Martin Allen v. Butler County Commissioners , 331 F. App'x 389 ( 2009 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0577n.06
Nos. 07-4320, 07-4329
FILED
Aug 18, 2009
LEONARD GREEN, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MARTIN ALLEN,
Plaintiff-Appellant, Cross-Appellee,
ON APPEAL FROM THE UNITED
v. STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF OHIO
BUTLER COUNTY COMMISSIONERS,
Defendant-Appellee, Cross-Appellant.
_______________________________________/
BEFORE: BATCHELDER, Chief Judge, CLAY, Circuit Judge; and COX, District
Judge.*
COX, District Judge. Butler County, Ohio (“the County”) terminated the employment of
its employee, Martin Allen (“Allen”), for violating the County’s paid sick leave requirements, and
for improperly flexing his scheduled work hours. Allen contended that the County’s paid sick leave
requirements conflicted with the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et
seq., and filed suit against the County. Both parties filed cross-motions for summary judgment
before the lower court. The lower court granted partial summary judgment for Allen on the issue
of FMLA liability, and allowed the case to proceed to jury trial on the issue of damages. At trial, the
lower court allowed the County to present evidence that it would have fired Allen despite the
conduct Allen claimed violated the FMLA. The jury returned a verdict for the County. Following
trial, Allen filed a motion for attorney fees under the FMLA, which the lower court denied.
*
The Honorable Sean F. Cox, United States District Judge for the Eastern District of
Michigan, sitting by designation.
Nos. 07-4320, 07-4327
Allen v. Butler County
Allen filed a timely appeal to this Court, wherein he argues that: 1) the lower court erred in
not granting Allen’s motion for attorney fees; and 2) the lower court erred in allowing the County
to present evidence showing that the County was justified in terminating Allen for reasons outside
the scope of Allen’s FMLA suit. The County filed a cross-appeal, wherein it argues that the lower
court erred by granting partial summary judgment in favor of Allen, and not in favor of the County,
on the issue of FMLA liability. For the reasons that follow, we agree with the County’s argument
on cross-appeal. We therefore REVERSE the lower court’s grant of partial summary judgment for
Allen, and REMAND with instructions to grant summary judgment in favor of the County. Because
this Court reverses the lower court’s summary judgment in favor of Allen, and instead remands with
instructions to grant summary judgment in favor of the County, the remainder of Allen’s issues on
appeal are moot.
BACKGROUND
The County hired Allen as an Instrument Technician for its Department of Environmental
Services on November 22, 1993. Thereafter, Allen became a member of the American Federation
of State, County and Municipal Employees, AFL-CIO (“Union”), which had a Collective Bargaining
Agreement (“CBA”) with the County. The CBA’s paid sick leave requirement was as follows:
Employees are responsible for contacting the Employer for each day of an absence
in accordance with this Section, unless the Employee is hospitalized or has provided
a written doctor’s statement specifying the anticipated date of return.
Aside from incorporating the FMLA into its provisions, the CBA’s sick leave policy outlined
the call-in process all Union employees were required to follow in order to receive sick leave
benefits. This paid leave policy was separate and distinct from the FMLA policy.
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Allen began experiencing health problems in 2002, coincidentally the same time he and his
wife were going through a divorce. The County claims Allen’s work performance began to
deteriorate at that time, including refusals by Allen to complete assigned tasks. As a result, Allen
was issued his first written reprimand on December 11, 2002. After receiving this reprimand, Allen
allegedly made untrue and disparaging statements about his immediate supervisor, which led to a
second disciplinary action.
Allen and the Union agreed to settle this second disciplinary issue with the County on April
16, 2003. Allen agreed to a three-day unpaid suspension and waiver of any claims he may have had,
in exchange for the County not terminating him.
Despite the April 2003 settlement agreement between Allen and the County, Allen was soon
again involved in disciplinary issues. This led to another ten-day unpaid suspension on September
13, 2003. The Union filed a grievance against the County in response to this suspension, and in
October of 2003, while that grievance was pending, Allen received yet another pre-disciplinary
notice.
