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Bacon v. Henn. Co. Medical Center: US District Court : EMPLOYMENT - employer waived FMLA incapacity Question; but emplyee violated call-in policy

1According to WebMD:
Hives, also known as urticaria, are an outbreak of swollen, pale red
bumps, patches, or welts on the skin that appear suddenly either
as a result of the bodys adverse reaction to certain allergens, or for
other reasons. Hives usually cause itching, but may also burn or
sting. They can appear anywhere on the body, including the face,
Case No. 06-CV-2359 (PJS/RLE)
Mark A. Greenman and Ruth Y. Ostrom, GREENMAN & OSTROM, for plaintiff.
Beverly J. Wolfe, HENNEPIN COUNTY ATTORNEYS OFFICE, for defendant.
Plaintiff Melondy Bacon, a former janitor at defendant Hennepin County Medical Center
(HCMC), contends that HCMC violated the Family and Medical Leave Act (FMLA), 29
U.S.C. 2601-2654, by firing her while she was on medical leave. Bacon and HCMC both
move for summary judgment. For the reasons that follow, the Court grants summary judgment
to HCMC and denies summary judgment to Bacon.
Bacon began working in 1992 as a janitor at HCMC, a public hospital in Minneapolis.
Wolfe Aff. Opp. S.J. Ex. 12 (Bacon Dep.) at 12 [Docket No. 39]. As early as January 2000,
Bacon went to the emergency room at HCMC during her shift to be treated for a skin condition
that may have been hives.1 See Greenman Decl. Ex. B [Docket No. 31]. Bacon again broke out
lips, tongue, throat, or ears. . . . They can last for hours, or up to
several days before fading. Angioedema is similar to urticaria, but
the swelling occurs beneath the skin instead of on the surface. . . .
Occasionally, severe, prolonged tissue swelling can be disfiguring.
Rarely, angioedema of the throat, tongue or lungs can block the
airways, causing difficulty breathing. This may become life
WebMD.com, Hives (Urticaria and Angioedema), http://www.webmd.com/allergies/guide/
hives-urticaria-angioedema (last visited Nov. 19, 2007) (archived permanently at
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in hives during a shift in August 2003, and yet again during a shift in July 2004. On both
occasions, she was seen in the HCMC emergency room. Id. Exs. A, C. According to Bacon,
between the summer of 2003 and July 2004, she broke out in hives at work about ten times.
Bacon Decl. 3 [Docket No. 29].
Bacons hives outbreak in July 2004 led her to take a leave of absence. About a week
after the outbreak on July 14 Bacon had an appointment with her primary-care physician,
Dr. Priya Kohli. Kohli examined Bacon, discussed Bacons history of hives, and filled out an
FMLA form entitled Certification of Health Care Provider. Greenman Decl. Exs. H
(certification form), J (Kohlis notes from visit); Bacon Decl. 3. The FMLA form had been
provided to Bacon by HCMC.
A few days later on July 19, 2004 Bacons supervisor, Richard Smyrak, partially
filled out a Supervisors FMLA Approval Form. Smyrak signed the form, but he did not
check a box to indicate whether he approved or disapproved Bacons leave request. Greenman
Decl. Ex. K. Also on July 19 the same day that Smyrak partially filled out the approval form
Kohli filled out a second certification form similar to the July 14 form. Wolfe Aff. Opp. S.J.
Ex. 19 at HC00000129-32. Bacon says that Smyrak directed her to get this second doctors
2According to Bacon, Smyrak signed [m]y FMLA request with the condition that I get a
note from [my] doctor . . . . I complied and went back to Dr. [Kohli] the same day. Dr. [Kohli]
gave me a note for HCMC that I could not work until I saw an allergist and an occupational
therapist. Bacon Decl. 7.
3According to HCMC, Bacon claims for the first time in her summary-judgment
memorandum that she got a note from Kohli on July 19, but Bacon never disclosed this note
during discovery nor does she attach a copy of this note to her declaration. There is no
documented evidence to show that such a note ever existed. Def. Resp. Mem. Opp. Pl. Mot.
S.J. (Def. SJ Opp.) at 11 [Docket No. 36] (emphasis in original). HCMC asserts that no such
note can be found in . . . the documents in [Bacons] medical files at both the Emergency Room
at HCMC and Health Partners (Wolfe, Exs. 18, 19) . . . . Simply put, other than [Bacons]
hearsay claim, there is no evidence that this phantom note ever existed. Id. at 15.
In fact, as noted in the text, this phantom note is not a phantom at all: It is the second
certification form (dated July 19), which was among the documents produced by HCMC itself.
Indeed, the July 19 certification form is found in the very exhibit (Exhibit 19 to the Wolfe
affidavit in opposition to Bacons summary-judgment motion) that HCMC asserts does not
contain a July 19 note from Kohli. HCMC needs to take care that what it asserts in federal court
is true.
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certification form when he signed her approval form on July 19. Bacon Decl. 7;2 see also
Greenman Decl. Ex. L.
Although it is not clear from the record exactly when and to whom Bacon turned in her
forms, it is undisputed that two key forms Kohlis July 14 certification form and Smyraks
July 19 approval form were in her personnel file. Compare Kelley Aff. Opp. S.J. 12, 14,
16 [Docket No. 37] (asserting that forms were provided to Employee Health Services and
forwarded to Smyrak) with Bacon Dep. at 131-32 (asserting that supervisor-approval form was
given to Wanda Weber, Smyraks supervisor, who gave it to Smyrak). As to the July 19
certification form, HCMC strenuously asserts that there is no evidence that such a form ever
existed.3 HCMCs assertion is inexplicable. Records produced by HCMC during discovery in
this case include a Certification of Health Care Provider signed and dated by Kohli on July 19,
2004. Wolfe Aff. Opp. S.J. Ex. 19 at HC00000129-32 [Docket No. 39].
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Both health-care-provider certifications filled out by Kohli support, albeit in a somewhat
equivocal manner, Bacons request for FMLA leave:
On the July 14 form, Kohli checked a box to indicate that Bacon had a chronic serious
health condition as defined under the FMLA. Greenman Decl. Ex. H at 0002. At the same
time, however, Kohli indicated that Bacon was not presently incapacitated. Id. 3.c.
