Kauffman, Peter J. v. Fed'l Express Corp ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2433
PETER J. KAUFFMAN,
Plaintiff-Appellant,
v.
FEDERAL EXPRESS CORPORATION,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 02-4068—Michael M. Mihm, Judge.
____________
ARGUED FEBRUARY 7, 2005—DECIDED OCTOBER 18, 2005
____________
Before ROVNER, WILLIAMS, and SYKES, Circuit Judges.
ROVNER, Circuit Judge. Peter Kauffman came down with
bronchitis and missed three days of work. When he re-
turned to his job and asked that his absence be excused
under the Family and Medical Leave Act of 1993 (FMLA),
29 U.S.C. §§ 2601-54, his employer, Federal Express
Corporation (FedEx), denied the request and then fired him
because the lost days pulled his overall attendance record
below company standards. Kauffman sued, claiming that
FedEx, by terminating him, interfered with his substantive
rights and entitlements under the FMLA and violated the
Act’s anti-discrimination (or anti-retaliation) provisions.
The district court granted summary judgment for FedEx.
2 No. 04-2433
We vacate and remand. In short, this case turns on whether
Kauffman was entitled to FMLA leave on the missed days
and whether, in deciding that question, the district court
misread a medical certification Kauffman submitted to
FedEx to establish his entitlement.
I.
The essential facts are undisputed. For nearly 18 years
Kauffman delivered packages for FedEx in East Moline,
Illinois. By the end of December 2001 he had accumulated
two recent disciplinary “strikes,” one for unprofessional
conduct and the other for violating the company’s vehicle
accident policy. FedEx policy allows management to ter-
minate an employee who incurs three strikes in a 12-month
period.
Then, on January 2, 3, and 4, 2002, Kauffman called in
sick. Because he was not scheduled to work on January 5 or
6, he returned to work on January 7. That morning before
his shift began, Kauffman encountered his immediate
supervisor, Tim Crownover. He gave the supervisor a note
dated January 2 from his physician, David Seitz. The note
stated that Kauffman “may return to work/school on: 1-3-
02.” After receiving the note, Crownover recommended that
Kauffman apply for FMLA leave and gave Kauffman what
the supervisor said were the forms necessary to submit a
FMLA request, which Crownover told Kauffman had to be
done within 15 days. Later that same day, Crownover
realized that the paperwork he handed Kauffman was
incorrect, and so he slipped the right forms into Kauffman’s
office mailbox. Kauffman received those forms at six o’clock
the evening of January 7. Qualifying for FMLA leave was
critical to Kauffman under FedEx’s “no fault” attendance
policy; unless his three missed days were excused, he would
earn a third strike for letting his attendance rate dip below
No. 04-2433 3
the 96.9% minimum during a 12-month period.
The next day, January 8, Kauffman kept a scheduled
appointment with Dr. Seitz and asked him to complete the
form “Certification of Health Care Provider” created by
FedEx for FMLA requests. The form, similar to the model
form WH-380 promulgated by the Department of Labor, see
29 C.F.R. § 825.306(a) & (b), directs the provider to catego-
rize the employee’s condition by choosing among a series of
check boxes. The doctor, however, did not check any box but
instead wrote “bronchitis” on a line next to the box corre-
sponding to the following generic description: “Incapacity of
more than three (3) days due to a serious health condition
that also involves treatment two or more times by a health
care provider (HCP) or treatment by a HCP on one occasion
which results in a regimen of continuing treatment.” The
doctor also noted that a second appointment had been
necessary on January 8, that Kauffman could not work at
all, and that leave was required for Kauffman’s absences.
Finally, in response to a form question directing the
provider to state both the “date the condition commenced”
and “the probable duration of the condition,” Dr. Seitz wrote
simply “1-1-2002.” Kauffman placed the completed form on
his supervisor’s desk.
