, 2002. (Compl. at 2.) Sherrouse alleges that she informed Ms. Johnson on March 28 that Leath might extend her leave. (Pl.'s Mot. at 2.) She admits that she was "asked [on March 28] to notify [Carrier] with regard to what the doctor said and whether or not she would be back to work on Monday, April 1." ( Id.) Sherrouse argues that she relied on Dr. Leath and Fallett to fax the extension notice to Carrier, as they had done for her on previous occasions. (Pl.'s Mot. at 2; Pl.'s Resp. at 2; Def's Mot. for Sum. J. App. at 40.) Neither she nor Dr. Leath notified the Company of the extension on March 28, however. (Pl.'s Mot. at 2.)
Sherrouse provides a note from Sheila Fallett, the Office Manager for Dr. Leath, as proof of the extension. (Pl.'s Mot. App. at 2.) The Defendant provides the March 28 note from Dr. Leath which reads, in part: "This is to certify that Julie A Sherrouse is under my care. In order to avoid aggravation of her condition, I recommend that she be excused, starting 2/15/2002 until 04/07/2002." (Def.'s Mot. for Sum. J. App. at 184.)
In her deposition of January 19, 2004, Sherrouse admits that she realized on April 1 that Dr. Leath's office did not have Carrier's fax number. (Def.'s Mot. for Sum. J. App. at 66 ("The next Monday [April 1] I thought about the fact that the doctor's office did not have the fax number. When I got to the doctor's office on Tuesday, they faxed the document to Gwen [Johnson], but it was already too late.").) She also admits that although Fallett "assured [her] that they would fax the extension to Defendant that day," the extension letter was not faxed to Carrier until Tuesday, April 2, 2002 at 5:30 p.m. (Compl. at 2; Pl.'s Mot. at 3.) In addition, she admits that she did not personally notify the Company of the extension, and she admits that she did not return to work on April 1 or 2, 2002. (Pl.'s Mot. at 2-3.)
Ms. Fallett's note reads, in part: "Please be advised that on 3.11.02 Dr. Leath had Julie off work through 03.31.02. On 3.28.02 Dr. Leath extended that time frame through 04.07.02, however I did not fax this information to Ms. Davis until 04.02.02." (Pl.'s Mot. App. at 2.)
When she returned to Carrier to pick up a disability check on April 4, 2000, she was informed that she had been terminated on April 1 for failure to return to work and failure to notify the Company that she would be absent. (Def.'s Mot. for Sum. J. App. at 188, 193; Pl.'s Resp. at 4 ("It is undisputed that Plaintiff was fired on April 4th because she did not report to work or give notification on April 1st that she needed to extend her FMLA leave.").)
The April 4, 2002 termination letter reads, in part: "This is to inform you your employment with Tyler Refrigeration was terminated effective April 1, 2002 for violation of the Hourly Employees Attendance Policy." (Def.'s Mot. for Sum. J. App. at 188.)
Carrier asserts that Sherrouse was terminated because she "violat[ed] the notification provisions in the Company's neutral Attendance Policy." (Def.'s Mot. for Sum. J. at 4-9; Def.'s Resp. at 1.) It points to the undisputed facts that Sherrouse failed to appear for work on April 1, 2002 — the return-to-work date according to the medical excuse the Company had received to that point — and also failed to notify the Company that she would be absent. (Def.'s Resp. at 7; Pl.'s Mot. at 2-3; Def.'s Mot. for Sum. J. at 55.) It argues that this placed her in violation of the Company's "usual and customary" attendance policies, and that her failure to appear or call at this time in addition to previous violations of the Attendance Policy mandated her termination. (Def.'s Mot. for Sum. J. at 7.)
The Company Attendance Policy requires employees to notify the Company of any intended absences. The policies also warn employees that failure to notify the Company will "result in the assessment of points leading to a possible termination." (Resp. at 8; Def.'s Mot. for Sum. J. App. at Ex. 6, "Tyler Refrigeration Waxahachie Facilities Attendance Policy, January 1, 1998" ("Attendance Policy").)
Defendant also provides its FMLA leave policy which states that employees must both provide 30 days' notice to the Company for leaves involving birth, adoption or planned medical treatment. It also provides that "[i]n cases where employee's ( sic) cannot provide thirty days ( sic) notice, . . . written notice must be given as soon as possible." (Def.'s Mot. for Sum. J. App. at 192.) In the instant case, as noted above, Sherrouse admits that it would have been possible to give notice on March 28 or April 1.
