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Dulany v. Brennan

United States District Court, N.D. Oklahoma

March 14, 2017

DIANA DULANY, Plaintiff,
v.
MEGAN BRENNAN, in her official capacity as Postmaster General of the United States Postal Service, UNITED STATES POSTAL SERVICE, Defendant.

          OPINION AND ORDER

          JAMES H. PAYNE, UNITED STATES DISTRICT JUDGE

         Now before the Court is defendant's motion for summary judgement (Dkt. 27). Defendant seeks summary judgment arguing plaintiff fails to establish a prima facie case of interference with her Family Medical Leave Act (“FMLA”) rights, or in the alternative, that plaintiff fails to demonstrate pretext with respect to her retaliation claim. Id. Plaintiff responded by claiming that defendant interfered with her FMLA rights and retaliated against her. (Dkt. 36 at 17-22). Plaintiff further alleges she was constructively discharged. (Dkt. 36 at 22-26).

         I. Factual Background

         Plaintiff Diana Dulany was employed by the United States Postal Service (“USPS”) as a supervisor at the Tulsa Plant and Distribution Center (“Plant”) until July 29, 2016 when she voluntarily resigned. (Dkt. 24 at 2, 8). She worked at the USPS for approximately 19 years. (Dkt. 27-1 at 8). Thomas Mullins was Manager Distribution Operations (“MDO”) at the Plant and plaintiff's supervisor. (Dkt. 27-1 at 21-22, 25). Scott D. Tosch was the Plant Manager, and Mr. Mullins' supervisor. (Dkt. 27-1 at 37).

         Plaintiff had two separate FMLA claims. On June 2, 2014, plaintiff submitted a Certification of Health Care Provider for Family Member's Serious Health Condition, Form WH-380-F, in order to obtain FMLA status concerning care for plaintiff's mother. (Dkt. 27-1 at 200-204). Plaintiff was approved FMLA for dependent care in case number ending 0840. (Dkt. 27-1 at 29, 205-206). Designation Notice, dated June 17, 2014, was sent to plaintiff indicating her leave was approved with a “Frequency: 1 time per month, Duration, up to 5 days per episode to care for mother.” (Dkt. 27-1 at 207). Plaintiff was certified for FMLA through July 29, 2016, when she voluntarily resigned from the Post Office. (Dkt. 27-1 at 32). Between May 27, 2014 and July 22, 2016, plaintiff requested and obtained FMLA leave under case number ending 0840 approximately 49 times. (Dkt. 27-1 at 34; Dkt. 27-1 at 208-215).

         On April 16, 2015, plaintiff submitted a Certification of Health Care Provider for Employee's Serious Health Condition, Form WH-380-E, in order to obtain FMLA for her own medical condition (Dkt. 27-1 at 216-220). Plaintiff was approved FMLA in case number ending 4761. (Dkt. 27-1 at 221-222). On April 27, 2015, a Designation Notice was sent to plaintiff indicating her leave was approved with a “frequency 1-2 times per month duration 2-3 days per episode.” (Dkt. 27-1 at 223). Plaintiff was certified for FMLA leave through the time she voluntarily resigned. (Dkt. 27-1 at 43). Between April 9, 2015, and July 27, 2016, plaintiff requested and obtained FMLA leave under case number ending 4761 approximately 47 times. (Dkt. 27-1 at 45, 224-232).

         FMLA eligibility at the USPS is determined by the HRSSC in Greensboro, North Carolina. (Dkt. 27-1 at 16, 206). An employee applies for FMLA by sending in a certification form from a health care provider to establish the need for leave. (Dkt. 27-1 at 16, 200-204, 216-220). Once approved, an individual can request FMLA by using an automated telephone system. (Dkt. 27-1 at 17-18). An individual calls an 800 telephone number and follows automated prompts, which instructs the individual to enter the duration, type of leave requested, and the case number. (Dkt. 27-1 at 17, 59-60). The individual is then provided a confirmation number. (Dkt. 27-1 at 18-19). Local supervisors have no involvement in the process. (Dkt. 27-1 at 20). Plaintiff was never denied FMLA when requested. (Dkt. 27-1 at 33, 45, 55).[1]

         The defendant's Employee and Labor Manual (“ELM”) contains various policies and procedures that employees are required to follow, including ELM 515.42 which states that “Absences that qualify as FMLA leave may be charged as annual leave, sick leave, continuation of pay, or leave without pay, or a combination of these. Leave is charged consistent with current leave policies and applicable collective bargaining agreements.” ELM 515.533 states that “An employee requesting FMLA-covered time off because of his or her own incapacitation must satisfy the documentation requirements for sick leave in 513.31 through 513.38 in order to receive paid leave during the absence.” FMLA only provides for unpaid leave. The determination of whether the absence qualifies as paid leave is a separate issue. (Dkt. 36 at 169).

         October 13, Letter of Warning (LOW)

         Beginning in the Fall of 2015, plaintiff began to have minor disciplinary problems at work related to her failure to follow instructions. Four separate letter of warnings were issued by the defendant and placed in plaintiff's employee file. The first involved two incidences in September 2015. On September 24, 2015, MDO Mullins sent plaintiff an email stating “I need you to work Sep. 28. Thanks.” (Dkt. 27-1 at 242). MDO Mullins needed plaintiff to work on her normal day off (September 28, 2015) due to the operational needs at the Plant. (Dkt. 27-1 at 240). On September 25, 2015, plaintiff replied “Can't. Sorry.” (Dkt. 27-1 at 242). Plaintiff did not come into work on September 28, 2015, nor did she request FMLA for that day. (Dkt. 27-1 at 64). On September 28, 2015, plaintiff was requested to report to work on September 29, 2015, due to the operational needs at the Plant. (Dkt. 27-1 at 240). September 29, 2015, was plaintiff's scheduled day off. (Dkt. 27-1 at 64). Plaintiff returned a text indicating she was not going to come to work on September 29, 2015. (Dkt. 27-1 at 240). Plaintiff did not work on September 29, 2015, nor did she request FMLA for that day. (Dkt. 27-1 at 64).

