forced to work three consecutive shifts. See, Affidavit of
Plaintiff, Exhibit 3, ¶ 7. During this time, Plaintiff was
experiencing both physical and mental exhaustion. See,
Affidavit of Stevenson, Exhibit 4, ¶ 11. She would cry openly at
work before both employees and management. Id., at ¶ 14. For
example, Plaintiff would display her emotions to Florine
Stevenson, who at the time was the manager in the area of
admissions, medical records and marketing. Concerned about
Plaintiff, Ms. Stevenson spoke to Dr. Marion Rodriguez, the
Administrator for Defendant, about how Mel Causey, Executive
Director for Defendant, and Ms. Hall were treating Plaintiff by
overworking her "to the point of exhaustion" and how Plaintiff
was becoming "increasingly depressed and despondent." Id., at ¶
19; see, Exhibit 17, p. 4.
After working a full shift on December 8, 1997, Plaintiff
became physically ill with diarrhea. See, Exhibit 3, ¶ 11.
Plaintiff's symptoms continued on December 9, 1997. As a result,
she called into work and took a personal day. On December 10,
1997, her symptoms persisted and she called into work and spoke
to Ms. Hall. She informed Ms. Hall that her condition "had
regressed and that [she] was not only suffering from diarrhea,
but also from vomiting and chest pain." See, Exhibit 3, ¶ 13.
She also informed Ms. Hall that she was going to see her doctor,
Dr. Maryellen Schroeder, on December 11, 1997. Id., ¶ 14. Dr.
Schroeder diagnosed Plaintiff as suffering from clinical
depression and prescribed PROZAC and counseling. See,
Plaintiff's Depo., p. 80; see also, Affidavit of Schroeder,
Exhibit 8, ¶ 4. In addition, Dr. Schroeder advised Plaintiff to
take a medical leave of absence from work until January 11, 1998.
See, Exhibit 16.
After her doctor's appointment, Plaintiff called Ms. Hall to
inform her that Dr. Schroeder advised her "to stay home from work
until at least January 11, 1998." See, Exhibit, 3 ¶ 15. At that
time, Plaintiff did not indicate her exact diagnosis to Ms. Hall.
During this conversation, Plaintiff did not specifically mention
that she was taking this time pursuant to the FMLA or that she
was requesting medical leave as a reasonable accommodation
pursuant to the ADA. Ms. Hall advised Plaintiff, inter alia,
that she required a note from Plaintiff's doctor concerning
Plaintiff's condition. Id., ¶ 16; see also, Exhibit 15.
Furthermore, it is undisputed that Plaintiff never received any
written notice from Defendant regarding her obligations pursuant
to the FMLA and Defendant's policies and procedures. See,
Exhibit 3, ¶¶ 17-18.
On December 13, 1997, Plaintiff went to her office at
Defendant's facility and retrieved personal and work related
items out of fear that they may be stolen. See, Plaintiff's
Depo., pp. 62-63.
On December 19, 1997, Kevin Jordan, Director of Human Resources
for Defendant, called Plaintiff and verbally requested that she
provide a medical certificate. See, Exhibit 3, ¶ 19. There is a
dispute as to whether he mentioned the FMLA and the consequences
of Plaintiff's failure to provide said certificate within a
particular time frame. See, id; see also, Defendant's Brief in
Support of its Motion, p. 4.
On December 22, 1997, Plaintiff had an appointment with Andrew
Kolar, L.S.W., for the counseling prescribed by Dr. Schroeder.
See, Exhibit 3, ¶ 21; see also, Exhibit 13. Plaintiff
continued her counseling with Kolar until June 13, 1998, and
continued with PROZAC beyond then. See, Plaintiff's Depo. pp.
On December 25, 1997, Plaintiff suffered a severe panic attack,
prompting Ms. Stevenson to call 911. See, Plaintiff's Depo. p.
58; see also, Exhibit 4, ¶ 26. Thereafter, Ms. Stevenson began
to look after Plaintiff and organized the aid of other employees
of Defendant to assist her in cooking and bathing Plaintiff.
See, Exhibit 4, ¶ 29; Affidavit of Lillie Lee, Exhibit 24, ¶
On December 26, 1997, Jordan called Plaintiff again and
informed her that he and not received the medical certificate
from her doctor. See, Plaintiff's Depo. p. 66. She explained to
him that Dr. Schroeder was out of the office until Monday,
December 30, 1997, and she could not get it until then. Id. On
December 29, 1997, Plaintiff received a letter of termination
from Defendant. See, Exhibit 15; see also, Exhibit 3, ¶ 26.
