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Dickinson v. St. Cloud Hospital: US District Court : EMPLOYMENT - calculation of absenteesim rates when FMLA leave

1On a motion for summary judgment, the Court views the evidence in the light most
favorable to the nonmoving party. Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995).
Amanda R. Dickinson,
vs. Civil No. 07-3346 ADM/RLE
St. Cloud Hospital, a Minnesota
non-profit corporation,
Michael L Puklich, Esq., Neaton & Puklich, PLLP, Chanhassen, MN and Martin B. Ho, Esq.,
Stingley & Ho, PLLP, Minneapolis, MN appeared for and on behalf of the Plaintiff.
John L. Greer, Esq., and Kevin J. Hughes, Esq., Hughes Mathews, P.A., St. Cloud, MN appeared
for and on behalf of the Defendant.
On August 27, 2008, the undersigned United States District Judge heard oral argument
on Defendant St. Cloud Hospitals (SCH) Motion for Summary Judgment [Docket No. 20]. In
her Amended Complaint [Docket No. 8], Plaintiff Amanda Dickinson (Dickinson) alleges that
SCH interfered and retaliated in violation of her rights under the Family Medical Leave Act
(FMLA). For the reasons set forth below, SCHs Motion for Summary Judgment is denied on
the interference claim and granted on the retaliation claim.
SCH is a regional 489-bed acute care inpatient and outpatient hospital located in St.
Cloud, Minnesota. Sakariason Aff. [Docket No. 24] 3. It is a Catholic, non-profit corporation
operating within the CentraCare Health system. Id. SCH employs over 4,300 people in both
full-time and part-time capacities and is an equal opportunity employer. Id. at 4.
Dickinson is a licensed practical nurse (LPN) who was hired by SCH in February
2000. Greer Aff. Ex. 6 [Docket No. 23], (Dickinson Depo.) at 7, 10. In February 2001, she
began working in SCHs Emergency Trauma Center (ETC) as an ETC technician, and she
worked there until her termination in May 2006. Id. at 10. Her duties included patient care,
administering IVs, transporting patients, distributing medication, and other tasks assigned by
physicians. Id. at 11. Her supervisor in the ETC was Paul Schoenberg (Schoenberg) who is
responsible for the operations of the ETC and supervises approximately 110 people in that
department. Greer Aff. Ex. 4 (Schoenberg Depo.) at 5-6.
SCH maintains policies regarding employee attendance, including separate provisions for
FMLA and non-FMLA qualifying absences. Greer Aff. Ex. 1, (St. Cloud Hospitals
Approved/Unapproved Absences Policy); Greer Aff. Ex. 2, (CentraCare Health System/St.
Cloud Hospitals Family/Medical Leave Policy). Under the policies, non-FMLA absenteeism
rates exceeding 4% are cause for the supervisor to review the employees attendance record to
determine if counseling or disciplinary action is necessary. St. Cloud Hospitals
Approved/Unapproved Absences Policy; Schoenberg Depo. at 11; Greer Aff. Ex. 5, (Sakariason
Depo.) at 9. The absenteeism rate is not calculated by use of a specified time period because
each employee works a different schedule. Sakariason Aff. 5. Instead, an employees
absenteeism rate is calculated by dividing the number of hours an employee is absent by the
scheduled hours of the employee. Sakariason Depo. at 11-12. Certain types of absences,
including FMLA leave, are not factored into the absenteeism rate. Puklich Aff. Ex. A [Docket
No. 31], (Campbell Depo.) at 22. Each supervisor is responsible for applying this policy in his
department with occasional support from Human Resources. Sakariason Depo. at 26-27.
Excessive absenteeism is subject to progressive levels of discipline including oral warnings,
written warnings, suspension, probation, and termination. CentraCare Health System/St. Cloud
Hospitals Disciplinary Policy.