On the morning of January 22, the fifteenth day after
giving Kauffman the FMLA paperwork, Crownover asked
Kauffman for the completed “Certification of Health Care
Provider.” Kauffman replied that he “turned it in” earlier
and offered to go home and get the supervisor another
copy or have the doctor fax one, but Crownover refused to
wait and instead fired Kauffman on the spot. Crownover
told Kauffman that his FMLA leave request was being
denied as untimely because he did not have the certification
in hand, and that as a consequence of the unexcused
absence Kauffman would incur a third strike, this time
for poor attendance. Crownover then handed Kauffman two
letters dated that day, one confirming the third strike based
4 No. 04-2433
on Kauffman’s attendance falling below the minimum, and
the second terminating his employment because he now had
three strikes within a 12-month period.
Kauffman appealed his termination through FedEx’s in-
ternal procedures. During this process FedEx abandoned its
position that Kauffman’s certification was untimely. Now,
however, the company asserted that the certification was
inadequate and thus upheld the denial of FMLA leave and
consequently the third strike and termination. Kauffman
replied to the new basis for dismissal with an addendum
from Dr. Seitz clarifying that his illness continued from
January 2 through January 8 and required his absence
from work. FedEx refused to consider the addendum.
Having lost his appeal, Kauffman filed suit alleging that
FedEx interfered with his rights under the FMLA by firing
him instead of granting leave due. Kauffman also alleged
“discrimination,” asserting that FedEx fired him “because
he exercised his right to seek FMLA leave.”
FedEx moved for summary judgment. Despite having
admitted in the internal appeal that Kauffman’s FMLA
paperwork was not untimely, FedEx argued in its summary
judgment motion that it gave Kauffman 15 days to submit
his paperwork but he failed to meet the deadline. Without
record citation, FedEx explained that its policy implement-
ing the 15-day rule was to require the return of forms no
more than 360 hours (15 multiplied by 24 hours) after they
were given to the employee. Crownover gave the paperwork
to Kauffman at 7:30 on the morning of January 7, so the
company expected the forms back by the same time on
January 22. FedEx argued alternatively that the certifica-
tion Kauffman submitted was inadequate to qualify him for
FMLA leave. The company insisted that Kauffman pro-
duced no evidence of discrimination or retaliatory dis-
charge.
In response to FedEx’s motion, Kauffman submitted his
No. 04-2433 5
own testimony that he left the paperwork in Crownover’s
office on January 10, and he also produced verification that
his lawyer sent a copy of the required paperwork
via facsimile a little after five o’clock on January 22.
More to the point, Kauffman adduced evidence that
FedEx itself determined that he was on time with his
paperwork. For example, a document prepared by a FedEx
human resources employee, James A. Mika, summarizes
Kauffman’s internal appeal and concludes that “the decision
to terminate Peter was based incorrectly on the time frame
in which Peter had to submit the certificate of health care
provider form.” Another e-mail distributed among FedEx
managers states that FedEx considered reinstating
Kauffman before deciding to uphold the termination on
alternate grounds.
Additionally, Kauffman submitted other e-mails ex-
changed between station managers that show he was
disliked and that managers conspired to use his absence
as an excuse to fire him. As to the first point, one e-mail
characterized Kauffman as an argumentative employee
with a propensity for “nitpicking, badgering & finger
pointing . . . and for making non-factual, false, malicious,
slanderous statements.” As to the second, correspondence
showed that when Kauffman turned up missing for work,
managers agreed to provide him with paperwork to ap-
ply for FMLA leave. But they anticipated that he would
be late with the paperwork and planned to terminate him
should that occur. The managers discussed the importance
of following the FMLA strictly by “dotting their i’s and
crossing their t’s” to ensure that the firing would stick.
When granting summary judgment for FedEx, the district
court focused on the document that lies at the heart of the
case, the health-care provider’s certification that Kauffman
provided to FedEx to establish his entitlement to FMLA
leave. The court reasoned that the certification establishes
that Kauffman did not have a serious health condition
6 No. 04-2433
qualifying him for leave. According to the court,
Dr. Seitz—by replying with just the single date “1-1-02” to
the form’s compound instruction to “[s]tate the approximate
date the condition commenced and the probable duration of
the condition”—was certifying that Kauffman had been
incapacitated for only one day, not the more than three days
required by the statute. Any other reading, the court
explained, would be inconsistent with the note from the
doctor’s office stating that Kauffman could return to work
on January 3. Moreover, the district court refused to
consider the amended certificate from Dr. Seitz that
Kauffman submitted because FedEx did not have it when
making its employment decision. And although acknowledg-
ing that it was bound to find that Kauffman had timely
submitted his paperwork, the court reasoned that any error
FedEx made in this regard was harmless since Kauffman
did not qualify for leave under the FMLA.
