Smith v. AS Am., Inc.

• Decision Date: 14 July 2016
• Docket Number: No. 15-1665,No. 15-1183, No. 15-1832,15-1183
• Citation: 829 F.3d 616
• Parties: Jamie Smith, Plaintiff–Appellee v. AS America, Inc., doing business as American Standard Brands, Defendant–Appellant Jamie Smith, Plaintiff–Appellant v. AS America, Inc., doing business as American Standard Brands, Defendant–Appellee Jamie Smith Plaintiff–Appellee v. AS America, Inc., doing business as American Standard Brands, Defendant–Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

829 F.3d 616

Jamie Smith, Plaintiff–Appellee

v.AS America, Inc., doing business as American Standard Brands, Defendant–Appellant

Jamie Smith, Plaintiff–Appellant

v.AS America, Inc., doing business as American Standard Brands, Defendant–Appellee

Jamie Smith Plaintiff–Appellee

v.AS America, Inc., doing business as American Standard Brands, Defendant–Appellant

No. 15-1183

No. 15-1665

No. 15-1832

United States Court of Appeals, Eighth Circuit.

Submitted: December 17, 2015

Filed: July 14, 2016

Rehearing and Rehearing En Banc Denied Aug. 18, 2016

David A. Campbell,Vorys, Sater, Seymour and Pease LLP, Cleveland, OH, argued, for appellant/cross-appellee.

Kathryn E. Denner, St. Louis, MO, argued, for appellee/cross-appellant.

Before MURPHY, BENTON, and KELLY, Circuit Judges.

KELLY

, Circuit Judge.

AS America, Inc. d/b/a American Standard Brands (ASB) denied Thomas Smith's request for intermittent Federal Medical Leave Act (FMLA) leave and fired him after he missed work. Following a bench trial, the district court found ASB violated Smith's rights under the FMLA and awarded Smith actual and liquidated damages, attorney's fees, expenses, and prejudgment interest. ASB appeals the court's decision regarding liability and its awards of liquidated damages and attorney's fees.¹ Jamie Smith² cross-appeals the district court's finding limiting the amount of her damages under the after-acquired evidence doctrine. Having jurisdiction under 28 U.S.C. § 1291

, we affirm the district court's decision regarding liability, liquidated damages, and attorney's fees. Because we find the district court made a clearly erroneous factual finding as to ASB under the after-acquired evidence doctrine, however, we reverse and remand the court's decision limiting damages.

I. Background

Thomas Smith worked at the ASB plant in Nevada, Missouri. His job required him to manually lift porcelain toilet bowls, tanks, urinals, and sinks on and off the kiln and refire carts. The bowls weighed an average of fifty pounds and the tanks weighed around twenty-five pounds. His shift ran from 11:00 p.m. to 7:00 a.m. Friday through Tuesday, and he was off on Wednesdays and Thursdays. ASB employees are fired when they reach 8 absences in a twelve-month period under ASB's no-fault attendance policy.

In January 2011, Smith missed three days of work due to sinusitis

and lower back pain. He went to an urgent care clinic and was prescribed muscle relaxants and advised to get physical therapy. Smith applied for FMLA leave and submitted a certification form that had been completed by a nurse practioner at the clinic. Smith's absentee records for January 9 through 11 contain a notation “FMLA per C. Morris”³ and his absence was recorded as FMLA leave.

On Friday, February 5, 2011, before his shift started, Smith hurt his back plowing snow. That night, he reported to work but left early due to back pain. On Saturday, February 6, and Sunday, February 7, Smith called ASB to report he could not work but that his absence should be covered by the intermittent FMLA leave granted in January.

Smith went to the urgent care clinic on Monday, February 7, and saw a nurse practitioner. He was advised to take anti-inflammatory drugs and the muscle relaxants he had been prescribed in January and to get physical therapy. He was also given a note from the nurse practioner to submit to ASB. The note stated: “Patient seen in clinic 2/7/11. Please excuse from 2/8/11 & needs FMLA form to be completed for lumbar strain.” Smith called ASB before his next shift started to report that he would be absent and that the absence should be covered by the intermittent FMLA leave approved in January.

On Tuesday, February 8, 2011, Smith went to the ASB plant to submit the note from the nurse practioner. Jackie Nall⁴ met with him and gave him documents assessing him three points for leaving his February 6 shift early and missing his February 7 and 8 shifts. She also gave him a document dated February 8, 2011, that purportedly denied his January request for FMLA leave. ASB then fired Smith for having 8 absences.

On February 11, 2011, Smith submitted a new application for FMLA leave and an FMLA certification form filled out by the clinic nurse practitioner. The certification form noted Smith had been prescribed muscle relaxants for a thoracolumbar spasm and referred for physical therapy. ASB did not request any additional information from Smith concerning his February 11 FMLA application but did not grant him FMLA leave and did not reinstate him. Smith then sued ASB, claiming wrongful interference with his FMLA rights.

