From Casetext: Smarter Legal Research

Porch v. Dillard's Inc.

United States District Court, N.D. Texas, Fort Worth Division
Jul 12, 2004
Action No. 4:03-CV-170-Y (N.D. Tex. Jul. 12, 2004)

Opinion

Action No. 4:03-CV-170-Y.

July 12, 2004


ORDER PARTIALLY GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT


Pending before the Court is defendant Dillard's, Inc. ("Dillards")'s Motion for Summary Judgment, filed December 12, 2003. Having carefully considered the motion, response, and reply, the Court concludes that Dillards's should be PARTIALLY GRANTED.

I. RELEVANT BACKGROUND

Beginning in April 1988, plaintiff Shana Porch worked as a sales associate in the women's fragrances department of the Dillards store in North East Mall in Hurst, Texas. In the latter part of 2000, Porch began experiencing a variety of symptoms that concerned her, including abdominal pain, fevers, and fatigue. She became very ill and began to miss work. In December 2000, Porch turned in a form from her physician, Dr. Carlos Mijares, entitled "Certification of Health Care Provider," that stated that she was "to be off work [until her illness was] diagnosed and treated" and that she was "unable to perform work of any kind." (Pl.'s App. at 59-60.) After seeing a cancer specialist, Porch was diagnosed with nodular sclerosing Hodgkin's disease in early January 2001. Consequently, on January 24, Porch began undergoing chemotherapy treatments that lasted until June 2001. During the treatments she experienced dizziness, weakness, nausea, vomiting, fatigue, and numbness in her hands and feet.

This form was apparently required by Dillards pursuant to the Family and Medical Leave Act of 1993, as it is titled: "Certification of Health Care Provider (Family and Medical Leave Act of 1993)." (Pl.'s App. at 59.)

In February 2001, while undergoing chemotherapy, Porch decided that she wanted to return to work. She initially contacted Dean George, Dillards's Merchandise Manager. George informed her that she needed to have a full medical release, that she would be very sick from the chemotherapy and that she needed to just stay off of work and continue her treatments. (Pl.'s App. at 11, 97.) A few weeks later, Porch contacted Mike Taylor, Dillards's Operations Manager, to see if she could go back to work. She requested that she be allowed to go back to work but that she would need an extra day off for chemotherapy and an extended lunch hour for Procrit and Nepuogen shots. Taylor told her that Dillards could not extend her lunch hour because if they did it for her, they would have to do it for everyone else. In addition, Taylor stated that Porch needed to have a full medical release and not undergoing chemotherapy to return to work because Dillards could not be responsible if something were to happen to her. (Pl.'s App. at 13, 97.)

In a written statement dated March 5, 2002, Taylor stated:

"During her leave, Shana requested she be put back in schedule. However, she did not have a full medical release from her doctor to allow her to return to active duty. A full medical release is required before any associate can return to work from [leave of absence]. Shana never did provide a medical release at any time before her [leave of absence] end date."

(Pl.'s App. at 65.)

After her conversations with George and Taylor, Porch called Mike Litchford, Dillards's Store Manager, in March and asked to be allowed to return to work. Litchford told her that she could not return without a "full medical release." (Pl.'s App. at 15-16.)

After remaining off of work from December 12, 2000, through June 12, 2001, Porch was terminated on June 13, 2001, in accordance with Dillards's policy that the maximum leave of absence for an employee was six months. (Pl.'s App. at 62.) After receiving the letter, Porch contacted Dillards in an attempt to get her job back. She was informed that she was eligible to be rehired and filled out another job application.

For example, Porch spoke to Diana Vitek, secretary to corporate vice president Gat LeMoine, and complained that she was not being returned to her job. Vitek told Porch that she could not come back to work until she had a "full doctor's release." (Pl.'s Br. in Supp. of Resp. at 14; Pl.'s App. at 82-84.)

On June 28, 2001, the dat her cancer was declared to be in remission, Porch sent a letter to Amy Fitz, George's replacement as Merchandise Manager. Fitz did not respond to Porch's letter but she sent an email to Donald Bogart, Dillards's District Manager, outlining a series of events regarding Porch. In September, Taylor called Porch and asked her to come in and fill out an application. Taylor offered her a position in the accessories department, which she declined. Porch claims that she declined the position because she wanted to be in the fragrances department and she did not want to sign an arbitration agreement that required her to give up her right to bring any claims against Dillards in court.