Over the course of her employment at SCH, Dickinson progressed through these
discipline levels because of her excessive non-FMLA absenteeism rates. She first received an
oral warning on January 22, 2003. Dickinson Depo. at 89. She received a written warning on
May 16, 2003 for an absenteeism rate of 13.59% non-FMLA sick time for the period of January
through March 2003. Id. at 53-55, 89-90. SCH issued Dickinson a second written warning on
October 27, 2003 for an absenteeism rate of 17.81% non-FMLA sick time from July through
September 2003. Id. 56-58, 90. On June 10, 2004, Dickinson was disciplined by being placed
on probation because of an absenteeism rate of 27% non-FMLA sick time during a four week
period in May 2004. Id. at 87-88. During the first quarter of 2005, Dickinson had an
absenteeism rate of 8.96% resulting in a written warning and a suspension from work.
Schoenberg Depo. Ex. 2. In 2005, Dickinson began to take intermittent FMLA leave due to
kidney stones. Id. at 177. SCH allowed her to take this leave by calling the hospital and
informing the on-call scheduler that she had a kidney stone, and the on-call scheduler would then
credit the absence as FMLA approved. Id. at 177-78.
After the 2005 suspension, Dickinsons absenteeism rate improved. Through the second
and third quarters of 2005, her absenteeism rate fell below the 4% threshold. Schoenberg Depo.
Ex. 2. On November 8, 2005, Dickinson became sick with the flu and missed one day of work.
Dickinson Depo. at 183. This absence was her only non-FMLA absence for the fourth quarter of
2005. Schoenberg Depo. Ex. 2. She did take FMLA leave on November 22, 23, and 29, and she
also took FMLA leave on December 2 although it appears that SCH only recorded seven hours
of FMLA time instead of twelve hours for a full shift. Id.
On December 13, 2005, Schoenberg spoke to personnel in the Human Resources
department about Dickinsons absenteeism rate because of his concern regarding her absences.
Puklich Aff. [Docket No. 33] Ex. A (Ex. 1). On December 30, 2005, Dickinson received a
generally good performance evaluation, but it was noted that, Amanda needs to work on
attendance, other co-workers are getting burned out because Amanda cant be counted on to
come to work. Dickinson Depo. at 116. Dickinson asserts that this comment was added to the
form after she signed the evaluation. Id. at 118.
On January 18, 2006, Dickinson reported to work, but left early after experiencing a
kidney stone. Dickinson Aff. [Docket No. 27] 2. She reported her condition to the charge
nurse on duty and followed up with a phone call to the scheduler the next day as she had been
instructed to do by SCH. Id. at 2, 3. Dickinsons final two absences for the first quarter of
2006 occurred on February 21, 2006 and March 23, 2006 when she visited her uncle who had
been electrocuted and was hospitalized with serious medical issues. Dickinson Depo. at 185. In
both instances, Dickinson asked Schoenberg for permission to take leave to care for her uncle
and was told it would not affect her employment. Dickinson Aff. 5. Schoenberg does not
recall this specific conversation but agrees that if permission was given, these absences should
not count against Dickinson. Schoenberg Depo. at 53, 56-58.
Dickinson had no further non-FMLA absences until the date of her termination on May 9,
2006. She did, however, take intermittent FMLA leave for kidney stones and full FMLA leave
from April 8, 2006 until May 6, 2006 for removal of a cyst in her breast. Dickinson Depo. at
124, 130, 186. During her leave time, emails between Schoenberg and personnel in Human
Resources document inquiries by Schoenberg as to Dickinsons FMLA and non-FMLA leave
and whether her absenteeism rate was above the 4% threshold. Schoenberg Depo. Ex. 2.
Dickinson returned prepared to work at SCH on May 9, 2006, but met with Schoenberg prior to
the shift. Dickinson Depo. at 132. At this meeting, Schoenberg told Dickinson that she was
being terminated due to an absenteeism rate above the 4% limit. Id. at 134. The official
Corrective Action Form describes the reason for her discharge as a Non-FMLA absenteeism
rate of 7.12% from November 6, 2005 to March 25, 2006, above the 4% hospital standard.
Schoenberg Depo. Ex. 1.
Dickinson alleges that SCH violated FMLA, 29 U.S.C. 2601-2654, by interfering with
her right to exercise qualified leave under the act. She also alleges that SCH retaliated against
her by terminating her employment for exercising those rights protected under FMLA.
