Scobey v. Nucor Steel-Arkansas

• Decision Date: 25 August 2009
• Docket Number: No. 08-1192.,08-1192.
• Citation: 580 F.3d 781
• Parties: Talmadge SCOBEY, Appellant, v. NUCOR STEEL-ARKANSAS, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

580 F.3d 781

Talmadge SCOBEY, Appellant, v. NUCOR STEEL-ARKANSAS, Appellee.

No. 08-1192.

United States Court of Appeals, Eighth Circuit.

Submitted: December 11, 2008.

Filed: August 25, 2009.

Justin Scott Gilbert, argued, Michael L. Russell, on the brief, Jackson, TN, for appellant.

Jeffrey S. Mayes, argued, David M. Minces and John K. Linker, on the brief, Houston, TX, for appellee.

Before BYE, BEAM, and SHEPHERD, Circuit Judges.

SHEPHERD, Circuit Judge.

Talmadge Scobey appeals the district court's¹ dismissal on summary judgment of his lawsuit alleging violations of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601 et seq. We affirm.

I.

In 1998, Scobey began working at Nucor Steel in Hickman, Arkansas. From 1999 to 2005, he worked as a "ladle man" at the steel mill, a dangerous and demanding position that involved the handling of thousands of pounds of molten steel. This position paid between $80,000 and $90,000 and allowed Scobey to work on a rotating shift.

This suit arises from Nucor's demotion of Scobey to a position in the company's shipping department for having incurred four unexcused absences from April 10-13, 2005, due to drunkenness. Scobey also had two prior unexcused absences in February 2005. Under Nucor's attendance policy, on the "fourth occasion" of an employee's unexcused absence that employee may be terminated from the company.

On Saturday, April 9, 2005, Scobey attempted to contact his direct supervisor, Kirby Teeter, and left him a message asking him to return Scobey's call, apparently without explaining the reason for the call. Although Teeter attempted to return the call on April 10, he did not speak with Scobey until April 11. Later on April 9, Scobey called Randy Blakemore, another supervisor and a friend of Scobey's, and disclosed that his ex-wife's father had passed away and asked how to arrange time off from work in order to attend the funeral. Blakemore told him that he should call into work and arrange a swap with another employee. Scobey then called Paul Seratt, a "lead man" at Nucor, to ask if he could take Wednesday, April 13, off from work to attend the funeral. Serratt told Scobey that he could attend the funeral if, while at work the next day, he arranged for a co-worker to work his shift.

On Sunday, April 10, Scobey did not come to work and called Seratt while intoxicated. Seratt stated that:

[Scobey] said he was through and done with us, he was very emotional and I was very concerned over his mental state at the time. I asked him not to do anything stupid, call in for Monday and come and talk to Kirby [Teeter], ... or myself over what he wanted to do or what his options were.

Seratt then called Blakemore to express his concerns about Scobey's welfare. Later that night, Scobey called and told Blakemore that he was "done, through" and then hung up the phone. Worried about Scobey's state of mind, Blakemore called Scobey back and then met with him in person. During their conversation Scobey complained to Blakemore about the pressure Nucor put on its employees.

On Monday, April 11, Teeter spoke with Scobey concerning his call on April 9. Scobey told Teeter that he had suffered a nervous breakdown and then hung up the phone without any further explanation. Teeter stated in an affidavit that Scobey's speech was slurred and that he had the impression that Scobey was intoxicated. Due to previous incidents of dishonesty Teeter did not believe Scobey's claim of a nervous breakdown and thought he was making excuses to avoid work because he was intoxicated. Then, Scobey called Steve Segars, a shift manager at Nucor, and told him that, due to the death of his former father-in-law and some personal problems, he would not be back at work for a while. Next, Scobey drove to Seratt's house and returned a ladder he had borrowed, but refused to speak with him. On April 12, Scobey did not show up at work and did not contact anyone at Nucor.

On April 13, Scobey missed work for the fourth consecutive day. He called and left a message with Kellie Crain, Nucor's Human Resources Manager and the person in charge of designating FMLA leave, saying that he would call her the next day. On April 14, Scobey called Blakemore and told him that he could not recall the previous four days and that he wanted some help. Blakemore told Scobey to contact HR Manager Crain. However, Scobey and Crain were unable to reach each other until April 19. On April 15, Scobey visited a physician. The physician diagnosed Scobey with hypertension, but did not mention depression or alcoholism and did not state that he needed time off from work. When Scobey and Crain spoke on April 19, Scobey told Crain that he had an alcohol problem and that he was depressed. Crain set up an appointment with the Employee Assistance Program ("EAP") for the next day.

