Howard v. INOVA Health Care Services

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1885
WINFRED HOWARD,
Plaintiff - Appellant,
v.
INOVA HEALTH CARE SERVICES, d/b/a INOVA Health System,
Defendant - Appellee.
No. 07-2035
WINFRED HOWARD,
Plaintiff - Appellant,
v.
INOVA HEALTH CARE SERVICES, d/b/a INOVA Health System,
Defendant - Appellee.
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge; Gerald Bruce Lee, District Judge. (1:06-cv-
00976-CMH; 1:07-cv-00647-GBL)
Argued: October 28, 2008 Decided: December 5, 2008
Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Nils George Peterson, Jr., Arlington, Virginia, for Appellant.
William Boyle Porter, BLANKINGSHIP & KEITH, P.C., Fairfax,
Virginia, for Appellee.
_______________
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
On August 24, 2006, Winfred Howard sued his employer, Inova
Health Care Services, asserting interference and retaliation
claims under the Family and Medical Leave Act (“FMLA”), 29
U.S.C. § 2601 et seq. After Inova moved for summary judgment,
Howard moved to dismiss his complaint without prejudice or, in
the alternative, to amend his petition to add a claim under the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et
seq. The district court denied Howard’s motion and granted
summary judgment in favor of Inova, finding that Inova had not
violated the FMLA in disciplining Howard, transferring him to an
alternate position, or terminating his employment. The court
also found that Howard had failed to make a prima facie showing
of retaliation. On July 3, 2007, Howard filed a second suit
against Inova, asserting an ADA claim based on the same events
that formed the basis for his FMLA claims. The district court
in that case granted Inova’s 12(b)(6) motion to dismiss Howard’s
complaint on the basis of res judicata. Howard now appeals the
judgments of the district courts. For the reasons that follow,
we affirm.
3
I.
Howard first began working for Inova as an operating room
(“OR”) technician in 1993. In the fall of 1996, Howard informed
Inova that he had been diagnosed with posttraumatic stress
disorder (“PTSD”), triggered by exposure to blood or bodily
fluids or the smell of burning flesh. He asked to be removed
from his position for fear of endangering patients. Howard
began using full-time and intermittent leave under the FMLA to
address his PTSD and eventually was transferred to a supply and
resource coordinator position that did not involve OR work.
Howard left Inova in 1997 and was unemployed for four
years. In 2000, he sued Inova, alleging an ADA violation.
While the lawsuit was pending, Inova rehired Howard in 2001 as a
patient service coordinator, and the lawsuit was dismissed.
Upon his reemployment, Howard was given access to Inova’s
employee booklet and FMLA policies.
On February 14, 2002, Howard was involved in a car accident
and injured his back. He requested and was approved for 28 days
of FMLA leave. He provided Inova with physicians’ notes
certifying that he was unable to attend work from February 14 to
19, 2002; February 27 to March 14, 2002; April 9 to 16, 2002;
and April 19 to 26, 2002. J.A. 597–602. Howard was involved in
a second car accident on November 26, 2002. He submitted
4
physicians’ notes certifying that he should work reduced hours
with certain restrictions on physical activity from December 7
to 21, 2002; December 18, 2002 to January 10, 2003; and January
11, 2003 to February 22, 2003. J.A. 606–09. He also submitted
a physician certification in May 2003 stating that he needed to
work reduced hours for an unknown period. J.A. 610–12. Inova
approved a reduced work schedule for Howard, but he eventually
returned to a full-time schedule in 2003 or 2004. See J.A. 301.
In 2005, Howard was verbally disciplined by his supervisor,
Julie Quick, for “absenteeism and tardiness,” and written
documentation of the discipline was placed in his file. J.A.
104, 621. Quick explained that Howard had failed to report for
work on February 2 to 7, 2005 and March 1 to 2, 2005; that he
had left work early on February 9, 23, and 25, 2005; and that he
was late on February 11, 14, and 18, 2005. Id. Howard asserted
that he missed these days of work due to his back problems.
J.A. 333–38. Quick provided Howard with FMLA forms for his
doctors to certify that these absences were related to medical
issues. If Howard could submit proper physician certification
of these absences, Quick would withdraw documentation of the
verbal warning from Howard’s file.
On April 15, 2005, Howard called in sick. On April 18,
2005, Quick gave Howard a written warning, noting that his April
5
15, 2005 absence was the ninth unexcused absence in three
months. Again, Quick provided Howard with FMLA forms and said
she would withdraw both the verbal and written warnings if he
could provide physician certification for his absences.
Howard met with Quick and Tom Williams, an Inova HR
representative, on April 28, 2005. Howard had not yet provided
FMLA documentation to excuse his absences. Quick and Williams
explained the forms to Howard and informed him that his failure
to return them could be grounds for termination. J.A. 385–86.
On May 4, 2005, Howard submitted a “Certification of Health Care
Provider” that a physician had signed on March 29, 2005. See
J.A. 623–25. Because the certification did not provide the
physician’s name or contact information and was evidently filled
out by two different people, Williams met with Howard and told
him that the certification was insufficient to excuse Howard’s
absences. 1 On May 6, 2005, Williams wrote Howard, explaining
that Inova had no FMLA paperwork for Howard for the last two
1
The physician’s signature and the written response stating
the “medical facts which support [the physician’s]
certification” were in one person’s handwriting. J.A. 623. The
rest of the form, which stated that Howard needed to work a
reduced schedule for an unknown duration of time, was written in
another person’s handwriting. Howard admitted that he filled
out most of the form and asserted in his deposition that his
physician, Dr. Rodney Dade, authorized him to do so. In a
deposition, Dr. Dade testified that he had not authorized Howard
to fill out the form. J.A. 1623–29.
6
years. Williams’s letter set a May 13, 2005 deadline for Howard
to provide physician certification for his absences. Howard did
not submit a complete certification from Dr. Rodney Dade until
May 31, 2005. The certification stated that Howard had lower
back pain that required a reduced work schedule for a period of
six to eight months. Inova approved a reduced work schedule for
Howard based on this certification on June 1, 2005.
