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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON Case No. 99cv1262 ALLEN vs. THE BOEING COMPANY Response In Opposition To Defendant’s Motion For Summary Judgment RESPONSE TO DEFENDANT’S MOTION Comes now the plaintiff LARRY DALE ALLEN to respond in opposition to the Defendant’s Motion for Summary Judgment (Defendant’s Motion). STANDARD FOR SUMMARY JUDGMENT The presence or absence of a genuine issue as to material fact is the first issue that must be decided by the court in any summary judgment motion. Anderson v. Liberty Lobby, Inc. (1986) 477 U.S. 242, 91 L. Ed. 2d. 202, 106 5. Ct. 2505 and Celotex Corp. v. Catrett, (1985) 477 U.S. 317, 322-323, 91 L. Ed. 2d. 265, 106 5. Ct. 2548 provide the ground rules for making this determination. These ground rules are that the facts must be seen in the light most favorable to the non-moving party, Anderson, 477 U.S. at 255, citing Adickes v. S.H Kress & Co., (1970) 398 U.S. 144, 158-159, 26 L. Ed. 2d. 142, 90 S. Ct. 1598, but the non-moving party may not rest on his allegations, but must by his own affidavits, depositions, answers to interrogatories, and admissions on file set forth specific facts showing that there is a genuine issue of material fact for determination at trial, Celotex Corp., 477 U.S. at 324. The Ninth Circuit adopted these same grounds rules in their essence in Retail Clerks Union Local 648, AFL-CIO v. Hub Pharmacy, Inc., (9th Cir 1983) 707 F. 2d. 1030. The opposing party may not rest on conclusory allegations, but must set forth specific facts showing genuine issue of material fact. Berg v. Kincheloe, (9th Cir. 1986) 794 F. 2d. 457, 459; Lake Nacimiento Ranch Co. v. County of San Luis Obispo, (9th Cir. 1987) 841 F. 2d. 872, 876. GENUINE ISSUE OF MATERIAL FACT EXISTS THAT LARRY DALE ALLEN WAS UNABLE TO PERFORM THE FUNCTIONS OF HIS EMPLOYMENT DUE TO A FLARE UP OF HIS GOUT, THAT HIS PHYSICIAN CERTIFIED THE CONDITION,AND THAT THE BOEING COMPANY KNEW ABOUT THE CONDITION The Boeing Company moves for a summary judgment dismissing this action on the grounds that there is no genuine issue of material fact that the plaintiff was properly discharged for attendance violations and that the Family Medical Leave Act (FMLA) was not violated. The basis of the defendant’s position is that the gout, if it indeed flared up as a result of the stress of his father’s illness and death, and of taking care of his grieving mother, was not so severe that it could have prevented him from performing his duties as an employee of the defendant. While FMLA leave is permitted to care for seriously ill family member, when that family member dies, he no longer needs the care, and the FMLA does not provide for leave after the death. Lange v. Showbiz Pizza Time, Inc., (D. Kan. 1998) 12 F. Supp. 2d. 1150, 1154; Fisher v. State Farm Mutual Auto Ins. Co., (E.D. Texas 1998) 999 F. Supp. 866, 871; Beal v. Rubbermaid Commercial Products, (S.D. Iowa 1997) 972 F. Supp. 1216, 1226; Brown v. J.C. Penney Corp., (S.D. Fla. 1996) 924 F. Supp. 1158. This is the defendant’s argument. While these decisions are instructive, they are not binding upon this Court. The FMLA is a remedial statute. Congress passed it to provide those who toil with enforceable rights. The Ninth Circuit found that such statutes should be interpreted broadly. In Lambert v. Ackerley, (9th Cir. 1999) 180 F. 3d. 997, 1003, the en banc panel found: Over fifty years ago, the Supreme Court determined the approach that must be followed in construing the provisions of the Fair Labor Standards Act. A number of the other circuits have explicitly followed that approach. It is a simple one, often used in construing statutes designed to protect individual rights. In Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 597, 64 5. Ct. 698, 88 L. Ed. 949 (1944), the Court explained that because the FLSA is a remedial statute, it must be interpreted broadly. As the Tennessee Coal Court wrote: [The FLSA is] remedial and humanitarian in purpose. We are not here dealing with mere chattels or articles of trade but with the rights of those who toil. . . Those are rights that Congress has specifically legislated to protect. Such a statute must not be interpreted or applied in a narrow, grudging manner As the Fair Labor Standards Act (FLSA) must be interpreted broadly, so must the FMLA. The FMLA was passed in 1993, only seven years ago. As such, there are few Court of Appeals opinions and perhaps no Supreme Court opinions published interpreting this statute. The case law cited by the defendant in its Memorandum in Support of Defendant’s Motion for Summary Judgment (Defendant’s Memo) does not include any opinion interpreting the FMLA by the Supreme Court, by the Ninth Circuit Court of Appeals, or by any district court within the Ninth Circuit, except Marchisheck v. San Mateo County, (9th Cir. 1999) 199 F. 3d. 1068. Marchishek is inapplicable to the present case because in that case, a mother took time off to relocate her son to the Philippines to protect him from further beatings. The son suffered a black eye as the result of a fight, but this was not considered to be a serious health condition because, in part, he was not unable to perform work or other regular daily activities for at least three consecutive days. The plaintiffs father suffered from a far more serious condition than Ms. Marchishek’s son. In his Declaration of Larry Dale Allen in Opposition to Defendant’s Motion for Summary Judgment (Allen Declaration) the plaintiff declares: Prior to May 4, 1999 my father was in the hospital for approximately 4 weeks, during this time I was at the hospital nearly every night. While I was there I would eat my meals from the vending machines. Gout is brought on by poor nutrition. A person with gout is supposed to eat like a diabetic. Obviously eating from vending machines is not going to supply a nutritious diet. This I believe is what brought on my gout attack. On at least two of these nights I spent the night at the hospital. My father was trying to get out of bed and the nurses asked me to stay as long as possible because he would fight them and they could not control him. I would then go to work from the hospital. This had been wearing me down plus seeing my father in this condition caused me to experience some stress. He had a stroke and was slowly dying. My father passed away on May 4 but his funeral was not until May 12. This testimony is corroborated by the plaintiffs testimony in his deposition: Declaration of Paul B. Smith in Support of Defendant’s Motion for Summary Judgment (Smith Declaration) Exhibit A, Transcript of Deposition of Larry Dale Allen (Allen Dep.) pages 5 1-52. The father’s condition prior to death qualifies as a serious medical condition within the meaning of 29 U.S.C. �2611(11) and 29 CFR 825.114. But the plaintiff did not take leave prior to his father’s death, he went to work. When his father passed away, he requested and the defendant approved 3 days of bereavement leave, May 5-7, 1999. However, the gout flared up some more, grief reaction and stress, and the plaintiff took the following week off work, May 10-14, 1999. During this time the plaintiff performed chauffeur services for his mother and assisted with funeral arrangements. The defendant argues that this defined him ineligible for FMLA leave because of these activities, citing Fisher, supra, at 999 F. Supp. 869. But, as the Ninth Circuit is now on record that remedial statutes designed to protect employees are to be interpreted broadly to protect the rights that Congress specifically legislated to protect, this is an erroneous argument when applied to the duties the plaintiff performed for the defendant. Mr. Fisher was a white collar employee of an insurance company. A condition that might not render an employee unable to perform the functions of an office job, could render that same employee unable to perform the functions of a blue collar job, particularly one with demanding physical labor requirements, degree of difficulty, and necessity that it be performed just right. If it is not performed just right, lives could be at stake. There are many blue collar jobs that are thus more demanding physically than attending meetings, working with a computer, drafting reports, determining insurance liability and benefits payable, or crunching the numbers of a structural or electrical design. This is not to disparage the demands upon the engineer, computer programmer, lawyer, judge, clerk, secretary, draftsman, insurance agent and adjuster, or corporate manager, these jobs are demanding. But being able to operate a motor vehicle does not mean that a person can safely and competently assemble the parts of a vertical fin of a Boeing 767. The plaintiff declares: The gout flares usually lasts about a month. In May 1999, the gout was flaring before and after my father’s death. This did not keep me from operating a motor vehicle and from accompanying my mother in the Snohomish County Courthouse. However, being able to do this is not the same as climbing up the vertical fin of a 767 inside the Everett Plant to assemble parts. Spending all day walking on concrete floors and climbing ladders and scaffolding and man lifts, and cranking wrenches is a lot of physical labor. A disability