Opinion
Case No.: 1:01 CV 1784
July 31, 2003
ORDER
On July 23, 2001, Debra Gulan ("Gulan" or "Plaintiff) filed this action against her former employer, the Federal Reserve Bank of Cleveland ("Bank" or "Defendant"), alleging violations of the Family Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. ("FMLA" or "the Act"); the Americans With Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. ("ADA"); and wrongful discharge in violation of public policy under Ohio law. Now pending before the court is Defendant's Motion for Summary Judgment (ECF No. 39). For the reasons that follow, the Motion is granted.
I. FACTS
The Bank, located in Cleveland, Ohio, is one of twelve Federal Reserve Banks organized under the Federal Reserve Act and is a part of the Federal Reserve System. Prior to Gulan's employment with the Bank, she alleges that in 1994, after the birth of her daughter, she developed hemorrhoids. She claims that beginning in September 1997, she began receiving treatments from Dr. Debra Pratt ("Dr. Pratt") for hemorrhoids and anal fissures.
Gulan became employed with the Bank on May 15, 1995, as a currency operator in the Cash Department. Her job responsibilities included processing currency as well as operating machinery used to verify, count and check currency. Gulan's immediate supervisor was James LoPiccolo ("LoPiccolo"), and the Cash Department Manager was Lisa Vidacs ("Vidacs"). In order to inform her of the terms and conditions of her employment, Gulan received a copy of the "Employee/Associate Handbook," outlining the Bank's policies and procedures, including its attendance policy. The policy subjects employees to progressive discipline for absences that exceed six in a twelve-month period. Ultimately, employees may be terminated for violating the policy. Leaves that are protected by the FMLA, however, are exempted.
From the beginning of her employment with the Bank, Gulan had considerable trouble complying with the Bank's attendance policy. By September 13, 1995, she had accumulated two absences, (Def. Ex. T), and on January 24, 1996, after accumulating three and one-half additional absences, the Bank placed Gulan on verbal notice. (Def. Ex. U). Gulan violated the terms of her verbal notice when she was absent on June 10, 1996, and as a result the Bank placed her on written warning. (Def. Ex. V). Thereafter, Gulan was placed on probation when she was absent on August 26 and 27, 1996. (Def. Ex. W). In a letter dated September 3, 1996, Gulan was notified that under the terms of her probation, she would be terminated if she were absent prior to November 20, 1996, or if she accumulated more than four absences between November 20, 1996, and October 19, 1997. Id. Despite receiving a reminder notice, Gulan accumulated seven absences between November 20, 1996, and October 19, 1997. (Def, Ex. X and Y). For unexplained reasons, Gulan was not terminated for these violations.
According to these Exhibits, Plaintiff missed three days up through and including April 21, 1997, and also was absent on August 7, 1997; September 10, 1997; September 22, 1997; and September 23, 1997.
On April 13, 1998, six months after her probationary period expired, Gulan was placed on verbal notice for four absences she had accumulated between December 3, 1997, and April 10, 1998. (Def. Ex. Y). On November 22, 1999, she was again placed on verbal notice, for having accumulated eight absences between December 2, 1998, and November 18, 1999. (Def. Ex. Z). Gulan was placed on written warning on January 26, 2000, for her absence on January 25, 2000, in violation of the terms of her verbal notice. (Def. Ex. AA). Upon her absence on March 17, 2000, Gulan was placed on probation for the second time. (Def. Ex. BB). The terms of the probation stated that if Gulan accumulated any absences prior to June 20, 2000, she would be terminated. (Id.)
On May 10, 2000, Gulan reported for work between 5:00 and 5:30 a.m. to open the vault with a fellow associate, Bernadette Robinson ("Robinson"). Gulan alleges that upon her arrival to work she was in a lot of pain and needed to go home. (Gulan Dep. I at 178-80). Because neither LoPiccolo nor Vidacs had arrived, Gulan informed Robinson that she was in pain and that she intended to leave work for the day. (Id.) According to Robinson's deposition testimony, when an employee becomes ill prior to LoPiccolo or Vidacs' arrival, that employee would report their illness to Robinson who would complete a form explaining the reason for the employee's absence, and pass the information on to LoPiccolo or Vidacs. (Robinson Dep. at 14-17). Robinson completed a form on May 10, 2000, regarding Gulan's decision and advised Gulan to contact LoPiccolo later that day to speak with him about her situation. (Id.; Gulan Dep. I at 179-180). Later that morning, upon learning that Gulan had left work for the day, Vidacs initiated the process of terminating Gulan for violating the terms of her probation.
