Summary
noting that, according to a “letter from [the plaintiff's dentist], there is ... nothing to indicate Plaintiff's incapacity or inability to perform his job”
Summary of this case from Barger v. Jackson, Tenn. Hosp. Co.Opinion
Case No. 01-74503
October 7, 2002
OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This matter came before the court on defendant Cape Industries' July 31, 2002 motion for summary judgment. Plaintiff Walter DuCharme filed a response September 10, 2002. Oral argument was heard September 27, 2002.
BACKGROUND FACTS
Plaintiff Walter DuCharme worked for defendant Cape Industries as a tool maker from September 23, 1998. On March 1, 1999, Plaintiff applied for and received FMLA leave from the defendant employer because of his gum disease and recurring tooth abscesses. Plaintiff was treated March 1, 1999; March 3, 1999; June 18, 1999; August 18, 1999; August 30, 1999; and November 15, 1999.
The following year, on May 21, 2000, which was a Sunday night, Plaintiff experienced tooth pain again. He called the plant at 6:00 a.m. on Monday morning, May 22, and left a message on the answering machine, stating that he was taking "an FMLA day." Plaintiff has testified that he said on the tape that "I wouldn't be in that day; that I wanted to enact FMLA." Arlene O'Connor, Defendant's human resources administrator, noted on his absentee report that he was "Taking FMLA day." Plaintiff's Ex. C.
Plaintiff did not go to work Monday, May 22; Tuesday, May 23; Wednesday, May 24; Thursday, May 25; Friday, May 26; and Monday, May 29. At a dental appointment on Wednesday, May 24, his dentist extracted a tooth. Plaintiff made only the one aforementioned phone call to Defendant on Monday morning, May 22. At the end of business Friday, May 26, Defendant, having not heard from Plaintiff for four days, sent Plaintiff a registered letter advising him that he had been terminated as a voluntary quit pursuant to Article VIII, Section 4(c) of the labor agreement, the so-called "three-day, no show — no call" rule. After receiving the letter, Plaintiff again telephoned his employer to state that he was taking FMLA leave.
Plaintiff's union filed a grievance protesting his termination. Plaintiff was reinstated a year later, in April 2001, without back pay in lieu of arbitration. The FMLA issue was expressly resolved in the grievance procedure.
LAW AND ANALYSIS
Congress enacted the Family Medical Leave Act ("FMLA") to allow workers flexibility in scheduling time to deal with family medical problems and the tensions created by competing time demands of work and family. FMLA allows an employee who suffers from "a serious medical condition" up to 12 work weeks of leave during a 12 month period "because of a serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612(a)(1)(D).
Defendant first argues that Plaintiff is not eligible for FMLA leave because he did not suffer from a serious medical condition. The FMLA defines a serious health condition as ". . . an illness, injury, impairment or physical or mental condition that involves either of the following: a) inpatient care in hospital, hospice or residential medical care facility; or b) continuing treatment by a health care provider." 29 U.S.C. § 2611. The regulations further define "a serious medical condition" as "includ[ing] inpatient care or continuing treatment by a health care provider resulting in an inability to work for more than three consecutive calendar days, which also involves treatment two or more times by a health care provider." The regulations specifically exclude absences due to routine dental work. "Ordinarily, . . . routine dental or orthodontia problems and periodontal disease, etc., are examples of conditions that do not meet the definition of a serious heath condition and do not qualify for FMLA leave." 29 C.F.R. § 825.114(c).
In Bond v. Abbott Laboratories, 7 F. Supp.2d 967, 975 (N.D. Ohio 1998), a district court held that an employee's routine tooth extraction was not a "serious medical condition" as defined by FMLA. The court inBond also stated that "[d]etermining whether an illness qualifies as a `serious health condition' for purposes of the Family and Medical Leave Act is a legal question that a plaintiff may not avoid `simply by alleging it to be so.'" Id. at 974 (quoting Carter v. Rental Uniform Serv. of Culpepper, Inc., 977 F. Supp. 753, 761 (W.D. Va. 1997)). In this case, therefore, the court must make a legal determination whether plaintiff DuCharme's condition qualified as a "serious medical condition."
Although plaintiff DuCharme argues that his was not a routine extraction but the result of a recurring medical condition for which he had sought dental care in the past, the court finds that Plaintiff's condition did not qualify as a "serious medical condition." Plaintiff has failed to show that his tooth extraction constituted anything more than a "routine dental or orthodontia problem" exempted by the section 825.114(c) regulation. According to the June 2, 2002 letter from Dr. Kangas, there is nothing to suggest that the extraction was other than routine and nothing to indicate Plaintiff's incapacity or inability to perform his job. Defendant's Ex. 6.
Defendant's second argument is that Plaintiff failed to provide Defendant with the requisite notice of his absence. In a case such as this, in which the employee's need for medical leave was not foreseeable and the employee was not able to provide the employer with 30 days' advance notice, the employee is required to give notice to the employer "as soon as practicable under the facts and circumstances of the case." 29 C.F.R. § 303. The regulation further provides, "it is expected that the employee will give notice to the employer within no more than one or two working days of learning of the need for such leave." Id. Where an employee's need for FMLA leave is unforeseeable, the employee need provide an employer only with notice sufficient to make the employer aware that the absence is due to a potentially FMLA-qualifying reason.Gay v. Gilman Paper Co., 125 F.3d 1432 (11th Cir. 1997).
Plaintiff contends that his mention of FMLA in the early morning telephone call of May 22 was sufficient to put the employer on notice that he intended to take an extended leave for a continuing medical condition. However, he gave no notice of his continuing absence, failing to inform his employer that he would miss work on May 23, 24, 25, 26, and 29. Again, there is no evidence to suggest that Plaintiff was sufficiently incapacitated by the tooth extraction that he could not have called his employer to report his continued absence. During his week's absence, Plaintiff was able to make other telephone calls and even to drive himself to and from the dentist's office. There is no evidence in this record to show that it was not "practicable under the facts and circumstances of this case" to give timely notice as required in 29 C.F.R. § 825.303(a).
Therefore, the court concludes that Plaintiff's condition did not qualify as a "serious medical condition" and that Plaintiff failed to give his employer the requisite notice of his absences after May 22.
It is hereby ORDERED that Defendant's July 31, 2002 motion for summary judgment is GRANTED.