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Bushfield v. Donahoe

United States District Court, D. Idaho

December 6, 2012

Michael BUSHFIELD, Plaintiff,
v.
Patrick R. DONAHOE, Postmaster General of the United StatesPostal Service, Defendant.

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[Copyrighted Material Omitted]

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Jeremiah Matthew Hudson, Vaughn Fisher, Fisher & Hudson, PLLC, Boise, ID, for Plaintiff.

Nicholas J. Woychick, U.S. Attorney's Office, Boise, ID, for Defendant.

MEMORANDUM DECISION AND ORDER

CANDY W. DALE, United States Magistrate Judge.

INTRODUCTION

Before the Court is Defendant Patrick Donahoe's Motion for Summary Judgment filed pursuant to Fed.R.Civ.P. 56(c). (Dkt. 23.) Donahoe, the Postmaster General of the United States Postal Service, requests summary judgment on the two claims former postal service employee Michael Bushfield asserts in his Complaint, filed on May 26, 2011. Bushfield alleges both interference and retaliation under 29 U.S.C. ยงยง 2615(a)(1) and (a)(2) of the Family Medical Leave Act (" FMLA" ). For the reasons set forth below, Donahoe's motion for summary judgment will be denied. Genuine issues of material fact exist and preclude the Court from finding as a matter of law that the Postal Service did not violate the FMLA.

FACTS[1]

Bushfield applied for work with the Postal Service on or about October 31, 2007, and later was offered a position as a full-time mail handler at the Postal Service's Boise Processing and Distribution Center. Before starting work, Bushfield completed an Appointment Affidavit on November 29, 2007. The Affidavit contained an acknowledgment that Bushfield's employment " may be terminated at any time should it be determined that [he had] falsified any information contained in [his]

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application for employment or in th[e] affidavit." (Dkt. 25-3 at 23.) (emphasis added).

One of the questions in the Affidavit asked Bushfield if he had been fired from employment for any reason, to which Bushfield answered " no." Id. Bushfield certified that all of his answers in the Affidavit were true as of November 29, 2007. Bushfield had, however, been let go from his previous job at Aladdin Bail Bonds. (Dkt. 31 at 44; Dkt. 28 at 10-11.) Bushfield had intended to continue working at Aladdin until he was scheduled to begin work at the Postal Service on December 26, 2007, but upon submitting his letter of resignation, he was told by Aladdin to go home and not to return. (Bushfield Depo. at 78, Dkt. 28 at 11.)

On December 6, 2007, Bushfield completed a medical questionnaire for the Postal Service.. The questionnaire was given to all career appointees and was used by the Postal Service to determine a prospective employee's medical suitability and ability to perform the specific duties of the position for which he had applied. The medical questionnaire asked numerous questions, including the following with Bushfield's answers in bold:

1. Do you consider yourself to be in good health? Yes.
33. Have you been treated for a mental or psychiatric problem in the past five years? No.
34. Are you receiving counseling or taking any medicine for a mental or psychiatric problem? No.
54. How do you rate your health?
A. Excellent
B. Good
C. Fair
D. Poor
60. Do you have a family doctor or healthcare provider/clinic? No.
64. Within the past year has a doctor advised you to take medicine regularly? No.
68. Are you currently being treated for an illness or injury? No.
71. Have you been advised that you currently have a serious health condition? No.

Bushfield acknowledged that his failure to " answer truthfully on this form may result in my ineligibility for employment ... or may result in my termination of employment," and he certified that all answers were true and correct " to the best of [his] knowledge and belief." (Dkt. 24-1 at 2.)

In addition to the medical questionnaire, Bushfield reviewed and signed a form on December 6, 2007, describing the functional and environmental characteristics of the position, and certified that he did not have any " medical disorder or physical impairment which could interfere in any way with the full performance of duties of the position for which [he] was applying." (Dkt. 28-1 at 25.) The functional characteristics listed included such requirements as being able to lift up to 70 pounds, pulling, reaching, walking, standing, being outside and being subjected to noise and dust.

With the questionnaire, Bushfield signed a Medical Authorization and Release form consenting and authorizing any health care provider to disclose to the Postal Service any information or records concerning his " health or medical history as may be relevant and necessary for a determination of my physical and medical suitability for employment" with the Postal Service. (Dkt. 24-1 at 12.) On December 26, 2007, prior to beginning work, Bushfield reviewed and recertified that the information contained in the Appointment Affidavit was correct.

