Rouse v. Markem Corp. CV-98-229-B 08/22/99

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Wendell F. Rouse, Plaintiff

v. Civil No. 98-CV-229-B

MARKEM Corporation, Defendant

O R D E R

Plaintiff Wendell F. Rouse has sued his former employer, the

MARKEM Corporation, alleging violations of the Family and Medical

Leave Act of 1993,

, et seq., ("FMLA"). Rouse

alleges that MARKEM failed to inform him of his right to take

leave for treatment of a serious medical condition under the law

and subsequently fired him in violation of the FMLA. He seeks

damages in the form of lost wages, future wages, retirement

benefits, insurance, and medical costs. The Defendant has moved

for summary judgment pursuant to Fed. R. Civ. P. 56. The

Plaintiff has moved for partial summary judgment on the issue of

liability, arguing, among other things, that MARKEM failed to

post the required FMLA notices at its plant or otherwise notify

Rouse of his rights under the law. For the reasons set forth below, I deny both motions.1

STANDARD

Summary judgment is appropriate only "if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law." Fed. R. Civ. P.

56(c); see Lehman v. Prudential Ins. Co. of A m . ,

, 327

(1st Cir. 1996). A genuine issue is one "that properly can be

resolved only by a finder of fact because [it] . . . may reason­

ably be resolved in favor of either party." Anderson v. Liberty

Lobby, Inc.,

(1986) . A material fact is one

that affects the outcome of the suit. See i d . at 248. In ruling

1 This Order primarily addresses Defendant's motion (document no. 8), although there are facts and issues common to both motions discussed herein. As to Plaintiff's motion (document no. 9), I find that the record demonstrates multiple issues of material fact precluding summary judgment. For example, the parties vigorously dispute whether or not MARKEM complied with the FMLA's posting reguirements. While the evidence may suggest the possibility that MARKEM did not properly post an FMLA notice, it does not clearly establish that fact. Indeed, it would not be unreasonable based on the record for a fact-finder to conclude that MARKEM did post the reguisite notice. This dispute clearly prevents me from granting partial judgment in Plaintiff's favor. See Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc.,

(1986).

-2- on a motion for summary judgment, I must construe the evidence in

the light most favorable to the non-movant and determine whether

the moving party is entitled to judgment as a matter of law. See

Oliver v. Digital Equip. Corp.,

(1st Cir.

1988) .

FACTS

Wendell "Wink" Rouse began working for the Defendant as a

temporary employee at MARKEM's Keene, New Hampshire, facility in

August 1991. Rouse became a full-time employee in March 1992.

As a full-time employee. Rouse was eligible for various benefits,

including retirement, health care, and disability insurance. He

was also eligible for MARKEM's "Salary Plan," which provided

employees with up to one year of paid leave due to "accident,

illness, pregnancy or other disability." Rouse received MARKEM's

Employee Handbook, which described his benefits, when he became a

full-time employee.

Rouse admits that he never read the Handbook, stating that

it "didn't show me any interest" and "I was not paid at Markems

to sit and read." MARKEM amended the Employee Handbook from time

to time, and distributed supplements to employees as necessary.

Rouse received such supplements, which he "might look at" and

-3- then placed them in his desk drawer.

In 1993, Congress enacted the FMLA. The FMLA guarantees

eligible employees of covered employers up to 12 weeks of unpaid

leave each year to deal with serious personal matters, including

the birth of a child or a serious medical condition. See

612. MARKEM amended its Employee Handbook to reflect

the new law, adding a family and medical leave policy in or

around December 1993. The amended Handbook stated that "MARKEM

supports the policies set forth by the Family and Medical Leave

Act." The policy noted that, pursuant to the law, eligible

employees could take up to 12 weeks of leave in certain

situations. It also noted that employees eligible for MARKEM's

Salary Plan would receive paid time off for such leave.

Rouse took advantage of MARKEM's leave policy on at least

two occasions. In 1993, Rouse injured his knee while water

skiing and reguired two weeks of leave for surgery and recovery.

The following year. Rouse took time off to recover from a back

injury he sustained while rescuing a swimmer from drowning in a

pond. Rouse provided MARKEM with appropriate medical excuses on

both occasions, and MARKEM continued to pay Rouse in accordance

with the provisions of the Salary Plan.