After leaving work, Gulan alleges that she contacted to Dr. Pratt to schedule an appointment with her for that afternoon. In order to cover the co-payment she would be required to make at the time of her visit, Gulan made arrangements to borrow $100 from a friend. On her way from her friend's home, Gulan was involved in an automobile accident, in which she suffered back and neck injuries. She was admitted to St. John's West Shore Hospital ("St. John's Hospital"), treated and released the same day. The emergency room physicians instructed her to take pain pills as well as hot baths, and to follow up with her primary care physician, Dr. Charles Garven ("Dr. Garven"). On May 12, 2000, Dr. Garven examined Gulan and continued her on the same regimen of pain pills and hot baths. Dr. Garven completed a form excusing Gulan from work from May 11 until May 19, 2000.
On May 15, 2000, a few days after the accident, Gulan contacted Ellen Murray ("Murray") in the Bank's human resources department to inform her that she had been in an accident and would be unable to return to work. The following day, Murray sent Gulan a letter notifying her that her absence beginning May 10 had been preliminarily designated as FMLA leave and requested Gulan forward medical documentation regarding her condition to the Bank. Gulan provided the Bank with documentation from Dr. Garven regarding her accident, the doctor's note from Dr. Garven excusing Gulan from work until May 19, 2000, as well as other documentation regarding her medical condition over the past five years. (Def. Exs. II, JJ, and KK).
On May 22, 2000, Gulan returned to work and resumed her position as a currency operator. Later that afternoon, the Bank terminated her employment for violating the terms of her probation when she left work on May 10, 2000. Thereafter, Gulan filed the instant lawsuit.
II. SUMMARY JUDGMENT STANDARD Federal Rule of Civil Procedure(c) governs summary judgment motions and provides:
The judgment sought shall be rendered forthwith 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. . . .
Rule 56(e) specifies the materials properly submitted in connection with a motion for summary judgment:
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. . . . The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denial of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
However, the movant is not required to file affidavits or other similar materials negating a claim on which its opponent bears the burden of proof, so long as the movant relies upon the absence of the essential element in the pleadings, depositions, answers to interrogatories, and admissions on file. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
In reviewing summary judgment motions, this court must view the evidence in a light most favorable to the non-moving party to determine whether a genuine issue of material fact exists. Adickes v. S.H. Kress Co., 398 U.S. 144 (1970); White v. Turfway Park Racing Ass'n, Inc., 909 F.2d 941, 943-44 (6th Cir. 1990). A fact is "material" only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Determination of whether a factual issue is "genuine" requires consideration of the applicable evidentiary standards. Thus, in most civil cases the Court must decide "whether reasonable jurors could find by a preponderance of the evidence that the [non-moving party] is entitled to a verdict." Id. at 252.
Summary judgment is appropriate whenever the non-moving party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. Moreover, "the trial court no longer has a duty to search the entire record to establish that it is bereft of a genuine issue of material fact." Street v. J.C. Bradford Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989) (citing Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1034 (D.C. Cir. 1988)). The non-moving party is under an affirmative duty to point out specific facts in the record as it has been established which create a genuine issue of material fact. Fulson v. City of Columbus, 801 F. Supp. 1, 4 (S.D. Ohio 1992). The non-movant must show more than a scintilla of evidence to overcome summary judgment; it is not enough for the non-moving party to show that there is some metaphysical doubt as to material facts. Id.
III. FMLA CLAIM
The Bank seeks summary judgment on Gulan's FMLA claim, arguing that her May 10, 2000, absence was not the result of a "serious health condition" as defined under the FMLA, and therefore not covered by the Act. Alternatively, it argues that Gulan failed to provide the Bank with certification regarding her May 10 absence, and therefore it is entitled to judgment as a matter of law. Without deciding whether Gulan's condition qualifies as a serious health condition, the court finds that Gulan did not satisfy the certification requirements of the Act and therefore the Bank is entitled to judgment as a matter of law.