The letter stated:

I was able to return to work on 6/29/01. I had previously asked you for reasonable accommodations meaning time off for chemo shots (Procrit and Neupogen). You told me no. So I have had to stay off work. Because you would not let me extend my lunch hour in order for getting my chemo shots. You stated I would still be counted tardy. I am asking that you reinstate me as per your request I took medical leave since you would not allow me to get chemo over my lunch hour or come back to work until I was off chem. I am off chemo now and I am asking to be re-hired immediately.
Please call me to come back to work or it will be necessary for me to ask for help though the EEOC.

(Pl.'s App. at 63.)

The email stated:
The following is a time line of conversations with Shana regarding re-hire:

On August 23, Porch filed a charge of discrimination with the Texas Commission on Human Rights ("TCHR") and the Equal Employment Opportunity Commission ("EEOC"). The EEOC issued a right-to-sue letter in late October 2002. Porch filed suit against Dillards in state court on January 27, 2003, asserting claims for violations of the Family and Medical Leave Act), the Americans With Disabilities Act, and for common law fraud and negligent misrepresentation.

In the charge of discrimination, Porch stated:
I. PERSONAL HARM:

1. On/around February 2001 and again on/around March 2001, I was denied a reasonable accommodation in regards to a work schedule.
2. On/around June 13, 2001, I was discharged from my position as Sales Associate.

II. RESPONDENT'S REASONS FOR ADVERSE ACTION:
1. No reason given.
2. I was informed by letter from Ms. Amy Fitz, Merchandising Manager, that I was being terminated "because you have been unable to return to work."

III. DISCRIMINATION STATEMENT
I believe that I have been discriminated against based on my disability (Cancer), in violation of the Texas Commission on Human Rights Act, as amended and the Americans with Disabilities Act; inasmuch as:
1. I have been informed on several occasions by Mr. Mike Litchford (name), that if he made the decision, I would be fired for missing to[o] many days because of being ill.
2. While undergoing Chemo Therapy on/around February 2001 and again on/around March 2001, I requested and was denied permission by Mr. Dean George and Mr. Mike Taylor to return to work. I was further informed by Mr. George and Mr. Taylor that my work scheduled could not be arranged around my Chemo therapy appointments.
3. Despite my disability, I was able to perform the essential functions of my job.

(Def.'s App. at 95-96.)

The letter was signed by an agent of the EEOC on October 22, 2002. The letter also contains a "received" stamp that indicates it was received by the local district office on October 28, 2004. The letter was apparently sent to Porch on October 31, as that is the date of the postmark on the envelope addressed to Porch. (Pl.'s App. at 88.) Porch, in her affidavit, claims that she did not receive the letter until a few days after October 31. (Pl.'s App. at 95.)

The case was removed to this Court on March 5, 2003.

II. SUMMARY-JUDGMENT STANDARD

Summary judgment is proper when the record establishes "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). An issue is considered "genuine" if "it is real and substantial as opposed to merely formal, pretended, or a sham." Bazan v. Hidalgo Cty., 246 F.3d 481, 489 (5th Cir. 2001) (citing Wilkinson v. Powell, 149 F.2d 335, 337 (5th Cir. 1945)). Facts are considered "material" if they "might affect the outcome of the suit under governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To determine whether there are any genuine issues of material fact, the Court must first consult the applicable substantive law to ascertain what factual issues are material. Lavespere v. Niagra Mach. Tool Works, 910 F.2d 167, 178 (5th Cir. 1990). Next, the Court must review the evidence on those issues, viewing the facts in the light most favorable to the nonmoving party. Id.; Newell v. Oxford Mgmt. Inc., 912 F.2d 793, 795 (5th Cir. 1990); Medlin v. Palmer, 874 F.2d 1085, 1089 (5th Cir. 1989).

In making its determination on the motion, the Court must look at the full record including the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits. See FED. R. CIV. P. 56(c); Williams v. Adams, 836 F.2d 958, 961 (5th Cir. 1988). Rule 56, however, "does not impose on the district court a duty to sift through the record in search of evidence to support" a party's motion for, or opposition to, summary judgment. Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 n. 7 (5th Cir. 1992). Thus, parties should "identify specific evidence in the record, and . . . articulate" precisely how that evidence supports their claims. Forsyth v. Barr, 19 F.3d 1527, 1536 (5th Cir. 1994). Further, the Court's function is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249.

