| MINNEAPOLIS PERSONAL INJURY ATTORNEY |
|
|
 |
 |
 |
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
|
USDC: EMPLOYMENT LAW | Family Medical Leave Act - whether leave FMLA is answered at beginning; no changeover in characterUNITED STATES DISTRICT COURTDISTRICT OF MINNESOTA MOHAMED S. ADLY, Plaintiff, v. SUPERVALU, INC., Defendant. Case No. 06-CV-5108 (PJS/RLE) MEMORANDUM OPINION AND ORDER John J. Curi, CURI LAW OFFICE, for plaintiff. Cynthia A. Bremer and Barbara Jean D’Aquila, FULBRIGHT & JAWORSKI, LLP, for defendant. Plaintiff Mohamed Adly brings a claim against SuperValu, Inc., his former employer, for interfering with his rights under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2611-15. Adly has moved for summary judgment. For the reasons that follow, the Court denies his motion. I. BACKGROUND Adly began working for SuperValu as a payroll supervisor on March 28, 2005. Ybarra Decl. ¶ 4 [Docket No. 24]. On about January 23, 2006, Adly asked for a medical leave of absence because he was suffering from depression and chronic migraine headaches. Ybarra Decl. ¶ 5; Adly Aff. ¶ 3 [Docket No. 19]. Dee Ybarra of SuperValu’s human-resources department told Adly that he was not entitled to leave under the FMLA because he had not worked for SuperValu for at least 12 months. Adly Aff. ¶ 3; Ybarra Decl. ¶ 5. Neither at that time nor at any later time did SuperValu tell Adly precisely when he would become eligible for FMLA leave. Adly Aff. ¶¶ 8-9. - 2 - SuperValu did, however, allow Adly to take short-term disability leave beginning on about January 24. Ybarra Decl. ¶¶ 5-6. Adly’s salary during all but the first few days of his leave was paid by CIGNA, the insurer that underwrites SuperValu’s short-term disability insurance policy. Ybarra Decl. ¶ 12; Adly Aff. Ex. A-1. In mid-February, a few weeks after the start of Adly’s leave, Ybarra sent Adly a letter informing him that SuperValu was removing him from his position as a payroll supervisor. Ybarra Decl. ¶¶ 7-8 & Ex. A. (Another SuperValu employee was given Adly’s position.) Ybarra wrote that Adly would remain “an active employee through the duration of [his] shortterm disability” and would retain his benefits while on short-term disability leave. Ybarra Decl. Ex. A. Ybarra also wrote that when Adly became able to return to work, SuperValu would determine whether it had a job available for him. Id. On about March 30, 2006, Adly told Ybarra that his doctor had cleared him to return to work beginning on April 10, 2006. Id. ¶ 10 & Ex. B. As promised, Ybarra circulated Adly’s resume within SuperValu, but she was unable to find a position for him. Id. ¶ 11 & Exs. C-E. On April 13, 2006 — before Adly actually returned to work — SuperValu terminated Adly’s employment. Ybarra Decl. ¶ 11. II. DISCUSSION A. Standard of Review and Applicable Law A party is entitled to prevail on a motion for summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). In considering a motion for - 3 - summary judgment, a court must assume that the nonmoving party’s evidence is true and draw all justifiable inferences arising from the evidence in that party’s favor. Taylor v. White, 321 F.3d 710, 715 (8th Cir. 2003). In this case, the facts are essentially undisupted. The FMLA, as relevant to this case, gives an eligible employee with a sufficiently serious medical condition the right to up to 12 weeks of leave, paid or unpaid, within a 12-month period. 29 U.S.C. §§ 2612(a)(1)(D), 2612(c)-(d). The FMLA also gives employees the right to take leave to care for a seriously ill family member or a new child. 29 U.S.C. § 2612(a)(1)(A)-(C). An employee who takes FMLA leave generally has the right, upon returning from leave, to be reinstated to the position that he occupied when he went on leave or to an equivalent position. 29 U.S.C. § 2614(a)(1). Employees become eligible for FMLA leave only after twelve months of employment. 29 U.S.C. § 2611(2)(A)(i). Under the governing Department of Labor regulations, periods of absence during which an employee remains on the payroll — such as vacation and sick leave — count toward the twelve-month threshold. 29 C.F.R. § 825.110(b). The regulations also provide that the determination of an employee’s eligibility under the FMLA “must be made as of the date leave commences.” 