DORRIS

v.

WALMART INC

Plaintiff Nicola Dorris filed suit against her former employer, Defendant Walmart, Inc. (“Walmart”), after she was terminated for unexcused absences, alleging claims of interference and retaliation under the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601, et seq.¹ Now pending is Walmart’s Motion for Summary Judgment. ECF No. 33. Having fully considered the parties’ arguments and the record, the Court finds that the motion is due to be granted.

I. Background2

Dorris began her employment with Walmart in 1988 in the accounting office at Sam’s Club in Tallahassee, Florida. Over the next 25 years, she worked at various Walmart locations in Florida and Alabama in the accounting office, and later as a claims supervisor. She transferred to Store No. 3119 in Panama City, Florida in

February 2013, and was promoted to Department Manager shortly thereafter. Dorris stated by affidavit that in 2015, she was diagnosed with a chronic insulin resistance condition, which causes immunodeficiency, exacerbates common illnesses, and requires her to seek medical treatment approximately twice each year. On March

16, 2017, Walmart terminated Dorris’s employment due to excessive absenteeism after she accumulated nine unexcused absences. Pursuant to Walmart’s attendance policy, an employee is subject to termination for nine or more “occurrences” in a rolling six-month period. See ECF No. 31-30 at 2. Each unauthorized absence is an “occurrence,” whereas an authorized absence, such as an approved leave of absence, does not count as an occurrence. See id. Employees are required to call in and report an absence on

Walmart’s Interactive Voice Response (IVR) phone system, but this does not excuse

18-23 (Depo. Regina Hosey, Market HR Manager). Dorris acknowledged that she was aware of the policy allowing termination for nine occurrences. See ECF No. 31-21 at 24-26.3

Pursuant to Walmart’s FMLA policy, FMLA leave requests must be made on Walmartone.com or by phone to Sedgwick (Walmart’s third-party leave administrator, and Sedgwick determines FMLA eligibility. ECF No. 31-5. This policy explains that an FMLA leave of absence may be taken on a continuous or intermittent basis, defining each and including that intermittent FMLA leave may be taken if an employee “cannot perform the essential functions of [her] position because of a chronic serious health condition.” See id. at 1-2. If Sedgwick determines that an employee could be eligible for FMLA leave, it issues a Notice of Eligibility and Rights & Responsibilities and provides the employee with the appropriate certification form(s) needed to fully evaluate the leave request. The employee must return the completed certification forms to Sedgwick by a date

It is undisputed that Dorris was absent due to illness on nine occasions within a six-month period: October⁷, 2016; October 14, 2016; November 28-29, 2016; January 19, 2017; January 23, 2017; February¹⁰, 2017; and March 13-14, 2017.

Each time, Dorris had called in sick on Walmart’s IVR phone system, but she did not seek FMLA leave for these absences. Dorris claims that her FMLA rights were first violated on March 15, 2015, when she returned to work and was not advised that she could potentially be eligible for FMLA leave. ECF No. 31-21 at 30-31.

Dorris explained that she became ill with influenza on March 11, which was a scheduled day off. She called in sick on March 13 and 14, days when she was scheduled to work. She testified by deposition that her chronic insulin resistance condition impacts her immune system and thus worsened her flu symptoms. ECF No. ECF No. 31-21 at 57. Although she was still sick, she returned and worked a full shift on March 15. Dorris said when she returned on the 15th, she “explained the nature of [her] illness to Assistant Manager [Lakiesha] Hill, who only referred [her] to the personnel department, and did not provide [her] with any information about requesting FMLA leave.” ECF No. 37-1 at 4-5 (Dorris Affid.). Dorris said she spoke with Rotesha Smith in the personnel department that day and informed her she was “still sick” and could not be seen by her doctor until Monday, March 20, 2017. ECF No. 37-1 at 5. Dorris stated: “I asked Smith if there was anything further I needed to explain my absence, but Smith told me no and that I would be okay.” Id.

Dorris stated, “At no time did Smith explain that I could be eligible for FMLA leave because of my medical condition, and Smith did not advise me as to the process for requesting FMLA leave.” Id.

Dorris admitted during her deposition testimony that she did not mention her chronic insulin resistance condition to Hill or Smith when she returned to work on March 15 or on the following day when she was terminated.⁴ ECF No. 31-21 at 58- 59. She maintains nonetheless that Hill and Smith each knew of her condition,

II. Discussion

Summary judgment is appropriate where the record shows no genuine disputes of material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A fact is “material” if, “under the applicable substantive law, it might affect the outcome of the case.” Hickson Corp. v. N. Crossarm Co., 357 F. 3d 1256, 1259 (11th Cir. 2004). A dispute of material fact is “genuine” if the record, taken as a whole, could persuade a reasonable jury to return a verdict for the nonmoving party. See id. at 1260; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding a motion for summary judgment, courts view the evidence in the light most favorable to the nonmoving party, resolving all ambiguities and drawing all justifiable inferences in favor of that party but eschewing determinations of credibility and the weighing of evidence, which are functions properly left to a jury.

