Stoops v. One Call Communications, Inc.

• Decision Date: 31 March 1998
• Docket Number: No. 97-1895,97-1895
• Parties: 135 Lab.Cas. P 33,666, 4 Wage & Hour Cas.2d (BNA) 779 Richard W. STOOPS, Plaintiff-Appellant, v. ONE CALL COMMUNICATIONS, INCORPORATED, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 309

141 F.3d 309

135 Lab.Cas. P 33,666, 4 Wage & Hour Cas.2d

(BNA) 779

Richard W. STOOPS, Plaintiff-Appellant, v. ONE CALL COMMUNICATIONS, INCORPORATED, Defendant-Appellee.

No. 97-1895.

United States Court of Appeals Seventh Circuit.

Argued Dec. 1, 1997.

Decided March 31, 1998.

William R. Groth (argued), Fillenwarth, Dennerline, Groth & Towe, Indianapolis, IN, for Plaintiff-Appellant.

Philip J. Ripani (argued), Henderson, Daily, Withrow & Devoe, Indianapolis, IN, for Defendant-Appellee.

Before EASTERBROOK, MANION, and EVANS, Circuit Judges.

MANION, Circuit Judge.

Richard Stoops sued his former employer, One Call Communications, Inc., under the Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. § 2601, et seq., after One Call fired Stoops for excessive absences. At one point One Call had placed Stoops on FMLA leave but after his doctor certified that Stoops did not qualify for FMLA leave, One Call required Stoops to return to work. After returning, when he incurred additional absences, One Call denied him FMLA leave that he requested. Stoops quickly exceeded the number of absences permitted under One Call's no-fault attendance policy, prompting his discharge. The central issue here is whether One Call, when denying Stoops FMLA leave, could rely on Stoops' physician's earlier certification that he was not qualified for FMLA leave. The district court granted summary judgment for One Call and we affirm.

I. Facts

Because this appeal comes to us on summary judgment, we relate the facts in the light most favorable to Stoops. (There are few factual disputes in the record and none of them is material.) One Call is a long distance telephone service provider. Stoops worked in One Call's Carmel, Indiana, office. For the first few years of his employment, Stoops apparently had no significant attendance problems and was promoted numerous times culminating in his promotion to switchroom technician in November 1994. About a month prior to this last promotion, Stoops began to suffer health problems, although they initially did not affect his attendance. Stoops' symptoms included passing out, confusion, light-headedness, nausea, headaches, and chest pains, all of which apparently contributed to problems with motor functions and sleeping difficulties.

Beginning in February 1995, Stoops began missing work, but he had accumulated enough sick days that he was able to take time off and still be paid. At this time he complained that his medical problems were interfering with his duties as switchroom technician, which required him to be on call 24 hours per day. To alleviate this, he requested that he be transferred to his prior position as a supervisor in the operations center. One Call accommodated Stoops and complied with his request, but his absences continued. In June 1995, Stoops' physician, Dr. Richard Anderson, diagnosed Stoops as suffering from neurocardiogenic syncope, commonly called "chronic fatigue syndrome." Dr. Anderson prescribed various medications to treat this condition.

On June 19, 1995, Stoops' direct supervisor, Kathryn Legg, sent a memorandum regarding Stoops' absences to her supervisor, Diane Dabicci. Legg related Stoops' numerous attendance problems, including not calling in to notify One Call that he would be absent until minutes before he was scheduled to begin work, leaving early, coming in late, and taking excessively long lunch hours. Legg apparently thought that Stoops' condition would qualify him for leave under the FMLA. But she commented, "I realize that with FMLA [Stoops] could take his intermittent leave over many weeks, but if he does so, it will hurt morale and center functions .... we don't have to allow the intermittent leave unless we find that it is 'medically necessary,' right?" Shortly thereafter, Legg wanted Stoops to go on full-time FMLA leave. He eventually agreed and went on leave beginning July 24, 1995. Legg gave Stoops two standard forms promulgated by the Secretary of Labor: Form WH-381, which notified him that he was being placed on FMLA leave and instructed him "to furnish medical certification of a serious health condition," and Form WH-380, which was the requested medical certification for his physician to complete.

