Hunter v. Valley View Local Schools

• Citation: 579 F.3d 688
• Decision Date: 26 August 2009
• Docket Number: No. 08-4109.,08-4109.
• Parties: Eunice HUNTER, Plaintiff-Appellant, v. VALLEY VIEW LOCAL SCHOOLS, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

579 F.3d 688

Eunice HUNTER, Plaintiff-Appellant, v. VALLEY VIEW LOCAL SCHOOLS, Defendant-Appellee.

No. 08-4109.

United States Court of Appeals, Sixth Circuit.

Argued: June 18, 2009.

Decided and Filed: August 26, 2009.

ARGUED: Karen T. Dunlevey, Bieser, Greer & Landis, Dayton, Ohio, for Appellant. Lynnette Ballato Dinkler, Dinkler Pregon, Dayton, Ohio, for Appellee. ON BRIEF: Karen T. Dunlevey, Bieser, Greer & Landis, Dayton, Ohio, for Appellant. Lynnette Ballato Dinkler, Jamey Todd Pregon, Dinkler Pregon, Dayton, Ohio, for Appellee.

Before KEITH, CLAY, and GIBBONS, Circuit Judges.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

Plaintiff-appellant Eunice Hunter appeals from the district court's grant of summary judgment in favor of defendant-appellee Valley View Local Schools ("Valley View"). Hunter, a custodian for Valley View, was injured in a car accident in 2003. From 2003 to 2005, she took intermittent periods of leave pursuant to the Family and Medical Leave Act of 1993 ("FMLA") while she underwent three rounds of surgery. Soon after Hunter returned to work in August of 2005, Valley View placed her on involuntary leave. Hunter alleges that Valley View impermissibly considered her use of FMLA leave in deciding to place her on involuntary leave. The district court granted summary judgment in favor of Valley View, finding that Valley View would have taken the same action regardless of Hunter's FMLA leave. Because there is evidence that the FMLA leave was a motivating factor in Valley View's decision, we reverse the grant of summary judgment.

I.

Hunter joined Valley View as a substitute custodian in 1996 and became a full-time night custodian in 1999. As a night custodian, Hunter's duties included:

sweeping, mopping floors, waxing, emptying and cleaning waste receptacles, trash, and pencil sharpeners, refilling towel and soap dispensers in restrooms, and toilet tissue, removing cobwebs, cleaning windows, shampooing carpets, dusting, cleaning student desks, polishing furniture, lifting/moving furniture, moving boxes, and minor repairs.

Hunter continued to work full-time until June 16, 2003, when she was in a car accident unrelated to work. The accident caused nerve damage in Hunter's right hand, arm, and foot, and her arthritis in her right knee was aggravated. Consequently, Hunter was out of work for sixty days while she underwent surgery on her right foot. She returned to work on August 18, 2003, but she was limited to working four hours per day, five days per week. Hunter resumed full-time work on November 10, 2003, without any formal restrictions. In the spring of 2004, Hunter's doctor again placed her on a reduced schedule of twenty hours per week for thirty days. Hunter then had two separate surgeries, requiring a ninety-day leave. Hunter returned to work on July 2, 2004, beginning on a reduced schedule and resuming full-time work after one month. Hunter worked full time from August of 2004 until June of 2005. In June of 2005, Hunter had knee surgery necessitating a forty-five day leave. Hunter scheduled each of her surgeries in the summer because she "felt it was more important to be there" when school was in session.

Hunter returned from her third round of surgery on August 18, 2005, with permanent restrictions of no lifting, pushing, or pulling more than ten pounds; and no climbing stairs or ladders. The following month, Valley View superintendent Sherry Parr invited Hunter to a meeting with herself and her principal, Todd Kozarec. At the meeting, Hunter learned that she would be placed on involuntary, unpaid leave effective the following month. By letter dated October 3, 2005, Parr formally told Hunter that "as of October 14, 2005, you are hereby placed on unpaid medical leave not to exceed one (1) year based on your doctor's restrictions limiting your ability to perform your job and excessive absenteeism for the past four (4) years."

On June 8, 2006, Hunter filed a civil action in the Court of Common Pleas of Montgomery County, Ohio, alleging violation of the FMLA, as well as failure to accommodate, disability discrimination, and intentional infliction of emotional distress claims under Ohio law. Valley View removed this action to the United States District Court for the Southern District of Ohio.

In October of 2006, Valley View extended Hunter's involuntary leave for an additional year. Then, in February of 2007, Hunter's doctor reviewed a list of her job responsibilities and indicated that Hunter could perform them, with the exception of climbing on ladders to change light bulbs. Hunter was allowed to return to Valley View, where she apparently continues to work.

