Adams v. Scalzo Hospitality, Inc., Civil No. 13-154 ADM/SER

CourtUnited States District Courts. 8th Circuit. United States District Court of Minnesota
Writing for the CourtANN D. MONTGOMERY
Docket NumberCivil No. 13-154 ADM/SER
PartiesErnestine Adams, Plaintiff, v. Scalzo Hospitality, Inc., d/b/a Ramada Plaza Minneapolis, Defendant.
Decision Date25 March 2014

Ernestine Adams, Plaintiff,
Scalzo Hospitality, Inc., d/b/a Ramada Plaza Minneapolis, Defendant.

Civil No. 13-154 ADM/SER


Dated: March 25, 2014


J. Poage Anderson, Esq. and Emma R. Denny, Esq., Fabian May & Anderson, PLLP, Minneapolis, MN, on behalf of Plaintiff.

James B. Sherman, Esq., Chad A. Staul, Esq., and Phoebe Taurick, Esq., Wessels Sherman Joerg Liszka Laverty Seneczko P.C., Minnetonka, MN, on behalf of Defendant.


On January 30, 2014, the undersigned United States District Court Judge heard oral argument on Plaintiff Ernestine Adams' ("Adams") Motion for Summary Judgment [Docket No. 16]. The Court also heard argument on Defendant Scalzo Hospitality, Inc.'s ("Scalzo") Motion for Summary Judgment [Docket No. 25]. For the reasons set forth below, Adams' motion for summary judgment is denied, and Scalzo's motion for summary judgment is granted.


A. Adams' Employment at Scalzo

Adams is a former employee of Scalzo and alleges retaliation and interference in violation of the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq. Compl. [Docket No. 1]; Answer [Docket No. 8]. On or about June 17, 2011, Adams began working for Scalzo at

Page 2

the Ramada Plaza Minneapolis as a housekeeping supervisor. See Answer ¶ 5. Adams had several attendance issues throughout her employment at Scalzo. See Emma R. Denny Aff. [Docket No. 19] Ex. C ("Adams Dep.") 50-80. Adams was warned of her attendance and other performance problems, including through a "progressive disciplinary action time frame report" which she signed on August 8, 2012, during a meeting with her supervisor. Phoebe Taurick Decl. [Docket No. 24] Ex. A. The first page of the report outlined Adams' performance issues. Id. The second page of the report recorded two attendance infractions and states "[f]ailure to improve the items on the action plan will result in further disciplinary action up to and including termination of employment." Id. Adams testified that she did not see the first page of the report until this lawsuit began, and that her supervisor was not concerned with her attendance issues during their August meeting. Adams Dep. 59-68. Adams was written up four more times for attendance issues between August 10 and August 31, 2012. Id. at 68-80.

B. Car Accident and Doctor's Notes

Adams was in a car accident on September 1, 2012. Id. at 96-101. On September 2, Adams came to work for the full day, but went to the emergency room directly after clocking out. Id. at 102-04. At the hospital Adams obtained a doctor's note excusing her from work until September 5. Id. at 109, 123; Adams Dep. Ex. 15. On September 3, Adams told the Ramada manager-on-duty that she was not supposed to be at work, but would nevertheless open up the front desk. Adams worked from 7:00 a.m. to 10:30 a.m. Adams Dep. 108-11. Adams gave the doctor's note to her supervisor, who forwarded it to Elizabeth Sobolik ("Sobolik"), Scalzo's Director of Human Resources. Id.

From September 5 through October 1, Adams attended doctor appointments at Metro

Page 3

Injury on six occasions. Denny Aff. Ex. E ("Sobolik Dep.") 23-26. After each of Adams' visits, Metro Injury faxed Scalzo a doctor's note. Id. at 23-26, Exs. 20-21; Adams Dep. Ex. 15, at 3-8. Each note had a "diagnosis" line and a "remark" line. Adams Dep. Ex. 15. The notes were terse and provided limited information. The note on September 5 identified the general areas of Adams' pain and recommended "off work for 5 days." Each subsequent note recorded the same areas of injury and recommended additional days off.1 Taken together, the notes recommended Adams be excused from work from September 5 through October 2, and be given limited work from October 3 through October 10, 2012. Id. Scalzo scheduled Adams to work on eight occasions between September 2 and 15. Adams Dep. Exs. 13-14. On each of these occasions, Scalzo scheduled Adams to work on dates not yet covered by a doctor's note at the time of scheduling.

