Ennis v. Donahoe

• Decision Date: 09 January 2014
• Docket Number: Case No. 13-CV-0055-CVE-FHM
• Parties: HARDLE ENNIS, JR., Plaintiff, v. PATRICK R. DONAHOE, Postmaster General, United States Postal Service, Defendant.
• Court: U.S. District Court — Northern District of Oklahoma

HARDLE ENNIS, JR., Plaintiff,
v.
PATRICK R. DONAHOE, Postmaster General,
United States Postal Service, Defendant.

Case No. 13-CV-0055-CVE-FHM

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

DATED: January 9, 2014

OPINION AND ORDER

Now before the Court are Defendant Patrick R. Donahoe's Motion to Dismiss or, in the Alternative, Motion for Summary Judgment and Brief in Support (Dkt. # 15) and Defendant's Motion for Hearing (Dkt. # 27). Defendant asks the Court to dismiss the case because plaintiff was not eligible to take leave under the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. (FMLA); because plaintiff was terminated for violating a last chance agreement and not for, or in retaliation for, taking FMLA leave; and because plaintiff has failed to serve the United States in compliance with Fed. R. Civ. P. 4(i). Plaintiff responds that he was eligible for FMLA leave, that defendant is equitably estopped from denying that plaintiff was entitled to FMLA leave, that there is a factual dispute as to the cause of plaintiff's termination, and that plaintiff should be given an extension of time to properly serve the United States.

I.

Plaintiff was employed by the United States Postal Service (USPS) from May 23, 1997, to January 28, 2011. Dkt. # 2, at 1; Dkt. # 15, at 2. In 2011, he worked as a mail processing clerk during the night shift at the Tulsa Processing and Distribution Center. Dkt. # 15, at 2; Dkt. # 20, at

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18. "Plaintiff has suffered from diabetes since 1997 and has received an FMLA certification for more than a decade." Dkt. # 15, at 2; see also Dkt. # 15-2. Between 2006 and 2009, plaintiff was granted FMLA leave "numerous times." Dkt. # 22-1, at 1.

Defendant alleges that plaintiff has "incurred numerous non-FMLA, unapproved, unscheduled absences" and that those absences "led to at least two suspensions and one prior notice of removal." Dkt. # 15, at 2; see also Dkt. # 15-3, at 3. In May 2010,¹ plaintiff entered into a last chance agreement with USPS. Dkt. # 20, at 18. The last chance agreement states that plaintiff "will have no more than two occurrences of unscheduled absences during any rolling 90-day period beginning with the signing of this agreement. Specifically, three unscheduled absences within 90 days of each other will constitute a breach of this agreement." Dkt. # 15-4, at 2. An "occurrence" is defined as "a. Any absence from duty of eight hours or less in duration. b. Any continuous absence from duty up to, but not exceeding 16 hours." Id. In the agreement, plaintiff acknowledged that any breach of the agreement by plaintiff would result in a notice of removal. Id. at 1-2.

The last chance agreement did not characterize leave under the FMLA as an unscheduled absence. Dkt. # 20, at 19; Dkt. # 22, at 9.² Additionally, plaintiff states that he had previously taken

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intermittent FMLA leave,³ and that those absences were not considered to be unscheduled. Id. Plaintiff states that, during his employment, three consecutive days of absences were considered to be one occurrence and that he "had numerous absences of three consecutive days which were considered one occurrence." Id. This final contention is disputed by Gail Thomas. Dkt. # 22-1, at 1. Gail Thomas is a safety specialist employed by USPS. Dkt. # 22-1, at 1. She has worked at USPS since 1985. Id. In January 2011, she was the FMLA coordinator and employer representative for the USPS Tulsa office, a position she had held since 2005. Id. Thomas states that she is "not aware of any occasion where [plaintiff's] absences of three consecutive days were treated as one occurrence for the purpose of attendance" and that she is "not aware of any occasion where a consecutive three-day absence by any USPS employee in the Oklahoma District was considered one occurrence for the purposes of attendance." Id. at 1-2. She further states that, to her knowledge, "USPS does not have any practice or policy to treat consecutive three-day absences as one occurrence for the purposes of attendance." Id. at 2.

Plaintiff states that on January 4, 2011, he contacted Thomas to inquire about his FMLA leave eligibility. Dkt. # 20, at 19. Plaintiff states that Thomas informed him that a notice of eligibility would arrive in the mail and that the notice would provide a date upon which he would be eligible for FMLA leave. Id. Thomas allegedly informed him that he "would have the hours and be eligible" for FMLA leave on the date provided in the notice. Id. Thomas states that she did not speak to plaintiff by telephone on January 4, 2011, and that she did not provide him with any of the information that he has alleged she provided him. Dkt. # 22-1, at 3.

