Opinion
Cause No. IP 01-1645-C-B/S
March 31, 2003
ENTRY GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This matter comes before us on a motion for summary judgment filed by Defendant United States Postal Service ("USPS"). Plaintiff Jeanne Blackburn filed suit against USPS for alleged violations of the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq., stemming from USPS's denial of Blackburn's request for FMLA leave and her subsequent termination. USPS moves for summary judgment on the ground that Blackburn cannot establish certain essential elements of her claims. For the reasons explained in detail below, we GRANT IN PART and DENY IN PART USPS's Motion for Summary Judgment.
Blackburn had also filed suit under the Rehabilitation Action for alleged discrimination based on her disability and/or USPS's perception of her impairments. However, in her response to USPS's motion, Blackburn conceded these claims. Pl.'s Opposition to Def.'s Motion for Summary Judgment at 2, n. 1. Therefore, for the purposes of this motion, we need only consider the remaining claims brought pursuant to the FMLA.
Factual Background
At all times relevant to this dispute, Plaintiff Jeanne Blackburn worked for the United States Postal Service as full-time letter carrier operating out of the Frankfort, Indiana post office and was represented by a union, the National Association of Letter Carriers. Pl.'s Statement of Material Facts ¶ 1; Def.'s Statement of Material Facts ¶¶ 1-2. During the course of her employment, Blackburn was supervised at different times by Shelley Koontz, Mike Scott, Tonya Benefiel, and Darrin Herr; Lester Gordon served as postmaster at the Frankfort location. Def.'s Statement of Material Facts ¶¶ 4-5. Between 1995 and 1999, Gordon was intermittently detailed to serve as Acting Post Office Operations Manager in Indianapolis, at which times Koontz became Acting Postmaster in Frankfort. Id.
Blackburn does not dispute any of the following facts regarding her employment history with USPS. On or about May 4, 1995, USPS issued Blackburn a letter of warning for unsatisfactory attendance and failure to maintain a regular schedule, based on unexcused absences on January 5, January 26, March 8, April 13, and April 25-29, 1995. Id. ¶ 8. Then, on or about January 3, 1996, USPS issued Blackburn another letter of warning regarding unsatisfactory attendance, based on unexcused absences on June 9, August 14, October 11, December 9, and December 25, 1995. Id. ¶ 10. The letter also contained a warning for failure to follow instructions, based on allegations that, when informed that she was scheduled to work on December 25, 1995, Blackburn responded, "I will not work. I don't care what you do, I won't work." Id. ¶ 12. On or about March 5, 1996, USPS issued Blackburn a notice of suspension for unsatisfactory attendance, based on unexcused absences on January 19, February 2-3, February 5, February 15, and February 29, 1996. Id. Thereafter, on or about November 21, 1996, USPS issued Blackburn another letter of warning concerning absenteeism, based on unexcused absences on May 31, June 24-26, August 2, September 4, and October 28, 1996. Id. ¶ 15.
Apparently a significant period of time then passed without any absentee issues. But, on August 13, 1998, USPS again issued Blackburn a letter of warning concerning unexcused absences on January 24-26, March 27, May 7, May 30, June 3, July 9, and August 3-4, 1998. Id. ¶ 17. Blackburn understood from this letter that there were problems with her attendance record and that she was expected to improve. Id. ¶ 21.
On January 19, 1999, USPS issued Blackburn a notice of suspension, informing her that she would be suspended for seven days, based on a pattern of unexcused absences including those on September 1, October 27, November 5, November 9 and December 3, 1998, through January 8, 1999. Id. ¶ 22. None of these absences was scheduled in advance; rather, Blackburn submitted a Request for or Notification of Absence form each time after returning to work. Id. ¶ 23. USPS issued Blackburn another notice of suspension based on unexcused absences on January 13, January 30, February 4, March 2, March 16, May 14-22, June 21, and July 8, 1999. Id. ¶ 24.
