Dollar v. Smithway Motor Xpress, Inc.

• Decision Date: 27 March 2013
• Docket Number: No. 11–2093.,11–2093.
• Parties: Christine Ann DOLLAR, Plaintiff–Appellee v. SMITHWAY MOTOR XPRESS, INC.; Smithway Motor Express Corp., a Nevada Corporation, Defendants–Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

710 F.3d 798

Christine Ann DOLLAR, Plaintiff–Appellee

v.SMITHWAY MOTOR XPRESS, INC.; Smithway Motor Express Corp., a Nevada Corporation, Defendants–Appellants.

No. 11–2093.

United States Court of Appeals,

Eighth Circuit.

Submitted: Oct. 20, 2011.

Filed: March 27, 2013.

Roland M. Lowell, argued, Nashville, TN, for Appellant.

John Paul Roehrick, argued, West Des Moines, IA, for Appellee.

Before MELLOY, BEAM, and GRUENDER, Circuit Judges.

MELLOY, Circuit Judge.

Plaintiff Christine Ann Dollar sued her former employer alleging violations of the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq. Following a bench trial, the district court found in favor of Dollar and awarded a total of $296,112 in back pay, front pay, and liquidated damages. The defendants (collectively “Smithway”) appeal, raising arguments regarding Dollar's ability to return to her prior position or to a different position that the employer identified for Dollar weeks before her termination. Smithway also raises issues regarding its own corporate identity and changes in its ongoing operations as relevant to the propriety and amount of the front-pay award. We vacate the front-pay award as unduly speculative given the unique circumstances of this case, but we affirm in all other respects.

I. Background

Smithway is a national over-the-road trucking carrier. In 1989, Dollar first began working for Smithway in its dispatch department in Fort Dodge, Iowa. In 1998, after working for approximately nine years, she suffered a serious and extended period of depression and used all of her banked sick leave. She returned to work for a short while but then voluntarily quit her job and moved out of the state.

Dollar returned to Fort Dodge and resumed employment with Smithway in March 2006. In December 2006, she sought and received a transfer to the position of “driver manager.” The driver-manager position involved the supervision and coordination of thirty-five to forty truck drivers and required substantial interaction with the drivers. As a driver manager, Dollar's immediate supervisor was Todd Bird, and Bird's immediate supervisor was operations manager Al Kellett.

In May 2006, Dollar missed one day of work due to a minor illness, and in August 2006, she missed two days of work due to problems with depression medication. Dollar received an oral reprimand after the August absences as well as an email memorializing the reprimand, acknowledging her references to depression medication, and emphasizing the importance of attendance. In late September 2006, Dollarreceived an “acceptable” performance evaluation and a pay raise, but her reviewers noted the issue of attendance.

Dollar missed three and a half days of work in March 2007 and provided a medical excuse for three of the days. Bird discussed the absences with Dollar but did not reprimand her. In late March, Kellett conducted a performance evaluation and gave Dollar another pay raise. Kellett also gave Dollar another overall performance evaluation of acceptable but noted that her attendance and resulting productivity were “below expectations.” Kellett stated Dollar's strength was working with drivers, and he indicated that a different position working with drivers might be more appropriate. Kellett's evaluation stated:

Chris need[s] to be an every day player and for the most part she has. We cannot afford to take excessive time off. [She has] had an issue recently and cannot afford additional issues of this type and remain in the Driver Manager Position. We have been in contact with HR to discuss options of a different position working with drivers.

By spring 2007, then, Dollar had missed a few days of work, her employer had noted that attendance was of particular concern for the driver-manager position, and her supervisor and the human resources department had begun looking for other positions that might be a good fit for her. The primary events leading to Dollar's termination occurred in June and July 2007 when Dollar's depression took a substantial and sustained turn for the worse. We address the events from this time frame in greater detail because the factual findings at issue on appeal relate to this time period.

On Sunday, June 10, 2007, Dollar suffered depression, anxiety and insomnia of sufficient severity that she had a friend take her to a hospital's emergency room. She sought to be admitted to the hospital's psychiatric ward, but was denied admission because she was not threatening suicide and did not pose a risk of harm to others. She was given a prescription for a sleep aid and told to contact a mental health center the next day.