On June 13, 2005, Quick met with Howard and informed him
that he would be transferred from the Surgical Business office
to the Unit Management office to work in a supply distribution
tech position. A letter from Quick to Howard memorializing
their meeting stated that the new position would better
accommodate his intermittent schedule and that Howard would work
in the Unit Management office, “reorganizing and labeling;
entering data for scrub users; [and] placing supplies . . . in
proper locations,” for the duration of his approved reduced work
schedule. J.A. 116, 642, 1485. The letter asked Howard to
start in his new position on June 15, 2005. Id.Howard testified in his deposition that during the meeting
he told Quick that he should not work near the OR because he
needed to avoid exposure to blood. He did not report for work
in the new supply distribution tech position until June 23,
2005. When he appeared for work, he presented a note from Dr.
7
George H. Lawrence, a psychologist, stating that Howard “has
been suffering from debilitating stress and therefore unable to
work from Wednesday, June 15th.” J.A. 126; see also J.A. 420.
The note stated that Howard was “fit to return to duty” on June
23, 2005 and should “avoid unnecessary stress.” Id. at 126
On June 27, 2005, Howard filed an EEOC charge of
discrimination against Inova, alleging an ADA claim. On the
same day, Quick and Williams met with Howard and requested FMLA
paperwork to certify the “debilitating stress” condition that
Dr. Lawrence had identified. See J.A. 436. They provided
Howard with the necessary forms and asked him to return them by
July 13, 2005, which he did not. In the meantime he worked as a
supply distribution tech, performing duties in and around the
OR. He testified that while he worked in this position, he had
four or five dissociative episodes related to his PTSD, only one
of which he told Quick about. See J.A. 432–34. On July 12,
2005, Roxanne Kavros, one of Howard’s old supervisors from his
previous tenure with Inova, met with Williams to express her
concern that she had seen Howard in and around the OR. She
mentioned that she had supervised him in 1998 when he
transferred from an OR tech position into a supply tech position
8
because of his PTSD. 2 She was worried that “because of changes
in the design of the OR department he may currently be passing
by OR rooms and seeing patients or blood products.” J.A. 1492.
Howard met with Williams again on July 20, 2005. During
this meeting, Williams gave Howard another week to submit FMLA
certification for the “debilitating stress” that Dr. Lawrence
had diagnosed. Howard did not submit the paperwork. On the
same day, Howard met with Quick, Williams, and other HR
employees to discuss his concern that his current position was
exposing him to blood. After the meeting, he was assigned to
another position in the Unit Management office to perform data
entry and began work in this position on July 21, 2005. 3
2
The record contains some discrepancies as to when Howard
first left Inova. Howard testified that he left Inova in July
of 1997. J.A. 209.
3
The record contains conflicting evidence as to what duties
Howard performed in his new position. Williams’s personal notes
reflect that on August 4, 2005, Julie Quick asked Howard to
“clean out a break room of supplies,” but that Howard refused to
do so unless the request was put in writing. J.A. 1493.
Despite further negotiations between Quick and Howard,
Williams’s notes state that Howard continued to refuse to
perform any duties in response to verbal requests. Howard’s
brief states that he was “required to clean out a storage room
that had not been cleaned in years” and that this room
“contained materials that exacerbated his PTSD.” Petitioner’s
Br. at 13–14. In his deposition, Howard testified that Inova
“moved [him] to a warehouse position where [he] worked by
[him]self . . . to clean out a warehouse which [he] was told by
a personnel that worked in perioperative service no one had been
in from anywhere from five to six years.” J.A. 448. The tasks
9
On August 10, 2005, Howard submitted an FMLA form
requesting full-time leave from August 11 to 26, 2005. J.A.
653. Accompanying the form was a “Certification of Health Care
Provider” from Dr. Lawrence stating that Howard was “suffering
from seizure disorder and PTSD.” J.A. 128, 654. The form
further stated that Howard “is at risk for seizure or possible
self harm” and “needs fulltime leave.” Id. at 128–29, 654–55.
Williams approved Howard’s leave on August 15, 2005.
On August 17, 2005, Williams sent Howard a letter
confirming that Howard would return to work on August 29, 2005,
the first business day after his approved leave would end. J.A.
132–33, 659-60. The letter also asked Howard to contact the
health care providers who had completed Howard’s most recent
FMLA paperwork. Williams wanted the physicians to review a
proposed job description of the position that Howard would
assume after returning to work. The letter also asked the
physicians to provide information about whether Howard would
require a reduced work schedule; whether Howard would experience
episodes of incapacity due to his health; and whether Howard
would be able to perform the proposed job duties. Id.of cleaning the “break room,” “storage room,” and “warehouse”
appear to be the same. The record is unclear whether Howard
actually performed this task.
10
On August 23, 2005, Howard sent a letter to the Department
of Labor, Wage & Hour Division to file an FMLA complaint against
Inova for “discriminat[ing] and retaliat[ing] against me by
overriding a position that was accommodating me for my
disability.” 4 J.A. 676-77.
On August 26, 2005, an Inova HR Coordinator sent Howard
another letter confirming approval for his leave from August 11
to 26, 2005. J.A. 152–53. The letter also stated that Howard
was “required to present a ‘fitness-for-duty’ certificate from
[his] health care provider, prior to [his] return to work.” Id.
at 152. Howard testified that he understood this letter to
request a “fitness for duty certification from [his] doctor that
provided support that [he was] ready to come back to work
medically.” J.A. 485. By September 8, 2005, however, Howard
had not submitted a fitness-for-duty certification and had not
reported for work. Id. at 484. On that day, Williams wrote
Howard to remind him that Williams had not received the
information requested in his August 17, 2005 letter. J.A. 154.
