Phillips v. Mathews

• Decision Date: 18 November 2008
• Docket Number: No. 08-1082.,08-1082.
• Parties: Jamila PHILLIPS, Plaintiff-Appellant, v. Cathie MATHEWS, individually, and in her official capacity as Director of Department of Arkansas Heritage; Sharon Hacker, individually, and in her official capacity as an employee of the State of Arkansas; and Mike Beebe, in his official capacity as Governor of the State of Arkansas, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

547 F.3d 905 Jamila PHILLIPS, Plaintiff-Appellant,
v.
Cathie MATHEWS, individually, and in her official capacity as Director of Department of Arkansas Heritage; Sharon Hacker, individually, and in her official capacity as an employee of the State of Arkansas; and Mike Beebe, in his official capacity as Governor of the State of Arkansas, Defendants-Appellees. No. 08-1082. United States Court of Appeals, Eighth Circuit. Submitted: September 22, 2008. Filed: November 18, 2008.

[547 F.3d 907]

Lucien Ramseur Gillham, argued, Benton, AR, for appellant.

Ka Tina R. Hodge, Asst. Atty. Gen., argued, Little Rock, AR (Melanie Winslow Hoover, Asst. Atty. Gen., on the brief), for appellees.

Before BYE, BEAM, and COLLOTON, Circuit Judges.

BYE, Circuit Judge.

Jamila Phillips appeals the district court's¹ grant of summary judgment for Defendants-Appellees on her interference and retaliation claims brought under the Family and Medical Leave Act (FMLA). We affirm.

I

Phillips began employment for the State of Arkansas on October 14, 2004. On Monday, April 17, 2006, Phillips transferred to the Department of Arkansas Heritage (DAH). Her main job responsibilities included answering the telephone and greeting visitors as they entered DAH headquarters. Sharon Hacker was Phillips's supervisor. As a new DAH employee, Phillips was hired subject to a six-month probationary period, during which her employment could be terminated at any time based on her overall performance. During her first week at DAH, Phillips was reprimanded twice: once for making too many personal telephone calls and once for failing to be cordial to DAH guests and employees.

During Phillips's orientation, the subject of her available balance of paid leave time was discussed. When employees of the State of Arkansas move to a different agency, they are allowed to transfer accrued leave time. Because DAH had not received the Proof of Prior Service from her previous agency, which verifies the amount of leave time available to an employee, Phillips was asked whether she had any leave time remaining. Phillips responded that she used quite a bit of leave time prior to her transfer, and she did not know how much leave time she had left, if any.

On Tuesday, April 18, Phillips was involved in an automobile accident on her way to work. She called DAH and told Hacker of the accident. After police left the scene of the accident, Phillips went to

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the emergency room, where she declined a doctor's excuse to take a few days off from work. Phillips arrived at DAH around midday. Because DAH had not received a Proof of Prior Service detailing the balance of her leave time, Phillips and DAH categorized her absence as leave without pay.

Phillips performed her job responsibilities without complaint for the remainder of the week, with the exception of agreeing with a colleague not to stuff posters into a tube because her back was hurting. Sometime on or after Thursday, April 20, Phillips scheduled a doctor's appointment with her primary care physician for Monday, April 24, at 10:45 A.M. Phillips discussed the appointment with Hacker. They agreed that until DAH received information concerning the balance of her leave time, they would continue to operate under the assumption she did not have any leave time available. As such, they both agreed she should arrive to work at 8:00 A.M. prior to her doctor's appointment and take an early lunch, thereby using the least amount of leave without pay as possible.

During this discussion, Hacker mentioned that Phillips may need time off for physical therapy. Hacker printed and gave to Phillips FMLA paperwork to complete, and she suggested Phillips discuss the possibility of FMLA leave with Sue Montgomery or Debbie Ballard. Phillips did not complete the paperwork nor discuss a need for FMLA leave with either Montgomery or Ballard prior to her doctor's appointment.

On Monday, April 24, Phillips's car would not start. She called DAH and informed another employee that her uncle was on his way to fix the car. Phillips said she would call back when she had more information; there is a factual dispute whether Phillips did in fact call back. Phillips did not report to DAH prior to her doctor's appointment. During the appointment, her doctor prescribed several sessions of physical therapy and recommended she take off work through Thursday, April 27. Phillips had the doctor complete the necessary FMLA paperwork, and she brought the completed paperwork with her to DAH after her appointment. Phillips was unable to submit her FMLA paperwork or inform DAH of her need for time off, however, because she was given a letter of termination immediately upon her arrival. The letter stated Phillips was terminated because she did not report to work until after her doctor's appointment, and "[l]eave without pay is a very serious issue and is not to be used because an automobile won't start."