Next, the court decided that the e-mails by Kauffman’s
superiors, although revealing an intent to fire him should
he fail to submit FMLA forms, could not prove discrim-
inatory animus for taking FMLA leave. The court explained
that the e-mails evidenced dislike for Kauffman, but there
was no indication that the dislike was on account of opposi-
tion to the company’s FMLA practices or because of taking
leave. The court concluded that there was nothing wrong
with an employer firing an employee for absences if the
employee is not entitled to FMLA leave, so the “real ques-
tion” in the case was simply whether Kauffman was entitled
to that leave. Since in the court’s view he was not, that was
the end of the matter.
No. 04-2433 7
II.
On appeal Kauffman once again maintains that, by ter-
minating him, FedEx interfered with his substantive rights
under the FMLA and discriminated against him
for exercising those rights. Under the FMLA, eligible
employees are entitled to 12 weeks unpaid leave per year
for various reasons, including a “serious health condition”
rendering the employee unable to perform his or her job. 29
U.S.C. § 2612(a)(1)(D); Byrne v. Avon Prods., Inc., 328 F.3d
379, 381 (7th Cir. 2003); Stoops v. One Call Commc’ns, Inc.,
141 F.3d 309, 312 (7th Cir. 1998). To ensure this entitle-
ment, the Act makes 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); Nev. Dep’t of Human Res. v. Hibbs, 538 U.S.
721, 724-25 (2003); Ragsdale v. Wolverine World Wide, Inc.,
535 U.S. 81, 87 (2002); King v. Preferred Tech. Group, 166
F.3d 887, 891 (7th Cir. 1999), including the right to rein-
statement upon return from leave, 29 U.S.C. § 2614(a);
King, 166 F.3d at 891. In addition to these substantive
provisions, the FMLA makes it “unlawful for any employer
to discharge or in any other manner discriminate against
any individual for opposing any practice made unlawful by
this subchapter.” 29 U.S.C. § 2615(a)(2). Similarly, the Act
makes it unlawful for any employer to “discharge” or
“discriminate” against anyone for taking part in proceedings
or inquiries under FMLA. Id. § 2615(b). We have construed
these last provisions to create a cause of action for retalia-
tion. See id. § 2615(a)(1), (2); Buie v. Quad/Graphics, Inc.,
366 F.3d 496, 503 (7th Cir. 2004); King, 166 F.3d at 891.
With these rules in mind, we first clarify that Kauffman’s
case is really about interference with his substantive rights,
not discrimination or retaliation. A claim under the FMLA
for wrongful termination can be brought under either a
discrimination/retaliation or interference/entitlement
theory; the difference is that the first type of claim requires
8 No. 04-2433
proof of discriminatory or retaliatory intent while the latter
requires only proof that the employer denied the employee
his or her entitlements under the Act. Smith v. Diffee Ford-
Lincoln-Mercury, Inc., 298 F.3d 955, 960-61 (10th Cir.
2002); Bachelder v. Am. West. Airlines, 259 F.3d 1112, 1122-
26 (9th Cir. 2001); King, 166 F.3d at 891; Diaz v. Fort
Wayne Foundry Corp., 131 F.3d 711, 713 (7th Cir. 1997).
Here, Kauffman points to no evidence of discriminatory or
retaliatory animus. Viewing the record in the light most
favorable to Kauffman, the nonmoving party, FedEx
managers wanted to get rid of him because they thought he
was argumentative and a troublemaker, so they pounced on
a chance to fire him. But they did so in spite of his rights
under the FMLA, not because he asserted those rights. In
other words, they did not seek to punish him for exercising
rights or opposing an unlawful procedure; they did not even
treat him differently than someone not entitled to FMLA
leave. Cf. Diaz, 131 F.3d at 713. But whether Kauffman
produced evidence of discriminatory or retaliatory animus
is “not fatal” to his case. See Diffee Ford-Lincoln-Mercury,
Inc., 298 F.3d at 960-61; Diaz, 131 F.3d at 713. What is at
stake here is a claim for wrongful discharge, and Kauffman
may recover damages or equitable relief for that claim
under 29 U.S.C. § 26171 on either an
interference/entitlement or a discrimination/retaliation
theory. See Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d at
960-61.
