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Bullard v. Fedex Freight, Inc.

United States District Court, M.D. Tennessee, Nashville Division

November 9, 2016




         L. Kristen Bullard brings this action against her former employer, FedEx Freight, Inc. (hereinafter “FedEx”), after it terminated her employment for excessive absences and tardiness. (Doc. No. 10.) She alleges that FedEx violated the Family Leave and Medical Act (“FMLA”), 29 U.S.C. § 2601, et seq., Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., and Tennessee state law when it terminated her employment. (Id.) Before the Court is FedEx's Motion for Summary Judgment. (Doc. No. 34.) In response to FedEx's motion, Bullard voluntarily dismissed her state law claims. (Doc. No. 47 at 2 n.1.) For the following reasons, FedEx's motion is GRANTED IN PART and DENIED IN PART.


         In 2004, FedEx hired Bullard as a supplemental field office employee. (Doc. No. 46 at 1.) As part of a company-wide realignment, FedEx rehired Bullard on January 1, 2011, as an Administrative Assistant-Senior Manager. (Id.) When FedEx hired Bullard, she signed an offer letter and an accompanying “Conditions of Employment” document, stating: “To the extent the law allows an employee to bring legal action against the Company, I agree to bring the complaint within the time prescribed by law or 6 months from the date of the event forming the basis of my lawsuit, whichever expires first.” (Id. at 1-2.) It gave FedEx “the absolute unfettered right to change its policies, rules, regulations, and procedures unilaterally, at any time, without prior notice.” (Id. at 2.)

         A. Background

         In 2007, FedEx first approved Bullard's request for intermittent FMLA leave. (Id. at 4.) Bullard has lupus dermatomyositis, which can cause her to have a rash, muscle stiffness, weakness, and pain on any given day. (Doc. No. 51 at 1.) When her symptoms flare up, she has more pain, moves slower, and sometimes cannot walk. (Id.) It may take her two hours to do something that would otherwise take twenty minutes. (Id.) For much of Bullard's employment, her start time was 7:00 a.m., but she claims FedEx gave her a fifteen-to-thirty minute window to clock-in as an informal accommodation for her disability. (Doc. No. 51 at 2.) In late-2013/early-2014, FedEx changed Bullard's start time to 7:30 a.m., which Bullard understood was to accommodate her disability. (Id.)

         FedEx has a written attendance policy, as well as an unwritten customary call-in procedure. (Doc. No. 46 at 5; Doc. No. 51 at 6-7.) The Attendance Policy states that an employee is late if she is more than three minutes late to her scheduled shift. (Doc. No. 46 at 5.) It requires an employee who will be late to notify her supervisor within thirty minutes of her scheduled start time. (Doc. No. 51 at 6-7.) FedEx's call-in procedure requires an employee to provide notice of a tardy or absence two hours before her scheduled start time, via telephone. (Doc. No. 46 at 5.) FedEx counseled Bullard on the call-in procedure. (Id.)

         Under the Attendance policy, every time the employee is absent, FedEx assigns her one attendance point. (Doc. No. 41-1 at 2-3.) For every tardy, the employee is assigned 0.5 attendance points. (Id.) After five attendance points within a rolling 180-day calendar-day period, the employee is placed on ninety days of probation. (Id. at 4.) Any points assigned to an employee during her probationary period would lead to that employee's discharge. (Id.) Approved absences due to FMLA do not count toward FedEx's disciplinary process as long as the employee submits proper documentation and gives notice “within a reasonable time prior to” the employee's start time, “or as soon as practical.” (Doc. No. 46 at 6-7.) “Practicability should be based upon circumstances related to the FMLA need.” (Id. at 7.)

         From 2004 until 2007, FedEx issued nine Corrective Action Forms to Bullard because of her unexcused tardies and/or absences. (Id.) Between February 2007 and October 2013, District Manager Frank Center was “overly lenient” in handling Bullard's FMLA requests, and Bullard did not receive any corrective actions. (Id.) For example, Center had allowed Bullard to use FMLA to cover tardy incidents related to her lack of child care, which was not covered under the FMLA. (Doc. No. 51 at 11.) After Center passed away, Tommy Jackson, the Fleet District Manager, began tracking Bullard's time, and issued her nine corrective actions, eventually leading to her termination in December 2014. (Doc. No. 46 at 8.) When Jackson took over, he and Charles Elkins, the Senior Manager of Regional Fleet Maintenance, discussed Bullard's attendance issues with Human Resources. (Id.) They then discussed FedEx's policies on attendance and the FMLA with Bullard, and informed her that they would adhere to those policies moving forward. (Id.)