         On or about October 13, 2015, plaintiff received a Letter of Warning (LOW) for failure to follow directions by not reporting to work on either September 28th, or 29th, 2015. (Dkt. 27-1 at 63; 240). The factual allegations in the LOW were accurate. (Dkt. 27-1 at 63-64). Plaintiff did not suffer any kind of damages or losses as a result of the LOW. (Dkt. 27-1 at 65-66).

         October 20, 2015 LOW and meeting regarding the October LOWs.

         On or about October 22, 2015, plaintiff received a LOW, dated October 20, 2015, for failure to follow instructions. (Dkt. 27-1 at 69, 243). The letter contained fifteen separate dates when plaintiff either left work early or reported late. (Dkt. 27-1 at 243). Plaintiff admitted she did not request FMLA leave for any of the dates included in the LOW. (Dkt. 27-1 at 69). Plaintiff did not receive any punishment beyond the LOW. (Dkt. 27-1 at 73-74).

         At plaintiff's request, she met with Mr. Mullins and Andy Jones, plaintiff's representative from plaintiff's union, the National Association of Postal Supervisors, to discuss the October 13 and October 20th LOWs. (Dkt. 27-1 at 65, 71-72). As part of the meeting, Mr. Mullins offered to remove one of the LOWs from plaintiff's personnel file. Id. Plaintiff did not accept this offer. (Dkt. 27-1 at 71).

         December 2, 2015 LOW.

         On or about December 2, 2015, plaintiff received a Notice of Proposed Letter of Warning in Lieu of a 7 Calendar Day Suspension. (Dkt. 27-1 at 245-247). The LOW contained two separate specifications, one for failing to work on November 16, 2015, and one for failing to attend an investigative interview. (Dkt. 27-1 at 245-247). The LOW indicated that plaintiff could appeal or seek mediation, but she chose not to contest the LOW in any way. (Dkt. 27-1 at 78, 245-246). The LOW had nothing to do with FMLA. (Dkt. 27-1 at 77). Plaintiff did not receive any punishment beyond the LOW. (Dkt. 27-1 at 77-78).

         December absence.

         On December 3, 2015, plaintiff submitted a PS Form 3971, Request for Notification of Absence, seeking sick leave for the period December 3, 2015 through December 24, 2015. (Dkt. 27-1 at 86-87, 248). Attached to the Form 3971 was a note from Susan Waters, a licensed professional counselor. (Dkt. 27-1 at 249). Neither the PS Form 3971, nor the Waters note, requested FMLA. Plaintiff did not return to work until January 6, 2016. (Dkt. 27-1 at 88).

         On December 11, 2015, defendant sent plaintiff an Absence Inquiry letter concerning her absence. (Dkt. 27-1 at 250-260). Attached to the letter was WHD Publication 1420, Form WH-380-E, and Form WH-380-F, which are documents to facilitate the filing of an FMLA. Id. In particular, Form WH-380-E is the Certification of Health Care Provider for Employee's Serious Health Condition (Family and Medical Leave Act). (Dkt. 27-1 at 253-256). The letter indicated, “If your absence falls within the FMLA provisions please submit documentation in accordance with the instructions contained in this notice.” (Dkt. 27-1 at 251). Plaintiff admitted she did not request FMLA for the December 2015 absence, nor seek another FMLA case. (Dkt. 27-1 at 87, 91, 101-102, 104). Plaintiff did not provide any additional information to the defendant prior to her return to work. (Dkt. 27-1 at 102).

         On or about January 6, 2016, plaintiff returned to work and provided the defendant with a note dated December 23, 2015, from Dr. Bradley McClure. (Dkt. 27-1 at 88, 261). On January 13, 2016, defendant sent plaintiff a Notice of Proposed Letter of Warning in lieu of a 14 Calendar Day Suspension letter. (Dkt. 27-1 at 264). The letter charged plaintiff with failing to follow instructions contained in the Absence Inquiry letter. (Dkt. 27-1 at 264). The letter explained that plaintiff could either request mediation, or appeal the LOW. (Dkt. 27-1 at 266). Plaintiff did not seek to either mediate, appeal, or otherwise contest the LOW. (Dkt. 27-1 at 113-114). Plaintiff did not receive any actual punishment as a result of the LOW. (Dkt. 27-1 at 113).

         On January 27, 2016, defendant sent to plaintiff a Letter of Decision for Notice of Proposed Letter of Warning in lieu of 7-day Suspension. (Dkt. 27-1 at 268). This letter referenced the letter dated January 13, 2016, and indicated that defendant “chose not to contest the underlying facts.” Id. Plaintiff did not contest the letter of decision. (Dkt. 27-1 at 115).

         Plaintiff submits Resignation/Transfer from the Postal Service, PS Form 2574.

         On July 20, 2016, after filing the instant lawsuit, plaintiff provided defendant a Resignation/Transfer from the Postal Service, PS Form 2574, indicating her effective date of resignation to be July 29, 2016. (Dkt. 27-1 at 272). Attached to the Form 2574 was a one paragraph note signed by plaintiff stating in part, “The discipline I've received started in late September 2015 and by January 2016, am up to a 14-day suspension.” (Dkt. 27-1 at 273). Prior to sending the letter plaintiff made no formal complaint, grievance, or took any other action concerning her treatment, except for the October 2015 meeting. (Dkt. ...


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