Opinion
Civil Action No. 1:02-CV-212-C
August 6, 2003
ORDER
On this date the Court considered Plaintiff's Motion for Partial Summary Judgment, filed June 10, 2003, together with Defendant's Response, filed June 27, 2003. The Court also considered Defendant's Motion for Summary Judgment, filed June 10, 2003. At the parties' request, the Court considered Plaintiff's Motion for Partial Summary Judgment as her Response to Defendant's Motion for Summary Judgment. Neither Plaintiff nor Defendant filed a reply. After considering all the arguments and evidence, the Court is of the opinion that Plaintiff Urban's Motion for Partial Summary Judgment should be GRANTED and Defendant's Motion for Summary Judgment should be DENIED.
I. FACTUAL BACKGROUND
Plaintiff, Debbie Urban ("Urban"), a resident of Jones County, Texas, began working for Defendant, Dolgencorp of Texas, Inc. ("Dollar General"), in May 2001. Dollar General is a foreign corporation organized and existing under the laws of the state of Kentucky but is authorized to do business in Texas. In May 2002, Urban was an Assistant Store Manager in the Defendant's Anson, Texas store.
Urban decided in May 2002 to have bilateral carpal tunnel surgery. Sometime before May 28, 2002, Urban informed Dollar General that, because of her upcoming surgery, she was requesting a medical leave of absence pursuant to the FMLA. Urban requested leave that would begin on June 1, 2002, and last through August 24, 2002. Dollar General informed Urban on or about June 4, 2002, that it was tentatively designating her requested leave of absence as FMLA-qualifying. Urban was informed by the Defendant that it would be necessary for her to produce a medial certification from her physician to approve the leave under the FMLA. Dollar General informed Urban that the deadline to return the medical certification form was June 24, 2002. Urban requested from Dollar General, and was granted, a 15-day extension of time within which to return the completed medical certification form.
Urban contends that she delivered the required medical certification to her physician, Dr. Hendrix, and requested that it be faxed to the Defendant. Unfortunately, the physician's office lost the form and consequently never sent Dollar General a copy of Urban's medical certification.
When Dollar General found that Urban's certification was not faxed from Dr. Hendrix's office by the deadline, Defendant terminated Urban from her position because her thirty days of non-FMLA medical leave provided by company policy had already expired, and the company considered her absences unauthorized.
Urban asserts that she was unaware that Dollar General failed to receive her medical certification before the deadline had passed Urban did not learn of this fact until she was notified that her request for FMLA leave was denied. Urban received two letters from Stephanie Sexton, an FMLA representative for the Defendant, dated July 19, 2002 and July 22, 2002. Each letter informed Urban that her request for leave under the FMLA had been denied for failure to provide medical certification by the July 9, 2002 deadline.
II. STANDARD
Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," when viewed in the light most favorable to the non-moving party, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) (internal quotations omitted). A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. at 248. In making its determination, the court must draw all justifiable inferences in favor of the non-moving party. Id. at 255. Once the moving party has initially shown "that there is an absence of evidence to support the nonmoving party's case," Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), the non-movant must come forward, after adequate time for discovery, with significant probative evidence showing a triable issue of fact. FED. R. CIV. P. 56(e); State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990). Conclusory allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation are not adequate substitutes for specific facts showing that there is a genuine issue for trial. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428 (5th Cir. 1996) (en banc); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993). To defeat a properly supported motion for summary judgment, the non-movant must present more than a mere scintilla of evidence. See Anderson, 477 U.S. at 251. Rather, the non-movant must present sufficient evidence upon which a jury could reasonably find in the non-movant's favor. Id.
III DISCUSSION
Urban contends that she was unjustly terminated by her employer, Dollar General, in violation of the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq. The FMLA was enacted because Congress found "inadequate job security for employees who have serious health conditions that prevent them from working for temporary periods." 29 U.S.C. § 2601(a)(4). One purpose of the Act is to "entitle employees to take reasonable leave for medical reasons. . . ." 29 U.S.C. § 2601(b)(2) (emphasis added). However, the FMLA also seeks to accomplish this purpose "in a manner that accommodates the legitimate interests of employers." 29 U.S.C. § 2601(b)(3).The Act applies to private-sector employers of 50 or more employees. 29 U.S.C. § 2611(4). It is undisputed that Defendant was a covered employer and Plaintiff an eligible employee, An eligible employee is entitled to 12 work-weeks of leave in a 12-month period because of a "serious health condition" that results in the employee's inability to perform her job requirements. 29 U.S.C. § 2612(a). The Act defines a "serious health condition" as "an illness, injury, impairment, or physical or mental condition that involves (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider." 29 U.S.C. § 2611(11). 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 under" the Act. 29 U.S.C. § 2615(a).