In 1993, Congress enacted the FMLA in order to balance "the demands of the workplace with the needs of families." 29 U.S.C. § 2601(b). While Congress sought to provide employees with the right to "take reasonable leave for medical reasons," it also sought to do so "in a manner that accommodates the legitimate interests of employers." 29 U.S.C. § 2601 (b)(2) (3). Covered employees are permitted to take up to twelve weeks of unpaid leave per year for specified reasons. Under the Act, an employer, at its discretion, may require that requested leave "be supported by a certification issued by the health care provider of the eligible employee" 29 U.S.C. § 2613(a). A certification is considered sufficient if it details several aspects of the health condition including: a statement of the medical necessity for the leave; the expected duration of leave; and a statement that the employee is unable to perform the functions of the employee's job. § 2613(b). The employer must inform the employee of the consequences of failure to provide this certification, and the employee has fifteen days or as soon as reasonably possible under the circumstances to submit the form. 29 C.F.R. § 825.305. The Sixth Circuit held that an employee placed on FMLA leave who failed to provide certification for her medical condition from her health care provider was justifiably dismissed because her "termination [did] not constitute a violation of the FMLA." Harrington v. Boysville of Michigan, Inc., 145 F.3d 1331 (6th Cir. 1998).
In Stoops v. One Call Communications, Inc., 141 F.3d 309 (7th Cir. 1998), the Seventh Circuit addressed the application of the certification requirement in the context of an employee who had a chronic serious health condition. In that case, the plaintiff, who was diagnosed with chronic fatigue syndrome, sought full-time FMLA leave. Id. at 310. Upon his employer's request that he provide medical certification of his serious health condition, the plaintiff's physician concluded that he suffered from a chronic serious health condition but that his condition did not require him to miss work. Id. at 313. The plaintiff alleged that his termination violated the FMLA because the employer was aware of his recurring need for leave. Id. The court held even though the plaintiff suffered from a chronic serious health condition, his FMLA claim failed as a matter of law and summary judgment in favor of the employer was appropriate because he did not furnish certification from a health care provider that absence from work was necessary. Id. at 313.
In this case, Gulan argues in her brief that the Bank never requested certification from her regarding her May 10 absence, nor did it advise her of the consequences for failing to provide it. However, she offers no evidentiary support for this statement. The Bank points out that, during her deposition, Gulan admitted that she received a letter dated May 16, 2000, from the Bank's human resource department notifying her that her leave beginning on May 10, 2000, had been preliminarily designated as FMLA eligible. (Gulan Dep. II at 39-40; Def. Ex. II). The letter informed her that she was required to complete a "Certification of Health Care Provider" form and return it to the Bank by June 1, 2000. Id. It stated that "[i]f you . . . fail to present the required medical certification, your leave may be denied and you may be subject to disciplinary action, up to and including termination." Id. Based on Gulan's testimony, it is clear that she did receive the Bank's request for certification from a health care provider.
In her Opposition, Gulan argues that she informed Robinson on the morning of May 10 that she was leaving work due to her hemorrhoids, and that this was sufficient to put the Bank on notice of her need for FMLA leave. Even assuming that such notice was sufficient, Gulan was still required to provide certification for her May 10 absence as requested by the Bank. See § 2613(a).
Under 29 C.F.R. § 825.305, Gulan was required to comply with the Bank's request by June 1, 2000, or as soon as reasonably possible. In her deposition, Gulan stated that she gave the form to Dr. Garven to complete and return to the Bank, but states that she does not know whether the Bank ever received the form. (Gulan Dep. II at 40, 47). The Bank claims that the only documentation it received were medical records from Dr. Garven concerning Gulan's condition over the past five years. As a matter of law, this information is insufficient because Gulan was required to supply certification for the specific date at issue. See § 2613; Pagan v. United States Postal Service, 1999 WL 1211915 at *2 (Fed. Cir. Dec. 15, 1999) (holding that "[a]lthough [the plaintiff] may have provided sufficient documentation to establish that she would need leave on an intermittent basis, such documentation does not demonstrate that such leave was needed on the specific days charged").
