Seeger v. Cincinnati Bell Tel. Co.

• Decision Date: 08 May 2012
• Docket Number: No. 10–6148.,10–6148.
• Citation: 681 F.3d 274,18 Wage & Hour Cas.2d (BNA) 1831,45 NDLR P 29
• Parties: Tom SEEGER, Plaintiff–Appellant, v. CINCINNATI BELL TELEPHONE COMPANY, LLC, Defendant–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

681 F.3d 274

18 Wage & Hour Cas.2d (BNA) 1831

45 NDLR P 29

Tom SEEGER, Plaintiff–Appellant,

v.CINCINNATI BELL TELEPHONE COMPANY, LLC, Defendant–Appellee.

No. 10–6148.

United States Court of Appeals,

Sixth Circuit.

Argued: Jan. 11, 2012.

Decided and Filed: May 8, 2012.

ARGUED:Sheila M. Smith, Freking & Betz, LLC, Cincinnati, Ohio, for Appellant. Nathaniel Lampley, Jr., Vorys, Sater, Seymour and Pease LLP, Cincinnati, Ohio, for Appellee. ON BRIEF:Sheila M. Smith, Freking & Betz, LLC, Cincinnati, Ohio, for Appellant. Nathaniel Lampley, Jr., Vorys, Sater, Seymour and Pease LLP, Cincinnati, Ohio, for Appellee.

Before: SILER and GRIFFIN, Circuit Judges; TARNOW, District Judge. ^*

GRIFFIN, J., delivered the opinion of the court, in which SILER, J., joined. TARNOW, D.J. (pp. 287–90), delivered a separate dissenting opinion.

OPINION

GRIFFIN, Circuit Judge.

Plaintiff Tom Seeger appeals the district court's order granting summary judgment in favor of defendant Cincinnati Bell Telephone Co., LLC (“CBT”), and dismissing his claim that CBT violated the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601–2654, when it terminated his employment on the ground of disability fraud. Seeger took FMLA leave and concurrent paid leave under CBT's own disability plan to treat and recover from a herniated disc in his back. CBT terminated him for disability fraud after Seeger's co-workers saw him at the Oktoberfest in downtown Cincinnati during his FMLA leave period.

The district court held that, although Seeger established a prima facie case of retaliatory discharge, CBT's unrebutted honest belief that Seeger committed disability fraud shielded it from liability. We agree and affirm.

I.

Tom Seeger was employed as a network technician by CBT from September 1979 through October 2007. He was a member of a collective bargaining unit represented by the Communications Workers of America (the “Union”). CBT and the Union entered into a collective bargaining agreement (“CBA”) that governed the terms and conditions of employment for CBT's network technicians, including Seeger. Under the CBA, CBT employees who were on FMLA leave were also eligible to receive paid disability leave pursuant to CBT's Sickness and Accident Disability Plan. The two benefits were separate and distinct—an employee who qualified for FMLA leave might not be eligible for paid disability leave, and vice versa. CBT's paid disability plan imposed two additional requirements on employees beyond those in the FMLA: (1) the employee must allow CBT to have access to his or her medical records for review by CBT, and (2) the employee was required to work in a modified or light-duty position tailored to meet the individual's needs and medical restrictions, if the employee was medically able to do so.

Seeger's relevant medical issues began on August 20, 2007, when he experienced pain and numbness in his left leg. He went to the emergency room, where he was prescribed pain medications. Three days later, he sought follow-up care at the office of his primary-care physician, Dr. Michael Grainger. One of Dr. Grainger's colleagues administered a steroid injection and a muscle relaxer. From August 20 through August 26, Seeger was on an approved FMLA leave. Seeger returned to work on September 4, but his leg pain persisted. The following day, he was seen again by a physician at Dr. Grainger's office. An MRI confirmed that Seeger suffered from a herniated lumbar disc at L4–5 and L5–S1. Seeger was referred to a neurosurgeon at the Mayfield Clinic for surgical and pain management consultations.

On September 5, Seeger commenced a leave of absence, which was approved as both FMLA leave and paid disability leave by Theresa Greenwald, a registered nurse and the manager of CBT's Medical Department. Greenwald had over thirty-five years of experience, and she was certified in rehabilitation nursing and case management. In her position with CBT, Greenwald made the ultimate determinations regarding whether to approve or disapprove medical leave for CBT employees, and whether such leave qualified as FMLA or paid disability leave.

In the initial intake information that Seeger provided to the Mayfield Clinic, he reported left-leg numbness and intermittent lower-back and hip pain. He rated his pain level as 10 on a scale of 0 to 10 (with 10 being the worst), but stated that the pain improved when he was lying down. His neurosurgeon recommended physical therapy and an epidural steroid injection consultation with another specialist.