Phillips's last check stub, received after her termination, indicated she had paid leave time available. On May 5, 2006, DAH received the Proof of Prior Service from her previous agency, which indicated she had no leave time remaining. There is no reason given for the discrepancy between her check stub and the Proof of Prior Service.

Phillips filed suit in the Eastern District of Arkansas against Hacker, Cathie Mathews, Director of DAH, and Mike Beebe, Governor of the State of Arkansas. Phillips sued Hacker and Mathews in their individual and official capacities and Governor Beebe in his official capacity. She alleged interference and retaliation in violation of the FMLA. Appellees moved for summary judgment, arguing they lacked notice concerning Phillips's need for FMLA leave, they terminated her for reasons independent from the FMLA, she did not have a "serious health condition" within the meaning of the FMLA, and they were immune from suit in their official capacities.

The district court granted summary judgment in Appellees' favor on both

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claims. The court concluded the interference claim failed because DAH did not have notice of Phillips's need for FMLA leave, and, alternatively, her termination was not related to any FMLA rights. The district court concluded the retaliation claim failed because she never exercised her FMLA rights, and, alternatively, she was not terminated because of those rights.² Phillips, arguing the district court erred in granting summary judgment on both of her claims, now appeals.

II

This court reviews the district court's grant of summary judgment de novo. Spangler v. Fed. Home Loan Bank of Des Moines, 278 F.3d 847, 850 (8th Cir.2002). "Summary judgment is appropriate when the evidence, viewed in a light most favorable to the nonmoving party, shows no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law." Id.

The FMLA entitles an employee to twelve workweeks of leave during any twelve-month period if he or she has 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). A "serious health condition" is any "illness, injury, impairment, or physical or mental condition that involves (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider." 29 U.S.C. § 2611(11).

There are two types of claims under the FMLA: "(1) `interference' or `(a)(1)' claims in which the employee alleges that an employer denied or interfered with his substantive rights under the FMLA and (2) `retaliation' or `(a)(2)' claims in which the employee alleges that the employer discriminated against him for exercising his FMLA rights." Stallings v. Hussmann Corp., 447 F.3d 1041, 1050 (8th Cir.2006) (citing 29 U.S.C. § 2615(a)(1)(2)).

A

In order to state a claim for interference under the FMLA, Phillips must have given notice of her need for FMLA leave. When leave is needed for an unforeseeable event, notice is required "as soon as practicable." 29 C.F.R. § 825.302(a). "This ordinarily means at least verbal notification to the employer within one or two business days of when the need for leave becomes known to the employee." Spangler, 278 F.3d at 852 (quoting 29 C.F.R. § 825.302(b)) (alterations omitted). However, "[a]n employee need not invoke the FMLA by name in order to put an employer on notice that the Act may have relevance to the employee's absence from work." Thorson v. Gemini, Inc., 205 F.3d 370, 381 (8th Cir. 2000). The employer's duties arise "when the employee provides enough information to put the employer on notice that the employee may be in need of FMLA leave." Id. (quoting Browning v. Liberty Mut. Ins. Co., 178 F.3d 1043, 1049 (8th Cir.1999)). Whether an employee gave sufficient information to put his or her employer on notice that an absence may be covered by the FMLA is a question of fact for the jury. Browning, 178 F.3d at 1049.

The district court erred in concluding as a matter of law that Phillips failed to provide enough information to put her employer on notice she may be in need of FMLA leave. Viewing the evidence in the

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light most favorable to Phillips, a reasonable jury could conclude Phillips satisfied the notice requirement because she put Appellees on notice that her doctor visit was related to her prior accident and could result in a need for additional treatment and time off from work.

Appellees argue they did not have notice of the need for FMLA leave because Phillips never indicated a need to be absent from work subsequent to the doctor's appointment or an inability to perform her job responsibilities, and they terminated her before she turned in her FMLA paperwork. A reasonable jury could conclude otherwise, however, because Phillips and Hacker specifically discussed the possibility that Phillips could need time off for physical therapy subsequent to her doctor's appointment, and...