349 F.Supp.2d 158 (2004) | Cited 6 times | D. Massachusetts | December 8, 2004


Plaintiff Sandra Wheeler ("Wheeler") has brought this actionagainst her former employer Pioneer Development Services, Inc.("Pioneer") claiming that Pioneer wrongfully discharged her fromher position. Specifically, Wheeler's complaint chargesviolations of the Family Medical Leave Act ("FMLA"), ERISAviolations, breach of both contractual and fiduciary duties,conversion, and violation of Massachusetts state law.

Following discovery, Wheeler has moved for partial summaryjudgment on Count I, arguing that on the undisputed facts, noreasonable jury could fail to find a violation of the FMLA.Pioneer has opposed Wheeler's motion and responded with a motionfor partial summary judgment of its own as to Wheeler's FMLAclaim. As will be seen, the critical point of disagreement between theparties is whether Wheeler gave proper notice to Pioneer of herneed for FMLA leave, and whether her medical condition qualifiedfor medical leave under the statute. As the discussion will show,the undisputed facts permit no other conclusion but that theplaintiff suffered a violation of her rights under the FMLA.Although courts seldom allow plaintiffs' motions for summaryjudgment, the facts of this case establish a violation of theFMLA as a matter of law and make a trial on the liability aspectof this claim unnecessary.


Summary judgment is proper when "the pleadings, answers tointerrogatories, and admissions on file, together with theaffidavits, if any, show that there is no genuine issue as to anymaterial fact and that the moving party is entitled to a judgmentas a matter of law." Fed.R.Civ.P. 56(c). A "genuine" issue isone that reasonably could be resolved in favor of either party,and a material fact is one that "might affect the outcome of thesuit under the governing law." Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 248-50 (1986). The court must view all evidence inthe light most favorable to the nonmoving party, "drawing allreasonable inferences in the party's favor." Thomas v. EastmanKodak Co., 186 F.3d 38, 42 (1st Cir. 1999), cert. denied,528 U.S. 1161 (2000).

Once the moving party has asserted that no genuine issue ofmaterial fact exists, the burden is on the opposing party to point to specific facts demonstrating that there is, indeed, atrial worthy issue. National Amusements, Inc. v. Town ofDedham, 43 F.3d 731, 735 (1st Cir. 1995), cert. denied,515 U.S. 1103 (1995). Not every genuine factual conflict, of course,necessitates a trial. "It is only when a disputed fact has thepotential to change the outcome of the suit under the governinglaw if found favorably to the nonmovant that the materialityhurdle is cleared." Parrilla-Burgos v. Hernandez-Rivera,108 F.3d 445, 448 (1st Cir. 1997) (citations omitted).


Viewed in the light most favorable to the defendant, therelevant background to the motions may be summarized a follows.

Pioneer, defendant in this case, provides social and trainingservices to developmentally disabled adults. Wheeler, theplaintiff, worked for Pioneer as a case manager and/or directcase worker from March 16, 1998 until her discharge on December26, 2001.

The events leading up to plaintiff's discharge unfolded in thefollowing manner. On December 7, 2001, having promised to takeone of Pioneer's clients home from the office, Wheeler failed tofollow through, leaving the supervisor with a disabled client.Wheeler explained to her supervisor, however, that she had toleave to pick up her children. On December 10, 2001, Wheelerchose not to follow her supervisor's suggestion that sheencourage one of Pioneer's clients to perform some work aroundthe office to make some money. As a result, both Wheeler and the client remained idle for the next hour. At that point, Pioneerconsidered Wheeler's behavior to constitute willfulinsubordination and later issued a reprimand in the form of aso-called "Disciplinary Action Letter" on December 13, 2001.Although office protocol required Wheeler to sign theDisciplinary Letter, she apparently refused. Wheeler was placedon thirty-day probationary status based on this reprimand.

Wheeler began to feel sick around December 10, 2001. Followingthe onset of her symptoms, Wheeler asked her supervisor, anindividual named Michaud, for permission to leave, but Michaudrefused to allow it.

