R. Brooke Jackson, United States District Judge.
This matter is before the Court on defendant Craig Hospital's motion for summary judgment [ECF No. 17]. For the reasons described below, the motion is GRANTED.
The following facts are not in dispute unless otherwise noted. Plaintiff Lilia Smith-Megote is a former employee of defendant Craig Hospital ("Craig"). ECF No. 1 at ¶¶13-14 (Complaint). In July of 2015 she requested leave to travel to the Philippines to care for her ailing mother. ECF No. 17-2 at 2 (Leave of Absence Request Form). Craig approved plaintiff for five to six weeks of leave under the Family Medical Leave Act ("FMLA") to care for her mother beginning on July 24, 2015. ECF No. 17-4 at 3 (FMLA Designation Notice).
On August 9, shortly into plaintiff's leave, her mother passed away. ECF No. 1 at ¶6. Plaintiff did not notify Craig of her mother's death, or ask that her FMLA leave be extended beyond the death, or ask for bereavement leave (to which she would have been entitled). Instead, plaintiff subsequently remained in the Philippines for roughly three weeks and then flew to Spain on August 28, 2015 to check up on her sister. ECF No. 17-5 at 73:16-19, 74:3-22 (Dep. of Lilia Smith-Megote, Aug. 18, 2016). Plaintiff returned to the United States on September 1. See id. Two days later she contacted Craig to notify them that she wanted to return to work early, which plaintiff did soon thereafter. Id. at 75:2-8.
On September 4 defendant first learned that plaintiff's mother had passed away back in early August. ECF No. 17-3 at 129:23-25 (Dep. of Stacy Abel, Aug. 19, 2016). After determining that plaintiff's FMLA leave did not apply to her absences after her mother passed away, defendant terminated plaintiff's employment on September 17. Id. at 157:3-11, 160:8-20. Defendant claims that it fired plaintiff due to plaintiff's missing too many shifts while failing to produce a legitimate reason why she remained abroad for over three weeks after her mother's passing, as well as because of plaintiff's prior written warning for absences and a previous incident on her record involving improper conduct. Id. at 74:2-7; ECF No. 17-5 at 87:7-12; ECF No. 17-10 at 2 (Craig Hospital Employee Discipline Form); ECF No. 17 at 3.
On January 22, 2016 plaintiff filed suit against defendant, alleging retaliation under the FMLA. ECF No. 1 at ¶¶12-17. After answering plaintiff's complaint on February 16, 2016, ECF No. 6, defendant moved for summary judgment on September 29, 2016, ECF No. 17. Defendant's motion has been fully briefed.
The Court may grant summary judgment if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is "material if under the substantive law it is essential to the proper disposition of the claim." Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (internal quotation marks and citation omitted). A material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party has the burden to show that there is an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The nonmoving party must "designate `specific facts showing that there is a genuine issue for trial.'" Id. at 324, 106 S.Ct. 2548 (citation omitted).
Plaintiff's complaint asserts a single cause of action under the FMLA. However, as defendant acknowledges, plaintiff
Plaintiff's first theory asserts interference under the FMLA. "To establish an interference claim, [plaintiff] must show: (1) that [s]he was entitled to FMLA leave, (2) that some adverse action by the employer interfered with h[er] right to take FMLA leave, and (3) that the employer's action was related to the exercise or attempted exercise of h[er] FMLA rights." See Campbell v. Gambro Healthcare, Inc., 478 F.3d 1282, 1287 (10th Cir. 2007) (internal citations and quotation marks omitted). The parties only appear to dispute the first element of whether or not plaintiff was entitled to FMLA leave, and only for the time period after plaintiff's mother passed away on August 9, 2015.
Under the FMLA, an employee is entitled to 12 workweeks of leave in a 12-month period in order to, among other things, "care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition." 29 U.S.C. § 2612(a)(1). A "serious health condition" is defined, in turn, to "mean[] 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).
