United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
M. Hood Senior U.S. District Judge.
Lee Anna Becknell, a former employee of the University of
Kentucky College of Dentistry, alleges that the University
violated the Family and Medical Leave Act
(“FMLA”), 29 U.S.C. §§ 2601-2654, when
it engaged in certain actions and eventually terminated
Becknell's employment after she was granted FMLA leave.
Becknell alleges both FMLA interference and retaliation.
response, the University argues that Becknell's claims
are barred based on sovereign immunity and that, in any
event, it is also entitled to summary judgment on the
substantive claims as a matter of law.
parties have filed cross motions for summary judgment. Having
considered those motions, Becknell's motion for summary
judgment [DE 33] is GRANTED IN PART and
DENIED IN PART. Similarly, the
University's motion for summary judgment [DE 34] is
GRANTED IN PART and DENIED IN
Becknell's claims are not barred based on sovereign
immunity because, in Nev. Dep't of Human Resources v.
Hibbs, 538 U.S. 721 (2003), the United States Supreme
Court held that Congress expressly abrogated sovereign
immunity under the family-leave provision of the FMLA.
Becknell is entitled to summary judgment on her claim for
FMLA interference arising from the University's decision
to discipline Becknell for failing to comply with the College
od Dentistry's twenty-four-hour notice policy for
temporary disability leave. Otherwise, the University is
entitled to summary judgment pertaining to FMLA interference
for refusal to allow Becknell to use paid leave and requests
for Becknell's marriage license and training list.
summary judgment for both parties is denied on the FMLA
retaliation claim because genuine disputes of material fact
exist pertaining to whether the University had a legitimate,
non-discriminatory reason for terminating Becknell's
and finally, summary judgment on the issue of damages is
premature at this point and is denied.
Procedural and Factual Background
Lee Anna Becknell was employed at the University of Kentucky
College of Dentistry. Most recently, Becknell served in the
position of Account Clerk 3. [DE 34-1 at 4-5, Pg ID 254-55].
In this role, Becknell was responsible for accounts
receivable reports (“ARRs”) and explanations of
benefits (“EOBs”) for patient accounts.
evening on Wednesday, March 8, 2017, Becknell's husband
was hospitalized due to an apparent diabetic coma.
[Id. at 7, Pg ID 257; DE 33-1 at 5, Pg ID 122].
Becknell contacted her direct supervisor, Adrian Thompson,
that same night to notify him of her husband's medical
emergency. [DE 33-3 at 13, Pg ID 157]. Becknell was absent
from work on the subsequent Thursday and Friday following her
husband's hospitalization. [Id. at 14, Pg ID
Becknell submitted an initial request for FMLA leave on
Monday, March 13, 2017. [DE 34-19 at 1, DE 34-11 at 8, Pg ID
329]. Becknell requested FMLA leave from March 9, 2017, until
April 3, 2017. [DE 34-19 at 1-5, Pg ID 382-86].
March 15, 2017, while Becknell's FMLA request was
pending, a representative from the University of Kentucky
Medical Center contacted Becknell to notify her that her
husband would be released later that day and that she must be
present to receive care instructions before he could be
discharged. [DE 33-1 at 5-6, Pg ID 122-23]. Becknell
submitted an absence request that morning so that she could
be at the hospital when her husband was discharged. [DE 33-13
at 1, Pg ID 212].
on March 22, 2017, Becknell's FMLA request was initially
denied by the University of Kentucky because the University
claimed their records did not show that Becknell was
currently married. [DE 33-14 at 1, Pg ID 213]. Additionally,
that same day, Thompson issued a corrective action memorandum
due to Becknell's failure to provide twenty-four
hours' advance notice when she left work early on March
15, 2017, the day of her husband's discharge from the
hospital. [DE 33-17 at 1, Pg ID 218]. According to the
memorandum, the College of Dentistry Attendance and Time
Reporting Policy requires that scheduled temporary disability
leave “be approved by the supervisor no later than 24
hours in advance.” [Id. (emphasis omitted)].