The letter states as follows:
On December 8, 1997, you called off sick. On December
11, 1997, you requested a leave of absence due to an
unspecified illness. At that time, MS. L. Parker-Hall
(Director of Nursing) informed you that you had to
submit your medical certification by no later than
the close of business on Friday, December 26, 1997,
which you failed to do.
Pursuant to Lemington's FMLA policy, you were given
15 days to provide the requested medical
certification in order to be granted a medical leave.
Since you have failed to provide the requested
medical certification within the 15 day period, your
request for medical leave has been denied.
Because of your failure to cooperate by providing the
requested medical certification and your removal of
both personal and work-related items from your office
while off, Lemington has deemed you to have
voluntarily quit your employment effective today,
Monday, December 29, 1997.
You must therefore, return any keys, badges and any
other property belonging to Lemington Center to me
immediately. Lemington will send your personal
belongings, if any that remain on its premises, to
On December 30, 1997, Plaintiff was seen by Dr. Schroeder. Dr.
Schroeder wrote a letter to Jordan informing him that she advised
Plaintiff to take a medical leave of absence until January 11,
1998, at which time she would need to be reevaluated. See,
Exhibit 16. At that time, Plaintiff was only slightly better, so
Dr. Schroeder continued to prescribe the Prozac and counseling.
See, Affidavit of Dr. Schroeder, ¶ 5. Plaintiff was reevaluated
by Dr. Schroeder on January 20, 1998. See, Affidavit of Dr.
Schroeder, ¶ 6. Plaintiff was doing better, but Dr. Schroeder
recommended that she remain off work for at least another eight
weeks and continued treating her with Prozac for at least the
next six months. Id. Plaintiff's Prozac was increased to 30 mg
on March 2, 1998. Id., ¶ 7. As of February 2, 2001, Plaintiff
has continued to take Prozac and her depression is ongoing.
See, Affidavit of Dr. Lawrence Glanz, Exhibit 21.
On November 22, 1999, Plaintiff filed a three count Complaint
against Defendant. See, Complaint. The first two counts are
brought pursuant to the FMLA. Count I asserts a cause of action
for violation of the FMLA for denying her medical leave. Count II
asserts a cause of action for retaliation for taking the medical
leave she requested. The third count asserts a cause of action
pursuant to the ADA.
Initially, Plaintiff filed a Motion for Partial Summary
Judgment as to her two FMLA counts. See, Docket No. 13.
Defendant has cross filed a Motion for Summary Judgment as to
Plaintiff's FMLA counts and has further filed a Motion for
Summary Judgment as to Plaintiff's ADA claim. See, Docket No.
15. Plaintiff opposes Defendant's Motion for Summary
Judgment.*fn2 See, Docket No. 20. Thereafter, Defendant sought
leave of court to file a reply brief on the issue of damages. I
granted leave of court on February 13, 2001, and on February 16,
2001, Defendant filed its Reply Brief. See, Docket No. 23.
II. LEGAL ANALYSIS
A. Standard of Review
Summary judgment may only be granted if the pleadings,
depositions, answers to interrogatories and admissions on file,
together with any affidavits, show that there is no genuine issue
as to any material facts and that the moving party is entitled to
judgment as a matter of law. FedR.Civ.P. 56(c). A fact is
material when it might affect the outcome of the suit under the
governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Rule 56 mandates the
entry of judgment, after adequate time for discovery and upon
motion, against the party who fails to make a showing sufficient
to establish the existence of an element essential to that
party's case, and on which that party will bear the burden of
proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
In considering a motion for summary judgment, the Court must
examine the facts in the light most favorable to the party
opposing the motion. International Raw Materials, Ltd. v.
Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir. 1990). The
burden is on the moving party to demonstrate that the evidence is
such that a reasonable jury could not return a verdict for the
non-moving party. Anderson, 477 U.S. at 248, 106 S.Ct. 2505.
