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Alkins v. Boeing Co.

United States District Court, E.D. Pennsylvania

January 2, 2020



          Savage, J.

         Paul Alkins alleges that his former employer, The Boeing Company (Boeing), terminated his employment for exercising his rights under the Family Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq. He brings claims under the FMLA for interference (Count I) and retaliation (Count II).[1]

         Moving for summary judgment, Boeing contends that Alkins' claims fail because his mental and addiction issues were not “serious health conditions” under the FMLA and because he did not timely submit paperwork necessary for FMLA approval. It also argues that his retaliation claim fails because there is no causal connection between the exercise of his FMLA rights and his termination. Boeing maintains that Alkins' employment was terminated for his repeated failure to follow attendance procedures. Alkins responds that approval of his FMLA leave by Boeing's third-party contractor after his termination demonstrates that he was qualified for FMLA leave and that Boeing's proffered reason for his termination was pretextual. He argues that the five-week period between the start of his leave and his termination establishes a causal connection between the two. He contends that Boeing merely “expected, ” rather than required, him to return to work on the designated date.

         Because the undisputed facts show that Boeing did not interfere with Alkins' exercising his FMLA rights or retaliate against him for doing so, we shall grant the motion for summary judgment.


         Alkins worked for Boeing as a sheet metal mechanic building helicopters from June 22, 2007, until February 23, 2017.[2] He was a member of United Autoworkers Union Local 169, which had a collective bargaining agreement with Boeing.[3] He does not dispute that he was also subject to various Boeing policies and procedures, including its Drug and Alcohol Free Workplace Program, Attendance Standards, and Leaves of Absence Policy Handbook.[4]

         Alkins was addicted to Adderall, methamphetamines and alcohol.[5] He used Adderall for two months before switching to methamphetamines, which he stopped using in October of 2016.[6] He normally took one Adderall of uncertain dosage and did a “little line” of methamphetamines.[7] It is not clear how much alcohol he consumed, but his last drink was on March 6, 2017.[8] He missed work due to his alcohol use, but claims he never used amphetamines less than seven or eight hours prior to a shift.[9]

         Due to his persistent attendance problems, Boeing issued him a verbal warning on April 15, 2015, and three Corrective Action Memos on October 8 and December 17, 2015, and April 11, 2016.[10] These Memos reminded Alkins that he was required “to notify management of any late arrivals and leave early through the proper process” and warned that “[f]uture violations will result in a review for additional corrective action, up to and including discharge from the Company.”[11] Boeing also counseled him on attendance requirements, including the need to report any absences or late arrivals via its automated, toll-free Attendance Line.[12]

         After Alkins incurred 21 attendance infractions within a 12-month period, Boeing discharged him on October 13, 2016, in accordance with its Attendance Standards.[13] Six days later, Boeing placed his discharge in abeyance because he agreed to complete a treatment program and undergo follow-up alcohol testing for three years.[14] The following day he began four weeks of FMLA leave.[15] From October 20 to November 9, 2016, Alkins received inpatient treatment at Livengrin Foundation.[16] He remained on FMLA leave through November 17, 2016, but did not receive treatment during this time.[17]

         On November 18, 2016, Alkins signed a Last Chance Agreement (LCA) and returned to work.[18] He had assistance in going over the terms, read it before signing it, and understood what it said.[19] In the LCA, Alkins agreed to report to work regularly and on time, call the Attendance Line to report absences and late arrivals, and submit FMLA paperwork as needed.[20] He also agreed to immediate discharge for cause if he accumulated two infractions between the date of the LCA and September 18, 2017.[21]From November 29, 2016, to January 19, 2017, he received outpatient treatment from Rehab After Work.[22]

