The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S SUMMARY
Plaintiff, Ryan Boddicker, filed suit against defendant, Esurance, Inc., for violations of the Family Medical Leave Act (FMLA), the Uniformed Services Employment and Reemployment Rights Act (USERRA), and the Consolidated Omnibus Budget Reconciliation Act (COBRA). Esurance moves for summary judgment on all claims. Boddicker resists the motion on the FMLA and COBRA claims. The motion is denied in part and granted in part.
The facts, viewed in the light most favorable to Boddicker, the nonmoving party, are as follows:
Boddicker, a military veteran, worked at Esurance in Sioux Falls, South Dakota. The military recalled him to active duty in February of 2005. While on active duty, he experienced a traumatic event when he believed that some women approaching the area he was guarding carried explosives. After this event, he suffered panic attacks but finished his tour of duty. He returned to Esurance as a sales agent in March of 2006. He continued to experience panic attacks and needed to be absent from work. He applied for and received intermittent FMLA leave from Esurance in April of 2007. In August of 2007, Boddicker informed Esurance that he suffered from Post Traumatic Stress Disorder (PTSD) and needed lengthier FMLA leave to deal with that disorder.
When Boddicker needed FMLA leave, Esurance required Boddicker to call in, speak to a supervisor, and explain why he needed leave. In October of 2007, Boddicker took extended FMLA leave. A supervisor called him at home and told him that he did not have to call in every day. During this conversation, the supervisor also asked Boddicker if he wished to resign. Boddicker declined to resign that day, but later resigned around October 22, 2007, and began working for a different employer.
While on active duty, Boddicker maintained a post office box in Sioux Falls. Esurance and Ceridian, Esurance's independent COBRA plan administrator, listed the post office box as Boddicker's permanent address in their records. In July or August of 2007, however, Boddicker changed his address and no longer maintained his post office box. Boddicker did not receive notice that he could extend his health care benefits under COBRA until after he filed this lawsuit, in March of 2008, because Ceridian sent the notice to the post office box address. Boddicker claims that Esurance knew of his current address and did not inform Ceridian of the new address.
Federal Rule of Civil Procedure 56(c)(2) provides that summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Only disputes over facts that might affect the outcome of the case will preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is not appropriate if a dispute about a material fact is genuine, that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id.
The moving party bears the burden of bringing forward sufficient evidence to establish that there are no genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The court views the facts "in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (internal citation omitted). The nonmoving party also receives "the benefit of all reasonable inferences to be drawn from the underlying facts" in the record. Vette Co. v. Aetna Cas. & Sur. Co., 612 F.2d 1076, 1077 (8th Cir. 1980) (citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 158-59 (1970)).
Evidence based on inferences is acceptable in an employment discrimination case. Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994). Because the court is especially deferential to plaintiffs who base their evidence on inferences, "summary judgment should seldom be used in employment-discrimination cases." Id.; see also Lynn v. Deaconess Med. Center-West Campus, 160 F.3d 484, 486-87 (8th Cir. 1998).
I. Family Medical Leave Act
The FMLA provides that an eligible employee may take twelve weeks of unpaid leave during any twelve-month period. 29 U.S.C. § 2612(a)(1). Congress, in enacting the FMLA, intended to provide job security for employees who must miss work because of their own illnesses or to care for qualified family members. 29 U.S.C. §§ 2612(a)(1)(A)-(D). Not only does the FMLA ensure that employees receive medical leave, but it is also an anti-discrimination statute. 29 C.F.R. § 825.220(c) ("The Act's prohibitions against 'interference' prohibit an employer from discriminating or retaliating against an employee . . . for having exercised or attempted to exercise FMLA rights"); Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 730 (2003) (expanding employment discrimination to FMLA claims).
The FMLA does not impose strict liability on employers. Throneberry v. McGehee Desha Cnty. Hosp., 403 F.3d 972, 979 (8th Cir. 2005). Rather, an employee must allege a claim of either interference or retaliation, also called the FMLA discrimination theory. 29 U.S.C. §§ 2615(a)(1), (2). The difference between interference and retaliation claims " 'is that the interference claim merely requires proof that the employer denied the employee his entitlement under the FMLA, while the retaliation claim requires proof of retaliatory intent.' " Wisbey v. City of Lincoln, Neb., 612 F.3d 667, 675 (8th Cir. 2010) (quoting Stallings v. Hussmann Corp., 447 F.3d 1041, 1051 (8th Cir. 2006)). Boddicker alleges both interference and retaliation claims.
A. Interference Under the FMLA
Congress made it "unlawful for any employer to interfere with,
restrain, or deny the exercise of or the attempt to exercise, any
right provided under" the FMLA. 29 U.S.C. § 2615(a)(1).*fn1
This is commonly called the interference theory.
Throneberry,403 F.3d at 977. "In an interference claim, an 'employee
must show only that he or she was entitled to the benefit denied.' "
Stallings, 447 F.3d at 1050 (quoting Russell v. N. Broward Hosp., ...