Agreed Summary Judgment Stipulations (1), (2), (3).
In determining whether an employee's leave request qualifies for FMLA protection, the employer must assess whether the request is based on a "serious health condition" and, for that purpose, may request supporting medical documentation. 29 U.S.C. § 2613; 29 C.F.R. § 825.302(c). Dollar General required such a certification from Urban by its letter of June 4, 2002.
Because Urban failed to produce the medical certification by the deadline, Defendant concludes that Plaintiffs FMLA rights were never triggered. In essence, Dollar General contends that Urban failed to comport with the requirements for leave under the FMLA and that accordingly Plaintiff was not a covered employee under the statute when she accrued absences from work. Therefore, Dollar General claims justification for terminating Urban on August 5, 2002, for unauthorized absences. In support, Defendant points to the fact that "[i]f the employee never produces the certification, the leave is not FMLA leave." 29 C.F.R. § 825.312(b).
Urban responds to Defendant's contention by establishing that if an employer does require a medical certification, then the employer must also advise the employee if a certification is incomplete and give her a reasonable opportunity to cure the problem. 29 C.F.R. § 825.305(d). The regulation states in relevant part that an employer "shall advise an employee whenever the employer finds a certification incomplete, and provide the employee a reasonable opportunity to cure any such deficiency." Id. (emphasis added). Urban argues that because employees are entitled to cure any deficiencies, whenever they are found, Urban should have been given a reasonable opportunity to provide anything that was missing — which could have been accomplished by allowing Urban's physician to simply fax the medical certification to Dollar General within a reasonable time after Urban was notified Dollar General failed to receive her form. However, Urban was never notified or given an opportunity to cure.
Defendant dismisses Urban's reliance on this regulation as "misplaced." Dollar General attempts to distinguish the terms by asserting that Urban's certification was not "incomplete" at the time of the deadline, but it was "non-existent." Dollar General concludes that an employer cannot "find" a medical certification "incomplete" if it cannot find the certification at all because the employee has missed the deadline for submission. This Court rejects Defendant's claim that the term "incomplete" should be so narrowly interpreted. See generally Manuel v. Westlake Polymers Corp., 66 F.3d 758, 762 (5th Cir. 1995) (rejecting Defendant's argument of regulatory error concerning 29 C.F.R. § 825 because Defendant offered no practical reason for its proposed reading, which would impose astringent requirement upon employees).
If the opportunity to cure means anything under Section 825.305(d), it means employees must have a chance to produce what is missing and to complete what was incomplete. In fact, Webster's Dictionary simply defines incomplete as "lacking parts." When this definition is applied to Section 825.305(d)., Dollar General should have found that Urban's certification was lacking parts at the deadline and thus given her a "Reasonable opportunity" to re-contact her doctor and provide the certification.
Although this Court makes no finding that violating company policy automatically constitutes a violation of the FMLA, it is persuaded that Dollar General acknowledged a broad interpretation of Section 825.305(d) prior to Urban's termination. In a June 4, 2002 letter from Defendant to Plaintiff, the employer informed Urban that she would be required to furnish a medical certification of a serious health condition and that "[i]f your physician fails to complete the form, you will be asked to return the form for completion." As this Court has previously noted, Urban was never notified that her physician had failed to complete the form, nor was she asked to return or to forward another copy,
Because Urban was not advised that her medical certification was incomplete at the deadline and was given no opportunity to cure the deficiency, this Court finds Defendant in violation of 29 C.F.R. § 325.305(d).
CONCLUSION
After considering all the relevant arguments and evidence, this Court GRANTS Plaintiffs Motion for Partial Summary Judgment as to Defendant's liability only, and DENIES Defendant's Motion for Summary Judgment.