JAMES E. GRITZNER, Senior Judge.
Before the Court is a Motion for Summary Judgment filed by Defendant Great Prairie Area Education Agency (GPAEA), which Plaintiff Brianna M. Wilkerson (Wilkerson) resists. The Court conducted a hearing on the motion on June 4, 2015. Attorney Wesley Graham represented Wilkerson, and attorney Matthew Novak represented GPAEA. The matter is fully submitted and ready for disposition.
Wilkerson filed this action asserting a single claim against GPAEA for violation of the Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. §§ 2601-2654. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.").
The following facts are either not in dispute or viewed in the light most favorable to Wilkerson. See Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ("At the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a `genuine' dispute as to those facts." (quoting Fed.R.Civ.P. 56(c)); Keefe v. City of Minneapolis, 785 F.3d 1216, 1222 (8th Cir.2015) (same).
Wilkerson began working as a full-time computer programmer for GPAEA on March 31, 2008. Wilkerson's position was a non-union, administrative support position governed by annual employment contracts that ran from July to June, which coincided with GPAEA's fiscal year. Wilkerson's annual contracts set forth Wilkerson's job title, salary, benefits, and paid leave time; the contracts also detailed that if "absence with pay is not authorized by the Administration or leave policies in effect, an amount equal to the hourly salary times the hours absent shall be deducted from the next salary payment." Wilkerson 2007-2008 Emp. Contract, Pl.'s App. 121-26, ECF No. 28-4. GPAEA Human Resources Director Greg Manske (Manske) testified that GPAEA did not have a policy for annual renewals of administrative support staff contracts and that renewal of those contracts was quite nearly automatic.
While employed at GPAEA, Wilkerson's immediate supervisor was Dr. Sally Lindgren (Dr. Lindgren). During Wilkerson's first few years of employment with GPAEA, Dr. Lindgren was satisfied with Wilkerson's work performance. Wilkerson,
On December 29, 2011, Wilkerson's car was rear ended as she pulled away from a stop sign, and she sustained a whiplash injury.
In February 2012, Wilkerson was absent for all or part of six workdays, totaling 29.5 hours, all of which were unpaid leave. Dr. Lindgren met with Wilkerson on February 24, 2012, to discuss Wilkerson's absences and intermittent attendance, and asked Wilkerson to begin documenting her actual time worked. Wilkerson filled out handwriting attendance reports, which showed that between February 24, 2012, and April 23, 2012, Wilkerson was absent for all or part of nine workdays in March 2012, totaling 35 hours absent, and thirteen workdays in April 2012, totaling 95 hours of unpaid leave absences. Wilkerson asserts that from January 2012 through the end of April 2012, she notified GPAEA on days she was in pain and was going to be absent.
On April 23 or April 24, 2012, Wilkerson spoke by telephone with Dr. Lindgren and/or Manske, who expressed concern for Wilkerson's health, asked that Wilkerson keep GPAEA informed of her progress, and informed Wilkerson that she needed to obtain medical documentation to justify her absences and that she needed another medical release to return to work.
Wilkerson was absent from GPAEA for the entire month of May 2012.
On May 21, 2012, GPAEA renewed Wilkerson's contract, which provides, inter
On two occasions, May 29, 2012, and June 7, 2012, Wilkerson asked Grothe to sign the FMLA form. Grothe declined to do so. Wilkerson also asked Dr. Savage to sign the FMLA form, and Dr. Savage also declined to do so. Dr. Savage provided Wilkerson a note written on a prescription form dated "6/15/12" with the names "Dr. Wenzel/Dr. Patrick or Dr. Zielinski" and an arrow pointing to the words "see in future for exam." Dr. Savage June 15, 2012, note, Pl.'s App. 150, ECF No. 28-4. Dr. Savage's note also stated, "chiropractor to fill out FMLA" and "see Dr. Dupuis Wed. 6/20/12." Id.
