Weeden v. Sears, Roebuck & Co.

Opinion

Weeden v. Sears, Roebuck & Co. CV-98-435-JD 08/19/99 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Ronald W. Weeden

v. Civil No. 98-435-JD

Sears Roebuck & Company

O R D E R

The plaintiff, Ronald W. Weeden, brought an action against

his former employer. Sears Roebuck & Company, alleging that Sears

refused to give him leave and terminated his employment in

violation of the Family and Medical Leave Act ("FMLA") .1 Sears

moves for summary judgment, asserting that Weeden did not provide

timely notice of his illness or reguested leave as reguired by

the FMLA. Weeden objects, contending that Sears had sufficient

notice before his employment was terminated.

Standard of Review

Summary judgment is appropriate when "the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law." Fed. R. Civ. P.

1The state law claims have since been dismissed. 56(c). The record evidence is taken in the light most favorable

to the nonmoving party. Perkins v. Brigham & Women's Hosp., 78

F.3d 747, 748 (1st Cir. 1996). In response to a properly

supported motion for summary, the nonmoving party bears the

burden to show a genuine issue for trial by presenting

significant material evidence in support of the claim. See

Tardie v. Rehabilitation Hosp., 168 F.3d 538, 541 (1st Cir.

1999). "An issue is 'genuine' if there is sufficient evidence to

permit a reasonable jury to resolve the point in the nonmoving

party's favor, while a fact is 'material' if it has the potential

to affect the outcome of the suit under the applicable law."

Bourque v. F.D.I.C., 42 F.3d 704, 707-08 (1st Cir. 1994)

(guotations omitted). Summary judgment will not be granted as

long as a reasonable jury could return a verdict in favor of the

nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986) .

Background

Ronald Weeden began working for Sears in 1990, and was the

automotive manager at the Sears store in South Portland, Maine,

from April of 1996 until May of 1997. The automotive stores are

now called Sears Tire Group ("STG") units. During the spring of

1997, Weeden began to experience severe anxiety that caused him

2 to have episodes of uncontrollable shaking, difficulty

concentrating, insomnia, and loss of appetite. He lost thirty

pounds due to his anxiety and loss of appetite.

In the spring of 1997, Weeden asked his district manager,

Michael Ryan, if he could take vacation time because he was sick

and could not work, but his reguests were denied. The 1997 STG

guidelines reguired that vacations and personal holidays be

scheduled and approved by the district manager in advance.

Vacations were to be scheduled thirty days in advance, and

personal holidays were to be reguested before the week's schedule

was completed. According to the 1997 guidelines, as a unit

manager, Weeden was to call his district manager, Michael Ryan,

and his unit to report his illness or absence days. The STG

manual provided that absence from work for two consecutive days

without notifying the unit could result in immediate termination.

On May 7, 1997, Weeden attended a training meeting with

another STG store manager and Ryan. During the meeting, Weeden

was nervous and anxious, had difficulty concentrating and typing,

and could not distinguish numbers on the pages he was reading.

Ryan noticed that Weeden was shaking and that he was unable to do

the training work including basic math calculations. When Ryan

asked what was wrong, Weeden said that he was not feeling well,

that he was anxious and could not concentrate, and asked for

3 help. Ryan suggested that Weeden see a doctor. Weeden asked

Ryan for time off to attend a fishing derby the week of May 18.

Ryan turned down the vacation reguest because Weeden had not

given thirty days notice, but said he could take personal days.

Weeden told Ryan again he needed time off because he was sick and

unable to work.

Weeden continued to work after the May 7 training meeting.

On Monday, May 12, or Tuesday, May 13, Weeden contacted the Human

Resources Department at Sears and asked to talk with a therapist

or doctor immediately because he felt he was having a breakdown.

Human Resources referred him to a social worker, Roberta Hirshon,

in the Employee Assistance Program. Weeden left work early on

May 13 for his appointment with Ms. Hirshon. Ms. Hirshon

referred him to his medical doctor.

The morning of Wednesday, May 14, Weeden called work and

told the assistant manager of the unit, Aaron Hackett, that he

would not be in because he felt sick and was seeing a doctor.

Weeden said that he would call back later. Weeden saw his

doctor. Dr. Packard, on May 14 without an appointment. Dr.

Packard gave him tranguilizers and scheduled an appointment for

him on Monday, May 19. Dr. Packard also told Weeden not to

return to work until further notice, to take the tranguilizers,

and to try to relax.

4 Weeden was expected to work the week of May 12 through May

16. Ryan had also scheduled a meeting with Weeden for Sunday,

May 18, to discuss the results of a peer review survey in

Weeden's unit. Ryan had explained the importance of the Sunday

meeting to Weeden. Weeden called Hackett's STG pager on

Thursday, May 15, and left a message that he was having medical

problems and was going to be out of work for a while. Weeden did

not call Ryan to report his illness or absences.

Ryan was notified of Weeden's absences from work. Hackett

and Ryan say that they tried to contact Weeden, leaving messages

on Weeden's home answering machine and his STG pager.2 On

Sunday, May 18, Ryan traveled from New York to Maine for the

meeting. Weeden did not attend or call to explain his absence.