In 1999, Blackburn's then-nineteen-year-old daughter Amanda became pregnant with her second child. Pl's Statement of Material Facts ¶ 2. On October 26, 1999, Blackburn first learned that Amanda would undergo a Cesarian section delivery on November 9, 1999. Id. ¶ 5. That same day, Blackburn spoke with Acting Supervisor Herr about her situation and provided him with a "surgical slip" describing her need to be absent from work on November 9 to assist Amanda after the surgery. Id. ¶ 5; Def.'s Statement of Material Facts ¶ 39. There is some factual dispute regarding whether Herr told Blackburn her November 9 absence would be excused. Pl's Statement of Material Facts ¶ 6; Def.'s Statement of Material Facts ¶ 42.
It is undisputed that Amanda Blackburn suffered certain complications during her pregnancy, including infection, back problems, and other illnesses. Pl.'s Statement of Material Facts ¶ 3. However, Blackburn does not assert and there is no evidence to suggest that any of the pre-delivery complications contributed to Amanda's post-delivery need for assistance. Because they are not material to our consideration of the issues before us, we do not address them in detail here.
On November 2, 1999, a note was faxed from the office of Dr. Kevin Miller, the physician attending to Amanda's pregnancy, to the Frankfort post office, stating that "Jeanne Blackburn is requesting FMLA to assist her daughter who is having a C-section on 11/9/99. She will be helping her daughter at home to help care for the children. She would like 2 weeks off." Pl's Statement of Material Facts ¶ 7; Def.'s Statement of Material Facts ¶ 43. Blackburn asserts that shortly thereafter she requested but did not receive the proper FMLA paperwork. Pl.'s Statement of Material Facts ¶¶ 6, 8. Near the close of business on November 8, 1999, Blackburn completed a generic request form seeking 80 hours of FMLA leave time and left the form on a supervisor's desk. Pl.'s Statement of Material Facts ¶ 8; Def.'s Statement of Material Facts ¶ 44. Gordon found Blackburn's request for leave, called her residence, and left a message on her answering machine stating that her request did not meet the criteria for FMLA leave and that she should contact her supervisor the next morning. Pl.'s Statement of Material Facts ¶ 9; Def.'s Statement of Material Facts ¶ 45.
The next day, Blackburn was absent from work to attend Amanda's surgery. Def.'s Statement of Material Facts ¶ 47. At approximately 8:30 a.m. on November 9, after the completion of Amanda's surgery, Blackburn contacted Koontz, who stated that the circumstances surrounding her absence did not qualify her for FMLA leave and that her absence would be marked as "AWOL." Pl.'s Statement of Material Facts ¶ 11; Def.'s Statement of Material Facts ¶ 48. Blackburn returned to work on November 10, 1999. Pl.'s Statement of Material Facts ¶ 12; Def.'s Statement of Material Facts ¶ 49. Koontz subsequently provided Blackburn with FMLA forms and instructed her to complete them. Pl.'s Statement of Material Facts ¶ 12; Def.'s Statement of Material Facts ¶ 50.
On November 17, Blackburn submitted an FMLA Certification of Health Care Provider, Form WH-380, in support of her November 9 absence. Pl.'s Statement of Material Facts ¶ 13; Def.'s Statement of Material Facts ¶ 51. Blackburn filled in responses to questions 1-3, 7, and 8, and signed the form. Pl.'s Statement of Material Facts ¶ 13; Def.'s Statement of Material Facts ¶ 51. Blackburn then transmitted the form to Dr. Miller for completion, and returned it to Koontz, who wrote "denied" on the form. Pl.'s Statement of Material Facts ¶ 13. Koontz did not notice anything suspicious about the form when she received it. However, following Gordon's recommendation that she review the form, Koontz noticed certain oddities, such as the use of different ink colors for particular responses and the doctor's signature in pencil. Koontz Depo. at 112. Based on these apparent irregularities, an investigation was launched into whether Blackburn had falsified documents in attempting to justify her absence on November 9 as FMLA leave. Def.'s Statement of Material Facts ¶ 52-53. The investigation was conducted by Postal Inspector J. Winstead.
