The FMLA Blog

Liquidated Damages Provisions of FMLA Provide Adequate Remedy to Preclude State Wrongful Discharge Claim

In Deffenbaugh v. Winco Fireworks Int., LLC, No. 06-2516-CM, 2007 U.S. Dist. LEXIS 69350 (D. Kan. Sept. 18, 2007), the employee sued her employer alleging violations of the FMLA, and a state common law claim for wrongful discharge in violation of Kansas public policy.  Under Kansas law, an employee may not bring a common law wrongful discharge claim for violation of a public policy when there is an adequate statutory remedy. 

The employee argued that the FMLA did not provide an adequate statutory remedy because of the unavailability of emotional distress or punitive damages under that law.  Such damages are available under the state wrongful discharge law.  The employer argued that the availability of liquidated damages provided an adequate statutory remedy thereby precluding the state wrongful discharge claim.

The court agreed with the employer.  The FMLA allows an employee to recover actual damages for any economic loss suffered.  It also allows for the recovery of liquidated damages if the employer acted in bad faith.  Liquidated damages under the FMLA, the court held, serve as a deterrent. 

The court went on to distinguish the decision of the Kansas Supreme Court in Hysten v. Burlington N. Santa Fe Ry. Co., 277 Kan. 551, 108 P.3d 437 (Kan. 2004).  There, the court found that the federal statue did not provide an adequate remedy because, in part, the statue did not permit recovery for compensatory or punitive damages, noting that such damages deterred violations.  Because it found that the liquidated damages provisions of the FMLA was also intended to deter violations, the court in Deffenbaugh held that the FMLA provides an adequate statutory remedy.  The plaintiff, the court concluded, cannot bring a common law wrongful discharge claim.

Comment: Note that the court based its decision because liquidated, punitive, and emotional distress damages all have the same purpose: to deter violations. The fact that liquidated damages may not result in the same level of award as punitive or emotional distress damages was not a factor. 

Holidays Occuring During FMLA Leave Count Against Employee's 12-Week FMLA Leave Entitlement

In a case of first impression, the First Circuit sustained 29 CFR 825.220(f), which provides that a work holiday occurring during an employee's absence on FMLA leave counts against the employee's 12-week FMLA leave entitlement. 

In Mellen v. Trustees of Boston University, No. 07-1151, 2007 U.S. LEXIS 22518 (1st Cir. Sept. 21, 2005), the employee argued that she did not receive her full 12-week FMLA leave entitlement because BU counted 3 holidays that occurred during her use of intermittent FMLA leave.  With the three days, Mellen would have had sufficient leave to cover her absence until she returned to work. 

Mellen argued that, since her leave was intermittent, only the days she actually missed from work, and not holidays, should be counted.  29 CFR 825.205(a)("If an employee takes leave on an intermittent or reduced leave schedule, only the amount of leave actually taken may be counted toward the 12 weeks of leave to which an employee is entitled").  Mellen argued that, since she would not have worked the holidays, she did not "actually take" FMLA leave on those days and, therefore, those days should not count.

BU countered by citing 29 CFR 825.200(f), which provides that in calculating the amount of FMLA leave taken, holidays occurring within a week taken as FMLA leave have no effect. 

The court agreed with BU.  The court found that 825.205(a) and 825.200(f) are not in conflict, but work together.  The requirement in 825.205(a) that the "amount of leave actually taken" is the "amount of leave used" as defined in section 825.200(f), the court found.  Again, 825.200(f) counts a holiday that occurs during an FMLA leave absence against the employee's 12-week FMLA leave entitlement.  The court rejected the employee's contention that such a construction rendered 825.205(a) meaningless.  The court explained:

As the examples in the regulation demonstrate, the provision's purpose is to ensure that an employer does not claim that an employee who takes off one day during a five-day work week has taken off the entire week, or that an employee who works half days under a reduced leave schedule has taken off more than half a day.  Its purpose is not to give an advantage to an employee who takes off five weeks but designates it intermittent leave over an employee who takes off five weeks as continuous FMLA leave.