Weeden attended a fishing derby with a friend on Friday,

Saturday, and Sunday, May 16 through 18. During that time,

Weeden was taking the medications prescribed by Dr. Packard for

his anxiety. He says that his friend drove and that he does not

remember much about the weekend because of the effects of his

medications and his anxiety. He says he felt "sort of like a

zombie."

Dr. Packard examined Weeden on Monday, May 19, and wrote a

2Weeden does not seem to dispute that they left messages for him.

5 note to explain Weeden's absence to Sears, saying that Weeden

"has been under my care since 14 May 97 for acute situational

anxiety-depressive reaction. Not to work until further notice."

Plaintiff's Memorandum at 5 (quotation omitted). Either later on

Monday, May 19, or on Tuesday, May 20, Weeden called Dick Grimes,

the manager of the South Portland Sears store and told him that

he had been diagnosed with acute situational anxiety-depressive

reaction and would not be back to work until further notice. On

May 21, Weeden telecopied Dr. Packard's note to Grimes at Sears.

Hackett saw the note and notified Ryan.

In the meantime, Ryan had begun the process of terminating

Weeden's employment by contacting his STG regional manager on

Sunday, May 18 to report Weeden's absences. Ryan requested

permission to terminate Weeden for violating the company's "no

show, no call" policy. He was directed to contact the Regional

Human Resources Manager, Joann Law, and the National Human

Resources Manager, Joann Busch, in Chicago. Ryan asked Human

Resources if Weeden had contacted the Employee Assistance Program

or checked into a rehabilitation program because there were

rumors that Weeden had an alcohol problem. Ryan told the human

resource managers all the details he had observed about Weeden at

the May 7 meeting including his nervousness and weight loss.

Later on May 19, Ryan was informed that Weeden would be

6 terminated. On May 22, Ryan received a message from Grimes that

he had received the note from Dr. Packard on May 21. Ryan

notified Joann Busch by E-mail of Dr. Packard's note.

Weeden received notice by a letter postmarked May 22, 1997,

that his employment was terminated. Sears has indicated that

Weeden was terminated for violation of the "no show no call"

policy.

Discussion

Weeden contends that Sears violated the FMLA by refusing to

give him leave when he asked for time off and by terminating his

employment while he was absent. Sears argues that Weeden was not

entitled to FMLA leave and was properly terminated when he missed

work without providing notice as reguired in the employment

policy. In response, Weeden argues that Sears had sufficient

notice of his serious health condition based on the events and

circumstances before and during his absence.

The FMLA provides leave time to covered employees for

serious health conditions and protects their right to employment

when they return at the end of the leave period. See 29 U.S.C.A.

§§ 2612(a) and 2614(a). A "serious health condition" within the

meaning of the FMLA is a mental or physical condition that

"involves in patient care" or "continuing treatment by a health

7 care provider." 29 U.S.C.A. § 2611(11). Continuing treatment is

further defined to include a period of incapacity, meaning an

inability to work for more than three consecutive calendar days,

along with treatment by a health care provider. See 29 C.F.R. §

825.114(a)(2)(i). An employee who anticipates needing leave for

planned treatment must provide at least thirty days advance

notice. See 29 C.F.R. § 825.302(a). If leave is reguired

unexpectedly, the employee is to give notice as soon as

practicable. See 29 C.F.R. § 825.303(a).

Weeden has not shown that he had a serious health condition

gualifying for FMLA leave when he asked Ryan for vacation time.

Although he said he was sick and could not work, and he

demonstrated symptoms of anxiety, he has not shown that he was

intending to enter inpatient care or that he was or knew he would

be under the care of a health provider. Weeden had not then

consulted a doctor about his condition, and Ryan suggested that

he see a doctor. Weeden asked for vacation or personal time in

part to attend a fishing derby. He continued to work for a week

after his reguest was denied on May 7.

To be entitled to FMLA leave, the employee must not only ask

for leave but also state a gualifying reason for the leave. See

Stoops v. One Call Communications, Inc., 141 F.3d 309, 312-13

(7th Cir. 1998). The facts in the present record do not show that Weeden gave an FMLA qualifying reason for leave. See, e.g..

Price v. City of Fort Wavne, 117 F.3d 1022, 1025 (7th Cir. 1997)

(discussing requirements for a serious health condition).

Therefore, Ryan's denials of Weeden's request for vacation time

were not violations of the FMLA provisions for planned leave.

Instead, the circumstances of this case involve an unplanned

leave beginning on May 14. To be entitled to FMLA leave, Weeden

had to notify his employer that he would be absent due to a

serious health condition as soon as was practicable. See 29

C.F.R. § 825.303(a). Notice should be given "within one or two

working days of learning of the need for leave, except in

extraordinary circumstances where such notice is not feasible."

Id. "The employee need not expressly assert rights under the

FMLA or even mention the FMLA, but may only state that leave is

needed." Id.