Wilkerson was absent from work for the entire month of June 2012. On June 14, 2012, Wilkerson had informed Manske she had been referred to another doctor and had an appointment on June 20, 2012; Wilkerson overslept and missed the June 20th appointment. The appointment was rescheduled for June 27, 2012. On June 27, 2012, Wilkerson was examined by Dr. Jerry Jochims. Dr. Jochims' examination notes indicate Wilkerson was being seen for low back pain, and based upon palpation of the affected area and a review of Wilkerson's lumbar x-ray, which revealed normal findings, Dr. Jochims discussed treatment options, including a trigger point injection for what Dr. Jochims considered to be "myofascitis" (inflammation of the muscle and its fascia). Dr. Jochims gave Wilkerson the trigger point injection, advised her to document her symptoms, and to follow up with him in two weeks. Dr. Jochims provided Wilkerson with a return to work authorization, which indicated Wilkerson could return to work half
On June 28, 2012, Manske sent an email to GPAEA's attorney, Richard Gaumer, which stated as follows:
June 28, 2012, Manske email to Gaumer, Def.'s App. 57, ECF No. 27-3. As of June 28, 2012, the only forms GPAEA received from Wilkerson's medical providers were the January 20 and January 26, 2012, from Grothe releasing Wilkerson to work on January 23 and January 26, 2012, respectively, and the April 27, 2012, note from Dr. Savage indicating that Wilkerson "has episodes of ovarian cyst inflammation — seeing a specialist at Iowa City" with the nonspecific indication that "episodes of missing work medically necessary." Dr. Savage's April 27 note, Def.'s App. 51, ECF No. 27-3.
After Wilkerson's examination on June 27, Dr. Jochims provided Wilkerson with a return to work note, which Wilkerson submitted to GPAEA.
On July 2, 2012, Wilkerson attempted to return to work for the first time since April 2012. Manske informed Wilkerson that GPAEA had not received any FMLA form and sent Wilkerson home. Manske also advised Wilkerson that GPAEA's attorney had been contacted about terminating Wilkerson and that he would give Wilkerson a call after GPAEA heard back from the attorney. After leaving GPAEA, Wilkerson confirmed with Dr. Jochims' office that the FMLA form had not been completed and thus had not been sent to GPAEA. Later that day, Wilkerson picked up the completed FMLA form from Dr. Jochims' office, returned to GPAEA, and submitted the FMLA form.
In Section III of the FMLA form, Dr. Jochims described the condition for which Wilkerson sought future leave as "low
On July 9, 2012, after receiving the response from its attorney and obtaining the signature of Chief Administrator Dr. Jon Sheldahl, GPAEA delivered Wilkerson her formal notice of termination. The Notice of Termination, in relevant part, states the following:
July 9, 2012, Notice of Termination, Def.'s App. 58, ECF No. 27-3.
Wilkerson filed this action against GPAEA on July 3, 2014, alleging GPAEA violated the FMLA by denying Wilkerson qualified leave and discharging her for seeking to obtain FMLA leave. GPAEA filed this motion on March 4, 2015, asserting it is entitled to summary judgment because there are no genuine issues of material fact that Wilkerson did not meet the statutory requirements to qualify her for leave as she was able to perform her job functions; GPAEA further argues that Wilkerson was terminated for chronic absenteeism, which is a legitimate, non-retaliatory reason and that there is no credible evidence GPAEA discharged Wilkerson because of her attempt to exercise FMLA rights. Wilkerson resists, arguing the FMLA form she submitted was sufficient and even if it was not, GPAEA failed to give her the opportunity to cure perceived deficiencies; GPAEA denied her FMLA leave to which she was entitled; and GPAEA retaliated against her for attempting to exercise her rights under the FMLA.