On June 11, Dollar called Kellett before her shift was to start at 7:00 am and left a message stating she would not be at work. She then sought medical treatment at the North Central Iowa Mental Health Center (the “Center”) where a licensed mental health counselor re-diagnosed her with depression. The counselor prescribed a different depression medicine and instructed her to take time off from work. The counselor wrote a medical excuse stating, “Christine Dollar is being seen at the Mental Health Center for depression. She should stay off work through Tuesday June 19.” The following day, Dollar left a voice-mail message for Kellett stating that she had received a medical excuse to be off work through June 19 and that she was being treated by the Center.

Dollar spoke to Kellett on the phone on June 13 or 14. During the call, Kellett told her she would no longer be working as a driver manager. Kellett did not know what her different position would be, but stated Tom Nelson, the Vice President of Human Resources and Safety, had a different position for her. Kellett also told Dollar that Nelson was on vacation and was expecting her to be back to work on June 25.

A psychiatrist at the Center met with Dollar on June 19, continued her medications, and determined she was not ready to return to work. The psychiatrist wrote a medical excuse stating Dollar was to remain on sick leave until July 9.

The next day, June 20, Dollar's father died, and his funeral was scheduled for June 25. Dollar called Smithway on June 25 and spoke to Nelson. Nelson told her she was expected to return to work on June 29 and that her new position would be as a driver recruiter. Dollar told Nelson of the psychiatrist's medical excuse to be off work until July 9. Nelson responded that if she did not return to work until July 9, he could not guarantee that she would have a job.

The following day, June 21, Dollar went to Smithway to drop off her medical excuses and talk to Nelson. Dollar's friend, Karen Byrd, accompanied Dollar and witnessed Dollar's conversation with Nelson. Nelson told Dollar he needed to fill the position of driver recruiter and could not guarantee that Dollar would have a job at Smithway if she did not return to work immediately. Dollar told Nelson she was not ready to return to work and had a medical appointment on July 3. Nelson told her to call him after her July 3 medical appointment and he would let her know if she still had a job with Smithway.

On July 3, Dollar called Nelson before her appointment because the appointment was late in the day and she likely wouldn't be able to reach him after the appointment. Nelson told Dollar to leave a message after her appointment. At the appointment, Dollar was prescribed new medications and given a medical excuse stating, “Please excuse Christine from work until 7–30–2007. She is not ready to return to work on July 9, 2007.”

On July 5, Dollar mailed the medical excuse to Nelson, and on July 6, she called Nelson to confirm his receipt of the excuse and tell him she was not ready to return to work. Nelson told Dollar he received the excuse but that the excuse did not make any difference. He stated he needed to fill the driver recruiter position immediately and would not hold it until July 30. Dollar asked Nelson if he was firing her, and Nelson replied yes. That day, Nelson filled out a company form noting Dollar's termination. The form appears to state Dollar's position was driver manager, although the word “manager” is unclear, and Nelson asserts Dollar's position was driver manager at the time he fired her. At the time of her termination, Nelson did not offer FMLA leave to Dollar or provide Dollar with any materials regarding FMLA leave or forms for physician certification of FMLA leave. Dollar did not expressly request FMLA leave.

Dollar then applied for unemployment benefits and Smithway objected, asserting she was fired for misconduct in that she had “Missed 28 days of YTD work + would not return.” Notwithstanding this assertion and the fact of her termination just days prior, Nelson states that, at a telephonic unemployment hearing on July 11, he told Dollar and an unemployment hearing officer that Smithway had work for Dollar and she could return whenever she wanted. Dollar, on the other hand, states that Smithway at no time told her she was a valued employee Smithway wanted to retain.

Dollar was initially denied unemployment benefits because she was found unable to work. On August 1, Dollar received medical clearance to work and, as a result, received unemployment benefits. Dollar at no time applied to return to Smithway, and she filed the present action approximately two years after her termination. Dollar received unemployment benefits for approximately fifteen months, during which time she was required to report her efforts at securing employment. While receiving the benefits, she sought other work and cared for her elderly mother who was suffering congenital heart difficulties following Dollar's father's death. Eventually, Dollar obtained employment as a desk clerk and night auditor at a motel in Fort Dodge where she worked full time, earned less than she had with Smithway, and enjoyed fewer benefits.

In the present complaint, Dollar asserted interference and retaliation claims. The defendants did not...