Colburn v. Parker Hannifin/Nichols Portland Div.

Decision Date18 November 2005
Docket NumberNo. 05-1308.,05-1308.
Citation429 F.3d 325
PartiesBrian COLBURN, Plaintiff, Appellant, v. PARKER HANNIFIN/NICHOLS PORTLAND DIVISION, Defendant, Appellee.
CourtU.S. Court of Appeals — First Circuit

Howard T. Reben, with whom Adrienne S. Hansen and Reben, Benjamin & March were on brief, for appellant.

Frederick B. Finberg, with whom Peter Bennett and The Bennett Law Firm, P.A. were on brief, for appellee.

Before LYNCH, Circuit Judge, CAMPBELL and STAHL, Senior Circuit Judges.

LYNCH, Circuit Judge.

Brian Colburn was terminated from his job as a machine operator at the Nichols Portland Division of the Parker Hannifin Corporation ("Nichols"). Colburn sued, alleging primarily that his employer, Nichols, fired him in retaliation for his having taken leave protected under the Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. §§ 2601-54, and the similar Maine statute, Me.Rev.Stat. Ann. tit. 26, §§ 843-48. In turn, Nichols responded that it had discharged Colburn because he told the company he was out sick with a migraine when he was seen going to the gym, shopping, and driving around doing errands.

We affirm summary judgment in favor of the defendant on different grounds than those used by the district court and the magistrate judge. In doing so, we reject certain reasoning urged on those courts by the defendant. We hold that a claim for retaliatory discharge from employment is not extinguished by a finding that the plaintiff was unable to return to work at the expiration of his 12-week period of FMLA leave. Nonetheless, we hold that no reasonable jury could conclude that this particular plaintiff was fired in retaliation for his exercise of FMLA rights.


We recount the facts in the light most favorable to the plaintiff, who opposed the entry of summary judgment. Crete v. City of Lowell, 418 F.3d 54, 56 (1st Cir.2005). In January 1998, Nichols hired plaintiff Colburn as a utility worker. During the next four years, Colburn was promoted four times; he eventually held the position of Machine Operator I, with responsibility for troubleshooting machines, as well as for some training of other machine operators.

On October 2, 2001, during his lunch break at work, Colburn experienced what would turn out to be the first of many intensely painful migraines. Although he had suffered from sinus-related headaches in the past, the new wave of migraines was more severe and often accompanied by shooting pain, blurry vision, dizziness, or nausea. From October 17 to 22, 2001, Colburn went on a prescheduled hunting vacation. When he returned to work on October 23, he experienced a migraine a half hour into his shift at Nichols and had to leave work. From then on, he began to take intermittent sick leave on account of his migraines; he missed twenty-five days' work between October 2001 and January 31, 2002.

In autumn of 2001, Colburn filed with Nichols an application for short-term disability benefits. In that application, dated November 22, 2001, he stated that he was unable to perform "[a]ll activities when an attack occurs[,] including driving." The application was never finalized. On at least three occasions in December 2001, Shannon Craig, a human resources representative, requested from Colburn medical information that the company needed to substantiate his need for medical leave and to determine his eligibility for disability benefits. According to Craig's record of their conversations, Colburn repeatedly promised to submit the paperwork, but failed actually to do so. Colburn concedes that he did not submit any of the requested medical documents to the company. He now argues that at the time he filed the application, he had signed an authorization to release medical information that gave Nichols access to all of his medical records; accordingly, the onus was on Nichols to secure the necessary medical documents. At his deposition, however, he never testified that he had told Craig that she should get the medical records herself using his authorization.

Colburn asserted in his affidavit that while he was on leave, he frequently provided complete updates to his employer about his health. He testified at his deposition that when he spoke with Randy Purinton, his immediate supervisor, Purinton never put pressure on him to return to work or subjected him to criticism or discipline. In December 2001, however, Colburn spoke with Christine Fox, a human resources administrator at Nichols, about his medical condition. Colburn stated in his affidavit that Fox used a hostile tone and made him "feel like [he] was doing something wrong for making a medical claim."