The following day, Wheeler consulted her physician, Dr. PeterSiersma ("Siersma"). Siersma had been Wheeler's personal doctorsince 1992. During the office visit, Siersma observed Wheelercoughing and experiencing hot and cold sweats and an upperrespiratory infection. These observations led the doctor toconclude that Wheeler suffered from a condition characterized asa "viral infection in a smoker" or "viral infection withattendant symptoms." Although he did not mention it in Wheeler'smedical records, at deposition Siersma testified that it wouldhave been "counterproductive for [Wheeler] to work at her jobuntil she was feeling better or was clinically better or was seenand documented to be better." (Docket No. 24 at 2).

Medical records merely indicate that on December 11 Siersmaprescribed "symptomatic care" to Wheeler, though he latertestified that he advised Wheeler to stay home from work, get plenty of rest and treat her symptoms with fluids andover-the-counter medications. Siersma also testified that he feltconcerned that Wheeler needed rest in order to completely recoverfrom her illness, but he again failed to record that informationin Wheeler's medical records.

Wheeler continued to request medical leave. She explained thatshe had not been feeling well on several occasions in December.When Wheeler's supervisors Michaud and another party named Taylor("Taylor") denied all of Wheeler's requests on December 13, 2001,Wheeler telephoned Siersma's office and asked for a noteconfirming her need for a leave of absence. In response toWheeler's request, Siersma wrote a note on the same date, whichsimply indicated that Wheeler needed "LOA × 4."1 Thedoctor testified at his deposition that at that time, he believedthat damage done to Wheeler's bronchi and pulmonary parenchymawould take three to four weeks to resolve, and so he wroteWheeler a note for the maximum amount of time that he thoughtWheeler needed to recover from her viral illness.

Wheeler picked up the note from Siersma's office and handed itto Taylor the next day, December 14, 2001. Pioneer apparentlyconsidered the Siersma note to constitute a request for medicalleave under the Pioneer employee manual. Although Wheeler saidthat she felt "sick and tired" as she handed in the note, Taylorunderstood that Wheeler requested a medical leave, upon the advice of her physician, for a period of four weeks. (Docket No.28 at 3). Upon receiving the note, Taylor indicated that shewould need more information to determine if Wheeler trulyqualified for leave. Having delivered the note to Taylor, Wheelerleft work, went home, and remained completely incapacitated fromDecember 14, 2001 through December 19, 2001.

On December 19, 2001, Wheeler received a letter from Pioneerdated December 17, 2001. The letter requested that Wheeler submitadditional information from her doctor no later than December 20,2001, the next day, and instructed her to sign a release to allowPioneer to contact Wheeler's physician directly. Wheeler took theletter to Siersma's office the same day, let Siersma'sreceptionist make a copy, and signed the requested medicalrelease form. The receptionist assured Wheeler that the doctorwould submit all the necessary information to Pioneer.

On the same day, a person from Siersma's office telephonedPioneer and explained that because Siersma had a busy schedule,he could not comply with Pioneer's deadline of December 20th. Theperson assured Pioneer, however, that Siersma would fax therequested information to Pioneer by December 24, 2001, the daybefore the Christmas holiday. The following day, December 20,2001, Siersma reviewed the job description for Wheeler thatPioneer had provided and dictated additional information thatPioneer had requested. Siersma stated in his letter that, havingreviewed Wheeler's job description, he concluded that it wascounter-productive for Wheeler to continue with her duties, since the time demands of Wheeler's job would impede her recovery.

Siersma uses a transcriptionist to type his dictation. Exceptin cases of emergency, the transcriptionist typically requirestwo to three days to return Siersma's dictation for hissignature. Siersma did not consider administrative requests likePioneer's an emergency, and, partly as a result of the Christmasholiday, Siersma did not receive the letter back for signatureuntil December 26, 2001. When Pioneer did not receive medicalcertification on December 20, 2001, it did not instruct anybodyto contact Wheeler and explain that Pioneer had not yet receivedthe required information. Nor did Pioneer contact Siersma afterit learned that Siersma could not meet the December 20thdeadline.

