United States District Court, N.D. Oklahoma
OPINION AND ORDER
H. PAYNE, UNITED STATES DISTRICT JUDGE
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
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
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).
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).
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).
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).
13, Letter of Warning (LOW)
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).
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).
20, 2015 LOW and meeting regarding the October LOWs.
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).
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
2, 2015 LOW.
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 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).
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).
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).
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).
submits Resignation/Transfer from the Postal Service, PS Form
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. ...