Hansen v. Fincantieri Marine Grp., LLC

• Decision Date: 18 August 2014
• Docket Number: No. 13–3391.,13–3391.
• Citation: 763 F.3d 832
• Parties: James G. HANSEN, Plaintiff–Appellant, v. FINCANTIERI MARINE GROUP, LLC, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

763 F.3d 832

James G. HANSEN, Plaintiff–Appellant,

v.FINCANTIERI MARINE GROUP, LLC, et al., Defendants–Appellees.

No. 13–3391.

United States Court of Appeals, Seventh Circuit.

Argued May 19, 2014.

Decided Aug. 18, 2014.

Erica N. Reib, Attorney, Heins Law Office, Mequon, WI, for Plaintiff–Appellant.

Joel S. Aziere, Attorney, Buelow Vetter Buikema Olson & Vliet LLC, Waukesha, WI, for Defendant–Appellee.

Before ROVNER, WILLIAMS, and TINDER, Circuit Judges.

TINDER, Circuit Judge.

James Hansen sued his former employer, Marinette Marine Corporation, and its parent company, Fincantieri Marine Group, LLC (collectively FMG) in federal district court in Wisconsin, alleging violations of the Family and Medical Leave Act of 1993 (FMLA or Act), 29 U.S.C. §§ 2601–2654. He claims that FMG interfered with his rights under the FMLA and terminated his employment in retaliation for his exercise of rights under the Act.

The district court granted summary judgment in favor of FMG. The court ruled that without expert testimony Hansencould not show that his serious health condition rendered him unable to work ( i.e., perform one or more of the essential functions of his position) during the absences for which he claims he was entitled to FMLA leave and for which he was terminated, and Hansen had no such testimony. Because the law does not require a plaintiff to present expert testimony as to his incapacity, and Hansen's evidence has raised a genuine issue of material fact for trial, we vacate the district court's judgment and remand for further proceedings consistent with this opinion.

I. Background

Hansen was employed by FMG, which has an attendance policy. Under the policy, employees accumulate points for unexcused absences from work. An employee incurs one point for missing more than four hours of a scheduled work day. A point expires one year after it was incurred and then is deducted from an employee's total number of points. When an employee incurs ten or more points within a year, his employment is subject to termination. FMLA leave is not counted under the attendance policy. FMG's third party administrator, Matrix Absence Management, Inc., administers the attendance policy.

As of May 2, 2011, Hansen had nine attendance points. He was absent from work four days from May 3 through May 6, and on May 9. On May 3, he requested FMLA leave for his serious health condition: depression. On May 11, FMG received a medical certification from Hansen's physician, Dr. Michael Post, stating that Hansen had a condition that would cause episodic flare-ups periodically preventing him from performing his job functions. The physician wrote that Hansen “could not concentrate on [the] task at hand.” Dr. Post indicated that the condition commenced in October 2010 and was exacerbated on May 3, 2011. He stated that the probable duration of the condition was “months” and estimated the frequency of flare-ups as four episodes every six months and the duration of the related incapacity as two to five days. Based on Dr. Post's certification, Hansen's absences earlier that month were approved as FMLA leave and he did not incur any attendance points because of them.

Hansen requested FMLA leave for May 23, and May 31–June 1, and again for June 13–June 15. He was granted FMLA leave for those absences and incurred no attendance points for them. Hansen next requested FMLA leave for June 22 and 27. Matrix initially denied these requests, but FMG overruled it and granted Hansen FMLA leave. So Hansen also incurred no attendance points for these absences.

Next, Hansen requested FMLA leave for an absence on July 1 (his eighth episode). On July 6, Matrix sent Dr. Post a fax, indicating that the July 1 absence “is out of his frequency and duration. Please confirm item # 7.” Item # 7 on the medical certification form asks about the employee's need to attend follow-up appointments or work part-time or on a reduced schedule because of the employee's condition. It seems Matrix intended to seek confirmation about Item # 8 on the certification form, which asks about the estimated frequency and duration of episodic flare-ups as well as the duration of the related incapacity. That same date, Dr. Post faxed back his response to Matrix: “Item # 7 confirmed.” Based on this confirmation, Matrix denied Hansen's request for FMLA leave because his “[f]requency [was] exceeded.” Hansen incurred one attendance point as a result.

Hansen requested FMLA leave for absences on July 11–13 (his ninth episode) and again on July 18 (his tenth episode). Matrix denied these requests, indicating that Hansen's “[f]requency [was] exceeded.” Hansen therefore incurred one attendance point for each day he was absent. As a result, he had accumulated thirteen points in one year. (Some of his points had expired and had been deducted from his point total, so he did not exceed ten points sooner.)

