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Evans v. Cooperative Response Center, Inc.

United States District Court, D. Minnesota

June 18, 2019

Tori Evans, Plaintiff,
Cooperative Response Center, Inc., Defendant.

          Stephen C. Fiebiger, Esq., Stephen C. Fiebiger Law Office, Chartered, Burnsville, MN, on behalf of Plaintiff.

          Gregory J. Stenmoe, Esq., and Kathryn M. Short, Esq., Briggs and Morgan, P.A., Minneapolis, MN, on behalf of Defendant.




         On March 19, 2019, the undersigned United States District Judge heard oral argument on Defendant Cooperative Response Center, Inc.'s (“CRC”) Motion for Summary Judgment [Docket No. 19]. Plaintiff Tori Evans (“Evans”) alleges CRC terminated her employment because of her autoimmune disorder in violation of the Family Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601-54, and the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101-12213. CRC denies the allegations and argues Evans was terminated for excessive unexcused absences. For the reasons set forth below, CRC's motion is granted.


         A. Evans' Employment with CRC

         CRC, an alarm monitoring center, services electric utilities and monitors security and medical alarms throughout the United States. Evans Dep. [Docket No. 33, Attach. 1] at 12-13. Evans became an employee of CRC in 2004. Id. at 12. During the time period relevant to this lawsuit, she was the only administrative assistant in CRC's Austin, Minnesota office. Id. at 13, 15-16; Wylie Dep. [Docket No. 33, Attach. 26] at 11. Evans' duties included working at the front reception desk, answering phones, managing mail, monitoring office equipment, assisting the accounting department with check deposits and monthly billing, and updating telephone numbers for rural electric co-ops. Evans Dep. 16-17; Wylie Dep. at 11-12; Ex. E.[1] Attendance was “key” in Evans' position because many of her duties could not wait for her return and had to be completed by other employees. Ex. JJ; Wylie Dep. at 78-79. When Evans was absent, her duties were mostly performed by her supervisor, Kerry Wylie. Wylie Dep. at 78-79; Evans Dep. at 21, 47. Substituting for Evans would require Wylie to defer her other responsibilities. Wylie Dep. at 79.

         B. CRC's Policies

         CRC provides copies of its policies to all new employees, and sends new or updated policies to all current employees as the policies are implemented. Ex. D at 71. CRC's policies governing attendance and FMLA leave are relevant to this lawsuit.

         1. Attendance-Related Policies

         CRC maintains a “no-fault” “Attendance/Punctuality” policy which assigns employees “event points” (sometimes called “occurrences”) when they are absent from work without prior notice. See generally Ex. G (“Attendance Policy”). The Attendance Policy provides for the following actions based on the number of events incurred:

• 4-6 Events = Employee Counseling
• 7 Events = Verbal Warning
• 8 Events = Written Warning
• 9 Events = Final Written Warning with or without suspension
• 10 Events = Termination

Id. at 330. As the policy states, an employee who incurs 10 event points in a 12-month period is terminated. Id. The Attendance Policy operates on a rolling 12-month basis, meaning that 12 months after an employee incurs a point, the point “rolls off” or no longer counts as part of an employee's attendance record. Employees do not incur event points when their unplanned absences are part of an approved FMLA leave. Id. at 329.

         CRC also has an “Employee Conduct and Work Rules” policy that defines “unacceptable conduct” to include “[r]epeated tardiness or absence, ” “[f]ailure to notify the appropriate supervisor” of an absence before a shift, and “unauthorized absence without approved leave.” Ex. F (“Employee Conduct Policy”) at 1133.

         In 2014, approximately two years before Evans became sick and in need of FMLA leave, she received two warnings for “excessive unacceptable attendance.” Evans Dep. at 40; Exs. O, P. The first warning occurred in February 2014, when Evans received a written warning that she had incurred 8 event points in the previous 12 months. Ex. O. The second warning was in December 2014, when she was warned that she had incurred 7 event points in the previous 12 months. Ex. P. Both warnings alerted Evans that “[a]ny pattern of poor attendance has a direct impact on the service CRC is able to provide to our members. This also results in an additional burden placed on fellow employees which is also unacceptable.” Exs. O, P. The warnings further stated that if Evans' performance did not show “immediate and sustained improvement” she would be subject to discipline, “up to and including possible termination.” Id.