-4- Rouse was diagnosed with Hepatitis C in 1995. He believed

that he may have been infected when he used intravenous heroin

while overseas in 1974. Hepatitis C is a virus which affects the

liver and can lie dormant for years, later manifesting itself in

a variety of symptoms. According to Dr. Teng Beng Go, a

specialist who treated Rouse, people with Hepatitis C can "yo-yo"

- sometimes suffering severe flu-like symptoms or fatigue and

feeling better other times. Rouse began to suffer flu-like

symptoms in December 1995, which continued off and on for many

months.

In January 1996, Rouse missed 16 hours of work. In

February, he was transferred to another department at MARKEM. On

February 28, Rouse did not come to work. He later telephoned,

saying he would be out for the remainder of the week and would

submit a doctor's note the following Monday, March 4. A friend

drove Rouse to the emergency room on March 2, as he was "weak,

shaky, sweaty, incoherent and nauseous." On Monday, March 4,

Rouse brought a note from the Lahey Hitchcock Clinic confirming

his illness and stating that he should remain out of work until

Friday, March 7. He did not report to work on March 7, however,

nor did he call to say he would be absent. He did call in sick

-5- the following Monday and Tuesday, March 10 and 11. On Wednesday,

March 12, Rouse arrived at MARKEM to pick up his check. He

handed in a note from the Clinic stating his absences from

February 28 through March 14 were due to "acute illness."

On March 19, MARKEM presented Rouse with a written warning

due to his excessive absenteeism. The warning noted Rouse's poor

attendance record in prior years2 and that he had missed 12 days

of work without medical documentation. Rouse was cautioned not

to miss any more work during the next six months without a

doctor's note clearly explaining his illness. MARKEM also

reguested permission to solicit additional information from

Rouse's physicians. The warning explicitly stated that Rouse's

"failure to comply with any of the conditions of this warning

2 The record notes that Rouse's absentee rate exceeded MARKEM standards in both 1993 and 1994. The notes explaining his absences on the company employment reviews state that Rouse's excessive absentee rate was due to medical reasons ("Had an operation on his knee;" "In 1994, Wink had some problems with his back and it has reoccurred at times."). If so, his absences may have been protected by the FMLA. MARKEM, therefore, could not base its decision to terminate Rouse's employment in whole or in part on his absentee rate during those years. See generally Duckworth v. Pratt & Whitney, Inc.,

(1st Cir. 1998);

. The written warning given to Rouse on March 19, 1996, cites his high absentee rate in 1995 and the beginning of 1996, it does not reference his absences in 1993 or 1994.

-6- will result in termination of employment at MARKEM."

Rouse did not come to work on Thursday, April 4, or Friday,

April 5. The following Monday, April 8, he came to work with a

doctor's note, excusing his absence "due to illness." Rouse then

met with MARKEM's human resources manager, Ovid "Ed" Dubois, to

review MARKEM's attendance policy and the written warning Rouse

received on March 19. Dubois told Rouse that he needed a

detailed doctor's note for his absences, indicating that without

one he may just assume Rouse was suffering from a hangover.

Dubois also provided Rouse with medical releases authorizing

MARKEM to obtain information directly from Rouse's doctors.

Rouse apparently told Dubois at this meeting that he suffered

from Hepatitis C. It is not clear from the record whether Dubois

orally informed Rouse of his right to take medical leave under

the FMLA at the meeting or otherwise inguired as to Rouse's need

to take such leave. It is similarly unclear if Rouse indicated

that he may reguire further absences to deal with his health

problems. In his deposition, Dubois stated that he did not

recall whether they ever discussed the FMLA.

Rouse met with Dubois again on Tuesday, April 9. Rouse

provided a more detailed note signed by nurse Mary Berube, his

-7- primary care physician, stating that his prior absences were due

to flu, strep throat, and a "viral syndrome" with vomiting and

abdominal pain. Dubois offered Rouse a severance package at that

time, suggesting that Rouse leave rather than risk termination.

Rouse declined the offer. Dubois then called the Lahey Hitchcock

Clinic to inguire further about Rouse's condition and was told by

a nurse that Rouse had not given the Clinic a release to discuss

his condition. Rouse dropped off the release at the Clinic later

that day. Dubois wrote to nurse Berube the following day to seek

more information. Berube wrote back that she was unable to

discuss Rouse's condition in more detail, as the medical release

Rouse signed was not a "total release."