Following Hunter's return to work, Valley View filed its motion for summary judgment. In opposition, Hunter presented the deposition testimony of Superintendent Parr. Parr testified that Hunter's use of FMLA leave was one of two reasons she placed Hunter on involuntary leave. The district court found that this testimony constituted direct evidence that Valley View impermissibly considered Hunter's use of FMLA leave. Nonetheless, the court concluded that Valley View was entitled to judgment as a matter of law because it would have placed Hunter on involuntary leave in any event due to Hunter's permanent medical restrictions. Accordingly, the court granted summary judgment to Valley View on Hunter's FMLA claim, declined to exercise pendant jurisdiction over her state law claims, and remanded the remaining claims to the Court of Common Pleas. Hunter timely appealed.

II.

We review a district court's grant of summary judgment de novo. See Allen v. Highlands Hosp. Corp., 545 F.3d 387, 393 (6th Cir.2008). Summary judgment is proper "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). We must draw all reasonable inferences in favor of Hunter, the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Crawford v. TRW Auto. U.S. LLC, 560 F.3d 607, 611 (6th Cir.2009).

III.

Hunter alleges that Valley View placed her on involuntary leave based on her exercise of her rights under the FMLA, 29 U.S.C. § 2601 et seq. Valley View responds that it placed Hunter on involuntary leave because she was unable to perform the functions of her job and that it would have done so even if she had not taken FMLA leave.

The FMLA entitles an "eligible employee" to up to twelve weeks of leave per year if the employee has a "serious health condition" that prevents the employee from performing the functions of her job.¹ 29 U.S.C. § 2612(a)(1)(D); Walton v. Ford Motor Co., 424 F.3d 481, 485 (6th Cir. 2005). An employee who utilizes FMLA leave is entitled to be restored to her position, or an equivalent one, when she returns from the leave. 29 U.S.C. § 2614(a)(1). However, an employee who remains "unable to perform an essential function of the position" once her FMLA leave ends is not entitled to restoration or another position. 29 C.F.R. § 825.216(c).

An employer may not discriminate or retaliate against an employee for taking FMLA leave. 29 U.S.C. § 2615(a)(2). In particular, an employer is prohibited from "us[ing] the taking of FMLA leave as a negative factor in employment actions." 29 C.F.R. § 825.220(c); Arban v. West Publ'g Corp., 345 F.3d 390, 403 (6th Cir. 2003). Employers who violate the FMLA are liable to the employee for damages. 29 U.S.C. § 2617(a)(1); see, e.g., Bryant v. Dollar Gen. Corp., 538 F.3d 394, 397 & n. 1 (6th Cir.2008) (noting damages awarded pursuant to 29 U.S.C. § 2617). There are two theories of recovery under the FMLA: an interference (or entitlement) theory and a retaliation (or discrimination) theory. See Grace v. USCAR, 521 F.3d 655, 669 (6th Cir.2008). Hunter brings this claim under the latter category.

We have often relied on Title VII precedent to analyze FMLA retaliation claims. See, e.g., Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 707 (6th Cir.2008); see also Bell v. Prefix, Inc., 321 Fed.Appx. 423, 428 n. 2 (6th Cir.2009) (collecting cases). Recently, however, the Supreme Court reminded us that its Title VII decisions do not automatically control the construction of other employment discrimination statutes. See Gross v. FBL Fin. Servs., Inc., ___ U.S. ___, ___ - ___, 129 S.Ct. 2343, 2348-49, 174 L.Ed.2d 119 (2009). The Gross Court noted that Title VII "explicitly authoriz[es] discrimination claims in which an improper consideration was `a motivating factor' [among other, permissible factors] for an adverse employment decision." Id. at 2349 (citing 42 U.S.C. § 2000e-2(m)). This statutory authorization forms the basis for the burden-shifting instruction adopted in Price Waterhouse v. Hopkins, 490 U.S. 228, 258, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (plurality opinion), and followed by Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003). See Gross, 129 S.Ct. at 2349. By contrast, the Court found that the Age Discrimination in Employment Act ("ADEA") does not authorize claims in which the adverse employment action was based both on permissible and impermissible factors. Id. at 2350. Consequently, the Court declined to apply the Price Waterhouse burden-shifting framework to disparate treatment claims brought under the ADEA. Id. at 2351. Gross thus requires us to revisit the propriety of applying Title VII precedent to the FMLA by deciding whether the FMLA, like Title VII, authorizes claims based on an adverse employment action motivated by both the employee's use of FMLA leave and also other, permissible factors. We conclude that it does.

We begin by looking at the text of the statute. See Gross, 129 S.Ct. at 2350. The FMLA provides in relevant part:

(1) Exercise of rights

It shall be unlawful for any employer to interfere with,...