         On March 27, 2014, Elkins discovered that Bullard did not have a start time in the system for the day. (Id. at 8.) Bullard told Elkins that she scanned in, but she was unsure if the machine was working. (Id. at 9.) Bullard turned in a Kronos Edit Form, estimating that she started her shift at 7:32 a.m. (Id.) However, FedEx's video camera showed that Bullard did not enter the building until 7:38 a.m. (Id.) As a result of the misinformation on Bullard's Kronos Edit Form, FedEx terminated Bullard's employment for falsifying her Kronos Edit Form. (Id.) Bullard appealed her termination, asserting that Jackson had only asked her to estimate her clock-in time when filling out a Kronos Edit Form on a prior occasion. (Id.) FedEx reinstated Bullard's employment. (Id. at 10.)

         B. The Alleged-FMLA Violations

         During the next few months, Bullard received multiple Corrective Actions for attendance reasons. (Id. at 10.) On July 17, 2014, Bullard was late because she was in a substantial amount of pain. (Doc. No. 51 at 13.) She requested that FMLA time cover this absence in an email dated October 1, 2014. (Doc. No. 37-2 at 13.)

         On August 6, 2014, Bullard received a Corrective Action for allegedly clocking in late, and warned Bullard that any future “attendance points, ” accumulated for tardiness or absences, would result in FedEx placing Bullard on probation.[1] (Doc. No. 46 at 11.) That day, Elkins and Christina Wilson, the Employee Relations Advisor for the Nashville District of FedEx, met with Bullard and informed her that her FMLA certification no longer covered episodic incapacities, such as tardiness. (Doc. No. 46 at 11.) Bullard had used the same certification for years and it had always covered episodic incapacities. (Id.) They provided Bullard new paperwork, which Bullard completed. (Doc. No. 51 at 14.) On August 11, 2014, FedEx approved Bullard's FMLA certification for episodic incapacity for flare ups estimated at three times per month. (Id.) However, Elkins and Wilson told Bullard that she would still have to give proper notice under the call-in procedure. (Doc. No. 46 at 12.) Bullard stated that she could not comply with the two hour notice procedure, so FedEx agreed to amend the call-in procedure to one hour prior to the start time. (Id.)

         On August 19, 2014, Bullard called Elkins from the side of the road at 6:56 a.m. stating that she was going to be late because she was having a flare-up. (Id. at 14.) Bullard was in a lot of pain in the morning, but hoped it would subside. (Id. at 15.) Because Bullard did not call one hour in advance of her start time, FedEx assessed a tardy and placed her on leave without pay for exceeding the allowable number of attendance points. (Id.)

         C. The Investigation

         On September 9, 2014, Bullard sent Wilson an email requesting a reasonable accommodation of schedule flexibility. (Doc. No. 46 at 16.) Wilson noted that on numerous occasions, her manager had offered to let her move her start time to later in the morning, which Bullard declined because she needed to sync her work schedule with her child care needs. (Id.) Bullard admitted that she did not want to modify her start time, but instead wanted FedEx to give her flexibility in the time she had to clock-in when her symptoms flared up. (Id.)

         On October 3, 2014, Jackson spoke with Bullard on the phone. (Doc. No. 40-14 at 1.) She told Bullard that her previously-marked unexcused tardies from July 17 and August 19 would be counted as FMLA time. (Id.) However, because Bullard did not follow the call-in procedure, FedEx did not remove those attendance points, and Bullard was still on leave without pay. (Id.) She stated that Bullard's September 9 request for schedule flexibility was still pending, and after a determination of that request, FedEx will decide whether to remove her attendance points from July 17 and August 19 and reinstate her. (Id.)

         On October 14, 2014, Pullen and Bullard spoke by phone and offered to reinstate her employment. (Doc. No. 37-1 at 16.) Bullard declined because of stress. (Id. at 17.) It is disputed, and neither party provides any evidence, as to whether FedEx asked Bullard to turn in medical certification regarding her stress, or whether the stress was related to Bullard's previous certification. (Id. at 17-18.)

         On October 15, 2014, Bullard submitted a Reasonable Accommodation Review form to FedEx's Reasonable Accommodation Review Committee. (Id. at 18.) Bullard restated her September 9 request that FedEx not hold her to the three minute clock-in rule on days when her condition flares up, provided that she still works eight hours from the time she clocks in. (Id.) Bullard testified that ...

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