Indeed, when we focus on the proper inquiry in this case,
i.e., whether FedEx “respected” Kauffman’s “entitlements,”
1
Damages and relief under § 2617 for violations of section § 2615
include: lost wages, other compensatory damages, interest,
liquidated damages, equitable relief such as reinstatement, and
in some cases, attorneys’ fees. 29 U.S.C. § 2617(a)(1), (3). Section
2617 draws no distinction between interference/ entitlement and
discrimination/retaliation claims.
No. 04-2433 9
see Diaz, 131 F.3d at 713, we conclude that Kauffman
produced enough evidence to press forward with his case
and win it. Here, FedEx concedes that it fired Kauffman for
missing work in January. Since it is undisputed that FedEx
fired Kauffman because he was absent, the outcome turns
on the narrow question of Kauffman’s entitlement to FMLA
leave. See Rice v. Sunrise Express, Inc., 209 F.3d 1008, 1018
(7th Cir. 2000). Furthermore, both parties agree that
entitlement here—since there is no question that FedEx is
a covered employer or Kauffman an eligible
employee—depends only on the adequacy of Kauffman’s
certification of a serious health condition qualifying for
leave, that is, whether he turned his paperwork in on time
and whether that paperwork was sufficient to certify a
serious health condition qualifying for FMLA leave.
As to the first point, FedEx inexplicably has persisted
throughout this litigation in arguing that Kauffman did not
turn his paperwork in on time. Yet the argument is frivo-
lous. Because Kauffman claimed an unforeseeable, serious
health condition, he had “15 calendar days after the em-
ployer’s request” to submit certification from his physician.
See 29 C.F.R. § 825.305(b); Rager v. Dade Behring, Inc., 210
F.3d 776, 777 (7th Cir. 2000) (explaining that an employer
may require certification, but if the health condition was
“unforeseeable,” the employee must have “at least 15
calendar days in which to submit it”). Indeed, FedEx itself
determined during the internal appeal that Kauffman had
submitted the paperwork in that time frame. For his part
Kauffman testified that he turned in the paperwork on
January 10, which is not seriously in dispute and in any
event is enough to survive summary judgment. But what
seals the matter is that FedEx admits that Crownover
refused to accept another form on January 22 before firing
Kauffman and concedes that Kauffman’s lawyer faxed a
copy of the certification to Crownover just after five that
afternoon. The regulation states that Kauffman was
10 No. 04-2433
entitled to “15 calendar days after the employer’s request,”
29 C.F.R. § 825.305(b), so he had the full day of January 22
to submit the paperwork. Even if we were to accept FedEx’s
rule that he had just 360 hours after receiving the forms,
Kauffman did not receive the correct form until six o’clock
on January 7 and thus had until six o’clock on January 22.
Since Crownover was the one who demanded the form, he
was unquestionably the correct recipient.
Thus, we turn to the central issue in this case, whether
Kauffman’s doctor’s certification was adequate to estab-
lish his entitlement to FMLA leave. Here, Kauffman argues
that the district court erred in reading the certification
because the doctor did certify an incapacity lasting more
than three days owing to a serious health condition requir-
ing at least two treatments. Even if the certification was
incomplete, Kauffman argues, FedEx was required by
regulations to give him an opportunity to cure it.
A “serious health condition” includes an illness resulting
in more than three days of incapacity and requiring treat-
ment at least two times by a health-care provider. 29 U.S.C.
§ 2611(11); 29 C.F.R. § 825.114(a)(2)(i)(A); Price v. City of
Fort Wayne, 117 F.3d 1022, 1024 (7th Cir. 1997). Therefore,
when an employee requests leave for such a condition, the
employer may request certification by the employee’s
health-care provider. 29 U.S.C. § 2613(a); Rager, 210 F.3d
at 777. That certification is sufficient if it provides the date
the serious health condition began, its probable duration,
relevant medical facts, and a statement that the employee
is unable to work. 29 U.S.C. § 2613(b); 29 C.F.R. § 825.306.