Carrier does not dispute that had it received timely notice of Dr. Leath's extension, Sherrouse's leave would have been protected under the FMLA until April 7. It argues, however, that because the extension was not communicated to the Company until April 2, 2002, Sherrouse was terminated on April 1 as the result of her accumulation of negative points in excess of the limits provided in the Company Attendance Policy. It further argues that Sherrouse was "AWOL" on April 1, 2002, and not covered under the FMLA on that date. (Def.'s Mot. at n. 1.)
The Defendant has produced evidence, which is not refuted by the Plaintiff, that it had an Attendance Policy which required notification for absences. ( See n. 5.) It has also produced some evidence, which the Plaintiff does not refute, that Sherrouse had accumulated 12 points under that policy by April 1, 2002; that an accumulation of 12.5 points could lead to termination under the policy; and that an "AWOL" violation (absence without call-in) would add 4.25 points to an employee's total points.
Carrier provides a "Final Written Notice" statement dated September 10, 2001 showing that as of that date Sherrouse had accumulated 12.00 points. (Def.'s Mot for Sum. J. App. at 175.) In her deposition of January 19, 2004, Sherrouse admits that she had accumulated 12 points by November 1, 2001 ( Id. at 30.)
In her Affidavit of March 9, 2004, Ms. Johnson states that "Ms. Sherrouse had accrued 12 points as of January 2002 . . ." ( Id. at 193.) Johnson states that "prior to her discharge, Ms. Sherrouse failed to comply with the absentee notification requirements on two different occasions." ( Id. at 192.) According to Johnson, Ms. Sherrouse did not report to work or notify the Company that she would be absent after an medically excused absence for injury in May 2001; at that time she was counseled regarding the Attendance Policy's notification requirement. ( Id.) No points were assessed against her for this violation according to Johnson, because Sherrouse "claimed that she had not contacted Carrier because she did not understand the Attendance Policy's notification requirements." ( Id.) According to Ms. Johnson, a similar incident occurred in February, 2002 in which Ms. Sherrouse neither reported to work nor notified the Company that she would be absent for two days following a medical leave; again she was counseled as to the provisions of the Attendance Policy, and no points were assessed. ( Id.) The Plaintiff does not dispute Johnson's statements.
Defendant's Attendance Policy includes a page entitled "Points Administration" which lists incidents and corresponding points, including: "AWOL — ABSENT WITHOUT CALL-IN, 4.25 points; ABSENT WITH CALL-IN PRIOR TO START OF SHIFT, 1.0 points; ABSENT WITH CALL-IN AFTER START OF SHIFT, 1.50 points." (Def.'s Mot. for Sum. J. App. at 166.)
The Attendance Policy also includes a page entitled "Corrective Discipline Procedure" which reads, in part: "Suspension With Intent to Discharge: upon receiving 12.25 points or more in any 365 day period. Discharge will result following the investigation of the employee's attendance record which confirms a violation of the current policy. The Company's final decision will be made within 3 working days following the date of suspension." ( Id. at 168.)
In her Response to Carrier's Motion for Summary Judgment Sherrouse argues that according to Satterfield v. Wal-Mart, 135 F.3d 973 (1998), a Fifth Circuit FMLA case, in cases of "unforeseeable" need for leave, the employee may give notice "as soon as practicable." (Pl.'s Resp. at 5; see Satterfield, 135 F.3d at 976-77). In the instant case, however, Plaintiff's need for an extension of her leave was clearly not unforeseeable — she admits that she had informed Johnson on March 28 that her doctor might extend her leave and that she had been warned that she needed to notify the Company if he did. (Pl.'s Mot. at 2).
The Fifth Circuit has made it clear that the FMLA does not protect an employee who fails to return to work on or before the date her FMLA leave expires. See Hunt v. Rapides Healthcare System, 277 F.3d 757, 763 (5th Cir. 2002). In addition, the Seventh Circuit has addressed the issue of whether an employee loses her protection under the FMLA if she does not adhere to her employer's notification policies. In Gilliam v. United Parcel Service, Inc., the Seventh Circuit affirmed the district court's grant of summary judgment against a plaintiff/employee who was terminated for not informing his employer as to how long he would be on leave after the birth of his child. See Gilliam, 233 F.3d 969, 97-72 (7th Cir. 2000). The Circuit interpreted Department of Labor regulations on the FMLA (which deal with employee notice to an employer of a need for impending leave) to require employees also to comply with "usual and customary" employer notice policies regarding when the employee will return from leave. See Id. ("Nothing 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.") The Seventh Circuit reaffirmed this holding in Lewis v. Holsum of Fort Wayne, Inc., affirming a district court's granting of summary judgment against an employee who was terminated after taking three days of medically-approved leave (after a one-week vacation preceded by an FMLA disability leave), for violating her employer's notification policy by failing to notify the employer that she would be absent on those three days. See Lewis, 278 F.3d 706, 710 (7th Cir. 2002).
