Barger v. Jackson, Tenn. Hosp. Co.

• Decision Date: 13 March 2015
• Docket Number: No. 13–1311.,13–1311.
• Parties: Terri L. BARGER, Plaintiff, v. JACKSON, TENNESSEE HOSPITAL COMPANY, LLC, d/b/a Regional Hospital of Jackson, Defendant.
• Court: U.S. District Court — Western District of Tennessee

92 F.Supp.3d 754

Terri L. BARGER, Plaintiff
v.
JACKSON, TENNESSEE HOSPITAL COMPANY, LLC, d/b/a Regional Hospital of Jackson, Defendant.

No. 13–1311.

United States District Court, W.D. Tennessee, Eastern Division.

Signed March 13, 2015.

92 F.Supp.3d 757

William Lewis Jenkins, Jr., Wilkerson Gauldin Hayes Jenkins & Dedmon, Dyersburg, TN, for Plaintiff.

Charles John Mataya, James Craig Oliver, John Patrick Rodgers, Bradley Arant Boult Cummings LLP, Nashville, TN, for Defendant.

ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

J. DANIEL BREEN, Chief Judge.

Plaintiff, Terri L. Barger, brought this action against Jackson, Tennessee Hospital Company, LLC, doing business as Regional Hospital of Jackson (“Regional”), on November 21, 2013, alleging violations of the Family and Medical Leave Act of 1993 (the “FMLA”), 29 U.S.C. § 2601 et seq. (D.E. 1.) Before the Court is Regional's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (D.E. 23.) Plaintiff has responded to the motion, (D.E. 32), and Defendant has filed a reply, (D.E. 39), making the matter ripe for disposition. For the reasons discussed below, the motion is DENIED.

I. Background

The following facts are undisputed unless otherwise noted. In October 2010, Regional hired Barger as a registered nurse in its intensive care unit. She normally worked the night shift on Thursdays, Fridays, Saturdays, and Sundays, from 7:00 PM each evening until 7:00 AM the next morning. On November 5, 2012, Dr. Peter McLemore, DDS, examined Barger and recommended, among other things, that she have a wisdom tooth removed. According to Dr. McLemore, the need for that procedure did not present an emergency. On December 3, 2012, due to the number of days Plaintiff missed work, her supervisor, Lisa Wall, gave her a written warning stating that additional absences could result in termination. Dr. McLemore's office eventually notified Plaintiff that an appointment was available to have him remove her tooth at 9:50 AM on

92 F.Supp.3d 758

Thursday, January 3, 2013, and she scheduled the procedure for that time. Barger had prior tooth extractions and experienced no complications or adverse reactions, and she notified Wall of the procedure the day before it was to take place.

On January 3, 2013, Barger drove alone to Dr. McLemore's office. Before the extraction, she signed a consent form that outlined certain complications that could occur, including drowsiness and reduced mental and motor capacity.¹ During her procedure, the roots of the tooth fractured. After the removal, the dentist gave Plaintiff a prescription for Lortab, a pain medication; told her she would not be able to go to work because of pain and bleeding; and provided her with a note excusing her from work for the rest of the day. Barger then drove to get her prescription filled. While waiting, she called Wall to tell her that she could not come to the hospital for her shift because of the procedure and that she had a work excuse from Dr. McLemore.

The next day, January 4, Plaintiff spoke with Wall and told her that she was experiencing continued bleeding and would not be able to come to work.² Wall let Barger know that if she needed to call in sick the next day, she should call the house supervisor because Wall would not be at the hospital. By the time her shift started on January 5, Plaintiff had not reported for work, and she had not contacted the house supervisor to request a sick day. That night, hospital employees spoke with Barger on the phone and informed Wall that Plaintiff was at home, was slurring her speech, and was difficult to understand. At some point, hospital employees arranged for law enforcement to check on her, and the officers reached similar conclusions, including that “she was pretty out of it.” (Wall Dep. 32; D.E. 24–2.)