Rouse did not see Berube again after April 9, as Berube

referred Rouse to Dr. Teng Beng Go to treat his symptoms, which

were believed to be related to his Hepatitis C. Rouse saw Dr. Go

on April 17, and provided Dr. Go with a medical release. Dr. Go

told Rouse that he would schedule a liver biopsy and possibly

start treatment to combat his Hepatitis-related symptoms.

On April 19, Rouse arrived at work, turned in his time card,

and told Bruce Descoteaux, the lead person in Rouse's department,

that he was going home to bed. Before leaving, he gave

-8- Descoteaux a pamphlet entitled "Hepatitis C - A common but little

known disease" and told him to read it. He did not, however,

provide a doctor's note to explain his absence. Although

Descoteaux was the "lead person," he was not Rouse's manager.

MARKEM's attendance policy reguired employees to notify their

managers when they were to be absent from work.

On April 22, therefore, Dubois met with Rouse in order to

terminate his employment at MARKEM. Rouse explained that he was

seeking treatment from Dr. Go. Rouse informed Dubois that he was

scheduled to have a liver biopsy and blood work. He told Dubois

that Dr. Go was authorized to discuss his condition. Dubois said

that he would first contact Dr. Go before deciding whether or not

to fire Rouse. He then placed Rouse on unpaid leave, pending the

outcome of his discussion with Dr. Go.

Dubois directed Sally Steere, MARKEM's nurse, to call Dr.

Go's office, and inguire about Rouse's condition. Steere spoke

with Amanda Costa, Dr. Go's nurse, and asked that she relay a

message to him regarding MARKEM's inguiry. Dr. Go's nurse

apparently did so, and reported Dr. Go's opinion back to Steere.

Steere never spoke directly to Dr. Go. In a memorandum to

Dubois, Steere stated that Rouse was scheduled to undergo an

-9- upper GI series the following day due to his complaints of

vomiting spells. She also wrote that "Dr. Go says that he does

not know of any medical reason why Mr. Rouse could not be

working ."

Dubois subseguently met with Rouse. Dubois said that, in

light of Dr. Go's conclusion that Rouse could work, Dubois had

decided to fire Rouse. Dubois never spoke directly with Dr. Go

or his nurse, but relied on the memorandum from nurse Steere. In

his deposition. Dr. Go testified that he did not even recall

making such a statement, claiming that "I do not believe I ever

said that he can go to work or not go to to work." Dr. Go noted

that he was a specialist and typically referred inguiries

regarding a patient's ability to work back to the primary care

physician, in this case nurse Berube. There is no evidence in

the record that MARKEM communicated with Berube after April 16,

the date on which she answered Dubois' letter of April 10.

MARKEM terminated Rouse's employment on April 23, 1996.

Rouse alleges that MARKEM failed to apprise him of his

rights under the FMLA, failed to offer him leave, and terminated

him in violation of the Act. Specifically, Rouse invokes § 2615

of the Act, which bars an employer from either interfering with

-10- an employee's exercise of his FMLA rights or discriminating

against him for doing so.3

DISCUSSION

MARKEM argues that it is entitled to summary judgment

because (1) Rouse failed to provide adeguate and timely notice of

his need for FMLA leave; (2) Rouse failed to provide medical

certification of his condition; and (3) Rouse's treating

physician indicated that Rouse was not entitled to such leave.4

I address these arguments in turn.

3 Section 2615 of the FMLA states, in part, that: (a) (1) It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter. (2) It shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter.

(West 1999).

4 As noted above. Rouse has moved for partial summary judgment on the issue of liability. Rouse argues in that motion that MARKEM is estopped from asserting a defense based on Rouse's alleged failure to provide notice or medical certification because MARKEM failed to post FMLA notices or otherwise inform Rouse of his rights under the law. Because I deny Rouse's motion, MARKEM is not estopped from asserting the above- mentioned defenses in the context of its motion for summary judgment (document no. 8) .

-11- The FMLA guarantees employees the right to take up to 12

weeks of unpaid leave in a year to confront "a serious health

condition that makes the employee unable to perform the functions

of the position."

(a) (1) (D) .

The twin purposes of the FMLA are to "balance the demands of the workplace with the needs of families" and "to entitle employees to take reasonable leave for medical reasons."

