Stroder v. United Parcel Serv. Inc.

• Decision Date: 30 August 2010
• Docket Number: No. 1:09CV335.,1:09CV335.
• Citation: 750 F.Supp.2d 582
• Court: U.S. District Court — Middle District of North Carolina
• Parties: Veda STRODER, Plaintiff,v.UNITED PARCEL SERVICE, INC., Defendant.

750 F.Supp.2d 582

Veda STRODER, Plaintiff,

v.UNITED PARCEL SERVICE, INC., Defendant.

No. 1:09CV335.

United States District Court, M.D. North Carolina.

Aug. 30, 2010.

Angela Newell Gray, Gray Newell, LLP, Greensboro, NC, for Plaintiff.Glenn G. Patton, Alston & Bird LLP, Atlanta, GA, Susan Ballantine Molony, Alston & Bird, LLP, Charlotte, NC, for Defendant.

MEMORANDUM OPINION

JAMES A. BEATY, JR., District Judge.

This case involves claims by Plaintiff Veda Stroder (“Plaintiff”) for violation of the Family Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601–2654. In Count 1, Plaintiff alleges violation of the FMLA by her former employer, Defendant United Parcel Service, Inc., (“Defendant”) in denying her request for 10 weeks of Family Medical Leave to care for her autistic son. In Counts 2 and 3, Plaintiff alleges that Defendant discriminated and retaliated against her in violation of the FMLA, in particular by terminating because of her absences related to the care of her son. In Count 4, Plaintiff asserts a claim for wrongful discharge under state law.

This matter is before the Court on a Recommendation of the Magistrate Judge recommending that Defendant's Motion for Summary Judgment be granted. The Recommendation was filed on June 10, 2010, 2010 WL 2403092, and notice was served on the parties pursuant to 28 U.S.C. § 636(b). Plaintiff filed Objections to the Recommendation. The Court has now reviewed de novo the Objections and the portions of the Recommendation to which objection was made. Having undertaken this review, the Court concludes that there are genuine issues of material fact precluding summary judgment in this case with respect to Plaintiff's claims under the FMLA, and for the reasons discussed below, Defendant's Motion for Summary Judgment will be denied as to the FMLA claims. However, Plaintiff has not opposed the Motion for Summary Judgment as to her state law wrongful discharge claim (Count 4), and that claim will therefore be dismissed.

I. FACTUAL BACKGROUND

Taking the evidence in the light most favorable to the Plaintiff as is required on a Motion for Summary Judgment, the Court notes that in 2007, Plaintiff had been an employee of Defendant UPS for over a year, and on June 8, 2007, Plaintiff requested 10 weeks of Family Medical Leave to care for her son, C.S. Although C.S. had not yet been diagnosed with autism at the time Plaintiff requested Family Medical Leave, he had been diagnosed with a learning disability and speech impairment that required ongoing speech therapy. In addition, Plaintiff testified in her deposition that in the weeks prior to her requesting Family Medical Leave, her son began to experience serious behavioral problems and communication impairments. At that time, C.S. was four years old and in a daycare/preschool class of fifteen students. However, C.S. began to experience behavioral problems and outbursts that included staying under the tables or staying up on the tables, knocking things down in the classroom, refusing to follow directions, refusing to stay in a chair, and refusing to engage in activities. He also began defecating on himself and could not manage his hygiene issues. At daycare, C.S. was displaying “very aggressive behavior.” Although C.S. was not expelled from the daycare, the daycare teacher informed Plaintiff of her concerns and told her that they could not give him any special services or provide for C.S.'s specialized needs. C.S.'s speech therapist, Denise Sabo, also told Plaintiff that C.S. was having a lot of difficulty at the daycare and was regressing in his behavior. Ms. Sabo testified in her deposition that “at that point he was definitely demonstrating some autistic behaviors” and that C.S. would have progressed more in a one-on-one environment rather than the daycare. According to Plaintiff, by June 2007, C.S. would not speak, had become almost mute, and was “going in a hole.” Although Plaintiff acknowledges that C.S. did not have any physical disabilities such as an inability to walk or run, Plaintiff contends that C.S. had serious behavioral and developmental issues, including not communicating, panicking when out in public, high sensory overload, and staying “in some kind of trance” when they were in crowds. C.S. also continued to experience serious behavioral problems and hygiene issues at daycare. Plaintiff contends that based on these issues, she needed to take C.S. out of daycare and care for him at home for ten weeks until he could begin a special needs program available through the school system.

