Debra Kinds v. The OH Bell Telephone Co.

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0197p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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DEBRA KINDS,
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Plaintiff-Appellant,
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No. 12-4048
v.
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Defendant-Appellee. -
OHIO BELL TELEPHONE COMPANY,
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Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 1:10-cv-01596—Benita Y. Pearson, District Judge.
Decided and Filed: July 29, 2013
Before: GILMAN, GRIFFIN, and STRANCH, Circuit Judges.
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COUNSEL
ON BRIEF: Mark P. Herron, HERRON LAW OFFICES, Cleveland, Ohio, for
Appellant. Laura A. Lindner, LITTLER MENDELSON, P.C., Milwaukee, Wisconsin,
Amy Ryder Wentz, LITTLER MENDELSON, P.C., Cleveland, Ohio, for Appellee.
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OPINION
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RONALD LEE GILMAN, Circuit Judge. Debra Kinds, a decade-long employee
of the Ohio Bell Telephone Company, sought leave under the Family and Medical Leave
Act (FMLA), 29 U.S.C. §§ 2601–2654, for nine weeks of work that she missed in late
2009. Ohio Bell denied Kinds’s request for FMLA leave with respect to three of those
weeks when she failed to timely provide medical justification for the leave, and it then
fired her because of her documented history of unexcused absences.
Kinds subsequently filed a lawsuit against Ohio Bell, alleging that the company
had unlawfully interfered with the exercise of her FMLA rights. The district court
1
No. 12-4048 Kinds v. Ohio Bell Telephone Co. Page 2
granted Ohio Bell’s motion for summary judgment and dismissed the case. For the
reasons set forth below, we AFFIRM the judgment of the district court.
I. BACKGROUND
Kinds was involved in a mentally and physically abusive relationship with her
live-in boyfriend that culminated in death threats and an assault that put Kinds in the
emergency room on August 30, 2009. She told her supervisors about the abuse and
requested time off from work to find a new place to live and to get her affairs in order.
But Kinds did not have any vacation time available and was not eligible for FMLA
leave because she had worked less than 1,250 hours for Ohio Bell during the previous
12-month period. See 29 U.S.C. § 2611(2)(A) (defining an “eligible employee” as one
who has worked a minimum of 1,250 hours for the specific employer in the previous
12 months). Her supervisors nonetheless granted her one week of discretionary leave
for the first week of September 2009.
Kinds returned to work after this discretionary leave and continued working until
October 12, 2009, at which point she had accumulated enough hours of work to become
eligible for FMLA leave. She applied for FMLA leave the following day and did not
work again until returning part-time on December 15, 2009. After her eighth full day
of absence in October, Ohio Bell took three relevant actions: (1) it notified the third-
party administrator of its short-term disability insurance plan, Sedgwick Claims
Management Services (Sedgwick), of Kinds’s absence; (2) it notified its affiliated
FMLA Operations Department in Texas of those same absences; and (3) it sent Kinds
a form that confirmed her eligibility for FMLA leave and also informed her that a claim
for short-term disability benefits had been initiated on her behalf. This form further
indicated that Kinds did not need to submit an FMLA medical certification at that time.
The FMLA Operations Department sent a letter to Kinds on October 21, 2009
that acknowledged her FMLA leave request and stated that her period of absence “will
result in a claim for Short Term Disability Benefits.” In addition, the letter explained
that if Kinds’s claim for disability benefits were approved, then FMLA leave would run
No. 12-4048 Kinds v. Ohio Bell Telephone Co. Page 3
concurrently. And even if the claim were denied, the letter stated that Kinds would still
“have the right to request FMLA consideration,” but would in such event need to have
her healthcare provider submit an “FMLA4” form to document “the medical facts . . . to
support the denied absence period.” The letter further stressed that “[t]he FMLA4 is
only required if your request for disability benefits has been denied.”
