Regina WHITE, Plaintiff-Appellant, v. BELTRAM EDGE TOOL SUPPLY, INC., Defendant-Appellee.
No. 14-11750.
United States Court of Appeals, Eleventh Circuit.
June 12, 2015.
III. CONCLUSION
We lack appellate jurisdiction to consider KDOL‘s argument that it does not have the capacity to be sued and DISMISS the appeal as to that claim. The district court was correct to reject KDOL‘s claim of Eleventh Amendment immunity as to Ms. Arbogast‘s Rehabilitation Act claims and we AFFIRM as to that claim.
Gregory A. Hearing, Thompson Sizemore Gonzalez & Hearing, PA, Tampa, FL, for Defendant-Appellee.
Before MARTIN and ROSENBAUM, Circuit Judges, and COOGLER,* District Judge.
MARTIN, Circuit Judge:
This appeal presents several questions about the proper application of the Family and Medical Leave Act of 1993. Regena White1 sued her former employer, Beltram Edge Tool Supply, Inc., claiming that it interfered with her rights under the FMLA by firing her instead of giving her medical leave. The District Court granted
This opinion proceeds in four Parts: Part I outlines the general legal background; Part II discusses the facts relevant to Ms. White‘s appeal; Part III analyzes the legal questions relevant to Ms. White‘s interference claim; and Part IV considers the two alternative causes of action dismissed by the District Court.
I. Legal Background
The Family and Medical Leave Act confers several rights on employees, including two relevant here: the right to take twelve weeks of job leave “[b]ecause of a serious health condition that makes the employee unable to perform the functions” of her job,
To protect these rights, the FMLA creates a private right of action. If an employer interferes with an employee‘s FMLA rights, she may sue for equitable relief or money damages. Hurlbert v. St. Mary‘s Health Care Sys., Inc., 439 F.3d 1286, 1293 (11th Cir.2006). This archetypal FMLA claim is often called an “interference claim,” because the “employee asserts that [her] employer denied or otherwise interfered with [her] substantive rights under” the FMLA. Id. (emphasis added) (quotation omitted). An interference claim has two elements: (1) the employee was entitled to a benefit under the FMLA, and (2) her employer denied her that benefit. Krutzig v. Pulte Home Corp., 602 F.3d 1231, 1235 (11th Cir.2010).2
The first element is the crux of this appeal. There is no dispute about the second. Beltram clearly denied Ms. White two FMLA benefits when it fired her: it denied her FMLA leave, see
II. Facts & Procedural History
On summary judgment, we “view the facts and draw reasonable inferences in the light most favorable to the party opposing the summary judgment motion,” here, Ms. White. See Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 1774, 167 L.Ed.2d 686 (2007) (quotations omitted) (alteration adopted).
Ms. White‘s need for FMLA leave was based on an injury to her knee. She first injured her knee in April 2010, about ten months before she requested FMLA leave. At the time, an orthopedist prescribed physical therapy and told her she may need surgery if her knee remained unstable. She was able to work for nearly the rest of 2010 despite her knee injury. Ms. White stopped reporting for work on December 23, but her absences were due to other health issues. She called in to Beltram over the next few weeks and explained that she was absent because she was suffering from various maladies: bronchitis, sleep apnea, hypertension,
On January 27, 2011, still absent from work, Ms. White visited her primary care physician and reported that she had fallen twice the previous weekend, reinjuring the same knee. This reinjury and the necessary treatment formed the basis of her need for FMLA leave.3
The day after reinjuring her knee, January 28, Ms. White spoke with two Beltram supervisors. She told Jim Reeverts, her direct supervisor, that her “knee gave out and it was painful and [she] could put [sic] any weight on it and received a referral from [her primary care physician] to go to an orthopedic physician.”4 She also spoke with Xiomara Polewaski, Beltram‘s Executive Vice President of Operations, and asked for FMLA paperwork. Ms. Polewaski sent Ms. White a physician‘s certification form and told her that it was due fifteen days later, on February 12. See
On February 8, Ms. White saw her orthopedist and signed a consent form for a knee operation. But she was not able to complete the FMLA paperwork on that day because her orthopedist was himself taking a leave of absence, and she was transferred to another doctor. On February 11, one day before the stated deadline for returning the FMLA paperwork to Beltram, Ms. White contacted Ms. Polewaski, explained the situation involving the orthopedists, and asked for an extension of the fifteen-day deadline. Ms. Polewaski testified that Ms. White said the FMLA certification would be a couple of days late, so she “grant[ed] [Ms. White] a couple of extra days . . . and . . . told her to get the form [in] as soon as possible.” Ms. Polewaski did not give a specific due date.