A. Standard for Summary Judgment
Federal Rule of Civil Procedure 56(c) provides that summary judgment shall issue 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 judgment as a matter of law. Fed. R. Civ. P. 56(c); see Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Anderson v. Liberty Lobby,
2 An employee is eligible for FMLA leave if she has been employed (i) for at least 12
months by the employer with respect to whom leave is requested under section 2612 of this title;
and (ii) for at least 1,250 hours of service with such employer during the previous 12-month
period. 29 U.S.C. 2611(2)(A). The parties do not dispute that Dickinson is an eligible
Inc., 477 U.S. 242, 252 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a motion
for summary judgment, the Court views the evidence in the light most favorable to the
nonmoving party. Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995). The nonmoving party
may not rest on mere allegations or denials, but must demonstrate on the record the existence of
specific facts which create a genuine issue for trial. Krenik v. County of Le Sueur, 47 F.3d 953,
957 (8th Cir. 1995).
The FMLA provides eligible employees up to 12 work weeks of unpaid leave during any
12-month period.2 29 U.S.C. 2612. Employees may take FMLA leave for, inter alia, giving
birth, caring for a newborn, or because a serious health condition makes the employee unable to
perform the employees job functions. Id. (a)(1). An employee must provide notice to an
employer that she plans to take FMLA leave. 29 U.S.C. 2612(e)(2). The statute contains two
provisions that protect an employee from discrimination based on her exercise of rights
guaranteed by the FMLA. See 29 U.S.C. 2615(a)(1) & (2). The first refers to interference
or (a)(1) claims, in which an employee asserts an employer denied or otherwise interfered with
her substantive rights under the FMLA. 29 U.S.C. 2615(a)(1). The second concerns
retaliation or (a)(2) claims, which protects an employee from discrimination for exercising
those rights. 29 U.S.C. 2615(a)(2). See also Stallings v. Hussman Corp., 447 F.3d 1041, 1050
(8th Cir. 2006).
1. Interference
Section 2615(a)(1) makes it unlawful for any employer to interfere with, restrain or
deny the exercise of or the attempt to exercise, any right provided under this title. The
regulation interpreting this provision provides, [e]mployers cannot use the taking of FMLA
leave as a negative factor in employment actions, such as hiring, promotions or disciplinary
actions. 29 C.F.R. 825.220(c); see also 29 U.S.C. 2615(a)(1). Interference includes not
only refusing to authorize FMLA leave, but discouraging an employee from using such leave. It
would also include manipulation by a covered employer to avoid responsibilities under FMLA.
Stallings, 447 F.3d at 1050 (quoting 29 C.F.R. 825.220(b)). An interference claim requires
only proof that the employer denied an entitlement under FMLA and does not require a showing
of intent. Stallings, 447 F.3d at 1051. Once such an entitlement is shown, an employer can
avoid liability only by showing it would have made the same contested decision even if the
employee had not exercised her FMLA rights. Throneberry v. McGehee Desha County Hosp.,
403 F.3d 972, 979-80 (8th Cir. 2005). FMLA creates a right both to use a specified amount of
leave for protected reasons and a right to return to ones job or an equivalent job after using the
protected leave. 29 U.S.C. 2612(a), 2614(a).
Dickinson asserts two theories of interference by SCH with her FMLA rights. The first is
that SCH calculated an absenteeism rate in a manner that violated FMLA and the second is that
SCH did not restore her to her prior position or an equivalent position after her FMLA leave. To
support her contention that SCH used an improper absenteeism calculation, Dickinson relies on a
Department of Labor regulation that states, employers cannot use the taking of FMLA leave as
a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor
can FMLA leave be counted under no fault attendance policies. 29 C.F.R. 825.220(c).
Dickinson argues that FMLA leave must be included in the denominator of the absenteeism
calculation because failing to do so causes the negative effect of increasing her absenteeism rate.
SCH argues that it does not violate the regulation because it treats FMLA leave neutrally by
excluding it from both the numerator and the denominator.
