Bond v. Abbott Laboratories, 1:95-CV-2755.

• Decision Date: 08 July 1998
• Docket Number: No. 1:95-CV-2755.,1:95-CV-2755.
• Citation: 7 F.Supp.2d 967
• Parties: Calvin BOND, et al., Plaintiffs, v. ABBOTT LABORATORIES, Defendant.
• Court: U.S. District Court — Northern District of Ohio

Page 967

7 F.Supp.2d 967

Calvin BOND, et al., Plaintiffs, v. ABBOTT LABORATORIES, Defendant.

No. 1:95-CV-2755.

United States District Court, N.D. Ohio, Eastern Division.

July 8, 1998.

Lisa M. Mezzetti, Cohen, Milstein, Hausfeld & Toll, Washington, DC, J. Eric Fleischauer, Marc L. Fleischauer, Mansfield, OH, for Plaintiffs.

Ronald S. Okada, Paul P. Eyre, Marcia E. Marsteller, Baker & Hostetler, Cleveland, OH, for Defendant.

MEMORANDUM OPINION

GWIN, District Judge.

On April 6, 1998, Defendant Abbott Laboratories filed for summary judgment in this class action brought under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq. [Doc. 92]. The defendant employer argues it is entitled to judgment because the two named plaintiffs, Calvin Bond and Cathy Bishop, did not have a serious health condition before the defendant suspended Bishop and terminated Bond for absenteeism.

On August 14, 1997, the defendant also filed a motion to dismiss as moot a class claim for injunctive relief [Doc. 72]. Defendant argues that the class claim now is moot because of a revision to Abbott Laboratories's Attendance Control Program. Plaintiffs concede the class claim is moot, but insist they should be awarded attorney fees and costs as the prevailing party.

The Court first will review the defendant's Attendance Control Program and its recent revision. Since Abbott Laboratories's revision moots the only class claim, the Court will grant the defendant's motion to dismiss the class claim for injunctive relief. The Court will not declare plaintiffs the prevailing party or award fees.

Next the Court will determine whether Bond's tooth extractions and Bishop's tendinitis fell under the Family and Medical Leave Act as serious medical conditions, or whether either plaintiff was incapacitated for at least four days. For the reasons given below, the Court finds Bond and Bishop are not entitled to Family and Medical Leave Act coverage. Therefore, the Court will grant the defendant's motion for summary judgment.

I. Procedural history

In September 1995, Plaintiffs Bond and Bishop filed a complaint against Defendant Abbott Laboratories. In the complaint, the plaintiffs requested class relief against Abbott, claiming that the defendant's Attendance Control Program at its Ashland, Ohio, facility violated the Family and Medical Leave Act. Plaintiffs requested certification of two plaintiff classes.

On May 30, 1997, the Court determined that plaintiffs could maintain this suit as a class action, but only "with respect to the question whether Abbott's Attendance Control Policy violates the FMLA on its face." The Court then certified the following plaintiff class¹ for purposes of injunctive relief only:

[a]ll "eligible employees" of Abbott Laboratories, within the meaning of the Family and Medical Leave Act, to whom its Ashland, Ohio plant's Attendance Control Program applies.

II. Factual background

The defendant's Ashland facility manufactures rubber and plastic products for the pharmaceutical and medical industries. The defendant employs approximately 400 unionized production and maintenance employees there. A collective bargaining agreement between Abbott Ashland and the union governs the terms and conditions of employment for the union employees. With respect to the Family and Medical Leave Act, the collective bargaining agreement says:

The COMPANY and UNION agree that this Agreement shall be administered in compliance with the Family and Medical Leave Act of 1993 (the "FMLA"). Any employee who wishes to do so, may elect a leave in accordance with the FMLA. The terms of, and procedures for electing, any such leave shall be as described in the FMLA and the regulations issued thereunder. In the event of conflict between the terms of this Agreement and the FMLA (and regulations issued thereunder), the FMLA and related regulations shall govern.

The defendant developed the Attendance Control Program in consultation with the union. Defendant claims the Attendance Control Program is administered so as to provide employees with more protection than the Family and Medical Leave Act requires.

Under this Attendance Control Program, absences are considered "excused" or "unexcused." Only certain unexcused absences result in successive levels of discipline. Under the terms of the Attendance Control Program, Defendant Abbott automatically excuses an employee's first four periods of absence within a rolling twelve-month period when the employee submits a medical excuse covering the absence. Abbott completely excuses these "Automatically Excused Absences" without considering the duration, nature or seriousness of the medical condition involved or the circumstances of the absence. Even absences that do not qualify under the FMLA are excused as "Automatically Excused Absences" under the Attendance Control Program.

