MARK W. BENNETT, District Judge.
TABLE OF CONTENTS
I. INTRODUCTION ......................................................................971
A. Factual Background ............................................................971
B. Procedural Background .........................................................974
II. LEGAL ANALYSIS ....................................................................977A. Standards For Summary Judgment ................................................977B. Johnson's FMLA Claims .........................................................9791. Arguments of the parties ..................................................979a. The defendants' opening arguments .....................................979b. Johnson's response ....................................................980c. The defendants' reply .................................................9822. Analysis ..................................................................982a. FMLA overview .........................................................982b. FMLA "interference" claims ............................................983i. Nature and proof .................................................983ii. Johnson's "interference" claims ..................................985c. FMLA "retaliation" claim ..............................................987i. Nature and proof .................................................987ii. Johnson's "retaliation" claim ....................................994C. Johnson's Workers Compensation Retaliation Claim ..............................9961. Arguments of the parties ..................................................9962. Analysis ..................................................................997a. Individual liability ..................................................997b. Proof of the claim ....................................................998D. Johnson's Emotional Distress Claim ...........................................1000E. Johnson's Claim For Payment Of A Bonus .......................................10011. Arguments of the parties .................................................10012. Analysis .................................................................1001III. CONCLUSION .......................................................................1003
In this action, which was removed to this federal court, a former store manager alleges that the retail store chain for which he worked and his district manager terminated him when he missed work for five days approximately five months after he suffered a heart attack. He asserts state-law claims of retaliation for processing workers compensation claims and intentional infliction of emotional distress and a federal claim of violations of the Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2612-2615, arising from the termination of his employment. He also asserts a claim pursuant to the Iowa Wage Payment Collection Law (IWPCL), IOWA CODE CH. 91A, to recover a quarterly bonus allegedly due him at the time his employment ended. The store chain and the district manager have moved for summary judgment on all of the former store manager's claims. They argue, among other things, that there is no genuine dispute that the store manager resigned his job without coercion from his employers; that he did not suffer from a "serious health condition" and cannot meet other requirements of his FMLA claims; that he did not engage in any protected activity related to workers compensation claims and was not subjected to any adverse employment action if he did; that his "emotional distress" claim is pre-empted by Iowa's workers compensation law; and that he was not entitled to any bonus, because he was not employed on the date of the bonus payout. Although the former store manager concedes that his "emotional distress" claim is not viable, he resists summary judgment on his other claims. Thus, I must determine whether any of the former store manager's three disputed claims should be heard by a jury.
I set forth here only those facts, disputed and undisputed, sufficient to put in context the parties' arguments concerning the defendants' motion for summary judgment.
Defendant Dolgencorp, L.L.C., is a corporation that operates a chain of retail stores under the trade name "Dollar General." The plaintiff and the defendants have referred to the corporate defendant as "Dollar General," and I will do the same. Dollar General hired plaintiff Todd Johnson in December 2007 and, after an initial period of training, assigned him to be the manager of the Dollar General store in Garner, Iowa, beginning in January 2008. Store managers report to a district manager or DM. Johnson's DM from June 2008 until the end of Johnson's employment with Dollar General was defendant Michael Williams.
Johnson received an employee handbook outlining Dollar General's FMLA policy, received additional training on that policy, and was aware of posters in his store that addressed FMLA policies and issues. Dollar General's vacation policy generally required scheduling of vacations 30 days in advance, with exceptions allowed by the DM. Dollar General's attendance and absence policies required an employee to call the employee's supervisor if the employee could not report to work as scheduled and also provided that store managers were expected to discuss the situation "live" with a supervisor. Dollar General did not provide "sick leave." In addition to regular compensation, Dollar General maintained a "Teamshare" bonus plan under its Retail Incentive Plan, which provided quarterly bonuses to eligible store managers. The eligibility requirements for such a bonus were, in pertinent part, that the store manager was "[a]ctively employed in an eligible position during the fiscal year" and "[e]mployed with Dollar General through the bonus calculation period and on the date of bonus payout ... [u]nless otherwise required by state law." Defendants' Appendix at 50 (Fiscal Year 2009 Store Manager Retail Incentive Plan).
Johnson suffered a knee injury at work in October 2008, which caused him to miss a few days of work. Johnson received workers compensation benefits for that injury. Although Dollar General asserts that Johnson had no communications with Williams about the October 2008 workers compensation claim, and Johnson does not allege any negative response to it by Williams, Johnson asserts that Williams was aware of this injury, because Williams told Johnson he was aware that a workers compensation claim had been filed.
On or about November 18, 2008, Johnson suffered a heart attack at work and was hospitalized for approximately a week. Johnson contacted Dollar General's corporate offices to report his heart attack and the need for medical leave. Johnson's medical providers did not clear him to return to work until December 30, 2008. Dollar General provided "company" leave for the entire period of Johnson's absence owing to his heart attack, because Johnson was not yet eligible for FMLA leave. Medical records from December 18, 2008, indicate that Johnson was diagnosed with "severe coronary artery disease," and other records indicate that he continued on various medications for that condition at least through 2009. Johnson filed a workers compensation claim alleging that his heart attack was the result of work-related stress. The parties agree that Williams did not know that Johnson had claimed that this heart attack was a work-related injury. The parties' statements of fact and cited portions of the record do not indicate whether Johnson received workers compensation benefits, as well as company
In January 2009, after Johnson returned to work, Williams provided him with a performance evaluation that assigned him an overall rating of "good." Nevertheless, Johnson contends that Williams treated him differently from other store managers after he returned to work. Specifically, Johnson contends that Williams pressured him to get his store back to "model store" status in a short period of time, without providing him with extra payroll to do so. He contrasts this treatment with that of another store manager, "Penny," who was allowed extra payroll to meet "model store" status and to get ready for district manager meetings. Johnson admits that his store was not returned to "model store" status within 48 hours after his return from leave, but he also admits that he did not ask either Williams or the regional manager for extra payroll to bring his store back to "model store" conditions and that he was not disciplined or subjected to any other adverse employment action because he failed to return the store to "model store" status.
The parties dispute the various details of what happened from April 30, 2009, through May 6, 2009, at the end of Johnson's employment with Dollar General. For purposes of summary judgment, however, they agree that Johnson was not feeling well on the morning of April 30, 2009, because he was suffering from flulike symptoms. Johnson worked until about noon, when his assistant manager, Lesa Eckert, came in to work. Johnson told Eckert that he was not feeling well and was going home. Although Johnson testified in deposition that he believed that he had contacted his doctor's office more than once on April 30 and May 1, 2009, the only medical record in the summary judgment record from about this time period
Plaintiff's Appendix at 65. Johnson did not seek further medical attention for his symptoms.
The parties dispute whether Johnson actually went in to work on May 1, 2009, or only telephoned his assistant manager, Lesa Eckert, that day. However, they agree that, at some point, Johnson spoke to Eckert and requested five days of vacation, the full amount of vacation that he had accrued at that time, because Dollar General did not have sick leave. Johnson claims that he planned to return to work sooner, if his condition improved, but admits that he did not convey that plan to anyone at Dollar General. Notwithstanding that Johnson had not actually seen a doctor and that, when he did speak to
The parties agree that, also on May 1, 2009, Williams left voice messages for Johnson. Johnson asserts that there were approximately four or five such messages and that he believed that they were "threatening." Johnson contends, and the defendants dispute, that the substance of Williams's messages was that Johnson needed "to get his ass back in the store" and that Williams was not responsible for running Johnson's store. Other than the conversation with Eckert on May 1, 2009, Johnson did not contact Williams or anyone else at Dollar General from May 1 through May 5, 2009. On May 5, 2009, between about 8:00 a.m. and 10:00 a.m., Williams left a voice message for Johnson, apparently while Johnson was sleeping. Johnson contends, and the defendants dispute, that Williams told Johnson in that message that Johnson had half an hour to return his call, or Johnson would be terminated.
