White v. Ag Supply Company of Wenatchee, No. 2:2015cv00089 - Document 23 (E.D. Wash. 2016)
Court Description: ORDER GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT. Defendants Motion for Summary Judgment ECF No. 10 is GRANTED. The file is CLOSED. Signed by Chief Judge Thomas O. Rice. (LLH, Courtroom Deputy)
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White v. Ag Supply Company of Wenatchee Doc. 23 1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 MARK WHITE, NO: 2:15-CV-0089-TOR Plaintiff, 8 9 10 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT v. AG SUPPLY COMPANY OF WENATCHEE, 11 Defendant. 12 13 BEFORE THE COURT is Defendant’s Motion and Memorandum for 14 Summary Judgment (ECF No. 10). This matter was submitted for consideration 15 without oral argument. The Court—having reviewed the briefing, the record, and 16 files therein—is fully informed. 17 18 BACKGROUND Plaintiff Mark White commenced this action on April 2, 2015. ECF No. 1. 19 In his Complaint, White alleges that his employer, Defendant Ag Supply Company 20 of Wenatchee (“Ag Supply”), interfered with, restrained, or denied White his rights ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 under the Family Medical Leave Act (“FMLA”) when Ag Supply refused to 2 modify White’s work schedule so that he could care for his mother. Id. 3 In the instant motion, Ag Supply moves for summary judgment on White’s 4 sole FMLA claim, asserting that White was not entitled to FMLA leave and failed 5 to provide adequate notice of his desire to take leave. ECF No. 10. 6 FACTS 7 Ag Supply employed White in its East Wenatchee, Washington, Ace 8 Hardware store from May 28, 2002, to August 11, 2014. ECF No. 11 ¶ 1; see ECF 9 No. 18 (undisputed). As a sales supervisor, White was primarily responsible for 10 assisting customers and supervising employees. ECF No. 11 ¶ 3; see ECF No. 18 11 (undisputed). 12 Ag Supply had a policy governing FMLA leave. ECF No. 11 ¶¶ 4-5; see 13 ECF No. 15-1 at 5-6 (Guidelines Excerpt). Employees, such as White, had access 14 to this policy; indeed, White signed a form in March 2014 acknowledging that he 15 read the company’s personnel guidelines, which included its FMLA policy. ECF 16 No. 15-1 at 2 (Acknowledgement Form). Pursuant to the guidelines and in 17 accordance with FMLA regulations, Ag Supply required employees to provide the 18 company with advance leave notice—at least 30 days—if the leave reason is 19 foreseeable. ECF No. 15-1 at 6. If advance notice was not provided, Ag Supply 20 retained the right to deny the request until at least 30 calendar days after the date of ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 notice. Id. If 30 calendar days was not practicable, the employee was required to 2 give notice “as soon as practicable, usually within one or two business days of 3 when the need for leave becomes known to you.” Id. 4 During the relevant time period, the East Wenatchee store was open to the 5 public from 7:00 a.m. to 8:00 p.m., Monday through Saturday, and from 8:00 a.m. 6 to 5:00 p.m. on Sunday. ECF No. 11 ¶ 7; see ECF No. 18 (undisputed). Sales 7 supervisors generally worked one of three shifts: the morning shift (6 a.m. to 3:30 8 p.m.), the afternoon shift (9:00 a.m. to 5:30 p.m.), or the evening shift (12:00 p.m. 9 to 8:30 p.m.). ECF No. 11 ¶ 8; see ECF No. 18 (undisputed). 10 White had worked all three shifts at various times during his employment. 11 ECF No. 11 ¶ 9; see ECF No. 18 (undisputed). In mid-July 2014, the time period 12 relevant to White’s Complaint, White’s work schedule included some evening 13 shifts. ECF No. 11 ¶ 12; see ECF No. 18 (undisputed). 14 White’s work shifts became an issue in the summer of 2014. Since at least 15 2011, White’s mother, Lucille White, suffered from dementia. See ECF Nos. 18 ¶ 16 22; 20 ¶ 10. Some months before July 2014, White, who lived with his mother, had 17 noticed her condition was deteriorating and employed a caretaker to provide part- 18 time care. ECF No. 12-2 at 5, 7 (White Deposition). On Wednesday, July 23, 2014, 19 Pamela Coffell, an investigator and social worker for the Department of Social and 20 Health Services, assessed Ms. White and advised White that she required 24-hour ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 care and that White needed a more consistent work schedule to develop a plan of 2 care. ECF No. 18 ¶ 6. 3 That same day, White spoke to his immediate supervisor, Daniel Paskins, 4 and briefly informed him of White’s concerns regarding the care for his mother. 5 ECF No. 18 ¶ 7. The next day, on Thursday, July 24, 2014, White again spoke with 6 Paskins, this time expressly telling Paskins that he would be unable to work 7 closing shifts and needed a consistent work schedule in order to help care for his 8 mother. ECF Nos. 11 ¶ 14; 18 ¶ 9. 