Winstead interviewed Jeanne Blackburn on December 2, 1999, at which time she emphatically denied forging or falsifying any of the documents related to her FMLA request. Pl.'s Statement of Material Facts ¶ 16. She also denied falsifying or tampering with the physician's signature on the November 17 certification form. Id. On December 3, 1999, having considered the seriousness of the allegations for which Blackburn was being investigated, Koontz decided to place Blackburn on administrative leave. Id. ¶ 54.
Winstead subsequently interviewed Amanda Blackburn, Dr. Miller (who allegedly signed the form), and Dr. Miller's office manager, Laurie Hatke. Def.'s Exh. 26. Dr. Miller told Winstead he had never signed the form in question and that he would never sign an official document in pencil. Def.'s Statement of Material Facts ¶ 72; Def.'s Exh. 26. Hatke stated that there was no such document in the office files. Def.'s Exh. 26. Amanda Blackburn stated during her interview that she gave the form to a student nurse, Pam Klantz, to obtain Dr. Miller's signature, and that Klantz returned the form bearing Dr. Miller's signature. Pl.'s Statement of Material Facts ¶ 20; Def.'s Exh. 26. However, Pam Klantz was not interviewed in the course of the investigation. Id.
Around the same time, Koontz recommended that Blackburn be removed on the basis of her history of unsatisfactory attendance, including two days of disputed FMLA leave. Def.'s Statement of Material Facts ¶¶ 57, 58. Gordon reviewed and approved Koontz's recommendation and, on December 10, 1999, USPS issued Blackburn a notice of removal for unsatisfactory attendance. Id. ¶¶ 59, 63. Blackburn's union filed a grievance based on her removal for unsatisfactory attendance and failure to maintain a regular schedule. Id. ¶ 64. Following review by an arbitrator, Blackburn was reinstated. Id.
Winstead summarized the findings of his investigation in a memo dated December 13, 1999, which Blackburn reviewed in a meeting with Gordon and Koontz on December 17. Pl.'s Statement of Material Facts ¶ 20; Def.'s Exh. 26. At that meeting, Blackburn reiterated that she did not forge Dr. Miller's signature. Pl.'s Statement of Material Facts ¶ 20. Based on facts learned through Winstead's investigation and Koontz's own observation of Blackburn's suspicious FMLA certification form, Koontz recommended that Blackburn be terminated for submitting falsified documents. Def.'s Statement of Material Facts ¶ 76. On December 28, 1999, USPS issued Blackburn a notice of removal on this basis. Id. ¶ 65. Blackburn filed a grievance over the notice of removal, and an arbitrator sustained the termination. Id. ¶ 75. Blackburn filed complaints of discrimination with the USPS Equal Employment Opportunity ("EEO") Complaints Processing Office, and, following the final agency decisions on these complaints, filed this lawsuit on October 29, 2001.
Standard of Review
Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue of material fact exists if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party on the particular issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Eiland v. Trinity Hosp., 150 F.3d 747, 750 (7th Cir. 1998). On a motion for summary judgment, the burden rests on the moving party to demonstrate "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). After the moving party demonstrates the absence of a genuine issue for trial, the responsibility shifts to the non-movant to "go beyond the pleadings" and point to evidence of a genuine factual dispute precluding summary judgment. Id. at 322-23. "If the non-movant does not come forward with evidence that would reasonably permit the finder of fact to find in her favor on a material question, then the court must enter summary judgment against her." Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994), citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986); Celotex, 477 U.S. at 322-24; Anderson, 477 U.S. at 249-52.