29 C.F.R. § 825.110(d). Although the parties disagree over the meaning of these regulations, they do not challenge the Department of Labor’s authority to issue them. B. The Nature of Adly’s Leave Adly argues that SuperValu violated the FMLA by terminating him, rather than reinstating him, when he attempted to return from FMLA leave. But if Adly was never on FMLA leave in the first place, then SuperValu was not required under the FMLA to reinstate him. The key question, then, is this: What kind of leave did Adly take from SuperValu? This - 4 - question’s answer depends on the answer to a second question: At what point in time should the nature of Adly’s leave be assessed? Adly went on leave on January 24, 2006 (give or take a day or two). But he did not reach his 12-month anniversary with SuperValu until March 28, 2006 — over two months later. And Adly did not seek to return to work until April 10, 2006. For the entire period from January 24 to April 10, Adly was on short-term disability leave for a single, unchanging purpose: to try to recover from his depression and migraine headaches. Under § 825.110(d), Adly’s eligibility for FMLA leave must be determined “as of the date leave commences.” Common sense dictates that Adly’s leave “commence[d]” on January 24 — a date on which Adly was not eligible for FMLA leave. That should be the end of the matter. Adly argues, however, that his eligibility under the FMLA should be assessed not as of January 24 (the date on which his leave commenced), but rather as of March 28 (the date on which he became eligible for FMLA leave). In effect, Adly contends that, on March 28, the period of leave that commenced on January 24 was transformed by operation of law from non- FMLA leave to FMLA leave. See Pl. Mem. Supp. Mot. S.J. at 7-9 (“Adly S.J. Mem”) [Docket No. 18]. Thus, in Adly’s view, when he was fired on April 13, he was on FMLA leave. The Court disagrees. Adly bases his argument primarily on § 825.110(b), which provides that periods of leave such as sick time and vacation time count toward the 12-month eligibility threshold under the FMLA. Adly S.J. Mem. at 5-7. Adly concludes, and SuperValu does not dispute, that under this regulation, Adly became eligible for FMLA leave on March 28, because his time on short-term1The Court need not decide whether a changed purpose within an unbroken period of absence could require an employer to treat the single period of absence as two separate periods of leave for purposes of the FMLA. For example, suppose that on March 29, without having returned from his disability leave, Adly had asked for — and received — leave to care for a newborn baby. One could argue that the post-March 29 paternity leave should be treated as a different period of leave from the earlier disability leave. The Court expresses no opinion as to the merits of such an argument. - 5 - disability leave counted toward the required 12 months of employment. And indeed, had Adly returned to work on March 28 and asked for FMLA leave on March 29, he would have been eligible for such leave (provided, of course, it was for a proper purpose). Adly’s leave, however, was uninterrupted. It was a single period of leave, taken for a single purpose — a purpose that in no way changed during the course of the leave. Under § 825.110(d), courts must characterize a period of leave, for FMLA purposes, at the front end. An unbroken leave taken for a single purpose does not change its character in the midst of the leave just because the employee becomes eligible under the FMLA.1 Accordingly, the Court finds that Adly never took FMLA leave. He thus did not have a right of reinstatement under the FMLA. The Court’s application of § 825.110(d) in this case is consistent with the approach taken by almost every other court in similar situations. Indeed, this Court took a similar approach to applying § 825.110(d) in McEachern v. Prime Hospitality Corp., No. 02-536, 2003 WL 21057078, at *3 (D. Minn. May 8, 2003). In that case, the plaintiff, McEachern, took personal leave for medical reasons in February 2001, roughly 11 months after she started work. Id. at *1. When McEachern asked to return to work a few weeks later, her employer told her that her old job was gone and offered her a different job. Id. at *2. McEachern refused the offer. She then brought an FMLA claim (among others), arguing that her employer wrongfully refused to - 6 - reinstate her to her old job. Id. at *2-3. The court granted summary judgment to the employer, finding that McEachern “began her leave of absence before she had attained a year of employment and therefore cannot qualify as an ‘eligible employee.’” Id. at *3 (citing 29 C.F.R. § 825.110(d)). Other courts have squarely rejected the argument that an employee who begins a period of leave before 12 months of employment and then crosses the 12-month threshold for FMLA eligibility while still on leave should be considered eligible under the FMLA. See Flannery v. Nextgen Healthcare Info. Sys. Inc., No. 05-6007, 2006 WL 2338408, at *3 (E.D. Pa. Aug. 10, 2006) (rejecting employee’s contention that “he became eligible on . . . his one-year anniversary date, while on leave” because § 825.110(d) “is clear: the 12-month work requirement triggers ‘as of’ the day the leave commences, not while on leave”); Willemssen v. Conveyor Co., 359 F. Supp. 2d 813, 818 (N.D. Iowa 2005) (holding that because the employee “was not an ‘eligible employee’ on the date her leave commenced, she was not entitled to the protections of the FMLA even though the leave extended beyond the end of the twelve-month eligibility period”); Sewall v. Chicago Transit Auth., No. 99-C-8372, 2001 WL 40802, at *5-6 (N.D. Ill. Jan. 16, 2001) (rejecting employee’s argument that the court should “pick a date in the middle of his absence to determine the beginning of his FMLA leave”); see also Walker v. Elmore County Bd. of Educ., 223 F. Supp. 2d 1255, 1257-58 (M.D. Ala. 2002) (observing that an employee who sought FMLA leave to begin before her 12-month anniversary was not entitled to that leave, even though she remained on her employer’s payroll for just over 12 months), aff’d on other grounds, 379 F.3d 1249 (11th Cir. 2004). - 7 - Only one court has (arguably) taken the approach advocated by Adly: the District of Maine in Ruder v. MaineGeneral Medical Center, 204 F. Supp. 2d 16 (D. Me. 2002). The employee in that case, Ruder, began a medical leave of absence in January 2000, just under two weeks before his 12-month anniversary date with his employer. Id. at 17. Ruder attempted to return to work a few months later, in April 2000, but instead of welcoming him back, Ruder’s employer fired him. Id. Ruder sued, arguing that his employer violated the FMLA by refusing to reinstate him. Id. at 18. The employer moved to dismiss on the basis that because Ruder began his leave before he was eligible under the FMLA, Ruder had not taken FMLA leave and thus had no right to reinstatement. Id. The court in Ruder denied the employer’s motion, holding, in effect, that Ruder’s single period of leave could potentially be treated as two periods of leave under the law. The court relied on the fact that Ruder, at the time he went on leave, had over two weeks of available vacation time. Id. at 17. The court noted that under § 825.110(b), “an employee may take a vacation during which he remains on the payroll and is receiving benefits, and during that vacation pass the one-year eligibility threshold of the FMLA.” Id. at 20. The court in Ruder therefore denied the employer’s motion to dismiss, holding that Ruder might be able to establish that he had taken FMLA leave. Id. The court seemed to envision the possibility that Ruder could establish that he used his vacation time for the initial period of his leave, and then began FMLA leave only after using up his vacation time. Id. (“Plaintiff has alleged that he worked for fifty-one weeks and had accrued at least two weeks of vacation time when he left work. He may be able to prove facts consistent with these allegations that entitle him to the protections of the FMLA.”). - 8 - This Court agrees, in principle, with the observation in Ruder that under § 825.110(b) — which requires that certain periods of sick leave and vacation leave be counted toward the 12- month FMLA eligibility threshold — an employee could take a vacation that spans his 12-month anniversary date and seek FMLA leave immediately following that vacation. This presupposes, however, that the employee in fact took vacation. To the extent that Ruder suggests that a portion of an unbroken leave taken for a single purpose — like Adly’s leave, and apparently like Ruder’s leave — can be retrospectively recharacterized as vacation time (or some other kind of leave) if the employee had such time available, the Court cannot agree. Section 825.110(d) requires that an employee’s FMLA eligibility be determined “as of the date leave commences.” Retrospectively recharacterizing a portion of an employee’s leave in order to create a new leave-commencement date is completely inconsistent with § 825.110(d). The regulation directs employers (and courts) to determine an employee’s eligibility for FMLA leave at the front end — when the leave begins. The regulation does not specify that an employee’s eligibility should be determined anew once the employee passes his FMLA eligibility date — even though such a regulation could easily have been written. Section 825.110(d) implicitly recognizes the possibility that an employee could — as Adly did — begin a period of leave when he is not FMLA eligible, continue that leave past his 12-month anniversary date, and have the entire period of leave treated as non-FMLA leave because he was not eligible at the time his leave commenced. If, as Adly proposes, an employee’s FMLA eligibility is assessed