United States District Court, S.D. West Virginia, Charleston
MEMORANDUM OPINION AND ORDER
T. Copenhaver, Jr. United States District Judge.
is defendant's Motion for Summary Judgment (ECF No. 43),
filed on October 19, 2016.
Facts and Procedural History
Debbie Dea Basham worked for defendant Select Specialty
Hospital (“Select Specialty” or “the
hospital”) as a respiratory therapist, an at-will
employee, for almost fourteen years before her termination on
May 22, 2015. Select Specialty is an acute care medical
facility inside St. Francis Hospital in Charleston, West
Virginia. Basham was a superior employee who received
excellent performance reviews. See Pl.'s Resp.
to Def.'s Mot. for Summ. J. (hereinafter
“Resp.”) Ex. 2.
the course of her employment, Basham requested and received
leave under the Family and Medical Leave Act
(“FMLA”), 29 U.S.C. § 2601 et seq.,
on several occasions. Most recently, Basham requested and
received intermittent FMLA leave beginning in 2010 to care
for her chronically ill mother.
FMLA's central provision guarantees eligible employees 12
weeks of leave in a 1-year period following certain events: a
disabling health problem; a family member's serious
illness; or the arrival of a new son or daughter.”
Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81,
86; 29 U.S.C. § 2612(a)(1). Furthermore, leave
“must be granted, when ‘medically necessary,
' on an intermittent or part-time basis.”
Ragsdale, 535 U.S. at 86; 29 U.S.C. §
2612(b)(1). Employers may require employees to certify their
FMLA leave, which involves having a physician attest to the
necessity of the leave. As a particular instance of protected
leave goes on, the employer may require the employee
periodically to “recertify” that leave as well.
See, e.g., 29 C.F.R. 825.308(c). Select Specialty
terminated Basham in May 2015 after she allegedly failed to
recertify her FMLA leave on time.
employee of Select Specialty, Basham was subject to the
hospital's attendance policy. That policy provided that
employees must notify a supervising officer of the reason and
expected length of an absence in advance. Additionally,
Select Specialty's policy required that, when calling in,
an employee state that a leave request was FMLA-related in
order for that absence not to accrue “points” in
the employee's attendance record. Employees received
three points for each unprotected absence, and disciplinary
actions could occur under the policy after a certain number
of points accrued. The policy further provided as follows:
All counseling levels . . . should be given prior to
termination with the exception of non-point based attendance
infractions or those actions rising to the level of immediate
termination. . . . Attendance infractions will follow a
separate progressive disciplinary track from non-attendance
Employees receiving disciplinary action under this policy are
expected to improve their attendance. Failure to improve
and/or sustain improvement may result in the employee
receiving additional disciplinary action up to and including
Resp. Ex. 6 § 5 (hereinafter “Policy”). The
policy also contains a catchall disclaimer at its conclusion
stating that “[Select Specialty] retains the authority
to review infraction of the Attendance Policy on a case by
case basis for possible exception upon the review and
approval of the Executive Vice President of Human
Resources.” Policy at p. 6. The
“counseling” levels are (1) an “Attendance
Policy Review” after six points, (2) a
“Documented First Warning” after twelve points,
(3) a “Documented Written Warning” after sixteen
points, and (4) termination after twenty points. Id.
sought, and Select Specialty approved, intermittent FMLA
leave beginning in 2010 to care for her mother, generally
requiring her to miss between zero and four days of work per
month. Following this certification, Select Specialty
required Basham to recertify her leave at subsequent but
somewhat irregular intervals over the following five years.
Basham did not first recertify her leave until February 28,
2012, and recertified again four more times on December 11,
2012 (roughly nine months later), July 1, 2013 (roughly seven
months later), April 16, 2014 (roughly nine months later),
and November 25, 2014 (roughly seven months later). Resp. Ex.
3. On each occasion, she timely recertified her leave and
Select Specialty protected her absences under the FMLA.
Charles Stephens, Select Specialty's Human Resources
Coordinator at the time of Basham's termination,
explained in his discharge memorandum that “[b]ecause
of the irregularity of [Basham's] work attendance, [the
hospital] had to schedule another [respiratory therapist] to
insure [sic] consistent patient care. This was an additional
cost to the company.” Resp. Ex. 5 at 2 (hereinafter
“Stephens Discharge Mem.”).