Where the non-moving party will bear the burden of proof at
trial, the party moving for summary judgment may meet its burden
by showing that the evidentiary materials of record, if reduced
to admissible evidence, would be insufficient to carry the
non-movant's burden of proof at trial. Celotex, 477 U.S. at
322, 106 S.Ct. 2548. Once the moving party satisfies its burden,
the burden shifts to the non-moving party, who must go beyond its
pleadings, and designate specific facts by the use of affidavits,
depositions, admissions, or answers to interrogatories showing
that there is a genuine issue for trial. Id. at 324, 106 S.Ct.
2548. Summary judgment must therefore be granted "against a party
who fails to make a showing sufficient to establish the existence
of an element essential to that party's case, and on which that
party will bear the burden of proof at trial." White v.
Westinghouse Electric Co., 862 F.2d 56, 59 (3d Cir. 1988),
quoting Celotex, 477 U.S. at 322, 106 S.Ct. 2548.
In 1993, Congress enacted the FMLA "to balance the demands of
the workplace with the needs of families, . . . [and] to entitle
[eligible] employees to take reasonable leave for [certain]
medical reasons." 29 U.S.C. § 2601. For example, the FMLA
provides, inter alia, that "an eligible employee shall be
entitled to a total of 12 work weeks of leave during any 12 month
period . . . (D) [b]ecause of a serious health condition. . . ."
29 U.S.C. § 2612(a)(1)(D). A "serious health condition" is
defined as an "illness, injury, impairment, or physical or mental
that involves: either (1) inpatient care; or (2) continuing
treatment by a healthcare provider. 29 C.F.R. § 825.114(a). The
parties do not dispute that Plaintiff is an "eligible employee"
that worked for Defendant, a qualifying employer. See, id; see
also, 29 U.S.C. § 2611(4).
When leave is required for the serious health condition of the
employee, the employee may take intermittent or reduced leave.
29 U.S.C. § 2612(b). After a period of qualified leave, an employee
is entitled to reinstatement to the former position or an
equivalent one with the same benefits and terms.
29 U.S.C. § 2614(a). The FMLA declares it "unlawful for any employer to
interfere with, restrain, or deny the exercise of or the attempt
to exercise, any right provided" in the FMLA.
29 U.S.C. § 2615(a)(1). The FMLA similarly declares it "unlawful for any
employer to discharge or in any other manner discriminate against
any individual for opposing any practice made unlawful" under the
FMLA. 29 U.S.C. § 2615(a)(2). Thus, an employer who interferes
with an employee's exercise of rights, or retaliates for the
exercise of the same, is in violation of the FMLA and the
employee may bring a civil action against the employer for said
violations. 29 U.S.C. § 2615(a), 2617(a). Plaintiff asserts that
Defendant violated both sections of the FMLA.
1. Violation of FMLA — Count I
Count I of Plaintiff's Complaint alleges that Defendant
improperly interfered with her right to take medical leave
pursuant to 29 U.S.C. § 2615(a)(1). Specifically, § 2615(a)(1)
It shall be unlawful for any employer to interfere
with, restrain, or deny the exercise of or the
attempt to exercise, any right provided under this
Defendant asserts that it is entitled to summary judgment as to
Count I of Plaintiff's Complaint because: (1) Plaintiff failed to
provide it with enough information to place it on notice that she
was entitled to FMLA leave, (2) it met its obligation of
providing Plaintiff with written notice of what was required in a
physician certification for FMLA leave in its employee handbook;
and (3) Plaintiff cannot prove any damages. I will deal with each
argument in turn.
a. An employee's notice obligation under the FMLA
Pursuant to the regulations, an employee must provide her
employer with notice that she needs FMLA leave.
29 C.F.R. § 825.302. If the leave is foreseeable, the employee must provide
at least 30 days notice. Id. If 30 days notice is not
practicable, notice must be given "as soon as practicable."
29 C.F.R. § 825.302(a); § 825.303(a). "As soon as practicable" is
defined as "both possible and practical, taking into account all
of the facts and circumstances in the individual case," but
usually within 1 -2 business days of when the need for leave
becomes known. 29 C.F.R. § 825.302(b). Specifically:
The employee shall provide at least verbal notice
sufficient to make the employer aware that the
employee needs FMLA-qualifying leave, and the
anticipated timing and duration of the leave. The
employee need not expressly assert rights under the
FMLA or even mention the FMLA, but may only state
that leave is needed . . .
29 C.F.R. § 825.302(c); see also, § 825.303(b) (stating
virtually the same standard in cases of unforeseeable leave).