"Summary judgment is proper when `there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'" Hudson v. Tyson Fresh Meats, Inc., 787 F.3d 861, 865 (8th Cir.2015) (quoting Fed.R.Civ.P. 56(a)). "At the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a `genuine' dispute as to those facts." Scott, 550 U.S. at 380, 127 S.Ct. 1769 (quoting Fed.R.Civ.P. 56(c)). "Self-serving affidavits do not defeat a `properly supported motion for summary judgment.' Rather, the plaintiff must substantiate allegations with sufficient probative evidence that would permit a finding in the plaintiff's favor." Davis v. Jefferson Hosp. Ass'n, 685 F.3d 675, 680 n. 2 (8th Cir.2012) (quoting Frevert v. Ford Motor Co., 614 F.3d 466, 473-74 (8th Cir.2010)). "There is no discrimination-case exception to a district court's power to grant summary judgment." Ebersole v. Novo Nordisk, Inc., 758 F.3d 917, 923 (8th Cir.2014) (citing Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir.2011) (en banc)).
The FMLA "provides job security to employees who must miss work because of their own illnesses, to care for family members, or to care for new babies. The
Brown v. City of Jacksonville, 711 F.3d 883, 890-91 (8th Cir.2013).
In resistance to GPAEA's motion for summary judgment, Wilkerson indicated that she was asserting "both interference and retaliation claims under the FMLA."
The Pulczinski court clarified that the first FMLA claim
Pulczinski, 691 F.3d at 1005 (citations omitted).
Next, the Pulczinski court distinguished that a FMLA retaliation claim
Id. at 1005-06 (citations omitted).
Finally, regarding the third type of FMLA claim, the Pulczinski court pronounced that discrimination
Id. at 1006 (citations omitted).
Wilkerson makes the following allegations in paragraphs seven through eleven of her complaint:
Compl. 2, ECF No. 1. Based on these allegations, Wilkerson does not allege that GPAEA took "adverse action against
To succeed on her entitlement claim, Wilkerson "must establish that [s]he was, in fact, entitled to FMLA leave...." Johnson, 779 F.3d at 518.
GPAEA first argues the FMLA form Wilkerson submitted, on which Dr. Jochims indicated Wilkerson was able to perform her job functions, did not meet the statutory requirements to qualify Wilkerson for leave, and therefore Wilkerson's claim fails as a matter of law. Wilkerson counters that the form is sufficient and complete as it states that she would be incapacitated for a single continuous period of time due to her serious health condition; in the alternative, Wilkerson argues that even if the form was insufficient or incomplete, GPAEA failed to give her the required opportunity to cure any perceived deficiencies. GPAEA counters that Wilkerson submitted the form on July 2, 2012, 39 days after having received the form from GPAEA on May 24, which was well beyond the 15-day submission requirement; thus, under the facts of this case, the form was untimely and Wilkerson had no right to cure. GPAEA argues, moreover, that Wilkerson did not qualify for FMLA leave as Dr. Jochims indicated Wilkerson was able to perform her job functions.
The regulation that governs FMLA certification is 29 C.F.R. § 825.305(a)-(d), which, in relevant part, states the following:
(emphasis added).
GPAEA argues that Wilkerson's claim is premised exclusively on the FMLA form Wilkerson submitted to GPAEA on July 2, 2012. GPAEA points out that on that form Dr. Jochims indicated Wilkerson was not unable to perform any of her job functions due to her condition. Wilkerson concedes that Dr. Jochims did not certify that her condition prevented her from performing her job functions but insists that it is inconsequential given that Dr. Jochims did certify that Wilkerson would be unable to perform her work duties full time for at least two weeks. Wilkerson further qualifies that Dr. Jochims necessarily focused on the amount of leave Wilkerson needed going forward as Dr. Jochims had seen Wilkerson for the first time on June 27, 2012, and therefore could not complete any portion of the form related to Wilkerson's past absences.