Johnson did not call Williams until approximately 12:30 a.m. on May 6, 2009, when he left Williams the following voicemail:
Defendants' Appendix at 31 (Johnson Deposition Exhibit 13). The parties agree that Johnson "resigned" on May 6, 2009, but Johnson now contends that his resignation was a "constructive discharge."
Dollar General did not pay Johnson a quarterly bonus payment that Johnson claims he was entitled to at the end of his employment. Dollar General contends that the pertinent fiscal quarter ended May 1, 2009, and that the bonus payout date for the quarter was June 5, 2009, but Johnson was not employed with Dollar General on the bonus payout date, so he was not eligible for the bonus. Johnson contends that state law required payment of the bonus, notwithstanding that he was not employed on the bonus payout date.
Johnson originally filed this action in the Iowa District Court for Hancock County on July 22, 2010, naming Dollar General, Dolgencorp, L.L.C., and Michael Williams as defendants. In his original state-court petition, Johnson asserted state-law claims of retaliation for processing workers' compensation claims and intentional infliction of emotional distress, arising from his treatment after his heart attack and at the end of his employment, and violation of the Iowa Wage Payment Collection Law, arising from failure to pay a quarterly bonus earned before the end of his employment. The defendants filed a joint answer to Johnson's state-court petition on October
Johnson also filed a concurrent action in this federal court on July 26, 2010, against the same defendants, asserting that he was terminated in May 2009 in violation of the FMLA and further claims that the defendants refused to offer Consolidated Omnibus Budget Reconciliation Act (COBRA) benefits to him at the end of his employment, in violation of the Employee Retirement Income Security Act of 1974 (ERISA), as amended by COBRA. See, e.g., Johnson v. Dollar General, 778 F.Supp.2d 934 (N.D.Iowa 2011). However, on February 15, 2011, I dismissed all of Johnson's claims in his first federal action, without prejudice, on the defendants' Rule 12(b)(6) motion to dismiss. Id.
On July 12, 2011, Johnson sought, and on July 22, 2011, the state court granted, leave to amend his state-court petition to add an FMLA claim. On August 10, 2011, on the basis of the addition of that federal claim to the lawsuit, the defendants removed this action to this federal court. See Defendants' Notice Of Removal (docket no. 2). On August 11, 2011, Johnson's Amended Petition And Jury Demand, now properly styled an Amended Complaint, were refilled in this action as docket no. 3.
Because the claims in Johnson's Amended Complaint are now before me on a motion for summary judgment, I will describe them in more detail. The first three "counts" of Johnson's Amended Complaint assert state-law claims.
Although the defendants removed this action to this court on the basis of Johnson's FMLA claim, the record in federal court did not show that they ever filed an answer to the Amended Complaint in either state or federal court, nor did their Scheduling Order and Discovery Plan (docket no. 10), approved by the court on November 18, 2011, provide a deadline for any answer. The Scheduling Order did, however, provide for a dispositive motion deadline of April 30, 2012, and a trial ready date of September 4, 2012. An Order Setting Trial, Final Pretrial Conference, And Requirements For Final Pretrial Order (docket no. 11) was filed on November 30, 2011, setting trial in this matter for September 24, 2012. On March 23, 2012, the parties filed Stipulations About Discovery Obtained Prior To Removal (docket no. 13), but there was no stipulation adopting the defendants' answer to Johnson's FMLA claim in his prior, dismissed federal action or stipulating that no answer was required.
Eventually, on April 30, 2012, the defendants filed their Motion For Summary Judgment (docket no. 14) now before the court. As noted above, the defendants seek summary judgment on all of Johnson's claims in his Amended Complaint. After an extension of time to do so, Johnson filed his Resistance To Motion For Summary Judgment (docket no. 18) on May 31, 2012, and on June 11, 2012, the defendants filed their Reply (docket no. 22) in further support of their Motion For Summary Judgment.
No party requested oral arguments on the defendants' Motion For Summary Judgment in the manner required by applicable local rules. Nevertheless, by Order (docket no. 24), filed July 11, 2012, I set oral arguments on the defendants' Motion For Summary Judgment for July 19, 2012. At the oral arguments, Johnson was represented by Eric Michael Updegraff of Stoltze & Updegraff, P.C., in Des Moines, Iowa. The defendants were represented by Ellen L. Perlioni and Jason R. Elliott of Morgan, Lewis & Bockius, L.L.P., in Dallas, Texas.
At the oral arguments, I questioned the defendants about the absence of any answer to the Amended Complaint in the federal court records. The defendants asserted that they had filed an answer to the Amended Complaint on or about August 1, 2011. On July 19, 2012, the defendants e-mailed me a copy of their Answer To Plaintiff's Amended Petition, filed in state court on August 3, 2011, and on July 20, 2012, the defendants filed their Unopposed Motion For Leave To Supplement Notice Of Removal (docket no. 26), seeking leave to supplement the pleadings with their Answer To Plaintiff's Amended Petition. The defendants were granted leave to supplement the pleadings by Order (docket no.
The defendants' Motion For Summary Judgment is now fully submitted.
Motions for summary judgment essentially "define disputed facts and issues and... dispose of unmeritorious claims [or defenses]." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 585, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotation marks and citation omitted); see Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ("One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses...."). Summary judgment is only appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c) (emphasis added); see Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir.2005) ("Summary judgment is appropriate if viewing the record in the light most favorable to the nonmoving party, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.").
A fact is material when it "`might affect the outcome of the suit under the governing law.'" Johnson v. Crooks, 326 F.3d 995, 1005 (8th Cir.2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Thus, "the substantive law will identify which facts are material." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. An issue of material fact is genuine if it has a real basis in the record, Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir.1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)), or when "`a reasonable jury could return a verdict for the nonmoving party' on the question," Woods, 409 F.3d at 990 (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505); see Diesel Machinery, Inc. v. B.R. Lee Indus., Inc., 418 F.3d 820, 832 (8th Cir.2005) (stating genuineness depends on "whether a reasonable jury could return a verdict for the non-moving party based on the evidence").
Procedurally, the moving party bears "the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record which show a lack of a genuine issue," Hartnagel, 953 F.2d at 395 (citing Celotex, 477 U.S. at 323, 106 S.Ct. 2548), and demonstrating that it is entitled to judgment according to law. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548 ("[T]he motion may, and should, be granted so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 56(c), is satisfied."). Once the moving party has successfully carried its burden under Rule 56(c), the nonmoving party has an affirmative burden to go beyond the pleadings and by depositions, affidavits, or otherwise, designate "specific facts showing that there is a genuine issue for trial." FED. R.CIV.P. 56(e); Mosley v. City of Northwoods, Mo., 415 F.3d 908, 910 (8th Cir. 2005) ("The nonmoving party may not `rest on mere allegations or denials, but must demonstrate on the record the existence of specific facts which create a genuine issue for trial.'" (quoting Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir.1995))).
As the Eighth Circuit Court of Appeals has explained,
Torgerson v. City of Rochester, 643 F.3d 1031, 1042-43 (8th Cir.2011) (en banc).
In its en banc decision in Torgerson, the Eighth Circuit Court of Appeals expressly rejected the notion that summary judgment in employment discrimination cases is considered under a separate standard, citing Reeves and Celotex.
Torgerson, 643 F.3d at 1043. Therefore, I will consider the defendants' Motion For Summary Judgment in this employment discrimination case according to the same standards that I would apply in any other civil case.