C.S.'s pediatrician, Dr. Quinlan, had previously noted C.S.'s communication delays and had referred him for additional services and evaluation through the Greensboro Children's Developmental Services Agency. C.S. began receiving services and evaluation through this agency beginning in 2005. Following his increasing behavioral problems in 2007, Plaintiff was provided additional referrals for evaluation through another Social Service Department, the North Carolina Child Service Coordination program, as well as a program through the University of North Carolina Greensboro (UNCG). These referrals came either from Dr. Quinlan's office or from the Children's Developmental Services Agency where C.S. was originally referred by Dr. Quinlan's office. These additional referrals included evaluation for 2 hours every 2 weeks by nurse Amanda Pone. Although Nurse Pone was not directly supervised by Dr. Quinlan, she was, according to Plaintiff, part of the Social Service Agency that evaluated C.S.'s behavior in order to determine the appropriate diagnosis and need for services. According to Plaintiff, these 2–hour evaluations by Nurse Pone occurred during the summer of 2007. According to Plaintiff, Nurse Pone watched C.S., had him draw and color, and watched his behavior. Plaintiff also discussed with Nurse Pone what they were doing at home so that Nurse Pone could assess C.S. and his progress during that time. During that summer, Plaintiff contends that she also submitted questionnaires to UNCG as part of the program for obtaining a psychological evaluation of C.S., but she had to wait for an appointment in that program. Dr. Quinlan's office also scheduled an appointment for C.S. to rule out other potential issues such as hearing loss. The appointment with Dr. Quinlan took place in August 2007, and according to Plaintiff, at that appointment Dr. Quinlan indicated the likelihood of autism and provided Plaintiff with additional referrals for further evaluation and services. C.S. began school in a special needs pre-kindergarten class in August 2007, which was available to him due to his disability. As part of that program, C.S. was further tested and evaluated and was ultimately diagnosed with autism.

In late May 2007, after C.S.'s behavioral problems intensified but before the summer appointments took place, Plaintiff relayed information to her supervisor, Donna Urquhart, regarding C.S.'s increasing behavioral problems and developmental delays and his inability to receive specialized care until he could begin the special needs program in the fall. As a result, Ms. Urquhart encouraged Plaintiff to pursue Family Medical Leave. Prior to Plaintiff submitting a formal FMLA request, Ms. Urquhart authorized Plaintiff's absences, and Plaintiff took C.S. out of the daycare program and began caring for him at home. Plaintiff then submitted to the Human Resources Department an FMLA leave request and a medical certification from C.S.'s pediatrician, Dr. Quinlan. The medical certification submitted by Dr. Quinlan in support of Plaintiff's request for Family Medical Leave indicated the C.S. had a “chronic serious health condition” based on “very significant delays in communication,” and that this condition had commenced in 2005. The certification from Dr. Quinlan stated that it would be necessary for Plaintiff to be absent from work as a result of C.S.'s condition because C.S. required assistance for basic medical or personal needs or safety, and because Plaintiff's presence to provide psychological comfort to C.S. would be beneficial to assist in C.S.'s recovery. With respect to the specific treatments, the certification focused on C.S.'s need for ongoing speech therapy over the next two to three years, with treatment provided by a speech therapist or by Plaintiff when speech therapy was not available. Although Dr. Quinlan had previously diagnosed C.S. with developmental delays and a speech impairment, Dr. Quinlan had not examined C.S. recently and therefore the certification was based on Dr. Quinlan's review of a more recent assessment by C.S.'s speech therapist. This assessment from the speech therapist was based on testing of C.S. in March 2007 before his behavioral problems intensified in May 2007, but the assessment did note C.S. was recently experiencing “more difficulty following directions and attending to activities in therapy” and that C.S. was “easily frustrated.” The certification completed by Dr. Quinlan likewise focused on C.S.'s speech delays, and did not address C.S.'s increasing behavioral problems. However, Plaintiff maintains that she had provided all of the additional information regarding C.S.'s behavioral and developmental problems to her supervisor, Ms. Urquhart, including specifically mentioning that C.S. might have autism.

A few days after the request was submitted, Plaintiff's request for FMLA leave was denied by Human Resources Occupational Health Supervisor, Ralph L. Brown, Jr., based on his conclusion that C.S.'s speech delays and need for speech therapy did not constitute a “serious health condition.” Plaintiff contends that her supervisor, Ms. Urquhart, told her there must be a misunderstanding and to “hold tight.” Plaintiff contends that she subsequently telephoned Brown and explained all of C.S.'s behavioral and developmental problems, including that C.S. was being evaluated for autism as well as hearing loss. Plaintiff...