both at the commencement of a period of leave, and again when the employee becomes FMLA eligible while out on leave, the clear instruction in § 825.110(d) about when to determine FMLA eligibility would be drained of meaning. The 2Section 825.110(d) reads, in its entirety, as follows: The determinations of whether an employee has worked for the employer for at least 1,250 hours in the past 12 months and has been employed by the employer for a total of at least 12 months must be made as of the date leave commences. If an employee notifies the employer of need for FMLA leave before the employee meets these eligibility criteria, the employer must either confirm the employee’s eligibility based upon a projection that the employee will be eligible on the date leave would commence or must advise the employee when the eligibility requirement is met. If the employer confirms eligibility at the time the notice for leave is received, the employer may not subsequently challenge the employee’s eligibility. In the latter case, if the employer does not advise the employee whether the employee is eligible as soon as practicable (i.e., two business days absent extenuating circumstances) after the date employee eligibility is determined, the employee will have satisfied the notice requirements and the notice of leave is considered current and outstanding until the employer does advise. If the employer fails to advise the employee whether the employee is eligible prior to the date the - 9 - Court therefore rejects Adly’s suggestion that the portion of his leave before March 28, 2006 should be treated as short-term, non-FMLA disability leave, while the portion of his leave after that date should be treated as FMLA leave. See Pl. Reply Mem. at 7. C. Adly’s Request for Leave and SuperValu’s Response Adly raises one additional argument as to why his leave, from March 28, 2006 forward, should be treated as FMLA leave. Adly contends that when he asked for FMLA leave in late January 2006, SuperValu did not comply with § 825.110(d). Adly S.J. Mem. at 7-9; Adly Aff. ¶¶ 8-9. Under § 825.110(d), when an employee requests FMLA leave before he has become eligible, “the employer must either confirm the employee’s eligibility based upon a projection that the employee will be eligible on the date leave would commence or must advise the employee when the eligibility requirement is met.” 29 C.F.R. § 825.110(d) (emphasis added).2 requested leave is to commence, the employee will be deemed eligible. The employer may not, then, deny the leave. Where the employee does not give notice of the need for leave more than two business days prior to commencing leave, the employee will be deemed to be eligible if the employer fails to advise the employee that the employee is not eligible within two business days of receiving the employee’s notice. 3SuperValu contended at oral argument that Adly’s eligibility date was implicit in SuperValu’s statement that he was not eligible for FMLA leave because he had not reached his twelve-month anniversary. For purposes of ruling on Adly’s summary-judgment motion, the Court will assume, without deciding, that such an assertion-by-implication does not meet § 825.110(d)’s requirement that an employer “advise the employee when the eligibility requirement is met.” - 10 - SuperValu denied Adly’s leave request when he made it (in late January), but never did tell Adly (except perhaps implicitly3) when he would meet the FMLA’s eligibility requirements. See Ybarra Decl. ¶ 5; Adly Aff. ¶¶ 8-9. Although this portion of § 825.110(d) is not a model of clarity, the Court is confident that the regulation does not require that Adly’s post-March 28 leave be treated as FMLA leave. The provisions of § 825.110(d) that relate to an employer’s notice obligations must be read in the context of the entirety of subsection (d), which begins by establishing that an employee’s eligibility for FMLA leave must be determined “as of the date leave commences.” The employer-notice provisions relate to a request for future leave made by an employee who is not eligible at the time of the request, but who may (or may) become eligible before the proposed leave would begin. The regulation expressly provides for three possible responses by an employer to such a request. First, the employer may “confirm the employee’s eligibility.” 29 C.F.R. § 825.110(d). 