Showing posts with label eligibility determination. Show all posts
Showing posts with label eligibility determination. Show all posts

Wednesday, February 5, 2014

Sixth Circuit: Employer With “Loose” Policies Loses FMLA Appeal When It Fails to Reinstate the Plaintiff or Notify Her of Her Rights

Yesterday, in a rather amusing opinion describing an all-too-typical situation, the Sixth Circuit Court of Appeals reversed summary judgment for an employer with “kind of loose” employment policies on an FMLA claim brought by a security guard who was not reinstated to her former (or any available) position following her maternity leave.  Clements v. Prudential Protective Services, LLC, No. 13-1414 (6th Cir. Feb. 3, 2014).  Although the employer posted the mandatory FMLA notice, it did not provide employees with the similarly mandatory notice of their FMLA rights, or provide them with an eligibility or designation notice when they sought FMLA leave.  Indeed, it did not seem to have any written employment policies or regular employment practices at all.  The district court held that the plaintiff was not unfairly prejudiced by the employer’s many FMLA violations.  However, in light of the employer’s many inconsistent actions and statements, “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, [the appeals court did] not believe that summary judgment for defendant [employer] is appropriate.”

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.

Monday, September 29, 2008

Sixth Circuit: Eligibility Determination for Intermittent Leave Begins With Each FMLA Year Regardless of When FMLA Absence Began.

Today, the Sixth Circuit affirmed dismissal on summary judgment of an FMLA claim where the employee began intermittent leave on December 13 for chronic depression and did not return to work until January 15. Davis v. Michigan Bell Telephone Co., 07-1512 (6th Cir. 9/29/08). Although the employee had been eligible for FMLA leave when she began her absence on December 13, she had not worked 1250 hours in 2004 and, thus, was ineligible for FMLA leave in 2005. When her therapist informed her employer that she was capable of returning to work on January 3, but she did not return until January 15 – despite a warning from her employer, the employer deemed her absence as unexcused and terminated her employment in February for the chronic poor attendance. Although another physician later certified in March that the plaintiff’s continuing absence was related to her chronic depression, the employer determined that she was ineligible under the FMLA because a new leave year began on January 1 and she had not worked 1250 hours in the preceding calendar year. The Court rejected the plaintiff’s claim that she was not given effective notice of her ineligibility.

According to the Court, “[w]hen an employee has a chronic health condition for which intermittent FMLA leave has been approved, the leave commences upon the occurrence of the first absence caused by that condition, and it extends to cover every other absence caused by that condition during the same twelve-month FMLA period.” Thus, once an employee is deemed eligible for FMLA leave, every period of intermittent leave taken during the rest of that FMLA leave year for the same medical condition is deemed to be covered – regardless of the intermittent periods of work and regardless of whether the employee had worked 1250 hours in the twelve months preceding each absence. “In other words, each absence subsequent to the first absence is not treated as a separate period of FMLA leave with its own commencement date. To hold otherwise would render the term “intermittent leave” meaningless and would effectively read it out of the FMLA since a period of intermittent leave “must, by definition, comprise periods . . . in which the employee is present at work.” Id. “Thus, a series of absences, separated by days during which the employee is at work, but all of which are taken for the same medical reason, subject to the same notice, and taken during the same twelve-month period, comprises one period of intermittent leave.”

On the other hand, that intermittent leave, “can only extend to the end of the twelve-month FMLA period in which it began. See id. at 681-83. Once a new twelve-month FMLA period begins, any additional absences caused by that same chronic condition would constitute a new period of intermittent FMLA leave. See id. at 681. Otherwise, there would be no point at which the initial period of intermittent FMLA leave ended and a new period commenced. Under that scenario, employees would never have to reestablish their eligibility for FMLA leave and would therefore be perpetually entitled to twelve weeks of FMLA leave per year based on a single eligibility determination . . . . a period of intermittent leave cannot last beyond the specific twelve-month FMLA period in which it begins. Therefore, absences caused by the same chronic condition, but occurring in different twelve-month FMLA periods, must constitute different periods of FMLA leave. And as different periods of leave, they must have different times of commencement. The clear consequence of this is that [plaintiff’s] unexcused absences
in January of 2005, if approved as FMLA leave, would have constituted a new period of FMLA leave that commenced in January of 2005. Therefore, [plaintiff’s] FMLA eligibility was appropriately reevaluated in January of 2005, and the defendant was correct in determining that [plaintiff] was not eligible for FMLA leave with respect to her unexcused absences.”

The Court rejected “the concept of intermittent leave . . . should be considered a single period of leave simply because it is a continuous period of absence. A period of intermittent leave, however, is not made up of a single continuous absence. As explained above, an employee does not begin a new period of leave with each new absence. An obvious corollary to this rule is that the simple act of returning from an absence does not itself terminate a period of intermittent leave. Since a period of intermittent leave is not terminated solely by the act of returning to work, there is no basis for saying that [plaintiff’s] intermittent leave terminated when she returned to work on January 15. But it is obvious that the period of intermittent leave that began in September of 2004 must end at some point. If the intermittent leave that began in September of 2004 instead ended upon the beginning of a new twelve-month FMLA period, then [plaintiff’s] request for FMLA leave in 2005, if approved, would have constituted a new period of FMLA leave commencing in January of 2005. Thus, the ultimate question presented by [plaintiff’s] argument is whether her intermittent leave in 2004 ended upon the occurrence of a new twelvemonth FMLA period, or whether it ended at some arbitrary point, such as her return to work on January 15. Since the act of returning to work itself does not terminate a period of intermittent leave, there is no principled reason to conclude that [her] intermittent leave should cover absences up to January 15, but not those occurring thereafter. There is, however, a logical basis for concluding that [her] intermittent leave terminated upon the beginning of a new twelve-month FMLA period. Because the FMLA speaks in terms of twelve-month periods, see 29 U.S.C. § 2612(a), the most reasonable conclusion is that a period of intermittent leave terminates when a new twelve-month FMLA period begins.”

The Court based its conclusion on a balancing of the needs of the employee with the needs of the employer. “It would be unduly burdensome on a business’s need to operate efficiently and profitably if the business were required to provide an employee with twelve weeks of intermittent leave per year perpetually based on the fact that the employee was eligible for FMLA benefits on a single day. In order to accommodate the reasonable interests of businesses, it must be possible to reevaluate employees’ eligibility at some point, and the only logical method of finding that point is to conclude that a new period of intermittent leave commences when a new twelve-month period begins.”

The Court also rejected the employee’s equitable estoppel and faulty notice arguments on the grounds that an ineligible employee is not entitled to FMLA leave even if the employer were late in notifying the employee of his or her eligibility.

Insomniacs can read the full opinion at http://www.ca6.uscourts.gov/opinions.pdf/08a0353p-06.pdf.

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.