To the Courts knowledge, the issue of whether to include FMLA leave in an absenteeism
calculation has been raised in only two other courts which adopted opposite conclusions. Both
cases involved the attendance policy of Federal Express Corp. (FedEx). See Payton v. Federal
Express Corp., No. 1:06-CV-00333, 2006 WL 2715163 at *4-5, (M.D.Pa. Sept. 22, 2006);
Keasey v. Federal Express Corp., No. 03-228 slip op. at *5 (W.D.Mich. Dec. 9, 2003). FedEx
required its employees to attend work at least 96.92% of the eligible days within a twelve-month
period. Payton, 2006 WL 2715163, at *1. If the employees attendance rate did not meet the
96.92% standard, he could be disciplined. Id. After three written disciplinary actions within
twelve months, he was subject to termination. Id. In both cases, the plaintiff was discharged for
failing to meet the attendance rate. Id.; Keasey, No. 03-228 at 2. Also in both cases, FedEx did
not include the plaintiffs FMLA leave in either the numerator or the denominator, and the
plaintiffs argued that this resulted in an FMLA violation. Keasey, No. 03-228 at *3; Payton,
2006 WL 2715163 at *1.
In Keasey, the court found that FedExs calculation of the attendance rate did not violate
FMLA. The court reasoned that including the plaintiffs FMLA leave in the rate would
essentially give him 100% attendance for a period in which he did not work. Keasey, No. 03-
228 at *5. It likened this outcome to giving the employee a benefit; something not required
under FMLA. Id. To support this finding, the court cited Sawyer v. Ball Corp., No. 4:96-CV-
168, 1997 U.S. Dist. LEXIS 23614 at *9 (E.D.Va. 1997) in which the court held that an
employees probationary status is frozen while on FMLA leave. Otherwise the employee
would be relieved of his obligation to demonstrate acceptable attendance over the period [the
employer] designated. The FMLA does not mandate such a windfall for employees. Keasey,
No. 03-228 at *5 (quoting Sawyer v. Ball Corp., 1997 U.S. Dist. LEXIS 23614 at *9) (alteration
in original).
The Payton court disagreed with the Keasey analysis. It reasoned that by subtracting
thirty days from the denominator of the rate without adjusting the numerator accordingly, FedEx
reduced the number of no-fault attendance days available to Payton. Payton, 2006 WL
2715163, at *4 (citing 29 C.F.R. 825.220(c)). It therefore distinguished this situation from
Sawyer because the employees probationary status was suspended during his FMLA leave,
whereas Paytons FMLA leave was deducted against his attendance. Id. The court analogized
to a situation in which an employee entitled to eight no-fault attendance days was only allowed
seven no-fault days after taking FMLA leave and found this would be a clear violation of FMLA.
Id. The effect of taking FMLA leave is to reduce the number of non-FMLA leave days an
employee could take.
The Court finds the reasoning of the Payton court more persuasive. SCHs argument that
it does not factor FMLA leave in any way in calculating the attendance rate may be
mathematically true, but the practical consequence of this method is that the taking of FMLA
leave becomes a negative factor. Application of the actual numbers illustrates the issue. As a
.9 employee, Dickinson was scheduled to work 1,872 hours per year. Schoenberg Depo. at 14.
To remain below the 4% absenteeism rate required by SCH, she could only miss 74.88 hours of
work a year (74.88 1872 = 4%). Applying the method by which SCH calculates the
absenteeism rate means that if Dickinson takes 100 hours of FMLA leave as well as 74.88 hours
of non FMLA leave, her absenteeism rate rises above 4% (74.88 1772 = 4.22%). By virtue of
the fact that a SCH employee elects to take FMLA leave, the employee is allowed fewer non-
FMLA absences, which results in a negative factor for purposes of an employment action. 29
C.F.R. 825.220(c).
This determination, however, does not end the inquiry. SCH can still prevail if it can
show that it would have terminated Dickinson even if she had not exercised her FMLA rights.
See Throneberry, 403 F.3d at 979-80. To do so, SCH would need to demonstrate that
Dickinsons absenteeism rate would be above 4% over the time period used to determine that
rate even with the FMLA leave factored into the denominator. The parties present different
calculations of what the denominator should be based on both the number of FMLA hours
included in the denominator and the time period over which the rate is calculated. For the fourth
quarter of 2005, SCH calculates Dickinsons absenteeism rate at 4.53%. Schoenberg Depo. Ex.