Williams also informed Howard that because Howard had not
returned to work as expected, Inova required “updated Family
4
The DOL ultimately concluded that Inova had violated the
FMLA when it transferred Howard to the supply distribution tech
position and eventually terminated his employment. See J.A.
1154–68, 1195–96.
11
Medical Leave paperwork from both of your Health Care Providers
by Monday, September 19, 2005.” Id. Williams warned Howard
that “[f]ailure to clarify [Howard’s] employment status with us
. . . will be considered job abandonment and grounds for
termination.” Id. Howard did not provide the requested
information. J.A. 486.
At Howard’s request, Dr. Lawrence wrote to Williams on
September 15, 2005. His letter explained that Howard “continues
to experience occasional stress-induced seizures and
dissociative episodes” and “needs evaluation and treatment by a
neurologist,” for which “reasonable time away from his work” was
required. J.A. 158. Dr. Lawrence stated that Howard “can soon
begin to function effectively again as a Patient Coordinator or
in some similar position. . . . [I]f he is treated with respect
and consideration and allowed to return to appropriate work
around the end of this month, part time at first, he will be a
productive and above average . . . employee.” Id.On September 28, 2005, Howard faxed Quick a letter
informing her that he intended to return to work on October 3,
2005. J.A. 159. Williams contacted Howard that same day and
confirmed receipt of Dr. Lawrence’s September 15, 2005 letter,
but reminded Howard that he still needed to provide FMLA
paperwork from Dr. Lawrence and any other physician currently
12
treating him for his medical conditions “before [he] return[s]
to work.” J.A. 161. Williams requested the paperwork by
October 7, 2005.
Howard did not return to work on October 3, 2005 as he had
indicated to Quick. He faxed a letter to Williams on October 7,
2005, asking for more time to complete the FMLA certifications.
J.A. 165. On October 17, 2005, Howard had neither returned to
work nor submitted any of the requested FMLA certifications. On
that day, Inova’s Assistant Director for Human Resources wrote
to Howard and informed him that “due to the fact that we have
not received any requested documentation to support your leave,
your employment has been terminated effective immediately.”
J.A. 166.
Howard sued Inova Health Care Services on August 24, 2006,
asserting interference and retaliation claims under the FMLA.
The district court granted summary judgment in favor of Inova
and denied Howard’s motion to dismiss his complaint without
prejudice or, in the alternative, to amend his petition to add
an ADA claim. On July 3, 2007, Howard filed a second suit
against Inova, alleging that Inova had violated the ADA by
discriminating and retaliating against him based on his PTSD.
The district court granted Inova’s 12(b)(6) motion to dismiss
13
Howard’s second complaint on the basis of res judicata. Howard
now appeals the judgments of the district courts.
II.
Howard appeals the district court’s opinion granting
summary judgment on both his interference and retaliation claims
under the FMLA. Our review of the district court’s grant of
summary judgment is de novo. Jennings v. Univ. of N.C., 482
F.3d 686, 694 (4th Cir. 2007) (en banc) (citing Hill v. Lockheed
Martin Logistics Mgmt., Inc., 354 F.3d 277, 283 (4th Cir. 2004)
(en banc)).
A.
In his interference claim, Howard asserts on appeal that
Inova violated the FMLA by transferring him to an alternate
position, disciplining him for unexcused absences, and
terminating his employment. These claims are addressed
separately below.
1.
Howard argues that his transfer from a billing position in
the Surgical Posting office into a supply distribution tech
position in the Unit Management office violated the FMLA because
it worked a hardship on him in violation of 29 C.F.R. §
825.204(d). Under 29 C.F.R. § 825.204(a), an employer may
14
transfer an employee “temporarily, during the period the
intermittent or reduced leave schedule is required, to an
available alternative position for which the employee is
qualified and which better accommodates recurring periods of
leave than does the employee’s regular position.” The “employer
may not transfer the employee to an alternative position in
order to discourage the employee from taking leave or otherwise
work a hardship on the employee.” 29 C.F.R. § 825.204(d).
Howard contends that the district court ignored the DOL’s
investigative finding that Inova had violated the FMLA when it
transferred Howard. Howard further argues that his transfer
from the billing position into the supply distribution tech
position was unnecessary because “Inova filled Howard’s billing
office position with hours from existing employees who were
asked to work overtime.” Petitioner’s Br. at 11. In addition,
Howard asserts that Inova “ignored the limitations noted in its
own health file that Howard was restricted to work in the
billing office,” id. at 13, and that the alternative supply
distribution tech position “was designed to work a hardship” on
him by moving him from a “sedentary white collar job” to a
position where he was exposed to “blood and the smell of burning
flesh,” id. at 15.
15
Inova responds that “[r]egardless of when Inova was able to
replace [Howard] with another full-time employee, [Howard’s old
billing position] required a full-time employee, and both his
first and second alternative positions did not.” Respondent’s
Br. at 34. Inova also points out that the new position offered
the same salary and benefits as the old position and involved
“job duties that were a rough equivalent of his tasks in the
billing office.” Respondent’s Br. at 35. Inova further
emphasizes that contrary to Howard’s contention, his medical
record contained no restrictions as to the kind of work he could
perform.
Howard’s reliance on the DOL’s investigative findings is
unavailing. Courts have routinely declined to rely on agency
findings, in part because such a finding does not result from an
adjudicatory proceeding and consequently has no preclusive
effect. See Phipps v. County of McLean, No. 07-cv-1160, 2008 WL
4534066, at *4 n.3 (C.D. Ill. Oct. 7, 2008) (citation omitted);
cf. Brantley v. Nationwide Mut. Ins. Co., No. RDB-07-1322, 2008
WL 2900953, at *3–5 (D. Md. July 22, 2008); Roberts v. The
Health Ass’n, No. 04-CV-6637T, 2007 WL 2287875, at *4–7
(W.D.N.Y. Aug. 8, 2007); Hamilton v. Niagara Frontier Transp.