Wheeler's health continued to worsen. On December 26, 2001,Wheeler saw Dr. Muellner ("Muellner"), another physician inSiersma's office, who prescribed her the antibiotic Doxycycline.Following the office visit, Wheeler filled the prescription at adrug store and began taking it the same day.

On the same day, December 26, 2001, Pioneer terminated Wheelerfor failure to comply with the deadline for submitting additionalmedical information. Wheeler's supervisors, Taylor and Leopold("Leopold") prepared and sent Wheeler a Disciplinary ActionStatement with a cover letter. The letter explained that Pioneerconsidered Wheeler's failure to provide a letter from herphysician by the December 20th deadline willful insubordination.Moreover, as Pioneer did not receive the additional medical information, it also considered Wheeler's absence from workunauthorized.

As noted above, through the period starting December 14, 2001and for thirty days thereafter plaintiff was on probationarystatus based on the December 13, 2001 Disciplinary Action letter.Aside from her failure to provide additional medical informationby December 20, 2001, Wheeler did not commit any otherdisciplinary infraction between December 14, 2001 and the date ofher discharge on December 26, 2001. In fact, Pioneer did not planto terminate Wheeler, and both Taylor and Leopold stated thatPioneer probably would not have terminated Wheeler's employmentif Pioneer had received the requested additional medicalinformation by December 20, 2001.

Having received Siersma's letter on December 26, 2001, Pioneerdid not contact Wheeler to explain that Siersma's letter hadinsufficient information. Nor did Pioneer ask Wheeler to seek asecond opinion at Pioneer's expense, something that Wheeler wouldhave willingly done.

In addition to her full-time employment with Pioneer, Wheeleralso worked part-time as a bartender at an establishment calledPeanut Bar. Wheeler's schedule at the Bar normally included thehours of six in the afternoon through one in the morning onWednesdays, and noon through six in the afternoon on Sundays.Although Wheeler could not remember how many hours she worked atthe Bar in December of 2001, she did recall working there betweenDecember 14, 2001 and January of 2002. In particular, Wheeler apparently worked at the Bar for sixteenhours the week of December 30, 2001 through January 5, 2002.

After her discharge, Wheeler remained ill until January 10,2002. Once she recovered, she brought this action againstPioneer. As noted, following discovery, Wheeler has moved forpartial summary judgment on Count I of her complaint, allegingviolation of the Family and Medical Leave Act. For the reasonsset forth below, the court will allow her motion and denydefendant's cross-motion.


A. Introduction

Congress enacted the Family Medical Leave Act ("FMLA") "to helpworking men and women balance the conflicting demands of work andpersonal life." Hodges v. General Dynamics Corp., 144 F.3d 151,159 (1st Cir. 1998) (citing Price v. City of Fort Wayne,117 F.3d 1022, 1024 (7th Cir. 1997)). In enacting the FMLA, Congressrecognized that "there will be times in a person's life when thatperson is incapable of performing her duties for medicalreasons." Id. At the same time, Congress sought to accomplishits purposes in a manner that "accommodates the legitimateinterests of employers." 29 U.S.C. § 2601(b)(3) (2004). Believingthat "there is inadequate job security for employees who haveserious health conditions that prevent them from working fortemporary periods," 29 U.S.C. § 2601(a)(4) (2004), Congressdesigned a statutory scheme to "balance the demands of theworkplace with the needs of families" and "to entitle employees to take reasonable leave for medical reasons."29 U.S.C. § 2601(b)(1) (2004); Hodges, 144 F.3d at 159.

The FMLA provides certain qualified employees with a number ofsubstantive rights and prohibits employers from discriminatingagainst employees who have availed themselves of FMLA benefits.The statute provides that eligible employees "shall be entitledto a total of 12 workweeks of leave during any 12-month period."29 U.S.C. § 2612(a)(1) (2004). This entitlement "is essentiallyprescriptive, `set[ting] substantive floors' for conduct byemployers, and creating `entitlements' for employees." Hodges,144 F.3d at 159 (quoting from Diaz v. Fort Wayne Foundry Corp.,131 F.3d 711, 712-13 (7th Cir. 1997)). Any employee who qualifiesfor and takes FMLA leave "shall be entitled, on return from suchleave, to be restored to the same position held before the leavecommenced, or to an equivalent position with equivalentconditions of employment." 29 U.S.C. § 2614(1)(A), (B) (2004).