However, I must first observe that stating the legal principles of summary judgment in employment discrimination cases is a simple task. Applying those principles to the paper record that forms the judicial
Employment discrimination and retaliation, except in the rarest cases, are difficult to prove. They are perhaps more difficult to prove today — more than forty years after the passage of Title VII and the ADEA, more than twenty years after the passage of the ADA, and nearly two decades after the passage of the FMLA, which is at issue here — than during the earlier evolution of these anti-discrimination and anti-retaliation statutes. Today's employers, even those with only a scintilla of sophistication, will neither admit discriminatory or retaliatory intent, nor leave a well-developed trail demonstrating it. See, e.g., Riordan v. Kempiners, 831 F.2d 690, 697-98 (7th Cir.1987). Indeed, the Fifth Circuit Court of Appeals recognized more than thirty-five years ago, that "[a]s patently discriminatory practices become outlawed, those employers bent on pursuing a general policy declared illegal by Congressional mandate will undoubtedly devise more sophisticated methods to perpetuate discrimination among employees." Rogers v. EEOC, 454 F.2d 234, 239 (5th Cir.1971) (later relied on by the Supreme Court in Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65-67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), as one of the principal authorities supporting recognition of a cause of action for hostile environment sexual harassment under Title VII).
My experience suggests the truth of that observation. Because adverse employment actions almost always involve a high degree of discretion, and most plaintiffs in employment discrimination and retaliation cases are at will, it is a simple task for employers to concoct plausible reasons for virtually any adverse employment action ranging from failure to hire to discharge. This is especially true, because the very best workers are seldom employment discrimination and retaliation plaintiffs due to sheer economics: Because the economic costs to the employer for discrimination or retaliation are proportional to the caliber of the employee, discrimination or retaliation against the best employees is the least cost effective. See, e.g., id. Rather, discrimination and retaliation plaintiffs tend to be those average or below-average workers — equally protected by Title VII, the ADA, the ADEA, or the FMLA — for whom plausible rationales for adverse employment actions are readily fabricated by employers with even a meager imagination. See, e.g., id.
Consequently, I turn to consideration of the parties' arguments for and against summary judgment with both the legal standards for summary judgment and the teachings of experience in mind.
The parties have focused, in the first instance and in the greatest detail, on the sufficiency of Johnson's only federal claim, his claim of violations of the FMLA in
The defendants argue, in essence, that, after re-asserting the same set of facts and
First, the defendants argue that Johnson did not qualify for FMLA leave, based on personal illness, because he lacked a "serious health condition." They argue that, although Johnson left work "ill" on April 30, 2009, he never obtained "treatment" from a physician, but only spoke with a medical assistant at his doctor's office, so that he clearly did not require "inpatient care," one alternative to show a "serious health condition." They also argue that he did not receive "continuing treatment," another alternative to show a "serious health condition," because he did not have even one in-person treatment with a healthcare provider.
Second, the defendants argue that they had no notice of Johnson's need for FMLA leave, where Johnson did little or nothing more than "call in sick." They argue that it is clear that Johnson never gave his employer sufficient cause to believe that he required FMLA leave. Although they acknowledge that Johnson's only voicemail to Williams, on May 1, 2009, might have left Williams wondering about Johnson's condition, which was presumably why Williams kept calling Johnson, that single voicemail was not enough to suggest a need for FMLA leave, particularly where Johnson admits that he ignored further calls seeking information about his condition. They also point out that Johnson did not follow the procedures in Dollar General's FMLA policy for providing notice of a need for FMLA leave in April or May of 2009, even though Johnson had done so concerning his heart attack in November 2008. They also assert, in passing, that they could not have retaliated against Johnson for something he never did, which was try to exercise rights under the FMLA.
Third, the defendants contend that Johnson resigned, so he cannot establish that he was subjected to any "adverse employment action," which defeats his claim of "retaliation" under the FMLA. The defendants argue that, prior to May 6, 2009, when Johnson left his resignation voicemail for Williams, nobody at Dollar General had made a decision to terminate him or communicated to him that his employment was terminated. They point out that Williams disputes that he ever gave Johnson a half-hour deadline to respond to his voicemails, or Johnson would be fired. Even if Williams had left such a voicemail, however, they argue that a mere threat of termination is not itself a termination or adverse employment action.
Finally, the defendants argue that there is simply no nexus between Williams's actions and the FMLA. They argue that Johnson cannot rely on any supposed "attitude change" by Williams after Johnson returned to work after his November 2008 heart attack, because there is no dispute that the leave provided for that absence was "company" leave, not FMLA leave, when Johnson was not eligible for FMLA leave. They also argue that the lack of any request by Johnson for FMLA leave in April or May 2009 also shows the lack of any causal connection. They argue that Johnson relies on nothing but speculation to show a causal connection.
Johnson attempts to counter each of the defendants' arguments for summary judgment on his FMLA claim. In doing so, he appears to focus almost entirely on the viability of his FMLA "retaliation" claim.
First, Johnson argues that he did have a "serious health condition," pointing to medical evidence that he suffered from a
Johnson also argues that a "serious health condition" is not necessary to make out a retaliation claim under the FMLA. He argues that the defendants cannot avoid FMLA liability, simply because they terminated him before obtaining a full picture of his health situation. He argues that an employee who attempts to exercise FMLA rights is protected from retaliation, which plainly suggests that he was not required to show that his attempt would have been successful. He contends that the concept of "material adverse employment action" and the burden-shifting analysis of retaliation claims under Title VII have been applied in the FMLA context, so that a retaliatory action is a material adverse employment action when it might have dissuaded a reasonable worker from making or supporting an FMLA claim. He argues that the retaliatory effect occurs, regardless of whether or not the claimant ultimately has a "serious health condition" under the FMLA.
As to the defendants' "notice" argument, Johnson argues that the circumstances present at the time of his phone call to Williams on May 1, 2009, were sufficient to make the defendants aware that he might need FMLA leave. This is so, he argues, because the defendants knew that Johnson told Williams he needed time off because of chest pains just months after he had suffered a heart attack at work that required six weeks of leave.
As to the defendants' argument that there was no "adverse employment action" sufficient to sustain his FMLA retaliation claim, because he resigned, Johnson argues that there are genuine issues of material fact as to whether Williams's actions constituted a "constructive discharge." He argues that a reasonable jury could find that Williams's multiple, threatening voicemails would have discouraged a reasonable employee from making a request for FMLA leave. He argues that his failure to mention the FMLA specifically in his notice of a need for time off is not dispositive of the question of whether or not Williams would have known that he needed FMLA leave. He also argues that Williams's repeated, hostile voicemails and threat of termination if he did not respond in thirty minutes were such that a reasonable employee would have found his situation intolerable and, thus, they raise a reasonable inference of intent to force him to quit.
Finally, Johnson argues that there is a nexus between protected activity and materially adverse employment action, because the record suggests that Williams was upset by Johnson's need for leave. He argues that the court would be hard-pressed
In reply, the defendants argue that Johnson cannot carry over his "serious health condition" from his heart attack in 2008 to every subsequent instance in which he missed work. They reiterate that the record shows that Johnson complained to the medical assistant at his doctor's office on May 1, 2009, about "flu-like symptoms," not "chest pains," that he told the medical assistant that he was certain it was not a heart attack, and that he refused either emergency room treatment or an appointment with the on-call doctor at the practice. They point out that no in-person treatment or inpatient care ever occurred for his "condition" in late April and early May 2009 before Johnson resigned. They also argue that a vague reference to chest pains and the need to rest over the weekend (even if it had not been a false description of his symptoms and his conversation with his doctor's office) is not enough to put an employer on notice of a need for FMLA leave, because it falls well short of an employee's duty to indicate both the need and the reason for the leave. They also argue that Williams sought more information about Johnson's condition, but Johnson failed to meet his duty to respond. Finally, they point out that Johnson indicated to Williams that he needed to rest "over the weekend," but then failed to appear for work on Monday, without providing any additional information about his condition or his need for a longer absence.