At the same time, Ms. Polewaski told Ms. White to send doctor‘s notes explaining her absences since December 27. Ms. White responded by sending two doctors’ notes. On one, completed on January 18, Ms. White‘s doctor wrote that she was “under [the doctor‘s] care from 12-28-10 to 1-24-11.” The second note, completed on January 24, indicated that Ms. White would “be able to return to [work] on 1-31-11.”
On February 17, shortly after receiving the two doctor‘s notes, Beltram fired Ms. White.5 Ms. Polewaski, who, along with
A letter sent to Ms. White explained why she was fired. It said her doctor‘s notes indicated she was “able to return to work, without restrictions, on January 31, 2011[,] but . . . never did return to work.” It went on: “Additionally, you have failed to return, within the 15 calendar days granted by law, the FMLA form that was e-mailed to you on January 28, 2011.” Ms. Polewaski explained to Ms. White by phone that she was fired because Beltram “made a business decision . . . because [it] did not receive [her] paperwork.”
Ms. White underwent knee surgery on March 7. About a year later, on March 30, 2012, her surgeon signed a letter stating that Ms. White recovered “extremely well” from her surgery and could have returned to work on March 28, 2011—nearly a month earlier than the original estimate, and well within the twelve weeks guaranteed by the FMLA.
Ms. White filed suit against Beltram in state court in January 2013. Beltram removed the case to the District Court for the Middle District of Florida, and moved for summary judgment. The District Court granted summary judgment for Beltram. In its order, the District Court held that Ms. White had failed to create a genuine dispute of fact showing that she was entitled to leave, so her claim that Beltram interfered with her FMLA rights failed as a matter of law.
The District Court ruled that Ms. White was not entitled to FMLA leave—and thus could not show the first element of an interference claim—for three reasons: she did not suffer from a serious health condition; she did not give proper notice of her need for FMLA leave; and she requested more than twelve weeks of leave. In addition to dismissing her interference claim, the District Court also declined to consider two alternative causes of action advanced by Ms. White for the first time on summary judgment: that Beltram failed to comply with FMLA‘s employer-notice requirements, and that Beltram retaliated against her for exercising her rights under the FMLA. The District Court explained that Ms. White had not pleaded these two claims in her complaint and could not raise them for the first time at summary judgment. Ms. White appeals each of these rulings.
We review de novo the District Court‘s grant of summary judgment. Jurich v. Compass Marine, Inc., 764 F.3d 1302, 1304 (11th Cir.2014) (per curiam). Summary judgment is appropriate if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
III. Interference Claim
Viewing the evidence in the light most favorable to Ms. White, we cannot agree with the District Court that Beltram was entitled to summary judgment on Ms. White‘s interference claim. This Part, consisting of four Sections, explains how we part ways with the District Court. We
A. Serious Health Condition
An employee has the right to take FMLA leave only if she suffers from a “serious health condition” that makes her “unable to perform the functions of [her] position.” Hurley v. Kent of Naples, Inc., 746 F.3d 1161, 1166 (11th Cir.2014) (quotation omitted). The District Court first held that Ms. White was not entitled to FMLA leave “because she did not suffer from a serious health condition” at any point during her absence from Beltram. That was error because there is at least a dispute of fact on the point.