At Thomas Smith's deposition, ASB learned that he had been arrested and jailed on July 13, 2011. The parties disputed when Smith was released from jail and how many absences he would have accrued as a result of being jailed had he still been employed at ASB. Following trial, the court found ASB proved that Smith had not been released from jail until July 20, 2011, and thus would have reached 8 absences on July 20, 2011. The court awarded Jamie Smith $13,865.84 in lost pay up to July 20, 2011, and $13,865.84 in liquidated damages. The court also granted Smith $159,944.66 in attorney's fees and costs.

II. Discussion

The FMLA entitles an eligible employee to twelve weeks of unpaid leave during any twelve-month period for a “serious health condition that makes the employee unable to perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D)

. To succeed on a claim of FMLA interference, an employee must show she was eligible for FMLA leave, the employer knew she needed FMLA leave, and the employer denied her an FMLA benefit to which she was entitled. Hasenwinkel v. Mosaic , 809 F.3d 427, 432 (8th Cir. 2015). FMLA interference includes “refusing to authorize FMLA leave.” Stallings v. Hussmann Corp. , 447 F.3d 1041, 1050 (8th Cir. 2006) (quoting 29 C.F.R. § 825.220(b) ).

A. ASB Appeal

ASB asserts the district court erred in finding Smith qualified for FMLA leave because Thomas did not have a “serious health condition” within the meaning of the FMLA. Whether an employee has a serious health condition is a mixed question of fact and law. Thorson v. Gemini, Inc., 205 F.3d 370, 377 (8th Cir. 2000)

. Following a bench trial, we review a district court's findings of fact for clear error and its legal conclusions de novo. Schaub v. VonWald , 638 F.3d 905, 923 (8th Cir. 2011) ; see also Fed. R. Civ. P. 52(a). “A finding is clearly erroneous when ‘although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ” Id. (quoting Anderson v. City of Bessemer City , 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)

). We may not reverse the district court's findings of fact simply because we would have decided the case differently. Id. If the evidence could lead to two plausible conclusions, the district court's choice between them cannot be clearly erroneous. Id.

The FMLA defines “ ‘serious health condition’ as ‘an illness, injury, impairment or physical or mental condition that involves' inpatient care or ‘continuing treatment by a health care provider.’ ” Dalton v. ManorCare of W. Des Moines IA, LLC , 782 F.3d 955, 960 (8th Cir. 2015)

(quoting 29 U.S.C. § 2611(11) ). While the FMLA statute does not further define “continuing treatment,” the Department of Labor's regulations' definition of “continuing treatment” includes “chronic conditions” and periods of “incapacity and treatment.” 29 C.F.R. §§ 825.115(a), 825.115(c). “We have previously observed that although conditions like the common cold or the flu will not routinely satisfy the requirements of a ‘serious health condition,’ absences resulting from such illnesses are protected under FMLA when the regulatory tests are met.” Rankin v. Seagate Techs., Inc. , 246 F.3d 1145, 1147 (8th Cir. 2001) (citing Thorson , 205 F.3d at 379 ).

The district court found Smith's February absences met the objective regulatory tests for both a chronic condition and a period of incapacity and treatment. The FMLA regulations define a chronic condition as one that “(1) [r]equires periodic visits (defined as at least twice a year) for treatment by a health care provider,” (2) “[c]ontinues over an extended period of time (including recurring episodes of a single underlying condition),” and (3) “[m]ay cause episodic rather than a continuing period of incapacity (e.g., asthma

... etc.).” 29 C.F.R. § 825.115(c). ASB concedes both certification forms Smith submitted in January and February 2011 track the language of 29 C.F.R. § 825.115(c), but argues that Smith's back pain cannot be considered a chronic condition because his two visits to the urgent care clinic were the only two times he ever sought medical treatment for his back.

“[The] operative time for determining whether a particular condition qualifies as a serious health condition is the time that leave is requested or taken.” See Hansler v. Lehigh Valley Hosp. Network , 798 F.3d 149, 156 (3d Cir. 2015)

(citing Navarro v. Pfizer Corp. , 261 F.3d 90, 96 (1st Cir. 2001) ). “There is no requirement in the statute that an employee be diagnosed with a serious health condition before becoming eligible for FMLA leave.” Stekloff v. St. John's Mercy Health Sys. , 218 F.3d 858, 863 (8th Cir. 2000). In fact, the regulations allow FMLA leave for a chronic condition even when the employee “does not receive treatment from a health care provider during the absence,” such as when an asthmatic person is unable to report to work because of an asthma attack. Id. (quoting 29 C.F.R. § 825.115(f) ). The FMLA regulations for a chronic condition require only two visits per year to a health care provider for treatment. 29 C.F.R. § 825.115(c)(1). The record shows Smith had two visits to the urgent care clinic for lower back pain. That Smith did not seek medical treatment for lower back pain before January 2011 or after being fired by ASB is not...