Fritz v. Phillips Service Industries, Inc.

• Decision Date: 12 May 2008
• Docket Number: Civil Case No. 06-11149.
• Citation: 555 F.Supp.2d 820
• Parties: Daniel FRITZ, Plaintiff, v. PHILLIPS SERVICE INDUSTRIES, INC. a Michigan corporation, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

555 F.Supp.2d 820

Daniel FRITZ, Plaintiff, v. PHILLIPS SERVICE INDUSTRIES, INC. a Michigan corporation, Defendant.

Civil Case No. 06-11149.

United States District Court, E.D. Michigan, Southern Division.

May 12, 2008.

COPYRIGHT MATERIAL OMITTED

Joey S. Niskar, The Niskar Law Firm, PLLC, Bingham Farms, MI, for Plaintiff.

James D. Vandewyngearde, Robert C. Ludolph, Pepper Hamilton, Detroit, MI, for Defendant.

ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION

PAUL V. GADOLA, District Judge.

Before this Court are the parties' cross-motions for summary judgment, the corresponding responses and replies, Magistrate Judge Komives' February 7, 2008 Report and Recommendation, Defendant's objections to the Report and Recommendation, and the response and reply to these objections. For the reasons stated below, the Court will overrule Defendant's objections and accept and adopt the February 7, 2008 Report and Recommendation as the opinion and order of the Court.

This matter comes before the Court on Plaintiff Daniel Fritz's March 17, 2006 complaint alleging that Defendant Phillips Service Industries, Inc. ("PSI") violated the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. In 2003, Plaintiff underwent surgery on his right knee for which Defendant granted Plaintiff FMLA leave. Plaintiff now claims that the medical condition that led to two days of absence from work at PSI on May 2-3, 2005, was the same condition that formed the basis of Plaintiffs undisputed FMLA leave more than two years earlier. Therefore, Plaintiff asserts that his May 4, 2005 termination due to excessive absences was improper under the FMLA. See 29 C.F.R. § 825.114(a)(2)(i). Defendant disputes whether the May 2-3, 2005 absence was sufficiently related to Plaintiffs previous right knee surgery for the purposes of the FMLA. Furthermore, Defendant challenges whether Plaintiff provided Defendant with sufficient notice that his May 2005 absences were FMLA related absences.

Reviewing the relevant pleadings, Magistrate Judge Komives concluded that genuine issues of material fact remained on each claim and that both motions for summary judgment should be denied. Magistrate Judge Komives found that, for purposes of Plaintiff's FMLA entitlement claim, there was a genuine issue of material fact as to whether the condition responsible for Plaintiff's May 2-3, 2005 incapacity was related to his previous knee condition, a condition for which Plaintiff was granted FMLA leave. Additionally, Magistrate Judge Komives concluded that based upon the available evidence there was a genuine issue of material fact as to whether Plaintiff provided Defendant with sufficient notice of his May 2-3 leave under the FMLA. Finally, because Plaintiffs FMLA retaliation claim rises or falls based upon his entitlement claim, Magistrate Judge Komives concluded that summary judgment in favor of Defendant was not appropriate on the retaliation issue at this time.

Defendant filed objections to the Report and Recommendation on February 22, 2008. Defendant asserts three main objections. First, Defendant argues that the evidence presented by Plaintiff does not raise a genuine issue of material fact "as to whether Plaintiff's May 2005 absences related to the treatment of the same condition as Plaintiff's knee surgery in 2003." See Def's Objs, pp. 13-14. Second, Defendant asserts that in denying Plaintiffs 2005 FMLA leave and terminating Plaintiff it was entitled to rely upon a "negative certification," see Nawrocki v. United Methodist Retirement Communities, Inc., 174 Fed.Appx. 334 (6th Cir.2006), that Plaintiff would not require any continuing treatment more than eight weeks following the 2003 knee surgery. According to Defendant, based upon the alleged "negative certification," it was proper to terminate Plaintiff's employment on May 4, 2005. Finally, Defendant objects to the Magistrate Judge's conclusion that Plaintiff provided Defendant PSI with sufficient notice of his intent to use FMLA leave for the May 2-3 absences. The Court will address each of these objections in turn.

First, Defendant's objection as to whether or not the condition that led to Plaintiff's May 2005 absences was the "same condition" as that underlying his 2003 knee surgery is unfounded. In May of 2003, while Plaintiff was employed with Defendant, Plaintiff underwent surgery on his right knee. Plaintiff spent several days in the hospital and was totally disabled for the purposes of his job from May until August of 2003. Neither party disputes that for the purposes of the FMLA, Plaintiff's 2003 condition was a "serious health condition" that qualified him for leave under the Act for the 2003 absences.