Wilkerson's acknowledgment that Dr. Jochims indicated she could return to work with temporary restrictions directly contradicts Wilkerson's assertion that Dr. Jochims implied Wilkerson was previously incapacitated. Wilkerson attempts to rectify this contradiction by asserting that the fact "[t]hat Dr. Jochims certified Plaintiffs needed leave — as opposed to her past incapacity — also makes sense given that [Wilkerson] understood, based on the lack of direction from Manske and [GPAEA]'s past practices of requiring return to work authorizations, that [GPAEA] required the FMLA form to be completed in order for her to return to work." Pl.'s Br. 9, ECF No. 28. This is an inaccurate representation of the record. Neither Dr. Jochims' June 27 return to work note nor the subsequently submitted FMLA form states that Wilkerson was incapacitated prior to June 27, nor do either of those documents substantiate Wilkerson's absences in the four months prior to that exam. Wilkerson's future temporary work restrictions were a result of Dr. Jochims' examination and treatment on June 27, which included a trigger point injection, and do not support the inference Wilkerson proposes. Wilkerson's speculation about Dr. Jochims' answers notwithstanding, as the FMLA form instructs, Dr. Jochims' answers were to be based upon his "medical knowledge, experience, and examination of [Wilkerson]," see Wilkerson FMLA Cert. Form, Def.'s App. 45, ECF No. 27-3, and not, as Wilkerson suggests, upon Wilkerson's subjective understanding of what responses were necessary. Accordingly, Dr. Jochims' responses must be read independent of Wilkerson's conjecture.
It is undisputed that on May 24 Manske presented Wilkerson with the FMLA leave form to provide medical certification to support Wilkerson's leave due to a serious health condition and advised Wilkerson of the consequences of failing to submit the form; Dr. Lindgren reinforced this information. It is also undisputed that Wilkerson did not submit the requested FMLA form until July 2. The FMLA form was not timely submitted to GPAEA as required under the Act, and therefore Wilkerson's absence from May 24 through July 2 constituted unauthorized leave. Moreover, the FMLA form that Wilkerson ultimately submitted did not demonstrate that Wilkerson had been suffering from a serious health condition. See 29 U.S.C. § 2611 ("The term `serious health condition' means an illness, injury, impairment, or
Wilkerson argues alternatively, if the FMLA certification is insufficient or incomplete, GPAEA was required under 29 C.F.R. § 825.305 to give her an opportunity to cure the deficiencies. The circumstances allowing an employee to cure are not present here.
The FMLA form Wilkerson submitted on July 2, 2012, was neither insufficient nor incomplete as defined under the regulations. Dr. Jochims responded to all the questions, he listed Wilkerson's medical condition and treatment plan, he indicated that Wilkerson could perform the functions of her job, and he authorized Wilkerson to return to work half days for two weeks with a return to full days expected after her follow up examination two weeks later. These responses are not vague, ambiguous, or non-responsive. In addition, Wilkerson asserts both Grothe and Dr. Savage refused to complete the FMLA form and that because Dr. Jochims saw Wilkerson for the first time on July 27, Dr. Jochims could not address Wilkerson's past absences. These reasons do not make the FMLA form insufficient or incomplete as defined by the regulations; rather, these reasons demonstrate that those medical professionals, although qualified to substantiate Wilkerson's absences between May 24 and July 2, would not or could not substantiate the basis for FMLA leave during that time period. See Frazier, 200 F.3d at 1195 (noting that in dismissing the plaintiff's FMLA claim, the district court correctly observed that although the plaintiff saw two doctors for treatment of a shoulder injury, those "medical records were completely devoid of any evidence that [the plaintiff] was instructed by either doctor that his shoulder injury was of such severity as to make him unable to perform his job").
Wilkerson cites Blair v. Wilson Trailer Co., No. 10-CV-04126-DEO, 2012 WL 2989661, at *8 (N.D.Iowa July 20, 2012) in support of her contention that GPAEA was required to provide her the opportunity to cure the deficiencies in the FMLA form. The facts present in Blair are remarkably distinguishable from the present case. In Blair, the healthcare provider despite repeated attempts by the healthcare provider to clarify vague or incomplete answers on the FMLA form, the employer repeatedly denied FMLA leave without informing the employee (or the healthcare provider's representative that repeatedly contacted the employer) what was insufficient about the FMLA form or why FMLA leave had been denied. Here, Dr. Jochims' responses, namely that Wilkerson was able to perform the functions of her job, demonstrate that Wilkerson did not qualify for FMLA leave. Accordingly, unlike the plaintiff in Blair, Wilkerson's
Finally, for the proposition that because GPAEA did not set a deadline for Wilkerson to return the form, her form was timely submitted on July 2, Wilkerson cites Michener v. Bryanlgh Health Sys., No. 4:08CV3202, 2009 WL 2840530, at *1 (D.Neb. Aug. 31, 2009), wherein the district court denied the employer's motion for summary judgment reasoning there were genuine issues of material fact whether the employer notified the employee that medical certification was required or of the consequences of failing to timely return the certification. Michener is distinguishable from the present case as it is undisputed that Wilkerson was told that she needed to submit the FMLA documentation to retain her position.
