Lynn Brushwood v. Wachovia Bank, N.A.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1438
LYNN H. BRUSHWOOD,
Plaintiff – Appellant,
v.
WACHOVIA BANK, N.A.; WELLS FARGO BANK, N.A.,
Defendants – Appellees.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Samuel G. Wilson, District
Judge. (7:10-cv-00565-SGW-RSB)
Submitted: March 8, 2013 Decided: April 11, 2013
Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished opinion. Judge Duncan wrote the
opinion, in which Judge Wilkinson and Judge Shedd joined.
Terry N. Grimes, GRIMES & WILLIAMS, P.C., Roanoke, Virginia, for
Appellant. Dana L. Rust, Briton K. Nelson, MCGUIREWOODS LLP,
Richmond, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
DUNCAN, Circuit Judge:
Lynn Brushwood sued her former employer, Wells Fargo Bank,
N.A., (“Wells Fargo”) for interfering with her right to take
protected medical leave in violation of the Family and Medical
Leave Act, 29 U.S.C. § 2611 et seq. (2009) (the “FMLA”). Wells
Fargo maintained that Brushwood failed to provide it with
adequate notice that she sought FMLA leave. The district court
agreed, granting summary judgment in the bank’s favor. Echoing
the district court’s well-reasoned opinion, we affirm.
I.
A.
“In considering the grant of a motion for summary judgment,
we view facts and inferences drawn from them in the light most
favorable to the non-moving party.” Dulaney v. Packaging Corp.
of Am., 673 F.3d 323, 324 (4th Cir. 2012).
Brushwood began working for Wells Fargo’s predecessor,
Wachovia Bank, in 1998. Although she filled a variety of
positions during her tenure, she most recently held a stationary
post as a customer service representative in the bank’s Roanoke,
Virginia operations center. Prior to the events underlying this
suit, Brushwood took FMLA leave three separate times: “in 1998
to recover from surgery, in 2001 to recover from surgery, and in
2009 during treatment for depression.” Brushwood v. Wachovia
2
Bank, N.A., No. 7:10-cv-00565, 2012 WL 642216, at *1 n.2 (W.D.
Va. Feb. 28, 2012).
In January 2010, Wells Fargo instituted a “point system”
attendance policy. Under the system, Wells Fargo added points
to an employee’s record for consistent attendance and
punctuality and subtracted points for unscheduled absences and
tardiness. A balance of negative forty-one points prompted an
informal warning; negative fifty-seven points triggered
termination. FMLA leave triggered no point reduction. It is
undisputed that due to unscheduled absences between January and
April 2010, Brushwood accumulated negative 62.5 points. Instead
of terminating her as it could have done under the point system,
Wells Fargo formally warned Brushwood in a letter dated April
20, 2010.
On Saturday, May 1, 2010, Brushwood was hanging curtains in
her living room when she stepped onto her folding couch’s metal
reclining mechanism and cut the sole of her foot. The cut bled
initially, then stopped after her husband cleaned and wrapped
the wound. On Sunday, May 2, however, Brushwood’s husband drove
her to the Carilion Urgent Care facility because she was in
pain. The attending physician, Dr. Mary Leatherland, examined
the cut, noting that it was “3 cm in length” and “superficial
with skin flap in[t]act over length of wound.” J.A. 44. The
doctor saw no need for stitches and “left [the wound] open to
3
heal.” Id. Dr. Leatherland gave Brushwood a tetanus shot,
cleaned and wrapped the cut, and prescribed pain medication.
She also wrote Brushwood a note instructing her to miss work for
one day--Monday, May 3, 2010. When Brushwood expressed surprise
to the attending nurse about receiving only one day of excused
absence, the nurse confirmed the one-day limitation.