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The January 5th notice of eligibility states that plaintiff was not eligible for FMLA leave, because he had not met the FMLA's 1,250 hours-worked requirement. Dkt. # 15-5, at 1. The notice states that he had worked only 1,225 hours. Id. The notice further states, "ESTIMATED DATE OF ELIGIBLE[sic]-01-15-2011." Id. Thomas states that this estimate assumes that an "employee will have no further absences prior to the estimated date." Dkt. # 22-1, at 2. The notice also states that if plaintiff's leave qualified as FMLA leave, he had the "right under the FMLA for up to 12 weeks of unpaid leave in a 12-month period calculated as . . . a fixed leave year based on The Postal Leave [sic] begining [sic] on the 1st full Pay Period of the Calender [sic] Year." Dkt. 15-5, at 2.

Plaintiff did not attend work on the nights of January 4, 5, or 6, 2011,⁴ but he alleges that the three missed nights were treated as a single occurrence by USPS. Dkt. # 20, at 19. He requested that the absences be treated as leave under the FMLA, but his request was denied in writing because he had allegedly not worked the necessary 1,250 hours during the previous twelve months. Id. Plaintiff alleges that the notice of denial he received stated that he had worked only 1,225 hours and stated that his estimated date of eligibility was January 15, 2011. Id.

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Plaintiff states that he "missed work" the nights of January 12, 13, and 14, 2011.⁵ Dkt. # 20, at 20. Plaintiff believes this constituted a second occurrence under the terms of the last chance agreement. Id. Plaintiff states that he worked the nights of January 7, 10, 11, 17, and 18, 2011. Id. Plaintiff's scheduled nights off were January 8, 9, 15, and 16, 2011. Id. at 18. Plaintiff also states that he worked a total of forty hours between January 5 and January 19, 2011. Id. at 20.

Plaintiff states that he contacted Thomas on January 15, 2011, to check on his FMLA status. Id. Plaintiff states that Thomas informed him that he "would be eligible after the date on the January 5 FMLA Notice and that [he] could rely on that." Id. Thomas states that she did not speak to plaintiff by telephone on January 15, 2011, and did not provide him with any of the information that he alleged she provided him. Dkt. # 22-1, at 4.

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Plaintiff claims that he was ill from January 19 to January 21, 2011, and was unable to attend work.⁶ Dkt. # 2, at 2; see also Dkt. # 20, at 20. Plaintiff states that, on each of those dates, he called an automated telephone number to report his absence and claim it as FMLA leave. Dkt. # 20, at 20. He states that the automated telephone service did not inform him of his FMLA eligibility status. Id.

Plaintiff states that USPS terminated his employment on January 28, 2011, due to his unexcused absences in violation of the last chance agreement. Dkt. # 2, at 2. However, plaintiff alleges that he was eligible for FMLA leave as of January 19, 2011, and that his absences on January 19, 20, and 21, 2011, were covered by the FMLA. Id. Plaintiff alleges that, because of the hours he worked between January 7 and January 19, 2011, he satisfied the FMLA's 1,250 hour requirement. Id.

After his termination, plaintiff states that he received another FMLA notice. Dkt. # 20, at 21. The notice was dated January 21, 2011. Dkt. # 15-8, at 1. The notice states that plaintiff was not eligible for FMLA leave, because he had not met the FMLA's 1,250 hours-worked requirement. Id. The notice states that he had worked only 1,169 hours. Id. The notice further states, "ESTIMATED DATE OF ELIGIBILITY - MARCH OF 2011." Id. The notice also states that if

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his leave qualified as FMLA leave, plaintiff had the "right under the FMLA for up to 12 weeks of unpaid leave in a 12-month period calculated as . . . a fixed leave year based on The Postal Leave [sic] begining [sic] on the 1st full Pay Period of the Calender [sic] Year." Id. at 2.

Defendant states that "[o]n February 3, 2011, USPS issued Plaintiff a Notice of Removal for Violation of the Last Chance Settlement Agreement." Dkt. # 15, at 5. The notice of removal states that plaintiff was removed from his position for violating the last chance settlement agreement. Dkt. # 15-10, at 1. On February 11, 2011, the president of the Tulsa Area Local American Postal Workers Union sent a letter to USPS stating that the union had reviewed plaintiff's attendance information, concluded that the last chance agreement was violated, and would not file a grievance. Dkt. # 15-11, at 1.

Plaintiff filed this case on January 28, 2013, and served Donahoe on February 5, 2013. Dkt. # 6, at 1; Dkt. # 8, at 1. Defendant filed a motion to dismiss for failure to serve...