On Sunday, January 6, J. Darryl Green,³ a friend of Barger's, spoke with Wall and let her know that Plaintiff was operating at a reduced capacity.⁴ Plaintiff did not report for her shift that evening. The next day, January 7, she woke up, called Wall, and arranged to meet her that morning. During the meeting, Barger put Wall in contact with Dr. McLemore, who told

92 F.Supp.3d 759

Wall about Plaintiff's procedure and that she would have needed to take off work. Barger also gave Wall the note excusing her from work on January 3.

Wall and the hospital's director of human resources met with Plaintiff on January 9 and terminated her employment. They discharged her “for scheduling an elective, non-emergency procedure on a day that Plaintiff was scheduled to work ..., which led to [her] exceeding the number of absences allowed by the [h]ospital in a 12–month period,” after having received a warning “that another absence could result in her termination....” (Pls.' Resp. to Def.'s Stat. of Asserted Material Facts ¶ 37, D.E. 33.) They also cited her “no call/no show on Saturday, January 5, 2013,” as a reason for the decision. (Id. ) The FMLA was not discussed during the meeting. At some point, Barger contacted Dr. McLemore's office and requested another work excuse, and the office issued it. The note stated that Plaintiff was required to be off work from January 3 until January 7, and Green faxed the note to the hospital for Barger on January 14.⁵

II. Legal Standard

Under Rule 56 of the Federal Rules of Civil Procedure, a court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” “A dispute about a material fact is genuine ‘if the evidence is such that a reasonable jury could return a verdict for the non-moving party.’ ” Smith v. Perkins Bd. of Educ., 708 F.3d 821, 825 (6th Cir.2013) (quoting Ford v. Gen. Motors Corp., 305 F.3d 545, 551 (6th Cir.2002) ). A court's function at the summary judgment stage is not to “weigh the evidence and determine the truth of the matter”; rather, it is “to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; see Bobo v. United Parcel Serv., Inc., 665 F.3d 741, 748 (6th Cir.2012) (“Credibility determinations ... and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.” (quoting Anderson, 477 U.S. at 255, 106 S.Ct. 2505 )).

The moving party “has the initial burden of showing the absence of a genuine dispute as to a material fact.” Automated Solutions Corp. v. Paragon Data Sys., Inc., 756 F.3d 504, 520 (6th Cir.2014) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). If the motion is properly supported, “the opposing party must go beyond the contents of its pleadings to set forth specific facts that indicate the existence of an issue to be litigated.” Slusher v. Carson, 540 F.3d 449, 453 (6th Cir.2008) (citation omitted). A court must grant summary judgment “after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322–23, 106 S.Ct. 2548 ; see In re Morris, 260 F.3d 654, 665 (6th Cir.2001). Finally, although a court does

92 F.Supp.3d 760

not weigh the evidence at this stage, it “must view all evidence and draw any reasonable inferences therefrom in favor of the nonmoving party.” Demyanovich v. Cadon Plating and Coatings, L.L.C., 747 F.3d 419, 426 (6th Cir.2014) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ).

III. Analysis

A. FMLA Actions in General

The FMLA grants qualifying employees the right “to take up to twelve weeks of unpaid leave in any twelve-month period for qualifying medical or family reasons” and to “be restored to the same or an equivalent position upon returning to work.” Mitchell v. Chapman, 343 F.3d 811, 826 (6th Cir.2003) (citing 29 U.S.C. §§ 2612(a)(1), 2614(a)(1) ). It also “creates a private right of action entitling eligible employees to seek both equitable relief and money damages against any employer” who violates their rights under the statute. Id. (citations omitted) (internal quotation marks omitted). Two separate theories of FMLA liability exist: the “interference” or “entitlement” theory and the “retaliation” or “discrimination” theory. Gates v. U.S. Postal Serv., 502 Fed.Appx. 485, 488–89 (6th Cir.2012) ; Seeger v. Cincinnati Bell Tel. Co., LLC, 681 F.3d 274, 282 (6th Cir.2012). Employees may raise retaliatory discharge claims under either theory, but “the requisite proofs differ.” Seeger, 681 F.3d at 282.

B. FMLA Interference

The basis for an interference claim is found in 29 U.S.C. § 2615(a)(1), which provides that “[i]t shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to...