When she returned home, Brushwood called her Wells Fargo
supervisor, Doris Kent, and left a message describing her
injury. On the morning of Monday, May 3, Brushwood telephoned
Kent to explain that she had injured her foot and visited the
urgent care facility, and that she had a doctor’s note to miss
work for one day. Kent expressed concern that any absence on or
beyond Monday, May 3 would trigger Brushwood’s termination, as
Brushwood had exceeded the allowed points for unexcused
absences. Kent asked Brushwood if she could “go to her personal
doctor to see if he would keep her out longer than one day where
she would be able to qualify for short-term disability and
FMLA.” 1 J.A. 224. Brushwood told Kent that “her doctor would
not override what the emergency room doctor had told her” so she
would only have one excused day of absence. Id. Brushwood
1
In her deposition, Brushwood said she could not remember
Kent asking her about obtaining a note from her personal
physician, but she did not deny the conversation, either. J.A.
307 (“I’m not gonna say that conversation didn’t take place. I
don’t recall that conversation.”).
4
explained that she had “even called over to Carilion” on Monday,
May 3 to ask about extending her absence from work. Id. at 153.
The urgent care facility reiterated the one-day limitation.
On Tuesday, May 4, Brushwood telephoned Kent to tell her
she would be unable to come to work. Kent called Brushwood back
to tell her that Wells Fargo was terminating her employment. On
Friday, May 7, Brushwood came to the office on crutches to
remove her things and sign her termination papers. That
paperwork listed “violation of attendance policy” as the reason
for her removal. J.A. 28.
Brushwood visited her personal physician on May 7, her
first doctor’s visit since Sunday, May 2. He noted a “slightly
swollen” “2 cm laceration to the ball of [Brushwood’s] foot.”
J.A. 50. Over three months after her termination, on August 20,
2010, Brushwood had a surgeon remove a cyst that had grown over
the scar on her sole after two nonsurgical injections failed to
correct it. According to Brushwood, her foot has not yet fully
healed.
B.
On December 20, 2010, Brushwood filed a complaint in the
Western District of Virginia, alleging that Wells Fargo violated
the Americans with Disabilities Act (the “ADA”) and the FMLA.
5
The parties filed cross-motions for summary judgment on
Brushwood’s FMLA claim. 2
The district court granted Wells Fargo’s motion after
finding that Brushwood failed to put Wells Fargo on notice that
she was requesting FMLA leave as the statute’s implementing
regulations require. It reasoned that since Brushwood failed to
provide “‘sufficient information’ for [Wells Fargo] ‘to
reasonably determine’” that the FMLA might apply to her leave
request, the bank did not violate the FMLA by terminating her in
accordance with its attendance policy. Brushwood, 2012 WL
642216, at *1 (citing 29 C.F.R. § 825.303(b)). Although the
district court’s rationale rested on Brushwood’s failure to give
adequate notice, it explained that even assuming that
Brushwood’s May 7 office visit on crutches indicated “that she
in fact had a serious medical condition under the FMLA
justifying her absences,” “‘notice that comes after an alleged
interference with an employee’s FMLA rights is ineffective, even
if the content would have been sufficient.’” Id., at *4(quoting Couick v. Morgan, No. 4:10-cv-153, 2010 WL 5158206, at
*3 (S.D. Ga. Dec. 14, 2010)). This appeal followed.
2
Brushwood voluntarily dismissed her ADA claim.
6
II.
The issue before us is whether Brushwood provided adequate
notice of an FMLA-qualifying condition as a matter of law. We
conclude she did not.
We review the district court’s summary judgment ruling de
novo. Reynolds v. Am. Nat’l Red Cross, 701 F.3d 143, 149 (4th
Cir. 2010). Summary judgment is appropriate when there is no
genuine issue of material fact, and the moving party is entitled
to summary judgment as a matter of law. Id.The FMLA “entitles eligible employees to take up to twelve
weeks of unpaid leave in any twelve-month period for qualifying
medical or family reasons.” 3 Rhoads v. FDIC, 257 F.3d 373, 381-
3
Wells Fargo also contends that Brushwood did not have an
FMLA-qualifying “serious health condition.” Because our
determination on the question of notice is dispositive, we need
not address whether she actually had an FMLA-qualifying
condition. We note, however, that the regulations define a
qualifying “serious health condition” as an “illness, injury,
impairment, or physical or mental condition that involves . . .
continuing treatment by a health care provider.” 29 C.F.R. §
825.113. “Continuing treatment by a health care provider”
means:
A period of incapacity of more than three consecutive,
full calendar days, and any subsequent treatment or
period of incapacity relating to the same condition,
that also involves: (1) Treatment two or more times,
within 30 days of the first incapacity . . . or (2)
Treatment by a health care provider on at least one
occasion, which results in a regimen of continuing
treatment under the supervision of the health care
provider.
