Townsend-Taylor v. Ameritech Services ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2166
D IEDRE T OWNSEND -T AYLOR and R ONNIE T AYLOR,
Plaintiffs-Appellants,
v.
A MERITECH S ERVICES, INC.,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 05-C-0952—Rudolph T. Randa, Chief Judge.
____________
A RGUED JANUARY 14, 2008—D ECIDED A PRIL 29, 2008
____________
Before P OSNER, K ANNE, and W ILLIAMS, Circuit Judges.
P OSNER, Circuit Judge. The plaintiffs, a married couple,
sued their former employer, Ameritech, for violation of
the Family and Medical Leave Act of 1993, 29 U.S.C.
§§ 2601 et seq. Both Taylors had a record of absenteeism,
and as a result of the denial of their retroactive applica-
tions for family leave lost their jobs. The district court
granted summary judgment for Ameritech.
Ameritech has delegated the processing of its employ-
ees’ FMLA claims to an entity called the FMLA Processing
2 No. 07-2166
Unit (FPU for short), which is located in Texas, although
the plaintiffs worked for Ameritech in Wisconsin. (Wheth-
er FPU is an independent firm or is affiliated in some way
with Ameritech is unclear, but is not relevant to our
analysis.) An Ameritech employee who requests FMLA
leave is given a “Certification of Health Care Provider”
form, which contains the employee’s name and a bar code
that translates his social security number into symbolic
language that protects the employee’s privacy. The em-
ployee is told that his doctor must submit the completed
form within 15 days to FPU in San Antonio, either by fax
or by mail. Requiring submission within 15 days is per-
missible “unless it is not practicable under the particular
circumstances to do so despite the employee’s diligent,
good faith efforts.” 29 C.F.R. § 825.305(b). In effect, the
quoted language authorizes a defense of equitable tolling.
Rager v. Dade Behring, Inc., 210 F.3d 776, 778-79 (7th Cir.
2000); see also Peter v. Lincoln Technical Institute, Inc., 255
F. Supp. 2d 417, 441-43 (E.D. Pa. 2002). Furthermore, the
employer may not “interfere with…the exercise of or the
attempt to exercise, any right provided” the employee by
the FMLA. 29 U.S.C. § 2615(a)(1). (Here the parallel is to
equitable estoppel.) Although not required to do so,
Ameritech allows its employees 20 days to submit the
certification before it will deem the filing untimely.
Mr. Taylor missed several days of work to care for his
child, who was suffering from an infection. When he
returned to work on May 3, 2004, his supervisor gave him
the certification form, and when by May 24 FPU had not
received the form from him it sent him a notice of denial.
But the notice added that he would have 15 more days
within which to submit proof of extenuating circumstances
for his failure to file the certification on time. Within the 15-
No. 07-2166 3
day period for proof of extenuating circumstances, FPU
received from the child’s doctor a letter which stated
that the doctor had “filled out FMLA papers for this
occurrence on at least 3 separate occasions and either
faxed them to the [Ameritech] office or gave them directly
to the parents.” FPU had no record of having received any
such communication either by fax or from the parents.
Taylor had for unknown reasons given the doctor a
certification form to fill out that had his wife’s name and
social security bar code imprinted on it, and he speculates
that as a result the repeated faxings by the doctor had
been lost by FPU and that this was a case of “interference”
with FMLA rights because Ameritech should have
warned employees about the importance of the bar code
and hence the noninterchangeability of certification forms
that had different employees’ names imprinted on them.
Taylor had crossed out his wife’s name and written in
his own name and his social security number; but the
bar code remained, unaltered.
It can be “interference”—or, what amounts to the same
thing, a basis for postponing the submission deadline
by operation of the doctrine of equitable estoppel—to
provide an employee with misleading instructions that
cause him to miss a critical deadline for seeking FMLA
leave. Rager v. Dade Behring, Inc., supra, 210 F.3d 776, 778-79;
Harcourt v. Cincinnati Bell Telephone Co., 383 F. Supp. 2d 944,
959-61 (S.D. Ohio 2005); Peter v. Lincoln Technical Institute,
Inc., supra, 255 F. Supp. 2d at 443-44; 29 C.F.R. § 825.305(b).
