DORRIS v. WALMART INC

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

NICOLA DORRIS,

Plaintiff,

v. CASE NO. 5:19-cv-180-MCR-MJF

WALMART, INC.,

Defendant.

_________________________________/

ORDER

Plaintiff Nicola Dorris filed suit against her former employer, Defendant

Walmart, Inc. (“Walmart”), after she was terminated for unexcused absences,

alleging claims of interference and retaliation under the Family and Medical Leave

Act of 1993 (“FMLA”), 29 U.S.C. § 2601, et seq.1 Now pending is Walmart’s

Motion for Summary Judgment. ECF No. 33. Having fully considered the parties’

arguments and the record, the Court finds that the motion is due to be granted.

1 Dorris brought suit in state court, and Walmart removed the case to federal court based

on federal question jurisdiction. See 28 U.S.C. § 1331.

I. Background2

Dorris began her employment with Walmart in 1988 in the accounting office

at Sam’s Club in Tallahassee, Florida. Over the next 25 years, she worked at various

Walmart locations in Florida and Alabama in the accounting office, and later as a

claims supervisor. She transferred to Store No. 3119 in Panama City, Florida in

February 2013, and was promoted to Department Manager shortly thereafter. Dorris

stated by affidavit that in 2015, she was diagnosed with a chronic insulin resistance

condition, which causes immunodeficiency, exacerbates common illnesses, and

requires her to seek medical treatment approximately twice each year. On March

16, 2017, Walmart terminated Dorris’s employment due to excessive absenteeism

after she accumulated nine unexcused absences.

Pursuant to Walmart’s attendance policy, an employee is subject to

termination for nine or more “occurrences” in a rolling six-month period. See ECF

No. 31-30 at 2. Each unauthorized absence is an “occurrence,” whereas an

authorized absence, such as an approved leave of absence, does not count as an

occurrence. See id. Employees are required to call in and report an absence on

Walmart’s Interactive Voice Response (IVR) phone system, but this does not excuse

2 For the limited purpose of this summary judgment proceeding, the Court views “the

evidence and all reasonable inferences drawn from it in the light most favorable to the nonmoving

party,” which in this case is the Plaintiff. Martin v. Brevard County Pub. Sch., 543 F.3d 1261,

1265 (11th Cir. 2008) (internal marks omitted).

an absence; the absence from a shift is nonetheless considered unauthorized if the

employee was scheduled to work that day and did not show up. ECF No. 31-2 at

18-23 (Depo. Regina Hosey, Market HR Manager). Dorris acknowledged that she

was aware of the policy allowing termination for nine occurrences. See ECF No.

31-21 at 24-26.3

Pursuant to Walmart’s FMLA policy, FMLA leave requests must be made on

Walmartone.com or by phone to Sedgwick (Walmart’s third-party leave

administrator, and Sedgwick determines FMLA eligibility. ECF No. 31-5. This

policy explains that an FMLA leave of absence may be taken on a continuous or

intermittent basis, defining each and including that intermittent FMLA leave may be

taken if an employee “cannot perform the essential functions of [her] position

because of a chronic serious health condition.” See id. at 1-2. If Sedgwick

determines that an employee could be eligible for FMLA leave, it issues a Notice of

Eligibility and Rights & Responsibilities and provides the employee with the

appropriate certification form(s) needed to fully evaluate the leave request. The

employee must return the completed certification forms to Sedgwick by a date

3 During her deposition, Dorris testified that she knew the attendance and punctuality

policy and understood that termination could occur for “up to nine” occurrences. ECF No. 31-21

at 24 (answering, “I knew it”). She also testified that she would keep track of how many she had

accrued by asking the personnel department, id. She also once answered “no” when asked if she

was “familiar” with the attendance and punctuality policy, id. at 25. This dispute is immaterial to

Dorris’s claims.

certain, typically within 20 days of receiving the Notice of Eligibility. All

employees are informed of this policy and FMLA leave request process. Walmart

produced records showing that throughout her employment, Dorris had passed or

otherwise completed several hundred computer based training modules on various

Walmart policies and procedures, including the FMLA leave policy. Walmart

produced employee training records showing that at least one FMLA training

module during Dorris’s employment discussed examples of the types of serious

injuries or illness, or continuing treatments, that would qualify for FMLA leave. See

ECF No. 31-3 at 25-49.