Gulan has not come forth with any evidence that she provided the Bank with certification regarding her May 10 absence. There is simply nothing in the record indicating that Gulan provided any medical documentation indicating that it was medically necessary for her to leave work on May 10 because her hemorrhoids prevented her from performing her job functions. The absence slip Dr. Garven completed authorized Gulan's absence from work from May 11 through May 19 but does not speak to her absence on May 10. Likewise, Dr. Pratt, Gulan's treating physician, acknowledges that she never authorized Gulan's absence for hemorrhoids on May 10. In a letter dated January 21, 2002, Dr. Pratt stated: "I have received a message that you would like me to in a letter state that you lost your job secondary to having recurrent hemorrhoid problems. I am unable to make that determination. I may only state the dates and times that I have given you time from being off work within that time period." (Def. Ex. MM). The only evidence Gulan has submitted are her own statements as well as affidavits from friends to support the conclusion that she was absent from work due to her hemorrhoids. This evidence is insufficient, as § 2613(a) specifically provides that the documentation must originate from a health care provider. Moreover, the requirement that a health care provider furnish certification "does not mean that, in the employee's own judgment, he or she should not work, or even that it was uncomfortable or inconvenient for the employee to have to work. Rather, it means that a `health care provider' has determined that, in his or her professional medical judgment, the employee . . . could not have worked because of the illness. If it were otherwise, a note from a spouse, parent, or even one's own claim that one cannot work because of illness would suffice." Olsen v. Ohio Edison Co., 979 F. Supp. 1159, 1166 (N.D. Ohio 1997).
Construing the evidence in a light most favorable to her, the court finds that Plaintiff's FMLA claim must fail as a matter of law for failure to satisfy the certification requirements. Even though this result may appear harsh, Plaintiff had been put on notice that she would be terminated if she accumulated any absences prior to June 20, 2000. Inasmuch as she provided no medical certification for her absence on May 10, 2000, it cannot count as FMLA leave. Accordingly, the Bank's Motion is granted as to this claim.
IV. REMAINING CLAIMS
Count II of Gulan's Complaint alleges violation of the ADA. During her deposition, Gulan's attorney stated that she was no longer pursuing this claim. (Gulan Dep. II at 89, 105). Accordingly, this count is dismissed.
Count III of Gulan's Complaint alleges wrongful discharge in violation of public policy under Ohio law. The Bank seeks judgment as a matter of law on this claim, alleging that the Federal Reserve Act ("FRA") preempts this claim. Gulan has not responded to this argument
The FRA provides that Federal Reserve Banks "shall have the power . . . to dismiss at pleasure such officers and employees." 12 U.S.C. § 341 (Fifth). In interpreting this provision, the Sixth Circuit has held that § 341 (Fifth) "preempts any state-created employment right" that is contrary to the Federal Reserve Bank's authority to dismiss at its pleasure. Ana Leon T. v. Federal Reserve Bank of Chicago, 823 F.2d 928, 931 (6th Cir. 1987) (holding that the plaintiff's claims for employment discrimination under Michigan's Elliott-Larsen Act were preempted by the FRA); see also Kispert v. Federal Home Loan Bank of Cincinnati, 778 F. Supp. 950, 952-53 (S.D. Ohio 1991) (holding that the "at pleasure" language of the FRA is identical to that of the Federal Home Loan Bank Act and therefore the plaintiff's claims for violation of her employment rights under Ohio law were preempted by federal law).
In this case, Gulan's Complaint alleges wrongful discharge in violation of public policy under Ohio law. Because the FRA specifically empowers the Federal Reserve Banks to dismiss an employee "at pleasure," a claim for wrongful discharge under Ohio law is contrary to the Bank's authority and is preempted by § 341 (Fifth). Accordingly, Defendant's Motion for Summary Judgment is granted as to Count III.
V. CONCLUSION
Therefore, Defendant's Motion for Summary Judgment (ECF No. 39) is granted.