To resolve the September and October 2003 disciplinary issues, Allen and the Union
voluntarily entered into a “last chance agreement” with the County on December 1, 2003. Under this
agreement, Allen received an additional ten-day unpaid suspension, and was placed on what the
County termed “final warning status.” Allen further agreed that if he failed to comply with any of
the County’s requirements for the use of leave, or for any other disciplinary offenses, he understood
that his employment would be immediately terminated.
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In addition to these other disciplinary problems, Allen had previously been informed by his
supervisors to not “flex” his time (i.e., punch in early and then punch out earlier than the end of his
expected shift). Despite this prohibition, however, Allen repeatedly flexed his hours on several work
days between May 18 and May 28, 2004.
On June 1, 2004, before the County could provide Allen with yet another pre-disciplinary
notice for these “flex time” violations, Allen called into work claiming he would be seeing a doctor
that day due to a personal illness. As Allen was unsure when he would be returning to work, his
supervisor advised him that his requested leave would be classified as FMLA leave pending
certification, instructed him to have his doctor complete an FMLA certification form, and instructed
Allen that he would be required to call in daily pursuant to the CBA’s provisions on paid sick leave.
By June 10, 2004, over a week after Allen began missing work due to his personal illness,
Allen still had not provided the County with a written doctor’s note specifying his anticipated date
of return to work. On that same day, Allen failed to call in his absence as required by the CBA. The
County treated this failure to call in as another disciplinary offense, and scheduled yet another
disciplinary hearing for Allen to address both Allen’s failure to call in during his paid sick leave, and
his purported “flex time” violations.
At the ensuing disciplinary hearing, held on July 29, 2004, the County found that Allen had
failed to abide by the CBA’s requirement for daily call-in while on sick leave without FMLA
certification. The County also found that Allen had improperly “flexed” his work hours on multiple
occasions between May 18, 2004 and May 28, 2004. As both of these disciplinary infractions
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Allen v. Butler County
violated Allen’s “last chance agreement” with the County, the County terminated Allen’s
employment, effective August 4, 2004.
Allen filed suit alleging that the County interfered with his right to FMLA leave under 29
U.S.C. § 2615(a)(1). Both parties filed cross-motions for summary judgment in the lower court,
Allen arguing that the County violated the FMLA interference provisions as a matter of law, and the
County arguing that their call-in procedures did not interfere with Allen’s FMLA rights. The lower
court granted partial summary judgment for Allen, finding that the County’s call-in policy put
unreasonable burdens upon an individual attempting to access FMLA leave. The case proceeded to
jury trial on the issue of damages.
Before trial, the lower court denied Allen’s motion in limine to prevent the County from
arguing that Allen would have been fired despite the County’s FMLA violations. The County sought
to bring forth evidence that, under the last chance agreement, Allen would have been fired for his
“flex time” violations. The lower court allowed the County to present such evidence, and the jury
returned a verdict in favor of the County, awarding Allen no damages for his FMLA claim.
After trial, Allen filed a motion for attorney fees pursuant to 29 U.S.C. § 2617(a)(3), which
allows a “prevailing party” in an FMLA action to claim reasonable attorney fees. Allen contended
that, as he had been granted partial summary judgment on the liability issue by the lower court, this
entitled him to attorney fees. The lower court disagreed, and denied the award.
On appeal, the County challenges the lower court’s grant of partial summary judgment. Allen
also appeals the lower court’s evidentiary ruling denying his motion in limine, as well as the lower
court’s denial of his motion for attorney fees.
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ANALYSIS
The County appeals the lower court’s grant of partial summary judgment for Allen on the
issue of FMLA liability. The Court reviews summary judgment decisions by the lower court under
a de novo standard. Cavin v. Honda of America, 346 F.3d 713 (6th Cir. 2003).
The FMLA, 29 U.S.C. § 2601 et seq., provides for unpaid leave for up to twelve weeks in
a twelve month period for employees with a serious medical condition. 29 U.S.C. § 2612(a)(1).
These twelve weeks of leave may be taken continuously in one block of time, or intermittently when
medically necessary. 29 U.S.C. § 2612(b)(1).