The FMLA also forbids employers to "discharge or in any othermanner discriminate against any individual for opposing anypractice made unlawful" by the FMLA. 29 U.S.C. § 2615(a)(2)(2004). Finally, the FMLA makes it "unlawful for any employer tointerfere with, restrain, or deny . . . any rights provided" bythe FMLA, 29 U.S.C. § 2615(a)(1) (2004), and makes employers whoviolate the FMLA "liable to any eligible employee affected. . .." 29 U.S.C. § 2617(a)(2004).

To prevail on an FMLA claim, an aggrieved worker must establishfive things. First, the worker must establish that she fit the definition of an "eligible employee." See29 U.S.C. § 2612(a)(1) (2004). Second, the worker must establish that sheworked for an employer covered by the Act. See29 U.S.C. § 2615(a)(1) (2004); 29 U.S.C. § 2617(a)(1). Third, the worker hasto show that she qualified for FMLA benefits for one of fourstatutory reasons. See 29 U.S.C. § 2612(a)(1) (2004). Fourth,the worker has to prove that she gave her employer appropriatenotice. See 29 U.S.C. § 2612(e) (2004); 29 C.F.R. 825.302.See also 29 C.F.R. 825.303 (notice requirements forunforeseeable leave). Finally, the worker has to establish thatthe employer denied her benefits to which the FMLA entitled her.See 29 U.S.C. § 2612(a)(1) (2004). See also Cavin v. Hondaof American Mfg. Inc., 346 F.3d 713, 716 (6th Cir. 2003)(recognizing these five factors).

B. "Eligible employee" and employer.

A worker qualifies as an "eligible employee" within the meaningof the FMLA if she has been employed with the employer for atleast twelve months and worked for at least 1,250 hours duringthe previous twelve-month period. 29 U.S.C. § 2611(2)(A) (2004).An employer becomes bound by the FMLA if it engages in commerce,or in any industry or activity affecting commerce and employsfifty or more employees for each working day during each oftwenty or more calendar work weeks in the current or previouscalendar year. 29 U.S.C. § 2611(4) (2004).

C. Entitlement to leave.

An eligible employee can ask for FMLA leave for one or more statutory reasons. One of those reasons is the employee's own"serious health condition that makes the employee unable toperform the functions of the position of [the] employer."29 U.S.C. § 2612(a)(1)(D) (2004).

An eligible employee has a "serious health condition" if shehas an illness that involves either inpatient care or continuingtreatment by a health care provider. 29 U.S.C. § 2611(11) (2004);29 C.F.R. 825.114. Although the FMLA requires an employee to havean "illness" to qualify for medical leave, the FMLA itself doesnot define qualifying illnesses. Under its power to "prescribesuch regulations as are necessary to carry out" the provisions ofthe FMLA, 29 U.S.C. § 2654 (2004), the Secretary of Labor("Secretary") has adopted regulations describing what types ofillnesses do not normally qualify for FMLA leave benefits. See29 C.F.R. 825.114(c). The Secretary has determined, for example,that [o]rdinarily, unless complications arise, the common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease, etc., are examples of conditions that do not meet the definition of a serious health condition and do not qualify for FMLA leave.Id. Specifically, with regard to employees with an episode ofthe flu, some courts have suggested that such employees do notqualify for FMLA leave. See Brannon v. OshKosh B'Gosh, Inc.,897 F. Supp. 1028, 1036 n. 8 (M.D. Tenn. 1995). In 1996, however,the Secretary issued an opinion letter specifically stating that,"[i]f, however, any of these conditions [such as flu, which ordinarily does not satisfy the definition] met the regulatorycriteria for a serious health condition, . . . then the absence[from work] would be protected by the FMLA. . . . Complications,per se, need not be present to qualify as a serious healthcondition if the regulatory . . . tests are otherwise met."Miller v. AT&T Corp., 250 F.3d 820, 832 (4th Cir. 2001)(quoting from the 1996 opinion letter of the Secretary of Labor)(internal quotations omitted).