         On January 19, 2017, Alkins' treatment counselor told him he was unfit for duty.[23]Alkins requested leave to begin the next day due to anxiety, depression, acute withdrawal syndrome and stress.[24] On January 22, 2017, the Reed Group (Reed), Boeing's third-party contractor that managed employee leave, mailed him a letter acknowledging his request for FMLA leave effective January 20, 2017, and enclosing documents, including a FMLA Health Care Provider Certification form (HCP Form), to be completed and returned by February 6, 2017.[25] Alkins did not return the form.[26] On February 14, 2017, Reed mailed Alkins another letter directing him to return to work upon the expiration of his FMLA leave on February 20, 2017.[27] The letter warned that “[f]ailure to do so may result in termination of employment.”[28]

         Alkins failed to report to work, call the Attendance Line or have anyone do so on his behalf on February 20, 21, 22 or 23, 2017.[29] On February 23, 2017, after confirming the day before that Alkins had not requested an extension of leave, Boeing couriered a Corrective Action Memo to him terminating his employment effective immediately.[30] After Alkins received the Memo, his union representative, Pat Hoffman, came to his house.[31]Alkins and Hoffman called a Case Manager at Reed and expressed concerns about the termination.[32] The Case Manager asked if Alkins needed to extend his leave and he responded affirmatively.[33] Reed sent Alkins a letter enclosing another HCP Form and advising that it would notify him if an extension was approved.[34]

         On March 10, 2017, after Alkins had been terminated, Reed approved an extension of his FMLA leave through March 26, 2017.[35] On March 20, 2017, Alkins submitted a completed HCP Form to Reed.[36] It indicated he had been diagnosed with mixed bipolar disorder with periods of depression and mania.[37] From March 7 to March 22, 2017, Alkins received treatment three days per week for eight hours per day at Main Line Health/Mirmont.[38] Alkins received no other treatment after January 19, 2017.[39]

         Standard of Review

         Summary judgment is appropriate “if the movant shows there is no genuine dispute as to any material fact and [that] the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Judgment will be entered against a party who fails to sufficiently establish any element essential to that party's case and who bears the ultimate burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In examining the motion, we must draw all reasonable inferences in the nonmovant's favor. InterVest, Inc. v. Bloomberg, L.P., 340 F.3d 144, 159-60 (3d Cir. 2003).

         The initial burden of demonstrating that there are no genuine issues of material fact falls on the moving party. Fed.R.Civ.P. 56(a). Once the moving party has met its burden, the nonmoving party must counter with “specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted). The nonmovant must show more than the “mere existence of a scintilla of evidence” for elements on which it bears the burden of production. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Bare assertions, conclusory allegations or suspicions are not sufficient to defeat summary judgment. Fireman's Ins. Co. v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982). Thus, “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'” Matsushita, 475 U.S. at 587 (citation omitted).


         FMLA Interference

         The FMLA is intended to provide job security for employees with serious health conditions while accommodating employers' legitimate interests. 29 U.S.C. § 2601(a)(4), (b)(3); Bonkowski v. Oberg Indus., Inc., 787 F.3d 190, 195 (3d Cir. 2015). Under the FMLA, an eligible employee is entitled to a total of twelve workweeks of leave during any twelve-month period “[b]ecause of 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 employer may not interfere with an employee's exercise of an FMLA right. 29 U.S.C. § 2615. The improper denial of FMLA leave constitutes interference, exposing the employer to liability. Sommer v. Vanguard Grp., 461 F.3d 397, 399 (3d Cir. 2006). An employer may not discharge an employee for exercising his or her rights under the FMLA. Sarnowski v. Air Brooke Limousine, Inc., 510 F.3d 398, 403 (3d Cir. 2007).

         To prevail on an FMLA interference claim, Alkins must prove: (1) he was an eligible employee under the FMLA; (2) Boeing was an employer subject to the FMLA's requirements; (3) he was entitled to FMLA leave; (4) he gave notice to Boeing of his intention to take FMLA leave; and (5) he was denied benefits to which he was entitled under the FMLA. Ross v. Gilhuly, 755 F.3d 185, 193 (3d Cir. 2014) (citing Sommer, 461 F.3d at 399) (quoted case omitted).