Likewise, on the July 19 form, Kohli indicated both that Bacon had a chronic condition and that
Bacon was not presently incapacitated by that condition. Wolfe Aff. Opp. S.J. Ex. 19 at
HC00000129 5.c.
On the July 14 form, Kohli answered yes to the question whether Bacon needed to
take off work only intermittently or work on a reduced work schedule . . . . Greenman Decl.
Ex. H 3.b. With respect to the probable duration of intermittent leave or a reduced work
schedule, Kohli commented: Difficult to assess[;] when symptoms occur [Bacon] cannot be at
work for [about 24 hours]. Frequency varies, may be once/month [and] may last rest of life. Id.
On the July 19 form, Kohli indicated that Bacon would need to work intermittently or on a lessthan-
full schedule only when condition is active. Wolfe Aff. Opp. S.J. Ex. 19 at HC00000129
Kohli indicated on both forms that she was referring Bacon to an allergist. Greenman
Decl. Ex. H 4.a-.b; Wolfe Aff. Opp. Mot. S.J. Ex. 19 at HC00000129 6.a. On the July 14
form, Kohli estimated that Bacon would need to be absent from work about one day per month to
visit an allergist for treatment. Greenman Decl. Ex. H 4.a-.b.
At the same time, however, on the July 14 form, Kohli answered yes to the question
whether Bacon was unable to perform work of any kind, and commented: [N]eeds to avoid
work environment as offensive chemical may be causing this[.] Continued exposure may lead to
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life threatening state. Id. 5.a (emphasis added). Similarly, on the July 19 form, in response to
the same question about whether Bacon was unable to perform work of any kind, Kohli wrote,
Yes as may be environmental exposure. Wolfe Aff. Opp. S.J. Ex. 19 at HC00000130 7
(emphasis added).
Kohli further indicated, on the July 14 form, that Bacons regimen of continuing
treatment would require, in addition to medication, avoidance of offending agent (? chemical
at work). Greenman Decl. Ex. H 4.c. And in response to a question on the July 14 form
about whether Bacon would need to be absent from work for treatment, Kohli wrote N/A,
i.e., not applicable, because Kohli had found Bacon to be unable to perform work of any kind.
Id. 5.c. This answer conflicts with Kohlis indication, earlier in that same form, that Bacon
needed to be absent from work once per month for treatment. Id. 4.a.
Bacon never returned to work after her July hives outbreak. On the day of the outbreak,
Bacon was coincidentally suspended for three days for earlier absences. Bacon Dep. at 79-81;
Wolfe Aff. Opp. S.J. Ex. 13 at HC00000345 (Bacon Dep. Ex. 49). For about a month following
that three-day suspension, Bacon called HCMC on every day that she was scheduled to work to
report that she would not be coming in. Ostrom Decl. Opp. S.J. Exs. CC-FF [Docket No. 44];
Bacon Decl. 4. By calling in her absences, Bacon was complying with HCMCs attendance
policy. That policy, which Bacon knew about, requires an employee on indefinite sick leave to
4An HCMC employee need not call in her absences if she has provided [her] supervisor
with written medical documentation specifying length of absence, including tentative date for
return to work. Weber Aff. Opp. S.J. Ex. 2 at HC00000891. There is no dispute that Bacons
medical documentation neither specified the length of her absence nor provided a tentative
return-to-work date.
- 6 -
call in her absences every day.4 Weber Aff. Opp. S.J. Ex. 2 at HC00000891 [Docket No. 38];
Bacon Dep. at 34-36.
On August 2 while Bacon was still complying with HCMCs call-in policy Bacon
saw Dr. Rolf Sigford, the allergist to whom Kohli had referred her. Sigfords notes include these
[Bacon] has been out of work, by her report, since June [sic] 14.
She states its because of the hives issue that she cannot get back
to work. Shes not having hives now. She thinks the hives seem
to be worse in the workplace and occur only at the workplace. . . .
Allergy skin testing is negative . . . .
ASSESSMENT: Urticaria. This may most likely actually turn out
to be idiopathic. . . .
PLAN: Its not even totally clear to me that this is exclusively a
workplace-related issue. In addition, if shes only having hives for
two or three days, every couple months, I dont really fully
understand why she should not be back at work.
Ill ask for Occupational Health consult.
Well check CBC, thyroid, sed[imentation] rate, liver function to
rule out other causes of this issue. . . . [C]ontact me [after] seeing
Occupational Health and getting the blood work done.
Wolfe Aff. (Second) Supp. S.J. Ex. 75 at HC00000137 [Docket No. 49]. That same day, after
her appointment with Sigford, Bacon stopped by HCMCs Employee Health Services
department. Kelley Aff. Opp. S.J. Ex. 1 at HC00000669. Bacon told an HCMC nurse that she
5Bacon also failed to show up or call in her absence beforehand for her scheduled shift on
August 11. Ostrom Decl. Opp. S.J. Ex. GG. By that time, however, Bacon had already
accumulated three no call/no show absences August 5, 9, and 10 and HCMC fired
Bacon based on those three absences.
- 7 -
would be scheduling followup visits with Kohli and with an occupational-health specialist. Id. at
In the meantime, however, Bacon stopped calling in her absences. On August 5, just
three days after seeing Sigford and stopping by HCMC, Bacon failed to show up for a scheduled
shift, and she failed to alert HCMC that she would be absent. Bacon Dep. at 92. Bacon also
failed to show up, or to call in her absence beforehand, for her next two scheduled shifts on
August 9 and 10. Id. at 93; Weber Aff. Opp. S.J. 34; Ostrom Decl. Opp. S.J. Ex. GG [Docket
No. 46]. On August 11, Wanda Weber, the director of the department in which Bacon worked,
wrote Bacon a letter informing her that because she had been absent without calling for three
days (August 5, 9, and 10), Bacon was deemed to have resigned from HCMC. Greenman
Decl. Ex. P.5
In response to Webers August 11 letter, Bacon wrote back that she was on FMLA leave
and had not resigned. Greenman Decl. Ex. Q. Bacon did not give any reason for her failure to
call in her absences after August 4. She did, however, ask for clarification of Webers
August 11 letter. Weber responded by a letter in which she asserted that Bacon did not submit
papers that qualified [her] for Family Medical Leave and therefore was not on FMLA leave on
August 5, 9, and 10. Greenman Decl. Ex. S. Weber called Bacons attention to the collectivebargaining
agreement governing Bacons position, under which Bacons unexcused absence for
three days entitled HCMC to treat Bacon as having abandoned her job. Id.