Auth., Nos. 00-CV-300SR, 00-CV-863SR, 2007 WL 2241794, at *13–15
(W.D.N.Y. July 31, 2007). But cf. Ammons-Lewis v. Metro. Water
16
Reclamation Dist. Of Greater Chicago, No. 03 C 0885, 2004 WL
2453835, at *9 (N.D. Ill. Nov. 1, 2004) (finding that the DOL
report “may create an issue of fact as to whether [the
plaintiff’s] first leave request was improperly denied,” but
granting summary judgment in favor of the defendant because the
plaintiff could not show damages (citation omitted)). The
district court did not err in declining to rely on the DOL’s
findings, and we do not rely on them now in our de novo review.
Howard stresses that his duties in his billing position
were absorbed by current employees working overtime, but this
argument fails to raise a fact issue as to whether his old
position required a full-time employee, as Inova contends. Nor
does it address the more critical issue of whether his new
supply distribution tech position better accommodated a reduced
work schedule. Although Howard’s new position required
different job duties than his old position, an alternative
position intended to accommodate a reduced work schedule “does
not have to have equivalent duties,” just “equivalent pay and
benefits.” 29 C.F.R. § 825.204(c). Howard does not contend on
appeal that the transfer to the supply distribution tech
position resulted in a cut in his pay or benefits.
Howard’s argument that Inova transferred him to work a
hardship on him is similarly unpersuasive. The record does not
17
support his contention that Inova transferred him in bad faith
with knowledge that exposure to blood in and around the OR would
exacerbate his PTSD. The record shows that the most recent
documentation that Inova possessed relating to his PTSD dated
back to 2001. Howard testified in his deposition that he
verbally told Quick he could not be exposed to blood and bodily
fluids when she informed him of the transfer in 2005, but he had
submitted no FMLA documentation of his PTSD for almost four
years. All the FMLA documentation that he had provided in the
preceding three years dealt solely with back problems from his
car accidents in 2002. He submitted a note from Dr. Lawrence to
excuse his six-day absence before beginning the new supply
distribution tech position, but this letter did not notify Inova
that Howard’s PTSD had recurred. Rather, it stated only that
Howard “has been suffering from debilitating stress” but was now
“fit to return to duty.” J.A. 644. Howard has not shown that a
fact issue exists as to whether Inova transferred him to “work a
hardship” on him under 28 C.F.R. § 825.204.
2.
Howard argues that Inova violated the FMLA by disciplining
him for unexcused absences in the spring of 2005. He contends
that the district court ignored evidence in the record that
“Howard had provided to Inova a FMLA form for intermittent leave
18
in 2003 and that Inova had lost Howard’s FMLA form.”
Petitioner’s Br. at 10. Relying on Williams’s deposition
testimony that “doctor[’]s notes are not required for
intermittent leave once it has been approved,” Howard contends
that Inova “violated the FMLA regulations by failing to keep
FMLA forms submitted by Howard for the required three years
pursuant to 29 C.F.R. [§] 825.500.” Petitioner’s Br. at 14.
Howard argues that this 2003 form provided sufficient
certification to excuse his absences in the spring of 2005.
Inova responds that contrary to Howard’s contention, it does
have the 2003 form that Howard submitted. Inova also points out
that its policy, consistent with 29 C.F.R. § 825.308, entitles
it to request recertification of an FMLA-qualifying chronic
condition every 30 days.
Howard’s argument is not persuasive. Regardless of whether
Inova failed to retain Howard’s 2003 FMLA form for three years
as required by 29 C.F.R. § 825.500(b), that regulation does not
require an employer to consider FMLA documentation as effective
for three years. To the contrary, as Inova points out, an
employer may request recertification of a chronic or
“permanent/long-term condition[] under continuing supervision of
a health care provider” at least every 30 days, “in connection
with an absence by the employee.” 29 C.F.R. § 825.308(a); see
19
also Rhoads v. F.D.I.C., 257 F.3d 373, 383 (4th Cir. 2001) (“An
employer has discretion to require that an employee’s leave
request ‘be supported by a certification issued by the health
care provider of the employee.’” (citing 29 U.S.C. § 2613(a))
(punctuation omitted)). Although Howard ultimately submitted a
Certification of Health Care Provider form from Dr. Dade on May
31, 2005 and received approval for leave on a going-forward
basis from March 29, 2005 to March 28, 2006, he points to no
evidence in the record showing that he submitted such a form or
the necessary leave requests to excuse his nine absences in the
spring of 2005. The lack of FMLA documentation for his absences
in 2005 is especially apparent in light of the extensive
documentation he provided in 2002 and 2003 to excuse numerous
absences due to his car accidents. See J.A. 597–602, 604–013.
The record does not support a fact issue as to whether Inova
improperly disciplined Howard for his absences in the spring of
2005.
3.
Howard argues that Inova wrongfully terminated his
employment for failure to provide fitness-for-duty certificates
because Inova improperly required certificates from two doctors.
He also contends that Inova improperly sought more than “a
simple statement” as required by 29 C.F.R. § 825.310(c). Howard
20
notes that Inova required Howard to ask his doctors to review a
job description and to provide additional information about his
condition. He points out that the DOL found Dr. Lawrence’s
September 15, 2005 letter, which stated that Howard could
“return to appropriate work around the end of this month,” J.A.
158, to be an adequate fitness-for-duty certification. See
generally J.A. 1154–68, 1195–96. In addition, Howard argues
that “[w]hen an employee is terminated prior to the conclusion
of his 12 weeks of FMLA leave, the termination violates the
FMLA.” Petitioner’s Reply Br. at 4. He asserts that he was
still eligible for FMLA leave that would have lasted until
October 19, 2005, such that Inova’s termination of his
employment on October 17, 2005 violated the FMLA.
In response, Inova argues that Howard failed to submit any
fitness-for-duty certification, despite written requests on
August 26, September 8, and September 28, 2005. Citing Bloom v.