(Continued)
7
82 (4th Cir. 2001) (footnote omitted) (citing 29 U.S.C. §
2612(a)(1)). “An employee is mandated to provide notice to her
employer when she requires FMLA leave.” Id. at 382; see also
Browning v. Liberty Mut. Ins. Co., 178 F.3d 1043, 1049 (8th Cir.
1999) (“[T]he employer’s duties are triggered when the employee
provides enough information to put the employer on notice that
the employee may be in need of FMLA leave.”); Rodriguez v.
Smithfield Packing Co., 545 F. Supp. 2d 508, 515-16 (D. Md.
2008) (“The core requirements for triggering an employer’s
obligations [under the FMLA] are a serious health condition and
adequate communication, meaning a timely communication
sufficient to put an employer on notice that the protections of
the Act may apply.”).
Proper notice “‘make[s] the employer aware that the
employee needs FMLA-qualifying leave’” and includes “‘the
anticipated timing and duration of the leave.’” Rhoads, 257
F.3d at 382-83 (quoting 29 C.F.R. § 825.302(c)). “The employee,
however, ‘need not expressly assert rights under the FMLA or
even mention the FMLA, but may only state that leave is needed .
. . .’” Id. (quoting 29 C.F.R. § 825.302(c)); see also §
825.303(b) (providing similar notice requirements for
Id. § 825.115(a)(1)-(2).
8
unforeseeable FMLA leave). Once the employee has provided at
least verbal notice of a serious health condition sufficient to
alert the employer to the fact that the protections of the FMLA
may apply, “[t]he employer should inquire further to ascertain
whether it is FMLA leave that is being sought and to obtain
further details of this leave.” Rhoads, 257 F.3d at 383.
Taking the facts in the light most favorable to Brushwood,
she has failed to meet the threshold notice requirement.
Brushwood informed Wells Fargo on Sunday, May 2, 2010, and
Monday, May 3, 2010, that she had cut her foot and that Dr.
Leatherland would only write her a note reflecting a need for
her to miss work for one day (Monday, May 3). As Doris Kent
knew that absence on or beyond May 3 would lead to Brushwood’s
termination, Kent suggested that Brushwood approach her personal
physician “to see if he would keep her out longer than one day
where she would be able to qualify for short-term disability and
FMLA.” J.A. 224. Brushwood replied that one day was “all that
the emergency room doctor had written her out for,” and that
“her doctor would not override” Dr. Leatherland’s one-day
limitation. Id. at 223-24. Brushwood admitted that the urgent
care facility denied her subsequent request for additional
excused time off.
This information--all that Wells Fargo had at the time it
initiated Brushwood’s termination--was simply insufficient to
9
put Wells Fargo on notice that Brushwood had an FMLA-qualifying
“serious health condition” that would result in “[a] period of
incapacity of more than three consecutive, full calendar days”
and “[t]reatment two or more times” or “a regimen of continuing
treatment under the supervision of [a] health care provider.”
29 C.F.R. § 825.115(a)(1)-(2). Indeed, the facts actually
indicate that at the time Brushwood notified Wells Fargo of her
May 3 absence, she did not believe a doctor would excuse her for
more than one day. As the district court aptly summarized:
Brushwood’s message objectively viewed distills to
this: Brushwood’s treating physician did not believe
her condition to be sufficiently serious to justify
her absence from work for more than a single day and
Brushwood thought it futile, and would not request, an
excuse from her personal physician.
Brushwood, 2012 WL 642216, at *4.
