Smith v. City of Niles, 11-2394
| Decision Date | 19 November 2012 |
| Docket Number | No. 11-2394,11-2394 |
| Parties | LEDDREW SMITH, JR., Plaintiff-Appellant, v. CITY OF NILES, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a1186n.06
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MICHIGAN
Before: SILER, COLE and SUTTON, Circuit Judges.
SUTTON, Circuit Judge. Leddrew Smith complains that the City of Niles (Michigan) interfered with his statutory right to take medical leave under the Family Medical Leave Act by failing to promote him when his supervisor retired and by eventually firing him. The district court granted summary judgment to the defendant. We affirm.
From 1989 to 2010, Smith worked for the City of Niles in its utilities department. As an engineering assistant in the records division, Smith assisted records engineer Steve Barnes with drafting, billing, mapping, inspecting water and electric projects, and designing water projects.
A car accident in 2001 left Smith with a back injury that partially disabled him. Smith's physician told the City that, for three to four years, Smith would have "1-2 day intermittent episodes of incapacity," and, even while at work, he would be unable to bend, lift more than thirty pounds orwalk more than thirty minutes. R.34-12 at 2-4. The City kept Smith in his position as an engineering assistant and reassigned some of Smith's more-physical work to other employees.
Steve Barnes retired in 2008. Rather than promote Smith or hire a replacement for Barnes, the city manager, Terry Eull, eliminated the position and distributed the work to other employees. The City used the saved money to add an employee to the information technology department. Two years later, Eull eliminated the records department, which at that time consisted of Smith and Jim Shipley. The City discharged both employees on April 13, 2010, giving them similar severance packages.
Smith sued the City in federal court, raising claims under the Family Medical Leave Act, 29 U.S.C. §§ 2601-2654, and under Title VII. The district court granted the City's motion for summary judgment. Smith appeals only the court's resolution of his FMLA claim.
As its name suggests, the Family Medical Leave Act regulates medical leave. It requires covered employers to give employees unpaid leave, without fear of losing their jobs, for up to twelve work weeks each year for (among other things) "a serious health condition that makes the employee unable to perform the functions" of the job. 29 U.S.C. § 2612(a)(1)(D). And it prevents employers from "us[ing] the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions." 29 C.F.R. § 825.220(c). Smith complains that the City interfered with his FMLA rights in four ways, two of which arise from the Act's medical-certification requirements and two of which arise from its anti-retaliation requirements.
Under the FMLA, employers may require employees to provide a physician's certification that the employee has a serious health condition and an explanation for the leave. Id. § 2613(a)-(b). The employer also may ask for recertifications on a "reasonable basis," id. § 2613(e), which usually means somewhere between thirty days and six months, see 29 C.F.R. § 825.308.
Certification harassment. Between 2002 and 2009, the City asked Smith to provide six separate certifications. These repeated requests, Smith says, exceeded the FMLA's limits and interfered with his right to medical leave. He is right about one thing: An unreasonable demand for recertification may interfere with FMLA rights. He is wrong about another: The City's requests all fit comfortably within the regulatory boundaries.
An employer may demand "a recertification of a medical condition every six months in connection with an absence by the employee." 29 C.F.R. § 825.308(b). And an employer may demand recertification within a shorter time, even as few as thirty days, if "[c]ircumstances described by the previous certification have changed significantly," including an "increased duration of absence." Id. § 825.308(c)(2).
Two of the City's recertification requests came within six months of a previous request. Smith's physician submitted a certification on May 4, 2009, and the City asked for recertification on October 30, 2009, just shy of six months later. Circumstances had changed significantly, though, between May and October 2009. Smith's apparent need to take absences due to back pain increased beyond what the May certification described. The City thus asked for an additional justification: R.34-14 at 2. Because Smith had taken six days of leave rather than the estimated two days, the City asked for a new recertification. This fact pattern largely mirrors the Department of Labor's benchmark example: "[I]f a medical certification stated that an employee would need leave for one to two days . . . and the employee's absences . . . lasted four days each, then the increased duration of absence might constitute a significant change in circumstances . . . ." 29 C.F.R. § 825.308(c)(2). As the example suggests, an FMLA certification does not provide a no-questions-asked pass for employees to take time off whenever and for however long they wish. If an employee desires more time off than described in the prior certification, the employer may require updated information from a physician. That is all that happened.
The City also asked for recertification on March 17, 2010, four months or so after a November 2009 certification, and did so for similar reasons: changed circumstances. In early March 2010, Smith sought a change in his working conditions to accommodate a new physical limitation—"no repetitive bending or twisting at the waist." R.42-4. The City responded with a request for recertification because the new limitations "were not listed" on the previous certification. R.42-5. That is the epitome of a reasonable recertification request.
Work restrictions. Smith complains that utilities manager Jim Lehmkuhl failed to respect his work restrictions by requiring him to pick up the department's mail from the post office. It is not clear, as an initial matter, what provision of the FMLA Smith means to invoke with this claim. Smith, for his part, does not tell us, and a quick perusal of the statute does not readily show one. The FMLA grants "12 workweeks of leave" in certain situations, including if the employee has "a serioushealth condition." 29 U.S.C. § 2612(a)(1)(A)-(E). And it guarantees qualifying employees the right "to be restored by the employer" to their previous jobs or to equivalent ones, id. § 2614(a)(1), to keep any accrued employment benefits upon returning from leave, id. § 2614(a)(2), and to maintain coverage under the employer's group health plan, id. § 2614(c)(1). In contrast to the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., the FMLA does not appear to have a freestanding reasonable-accommodations provision.
Be that as it may, the dispositive flaw in Smith's argument is that it turns on an unsupported factual premise. Picking up the mail exceeded his work restrictions, Smith complains, because the mail weighed more than the thirty pounds his physician authorized him to carry. But any such problem was one of Smith's own making. Lehmkuhl told Smith he could separate the mail into smaller (less-than-thirty-pound) loads and take two trips if need be, and Smith presents no evidence that such an approach would exceed any restrictions. Smith acknowledges the point, eventually, in his deposition:
R.34-1 at 27-29. On this record, the district court properly rejected this claim as a matter of law.
Smith separately raises two retaliation claims. While the FMLA does not use the word "retaliation" in its "Exercise of rights" or "Discrimination" provisions, the two sections readily cover retaliation-like claims:
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