January 16, 2015, Stephens, then the new HR Coordinator, sent
Basham a letter reminding her of the importance of stating
that her leave is FMLA-related when calling in to report an
absence. Resp. Ex. 10. Basham disputes that she ever received
this letter. Resp. Ex. 8 at 73-74 (hereinafter “Basham
Dep.”). Then, on February 24, 2015, Basham apparently
received “counseling” under the hospital's
attendance policy, in a letter designated a “Final
Warning” (which appears to be the same as the
“Documented Written Warning, ” the counseling
given after accumulating sixteen or more points) stating that
Basham had accumulated twenty-nine points in total. Resp. Ex.
7. Basham testified that she had not received either of the
first two counseling levels prior to receiving the final
“Documented Written Warning” on February 24,
2015, and Select Specialty's records appear to confirm
that she had not received any prior counseling.
Compare Basham Dep. at 86 with Resp. Ex. 9.
April 16, 2015, Select Specialty requested by letter a sixth
recertification from Basham by May 8, 2015, extended to May
18, 2015. The hospital asked for this recertification to be
made in less than six months after the last recertification,
being an interval shorter than the interval for prior
recertifications by Basham. Resp. Ex. 3. Select Specialty
states that it issued the recertification sooner than usual
because Basham's usage of intermittent leave had
increased. On Basham's prior recertification form, her
mother's treating physician indicated that her mother
would need intermittent care approximately one day per week
for two to four hours, and also that her mother's
condition would cause flare-ups and related incapacity for
eight hours at a time for one to two days per month.
Def.'s Reply to Resp. (hereinafter “Reply”)
Ex. 27. Brittany Shakespeare, Select Specialty's Leave
Specialist who evaluated Basham's FMLA leave, for some
reason chose to interpret the treating physician's
statements on the form to mean that Basham's leave
“would be only one to two days per month.” Reply
Ex. 28 at 2. Shakespeare noted that, in fact, Basham required
three days of leave in January 2015, four days in March 2015,
and four days in just the first ten days of April 2015, being
less than two weeks in the first one-fourth or so of the
Specialty requested that Basham submit her recertification
paperwork, part of which had to be completed by the treating
physician, by May 8, 2015, twenty-two days after issuing its
request. Basham provided the paperwork to her mother's
physician, who completed it on April 26, 2015. Basham,
however, did not return the paperwork immediately, testifying
that her mother was so seriously ill that she “actually
kind of forgot that [the paperwork] was there.” Basham
Dep. 121. Basham told Select Specialty that she could not get
the paperwork to Select Specialty in time, and they agreed to
extend the deadline by ten days to May 18, 2015. Id.
parties agree that at 8 p.m. on Saturday, May 16, 2015, two
days before the deadline, Basham attempted to return the
recertification paperwork to Select Specialty by faxing it
from the nursing station at Select Specialty's Charleston
facility to the corporate office. Reply 4. After faxing prior
recertification paperwork, Basham had received a fax
confirmation page and, on the lower half of her confirmation
page, a replica of the first page of the faxed document.
See Def.'s Mot. for Summ. J. (hereinafter
“Def.'s Mot.”) Ex. 15. On the May 16 fax
confirmation sheet, however, she received a one-page
confirmation sheet showing that she had faxed a document with
four pages but without a replica of the first page of the
fax. Resp. Ex. 14. The confirmation page was blank on the
bottom half of the page except for several grainy lines.
Resp. Ex. 14.
corporate office, Shakespeare received a one-page
transmission record accompanied by four pages that were
“essentially blank, ” Resp. at 6, appearing only
to give a hint of grainy lines and perhaps some text without
identifying the sender, see Def.'s Mot. Ex. 17.
Basham did not attempt to follow up on the fax before the May
18 deadline, and Select Specialty did not inquire regarding
her missing recertification form. Shakespeare testified that
it is not Select Specialty's policy to contact employees
“directly, ” except by written communications.