9 On Monday, July 28, 2014, White gave Paskins a letter, signed by Ms. 10 Coffell, which requested White “receive a consistent work schedule to allow for 11 his mother’s plan of care,” with ideal hours between 8:00 a.m. and 5:00 p.m., 12 Monday through Friday. ECF Nos. 11 ¶ 24; 18 ¶ 12; see ECF No. 15-1 at 25 13 (Coffell Letter). Although Paskins tells a different version of the conversation that 14 followed, White asserts that Paskins informed him that he could only take leave in 15 blocks of time, such as days or weeks. ECF No. 18 ¶ 13. Understanding that his 16 schedule would not be immediately fixed, White submitted his 2-week letter of 17 resignation later that day. 1 ECF Nos. 11 ¶ 29; 18 ¶ 20; 15-1, Ex. J. 18 19 1 20 No. 18 (undisputed). White’s last day of employment was August 11, 2014. ECF No. 11 ¶ 31; see ECF ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 On August 4, 2014, Dr. Havlicek, Ms. White’s “main” provider, ECF No. 2 12-2 at 6 (White Deposition), examined Ms. White. ECF No. 20-1 at 2-3. Before 3 this time, Dr. Havlicek had not seen Ms. White for three years. See ECF No. 20-1 4 at 2 (Dr. Havlicek Progress Notes). Dr. Havlicek found that Ms. White has “severe 5 dementia” and opined that she required 24-hour supervision and that it would be 6 unsafe for her to be alone for long periods of time. ECF No. 18 ¶ 21; see ECF No. 7 20-1 at 2-3. Later that month, Ms. White was admitted to Cashmere Convalescent 8 Center and has remained under the care of Dr. Timiras of Confluence Health. ECF 9 No. 12-1 at 22-27 (Medical Records). 10 DISCUSSION 11 A. Legal Standard 12 Summary judgment may be granted to a moving party who demonstrates 13 “that there is no genuine dispute as to any material fact and the movant is entitled 14 to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party bears the 15 initial burden of demonstrating the absence of any genuine issues of material fact. 16 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the 17 non-moving party to identify specific facts showing there is a genuine issue of 18 material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). “The 19 mere existence of a scintilla of evidence in support of the plaintiff’s position will 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 be insufficient; there must be evidence on which the jury could reasonably find for 2 the plaintiff.” Id. at 252. 3 For purposes of summary judgment, a fact is “material” if it might affect the 4 outcome of the suit under the governing law. Id. at 248. A dispute concerning any 5 such fact is “genuine” only where the evidence is such that the trier-of-fact could 6 find in favor of the non-moving party. Id. “[A] party opposing a properly supported 7 motion for summary judgment may not rest upon the mere allegations or denials of 8 his pleading, but must set forth specific facts showing that there is a genuine issue 9 for trial.” Id. (internal quotation marks and alterations omitted). Moreover, 10 “[c]onclusory, speculative testimony in affidavits and moving papers is insufficient 11 to raise genuine issues of fact and defeat summary judgment.” Soremekun v. 12 Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007); see also Nelson v. Pima 13 Cmty. Coll., 83 F.3d 1075, 1081-82 (9th Cir. 1996) (“[M]ere allegation and 14 speculation do not create a factual dispute for purposes of summary judgment.”). 15 In ruling upon a summary judgment motion, a court must construe the facts, 16 as well as all rational inferences therefrom, in the light most favorable to the non- 17 moving party, Scott v. Harris, 550 U.S. 372, 378 (2007), and only evidence which 18 would be admissible at trial may be considered, Orr v. Bank of Am., NT & SA, 285 19 F.3d 764, 773 (9th Cir. 2002). See also Tolan v. Cotton, 134 S. Ct. 1861, 1863 20 (2014) (“[I]n ruling on a motion for summary judgment, the evidence of the ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 nonmovant is to be believed, and all justifiable inferences are to be drawn in his 2 favor.” (internal quotation marks and brackets omitted)). 3 B. Family Medical Leave Act 4 “The FMLA provides job security to employees who must be absent from 5 work because of their own illnesses, to care for [] family members who are ill, or 6 to care for new babies.” Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1119 7 (9th Cir. 2001) (citing 29 U.S.C. § 2612). The Act represents Congress’ attempt to 8 strike a balance between “the needs of both employees and their employers,” id., 9 entitling “employees to take reasonable leave for medical reasons . . . in a manner 10 that accommodates the legitimate interests of employers,” 29 U.S.C. § 2601(b)(2), 11 (3). “To that end, ‘[t]he FMLA creates two interrelated, substantive employee 12 rights: first, the employee has a right to use a certain amount of leave for protected 13 reasons, and second, the employee has a right to return to his or her job or an 14 equivalent job after using protected leave.’” Sanders v. City of Newport, 657 F.3d 15 772, 777 (9th Cir. 2011) (quoting Bachelder, 259 F.3d at 1122). 16 At issue here is an employee’s right to use leave to which he is entitled. 17 Under 29 U.S.C. § 2615(a)(1), known as the “interference or “entitlement” claim, 18 it is “unlawful for any employer to interfere with, restrain, or deny the exercise of 19 or the attempt to exercise” the substantive rights guaranteed by the FMLA. 20 Sanders, 657 F.3d at 777-78. To make out a prima facie case of FMLA ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 interference, an employee must establish that “(1) he was eligible for the FMLA’s 2 protections, (2) his employer was covered by the FMLA, (3) he was entitled to 3 leave under the FMLA, (4) he provided sufficient notice of his intent to take leave, 4 and (5) his employer denied him FMLA benefits to which he was entitled.” Id. at 5 778. 6 For purposes of the instant motion, Ag Supply does not dispute that White 7 was eligible for FMLA’s protections, Ag Supply was covered by the FMLA, and 8 Ag Supply denied White’s request for an immediate modified work schedule. 9 Rather, Ag Supply focuses on the third and fourth elements of White’s prima facie 10 case, asserting that White was not entitled to FMLA leave at the time of his request 11 and that he failed to provide adequate notice of his intent to take leave. This Court 12 will address each argument in turn. 13 14 1. Entitlement to Leave The FMLA entitles an employee to take leave in order to care for a parent 15 with a serious health condition, as defined under the Act and its implementing 16 regulations. 29 U.S.C. § 2612(a)(1)(C); 29 C.F.R. § 825.201(a). The FMLA 17 defines “serious health condition” as “an illness, injury, impairment, or physical or 18 mental condition that involves . . . (A) inpatient care in a hospital, hospice, or 19 residential medical care facility; or (B) continuing treatment by a health care 20 provider.” 29 U.S.C. § 2611(11). “[C]ontinuing treatment,” when the employee or ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 family member suffers from a period of incapacity which is permanent or long- 2 term, is defined as “the continuing supervision of . . . a health care provider.” 29 3 C.F.R. § 825.115(d). In turn, the FMLA defines “health care provider” as “(A) a 4 doctor of medicine or osteopathy who is authorized to practice medicine or surgery 5 (as appropriate) by the State in which the doctor practices; or (B) any other person 6 determined by the Secretary to be capable of providing health care services.” 29 7 U.S.C. § 2611(6); see 29 C.F.R. § 825.125(b) (enumerating included health care 8 providers). 9 While Ag Supply acknowledges that Ms. White suffered from dementia 10 during the relevant time period, it asserts that the undisputed facts show Ms. White 11 was not under the supervision of a health care provider when White requested that 12 his schedule be immediately modified. ECF Nos. 10 at 2-5; 21 at 2-6. In response, 13 White contends that his mother saw Dr. Havlicek, a qualified health care provider, 14 about one week after White put in his leave request and was admitted for inpatient 15 care within a month. ECF No. 17 at 6-10. However, White appears to concede that 16 Ms. White was not under continual supervision of a health care provider in late 17 July 2014.2 See id. at 7 (“[Ag Supply’s] hair-splitting argument is that Ms. White 18 19 2 20 years 2010 to 2012 from Confluence Health but has not yet received any records. White contends that he requested copies of his mother’s medical records for the ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 was not suffering from a permanent or long term condition because she had not 2 been continually supervised by a health care provider.”). 