that will not incapacitate a white collar worker at his desk could incapacitate a blue collar worker assembling an aircraft. There is a public safety issue here. If I do not feel right about assembling the rudder assembly of a commercial aircraft, I should not perform such an assembly and hope that the aircraft operates safely in both flight test and after delivery. Rudder bolts are torqued to 100 foot-pounds and 80 foot-pounds. Trunnion bolts are torqued to 100 foot-pounds, 80 foot-pounds, and 60 foot- pounds. Same torque levels for actuator bolts. The bolts themselves are 1 1/4 inches in nominal diameter and the hexes are 1 7/8 inch in size. Because of the short clearances, I had to assemble the 1 7/8 inch sockets with 1/2 inch drive on to a short handled torque wrench. The handle was about 16 inches long. To exert 100 foot-pounds, I had to push or pull the handle with at least 80 pounds of force with nothing but human muscle. I push with one arm, the other arm I had to use to hold the wrench head to keep it from slipping off the bolt or the nut. Could not use pneumatic tools because, the nut runner, that is air powered ratchet wrench, for this type of bolt and nut, is too large and too hard to control. Human muscle is much easier to control. If an air powered wrench were to get away from me, it could punch a hole in a composite panel. To save weight, Boeing engineers specify panels made of fiberglass honeycomb, with fiberglass cloth and a sheet of very thin aluminum, just a mil or two thick (mil is .001 inch), all glued together. It is as brittle as cardboard painted with shellac. It is an expensive and time consuming procedure to fix such a panel when it is damaged. Usually we can do this while the fin was laying down on what is essentially two giant saw horses, with about 3 to 5 feet of clearance between the floor and the lower side of the fin. 767 fins are a little more than 30 feet from base to tip, 20 feet wide at the base and are 4 feet thick. There is a center tunnel where personnel have to climb up in to perform assembly work. I used a special little sled with teflon runners to ride on the structural ribs and bulkheads. I would slide inside the fin and perform assembly work. I had to have a light, an air hose for pneumatic tools, my tools, breathing air, everything had to be hooked up. It is always hot on the floor. What I put in is an aluminum rod called the heat compensating tube. It is part of the flight control linkage, as the aircraft gains altitude, it cools down and contracts. By contracting, it takes the slack out of the flight control linkage, allowing the pilot to have firm control of the rudder. This installation had to be done exactly right. If I am unable to perform this task because of a gout flare, then I could not accurately install this vital part. Sometimes, we had to remove and reinstall the large trunnion and rudder bolts after the fin had been installed in the aircraft, this meant wrenching to 100 foot-pounds while on a man lift, sometimes called cherry picker, 30 to 50 feet above the floor. We were always using 60 foot man lifts to remove or install something after the fin was installed on the aircraft. When I was on top of these man lifts, the bucket I stood in would bounce up and down as much as 3 to 4 inches. I had to be careful, drive it in close to the aircraft, with obstacles all around, careful not to hit the side of the aircraft. I used the man lift to install the hydraulic tubes. During final assembly and flight test, these hydraulic tubes were often fully pressurized with fluid. They had to be fully pressurized during final adjustments. I had to make sure that each actuator is pinned after adjustment, had to make sure that I knew which actuator was which, the perspective is so different in the air during final assembly than when on the ground during initial construction. If an actuator was left unpinned, and the hydraulic system turned on and operated, the actuator piston would be driven out and through the front spar of the rudder as fast as a bullet. This is why I was excused from work during a flare up with the gout, during February 1999. This was under the Family and Medical Leave Act or at least on a Boeing authorization based upon the FMLA. Attached is an FMLA form filled out by Dr. Schroder on February 8, 1999. I showed this to my supervisor, Bruce Stout, and he approved the leave when I had a flare up. This job description is corroborated by the plaintiffs testimony in his deposition, Allen Dep. page 12, Exhibit A to Smith Declaration. 