Brannon v. OshKosh B'Gosh, Inc.

• Decision Date: 09 August 1995
• Docket Number: No. 2:94-0090.,2:94-0090.
• Citation: 897 F. Supp. 1028
• Parties: Penny BRANNON v. OSHKOSH B'GOSH, INC., and Lilly Crisp, Individually.
• Court: U.S. District Court — Middle District of Tennessee

897 F. Supp. 1028

Penny BRANNON v. OSHKOSH B'GOSH, INC., and Lilly Crisp, Individually.

No. 2:94-0090.

United States District Court, M.D. Tennessee, Northeastern Division.

August 9, 1995.

COPYRIGHT MATERIAL OMITTED

William Bush, Rural Legal Services, Cookeville, TN, for plaintiff.

Timothy K. Garrett, Bass, Berry & Sims, Nashville, TN, for defendants.

MEMORANDUM

MORTON, Senior District Judge.

I. INTRODUCTION

Plaintiff Penny Brannon brought this action against her former employer and its human resources manager, alleging that her termination for excessive absenteeism was in violation of her rights under the Family and Medical Leave Act of 1993 (the "Act" or "FMLA"). 29 U.S.C. § 2601 et seq. Plaintiff claims that certain absences from employment in December 1993 and January 1994 constituted "leave" under the FMLA and should not have counted against her under her employer's absence policy. Plaintiff seeks lost wages, interest, liquidated damages and equitable relief.

Currently before the court are plaintiff's motion for partial summary judgment on the issue of liability and defendants' motion for summary judgment. Also before the court are defendant's motion to strike certain materials in support of plaintiff's motion, and plaintiff's motion to strike materials that defendant failed to produce in discovery. The court heard oral argument on these motions on July 11, 1995. For the reasons set forth below, plaintiff's motion for partial summary judgment is granted, and defendants' motion for summary judgment is denied. Also, defendants' motion to strike is granted in part and denied in part, and plaintiff's motion to strike is granted.¹

II. FACTS

A. Background

Plaintiff Penny Brannon began working for OshKosh B'Gosh, Inc. (OshKosh) on October 19, 1992. Defendant OshKosh is a corporation with a place of business in Jamestown, Tennessee, engaged in the manufacture of children's garments. Defendant Lilly Crisp is the Human Resources Manager at the Jamestown plant. Plaintiff worked in a production sewing job in the Jamestown facility, which employs approximately 260 employees. At the outset of her employment, plaintiff confirmed in writing that she received a copy of Oshkosh's employee handbook.

B. OshKosh's Absenteeism Policy

In its handbook, OshKosh explained its absenteeism policy, a policy which is based on a point system. An employee receives points due to tardiness, an absence, or a "leave-early." Under the policy, an employee is assessed one point per hour that she is absent part of the day. If an employee is absent an entire day, 8 points are assessed. If an employee is out sick for longer than one day, up to four consecutive days, it is considered one "occurrence" under OshKosh's attendance policy, for which 8 points are assessed. If an employee misses no days in a month, she is rewarded with an eight-point credit that month for perfect attendance.

Oshkosh recognizes some circumstances under which an employee's absence will not count as points, such as jury duty or work-related injury leave. Also, any absence that qualifies under FMLA should not be counted against the employee. Finally, only points accumulated in the most recent 12 months are considered. Points more than one year old are dropped from an employee's total.

If an employee accumulates a certain number of points within any 12-month period, certain disciplinary action is taken. When an employee accumulates more than 80 points in a 12-month period, he or she may be terminated for excessive absenteeism. Discipline under the point system is administered as follows:

(1) When an employee accumulates 30 points, she is verbally counseled.

(2) When an employee accumulates 45 points, she receives a written consultation memo.

(3) When an employee accumulates 60 points, she receives a second written consultation memo.

(4) When an employee receives 80 points, she receives a third and final written consultation memo and is terminated from employment.

(Crisp Depo., Ex. 8). At the end of April 1993, plaintiff had accumulated 30 points. She received the first level of discipline under OshKosh's absenteeism control policy, an "informal coaching" from her supervisor, Penny Leffew. On June 10, 1993, plaintiff received the second level of discipline — a written consultation memo — because her points exceeded 45 at the end of May 1993. On July 27, 1993, plaintiff received the third level of discipline — a second consultation memo — after she accumulated 60 points. By the end of November 1993, plaintiff had accumulated 70 points.