Kinds first sought mental health treatment from Paula Reshotko, a licensed
independent social worker, on November 3, 2009. This counseling session was the first
medical treatment that Kinds received during her October to December 2009 absence
from work. Reshotko diagnosed Kinds as having a “severe depression episode” and
recommended further counseling. Kinds saw Reshotko for counseling again on
November 10th and 19th and saw her family physician, Dr. Suzana Sarac-Leonard, also
on November 10th.
On November 24, 2009, Sedgwick sent Kinds a letter explaining that her claim
for short-term disability benefits was approved “for the period of November 10, 2009
through December 14, 2009” but was denied with respect to “the period of October 20,
2009 through November 9, 2009.” Sedgwick determined that Kinds did not have
disability status until November 10th based on both a review of the medical records
furnished by Reshotko and additional information that Reshotko provided in a November
20th telephone call with Sedgwick.
Sedgwick’s approval of disability benefits for a portion of Kinds’s absence
prompted two actions by Ohio Bell: (1) it approved the first week of Kinds’s absence
(October 13th to October 20th) and the period for which she was determined to be
disabled (November 10th to December 14th) for FMLA leave, and (2) it asked Kinds to
submit an FMLA medical certification for the period that was not approved for disability
benefits (October 20th to November 9th). The first action was taken pursuant to Ohio
Bell’s leave policy and the programming of its electronic payroll system. Under that
policy, Ohio Bell automatically approves as FMLA leave the first seven days of an
employee’s period of absence whenever any part of that absence is approved for
disability benefits and the employee is otherwise FMLA-eligible. The second action
No. 12-4048 Kinds v. Ohio Bell Telephone Co. Page 4
(requesting an FMLA medical certification) was taken when Kinds returned to full-time
work on December 29, 2009. Kinds was given until January 13, 2010 to submit the
requested certification.
The deadline passed without Kinds or her healthcare providers submitting any
documentation to support FMLA leave for the period in question. On January 20, 2010,
Kinds asked for an extension. Ohio Bell agreed to the extension and gave Kinds until
January 27th to submit the medical certification. That date also passed with no
submission to Ohio Bell of a medical certification, although Dr. Leonard did send a letter
to Sedgwick on January 22nd certifying that she was providing Kinds “medical
assistance . . . from October 20th to November 11th, 2009.” Sedgewick did not forward
a copy of Dr. Leonard’s letter to Ohio Bell, however, due to the restrictions on the
sharing of private health information imposed by the Health Insurance Portability and
Accountability Act of 1996 (HIPAA). Moreover, Dr. Leonard’s letter did not indicate
what condition constituted Kinds’s alleged disability. On February 2, 2010, Ohio Bell
denied Kinds’s FMLA leave request because it had received no medical certification
verifying her need for leave.
The denial letter explained that “[i]f this request for FMLA has been final[ly]
denied due to circumstances beyond the employee’s control, [the FMLA Operations
Department] must be advised of the reason and provided a valid medical certification
form accompanied by proof of extenuating circumstances within 15 days of the date of
[the] final denial letter dated February 2, 2010.” Dr. Leonard submitted a “FMLA4”
medical certification on February 16th, but neither Kinds nor Dr. Leonard provided any
explanation for why this certification could not have been submitted prior to the January
27th deadline. The FMLA Operations Department notified Kinds on February 22nd that
her FMLA leave request stood as denied.
Ohio Bell determined that Kinds’s absence from October 20th to November 9th
of 2009 was unexcused, putting Kinds at risk of termination due to her prior history of
unexcused absences. She was not actually terminated, however, until March 30, 2010,
after she lost her administrative appeal with Sedgewick regarding the denial of her
No. 12-4048 Kinds v. Ohio Bell Telephone Co. Page 5
disability claim for the period in question. Ohio Bell’s reason for awaiting the outcome
of that appeal was that the FMLA denial would have been automatically rescinded had
Sedgwick ultimately allowed Kinds’s disability-benefits claim. But once Sedgwick
denied Kinds’s appeal, Ohio Bell proceeded to terminate Kinds’s employment the
following day.