The defendants also argue that eligibility for FMLA leave is a prerequisite for an FMLA retaliation claim, asserting that "[n]umerous other courts have uniformly held that a plaintiff cannot sustain a claim for FMLA retaliation without first showing an entitlement to FMLA leave," and citing four federal district court cases. They also read Eighth Circuit law to recognize that an employee must "seek treatment" for a health condition that later proves to be "serious" to sustain an FMLA retaliation claim.
Finally, the defendants argue that Johnson raises his theory that he was "constructively discharged" for the first time in response to their Motion For Summary Judgment, but that doing so is not enough to amend his pleading to include it. Even if such a contention had been properly raised, however, they argue that it would fail, because a few unreturned voicemails, left while the plaintiff was absent from work, cannot be considered working conditions, much less something so extraordinary and egregious as to be objectively intolerable. They also point out that Johnson plainly failed to give Dollar General any opportunity to resolve the problem, before jumping ship.
As the Eighth Circuit Court of Appeals has explained,
Ballato v. Comcast Corp., 676 F.3d 768, 772 (8th Cir.2012); accord Sisk v. Picture People, Inc., 669 F.3d 896, 899 (8th Cir. 2012).
In addition to creating a right to leave, the FMLA defines "prohibited acts" toward those who exercise or attempt to
29 U.S.C. § 2615(a).
Using the "Stallings dichotomy," "[i]n an interference claim `the employee alleges that an employer denied or interfered with his substantive rights under the FMLA.'" Chappell, 675 F.3d at 1115 (quoting Phillips v. Mathews, 547 F.3d 905, 909 (8th Cir.2008), in turn quoting Stallings, 447 F.3d at 1050); accord Ballato, 676 F.3d at 772 ("`An employee can prevail under an interference theory if he was denied substantive rights under the FMLA for a reason connected with his FMLA leave.'" (quoting Stallings, 447 F.3d at 1050)). Such a claim is based on § 2615(a)(1), which 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 FMLA].'" Ballato, 676 F.3d at 772 (quoting 29 U.S.C. § 2615(a)(1)). Under Eighth Circuit law, "interference" claims are "limited... to situations where the employee proves that the employer denied a benefit to which she was entitled under the FMLA, which include terminating an employee while on FMLA leave." Lovland, 674 F.3d at 811 (citing Wisbey v. City of Lincoln, Neb., 612 F.3d 667, 675 (8th Cir. 2010), abrogated on other grounds by Torgerson v. City of Rochester, 643 F.3d 1031 (8th Cir.2011) (en banc), in turn citing Stallings, 447 F.3d at 1050-51). "Interference" situations also include using the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions, or counting FMLA leave under a "no fault" attendance policy, Ballato, 676 F.3d at 772, and "`manipulation by a covered employer to
"[W]hen the employee asserts a § 2615(a)(1) claim that a right prescribed by the FMLA has been denied, [the Eighth Circuit Court of Appeals has] held that the employer's intent in denying the benefit is immaterial." Lovland, 674 F.3d at 811. "The initial burden of proof in an FMLA interference case is on the employee to show only that he or she was entitled to the benefit denied." Ballato, 676 F.3d at 772 (internal quotation marks omitted). However, FMLA benefits are contingent upon the employee having "a serious health condition that makes [him] unable to perform the functions of [his] position." Rynders v. Williams, 650 F.3d 1188, 1195 (8th Cir.2011). Thus, to prove the requirement for an interference claim that the plaintiff was entitled to the benefit denied, the plaintiff must prove that he or she suffered from "a serious health condition." Id.; see also Throneberry v. McGehee Desha Cnty. Hosp., 403 F.3d 972, 975 n. 2 (8th Cir.2005) (identifying the elements of an "interference" claim as including proof that the conditions from which the plaintiff suffered were "serious health conditions"); Rankin v. Seagate Techs., Inc., 246 F.3d 1145, 1147 (8th Cir.2001) ("Where absences are not attributable to a `serious health condition,' however, [the] FMLA is not implicated and does not protect an employee against disciplinary action based upon such absences.").
The Eighth Circuit Court of Appeals has explained,
Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir.2005); but see Rankin, 246 F.3d at 1147 (observing that "conditions like the common cold or the flu will not routinely satisfy the requirements of a `serious health condition,'" but that "absences resulting from such illnesses are protected under FMLA when the regulatory tests are met"). A serious health condition "`means 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.'" Rynders, 650 F.3d at 1195-96 (quoting 29 U.S.C. § 2611(11)).
Johnson does not contend that he can satisfy the "inpatient care" prong of this definition. Thus, I will consider only the "continuing treatment" prong in more detail. The "continuing treatment" prong is subject to an "objective test," requiring the claimant to prove the following: "(1) that she had a `period of incapacity requiring absence from work,' (2) that this period of incapacity exceeded three days, and (3) that she received `continuing treatment by... a health care provider' within the period." Rankin, 246 F.3d at 1147-49 (quoting Thorson v. Gemini, Inc., 205 F.3d 370, 377 (8th Cir.2000), and citing former 29 C.F.R. § 825.114(a), now 29 C.F.R. § 825.115(a)); see also Woods, 409 F.3d at 990. Furthermore, "treatment by a health care provider means an in-person visit to a health care provider," and "[t]he first (or
Furthermore, the employee must show that he or she gave the employer adequate and timely notice of the need for FMLA leave. Chappell, 675 F.3d at 1116; Rynders, 650 F.3d at 1196 ("`A claim [of interference] under the FMLA cannot succeed unless the plaintiff can show that he gave his employer adequate and timely notice of his need for leave....'") (quoting Woods, 409 F.3d at 991, and also citing Scobey v. Nucor Steel-Ark., 580 F.3d 781, 789-90 (8th Cir.2009)). "Adequate notice requires `enough information to put the employer on notice that the employee may need FMLA leave.'" Id. (quoting Rynders, 650 F.3d at 1196, in turn quoting Thorson, 205 F.3d at 381); Rynders, 650 F.3d at 1196. As the Eighth Circuit Court of Appeals has explained,
Rynders, 650 F.3d at 1196. Not every routine visit to a doctor constitutes notice to an employer of a potential serious health condition, but knowledge of a "non-routine" visit related to a prior condition that indicated a need for additional time off covered by the FMLA may be sufficient to satisfy the notice requirement. Phillips, 547 F.3d at 910-11. "An employer may require that a request for leave is supported by certification from a health care provider." Chappell, 675 F.3d at 1116 (citing 29 U.S.C. § 2613(a)).
Although no showing of an employer's "intent" is required, an "interference" claim is not a "strict liability" claim; rather, "an employer is not liable for interference if its adverse decision was unrelated to the employee's use of FMLA leave." See Lovland, 674 F.3d at 811; accord Ballato, 676 F.3d at 772 ("If there exists a showing of interference, the burden shifts to the employer to prove that there was a reason unrelated to the employee's exercise of FMLA rights for terminating the employee."). This is so, because "`[a]n employee who requests FMLA leave has no greater protection against termination for reasons unrelated to the FMLA than she did before taking the leave.'" Ballato, 676 F.3d at 772 (quoting Estrada v. Cypress Semiconductor (Minn.) Inc., 616 F.3d 866, 871 (8th Cir.2010)). For example, "[a] company may take action against an employee for violating the company call-in policy when the employee is on FMLA leave." Chappell, 675 F.3d at 1115. Thus, there is no "interference" with FMLA rights, if the negative consequences would attach to any absence, not just to absences covered under the FMLA. Id.
