Last month, the Sixth Circuit Court of Appeals reversed an employer’s summary judgment and remanded the case for the trial court to determine whether the plaintiff employee could qualify as in loco parentis for her adult sister and, thus, be eligible for FMLA leave. Chapman v. Brentlinger Enterprises, No. 23-2582 (6th Cir. 12/13/24). It also remanded on the grounds to determine whether the employer retaliated against her for seeking FMLA leave and for being associated with an individual with a disability based on it, among other things, providing false information to dispute her unemployment compensation claim and telling her to choose between her job and her sister. It affirmed that the employer did not retaliate for threatening to seek Rule 11 sanctions for pursuing a frivolous FMLA claim and for imposing $85/day fines for failing to send the mandatory COBRA notice.
According to the
Court’s opinion, the plaintiff employee’s sister, who lived in Louisville, was
dying from cancer and the plaintiff (who worked in Columbus) was helping her
other sister (who apparently lived in another state) to care for her. Her request for FMLA leave was denied because
she was not the parent. However, she was
given paid and unpaid leave and her work schedule was reduced to permit her
more time off. That being said, she
alleged that the HR Representative indicated that she should choose between her
sister and her job. When her healthy
sister’s flight was delayed, she claimed to have attempted to contact her
employer on Sunday night to let them know that she would be late on
Monday. However, the text was not
received until mid-Monday morning, after the employer attempted to call her
when she was late reporting to work, and she was terminated. Her sister died two days later. The employer apparently informed the
unemployment office that she abandoned her job, disenrolled her from the
medical plan the next month, but then failed to send her a COBRA notice. When her lawyer threatened to file suit under
the ADA, the employer’s lawyer threatened to see sanctions under Rule 11.
The trial court
agreed that the FMLA does not allow for time off to care for a sibling and
could not be “in loco parentis” unless that parental relationship or the
serious illness began while the sibling was a minor. Otherwise, the list of
enumerated relationships covered by the FMLA would be meaningless. The court explained that “if merely caring for
someone with a serious ailment could create an ‘in loco parentis’ relationship,
then anyone who took time off to care for a seriously ill nephew, cousin, or
friend would have an ‘in loco parentis’ relationship with that person.”
However, the appellate court found that it was
an issue of fact. In examining the FMLA, it concluded the statute and
regulations to be ambiguous about when the parental relationship must have begun. It found no requirement that it must begin before the onset of the serious illness.
It then looked at common law decisions (concerning mostly cases about
survivorship benefits) and found that a cousin, sibling or aunt could qualify
as a parent depending on the circumstances even though the relationship did not
begin until adulthood.
While the FMLA tells us what protections are available for in loco
parentis parents and their children, this case hinges on whether [the plaintiff]
was an in loco parentis parent at all. The FMLA neither defines “in loco
parentis” nor specifies how or when these relationships form. We know that the
FMLA contemplates in loco parentis relationships that involve children who are
eighteen or older. After all, the FMLA states that an employee, including an in
loco parentis parent, can take time off to care for a sick child over the age
of eighteen if that child has a disability that renders them incapable to care
for themselves. Id. § 2611(12)(B). But in that situation, the text does not say
whether the in loco parentis relationship or the child’s disability must have
started during the child’s minority. The text also does not specify whether the
in loco parentis relationship must predate the child’s incapacity. Resolving
this case requires us to answer those questions.
. . .
we drew an analogy to legal adoption, which is not limited to minors.
Id. The definition of an in loco parentis relationship from the Cyclopedia of
Law and Procedure centered on adoption: “A person standing in loco parentis to
a child is one who has put himself in the situation of a lawful parent by
assuming the obligations incident to the parental relation, without going
through the formalities necessary to a legal adoption.” . . . .
. . . [The employer] argues that
Niewiadomski—which also surveyed the common law—weighs
in its favor because there, we observed that an in loco parentis relationship
“is essentially different from the relationship of brother and sister,” which
does “not include the legal obligations existing between parent and child.” . . . But that observation just restates an obvious
point: when a person acts in loco parentis to another, they take on duties of
care and support that surpass what is typically shown toward a sibling.
The observation does not rule out the possibility that a sibling could take on
those duties. And Niewiadomski explicitly declined to rule on the question
of whether a deceased cousin’s adulthood foreclosed the possibility that an in
loco parentis relationship formed when his slightly older cousin took him in.
. . . .
Therefore, reading the FMLA against the backdrop of the common law, we
conclude that in loco parentis relationships can form between adults, including
adults who also happen to be siblings. Contrary to the district court’s
reading, the “child” in the in loco parentis relationship need not be a minor
at the time the relationship forms, have developed a debilitating condition as
a minor, or have developed that condition before the relationship formed.
Indeed, under the common law, a debilitating condition was not a requirement at
all.
It also concluded that
she had alleged sufficient facts to warrant reconsideration, although it was
still unclear whether she would qualify under the common law standard as a
parent instead of as a sibling who shared care-giving duties with another
sibling. “The district court’s concern assumes that ‘merely caring for someone
with a serious ailment’ creates an in loco parentis relationship. As we
describe later, that’s not so; it requires a more robust relationship.” The
court’s decision indicates that:
Between June 20 and 25, [the plaintiff] used her allotted paid time off
to travel to Kentucky to take care of [her dying sister]. [She] alleges that
she supported her sister financially by paying some portion of her bills and
buying groceries and other essential household items. She also cooked her
sister’s meals and hand fed her, helped her use the bathroom, cleaned her up
when she was incontinent, brushed her hair and teeth, and took care of her
apartment by cleaning, taking out the trash, and doing laundry. She managed some of her sister’s medical needs by administering over-the-counter
medications, using massage tools and hot-and-cold packs, and shifting her
around in bed to prevent bed sores. She also provided emotional support. [Her]
other sister . . . . provided similar
care to [the dying sister] during the same period. On some days, [the
plaintiff] or [her other sister] took care of [the dying sister] alone, and on
others, the sisters divided the responsibilities. [The other sister] was [the
dying sister’s] medical power of attorney. When [the plaintiff] ran out of paid
days off, [the employer] allowed her to take unpaid leave at its discretion,
but it was unclear for how long.