         2. FMLA Leave Policy

         CRC's policy governing the use of FMLA leave entitles employees to request up to 12 weeks of intermittent FMLA leave annually to tend to serious health conditions. See generally Ex. H (“2015 FMLA Policy”); Ex. I (“2017 FMLA Policy”).[2] Yearly FMLA usage is calculated on a “rolling 12-month period measured backward from the date an employee uses any leave under this policy.” 2015 FMLA Policy at 974 (emphasis in original); see also 2017 FMLA Policy at 231 (describing “‘rolling' 12-month period”).

         Employees in need of intermittent FMLA leave must obtain a certification of their health condition from their health care provider. The certification must include a statement of medical necessity for taking intermittent leave, as well as the dates and duration of treatment. 2015 FMLA Policy at 976. The certification form used by CRC asks the health care provider to estimate how much work time the employee will need to miss for treatment appointments and flare-ups of the employee's condition. See, e.g., Exs. J-M. CRC then approves the employee for intermittent FMLA leave up to the maximum certified by the health care provider. Ex. D at 65.

         CRC employees who are approved for intermittent FMLA leave must follow CRC's notification procedure. The notification procedure requires employees to (1) give verbal notice to their immediate supervisor or manager before their work shift that they will not be reporting to work due to FMLA, and (2) call Human Resources and advise them that they wish to use FMLA leave. 2015 FMLA Policy at 977; 2017 FMLA Policy at 233.

         C. Evans' Illness, Absences and FMLA Leave

         In January 2016, Evans began developing mouth sores. Evans Dep. 32, 56. By April 2016, her symptoms worsened and included chronic diarrhea and severe anemia. Ex. J at 104. She was hospitalized from April 5-7, 2016 and required additonal time off to recover. Ex. Q. CRC gave her physician, Dr. Greg Angstman (“Dr. Angstman”) FMLA paperwork to complete regarding her work absences, and CRC approved her for both continuous and intermittent FMLA leave throughout the spring based on her doctor's certifications. See Exs. J-L, Q, R, Ex. 40.[3]

         In June 2016, Evans was diagnosed with an autoimmune disorder called reactive arthritis. Ex. L at 145. CRC requested her doctor to complete an FMLA medical certification form to document Evans' serious health condition, describe its symptoms, and estimate how much FMLA time she would need to attend appointments and recover from episodic flare-ups of the disease. Ex. S at 11; Ex. L. Dr. Angstman certified that Evans had been “diagnosed with autoimmune/reactive arthritis leading to GI illness, oral lesions, and joint pains.” Ex. L at 145. He estimated Evans would need up to four hours per day, once or twice a month for appointments, and would need one to two full days of leave per month for flare-ups. Id. at 146. He signed the form on July 8, 2016 and returned it to CRC. Id. at 147.

         Consistent with Dr. Angstman's medical certification, CRC approved Evans for two full days and two half days of intermittent FMLA leave per month. Ex. S. The FMLA leave covered “autoimmune/reactive arthritis, GI illness, oral lesions, and joint pains and associated doctor appointments.” Ex. S. at 10.

         CRC notified Evans that she had been approved for intermittent FMLA leave in a July 20, 2016 email. Id. The email specified the monthly amount of approved leave as well as the condition and symptoms for the leave. Evans was informed that: “Any absences above and beyond the FMLA approved frequency will be considered regular absences and will be eligible for attendance points per policy.” Id.

         The email also outlined the procedures Evans was to follow when using her leave:

If you have a need for intermittent FMLA leave (late, tardy, leave early, absent, etc.):
1. You must relay to your manager that the reason for your absence is FMLA related prior to your absence, using the ...

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