See Frederick v. Sprint/United Mgm’t Co., 246 F. 3d 1305, 1311 (11th Cir. 2001). The moving party bears the initial burden of providing the basis for its motion and identifying materials evidencing an absence of a genuine dispute of material fact. See Celotex, 477 U.S. at 323; Rice-Lamar v. City of Ft. Lauderdale, Fla., 232 F. 3d 836, 840 (11th Cir. 2000). To defeat a properly supported motion for summary judgment, the nonmoving party must “go beyond the pleadings” and identify “specific facts” in the record showing that there is a genuine dispute of material fact for trial. Celotex, 477 U.S. at 324. This requires identifying more than “[a] mere scintilla of evidence” in support of the non-moving party’s claim; “there must be enough of a showing that the jury could reasonably find for that party.” Allen v. Tyson Foods, Inc., 121 F. 3d 642, 646 (11th Cir. 1997) (citing Anderson, 477 U.S. at 252). The self-serving statement of a litigant can defeat summary judgment if it is based on personal knowledge and is not conclusory in nature. See United States v. Stein, 881 F. 3d 853, 857 (11th Cir. 2018). Summary judgment is warranted if the nonmoving party “fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.

A. Interference Claim

To establish a claim of FMLA interference, an employee must “demonstrate by a preponderance of the evidence that she was entitled to an FMLA benefit and her employer denied her that benefit.” Munoz v. Selig Enters., Inc. 981 F. 3d 1265, 1274 (11th Cir. 2020); see also Hurlbert v. St. Mary’s Health Care Sys., Inc., 439

F. 3d 1286, 1293 (11th Cir. 2006). A showing of intent is not required because “the employer’s motives are irrelevant.” Strickland v. Water Works & Sewer Bd. of Birmingham, 239 F. 3d 1199, 1208 (11th Cir. 2001). Also, the plaintiff must prove that she was prejudiced by the alleged FMLA interference. See Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002). To be entitled to FMLA leave based on illness, an employee must have a “serious health condition,” 29 U.S.C. § 2612(a)(1)(D), which 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,” 29 U.S.C. § 2611. A “chronic condition” qualifies as “continuing treatment” entitling the use of FMLA leave even for periods of absence that do not last more than three consecutive days. 29 C.F.R. § 825.115(c). Specifically: A chronic serious health condition is one which: (1) Requires periodic visits (defined as at least twice a year) for treatment by a health care provider, or by a nurse under direct supervision of a health care provider; (2) Continues over an extended period of time (including recurring episodes of a single underlying condition); and (3) May cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.).

29 C.F.R. § 825.115(c). When the need for leave is unforeseeable, and the employee has not previously requested FMLA leave for the particular condition, the employee does not need to reference the FMLA but must provide both the usual timely notice to the employer and, “as soon as practicable,” provide notice of the facts and circumstances with “sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request.” 29 C.F.R. § 825.303(a), (b). “Once an employee gives sufficient notice to her employer that potentially FMLA-qualifying leave is needed,” the employer is then obligated to ascertain whether the absence qualifies. Cruz v. Publix Super Markets, Inc., 428 F. 3d 1379, 1383 (11th Cir. 2005). Regulations require that if the employee requests FMLA leave, or the employer acquires knowledge that a leave request “may be for an FMLA-qualifying reason, the employer must notify the employee of the employee’s eligibility to take FMLA leave within five business days, absent extenuating circumstances.” 29 C.F.R. § 825.300(b). An employer’s failure to notify an employee about her right to take FMLA leave consistent with the regulation, “may constitute an interference” claim. Munoz, 981 F. 3d 1265, 1274 (quoting 29 C.F.R. § 825.300(e)). However, absent complications, ordinary illnesses such as the common cold or flu do not qualify an individual for FMLA leave, see 29 C.F.R. § 825.113(d), and simply calling in “sick,” without more information, “will not be considered sufficient notice to trigger an employer’s obligations under the Act.” 29 C.F.R. § 825.303(b); see also Collins v. NTN–Bower Corp., 272 F. 3d 1006, 1009 (7th Cir. 2001) (noting a mere reference to being sick “did not suggest to the employer that the medical condition might be serious or that the FMLA otherwise could be applicable”). On careful review of the arguments and the record, the Court concludes that

