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Bacon v. Hennepin County Medical Center

December 22, 2008


Appeals from the United States District Court for the District No. 08-1237 of Minnesota.

The opinion of the court was delivered by: Bye, Circuit Judge.

Submitted: October 17, 2008

Before LOKEN, Chief Judge, BYE and SMITH, Circuit Judges.

The parties cross-appeal the district court's*fn1 grant of summary judgment in Hennepin County Medical Center's ("HCMC") favor. We affirm.


In 1992, Melondy Bacon began working as a janitor at HCMC. Beginning in approximately the summer of 2003, she began to periodically break out in hives while at work. This case arises from a hives outbreak on July 8, 2004. That same day, Bacon obtained paperwork pertaining to the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601-54, from HCMC's Employee Health Services.

On July 14, 2004, Bacon saw her primary-care physician, Dr. Priya Kohli. Dr. Kohli filled out a FMLA medical certification form, indicating Bacon had a serious, chronic health condition, but was not presently incapacitated. Dr. Kohli answered "yes" to whether Bacon needed to take off work intermittently. With respect to the probable duration of intermittent leave, Dr. Kohli commented: "Difficult to assess[;] when symptoms occur [Bacon] cannot be at work for [about 24 hours]. Frequency varies, may be once/month [and] may last rest of life." Dr. Kohli estimated Bacon would need treatment once a month, and stated Bacon needed approximately twenty-four hours per "each event" for recovery. Dr. Kohli further indicated that Bacon's regimen of continuing treatment would require "avoidance of offending agent (? chemical at work)," as well as medication. In response to a question about whether Bacon was unable to work if medical leave was required because of her condition, Dr. Kohli responded "yes," noting "as needs to avoid work environment as offensive chemical may be causing this continued exposure may lead to life threatening state." Finally, Dr. Kohli referred Bacon to an allergist.

On July 19, 2004, Bacon submitted her completed FMLA paperwork to her supervisor, Richard Smyrak, telling him, per her doctor's advice, she was going to be on leave until she saw an allergist. Smyrak partially filled out a "Supervisor's FMLA Approval Form." Smyrak signed and dated the form, but did not check a box to indicate whether he approved or disapproved Bacon's leave request. According to HCMC's policies, "[t]he supervisor, by signing and dating the form, is providing the County's formal approval that the employee's leave is FMLA-related." Nonetheless, Smyrak told Bacon she needed to get a note from her doctor confirming she could not work until she saw an allergist.

Bacon saw Dr. Kohli that same day. Dr. Kohli completed a second medical certification form, which was substantially similar to the form dated July 14, 2004. Dr. Kohli again indicated Bacon would need to miss work "when condition is active," and, when symptoms occur, Bacon cannot be at work for approximately twenty-four hours. In response to the same question about whether Bacon was unable to perform work if medical leave was required for her condition, Dr. Kohli wrote, "Yes as may be environmental exposure." Dr. Kohli also allegedly provided Bacon with a note stating Bacon "could not work until [she] saw an allergist and an occupational therapist." HCMC denies receiving such a note.

For about a month following the outbreak, Bacon called HCMC on every day she was scheduled to work to report she would not be coming in, and her absences were recorded by HCMC as FMLA leave. By calling in her absences, Bacon was complying with HCMC's call-in policy, which requires an employee on indefinite sick leave to call in her absences every day.*fn2

On August 5, 2004, however, Bacon stopped calling in her absences. Two years later, Bacon was deposed in connection with this case and claimed for the first time she stopped calling in because her supervisor, Smyrak, stated she did not have to call in while on FMLA leave. Smyrak denies making such a statement.

On August 11, 2004, Wanda Weber, the director of the department in which Bacon worked, wrote Bacon a letter informing her that, because she had been absent without calling for three days (August 5, 9, and 10), Bacon was "deemed to have resigned" from HCMC. The union contract governing Bacon's employment provides that three consecutive days of absence without notice is considered voluntary termination.

On August 18, 2004, Bacon responded she was on FMLA leave, had not resigned, and requested clarification. Bacon did not give any reason for her failure to call in her absences after August 4.

On September 13, 2004, Weber replied that, pursuant to the union contract, Bacon abandoned her job by not calling in for three days. Weber also stated Bacon "did not submit papers that qualified [her] for Family Medical Leave," and ...

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