A “serious health condition” is “an illness, injury, impairment, or physical or mental condition that involves,” as relevant here, “continuing treatment by a health care provider.”
The District Court held that Ms. White‘s knee injury was not a serious health condition. But in doing so, it failed to view the relevant facts in the light most favorable to Ms. White. The FMLA certification form completed by Ms. White‘s orthopedist stated quite clearly that her injury qualified as a serious health condition under the Act‘s definition. The form asked: “Will the employee be incapacitated for a single continuous period of time due to his/her medical condition, including any time for treatment and recovery?” The doctor checked “Yes.” The form also asked the doctor to “estimate the beginning and ending dates for the period of incapacity.” The doctor wrote: “1/28/11-4/28/11.” On its face, the certification form indicated that Ms. White‘s knee injury was a “serious health condition” involving “continuing treatment,” because the doctor certified that Ms. White would be incapacitated for more than three days. See
Our review of the record shows that the District Court limited its consideration to only the evidence Ms. White gave to Beltram before she was fired. It wrote: “White‘s medical records presented to Beltram from December 27, 2010, through her date of termination also reflect that White was not incapacitated for purposes of ‘continuing treatment.‘” (Emphasis added.) But we know of no authority, and neither the District Court nor Beltram has identified any, suggesting that, to determine whether an employee had a “serious health condition,” a court must limit itself to considering only evidence received by the employer before the employee was fired. And we see no reason why that should be the case. The fact question—did an employee suffer from a serious health condition?—is one that, like any other question
It may at first seem unfair to the employer, as Beltram argues, to make the serious-health-condition determination using evidence that the employer did not see until after it made the termination decision. But, as we discuss later, other provisions in the FMLA protect employers from being sandbagged by employees who try to create interference claims after the fact and based on information not known at the time of termination. For example, the Act requires employees to timely notify employers of their need for FMLA leave, see
The date on which Ms. White gave medical evidence to Beltram has no bearing on whether, as a factual matter, she had a serious health condition. The timeliness of her notice and certification may affect whether she met her obligations under the Act, as we discuss in Sections III.B and D, infra. But the timeliness of her notice and certification don‘t decide the question of whether she suffered from a serious health condition. We conclude that the District Court erred by holding that Ms. White did not suffer from a serious health condition. She did, at least for the purpose of Beltram‘s motion for summary judgment. Her interference claim therefore does not fail based on her lack of a serious health condition. But this does not end our analysis.
B. Notice of Need for FMLA Leave
While suffering from a serious health condition is necessary, it is not sufficient for an employee to earn FMLA leave. She must also give her employer notice of her need for leave, see
The District Court predicated this holding on its finding that Ms. White‘s need for leave was foreseeable. This issue of foreseeability is crucial, because the FMLA‘s notice requirements are considerably more onerous if an employee‘s need for leave is foreseeable than if it is unforeseeable. Once it found Ms. White‘s need for leave to be foreseeable, the District Court held that her notice did not meet the requirements for foreseeable leave. Our conclusion is to the contrary: her need for leave was unforeseeable, and her notice was adequate under the less stringent requirements governing notice for unforeseeable leave.
1. FMLA‘s Notice Requirements
An employee‘s notice of her need for FMLA leave must satisfy two criteria—timing and content—both of which differ depending on whether the need for leave is foreseeable or unforeseeable. First, timing. If an employee‘s need for leave is foreseeable, she must give her employer at least 30 days’ advance notice, unless giving 30 days’ notice is impracticable, in which case the employee must give only “such notice as is practicable.”
Second, content. As a general rule, an employee need not explicitly mention the FMLA when giving notice to her employer. See Cruz v. Publix Super Mkts., Inc., 428 F.3d 1379, 1383 (11th Cir. 2005) (“An employee is not required to assert expressly her right to take leave under the FMLA.“). But the FMLA and its regulations do require that the notice convey certain information. Again, the content requirement differs depending on whether an employee‘s need for leave is foreseeable or unforeseeable. If the need for leave is foreseeable, an employee must give her employer notice that is “sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and [of] the anticipated timing and duration of the leave.”