It is undisputed that Dorris was absent due to illness on nine occasions within

a six-month period: October 7, 2016; October 14, 2016; November 28-29, 2016;

January 19, 2017; January 23, 2017; February 10, 2017; and March 13-14, 2017.

Each time, Dorris had called in sick on Walmart’s IVR phone system, but she did

not seek FMLA leave for these absences. Dorris claims that her FMLA rights were

first violated on March 15, 2015, when she returned to work and was not advised

that she could potentially be eligible for FMLA leave. ECF No. 31-21 at 30-31.

Dorris explained that she became ill with influenza on March 11, which was

a scheduled day off. She called in sick on March 13 and 14, days when she was

scheduled to work. She testified by deposition that her chronic insulin resistance

condition impacts her immune system and thus worsened her flu symptoms. ECF

No. ECF No. 31-21 at 57. Although she was still sick, she returned and worked a

full shift on March 15. Dorris said when she returned on the 15th, she “explained

the nature of [her] illness to Assistant Manager [Lakiesha] Hill, who only referred

[her] to the personnel department, and did not provide [her] with any information

about requesting FMLA leave.” ECF No. 37-1 at 4-5 (Dorris Affid.). Dorris said

she spoke with Rotesha Smith in the personnel department that day and informed

her she was “still sick” and could not be seen by her doctor until Monday, March 20,

2017. ECF No. 37-1 at 5. Dorris stated: “I asked Smith if there was anything further

I needed to explain my absence, but Smith told me no and that I would be okay.” Id.

Dorris stated, “At no time did Smith explain that I could be eligible for FMLA leave

because of my medical condition, and Smith did not advise me as to the process for

requesting FMLA leave.” Id.

Dorris admitted during her deposition testimony that she did not mention her

chronic insulin resistance condition to Hill or Smith when she returned to work on

March 15 or on the following day when she was terminated.4 ECF No. 31-21 at 58-

59. She maintains nonetheless that Hill and Smith each knew of her condition,

4 It is undisputed that Dorris was out with the flu on March 13 and 14, 2017. When asked

during her deposition whether she had mentioned her chronic condition to Hill or to Smith when

she returned to work on March 15, she answered unequivocally, “Not on this day,” and “No,” and

when asked whether she mentioned it on the date of her termination, March 16, she testified “Not

that I recall.” ECF No. 31-21 at 58-59. At one point in her deposition, she said that she referenced

“issues with her immune system,” id. at 95, and in her sworn affidavit, she stated vaguely that on

March 15, “I explained the nature of my illness” to Hill, ECF No. 37-1. She provided Walmart no

further detail in relation to her absences in March 2017.

stating she “had brought it up over the years” “in general conversations.” Id. at 58.

Dorris stated by affidavit that after each surgery, she had explained to Hill: “because

of my insulin resistance, my recovery time was greater and I was more susceptible

to illness.” ECF No. 37-1 at 3-4. But her surgeries were in 2015 and 2015 to early

2016. The last conversation Dorris could specifically recall in which she discussed

her chronic condition was a conversation with Hill in 2015, when Dorris returned to

work from gallbladder surgery. ECF No. 31-21 at 62. Dorris acknowledged during

her deposition that she had never provided Walmart any medical paperwork with

information about her immune system health condition,5 ECF No. 31-21 at 59, and

the medical records she provided do not include a diagnosis of insulin resistance or

any reference to a chronic condition.6

Hill made the decision to terminate Dorris based on the accumulation of nine

unexcused occurrences. She said when Dorris returned to work on March 15, 2017,

she was not feeling well and referenced a sinus infection for which she was taking

5 During her deposition, Dorris was asked to identify medical records documenting her

condition. She stated it was in the laboratory results, which she could not read. All medical records

she provided were dated after the date of her termination. ECF No. 31-21 at 59-60. She also

provided a file of medical papers from 2011, which dealt with orthopedic issues unrelated to this

case. Id. at 60-61.