Hodgens v. General Dynamics Corp.,

(1st Cir.

1998)(guoting

(b)(1),(2)); see also Duckworth v.

Pratt & Whitney, Inc.,

(1st Cir. 1998). Following

an FMLA leave, the employee is entitled to return to his job, or

an eguivalent position, without losing any accrued seniority.

See Hodgens,

(citing

(a) (1);

(c)(1997)). An employee is also entitled to

take "intermittent" leave in order to attend medical appointments

or seek necessary treatment. See i d .

An eligible employee's right to FMLA leave is absolute, but

it does not come without restrictions or reguirements. See

Hodaens,

. Indeed, Congress intended that the

FMLA "accomplish its purposes 'in a manner that accommodates the

legitimate interests of employers.'" I d . at 159.

-12- 1. The FMLA's notice recruirement.

The FMLA requires an employee to provide his employer with

reasonable notice of the need to take leave. See, e.g.,

(e)(2);

, 825.303. The employee

need not explicitly invoke his FMLA rights to do so. See

(b). Rather, he must only state that leave is

necessary and "[t]he employer will be expected to obtain any

additional required information through informal means."

Where the need for leave is foreseeable, an employee is

required to provide his employer with "at least 30 days advance

notice."

. Where the need for leave is

unforeseeable, the employee must provide notice "as soon as

practicable under the facts and circumstances of the particular

case."

(a). In such unforeseeable situations,

the employee is expected to provide notice "within no more than

two working days of learning of the need for leave, except in

extraordinary circumstances where such notice is not feasible."

In this case, it is unclear from the record whether Rouse's

need for FMLA leave was foreseeable. Although he was diagnosed

with Hepatitis C in 1995 and may have carried the virus since

-13- 1974, he has proffered evidence that symptoms associated with the

virus can lie dormant for years and then "yo y o ." Indeed, it

appears that he did not suffer any symptoms until December 1995.

Viewing the evidence in the light most favorable to Rouse, I will

assume for purposes of Defendant's motion that Rouse's need for

leave was unforeseeable.

As such. Rouse would have had to put MARKEM on notice of his

need for leave as soon as practicable, or within two working days

of learning that he needed FMLA leave. See 2

(a). MARKEM has produced evidence that Rouse did not

comply with this reguirement. Rouse was repeatedly absent from

work during the two months leading up to his dismissal. Despite

the fact that he was seeking treatment for Hepatitis-related

problems during February and March, he apparently did not inform

MARKEM of his diagnosis until April 8.

Despite MARKEM's evidence, it is not entitled to summary

judgment on the current record. First, Rouse has produced

evidence that MARKEM may not have complied with the FMLA's

posting and notice reguirements. Moreover, even after Rouse

informed Dubois that he was undergoing tests related to his

Hepatitis C, Dubois apparently did not raise the possibility of

-14- FMLA leave. Instead, Dubois offered Rouse a severance package,

noting that Rouse risked termination if he continued to miss

work. Indeed, Rouse's affidavit states that "based on

management's response to my on-going illness," he did not believe

he was entitled to time off.

Finally, while MARKEM cites cases from other circuits which

may support its position, the First Circuit has yet to construe

the FMLA's notice provisions. See, e.g.. Holmes v. The Boeing

C o .,

(10th Cir. 1999); Satterfield v. Wal-Mart

Stores, Inc.,

(5th Cir.), cert, denied,

(1998). The cases MARKEM cites are persuasive, but the issue of

what constitutes adeguate and timely notice to an employer is

largely a case-specific factual inguiry. The record before me

demonstrates genuine factual disputes which are material to the

outcome of this case and which could reasonably be resolved in

favor of either party. C f . Hodgens,

. In the

absence of controlling precedent instructing me to do otherwise,

therefore, I cannot say as a matter of law that Rouse so utterly

failed to comply with the FMLA's notice reguirement that MARKEM

is entitled to summary judgment.