4There is some doubt as to whether these estoppel provisions are entirely valid. See, e.g., Mutchler v. Dunlop Mem’l Hosp., 485 F.3d 854, 859 n.5 (6th Cir. 2007) (collecting cases); Dormeyer v. Comerica Bank-Ill., 223 F.3d 579, 582 (7th Cir. 2000). - 11 - An employer who does so is forbidden (at least according to the regulation) to “subsequently challenge the employee’s eligibility.” Id. Second, the employer may fail to respond entirely. Under the regulation, “[i]f the employer fails to advise the employee whether the employee is eligible prior to the date the requested leave is to commence, the employee will be deemed eligible. The employer may not, then, deny the leave.” Id. Section 825.110(d) thus places both the risk of erroneous approval of FMLA leave requests, and the risk of erroneous failure to disapprove FMLA leave requests, on the employer.4 Third, the employer may choose to “advise the employee when the eligibility requirement is met.” Id. (emphasis added). Based on text and context, the Court finds that this provision does not require an employer to predict an employee’s eligibility date. The provision could easily have been written to require the employer to “advise the employee when the eligibility requirement will be met”; it was not. Rather, this provision seems to mean the following: When a not-yet-eligible employee asks his employer for FMLA leave to begin after the employee’s FMLA eligibility date, the employer may choose to remain silent until that eligibility date. When that eligibility date arrives (i.e., “when the eligibility requirement is met”), the employer should “advise the employee [that] the employee is eligible as soon as practicable . . . after the date employee eligibility is determined . . . .” Id. (emphasis added). If the employer drags its heels in advising the employee of his eligibility, the employee is deemed to have “satisfied the notice requirements and the notice of leave is considered current 5The “notice requirements” to which the regulation refers appear to be the provisions in 29 U.S.C. § 2612(e) that generally require employees to provide employers with 30 days’ notice of a foreseeable need for leave. - 12 - and outstanding until the employer does advise.”5 Id. And if the employer never advises the employee of his eligibility, then, as noted above, “the employee will be deemed eligible” for FMLA leave. Adly latches on to the language in § 825.110(d) stating that a notice of leave “is considered current and outstanding until the employer” advises an employee of his eligibility for FMLA leave. Adly S.J. Mem. at 9. According to Adly, if a notice is “current and outstanding” when an employee becomes eligible for FMLA leave, and the employee is on leave at that time, his leave is transformed from non-FMLA leave to FMLA leave by operation of law. Adly does not provide any case law to support this argument. See id. The Court rejects it for a simple reason: Where an employer has already advised an employee that he will not be eligible for FMLA leave as of the date that the employee’s proposed leave would begin, § 825.110(d) does not impose an additional requirement that the employer notify the employee once he is out on non-FMLA leave that his FMLA eligibility date has arrived. The very sentence on which Adly relies supports this interpretation: An employee’s notice of leave is “considered current and outstanding” only “if the employee does not advise the employer whether the employee is eligible as soon as practicable . . . .” In this case, SuperValu did advise Adly whether he would be eligible for FMLA leave as of the date he proposed to begin his leave: SuperValu accurately told him that he was not eligible for FMLA leave as of January 24, 2006. In effect, denying an employee’s request for FMLA leave is a fourth possibility under § 825.110(d). The regulation does not discuss this fourth possibility for a simple reason: If an 6An employee who is told that his proposed leave will not be FMLA eligible might wish, if possible, to reschedule the start of his leave until after he becomes eligible under the FMLA. If he proposes to his employer a new start date for his leave after the employer has denied FMLA leave for the first proposed date, the employer must naturally comply with § 825.110(d) with respect to the new date. - 13 - employee requests FMLA leave to which he will not be entitled as of the date when that leave would commence — the relevant date under § 825.110(d) — and the employer properly denies the request, the employer’s notification duties are over. The employer has no obligation to inform the employee when he will be eligible for FMLA leave in the future because that future eligibility date is irrelevant to the employee’s actual, pending request. After all, under § 825.110(d), FMLA eligibility is determined as of the date leave commences. If an employee asks for leave that would begin before his eligibility date, and the employer tells him that the requested leave will not be FMLA leave, the employer has accurately informed the employee of his rights. And that is the end of the matter.6 D. Adly’s Position at SuperValu As explained above, the Court finds that Adly had no right of reinstatement because he never took FMLA leave. But even if the Court accepted Adly’s theory that on March 28, his short-term disability leave became FMLA leave, Adly would not be entitled to reinstatement because as of March 28, he had no “position of employment” to which he could be restored. The FMLA provides an eligible employee with a right “to be restored by the employer to the position of employment held by the employee when the leave commenced” or to an “equivalent position.” 