6 On March 20, 2017, Dorris visited her doctor related to her illness that caused the

absences on March 13 and 14. She obtained a work release form, stating she was excused from

work from March 16 through March 23, 2017. See ECF No. 31-34 at 3 (Work Release Form).

The form indicated that Dorris could return to work on March 24 with no restrictions and did not

reference a chronic medical condition. Dorris had been terminated on March 16 and did not

provide the note to Walmart.

medication. ECF No. 31-1 at 12. Hill stated that Dorris did not provide any other

details about her illness and had never talked to her about any medical issues or

disabilities.

Dorris never sought FMLA leave for any of the nine occurrences for which

she was terminated. She explained that she did not know it was possible to apply

for FMLA leave retroactively or for an absence that did not exceed three days, and

she thought FMLA leave was available only for surgeries. ECF No. 31-21 at 67.

Walmart’s records show, to the contrary, that Dorris had previously requested and

received approved FMLA leave on four separate occasions: (1) to correct a deviated

nasal septum in November 2012, (2) for rhinitis, a viral infection, and other

complications related to her eustachian tube dysfunction in late January and early

February 2013, (3) for gallbladder surgery and recovery in 2015, and (4) a

hysterectomy and recovery from late 2015 into early February 2016.7

In this suit, Dorris contends she was entitled to FMLA leave for her absences

during March 2017 because she suffers a serious health condition (insulin resistance,

which impacts her immune system and exacerbates and prolongs common illnesses

such as the flu). She maintains that because she informed Walmart managers of her

condition through general conversations in 2015 or early 2016, Walmart was

7 Dorris’s FMLA leave requests for surgeries in 2015 and 2016 were submitted and

approved through Sedgwick, which became Walmart’s third-party leave administrator in 2015.

obligated to notify her that she might be eligible for FMLA leave in March 2017,

and that by terminating her employment, Walmart interfered with her FMLA rights

or engaged in FMLA retaliation.

Walmart moves for summary judgment, arguing that Dorris has not

established that she was eligible for FMLA leave, and, even assuming she has a

qualifying condition, the record shows that she failed to provide sufficient notice of

the condition to give rise to Walmart’s obligation to further inquire as to FMLA

eligibility. Walmart also argues that Dorris failed to follow its usual and customary

procedural requirements and maintains there is no evidence of retaliation.

II. Discussion

Summary judgment is appropriate where the record shows no genuine

disputes of material fact and the moving party is entitled to judgment as a matter of

law. See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

(1986). A fact is “material” if, “under the applicable substantive law, it might affect

the outcome of the case.” Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259

(11th Cir. 2004). A dispute of material fact is “genuine” if the record, taken as a

whole, could persuade a reasonable jury to return a verdict for the nonmoving party.

See id. at 1260; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In

deciding a motion for summary judgment, courts view the evidence in the light most

favorable to the nonmoving party, resolving all ambiguities and drawing all

justifiable inferences in favor of that party but eschewing determinations of

credibility and the weighing of evidence, which are functions properly left to a jury.

See Frederick v. Sprint/United Mgm’t Co., 246 F.3d 1305, 1311 (11th Cir. 2001).

The moving party bears the initial burden of providing the basis for its motion

and identifying materials evidencing an absence of a genuine dispute of material

fact. See Celotex, 477 U.S. at 323; Rice-Lamar v. City of Ft. Lauderdale, Fla., 232

F.3d 836, 840 (11th Cir. 2000). To defeat a properly supported motion for summary

judgment, the nonmoving party must “go beyond the pleadings” and identify

“specific facts” in the record showing that there is a genuine dispute of material fact

for trial. Celotex, 477 U.S. at 324. This requires identifying more than “[a] mere

scintilla of evidence” in support of the non-moving party’s claim; “there must be

enough of a showing that the jury could reasonably find for that party.” Allen v.

Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (citing Anderson, 477 U.S. at

252). The self-serving statement of a litigant can defeat summary judgment if it is

based on personal knowledge and is not conclusory in nature. See United States v.

Stein, 881 F.3d 853, 857 (11th Cir. 2018). Summary judgment is warranted if the

nonmoving party “fails to make a showing sufficient to establish the existence of an

element essential to that party’s case, and on which that party will bear the burden

of proof at trial.” Celotex, 477 U.S. at 322.

A. Interference Claim

To establish a claim of FMLA interference, an employee must “demonstrate

by a preponderance of the evidence that she was entitled to an FMLA benefit and

her employer denied her that benefit.” Munoz v. Selig Enters., Inc. 981 F.3d 1265,

1274 (11th Cir. 2020); see also Hurlbert v. St. Mary’s Health Care Sys., Inc., 439

F.3d 1286, 1293 (11th Cir. 2006). A showing of intent is not required because “the

employer’s motives are irrelevant.” Strickland v. Water Works & Sewer Bd. of

Birmingham, 239 F.3d 1199, 1208 (11th Cir. 2001). Also, the plaintiff must prove

that she was prejudiced by the alleged FMLA interference. See Ragsdale v.

Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002).

To be entitled to FMLA leave based on illness, an employee must have a

“serious health condition,” 29 U.S.C. § 2612(a)(1)(D), which is defined as “an

illness, injury, impairment, or physical or mental condition that involves (A)

inpatient care in a hospital, hospice, or residential medical care facility; or (B)

continuing treatment by a health care provider,” 29 U.S.C. § 2611. A “chronic

condition” qualifies as “continuing treatment” entitling the use of FMLA leave even

for periods of absence that do not last more than three consecutive days. 29 C.F.R.

§ 825.115(c). Specifically:

A chronic serious health condition is one which:

(1) Requires periodic visits (defined as at least twice a year) for

treatment by a health care provider, or by a nurse under direct

supervision of a health care provider;

(2) Continues over an extended period of time (including

recurring episodes of a single underlying condition); and

(3) May cause episodic rather than a continuing period of

incapacity (e.g., asthma, diabetes, epilepsy, etc.).

29 C.F.R. § 825.115(c).

When the need for leave is unforeseeable, and the employee has not

previously requested FMLA leave for the particular condition, the employee does

not need to reference the FMLA but must provide both the usual timely notice to the

employer and, “as soon as practicable,” provide notice of the facts and circumstances

with “sufficient information for an employer to reasonably determine whether the

FMLA may apply to the leave request.” 29 C.F.R. § 825.303(a), (b). “Once an

employee gives sufficient notice to her employer that potentially FMLA-qualifying

leave is needed,” the employer is then obligated to ascertain whether the absence

qualifies. Cruz v. Publix Super Markets, Inc., 428 F.3d 1379, 1383 (11th Cir. 2005).

Regulations require that if the employee requests FMLA leave, or the

employer acquires knowledge that a leave request “may be for an FMLA-qualifying

reason, the employer must notify the employee of the employee’s eligibility to take

FMLA leave within five business days, absent extenuating circumstances.” 29

C.F.R. § 825.300(b). An employer’s failure to notify an employee about her right

to take FMLA leave consistent with the regulation, “may constitute an interference”

claim. Munoz, 981 F.3d 1265, 1274 (quoting 29 C.F.R. § 825.300(e)). However,

absent complications, ordinary illnesses such as the common cold or flu do not

qualify an individual for FMLA leave, see 29 C.F.R. § 825.113(d), and simply

calling in “sick,” without more information, “will not be considered sufficient notice

to trigger an employer’s obligations under the Act.” 29 C.F.R. § 825.303(b); see

also Collins v. NTN–Bower Corp., 272 F.3d 1006, 1009 (7th Cir. 2001) (noting a

mere reference to being sick “did not suggest to the employer that the medical

condition might be serious or that the FMLA otherwise could be applicable”).

