Call v. Fresenius Medical Care Holdings, Inc.
| Decision Date | 01 February 2008 |
| Docket Number | Civil Action No. 05-30245-MAP. |
| Citation | 534 F.Supp.2d 184 |
| Parties | Karen CALL, Plaintiff v. FRESENIUS MEDICAL CARE HOLDINGS, INC. and Bio-Medical Applications of Massachusetts, Inc., Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Jennifer Belli, Goulston & Storrs, Kenneth M. Bello, Josiah M. Black, Bello, Black & Welsh, LLP, Boston, MA, for Defendants.
Suzanne Garrow, Heisler, Feldman & McCormick, P.C., Springfield, MA, for Plaintiff.
Mary J. Kennedy, Bulkley, Richardson & Gelinas, Springfield, MA, for Interested Party.
MEMORANDUM AND ORDER REGARDING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT, AND MOTIONS TO STRIKE
After plaintiff Karen Call took leave to care for her adult daughter, Defendants Fresenius Medical Care Holdings, Inc. ("Fresenius") and Bio-Medical Applications of Massachusetts, Inc. ("Bio-Medical"), her employers, fired her upon her return from that leave, citing her history of unauthorized leave and her failure to keep them updated as to her status fall charges Defendants with violation of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2615(a)(1) and (2), based on their refusal to grant her medical leave and her subsequent discharge (Count I), as well as breach of contract for the contravention of Bio-Medical's written leave policies (Count II).
Defendants have brought a Motion for Summary Judgment as to all of Call's claims. (Dkt. No. 37, Def.'s Mot. for Summ. J.) Call has in turn filed a Motion for Partial Summary Judgment as to her claim of interference with her FMLA rights. (Dkt. No. 44, Pl.'s Mot. for Partial Summ. J.) For the reasons stated below, Plaintiffs motion will be denied and Defendants' motion will be allowed in part. Though the evidence proffered by Plaintiff is barely enough to survive summary judgment, she has alleged sufficient facts that a jury must hear and judge the credibility of her claims.
As is proper on cross-motions for summary judgment, the following overview sets out the undisputed facts, with any material disputes noted and construed in the light most favorable to the relevant non-moving party. Teragram Corp. v. Marketwatch.com, Inc., 444 F.3d 1, 8 (1st Cir.2006).
Karen Call began her tenure as an at-will employee at Yankee Family Dialysis ("the Yankee clinic"), a dialysis clinic in Greenfield, Massachusetts, in 1988. Defendants did not enter into any relationship with the clinic or Call until September 1997, when Plaintiff began work as a "leased" employee of Bio-Medical. She became a formal employee of Bio-Medical in spring 2001 when it took over the Yankee clinic.
Call worked at various times as both a patient care technician and an equipment technician. As a patient care technician, Call would assist nurses in providing dialysis services, while as an equipment technician she would perform preventative maintenance and repair on dialysis equipment.
Between 1988 and 2003, Call was supervised by Mary Ann Kleeberg, Director of Nursing at the Yankee clinic. Beginning in March 2003, Call came under the supervision of Michael Young. Young had become the Regional Technical Manager (also known as the Area Chief Technician) pursuant to Bio-Medical's switch to regional management of all technical positions, and generally spent about one day a week at the Yankee facility. According to Defendants, he was Call's direct supervisor from this point on. In January 2004, Nancy Shea took over Kleeberg's position as Director of Nursing.
During the course of her employment, Call received mixed evaluations. In 2001, Kleeberg's performance evaluation of Call indicated that she consistently provided effective assistance and worked well with co-workers. Kleeberg's March 2002 evaluation of Call noted that she was hardworking and a valuable member or the dialysis team. She received two promotions and several raises.
However, Call also had frequent attendance problems. Kleeberg first communicated this issue to Kathryn Dickey, the Area Administrator overseeing the Yankee clinic and others in the region, when Dickey began supervising the clinic in 1999. Between February and May 2002, Kleeberg discussed attendance issues with Plaintiff on several occasions. In May 2002, Call received a performance evaluation scoring her 0 out of 10 on attendance and punctuality, due to ten unauthorized absences during the previous year. She also received a written warning regarding her unauthorized absences in May 2002, stating that over seven such absences per year was unsatisfactory. This rebuke was followed by a written warning in September 2002 after Call took other unauthorized leave between May and September 2002. Meanwhile, Plaintiff had taken authorized FMLA leave between August 2 and August 22, 2002.