FMLA leave is generally unpaid leave, but “[t]he Act encourages businesses to adopt more
generous policies, and many employers have done so.” Ragsdale v. Wolverine World Wide, Inc., 535
U.S. 81, 84 (2002). Congress encouraged the enactment of such additional programs, noting that
“[n]othing in this Act. . .shall be construed to discourage employers from adopting or retaining leave
policies more generous than any policies that comply with the requirements under this Act.” Id. at
87, citing 29 U.S.C. § 2653. When an employer elects to offer such additional paid benefits, the
employer is within its rights to count such leave toward the twelve week FMLA guarantee, “[a]s long
as these policies meet the Act’s minimum requirements. . . .” Id.
The FMLA regulations clarify an employee’s rights and responsibilities under the Act,
including an allowance for employers to run paid leave programs concurrent with unpaid FMLA
leave:
Generally, FMLA leave is unpaid leave. However, under the circumstances
described in this section, FMLA permits an eligible employee to choose to substitute
accrued paid leave for FMLA leave. If an employee does not choose to substitute
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Nos. 07-4320, 07-4327
Allen v. Butler County
accrued paid leave, the employer may require the employee to substitute accrued
paid leave for unpaid FMLA leave. The term “substitute” means that the paid leave
provided by the employer, and accrued pursuant to established policies of the
employer, will run concurrently with the unpaid leave. Accordingly, the employee
receives pay pursuant to the employer’s applicable paid leave policy during the
period of otherwise unpaid FMLA leave. An employee’s ability to substitute accrued
paid leave is determined by the terms and conditions of the employers normal leave
policy. When an employee chooses, or an employer requires, substitution of accrued
paid leave, the employer must inform the employee that the employee must satisfy any
procedural requirements of the paid leave policy only in connection with the receipt
of such payment. See § 825.300(c). If an employee does not comply with the
additional requirements in an employer’s paid leave policy, the employee is not
entitled to substitute accrued paid leave, but the employee remains entitled to take
unpaid FMLA leave. Employers may not discriminate against employees on FMLA
leave in the administration of their paid leave policies.
29 C.F.R. § 825.207(a) (emphasis added). This Court, albeit in an unpublished opinion, recognized
that § 825.207(a) allows employers to run paid leave and unpaid FMLA leave concurrently. See
Hicks v. LeRoy’s Jewelers, Inc., 2000 WL 1033029, *4 (6th Cir. July 17, 2000) (“. . .the regulations
clearly provide that an employee’s FMLA leave may run concurrently with paid medical or sick
leave”).
In the instant case, Allen was properly informed by the County of the requirements expected
of him to receive sick pay during his FMLA leave. However, the relevant issue in this case - what
happens when an employer runs sick leave concurrently with FMLA leave and the employee violates
the more stringent requirements of the paid sick leave policy - is an issue of first impression for this
Court.
The Court begins its analysis mindful of its prior holding in Edgar v. JAC Products, 443 F.3d
501 (6th Cir. 2006). In Edgar, a terminated employee alleged that his termination as well as the
employer’s actions prior to termination constituted FMLA violations. Edgar suffered from extremely
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Allen v. Butler County
high blood pressure, and his employer required him to have his doctor fill out a certification form
before it would certify his FMLA leave. Edgar at 504-05. This Court upheld the employer’s
requirement for medical certification, holding that “interference with an employee’s FMLA rights
does not constitute a violation if the employer has a legitimate reason unrelated to the exercise of
FMLA rights for engaging in the challenged conduct.” Id. at 508. Thus, this Court has already held
that the mere occurrence of interference with an employee’s FMLA rights is not a per se FMLA
violation.
The dissent regards our reliance on Edgar as misplaced, arguing that the County had no
reason for terminating Allen which was “legitimate and unrelated to the exercise of FMLA rights.”
Dissent at 6 (quoting Edgar, 443 F.3d at 508). The dissent further argues:
[i]t cannot be said that Allen’s failure to call in was somehow unrelated to the
exercise of his FMLA rights; Allen was required to call in sick precisely because he
was out on leave which was undisputedly FMLA-qualified leave.
Id. at 7 (emphasis in original). While we share the dissent’s concern that employers must proffer
such legitimate, unrelated reasons for terminating an employee, here, the County had not one, but
two proffered reasons for terminating Allen: 1) his “flex time” violations; and 2) his failure to abide
by the paid sick-leave call-in requirement. The County fired Allen for both violations.
