United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER ON MOTIONS FOR SUMMARY
Nuffer, United States District Judge.
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
ETrade has also filed a motion for summary judgment on the
issue of liability. 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.
was entitled to FMLA leave. .
adverse action of ETrade interfered with Williams's FMLA
rights. .. .......................... 15
action was related to the exercise of Williams's FMLA
rights. . ........................ 16
on the record and evidence presented, there is no genuine
dispute as to any of the following material facts.
24, 2010, Williams began employment as a “financial
services representative” for ETrade. His job entailed answering
calls from ETrade customers ordering investment
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.” ETrade contracts with Metropolitan Life
Insurance Company (“MetLife”) to administer
ETrade's FMLA program.
has end-stage renal disease. In February 2014, he requested
intermittent F M L A leave related to dialysis
On February 25, MetLife found Williams eligible for FMLA
leave and requested that he complete and return a health care
provider certification form
(“HCPC”). Williams did so on or about March
March 17, MetLife formally approved his request for
intermittent leave “from February 12, 2014 through
February 11, 2015.” On or about June 16, he took his first
FMLA leave. And in July, he began
January 7, 2015, MetLife asked Williams to have his health
care provider recertify his continued need for FMLA
Williams did so on January 26. On January 27, MetLife approved his
request for intermittent leave again “from January 26,
2015 through January 25, 2016.” 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
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. . .
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
. . . 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
On 03/26/2015 you were notified all FMLA leave was exhausted
On 03/31/2015 we again clarified attendance expectations
after you were half an hour late, without a call to ETEL on
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
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.
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.
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.
days later, on April 10, van Rij issued this “Final
Written Warning” to Williams for a “trading
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.
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
2015, Williams renewed his request for intermittent FMLA
leave beginning June 22. 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.” “If approved, ” the
letter continued, “your leave of absence will be
counted against your annual entitlement under the FMLA and/or
other leave categories.” 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.” Thus, according to this letter, Williams
had until July 14 to “recertify his FMLA
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. “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
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. 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.
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.” 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.” On or about July 27, Ricci did
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
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
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.” 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
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 ...