ORDER
On July 23, 2001, Debra Gulan ("Gulan" or "Plaintiff) filed this action against her former employer, the Federal Reserve Bank of Cleveland ("Bank" or "Defendant"), alleging violations of the Family Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. ("FMLA" or "the Act"); the Americans With Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. ("ADA"); and wrongful discharge in violation of public policy under Ohio law. Now pending before the court is Defendant's Motion for Summary Judgment (ECF No. 39). For the reasons that follow, the Motion is granted.I. FACTS
The Bank, located in Cleveland, Ohio, is one of twelve Federal Reserve Banks organized under the Federal Reserve Act and is a part of the Federal Reserve System. Prior to Gulan's employment with the Bank, she alleges that in 1994, after the birth of her daughter, she developed hemorrhoids. She claims that beginning in September 1997, she began receiving treatments from Dr. Debra Pratt ("Dr. Pratt") for hemorrhoids and anal fissures.
Gulan became employed with the Bank on May 15, 1995, as a currency operator in the Cash Department. Her job responsibilities included processing currency as well as operating machinery used to verify, count and check currency. Gulan's immediate supervisor was James LoPiccolo ("LoPiccolo"), and the Cash Department Manager was Lisa Vidacs ("Vidacs"). In order to inform her of the terms and conditions of her employment, Gulan received a copy of the "Employee/Associate Handbook," outlining the Bank's policies and procedures, including its attendance policy. The policy subjects employees to progressive discipline for absences that exceed six in a twelve-month period. Ultimately, employees may be terminated for violating the policy. Leaves that are protected by the FMLA, however, are exempted.
From the beginning of her employment with the Bank, Gulan had considerable trouble complying with the Bank's attendance policy. By September 13, 1995, she had accumulated two absences, (Def. Ex. T), and on January 24, 1996, after accumulating three and one-half additional absences, the Bank placed Gulan on verbal notice. (Def. Ex. U). Gulan violated the terms of her verbal notice when she was absent on June 10, 1996, and as a result the Bank placed her on written warning. (Def. Ex. V). Thereafter, Gulan was placed on probation when she was absent on August 26 and 27, 1996. (Def. Ex. W). In a letter dated September 3, 1996, Gulan was notified that under the terms of her probation, she would be terminated if she were absent prior to November 20, 1996, or if she accumulated more than four absences between November 20, 1996, and October 19, 1997. Id. Despite receiving a reminder notice, Gulan accumulated seven absences between November 20, 1996, and October 19, 1997. (Def, Ex. X and Y). For unexplained reasons, Gulan was not terminated for these violations.
According to these Exhibits, Plaintiff missed three days up through and including April 21, 1997, and also was absent on August 7, 1997; September 10, 1997; September 22, 1997; and September 23, 1997.
On April 13, 1998, six months after her probationary period expired, Gulan was placed on verbal notice for four absences she had accumulated between December 3, 1997, and April 10, 1998. (Def. Ex. Y). On November 22, 1999, she was again placed on verbal notice, for having accumulated eight absences between December 2, 1998, and November 18, 1999. (Def. Ex. Z). Gulan was placed on written warning on January 26, 2000, for her absence on January 25, 2000, in violation of the terms of her verbal notice. (Def. Ex. AA). Upon her absence on March 17, 2000, Gulan was placed on probation for the second time. (Def. Ex. BB). The terms of the probation stated that if Gulan accumulated any absences prior to June 20, 2000, she would be terminated. (Id.)
On May 10, 2000, Gulan reported for work between 5:00 and 5:30 a.m. to open the vault with a fellow associate, Bernadette Robinson ("Robinson"). Gulan alleges that upon her arrival to work she was in a lot of pain and needed to go home. (Gulan Dep. I at 178-80). Because neither LoPiccolo nor Vidacs had arrived, Gulan informed Robinson that she was in pain and that she intended to leave work for the day. (Id.) According to Robinson's deposition testimony, when an employee becomes ill prior to LoPiccolo or Vidacs' arrival, that employee would report their illness to Robinson who would complete a form explaining the reason for the employee's absence, and pass the information on to LoPiccolo or Vidacs. (Robinson Dep. at 14-17). Robinson completed a form on May 10, 2000, regarding Gulan's decision and advised Gulan to contact LoPiccolo later that day to speak with him about her situation. (Id.; Gulan Dep. I at 179-180). Later that morning, upon learning that Gulan had left work for the day, Vidacs initiated the process of terminating Gulan for violating the terms of her probation.