In order to qualify for leave, in addition to having an"illness," the employee must also receive in-patient care orcontinuing treatment from a health care provider.29 U.S.C. § 2611(11) (2004); 29 C.F.R. 825.114(a). The patient receives"continuing treatment by a health care provider" if the patient'sillness involves a period of incapacity that lasts more thanthree consecutive calendar days and involves medical treatment.29 C.F.R. 825.114(a)(2)(i). Illness involves a period ofincapacity when the patient cannot work "due to the serioushealth condition, treatment therefor, or recovery therefrom."Id.

To prove incapacity, therefore, an employee must firstnecessarily prove that her illness made her unable to work formore than three consecutive calendar days. Having establishedthis threshold requirement, the employee may continue to qualifyfor benefits due to incapacity if she either remains unable towork because of her illness, or receives subsequent treatment. Inother words, after the initial three-day period of incapacity, the employee does not have to show that she could not perform anywork at all, but only that she could not perform job functions ofher own employer and continued to receive treatment for herillness.

The patient receives medical treatment for the purposes of FMLAif she receives treatment two or more times by a health careprovider, or receives a single treatment by a health careprovider which results in a "regimen of continuing treatmentunder the supervision of the health care provider."29 C.F.R. 825.114(a)(2)(i)(A), (B). For FMLA purposes, "treatment includesexamination to determine if a serious health condition exists andevaluation of the condition," and a "regimen of continuingtreatment . . . includes a course of prescription medication(e.g., an antibiotic)," but not over-the-counter medications.29 C.F.R. 825.114(b).

D. Notice.

In addition to having a "serious health condition that makesthe employee unable to perform the functions of the position,"29 U.S.C. § 2612(a)(1)(D) (2004), the employee must also give heremployer appropriate notice of her need for FMLA leave.29 U.S.C. § 2612(e)(2) (2004). In general, when the employee can foreseethat she will need FMLA leave, she has an obligation to give athirty-day advance notice to the employer.29 U.S.C. § 2612(e)(2)(B) (2004). When the employee cannot foresee that shewill need a leave, however, she must still give notice to theemployer, but may do so "as soon as practicable under the facts and circumstances of the particular case." 29 C.F.R. 825.303(a).In general, the employee must "give notice to the employer withinno more than one or two working days" after she learns of theneed for leave. 29 C.F.R. 825.303(a). The employee can givenotice in person, by telephone, or by electronic means.29 C.F.R. 825.303(b).

In her notice, the employee does not have to mention the FMLAor specifically assert her rights under the FMLA.29 C.F.R. 825.303(b). In fact, an employee does not even have to know abouther rights under the FMLA. Scoops v. One Call Communications,Inc., 141 F.3d 309, 312 (7th Cir. 1998). Instead, the employeemay simply "state that leave is needed," and the employer willthen be "expected to obtain any additional required informationthrough informal means." 29 C.F.R. 825.304(b). Once an employeegives notice, and the circumstances suggest that the employee'srequest may involve FMLA leave, it becomes the employer'sobligation to inquire further in order to determine if therequested leave qualifies for FMLA protection. See Williams v.Shenango, Inc., 986 F. Supp. 309 (W.D. Pa. 1997); Brannon,897 F. Supp. at 1028.

The employer has the right under the FMLA to require that theemployee support her request for leave with medical certificationissued by the employee's health care provider.29 U.S.C. § 2613(a) (2004); 29 C.F.R. 825.305(a). To exercise this right, theemployer must give a written notice of a requirement for medicalcertification each time the employer requires it, 29 C.F.R. 825.305(a), and must advise the employee of anticipatedconsequences of the employee's failure to provide adequatecertification, 29 C.F.R. 825.305(d). In general, the employermust request certification at the time the employee gives noticeor, in cases of unforeseen leave, within two days after leavecommences. 29 C.F.R. 825.305(c). Once requested, the employeemust provide a copy of such certification to the employer.29 U.S.C. § 2613(a) (2004).