On careful review of the arguments and the record, the Court concludes that

Walmart is entitled to summary judgment. First, Dorris has not established that she

suffers from a serious medical condition. While she testified that she was diagnosed

with chronic insulin resistance in 2015, her unsupported statement is the only

evidence. She never previously requested FMLA leave on this basis, and no medical

evidence in the record supports the existence of such a diagnosis. See Blake v. City

of Montgomery, Alabama, No. 2:19-CV-243-RAH, 2020 WL 6318504, at *6 (M.D.

Ala. Oct. 6, 2020) (plaintiff’s failure to present any evidence of a diagnosis of a

qualifying medical condition—either before or after the need for leave arose—was

fatal to the interference claim).

Second, even assuming a qualifying condition exists based on Dorris’s

testimony and affidavit, see Feliciano v. City of Miami Beach, 707 F.3d 1244, 1253

(11th Cir. 2013) (self-serving sworn statements are not to be disregarded at the

summary judgment stage), the notice given must be sufficient for Walmart to have

concluded that her absence was due to an FMLA qualifying reason. See Avila v.

Childers, 212 F. Supp. 3d 1182, 1192 (N.D. Fla. 2016) (stating, “an employer’s

responsibility for further inquiry arises only after the employee provides a reason to

believe the employee is entitled to FMLA leave”). Determining whether the

employee gave sufficient notice is a mixed question of fact and law, “with the

factfinder determining what notice was given and the court deciding whether such

notice was legally sufficient.” Blake, 2020 WL 6318504, at *8 (quoting Cooper v.

Walker Cnty. E-911, No. 6:16-CV-1746-TMP, 2018 WL 3585217, at *15 (N.D. Ala.

July 26, 2018)).

Viewing the facts in the light most favorable to Dorris, she did not give

sufficient notice that her absences on March 13 and 14 were potentially for a serious

chronic medical condition.8 She admittedly had the flu and called in sick, but calling

in sick is insufficient notice of a serious medical condition. See Cruz, 428 F.3d at

1385 (stating, “[f]or example, if you have brain cancer but just tell your employer

8 Dorris testified that her interference claim is based only on her two absences in March

2017, and she also testified clearly that the first date she believed her FMLA leave rights were

violated was March 15, 2017, when she returned to work and was not informed of potential FMLA

eligibility. See ECF No. 31-21 at 30-31. Dorris nonetheless argues in opposition to summary

judgment that “[t]here is no question that each of Plaintiff’s 9 absences were caused by her

underlying chronic health condition, and each should have been covered by FMLA leave,” ECF

No. 38 at 16. That argument is baseless and unsupported by any record evidence.

that you have a headache, you have not given the notice that the FMLA requires”

(internal marks and alterations omitted)); see also Avila, 212 F. Supp. 3d at 1192

(finding insufficient a vague doctor’s note and knowledge that the employee was

sick); Andrews v. CSX Trans. Inc., 737 F. Supp. 2d 1342, 1351-52 (M.D. Fla. 2010)

(phoning in “sick” or providing a doctor’s note for “unspecified ailments” is

insufficient). Even accepting as true Dorris’s vague affidavit statement that she

advised Hill of “the nature of her illness,” this without more does not rise to the level

of notice required to suggest an FMLA-qualifying condition. At most, Dorris had

the flu, she called in sick, she possibly reported a sinus or immune “issue” to Hill,

and she returned to work the third day and worked an entire shift.9 There is no

evidence that she mentioned a chronic medical condition to Hill or Smith either on

the day she returned or the day she was terminated.