Given this statutory framework, courts have consistently held that an employee is not entitled to go on or remain on FMLA leave for time spent mourning a family member's death.
Here, plaintiff was not entitled to FMLA leave after August 9 when her mother passed away.
Plaintiff nevertheless makes two arguments to attempt to save her claim. First, she argues that she has established the first element of an interference claim because, despite the fact that she applied for FMLA leave to care for her mother, she was entitled to FMLA leave beyond August 9, 2015 for self-care (or for caring for her sister in Spain). See ECF No. 22 at 7. Second, she contends that because defendant approved plaintiff for leave until September 14, 2015 and that she relied on that approval to her detriment, that defendant should be estopped from denying that plaintiff was not entitled to FMLA leave beyond August 9, 2015.
First, I find that plaintiff has not come forward with evidence that she, personally, was qualified for leave under the FMLA's self-care provision. See 29 U.S.C. § 2612(a)(1)(D) (explaining that an employee is entitled to FMLA leave "[b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee"); id. § 2611(11) (defining "serious health condition" to include inpatient care of some kind or continuing health care professional treatment). Second, plaintiff' sister was not a relative to which the FMLA applied. See 29 U.S.C. § 2612(a)(1)(c); 5 C.F.R. § 630.1203(a)(3); O'Hara v. GBS Corp., No. 5:12CV2317, 2013 WL 1399258, at *3 (N.D. Ohio Mar. 13, 2013), report and recommendation adopted, No. 5:12 CV 2317, 2013 WL 1399317 (N.D. Ohio Apr. 5, 2013) (collecting cases). She therefore cannot establish her entitlement to FMLA leave for either purpose.
Furthermore, plaintiff's estoppel argument is also unpersuasive because, even assuming the Tenth Circuit would apply estoppel in the FMLA context, which is unclear, see Banks v. Armed Forces Bank, 126 Fed.Appx. 905, 906-07 (10th Cir. 2005), the undisputed facts reveal that plaintiff had prior knowledge that bereavement did not qualify for FMLA leave,
The Court likewise grants defendant's motion for summary judgment on plaintiff's second theory of recovery asserting retaliation. FMLA retaliation claims follow the burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Doebele v. Sprint/United Mgmt. Co., 342 F.3d 1117, 1135 (10th Cir. 2003). Under that framework, plaintiff has the initial burden of establishing a prima facie case of retaliation. Id. Once plaintiff does so, defendant must offer a legitimate, non-retaliatory reason for the adverse employment action. Id. Plaintiff then bears the final burden of demonstrating that defendant's reason is really pre-textual. Id.; see also Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1170 (10th Cir. 2006); Gunnell v. Utah Valley State Coll., 152 F.3d 1253, 1263 (10th Cir. 1998).
Here, regardless of whether plaintiff can establish a prima facie case of retaliation, plaintiff has not provided any evidence that defendant's purported non-retaliatory reason for firing plaintiff — i.e. its belief that plaintiff failed to comply with the requirements of the FMLA by remaining on leave after her mother had passed away, see ECF No. 17-10 at 2 — was pretext. See Medley v. Polk Co., 260 F.3d 1202, 1207 (10th Cir. 2001) ("[A]n employer who discharges an employee honestly believing that the employee ... is not using FMLA leave for its intended purposes ... would not be in violation of the FMLA, even if its conclusion is mistaken, since this would not be a discriminatory firing."). Plaintiff's claim for retaliation under the FMLA therefore fails as a matter of law. See id. at 1207-08 (citing Kariotis v. Navistar Internat'l Trans. Corp., 131 F.3d 672 (7th Cir. 1997)).
No doubt the experiences of losing her mother and then losing the job she had held for some 19 years were extremely distressing events in Ms. Smith-Megote's life. But the ultimate issue here is whether the Family Medical Leave Act was violated. The Court finds that plaintiff has not shown that there is a genuine dispute of