On January 22, 2002, Nichols retained a private investigator to conduct surveillance of Colburn. Nichols states that it initiated the investigation because it became suspicious of Colburn for two reasons: first, Colburn failed to submit the medical information the company needed to process his disability application, despite three requests by human resources personnel, and second, he could not be reached at home on days when he had called in sick.

The investigator began surveillance of Colburn on January 23 and 24; Colburn reported for work on both days. On January 28 and 29, Colburn was scheduled to work the 2:30 p.m. to 11:00 p.m. shift. Sometime around 2 p.m. on January 28, Colburn called his supervisor to say that he had a severe headache and would not be able to come into work until later in the afternoon. Around 3 p.m., the investigator followed Colburn as he drove from his home to a gym. Thirty minutes after entering the gym attired in workout clothes, Colburn departed in jeans and a shirt. Colburn then drove to a video store, where he rented a video, and then to three variety stores. He emerged at 5:05 p.m. from the third store with a paper bag containing what appeared to be two bottles. Around the same time, he left a voicemail for his supervisor apprising him that his migraine had returned and that he would not be coming into work at all that day. At that point, the investigator lost sight of Colburn in heavy traffic. The investigator returned to Colburn's residence at 5:53 p.m. and, upon seeing that Colburn was in his garage, apparently gathering items from his car and preparing to go inside the house, discontinued surveillance for the day.

Upon resuming surveillance on January 29, 2002, the investigator observed Colburn departing from his home at 12:35 p.m. The investigator tracked Colburn as he drove to multiple locations: he went into his gym for about thirty minutes, rented videos from two video stores, and stopped at a bank. Colburn also visited two shopping areas, where he seemed to have been searching for a payphone. Around 2 p.m., Colburn left a voicemail for his supervisor indicating that he was ill and would not be able to work that day. After making that phone call, Colburn stopped at a variety store; there, he purchased a six-pack of beer and some pretzels. He did not return home until after 3:30 p.m., at which point the investigator discontinued surveillance.

On January 31, 2002, Jan Stanley, Nichols's human resources manager, received from the investigator a report detailing his observations during the course of his surveillance of Colburn. Later that day, company officials Steve Oliver and Harold Sexton, along with Randy Purinton, met with Colburn and informed him that he was being discharged. Colburn testified at his deposition that his understanding after that meeting was that they had terminated him in part because he had been observed at the gym at the same time he had called in sick. Stanley confirmed in deposition testimony that Colburn had been fired because his actions on January 28 and 29 were inconsistent with those of someone experiencing an incapacitating migraine. She also testified that Nichols has a "positive progressive discipline policy," under which employees usually receive some notice of, and opportunity to address, the employer's disciplinary concerns. However, under that policy, serious misconduct can result in immediate dismissal of the employee.

Both parties agree that at the time he was fired, Colburn had not exhausted the full 12-week leave period to which he was entitled under the FMLA. See 29 U.S.C. § 2612(a), (b). In key testimony, he admitted at his deposition that he "was unable to return to work due to his medical condition until 4/15/03," well past the expiration date of his FMLA leave. Stanley testified that Colburn was on unpaid leave at the time of his termination.

Colburn said at his deposition that he had no recollection of whether he had called in sick on January 28 and 29. Nor did he recall what he did those days if he had called in sick. He later acknowledged that he did, in fact, engage in the activities depicted in the surveillance tape. He argued, however, that the activities documented in the video were not "inconsistent with his having a migraine which prevented him from working"; he suggested that "he was most likely experiencing the onset or aftermath of a migraine, which did not prevent him from functioning at the minimal levels shown on the video."


Colburn filed suit on January 15, 2004 in federal district court against Nichols, alleging violations of the FMLA, 29 U.S.C. §§ 2601-54, and the similar Maine statute, Me.Rev.Stat. Ann. tit. 26, §§ 843-48.1 He made two FMLA claims. First, he alleged that Nichols interfered with his substantive rights under the FMLA by failing to restore him to his position following the termination of his FMLA leave, in violation of 29 U.S.C. § 2614. Second, he alleged that Nichols fired him in retaliation for his taking medical leave, in violation of 29 U.S.C. § 2615.

After the close of discovery, Nichols filed on August 2, 2004 a motion for summary judgment on all counts of the complaint. On October 8, 2004, a magistrate judge filed a recommended decision granting Nichols's summary...

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