Metro Heart Group of St. Louis, Inc., 440 F.3d 1025, 1030 (8th
Cir. 2006), Inova argues that Dr. Lawrence’s letter was “too
vague and conditional” to serve as a fitness-for-duty
certification. Respondent’s Br. at 23.
Bloom is inapposite to this case. The Bloom court
considered a diagnostic report from a non-treating physician
that the employer had paid to examine the employee during her
21
absence from work. When she wished to resume work, the employee
had asked her two treating physicians to complete a fitness-for-
duty certificate, but neither returned the form to her. As a
result, she relied on the diagnosing physician’s earlier report
as “equivalent to a fitness-for-duty certificate.” Bloom, 440
F.3d at 1030. The Eighth Circuit found this report to be “too
vague and conditional to constitute a statement that [the
employee] was fit-for-duty.” 5 Id. Unlike the diagnostic report
in Bloom, Dr. Lawrence’s letter in this case was clearly
intended to convey information to Inova about Howard’s ability
to return to work. The Sixth Circuit has held that a “fitness-
for-duty certification need only state that the employee can
return to work.” Brumbalough v. Camelot Care Ctrs., Inc., 427
F.3d 996, 1003 (6th Cir. 2005). The Brumbalough court noted:
While the employer may require more information, the
regulation clearly states that the employer cannot
delay reinstating the employee simply because the
employer is obtaining further information or
5
The report stated as follows:
Whatever direction or energies her previous treating
physicians think best for her, it should be carried on
by them in her behalf.
If she were working, I would not be able to determine
any medical basis to restrict work activities as a
sonographer/electrocardiographer/ultrasound
technician.
Bloom, 440 F.3d at 1029.
22
clarification from the employee’s health care
provider. . . .
This view is bolstered by the fact that the FMLA and
accompanying regulations lay out in specific detail
what must be included in an initial medical
certification, whereas the regulations expressly state
that only a simple statement is needed in a fitness-
for-duty certification. . . .
Accordingly, we hold that once an employee submits a
statement from her health care provider which
indicates that she may return to work, the employer’s
duty to reinstate her has been triggered under the
FMLA.
427 F.3d at 1003–04 (citations omitted).
This circuit has not yet addressed what constitutes an
adequate fitness-for-duty certification under the FMLA, but we
need not reach this issue because Inova properly terminated
Howard’s employment under 29 C.F.R. § 825.311. Section 825.311
states:
When requested by the employer pursuant to a uniformly
applied policy for similarly-situated employees, the
employee must provide medical certification at the
time the employee seeks reinstatement at the end of
FMLA leave taken for the employee’s serious health
condition, that the employee is fit for duty and able
to return to work if the employer has provided the
required notice . . . . In this situation, unless the
employee provides either a fitness-for-duty
certification or a new medical certification for a
serious health condition at the time FMLA leave is
concluded, the employee may be terminated.
29 C.F.R. § 825.311(c) (emphases added) (citations omitted).
Under this section, Inova was entitled to terminate Howard’s
23
employment because he had not provided a fitness-for-duty
certification or a new medical certification when his August
2005 FMLA leave expired. 6 The record shows that Inova approved
Howard’s request “for intermittent leave,” which “began on
August 11, 2005 and will end on August 26, 2005.” J.A. 679
(emphasis omitted). Inova expected Howard to resume work on
August 29, 2005, see J.A. 659, and informed Howard that he
needed to provide a fitness-for-duty certificate before
returning to work, see J.A. 679. However, Howard did not return
6
Howard argues that he still had additional FMLA leave at
the time Inova terminated his employment and that this
termination “violates the FMLA” because it occurred “prior to
the conclusion of his 12 weeks of FMLA leave.” Petitioner’s
Reply Br. at 4. Howard cites no regulation or statute to
support this contention, which appears to rely on an untenable
interpretation of 29 C.F.R. § 825.311(c). In requiring the
employee to provide “either a fitness-for-duty certification or
a new medical certification for a serious health condition at
the time FMLA leave is concluded,” section 825.311(c) does not
refer to all FMLA leave to which the employee is then entitled,
as Howard seems to suggest. If it did, its requirement of a
“new medical certification for a serious health condition” is
nugatory, because an employee who has reached the end of all the
FMLA leave to which he is entitled in a 12-month period has
exhausted that leave and may not qualify for more, regardless of
whether he submits a new medical certification. See 29 C.F.R. §
825.200(a) (stating that an “eligible employee’s FMLA leave
entitlement is limited to a total of 12 workweeks of leave
during any 12-month period” (emphasis added)). To give meaning
to the entire regulation, section 825.311(c) must be interpreted
to require an employee to provide a fitness-for-duty
certification or a new medical certification at the time the
employee’s scheduled, approved FMLA leave—for which the employee
has provided the necessary notice and certification—expires.
24
to work on August 29, 2005, and in fact did not attempt to
return to work until October 3, 2005. Although Dr. Lawrence
sent a September 15, 2005 letter stating that Howard could
return to work “around the end of this month,” J.A. 158, nothing
in the record shows that Howard submitted proper medical
certification and sought reinstatement at the end of his
approved FMLA leave. Under 29 C.F.R. § 825.311(c), Inova was
entitled to terminate Howard’s employment because Howard had
provided neither “a fitness-for-duty certification” nor a “new
medical certification for a serious health condition at the time
[his approved] FMLA leave [was] concluded.” 7 Howard has not
shown that a fact issue exists as to whether Inova’s termination
of his employment violated the FMLA.
B.
In his retaliation claim, Howard asserts that Inova
retaliated against him for exercising his rights under the FMLA
by disciplining him for unexcused absences, transferring him to
an alternative position that exacerbated his PTSD, and
terminating his employment “before his 12 weeks of medical leave
was concluded.” Petitioner’s Reply Br. at 7–9. His briefs
7
The parties do not dispute on appeal whether Inova
requested a fitness-for-duty certification from Howard “pursuant
to a uniformly applied policy for similarly-situated employees.”