on March 24, 2017, Becknell's FMLA leave was approved by
the University, with a retroactive effective date for FMLA
leave beginning on March 8, 2017, and extending until April
3, 2017. [DE 33-19 at 1, Pg ID 221]. Still,
retroactive application of Becknell's FMLA leave did not
restore her pay for the afternoon of March 15, 2017, because
Becknell “had violated the University's time and
attendance policy.” [DE 34-1 at 10, Pg ID 260;
see also DE 34-8 at 4, Pg ID 315; DE 34-21 at 7, Pg
April 4, 2017, the day Becknell returned from her approved
FMLA leave, the University provided a due process statement
to Becknell. [DE 33-20 at 1-2, Pg ID 222-23]. The due process
statement inquired about two work related items: (1) EOBs
from December 2016 that the University claimed had not been
completed, even though Becknell allegedly indicated that they
had been completed; and (2) EOBs where the transaction note
date and the date of entry into the University's axiUm
database did not match. [Id.]. Becknell provided
handwritten responses to each of the inquiries.
the University of Kentucky terminated Becknell's
employment on April 12, 2017. [DE 33-21 at 1, Pg ID 224]. The
employee separation sheet explained that Becknell was
“terminated due to falsification of other
records.” [Id.]. Of course, the parties
dispute the actual reason that Becknell was terminated.
to the University, Becknell was terminated because she
changed the date field in the transaction notes in the axiUm
database system, entering dates that did not represent the
actual date that she entered the note into the patient's
file. [Id.; see also DE 34-1 at
10-13, Pg Id. 260-63]. The University asserts that
Adrian Thompson, Becknell's supervisor, discovered this
practice when working on Becknell's accounts while she
was on FMLA leave. [DE 34-1 at 10, Pg ID 260]. Additionally,
the University states that an audit of Becknell's
records, initiated after the University received her
responses on the due process statement, found that several
other accounts had been falsified. [Id. at 12, Pg ID
262]. The University argues that Becknell's practice of
changing the transaction date constitutes falsification of
University records in violation of University Policy # 12.0.
[DE 33-21 at 2, Pg ID 225].
Becknell argues that she was terminated because she took FMLA
leave. Becknell claims that there was no policy preventing
her practice of changing the transaction dates and that her
supervisors were aware of her method for inputting patient
data. [DE 33-1 at 9, Pg ID 126]. Furthermore, Becknell argues
that she was singled out while on FMLA leave because the
College of Dentistry failed to investigate whether any other
accounts receivable counselors had engaged in the same method
of data entry. As such, Becknell asserts she was fired based
on her decision to take FMLA leave.
result, Becknell initiated the present lawsuit in Fayette
Circuit Court claiming FMLA retaliation, FMLA interference,
and a claim for unpaid wages pursuant to K.R.S. §
337.010(1)(c). The action was removed to this Court pursuant
to 28 U.S.C. § 1331, arising under jurisdiction, on
December 15, 2017. [DE 1]. After discovery, the parties filed
cross motions for summary judgment. [DE 33; DE 34]. Those
motions have been fully briefed and are ripe for review.
[See DE 35; DE 37; DE 38; DE 41].
Standard of Review
judgment is appropriate only when no genuine dispute exists
as to any material fact and the movant is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a). A material
fact is one “that might affect the outcome of the suit
under governing law.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). The moving party has the
burden to show that “there is an absence of evidence to
support the nonmoving party's case.” Celotex
Corp. v. Catrett, 477 U.S. 317, 325 (1986). “A
dispute about a material fact is genuine if the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party.” Smith v. Perkins Bd. of
Educ., 708 F.3d 821, 825 (6th Cir. 2013) (internal
quotations omitted). The Court construes the facts in the
light most favorable to the nonmoving party and draws all
reasonable inferences in the non-moving party's favor.
See Anderson, 477 U.S. at 248; Hamilton Cty.