- 8 -
Bacon applied to the Minnesota Department of Employment and Economic Development
for unemployment benefits. The department initially denied her application. Bacon Dep. at 15.
Bacon successfully appealed the denial. In connection with the appeal, Bacon submitted a
written statement in January 2005. In that statement, Bacon gave the following explanation for
her failure to call in her post-August 4 absences:
I had been calling in per the union contract until I received
information on the federal guidelines for FMLA which did not
require any call-ins. The Hennepin County personnel policies on
Family Medical Leave . . . did not contain any directive to call in
either. Therefore, I stopped calling in per the federal and County
guidelines that I did not have to and worked on keeping doctors
appointments and getting better.
Greenman Decl. Ex. L (emphasis added).
Two years after making this statement to state authorities, Bacon was deposed in
connection with this case and claimed for the first time that she stopped calling in her absences
because her supervisor, Richard Smyrak, had told her that she did not have to call in while on
FMLA leave. Bacon Dep. at 93. Smyrak denies having said any such thing to Bacon. Smyrak
Aff. Supp. S.J. 4-5 [Docket No. 50]. Bacon also provides no real explanation for why she did
not mention her conversation with Smyrak to Weber in August 2004 or during the
unemployment-compensation proceedings in late 2004 and early 2005.
In the declaration that Bacon submitted to support her summary-judgment motion, Bacon
offers yet another explanation for her failure to call in her absences after August 4, 2004 one
that differs from the explanation that she provided at her deposition. She now asserts:
On August 2nd, while I was at HCMC filling out the workers
compensation forms, a union representative informed me that
because I was out on FMLA leave, under the FMLA Regulations I
was not required to call in every day I was going to be absent.
6The Court quotes the version of Rule 56 that became effective December 1, 2007. The
restyled rule is in substance the same as the version that was in effect when the parties briefed
their summary-judgment motions. See Fed. R. Civ. P. 56 advisory committees note on 2007
- 9 -
Relying on this information, I did not call in [my] absences after
August 2nd.
Bacon Decl. 9 (emphasis added). Bacon does not assert in the declaration that she filed in
support of her summary-judgment motion that Smyrak told her that she could stop calling in her
absences. She thus seems to be distancing herself from her own deposition testimony.
A. Standard of Review
Summary judgment is appropriate if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c).6 A
dispute over a fact is material only if its resolution might affect the outcome of the suit under
the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
dispute over a fact is genuine only if the evidence is such that a reasonable jury could return a
verdict for either party. Ohio Cas. Ins. Co. v. Union Pac. R.R., 469 F.3d 1158, 1162 (8th Cir.
2006). In considering a motion for summary judgment, a court must assume that the nonmoving
partys evidence is true. Taylor v. White, 321 F.3d 710, 715 (8th Cir. 2003).
B. Bacons FMLA Claim
The FMLA, as relevant to this case, gives an eligible employee with a sufficiently serious
medical condition the right to take up to twelve weeks of leave, paid or unpaid, within a twelvemonth
period. 29 U.S.C. 2612(a)(1)(D), 2612(c)-(d). An employee who takes FMLA leave
- 10 -
generally has the right, upon returning from leave, to be reinstated either to the position that she
occupied when she went on leave or to an equivalent position. 29 U.S.C. 2614(a)(1).
The FMLA creates two types of claims: interference claims and retaliation claims.
Interference claims are based on 29 U.S.C. 2615(a)(1), which forbids employers to interfere
with or deny the exercise of any right provided by the FMLA. Retaliation claims are based on
29 U.S.C. 2615(a)(2), which forbids employers to discriminate against employees for
exercising their FMLA rights. Establishing discriminatory intent on the part of the employer is
essential to proving a retaliation claim, but irrelevant to proving an interference claim.
Throneberry v. McGehee Desha County Hosp., 403 F.3d 972, 976 (8th Cir. 2005).
Bacons amended complaint includes both retaliation and interference claims, Am.
Compl. 25-26 [Docket No. 3], but Bacon has abandoned the retaliation claim and now pursues
only the interference claim. Pl. Mem. Supp. Mot. S.J. (Pl. SJ Mem.) at 20 [Docket No. 28]
(Plaintiffs claim is an (a)(1) interference claim.). To prevail on the interference claim, Bacon
must establish (1) that she was entitled to FMLA leave, and (2) that HCMC unlawfully interfered
with that leave. See Stallings v. Hussmann Corp., 447 F.3d 1041, 1050 (8th Cir. 2006). With
respect to the first element (Bacons entitlement to FMLA leave), the Court understands Bacon
to be contending that she was entitled to take FMLA leave because of her hives until a doctor
cleared her to return to work (or until she reached the twelve-week statutory limit), and that she
would have been entitled to reinstatement on her return from leave. With respect to the second
element, Bacon contends that HCMC interfered with those rights when it fired her for not calling
in her absences for three consecutive shifts in August 2004.
For its part, HCMC argues that Bacon can make out neither element of her interference
claim. According to HCMC, Bacon was not entitled to FMLA leave at all, and, even if she was,
7The FMLA actually defines two types of serious health conditions, one that requires
inpatient treatment, and a second that requires continuing treatment by a health care provider
(but not inpatient treatment). 29 U.S.C. 2611(11)(A)-(B). Because Bacon was never
hospitalized, the Court discusses only the continuing-treatment regulations, and not the inpatienttreatment
regulations. See 29 C.F.R. 825.114(a)(2) (defining [a] serious health condition
involving continuing treatment by a health care provider). For the sake of simplicity, the Court
uses the shorthand expression serious health condition to mean serious health condition
involving continuing treatment by a health care provider.