But this is not such a case. There was nothing misleading
about the form. The form is stamped with an employee’s
name as well as a bar code, and an employee should know
better than to submit a request for leave on another em-
ployee’s form, even if the other employee is the person’s
4 No. 07-2166
spouse. There is a limit to how many warnings an em-
ployer must encumber its forms with.
In any event, Mr. Taylor’s speculation as to why FPU did
not receive the completed form is unsupported. FPU’s
data-processing system scans the completed form when
it is received and routes it to the file of the employee
whose social security number is recorded in the bar code
on the form. So if the doctor did fax the form three times,
it would have been filed under Mrs. Taylor’s name. But a
search of that file did not turn up Mr. Taylor’s form. Taylor
refers repeatedly to a “known bar code problem.” The
record contains no evidence of such a problem. (The
plaintiffs’ brief is replete with such unsubstantiated
factual assertions.)
Although the doctor said not that he had faxed the form
but that he had either faxed it or given it to Mr. Taylor, it
is hardly likely that he handed the same form to the
parents three times. So why was a copy of the completed
form never found in FPU’s files? And did the doctor
really fax the same form three times? Why would he do
that? Was his fax machine broken? Was the fax line at FPU
continuously busy? No explanation is suggested for the
miscommunication. It is a great mystery; but Taylor does
not contend that he complied with Ameritech’s pro-
cedures for applying for FMLA leave within the 15-day
period. For he gave the doctor the wrong form, and the
doctor’s “three faxes” letter did not explain or justify the
delay. Compare Kauffman v. Federal Express Corp., 426 F.3d
880, 885-87 (7th Cir. 2005).
He contends instead that FPU (or Ameritech, which
concedes that it cannot shirk its responsibilities under the
Act by outsourcing the processing of FMLA applications)
should have given him a chance to rectify the deficiencies
No. 07-2166 5
in his attempt to excuse his failure to comply with the May
24 deadline—a chance to get a more informative letter
from his doctor, for example. The company’s failure to
give him that chance, he argues, interfered with his
rights under the FMLA. But that is stretching the concept
of “interference” too far, and would make deadlines
ineffectual. Every time an employee submitted deficient
proof of extenuating circumstances for his failure to meet
the filing deadline, his employer would be obliged to
give him more time to make up the deficiency. This
would mean that “an employer could never set a real
deadline for the return of a medical certification. In
effect, whenever an employee failed to return a medical
certification within the appropriate time period, the
employer would be required to notify the employee of
that fact and provide the employee with an opportunity
to cure the deficiency by allowing the employee to sub-
mit the certification within a new, extended deadline—a
scenario that could, in theory, repeat itself ad infinitum.
The bottom line, therefore, would be that the concept of
a ‘deadline’ under § 825.305(d) would have no mean-
ingful significance and no actual consequences. This
would, in effect, create an imbalance where the ‘legitimate
interests of employers’ [would] no longer receive the
protections that Congress presumably intended to pro-
vide when it enacted the FMLA.” Urban v. Dolgencorp of
Texas, Inc., 393 F.3d 572, 577 (5th Cir. 2004). See also Novak
v. MetroHealth Medical Center, 503 F.3d 572, 579 (6th Cir.
2007). Taylor was given a “reasonable opportunity” to
cure the deficiency; no more was required. See 29 C.F.R.
§ 825.305(d).
He also argues that Ameritech interferes with FMLA
rights by requiring that the completed form be faxed
6 No. 07-2166
or mailed by the doctor, rather than permitting the appli-
cant to do the sending. But such permission would facili-
tate fraud. The applicant might forge a letter from a
doctor, or, after receiving the doctor’s letter, embellish
it before forwarding it to the employer. Nothing in
the statute forbids an employer to adopt reasonable,
nonburdensome measures for preventing fraud. Cf. Conroy
v. New York State Dept. of Correctional Services, 333 F.3d 88,
100-02 (2d Cir. 2003); Transport Workers Union of America,
Local 100, AFL-CIO v. New York City Transit Authority,
341 F. Supp. 2d 432, 443-44, 447-49 (S.D.N.Y. 2004). Reason-
able such measures are not interferences with rights.