Educ. Ass'n v. Hamilton Cty. Bd. of Educ., 822 F.3d
831, 835 (6th Cir. 2016).
present motion for summary judgment, Becknell argues that she
is entitled to summary judgment on her FMLA interference and
retaliation claims. Becknell also asserts that she is
entitled to summary judgment on Defendant's mitigation of
damages defense and that she is entitled to damages under the
FMLA as a matter of law.
the University of Kentucky asserts that it is entitled to
summary judgment based on all of Becknell's claims, based
on sovereign immunity and because the University had a
legitimate, non-discriminatory reason for terminating
Becknell's employment. These arguments are addressed in
the University claims that Becknell's claims for FMLA
interference and FMLA retaliation are barred by sovereign
immunity. But the University's argument amounts largely
to an invitation for this Court to disregard over
fifteen-years of binding Supreme Court precedent. In so
doing, the University asks this Court to violate the maxim
that there are old judges and bold judges, but there are no
old, bold judges.
Eleventh Amendment to the United States Constitution bars
suits by private litigants in federal courts against states
and state agencies, including agencies like the University of
Kentucky. U.S. Const. amend. XI; Alabama v. Pugh,
438 U.S. 781, 781-82 (1978); Hutsell v. Sayre, 5
F.3d 996, 999-1003 (6th Cir. 1993) (discussing sovereign
immunity and finding that a suit against the University of
Kentucky Board of Trustees and University employees in their
official capacities was a suit against the state for Eleventh
as the University concedes, sovereign immunity under the
Eleventh Amendment is not absolute and is subject to certain
limited exceptions. Relevant here, sovereign immunity may be
abrogated by Congress with respect to rights protected by the
Fourteenth Amendment. Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 99 (1984) (citing
Fitzpatrick v. Bitker, 427 U.S. 445 (1976)). Still,
the United States Supreme Court has “required an
unequivocal expression of congressional intent to
‘overturn the constitutionally guaranteed immunity of
the several States.'” Id. (quoting
Quern v. Jordan, 440 U.S. 332, 342 (1979) (holding
that 42 U.S.C. § 1983 does not override States'
Eleventh Amendment immunity)).
Nev. Dep't of Human Res. v. Hibbs, the United
States Supreme Court held that Congress clearly explicated an
intent to abrogate the sovereign immunity of states for the
purposes of the family-care portion of the FMLA and that, in
doing so, Congress acted within its authority under the
enforcement section of the Fourteenth Amendment. 538 U.S.
721, 726-40 (2003). This abrogation of sovereign immunity by
Congress for the family-leave provision of the FMLA has been
recognized by the Sixth Circuit and other courts. See,
e.g., Diaz v. Michigan Dep't of Corr., 703
F.3d 956, 960-61 (6th Cir. 2013); Touvell v. Ohio
Dep't of Mental Retardation & Developmental
Disabilities, 422 F.3d 392, 394, 397-98 (6th Cir. 2005)
(discussing Hibbs and stating that the Supreme Court held
“that the ‘family-care' provision of the Act,
§ 2612(A)(1)(C), which entitles employees to take leave
to care for seriously ill family members, abrogated state
immunity.”); Algie v. Northern Ky. Univ., No.
08-cv-109-DLB-JGW, 2013 WL 624396, at *5 (E.D. Ky. Feb. 20,
it is undisputed that Becknell requested FMLA leave under the
family-care provision of 29 U.S.C. § 2612(a)(1)(C). Even
so, notwithstanding the status of Hibbs as binding
precedent, the University claims it is entitled to sovereign
immunity in two ways.
the University invites this Court to adopt the holding of the
three dissenting justices in Hibbs. See
Hibbs, 538 U.S. at 744-59 (Kennedy, J., joined by Scalia
& Thomas, JJ., dissenting). Moreover, the University also
points to concurrences in Coleman v. Ct. of App. of
Md. to support its contention that Hibbs was
incorrectly decided. See 566 U.S. 30, 44-45 (2012)
(Scalia, J., & Thomas, J., concurring).
our common-law legal tradition, courts decide the applicable
law by interpreting statutes and applying precedent based on
the principle of stare decisis. “Stare
decisis ‘promotes the evenhanded, predictable, and
consistent development of legal principles, fosters reliance
on judicial decisions, and contributes to the actual and
perceived integrity of the judicial process.'”