Seeger started a course of physical therapy, which consisted of three therapy sessions per week for four weeks, spanning from September 17 through October 12. At his first physical therapy session on September 17, Seeger reported that his level of pain had decreased, but he indicated that he could only sit or stand for thirty-minute intervals. On the same day, Greenwald wrote to Dr. Grainger, informing him that “[s]ince no surgery is imminent and [Seeger] has been off work almost three weeks receiving nonsurgical care, we could provide part-time sedentary telephone work for Mr. Seeger. Please consider this temporary restricted duty.” In her correspondence, Greenwald further explained that employees on restricted duty are not required to work full time and such work may involve as few as two hours a day.

Dr. Grainger examined Seeger on September 19, 2007. Seeger complained of pain in his lower back and numbness in his left leg. Dr. Grainger observed that Seeger had difficulty changing positions, getting in and out of a chair, and walking. Based upon his symptoms, Grainger estimated that Seeger's pain level was at 7 or 8 on the 1 to 10 scale. Dr. Grainger diagnosed Seeger with left sciatica and lumbar radiculopathy caused by Seeger's herniated disc. According to Dr. Grainger, the pain from this condition could vary considerably during a twenty-four hour period, even after an epidural steroid injection. The treatment goal for Seeger was increased activity. Dr. Grainger instructed Seeger to continue physical therapy, engage in tolerable physical activity, and confer with the neurosurgeons at the Mayfield Clinic. In his notes recording this office visit, Dr. Grainger wrote “no work” for Seeger. The next day, in response to Greenwald's earlier inquiry, Dr. Grainger's physician's assistant left a voicemail message for Greenwald indicating that Seeger was unable to perform any restricted work. Seeger therefore continued to receive paid leave and was not required to perform light-duty work.

Four days later, on September 23, Seeger and his wife Rose attended the Oktoberfest in downtown Cincinnati for approximately ninety minutes, during which time Seeger admittedly walked a total of ten blocks to and from the festival and consumed one or two beers. There, they had separate chance encounters with several co-workers. They chatted with Michael Caplinger for fifteen minutes. Caplinger only witnessed Seeger walking a few steps in the opposite direction after their conversation ended. Glen Adkins, a CBT transportation engineer, also saw Seeger at the Oktoberfest—first while Seeger was talking to Caplinger and later when Seeger was walking, seemingly unimpaired, for approximately fifty to seventy-five feet through the crowd. Two other CBT employees—Larry Curless and James Schulten—also saw Seeger at Oktoberfest. Curless noted that Seeger “appeared to be in a lot of pain” because his steps off the curb were very labored. Seeger told Schulten that his back was bothering him so he had to go home.¹

Adkins was aware that Seeger was on disability leave and reported his sighting of Seeger to Tracy Wilson, CBT's Human Resources Manager.² Wilson instructed Adkins to send his observations in an e-mail. Adkins sent the e-mail to Wilson on September 25, and Wilson eventually forwarded it to his supervisor, Michelle Simpson, Director of Employee Relations and Recruiting.

On September 26, Greenwald called Seeger to discuss his health status. Seeger told her that he still suffered from shooting pain and altered sensation in his left leg, and that he had good and bad days. Seeger advised Greenwald that he had been to five physical therapy sessions and had scheduled a pain-management consultation with one of the physicians at the Mayfield Clinic. The next day, at his Mayfield Clinic appointment, Seeger complained of numbness radiating down his left leg and difficulty walking. He received the first of two epidural steroid injections.

On October 3, Seeger saw Dr. Grainger again and reported that his pain and range of motion had improved following the injection. Seeger told Dr. Grainger that he wanted to return to work, but according to Seeger, Dr. Grainger would not allow it. On October 4, Seeger called Greenwald and updated her as to his medical progress. Greenwald did not bring up the topic of light-duty work with Seeger during either this conversation or the previous one on September 26. On October 11, Seeger had a second injection, followed by a physical therapy session the next day. On October 15,³ Seeger had another appointment with Dr. Grainger and reported that he had been asymptomatic for two days. Dr. Grainger authorized his return to work, and Seeger resumed his full-time position as a CBT network technician on October 16, 2007.

In the meantime, upon hearing of Seeger's attendance at Oktoberfest, Simpson instructed Wilson to investigate Adkins' report. Wilson interviewed Caplinger and forwarded his notes of the meeting to Simpson. CBT obtained sworn statements from Caplinger and Adkins regarding their contact with Seeger at Oktoberfest. In their affidavits, Caplinger and Adkins stated that they saw Seeger drinking a beer and “walking unassisted and seemingly unimpaired through the crowded festival.” Adkins said that Seeger “did not appear to be impaired or disabled.”

Simpson independently reviewed Seeger's medical records, disability file, and employment history. She consulted with...