29 C.F.R. § 825.302(d) reads: "An employer may . . . require an employee to comply with the employer's usual and customary notice and procedural requirements for requesting leave."
The Court adopts this reasoning. The FMLA does not protect an employee who violates her company's "usual and customary notice and procedural requirement" regarding the duration of her leave. Although Sherrouse may have believed her doctor's office had notified Carrier of the extension of her disability leave on March 28, Sherrouse does not deny that Carrier was not, in fact, notified of the extension until 5:30 p.m. on the day after she was terminated. Because she did not report to work or notify Carrier that she would be absent on April 1, she was "AWOL" on that day and the next in violation of Carrier's Attendance Policy.
Sherrouse has not met the first element of her prima facie burden; she has not shown that she was protected by the FMLA at the time of her termination. The Court need not reach the issue of whether Sherrouse met her prima facie burden on whether she was terminated because of her request for FMLA leave. Nevertheless, the Court notes that Sherrouse has not argued in her pleadings or motion that Carrier terminated her because of her request for leave; neither did she produce any evidence to support a claim of this type.
C. Issues Regarding the Collective Bargaining Agreement
In her Motion for Summary Judgment the Plaintiff argues that her termination was improper, because the Company's Attendance Policy and its notice requirement were "totally irrelevant" for this case due to provisions of a Collective Bargaining Agreement ("CBA") between Carrier and its Union.9 (Pl.'s Mot. at 1-2). This CBA, she alleges, provides a three-day grace period for notice to the Company and for returning to work after an approved leave of absence. ( Id. at 2.) She argues that Dr. Leath's extension of her leave was received by the Company within the three-day grace period allowed by the CBA, and that therefore the Company terminated her illegally under the terms of the CBA. ( Id.) She also asserts that in not giving her a three-day grace period to notify them of her extension, Carrier imposed "a special notice requirement" on her, in violation of the FMLA: "The Company violated the FMLA as a matter of law by imposing a special notice requirement on Plaintiff which resulted in her discharge while she was on FMLA leave." ( Id. at 3).
To the extent the Plaintiff raises the issue that the Company's Attendance Policy contradicted the CBA, and that her termination (based on the Attendance Policy) therefore violated the CBA, she is bringing a claim not present in her initial complaint. (Def.'s Supplemental Mot. for Sum. J. at 3.) The statute of limitations for a CBA claim (under § 301 of the Labor Management Relations Act) brought by an employee against an employer in federal court is six months. See Nelson v. Local 854 Dock Loaders and Unloaders of Freight Cars and Barges Union, 993 F.2d 496, 498 (5th Cir. 1993) ("[T]his dispute centers around collective bargaining and is therefore controlled by the federal law under the Labor Management Relations Act ("LMRA") of 1947. This Act has adopted a six month statute of limitations . . .") In the instant case, Sherrouse's termination was in April of 2002; she filed a grievance with the Union on April 10, 2002 ( see Def.'s Mot. for Sum. J. App. at 189); she also filed a claim against the UAW with the National Labor Relations Board related to her termination alleging violations under Section 8 of the National Labor Relations Act. ( See id. at 093-094.) That claim was dismissed on November 1, 2002. There is no evidence that she filed an appeal of that dismissal. Any claim the Plaintiff may have had against Carrier or the UAW related to her termination and any alleged violations of the CBA was clearly time-barred by March 18, 2004 — the date she filed her Motion for Summary Judgment.
In addition, in her Affidavit of April 6, 2004 Gwendolyn Johnson states that Carrier and the Union with which it maintains a collective bargaining agreement (the International Union, United Automobile, Aerospace Agricultural Implement Workers of America, Local No. 514) have "not established a practice . . . that would give any employee returning from leave a three-day grace period that excuses them from complying with the Attendance Policy's notice requirement." (Def.'s Resp. App. at 96.)
To the extent the Plaintiff is bringing a claim against Carrier based on an alleged violation of a collective bargaining agreement, that claim is DISMISSED with prejudice.
IV. CONCLUSION
For the reasons stated above, Carrier's Motion for Summary Judgment against Sherrouse is GRANTED. The Plaintiff's Motion for Summary Judgment on liability against Carrier is DENIED. Defendant's Supplemental Motion for Summary Judgment and both Objections and Motions to Strike are TERMINATED as moot. The Plaintiff's case against Carrier is DISMISSED with prejudice.
SO ORDERED.