Daniel Dobrowski worked as a mechanical engineer for Jay Dee Contractors, Inc. He took approved FMLA leave for elective surgery related to his epilepsy. In approving the leave, Jay Dee confirmed in writing that Dobrowski was eligible for FMLA leave. Dobrowski was not, in fact, eligible for FMLA leave because he worked at a location that did not employ the requisite 50 employees within 75 miles. Nevertheless, Dobrowski took FMLA leave and had the surgery. On his return to work from approximately 5 weeks of leave, he was terminated. At the time Jay Dee told him that the work he had been performing was winding down and they no longer needed his services. Dobrowski sued alleging that his termination violated the FMLA.
Jay Dee moved for summary judgment, arguing that Dobrowski could not state a claim because he was not, in fact, eligible for FMLA leave. Dobrowski argued that Jay Dee should be equitably estopped from denying FMLA eligibility after having indicated to him at the time of his surgery that he was eligible. Equitable estoppel is a judicial doctrine that bars the assertion of a claim or a defense. The trial court granted summary judgment in favor of Jay Dee. Dobrowski appealed the matter to the Sixth Circuit.
The issue presented tot he Sixth Circuit was whether Jay Dee's statements that Dobrowski was being given FMLA leave now bind the employer under the doctrine of equitable estoppel such that Dobrowski should be treated as if the protections of the FMLA apply.
To answer that question, the Sixth Circuit initially addressed two different burden of proof standards used for determining application of equitableestoppel to FMLA claims. Under the Supreme Court standard, Heckler v. Community Health Services of Crawford County, Inc., 467 U.S. 51, 59, 104, S. Ct. 2218 (1986), the party claiming estoppel must demonstrate: (1) a definite representation as to a material fact; (2) a reasonable reliance on the misrepresentation; and (3) a resulting detriment to the party reasonably relying on the misrepresentation.
In another case, Mutchler v. Dunlap Mem. Hosp., 485 F.3d 854, 861 (6th Cir. 2007), the Court applied a five-factor test for establishing equitable estoppel: (1) conduct or language amounting to a representation of material fact; (2) awareness of true facts by the party to be estopped; (3) an intention on the part of the party to be estopped that the representation be acted on, or conduct toward the party asserting the estoppel such that the latter has the right to believe that the former's conduct is so intended; (4) unawareness of the true facts by the party asserting theestoppel; and (5) detrimental and justifiable reliance by the party asserting estoppel on the representation.
The critical difference in the two standards is that that the Supreme Court standards does not require the party asserting the estoppel to show that the other party was aware of the "true facts" or that the other party intended for the statement to be relied upon. Under this standard, if Jay Dee were simply mistaken about Dobrowski's eligibility equitable estoppel would not apply. In contrast, under the Supreme Court standard, Dobrowski need not show that his employer either was aware of the true facts or intended for the statement to be relied on.
The Sixth Circuit resolved the conflict in favor of the Supreme Court's equitable estoppel standard. Applying that standard, the Court found that Dobrowski failed to establish that he change his position in reliance on the belief that his job would be FMLA-protected.
As support, the Court noted the absence of evidence that he made an
inquiry as to his rights, asked for written confirmation of his leave
arrangement, or changed his behavior after being told he was eligible.
Without more, the mere fact that Dobrowski satisfied the notice and certification requirements to secure FMLA leave did not establish that he changed his behavior as a result of being erroneously told that he was eligible for FMLA leave. The Court similarly rejected the argument that, because the surgery was elective, Dobrowski could have rescheduled the leave but did not in reliance on the misrepresentations of Jay Dee. The Court opined that that, to properly invoke equitableestoppel, it was not sufficient to show what he could have done, but rather what he would have done. The Court suggested that an affidavit from Dobrowski attesting that he would have forgone surgery but for the misrepresentations as to his FMLA eligibility would have sufficed to defeat summary judgment. In the absence of such evidence, the Court affirmed the award of summary judgment to Jay Dee.
Comment: To invoke equitable estoppel to bar an employer from challenging an employee's eligibility where the employer has affirmatively, albeit erroneously, represented that the employee is eligible for FMLA
leave, an employee must be able to demonstrate that they would not have
taken the leave but for the employer's erroneous designation of the
leave asFMLA-protected. Absent such evidence, mere compliance with the employee's notice and certification requirements fails to establish entitlement to equitable estopppel.
To avoid expensive litigation on this issue, employers should
carefully review their policies and practices to ensure that they
accurately reflect all three FMLA eligibility requirements: (1) 12
months of employment; (2) 1250 hours of work in the 12-month period
immediately preceding leave commencement; and (3) the employee works at
a site where there are at least 50 employees of the employer within 75
The Sixth Circuit covers Michigan, Ohio, Kentucky, and Tennessee.