While the evidence suggests that Rouse was lax in the

-15- exercise of his rights, there is also evidence suggesting that

MARKEM did not meet its obligations under the FMLA. Viewing the

evidence in the light most favorable to Rouse, I conclude that

the evidence does not weigh so heavily in favor of MARKEM that it

is entitled to judgment as a matter of law on the grounds that

Rouse failed to provide adeguate and timely notice of his need

for leave. See, e.g., Toro v. Mastex Industries,

(D. Mass. 1999)("there are genuine and material issues

of fact with respect to many of the parties' respective rights

and obligations under the FMLA and its regulatory scheme");

Watkins v. J&S Oil Co., Inc.,

(D. Me. 1997),

affirmed,

(1st Cir. 1998)("the Court cannot conclude

as a matter of law that Plaintiff's actions absolved Defendant of

its duties under the FMLA").

2. Medical certification of the need for FMLA leave.

Where leave is foreseeable, an employee should provide

medical certification of the need for leave before the leave

actually begins. See

(b). Where that is not

possible, an employee may be reguired to provide medical

certification "within the time frame reguested by the employer

(which must allow at least 15 calendar days after the employer's

-16- request), unless it is not practicable under the particular

circumstances to do so despite the employee's diligent good faith

efforts."

(b).

Sufficient medical certification should state: (1) the date

the condition commenced, (2) its expected duration, (3) the

health care provider's knowledge of appropriate medical facts

regarding the condition, and (4) a statement that the employee is

unable to perform the functions of his position. See

(b). Where an employee seeks intermittent leave under the

FMLA, he must also provide information such as the dates he will

need to be absent for treatment. See i d . at § 2613 (b) (5), (6) .

Rouse clearly did not provide certification meeting the

above requirements. The record indicates, however, that MARKEM

never properly informed Rouse of his obligation to provide

medical certification, what that certification should include,

and the consequences for failing to do so. An employer is

required to give the employee written notice of the medical

certification requirements and the consequences of not providing

adequate information. See C.F.R. §§ 825.301(b)- (c), 825.305(a).

Where the information the employee provides is insufficient, the

employer must advise the employee and "provide the employee a

-17- reasonable opportunity to cure any such deficiency."

(d).

Even assuming that Dubois' April 8 request for a "detailed

note" was sufficient notice to Rouse of his obligation to provide

medical certification, MARKEM was required to allow Rouse 15 days

to do so. If the certification Rouse provided was insufficient,

MARKEM was required to so inform Rouse and allow him reasonable

time to cure the deficiencies. Clearly MARKEM failed in this

respect, as Rouse was fired on April 23, exactly 15 days after

the April 8 meeting. Following the April 8 meeting. Rouse

visited nurse Berube to obtain a more detailed medical excuse, as

requested by Dubois. He also dropped off a signed medical

release. The following day, he gave Dubois nurse Berube's note.

There is no evidence in the record that Dubois or any other

MARKEM employee informed Rouse that the note he presented on

April 9 was insufficient. Nor is there evidence that MARKEM gave

Rouse an opportunity to provide the additional information

required by the FMLA. As such, summary judgment for MARKEM on

the ground that Rouse did not provide sufficient medical

certification is inappropriate.

-18- 3. Dr. Go's opinion that Rouse was capable of work.

MARKEM also argues that, even if Rouse properly complied

with the notice and medical certification requirements of the

FMLA, his own treating physician stated that he was able to work

and, therefore, he was not eligible for FMLA leave. I reject

this argument.

The record contains conflicting evidence on Dr. Go's

opinion. MARKEM contends that Dr. Go stated "he does not know of

any medical reason why Mr. Rouse could not be working." This

information was apparently relayed from Dr. Go to his nurse,

Amanda Costa, to MARKEM's nurse, Sally Steere, and then to

Dubois. Dr. Go, however, testified that he does not recall

making such a statement. Moreover, he claims that his practice

when receiving such inquiries was to refer the question back to

the patient's primary care physician, which, in this case, would

be nurse Berube. There is no evidence that MARKEM sought, or

Rouse provided, more information from Berube after April 16, the

date on which she wrote to Dubois indicating that she could only

release Rouse's diagnosis. As such, a genuine issue on this

material fact remains.

-19- CONCLUSION

The record before me clearly demonstrates multiple issues of

fact which preclude summary judgment in MARKEM's favor. As such,

I deny Defendant's motion for summary judgment (document no. 8).

Plaintiff's motion for partial summary judgment (document no. 9)

is also denied.

SO ORDERED.

Paul Barbadoro Chief Judge

August 22, 1999

cc: Thomas P. Mullins, Esg. Francis Murphy, Esg. Jeffrey Howard, Esg.

-20-