29 C.F.R. § 825.311(c); see also 29 C.F.R. § 825.310(a).
25
focus on the alleged retaliatory transfer to the supply
distribution tech position. He emphasizes that Inova
transferred him to a position near the OR knowing that his PTSD
could be triggered. He further contends that Williams and
Quick, in conjunction with other Inova HR personnel, decided to
leave Howard in the alternative position after learning of his
EEOC complaint, even after both Howard and an old supervisor,
Kavros, told them he should not be working around the OR.
In response, Inova points out that Quick informed Howard of
his transfer to the supply distribution tech position on June
15, 2005, and that Howard reported for work on June 23, 2005
with a note stating that Howard was “fit to return to duty” as
long as he could “avoid unnecessary stress” if possible. See
J.A. 126. Inova highlights that Howard returned to work “with
full knowledge of his working environment,” but the note failed
to advise Inova of any problem Howard might have with his
proximity to the OR. Respondent’s Br. at 38–39. Inova further
asserts that it did not receive “notice that Howard may have
been in proximity to blood or other PTSD-triggering stimuli in
his alternate position until July 12, 2005 at the earliest, and
there was doubt as to whether this was true or not.” Id. at 39.
Inova argues that “as soon as Inova had confirmation that Howard
26
had concerns about being exposed to blood, he was transferred to
another position.” Id.We have held that “FMLA claims arising under the
retaliation theory are analogous to those derived under Title
VII and so are analyzed under the burden-shifting framework of
McDonnell Douglas Corp. v. Green [441 U.S. 792, 800–06 (1973)].”
Yashenko v. Harrah’s N.C. Casino Co., LLC, 446 F.3d 541, 550–51
(4th Cir. 2006) (citation omitted). A plaintiff “must make a
prima facie showing that he ‘engaged in protected activity, that
the employer took adverse action against him, and that the
adverse action was causally connected to the plaintiff’s
protected activity.’” Id. at 551 (quoting Cline v. Wal-Mart
Stores, Inc., 144 F.3d 294, 301 (4th Cir. 1998)). If the
plaintiff “establishes a prima facie case of retaliation” and
the employer “offers ‘a nondiscriminatory explanation’ for his
termination,” the plaintiff “bears the burden of establishing
that the employer’s proffered explanation is pretext for FMLA
retaliation.” Id. (quoting Nichols v. Ashland Hosp. Corp., 51
F.3d 496, 502 (4th Cir. 2001)).
Applying this analysis, the district court found that
Howard had failed to establish a prima facie retaliation claim
because his transfer to the supply distribution tech position
“was consistent with both FMLA regulations and Inova’s Family
27
and Medical Leave policy” and did not constitute an “adverse
employment action.” 8 J.A. 77. The court held that even if the
transfer did qualify as an adverse employment action, “Inova has
met its burden of establishing a non-discriminatory reason for
the transfer” and Howard failed to offer “any evidence of
pretext.” Id.Howard has not shown a prima facie retaliation claim.
Although he argues that Inova transferred him to and retained
him in the supply distribution tech position in bad faith, he
has not identified evidence in the record to create a fact issue
on this point. As noted above, the most recent documentation in
Inova’s files relating to Howard’s PTSD dated from 2001. All
the FMLA documentation that Howard had submitted in the three
years preceding the recurrence of his PTSD related to his back
problems. Although Howard missed a week of work due to
“debilitating stress,” when he returned the note from his health
care provider did not state that Howard’s PTSD had recurred or
that he needed to avoid exposure to blood. Howard admitted in
his deposition that he did not inform anyone at Inova about most
of the dissociative episodes he experienced while working in the
8
The district court also noted that insofar as Howard
argued that Inova wrongly disciplined him for absenteeism and
tardiness, Inova properly considered Howard’s absences unexcused
because of his failure to provide FMLA certification.
28
OR. J.A. 432–34. The record also shows that he did not submit
FMLA certification of his PTSD until August 10, 2005. Howard
has not shown that a fact issue exists as to whether Inova’s
decision to transfer him was retaliatory.
C.
Howard has failed to establish a fact issue as to either
his interference or retaliation claims. We therefore affirm the
district court’s grant of summary judgment in favor of Inova.
III.
Howard also appeals the district court’s denial of his
leave to dismiss his complaint without prejudice or, in the
alternative, to amend his complaint. The denial of a motion to
dismiss without prejudice is reviewed for abuse of discretion.
See Andes v. Versant Corp., 788 F.2d 1033, 1035 (4th Cir. 1986).
Under Federal Rule of Civil Procedure 41(a)(2), a court may
dismiss an action “at the plaintiff’s request only by court
order, on terms that the court considers proper.” The denial of
a motion for leave to amend a complaint is reviewed for abuse of
discretion. Franks v. Ross, 313 F.3d 184, 192 (4th Cir. 2002)
(citing HCMF Corp. v. Allen, 238 F.3d 273, 276–77 (4th Cir.
2001)). Under Federal Rule of Civil Procedure 15(a)(2), “a
29
court should freely give leave [to amend] when justice so
requires.”
A.
Howard argues that the district court erred in denying his
motion to dismiss his complaint without prejudice under Federal
Rule of Civil Procedure 41(a)(2). The purpose of Rule 41(a)(2)
is “to allow voluntary dismissals unless the parties will be
unfairly prejudiced.” Davis v. USX Corp., 819 F.2d 1270, 1273
(4th Cir. 1987) (citations omitted). In deciding a motion to
dismiss without prejudice under Rule 41(a), “a district court
should consider factors such as ‘the opposing party’s effort and
expense in preparing for trial, excessive delay and lack of
diligence on the part of the movant, and insufficient
explanation of the need for a voluntary dismissal,’ as well as
the present stage of litigation.” Miller v. Terramite Corp.,
114 F. App’x 536, 540 (4th Cir. 2004) (quoting Phillips USA,
Inc., v. Allflex USA, Inc., 77 F.3d 354, 358 (10th Cir. 1996)).