Comment: The decision effectively sustains the validity of 825.200(f) no matter whether FMLA leave is taken in a single block of time, intermittently, or on a reduced leave schedule. 

"Cat's Paw" Exception Applies to FMLA Retaliation Claims

In Marzella v. Embarq Florida, Inc., No. 2:05-cv-591-FtM-29SPC. 2007 U.S. Dist. LEXIS 66652 (M.D. Fla. Sept. 10, 2007), the court applied the "cats paw" or "rubber stamp" exception to an FMLA retaliation case.  Generally, to prove retaliation an employee must establish a casual connection between the adverse action and the exercise of FMLA rights.  Courts have held that a casual relationship is not established where the decision maker lacked knowledge of the employee's protected activity.  The "cats paw" or "rubber stamp" exception allows an employee to establish a causal connection even though the decision maker was unaware of the employee's FMLA protected activity. 

Under the cat's paw" theory, causation may be established if the employee shows that the decision maker followed the biased recommendation of another without independently investigating the matter before agreeing to the adverse action.  In that case, the recommender is using the decision maker as a mere conduit, or "cat's paw" to give effect to the recommender's discriminatory animus.

The court sent on to find that the "cat's paw" theory of causation did not apply.  The court noted that the ultimate decision maker (1) was unaware of the employee's FMLA activity; (2) he reviewed the employee's entire disciplinary history; and (3) consulted with the legal department prior to making the decision to terminate Marzella.   

Comment: The applicability of the "cat's paw" theory to FMLA retaliation cases reinforces the need for decision makers to conduct an independent investigation of the facts and evaluation of the propriety of the penalty before imposing discipline recommended by others, particularly those who are directly involved with the dispute with the employee.  Ignorance of the employee's FMLA activity may not be a defense to a decision maker who simply rubber stamps the adverse action of others where those others had discriminatory motives.

Labor and employee advocates will want to closely scrutinize the independence and reasonableness of the investigation conducted by the purportedly unaware and neutral decision maker.  Factors for consideration include the source of the information relied on, the amount of time devoted to the independent investigation, whether witnesses were re-interviewed, and whether the decision maker consulted with counsel or other experts prior to making the adverse action decision at issue.

Employee's Unilateral Announcement That He Would Change His Work Schedule Was Insufficient Notice of Need for FMLA Leave

In Costello v. Public Service Enterprise Group, No. 05-3344 (AET), 2007 U.S. Dist. LEXIS 64145 (D.N.J. Aug. 30, 2007), the employee was upset as a result of delays in assigning him to a 4-week rotation day shift schedule.  He complained that the delay in assigning him a shift schedule was making it difficult to care for his seriously ill father.  At all relevant times, PSEG knew that Costello had taken time off to care for his father. 

After a few months without resolution, Costello informed management in writing that he would no longer be reporting for work as scheduled, and that he had unilaterally decided to assign himself to a 4-week rotation shift schedule.  The letter detailed Costello's qualifications for the position.  It also reiterated that his current schedule was causing problems regarding his ability to provide care to his elderly father.  Costello missed several days of work.  The days missed coincided with days off under his unilaterally assigned shift schedule.  PSEG terminated Costello after he refused to report to work as scheduled by the employer. 

Costello argued that his termination violated the FMLA.  The court disagreed.  The court found that the letter failed to provide PSEG with sufficient notice that Costello's was seeking FMLA leave.  The court noted:

Here, finding Plaintiff's July 3, 2003 letter sufficient to constitute an exercise of FMLA rights would require PSEG to be not only clairvoyant, but to disbelieve the precise reason Plaintiff offered for his absence, and conclude instead, based upon alleged knowledge that he cared for an ailing father, that he intended to take FMLA leave instead of scheduled days off.  The Court will not impose such a requirement... Here "[t]here was no reason for [PSEG] to believe anything else concerning Plaintiff's [absence] except what Plaintiff told them"; he wanted a new work schedule, and if PSEG was not going to give it to him, he was going to take it.  Id.

