Festerman v. Cnty. of Wayne

ROBERT FESTERMAN, Plaintiff-Appellant, v. COUNTY OF WAYNE Defendant-Appellee.

Case No. 14-1950

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

May 8, 2015

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 15a0342n.06

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

OPINION

BEFORE: KETHLEDGE and DONALD, Circuit Judges; McCALLA, District Judge.^*

JON P. McCALLA, District Judge. Plaintiff-Appellant Robert Festerman filed an action against his former employer Defendant-Appellee Wayne County, alleging interference and retaliation in violation of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601 et seq. The district court granted summary judgment in favor of Wayne County, which Festerman now appeals. For the reasons discussed below, this Court REVERSES the district court's grant of summary judgment and REMANDS the case for trial.

I. BACKGROUND

A. Factual Background

From October 2007 to June 2012, Robert Festerman worked as a "Police Officer" in Wayne County's Jail Division Two. As a police officer, Festerman provided inmate security in one of three Wayne County jail facilities. The jail facilities house convicted felons and misdemeanants, as well as various detainees. Each facility also has a maximum security area for violent and mentally ill inmates. The facility in which Festerman worked is run by the Wayne County Sheriff's Office.

Due to understaffing, involuntary overtime was a common occurrence, and deputies like Festerman did not have the right to refuse overtime assignments. If an officer refused a mandatory overtime assignment or failed to report for such assignment, that officer's supervisor would issue a Conduct Incident Report ("CIR"), documenting the officer's refusal to follow a direct order. It was common practice to refer an officer who received a CIR for administrative review.

On March 3, 2012, at around 4:00 p.m. while at work, Festerman experienced chest pains and shortness of breath. After notifying Sergeant Becky Tripp of his condition, Festerman was transported to Detroit Receiving Hospital. Sergeant Tripp filed an incident report regarding the episode on the same day.

Festerman returned to work on March 8, 2012 and submitted an injury report documenting the March 3rd incident. Notice of receipt of Festerman's injury report was sent to Festerman on March 8, 2012 by Suzanne K. Hall, Director of Administration. Shirley Prieskorn, Disability Manager was copied on the notice of receipt, which indicated that the Sheriff'sPersonnel Office had received the injury report and had forwarded it to the Benefits Administration.

On March 9, 2012, Festerman's physician, Dr. Pavani Kolli, provided Festerman a written note, which read, "Patient is advised to limit working hours to 8 hrs/day." Festerman alleges that he gave Dr. Kolli's note to Sergeant Jackie Loving on March 12, 2012. Around this time, Dr. Kolli also prescribed Festerman medicine for treating anxiety disorder.

The parties agree that Wayne County accommodated Festerman's limited working hours for a period of time after the March 3rd incident. On March 28, 2012, Commander Scott Gatti was notified that Festerman and three other officers had informally been given medical accommodations, which excused them from overtime work. At that time, the Sheriff's Personnel Office made the determination that officers with doctor's notes that limited their working hours would be assigned overtime shifts, just as any other officer on duty, and would be issued CIRs if they refused to work a mandatory overtime shift. This policy was announced during roll call on March 29, 2012.

On April 6, 2012, Sergeant Dwight Reed issued Festerman a CIR for refusing overtime work. On April 8, 2012, Sergeant Loving issued Festerman a CIR for a similar refusal. On April 9, 2012, Festerman met with Debra Blair, Director of Labor Relations, and Shirley Prieskorn, Disabilities Manager - both employees in the Human Resources Department. Blair and Prieskorn advised Festerman to complete a leave of absence form in order to be approved for intermittent leave under the FMLA. Festerman alleges that he inquired into whether the doctor's note he previously provided to Sergeant Loving had provided adequate notice of Festerman's medical needs. Festerman asserts that Prieskorn indicated that the note satisfied the notice requirement. On April 12, 2012, Festerman once more discussed FMLA leave with Prieskornand Mary Sullivan, Leave Coordinator. Festerman received a leave of absence packet on April 13, 2012, which included the leave of absence form that Festerman had been asked to complete. On May 3, 2012, Festerman submitted a completed leave of absence form to Wayne County.

On May 7, 2012, Festerman received a departmental recommendation for intermittent sick leave under the FMLA, which was subject to final approval by Central Personnel. Mary Sullivan requested further clarification regarding the 6-8 hour workday shifts prescribed by Dr. Kolli, and whether Festerman was able to continue to work full time. Festerman resigned before Sullivan received a response from Dr. Kolli.