Summary judgment is not a substitute for a trial on the merits, nor is it a vehicle for resolving factual disputes. Waldridge, 24 F.3d at 290. Therefore, in considering a motion for summary judgment, we draw all reasonable inferences in favor of the non-movant. Venters v. City of Delphi, 123 F.3d 956, 962 (7th Cir. 1997). If genuine doubts remain, and a reasonable fact-finder could find for the party opposing the motion, summary judgment is inappropriate. See Shields Enters., Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992); Wolf v. City of Fitchburg, 870 F.2d 1327, 1330 (7th Cir. 1989). However, if it is clear that a plaintiff will be unable to satisfy the legal requirements necessary to establish her case, summary judgment is not only appropriate, but mandated. See Celotex, 477 U.S. at 322; Waldridge, 24 F.3d at 920.
Analysis
The FLMA establishes two categories of protections for employees. First, the Act contains prescriptive protections that are expressed as substantive statutory rights, which provide eligible employees of a covered employer the right to take unpaid leave for a period of up to twelve work weeks in any twelve-month period for a serious health condition, as defined by the statute. King v. Preferred Technical Group, 166 F.3d 887, 891 (7th Cir. 1999); 29 U.S.C. § 2612(a)(1). To ensure the availability of this guarantee, the FMLA declares it "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided." 29 U.S.C. § 2615(a)(1); King, 166 F.3d at 891.
1. Entitlement claim
When an employee alleges that the employer interfered with her substantive rights under the FMLA, we require her first to "establish, by a preponderance of the evidence, that [s]he is entitled to the benefit [s]he claims." Diaz v. Fort Wayne Foundry Corp., 131 F.3d 711, 713 (7th Cir. 1997).
The FMLA permits an eligible employee to take leave "to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition." 29 U.S.C. § 2612(a)(1)(C). The statute provides that, in order for an employee to qualify for FMLA leave to care for an adult child, that child must be "incapable of self-care because of a mental or physical disability." 29 U.S.C. § 2611(12).
USPS first contends that Blackburn was not entitled to FMLA leave to assist her adult daughter because the notice she provided did not indicate that her daughter's condition met the requirements for FMLA leave. Under FMLA regulations, employers are entitled to "the sort of notice that will inform them . . . that the FMLA may apply." Collins v. NTN-Bower Corp., 272 F.3d 1006, 1008 (7th Cir. 2001) (emphasis added); see also Stoops v. One Call Communications, Inc., 141 F.3d 309, 312 (7th Cir. 1998) (employee must provide employer with enough information to put the employer on notice that FMLA- qualifying leave is needed).
Here, USPS concedes that on November 2, 1999, Blackburn provided a "squib" from Lafayette Obstetrics and Gynecology stating that "Jeanne Blackburn is requesting FMLA to assist her daughter who is having a C-section on 11/9/99. She will be helping her daughter at home to help care for the children. She would like 2 weeks off." In addition, Blackburn later submitted a Family Member Medical Certification Statement detailing the nature of her daughter's procedure, noting that Blackburn would be required both to attend to her daughter's basic medical and personal needs or safety and to provide psychological comfort that would be beneficial to her daughter's recovery. This form also noted the expected duration of Blackburn's absence and her daughter's recovery time.
USPS argues that, notwithstanding the information conveyed by these documents, Blackburn initially failed to assert expressly that her daughter was "incapable of self-care," or, later, that her daughter suffered a physical or mental disability that substantially limited a major life activity. Such highly particularized notice would come close to requiring that an employee expressly assert their FMLA rights, which runs contrary to the relevant regulations. See 29 C.F.R. § 825.303(b). We cannot conclude that the notice Blackburn provided USPS prior to her absence, and the supplementary information provided following her return, were insufficient as a matter of law to alert USPS that the FMLA may apply to her requested leave.
USPS further contends that Blackburn cannot adduce evidence to satisfy her burden of establishing that her daughter suffered from a "serious health condition" that left her "incapable of self-care." The applicable statute provides, in relevant part:
For purposes of FMLA, "serious health condition" entitling an employee to FMLA leave means an illness, injury, impairment, or physical or mental condition that involves:
(2) Continuing treatment by a health care provider. A serious health condition involving continuing treatment by a health care provider includes any one or more of the following: (ii) Any period of incapacity due to pregnancy, or for prenatal care.29 C.F.R. § 825.114(a). That same section defines "incapacity" as "inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefor, or recovery therefrom." Id. § 825.114(a)(2)(I).