29 CFR 825.115 reads: WHAT DOES IT MEAN THAT “THE EMPLOYEE IS UNABLE TO PERFORM THEFUNCTIONS OF THE POSITION OF THE EMPLOYEE”? An employee is “unable to perform the functions of the position” where the health care provider finds that the employee is unable to work at all or is unable to perform any one of the essential functions of the employee’s position within the meaning of the Americans with Disabilities Act (ADA), 42 USC 12101 et seq., and the regulations at 29 CFR � 1630.2(n). An employee who must be absent from work to receive medical treatment for a serious health condition is considered to be unable to perform the essential functions of the position during the absence for treatment. An employer has the option, in requiring certification from a health care provider, to provide a statement of the essential functions of the employee’s position for the health care provider to review. For purposes of FMLA, the essential functions of the employee’s position are to be determined with reference to the position the employee held at the time notice is given or leave commenced, whichever is earlier. 42 U.S.C. �1211(8), and (9) reads: 8. QUALIFIED INDIVIDUAL WITH A DISABILITY The term “qualified individual with a disability” means an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. For the purposes of this subchapter, consideration shall be given to the employer’s judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job. 9. REASONABLE ACCOMMODATION The term “reasonable accommodation” may include- A. making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and B. job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities. The defendant has not set forth specific facts that a reasonable accommodation could have been made that would allow the plaintiff perform the essential functions of his job during a gout flare up, which in this case, is the assembly of parts in a Boeing 767. Even if the defendant could set forth such specific facts 29 CFR 825.702(d) prohibits an employer from requiring the employee to take a reasonable accommodation job in lieu of FMLA leave. However, the employer may be required to offer such a position under the ADA. The defendant did not. Without such reasonable accommodations, a gout flare up resulting from grief reaction that lasts more than three days qualifies the defendant as an employee who is unable to perform the functions of the position of the employee within the meaning of 29 CFR 825.115. As declared by the plaintiff, the defendant, through its agent, Bruce Stout, granted the plaintiff leave during a gout flare up when shown a physician’s recommendation just a few months prior to the events that lead to the termination of employment. PLAINTIFF ADEQUATELY REPORTED TIMELY REQUEST FOR LEAVE SUBSEQUENT TO HIS FATHER’S DEATH Allen Dec. pages 57-59, Exhibit A to Smith Declaration reads in significant part: Q When was the first time, if any time, that you called in to Boeing after your father passed away and just kind of let folks know what was going on, that your father had passed away and that you were going to be out for a while? A It was on the Wednesday the 5th. Q Okay. A As I recall. Q And did you end up speaking with someone or leaving a message? Or what happened? A Yeah. I spoke with Bill Ashlock. Q Why did you speak with him instead of Bruce Stout? A Because Bruce had been transferred again to another area and Bill Ashlock was our temporary supervisor. Q And you spoke with him leave? A Yeah. Yes. Q Do you recall what time of day it was? Morning? Afternoon? A As I recall — I know Bruce says I talked to him, but I talked to Bill Ashlock as far as I know. Yeah, it was, must have been before noon some time on Wednesday. I really don’t remember. Q Did you tell him how long you were going to be out? A No. Q Did he say anything to you? A I think he said, well, okay, you’ll be out on bereavement leave then. I said yeah. And that’s all I recall, you know. It was just a real brief conversation. No warning about three day limit on bereavement leave. No direction to be back at work by the following Monday, as the three days would be up then unless there is some other way of covering any time for the following week. This supervisor did not perform his management function by adequately informing the plaintiff of the consequences of overstaying a bereavement leave. Nor was there any warning about the FMLA not covering bereavement or assistance to the bereaved subsequent to the death of a parent, spouse, or child. THE BOEING COMPANY FARED TO POST ADEQUATE WARNING TO EMPLOYEES THAT FMLA LEAVE IS NOT AVAILABLE FOR BEREAVEMENT SUBSEQUENT TO DEATH OF PARENT, SPOUSE, OR CHILD NOR DID THE DEFENDANT CORPORATION ADEQUATELY INFORM THE PLAINTIFF OF ITS OTHER REQUIREMENTS