To prevail on a motion for summary judgment, the moving party has the initial burden of demonstrating that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law. See Celotex Corp v. Catrett, 477 U.S. 317, 323 (1986). A defendant moving for summary judgment may submit evidence that negates a material element of the plaintiff's claim or show that there is no evidence to support an essential element of the plaintiff's claim. See Celotex Corp., 477 U.S. at 322-24; Crescent Towing and Salvage Co. v. M/V Anax, 40 F.3d 741, 744 (5th Cir. 1994); Lavespere, 910 F.2d at 178.

To negate a material element of the plaintiff's claim, the defendant must negate an element that would affect the outcome of the action. See Anderson, 477 U.S. at 247. If the defendant moves for summary judgment alleging no evidence to support an essential element of the plaintiff's claim, the defendant need not produce evidence showing the absence of a genuine issue of fact on that essential element. Rather, the defendant need only show that the plaintiff, who bears the burden of proof, has adduced no evidence to support an essential element of his case. See Celotex, 477 U.S. at 325; Teply v. Mobil Oil Corp., 859 F.2d 375, 379 (5th Cir. 1988).

When the moving party has carried its summary-judgment burden, the respondent must go beyond the pleadings and by his own evidence set forth specific facts showing there is a genuine issue for trial. Fed.R.Civ.P. 56(e). This burden is not satisfied by creating some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). If the evidence is merely colorable or is not significantly probative, summary judgment may be granted. See Anderson, 477 U.S. at 249-50.

III. ANALYSIS

A. Americans With Disabilities Act ("ADA") Claims

Porch claims that Dillards violated her rights under the ADA in two ways: (1) by terminating her on June 13, 2001, and (2) "[b]y discriminating against her in the terms, conditions and privileges of [her] employment, including the failure to accommodate her disability and for utilizing methods and procedures having the effect of discriminating against her because of said disability." (Pl.'s Am. Compl. at 3.)

1. Employment Discrimination

The ADA prohibits discrimination in employment against qualified persons with a disability. See 42 U.S.C.A. § 12112(a) (West 1995). The plaintiff can establish a claim of discrimination under the ADA through either direct or circumstantial evidence. See Seaman v. CSPH, Inc., 179 F.3d 297, 300 (5th Cir. 1999). Because direct evidence of discriminatory intent is rare, most ADA plaintiffs must travel through the familiar burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Allen v. Rapides Parish School Brd. 204 F.3d 619, 623 n. 3 (5th Cir. 2000).

Direct evidence of discrimination is evidence that proves the defendant acted with discriminatory intent, without the need for inference or presumption. See Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1217 (5th Cir. 1995).

Based on the foregoing, the first issue is whether the plaintiff has established a prima-facie case of discrimination under the ADA. "To establish a prima facie discrimination claim under the ADA, [the plaintiff] must show that she was disabled, was qualified for the job, and was the subject of an adverse employment action because of her disability." Dupre v. Charter Behavioral Health Sys. of Lafayette, Inc., 242 F.3d 610, 613 (5th Cir. 2001). See 42 U.S.C.A. 12112(a) (West 1995); Talk v. Delta Airlines, Inc., 165 F.3d 1021, 1024 (5th Cir. 1999). The ADA defines "disability" as either (1) a physical or mental impairment that substantially limits one or more of the major life activities of an individual, (2) a record of such an impairment, or (3) being regarded as having such an impairment. See 42 U.S.C. § 12102(2) (West 1995). In this case, Porch appears to claim that she falls under the first definition. (Pl.'s Resp. at 18.)

The Court notes that Dillards claims that it is entitled to summary judgment on Porch's ADA claims because she did not file her suit within 90 days after the EEOC issued its right-to-sue letter. See 42 U.S.C. § 2000e-5(f)(1); 42 U.S.C.A. § 12117 (West 1995). Dillards argues that the EEOC issued its letter on October 22, 2002, and that the law presumes that Porch received the notice on October 25, three days later. Because Porch did not file her suit until January 27, 2003, over ninety days after October 25, Dillards argues that Porch's ADA claims are untimely. The evidence, however, shows that Porch did not receive her right-to-sue letter until October 31, 2002, at the very earliest, because that is the date that the envelope containing her letter is postmarked. Thus, by filing her suit on January 27, 2003, Porch did file within 90 days of October 31, 2002, and her suit is timely. See Olds v. Alamo Grp. (KS), Inc., 889 F. Supp. 447 (D. Kan. 1995).