- 11 -
HCMC did not interfere with that leave by firing her. The Court addresses the two elements of
Bacons interference claim in turn.
1. Bacons Entitlement to FMLA Leave
To establish her entitlement to FMLA leave, Bacon must prove two things. First, she
must prove that she gave adequate notice to HCMC of her need for FMLA leave. See Woods v.
DaimlerChrysler Corp., 409 F.3d 984, 990-91 (8th Cir. 2005). Second, she must prove that she
had a serious health condition under 29 U.S.C. 2612(a)(1)(D). See Stekloff v. St. Johns
Mercy Health Systems, 218 F.3d 858, 861-62 (8th Cir. 2000). HCMC does not seriously dispute
that Bacon notified HCMC of her need for FMLA leave when she submitted FMLA paperwork
to HCMC in July 2004. The remaining question, then, is whether Bacon had a serious health
condition that entitled her to FMLA leave.
a. Serious versus chronic serious health condition
An FMLA regulation 29 C.F.R. 825.114 provides guidance as to what qualifies
as a serious health condition under the FMLA.7 Two subsections of that regulation potentially
apply in this case. First, subsection (a)(2)(i) provides that an employee has a serious health
condition if she experiences a period of incapacity . . . of more than three consecutive calendar
days and meets certain other conditions related to treatment of the condition. 29 C.F.R.
825.114(a)(2)(i). Second, subsection (a)(2)(iii) provides that an employee has a serious
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health condition if she experiences [a]ny period of incapacity or treatment for such incapacity
due to a chronic serious health condition. 29 C.F.R. 825.114(a)(2)(iii) (emphasis added).
Subsection (a)(2)(iii) then defines the term chronic serious health condition. Id.
In her summary-judgment brief, Bacon argues that the undisputed facts establish that she
had a serious health condition under subsection (a)(2)(i); she does not argue that she had a
chronic serious health condition under subsection (a)(2)(iii). Pl. SJ Mem. at 20-22. HCMC
cries foul, arguing that because Bacons complaint is phrased in terms of a chronic serious
health condition, it is unfair for Bacon to now argue that she had merely a serious (but not a
chronic) health condition. Def. Resp. Mem. Opp. Pl. Mot. S.J. (Def. SJ Opp.) at 22-23
[Docket No. 36]. The Court disagrees.
Although Bacons complaint generally uses the term chronic serious health condition,
it also uses the phrase serious health condition. Compare Am. Compl. 7-12 with id. 13.
More importantly, the FMLA itself uses only the term serious health condition; the distinction
between chronic serious health conditions and all other serious health conditions is found only
in 29 C.F.R. 825.114(a). The difference between a serious health condition under subsection
(a)(2)(i) of that regulation and a chronic serious health condition under subsection (a)(2)(iii) is
not the sort of difference that requires a defendant to take different discovery or to take a
fundamentally different approach to defending the case. Accordingly, the Court finds that the
complaint put HCMC sufficiently on notice of the nature of Bacons claim and that HCMC has
suffered no prejudice from Bacons use of the phrase chronic serious health condition in the
complaint. The Court therefore addresses the merits of Bacons contention that she had a
serious health condition under subsection (a)(2)(i).
8See Def. SJ Opp. at 22-23 (challenging Bacons incapacity but not the number of
times she was treated); Def. Mem. Supp. Mot. S.J. at 12-16 (Def. SJ Mem.) [Docket No. 24]
(asserting that hives is not serious and that Bacon was not incapacitated but not disputing
the number of times she was treated); Def. Reply Mem. Supp. Mot. S.J. (Def. SJ Reply) at 6-8
[Docket No. 47] (same).
Apart from whether Bacon saw a doctor at least twice for her hives, she probably also
satisfies the alternative portion of the third part of the serious health condition test by having
seen Kohli once and been placed under a regimen of continuing treatment. But the Court need
not reach this question.
- 13 -
b. Bacons Serious Health Condition
Subsection (a)(2)(i) of 29 C.F.R. 825.114 establishes an objective test for determining
whether an employee has a serious health condition under the FMLA. See Rankin v. Seagate
Technologies, Inc., 246 F.3d 1145, 1148 (8th Cir. 2001). An employee can satisfy this test if she
can prove that (1) she had an illness, injury, or the like; (2) the illness or injury caused a period
of incapacity of more than three consecutive calendar days; and (3) either (a) she was treated by
a doctor two or more times or (b) she was treated by a doctor once and then subjected to a
regimen of continuing treatment under medical supervision. See 29 C.F.R. 825.114(a)(2)(i);
Rankin, 248 F.3d at 1147-48.
HCMC does not dispute that Bacon was treated two or more times for her hives (item 3
above).8 It is also uncontested that Bacon had hives, which is an illness, injury, or the like
(item 1 above). HCMC argues, however, that hives are such a minor medical condition that they
cannot qualify as a serious health condition under the FMLA. Def. Mem. Supp. Mot. S.J.
(Def. SJ Mem.) at 12-14 [Docket No. 24]; Def. SJ Opp. at 24-25. HCMC misunderstands the
FMLA and the governing regulations, which establish an objective test for assessing the
seriousness of a health condition. If a health condition meets the objective test set forth in 29
C.F.R. 825.114(a)(2)(i), then it is a serious health condition, regardless of how serious it
9 Section 825.305(d) provides:
At the time the employer requests certification, the employer must
also advise an employee of the anticipated consequences of an
employees failure to provide adequate certification. The
employer shall advise an employee whenever the employer finds a
certification incomplete, and provide the employee a reasonable
opportunity to cure any such deficiency.
29 C.F.R. 825.305(d) (emphasis added).
- 14 -
seems to the judge or the employers attorney or any other layperson. See Rankin, 246 F.3d at
1147-48; Thorson v. Gemini, Inc., 205 F.3d 370, 380 (8th Cir. 2000).