Brushwood’s attempt to analogize her notice to that given
in Cavin v. Honda of America Manufacturing, Inc., 346 F.3d 713(6th Cir. 2003), is unavailing because Cavin is factually
distinguishable from the case at hand. In Cavin, the Sixth
Circuit held that the employee had given Honda proper notice of
his need for FMLA-qualifying leave when he called in to say he
had been in a motorcycle accident, had been treated at the
emergency room, and was unable to work as a result, even though
he did not specify that he would be out for more than one day.
Id. at 724-25. The employee later produced notes from two
10
doctors excusing him for every day he had missed. Id. at 717.
Unlike the employee in Cavin, however, when Brushwood’s
supervisor inquired as to her condition and term of absence,
Brushwood informed her that a doctor would not excuse her for
more than one day. We note as well that unlike Cavin, Brushwood
has never produced any doctor’s note stating she could not work
during the relevant period.
We find the facts and analysis in Stoops v. One Call
Communications, Inc., 141 F.3d 309 (7th Cir. 1998), more
instructive here. There, the employee, Stoops, provided his
employer, One Call, with a doctor’s note indicating that his
chronic fatigue syndrome was not an FMLA-qualifying condition.
One Call then fired Stoops for excessive absences after he
continued to miss work based on the disqualified condition.
Stoops sued for FMLA interference, claiming “One Call had to . .
. request another physician’s certification if it needed more
information.” 141 F.3d at 313. The Seventh Circuit rejected
Stoops’ claim and concluded that “Stoops was the person most
able to determine that the initial certification was ‘wrong’ and
was the person with the incentive, certainly the burden, to have
it corrected.” Id. Because “Stoops did nothing to obtain a
contrary opinion” and in fact never “obtain[ed] a contrary
opinion” prior to summary judgment proceedings, the employer
correctly relied on the certification stating that his chronic
11
fatigue syndrome was not an FMLA-qualifying health condition.
Id.While Stoops is distinguishable because One Call had a
doctor’s note indicating that Stoops’ condition was not FMLA-
qualifying, the case nevertheless supplies a useful framework
for analyzing a situation in which an employee disagrees with a
doctor’s diagnosis but submits no contrary medical opinion.
Although Wells Fargo did not have the benefit of a prior medical
certification here, it did have notice, as of May 4, that
Brushwood (1) could not obtain a note from the urgent care
doctor for more than one day of excused absence, and (2) did not
think she could obtain a longer excuse from her primary
physician. As an FMLA-qualifying “serious health condition” is
one that results in incapacity for three full, consecutive
calendar days, Wells Fargo was not on notice that Brushwood was
suffering from an FMLA-qualifying condition when it terminated
her employment.
Even were we to find, and we do not, that Brushwood’s use
of crutches on Friday, May 7, or August 2010 cyst removal
surgery constituted notice of an FMLA-qualifying health
condition, notice given after termination does not suffice to
trigger an employer’s FMLA duties. See Aubuchon v. Knauf
Fiberglass, GmbH, 359 F.3d 950, 953 (7th Cir. 2004) (rejecting
employee’s FMLA interference claim when the employee produced
12
notice of a serious health condition “after he was fired” which
was “too late”).
Brushwood attempts to muddy the notice issue by contending
that, although she learned she would be terminated on Tuesday,
May 4, she was not actually fired until Friday, May 7, when she
signed her termination papers in the office. Appellant’s Br. at
23. As such, she argues that Wells Fargo had notice that she
“had been incapacitated for a period of more than three
consecutive, full calendar days” at the time of technical
termination. Id. While novel, Brushwood’s contention that she
could simply stay home for three days and then claim she was
incapacitated without producing an iota of medical evidence to
support that fact is incurably flawed. As Wells Fargo aptly
rejoins: “What [Brushwood] could not do is ignore the existing
medical evidence, refuse to see another medical provider, decide
not to work, and expect her employer to conclude that her leave
might be covered by the FMLA.” Appellee’s Br. at 18.
Brushwood failed to give Wells Fargo adequate notice that
she was requesting FMLA-qualifying leave in the first instance.
Her contentions that the bank “jumped the gun” by not requesting
further medical information and terminating her before she
produced qualifying medical information to support her FMLA
claim are therefore unavailing.
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III.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
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