Throughout this period, Wayne County took further action related to Festerman's March 3rd medical incident and his subsequent request for intermittent leave. On April 10, 2012, Commander Scott Gatti recommended that Festerman be referred for administrative review regarding his failure to follow a direct order as documented by the two CIRs issued to Festerman. On April 26, 2012, Wayne County modified the job description for Festerman's position. The minimum number of hours required for a workweek was increased from 40 hours to 40.5 hours. Additionally, mandatory overtime was included as an essential function of the position.

Festerman alleges a discriminatory incident occurred with a coworker on April 10, 2012. Officer Darryl Thornton arrived at work that day wearing a t-shirt that read, "I refuse - I have a note from my mom." Festerman did not see the t-shirt himself because he was on leave that day, but was informed of the t-shirt and its content by a coworker. Festerman, along with other coworkers who had medical restrictions, met with Sergeant Loving and two union stewards to discuss what they believed was discriminatory conduct. Subsequently, Wayne County commenced an investigation into the incident. On June 11, 2012, Festerman submitted acomplaint in the form of a written memorandum to Wayne County Sheriff Benny Napoleon, which stated that Festerman felt he was harassed during the investigation. As previously noted, Festerman tendered his resignation on June 20, 2012.

B. Procedural Background

Festerman filed a complaint on April 25, 2013, seeking (1) damages and injunctive relief for interference with his rights under the FMLA and (2) damages for retaliation pursuant to 29 U.S.C. § 2615. Wayne County filed a motion for summary judgment on March 28, 2014, which the district court granted on June 24, 2014. Festerman now appeals the district court's order granting Wayne County's motion for summary judgment.

II. STANDARD OF REVIEW

This Court reviews a district court's grant of summary judgment de novo. Donald v. Sybra, Inc., 667 F.3d 757, 760 (6th Cir. 2012). Summary judgment is granted only "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." Fed. R. Civ. P. 56(a). "Where the disputed issue of fact is material to liability, [] premature entry of summary judgment inappropriately supplants the role of the fact-finder in adjudicating liability." Wallner v. Hilliard, 590 F. App'x 546, 550 (6th Cir. 2014). "The court must draw all reasonable inferences in favor of the nonmoving party." Shreve v. Franklin Cnty., Ohio, 743 F.3d 126, 132 (6th Cir. 2014). Summary judgment on a particular claim is inappropriate where sufficient evidence exists on the record such that a reasonable jury could find for the non-movant. See Donald, 667 F.3d at 760-61.

III. FMLA VIOLATIONS

Under the FMLA, an employee who has worked full time for an employer for twelve months or longer may be entitled to up to twelve weeks of leave within a subsequent twelve-month period. Brenneman v. MedCentral Health Sys., 366 F.3d 412, 420-21 (6th Cir. 2004); 29 U.S.C. § 2611(2). To receive FMLA leave, the employee must be subject to a qualifying condition, such as "a serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612(a)(1)(D). A "serious health condition" is defined as "an illness, injury, impairment, or physical or mental condition that involves -- (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider." § 2611(11). An employee with a serious health condition may take intermittent leave or establish a reduced work schedule under the FMLA without fear of adverse employment actions taken by the employer as a result. George v. Russell Stover Candies, Inc., 106 F. App'x 946, 949-50 (6th Cir. 2004). "Intermittent leave is leave taken in separate blocks of time for a single qualifying reason." Adams v. Honda of Am. Mfg., Inc., 111 F. App'x 353, 355 (6th Cir. 2004) (citing 29 C.F.R. § 825.203(a)).

"This court recognizes two distinct theories for recovery under the FMLA: (1) the 'entitlement' or 'interference' theory arising from 29 U.S.C. § 2615(a)(1); and (2) the 'retaliation' or 'discrimination' theory arising from 29 U.S.C. § 2615(a)(2)." Hoge v. Honda of Am. Mfg., Inc., 384 F.3d 238, 244 (6th Cir. 2004). Because Festerman asserts claims under both theories, this Court will address each in turn.

A. Interference Claim

It is unlawful for an employer "to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided [by the FMLA]." 29 U.S.C. § 2615(a)(1). For example, unlawful interference occurs when an employer refuses to authorize leave for a...