With respect to the first definition of disability, to defeat summary judgment, the plaintiff must "(1) have a mental or physical impairment that (2) substantially limits (3) a major life activity." Dupre, 242 F.3d at 613 (citing Bragdon v. Abbott, 524 U.S. 624 (1998)). Porch claims that she was substantially limited by her cancer and the related chemotherapy treatments in the major life activities of standing and walking. Because standing and walking are considered major life activities, the issue is whether these activities were substantially limited by her cancer and chemotherapy treatments. For an impairment to be a substantial limitation, it must result in a severe restriction on a major life activity and not merely a slight or partial limitation. See, e.g., Ryan v. Grae Rybicki, P.C., 135 F.3d 867, 871 (2d Cir. 1998) (stating that periodic symptomatic colitis did not substantially limit employee's ability to care for herself even though it resulted in employee's soiling herself). "Although almost any impairment may, of course, in some way affect a major life activity, the ADA clearly does not consider every impaired person to be disabled." Id. at 870. Therefore, Courts must carefully distinguish between impairments that "merely affect major life activities from those that substantially limit those activities." Id.

Cancer is considered an impairment under the ADA. See, e.g., Bragdon, 524 U.S. at 633; Treiber v. Lindbergh Sch. Dist., 199 F. Supp. 2d 949, 958 (E.D. Mo. 2002).

"`Major life activities means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.'" Hamilton v. Southwestern Bell Telephone Co., 136 F.3d 1047, 1050 (5th Cir. 1998) (quoting 29 C.F.R. § 1630.2(i)). "They are the activities that are `of central importance to daily life, that, for most people, require little or no difficulty to perform.'" Norman v. Southern Guar. Ins. Co., 191 F. Supp. 2d 1321, 1334 (M.D. Ala. 2002) (citing 29 C.F.R. § 1630.2(i)).

For an impairment to be substantially limiting, the individual must be either (1) unable to perform a major life activity that the average person in the general population can perform or (2) significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner or duration under which the average person in the general population can perform that same major life activity. See Doyal v. Oklahoma Heart, Inc., 213 F.3d 492, 496 (10th Cir. 2000) (citing 29 C.F.R. § 1630.2(j)(1)). Porch does not appear to claim that she could not perform any major life activities, but claims that she was significantly restricted in performing her major life activities of walking and standing during the months in which she was undergoing chemotherapy treatments for her cancer. Whether an impairment is substantially limiting depends on "(1) the nature and severity of the impairment, (2) its duration or expected duration, and (3) its permanent or expected permanent or long-term impact." Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726 (5th Cir. 1995) (citing 29 C.F.R. § 1630.2(j)).

In support of her claim that her cancer and chemotherapy treatments substantially limited her ability to walk and stand, Porch presents an affidavit from Dr. Ross, one of Porch's doctors, stating that in "February and March 2001, she suffered from a potentially fatal disease that affected her lymphatic system and its symptoms had a substantial effect on Ms. Porch's ability to function on a daily basis, including standing and walking as a result of abdominal pain and fatigue. (Pl.'s App. at 93.) However, in Porch's affidavit, she states:

While the cancer and the chemotherapy both made me dizzy and weak, I could do my job if I could use a chair when needed. My condition affected my ability to stand and walk. But I could still wait on customers and perform my general job functions if I could use a chair when necessary.

Dr. Ross also stated, "She suffered as well from side effects from a course of toxic drugs that caused, among other symptoms, fatigue, nausea, and weakness that substantially impaired, during that time, her ability to stand and/or walk." (Pl.'s App. at 93.)

(Pl.'s App. at 97.) In addition, in her deposition, Porch indicated that she was substantially limited in her ability to walk for long periods of time and stand all day. (Def.'s App. at 20.) Further, she indicated that she did not expect these limitations to be permanent and that she was able to care for herself during her treatments and could go places when she needed to. (Def.'s App. at 19-20.)

After reviewing this evidence, the Court concludes that Porch's cancer did not substantially limit her in the major life activities of walking and standing. Although Dr. Ross states that Porch was "substantially limited" in these activities, the Court finds that his statement is contradicted by Porch's own statements. The ADA requires that those "`claiming the Act's protection . . . to prove a disability by offering evidence that the extent of the limitation [caused by the impairment] in terms of their own experience . . . is substantial.'" See Barnes v. Northwest Iowa Health Ctr. Sioux Valley Hosps. Health Sys., 238 F. Supp. 2d 1053, 1069 (N.D. Iowa 2002) (quoting Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 198 (2002)). The effects of cancer (and any corresponding chemotherapy treatments) can vary widely from person to person. See, e.g., Treiber, 199 F. Supp. 2d at 960. Consequently, the onus is on Porch to demonstrate that the effects of her cancer substantially limited her ability to walk or stand See Barnes, 238 F. Supp. 2d at 1069-70; Treiber, 199 F. Supp. 2d at 960).