A number of factors
remain to be explored.
The touchstone of this inquiry is intention. As Lord Cottenham observed
in synthesizing Lord Eldon and Sir Grant’s definitions, “the principal value”
in the definition of in loco parentis is “the intention, rather than . . . the
act of the party.” . . . Accordingly, we ask not just whether a person
has taken on the role of a parent by “assuming obligations” of a parental
nature, but also whether they have done so “with the intention” of serving as a
parent. . . . It’s not enough that a person has provided for
another as a parent might, though that “raises a strong inference that the
person had assumed the character of a parent.” Id. The person “must have
intended to assume” that role. . . . . Other
circuits examining the common law agree, emphasizing that “the loco parentis
relationship is such that it must reside in the minds and hearts of the parties
involved.”
But how do we know adult parties intended to assume a parental
relationship? In some cases, we have relied on direct evidence that the parties
thought of themselves as parent and child, including their internal
communications and statements to others that they perceived themselves as being
akin to a “mother” or “son.” Mainly, however, courts have relied on indirect
evidence to discern the parties’ intent. Courts look for “objective
manifestations” of a parent-child relationship, including “the kind of service
done and the kind of thing given.” Banks, 267 F.2d at 538–39.
. . .
Juxtaposing two of our precedents provides helpful guidance. In both Niewiadomski and Thomas, an adult relative—who either had no
immediate family or was estranged from immediate family—came to live with an
older relative (though the cousin in Niewiadomski was only a few months older, while the aunt
in Thomas was about two decades older). . . . The cases have many similarities. We
noted in both that the alleged in loco parentis parent took her cousin or
nephew into her home and provided lodging, a seat at the table for meals,
medical care, and clothing. . . . The
alleged in loco parentis children also accompanied the families on vacations,
exchanged gifts on the holidays, and contributed to household chores. . . . And in both cases, the younger relatives later
served in the military and designated their aunt or cousin as the beneficiary
of their statutorily provided military life insurance, identifying the
relationship as parental . . . Both
servicemen died while serving in the military, and the cousin in Niewiadomski and aunt in Thomas sought to collect as the in loco parentis
parent. . . .
Yet in Niewiadomski we held there was no in loco parentis
relationship, while in Thomas, we held there was. . . . This distinction rested on several key
factors. Perhaps most significant, we focused on the direct evidence of how the relatives thought of one another. Recall
that the “intention” to take on a parental role is critical, so in Niewiadomski, the older cousin’s own testimony that they referred to one another as
“brother” and “sister” and that “she considered the insured as a brother, and
not as a child” was the “most conclusive factor” in the case. . . . . Contrast that with Thomas. While in the army, the nephew sent his aunt “intimate letters of
affection,” including a “so-called ‘Mother-gram’” on Mother’s Day, concluding
with: “You are a wonderful Mother.”
The Court also
remanded to reconsider the retaliation claim.
The plaintiff alleged that co-workers with poor attendance were not
terminated under similar circumstances and, if that she was not fired for being
absent but in retaliation for having requested FMLA leave (even if she ultimately
were not eligible for FMLA leave).
Also, the employer provided false information to oppose her unemployment
compensation claim by claiming that she abandoned her job when it was admitted
that she was fired and that she had not quit or abandoned her job.
A jury could find that making false statements to an unemployment
authority is a “plainly adverse repercussion on [the plaintiff] and her family”
because it can result in “the loss of income associated with unemployment
benefits.” . . . The false statements, or threat thereof, may
require a plaintiff to choose whether to “seek vindication” of her rights or
“risk a former employer’s intentional efforts to . . . stymie her receipt of
income.” Id. And they could reasonably dissuade her from choosing the former.
Interestingly, it
did not find the threat of Rule 11 sanctions to be retaliatory because lawyers
are supposed to send such a letter before filing a Rule 11 motion.
The Court also
remanded the plaintiff’s ADA claim. Although she was not entitled to leave under
the ADA to care for her sister, it would violate the ADA to fire her because of
her association with her dying sister.
She alleged that the HR Representative had told her that she should
choose between her sister and her job and she was fired when she was late
returning to work from caring for her sister.
She alleged that the employer made a discriminatory assumption that her
sister was distracting her from her job duties. “The ADA thus prevents an
employer from terminating an employee based on “unfounded fears that [the employee]
would be distracted at work on account of” a loved one’s disability."
Finally, the Court
affirmed the $85/day fine for failing to provide the plaintiff with the
mandatory COBRA notice. It maximum fine
is $110/day. “ The district court reasoned that Chapman had not produced
evidence that MAG violated COBRA in bad faith, but that she had shown she was
“significantly prejudiced by the lack of notice.” . . . Because
she did not receive notice of her coverage options under COBRA, Chapman did not
acquire health insurance until May 2020. Without coverage, she delayed
treatment for a condition she later discovered was malignant skin cancer.”
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.
