United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
PHILIP P. SIMON, Chief District Judge.
Janette Kennedy claims that her former employer, the United States Postal Service, and some of its employees who were her supervisors, discriminated against her because of her attempts to take leave under the Family Medical Leave Act, 29 U.S.C. § 2601, et seq. She also claims that she was discriminated against based on her disability and age. (An earlier claim of race discrimination was voluntarily dismissed). The Defendants say that Kennedy was fired because she violated the terms of a Last Chance Agreement with excessive absenteeism, and so they seek summary judgment on all counts. Kennedy also seeks summary judgment on her FMLA and disability discrimination claims. For the reasons explained in detail below, the Kennedy's motion is denied and the Defendants' motion is GRANTED IN PART and DENIED IN PART.
Janette Kennedy started working for the United States Postal Service on July 2, 1979, [DE 114 at 28, 30] and was terminated in January 2009 [DE 114 at 20, 179]. She is over the age of 40. [DE 114 at 7]. Kennedy worked for USPS for 29 years, and would have been eligible for retirement after 30 years of service [DE 114 at 32]. For the last ten years that she worked for USPS, she was a distribution clerk [DE 114 at 30, 32-34; DE 115 at 15]. Kennedy started work early, sometimes as early as 4 a.m.: she would unlock the facility, turn off the alarm, open the front door to the post office, meet the truck that delivered the mail to Hammond, and sort the mail and packages for carriers to deliver [DE 114 at 32-36].
Kennedy's supervisors during the time of the events that comprised this litigation were Laureen Poindexter, who supervised her from August 2007 through August 2008 [DE 114 at 36, 43; DE 115 at 14], and then Donald Harris, who took over in August 2008 [DE 114 at 37, 150-51; DE 118 at 4-5]. Donna Black was Kennedy's manager, and she was the manager of Customer Services for the Hammond Main post office [DE 116 at 5-6]. Tangela Bush was the Postmaster General for the Hammond Post Office from June 2007 through July 2011 [DE 117 at 5-6; DE 114 at 37].
While Kennedy worked at the Post Office, here is how the leave policies for sick time, emergency time off, and FMLA leave worked: scheduled leave, like vacations that were requested before the employee took time off, was approved in advance by the employee submitting a Form 3971 [DE 114 at 49-50; DE 99-32; DE 118 at 9]. An unscheduled absence, or one not approved in advance, such as sick leave or emergencies, used to be handled by calling in to the Hammond Post Office to speak with a supervisor, but then the system was changed to a computer generated call-in system called eRMS [DE 114 at 44, 47; DE 115 at 63; DE 99-32]. The eRMS call-in system would direct the employee to enter her employee ID and to identify the type of leave the employee was taking: sick leave, annual leave, or FMLA leave [DE 114 at 47-48]. If the employee had an FMLA case number, she would enter the number while she was calling in [DE 114 at 167-68]. If she didn't, she could still request FMLA leave, and paperwork would be mailed to the employee's home [DE 118 at 53-54]. In those cases, the call-in system would generate a new case number, and the employee would have fifteen days in which to return the forms, providing the medical documentation for consideration of FMLA approval [DE 118 at 47; DE 99-1 at ¶ 8].
Before getting into the details of Kennedy's termination, some background is necessary. Around the year 2000, Kennedy began having serious health problems, including migraine headaches, chronic sinus infections (for which she had surgery), and depression, and she took FMLA leave for those conditions [DE 114 at 55-56, 67, 69, 227-34]. The migraine headaches caused pounding headaches, vomiting, irritation from light, dizziness, trouble sleeping, general misery and pain, and an inability to function [DE 114 at 62, 198, 200]. The sinus infections caused severe pain in her head, nasal cavity, and severe congestion [DE 114 at 62]. Kennedy's depression began in 2006, and she underwent counseling, treatment, and took medication [DE 114 at 59-61]. According to Kennedy, her migraines, sinus problems, and depression were disabilities [DE 114 at 56, 177]. USPS contends that Kennedy did not request accommodations for her perceived disabilities [DE 117 at 101; DE 116 at 289]. But Kennedy contends that she did request accommodations in the form of brief absences because of her health problems.