As further evidence that the schedule change was not a request for FMLA leave, the court noted that Costello had successfully requested FMLA leave in the past. 

Comment: The FMLA entitles eligible employees to leave for covered conditions.  The FMLA does allow an employee to unilaterally change their schedule to a different shift that better accommodates their need for FMLA leave.  At most, the FMLA allows an eligible employee to alter their current schedule by use of leave on an intermittent or reduced leave schedule until their 12-week entitlement is exhausted.

For me, the decision is problematic.  In finding the employee's notice of the need for leave insufficient the court focuses on the part of employee's letter that discusses his qualifications for the position on the desired shift as evidence that the employee simply wanted a schedule change.  The decision, in my opinion, does not sufficiently credit Costello's initial rationale (which is also set forth in the letter) for seeking a schedule change: the need to take care of his seriously ill father.  The decision could have easily gone the other way, particularly since there was no evidence that PSEG made additional inquiries to determine if the schedule change to care for the parent was covered by the FMLA.      

In my opinion, the court appears to have been unimpressed with Costello's unilateral announcement that he was changing his schedule in the absence of evidence that he in fact needed FMLA leave to care for his father beginning on the date of his unilateral schedule change.  Employees who are upset about the pace of their employer's consideration of their request for leave or a schedule change should think long and hard before unilaterally taking matters into their own hands, particularly where the need for leave is foreseeable and they are aware of how to request FMLA leave.

Because I believe that a different outcome could have resulted had the court been more inclined to view the employee's unilateral change in schedule as a frustrated request for FMLA leave, I think there is a better than even chance that the award of summary judgment to the employer could be overturned on appeal.             

               

   

   

12 Consecutive Months of Employment Not Required for FMLA Eligibility

FMLA leave is available to an employee who has been employed (1) for at least 12 months by the employer with respect to whom leave is requested; (2) for at least 1,250 hours by the employer with respect to whom leave is requested; and (3) the employee must be employed at a work site where there are at least 50 employees of the employer within 75 miles.

In Thomas v. Mercy Mem. Health Center, Inc., No. CIV-07-022-SPS, 2007 U.S. Dist. LEXIS 64184 (E.D. Ok. Aug. 29, 2007), Thomas worked for the Hospital from January 2002 through May 2003, and from April 2004, until she was fired in January 2005.  All told, Thomas worked intermittently for the Hospital for more than 12 months.  Thomas argued that she was fired for being absent for leave that should have been covered by the FMLA. 

The Hospital argued that Thomas was not eligible for FMLA leave because she had not worked for the hospital for 12 consecutive months prior to the date her leave would have commenced.  The Hospital argued that its position was supported by a common sense reading of the statute.  It argued that, because the statute is unambiguous, the DOL regulation (29 CFR 825.110(b)), which provides that the 12-month period need not be consecutive, is invalid.  The Hospital also relied on the opinion of the district court in Rucker v. Lee Holding Co., 419 F. Supp. 2d 1 (D. Ma), rev'd, 471 F.3d 6 (1st Cir. 2006).  In that case, the district court found that an employee could not combine his most recent employment with his previous years of service, which ended five years before, for purposes of the 12-month requirement.

The Court found that the FMLA does not require 12 months of consecutive or continuous employment immediately preceding leave commencement in order to satisfy the 12-month FMLA eligibility requirement.  In so holding, the Court agreed with the decision of the Circuit Court in Rucker v. Lee Holding  Co., 471 F.3d 6 (1st Cir. 2006).  If Congress had wanted the 12-month eligibility requirement to be 12 consecutive or continuous months immediately preceding leave commencement, the Court found that it could have easily done so.  The Court denied the employer's motion to dismiss the employee's FMLA claim.

Comment:  For purposes of the 12-month eligibility requirement, the FMLA does not require employment for 12 consecutive months immediately preceding the commencement of FMLA leave.  The employer in this case attempted to apply the same standard for the 12-month eligibility requirement as is applied for the 1,250-work hours requirement.