The regulations give the following examples to illustrate when an individual's ability to walk might be substantially limited:

[A]n individual whose legs are paralyzed is substantially limited in the major life activity of walking because he . . . is unable, due to the impairment, to perform that major life activity.

. . . .
[A]n individual who, because of an impairment, can only walk for very brief periods of time would be substantially limited in the major life activity of walking.
29 C.F.R. part 1630, App. (2004). As a general rule, "both the regulations and the [EEOC compliance] manual make clear that comparatively moderate restrictions on the ability to walk are not disabilities." Kelley v. Drexel Univ., 94 F.3d 102, 106 (3d Cir. 1996).

Porch's own testimony about her condition indicates that she was not substantially limited in her ability to walk or stand Porch states that she was unable to walk for long periods of time and unable to stand all day. In other words, Porch was not substantially limited in her ability to walk or stand — she just limited in her ability to do these activities for long periods of time. In addition, Porch testified that she was able to adequately care for herself and to get herself to wherever she needed to go. Furthermore, Porch stated that she did not expect the limitations on her standing and walking ability to be long-term. Based upon Porch's own assessment of the effects the cancer had on her ability to walk and stand, the Court finds that a reasonable person could not conclude that her cancer substantially limited her ability to walk or stand Because Porch has not raised a genuine issue of material fact that she had an impairment that substantially limited one of her major life activities, Porch has not established a prima-facie case of discrimination under the ADA. Consequently, Dillards is entitled to summary judgment.

See Madjlessi v. Macy's West, Inc., 993 F. Supp. 736, 741 (N.D. Cal. 1997) (finding that employee being treated for breast cancer did not establish genuine issue of material fact about whether she had a disabling impairment; employee worked as usual except for four days in each of the six months of chemotherapy treatment); Gordon v. E.L. Hamm Assocs. 100 F.3d 907, 912 (11th Cir. 1996) (directing district court to enter judgment for former employer of man who had suffered side effects from chemotherapy treatment for malignant lymphoma; chemotherapy treatments had been given every three weeks for a total of seven treatments and side effects had lasted for approximately three days afterward); Schwertfager v. City of Boynton Beach, 42 F. Supp. 2d 1347, 1359-60 (S.D. Fla. 1999) (finding that plaintiff who had been diagnosed with breast cancer and had undergone mastectomy, reconstructive surgery, and chemotherapy and who had urged that she was able to perform her job responsibilities had established only impairment of five-month duration, not any substantially limiting impairment of significant duration).

2. Reasonable Accommodation

Discrimination under the ADA includes "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity." 42 U.S.C.A. § 12112(b)(5)(A)) (West 1995). Because, as discussed above, there is no evidence that Porch was disabled, as defined by the ADA, she was not entitled to a reasonable accommodation. See McDonald v. Commonwealth of Pennsylvania, 62 F.3d 92 (3d Cir. 1995) (employer is not required to provide reasonable accommodation unless employee is disabled).

B. Family and Medical Leave Act ("FMLA") Claims

Porch claims that her rights under the FMLA were violated when Dillards: (1) refused to allow her to return to her previous position at the end of her FMLA-qualifying leave; (2) interfered with, restrained, or denied her exercise or attempt to exercise her rights under the FMLA; and (3) discriminated against her or retaliated against her in violation of 29 U.S.C. §§ 2615(a) 2617. (Pl.'s Am. Compl. at 4.) The purposes of the FMLA include "balanc[ing] the demands of the workplace with the needs of families" and "entitl[ing] employees to take reasonable leave for . . . the care of a . . . spouse . . . who has a serious health condition." 29 U.S.C.A. § 2601(b)(1) (2) (West 1999). The FMLA seeks to accomplish these two purposes "in a manner that accommodates the legitimate interests of employers." 29 U.S.C.A. § 2601(b)(3) (West 1999); see also 29 C.F.R. § 825.101(b) (2002) ("The enactment of the FMLA was predicated on two fundamental concerns — the needs of the American workforce, and the development of high-performance organizations"). "A plaintiff can seek recovery for a violation of the FMLA under two different theories, the entitlement theory and the retaliation (or discrimination) theory." Parker v. Hanhemann Univ. Hosp., 234 F. Supp. 2d 478, 485-88 (D.N.J. 2002) (citing Hodgens v. Gen'l Dynamics Corp., 144 F.3d 151, 159 (1st Cir. 1998)).