The only remaining question, then, is whether Bacon was incapacitated by her hives for
more than three consecutive calendar days (item 2 above). Bacon contends that, for two reasons,
the Court must find that she was incapacitated under the FMLA for the requisite period. First,
Bacon argues that because HCMC neglected to follow FMLA-prescribed procedures to
challenge her claim of incapacity in 2004, HCMC has waived its right to make such a challenge
now. Pl. SJ Mem. at 23-28; Pl. Reply Mem. Supp. Mot. S.J. at 4 [Docket No. 52]. Second,
Bacon argues that even if HCMC is still entitled to challenge her claim of incapacity, HCMCs
challenge fails on the merits because the undisputed facts establish that she was incapacitated
under the FMLA in July and August 2004. Pl. Mem. Opp. Def. Mot. S.J. (Pl. SJ Opp.) at 23-
25 [Docket No. 43]. The Court addresses each argument in turn.
i. Waiver
The FMLA and its implementing regulations establish procedures for employers to
follow in challenging employees requests for FMLA leave. If an employer finds that an
employees FMLA certification form is incomplete, the employer must so notify the employee,
and must give the employee a chance to correct any deficiency. 29 C.F.R. 825.305(d).9 And if
10Section 2613(c) provides:
(1) In general. In any case in which the employer has reason to
doubt the validity of the certification provided under subsection (a)
of this section for leave under subparagraph (C) or (D) of [29
U.S.C. 2612(a)(1)], the employer may require, at the expense of
the employer, that the eligible employee obtain the opinion of a
second health care provider designated or approved by the
employer concerning any information certified under subsection
(b) of this section for such leave.
(2) Limitation. A health care provider designated or approved
under paragraph (1) shall not be employed on a regular basis by
the employer.
29 U.S.C. 2613(c).
- 15 -
an employer doubts the accuracy of the medical information contained in an employees FMLA
certification form, the employer may seek an independent second medical opinion. 29 U.S.C.
2613(c).10 If that second opinion conflicts with the FMLA certification form, the employer
may request a third and final medical opinion, which binds both the employer and the employee.
29 U.S.C. 2613(d).
In this case, HCMC never directed Bacon to seek a second opinion, as was its right under
29 U.S.C. 2613(c). Nor did HCMC inform Bacon that her certification was incomplete, as
mandated by 29 C.F.R. 825.305(d). Indeed, it appears that no one at HCMC even looked
carefully at Bacons FMLA paperwork until some time in early August 2004. See Kelley Aff.
Opp. S.J. 14; Weber Aff. Supp. S.J. 28 [Docket No. 26]; Greenman Decl. Ex. G at 39. Does
this mean that HCMC cannot now dispute that Bacon qualified for FMLA leave? Eighth Circuit
case law leaves the answer unclear.
Bacon relies on Thorson v. Gemini, Inc., 205 F.3d 370 (8th Cir. 2000), to argue that by
failing, in 2004, to challenge her claim of incapacity, HCMC waived its right to mount such a
challenge now. Pl. SJ Mem. at 23-26. Language from Thorson indeed supports Bacons
- 16 -
contention. The employer in Thorson argued, in an FMLA suit brought by an employee
(Thorson), that the employee had never been incapacitated and therefore had not been eligible
for FMLA leave during the disputed time period. The Eighth Circuit rejected the argument,
It may well be that Thorsons illness did not actually require that
she be absent from work, but because the company did not resort
to the protections for employers provided by the FMLA to address
just this sort of situation, there is no genuine issue of fact on this
part of the serious health condition question.
205 F.3d at 381. The protections for employers provided by the FMLA referred to in the
quoted passage are the statute and regulation discussed above (i.e., 29 U.S.C. 2613 and 29
C.F.R. 825.305).
At the same time, however, Thorson went on to consider the merits of the employers
challenge to the employees FMLA eligibility. Thorson found the employers evidence legally
[I]n defending against Thorsons motion for summary judgment,
Gemini [the employer] had to rely upon a physicians evaluation of
Thorson performed many months after the termination and for
purposes of this litigation, which stated that there was no obvious
reason Thorson should have missed work in February 1994, and
upon a psychologists opinion, based on an evaluation made two
years after Thorsons termination, that Thorsons physical
problems were manifestations of a psychological problem. In the
face of the contemporaneous notes from Thorsons physician
indicating that she was not to work, we agree with the District
Court that Gemini cannot show, with its evaluations made long
after the fact, that there remains a genuine issue of material fact on
the question of Thorsons capacity to perform her job.
205 F.3d at 382. It thus appears that although Thorson articulated a straightforward waiverbased
rationale for rejecting an employers after-the-fact challenge to an employees FMLA
eligibility, Thorson did not necessarily rely on that rationale alone.
- 17 -
Soon after deciding Thorson, the Eighth Circuit, in Stekloff v. St. Johns Mercy Health
Systems, Inc., cast serious doubt on Thorsons waiver rationale. 218 F.3d 858 (8th Cir. 2000).
In rejecting an employees argument that her employer waived its right to contest her assertion
that she had a serious health condition by failing to seek a second opinion under 29 U.S.C.
2613(c), Stekloff said:
The language of 2613(c)(1) [about requiring second opinions],
however, is merely permissive: It states that an employer with
reason to doubt the validity of the employees certification
may require the employee to obtain the opinion of a second
health care provider. We do not read 2613(c)(1) as requiring an
employer to obtain a second opinion or else waive any future
opportunity to contest the validity of the certification. We note,
moreover, that several of our recent cases involving the FMLA
have considered employer arguments that an employee did not
have a serious medical condition in spite of the fact that no second
opinion was sought. See, e. g., Thorson v. Gemini, Inc., 205 F.3d
370, 375, 381-82 (8th Cir. 2000). We turn, therefore, to the merits
of the parties arguments.