3 This Court finds the undisputed evidence shows Ms. White was not under 4 the “continuing supervision of . . . a health care provider,” and thus White was not 5 entitled to take immediate leave when he so requested in late July 2014. At the 6 time White requested leave, Ms. White suffered from dementia, but it is undisputed 7 that she was not under the continuing supervision of a qualified health care 8 provider. While Ms. Coffell, a social worker, assessed Ms. White in late July 2014, 9 she is not a health care provider as defined under the FMLA. ECF No. 18 ¶ 6; see 10 29 C.F.R. § 825.125(b) (defining “health care provider” to include “clinical social 11 workers”). Dr. Havlicek, Ms. White’s “main” health care provider, did not treat or 12 supervise Ms. White during the period between April 2011 and August 4, 2014, 13 ECF No. 18 ¶¶ 21, 22; see ECF No. 20-1 at 2 (Dr. Havlicek’s Progress Notes), and 14 15 16 17 ECF Nos. 18 ¶ 29; 20 ¶ 10. White has not asked this Court for a continuance of this 18 summary judgment hearing, and it appears White has had adequate time to secure 19 any relevant records; White commenced this action in April 2015, almost one year 20 ago. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 White has presented no other medical records to demonstrate that any other health 2 care provider saw her for her dementia at any time during this period.3 The fact that Ms. White received care and treatment starting in August 2014, 3 4 subsequent to White’s leave request and resignation, is insufficient under a plain 5 reading of the Act and its implementing regulations. See 29 U.S.C. § 2612(a)(1)(C) 6 (entitling an employee to leave to care for a parent “if such . . . parent has a serious 7 health condition” (emphasis added); 29 C.F.R. § 825.115(d) (“The employee or 8 family member must be under the continuing supervision of, but need not be 9 receiving active treatment by, a health care provider.” (emphasis added)). White’s 10 citation to case law holding that a family member does not need to be diagnosed 11 with a serious health condition before the leave request is inapplicable: the issue is 12 not whether Ms. White was diagnosed with dementia or otherwise incapacitated 13 but whether she was under continual supervision for this disorder. 14 It is not the role of this Court to expand the scope of FMLA coverage. 15 Based on the undisputed facts, Ms. White was not under the continual supervision 16 of a health care provider at the time White requested leave on her behalf; 17 18 19 3 20 unrelated to her dementia. ECF No. 18 ¶ 23. Ms. White visited a dermatologist in the summer of 2013, but this visit was ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 accordingly, White was not entitled to FMLA leave when he so requested and his 2 prima facie case fails on this basis. 3 4 2. Notice of Intent to Take Leave Alternatively, even assuming that Ms. White’s subsequent medical care is 5 sufficient to satisfy the continual supervision standard under the FMLA 6 regulations, White’s claim also fails because he failed to provide Ag Supply 7 adequate notice of his intent to take leave. 8 Generally, an employee is required to give his employer advance notice 9 before requesting leave. 29 C.F.R. §§ 825.302(a), 825.303(c). If the need for leave 10 is foreseeable, “[a]n employee must provide the employer at least 30 days advance 11 notice before FMLA leave is to begin.” Id. § 825.302(a); see Bachelder, 259 F.3d 12 at 1130. If 30 days advance notice is not practicable, notice must be given as soon 13 as both possible and practical. See 29 C.F.R. § 825.302(a), (b). Conversely, 14 “[w]hen the approximate timing of the need for leave is not foreseeable, an 15 employee must provide notice to the employer as soon as practicable under the 16 facts and circumstances of the particular case.” Id. § 825.303(a) (emphasis added); 17 Bachelder, 259 F.3d at 1130. 18 To constitute adequate notice, “[t]he employee need not expressly assert 19 rights under the FMLA or even mention the FMLA, but may only state that leave 20 is needed for a qualifying reason.” 29 C.F.R. § 825.302(c). Instead, “[e]mployees ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 need only notify their employers that they will be absent under circumstances 2 which indicate that the FMLA might apply . . . .” Bachelder, 259 F.3d at 1130; see 3 Price v. City of Fort Wayne, 117 F.3d 1022, 1026 (7th Cir. 1997) (“The FMLA 4 does not require that an employee give notice of a desire to invoke the FMLA. 5 Rather, it requires that the employee give notice of need for FMLA leave.”). 6 Failure to give adequate notice may result in a delay in coverage. “When the 7 need for FMLA leave is foreseeable at least 30 days in advance and an employee 8 fails to give timely advance notice with no reasonable excuse, the employer may 9 delay FMLA coverage until 30 days after the date the employee provides notice.” 