2. Dickinson argues that intermittent FMLA leave taken in November and December 2005
should be included in the calculation, thus lowering her absenteeism rate to 3.92%; below the
4% threshold. Pl.s Mem. in Oppn to Summ. J. at 9 [Docket No. 26]. To the extent the parties
disagree as to these precise numbers and the weight Schoenberg gave to the fourth quarter
absenteeism rate in making his decision to terminate Dickinson, a fact finder could determine
that SCH would not have terminated Dickinson had she not taken FMLA leave.
The parties also differ on the absenteeism rate calculation for the entire period from
3 SCH argues that the total should be 661.69 hours, but the inclusion of the January 18,
2006 absence as FMLA leave would raise this number to 673.69.
November 6, 2005 to March 25, 2006. SCH argues that the denominator should be either 661.69
or 673.69 hours for this time period.3 Dickinson believes that the number should be 738.69
hours based on the inclusion of the January 18, 2006 FMLA absence as well as intermittent
FMLA leave taken by Dickinson in November and December. But even using Dickinsons
proposed figures, the calculation yields an absenteeism rate higher than 4% when divided by the
36 hours for the three non-FMLA absences (4.9%).
Dickinson argues, however, that the absences of February 21, 2006 and March 23, 2006
should not be counted against her because Schoenberg gave her permission to miss those days
and told her she would not be penalized for taking them. Dickinson argues that the doctrine of
equitable estoppel has been applied in similar situations. See Duty v. Norton-Alcoa Proppants,
293 F.3d 481 (8th Cir. 2002); Podkovich v. Glazers Distributors of Iowa, Inc., 446 F. Supp. 2d
982 (N.D. Iowa 2006);and Woodford v. Cmty. Action of Greene Co., Inc., 268 F.3d 51 (2d Cir.
2001). However, the doctrine of equitable estoppel has been applied in these FMLA cases only
to the extent that an employer represented to an employee that she was not eligible or need not
take FMLA leave. Dickinson does not claim that circumstance here. However, to the extent that
Schoenberg admitted that had he told Dickinson she could take those days off and that the
absences should not have been counted against her, a question of fact has been created.
Although it requires a large confluence of mathematical gymnastics and favorable inferences
regarding how much Schoenberg relied on the fourth quarter numbers and whether he gave
Dickinson permission to take the February and March 2006 non-FMLA leave, the evidence
taken in the light most favorable to Dickinson might lead a jury to conclude that SCH interfered
with her rights under FMLA and that SCH would not have terminated her but for exercising
those rights.
Dickinson also claims SCH interfered with her rights under FMLA by failing to restore
her to her former or equivalent position. See 29 U.S.C. 2614(a)(1)(A), (B); 29 C.F.R.
825.214(a). She reasons that because SCH terminated her before she could return from the April
8, 2006 to May 6, 2006 FMLA leave, she was not restored to her former or equivalent position.
SCH argues that she was returned to work but that even if she was not, she was terminated for a
non-FMLA reason and therefore it did not interfere with her FMLA rights. To the extent that
SCH had a legitimate non-FMLA reason for Dickinsons termination, it need not have reinstated
her in her former or equivalent position. See Throneberry, 403 F.3d at 977; Bailey v. Armsted
Indus., Inc., 172 F.3d 1041, 1045-46 (8th Cir. 1999). As stated above, however, fact issues
remain regarding the mathematical formulae, the time period over which it was calculated, and
whether Schoenberg gave Dickinson permission to be absent on February 21 and March 23. For
these reasons, summary judgment is denied with respect to the interference claim.
2. Retaliation
Section 2615(a)(2) makes it unlawful for any employer to discharge or in any manner
discriminate against any individual for opposing any practice made unlawful by this subchapter.
The Eighth Circuit has held [t]his prohibition necessarily includes consideration of an
employees use of FMLA leave as a negative factor in an employment action. Darby v. Bratch,
287 F.3d 673, 679 (8th Cir. 2002). An employee can prove FMLA retaliation circumstantially,
using a variant of the burden shifting test established in McDonnell Douglas. McBurney v.