Among the violations of the FMLA that Johnson alleges, there are two that can reasonably be read to assert "interference" claims: (1) his claim that the defendants failed to give appropriate notices as to FMLA rights, and (2) his claim that the defendants failed to grant him his FMLA leave. See Amended Complaint,
Johnson's second "interference" claim, alleging failure to grant Johnson his FMLA leave, requires more analysis. As the defendants assert, however, this claim founders on Johnson's inability to generate any genuine issues of material fact that his absence at the end of April 2009 was for a "serious health condition." Rynders, 650 F.3d at 1195 (FMLA benefits are contingent upon the employee having "a serious health condition that makes [him] unable to perform the functions of [his] position."); Throneberry, 403 F.3d at 975 n. 2 (identifying the elements of an "interference" claim as including proof that the conditions from which the plaintiff suffered were "serious health conditions"); Rankin, 246 F.3d at 1147 ("Where absences are not attributable to a `serious health condition,' however, [the] FMLA is not implicated and does not protect an employee against disciplinary action based upon such absences.").
Johnson asserts that his "serious medical condition" was "severe coronary artery disease," but he never asserts that he suffered from a "serious medical condition" on the basis of a "chronic condition," as defined in 29 C.F.R. § 825.115(c); a "permanent or long-term condition," as defined by 29 C.F.R. § 825.115(d); or a "condition requiring multiple treatments," as defined by 29 C.F.R. § 825.115(e). See also Rask v. Fresenius Med. Care N. Am., 509 F.3d 466, 472-73 (8th Cir.2007) (discussing whether depression was a "serious medical condition" under the "chronic condition" regulation, then 29 C.F.R. § 825.114(a)(2)(i)). There is no showing here that there was any agreement with Dollar General for Johnson to take leave for his severe coronary artery disease on an intermittent basis. See Ballato, 676 F.3d at 772 (citing 29 U.S.C. § 2612(b)(1)). Even if Johnson suffered from coronary artery disease, not every routine visit Johnson made to a doctor nor every absence he took from work was an absence for a "serious health condition," cf. Phillips, 547 F.3d at 910-11, if there is no showing that, at the time of the absence, it was coronary artery disease that made Johnson unable to perform his job. See Ballato, 676 F.3d at 772 (leave is required if the employee's condition is both "a serious
Furthermore, even assuming that Johnson's absence beginning April 30, 2009, was because of coronary artery disease — a proposition for which there is scant evidence in the record, consisting only of the suggestion in the notes from Johnson's call to his doctor's office on May 1, 2009, that his "flu-like symptoms" were similar to those he suffered at the time of his heart attack in November 2008 — Johnson does not assert, and there is no indication in the record, that this absence required "inpatient care." See Rynders, 650 F.3d at 1195-96 (explaining that a serious health condition "`means 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.'" (quoting 29 U.S.C. § 2611(11))). Neither a trip to the emergency room nor an in-person visit with the on-call doctor — both of which Johnson's doctor's medical assistant urged when Johnson called his doctor's office on May 1, 2009 — would have constituted "inpatient care," and Johnson refused either kind of treatment.
Johnson also cannot generate a genuine issue of material fact that the absence that began on April 30, 2009, required "continuing treatment." Id. Applying the "objective test" for "continuing treatment," even assuming that Johnson was "incapacitated" by his illness for more than three days, from April 30, 2009, until May 6, 2009, there is no evidence at all that he "received `continuing treatment by ... a health care provider' within the period." Rankin, 246 F.3d at 1147-49 (quoting Thorson, 205 F.3d at 377, and citing former 29 C.F.R. § 825.114(a), now 29 C.F.R. § 825.115(a)); see also Woods, 409 F.3d at 990. Although the record shows that Johnson contacted his doctor's office on May 1, 2009, there is no evidence that he had any "in-person visit to a health care provider ... within seven days of the first day of incapacity," on April 30, 2009. 29 C.F.R. § 825.115(a)(3). Again, Johnson's assertion that the medical assistant he spoke with on May 1, 2009, urged him to go to the emergency room or to see the on-call doctor at his doctor's office does not substitute for actually receiving "in-person" treatment, at least where Johnson refused such treatment and was not precluded from taking advantage of it by some insuperable bar not of his own making.
Because Johnson cannot generate a genuine issue of material fact that he actually suffered from a "serious health condition" that caused him to miss work from April 30, 2009, through May 6, 2009, his "interference" claim based on denial of FMLA leave for that absence fails as a matter of law. The defendants are entitled to summary judgment on this FMLA "interference" claim.
Johnson also asserts an FMLA "retaliation" claim or claims based on retaliation for exercising or attempting to exercise FMLA rights. Johnson's FMLA "retaliation" claim or claims are more hotly contested than his "interference" claims.
As the Eighth Circuit Court of Appeals has noted, § 2615(a)(1) and (a)(2) "do not explicitly prohibit retaliation against an employee for exercising FMLA rights." Lovland, 674 F.3d at 810. Nevertheless, the Eighth Circuit Court of Appeals, like other courts, has uniformly held that § 2615(a) prohibits "retaliation" for exercising FMLA rights, as well as "interference" with the exercise of such rights. See, e.g., Ballato, 676 F.3d at 772; Chappell,
Although the Eighth Circuit Court of Appeals has uniformly recognized such a retaliation claim, it has not uniformly identified the statutory basis for it. For example, in Lovland, the court stated, "[O]ur cases have classified claims of retaliation for the exercise of FMLA rights as arising under the `discrimination' prohibition of § 2615(a)(2); we have limited `interference' claims under § 2615(a)(1) to situations where the employee proves that the employer denied a benefit to which she was entitled under the FMLA...." Lovland, 674 F.3d at 811. On the other hand, the court in Lovland also acknowledged that a concurring opinion in one of its decisions had asserted that treating a claim of retaliation for exercising FMLA rights as a claim "`under § 2615(a)(1)'" was "`more appropriate ... than invoking the opposition clause of § 2615(a)(2),'" and that "[s]ome later opinions have expressed support for this view, without abandoning the Stallings dichotomy." Id. (citing Judge Colloton's concurrence in Phillips, 547 F.3d at 915, and opinions in Quinn v. St. Louis Cnty., 653 F.3d 745, 754 n. 7 (8th Cir.2011), and Scobey, 580 F.3d at 790 n. 9). The court in Lovland also recognized that "in January 2009, the Department of Labor amended the first sentence of 29 C.F.R. § 825.220(c) to state, "`The Act's prohibition against "interference" prohibits an employer from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise FMLA rights,' describing this as a `clarification [that] will have no impact on employers or workers.'" Id. (quoting 73 Fed.Reg. 67934, 68055 (Nov. 17, 2008)).
In Scobey, 580 F.3d 781, the Eighth Circuit Court of Appeals explained succinctly why § 2615(a)(1) is a more logical statutory basis than § 2615(a)(2) for a claim of retaliation for exercising FMLA rights. In that case, the plaintiff's "interference" claim was based on a demotion for four unexcused absences in a four-day period, and his "retaliation" claim was based on a demotion for using paid leave to obtain treatment for his alcoholism and depression, for which his four unexcused absences were merely a pretext for retaliation. Id. at 790. The court explained:
Scobey, 580 F.3d at 790 n. 9.
I agree with Scobey and the other opinions suggesting that the statutory basis for a claim of retaliation for exercising or attempting to exercise FMLA rights lies in § 2615(a)(1), rather than § 2615(a)(2). While the plain language of § 2615(a)(1) would reasonably encompass a claim of retaliation for exercising FMLA rights as a form of "interference," the language of § 2615(a)(2) cannot be strained so far as to authorize a claim of retaliation for exercising FMLA rights without attributing a remarkably odd meaning to "opposition." Id. While the plain language of § 2615(a)(2) does prohibit retaliation "of a sort" — retaliation for "opposing any practice made unlawful by this subchapter" — it does not prohibit retaliation for an employee's exercise of his or her FMLA rights. Scobey, 580 F.3d at 790 n. 9. Similarly, § 2615(b) prohibits retaliation "of a sort" — retaliation for asserting a claim of a violation of the FMLA or participating in an inquiry or proceeding on such a claim-but it also does not prohibit retaliation for an employee's exercise of his or her FMLA rights to leave.