On April 20, Scobey was assessed at Nucor's EAP, which referred him to Lakeside Behavioral Health System for inpatient treatment of alcoholism and depression. On April 26, Lakeside discharged Scobey and transferred him to outpatient care following diagnoses for alcohol dependence, alcohol withdrawal, depression, post-traumatic stress disorder, hypertension, and job/family impairment. Scobey terminated his outpatient care before its completion. Despite this, Nucor's EAP told Crain that Scobey had completed his initial treatment program. Nucor did not designate Scobey's absences for treatment as FMLA leave, but designated it as paid leave from the company.

On May 20, Scobey met with Nucor's plant manager, Sam Commella, to determine the appropriate discipline. During the meeting, Commella reminded Scobey that Nucor's absenteeism policy permitted termination after four consecutive, unexcused absences. Although he admitted to having a "taste" of beer a few days earlier, Scobey asked for a second chance. Commella agreed that Scobey had made efforts to improve his behavior, and that he could continue his employment with Nucor. However, Commella suspended Scobey for three days and demoted him to an entry-level position in Nucor's shipping department. This new position resulted in a 40-50 percent reduction in Scobey's pre-demotion pay and required that he work the night shift. Scobey now states that he interpreted his demotion as an attempt by Nucor to force him to quit. Nonetheless, Scobey did not object at the time to his demotion and, during the first two weeks of his new position, he received a pay raise. Soon thereafter and without notifying Nucor of his intent to leave, Scobey stopped coming to work.

Scobey then sued Nucor, asserting claims of interference and discriminatory retaliation under the FMLA. The district court dismissed both claims on summary judgment. The court dismissed his interference claim on the ground that Scobey had failed to provide notice that his four absences from April 10 to 13 might be FMLA-qualifying leave. The court dismissed his retaliation claim on the ground that there was no genuine dispute as to whether Nucor demoted Scobey for absences that were not protected by the FMLA.

II.

We review a grant of summary judgment de novo. Battle v. United Parcel Serv., Inc., 438 F.3d 856, 864 (8th Cir. 2006). Summary judgment is appropriate "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). In reviewing the grant of summary judgment, we view the evidence in favor of the non-moving party. Battle, 438 F.3d at 864.

"Under the [FMLA], an eligible employee is entitled to up to twelve weeks of unpaid leave during a twelve-month period `[b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee.'" Rask v. Fresenius Med. Care N. Am., 509 F.3d 466, 471 (8th Cir.2007) (quoting 29 U.S.C. § 2612(a)(1)(D)). "A `serious health condition' is any `illness, injury, impairment, or physical or mental condition that involves (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider.'" Phillips v. Mathews, 547 F.3d 905, 909 (8th Cir.2008) (quoting 29 U.S.C. § 2611(11)). Under our case law,

[t]here are two types of claims under the FMLA: (1) "interference" or "(a)(1)" claims in which the employee alleges that an employer denied or interfered with his substantive rights under the FMLA and (2) "retaliation" or "(a)(2)" claims in which the employee alleges that the employer discriminated against him for exercising his FMLA rights.

Id. (quotation omitted) (citing 29 U.S.C. § 2615(a)(1)-(2)). But see id. at 913-14 (Colloton, J., concurring) (arguing that claims alleging retaliation against an employee for exercising his or her FMLA rights are properly understood as interference claims under section 2615(a)(1), not discrimination claims under section 2615(a)(2)). Scobey appeals the summary dismissal of his interference and retaliation claims.

"In order to state a claim for interference under the FMLA, [Scobey] must have given notice of [his] need for FMLA leave." Phillips, 547 F.3d at 909. Although the FMLA statute does not define the type and timing of the notice required when the need for leave is unforeseeable, the Department of Labor's ("DOL's")

regulations provide some considerable guidance, and they are generous to employees. Notice must be given "as soon as practicable," but "the employee need not explicitly assert rights under the FMLA or even mention the FMLA" to require the employer to determine whether leave would be covered by the FMLA.

Rask, 509 F.3d at 471 (quoting 29 C.F.R. § 825.303(a), (b) (2007)). Although recent amendments to the DOL's regulations have somewhat curtailed this generosity, the regulation in place during the events giving rise to this lawsuit stated that, after notice had been given

[t]he employer will...