When the employee can foresee the need for leave and give athirty-day notice to the employer, the employee must provide therequested certification before leave begins.29 C.F.R. 825.305(b). In other circumstances, the employee must providecertification within the time frame requested by the employer,"(which must allow at least 15 calendar days after the employer'srequest), unless it is not practicable under the particularcircumstances to do so in spite of employee's diligent, goodfaith efforts." 29 C.F.R. 825.305(b).

If the employer finds the provided medical certificationincomplete, the employer must advise the employee accordingly and"provide the employee a reasonable opportunity to cure any suchdeficiency." 29 C.F.R. 825.305(d). Once the employee submitssufficient medical certification, the "employee is entitled toprotection under FMLA unless and until there is contrary medicalevidence." Miller v. AT&T, 60 F. Supp. 2d 574, 580 (S.D.W. Va.1999), aff'd 250 F.3d 820 (4th Cir. 2001).

An employer who "has reason to doubt the validity of a medical certification" may, at the employer's expense, requirethe employee to obtain a second and/or third medical opinion.29 U.S.C. § 2613(c) (2004); 29 C.F.R. 825.307(a)(2). Pending theresults of a second or third opinion, the FMLA provisionallyentitles the employee to benefits. 29 C.F.R. 825.307(a)(2). Anemployer who disagrees with the employee's medical certificationbut does not require the employee to obtain a second or thirdopinion, cannot challenge the validity of the certification insubsequent civil proceedings. Sims v. Alameda-Contra CostaTransit Dist., 2 F. Supp. 2d 1253, 1260 (N.D. Cal. 1998).

E. Denial of benefits.

Finally, to prevail on the FMLA claim, the employee mustestablish that her employer denied her benefits under the FMLA.29 U.S.C. § 2612(a)(1) (2004). As previously noted, the FMLArequires employers: (1) to provide eligible employees with a"total of 12 workweeks of leave during any 12-month period,"29 U.S.C. § 2612(a)(1) (2004); (2) to restore the employee to thepre-leave position with the employer, 29 U.S.C. § 2614(a)(1)(2004); and (3) not to "interfere with, restrain, or deny theexercise of" any rights provided under the FMLA,29 U.S.C. § 2615(a)(1) (2004).


The parties do not dispute that the FMLA applied to Pioneer andthat Wheeler fit the definition of "qualifying employee" withinthe meaning of the FMLA. In other words, no dispute exists thatPioneer employed at least fifty persons or that Wheeler worked for at least 1,250 hours during the previoustwelve-month period. It is undisputed, therefore, that the FMLAgenerally applies to this case as matter of law.

Moreover, even viewed in light most favorable to Pioneer, therecords establishes beyond dispute that Wheeler had a serioushealth condition that made her unable to perform functions of herjob. As discussed below, the facts show that Wheeler's illnessrendered her unable to work more than three consecutive calendardays and required continuing treatment by a health care provider.

Here, the record clearly shows that Wheeler's incapacityderived from an illness. When Siersma, Wheeler's physician, sawWheeler in his office on December 11, he observed Wheeler indistress. Her symptoms included coughing, experiencing hot andcold sweats, and upper respiratory congestion. Siersma concludedthat Wheeler had some sort of viral infection. Although thedisease resembled the flu, Siersma could not conclusivelydetermine the source of Wheeler's infection.

Despite the symptoms, Pioneer argued that Wheeler's illness didnot constitute a "serious health condition," citing the earlierregulation of the Secretary of Labor excluding the flu and commoncold from the definition of a "serious health condition,"29 C.F.R. 825.114(c), and the Fifth Circuit's decision in Murray v.Red Kap Indus., Inc., 124 F.3d 695 (5th Cir. 1997), which heldthat respiratory tract infections could never justify an FMLAleave. This argument, while colorable, is unpersuasive forseveral reasons. First, as noted above, the Secretary of Labor has issued anopinion letter explaining that the regulation did not intend toexclude employees with flu-like symptoms from FMLA coverage inall circumstances. A more sensible rule now governs: if anemployee's illness satisfies the substantive regulatorydefinition of a "serious health condition," infections like theflu will qualify the employee for FMLA leave. See Miller,60 F. Supp. 2d at 580.2

Second, the facts in Murray itself suggest that neither partyin that case disputed the fact that Murray qualified for oneweek's leave under the FMLA as a result of his respiratoryinfection. The dispute arose out of the employee's unauthorizedabsence during the second week. Nothing in Murray stands forthe proposition that respiratory tract infections can neverqualify for FMLA leave.