After the first four periods of absence, a doctor's statement does not automatically excuse an employee's absence. After the first four periods of absence, Abbott supervisors or labor relations officials may excuse absences, even absences that do not qualify for protection under the FMLA. Record evidence shows the defendant will excuse absences when an employee is ill (with or without a doctor's note), or provides an adequate explanation of a personal reason for the absence. Even when an employee is late, supervisors or labor relations officials often excuse the absence merely upon the employee presenting a good reason as to cause. When an employee is absent for a medical reason for an extended period of time, Abbott will excuse the employee on a "leave of absence" basis or extended "sick leave."

Only unexcused absences may result in discipline under the Attendance Control Program. An employee is subject to progressive discipline (counseling, verbal warning, written warning, suspension and termination) only after the employee has two unexcused absences in one month or one unexcused absence in each of two consecutive months. Under the Attendance Control Program, an employee can have an unlimited number of excused absences or take an unexcused absence every other month and still not be subject to any discipline.

III. Abbott's amendment of policy and claim for class relief

After this action was filed, Defendant Abbott revised its attendance program. Abbott says it made its revision to clarify its policy and to avoid further litigating whether the Attendance Control Program complies with the requirements of the Family and Medical Leave Act. In this revision, Abbott added the following language:

Attendance Control Program

1. All time missed will count in the attendance program except the following:

a. Absences which qualify for leave in accordance with the Family and Medical Leave Act of 1993. (See Ashland Union FMLA Policy.)

b. Absences which do not qualify for leave in accordance with the Family and Medical Leave Act of 1993, but which are accompanied by a legitimate doctor's statement. The Company will excuse a maximum of four such absences during a rotating 12 month period.

In addition, Abbott's Ashland facility proposes to implement a separate Family and Medical Leave of Absence Policy, which further clarifies its employees' rights under the Family and Medical Leave Act.

The only remaining class issue in this case is whether the Attendance Control Program violates the FMLA on its face. Defendant Abbott moves to dismiss plaintiffs' class claim for injunctive relief for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1).

In Cotton v. Mansour, 863 F.2d 1241 (6th Cir.1988), cert. denied sub nom. Cotton v. Babcock, 493 U.S. 1042, 110 S.Ct. 835, 107 L.Ed.2d 831 (1990), the Sixth Circuit discussed whether subsequent acts of a party would make injunctive relief inappropriate. In Cotton, the court found that acts of the defendant rendered moot the plaintiff's claim for injunctive relief. There, the plaintiff had claimed that the defendant's policies regarding food stamp allotment were improper. Id. at 1242. However, the defendant "had clearly changed its policy of calculation" for food stamp allotment, so the court found that there was no ongoing violation to enjoin and that the plaintiff's claim for injunctive relief was properly dismissed as moot. Id. at 1244-45.

Abbott modified the language of the Attendance Control Program, and that revision was implemented earlier this year. The union did not object to the revised attendance program. Plaintiffs still argue the motion should be denied unless the Court declares plaintiffs the prevailing party and awards attorney's fees and costs.

The defendant's implementation of the new program and policy render moot plaintiffs' class claim for injunctive relief. The revision clarifies that any leave qualifying under the Family and Medical Leave Act is an excused absence that will not trigger discipline under the Attendance Control Program. The revision also restates the defendant's policy on "Automatically Excused Absences." Leave outside the Act's coverage, but still covered by a legitimate doctor's note, is an excused absence that will not trigger discipline under the Attendance Control Program, and the first four absences of this nature are automatic during any twelve-month period. Therefore, the Court will grant the defendant's motion and dismiss plaintiffs' class claim for injunctive relief.

The Court will not declare the plaintiffs the prevailing party. A prevailing party must have altered the legal relationship between the parties, even if it did not receive judgment in its favor, or at a minimum a voluntary change in a defendant's conduct. See Payne v. Board of Education, Cleveland City Schools, 88 F.3d 392, 397 (6th Cir.1996); Kerr v. Vick, 986 F.2d 1421 (TABLE), No. 92-3272, 1993 WL 43932, *3-4 (6th Cir.1993)(unpublished); Wooldridge v. Marlene Indus. Corp., 898 F.2d 1169, 1173-74 (6th Cir.1990). But see, McDonnell v. Miller Oil Co., Inc., 968 F.Supp. 288...