Indeed, it has been clear since January 2009, before Johnson allegedly suffered retaliation for exercising his FMLA rights, that governing regulations place the prohibition on retaliation for exercising FMLA rights within the statutory prohibition on "interference." Lovland, 674 F.3d at 811 (citing 73 Fed.Reg. 67934, 68055 (Nov. 17, 2008), for this amendment to 29 C.F.R. § 825.220(c)). Since 2009, 29 C.F.R. § 825.220(c) has provided as follows:
29 C.F.R. § 825.220(c) (emphasis added). The Eighth Circuit Court of Appeals has recognized that Department of Labor regulations under the FMLA are generally entitled to deference, even though the court remains the final authority in matters of statutory interpretation and "`must reject administrative constructions which are contrary to clear congressional intent.'" Ragsdale v. Wolverine Worldwide, Inc., 218 F.3d 933, 936 (8th Cir.2000) (quoting Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 n. 9, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). Although the court in Ragsdale struck down certain FMLA regulations, the Eighth Circuit Court of Appeals has never considered the validity of 29 C.F.R. § 825.220(c) as amended in 2009. The Sixth Circuit Court of Appeals has expressly concluded that § 825.220(c), as
Ultimately, however, it is not the statutory or regulatory basis for an FMLA retaliation claim that is critical, but how Eighth Circuit case law has defined the claim and what is required to prove it. See Lovland, 674 F.3d at 812. As the Eighth Circuit Court of Appeals explained, "numerous recent Eighth Circuit decisions have adhered to the Stallings interference/retaliation dichotomy, including decisions after the promulgation of revised § 825.220(c) in January 2009." Id. Thus, under Eighth Circuit law, the gravamen of an FMLA "retaliation" claim (as distinguished from an "interference" claim, involving denial of or interference with FMLA rights) is that the employer discriminated against the employee for taking FMLA leave. Id. at 811-12. Another critical distinction between an "interference" claim and a "retaliation" claim is that, "when the employee asserts a § 2615(a)(1) [interference] claim that a right prescribed by the FMLA has been denied, we have held that the employer's intent in denying the benefit is immaterial; by contrast, a retaliation claim ... requires proof of an impermissible discriminatory animus, typically with evidence analyzed under the McDonnell Douglas burden-shifting framework at the summary judgment stage." Lovland, 674 F.3d at 811 (footnote omitted) (citing Stallings, 447 F.3d at 1050-51, and McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-06, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)); Chappell, 675 F.3d at 1116-17.
More specifically,
Chappell, 675 F.3d at 1116-17; Sisk, 669 F.3d at 899 (also citing Wierman, 638 F.3d at 999).
Dollar General asserts that an employee cannot assert a claim for retaliation for exercising FMLA rights unless the employee was actually entitled to FMLA leave, i.e., actually suffered from a "serious health condition." Three Circuit Courts of Appeals, the Fifth, Sixth, and Eleventh, have embraced this position, albeit some of them only in unpublished decisions. See, e.g., Sosa v. Coastal Corp., 55 Fed.Appx. 716 (5th Cir.2002) (unpublished op.) (holding that, to satisfy the "protected activity" element of a prima facie case of FMLA retaliation, the plaintiff "must show that she suffered from a serious health condition that made her unable to perform the functions of her position"); Morris v. Family Dollar Stores of Ohio, Inc., 320 Fed.Appx. 330, 338 (6th Cir.2009) (unpublished op.) (holding that, because the plaintiff's leave was not on account of a serious
The Tenth Circuit Court of Appeals provided a more thorough explanation of the rationales for both sides of the issue in Wilkins v. Packerware Corp., 260 Fed. Appx. 98 (10th Cir.2008) (unpublished op.). In Wilkins, the plaintiff contended that he should not have been required to prove his eligibility for FMLA leave in order to pursue his FMLA retaliation claim, because "an employee engages in `protected activity' for purposes of an FMLA retaliation claim whenever he or she asserts an FMLA right, even if it later emerges that the employee is not actually eligible for leave." 260 Fed.Appx. at 103 (emphasis in the original). The court observed, "[F]ar from being an obvious or evident point of law, the legal position [the plaintiff] advance[d] appears to implicate what is very much an open question in this circuit." Id. The court then considered the reasons supporting and undermining the plaintiff's argument:
Wilkins, 260 Fed.Appx. at 103. However, because the plaintiff had not raised the issue in the district court, the Tenth Circuit Court of Appeals could only review for plain error. Id. The appellate court concluded that the competing arguments outlined above demonstrated that the issue was open and contestable, so that the district court's requirement that the plaintiff prove he suffered from a "serious health condition" to support a retaliation claim was not "plainly evident error." Id. Consequently, the court concluded that it "need not decide whether one must actually be eligible for FMLA leave to bring a claim for retaliation under the Act." Id.
As I explained above, I believe that § 2615(a)(1), which makes it unlawful, among other things, "to interfere with, restrain, or deny ... the attempt to exercise any right provided under this subchapter," is the appropriate statutory basis for an FMLA retaliation claim of the kind at issue here. I cannot agree with the Eleventh Circuit Court of Appeals in Walker, 379 F.3d at 1253, that this provision requires that the attempt to exercise FMLA rights ultimately would be successful, absent the employer's interference. "Attempt" itself does not necessarily carry that connotation; to the contrary, it encompasses an unsuccessful effort. See OXFORD ENGLISH DICTIONARY (online version) (www.oed.com; last accessed June 27, 2012) (defining the noun "attempt" as "a. A putting forth of effort to accomplish what is uncertain or difficult; a trial, essay, endeavour; effort, enterprise, undertaking," and "b. esp. The effort in contrast with the attainment of its object; effort merely, futile endeavour."); MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY (10th ed.1995) (defining the noun "attempt" as "1
Finally, a retaliation claim seeks to deter conduct involving a discriminatory animus of the employer, cf. Lovland, 674 F.3d at 811 (stating, "a retaliation claim [under the FMLA] ... requires proof of an impermissible discriminatory animus"), and "materially adverse action" of an employer sufficient to support a retaliation claim under the FMLA means action that would dissuade a reasonable employee, not just the plaintiff, from exercising her rights under the FMLA, see Quinn, 653 F.3d at 754 n. 9 (noting, "Every circuit that has addressed the issue has held that the `materially adverse' standard for Title VII retaliation claims applies to FMLA retaliation claims" (citations omitted)). It follows that it would arguably defeat the purpose of the statute to allow an employer to retaliate against an employee, when the employer has received "`enough information to put the employer on notice that the employee may need FMLA leave,'" Chappell, 675 F.3d at 1116 (emphasis added) (quoting Rynders, 650 F.3d at 1196), whether or not the employee would ultimately have qualified for such leave. Cf. Wilkins, 260 Fed.Appx. at 103 (noting the argument that failure to recognize an FMLA retaliation claim where the plaintiff ultimately did not qualify for FMLA leave would not serve the purpose of the statute). In other words, where an employer engages in conduct that would dissuade a reasonable employee from seeking FMLA leave because of the possibility that a particular employee may need FMLA leave, the employer has both shown the required animus and engaged in conduct of sufficient gravity to brand the employer's actions as retaliatory and in violation of the statute.
There is no doubt, under Eighth Circuit law, that "protected conduct" that would support a retaliation claim based on discrimination for exercising FMLA rights necessarily includes taking FMLA leave, when eligible, and an attempt to take FMLA leave that ultimately would have been successful. See Chappell, 675 F.3d at 1116 (the plaintiff's retaliation claim alleged discrimination after he actually took FMLA leave); Sisk, 669 F.3d at 898 (same). I believe that Eighth Circuit law also supports my view that notice of a need for FMLA leave, made in good faith, is also "protected conduct," invoking the protections of the FMLA from retaliation for exercising or attempting to exercise FMLA rights, whether or not the employee is actually eligible for FMLA leave.