29 U.S.C. § 2614(a)(1)(A)-(B). Granting, for the sake of argument, that Adly’s FMLA leave began on March 28, he would have had a right on April 10 to be restored to the position that he held at SuperValu on March 28. But on March 28, Adly had no position at - 14 - SuperValu. The company had removed Adly from his payroll-supervisor job in mid-February. Ybarra Decl. ¶ 7 & Ex. A. Adly attempts to skirt this significant problem by characterizing his position on March 28 as that of “an active employee” who was continuing to receive benefits. See Pl. Reply Mem. at 9 (internal quotation omitted). The Court believes that a “position” is something more than the right to receive certain benefits; a “position” is a particular job. This conclusion is implicit in the definition of the term “equivalent position” in the FMLA regulations: Section 825.215(a) defines an “equivalent position” as one that “involve[s] the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.” 29 C.F.R. § 825.215(a) (emphasis added). As of March 28, Adly did not have a particular job at SuperValu. He had no title, and no “duties and responsibilities.” Rather, Adly was receiving pay and benefits even though he had no obligation to perform any service for SuperValu in return. Adly can not seriously believe that the FMLA requires that he be restored to the “position” of collecting paychecks without having to do any work. Notably, Adly’s paychecks were not even coming from SuperValu. He was, instead, paid directly by CIGNA, SuperValu’s disability-insurance carrier, from February 3 through his termination. Ybarra Decl. ¶ 12. Although this alone would not require the Court to conclude that Adly had no “position” at SuperValu — after all, he was still a payroll supervisor until SuperValu removed him from that position in mid-February, id. ¶ 7 — this fact supports the conclusion that, based on Adly’s lack of a job title and any duties or responsibilities, he had no “position” at SuperValu as of March 28. - 15 - Adly makes the further argument, however, that his lack of a particular position at SuperValu on March 28 does not doom his reinstatement claim because the FMLA provides covered employees the right to be restored to an “equivalent position.” Pl. Reply Mem. at 9-10. The Court cannot agree. As a matter of simple logic, without a “position” of some kind to start with, there can be no “equivalent” position to which an employee can be restored. The only “equivalent” of no position is no position. Finally, the Court agrees with SuperValu that if Adly had a “position” at all on March 28 — and, again, the Court finds that he did not — that “position” was “former Payroll Supervisor for whom [SuperValu] would look for a new position if and when Mr. Adly became able to return to work.” Def. Mem. Opp. Mot. S.J. at 16. It is undisputed that when Adly notified SuperValu on March 30 that he would be able to return to work on April 10, Dee Ybarra of SuperValu’s human-resources department circulated Adly’s resume within the company but did not find any suitable openings. Ybarra Decl. ¶ 11 & Exs. C-E. Accordingly, the Court finds that SuperValu did not violate the FMLA by failing to restore Adly to the position that he held on March 28. - 16 - ORDER Based on the foregoing and on all the files, records, and proceedings herein, plaintiff’s motion for summary judgment [Docket No. 7] is DENIED. Dated: August 3 , 2007 s/Patrick J. Schiltz Patrick J. Schiltz United States District Judge |
|||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| By visiting this page or clicking the "submit" button above, you agree that you have read and accept this "disclaimer". |
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Copyright ©
Michael E. Douglas, Attorney at Law, Saint Paul MN. All Rights
Reserved. Minnesota Law Firm representing Personal Injury, Car / Auto Accident, Workers Compensation, Medical Malpractice, Social Security Disability claims. Dedicated to Injured Workers, Victims of Negligence, Car Accidents, Victims of Fraud, and those in need of legal assistance. |