Howard argues on appeal that granting his motion to dismiss
without prejudice would not have prejudiced Inova. He asserts
that Inova’s efforts “in this litigation need not be repeated in
any future case” because he has “stipulated that any discovery
shall be admissible in a future proceeding.” Petitioner’s Br.
at 22. He also contends that there was no excessive delay on
30
his part and points out that Inova “delayed producing important
discovery until the last week of discovery and even beyond the
discovery period.” Id. at 21–22.
In response, Inova notes that Howard filed his motion to
dismiss two weeks before trial and asserts that it incurred
substantial expense in preparing for trial. Citing Andes, 788
F.2d at 1036–37, and related cases, Inova points out that “the
expenses of discovery and preparation of a motion for summary
judgment may constitute prejudice sufficient to support denial
of a voluntary dismissal.” Respondent’s Br. at 47. Inova
further argues that Howard was not diligent in pursuing his
claims in this case and notes that in the initial discovery
period, Howard’s discovery efforts consisted of one set of
interrogatories and document requests issued at the beginning of
the period. Inova moved to extend the discovery deadline until
April 6, 2007, because of alleged deficiencies in Howard’s
discovery responses. Howard only attempted to depose Inova’s
corporate representative on April 3, 2007, four days before the
close of extended discovery. During this deposition, Howard
made additional document requests based on the deponent’s
responses, and Inova complied. Inova stresses that it never
withheld any nonprivileged responsive information from Howard at
any time. In addition, Inova highlights that Howard did not
31
file his motion to dismiss until more than three weeks after
discovery closed, and after Inova had filed its summary judgment
motion.
Our jurisprudence on the issue of what constitutes
sufficient prejudice to a nonmovant to support denial of a
motion for voluntary dismissal under Rule 41(a)(2) is not free
from ambiguity. In Davis, we noted that “[i]t is well
established that, for purposes of Rule 41(a)(2), prejudice to
the defendant does not result from the prospect of a second
lawsuit” or “the possibility that the plaintiff will gain a
tactical advantage over the defendant in future litigation.”
819 F.2d at 1274–75. Similarly, in Fidelity Bank PLC v. N. Fox
Shipping N.V., we held that “the mere filing of a motion for
summary judgment is not, without more, a basis for refusing to
dismiss without prejudice.” 242 F. App’x 84, 89 (4th Cir. 2007)
(quoting Andes, 788 F.2d 1033, 1036 n.4 (internal quotations and
alterations omitted)). However, we have also found on multiple
occasions that a district court does not abuse its discretion in
denying a motion for voluntary dismissal if the case has
advanced to the summary judgment stage and the parties have
incurred substantial costs in discovery. See, e.g., Miller, 114
F. App’x at 540 (affirming district court’s decision that
plaintiff’s motion for voluntary dismissal was “untimely and
32
would waste judicial resources” because the motion was filed
well after discovery had closed and a dispositive order was
imminent); Francis v. Ingles, 1 F. App’x 152, 154 (4th Cir.
2001) (affirming district court’s denial of motion to dismiss
without prejudice because the “plaintiff’s motion came after a
lengthy discovery period and merely one week before the
scheduled trial date” and because “the motivation for the motion
appeared to be to circumvent” a discovery ruling, which counsel
could have avoided “by deposing the witness within the discovery
period”); Skinner v. First Am. Bank of Va., 64 F.3d 659, at *2–3
(4th Cir. 1995) (stating that “[t]he expenses of discovery and
preparation of a motion for summary judgment may constitute
prejudice sufficient to support denial of a voluntary dismissal”
and noting that granting a motion to dismiss is not required to
allow a party to “avoid an adverse ruling in federal court”);
Sullivan v. Westinghouse Elec. Corp., 848 F.2d 186, at *2 (4th
Cir. 1988) (“Given the advanced stage of the proceedings, the
district court’s denial of [the plaintiff’s] motion was not an
abuse of discretion.”).
We conclude that Howard has not shown that the district
court abused its discretion in denying his motion to dismiss
without prejudice on these facts. The posture of this case is
similar to that in Andes, in which the court noted that the case
33
did not present “extreme prejudice to defendants,” but
nevertheless was “more advanced than a number of cases . . . in
which voluntary dismissal was held proper.” 788 F.2d at 1036
(collecting cases). The defendants in Andes asserted that they
had incurred significant expenses engaging in discovery and
filing motions for summary judgment. The Andes court found that
under the circumstances, “there was a sufficient basis for
denying [the plaintiff’s] Rule 41(a)(2) motion and thus we
cannot say that the district court abused its discretion in
refusing to dismiss without prejudice.” Id. at 1036–37.
In this case, the record fails to support Howard’s
explanation of the need for voluntary dismissal. Howard asserts
that Inova’s document production late in the discovery period
revealed that Inova’s reasons for transferring Howard were
pretextual. He argues that “[t]his showing of pretext warrants
Plaintiff being allowed to join his FMLA claim with his ADA
claim that he requested a right to sue letter from the EEOC on.”
Petitioner’s Br. at 23. As Howard’s brief and the record show,
however, Howard was well aware of the possibility of an ADA
claim before he filed his complaint in this case. He filed an
EEOC charge alleging an ADA violation on June 27, 2005. He
filed his complaint alleging only his FMLA claims on August 24,
2006.
34
In addition, the record shows that Howard was not diligent
in conducting the discovery that he asserts led to the new
information that supports his motion for voluntary dismissal.
Howard emphasizes that Inova was producing documents even after
the close of discovery, but Inova points out that it only
produced responsive documents due to Howard’s last-minute
requests at the end of the discovery period. Howard has not
shown that Inova failed to provide responsive documents in a
timely fashion related to any of his discovery requests.