Specifically, the Eighth Circuit Court of Appeals explained in Wierman,
Wierman, 638 F.3d at 1000 (emphasis added). Moreover, in Wierman, the court appeared to treat the employee's notice of a need for FMLA leave as "protected conduct," that is, as the exercise of FMLA rights, because the employer could not use its termination of the employee before the deadline for submission of FMLA paperwork to argue that the employee never exercised her FMLA rights. Id. (citing Phillips, 547 F.3d at 910, as rejecting an argument that an employee's termination before FMLA certification means that she never exercised her FMLA rights, where the employee's FMLA status was in flux at the time of termination, and Caldwell v. Holland of Texas, Inc., 208 F.3d 671, 677 (8th Cir.2000), as stating, "An employer does not avoid liability by discharging an employee who takes leave in order to seek treatment for a condition that is later held to be covered by the FMLA."). The court also held that there was a causal connection between the plaintiff's protected activity and the challenged action, because the employer "terminated [the plaintiff] within a week, in part due to absences that may have been covered by the FMLA." Id. (emphasis added).
In short, a "retaliation" claim does not require proof that the plaintiff actually suffered a "serious health condition," only that the plaintiff gave adequate and timely notice to the employer that he or she needed leave for a condition that the plaintiff believed, in good faith, might be covered by the FMLA.
In addition to the FMLA claims that I classified as "interference" claims, above, Johnson asserts FMLA claims based on "retaliating" against him for having exercised his FMLA rights; "discriminating" against him for having utilized his FMLA rights; and using "a pretext ... solely to justify terminating him." Amended Complaint,
Contrary to the defendants' contentions, Johnson's FMLA "retaliation" claim does not fail for the same reason that his FMLA "interference" claims fail, failure to generate a genuine issue of material fact that his April 30, 2009, absence was because of a "serious health condition." For the reasons explained above, Johnson is not required to prove that he suffered from a "serious health condition" as an element of his "retaliation" claim; rather, to generate a prima facie case of FMLA retaliation, he is required to prove (or for purposes of summary judgment, generate genuine issues of material fact) that he gave notice to Dollar General that he needed leave for a condition that he believed, in good faith, might be covered by the FMLA, and suffered adverse employment action causally connected to that notice. Cf. Chappell, 675 F.3d at 1116-17 (stating the elements of a prima facie case of FMLA retaliation). If Dollar General then promulgated a non-discriminatory (i.e., non-retaliatory), legitimate justification for its conduct, Johnson would have to generate genuine issues of material fact that Dollar General's justification was a pretext for retaliation or generate genuine issues of material fact that Dollar General actually retaliated, cf. id., keeping in mind that an FMLA "retaliation claim ... requires proof of an impermissible discriminatory animus." Lovland, 674 F.3d at 811 The question is, has Johnson generated the necessary genuine issues of material fact?
If the relevant questions were solely what the employer knew from the employee's notice and how the employer responded, I would conclude that Johnson had generated the necessary genuine issues of material fact to defeat the defendants' summary judgment motion as to this claim and allow this claim to go to the jury. The record shows that what Williams (and, hence, Dollar General) knew about the April 30, 2009, absence was from a voicemail that Johnson left Williams on May 1, 2009, stating that Johnson had been to the doctor owing to chest pains and that the doctor had told him to stay home over the weekend to get some rest. A reasonable jury could find that Johnson gave adequate and timely notice of his need for FMLA leave in this voicemail, that is, enough information to put Dollar General on notice that Johnson might need FMLA leave. Chappell, 675 F.3d at 1116; see also Rynders, 650 F.3d at 1196 (noting that whether or not notice is adequate requires consideration of the totality of the circumstances and is typically a jury question). Although the voicemail did not invoke the FMLA, it did not have to for Johnson to provide the required notice. Rynders, 650 F.3d at 1196. Moreover, the voicemail did not give notice of a "routine" doctor visit, and the specific identification of the symptoms as "chest pains" was sufficient to suggest to a reasonable person that the visit might relate to Johnson's prior heart attack. Thus, the doctor's purported instruction that Johnson needed to take time off because of those chest pains was sufficient to indicate a need for additional time off covered by the FMLA. Phillips, 547 F.3d at 910-11. To put it another way, based on what the defendants knew, there are genuine issues of material fact that Johnson gave notice that he needed time off for a "serious health condition," because he indicated that he had had an in-person treatment by a health care provider and would be incapacitated for more than three days because of symptoms consistent with a heart
That is not the end of the matter, however, because I have also postulated, above, that, the employee must also have had a good faith belief that he was seeking leave covered by the FMLA to engage in "protected activity." Johnson cannot generate a genuine issue of material fact on this requirement where he knew (a) that he had not actually had any in-person treatment by a health care provider; (b) that he had not even complained that he was suffering from "chest pains" when he spoke to the doctor's medical assistant in his phone call; and (c) that no health care provider had directed him to take time off to rest as treatment for his "chest pains" or the symptoms that he had actually reported to the medical assistant. Johnson has not, and does not now, assert that he actually had an in-person treatment with a health care provider for the condition that caused his absence beginning April 30, 2009, nor has he ever contended that he was not misrepresenting either his symptoms or the medical assistant's suggestions in his voicemail to Williams. Indeed, Johnson cannot generate a genuine issue of material fact that he had a good faith belief that he was actually suffering symptoms related to his coronary artery disease, where he does not dispute the medical assistant's record of his call as indicating that he insisted that he was not suffering a heart attack, but symptoms caused by his exposure to the flu from contact with his co-workers and significant other.
Thus, the defendants are entitled to summary judgment on Johnson's FMLA retaliation claim, because Johnson has failed to generate genuine issues of material fact on the first element of his prima facie case, which requires him to show that he engaged in "protected activity." See Chappell, 675 F.3d at 1116-17.
The defendants also seek summary judgment on Johnson's claim alleging retaliation for processing workers compensation claims, in
In support of this part of their Motion For Summary Judgment, the defendants assert that Johnson simply has no evidence of "retaliation" for filing a workers compensation claim. The defendants argue that Johnson cannot show that he engaged in any "protected activity" during the time when he was absent from work in late April and early May of 2009, he simply "assumes" that his voicemail report of "chest pains" might possibly have led Williams to believe that he potentially had
In response, Johnson argues that he did engage in protected activity, because he did take time off for workers compensation injuries in 2008, that he was "constructively discharged" in May 2009, and that Williams's response to his final absence indicates the causal connection between his workers compensation absences and his constructive discharge. More specifically, Johnson argues that he sought workers compensation benefits for his October 17, 2008, knee injury, that the record shows that Williams was aware of that workers compensation claim, and that Johnson missed work again for his heart attack from November 18, 2008, through December of 2008. Johnson argues that a reasonable jury could find that Williams's voicemails during his absence beginning April 30, 2009, demonstrate that he was constructively discharged on May 6, 2009. He also argues that there is sufficient evidence for a reasonable jury to find the necessary causal connection, because the evidence shows that Williams was upset on May 1, 2009, about Johnson's request for more time off, because Williams was tired of running Johnson's store. Johnson argues that Williams would not have been that upset just over five days off for which Johnson indicated he would use vacation time, so the inference is that prior absences were the tipping point for his termination. In response to Williams's separate argument for summary judgment on this claim, Johnson asserts that the Iowa Supreme Court has held that liability for a termination in violation of public policy can extend to individual officers of a corporation who authorized or directed the discharge of the employee for reasons that contravene public policy.
The defendants reply only to Johnson's argument concerning individual liability. They point out that Williams was not an officer or director of Dollar General (or Dolgencorp), but a district manager — that is, he was merely Johnson's supervisor.
