According to the opinion, the plaintiff began working as a
security guard in 2004. She took a
maternity leave in 2006, but there were disputed facts (i.e., no one agreed
about who said what to who or when) about the employer’s compliance with the
FMLA at that time or what steps the plaintiff took (or even was required to
take) by the employer. In any event, following
her 2006 leave, she was not reinstated to her former command center operator
position, but was demoted to security guard (albeit at the higher rate of pay
she had previously received). In 2009,
she again gave notice to her long-time supervisor that she would be taking
maternity leave. Again, there were disputed
facts about what the plaintiff was told, but everyone agreed that neither she nor
her supervisor notified the employer’s main office or submitted any written
request for maternity leave. There was
also no dispute that no one informed the plaintiff about her FMLA rights. The employer “did not provide its employees
with information regarding the Act other than referring the employee to the
text of the Family and Medical Leave Act if the employee inquired about it and
the presence of a wall poster at certain locations where the guards sign in and
out for their shifts.”
When the plaintiff called her supervisor in July to return
to work from her unpaid leave, she was informed that he was taking a bereavement
leave of absence and that she could not be reinstated because there had been
cut-backs during her leave. Her
supervisor claimed that he had asked the intermediary to also tell the plaintiff
that she could be reinstated at a different work site if she contacted the main
office, but the plaintiff denied every receiving that information and the
intermediary apparently was never deposed.
In any event, the plaintiff
visited the main office and was given a letter from “Human Resources” (aka the COO’s secretary/receptionist/accounts payable-receivables clerk) confirming
that she had been laid off so that she could get unemployment compensation and
defer her credit card bills. However,
the VP of Operations informed her that she had not been laid off because other
positions were available. Nonetheless,
she did not request and was not offered one of these other positions. When she was not reinstated for several
months – despite several calls to her supervisor, she filed an EEOC Charge and
brought a lawsuit under the FMLA for interference with her rights.
Upon seeking summary judgment, the employer’s first defense
was that the plaintiff failed to follow the employer’s “usual and customary”
leave procedures under 29 C.F.R. § 825.302(d). The plaintiff denied that such
procedures existed. The trial court found a disputed issue of fact because the
employer “failed to fulfill its own duties regarding notice to employees under
the Act,” [at 29 C.F.R. § 825.300], and, therefore, “it could not defeat
plaintiff’s claim under the Act by alleging that plaintiff did not follow
procedures that did not exist.” However,
the trial court found that she suffered no prejudice from the employer’s
failure because she was provided with all of the maternity leave that she
sought. The Sixth Circuit was not so
convinced that the plaintiff suffered no prejudice from the employer’s failure
to comply with the FMLA’s notice regulations:
But the record is unclear and creates
uncertainty about whether plaintiff suffered prejudice as to her right under
the Act to return to her previous position or an equivalent position.
Defendant’s lack of internal procedures for employees preparing to take leave,
those on leave and those seeking to return from leave are the source of the
dispute in this case.
The employer next argued that
the plaintiff would have been laid off even if she had not taken maternity
leave. However, the Sixth Circuit
easily rejected this argument in light of the evidentiary conflict created by
the Human Resources letter and the testimony of the VP of Operations that she
had not been laid off due to other positions being available. Moreover, there was no clear evidence that the
plaintiff had ever been informed that she must
request a transfer:
It appears that plaintiff knew
she could go to the main office to receive a new assignment, Clements
Dep. at 116-18, but she did not think that she must go and receive a
reassignment. Instead, plaintiff filed for unemployment and apparently wanted
to wait for an opening at the New Center complex.
Plaintiff seems to have
believed that she had the choice of receiving unemployment benefits or a
reassignment with defendant to a different location. This choice is consistent
with the approval of an employee of defendant, Danielle Todaro, who signed a
letter on the company letterhead stating that plaintiff was “laid off.” She did
this so that plaintiff could provide proof to the government unemployment
office that no suitable position for plaintiff existed at the company. This
letter indicates
that defendant apparently approved, or at least allowed, plaintiff to file for
unemployment benefits in early July 2009 after plaintiff was told there were no
openings at the New Center complex. Defendant is responsible for its agent’s
conduct.
Ultimately, the Court faulted
the employer for failing to have clear policies or documentation explaining to
the plaintiff her responsibilities or rights and failing to document what
communications had transpired as required by the FMLA regulations:
These inconsistencies in
defendant’s interaction with the plaintiff and the lack of communication led to
the confusion about plaintiff’s status with the company. Even a cursory review
of the record reveals that defendant had virtually nothing in the way of
written policies and procedures for any aspect of its business. Matthew
Keywell, vice-president of operations for defendant, described the hierarchy of
the reporting system at the company as “kind of loose.” . . .
Keywell’s deposition testimony reflects that it was impossible to pin him down
on explaining any direct chain of command or lines of communication at the
company from the guard positions and site supervisors who were located in
various buildings and parking lots across the metro Detroit area all the way up
through to the “operations managers” who worked in the “main office” as it was
called. . . . No paperwork of any kind was prepared by
Lively, Keywell or anyone in the main office when an employee went on “leave.”
Keywell testified that the procedure of instructing employees to inform the
main office about leave is not written down anywhere, and there were no forms
that an employee who wished to take leave would have filled out.
. . .
The record is full of
inconsistent statements like this by defendant’s employees, and it is unclear
whether plaintiff was “laid off” or whether defendant wanted plaintiff to
return to work at a location other than New Center. Keywell understates the
situation when he explains in his deposition that the defendant’s employment
policies were “kind of loose.” It seems that there were no policies. In light
of this lack of clarity and the failure of defendant to give its employees
notice of how to proceed upon completion of leave under the Act, we do not
believe that summary judgment for defendant is appropriate.
NOTICE:
This summary is designed merely to inform and alert you of recent legal
developments. It does not constitute legal advice and does not apply to any
particular situation because different facts could lead to different results.
Information here can change or be amended without notice. Readers should not
act upon this information without legal advice. If you have any questions about
anything you have read, you should consult with or retain an employment
attorney.