Blackburn's daughter Amanda underwent a Cesarian section procedure in birthing her second child. It is undisputed that Amanda was instructed by her doctor to remain in bed for the two-week post-surgical recovery period for which Blackburn requested FMLA leave. Amanda testified by affidavit that her doctor cautioned that after the delivery she would require regular assistance to clean and dress her incision, cook, bathe, and eat. Amanda Blackburn Aff. ¶ 5. She further testified that her mother in fact assisted with those tasks in the weeks following her surgery, and that she required the assistance of her father, sister, and grandmother as well. Id. ¶¶ 6, 10. The inability to complete these basic tasks without assistance reasonably places Amanda's condition within the definition of "incapable of self care."
USPS appears to be arguing that delivery by Cesarian section is not a sufficiently serious medical condition to invoke FMLA protections. In support of this assertion, USPS maintains that courts typically do not consider pregnancy alone to be a serious medical condition. While we credit this statement, the case before us does not deal with the standard discomforts associated with pregnancy, but instead involves the incapacity associated with and immediately following a delivery, specifically a surgically-facilitated delivery. This court has previously expressed the presumption that "`any incapacity due to pregnancy,' — which might, after all, include the delivery itself — is a serious health condition . . . [and] that an employee is entitled to leave for it." Aubuchon v. Knauf Fiberglas, GMBH, 240 F. Supp.2d 859, 869 n. 10 (S.D.Ind. 2003). We see no reason, and USPS has offered no factual or legal justification, to depart from this assumption in the present case.
Also in support of its position, USPS cites Hamm v. Runyon, 51 F.3d 721 (7th Cir. 1995), in which an employee may have suffered from mild arthritis that the employee asserted did not prevent him from fulfilling any of the walking or climbing responsibilities of his job. Without digressing into a description of the myriad differences between occasional mild arthritis and childbirth, we merely note that the facts underlying Hamm are so clearly distinguishable as to render the decision unhelpful in the consideration of this motion.
USPS simply presents no basis for us to conclude as a matter of law that Blackburn's daughter's Cesarian section and her subsequent recovery period did not qualify as an incapacity due to pregnancy. Accordingly, USPS's Motion for Summary Judgment is DENIED as to the FMLA entitlement claim.
2. Interference/retaliation claim
Blackburn also alleges that USPS interfered with her entitlement to FMLA leave by terminating her for requesting the time off to assist with her daughter's recovery from surgery. Interference claims are subject to traditional employment discrimination retaliation analysis. The Seventh Circuit outlined the proof scheme in FMLA retaliation cases in Horwitz v. Board of Educ. of Avoca School Dist. No. 37, 260 F.3d 602, 616-617 (7th Cir. 2001). In such cases, "[t]he issue becomes whether the employer's actions were motivated by an impermissible retaliatory or discriminatory animus." Id., quoting King, 166 F.3d at 891. On summary judgment, Blackburn must raise a reasonable inference that USPS engaged in intentional retaliation. Absent direct evidence, she may do so by showing: (1) she engaged in a protected activity; (2) USPS took an adverse employment action against her; and (3) there is a causal connection between her protected activity and adverse employment action. Id.; accord King, 166 F.3d at 892; Diaz v. Fort Wayne Foundry Corp., 131 F.3d 711, 712 (7th Cir. 1997). The Seventh Circuit recently elaborated on this showing, and the ensuing burden shift, in the summary judgment context:
the plaintiff [must] show that after filing the charge only he, and not any similarly situated employee who did not file a charge, was subjected to an adverse employment action even though he was performing his job in a satisfactory manner. If the defendant presents no evidence in response, the plaintiff is entitled to summary judgment. If the defendant presents unrebutted evidence of a noninvidious reason for the adverse action, he is entitled to summary judgment. Otherwise there must be a trial.