Finally, even viewed in the light most favorable to Pioneer,the record clearly confirms that Wheeler's illness incapacitatedher for more than three consecutive calendar days. It isundisputed that Wheeler remained away from work between December14, 2001, and December 19, 2001, a period of over five days. Itis further uncontested that she remained completely incapacitatedduring that period of time. These facts fully satisfy theregulatory requirements of 29 C.F.R. 825.114(a)(2)(i), and noreasonable jury could find otherwise.

The fact that Wheeler worked at another job during the continuation of her leave does not disprove her incapacity.Although the record does not reflect Wheeler's exact hours at thePeanut Bar, it does appear that Wheeler did in fact come to workat the bar for some period between December 14, 2001, and January5, 2002, and worked for only about sixteen hours the week ofDecember 30, 2001, through January 5, 2002.

From these facts alone, no reasonable fact finder could findthat Wheeler's illness did not incapacitate her. First, Wheelerhad to prove incapacity — i.e., inability to work due to herillness, 29 C.F.R. 825.114(a)(2)(i) — during the first four daysof her illness only.

Equally importantly, Pioneer failed to invoke the statutoryremedies available to it if it wished to challenge Wheeler'sclaim of incapacity. An employer who does not believe that itsemployee suffers from incapacity due to illness, or otherwisedoubts its employee's qualification for FMLA leave, has severalstatutory and regulatory remedies. First, to ensure that therequest is based on a legitimate medical need, the employer mayask the employee to provide medical certification from theemployee's health care provider. 29 U.S.C. § 2613 (2004);29 C.F.R. 825.305. After it receives certification, the employer maythen ask the employee to obtain a second and even a third opinionfrom a different health care provider, including one chosen bythe employer. 29 U.S.C. § 2613(c) (2004); 29 C.F.R. 825.307. Anemployer who chooses not to exercise these rights waives them andis precluded from challenging the propriety of the employee's leave request at a later trial. See Sims,2 F. Supp. 2d at 1253. As Pioneer did not ask Wheeler to obtain asecond opinion, it cannot question Wheeler's incapacity now.

Following her initial period of incapacity, Wheeler alsoreceived continuing medical treatment. Wheeler made her firstvisit to a doctor on December 10, 2001, during the initial daysfollowing the onset of her illness. At that visit, Dr. Siersmaexamined Wheeler in order to determine the cause of her distressand made oral recommendations as to her treatment. As Siersmaconducted an "examination to determine if a serious healthcondition exists and evaluation of that condition," Wheeler'svisit qualified as "treatment" for the purposes of the FMLA.29 C.F.R. 825.114(b).

Not feeling better, Wheeler then made her second visit to Dr.Muellner on December 26, 2001. After an observation, Muellnergave Wheeler a prescription for an antibiotic Doxycycline, whichshe filled and started using the same day. This visit similarlyqualified as "treatment" for the purposes of the FMLA. See29 C.F.R. 825.114(b). As Muellner prescribed Wheeler a course ofantibiotics, Wheeler's illness also involved a "regiment ofcontinuing treatment." 29 C.F.R. 825.114(b). Because Wheelerreceived two treatments by health care providers and adhered to aregimen of continuing treatment, the court must conclude thatWheeler's illness involved continuing treatment by a health careprovider as matter of law. See 29 C.F.R. 825.114(a)(2). Wheeler's interaction with Taylor on December 14, 2001,provided sufficient statutory notice to Pioneer. Viewed in thelight most favorable to Pioneer, the facts clearly establish thaton that day, Wheeler handed Taylor, her supervisor, a note fromDr. Siersma, which requested that Wheeler receive "LOA × 4."There can be no doubt that Taylor understood that Wheeler wasasking for a medical leave upon advice of her physician for aperiod of four weeks. The only reasonable inference to be drawnfrom these facts is that Wheeler informed Pioneer that she neededmedical leave. No more was required under the FMLA. See29 C.F.R. 825.304(b).