On July 22, FMG met with Hansen and terminated his employment for violating its attendance policy. FMG explained that he “exceeded [his] frequency” under which he could “miss 4 times every 6 months” and that “Matrix called your doctor and there was no change in your certification.” Hansen asked if there was “any way to reverse any of the dates?” and was told to “[g]et a hold of Matrix.”

Subsequently, on July 26, Dr. Post sent FMG and Matrix a letter, indicating that he was modifying his original certification: he was increasing the period of incapacity “to cover the entire year of 2011 until December 31” and “[w]ith further insight into [Hansen's] clinical course,” he was “amending question 8's answer to increase[e] the frequency [of episodes] to once a month for a duration of 2–5 days per episode.” The letter did not mention or refer to Hansen's July absences. FMG did not retract its termination of Hansen's employment.

Hansen sued FMG under the FMLA alleging claims of interference and retaliation. The retaliation claim stands or falls with his interference claim.¹ FMG moved for summary judgment, arguing that Hansen was not entitled to FMLA leave for his July 2011 absences because he significantly exceeded the estimated frequency in Dr. Post's medical certification. The district court denied FMG's motion, noting that it appeared Hansen was taking off more time than was medically necessary, but it was not so clear as to justify summary judgment. Shortly before trial, however, FMG sought reconsideration, arguing that Hansen needed expert medical testimony to establish that he was incapacitated due to his serious health condition during the July 2011 absences and that he had none. The court agreed, concluding that expert medical testimony was required to prove that Hansen's serious health condition rendered him unable to perform the functions of his position during the absences for which he sought FMLA leave. It therefore decided that Hansen could not establish entitlement to FMLA leave and granted FMG summary judgment on all claims. Hansen appealed.

II. Discussion

On appeal, Hansen asks us to decide two issues: 1) whether an employer is allowed to deny intermittent FMLA leave when an eligible employee exceeds the estimated length or duration provided in his medical certification form, and 2) whether a plaintiff-employee is required to present expert testimony at trial to prove that he was incapacitated for each day for which he requested FMLA leave. FMG responds that Hansen cannot prove a prima facie case of FMLA discrimination and retaliation without an expert witness or medical documentation to show that his July 2011 absences were medically necessary. FMG also claims that Hansen's appeal is frivolous and seeks sanctions under Rule 38 of the Federal Rules of Appellate Procedure. We conclude that the district court erred in deciding that Hansen needed expert testimony to prove that his serious health condition rendered him unable to perform the functions of his job on the specific dates at issue. Hansen has evidence that raises a reasonable inference that he was entitled to FMLA leave for his July 2011 absences; therefore, we reverse the district court's grant of summary judgment and deny FMG's request for sanctions.

We review the grant of summary judgment de novo, viewing the record and drawing all reasonable inferences in the light most favorable to the non-moving party. Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir.2014). Summary judgment is appropriate if the moving party “shows that there is no genuine dispute as to any material fact and [he] is entitled to judgment as a matter of law.” Id. (quotation marks and citation omitted). We will reverse a grant of summary judgment if there is “a material issue of fact ... that would allow a reasonable jury to find in favor of the nonmoving party.” Id. “A ‘court may not ... choose between competing inferences or balance the relative weight of conflicting evidence; it must view all the evidence in the record in the light most favorable to the non-moving party and resolve all factual disputes in favor of the non-moving party.’ ” Orton–Bell v. Indiana, No. 13–1235, 759 F.3d 768, 773, 2014 WL 3566338, at *4 (7th Cir. July 21, 2014) (quoting Abdullahi v. City of Madison, 423 F.3d 763, 773 (7th Cir.2005)).

A. The FMLA

The FMLA provides that an eligible employee may take up to twelve weeks of leave during any twelve-month period if he is unable to perform the functions of his position because of a serious health condition. 29 U.S.C. § 2612(a)(1)(D). An employer is prohibited from interfering with the exercise of or the attempt to exercise any right under the FMLA. James v. Hyatt Regency Chi., 707 F.3d 775, 780 (7th Cir.2013) (citing 29 U.S.C. § 2615(a)(1)). And it is unlawful for an employer to retaliate against an employee who exercises or attempts to exercise FMLA rights. Id. at 781 (citing 29 U.S.C. § 2615(a)(2)). To prevail on his interference claim, Hansen must show, among other things, that he was entitled to take leave under the FMLA...