724 F.3d 648 (6th Cir. 2013), 12-4048, Kinds v. Ohio Bell Tel. Co.

Docket Nº:12-4048
Citation:724 F.3d 648
Opinion Judge:RONALD LEE GILMAN, Circuit Judge.
Party Name:DEBRA KINDS, Plaintiff-Appellant, v. OHIO BELL TELEPHONE COMPANY, Defendant-Appellee
Attorney:Mark P. Herron, HERRON LAW OFFICES, Cleveland, Ohio, for Appellant. Laura A. Lindner, LITTLER MENDELSON, P.C., Milwaukee, Wisconsin, Amy Ryder Wentz, LITTLER MENDELSON, P.C., Cleveland, Ohio, for Appellee.
Judge Panel:Before: GILMAN, GRIFFIN, and STRANCH, Circuit Judges.
Case Date:July 29, 2013
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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724 F.3d 648 (6th Cir. 2013)

DEBRA KINDS, Plaintiff-Appellant,



No. 12-4048

United States Court of Appeals, Sixth Circuit

July 29, 2013

Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 1:10-cv-01596--Benita Y. Pearson, District Judge.


Mark P. Herron, HERRON LAW OFFICES, Cleveland, Ohio, for Appellant.

Laura A. Lindner, LITTLER MENDELSON, P.C., Milwaukee, Wisconsin, Amy Ryder Wentz, LITTLER MENDELSON, P.C., Cleveland, Ohio, for Appellee.

Before: GILMAN, GRIFFIN, and STRANCH, Circuit Judges.


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Debra Kinds, a decade-long employee of the Ohio Bell Telephone Company, sought leave under the Family and Medical Leave Act (FMLA), 29 U.S.C. § § 2601-2654, for nine weeks of work that she missed in late 2009. Ohio Bell denied Kinds's request for FMLA leave with respect to three of those weeks when she failed to timely provide medical justification for the leave, and it then fired her because of her documented history of unexcused absences.

Kinds subsequently filed a lawsuit against Ohio Bell, alleging that the company had unlawfully interfered with the exercise of her FMLA rights. The district court granted Ohio Bell's motion for summary judgment and dismissed the case. For the reasons set forth below, we AFFIRM the judgment of the district court.

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Kinds was involved in a mentally and physically abusive relationship with her live-in boyfriend that culminated in death threats and an assault that put Kinds in the emergency room on August 30, 2009. She told her supervisors about the abuse and requested time off from work to find a new place to live and to get her affairs in order. But Kinds did not have any vacation time available and was not eligible for FMLA leave because she had worked less than 1,250 hours for Ohio Bell during the previous 12-month period. See 29 U.S.C. § 2611(2)(A) ( defining an " eligible employee" as one who has worked a minimum of 1,250 hours for the specific employer in the previous 12 months). Her supervisors nonetheless granted her one week of discretionary leave for the first week of September 2009.

Kinds returned to work after this discretionary leave and continued working until October 12, 2009, at which point she had accumulated enough hours of work to become eligible for FMLA leave. She applied for FMLA leave the following day and did not work again until returning part-time on December 15, 2009. After her eighth full day of absence in October, Ohio Bell took three relevant actions: (1) it notified the third-party administrator of its short-term disability insurance plan, Sedgwick Claims Management Services (Sedgwick), of Kinds's absence; (2) it notified its affiliated FMLA Operations Department in Texas of those same absences; and (3) it sent Kinds a form that confirmed her eligibility for FMLA leave and also informed her that a claim for short-term disability benefits had been initiated on her behalf. This form further indicated that Kinds did not need to submit an FMLA medical certification at that time.

The FMLA Operations Department sent a letter to Kinds on October 21, 2009 that acknowledged her FMLA leave request and stated that her period of absence " will result in a claim for Short Term Disability Benefits." In addition, the letter explained that if Kinds's claim for disability benefits were approved, then FMLA leave would run concurrently. And even if the claim were denied, the letter stated that Kinds would still " have the right to request FMLA consideration," but would in such event need to have her healthcare provider submit an " FMLA4" form to document " the medical facts . . . to support the denied absence period." The letter further stressed that " [t]he FMLA4 is only required if your request for disability benefits has been denied."

Kinds first sought mental health treatment from Paula Reshotko, a licensed independent social worker, on November 3, 2009. This counseling session was the first medical treatment that Kinds received during her October to December 2009 absence from work. Reshotko diagnosed Kinds as having a " severe depression episode" and recommended further counseling. Kinds saw Reshotko for counseling again on November 10th and 19th and saw her family physician, Dr. Suzana Sarac-Leonard, also on November 10th.

On November 24, 2009, Sedgwick sent Kinds a letter explaining that her claim for short-term disability benefits was approved " for the period of November 10, 2009 through December 14, 2009" but was denied with respect to " the period of October 20, 2009 through November 9, 2009." Sedgwick determined that Kinds did not have disability status until November 10th based on both a review of the medical records furnished by Reshotko and additional information that Reshotko provided in a November 20th telephone call with Sedgwick.

Sedgwick's approval of disability benefits for a portion of Kinds's absence prompted two actions by Ohio Bell: (1) it

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approved the first week of Kinds's absence (October 13th to October 20th) and the period for which she was determined to be disabled (November 10th to December 14th) for FMLA leave, and (2) it asked Kinds to submit an FMLA medical certification for the period that was not approved for disability benefits (October 20th to November 9th). The first action was taken pursuant to Ohio Bell's leave policy and the programming of its electronic payroll system. Under that policy, Ohio Bell automatically approves as FMLA leave the first seven days of an employee's period of absence whenever any part of that absence is approved for disability benefits and the employee is otherwise FMLA-eligible. The second action (requesting an FMLA medical certification) was taken when Kinds returned to full-time work on December 29, 2009. Kinds was given until January 13, 2010 to submit the requested certification.

The deadline passed without Kinds or her healthcare providers submitting any documentation to support FMLA leave for the period in question. On January 20, 2010, Kinds asked for an extension. Ohio Bell agreed to the extension and gave Kinds until January 27th to submit the medical certification. That date also passed with no submission to Ohio Bell of a medical certification, although Dr. Leonard did send a letter to Sedgwick on January 22nd certifying that she was providing Kinds " medical assistance . . . from October 20th to November 11th, 2009." Sedgewick did not forward a copy of Dr. Leonard's letter to Ohio Bell, however, due to the restrictions on the sharing of private health information imposed by the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Moreover, Dr. Leonard's letter did not indicate what condition constituted Kinds's alleged disability. On February 2, 2010, Ohio Bell denied Kinds's FMLA leave request because it had...

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