2. Ms. White‘s Need for Leave Was Unforeseeable
Our task is made more difficult because neither the FMLA nor its implementing regulations defines the terms “foreseeable” and “unforeseeable.” We must divine, with little textual or precedential guidance, whether Ms. White‘s need for leave was foreseeable or unforeseeable.
Courts usually speak in terms of whether the need for leave itself was foreseeable. See, e.g., Hurley, 746 F.3d at 1167 (“[A]n employee is required to provide notice when the need for leave is foreseeable.” (emphasis added)); Cruz, 428 F.3d. at 1382 (“The FMLA requires employees to provide 30 days advance notice of the leave, when the need to take leave is foreseeable. . . . [I]f the need for leave is not foreseeable . . . .” (emphasis added)). But the FMLA itself is a bit more specific: it requires 30 days’ advance notice if the need for leave is “foreseeable based on planned medical treatment.”
The District Court found Ms. White‘s need for leave to be foreseeable. While it did not expressly mention “planned medical treatment,” its finding appears to be based, at least implicitly, on a belief that her knee surgery was that kind of treatment. The Court explained that Ms. White “knew as far back as April 2010, when she first injured her knee, that surgery was an option.” It pointed to the testimony of the orthopedist who performed her knee surgery: “Dr. Okun testified that White‘s surgery ‘was something that could be scheduled in advance and planned for.’ Indeed, he testified that the surgery was ‘elective.‘”
But the District Court did not view the evidence in the light most favorable to Ms. White. When she first injured her knee, her doctor prescribed physical therapy and discussed surgery only as an eventuality. And she was able to work for eight months despite the initial injury. While it is true that she knew surgery was “an option” in April 2010, viewing the facts in her favor compels the conclusion that she had no intention (or need) to undergo surgery until she reinjured her knee in January 2011.
It is also true that Dr. Okun responded affirmatively when asked whether the knee surgery was “something that could be
It‘s . . . elective in that it doesn‘t have to be done right away in the middle of the night. That‘s an orthopedic emergency. It‘s a relatively urgent procedure, because if it‘s—something isn‘t done[,] the knee is going to keep buckling out and giving out . . . , but it‘s not a true emergency where you‘re going to lose your leg if it isn‘t done right away.
(Emphasis added.) Dr. Okun testified that the surgery was “elective” only in the sense that it would not result in amputation if not performed immediately. His testimony indicates that the surgery was “relatively urgent,” and that Ms. White‘s knee would “keep buckling and giving out” until she had surgery. When viewed in the light most favorable to Ms. White, this surgery was not a “planned medical treatment.” Her need for leave was thus unforeseeable, and she was not required to give 30 days’ advance notice.7
3. Ms. White‘s Notice Was Adequate
Because Ms. White‘s need for leave was unforeseeable, she was required to give notice only as early as was practicable,
Ms. White fell and reinjured her knee around January 26, 2011. The very next day she spoke to her direct supervisor and told him that she injured her knee, she could not put any weight on it, and that she had made an appointment to see an orthopedic surgeon.
This satisfies the FMLA‘s two notice criteria. Giving notice the very next day assuredly meets the timing standard of practicability. And the content of Ms. White‘s notice was also sufficient. She told her direct supervisor that her knee “gave out,” that it “was painful,” that she “could [not] put any weight on it,” and that she had received a referral to an orthopedic surgeon. That is plenty of information for an employer to reasonably determine whether Ms. White may have needed FMLA leave due to a serious medical condition. For purposes of Beltram‘s motion for summary judgment, Ms. White‘s notice was sufficient and did not disqualify her from taking FMLA leave.
C. Estimating More than Twelve Weeks of Leave
The FMLA gives employees the right to be reinstated to their original job (or an equivalent) after returning from FMLA leave.