Dorris argues that her managers knew of her serious condition because in 2015

or possibly early 2016 after returning from surgery, she had referenced her chronic

insulin resistance condition in general conversations with Hill or Smith. The Court

finds this inadequate. It would be unreasonable to consider a casual conversation in

2015 and/or early 2016 in relation to her surgeries and a year before the absence that

9 There is a dispute in that Hill said Dorris referenced a sinus issue and Dorris said she

advised Hill of the “the nature of her illness,” or an issue with her immune system, but this dispute

is not material because neither version suggests that Dorris referenced a chronic, potentially

qualifying serious insulin resistance condition.

caused her termination, as adequate notice. See Collins, 272 F.3d at 1009 (granting

summary judgment to employer despite the fact that the employee “had mentioned

the [serious medical] problem to supervisors early in 1997, a year before the absence

that led to her discharge”). Dorris had never before taken FMLA leave for the insulin

resistance condition, and she provided Walmart no information that could link her

absence for the flu to that condition.

Dorris cites one case in which a jury question was found on an interference

claim where notice was at issue. See Willmore-Cochran v. Wal-Mart Assocs., Inc.,

919 F. Supp. 2d 1222, 1247-49 (N.D. Ala. 2013). But, the case is distinguishable.

While there was an issue in Willmore-Cochran of whether the plaintiff gave

adequate notice of an FMLA-qualifying condition as a reason for her absence,10 the

court expressly found it unnecessary to resolve the question. The court concluded

instead that a question of fact existed on the plaintiff’s alternate claim that any

deficiency in her notice was excused by Walmart’s overarching failure to provide

employees with general notice that the FMLA provides intermittent leave. See id.

at 1248-49. That precise claim has not been raised in this case nor could it be

sustained on this record because, despite Dorris’s testimony that she was unaware of

the possibility of intermittent leave, the record clearly shows that Walmart’s FMLA

10 The plaintiff in Willmore-Cochran suffered from Irritable Bowel Syndrome, and her

supervisors were aware of the condition but she did not expressly reference it when leaving early

from her shift. 919 F. Supp. 2d at 1247.

policy, on which Dorris received training, informed employees of the general

availability of intermittent leave under certain circumstances. The sole issue is

whether Dorris gave notice sufficient to suggest a “potentially FMLA-qualifying

reason” which in turn would give rise to Walmart’s obligation to give individual

notice. Cruz, 428 F.3d at 1386 (quoting Gay v. Gilman Paper Co., 125 F.3d 1432,

1436 (11th Cir. 1997)). The Court concludes she did not. Walmart is therefore

entitled to summary judgment on the interference claim.

B. Retaliation Claim

To establish a claim of retaliation based on FMLA rights, the plaintiff must

demonstrate that the employer “intentionally discriminated against h[er] in the form

of an adverse employment action for having exercised an FMLA right.” Jones v.

Gulf Coast Health Care of Delaware, LLC, 854 F.3d 1261, 1270 (11th Cir. 2017)

(quoting Strickland v. Water Works & Sewer Bd. of City of Birmingham, 239 F.3d

1199, 1207 (11th Cir. 2001)). The requires proof that the employer’s actions “were

motivated by an impermissible retaliatory or discriminatory animus.” Id. (quoting

King v. Preferred Tech. Grp., 166 F.3d 887, 891 (7th Cir. 1999)). The burden-

shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)

applies to FMLA retaliation claims based on circumstantial evidence. See id. at

1271.

Walmart asserts that Dorris expressly disavowed any claim based on

retaliation in her deposition by testifying that she was not terminated for taking

FMLA leave in 2015 and that she was not claiming she was treated differently than

others because she took FMLA leave. See ECF No. 31-21 at 37-38, 65. The Court

agrees. Moreover, Dorris’s response to the summary judgment motion makes no

argument regarding the retaliation claim, thus the claim appears to be waived, and

she presents no record citation or any evidence to raise a question of fact on the issue.

Thus, Walmart is entitled to summary judgment on the retaliation claim.

Accordingly, Walmart’s Motion for Summary Judgment, ECF No. 33, is

GRANTED. The Clerk is entitled to enter judgment accordingly, tax costs against

the Plaintiff, and close the file.

DONE AND ORDERED this 28th day of March 2021.

M. Casey Rodgers

M. CASEY RODGERS

UNITED STATES DISTRICT JUDGE