I will take up the last issue raised by the defendants first, whether Williams can be held individually liable for discharge of Johnson in violation of public policy. The Iowa Supreme Court considered the question of liability of both officers and employees for such a tort in
Even if both Dollar General and Williams could be liable on this claim, the defendants assert that the claim fails as a matter of law on the merits. As I have explained,
Beekman v. Nestle Purina Petcare Co., 635 F.Supp.2d 893, 921 (N.D.Iowa 2009).
There is no hint in the record that Johnson's absence beginning April 30, 2009, was, itself, protected activity, because Johnson never asserted workers compensation rights for that absence, and he does not suggest, even now, that this absence was the result of a workplace injury. See id. Nevertheless, I will assume, for the sake of argument, that Johnson can generate genuine issues of material fact on the first two elements of his prima facie case, because he engaged in protected activity by seeking and obtaining workers compensation benefits for his knee injury in October 2008, and that he suffered adverse employment action, because he was "constructively discharged" by Williams in May 2009.
As to the "causal connection" element, I noted the following in Beekman:
Beekman, 635 F.Supp.2d at 922.
Here, Johnson cannot even rely on "temporal proximity" as a factor to show the purported "causal connection," see id., because he was not purportedly discharged until more than seven months after he took the only workers compensation leave known to Williams, leave for his knee injury in October 2008. The parties agree that Williams did not know that Johnson
Johnson also argues that Williams would not have been that upset just because he took five days off in April and May of 2009 for which he had indicated that he would use vacation time, so that the inference is that prior absences were the tipping point for his termination. However, that argument relies entirely on speculation, not reasonable inferences. Indeed, only wild speculation, not reasonable inferences, suggests that a five-day absence seven months earlier for a workers compensation injury was the factor that "tip[ped] the scales decisively one way or the other, even if it is not the predominant reason behind the employer's decision" to terminate Johnson in May 2009. See id. (quotation marks and citations omitted). Johnson must show a causal connection between adverse employment action and workers compensation claims or activity giving rise to a workers compensation claim, see id.; it is not enough to show annoyance with some absence for which Johnson had not sought workers compensation benefits and there was no reason for the employer to believe that workers compensation benefits would likely be sought. Here, Johnson had much longer absences for other reasons in the interim between his absence for a workplace injury in October 2008 and his absence beginning April 30, 2009, he had not sought vacation time from Williams as required by company policy for the latter absence, and he had failed to respond to Williams's voicemails about the latter absence. This is a case in which the high causation standard and the lack of reasonable inferences that a workers compensation absence was the determining factor for any adverse action by Williams preclude a jury question on the issue. Id.
The defendants are entitled to summary judgment on this claim, as well.
Finally, in
The defendants assert that, under the IWPCL, an employee's eligibility for a bonus is governed by the terms set forth in the parties' agreement or an employer's policy, citing IOWA CODE § 91A.2(7)(c). The defendants argue that, under its 2009 Fiscal Year Retail Incentive Plan, for a store manager such as Johnson to be eligible for payment of a quarterly bonus, the store manager had to be employed with Dollar General through the bonus calculation period and on the date of bonus payout. They assert that the bonus plan also states that the payout date for quarterly bonuses is typically within 6 weeks, but no later than 8 weeks, of the end of the financial quarter. They contend that, in the case of the disputed bonus, the quarter ended May 1, 2009, and the payout date for the quarterly bonus was June 5, 2009, well after Johnson left his employment with Dollar General.
Johnson argues that the terms of the bonus payment under Dollar General's policy violate Iowa law. He argues that the Iowa Supreme Court has recognized that a bonus constitutes wages under IOWA CODE § 91A.2(7), that IOWA CODE § 91A.3 requires an employer to pay wages earned no less than one month after they are earned, and that IOWA CODE § 91A.4 requires an employer to pay wages earned no later than the next regular payday. He argues that Dollar General's policy also notes that its eligibility requirements are subject to state law. Thus, he argues that he should have been paid the bonus no later than a month after the end of his employment, notwithstanding the illegal eligibility requirement that he be employed on the date of payout.
In reply, the defendants argue that Johnson seeks to expand Iowa law well beyond its current limits. They argue that the statutory provisions cited by Johnson do not purport to define when a bonus is "earned" and that the Iowa Supreme Court has found that the timing provisions of the statute are inapplicable to annual bonus payments. They contend that Johnson did not fulfill the unambiguous requirements for eligibility for the quarterly bonus in question.
The Iowa Supreme Court has observed that the purpose of the Iowa Wage Payment Collection Law (IWPCL), IOWA CODE CH. 91A, "is to `facilitate collection of wages by employees.'" Runyon v. Kubota Tractor Corp., 653 N.W.2d 582, 585 (Iowa 2002) (quoting Condon Auto Sales & Serv., Inc. v. Crick, 604 N.W.2d 587, 596 (Iowa 1999)); Phipps v. IASD Health Servs. Corp., 558 N.W.2d 198, 201 (Iowa 1997). "An employer must pay all wages due its employees." Phipps, 558 N.W.2d at 202 (citing IOWA CODE § 91A.3(1)). Furthermore, "[i]f
"A bonus meets the statutory definition of `wages.'" Runyon, 653 N.W.2d at 585 (citing Dallenbach v. Mapco Gas Prods., Inc., 459 N.W.2d 483, 488 (Iowa 1990)). However, there is more to the issue presented here than that. A decade ago, the Iowa Supreme Court observed,
Runyon, 653 N.W.2d at 586.
More than two decades ago, the Iowa Supreme Court rejected an argument similar to Johnson's about the statutory requirements for payment of bonuses if they are "wages":
Dallenbach, 459 N.W.2d at 488 (emphasis added).
Similarly, a decade-and-a-half ago, the Iowa Supreme Court also concluded that even though a particular kind of "bonus" ("gainsharing") is a "wage" within the meaning of the IWPCL, the employee does not necessarily have a claim for nonpayment of the "bonus" under the IWPCL. Phipps, 558 N.W.2d at 202. In that case, the Iowa Supreme Court held that the employer did not "owe" the plaintiff the bonus payment, because the plaintiff was on probation on the payout date, which was a violation of one of the employer's established eligibility criteria. Id. Indeed, in an unpublished decision, the Iowa Court of Appeals concluded that, where an employer's policy expressly restricted payments of bonuses to persons employed at the time of payout, even though the plaintiff "accrued" the bonus, she was not entitled to payment of the bonus, because she quit before it was paid out. Matzke v. Mary Greeley Med. Ctr., 2001 WL 355838, *1 (Iowa Ct.App. April 11, 2001) (unpublished op.).
Under these precedents, it is clear that Johnson's IWPCL claim for payment of the quarterly bonus for the last quarter he worked for Dollar General fails as a matter of law. The "bonus" was wages, see Runyon, 653 N.W.2d at 585; Phipps, 558 N.W.2d at 198; Dallenbach, 459
Therefore, the defendants are entitled to summary judgment on this claim, as well.
Upon the foregoing, the defendants are entitled to summary judgment on all of Johnson's claims. Johnson's FMLA "interference" claims fail as a matter of law, because his last absence was not for a "serious health condition," and his FMLA "retaliation" claim fails, because he could not have had a good faith belief that that absence was because of a "serious health condition." His workers compensation retaliation claim, for discharge in violation of public policy, fails, because he cannot generate a genuine issue of material fact under the applicable "high" causation standard that any adverse employment action by Dollar General was causally related to any workers compensation claim, and his claim against Williams for individual liability would not lie, in any event, under existing Iowa law. He concedes that his "emotional distress" claim is barred as a matter of law. Finally, his IWPCL claim fails, because he was ineligible for payment of a bonus for the last quarter he worked, where he was not employed on the date of "payout" of the bonus, and that eligibility requirement was not contrary to Iowa law.
THEREFORE, the defendants' April 30, 2012, Motion For Summary Judgment (docket no. 14) is
29 U.S.C. § 2615(b).