On August 11, 1995, Stoops returned the completed Form WH-380 to One Call. Dr. Anderson indicated that Stoops suffered from a chronic serious health condition but that he was not presently incapacitated and would not have to work intermittently or on a reduced work schedule. As we shall see, this meant that Stoops was not qualified for FMLA leave. So One Call instructed him to return to work, which he did on August 18, 1995. Although Dr. Anderson had certified Stoops as not qualified for FMLA leave, One Call counted all of Stoops' absences in June, July, and August as FMLA leave. (It was not permitted to do this, but that is not an issue in this appeal.) On his return, Legg counseled Stoops that because Dr. Anderson had indicated he was not qualified for FMLA leave, all future absences would count against him under One Call's no-fault attendance policy. Beginning on the next day, Stoops accumulated 12 absences in the next four weeks. (The record is not clear as to exactly how many days Stoops was scheduled to work in that time, but it appears that he was absent more than he was at work.) For most of the days he was absent, Stoops notified One Call that he would be out due to his chronic fatigue syndrome. Some of the absences were for doctor's appointments and one absence was due to car trouble. Nevertheless these twelve absences were enough to fire Stoops under One Call's no-fault attendance policy. ¹

September 12, 1995, was the first day that Stoops returned to work after he accumulated enough absences to be fired. On that day, Dabicci and Legg met with Stoops and offered him the choice of resigning or being fired; Stoops would not resign, so he was fired. ² To justify firing Stoops, One Call relies only on those absences after Stoops returned from leave on August 18. The record also suggests that One Call was unhappy with Stoops' performance when he was present and counseled him on his numerous shortcomings. However, because One Call relies solely on Stoops' excessive absences, his job performance is not relevant to our decision.

Stoops filed this suit on December 1, 1995, claiming that One Call violated the FMLA by firing him under the no-fault attendance policy without seeking another physician's certification. The district court granted summary judgment for One Call on February 20, 1997, and Stoops timely appealed.

II. Analysis

We begin our analysis by outlining the FMLA's provisions and the regulations that the Secretary of Labor has promulgated under it, as directed by 29 U.S.C. § 2654. Neither party challenges the propriety of the regulations, so we accept for purposes of this decision that they are legitimate and controlling under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844-45, 104 S.Ct. 2778, 2782-83, 81 L.Ed.2d 694 (1984). The final versions of the regulations effective April 6, 1995 apply to this case. See 60 Fed.Reg. 2180 (1995); see also Gay v. Gilman Paper Co., 125 F.3d 1432, 1434 n. 4 (11th Cir.1997).

The FMLA applies to an "eligible employee," one who works a requisite number of hours, and employers that employ fifty or more people and engage in interstate commerce. 29 U.S.C. § 2611(2) & (4); Kelley v. Crosfield Catalysts, 135 F.3d 1202, 1203 (7th Cir.1998). One Call concedes that it is a covered employer and that Stoops is an "eligible employee." An eligible employee is entitled to 12 workweeks of leave in a 12-month period for one or more of four enumerated reasons. 29 U.S.C. § 2612(a)(1). Here Stoops relies on the reason in § 2612(a)(1)(D): "a serious health condition that makes the employee unable to perform the functions of the position of such employee." To be eligible for leave under subsection (a)(1)(D), the employee must both (1) have a "serious health condition" as that term is defined by the FMLA, and (2) that condition must prevent the employee from performing his job.

As Legg alluded in her June 1995 memorandum, assuming proper notice, leave under § 2612(a)(1)(D) may be taken "intermittently or on a reduced leave schedule when medically necessary." 29 U.S.C. § 2612(b)(1); see Price v. Marathon Cheese Corp., 119 F.3d 330, 333 (5th Cir.1997). The regulations recognize that some serious health conditions may be chronic, causing the employee "episodic incapacity" rather than a continuous incapacity. 29 C.F.R. § 825.114(a)(2)(iii)(C); Marathon Cheese Corp., 119 F.3d at 334. FMLA-qualifying leave may not be counted against an employee under an employer's "no fault" attendance policy. 29 C.F.R. § 825.220(c).

An employer may require that leave requested under § 2612(a)(1)(D) "be supported by a certification issued by the health care provider of the eligible employee." 29 U.S.C. § 2613(a). And the employer, at its expense, may request a second opinion if it doubts the employee's health care provider. 29 U.S.C. § 2613(c). A binding third opinion must be gotten to resolve a conflict between the first and second opinions. 29 U.S.C. § 2613(d). An employer may require an employee on leave to obtain subsequent re-certifications "on a reasonable basis," 29 U.S.C. § 2613(e), although (with some exceptions) where an employee suffers from a chronic serious health condition, the employer may not request a re-certification more frequently than every 30 days. 29 C.F.R. § 825.308(a). Importantly, if the requested certification indicates that the leave is not FMLA-qualifying, the employer must not designate it as FMLA leave. 29 C.F.R. § 825.208(e)(2). (One Call probably violated this regulation by continuing to designate Stoops' absences prior to August 18 as FMLA leave despite Dr. Anderson's negative certification.)

Here, Stoops' theory is that One Call violated the FMLA when it counted...