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Felts v. Volvo Group North America, LLC

United States District Court, W.D. Virginia, Roanoke Division

May 15, 2018



          Elizabeth K. Dillon United States District Judge

         Pending before the court are cross-motions for summary judgment. In the complaint, plaintiff Cameron Felts claims that defendant Volvo Group North America, LLC (Volvo) interfered with his substantive rights under the Family and Medical Leave Act (FMLA) and retaliated against him for exercising his FMLA rights. Felts seeks summary judgment in his favor as to all three counts in his complaint. Volvo also seeks summary judgment in its favor as to all three counts. The motions have been fully briefed and argued before the court.

         As discussed in more detail below, the court will deny both parties' motions for summary judgment as to the interference claim in Count One and the retaliation claim in Count Two, and it will grant summary judgment in Volvo's favor as to the retaliation claim in Count Three.


         A. Felts Begins Working as a Welder for Volvo.

         Felts began working as a welder for Volvo on a full time, hourly-wage basis in February 2012. As a Volvo employee, Felts was required to abide by the attendance policy set forth in the collective bargaining agreement between Volvo's New River Valley plant, the International UAW, and UAW Local 2069. The attendance policy sets out a progressive discipline system based upon an employee's “chargeable” hours of absences that are not covered under the FMLA. The policy provides that chargeable absence hours are removed from an employee's record twelve months from the date of the absence. (Elswick Decl. 3, Dkt. No. 24-3.)

         The attendance policy includes a disciplinary system called the Chronic Attendance Program (CAP), which seeks to correct chronic absenteeism. (CAP Ltr. 1, Dkt. No. 1-1.) The policy addresses employees with “[o]verall attendance records that may show a pattern of abuse such as . . . excessive tardy or leave early pattern[s].” (CAP, Ex. A at 1, Dkt. No. 24-3.) It does not set out a minimum number of unexcused absence hours in order for an employee to be placed on CAP. While some HR representatives at Volvo have stated that they personally do not place employees on CAP with 44 hours or less of unexcused absences (Lilly Decl. 4, Dkt. No. 24-4; Shiffner Decl. 5, Dkt. No. 24-5), others have placed employees on CAP with as few as 32 hours (Elswick Decl. 4). Once an employee is placed on CAP, a number of conditions apply to the employee's next six months of active employment, including the following manDated: “You cannot miss any times from work. This includes full-day absences, late entries, and early exits . . . . If you are deemed to be out of compliance with the conditions of this Program, you will be terminated immediately.” (CAP Ltr. 1.)

         As a Volvo employee, Felts was also required to abide by the New River Valley Plant Shop Rules. In particular, Shop Rule 29 provides that “[t]he following violation[ . . .] may warrant the immediate termination of any employee[:] Falsification of time or records or misrepresenting yourself with information provided to the Company.” (Shop Rules 2, Dkt. No. 24-3.)

         B. Volvo Approves Felts's Request for FMLA Leave From March 1, 2014, to March 1, 2015.

         In 2013, Felts applied for and received intermittent leave rights under the FMLA due to a serious medical condition of anxiety and panic attacks.[1] Felts's treating physician, Dr. Clifford Nottingham, certified that Felts would require intermittent FMLA leave to manage this condition and estimated the frequency of leave as up to two days per week and one day per occurrence. (Certification 3, Dkt. No. 22-3.) In 2014, Felts provided Volvo with re-certification as to the same frequency of absences, and Volvo approved Felts's request for FMLA leave for the period from March 1, 2014, to March 1, 2015. (Dillon Decl. 2, Dkt. No. 24-8; Pl.'s Dep Tr. 93:16- 95:10, Dkt. No. 24-1.)

         C. Felts's FMLA Leave Expires.

         Felts was aware that he needed to recertify for FMLA leave in March 2015 and that the medical recertification had to be submitted to Volvo within 15 days of any FMLA leave. (Pl.'s Dep. Tr. 103:14-104: 6.) Felts did not meet with Dr. Nottingham until March 19, however, [2] and Volvo did not receive the recertification until March 22. (Pl.'s Br. 3, Dkt. No. 22; Def.'s Br. 4, Dkt. No. 24.) After receiving it, Volvo granted the recertification and approved Felts's FMLA leave for the period from March 16, 2015, to March 16, 2016. The parties dispute whether, within five days of his request for FMLA leave, Felts received proper notice from Volvo that it would consider his absences within the gap period as chargeable hours. The form Felts submitted with his medical authorization stated that he was requesting FMLA leave as of March 1; Volvo's NVRP form provides a March 16 date. (Pl.'s Br., Exs. C, D.)

         D. Volvo Asks Felts to Recertify to Reflect Increased Need for Absences, But He Does Not.

         On May 5, 2015, Gene Dillon, the HR representative responsible for managing the administration of Felts's FMLA benefits, emailed Jeffrey Melton, the Business Team Leader at the plant. In the email, Dillon wrote:

[Felts's] current usage over the last month is not in line with [his authorization]. He is exercising leave 3-5 days per month and about half to two thirds of these are less than the full day authorized. Please warn him that we cannot continue to honor his FML outside of the issued guideline. He must get his FMLA Certification amended to better reflect his current need or only utilize FML within the medical provider's guidelines.

(May 5 Email 1, Ex. A, Dkt. No. 24-9.) In his declaration, Melton asserted that Felts's supervisors, Tim Littreal and Michael Folden, “conveyed the re-certification request” to Felts at Melton's request. (Melton Decl. 2, Dkt. No. 24-9.) Nevertheless, Felts did not submit new FMLA paperwork in May.

         On June 9, 2015, Dillon sent Melton another email, which included Excel and calendar images that detailed the way Felts's then-current plan continued to conflict with the frequency of his usages. Dillon wrote: “Due to his increased frequency of use [Felts] will either need to recertify or change his rate of usage. Please advise him that usage about 2 days a week will not be coded FML . . . unless an updated FML Certification is submitted . . . . Let me know if he needs a new FML form as I would like to submit a copy of his usage to his health care provider along with it.” (June 9 Email 1, Ex. B, Dkt. No. 24-9.) Littreal confirmed that the request had been conveyed to Felts.[3] (Littreal Email 1, Ex. C, Dkt. No. 24-9.) According to Melton, Volvo started charging Felts unexcused absence hours for absences taken in excess of what was approved in his certification on June 10. (Melton Decl. 3.)

         The day after Dillon's June 10 email, records from Volvo's timekeeping program, AT Server, include a note written by Michael Folden: “Cameron asked to use FMLA and was told he had exhausted his allowed FMLA usage for this week and he said he would just take the points.” (June 10 Note, Ex. D, Dkt. No. 24-9.) Similarly, on June 12, the records include another note by Folden: “[Felts] left after 8 hours. Told his supervisor he would take the points.” (June 12 Note, Ex. D, Dkt. No 24-9.) Felts did not submit new FMLA paperwork in June.

         E. Volvo Places Felts on CAP, and Felts Submits ...

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