Black was aware that Kennedy had been approved for FMLA leave in the past, but recalled only that it was for a sinus condition and sinus surgery [DE 116 at 291, 334]. Kennedy, however, contends that because Black was an FMLA coordinator in 2004 or 2005, she had personal knowledge of Kennedy's migraines because Poindexter had provided her with FMLA documents to that effect, and that USPS had documentation of Kennedy's migraines as early as 2002 [DE 116 at 16; DE 115 at 38; DE 151 at 3].
On April 4, 2006, Kennedy was approved for FMLA leave, assigned a case number, and instructed that she was to use the number when she called into the automated telephone system to request time off [DE 99-8; DE 99-1 at ¶ 9]. Kennedy was also informed that the approval (and therefore, the case number) would expire on September 30, 2006, and that she would need to resubmit a new request form to obtain further FMLA leave with her first absence thereafter [DE 99-8]. According to USPS employee materials, an employee was not required to recertify a serious health condition upon the first absence in the following leave year; instead, the certification from the previous leave year would remain valid for the duration that the healthcare provider had initially indicated, unless management required a recertification [DE 119].
On July 16, 2007, Kennedy used the call-in phone system to request FMLA time off, and to open a new case, since her prior case number had expired [DE 99-1 at ¶ 10; DE 99-9]. However, because she did not provide supporting documentation for the FMLA request, the Postal Service denied her FMLA leave request [DE 99-1 at ¶ 10; DE 99-10]. In August 2007, Kennedy again applied for FMLA approval but was denied due to insufficient work hours [DE 114 at 237].
On October 9, 2007, Kennedy again used the call-in telephone system to make a request for FMLA leave [DE 99-1 at ¶ 11; DE 99-11]. The request was denied on October 11, 2007, because she had not worked the required 1, 250 hours during the 26 pay periods leading up to October 9 [DE 99-1 at ¶ 11; DE 99-12]. According to the Postal Service, Kennedy had no FMLA approval on file from October 1, 2006, through 2008 [DE 99-1 at ¶¶ 13, 15].
Because of the series of unapproved absences, on November 6, 2007, Kennedy was given a notice of removal for failure to provide acceptable medical documentation for absences from July 16, 2007 through November 6, 2007 [DE 114 at 86-87; DE 99-17]. Kennedy filed a grievance regarding the removal, and on December 21, 2007, it was reduced to a thirty day last chance suspension [DE 99-18]. Between December 21, 2007 and February 8, 2008, Kennedy had eight unscheduled absences, and Poindexter, Kennedy's supervisor, initiated a Request for Removal [DE 99-19]. Black concurred with the removal [ Id. ]. On February 8, 2008, Poindexter interviewed Kennedy about the absences, and Kennedy did not say that they were due to migraines or that she wanted to use FMLA leave; however, Kennedy claims that she told Poindexter that the absences were out of her control, that she had sought help from an Employee Assistance Program, was seeing a doctor, and that she was doing the best that she could [DE 115 at 48-49, 208; DE 114 at 97-99, 313; DE 99-20]. Kennedy was again issued a notice of removal on February 12, 2008 for unsatisfactory attendance [DE 114 at 96; DE 115 at 171; DE 99-21].
On March 6, 2008, Kennedy sought FMLA approval for an absence, but she was denied approval because she had only worked 1165.20 hours in the preceding 26 pay periods [DE 114 at 255; DE 101-4]. She assumed that she would have sufficient hours worked within the next two weeks, and she claims that subsequent Form 3971s confirmed that she became eligible for FMLA on March 19, 2008 [DE 114 at 255-56].
In the meantime, Kennedy filed another grievance regarding the Notice of Removal, and it was reduced to a suspension and Last Chance Agreement [DE 114 at 101-102; DE 115 at 148-49; DE 117 at 97; DE 99-22]. Kennedy signed the LCA on April 28, 2008 [DE 114 at 104; DE 99-22]. The LCA provided that Kennedy would maintain "satisfactory attendance, " meaning no more than three unscheduled absences, excluding those covered by the FMLA, during any six month period following the signing of the agreement [DE 99-22]. Unscheduled absences included any absence not scheduled and approved in advance of Kennedy's scheduled start time, including tardiness, emergency leave, such as emergency annual leave or sick leave, and failure to report or remain as scheduled for overtime or holiday work [ Id. ]. As noted, FMLA leave was specifically excluded from the definition of "unscheduled absences" [DE 99-22; DE 117 at 21]. The LCA also required Kennedy to retire as soon as she was eligible to do so [DE 99-22 at ¶ 11].
All of the foregoing is by way of background to set the stage for the facts surrounding Kennedy's firing. The ultimate question is whether Kennedy's subsequent absences were covered by FMLA or not. Here's what happened: on June 24, 2008, Kennedy arrived at work at 5:40 a.m., forty minutes late for her 5 a.m. start time [DE 114 at 121-22]. The night before, Kennedy took medication for a migraine headache, which caused her to sleep through her alarm the following morning [DE 114 at 122, 124]. After 5:00 a.m., she called into the Post Office and spoke to another clerk, Bernice Gillis, and told her that she was going to be late and was on her way to work [DE 114 at 121-23]. She did not call in to the eRMS system or a supervisor [DE 114 at 123]. The Postal Service maintains that Kennedy should have informed a supervisor of her absence [DE 115 at 57]. At her deposition, Kennedy indicated that this was an "unscheduled absence, " but that Poindexter later approved the absence [DE 114 at 123]. The Form 3971 that was generated at the time indicates that Kennedy was ineligible for FMLA. Yet the form also indicated that her estimated eligibility date was March 19, 2008 - approximately three months prior to her absence [DE 131]. In other words, the form was internally inconsistent.
On July 1, 2008, Kennedy called the eRMS system and again requested FMLA leave for the entire day because of a migraine [DE 114 at 124-25]. At the time, she did not have an FMLA approved case number, but understood that USPS would send her paperwork later [DE 114 at 125]. The following day, Kennedy spoke to Poindexter about the absence and provided her documentation - a Return to Work form - from her doctor [ Id. ]. Later, Kennedy provided Poindexter with the FMLA paperwork that her doctor completed [De 114 at 127-28]. Once again, the USPS denied Kennedy's request for FMLA leave, because she had not worked 1250 hours during the preceding 12 months: she had worked only 1082.48 hours on the day of the request [DE 114 at 129]. But again, the Form 3971 that was generated tells a different story; it indicates that Kennedy was be eligible for FMLA on March 19, 2008 [DE 132]. Kennedy contacted FMLA coordinator Velma Coles regarding the denial, but never heard back from her [DE 114 at 129-30]. At the time, based on the previous indication that she was eligible for FMLA as of March 19, 2008, Kennedy thought that she had worked the requisite 1250 hours [DE 114 at 130, 255].
On September 15, 2008, Kennedy missed work because of a major flood in the area: Kennedy was unable to get out of her subdivision and area roads were closed [DE 114 at 130-31, 135]. Kennedy called in to the eRMS system at 3 a.m. and requested emergency annual leave [ Id. ]. The Hammond Post Office was open that day [DE 114 at 137; DE 118 at 9]. On Kennedy's Form 3971 for the September 15, 2008 absence, which was generated by her supervisor, Kennedy signed the form and wrote "flood" [DE 114 at 137]. Black asked Kennedy to provide additional documentation regarding the flood, which she did [DE 117 at 26; DE 114 at 137-40, DE 114-1 at 277-78; DE 99-25; DE 99-26]. Black rejected the documentation, but would not tell Kennedy what documentation was appropriate [DE 114 at 139-40; DE 114-1 at 277].
Ironically, Black herself was unable to make it in to work on the day because of the flood. She called in her absence to Bush directly on the day before the flood, because she had Bush's cell phone number, and her absence was thus counted as "scheduled, " even though she was not required to bring in documentation of the flood, as was required of Kennedy [DE 117 at 26; DE 116 at 41-42, 46, 87]. Kennedy, on the other hand, did not have Bush's number and could not call her [DE 114-1 at 320]. Kennedy also contends that Black did not actually call Bush until the day of the flood, and ...