Call continued to have attendance problems in 2003, reporting late on several occasions. In February 2003, she was suspended for three days without pay after a "no-call/no-show" on February 24 in which she called several times promising to come in at some point during the day but never showed up. In a meeting with Call regarding this suspension, Kleeberg explained that further unexcused absences would lead to termination of her. employment and that her attendance would continue to be monitored. Kleeberg mentioned Call's pattern of Monday and Friday absences, as well as, the need for her to phone her supervisors directly and personally (her husband had called on previous occasions) to notify them of absences.
Young took over Call's evaluations as of March 2003. He noted her attendance difficulties in an April 2003 written evaluation in which Call again received 0 out of 10 for attendance and punctuality. In a subsequent meeting with Call that month, Young and Kleeberg emphasized the importance of "calling in" and Young instructed Call to contact him rather than the Director of Nursing regarding any absences.2
On April 14, 2003, disregarding Young's admonition, Call phoned Kleeberg at home at 1:15 a.m. to report an absence, stating that her husband was sick due to alcoholism and had fallen and broken the toilet, flooding her home. Call took intermittent leave under the FMLA in connection with this and related incidents between April 12 and October 12, 2003. Plaintiff concedes she was not formally disciplined or criticized for taking any FMLA leaves or other excused absences before the incident precipitating this suit occurred in early 2004.
In the aftermath of the April 14 call, Young initially wanted to issue Call a written reprimand for failing to contact him rather than Kleeberg to report her absence. However, he was advised not to do so by Bio-Medical's human resources department and instead merely reminded Call of the correct protocol verbally. Between April 2003 and January 2004, Young also had two meetings with all the equipment technicians he supervised in the region, including Call, at which he instructed all of them to call him directly regarding any absences. Young provided the technicians with his cell phone number and beeper number, which were also posted on the technician's schedules and in the technical office at each location Young supervised.
Young expressed some worries about Call's technical competency as well as her. attendance, specifically citing her level of knowledge about the equipment and her performance of preventative maintenance. He spoke to Call about several relevant incidents and noted them on her April 2003 written performance evaluation.
On December 25, 2003, Jennifer Call, Karen Call's twenty-one year-old daughter, arrived at her mother's home complaining of stomach pain, vomiting, and fever.3 She stayed at Plaintiff's home until December 29. On that day, Call received a telephone call at work informing her that her daughter was at the emergency room of the Franklin Medical Center complaining of fever, nausea, and vomiting blood. Kleeberg gave Call permission to join Jennifer at the hospital.
An examination of Jennifer Call revealed that she was nineteen weeks pregnant. She was also diagnosed with non-serious bleeding from her upper gastrointestinal tract. She was discharged from the emergency room on the 29th without being admitted to the hospital.
Karen Call took her daughter to her (Jennifer's) home and left her there for the night. Jennifer returned to Karen Call's care on December 30 and spent every night from then until January 2 in her mother's home due to her vomiting, fever, pain, and difficulty walking. Call helped her daughter with eating, bathing, and other activities. Call observed that Jennifer seemed emotionally unstable during this time and that she experienced abdominal pain when she tried to sit upright in a car seat.
Jennifer decided to terminate her pregnancy. In late December, Call asked Kleeberg for time off to accompany her daughter to Boston Medical Center ("BMC"), where the abortion procedure would be performed. Kleeberg, who was leaving her job that month, gave Call permission to take time off to care for her daughter with the caveat that she should keep "people posted" as to her status. (Dkt. No. 38, Ex. G, Kleeberg Dep. 79:18-80:1.) According to Plaintiff, she specifically asked for and was granted leave through January 8 by Kleeberg and Young.4 .) Kleeberg did not recall whether she approved specific dates for Call's absence. (Dkt. No. 38, Ex. G, Kleeberg Dep. 25:16-29:19.) Kleeberg did remember informing Nancy Shea, her incoming replacement, that Call would be on leave to care for her daughter.
Call informed Young verbally of her need for time off. .) According to Plaintiff, she also faxed Young `a written request to obtain leave through January 8. (Id. at 110:1-7; Dkt. No. 48, Aff. of Karen Call ¶...
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