GPAEA gave Wilkerson the FMLA form on May 24, and Wilkerson did not return it until 39 days later on July 2. According to Wilkerson, on two occasions, May 29, 2012, and June 7, 2012, Wilkerson asked her healthcare providers, Grothe and Dr. Savage, to sign the FMLA form and both of them declined to do so. Dr. Savage did provide Wilkerson with a note on June 15, 2012, that she was to see Dr. Wenzel, Dr. Patrick, or Dr. Zielinski for a future for exam; there is no indication Wilkerson ever saw any of those providers. When Wilkerson was referred to another doctor and scheduled for an appointment on June 20, 2012, Wilkerson overslept and missed the appointment. These facts do not constitute a diligent or good faith effort on Wilkerson's part in seeking to obtain certification for her continued work absences. See Crane v. Gore Design Completion, Ltd., 21 F.Supp.3d 769 (W.D.Tex. 2014) ("[C]ourts denying equitable tolling have done so where an employee only followed up with his doctor after the 15-day deadline had passed.").
Wilkerson failed to establish that she was entitled to FMLA leave, and therefore GPAEA is entitled to summary judgment on Wilkerson's FMLA entitlement claim. Johnson, 779 F.3d at 518.
FMLA discrimination claims are analyzed "under the McDonnell Douglas
GPAEA concedes Wilkerson suffered an adverse employment action but argues that Wilkerson nonetheless fails to establish a prima facie case of FMLA discrimination because Wilkerson did not engage in a protected activity and there was no causal connection between the alleged protected activity and her adverse employment action. The Court must agree.
Wilkerson cannot show she engaged in a protected activity. Wilkerson failed to provide the requisite certification from a health care provider indicating she was unable to perform the functions of her job; therefore, the leave she took was not under the auspices of the FMLA. See, e.g., Cash v. Smith, 231 F.3d 1301, 1307 (11th Cir.2000) ("[Plaintiff] has failed to present evidence that she exercised a protected right under the FMLA. [Defendant] requested that [Plaintiff] have her doctor complete the company's standard FMLA certification form, and [Plaintiff]'s personal physician indicated on the form that [Plaintiff] did not qualify for FMLA leave because her conditions were being controlled by medication, and she was able to perform the functions of her position. [Plaintiff] did not provide [Defendant] with certification that her medical conditions met the statutory standard, and therefore the medical leave that she did take was not under the auspices of the FMLA.").
Wilkerson counters that the FMLA protects employees not just when they exercise their rights under the Act, but also when they attempt to exercise their rights under the FMLA. Other than GPAEA's determination Wilkerson's FMLA certification did not meet the statutory standard, Wilkerson does not explain how GPAEA otherwise interfered with Wilkerson's attempt to exercise her FMLA rights. Wilkerson has failed to show she engaged in protected activity, and therefore she cannot demonstrate a prima facie case of discrimination.
Even assuming Wilkerson's FMLA form submitted on July 2 constituted a protected activity under the FMLA, Wilkerson failed to demonstrate GPAEA terminated her for attempting to exercise her FMLA rights by requesting the leave required by Dr. Jochims.