After leaving work, Gulan alleges that she contacted to Dr. Pratt to schedule an appointment with her for that afternoon. In order to cover the co-payment she would be required to make at the time of her visit, Gulan made arrangements to borrow $100 from a friend. On her way from her friend's home, Gulan was involved in an automobile accident, in which she suffered back and neck injuries. She was admitted to St. John's West Shore Hospital ("St. John's Hospital"), treated and released the same day. The emergency room physicians instructed her to take pain pills as well as hot baths, and to follow up with her primary care physician, Dr. Charles Garven ("Dr. Garven"). On May 12, 2000, Dr. Garven examined Gulan and continued her on the same regimen of pain pills and hot baths. Dr. Garven completed a form excusing Gulan from work from May 11 until May 19, 2000.
On May 15, 2000, a few days after the accident, Gulan contacted Ellen Murray ("Murray") in the Bank's human resources department to inform her that she had been in an accident and would be unable to return to work. The following day, Murray sent Gulan a letter notifying her that her absence beginning May 10 had been preliminarily designated as FMLA leave and requested Gulan forward medical documentation regarding her condition to the Bank. Gulan provided the Bank with documentation from Dr. Garven regarding her accident, the doctor's note from Dr. Garven excusing Gulan from work until May 19, 2000, as well as other documentation regarding her medical condition over the past five years. (Def. Exs. II, JJ, and KK).
On May 22, 2000, Gulan returned to work and resumed her position as a currency operator. Later that afternoon, the Bank terminated her employment for violating the terms of her probation when she left work on May 10, 2000. Thereafter, Gulan filed the instant lawsuit.
II. SUMMARY JUDGMENT STANDARD
Federal Rule of Civil Procedure 56(c) governs summary judgment motions and provides:
The judgment sought shall be rendered forthwith 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. . . .
Rule 56(e) specifies the materials properly submitted in connection with a motion for summary judgment:
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. . . . The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denial of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
However, the movant is not required to file affidavits or other similar materials negating a claim on which its opponent bears the burden of proof, so long as the movant relies upon the absence of the essential element in the pleadings, depositions, answers to interrogatories, and admissions on file. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
In reviewing summary judgment motions, this court must view the evidence in a light most favorable to the non-moving party to determine whether a genuine issue of material fact exists. Adickes v. S.H. Kress Co., 398 U.S. 144 (1970); White v. Turfway Park Racing Ass'n, Inc., 909 F.2d 941, 943-44 (6th Cir. 1990). A fact is "material" only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Determination of whether a factual issue is "genuine" requires consideration of the applicable evidentiary standards. Thus, in most civil cases the Court must decide "whether reasonable jurors could find by a preponderance of the evidence that the [non-moving party] is entitled to a verdict." Id. at 252.
Summary judgment is appropriate whenever the non-moving party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. Moreover, "the trial court no longer has a duty to search the entire record to establish that it is bereft of a genuine issue of material fact." Street v. J.C. Bradford Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989) (citing Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1034 (D.C. Cir. 1988)). The non-moving party is under an affirmative duty to point out specific facts in the record as it has been established which create a genuine issue of material fact. Fulson v. City of Columbus, 801 F. Supp. 1, 4 (S.D. Ohio 1992). The non-movant must show more than a scintilla of evidence to overcome summary judgment; it is not enough for the non-moving party to show that there is some metaphysical doubt as to material facts. Id.
III. FMLA CLAIM
The Bank seeks summary judgment on Gulan's FMLA claim, arguing that her May 10, 2000, absence was not the result of a "serious health condition" as defined under the FMLA, and therefore not covered by the Act. Alternatively, it argues that Gulan failed to provide the Bank with certification regarding her May 10 absence, and therefore it is entitled to judgment as a matter of law. Without deciding whether Gulan's condition qualifies as a serious health condition, the court finds that Gulan did not satisfy the certification requirements of the Act and therefore the Bank is entitled to judgment as a matter of law.