1. Entitlement Claim

"The first theory of recovery under the FMLA is the entitlement, or interference, theory." Parker, 234 F. Supp. 2d at 485. "It is based on the prescriptive sections of the FMLA which create substantive rights for eligible employees." Id. Under the FMLA, an eligible employee is entitled to up to 12 work-weeks of leave in a 12-month period for several reasons, including "because of a serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C.A. § 2612(a)(1)(D) (West 1999). Pursuant to section 2614 of the FMLA, "any eligible employee who takes leave . . . for the intended purpose of the leave shall be entitled, on return from such leave . . . to be restored by the employer to the position [or equivalent position] of employment held by the employee when the leave commenced." 29 U.S.C.A. 2614(a)(1) (West 1999). An employer may require an employee to present certification from her health-care provider that she is able to resume work before allowing her to return. See 29 U.S.C.A. § 2614(a)(4) (West 1999); 29 C.F.R. § 825.310 (2004); see also Wagner v. Texas AM Univ., 939 F. Supp. 1297, 1324-25 (S.D. Tex. 1996).

The Act applies to private-sector employers of 50 or more employees. See 29 U.S.C.A. § 2611(4) (West 1999). An employee is "eligible" for FMLA leave if he has worked for a covered employee for at least 1,250 hours during the preceding 12 months. 29 U.S.C.A. § 2611(2) (West 1999).

This section states:

As a condition of restoration under paragraph (1) for an employee who has taken leave under section 2612(a)(1)(D) of this title, the employer may have a uniformly applied practice or policy that requires each such employee to receive certification from the health care provider of the employee that the employee is able to resume work. . . .
29 U.S.C.A. § 2614(a)(4) (West 1995).

This section states:

Under what circumstances may an employer require that an employee submit a medical certification that the employee is able (or unable) to return to work (i.e., a "fitness-for-duty report)?
(a) As a condition of restoring an employee whose FMLA leave was occasioned by the employee's own serious health condition that made the employee unable to perform the employee's job, an employer may have a uniformly-applied policy or practice that requires all similarly-situated employees (i.e., same occupation, same serious health condition) who take leave for such conditions to obtain and present certification from the employee's health care provider that the employee is able to resume work.
29 C.F.R. § 825.310 (2004).

"To present a claim under the FMLA, a plaintiff must show (1) she is an eligible employee under the FMLA, (2) defendant is an employer subject to the requirements of the FMLA, (3) she was entitled to leave under the FMLA, (4) she gave notice to the defendant of her intention to take FMLA leave, and (5) the defendant denied her the benefits to which she was entitled under the FMLA." Parker, 234 F. Supp. 2d at 483. The employee bears the burden of proving that he was entitled to FMLA leave and that the employer violated the statute by denying him rights that he was entitled to. See, e.g., Taylor v. Union Inst., 30 Fed. Appx. 443 (6th Cir. 2002). In this case, the parties do not appear to dispute the first four elements, that: Porch was an eligible employee, Dillards is an employer subject to the requirements of the FMLA, Porch was entitled to leave under the FMLA, and Porch gave notice to Dillards of her intent to take FMLA. The parties do disagree, however, over element five: whether Dillards denied Porch the right to be restored to her original position or an equivalent position when she inquired, beginning in February 2001, about returning to work.

Dillards argues that it did not violate the FMLA when it required Porch to get a "full medical release" before returning to work because the FMLA specifically permits an employer to require an employee to present a certification from her health-care provider before allowing the employee to return to work. Porch claims that she never submitted a "full medical release" to Dillards because she interpreted the term as requiring that she no longer be under a doctor's care. (Def.'s App. at 22.) Although the parties obviously had a misunderstanding as to what was required of Porch for her to be allowed to return to work while she was being treated for her cancer, the regulations are dispositive of Dillards's motion for summary judgment on this claim. Section 825.310 of the Code of Federal Regulations, which sets out the circumstances when an employer can require an employee to submit a medical certification that the employee is able to return to work, states:

(e) The notice the employers are required to give to each employee giving notice of the need for FMLA leave regarding their FMLA rights and obligations (see § 825.301) shall advise the employee if the employer will require fitness-for-duty certification to return to work. If the employer has a handbook explaining employment policies and benefits, the handbook should explain the employer's general policy regarding any requirement for fitness-for-duty certification to return to work. Specific notice shall also be given to any employee for whom fitness-for-duty certification will be required either at the time of the need for leave is given or immediately after leave commences and the employer is advised of the medical circumstances requiring the leave, unless the employee's condition changes from one that did not previously require certification pursuant to the employer's practice or policy. No second or third fitness-for-duty certification may be required.
(g) An employer may delay restoration to employment until an employee submits a required fitness-for-duty certification unless the employer has failed to provide the notices required in paragraph (e) of this section.
29 C.F.R. § 825.310 (2004) (emphasis added).

