Nicely v. Safeway Inc, 8:13-cv-02827

Background

Nicely, a Safeway meat wrapper, injured her back at work on June 25, 2010; she received workers’ compensation treatment and light-duty work beginning November 4, 2010.
From November–December 2010 Nicely missed multiple shifts; there is dispute about whether she gave managers proper notice and whether Safeway was informed her absences might be FMLA‑qualifying.
On December 6, 2010 store manager Woodfield and Nicely had a call; facts are disputed about whether Nicely notified Safeway she needed leave for her back and whether Safeway requested medical certification.
Nicely faxed a doctor’s note on December 7, 2010 but sent it to a fax number later shown to belong to a third party (CTI); Safeway received some documentation only after Nicely’s December 14, 2010 termination for alleged job abandonment and missed IME appointments.
Safeway argues Nicely abandoned her job for failing to follow call‑in and IME requirements; Nicely contends she gave notice and was entitled to FMLA leave for a serious health condition related to the workplace injury.
The district court denied Safeway’s summary judgment motion, finding genuine disputes of material fact as to notice, whether Safeway requested and gave time to cure certification deficiencies, and whether absenteeism alone justified termination.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Effect of workers’ compensation settlement on FMLA claim	Settlement did not release FMLA claims; release was limited to Workers’ Compensation Law claims	Settlement language releases all claims arising from the injury	Court: Release interpreted as limited to workers’ compensation claims; FMLA claim not barred
Whether Nicely had a "serious health condition" under FMLA	Back injury with ongoing treatment and physician notes supports serious health condition	Employer says medical evidence insufficient and IME found condition pre‑existing	Court: Genuine dispute exists; summary judgment inappropriate
Whether Nicely gave adequate notice to trigger FMLA protections	Nicely told manager on Dec. 6 she needed time off for back pain and specialist referral; earlier worker’s comp communications also put employer on notice	Safeway says mere "called in sick" or messages to non‑managers insufficient under policy/regulations	Court: Material dispute as to whether communication reasonably apprised Safeway that FMLA leave was needed; denied summary judgment
Whether Safeway’s attendance/job‑abandonment policies independently justified termination	Nicely says safeway did not consistently discipline earlier missed calls and she attempted to provide notes; termination came before employer’s 15‑day cure period	Safeway claims Nicely violated call‑in rules and missed IME; job abandonment policy warranted termination	Court: Disputed facts (who was told, when, and whether employer acted earlier) preclude summary judgment; employer may still assert policy defense at trial

Key Cases Cited

Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment standard)
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (summary judgment and genuine‑issue standard)
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (view evidence in light most favorable to non‑moving party)
Rhoads v. FDIC, 257 F.3d 373 (FMLA notice requirement and timing)
Dotson v. Pfizer, Inc., 558 F.3d 284 (distinguishing FMLA interference and retaliation claims)
Cavin v. Honda of Am. Mfg., Inc., 346 F.3d 713 (court/jury roles on FMLA notice sufficiency)
Novak v. MetroHealth Med. Ctr., 503 F.3d 572 (employer must notify employee of certification deficiency and allow opportunity to cure)
Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795 (limits on sham‑affidavit doctrine)