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Williams v. E*Trade Financial

United States District Court, D. Utah

June 19, 2019



          David Nuffer, United States District Judge.

         District Judge David Nuffer In this action, Plaintiff Travis Williams seeks relief under the Family and Medical Leave Act (“FMLA”) against Defendant E*TRADE Financial Corporation (“ETrade”). To this end, he has filed a motion for summary judgment on the issue of liability.[1] ETrade has also filed a motion for summary judgment on the issue of liability.[2] Based on the undisputed material facts, Williams is entitled to judgment as a matter of law and ETrade is not. Accordingly, Williams's motion is GRANTED and ETrade's is DENIED.


         Undisputed Material Facts ............................................................................................................... 2

         Discussion ...................................................................................................................................... 12

         Williams was entitled to FMLA leave. . ............................................................................. 14

         An adverse action of ETrade interfered with Williams's FMLA rights. .. .......................... 15

         ETrade's action was related to the exercise of Williams's FMLA rights. . ........................ 16

         Order .............................................................................................................................................. 17


         Based on the record and evidence presented, there is no genuine dispute as to any of the following material facts.

         On May 24, 2010, Williams began employment as a “financial services representative” for ETrade.[3] His job entailed answering calls from ETrade customers ordering investment trades.[4] ETrade grants its eligible employees FMLA-protected leave “due to their own serious health condition or to care for a family member with a serious health condition.”[5] ETrade contracts with Metropolitan Life Insurance Company (“MetLife”) to administer ETrade's FMLA program.[6]

         Williams has end-stage renal disease.[7] In February 2014, he requested intermittent F M L A leave related to dialysis treatments.[8] On February 25, MetLife found Williams eligible for FMLA leave and requested that he complete and return a health care provider certification form (“HCPC”).[9] Williams did so on or about March 11.[10] On March 17, MetLife formally approved his request for intermittent leave “from February 12, 2014 through February 11, 2015.”[11] On or about June 16, he took his first FMLA leave.[12] And in July, he began dialysis.[13]

         On January 7, 2015, MetLife asked Williams to have his health care provider recertify his continued need for FMLA leave.[14] Williams did so on January 26.[15] On January 27, MetLife approved his request for intermittent leave again “from January 26, 2015 through January 25, 2016.”[16] But by March 2, 2015, he had exhausted his available leave for that period-a fact of which he was not notified until at least March 12.[17] On March 26, Courtney Nolde, ETrade's senior human resources manager, e-mailed Williams regarding this:

I wanted to follow up with you regarding our conversation we had this afternoon. It was explained to you that as of March 2nd you have exhausted your FMLA leave. You are no longer eligible to take time off under the [FMLA], you will be eligible to reapply for FMLA in June 2015. Effective immediately, you are expected to arrive at work on time and work as scheduled. Additionally, if you are to be absent from work you will need to have sufficient Sick Leave and/or Vacation Leave to cover absence from work.
This email does not serve as a verbal warning or any disciplinary action but rather to make sure that you understand what is expected of you going forward. . . .[18]
On April 6, Williams's manager, Nathan van Rij, also e-mailed him about attendance:
This email serves as a verbal warning for failing to meet E*TRADE's attendance guidelines - specifically arriving on time.
. . . You are expected to contact your manager and ETEL if you are delayed in arriving to work. The expectation is that you will arrive to work with sufficient time to log in and be taking calls by the start of your shift. Repeated late arrivals or absences may lead to further disciplinary action up to, and including, termination of employment. We have had conversations in the past regarding attendance, most recently:
On 03/26/2015 you were notified all FMLA leave was exhausted on 03/02/2015.
On 03/31/2015 we again clarified attendance expectations after you were half an hour late, without a call to ETEL on 03/30[.]
After our conversation you were still late every day last week. Logging into CTI at the following times:
03/30 - logged into CTI @ 1:03 - 33 minutes late
03/31 - logged into CTI @ 12:39 - 9 minutes late
04/01 - logged into CTI @ 12:33 - 3 minutes late
04/02 - logged into CTI @ 12:35 - 5 minutes late

         In addition to arriving on time, you are expected to meet all performance metrics when you are at work. Currently, Work time, Average Handle Time, Adherence and Customer facing time are below expectations.

         Based upon our discussion and previous discussions, your inability to consistently be on time for your scheduled shift is below company expectations. In an effort to create an environment for improvement, we have discussed the situation and clarified expectations. Immediate and sustained improvement is required in this area as well as adherence to all job expectations. The need to be on time for your scheduled shift is critical to successful individual performance as well as successful business operations.[19]

         Williams responded to van Rij's e-mail the next day as follows:

Wanted to clarify that I did call ETEL on 03/30/2014 and left a message for you around the same time pre-shift.
I did log in late on more than one day, this was compounded by slow PC start up as we discussed today.
I will work to improve my other metrics.[20]

         Three days later, on April 10, van Rij issued this “Final Written Warning” to Williams for a “trading error”:

The intent of this notice is to inform you that your performance has been below expectations. . . .
On 04/10/2015 a client requested that you enter an order . . . at limit $14.30, you entered the order at limit $440.00. The client caught the error and tried to correct you on the limit price. You did not catch on to what she was saying. You gave her another quote, but failed to change the order or do another read back prior to submitting. While there was no loss to the Company this presented a large risk to the customer and the Firm.
. . . .
. . . Any future error when placing a trade or providing an order read back will result in termination.[21]
On April 22, Nolde issued another warning to Williams regarding his attendance:
As a follow up to our conversation that took place yesterday we are still in the process of trying to make an accommodation for you due to your current health problems. Once a final decision is made as to what teams we are able to move you to I will follow up with you. . . .
Also, per our conversation going forward it is expected that you will report to work on time ready to work for your scheduled shift. A verbal warning was delivered to you by your manager Nathan van Rij on April 6, 2015 regarding your attendance which you acknowledged. Since that warning you have been late to work a total of 7 times. I also had a conversation with you on April 13th where you were told you must show up to work on time for your scheduled shift. Due to your consistent instances of tardiness and the multiple conversations including a verbal warning if you are late again to work this will result in your termination.[22]

         In June 2015, Williams renewed his request for intermittent FMLA leave beginning June 22.[23] On June 29, MetLife sent him a letter stating that his “eligibility and . . . reason for leave are being evaluated to determine whether or not this leave request qualifies.”[24] “If approved, ” the letter continued, “your leave of absence will be counted against your annual entitlement under the FMLA and/or other leave categories.”[25] The letter instructed him to have another HCPC “completed and returned to MetLife by the beginning of your absence or within 15 calendar days of the date of this letter [i.e., June 29] (whichever is later) or your leave request may be delayed or denied.”[26] Thus, according to this letter, Williams had until July 14 to “recertify his FMLA leave.”[27]

         On July 1, MetLife found Williams eligible for FMLA leave and sent him a letter reminding him to complete and return the HCPC enclosed in its earlier correspondence.[28] “Once we receive the completed documents and your absence begins, ” the letter explained, “we will complete our determination of whether your request for family and medical leave qualifies under the [FMLA], state family and medical leave laws and/or your employer's family and medical leave program.”[29]

         In accordance with MetLife's instructions, Williams provided the HCPC to his doctor, Arasu Gopinath, on or about July 10 for completion and submission to MetLife.[30] However, on July 20, MetLife sent him a letter stating:

On June 29, 2015 we sent you a request for information required to certify your need for family and medical leave. You were required to provide complete and sufficient certification information in support of your need for leave within the time specified. To date, we have not received the requested certification information. As a result, your request for leave under the [FMLA], state family medical leave laws and/or your employer's family and medical leave program, as applicable is denied.[31]

         Upon receiving this letter, Williams contacted Dr. Gopinath's office and was told “that he was in India for an extended period of time and that was why the Certification had not been returned to MetLife.”[32] Williams “then asked Jeanette Ricci, a social worker for Dr. Gopinath's office, to complete the necessary paperwork to certify [his] serious health condition and return it to MetLife.”[33] On or about July 27, Ricci did so.[34]

         In the meantime, on July 24, van Rij sent Williams another e-mail:

This email serves as follow up to our discussion after your Performance Improvement Plan (PIP) from 05/22-07/22. The PIP encompassed your struggles with attendance and productivity measures.
As we discussed, you continue arriving to work late. During this review period you had at least 4 additional cases of arriving to work late. You are expected to be at work on time ready for his [sic] shift to start. Another occurrence of you arriving to work late will result in termination.
You are also expected to make meaningful improvements to your productivity . . . .
Please reply acknowledging that you understand one more instance of arriving to work late will result in termination.[35]

         On July 29, MetLife informed ETrade's senior benefits analyst, Mary Beth Giroux, that it had received Williams's HCPC on July 27; that he had until August 5 to provide an “extenuating circumstance”; and that, if he failed to do so, his claim could still “be approved with gap from 07.12.15 to 07.26.15: intermittent fmla [sic] of up to 3 days per week AND 1 day per month from 06.22.15 to 07.11.15 and from 07.27.15 to 06.21.16.”[36] MetLife wrote a letter to Williams that same day regarding this:

On July 27, 2015 we received the requested information. However, because the requested information was received after the time specified, additional information is required.
Action You Are Required to Take:
To continue processing your request, please provide the reason you or someone on your behalf did not provide the information required to certify your need for family and medical leave within the time specified. Please include any documentation supporting your reason.
Supporting documentation includes, but is not limited to copy of a fax transmittal proving your form was faxed timely, documentation from a Health Care Provider regarding a processing delay, or documentation of any extenuating circumstances that prevented you from providing the requested information within the time specified.
Please have this information provided to MetLife within seven (7) calendar days from the date of this letter. Once this information is received we will complete our determination of your family and medical leave request. You will be notified of our decision under separate cover. Failure to provide this information in a timely manner will result in your leave request being delayed or denied in whole or in part.[37]

         On or about August 3, Williams called and informed MetLife that the reason his HCPC had not been received within the time specified was that his “doctor was in India for a couple of weeks and could not fill out [the] form, ” and, “once he found out that the doctor was away, he brought the [paperwork] over to his Social Worker at the dialysis center to fill out[, ] and it took some time ...

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