Plaintiff was absent on two separate occasions in December 1993 and January 1994, for which OshKosh assessed points. As a result, plaintiff accumulated 82.5 points and was terminated on January 12, 1994. These two periods of absence are the subject of this lawsuit. If one or both absences were covered under the FMLA, then her termination due to absenteeism violated the FMLA.²

C. The December Absences

On Monday, December 13, 1993, Plaintiff reported to work feeling sick and left early due to illness and vomiting. Plaintiff was absent from work the afternoon of December 13 and all day on December 14, 15 and 16. Plaintiff called in sick each morning. Plaintiff returned to work on Friday, December 17. Plaintiff gave Ms. Leffew a note stating that plaintiff had seen Dr. Mark Allen Clapp on Wednesday, December 15. The note contained no other information regarding her absence.

Upon plaintiff's return to work, there was little or no discussion about the extent of plaintiff's medical condition. No one at OshKosh sought details from plaintiff about her illness, its severity, her visit to the doctor or course of medications prescribed. Nor did plaintiff offer any information about her illness, other than the fact she had an "upper respiratory infection."³ Oshkosh did not request, and plaintiff did not offer, any further medical documentation from a health care provider.

Dr. Mark Clapp, a family practitioner in Jamestown, Tennessee, saw plaintiff on December 15, 1993. Dr. Clapp testified by deposition on March 29, 1995. He did not personally recall anything about the examination, and his testimony was based exclusively on what was reflected in plaintiff's clinical records.

Plaintiff presented herself to Dr. Clapp complaining of nausea and vomiting, some neck pain, a nonproductive cough, diarrhea and flu-like symptoms. Upon physical examination, Dr. Clapp noted a runny nose, but no other remarkable abnormalities. He diagnosed gastroenteritis, an infection of the intestines that often results in vomiting, nausea and diarrhea, and an upper respiratory infection. He prescribed three medications: Phenergan VC with codeine (antihistamine, decongestant, cough suppressant); Septra (antibiotic); and Prednisone (anti-inflammatory).

Dr. Clapp's office gave Ms. Brannon a "certificate to return to work or school," indicating simply that Ms. Brannon had been in Dr. Clapp's office on December 15, 1993. Dr. Clapp's signature on the note was signed by Janie Ledbetter, an office assistant.

There is no indication in the chart that Dr. Clapp advised Ms. Brannon to remain off work. Dr. Clapp's records indicate only that Ms. Brannon "desired to get back to work." Dr. Clapp usually makes a notation if he advises a patient to remain off work, but admits he probably doesn't do it every time.

In this case, Dr. Clapp cannot testify that plaintiff was physically unable to work due to her illness. He did testify that, based on his examination of her on December 15, it would be reasonable for her to be absent from work for three and one-half days. He also testified that one medication he prescribed, Phenergan VC with codeine, may cause drowsiness and would affect plaintiff's ability to operate a sewing machine, although he did not tell plaintiff to refrain from operating a sewing machine.

As a result of plaintiff's absence on December 13-16, OshKosh assessed plaintiff 8 points under its absence policy. Plaintiff knew that the absence had counted against her. By the end of December, plaintiff had accumulated 75.5 points.

D. The January Absences

Plaintiff's three-year-old daughter, Miranda Brannon, became ill on Thursday evening, January 6, 1994. According to her parents, her symptoms were fever, sore throat, runny nose and vomiting.⁴ Miranda stayed home from day care Friday, January 7, 1994. Because of plaintiff's high point situation, plaintiff's husband Tommy Brannon stayed home from work on January 7, 1994, to care for Miranda.

Plaintiff claims that on Friday, January 7, 1994, she told Ms. Crisp that Miranda was sick and that plaintiff may have to miss work on Monday if Miranda did not get better. Plaintiff claims that Ms. Crisp told her that if plaintiff missed work because of Miranda's sickness, points would not be assessed against her if she brought in a doctor's note. Ms. Crisp denies that any such conversation took place.

Miranda continued to be ill over the weekend, and plaintiff and Tommy Brannon took her to the Fentress County Hospital emergency room on Sunday, January 9, 1994. Miranda was treated by Dr. Jonathan Allred.

According to the medical records, Miranda was admitted to the emergency room at 4:45 p.m. on Sunday with a fever of 100.4 degrees, runny nose, cough and sore throat. According to her parents, these symptoms existed two or three days before her visit to the emergency room. Upon physical examination, Dr. Allred noted that Miranda was alert and non-toxic, i.e., that she was active and didn't appear lethargic or acutely ill. His examination revealed a low-grade fever, a runny nose and reddened throat. He diagnosed acute pharyngitis (infected throat) and an upper respiratory infection. He prescribed Pediazole, an antibiotic. He also recommended Triaminic or Dimetapp, Tylenol and increased fluids. He told Miranda's parents to return in two or three days if her condition did not improve, and sooner if her condition worsened. Dr....