In this case there is evidence that Dillards had an employee handbook during the time that Porch was employed and that Porch received a copy of the handbook. ( See Def.'s App. at 28, 103. The handbook, under a section titled "Family Medical Leave Act of 1993 (FMLA)," stated:

ADVANCE NOTICE AND MEDICAL CERTIFICATION: The associate may be required to provide advance leave notice and medical certification. . . . An employer . . . may require . . . a fitness for duty report to return to work."

(Def.'s App. at 110.) Based on this information, Dillards did comply with the first requirement under 29 C.F.R. § 825.310(e). However, there is no evidence in the record that Porch was given specific notice either at the time she notified Dillards of her need for FMLA leave or immediately after her leave began in December 2000 that she would be required to submit a fitness-for-duty certification prior to returning to work. Because there is no evidence that Dillards provided Porch with this required notice, the Court cannot, at least in response to a summary-judgment motion, conclude that Dillards had a right to disallow Porch's return to work when she did not submit what Dillards refers to as a "full medical release." Consequently, Dillards's motion will be denied as to this claim.

2. Discrimination/Retaliation Claim

The FMLA also provides discrimination or retaliation as a second theory of recovery. Parker, 234 F. Supp. 2d at 487; Bocalbos v. Nat'l W. Life Ins. Co., 162 F.3d 379, 383 (5th Cir. 1998). Under this theory, the FMLA protects employees from being discriminated or retaliated against because they have exercised their rights under the FMLA. Parker at 488; see 29 U.S.C.A. § 2615 (West 1999). In analyzing claims for discrimination or retaliation under the FMLA where there is no direct evidence, "the Fifth Circuit has adopted the three-part burden-shifting framework under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1972)." Rogers v. Bell Helicopter Textron Inc., No. CA 3-990CV-988-R, 2000 WL 1175647, at *3 (N.D. Tex. Aug. 17, 2000); see Chaffin v. John H. Carter Co. Inc., 179 F.3d 316, 319 (5th Cir. 1999); Lottinger v. Shell Oil Co., 143 F. Supp. 2d 743, 772 (S.D. Tex. 2001) ("Retaliation claims brought under the FMLA are analyzed under the same standards that are applied to retaliation claims brought under Title VII"). First, the plaintiff must establish a prima-facie case of discrimination or retaliation by demonstrating that: (1) she engaged in a protected activity; (2) she suffered an adverse employment decision; and (3) there is a causal connection between the protected activity and the adverse employment decision. See Bocalbos, 162 F.3d at 383; Chaffin, 179 F.3d at 319. "Once the plaintiff makes this preliminary showing, the employer must articulate a legitimate, nondiscriminatory reason for the plaintiff's termination." Chaffin, 179 F.3d at 320. If the employer does so, then to defeat summary judgment the plaintiff must produce substantial probative evidence that the proffered reason was a pretext for retaliation. Id.

In this case, Porch argues that she was discriminated and retaliated against in violation of the FMLA when she was not reinstated to work prior to the expiration of her twelve weeks of FMLA-qualifying leave. Dillards, on the other hand, argues that it "cannot be retaliatory or discriminatory not to reinstate an employee who fails to satisfy the statutory conditions for reinstatement." (Def.'s Reply at 6.) Even assuming that all of Porch's allegations are true, Porch has failed to establish a prima-facie case of retaliation or discrimination because there is no causal connection shown between her protected activity under the FMLA and Dillards's refusal to reinstate her in within the twelve weeks she was out on FMLA-qualifying leave. There is no evidence that Dillards refused to reinstate her during this period because she took leave under the FMLA. Instead, the evidence indicates that Dillards refused to reinstate her during February and March 2001 because she did not provide them with a "full medical release." Although Dillards may have violated the regulations under the FMLA in requiring her to submit a full medical release prior to being reinstated, such an error will be addressed in Porch's entitlement claim and does not indicate that Dillards acted in a discriminatory or retaliatory manner. Because Porch has failed to prove a prima-facie case of discrimination or retaliation under the FMLA, Dillards is entitled to summary judgment on this claim.