Under the regulations, if the employer “finds a certification
incomplete,” it must “provide the employee a reasonable
opportunity to cure any such deficiency.” 29 C.F.R.
§ 825.305(d); Sorrell v. Rinker Materials Corp., 395 F.3d
332, 337-38 (6th Cir. 2005); Miller v. AT & T Corp., 250
F.3d 820, 836 (4th Cir. 2001).
No. 04-2433 11
Here, we cannot agree with the district court that
Kauffman’s papers amounted to a “negative certification,”
that is, an affirmative statement by Dr. Seitz that
Kauffman’s incapacity lasted less than three days. Although
Dr. Seitz did not put a checkmark in any of the boxes to
categorize Kauffman’s condition, he did write the word
“bronchitis” next to the box for “incapacity of more than
three (3) days due to a serious health condition that also
involves treatment two or more times by a health care
provider (HCP).” We will not split hairs over the obvious.
Writing “bronchitis” next to the box was the equivalent
of checking it. Therefore, the doctor did certify that
Kauffman had bronchitis resulting in an incapacity of more
than three days, requiring at least two doctor’s visits. As for
the doctor’s response, “1-1-2002,” to the question about
when the condition began and how long it would probably
last, the only logical conclusion is that the doctor answered
when the condition commenced but omitted its duration. In
fact, contrary to the district court’s view, this reading is the
only one consistent with the note that Kauffman gave
Crownover on his return. As mentioned above, that note
was dated January 2 and stated that Kauffman could
return to work on January 3, so the doctor cannot have
meant that the condition began and ended on January 1.
Moreover, if the condition began and ended on January 1,
which FedEx admitted at oral argument was a holiday
when Kauffman did not have to work, why even fill out the
form? In any event the district court was wrong to conclude
that FedEx could rely on the note—written prior to the
certification form—as a “negative certification” to FedEx
that the condition did not last at least three days. The
doctor wrote that note without the advantage of a few more
days’ knowledge of the course of the illness. So his later,
fully informed certification that the incapacity lasted for
more than three calendar days obviates any seeming
conflict between the two documents. After all, “nothing in
the Act or regulations limits the employee’s ability to
12 No. 04-2433
produce a medical opinion that contradicts a prior negative
certification originally provided by the employee.” Stoops,
141 F.3d at 313. Considering that Crownover himself
suggested Kauffman apply for FMLA leave upon receiving
the January 2 note, FedEx could hardly turn around and
say that it had relied on the note as a “negative certifica-
tion.”
More to the point, the doctor’s certification provides
enough information to satisfy the statute. That form tells us
that Kauffman had bronchitis that started on January 1,
incapacitated him for more than three calendar days,
required two doctor’s visits, and kept him from being able
to work. No matter what form is used, this information is
the only information required for a sufficient certification.
See 29 U.S.C. § 2613(b); 29 C.F.R. § 825.306(b). True, we do
not know the incapacity’s exact duration, at least not until
we look at the doctor’s addendum that Kauffman submitted
and FedEx refused during his appeal. But all we really need
to know is that the incapacity, bronchitis, lasted for more
than three calendar days. In any event, a failure to include
duration in this case means at best that the form was
incomplete. FedEx could not win its case by arguing that
the form was incomplete; in that event, FedEx would have
been required to, but did not, notify Kauffman and give him
the opportunity to cure the deficiency, see 29 C.F.R.
§ 825.305(d); Sorrell, 395 F.3d at 336-37; Miller, 250 F.3d at
836. Indeed, when FedEx belatedly challenged Kauffman’s
certification, it refused to accept his addendum, so any
argument by FedEx that the certification was incomplete
would simply spotlight an even clearer case of liability.
Accordingly, we vacate the judgment of the district court
and remand for proceedings consistent with this opinion. It
is for the district court to determine what material issues,
if any, remain for trial.
VACATED AND REMANDED.
No. 04-2433 13
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-18-05