The District Court held that even if Ms. White was entitled to FMLA leave—even if she had a serious health condition and gave adequate notice—she was not entitled to be reinstated to her job because she
The District Court was correct as a legal matter that an employee who cannot perform after twelve weeks of FMLA leave is not entitled to be restored to her job. See
Second, and perhaps more importantly, that form was only an estimate of the length of Ms. White‘s leave. See
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The District Court held that Ms. White‘s interference claim failed as a matter of law because she was not entitled to FMLA leave. It gave three reasons why she was not entitled to leave: she did not suffer from a serious health condition, she did not give proper notice of her need for leave, and she requested more than twelve weeks of leave. At least when considering Beltram‘s motion for summary judgment, we come out differently for all three. None of these three reasons disqualifies Ms. White from taking FMLA leave.
D. Timely Return of Physician‘s Certification
Nevertheless, Beltram asks us to affirm the District Court‘s dismissal of Ms. White‘s interference claim on a fourth ground that was not decided below: that Ms. White did not timely return the physician‘s certification form within 15 days, as required by the FMLA. See
On February 11, one day before the initial 15-day deadline, Ms. White called in to Beltram and told Ms. Polewaski that she needed extra time to complete the certification form. She told Ms. Polewaski that her orthopedist, who she had asked to complete the form, was taking a leave of absence. She told Ms. Polewaski that she was seeing another orthopedist on February 15. In response, Ms. Polewaski told Ms. White “to get the form [to her] as soon as possible.” (Emphasis added.) Viewing this conversation in the light most favorable to Ms. White, a reasonable jury could find that the vague response by Ms. Polewaski—get it in as soon as possible—implied an extension based on the February 15 appointment date. That is to say, a reasonable jury could find that Ms. Polewaski gave her assent to Ms. White to return the certification on February 16, a mere one day after Ms. White‘s appointment with her orthopedist.9
We must reverse the District Court‘s grant of summary judgment for Beltram, and remand Ms. White‘s interference claim for further proceedings.
IV. Unpleaded Claims
Finally, the District Court declined to consider two additional causes of action alleging independent violations of the FMLA by Beltram: failure to give proper notice to employees about their rights and obligations under the FMLA,10 and retaliation against Ms. White for exercising her FMLA rights.11 The District Court held that Ms. White had not stated these causes
A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”
Ms. White‘s complaint was a short three pages. It did not explicitly state an “employer-notice” claim, or a “retaliation” claim, or, for that matter, even an “interference” claim. It stated only one count, which was labeled “Violation of the Family and Medical Leave Act.” In total, the count‘s two substantive paragraphs read as follows:
11. Defendant violated the Family and Medical Leave Act by refusing to designate leave as FMLA protected leave and terminating [Plaintiff] for taking leave, thereby failing to provide reinstatement under the FMLA.
12. The actions of Defendant were willful.
The half-page fact section contained no information about the notice given by Beltram to its employees. Again, in full, it reads as follows:
8. In December 2010, Plaintiff was diagnosed with a serious medical condition which required her to undergo surgery and caused her to be absent from work.
9. Plaintiff specifically informed her supervisors of the specific nature of the condition, that it required surgery, and that should [sic] would be absent from work due to the surgery.
10. On February 17, 2011, she was terminated for unexcused absences.
The District Court was correct to hold that there was no basis for Beltram to have understood from the complaint that Ms. White was alleging an employer-notice cause of action—i.e., that it failed to give notice to its employees about the FMLA as required under the Act. Ms. White‘s complaint contains no mention of the notice (or lack thereof) given by Beltram to its employees, or the FMLA‘s employer-notice requirements. But her allegation that Beltram “terminat[ed] her for taking leave” put Beltram on notice that she was stating a retaliation cause of action. Ms. White‘s retaliation claim must return to the District Court for consideration alongside her interference claim.
AFFIRMED IN PART, REVERSED IN PART, and REMANDED.