II. ANALYSIS
A. Standard of review
We review de novo a district court’s grant of summary judgment, drawing all
reasonable inferences in favor of the nonmoving party. Spees v. James Marine, Inc.,
617 F.3d 380, 388 (6th Cir. 2010). “Summary judgment is proper where no genuine
issue of material fact exists and the moving party is entitled to judgment as a matter of
law.” Id. The central issue is “whether the evidence presents a sufficient disagreement
to require submission to a jury or whether it is so one-sided that one party must prevail
as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986).
B. Ohio Bell properly requested a medical certification under the FMLA
To establish a claim for interference with her FMLA rights, Kinds “must prove
that: (1) she was an eligible employee, (2) the defendant was an employer as defined
under the FMLA, (3) she was entitled to leave under the FMLA, (4) she gave the
employer notice of her intention to take leave, and (5) the employer denied the employee
FMLA benefits to which she was entitled.” Grace v. USCAR, 521 F.3d 655, 669 (6th
Cir. 2008). Only the fifth element of Kinds’s FMLA-interference claim is in dispute.
More specifically, Kinds’s claim is based solely on the alleged failure of Ohio Bell to
timely request the medical certification as required by the applicable FMLA regulation.
The FMLA gives an eligible employee “a total of 12 workweeks of leave during
any 12-month period for . . . a serious health condition that makes the employee unable
to perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D).
An employee entitled to FMLA leave must be restored to his or her former position or
an equivalent position upon completion of leave, and “[t]he taking of leave . . . shall not
No. 12-4048 Kinds v. Ohio Bell Telephone Co. Page 6
result in the loss of any employment benefit accrued prior to the date on which the leave
commenced.” Id. § 2614(a)(1)–(2).
The FMLA prohibits an employer from interfering with an employee’s exercise
of FMLA rights. Id. § 2615(a)(1). But “[a]n employer may require that a request for
[FMLA leave] be supported by a certification issued by the health care provider of the
eligible employee.” Id. § 2613(a). Failure to timely provide a medical certification for
which an employer has properly asked will generally preclude an employee’s FMLA-
interference claim. Frazier v. Honda of Am. Mfg., Inc., 431 F.3d 563, 567 (6th Cir.
2005) (denying the employee’s FMLA claim where the medical certification form was
turned in one day late).
Kinds does not dispute that Ohio Bell had the right to require a medical
certification to verify her eligibility for FMLA leave. She instead contends that Ohio
Bell did not comply with the applicable FMLA regulation when it requested the medical
certification, and therefore her failure to provide the certification by the deadlines set by
Ohio Bell does not foreclose her FMLA-interference claim. Kinds relies specifically on
the following FMLA regulation that governs the timing of medical-certification requests:
In most cases, the employer should request that an employee furnish
certification at the time the employee gives notice of the need for leave
or within five business days thereafter, or, in the case of unforeseen
leave, within five business days after the leave commences. The
employer may request certification at some later date if the employer
later has reason to question the appropriateness of the leave or its
duration. The employee must provide the requested certification to the
employer within 15 calendar days after the employer’s request, unless it
is not practicable under the particular circumstances to do so despite the
employee’s diligent, good faith efforts or the employer provides more
than 15 calendar days to return the requested certification.
29 C.F.R. § 825.305(b).
This regulation, according to Kinds, mandates that an employer request a medical
certification within five business days after receiving notice of the need for leave or else
forfeit the right to request a certification at all. She further argues that the exception to
No. 12-4048 Kinds v. Ohio Bell Telephone Co. Page 7
this mandate—that “[t]he employer may request certification at some later date if the
employer later has reason to question the appropriateness of the leave or its duration,”
29 C.F.R. § 825.305(b)—applies only if there is evidence that an employee acted
fraudulently in seeking FMLA leave. Because Ohio Bell did not request a medical
certification within five business days of receiving notice of Kinds’s leave and was
aware of no information suggesting that Kinds had been dishonest regarding why she
took a leave of absence, Kinds concludes that the request for medical certification on
December 29, 2009 was defective.
Kinds consequently contends that Ohio Bell’s failure to properly request a
medical certification precludes the company from denying her leave for lack of
certification and from subsequently terminating her employment. She specifically relies
on Branham v. Gannett Satellite Information Network, Inc., 619 F.3d 563 (6th Cir.