         The element in dispute is whether Alkins was entitled to FMLA leave. To prove entitlement, Alkins must prove he had a “serious health condition, ” as defined in the statute and the regulations, and he gave appropriate notice of his need to be absent from work for the days in question. Sarnowski, 510 F.3d at 401-02; see also 29 C.F.R. § 825.303. The burden is on Alkins to prove the existence of an FMLA-eligible condition. Schaar v. Lehigh Valley Health Servs., Inc., 598 F.3d 156, 158 (3d Cir. 2010).

         An employee is entitled to FMLA leave to deal with “a serious health condition” that renders him unable to work. 29 U.S.C. § 2612(a)(1)(D). A “serious health condition” is defined in the FMLA as an “illness, injury, impairment, or physical or mental condition” that involves either “inpatient care in a hospital, hospice, or residential medical care facility” or “continuing treatment by a health care provider.” 29 U.S.C. § 2611(11).

         Alkins was not receiving inpatient care on February 20, 21, 22 or 23, 2017. Thus, to establish his claim, he must show he was receiving continuing treatment on those dates.

         The FMLA does not define what constitutes “continuing treatment” by a health care provider. The FMLA regulations describe conditions that constitute a qualifying “serious health condition involving continuing treatment by a health care provider . . . .” 29 C.F.R. § 825.115. Any period of incapacity exceeding three consecutive days qualifies. Id. § 825.115(a). Subsequent treatment qualifies if the employee receives treatment two or more times within 30 days of the onset of incapacity. Id. § 825.115(a)(1).[40] Incapacity followed by a continuing treatment regimen under the supervision of a health care provider also qualifies. Id. § 825.115(a)(2). In either case, the employee must begin in-person treatment within seven days of the first day of incapacity. Id. § 825.115(a)(3). See also Giddens v. UPS Supply Chain Solutions, 610 Fed.Appx. 135, 138 (3d Cir. 2015) (former employee failed to raise question of fact where first in-person visit took place nine days after onset of incapacity). “Incapacity” is defined as an “inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore or recovery therefrom.” Id. § 825.113(b).

         Alkins became unable to work on January 19, 2017.[41] He did not receive treatment until March 7, 2017.[42] Accordingly, his “first (or only) in-person treatment visit [did not] take place within seven days of the first day of incapacity.” 29 C.F.R. § 825.115(a)(3). Even if Alkins had received in-person treatment by January 26, 2017, he did not receive treatment a second time “within 30 days of the first day of incapacity, ” nor was he was undergoing “a regimen of continuing treatment.” 29 C.F.R. § 825.115(a)(1)-(2).

         A serious health condition involving continuing treatment also includes a chronic condition. A “chronic serious health condition” is “[a]ny period of incapacity” that (a) “[r]equires periodic visits (defined as at least twice a year) for treatment by a health care provider, or by a nurse under direct supervision of a health care provider;” (b) “[c]ontinues over an extended period of time;” and (c) may “cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.).” 29 C.F.R. § 825.115(c).

         Alkins became incapacitated due to anxiety, depression, acute withdrawal syndrome and stress.[43] Although he had been diagnosed with anxiety and depression in 2012, he received no treatment for those conditions since that time.[44] He admitted that he had never been diagnosed with and never treated for acute withdrawal syndrome.[45]The only reference to “stress” in his medical records is in his HCP Form completed on March 20, 2017, two months after his incapacitation began.[46] Thus, none of these conditions were “chronic” within the meaning of 29 C.F.R. § 825.115(c).

         Alkins argues that Boeing is prohibited from challenging his FMLA eligibility at the time of his termination “because the third-party administrator to which [Boeing] delegated all such determinations found that [Alkins] was, in fact, eligible for FMLA based on [his] own serious health condition.”[47] However, Reed did not approve an extension of FMLA leave for Alkins until March 10, 2017.[48] Alkins' employment had already been terminated two weeks earlier for his breach of the LCA. Consequently, Alkins' February 20 through 23, 2017 absences were not FMLA-protected at the time they occurred. Reed's subsequent determination of eligibility did not make them so retroactively.[49] Additionally, Alkins did not give notice of his need to be absent, an essential element of an interference claim.

         FMLA ...

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