218 F.3d at 860.
As this paragraph makes plain, Stekloff purported to be consistent with Thorson. Some
subsequent decisions, in this district and elsewhere, have attempted to harmonize Thorson and
Stekloff by essentially limiting Thorson to its facts. See Rhoads v. Fed. Deposit Ins. Corp., 257
F.3d 373, 385-86 (4th Cir. 2001); Dillaway v. Ferrante, No. 02-715, 2003 WL 23109696, at *7-
9, 2003 U.S. Dist. LEXIS 23468, at *22-24 (D. Minn. Dec. 9, 2003).
The undersigned is reluctant to follow the lead of those courts. To assert that an opinion
of an appellate court has been limited to its facts is usually a polite way of saying implicitly
overruled, especially when, as is true with respect to Thorson, there was nothing particularly
unusual about the facts of the earlier case. Rather than pretend that something unique about
Thorson made it limit-able to its facts, the undersigned prefers to acknowledge, as did another
11Swanson v. Senior Res. Connection, 254 F. Supp. 2d 945 (S.D. Ohio 2003). The
Swanson court observed:
Stekloff, a case in which the Eighth Circuit held that an employer need not rebut
medical evidence with other medical evidence, is of little persuasive value
because the circuit court completely misstated, and thus ignored, its earlier
opinion in Thorson, which held to the contrary.
Id. at 956 (citations omitted).
- 18 -
district court,11 that Thorson and Stekloff are at odds on the waiver issue, creating an intra-circuit
conflict. The Eighth Circuit has said: When we are confronted with conflicting circuit
precedent, the better practice normally is to follow the earliest opinion, as it should have
controlled the subsequent panels that created the conflict. T.L. ex rel. Ingram v. United States,
443 F.3d 956, 960 (8th Cir. 2006). Accordingly, to the extent that Thorson and Stekloff are in
conflict, this Court is bound to follow Thorson.
Under Thorson, once Bacon provided HCMC with a certification form from Kohli
supporting Bacons need for FMLA leave, HCMC became obligated either to count [Bacons]
absence as FMLA leave under the serious health condition provision or to follow the
procedures set out in the statute and the regulations designed to prevent employee abuse of the
Act. Thorson, 205 F.3d at 381. HCMC did not follow the FMLAs procedure for challenging
Bacons FMLA certification. The Court therefore agrees with Bacon that, under Thorson,
HCMC cannot now deny that Bacon was incapacitated and therefore experiencing a serious
health condition for purposes of the FMLA.
This conclusion about Bacons incapacity does not, however, turn solely on the Courts
interpretation of Thorson and Stekloff. As explained below, the Court also finds that, even if
HCMC had not waived its right to challenge Bacons eligibility for FMLA leave, the undisputed
12Further, as noted earlier, HCMC denies the existence of the July 19 form, despite
having produced the form in discovery from its own files. The Court focuses in this section of
its opinion on the July 14 form because it is the basis of HCMCs argument. Considering the
July 19 form would not change the Courts analysis.
- 19 -
facts establish that Bacon was incapacitated under the FMLA and therefore had a serious
health condition.
ii. Undisputed Facts About Incapacity
FMLA regulations define the incapacity element of a serious health condition as an
inability to work, attend school or perform other regular daily activities due to the serious
health condition, treatment therefor, or recovery therefrom[.] 29 C.F.R. 825.114(a)(2)(i). The
Eighth Circuit has held that an inability to work for FMLA purposes is job-specific, not
generalized: [A] demonstration that an employee is unable to work in his or her current job due
to a serious health condition is enough to show that the employee is incapacitated, even if that
job is the only one that the employee is unable to perform. Stekloff, 218 F.3d at 861.
Contrary to HCMCs contentions, both of the FMLA certification forms completed by
Kohli establish that Bacon was unable to work at her job when she went on leave. On both the
July 14 and July 19 forms, Kohli answered yes to the question whether Bacon was unable to
perform work of any kind. Greenman Decl. Ex. H at 5.a.; Wolfe Aff. Opp. S.J. Ex. 19
at HC00000130. On the July 14 form, Kohli further explained that Bacon needs to avoid work
environment as offensive chemical may be causing this[.] Continued exposure may lead to life
threatening state. Greenman Decl. Ex. H at 5.a (emphasis added).
HCMC chooses to ignore Kohlis affirmation that Bacon was unable to work.12 HCMC
instead directs the Courts attention to Bacons understanding of the July 14 form; to Kohlis
apparent affirmation, on that same form, that Bacon was not presently incapacitated; and to
- 20 -
Kohlis indication that Bacon would need about twenty-four hours off if she became
symptomatic, which was likely to happen about once a month. Def. SJ Mem. at 14-15. But
these three issues are, for the most part, a sideshow; they do little to undermine the evidence that
establishes Bacons incapacity.
First, what Bacon read the form to mean at her deposition is irrelevant; the Court is
capable of reading the form itself. Second, Kohlis assertion that Bacon was not incapacitated
during her July 14 visit is only superficially inconsistent with Bacons claim of incapacity under
the FMLA. Kohli said that Bacon was unable to return to her job, which, under the Eighth
Circuit case law described above, establishes Bacons incapacity for FMLA purposes. Kohlis
conclusion that Bacon was not incapacitated at the July 14 visit obviously referred to
incapacity in a laypersons sense (i.e., to an inability to undertake gainful employment of any
kind). Finally, HCMC overemphasizes Kohlis comment that when Bacon became symptomatic,
she would need to take twenty-four hours off work. See Greenman Decl. Ex. H at 3.b. This
comment conflicts with Kohlis assertion elsewhere on the certification form that Bacon was
unable to do her job at all because Bacon needed to avoid her work environment or else risk a
life threatening state. Id. 5.a.
HCMC also argues that even if Bacon was incapacitated for FMLA purposes as of her
July 14 visit to Kohli, Bacons incapacity ended when she saw an allergist on August 2. Def.