An employer's act of not reinstating an individual under the FMLA is an adverse employment action. See, e.g., Borner v. Zale Lipshy Univ. Hosp., No. Civ. A. 3:01-CV-227-R, 2002 WL 449576, at *6 (N.D. Tex. March 20, 2002) (stating that the employer's act of inviting the employee back to work and then sending her home after telling her that her job was not available is an adverse employment action).

C. Common-Law Claims

Porch claims that Dillards made the following fraudulent or negligent misrepresentations: (1) George, Taylor, and Litchford all told her that a "full medical release" was required before she could return to work; (2) George told her that she would be very sick from the chemotherapy and that she needed to just stay off of work and continue her treatments; and (3) Taylor told her that he could not extend her lunch hour because if he did it for her, he would have to do it for everybody and that she had to have a full medical release and not be undergoing chemotherapy before she could return to work because Dillards could not be responsible if something were to happen to her.

The elements of a claim for fraudulent misrepresentation are: (1) a material representation was made; (2) the representation was false; (3) when the representation was made, the speaker knew it was false or made it recklessly without any knowledge of the truth and as a positive assertion; (4) the representation was made with the intention that it be acted upon by the other party; (5) the party acted in reliance upon the representation; and (6) the party suffered injury. See Barker v. Roelke, 105 S.W.3d 75, 86 (Tex.App.-Eastland 2003, pet. denied). Furthermore, the elements of a claim for negligent misrepresentation are: (1) the defendant makes a representation in the course of his business, or in a transaction which has a pecuniary interest; (2) the defendant supplies "false information" for the guidance of others; (3) the defendant did not exercise reasonable care or competence in obtaining or communicating the information; and (4) the plaintiff suffers pecuniary loss by justifiably relying on the representation. Fed. Land Bank Ass'n of Tyler v. Sloane, 825 S.W.2d 439, 442 (Tex. 1991). After reviewing the evidence, the Court concludes that there are genuine issues of material fact whether the assertions made by Dillards constitute fraudulent or negligent misrepresentations. Consequently, the Court will not grant summary judgment on these claims.

As to Dillards's argument that Porch's claim for negligent misrepresentation is preempted by the Texas Workers' Compensation Act ("TWCA"), the Court finds that her claim is not a compensable "injury" as defined under the TWCA. See TEX. LAB. CODE ANN. § 401.011 (26) (Vernon 2002). Consequently, there is no preemption.

IV. CONCLUSION

Based on the foregoing, it is ORDERED that Dillards's Motion for Summary Judgment [doc. # 13-1] is PARTIALLY GRANTED in that it is entitled to summary judgment on Porch's claims under the ADA and claim for retaliation or discrimination under the FMLA.

6/13/01: termed for failure to return from LOA after 6 months. 6/22/01: filled out a new application; Anne Ansley told her she would have a 30 day waiting period for re-hire. Also, she told her applications were on file for 30 days. 6/29/01: I received a letter from Shana stating to be re-hired immediately or she would go to the EEOC. I did not respond to her letter. date unknown: before 7/27/01, Shana called inquiring about a position. I did not know when she had filled out an application, but told her we kept them on file for 30 days. She said she thought it was 6/17/01 or 6/22/01. Once again, I told her about the 30 days. 7/27/01: Received an e-mail from Diana Vitek stating Shana had contacted the office regarding further employment. I called Shana and told her if she had further questions to contact you. 8/06/01: Conference call with you and Mike Litchford. You said that we would probably need to re-hire her. w/e 9/1/01: You told Mike that even though she had not called again that we need to contact her and offer a position. 9/04/01: Mike Taylor called Shana to come in to the store to discuss employment. 9/05/01: Shana filled out another application. Mike Taylor offered her a position in Accessories and she accepted. Since 6/13/01 (Shana's termination date) we have hired 4 FT associates for WKC011 that are still in active status. Hire dates were on 8/12, 8/27, and 9/24. Two of these positions were filled during our job fair on 8/20 and 8/21.

(Pl.'s App. at 64.)


Summaries of

Porch v. Dillard's Inc.

United States District Court, N.D. Texas, Fort Worth Division
Jul 12, 2004
Action No. 4:03-CV-170-Y (N.D. Tex. Jul. 12, 2004)
Case details for

Porch v. Dillard's Inc.

Case Details

Full title:SHANA PORCH v. DILLARD'S INC

Court:United States District Court, N.D. Texas, Fort Worth Division

Date published: Jul 12, 2004

Citations

Action No. 4:03-CV-170-Y (N.D. Tex. Jul. 12, 2004)