The opinion of the court was delivered by: John Gleeson, United States District Judge
FOR ONLINE PUBLICATION ONLY
Mediatrix Carpo sued her former employer, Wartburg Lutheran Home for the Aging ("Wartburg"), claiming that Wartburg fired her in violation of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq.(2000). Carpo, acting pro se, seeks primarily money damages.*fn1 The parties have each moved for summary judgment. I heard oral argument on the motions on October 6, 2006. For the reasons discussed below, I grant Carpo's motion and deny Wartburg's motion.
A trial to determine damages will be held on January 8, 2007. Jury selection will commence before a magistrate judge at 9:30 a.m. Trial will commence at 2:15 p.m. A final pretrial conference will be held on January 5, 2007 at 10:00 a.m. In the meantime, I will appoint counsel for Carpo, subject to her approval.
Unless otherwise noted, the facts that follow are undisputed. In 2003, Carpo was employed by Wartburg as a nutritionist. On November 1, 2003, she was injured in a car accident unrelated to her job. The injury was serious enough to qualify Carpo for leave under the FMLA, and Wartburg granted that leave effective November 3, 2003.*fn2 See Aff. of Mary Ann Benton ¶ 5.
On November 28, 2003, Wartburg sent a letter to Carpo directing her to submit, upon her return, "a doctor's note indicating that you can resume full duties." Id. Ex. 1. On January 24, 2004, Carpo received another letter from Wartburg. This letter notified her that her FMLA leave would expire on February 3, 2004 and provided this warning: "[i]f you are unable to return to work on, or before, February 3, 2004, we will have no alternative but to replace your position with a permanent employee." The January letter also directed Carpo to submit a "doctor's certificate indicating that you can resume full duties." Aff. of Mediatrix Carpo ¶ 3(A)(i),Ex. 1. Wartburg contends, and Carpo does not dispute, that "it is Wartburg's policy to demand that an employee returning from a leave under the [FMLA] must supply a doctor's certification that she is capable of resuming the full duties of her position." Aff. of Daniel A. Bartoldus ¶ 6.
On February 3, 2004, after twelve weeks of leave, Carpo returned to work and presented a note from her doctor. Aff. of Mary Ann Benton ¶ 8. The note, handwritten on a prescription slip, read: "Pt may attempt return to work on 2/3/04." Id. Ex. 3. Mary Ann Benton, the Director of Human Resources, read the note and wrote on the back: "note unacceptable --employee was written ltr that she must be able to resume full duties 2/3/04. Dr. states she may attempt to return to work -- Ms. Carpo stated that her dr said she could try & work. Policy is that employee resume full duties." Id. ¶ 9, Ex. 3. The parties disagree about exactly when Carpo was terminated, but for purposes of summary judgment I will assume that Wartburg is correct that she was fired on February 3 "upon plaintiff's failure to present a doctor's certification that she was capable of resuming the full duties of her position." Aff. of Daniel A. Bartoldus ¶ 4.
Carpo alleges that Wartburg had no intention of restoring her to her position, because it had already hired a replacement for her in December of 2003. Aff. of Mediatrix Carpo ¶ 3(A)(iv). Again, for purposes of summary judgment, I will assume this allegation is mistaken.
Carpo argues, among other things, that Wartburg interfered with her right to return to work after her FMLA leave by (1) refusing to accept the note from her doctor as a medical certification that she was fit for duty and (2) terminating her immediately after refusing the certification, rather than seeking clarification from her doctor. Wartburg responds that neither action interfered with Carpo's rights under the FMLA.
Summary judgment is appropriate only if a party's papers "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). As is plain from the rule, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
Here, the FMLA determines the material facts. See id. at 248 ("[T]he substantive law will identify which facts are material."). The FMLA makes it "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under [the Act]." 29 U.S.C. § 2615(a)(1). Accordingly, an employer may not interfere with the right of an "eligible employee" to 12 work-weeks of leave during any 12-month period "[b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612(a)(1)(D). Nor may the employer interfere with the right of the employee to be restored to her old job or an equivalent position. See 29 U.S.C. § 2614(a)(1). An employer may as a policy or practice, however, require "[a]s a condition of restoration" that the employee "receive certification from the health care provider of the employee that the employee is able to resume work . . . ." 29 U.S.C. § 2614(a)(4).
The parties do not disagree about the material factual context of Carpo's termination. It is undisputed that Carpo was an "eligible employee," that she qualified for FMLA leave on account of her injury, that her leave was designated FMLA leave, and that she returned to her job at the appropriate time. It is also undisputed that Wartburg had a policy of requiring a doctor's certification that employees returning from FMLA leave were able to resume "full duties." Rather, the parties disagree on the purely legal questions of whether the handwritten note from Carpo's doctor was an adequate certification for FMLA purposes and, if it was not, whether ...