Reply Mem. Supp. Mot. S.J. (Def. SJ Reply) at 9-11 [Docket No. 47]. It is true that Kohli
referred Bacon to an allergist to determine the cause of her hives. Greenman Decl. Ex. H at
4.a. It is also true (according to Bacon) that Kohli told Bacon not to return to work until after
she saw the allergist. Bacon Decl. 6; Wolfe Aff. (Second) Supp. S.J. Ex. 76 (Bacons answer
to Interrogatory 6). And it is true that Bacon saw an allergist (Dr. Rolf Sigford) on August 2.
13The key passages from Sigfords note are quoted at length in the background section
above. Sigford says that it is not even totally clear to him that Bacons hives were workplacerelated;
but he does not say her hives were not workplace-related. Wolfe Aff. (Second) Supp.
S.J. Ex. 75 at HC00000137. And while Sigford says that he does not really fully understand
why she should not be back at work, he does not say that Bacon should be back at work. Id.
- 21 -
But just because Bacon saw an allergist on August 2 does not mean that her incapacity ended
that day, as HCMC seems to believe. Suppose that Sigford had told Bacon that she was, indeed,
allergic to a chemical at work and that the allergy could kill her. Would HCMC argue that
because Bacon saw Sigford, on August 2 her incapacity to do her job ended on that date? Of
course not.
HCMC emphasizes Sigfords skepticism about whether Bacons hives were work-related
(specifically, Sigfords comment that he did not understand why Bacon was not back at work).
Def. SJ Reply at 10 n.4. It is apparent from the note that Sigford was indeed skeptical, but it is
also apparent that his skepticism was tentative. Sigford was thinking out loud, not asserting that
Bacon should definitely go back to work.13 Sigford not only ordered further tests, but he also
referred Bacon to an occupational-health specialist. Wolfe Aff. (Second) Supp. S.J. Ex. 75 at
HC00000137. The test results were not given to Bacon until August 17. See id. at HC00000140.
Bacon did not see an occupational-health specialist until late September. See id. at
Further, Kohlis notes from an appointment on August 23 make plain both that Sigfords
conclusions were tentative and that Bacon was not yet cleared for work. Kohli observed:
[Bacon] saw Dr. Sigford recently on 8/2/04. He was not sure at
that time whether her symptoms were work related . . . although he
was doing further testing and also sending [Bacon] to Occupational
Therapy as well for assessment. . . .
. . . Urticaria. Doing well with Claritin. It looks likely to be
idiopathic but we will await Occupational Healths assessment.
- 22 -
Id. at HC00000143 (emphasis added). As these notes make clear, neither Sigford nor Kohli had
yet concluded that Bacons hives were not work-related and that she could therefore return to
work. That determination was not made until September 23, when an occupational-health
specialist (Dr. Ralph Bovard) did complete a [work ability] form for her with clearance to
return to regular duty without restrictions. Id. at HC00000148 (emphasis added).
Accordingly, the undisputed facts establish that Bacon remained incapacitated through at
least August 11. Bacon was therefore entitled to FMLA leave at the time that HCMC fired her.
2. HCMCs Enforcement of Its Attendance Policy
By firing Bacon while she was on FMLA leave, HCMC interfered with that leave in
the everyday sense of that word. But because HCMC was entitled to fire Bacon for having
violated HCMCs call-in policy, HCMC did not interfere with her leave in the legal sense.
As the Eighth Circuit has held, the FMLA does not make employers strictly liable for
interfering with employees FMLA rights. Throneberry v. McGehee Desha County Hosp., 403
F.3d 972, 974 (8th Cir. 2005). Rather, an employer who interferes with an employees FMLA
rights will not be liable if the employer can prove it would have made the same decision had the
employee not exercised the employees FMLA rights. Id. at 977.
Moreover, FMLA regulations expressly permit employers to enforce absence-notification
policies like HCMCs daily call-in policy. Under those regulations, [a]n employer may require
an employee on FMLA leave to report periodically on the employees status and intent to return
to work, as long as the employers call-in policy is nondiscriminatory and takes into account an
employees particular circumstances. 29 C.F.R. 825.309(a); see also Throneberry, 403 F.3d at
978 (The Department of Labor . . . permits employers to lawfully interfere with employees
rights to take FMLA leave.).
14Bacon does not argue and the record contains no evidence suggesting that HCMC
enforced its call-in policy in a discriminatory manner by firing Bacon for conduct that would not
have resulted in dismissal if committed by an employee who was not on FMLA leave.
- 23 -
The HCMC attendance and call-in policy at issue in this case requires employees on
FMLA leave either to provide HCMC with a tentative date for their return to work or to call in
daily to report their absence. Weber Aff. Opp. S.J. Ex. 2 at HC00000891. Such a policy is
permissible under 825.309(a), and employers who enforce such policies by firing employees
on FMLA leave for noncompliance do not violate the FMLA. See Lewis v. Holsum of Fort
Wayne, Inc., 278 F.3d 706, 710 (7th Cir. 2002) ([T]he FMLA does not authorize employees on
leave to keep their employers in the dark about when they will return.) (quotations omitted).
Accordingly, the Court rejects Bacons contention that HCMCs attendance policy is
unenforceable because it unlawfully diminishes her rights under the FMLA. See Pl. SJ Opp. at
9-15. To the contrary, HCMCs policy is consistent both with the FMLA regulations discussed
above and with the FMLA itself.14 The FMLA is not a purely pro-employee statute. Rather, it is
designed to strike a balance between the needs of employees and employers. See 29 U.S.C.
2601(b)(1). HCMCs attendance policy reflects its legitimate need for information about
employee availability information on which HCMC relies in making daily staffing decisions
that affect the health and well-being of HCMCs employees, patients, and visitors. See Weber
Aff. Supp. S.J. 4.
The Court further holds that no reasonable jury could find that HCMC excused Bacon
from complying with its attendance policy. Bacon asserts in her summary-judgment brief that
two different people a union representative and her supervisor, Smyrak told her around
15In Bacons January 2005 narrative submitted in connection with her unemployment
hearing, she said: I had been calling in per the union contract until I received information on
the federal guidelines for FMLA which did not require any call-ins. Greenman Decl. Ex. L
(emphasis added). Bacon did not identify the source of this alleged information.