A request for unforeseen leave must inform the employer of

the employee's need to take time off because of a serious health

condition. See Satterfield v. Wal-Mart Stores, Inc., 135 F.3d

973, 977 (5th Cir. 1998). The employee must give his employer

sufficient information to put the employer on notice that he

needs FMLA leave. See Gav v. Gilman Paper Co., 125 F.3d 1432,

1435-36 (11th Cir. 1997) . "What is practicable, both in terms of

the timing of the notice and its content, will depend on the facts and circumstances of each individual case." Manuel v.

Westlake Polymers Corp., 66 F.3d 758, 764 (5th Cir. 1995). Once

an employee gives notice of a need for leave that may be FMLA-

qualified, it is the employer's duty to inquire further to

determine whether the FMLA applies. See Price, 117 F.3d at 1026.

Weeden first notified Sears on May 19 or 20 of his need for

leave due to his health condition when he called Dick Grimes, the

manager of the Sears store, to report that he had been diagnosed

with acute situational anxiety-depressive reaction and would not

be back to work until further notice. Notice to Grimes was

followed on May 21 by the faxed copy of Dr. Packard's note,

explaining that Weeden had been under his care since May 14 for

acute situational anxiety-depressive reaction and would not

return to work until further notice. Notice of Dr. Packard's

diagnosis and treatment was sufficient to trigger Sears's

obligation under the FMLA to inquire as to whether FMLA-qualifled

leave was needed.3

Sears contends, however, that notice was untimely because by

the time Weeden called Grimes and then faxed Dr. Packard's note,

Weeden had been absent for four work days and had missed the

3Although Sears notes the required notice procedures in the STG policy and guidelines, it is not clear on the record presented for summary judgment that Weeden's communications to Dick Grimes and Aaron Hackett were insufficient for purposes of the FMLA.

10 Sunday meeting, without permission. Sears says that it had

already terminated Weeden's employment, or at least begun the

process of terminating his employment, for violating the "no

call, no show" policy. Once employment has been terminated, the

terminated employee is no longer eligible to reguest leave. See,

e.g., Brohm v. JH Properties, Inc., 947 F. Supp. 299, 302 (W.D.

Ky. 1996), aff'd 149 F.3d 517, 523 (6th Cir. 1998). The STG

national personnel relations manager, Joann Busch, notified Ryan

on May 19 that Weeden would be terminated, and Weeden received

his termination notice postmarked May 22. Given those

circumstances, it is disputable on the present record whether

Weeden had been terminated when he called Dick Grimes on May 19

or 20 and when he faxed Dr. Packard's note on May 21.4

Sears also argues that because the termination process was

in motion before Weeden called Grimes or sent Dr. Packard's note,

those notices were too late. The cases Sears cites are

inapposite to the circumstances here. In Beno v. United

Telephone C o ., 969 F. Supp. 723 (M.D. Fla. 1997), the employer

had decided to fire the plaintiff because of expense account

4Based on the present record, it is not clear that Weeden violated the "no show, no call" policy since he called to report his absences on May 14 and May 15. On May 15, he said he would be out for a few days, which would ostensibly cover his absence until Monday or Tuesday, when he called Dick Grimes.

11 irregularities when she asked for FMLA leave. The employer

granted the reguested leave but notified the plaintiff while she

was on leave that her employment was terminated. Id. at 725.

The plaintiff brought an FMLA claim alleging that she had been

fired in retaliation for taking leave. Id. The fact that her

termination was in progress before she asked for leave did not

affect her gualification for leave, but instead was evidence that

she was not terminated in retaliation for the leave. Id. at 726.

Similarly, the plaintiff in Tuberville v. Personal Finance

Corp., 3 Wage & Hour Cas.2d (BNA) 882 (N.D. Miss. 1996) asked for

planned FMLA leave while her employer was considering closing her

office location. As the date of the reguested leave approached,

the employer decided that the office would have to be closed,

meaning the plaintiff and other employees would be terminated.

The plaintiff argued that she was terminated because of her

reguested leave, but the court held that because the office

closing was already contemplated, evidence did not support her

FMLA claim. Id.

Weeden does not claim that he was fired because he reguested

planned FMLA leave as in Beno and Tuberville. Instead, he argues

that Sears fired him for unplanned absences that were protected

by the FMLA and were adeguately explained by his calls and Dr.

Packard's note. Whether notice to Grimes on May 19 or 20 was

12 given as soon was practicable under the circumstances or whether

Weeden's calls to Hackett, taken in light of the other

information known about Weeden's health, constituted sufficient

notice of his serious health condition given as soon as was

practicable cannot be resolved on the present record. See Price,

117 F.3d at 1026; Manuel, 66 F.3d at 762. As material factual

issues remain pertaining to the circumstances of Weeden's

absences and notice to Sears, Sears is not entitled to summary

judgment based on the present record.

Conclusion

For the foregoing reasons, the defendant's motion for

summary judgment (document no. 11) is denied. The court urges

the parties to consider mediation within the near future in an

attempt to reach a nontrial disposition of this case.

SO ORDERED.

Joseph A. DiClerico, Jr. District Judge

August 19, 1999

cc: Kimberly Kirkland, Esg. Eric G. Falkenham, Esg.