Given the stage of the litigation, Howard’s insufficient
explanation for a voluntary dismissal, and his lack of diligence
in pursuing both discovery and his substantive claims, the
district court did not abuse its discretion in finding a
“sufficient basis” to deny Howard’s motion to dismiss without
prejudice. Andes, 788 F.2d at 1036–37.
B.
Howard also argues that the district court erred in denying
his motion to amend. Under Rule 15, the district court may
grant a motion to amend the complaint “when justice so
requires.” A district court does not abuse its discretion in
denying leave to amend if there is “undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to
cure deficiencies by amendments previously allowed, undue
35
prejudice to the opposing party. . . , futility of amendment,
etc.” Foman v. Davis, 371 U.S. 178, 182 (1962).
Howard argues that he should be allowed to add an ADA claim
based on the evidence that Inova produced toward the end of
discovery, which Howard asserts supports his argument that
Inova’s reasons for transferring him were pretextual. Inova
argues in response that Howard unduly delayed in moving to amend
his complaint to add his ADA claims, noting that Howard could
have requested a right-to-sue letter from the EEOC at any time
after December 24, 2005 and that he did not seek to amend his
complaint until almost two years after he filed his EEOC charge.
Inova also contends that to allow amendment would prejudice
Inova due to the advanced stage of the litigation and the
different theories of recovery an ADA claim would involve.
We have noted that “[a]mendments near the time of trial may
be particularly disruptive, and may therefore be subject to
special scrutiny.” Deasy v. Hill, 833 F.2d 38, 41 (4th Cir.
1987) (citation omitted). The Deasy court found that “a motion
to amend should be made as soon as the necessity for altering
the pleading becomes apparent.” Id. (quoting 6 Charles Alan
Wright & Arthur A. Miller, Federal Practice & Procedure § 1488
(1971)). In this case, Howard has not shown that his proposed
amendment to add an ADA claim resulted from the discovery of new
36
facts that prompted his motion to amend. To the contrary, the
record shows that Howard was aware of the possibility of an ADA
claim almost a year before he filed his complaint.
In ruling from the bench on Howard’s motion to dismiss
without prejudice or to amend, the district court noted that
“[t]his EEOC matter was a matter that had been known about. And
while there was perhaps some information that came late, I don’t
believe there is any showing that that’s a groundbreaking piece
of information by any means.” J.A. 29. The district court did
not abuse its discretion in so holding.
C.
We affirm the district court’s decision to deny Howard’s
motion to dismiss without prejudice or, in the alternative, to
amend his complaint.
IV.
Lastly, Howard appeals the district court’s decision to
dismiss his ADA claim as barred by res judicata. We review de
novo an order granting a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6). Giarrantano v. Johnson, 521 F.3d 298,
302 (4th Cir. 2008).
Howard argues that Inova now “seeks to benefit from the
repose granted by res judicata when the facts demonstrate that
37
in the FMLA case the facts that would have led to the early
joinder of the ADA cause of action were withheld by the actions
of [Inova].” Petitioner’s Br. at 25–26. He asserts that
because Inova withheld critical information, his counsel “could
not effectively question Williams” or “assert the ADA claim
early in the previous litigation.” Id. at 28.
Inova argues that the elements for res judicata are
satisfied because the district court’s decision granting summary
judgment in favor of Inova is a final judgment on the merits;
the parties are identical in both actions; and the claims in
both actions arise out of the same core of operative facts.
Inova points out that Howard does not challenge the district
court’s res judicata analysis on appeal, but instead relies on
his argument that Inova withheld critical evidence. Inova
reiterates its assertion that it timely provided responsive
documents to all Howard’s discovery requests and did not
withhold information.
“For the doctrine of res judicata to be applicable, there
must be: (1) a final judgment on the merits in a prior suit; (2)
an identity of the cause of action in both the earlier and the
later suit; and (3) an identity of parties or their privies in
the two suits.” Martin v. Am. Bancorporation Retirement Plan,
38
407 F.3d 643, 650 (4th Cir. 2005) (quoting Pueschel v. United
States, 369 F.3d 345, 354–55 (4th Cir. 2004)).
The district court did not err in dismissing Howard’s ADA
claim as barred by res judicata. Quoting Peugeot Motors of
America, Inc. v. Eastern Auto Distributors, Inc., 892 F.2d 355,
359 (4th Cir. 1989), the district court noted that res judicata
not only “bar[s] claims that were raised and fully litigated,”
but also “prevents litigation of all grounds for, or defenses
to, recovery that were previously available to the parties,
regardless of whether they were asserted or determined in the
prior proceeding.” J.A. 85. The district court found that
Howard’s ADA claims “clearly rely on the same factual
circumstances on which he relied in his prior FMLA claim, namely
Defendant Inova’s decision to transfer [Howard] to a post in the
hospital that exposed him to blood and the smell of burnt
flesh.” J.A. 86. The record bears out this conclusion. As
noted above, Howard filed an EEOC charge of discrimination
asserting an ADA violation well before he filed his original
complaint asserting FMLA violations arising out of the same core
facts. Howard could have brought his ADA claim in his original
complaint, but chose not to. “Broadly speaking, a party always
has the option or election of raising fewer than all the
potential theories of relief that might be available. However,
39
it is the rule that when a party can present all grounds in
support of his cause of action, he must do so, if at all, in the
proceeding on that cause of action.” Ohio-Sealy Mattress Mfg.
Co. v. Kaplan, 90 F.R.D. 11, 15 (D.C. Ill. 1980) (citations
omitted), aff’d in part and rev’d in part, 745 F.2d 441 (7th
Cir. 1985), cert. denied, 471 U.S. 1125 (1985), quoted in 18
Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper,
Federal Practice and Procedure, Jurisdiction, § 4407 (2d ed.
2002).
We affirm the district court’s dismissal of Howard’s ADA
claim as barred by res judicata.
V.
For the reasons outlined above, the judgments of the
district courts are
AFFIRMED.
40