In 1993, Congress enacted the FMLA in order to balance "the demands of the workplace with the needs of families." 29 U.S.C. § 2601(b). While Congress sought to provide employees with the right to "take reasonable leave for medical reasons," it also sought to do so "in a manner that accommodates the legitimate interests of employers." 29 U.S.C. § 2601 (b)(2) (3). Covered employees are permitted to take up to twelve weeks of unpaid leave per year for specified reasons. Under the Act, an employer, at its discretion, may require that requested leave "be supported by a certification issued by the health care provider of the eligible employee" 29 U.S.C. § 2613(a). A certification is considered sufficient if it details several aspects of the health condition including: a statement of the medical necessity for the leave; the expected duration of leave; and a statement that the employee is unable to perform the functions of the employee's job. § 2613(b). The employer must inform the employee of the consequences of failure to provide this certification, and the employee has fifteen days or as soon as reasonably possible under the circumstances to submit the form. 29 C.F.R. § 825.305. The Sixth Circuit held that an employee placed on FMLA leave who failed to provide certification for her medical condition from her health care provider was justifiably dismissed because her "termination [did] not constitute a violation of the FMLA." Harrington v. Boysville of Michigan, Inc., 145 F.3d 1331 (6th Cir. 1998).
In Stoops v. One Call Communications, Inc., 141 F.3d 309 (7th Cir. 1998), the Seventh Circuit addressed the application of the certification requirement in the context of an employee who had a chronic serious health condition. In that case, the plaintiff, who was diagnosed with chronic fatigue syndrome, sought full-time FMLA leave. Id. at 310. Upon his employer's request that he provide medical certification of his serious health condition, the plaintiff's physician concluded that he suffered from a chronic serious health condition but that his condition did not require him to miss work. Id. at 313. The plaintiff alleged that his termination violated the FMLA because the employer was aware of his recurring need for leave. Id. The court held even though the plaintiff suffered from a chronic serious health condition, his FMLA claim failed as a matter of law and summary judgment in favor of the employer was appropriate because he did not furnish certification from a health care provider that absence from work was necessary. Id. at 313.
In this case, Gulan argues in her brief that the Bank never requested certification from her regarding her May 10 absence, nor did it advise her of the consequences for failing to provide it. However, she offers no evidentiary support for this statement. The Bank points out that, during her deposition, Gulan admitted that she received a letter dated May 16, 2000, from the Bank's human resource department notifying her that her leave beginning on May 10, 2000, had been preliminarily designated as FMLA eligible. (Gulan Dep. II at 39-40; Def. Ex. II). The letter informed her that she was required to complete a "Certification of Health Care Provider" form and return it to the Bank by June 1, 2000. Id. It stated that "[i]f you . . . fail to present the required medical certification, your leave may be denied and you may be subject to disciplinary action, up to and including termination." Id. Based on Gulan's testimony, it is clear that she did receive the Bank's request for certification from a health care provider.
In her Opposition, Gulan argues that she informed Robinson on the morning of May 10 that she was leaving work due to her hemorrhoids, and that this was sufficient to put the Bank on notice of her need for FMLA leave. Even assuming that such notice was sufficient, Gulan was still required to provide certification for her May 10 absence as requested by the Bank. See § 2613(a).
Under 29 C.F.R. § 825.305, Gulan was required to comply with the Bank's request by June 1, 2000, or as soon as reasonably possible. In her deposition, Gulan stated that she gave the form to Dr. Garven to complete and return to the Bank, but states that she does not know whether the Bank ever received the form. (Gulan Dep. II at 40, 47). The Bank claims that the only documentation it received were medical records from Dr. Garven concerning Gulan's condition over the past five years. As a matter of law, this information is insufficient because Gulan was required to supply certification for the specific date at issue. See § 2613; Pagan v. United States Postal Service, 1999 WL 1211915 at *2 (Fed. Cir. Dec. 15, 1999) (holding that "[although [the plaintiff] may have provided sufficient documentation to establish that she would need leave on an intermittent basis, such documentation does not demonstrate that such leave was needed on the specific days charged").