Steve Hansens Dodge City, Inc., 398 F.3d 998, 1002 (8th Cir. 2005). Under the McDonnell
Douglas framework, the plaintiff employee must initially establish a prima facie case of
discrimination. This showing creates a presumption that the employer acted unlawfully. See
Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1134-35 (8th Cir. 1999) (applying framework to
Title VII claim). The burden of production then shifts to the employer to provide legitimate,
non-discriminatory reasons for the adverse employment action. Id. If the defendant meets this
requirement, the burden returns to the plaintiff to show that the employers explanation is
pretextual. Id.
SCH argues that Dickinson cannot establish a prima facie case but assuming arguendo
she does, she cannot demonstrate that SCHs proffered reason for termination was pretextual.
To establish a prima facie case of FMLA retaliation, an employee must show: (1) she exercised
rights protected under the Act; (2) she suffered an adverse employment action; and (3) a causal
connection existed between the employees action and the adverse employment action. See
Darby, 287 F.3d at 679. SCH does not dispute that Dickinson exercised rights under the Act and
that she suffered an adverse employment action, but contests whether she can prove a causal
connection between her taking of FMLA leave and the termination. The only evidence
Dickinson presents on causal connection is the temporal proximity of the taking of her leave and
the termination. She was fired the day she returned from FMLA leave.
The Eighth Circuit has held that [g]enerally, more than a temporal connection between
the protected conduct and the adverse employment action is required to present a genuine factual
issue on retaliation. Kiel, 169 F.3d at 1136. However, when the timing between the protected
activity and the adverse action is extremely close, courts have found that temporal proximity
alone is enough to establish a causal connection for purposes of a prima facie case. See Smith v.
Allen Health Systems, Inc., 302 F.3d 827, 833 (8th Cir. 2002) (two weeks); Sprenger v. Federal
Home Loan Bank of Des Moines, 253 F.3d 1106, 1113-14 (8th Cir. 2001) (a matter of weeks);
Hansen v. Mannheim Services Corp., 2006 WL 47315 (D.Minn. 2006) (on returning to work).
Given the close proximity here, Dickinson has established a prima facie case of retaliation under
Having done so, the burden now shifts to SCH to demonstrate a non-discriminatory
reason for Dickinsons termination, which it does by proffering her excessive non-FMLA
absenteeism rate as the reason for her termination. The burden shifts back to Dickinson to
demonstrate that this reason is pretext. Unlike the requirements to establish a prima facie case,
temporal proximity alone is not enough to establish pretext. See Sprenger, 253 F.3d 1114.
Therefore, Dickinson raises two additional facts to establish pretext. The first is that Schoenberg
used time periods other than a year to determine that Dickinsons non-FMLA absences exceeded
4%. Dickinson presents no rationale as to why the 4% threshold must be measured annually. A
hospital needs to have qualified individuals working on every shift, and it follows that SCH
supervisors might need the added flexibility of keeping track of absenteeism rates over shorter
time periods. The second fact Dickinson raises to support a finding of pretext is evidence that
Schoenberg was tracking her absences and communicating with Human Resources concerning
her FMLA and non-FMLA leave. Dickinson had a history of non-FMLA absenteeism and had
been disciplined repeatedly for this behavior. A supervisors decision to track the absenteeism
rate of an employee in this situation is not discriminatory. The communications between
Schoenberg and Human Resources do not demonstrate an attempt to circumvent Dickinsons
FMLA rights, rather these communications show a supervisor attempting to ensure that SCH
complied with the FMLA by clearly delineating between FMLA and non-FMLA absences. For
these reasons, summary judgment is granted with respect to the retaliation claim.
Based upon the foregoing, and all of the files, records and proceedings herein, IT IS
HEREBY ORDERED that Defendant St. Cloud Hospitals Motion for Summary Judgment
[Docket No. 20] is DENIED on the interference claim and GRANTED on the retaliation claim.
s/Ann D. Montgomery
Dated: October 20, 2008.


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