Stone v. City of Indianapolis Public Utilities Div., 281 F.3d 640, 644 (7th Cir. 2002) (emphasis added), cert denied, 123 S.Ct. 79 (2002). This route to avoid summary judgment, better known as a modified version of the McDonnell Douglas method, is the proper approach in cases where, as here, "the plaintiff . . . has no actual evidence of discrimination (or retaliation) but just some suspicious circumstances." Stone, 281 F.3d at 643. Plaintiff expressly invokes this method in her opposition brief.
Here, Blackburn claims that she was wrongfully terminated for requesting FMLA leave, even though she was performing her duties in a satisfactory manner. USPS maintains that Blackburn was terminated for a legitimate, nondiscriminatory reason, namely, her history of unexcused absences and progressive discipline, and, later, allegations and investigation into whether she falsified documents offered in support of her FMLA request. To rebut these proffered motivations, Blackburn rehashes the chronology of events leading up to her first discharge, apparently in the belief that the mere description of these events leads us reasonably to infer that USPS's "excessive absences" justification was pretextual. She asserts that "the sincerity of the Postal Service's reason for terminating Blackburn is cast into doubt because facts and testimony are conspicuous, speculative and contradictory." Pl.'s Opposition to Mot. for Summ. J. at 31.
Blackburn contends in her opposition brief that USPS has conceded the point that at the time of her termination she was performing her duties in a satisfactory manner. We find no support for such a concession, particularly given the number of pages and volume of exhibits USPS devotes to establishing that Blackburn had a substandard attendance record. We need not consider arguments regarding this essential element, however, for reasons discussed in detail above.
We disagree. Blackburn's summary of events does not contain legally sufficient evidence from which a jury could conclude that her alleged absenteeism was a pretext to justify her first termination. Blackburn does not dispute that she had been issued four letters of warning and three notices of suspension for absenteeism in the four years prior to the events at the heart of this dispute. Moreover, the notice that issued immediately prior to her first termination was amended following arbitration of her grievance, and she was reinstated. We are left to wonder whether Blackburn intends to sue based on an alleged injury that was in fact alleviated by prior remedial measures. In any case, she has offered insufficient evidence for a reasonably jury to conclude that the absenteeism justification was merely pretextual.
As to the second discharge, Blackburn has offered legally insufficient evidence to rebut USPS's noninvidious justification. In opposition to USPS's summary judgment motion, Blackburn simply repeats what she told Winstead in the course of his investigation. Right or wrong, the results of Winstead's investigation are not material to the dispute here, because simply proving them wrong cannot satisfy Blackburn's burden to establish pretext. As the Seventh Circuit has noted, "arguing about the accuracy of the employer's assessment is a distraction, because the question is not whether the employer's reasons for a decision are `right but whether the employer's description of its reasons is honest.'" Sweeney v. West, 149 F.3d 550, 557 (7th Cir. 1998), quoting Kariotis v. Navistar Intern. Transp. Corp., 131 F.3d 672, 677 (7th Cir. 1997) (internal citation omitted). Because Blackburn does not squarely contest or offer evidence from which a reasonable jury could conclude that the allegations of submitting false documents were merely a pretextual justification for her termination, or that Koontz or Gordon did not honestly rely on the results of Winstead's investigation in recommending her termination, USPS's Motion for Summary Judgment is GRANTED with respect to the interference claim.
Conclusion
USPS moved for summary judgment on Blackburn's FMLA claims. For the reasons set out in detail above, we find that 1) USPS has failed to demonstrate that it is entitled to judgment as a matter of law on Blackburn's entitlement claim; and 2) Blackburn has failed to rebut USPS's proffered nondiscriminatory reason for her discharge and, thus, summary judgment is properly granted on the interference claim. Accordingly, we GRANT IN PART and DENY IN PART the Motion for Summary Judgment.