Wilkerson asserts that after she provided GPAEA a return to work authorization indicating she would be returning to work on July 2, 2012, half days for at least two weeks, GPAEA decided to terminate her, demonstrating a causal connection between her protected activity and her termination. On June 27, Wilkerson indicated the FMLA form would be faxed from Dr. Jochims' office to GPAEA. When Wilkerson arrived at GPAEA on July 2, GPAEA had not received the FMLA form. It was not until Wilkerson had been sent home and told that her termination was before GPAEA's attorney that Wilkerson provided the completed form to GPAEA. On June 28, 2012, Manske had sent an email to GPAEA's attorney, Richard Gaumer, informing of GPAEA's decision to terminate Wilkerson:
Manske email to Gaumer dated June 28, 2012, Def.'s App. 57, ECF No. 27-3. Again, even assuming the submission of the FMLA form constituted a protected activity, such protection would have been triggered when Wilkerson submitted the completed FMLA form on July 2, not when Wilkerson gave GPAEA her assurances on June 27 that the form would be completed. Wilkerson had given similar assurances to GPAEA for several months without fulfilling them. Moreover, as the Court has already found, the FMLA authorization indicated Wilkerson could perform the functions of her job.
The next date Wilkerson points to in attempting to demonstrate a causal connection is July 9, the date her
In Malloy, as here, the employer repeatedly warned the employee about attendance problems before the employee requested FMLA leave. Id. The Malloy employer similarly allowed the plaintiff to take leave on several prior occasions "without repercussions suggesting that the employer was not hostile to the protected activity." Id. (citing Chappell v. Bilco Co., 675 F.3d 1110, 1118 (8th Cir.2012)). It is undisputed in this case that Wilkerson was absent for all or part of nine workdays in March 2012 and thirteen workdays in April 2012, and she was absent the entire months of May and June 2012. GPAEA communicated with Wilkerson and gave her numerous opportunities to provide medical certification for her absences to no avail. The temporal proximity between the decision to terminate Wilkerson and Wilkerson's submission of the FMLA authorization is not only without additional record support but is antithetical to the inference of nondiscrimination arising from temporal proximity to Wilkerson returning to GPAEA on June 27 after her visit to Dr. Jochims without the FMLA authorization form. See id. ("Any inference of discrimination arising from temporal proximity to the December 17 and 18 FMLA leave is undermined by the inference of nondiscrimination arising from temporal proximity to the December 27 unexcused absence.").
Again, assuming although not finding Wilkerson had established a prima facie case of discrimination, GPAEA provided a legitimate, non-discriminatory basis for terminating Wilkerson — chronic absenteeism. Wilkerson argues this reason is pretext because the record shows that she missed many days in early 2012 due to her medical condition and that GPAEA never reprimanded, disciplined, or threatened discipline about her absences prior to May 24. Wilkerson further argues that Dr. Lindgren approved Wilkerson's absences in February and March, and that she was absent after April 24 because GPAEA required a return to work authorization from a medical provider. Wilkerson argues pretext is demonstrated by Dr. Lindgren's testimony that "the straw that broke the camel's back in my mind was the fact that [Wilkerson] was intending to come back July 2 at half-time because this is the story, this is the pattern, this is the over and over and over and over. And I could not carry that forward into a new year. I needed a full-time employee." Lindgren Dep. 68:10-68:16, Pl.'s App. 108, ECF No. 28-4.
Wilkerson's FMLA discrimination claim fails as a matter of law.
For the reasons stated, Defendant's Motion for Summary Judgment, ECF No. 27, must be
Wilkerson's Appendix includes a June 27, 2012, text message exchange between Wilkerson and Jane Broeg in which Wilkerson mentions getting the note from Dr. Jochims releasing her to work part time beginning July 2, 2012, and that she had been into the GPAEA office to talk with Manske and Dr. Lindgren that day. The messages do not indicate Wilkerson submitted the return to work note to GPAEA, only that Wilkerson discussed the part time schedule with Manske and Dr. Lindgren.
Viewing this fact in the light most favorable to Wilkerson, for purposes of summary judgment, the Court accepts that Wilkerson submitted Dr. Jochims' note to GPAEA on June 27, 2012.