Walmart is entitled to summary judgment. First, Dorris has not established that she suffers from a serious medical condition. While she testified that she was diagnosed with chronic insulin resistance in 2015, her unsupported statement is the only evidence. She never previously requested FMLA leave on this basis, and no medical evidence in the record supports the existence of such a diagnosis. See Blake v. City of Montgomery, Alabama, No. 2:19-CV-243-RAH, 2020 WL 6318504, at *6 (M.D. Ala. Oct. 6, 2020) (plaintiff’s failure to present any evidence of a diagnosis of a qualifying medical condition—either before or after the need for leave arose—was fatal to the interference claim). Second, even assuming a qualifying condition exists based on Dorris’s testimony and affidavit, see Feliciano v. City of Miami Beach, 707 F. 3d 1244, 1253 (11th Cir. 2013) (self-serving sworn statements are not to be disregarded at the summary judgment stage), the notice given must be sufficient for Walmart to have concluded that her absence was due to an FMLA qualifying reason. See Avila v. Childers, 212 F. Supp. 3d 1182, 1192 (N.D. Fla. 2016) (stating, “an employer’s responsibility for further inquiry arises only after the employee provides a reason to believe the employee is entitled to FMLA leave”). Determining whether the employee gave sufficient notice is a mixed question of fact and law, “with the factfinder determining what notice was given and the court deciding whether such notice was legally sufficient.” Blake, 2020 WL 6318504, at *8 (quoting Cooper v. Walker Cnty. E-911, No. 6:16-CV-1746-TMP, 2018 WL 3585217, at *15 (N.D. Ala. July 26, 2018)). Viewing the facts in the light most favorable to Dorris, she did not give sufficient notice that her absences on March 13 and 14 were potentially for a serious chronic medical condition.⁸ She admittedly had the flu and called in sick, but calling in sick is insufficient notice of a serious medical condition. See Cruz, 428 F. 3d at 1385 (stating, “[f]or example, if you have brain cancer but just tell your employer

and she returned to work the third day and worked an entire shift.⁹ There is no evidence that she mentioned a chronic medical condition to Hill or Smith either on the day she returned or the day she was terminated.

Dorris argues that her managers knew of her serious condition because in 2015 or possibly early 2016 after returning from surgery, she had referenced her chronic insulin resistance condition in general conversations with Hill or Smith. The Court finds this inadequate. It would be unreasonable to consider a casual conversation in

2015 and/or early 2016 in relation to her surgeries and a year before the absence that

While there was an issue in Willmore-Cochran of whether the plaintiff gave adequate notice of an FMLA-qualifying condition as a reason for her absence,¹⁰ the court expressly found it unnecessary to resolve the question. The court concluded instead that a question of fact existed on the plaintiff’s alternate claim that any deficiency in her notice was excused by Walmart’s overarching failure to provide employees with general notice that the FMLA provides intermittent leave. See id. at 1248-49. That precise claim has not been raised in this case nor could it be sustained on this record because, despite Dorris’s testimony that she was unaware of the possibility of intermittent leave, the record clearly shows that Walmart’s FMLA

1436 (11th Cir. 1997)). The Court concludes she did not. Walmart is therefore entitled to summary judgment on the interference claim.

B. Retaliation Claim

To establish a claim of retaliation based on FMLA rights, the plaintiff must demonstrate that the employer “intentionally discriminated against h[er] in the form of an adverse employment action for having exercised an FMLA right.” Jones v. Gulf Coast Health Care of Delaware, LLC, 854 F. 3d 1261, 1270 (11th Cir. 2017) (quoting Strickland v. Water Works & Sewer Bd. of City of Birmingham, 239 F. 3d 1199, 1207 (11th Cir. 2001)). The requires proof that the employer’s actions “were motivated by an impermissible retaliatory or discriminatory animus.” Id. (quoting King v. Preferred Tech. Grp., 166 F. 3d 887, 891 (7th Cir. 1999)). The burden-

shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) applies to FMLA retaliation claims based on circumstantial evidence. See id. at 1271. Walmart asserts that Dorris expressly disavowed any claim based on retaliation in her deposition by testifying that she was not terminated for taking

FMLA leave in 2015 and that she was not claiming she was treated differently than others because she took FMLA leave. See ECF No. 31-21 at 37-38, 65. The Court agrees. Moreover, Dorris’s response to the summary judgment motion makes no argument regarding the retaliation claim, thus the claim appears to be waived, and she presents no record citation or any evidence to raise a question of fact on the issue. Thus, Walmart is entitled to summary judgment on the retaliation claim. Accordingly, Walmart’s Motion for Summary Judgment, ECF No. 33, is

GRANTED. The Clerk is entitled to enter judgment accordingly, tax costs against the Plaintiff, and close the file. DONE AND ORDERED this 28th day of March 2021.

M. Casey Rodgers

M. CASEY RODGERS

UNITED STATES DISTRICT JUDGE