FOR FMLA LEAVE PRIOR TO MAY 1999 As an FMLA covered employer, The Boeing Company has an obligation under and 29 U.S.C. �2619 and 29 CFR 825.300 and 825.301 to post or otherwise inform employees of their rights under the FMLA. This also includes notice of the limitations of FMLA leave, including limitations with respect to the death of an employee’s parent, spouse, or child. If it is the company’s policy to terminate or otherwise discipline employees who take leave after the death of a parent, spouse, or child, if employee overstays any bereavement leave that employer may provide, then employer has the duty to give fair warning to all of its employees of such policy. BEFORE such leave is taken by employee. Not after. 29 CFR 825.300(b) provides that an employer who fails to post or otherwise provide required notice to employee may not take adverse action against employee for any failure on part of employee to provide advance notice to employer of need to take FMLA leave. Attached as Exhibit A to the Declaration of Yvonne S. Scobie in Support of Defendant’s Motion for Summary Judgment is her transcript of an unemployment hearing concerning the plaintiff before the Washington State Employment Security Department. On pages 3-4, the plaintiff is testifying that he thought it was appropriate to request FMLA leave after an illness, because one cannot predict future health conditions. How is one suppose to know that he is going to be too sick to work the next day? In this transcript of the unemployment hearing and in the Allen Dep. attached to the Smith Declaration, there is a consistent testimony that the plaintiff did not know that he had to specifically request FMLA leave on the first or second day of such leave, and that he was never warned that he could not take FMLA leave after the death of parent, spouse, or child for bereavement. Even the plaintifFs physician, Dr. Schroder, did not know that bereavement or “grief reaction” was not an FMLA qualifying serious medical condition. Defendant’s Memo page 11 lines 1-18 quoting Schroder Deposition pages 18 and 24, attached as Exhibit B to the Smith Declaration. On page 19 of the Deposition Transcript, Dr. Schroder is recorded as saying that he meant that he believed that the plaintiffs absence from work could provide psychological comfort to his mother, who was frail and having difficulties in the aftermath of her husband passing away. Attached to the Declaration of Roger W. Knight in Opposition to Defendant’s Motion for Summary Judgment is a memorandum sent to the Everett Site Employees on or about April 10, 1995 concerning the Family Medical Leave Act. This memorandum clearly states that: Employee should state clearly the reason for absence. If not made clear to the supervisor, the employee must request FMLA within two (2) business days of their return to work. It is very clear from the facts established in this case, from the deposition testimony attached to the Smith Declaration and from the transcript of state unemployment hearings attached to the , that the plaintiff attempted to comply with this memorandum and request FMLA leave within two business days of his return to work. The problem is that neither the plaintiffs supervisor, other Boeing managers, nor Rhesa Gentry or any other Human Resources person, was in any mood to listen to the plaintiff The decision to fire him had already been made and it did not matter what he told them. They were not going to give him a chance to explain any problem related to any grief reaction and gout flare up, they had already decided that he was not entitled to FMLA leave. Given the attitude and determination shown by the defendant’s agents, no one can blame the defendant for momentarily thinking that the reasons for his absences and activities he engaged in while absent were “none of their business”. And who can blame the plaintiff for leaving the company premises and going home? The defendant has not set forth specific facts that it gave this adequate warning of its requirements for FMLA leave and that it gave adequate notice that such leave is not available for bereavement. Therefore, under 29 CFR 825.300(b). the defendant may not take the adverse action that it has taken against the plaintiff, firing him on May 17, 1999. Under 29 U.S.C. � 2614(a)(1), plaintiff was entitled to restoration of his position. CONCLUSION For the reasons stated herein, the Defendant’s Motion for Summary Judgment should be denied. Signature:PAUL H. KING LAW OFFICES OF PAUL H. KING Suite 117 318 Sixth Avenue South Seattle 98104 � 2001 Juritas.com. All Rights Reserved.

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