Adams relied on the doctor's faxed notes through Metro Injury and did not contact Scalzo at all between September 4 and October 2. Sobolik Dep. 26-27. Scalzo called Adams on September 15, but did not reach her and did not leave a message. Id. at 43-44; Adams Dep. 14850. Adams has given conflicting testimony about whether she called Scalzo back that day, but it is undisputed that she did not talk to a supervisor or Sobolik. Id. Having heard nothing from Adams beyond the doctor's notes, on September 18, Sobolik mailed Adams a packet of FMLA information and a medical certification form which Adams would need to return by October 4 if she sought FMLA leave status. Sobolik Dep. 36-42, Ex. 22. This packet did not reach Adams because she had moved on September 1, 2012 and did not notify Scalzo of her change of address

Page 4

as required by Scalzo's employee policy. Id. at 38-39; Adams Dep. 144-47.

On October 2, 2012, Metro Injury faxed a note to Scalzo indicating Adams could return to work with restrictions. Sobolik Dep. Ex. 27. Adams phoned Scalzo on October 2 to contact her supervisor, but was redirected to Sobolik. Adams Dep. 138-41. Sobolik asked Adams to come in for a meeting the next day, and Adams agreed. Id.

C. Meeting Between Adams and Scalzo

Adams met with Sobolik on October 3, 2012. Id. at 141-51. Sobolik and Adams discussed Adams' car accident and her absence from work during the month of September. Id. at 143-44, 148-51. Sobolik told Adams she had been unable to reach Adams by mail. Adams told Sobolik that was because she moved September 1, 2012. Id. at 144. Adams gave no reason why she could not have called Scalzo during her month absence. Id. at 151. Sobolik did not give Adams the undelivered FMLA packet with the medical certification form on October 3. Sobolik Dep. 54-55, 60, 72. The due date on the FMLA medical certification form was October 4, the next day. Sobolik Dep. 36-42, Ex. 22.

Between October 3 and October 9, Scalzo did not schedule Adams for any shifts. Sobolik Dep. 59-60. Sobolik testified that she was concerned about Adams' attendance violations during September, but did not fire Adams between October 3 and 9 because she was seeking advice of legal counsel regarding the situation. Id. at 61.

At an October 9, 2012 meeting, Sobolik notified Adams her employment was terminated. Id. at 60-62. Scalzo contends Adams was terminated for violations of Scalzo's time and attendance policy. Id.

Page 5

D. Scalzo's Time and Attendance and FMLA Policies

Scalzo has a policy for time and attendance, and an FMLA policy. Adams Dep. Ex. 12, 16-19, 23-27. The time and attendance policy includes a section called "Proper Call-In Procedures." Id. at 24. This section states:

Associates are required to notify their Manager or Immediate Supervisor a minimum of (2) hours before their scheduled start time in the event of either an unscheduled absence or lateness. In the event that an Associate calls when a Supervisor or Manager is not available, they must leave a message stating that they will be late or absent and why. They are then required to continue to call until they have spoken directly with a Manager or Supervisor about the situation. . . . Failure to follow this procedure will be considered an improper call-off, which is an attendance policy infraction, and may result in disciplinary action up to and including termination.

Id. The time and attendance policy also includes a section called "Absences That Are Not Considered Attendance Infractions." Id. That section states, "[i]ndustrial accident or illness, military duty, jury duty, observed holidays, funeral leave, PTO time, approved FMLA and any similar pre-approved time away from work is not considered when counting attendance infractions . . . ." Id.

The FMLA leave policy states:

If the leave is unanticipated, the Associate must give as much advance notice as possible when the need for leave becomes known. Scalzo Hospitality will determine the leave as FMLA leave and/or leave under any applicable state or local leave statute. The Associate will be provided with information detailing the specific expectations and obligations of the Associate and explaining the consequences of any failure to meet those obligations.

Id. at 17. Additionally, the FMLA policy requires a "Certification of Physician or Practitioner" to verify the seriousness of an employee's medical condition. Id. The policy states, "[t]his medical certification must be provided within fifteen (15) calendar days after being requested by Scalzo Hospitality. Not complying with this request to provide certification is grounds for delay

Page 6

or denial of leave. This may result in disciplinary action up to and including termination of employment." Id.

Adams argues her faxed doctor's notes satisfy FMLA notice requirements. Scalzo argues Adams did not comply with FMLA, as she did not call in her absences according to Scalzo's normal call-in procedures.


To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT