[ PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
February 16, 2006
No. 05-10252 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 03-00080-CV-CAR-3
BARBARA J. HURLBERT,
Executor of the Estate of Thomas Hurlbert
Plaintiff-Appellant,
versus
ST. MARY'S HEALTH CARE SYSTEM, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(February 16, 2006)
Before BIRCH, WILSON and COX, Circuit Judges.
WILSON, Circuit Judge:
Barbara J. Hurlbert, executor of the estate of Thomas Hurlbert, appeals the
district court’s order granting summary judgment to Thomas Hurlbert’s
(“Hurlbert”) former employer, St. Mary’s Health Care System, Inc. (“St. Mary’s”),
on Hurlbert’s claims under the Family and Medical Leave Act of 1993 (“FMLA”
or the “Act”).1 The district court determined that Hurlbert could not establish
statutory entitlement to FMLA leave, and that his FMLA interference and
retaliation claims must therefore fail. With respect to Hurlbert’s retaliation claim,
the court further found Hurlbert had failed to present sufficient evidence that St.
Mary’s proffered reason for his termination was pretextual. We hold that the
district court erred in construing pertinent regulatory language, and in assessing the
evidence of pretext. As a result, we reverse and remand for further proceedings on
both the interference and the retaliation claims.
I. BACKGROUND
Hurlbert started working for St. Mary’s in 1989, as a paramedic. In addition
to fulfilling his duties at St. Mary’s, Hurlbert worked full-time with the Rockdale
County Fire Department (“Rockdale”). His duties at Rockdale included
firefighting and dealing with hazardous materials, although he was also able to
1
At oral argument, appellant’s counsel stated that Hurlbert, the original Plaintiff in this
action, had recently died in the line of duty while serving as a firefighter. For ease of reference,
we will refer to Hurlbert in the present tense.
2
employ his paramedic skills as needed.
Shortly after being hired by St. Mary’s, Hurlbert was promoted to a
supervisory position that involved the maintenance of St. Mary’s emergency
medical services (“EMS”) vehicles. Approximately five years later Hurlbert’s
duties changed, and he became responsible for supervising one of St. Mary’s three
emergency medical technician (“EMT”) shifts. Among other things, Hurlbert was
required to ensure that EMS units were adequately staffed during his shift, to visit
and check on the various duty stations from which the units operated, and to
transport linens.
Hurlbert suffered a heart attack in October of 1999. After he underwent a
successful angioplasty and stent replacement, he was released by his cardiologist,
Dr. Thomas Murphy, to return to work at St. Mary’s on November 9th, and at
Rockdale on November 16th. Prior to his release, Hurlbert was diagnosed with
depression and anxiety, as well as sinusitis. Among the medications he was
prescribed was Paxil, for anxiety and stress.2 Hurlbert did return to full-time work,
however, at both St. Mary’s and Rockdale.
In February of 2002, St. Mary’s underwent an internal reorganization. The
oversight of EMS was transferred from vice-president Marilyn Hill to executive
2
It is uncontroverted that Hurlbert remained on Paxil up through the time he filed suit in
August of 2003, and that his dosage was increased at one point.
3
director Bonnie Butler, who had been directing various other services at St. Mary’s
for eight years. After conducting a departmental review of EMS, Butler concluded
that its director position should be replaced by that of a working manager. In July
of 2002, Butler eliminated the position of EMS director held by Frank “Sparky”
Wilson, and promoted Jeff Sosby to the new working manager position.3
As part of Butler’s departmental review, she reassessed a number of
unresolved patient complaints, including one about medical services rendered by
Hurlbert to a five-year old child back in late February of 2002. Butler ultimately
concluded that Hurlbert had falsified his account of events, and should have been
terminated by Sparky Wilson. Given the age of the complaint, however, she issued
Hurlbert a disciplinary letter instead of terminating him. Hurlbert, who denied
engaging in any falsification, filed a grievance regarding the disciplinary action.
During the early stages of the grievance process, Butler decided to have Hurlbert
undergo a competency evaluation.4
Around that time Hurlbert also learned that his mother would have to
undergo open heart surgery, and used several vacation days in early August to go
visit her. On August 14th, the EMS medical director, Dr. Jerome Howell,
3
Sosby, like Hurlbert, had been serving as one of the EMS shift supervisors.
4
Butler testified in her deposition that she was concerned the father of the child with the
seizure disorder might bring a lawsuit against St. Mary’s or Hurlbert, and that she “felt like it
was our responsibility to protect Tom [Hurlbert] by proving his competency.”
4
administered a skills competency test to Hurlbert. Although each of the seven
competency areas on the exam was pass/fail only, and Hurlbert passed five, Dr.
Howell did not mark either “pass” or “fail” in two of the competency areas.
Instead, Dr. Howell commented that Hurlbert (1) seemed “rusty” in his use of the
Lifepak 10 and was not familiar with the use of the Lifepak 12, and (2) needed to
review the use of drugs contained in the EMS “drug bag,” as well as how those
drugs are administered. Dr. Howell does not recall discussing the results of the
examination with Butler, but did tell education director Mike McElhannon that
Hurlbert needed to do some additional review. Hurlbert likewise recalls Dr.
Howell telling him to brush up on the drug bag portion of the test.
On September 4th, Hurlbert received a hearing before an internal committee
on his grievance. The committee upheld Butler’s disciplinary action, but removed
her reference to “falsification.” Later that same day, Hurlbert met with Dr. Howell
to complete the Lifepak and drug bag portions of Hurlbert’s earlier competency
exam.5 Hurlbert remembers making a mistake in describing one drug, but claims
Dr. Howell told him it didn’t matter because St. Mary’s was going to remove that
drug from the drug box altogether. Hurlbert also contends that Dr. Howell never
said that Hurlbert failed the test. Dr. Howell’s recollection is that Hurlbert had
5
Although Dr. Howell cannot recall whether he tested Hurlbert on the use of the Lifepak
10 and 12 at this meeting, Hurlbert does remember doing a Lifepak test.
5
clearly studied and was making his best effort, but had not necessarily established
that he was prepared to perform the duties of his position. Dr. Howell was
concerned about Hurlbert’s ability to perform under stress, and suggested to
Hurlbert that he might need to “tak[e] some time off or tak[e] a break or maybe,
you know, stay[] off the truck and do[] something else for a while.” Similarly,
Hurlbert recalls discussing with Dr. Howell the increasing stress and exhaustion
created by Hurlbert’s heavy workload, the feeling of being singled out for
discipline, and his mother’s health. Hurlbert remembers stating that he needed to
visit his mother, and didn’t want to continue working as a paramedic until he had
done so. According to Hurlbert, Dr. Howell advised him to relax and assured him
that he (Howell) would help Hurlbert get some time off to visit his mom.
After finishing with Hurlbert, Dr. Howell went to speak with Mike
McElhannon about Hurlbert’s status. Howell explained to McElhannon (and Jeff
Sosby, who also was present) that he (Howell) thought Hurlbert “was showing
signs that his confidence in his own knowledge and experience was in doubt and I
think under stress, he was wavering a little.” Howell recalls stating that it would
be helpful if Hurlbert could take on a more laid-back job, but denies ever saying
that Hurlbert should not serve as a paramedic/EMT, or that Hurlbert should be
terminated. At some point after Dr. Howell finished speaking with McElhannon
6
and Sosby, Hurlbert located Sosby and asked about taking leave:
I indicated to him that I wanted to put in for a leave. And he told me
he didn’t know how to do that, that he was new at that job, which he
had just been put into it [sic]. He wasn’t really familiar with it and he
didn’t know if he had paperwork and all this other [sic]. And I says,
“Well, okay. Well, I surely would appreciate it if you would make the
arrangements because I would just like to take off and get out of here
and . . . go see my mom.”
Sosby replied that he would look into the matter, and later obtained a leave form
for Hurlbert.
At some point between the end of Hurlbert’s examination on September 4th
and the morning of September 6th, Bonnie Butler met with Dr. Howell. According
to Butler, Dr. Howell explained that Hurlbert had improved in his understanding of
medications, but became confused about how to use them when given certain
scenarios. Butler contends that Dr. Howell could not recommend putting Hurlbert
“back on the truck.” Dr. Howell did ask, however, whether there were other jobs
within St. Mary’s system that Hurlbert could perform, and Butler replied that she
would check and see. It appears that Butler also met with St. Mary’s vice president
of human resources and support services, Jeff English, who testified in his
deposition that Butler told him Dr. Howell “felt like it wasn’t the right thing to do
to put Tom [Hurlbert] back on the truck.” According to English, Butler also
discussed with him several options she had been thinking about regarding Hurlbert:
7
(1) try to help Hurlbert find a different job within St. Mary’s system; (2) let
Hurlbert resign and provide him thirty days’ severance pay; or (3) terminate
Hurlbert’s employment. English acknowledged that leave was not discussed as an
option in his conversation with Butler, but explained that he was not then aware of
Hurlbert’s desire to go on leave.
On September 6th, Hurlbert again met with Sosby in order to fill out leave-
related paperwork. According to Hurlbert, Sosby initially agreed to help with the
paperwork, but when Hurlbert returned to Sosby’s office after leaving to use the
restroom, Sosby informed him that plans had changed: Hurlbert could either resign
and receive a month’s severance pay, or be fired.6 Hurlbert described his response
as follows:
“Mr. Sosby, my answer to that is I’m not going to resign. I absolutely
refuse to resign. So I would think by default that I’m terminated, so I
suppose my next step, which I’m fixing to go do, is go clock out and
I’m going to go home. I don’t intend to stay here for free.”
When Hurlbert arrived at his home, however, he received a phone call from Bonnie
Butler. According to Hurlbert, Butler stated that he wasn’t fired and asked him to
come to her office that afternoon. When Hurlbert arrived, Butler and another St.
6
Sosby’s account is somewhat different. He recalls stating to Hurlbert that Dr. Howell
did not recommend that Hurlbert “go back on the truck,” because Hurlbert “seemed to know his
medications but when placed in a situation or under stress–or in a situation of how to use them or
under any type of stress, then he would go in any direction . . . .” Hurlbert could resign and
probably be placed in another hospital position that would be less stressful, or face probable
termination.
8
Mary’s employee named Karen were present. Butler explained that Hurlbert could
no longer serve as a paramedic at St. Mary’s, and Hurlbert then inquired about his
leave:
And I says, “Well, Ms. Butler, I have one question before we keep
going on in this–discussing this anymore.” I figured right then I was
terminated, but I asked her also, I says, “What’s important to me
now,” I says, “the leave isn’t going to happen, is it?” And she says,
“No, it’s not.” Talking about my medical leave that I requested [sic].
Hurlbert then stated that the meeting was over, the refusal of leave was illegal, and
he would be speaking to his attorney.7 Sosby, who was also present during the
meeting, testified that after Hurlbert left, he (Sosby) probably told Butler that
Hurlbert had requested FMLA leave and that Sosby had brought the paperwork
with him.
On September 10th, Sosby received a letter from Hurlbert. The letter
purported to be a “follow up” to Hurlbert’s “request to take FMLA leave as was
recommended by Dr. Howell last week.” Hurlbert explained in the letter that he
had been treated by his family physician, Dr. Samuel Griffin, and that Dr. Griffin
agreed Hurlbert needed to take a 30 day leave of absence because of the mental
7
Butler’s account of the meeting is somewhat different. She testified that she gave
Hurlbert the three options discussed earlier (find another job at St. Mary’s, resign and receive
severance, or be terminated), and that Hurlbert refused to seek another job or resign, and left.
Butler disputes Hurlbert’s claim that he asked about his leave. After Hurlbert left, Butler called
Jeff English to inform him about what had happened. English recalls that he advised her to
follow through with termination, because walking out on a meeting with superiors was
“borderline insubordinate behavior.”
9
stress Hurlbert was under and its impact on his health. Hurlbert attached a note
from Dr. Griffin, dated September 9, 2002, which indicated that Hurlbert was
under Dr. Griffin’s treatment and could return to work on October 9, 2002. In the
letter Hurlbert also expressed his understanding that leave papers had been sent to
Sosby for Hurlbert to complete, but that Hurlbert’s meeting with Butler “prevented
these papers from being completed and submitted.” Hurlbert asked if he needed to
complete any paperwork “to formally request leave,” and requested that his
accrued paid sick and vacation leave be applied during the 30 day period.
Although Sosby and Butler discussed Hurlbert’s letter, Butler advised that
St. Mary’s could not grant leave after Hurlbert had been terminated.8 A corrective
counseling action form dated September 6, 2002, which was stamped received by
human resources on September 9th, appears to have been signed by Butler, Sosby,
and one Karen Joyce. The form states that Hurlbert was discharged due to his
“inability to pass the competency review.” Butler’s name also appears on a
personnel action request form (“PAR”) dated September 6th. Although the PAR
indicates that Hurlbert was terminated, and that termination requires the
completion of certain additional sections on the form (including the reason for
termination), these sections are blank. According to Jeff English, the issuance of
8
Like Butler, Sosby testified that he understood Hurlbert to have been terminated due to
what transpired in Hurlbert’s meeting with Butler, Sosby, and Karen.
10
corrective counseling action form and PAR formalize the termination process, and
human resources will typically prepare a separation notice within a day or two of
receiving the PAR. Although Hurlbert’s PAR is stamped received by human
resources on September 9th, his separation notice was not issued until September
18th, though it was backdated to September 6th.9 The notice identifies the reason
for Hurlbert’s separation as “[f]ailure to meet competency requirements.”
Approximately 11 months after receiving his separation notice, Hurlbert
filed suit against St. Mary’s under the FMLA, pleading for damages and
declaratory and injunctive relief. Hurlbert alleges that St. Mary’s terminated him
following his request for leave, thus interfering with Hurlbert’s right to take FMLA
leave and retaliating against him in violation of the FMLA.
The district court granted St. Mary’s motion for summary judgment on both
claims. Although the court found genuine issues of fact on whether Hurlbert had
requested FMLA leave before or after termination, the court determined that
Hurlbert could not establish statutory entitlement to the leave because: (1) the
stress suffered by Hurlbert was not a “serious health condition” under the statute;
(2) Hurlbert could not link the stress to the period of incapacity caused by his heart
9
On September 12th, Hurlbert’s attorney sent a letter to Butler indicating that Hurlbert
had not received any written notice of termination, and requesting the reasons for termination if
Hurlbert had in fact been terminated. Butler testified that she received this letter, but did not
remember when she received it.
11
attack in 1999; and (3) Hurlbert could not rely on his mother’s health condition
because he had not raised it in his complaint. Without statutory eligibility for
leave, the court concluded, Hurlbert’s interference claim must fail. Hurlbert’s
retaliation claim likewise failed, the district court determined, because Hurlbert
“could not have availed himself of FMLA rights that he did not possess.” Even if
Hurlbert could bring a retaliation claim, the court added, Hurlbert’s only evidence
of pretext was his own subjective belief about the basis for his termination, which
is insufficient to survive summary judgment. Hurlbert appeals both
determinations.
II. STANDARD OF REVIEW
“We review the district court’s grant of summary judgment de novo,
applying the same legal standards that bound the district court, and viewing all
facts and reasonable inferences in the light most favorable to the nonmoving
party.” Cruz v. Publix Super Mkts., Inc., 428 F.3d 1379, 1382 (11th Cir. 2005)
(internal quotes and emphasis omitted). Summary judgment is appropriate where
“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).
12
III. DISCUSSION
The FMLA grants an eligible employee the right to take up to 12 workweeks
of unpaid leave annually for any one or more of several reasons, including
“[b]ecause of 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). The
Act creates a private right of action to seek equitable relief and money damages
against employers who “interfere with, restrain, or deny the exercise of or the
attempt to exercise” FMLA rights. 29 U.S.C. §§ 2615(a)(1), 2617(a); see Nev.
Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 724-25, 123 S. Ct. 1972, 1976, 155
L. Ed. 2d 953 (2003). We have recognized that § 2615(a) creates two types of
claims: “interference claims, in which an employee asserts that his employer
denied or otherwise interfered with his substantive rights under the Act, and
retaliation claims, in which an employee asserts that his employer discriminated
against him because he engaged in activity protected by the Act.” Strickland v.
Water Works and Sewer Bd. of the City of Birmingham, 239 F.3d 1199, 1206 (11th
Cir. 2001) (internal citations omitted).
A. Interference Claim
To establish an interference claim, “an employee need only demonstrate by a
preponderance of the evidence that he was entitled to the benefit denied.” Id. at
1207. The employee need not allege that his employer intended to deny the
13
benefit–“the employer’s motives are irrelevant.” Id. at 1208. Hurlbert contends
the district court erred in determining that he did not suffer from a “serious health
condition,” and thus was not entitled to FMLA leave. As defined in the FMLA,
“serious health condition” means “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.” 29 U.S.C. § 2611(11). Hurlbert points to the fact that he was diagnosed
with anxiety following his 1999 heart attack as evidence of a mental condition
involving “continuing treatment by a health care provider.” We must consider this
argument not only under the language of the statute, but also under pertinent
regulations promulgated by the Department of Labor:
(a) For purposes of FMLA, “serious health condition” entitling an
employee to FMLA leave means an illness, injury, impairment, or
physical or mental condition that involves:
....
(2) Continuing treatment by a health care provider. A serious health
condition involving continuing treatment by a health care provider
includes any one or more of the following:
(i) A period of incapacity (i.e., inability to work, attend school or
perform other regular daily activities due to the serious health
condition, treatment therefor, or recovery therefrom) of more than
three consecutive calendar days, and any subsequent treatment or
period of incapacity relating to the same condition, that also involves:
(A) Treatment two or more times by a health care provider, by a nurse
14
or physician’s assistant under direct supervision of a health care
provider, or by a provider of health care services (e.g., physical
therapist) under orders of, or on referral by, a health care provider; or
(B) Treatment by a health care provider on at least one occasion
which results in a regimen of continuing treatment under the
supervision of the health care provider.
29 C.F.R. § 825.114; see Russell v. North Broward Hosp., 346 F.3d 1335, 1342
(11th Cir. 2003).10
Hurlbert argues that he meets the requirements of § 825.114(a)(2)(i),
because his October 1999 heart attack resulted in a period of incapacity exceeding
three calendar days, and his subsequent treatment for anxiety “related to” that
condition and involved a regimen of continuing treatment, i.e., a Paxil
prescription.11 The district court found this argument unpersuasive, because it
found “no evidence that Hurlbert’s heart attack and that period of incapacity almost
three years prior was sufficiently related to the events at issue.” We agree, in that
Hurlbert’s argument tends to conflate his heart attack and his anxiety. Section
825.114(a)(2)(i) refers to a “period of incapacity . . . due to the serious health
10
Congress authorized the Secretary of Labor to promulgate regulations “necessary to
carry out” the FMLA, 29 U.S.C. § 2654, and “[t]he Secretary’s judgment that a particular
regulation fits within this statutory constraint must be given considerable weight.” Ragsdale v.
Wolverine World Wide, Inc., 535 U.S. 81, 86, 122 S. Ct. 1155, 1160, 152 L. Ed. 2d 167 (2002).
Here, there is no claim that any applicable regulations promulgated by the Secretary are
“arbitrary, capricious, or manifestly contrary to the statute.” Id. (internal quotations omitted).
11
As the district court correctly acknowledged, a regimen of continuing treatment under
§ 825.114(a)(2)(i)(B) includes “a course of prescription medication.” 29 C.F.R. § 825.114(b).
15
condition . . . and any subsequent treatment or period of incapacity relating to the
same condition . . . .” (emphasis omitted). Although Hurlbert was incapacitated by
his heart attack, the summary judgment evidence is not that Hurlbert was
prescribed Paxil for his heart attack, but rather for anxiety, with which he was
separately diagnosed before returning to work. Thus, we are not persuaded that
any treatment for or period of incapacity caused by Hurlbert’s anxiety “relates to”
his heart attack for purposes of § 825.114(a)(2)(i).
Even if this is so, Hurlbert argues, he still meets the conditions described in
§ 825.114(a)(2)(i), because his anxiety was itself the cause of a period of
incapacity–the thirty day period described in Hurlbert’s September 10th letter
(which stated that he needed a thirty day leave of absence due to mental stress) and
evidenced by Dr. Griffin’s note. The district court rejected this argument on the
grounds that Hurlbert was not “incapacitated” within the meaning of § 825.114,
because Hurlbert had continued to work at Rockdale during the thirty day period in
question. In reaching this conclusion, the district court held that Hurlbert’s
showing of incapacity “must be made in accordance with the Americans with
Disabilities Act (ADA), 42 U.S.C. § 12101, et seq., and the regulations at 29
C.F.R. § 1630.2(n), 29 C.F.R. § 825.115.” Under these provisions, the court
reasoned, one must show that he is substantially limited or significantly restricted
in the ability to perform either a class of jobs, or a broad range of jobs in various
16
classes, as compared to an average person with comparable training, skills, and
abilities. While Hurlbert may not have been able to work as a paramedic at St.
Mary’s, the court explained, his work at Rockdale was sufficiently similar to
preclude him from establishing the requisite period of incapacity.
The district court erred when it conducted an incapacity analysis under the
ADA and corresponding regulations. Section 825.115 does refer to the ADA and
29 C.F.R. § 1630.2(n) as relevant for purposes of determining whether an
employee is “unable to perform the functions of the position of the employee”
under 29 U.S.C. § 2612(a)(1)(D), but that statutory inquiry is distinct from the
inquiry into whether an employee has a “serious health condition,” which is where
the term “incapacity” comes into play. See, e.g., Stekloff v. St. John’s Mercy
Health Sys., 218 F.3d 858, 860-62 (8th Cir. 2000). As the Eighth Circuit pointed
out in Stekloff, there may be some parallels between the ADA and FMLA, but
applicable regulations explicitly state that “ADA’s ‘disability’ and [the] FMLA’s
‘serious health condition’ are different concepts, and must be analyzed separately.”
Id. at 861 (quoting 29 C.F.R. § 825.702(b)).
The definition of “incapacity” is set out in § 825.114: “A serious health
condition . . . includes . . . [a] period of incapacity (i.e., inability to work, attend
school or perform other regular daily activities due to the serious health condition,
17
treatment therefor, or recovery therefrom) . . . .” 29 C.F.R. § 825.114(a)(2).12 For
the reasons stated above, however, we decline to identify the meaning of “inability
to work” with the ADA inquiry into whether a person is unable to perform the
“major life activity of working,” 29 C.F.R. § 1630.2(j)(3). Instead, we agree with
the analysis of the Eighth Circuit in Stekloff:
Upon consideration of the declared purposes of the FMLA and its
legislative history, we hold that a demonstration that an employee is
unable to work in his or her current job due to a serious health
condition is enough to show that the employee is incapacitated, even if
that job is the only one the employee is unable to perform.”
218 F.3d at 861 (emphasis added). But cf. 29 C.F.R. § 1630.2(j)(3)(i) (explaining
that under the ADA “[t]he inability to perform a single, particular job does not
constitute a substantial limitation in the major life activity of working”). We
therefore reject St. Mary’s claim that, as a matter of law, Hurlbert could not have
experienced an “inability to work” (in his position at St. Mary’s) within the
meaning of § 825.114(a)(2)(i) when he continued to perform similar duties for
Rockdale.13
St. Mary’s argues that summary judgment was nevertheless appropriate,
because Hurlbert presented no medical evidence of an inability to work for three
12
The foregoing language also appears as part of the definition of “continuing treatment”
in 29 C.F.R. § 825.800, which contains various definitions applicable to Part 825 of Title 29.
13
We further note that there is a genuine issue of fact as to the degree of similarity, if
any, between Hurlbert’s job at St. Mary’s and his job at Rockdale.
18
days or more, or an inability to “perform the functions of his position.”14 Having
reviewed the record in the light most favorable to Hurlbert, including the testimony
of Dr. Howell and Hurlbert’s note from Dr. Griffin, we find that there are genuine
issues of fact precluding summary judgment for St. Mary’s on these grounds. We
must therefore reverse the district court’s grant of summary judgment on
Hurlbert’s interference claim and remand it for further proceedings.
In addition to the theories discussed above, Hurlbert asserted two other
arguments in support of his interference claim. One was that he could satisfy
§ 825.114(a)(2)(iii), because his anxiety amounted to a “chronic serious health
condition” described therein.15 Like Hurlbert’s claim under § 825.114(a)(2)(i), the
14
Title 29 C.F.R. § 825.115 states in relevant part:
An employee is “unable to perform the functions of the position” where the health
care provider finds that the employee is unable to work at all or is unable to perform
any one of the essential functions of the employee’s position within the meaning of
the Americans with Disabilities Act (ADA), 42 USC 12101 et seq., and the
regulations at 29 CFR § 1630.2(n).
15
A serious health condition involving continuing treatment by a health care provider
may include:
(iii) Any period of incapacity or treatment for such incapacity due to a chronic
serious health condition. A chronic serious health condition is one which:
(A) Requires periodic visits for treatment by a health care provider, or by a nurse or
physician’s assistant under direct supervision of a health care provider;
(B) Continues over an extended period of time (including recurring episodes of a
single underlying condition); and
(C) May cause episodic rather than a continuing period of incapacity (e.g., asthma,
diabetes, epilepsy, etc.).
19
district court found this argument unavailing because a chronic serious health
condition requires a “period of incapacity” and, under the district court’s
interpretation of the applicable regulations, Hurlbert’s work at Rockdale precluded
such a finding. As we disagree with that aspect of the district court’s
interpretation, and as St. Mary’s has presented no further argument (other than
those already discussed above) on why § 825.114(a)(2)(iii) could not apply,
Hurlbert is free to reassert this theory on remand. However, the district court
correctly rejected Hurlbert’s final argument–that he was entitled to FMLA leave in
order to care for his mother, who was recovering from heart surgery.
The FMLA authorizes leave “[i]n order to care for the . . . parent, of the
employee, if such . . . parent has a serious health condition.” 29 U.S.C.
§ 2612(a)(1)(C). Hurlbert’s complaint, however, provided no notice whatsoever
that he believed he was entitled to leave on this basis. Indeed, the only person in
the complaint alleged to have a experienced a serious health condition is Hurlbert.
We have previously held that Rule 8(a)’s liberal pleading standard is inapplicable
once discovery has commenced, and that “[a]t the summary judgment stage, the
29 C.F.R. § 825.114(a)(2)(iii). The regulations further note that absences attributable to
incapacity under paragraph (iii) “qualify for FMLA leave even though the employee . . . does not
receive treatment from a health care provider during the absence, and even if the absence does
not last more than three days.” Id. at § 825.114(e).
20
proper procedure for plaintiffs to assert a new claim is to amend the complaint in
accordance with Fed. R. Civ. P. 15(a).” Gilmour v. Gates, McDonald and Co., 382
F.3d 1312, 1315 (11th Cir. 2004) (per curiam). Hurlbert argues that this rule is
inapplicable, because his allegations about his mother do not raise a new “claim,”
and are merely additional facts asserted in support of the interference claim already
pled in his complaint. We disagree. The sole basis for entitlement to FMLA leave
pled in Hurlbert’s interference claim was his alleged serious health condition. See
29 U.S.C. § 2612(a)(1)(D). Thus, the subsequent assertion of an additional,
separate statutory basis for entitlement to leave (caring for a parent’s serious health
condition) effects a fundamental change in the nature of Hurlbert’s interference
claim. See id. at § 2612(a)(1)(C). Having proceeded through discovery without
amending (or seeking to amend) his complaint to reflect that fundamental change,
Hurlbert was not entitled to raise it in the midst of summary judgment. See
Gilmour, 381 F.3d at 1315 (“A plaintiff may not amend [his] complaint through
argument in a brief opposing summary judgment.”).
B. Retaliation Claim
Where, as here, a plaintiff alleges an FMLA retaliation claim without direct
evidence of the employer’s retaliatory intent, we apply the burden shifting
framework established by the Supreme Court in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Strickland, 239
21
F.3d at 1207. To establish a prima facie case of retaliation, the plaintiff must show
that: (1) he engaged in statutorily protected activity; (2) he experienced an adverse
employment action; and (3) there is a causal connection between the protected
activity and the adverse action. See id.; Smith v. BellSouth Telecomms., Inc., 273
F.3d 1303, 1314 (11th Cir. 2001). If the plaintiff makes out a prima facie case, the
burden then shifts to the defendant to articulate a legitimate reason for the adverse
action. Smith, 273 F.3d at 1314. If the defendant does so, the plaintiff must then
show that the defendant’s proffered reason for the adverse action is pretextual. Id.
The district court held that Hurlbert’s retaliation claim failed based on the
court’s determination that Hurlbert failed to establish he was entitled to FMLA
leave in the first place.16 We cannot agree with this reasoning, because we
determined above that Hurlbert did raise genuine issues of material fact on whether
he was entitled to leave. By doing so, Hurlbert likewise raised genuine issues of
material fact on whether he engaged in statutorily protected activity under the
FMLA–and St. Mary’s does not argue that he failed to establish or raise a genuine
issue of material fact on the second and third elements of his prima facie case.
16
We have held that one cannot bring an FMLA retaliation claim based on “an attempt to
exercise a right that is not provided by [the] FMLA,” such as “the right to leave before one
becomes eligible therefor.” Walker v. Elmore County Bd. of Educ., 379 F.3d 1249, 1253 (11th
Cir. 2004). We do not address whether this principle would apply to the instant case, because we
have determined that Hurlbert raised genuine issues of material fact on whether he was entitled
to FMLA leave.
22
Hurlbert’s termination is certainly an adverse employment action, and the facts,
when read in the light most favorable to Hurlbert, indicate that his termination
occurred within days of his request for leave. Close temporal proximity between
protected conduct and an adverse employment action is generally “sufficient
circumstantial evidence to create a genuine issue of material fact of a causal
connection.” Brungart v. Bellsouth Telecomms., Inc., 231 F.3d 791, 799 (11th Cir.
2000). An exception to this rule applies where there is “unrebutted evidence that
the decision maker did not have knowledge that the employee engaged in protected
conduct,” id., but genuine issues of material fact preclude the application of this
exception to the instant case. The summary judgment evidence, when considered
in the light most favorable to Hurlbert, suggests that Jeff Sosby, Bonnie Butler, and
Jeff English were all involved in the decision to terminate Hurlbert. It appears that
by September 4th, Sosby was aware of Hurlbert’s desire to take leave–and that
Sosby was also present on September 6th when Hurlbert claims to have again
raised the issue of leave in his meeting with Butler, who then conferred with Sosby
and contacted English. Although St. Mary’s claims that Hurlbert was terminated
no later than September 6th, a number of irregularities in the termination process
call this claim into question. See infra. Thus, a jury could reasonably infer that the
person who decided to terminate Hurlbert (or who made a critical recommendation
on the issue) had prior knowledge of his request for leave.
23
The district court, however, also found that Hurlbert had failed to present
evidence of pretext sufficient to rebut St. Mary’s proffered reasons for his
termination. St. Mary’s reasons, as outlined by the district court, were Hurlbert’s
disciplinary status, unacceptable job performance, and the results of his two skills
evaluations. In response to these, the court found, Hurlbert had presented nothing
more than “his own explanations of his job performance and why [St. Mary’s]
decisions were unfair to [him] under those circumstances.” We disagree, and hold
that Hurlbert did present evidence of pretext sufficient to preclude summary
judgment.
To show pretext, a plaintiff must “‘come forward with evidence, including
the previously produced evidence establishing the prima facie case, sufficient to
permit a reasonable factfinder to conclude that the reasons given by the employer
were not the real reasons for the adverse employment decision.’” Chapman v. AI
Transp., 229 F.3d 1012, 1024 (11th Cir. 2000) (en banc) (quoting Combs v.
Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997)). The close temporal
proximity between Hurlbert’s request for leave and his termination–no more than
two weeks, under the broadest reading of the facts–is evidence of pretext, though
probably insufficient to establish pretext by itself. See Wascura v. City of South
Miami, 257 F.3d 1238, 1244-45 (11th Cir. 2001) (holding that three and one-half
month period between employee’s protected activity and her termination was,
24
standing alone, insufficient to establish pretext). Hurlbert’s evidence of temporal
proximity, however, does not stand alone.
We have recognized that an employer’s failure to articulate clearly and
consistently the reason for an employee’s discharge may serve as evidence of
pretext. See id. at 1245-46; Donnellon v. Fruehauf Corp., 794 F.2d 598, 601-02
(11th Cir. 1986). Here, the corrective counseling statement and separation notice
documenting Hurlbert’s termination make no reference to his disciplinary status or
job performance, and identify the sole reason for his termination as an “inability to
pass the competency review” or “[f]ailure to meet competency requirements.”
Furthermore, Jeff English testified that he advised Butler to follow through with
termination because of Hurlbert’s “borderline insubordinate behavior” in walking
out of the September 6th meeting with her, yet no charge of insubordination
appears in the foregoing termination documents.
Similarly, an employer’s deviation from its own standard procedures may
serve as evidence of pretext. See Bass v. Bd. of County Com’rs, Orange County,
Fla., 256 F.3d 1095, 1108 (11th Cir. 2001) (stating that employer’s violation of its
own hiring procedure could be evidence of pretext); accord Rudin v. Lincoln Land
Community Coll, 420 F.3d 712, 727 (7th Cir. 2005) (“An employer’s failure to
follow its own internal employment procedures can constitute evidence of
pretext.”). Here, English indicated that St. Mary’s usually prepares separation
25
notices within a day or two of termination, but Hurlbert’s separation notice was not
issued until September 18th–twelve days after St. Mary’s claims he was
terminated, and six days after his attorney sent Butler a letter demanding to know
the basis for Hurlbert’s termination.17
Such inconsistencies are inconsequential, St. Mary’s argues, because the
decision to terminate Hurlbert had been set in motion before Butler learned of
Hurlbert’s request for FMLA leave. When read in the light most favorable to
Hurlbert, however, the summary judgment evidence indicates that there is at least a
genuine issue of material fact on this point. Furthermore, although St. Mary’s
notes that Butler first ordered Hurlbert to submit to a skills evaluation back in
August of 2002 (well before Hurlbert claims to have requested leave), this does not
demonstrate that the decision to terminate him was itself made before the request
for leave, or that termination would have occurred regardless of the request.
Hurlbert presented evidence of pretext sufficient to preclude summary judgment on
his retaliation claim.
IV. CONCLUSION
We hold that the district court erred in determining that Hurlbert failed to
17
In addition, the PAR accompanying Hurlbert’s final corrective counseling statement is
incomplete on its face–the reasons for Hurlbert’s termination were not listed as required by the
directions on the form itself.
26
raise a genuine issue of material fact on whether he suffered from a “serious health
condition,” as defined by the FMLA and applicable regulations. We further hold
that the district court erred in determining that Hurlbert failed to present evidence
of pretext sufficient to preclude summary judgment on his retaliation claim.
Accordingly, the district court’s order granting summary judgment on Hurlbert’s
interference and retaliation claims is REVERSED, and the case is REMANDED
for further proceedings consistent with this opinion.
27