10 29 C.F.R. § 825.304(b). “When the need for FMLA leave is foreseeable fewer than 11 30 days in advance and an employee fails to give notice as soon as practicable 12 under the particular facts and circumstances, the extent to which an employer may 13 delay FMLA coverage for leave depends on the facts of the particular case.” Id. § 14 825.304(c). “When the need for FMLA leave is unforeseeable and an employee 15 fails to give notice . . . , the extent to which an employer may delay FMLA 16 coverage for leave depends on the facts of the particular case. Id. § 825.304(d). “In 17 all cases . . . it must be clear that the employee had actual notice of the FMLA 18 notice requirements.” Id. § 825.304(a). 19 20 Ag Supply contends that White failed to provide advance notice of his desire to take leave. ECF No. 10 at 5. At most, White provided 5 days’ notice of his ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 demand for an immediate fixed schedule and with no justification for the lack of 2 greater notice. ECF No. 21 at 6. In response, White contends he provided adequate 3 notice: he contends that he was unaware his mother needed 24-hour care until July 4 23, 2014, and he informed Ag Supply that same day. ECF No. 17 at 10-11. 5 As an initial matter, the parties do not genuinely dispute that White had 6 actual notice of the FMLA notice requirements. While White contends he chose 7 not to read Ag Supply’s FMLA leave policy, he signed the acknowledgement form 8 affirming that he “read the Ag Supply . . . Personnel Guidelines,” which included 9 the company’s FMLA leave policy and notice requirements. See ECF No. 15-1 at 2 10 11 (Acknowledgement Form). It is also undisputed that White first requested leave, at the earliest, on July 12 23, 2014, when he spoke to his supervisor about his mother’s condition and her 13 need for greater care. ECF No. 18 ¶ 19. Five calendar days later, when Paskins did 14 not immediately approve White’s schedule request, White resigned. Id. Thus, 15 White gave Ag Supply, at most, five days’ advance notice of his desire to take 16 FMLA leave. 17 The issue then, is whether White’s reason for requesting leave was 18 foreseeable. Construing the facts in the light most favorable to White, this Court 19 finds a reasonable jury could reach but one conclusion: White’s reason for leave 20 was foreseeable. White contends his mother’s dementia existed since at least 2011. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 ECF No. 18 ¶ 22. And about eight months prior to July 23, 2014, when he first put 2 Ag Supply on notice of his leave request, White hired a part-time caretaker for his 3 mother. See ECF No. 12-2 at 5 (White Deposition). Although Ms. Coffell first told 4 White that his mother needed 24-hour supervision on July 23, 2014, ECF No. 18 ¶ 5 6, White admitted that he began noticing changes in his mother’s condition months 6 prior to this date, ECF No. 12-2 at 7 (White Deposition). After all, White lived 7 with his mother and personally witnessed the changes. Id. 8 9 Because White’s reason for leave was foreseeable, he was obligated to provide Ag Supply 30 days advance notice of his intent to take leave. Instead, 10 White provided Ag Supply, at most, five calendar days advance notice. Ag Supply 11 was thus permitted under the regulations to delay White’s leave request until 30 12 days after White first provided notice, which was several weeks after White’s 13 resignation went into effect. Accordingly, White’s claim fails for lack of adequate 14 notice as well. 4 15 16 4 17 to employees, had the right to require that the leave-requesting employee provide 18 medical certification in support of a leave request. See ECF No. 15-1 at 6. Under 19 the regulations, “the employer should request that an employee furnish certification 20 at the time the employee gives notice of the need for leave or within five business It is worth noting that Ag Supply, pursuant to its written FMLA policy available ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15 1 That White was put in an untenable position is understandable, but the 2 FMLA does not provide a remedy for all leave requests, only those strictly within 3 its coverage. 4 ACCORDINGLY, IT IS ORDERED: 5 Defendant’s Motion for Summary Judgment (ECF No. 10) is GRANTED. 6 The District Court Executive is directed to enter this Order, provide copies 7 8 to counsel, enter JUDGMENT for Defendant, and close the file. DATED February 23, 2016. 9 10 THOMAS O. RICE Chief United States District Judge 11 12 13 14 15 16 17 days thereafter . . . .” 29 C.F.R. § 825.305. Under the timeline presented here, five 18 business days had not passed before White turned in his letter of resignation. 19 White would not have had the required documentation until August 4, 2014, but by 20 then he had already resigned. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 16
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