Reply 5. Basham called Select Specialty twice and left a
voice message with Shakespeare on May 21st, and Shakespeare
testified that she returned the call, but the two never
spoke. Resp. Ex. 4 at 121 (hereinafter “Shakespeare
Dep.”). Consequently, Select Specialty claims it did
not receive a completed recertification form by the May 18
deadline. However, Barbara Foster, Select Specialty's
Regional Human Resources Director, testified that there was
not much question that Basham made a “reasonable
attempt” to recertify on time. Reply Ex. 33 at 68
(“Q: -- but you would agree with me that there is not
really much of a question that Debbie Basham made a
reasonable attempt to try to get the paperwork in on time? A:
Correct --”) (hereinafter “Foster Dep.”).
a completed form, Shakespeare and Stephens treated
Basham's absences as unprotected after the April 16th
letter requesting a sixth recertification from her, and
Select Specialty assessed Basham with a total of 49
attendance points as of May 19, 2015. Shakespeare sent an
email to Stephens at 11 a.m. on May 18th notifying him that
Basham had not returned the paperwork; she did not contact
Basham regarding the paperwork. Shakespeare Dep. at 95, 98.
Consequently, the hospital's CEO, Frank Weber, decided to
terminate Basham, and on May 22, 2015, Basham was called in
to meet a final time with Stephens and the Chief Nursing
Officer, Francis Stump, for her discharge meeting. During the
discharge meeting, Basham alerted Stephens and Stump that she
had faxed the forms prior to the deadline. Stephens Discharge
Mem. at 2. Nevertheless, Select Specialty terminated Basham
that day. Stephens testified when asked why he did not
revisit her termination after speaking with Basham at her
discharge meeting that “number one, policies and
procedures; that's what I follow.” Resp. Ex. 1 at
144 (hereinafter “Stephens Dep.”). Although
Stephens did not make the termination decision, he also
testified that he might have been able to “suggest we
follow up and hold off [on the termination] at that
point.” Stephens Dep. 146. Weber, however, later
attested that neither Stephens nor Stump had the authority to
reverse his termination decision. Def.'s Mot. Ex. 21.
Stephens also testified that if Basham had turned in the
paperwork on time, she would not have been terminated.
Stephens Dep. 82 (“Q. So to simplify the issue, if
Debbie turns in this, the paperwork on time, she's not
terminated? A. Correct.”).
September 4, 2015, Basham filed this case in the Circuit
Court of Kanawha County, West Virginia, alleging a single
count containing each an interference claim and a retaliation
claim under the FMLA. Compl. ¶¶ 19-26. The
Complaint specifically alleges as follows:
23. . . . Defendant attempted to interfere with
Plaintiff's ability to use FMLA leave by
“counseling” Plaintiff on her absences (despite
knowing that the absences were protected by the FMLA) and
then falsely claiming that Plaintiff's leave would not be
protected unless she expressly mentioned the
24. Defendant then retaliated against Plaintiff for invoking
her rights under the FMLA by terminating her employment as
describe [sic] in the preceding paragraphs.
Id. ¶¶ 23-24. Defendant removed to this
court on November 20, 2015, and filed its motion for summary
judgment on October 19, 2016.
motion, Select Specialty argues that both Basham's
interference claim and her retaliation claim must fail.
First, Select Specialty asserts that its recertification
procedures are permissible under the FMLA and that Basham did
not properly assert a harm arising from the counseling and
call-in requirements imposed by Select Specialty. Second,
Select Specialty contends that, even if Basham can make out a
case of prima facie retaliation, she cannot show
that Select Specialty's assertion that it fired her
because of her unprotected absences was pretext for
responds first that the hospital interfered with her rights
by terminating her. Select Specialty, she claims, interfered
with her right to take FMLA leave after she made diligent,
good faith efforts to recertify and then to notify the
hospital that she had made that attempt. Basham further
contends that her termination was unlawful because the
recertification request violated the FMLA's rules for
when employers can issue such requests. Second, with respect
to retaliation, Basham asserts that Select Specialty's
stated reason for termination was pretextual because of the
unusual timing of the recertification request, because Select
Specialty ignored its own policy in terminating her, and
because its explanation is generally not credible given
Basham's history at Select Specialty.
reply, the hospital contends that Basham has abandoned the
interference claim set forth in her complaint, to wit, that
it interfered with her FMLA rights in two ways: by counseling
her and by requiring her to state that her leave was
FMLA-related when calling in. Instead, Select Specialty
argues that Basham, in her response to its motion, has
improperly asserted at the ...