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Basham v. Select Specialty Hospital

United States District Court, S.D. West Virginia, Charleston

June 1, 2017



          John T. Copenhaver, Jr. United States District Judge.

         Pending is defendant's Motion for Summary Judgment (ECF No. 43), filed on October 19, 2016.

         I. Facts and Procedural History

         Plaintiff 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.

         During 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.

         “The 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.

         As an 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 based infractions.
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 termination.

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. § 5.

         Basham 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.”).

         On 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.

         On 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 year. Id.

         Select 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. at 108.

         The 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.

         In the 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.”).

         Without 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.”).

         On 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 “FMLA.”
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.

         In its 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 retaliation.

         Basham 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.

         In its 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 ...

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