Defendant's argument notwithstanding, Siersma was not obligatedto consider Wheeler's job duties before he gave her the note. Asthe court previously explained, an employee does not have to givea written notice to the employer; any notice given in person orover the phone fully complies with the regulatory requirements.29 C.F.R. 825.303. As neither the FMLA nor regulationspromulgated under it require any type of written notice, thecourt holds that Wheeler did not have to support her request forFMLA leave with a note from her doctor. As Wheeler did not haveto submit a note from her doctor, the fact that Siersma mighthave given her the note based on incomplete information isimmaterial.

Having qualified and applied for FMLA leave, Wheeler wasentitled to receive it. Hodges, 144 F.3d at 159. When Pioneerdischarged Wheeler from her employment for taking the leave, it interfered with her rights under the FMLA.

Pioneer's argument that Wheeler did not comply with Pioneer'srequest for medical certification does not save it fromliability.3 Pioneer argues that since Wheeler did notforesee that she would need medical leave in this case and didnot give Pioneer a thirty-day notice, she had to comply withPioneer's deadline for submitting additional medical information.See 29 C.F.R. 825.305(b). As Pioneer requested that Wheelerprovide additional information by December 20, 2001, but Wheelerdid not provide it until December 26, 2001, Pioneer argues thatit could delay the employee's continuation of FMLA leave anddischarge her for taking unauthorized leave. See29 C.F.R. 825.311(b).

This argument simply ignores the applicable regulation. BecauseWheeler did not foresee the need for leave, Pioneer had to giveWheeler until December 31, 2001, a minimum of fifteen days, tocomply. See 29 C.F.R. 825.305(b); 29 C.F.R. 825.311(b). AsSiersma did ultimately provide Pioneer with the additionalinformation on December 26, 2001, and Pioneer did not properlychallenge the validity of the certification, the court mustconclude that Wheeler fully complied with the FMLA'scertification requirements as matter of law.

In light of Wheeler's clear entitlement to leave, her probationary status was irrelevant. Viewed in the light mostfavorable to Pioneer, the facts do indicate that Pioneer placedWheeler on thirty-day probationary status shortly before Wheelerwent on FMLA leave. Nevertheless, the facts clearly show thatPioneer discharged Wheeler for taking FMLA leave and for nothingelse. The record contains no indication that Wheeler committedany other disciplinary infraction between December 14, 2001, thefirst day of her FMLA leave, and December 26, 2001, the date ofher discharge, that Pioneer could have discharged her for. Tohold that an employer who puts an employee on probationary statuscan avoid the requirements of FMLA, as Pioneer has invited thiscourt to do, would abrogate FMLA.


For the foregoing reasons, the material facts of record, viewedin the light most favorable to Pioneer, establish as a matter oflaw that Pioneer violated Wheeler's rights under the Family andMedical Leave Act. Wheeler's medical condition, her inability towork for five days, her visits to two doctors, and her course ofantibiotic medication establish that she had a serious healthcondition that made her unable to perform the job functions ofher employer. Wheeler's conversation with her supervisor on thefirst day of her leave and the note from her doctor satisfied thenotice requirements under the act. Finally, Pioneer's action onDecember 26, 2001, discharging Wheeler for failure to comply withthe request for additional medical information, interfered withWheeler's rights under the FMLA. Accordingly, Wheeler's motion for partial summary judgment withrespect to liability is hereby ALLOWED, and Pioneer'scross-motion for partial summary judgment is hereby DENIED. Theclerk will set the case for a status conference to determinefurther proceedings.

It is So Ordered.

1. This notation apparently indicated a leave of absence for aperiod of four weeks.

2. It is worth noting that Murray is easilydistinguishable.

3. Although it is not necessary to address the issue — becauseof defendant's clear liability on more fundamental substantivegrounds — the facts in this case also suggest that Pioneer madean untimely request for medical certification and failedadequately to advise Wheeler of consequences of non-compliancewith the request. See 29 C.F.R. 825.305(c), (d).

Back to top