Pearson v. Callahan, 555 U.S. 223, 233 (2009)
(quoting Payne v. Tennessee, 501 U.S. 808, 827
(1991)). Thus, while “[s]tare decisis is not
an inexorable command, ” courts must “approach
the reconsideration of [their] decisions . . . with the
utmost caution.” State Oil Co. v. Khan, 522
U.S. 3, 20 (1997) (internal quotation marks omitted).
motion for summary judgment, the University's argument
largely amounts to regurgitation of dissents and concurrences
from previous cases. [See DE 34-1 at 17-19, Pg ID
267-69]. Additionally, and more importantly, the University
has failed to develop a compelling argument the would justify
considering departure from the holding in Hibbs. For
instance, the University has not argued that abandoning the
precedent from Hibbs “would not upset
expectations.” See Pearson, 555 U.S. at 233.
To the contrary, holding that Hibbs was incorrectly
decided would uproot nearly fifteen years of precedent,
constituting a major shift in the applicable law.
Furthermore, the Supreme Court “has expressed its
reluctance to overrule decisions involving statutory
interpretation.” Khan, 522 U.S. at 20 (citing
Ill. Brick Co. v. Illinois, 431 U.S. 720, 736
(1977)). In Hibbs, the holding rests on the Supreme
Court's interpretation of the FMLA statute and the power
of Congress to abrogate the sovereign immunity of the states.
Finally, the University has not argued that experience has
pointed to precedential shortcomings of the Hibbs
decision. As a result, the University has not provided a
sufficiently compelling justification for this Court to
consider departing from the precedent in Hibbs.
result, absent an extremely compelling justification to
consider departing from Hibbs, which is lacking
here, this Court is bound by the holding of the United States
Supreme Court and refuses to consider the propriety of the
holding in Hibbs. If the University genuinely
believes that there is a compelling reason to depart from the
rule of law announced in Hibbs, that argument must
be raised before the Supreme Court.
the University argues that it is entitled to sovereign
immunity on Becknell's FMLA retaliation claim because the
University argues that Hibbs is limited to FMLA
interference claims under 29 U.S.C. § 2612(a)(1). But
neither the statutory language in § 2612(a)(1) nor the
holding in Hibbs is as limited as the University
The relevant statutory provision of the FMLA states,
[A]n eligible employee shall be entitled to a total of 12
workweeks of leave during any 12-month period for one or more
of the following:
(C) In order to care for the spouse, or a son, daughter, or
parent, of the employee, if such spouse, son, daughter, or
parent has a serious health condition.
29 U.S.C. § 2612(a)(1)(c). Nothing in the plain language
of this statutory provision pertaining to family-care
distinguishes between FMLA interference and retaliation.
the Supreme Court's holding in Hibbs is not
limited to situations involving FMLA interference. The
holding of the Supreme Court in Hibbs is “that
employees of the State of Nevada may recover money damages in
the event of the State's failure to comply with the
family-care provision of the Act.” Hibbs, 538 U.S. at
725. The Court did not limit its holding to interference with
the family-care provision of the FMLA as opposed to
retaliation or discrimination under the FMLA. Instead, the
Supreme Court held that Congress abrogated sovereign immunity
in the event of a state's failure to comply with
the family-care provision of the FMLA.
Sixth Circuit has acknowledged a similar understanding of the
holding in Hibbs. In Diaz, the court explained that
“[i]n Nevada Department of Human Resources v.
Hibbs, the Supreme Court held that a state employee may
recover money damages in federal court for a state's
failure to comply with the family-care provision of the
Family Medical Leave Act.” 703 F.3d at 958 (emphasis
the University has not cited any authority, nor is this Court
aware of any binding authority, that interprets
Hibbs to be limited to the FMLA interference
context. As a result, the University's argument for
sovereign immunity on Becknell's FMLA retaliation claim
Hibbs constitutes binding precedent that stands for
the proposition that Congress expressly abrogated the
sovereign immunity of the states for failure to comply with
the FMLA family-care provision. As such, the University's
claim for summary judgment based on sovereign immunity under
the Eleventh Amendment must be denied.