The affidavit of Dr. Finch, along with Plaintiffs medical records of May 2005, support the conclusion that there exists a genuine issue of material fact as to whether the May 2005 condition was the "same condition" as the May 2003 condition for which Plaintiff was granted FMLA leave. In particular, Dr. Finch's affidavit states in relevant part, "Mr. Fritz suffers from osteoarthritis of his right knee ... On May 2, 2005, Mr. Fritz' osteoarthritis in his right knee acted-up, and precluded him from working at his job on May 2, 2005 and May 3, 2005.... This condition which precluded Mr. Fritz from working on May 2, 2005 and May 3, 2005 was related to the right knee condition for which he had previously undergone surgery on May 27, 2003." Aff. Finch, ¶¶ 2, 7-9 (emphasis added). This provides at least some evidence that Plaintiff's May 2-3, 2005 absence was due to the "same condition" as that for which Plaintiff was granted FMLA leave in 2003. Additionally, the medical records demonstrate that Plaintiff's May 2005 knee surgery, surgery that occurred after Plaintiff's termination but that was scheduled and brought to Defendant's attention before the termination, was to remove a metal plate that had been inserted during the 2003 surgery. Although neither of these facts conclusively establish that the same condition underlies both absences, when taken together and in viewed in a light most favorable to the non-moving Plaintiff, the facts create a genuine issue of material fact as to whether the May 2005 absences were due to the "same condition" as was Plaintiff's May 2003 FMLA leave.

Turning to Defendant's next argument, Defendant asserts that "because Plaintiffs 2003 FMLA request form contained no reference whatsoever to any continuing treatment more than eight weeks following the procedure, PSI was entitled to rely upon that `negative certification' in denying Plaintiff's FMLA leave." See Def's Objs, pp. 15. Defendant's argument on this "negative certification" issue, both in the original motion for summary judgment and the objections to the Magistrate Judge's Report, is not well developed and ultimately is not persuasive on the Court. Defendant cites Nawrocki v. United Methodist Retirement Communities, Inc., 174 Fed.Appx. 334, 338 (6th Cir.2006), in support of its argument. However, the present case is readily distinguishable from Nawrocki.

In the unpublished case of Nawrocki, the plaintiff suffered from a ear condition and requested FMLA time off from her employer. The documentation provided by the employee's health care provider described her condition in detail but indicated that it was not necessary for plaintiff to miss any work due to the condition. Thus, the employer was provided a "negative certification" that the employee was not entitled to any FMLA leave. The employer, relying on the health care provider's explicit certification that leave was not necessary at all, denied the plaintiff's FMLA request. The employee was eventually terminated due to excessive absences and tardiness. The employee then sued the employer for violating her rights under the FMLA. The Court concluded that although the employee's condition was a "serious health condition," the employer properly relied upon the health care provider's explicit "negative certification" that the employee did not need to be absent from work due to the condition. Thus, the "negative certification" principle has been applied when the medical certification affirmatively states that despite the employee's recognized medical condition, the employee is not required to miss any work due to the condition. See Nawrocki, 174 Fed.Appx. at 338; Stoops v. One Call Communications, Inc., 141 F.3d 309, 311 (7th Cir.1998). Cf. Stevenson v. Hyre Elec. Co., 505 F.3d 720 (7th Cir.2007) (finding that an inconclusive medical statement is not a "negative certification" because it was not an "affirmative statement" indicating that the employee was not incapacitated for purposes of FMLA leave).

However, in the present case, Defendant is not seeking to rely upon any affirmative statement that Plaintiffs condition does not require the disputed time off. Indeed, the certification at issue indicates that Plaintiff did need time off from work due to his condition. The certification states that Plaintiff needed eight weeks of leave following his 2003 surgery. Defendant's effort to rely on the absence of any certification for need beyond the eight weeks post-surgery leave to deny Plaintiffs two days of leave now in dispute would vastly expand the present interpretation of the "negative certification" principle beyond its logical boundaries. The absence of any certification that Plaintiff would require leave beyond the initial eight-week recovery period is not equivalent to an explicit certification that Plaintiff did not require any absence from work due to his condition. Defendant's attempted expansion of the "negative certification" principle is not supported by existing case law or statute. Therefore, Defendant's objection in this regard will be rejected.

Finally, the Court has also considered Defendant's third objection to the Report and Recommendation and finds that it should be rejected as well. Defendant objects to the Magistrate Judge's conclusion that it is...