There are no court decisions relying on Ebersole for the proposition that there are (only) two claims under the FMLA; in contrast, Pulczinski is cited in several Eighth Circuit opinions as well as in numerous district court orders for the proposition that the Eighth Circuit recognizes three types of claims under the FMLA. See, e.g., Burciaga v. Ravago Americas LLC, 791 F.3d 930, 934, n. 2 (8th Cir.2015) ("There are two types of claims under § 2615(a)(1), entitlement claims and discrimination claims" and "[a] third type of FMLA claim, a `retaliation' claim, exists under § 2615(a)(2)."); Hudson, 787 F.3d at 865 & n. 2 (same); Brown, 711 F.3d at 890-91 (same); Johnson v. Wheeling Mach. Prods., 779 F.3d 514, 517 (8th Cir.2015) ("We have recognized three categories of FMLA claims arising under 29 U.S.C. § 2615(a)(1)-(2)...."); Eason v. Walgreen Co., No. CIV. 13-3184 ADMJSER, 2015 WL 4373656, at *4 (D.Minn. July 15, 2015) ("The Eighth Circuit recognizes three types of claims arising under the FMLA."); Hernandez v. Bridgestone Americas Tire Operations, LLC, 97 F.Supp.3d 1062, 1069-70, 2014 WL 8514736, at *5 (S.D.Iowa 2014); Doering v. Wal-Mart Stores, Inc., Civil No. 12-2629 (JRT/LIB), 2014 WL 3395745, at *14 (D.Minn. July 11, 2014); Brown v. Diversified Distrib. Sys., LLC, No. CIV. 13-218 ADM/LIB, 2014 WL 2718760, at *6 (D. Minn. June 16, 2014) (same); Perry v. Lancaster Cnty., Neb., No. 4:13CV3013, 2014 WL 2574523, at *11 (D.Neb. June 9, 2014) (same); Peterson v. HealthEast Woodwinds Hosp., No. CIV. 12-327 JNE/FLN, 2013 WL 2420457, at *3 (D.Minn. June 3, 2013) (same); Hill v. Walker, No. 5:12CV00016 JLH, 2012 WL 4792738, at *1 (E.D.Ark. Oct. 9, 2012) (same), aff'd, 737 F.3d 1209 (8th Cir.2013).
In stating there are two claims under the FMLA, the Ebersole court cites the pre-Pulczinski case, Bone v. G4S Youth Servs., LLC, 686 F.3d at 958, but did not cite Pulczinski let alone take issue with Pulczinski having established that the Eighth Circuit now recognizes three, as opposed to two, claims under the FMLA. It appears to be through mere inadvertence the Ebersole court cited Bone, a pre-Pulczinski case, when stating that there are two claims under the FMLA. Nevertheless, to the extent there is a dispute, Pulczinski preceded Ebersole and established that there are three types of claims under the FMLA; the Court must follow Pulczinski. See Maxfield v. Cintas Corp., No. 2, 487 F.3d 1132, 1135 (8th Cir.2007) ("[T]he `prior panel rule' — provides that one panel of this court has no authority to overrule an earlier decision of another panel.").
Wilkerson argues that because Dr. Jochims certified that Wilkerson was incapacitated from her "low back pain" and initially checked "yes" to the question whether Wilkerson was unable to perform any of her job functions before he scribbled it out and checked "no," it is reasonable to infer that the response was in error. Pl.'s Br. 11, ECF No. 28. The inference allowed in Parsons is unwarranted in this case. Unlike the provider in Parsons, in this case, Dr. Jochims did not omit critical information regarding Wilkerson's medical condition nor did he omit Wilkerson's treatment plan. There is nothing contradictory about Dr. Jochims' answers on the FMLA form. Had Dr. Jochims intended to answer "yes" to the question of whether Wilkerson was unable to perform her job functions, Dr. Jochims would have necessarily answered the follow up question. Dr. Jochims did not answer the question, but instead, consistent with his answer to the previous question, he left the follow-up question blank. Moreover, releasing Wilkerson to return to work half days is entirely consistent with Dr. Jochims' answer that Wilkerson was able to perform her job functions.