- 24 -
August 2 that she no longer needed to call in her absences every day. Pl. SJ Opp. at 4. The first
assertion is irrelevant, the second incredible.
For the first time since being fired in 2004, Bacon claims, in her declaration, that a union
representative told her that she did not have to comply with HCMCs call-in policy. Bacon Decl.
9. But union representatives have no more authority to speak on behalf of HCMCs
management than do HCMCs patients. See Minn. Licensed Practical Nurses Assn v. NLRB,
406 F.3d 1020, 1027 (8th Cir. 2005) (holding that employees were lawfully terminated even
though they may have acted in good faith in relying upon unsound advice from the Union and
its legal counsel).
Unlike the union representative, Smyrak, as Bacons supervisor, at least had the authority
to authorize her to stop calling in her absences. But no reasonable jury could conclude that
Smyrak made the statement that Bacon attributes to him. As noted above, Bacon said absolutely
nothing about the alleged statement when she responded, in writing, to Webers August 11, 2004
letter in which Weber told Bacon that HCMC deemed her to have resigned because of her failure
to call in absences. See Greenman Decl. Ex. Q. It is impossible to believe that an employee,
after being informed that she was being fired for failing to call in her absences, would not
immediately and loudly protest that she was merely doing what her supervisor had explicitly
authorized her to do.
Bacon also did not specifically assert, at any time during her unemploymentcompensation
proceedings, that she had received permission from Smyrak to stop calling in.15
- 25 -
Once again, it is impossible to believe that an employee with a large financial incentive to prove
that she had not been fired for misconduct would not clearly and specifically protest that she had
been fired for conduct that had been explicitly authorized by her supervisor.
The complaint in this case makes no mention of Smyraks having told Bacon that she
could stop calling in an omission that is inexplicable if Smyrak in fact made such a statement.
And, tellingly, even the declaration that Bacon submitted in support of her own summaryjudgment
motion says nothing about Smyraks alleged statement.
Bacon told the Smyrak story only once, in her January 2007 deposition. If Smyrak in
fact gave Bacon permission to stop calling in, surely she would have mentioned this crucial piece
of information at some earlier point (such as in responding to Weber, in litigating her eligibility
for unemployment benefits, or in her complaint) or at some later point (such as in her
declaration). As a general rule, a court ruling on a summary-judgment motion must assume that
the nonmoving partys evidence is true. Taylor v. White, 321 F.3d 710, 715 (8th Cir. 2003). But
that general rule must yield in those rare cases when testimony submitted by the nonmoving
party is literally unbelievable. See Losch v. Borough of Parkesburg, 736 F.2d 903, 909 (3d Cir.
1984) (observing that conflicts of credibility should not be resolved on a hearing on [a] motion
for summary judgment unless the opponent's evidence is too incredible to be believed by
reasonable minds) (emphasis added; quotations omitted). Bacons claim that Smyrak
authorized her to stop complying with HCMCs call-in policy is such testimony; no reasonable
jury could believe it.
3. Miscellaneous Arguments
The Court addresses briefly three additional arguments, one raised by Bacon and two
raised by HCMC. Bacon contends that she is entitled to summary judgment because the facts
16Subdivision 5a provides:
No collateral estoppel. No findings of fact or decision or order
issued by an unemployment law judge may be held conclusive or
binding or used as evidence in any separate or subsequent action in
any other forum, be it contractual, administrative, or judicial,
except proceedings provided for under this chapter, regardless of
whether the action involves the same or related parties or involves
the same facts.
Minn. Stat. 268.105 subd. 5a.
17Like HCMC, Bacon needs to take care that what she asserts in federal court is true.
- 26 -
and issues decided at her state unemployment proceedings show that HCMC violated her FMLA
rights, and this Court should give preclusive effect to those proceedings. Bacon is incorrect.
Federal courts give preclusive effect to state-court decisions whenever state courts would do so.
Allen v. McCurry, 449 U.S. 90, 95-96 (1980); 28 U.S.C. 1738. Minnesota law unequivocally
forbids Minnesota courts to give preclusive effect to the decisions of unemployment-law judges.
Minn. Stat. 268.105 subd. 5a.16 Bacons suggestion that this Court should do what state courts
cannot is utterly without merit.17
For its part, HCMC argues that any claim for damages against it is barred by the doctrine
of vicarious qualified immunity. Def. SJ Mem. at 29-31. The Eighth Circuit has squarely held
that individual government employees cannot assert the defense of qualified immunity in FMLA
suits. Darby v. Bratch, 287 F.3d 673, 681 (8th Cir. 2002). Further, as HCMC admits, no court
in the country has ever granted vicarious qualified immunity to a government defendant in an
FMLA suit. Def. SJ Reply at 17. This Court will not be the first to do so.
HCMC also argues that Bacon did not make reasonable efforts to mitigate her damages
by seeking work after HCMC fired her and, therefore, HCMC is entitled to summary judgment.
Def. SJ Mem. at 28-29. But whether Bacon made reasonable efforts to find work after she was
- 27 -
fired is, on this record, an issue of fact for the jury. More importantly, regardless of whether
Bacon failed to reasonably mitigate her damages, HCMC has not explained why a failure to
reasonably mitigate damages would entirely bar monetary relief, rather than just reduce Bacons
damages. (That, after all, is the normal effect of a defendants failure to mitigate damages.)
Accordingly, Bacons alleged failure to mitigate her damages is irrelevant at this point.
Although Bacon was entitled to FMLA leave, she was not entitled to stop following
HCMCs attendance policy. Because HCMC lawfully fired Bacon for her failure to call in her
absences on August 5, 9, and 10, HCMC did not unlawfully interfere with Bacons FMLA rights.
Based on the foregoing, and on all of the files, records, and proceedings herein, IT IS
1. Defendants motion for summary judgment [Docket No. 18] is GRANTED.
2. Plaintiffs motion for summary judgment [Docket No. 21] is DENIED.
3. Plaintiffs amended complaint [Docket No. 3] is DISMISSED WITH
Dated: December 11 , 2007 s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge


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