Communications do, though, go astray from time to
time without fault by the employee. But he can protect
himself by checking with FPU within the initial 20-day
deadline to make sure that the completed form has
arrived. If it has not arrived, he can obtain an extension of
time sufficient to enable him to assure FPU’s receipt of the
form. If his doctor does not cooperate—suppose he’s on
vacation and as a result unable to submit the medical
certification in time, as in Uema v. Nippon Express Hawaii,
Inc., 26 F. Supp. 2d 1241 (D. Haw. 1998)—that would be an
extenuating circumstance that could excuse missing the
deadline. See also Peter v. Lincoln Technical Institute, Inc.,
supra, 255 F. Supp. 2d at 441-43; Toro v. Mastex Industries,
32 F. Supp. 2d 25, 29-30 (D. Mass. 1999).
We turn to Mrs. Taylor’s claim. She was out of work for
several days because of a problem with her back, and upon
her return was given the certification form for her doctor (a
different one from the child’s doctor) to fill out. She waited
12 days after receiving the form to give it to her doctor,
who did not get the completed form to FPU for another
9 days, with the result that Mrs. Taylor missed the dead-
No. 07-2166 7
line. She too was given 15 more days to establish extenuat-
ing circumstances, and during that period the doctor
explained that delays are sometimes caused by her being
in her office only two days a week. Mrs. Taylor had been
taking a chance by waiting 12 days to submit the form to
her doctor, knowing of the 20-day deadline—and in fact
thinking the deadline only 15 days, so she had to know
she was skating on very thin ice.
Her only explanation for the delay is that the day on
which she submitted the form was her first day off work.
She stated in her deposition that she could not have
submitted the form earlier because she thought the
clinic where her doctor works is open from 8 a.m. to
4:30 p.m and that her shift was either 8 a.m to 4:30 p.m,
or 8:30 am to 5 p.m. Since she was already in trouble with
her employer over absences, she would naturally have
been reluctant to take time off from work to go to the
clinic. But she also stated in her deposition that she
didn’t remember the clinic’s hours, and further that she
thought the clinic was open as early as 7 a.m. for tests, in
which event she could have left the form for the doctor
at the clinic on her way to work.
Moreover, she could not reasonably have believed that
the overlap between her hours and the clinic’s hours meant
that the deadline on her submitting the form would be
whatever day happened to be the first day she was off
work. Faced with the overlap in hours, she should have
called the clinic to verify its hours, explained her inflex-
ible work schedule, and made arrangements for getting
the form to her doctor. By waiting as long as she did
she made herself hostage to whatever delays might occur
in the transmission of the completed and signed form
to FPU.
8 No. 07-2166
Although Ameritech’s response to Mrs. Taylor’s missing
the deadline by only one day was harsh, hers was a case
of the last straw. She had a history of failed attempts to
justify absences as being authorized by the FMLA. Both
Taylors were problem employees, and Ameritech was
not required to exhibit more patience than the law and its
own rules required. The law imposes a duty of diligence,
with which Mrs. Taylor failed to comply, on any ap-
plicant for FMLA benefits who seeks a waiver of the
deadline for submission of the application.
In any event it is most unlikely that the back condition
that precipitated her application for FMLA leave was a
“serious health condition” within the meaning of the
statute, 26 U.S.C. § 2612(a)(1)(D), which was the only
ground for her requesting FMLA leave. The regulation
defining the term requires, so far as pertains to this case,
that the applicant either be incapacitated for more than
three consecutive days from working, or, without regard
to length of time, be incapacitated by or under treatment
for a “chronic serious health condition.” 29 C.F.R.
§§ 825.114(a)(2)(i), (iii). There is no evidence of a chronic
condition, and it appears that she missed only three days
of work.
Mrs. Taylor also argues that she was fired in retaliation
for attempting to exercise her rights under the FMLA.
There is no evidence of that. She was fired for unexcused
absences.
A FFIRMED.
USCA-02-C-0072—4-29-08