Bushfield began work on December 26, 2007. He completed his ninety day probationary

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period without any unscheduled absences. However, beginning March 29, 2008, Bushfield began to have unscheduled absences. As a result, on October 22, 2008, he was issued a Letter of Warning for unscheduled absences without an acceptable explanation that had occurred on March 29, April 20, August 18, September 10, October 4, and October 5, 2008. (Dkt. 25-3 at 17.)

Following the letter of warning, Bushfield received a seven day suspension for " irregular attendance" on January 23, 2009. (Dkt. 28-1 at 30.) The suspension letter indicated that a review of Bushfield's attendance record since December 6, 2008, revealed absences on December 6, 14, and 21, 2008, and January 3 and 17, 2009. However, after a meeting with Bushfield's union representative, the suspension was settled through the grievance process and Bushfield continued to work during the suspension. (Bushfield Depo., Dkt. 28 at 17.) During an investigative interview that occurred on January 23, 2009, Bushfield indicated he had completed FMLA paperwork at the suggestion of one of his supervisors, Ryan Mothershead, when he was counseled about his attendance problems. (Dkt. 30-1 at 3, 40.) He explained that his prior attendance problems were caused by a health condition that he was " processing FLMA paperwork for."

On or about February 10, 2009, Bushfield submitted a request for FMLA leave. The request included a FMLA certification dated February 5, 2009, from Bushfield's physician, Dr. Karen McPeak, indicating that Bushfield suffered from a service connected disability for PTSD, a chronic condition requiring periodic visits for medical follow up. (Dkt. 28-1 at 26.) Dr. McPeak indicated that the approximate date the condition commenced was June of 2005, when Bushfield received an honorable discharge from military service. Dr. McPeak also indicated that Bushfield required period visits with his therapist, and that he would be unable to work when having an acute episode. Bushfield's request for intermittent FMLA leave was approved on February 20, 2009. (Dkt. 31-1 at 2.) He was approved for unscheduled leave " 2-3 times every 3 months for one day each time." He was not asked to present a fitness-for-duty certificate to be restored to employment.

After approval of Bushfield's FMLA leave request, the FMLA coordinator, Shelly Galindo, suggested to Bushfield's supervisors that they investigate further regarding Bushfield's answers to his pre-employment questionnaire and his doctor's certification that his PTSD symptoms began prior to his employment. On February 23, 2009, Bushfield's supervisor, Marc Boyer,[2] and the Manager of Labor Relations in Spokane, Jim Sykes, requested and obtained copies of Bushfield's pre-employment medical questionnaire. (Dkt. 28-5 at 3-4.) Upon reviewing the answers, they undertook further investigation.

On March 12, 2009, Boyer interviewed Bushfield with his union representative, Ernie Barnett, present. Boyer removed Bushfield from the work floor to do so. (Dkt. 30-1 at 3.) The questions Boyer asked Bushfield included questions about his treatment for PTSD, how often he visited with his doctors, and about his pre-employment paperwork, wherein Bushfield denied having a medical condition for which he was being treated. (Dkt. 28-5 at 5-7.) [3] Bushfield acknowledged during the

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interview that he had been seen for the condition, but clarified that he was not receiving " frequent treatment. I didn't know it was such a big thing. It wasn't until I filed for disability [in July of 2008] [4] that I understood it was a serious condition." (Dkt. 28-5 at 6.)

On March 19, 2009, Boyer again questioned Bushfield, with Barnett present. (Dkt. 28-5 at 7.) Boyer drafted and asked Bushfield a series of sixty-nine questions about his PTSD and FMLA leave, and advised Bushfield his answers could be used against him. (Dkt. 28-4 at 10.) The questions covered the severity of his PTSD episodes, the side effects, any incapacitation he suffered, medication necessary to recover, the longest time he had ever been incapacitated due to PTSD, his history of " mental breakdowns," and whether it was possible to make a " complete recovery." (Dkt. 25-5 at 7-15.) [5]

On March 25, 2009, Dr. McPeak submitted a letter to the Postal Service at Bushfield's request to clear up the confusion regarding Bushfield's PTSD diagnosis. Dr. McPeak wrote that Bushfield's medical records showed he was seen only once for nightmares in 2005, a symptom suggestive of PTSD, and that he sought irregular treatment thereafter. She explained that ...


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