Gulan has not come forth with any evidence that she provided the Bank with certification regarding her May 10 absence. There is simply nothing in the record indicating that Gulan provided any medical documentation indicating that it was medically necessary for her to leave work on May 10 because her hemorrhoids prevented her from performing her job functions. The absence slip Dr. Garven completed authorized Gulan's absence from work from May 11 through May 19 but does not speak to her absence on May 10. Likewise, Dr. Pratt, Gulan's treating physician, acknowledges that she never authorized Gulan's absence for hemorrhoids on May 10. In a letter dated January 21, 2002, Dr. Pratt stated: "I have received a message that you would like me to in a letter state that you lost your job secondary to having recurrent hemorrhoid problems. I am unable to make that determination. I may only state the dates and times that I have given you time from being off work within that time period." (Def. Ex. MM). The only evidence Gulan has submitted are her own statements as well as affidavits from friends to support the conclusion that she was absent from work due to her hemorrhoids. This evidence is insufficient, as § 2613(a) specifically provides that the documentation must originate from a health care provider. Moreover, the requirement that a health care provider furnish certification "does not mean that, in the employee's own judgment, he or she should not work, or even that it was uncomfortable or inconvenient for the employee to have to work. Rather, it means that a `health care provider' has determined that, in his or her professional medical judgment, the employee . . . could not have worked because of the illness. If it were otherwise, a note from a spouse, parent, or even one's own claim that one cannot work because of illness would suffice." Olsen v. Ohio Edison Co., 979 F. Supp. 1159, 1166 (N.D. Ohio 1997). Construing the evidence in a light most favorable to her, the court finds that Plaintiff's FMLA claim must fail as a matter of law for failure to satisfy the certification requirements. Even though this result may appear harsh, Plaintiff had been put on notice that she would be terminated if she accumulated any absences prior to June 20, 2000. Inasmuch as she provided no medical certification for her absence on May 10, 2000, it cannot count as FMLA leave. Accordingly, the Bank's Motion is granted as to this claim.
IV. REMAINING CLAIMS
Count II of Gulan's Complaint alleges violation of the ADA. During her deposition, Gulan's attorney stated that she was no longer pursuing this claim. (Gulan Dep. II at 89, 105). Accordingly, this count is dismissed.
Count III of Gulan's Complaint alleges wrongful discharge in violation of public policy under Ohio law. The Bank seeks judgment as a matter of law on this claim, alleging that the Federal Reserve Act ("FRA") preempts this claim. Gulan has not responded to this argument
The FRA provides that Federal Reserve Banks "shall have the power . . . to dismiss at pleasure such officers and employees." 12 U.S.C. § 341 (Fifth). In interpreting this provision, the Sixth Circuit has held that § 341 (Fifth) "preempts any state-created employment right" that is contrary to the Federal Reserve Bank's authority to dismiss at its pleasure. Ana Leon T. v. Federal Reserve Bank of Chicago, 823 F.2d 928, 931 (6th Cir. 1987) (holding that the plaintiff's claims for employment discrimination under Michigan's Elliott-Larsen Act were preempted by the FRA); see also Kispert v. Federal Home Loan Bank of Cincinnati, 778 F. Supp. 950, 952-53 (S.D. Ohio 1991) (holding that the "at pleasure" language of the FRA is identical to that of the Federal Home Loan Bank Act and therefore the plaintiff's claims for violation of her employment rights under Ohio law were preempted by federal law).
In this case, Gulan's Complaint alleges wrongful discharge in violation of public policy under Ohio law. Because the FRA specifically empowers the Federal Reserve Banks to dismiss an employee "at pleasure," a claim for wrongful discharge under Ohio law is contrary to the Bank's authority and is preempted by § 341 (Fifth). Accordingly, Defendant's Motion for Summary Judgment is granted as to Count III.
V. CONCLUSION
Therefore, Defendant's Motion for Summary Judgment (ECF No. 39) is granted.
IT IS SO ORDERED.