2010), and Wiseman v. Awreys Bakeries, LLC, ___ F. App’x ___, No. 11-2323, 2013
WL 2233886 (6th Cir. May 22, 2013), to support her argument. But these two cases are
both distinguishable because the employers in those cases did not request FMLA
medical certifications. See Branham, 619 F.3d at 573 (holding that an employer was not
entitled to deny FMLA leave when it had given an employee “no information about the
FMLA certification requirement, the fact that such certification was due within fifteen
days, or the consequences of failing to return an adequate certification”); Wiseman, 2013
WL 2233886, at *3 (reversing the district court’s dismissal of an employee’s FMLA suit
based on the employee’s failure to timely provide a medical certification because the
employer “conceded in its briefing and at oral argument that it did not request a medical
certification”). Ohio Bell, in contrast, unquestionably requested an FMLA medical
certification from Kinds.
Kinds nonetheless maintains that Branham and Wiseman are analogous because,
she contends, Ohio Bell’s medical-certification request was defective. The alleged
defect, however, is based on the employee-fraud requirement that Kinds reads into
29 C.F.R. § 825.305(b). But Kinds’s argument fails because there is nothing in the text
of the FMLA statute or regulations indicating that the discovery of employee fraud is the
No. 12-4048 Kinds v. Ohio Bell Telephone Co. Page 8
only acceptable reason for an employer to request a medical certification after the five-
business-day period following an employee’s notification of leave. In fact, Kinds cites
nothing in the statute or the regulations that makes any reference at all to employee
fraud. Nor does she cite any caselaw to substantiate this highly narrow and nontextual
reading of 29 C.F.R. § 825.305(b). We decline to adopt a regulatory interpretation so
devoid of any statutory, regulatory, or precedential basis.
Instead, we read the FMLA certification regulation according to its plain
meaning and conclude that Ohio Bell’s December 29, 2009 request properly triggered
Kinds’s duty to provide a medical certification within 15 days to verify her need for
leave. Sedgwick’s denial of Kinds’s disability claim for the period in question, while
not sufficient to deny outright her request for FMLA leave, provided an adequate
“reason to question the appropriateness of the leave.” See 29 C.F.R. § 825.305(b). The
standard for disability status under Ohio Bell’s short-term disability insurance policy is
similar enough to the “serious health condition” standard for FMLA leave that denial of
the former at least raises a question as to the appropriateness of the latter.
Moreover, Ohio Bell gave Kinds more than the 15 days required by the FMLA
regulation to comply with its request for medical certification. See id. § 825.305(b).
And because the failure to provide a medical certification is an independent basis for
denying FMLA leave notwithstanding the appropriateness of that leave, we need not
consider whether Kinds actually had a serious health condition during the period in
question. See id. § 825.305(d) (providing that an employer may deny FMLA leave if the
employee fails to submit a complete and sufficient certification); Frazier v. Honda of
Am. Mfg., Inc., 431 F.3d 563, 566–67 (6th Cir. 2005) (forgoing an inquiry into the merits
of the medical condition where the employee submitted the medical certification one day
past the FMLA-compliant deadline).
Ohio Bell, in sum, was not required by either the FMLA statute or the regulations
to promptly exercise its right to request a medical certification when Kinds first gave
notice of her need for leave. It instead properly exercised that right upon having reason
to question the appropriateness of her leave after Sedgwick denied short-term disability
No. 12-4048 Kinds v. Ohio Bell Telephone Co. Page 9
benefits for the full period requested by Kinds. The company’s policy of deferring such
requests is actually beneficial to its employees because only those employees taking
extended leaves for medical issues who have been denied short-term disability benefits
are required to provide medical certifications.
Kinds’s argument is based entirely on a legal interpretation of 29 C.F.R.
§ 825.305(b) that we conclude has no merit. She has not otherwise demonstrated a
genuine issue of material fact on the issue of being denied FMLA benefits to which she
was entitled. We therefore conclude that her FMLA-interference claim fails as a matter
of law.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district
court.