This Court has also noted that employers may rightfully terminate an employee for failure
to comply with notification and medical certification procedures inherent in FMLA regulations. See
Killian v. Yorozu Automotive Tennessee, Inc., 454 F.3d 549, 555 (6th Cir. 2006). Though Killian
held that the employer in that case could not demonstrate such violations by its employee, the Court
noted as follows with respect to the relevant FMLA regulations:
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Yorozu directs our attention to 29 C.F.R. § 825.310, which permits an employer to
require a returning employee to provide a fitness-for-duty certification through a
uniformly applied policy. If an employee fails to provide such certification or new
medical certification of a serious health condition at the end of the employee’s leave
period, the employee may be terminated.
Killian, 454 F.3d at 555 (internal citation omitted).
While the issue in this case - whether an employee on FMLA leave may be terminated for
violating the more stringent requirements of a concurrent paid sick leave policy - is one of first
impression for this Court, other circuits have stated that an employee can be required to comply with
the reasonable requirements of an employer’s sick leave policy while on FMLA leave. In Gilliam
v. U.P.S., 233 F.3d 969 (7th Cir. 2000), the Seventh Circuit held that the FMLA does not preclude
an employer from enforcing a collective bargaining provision requiring the employee to notify the
employer of their intended date to return to work. “[N]othing in the FMLA or the implementing
regulations prevents an employer from enforcing a rule requiring employees on FMLA leave to keep
the employer informed about the employee’s plans.” Gilliam at 972. The Seventh Circuit also has
allowed an employer to impose more burdensome “return to work” requirements for individuals on
FMLA leave than were mandated by statute. Harrell v. United States Postal Service, 445 F.3d 913,
923 (7th Cir. 2006).
The facts of this case are analogous to those of Callison v. City of Philadelphia, 430 F.3d 117
(3d Cir. 2005). Callison was a municipal employee of the City of Philadelphia, and had a penchant
for abusing his paid sick leave. Callison at 118. “Because of the significant amount of [Callison’s]
absences, the City placed Callison on a Sick Abuse List on October 30, 2000.” Id. Notwithstanding
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that status, however, Philadelphia’s employee manual contained the following requirement for all
employees on paid sick leave:
During regular working hours, when an employee is home on sick leave, the
employee must notify the appropriate authority or designee when leaving home and
upon return.
Id. Callison, while on the Sick Abuse List, took a sick day on January 8, 2001. That same day,
Callison left his home without informing his employer of his intention to do so, and missed a
telephone call from an investigator. Id. at 119. Callison was charged with a violation for this
infraction, and while on subsequent FMLA leave from January 24 to April 17, 2001, was repeatedly
not at home without notifying the City’s hotline, resulting in additional unpaid suspensions. Id.
In his FMLA interference suit, Callison argued “that the FMLA anti-abuse and eligibility
provisions conflict with the City’s call-in requirement in its sick leave policy and therefore the
requirement should not have applied” while he was on leave. Id. at 120. “He asserts that once an
employee is pre-approved for FMLA leave, he/she should be left alone.” Id. (internal citations
omitted). The Third Circuit rejected this argument:
[T]he [lower] Court reasoned that the purpose of the FMLA is not compromised by
this policy because it “neither prevents employees from taking FMLA leave nor
discourages employees from taking such leave. It simply ensures that employees do
not abuse their FMLA leave. We agree. . . [T]he eligibility requirements contained
in 29 U.S.C. § 2612(a)(1) do not conflict with the call-in procedure. Unlike the
eligibility provision, the call-in procedure does not serve as a pre-requisite to
entitlement of FMLA leave. Rather, the procedure merely sets forth obligations of
employees who are on leave, regardless of whether the leave is pursuant to the
FMLA. The purpose of this procedure is to provide an additional safeguard against
sick leave abuse by employees. . .Nothing in the FMLA prevents employers from
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ensuring that employees who are on leave from work do not abuse their leave,
particularly those who enter leave while on the employer’s Sick Abuse List.
Id. at 120-21 (emphasis added).
Just as in Callison, here the CBA Allen’s Union signed with the County required individuals
on paid sick leave to perform requirements not necessary under the FMLA: Allen was required to
either 1) procure a note from a doctor letting his employer know when his employer could expect
Allen’s return; or 2) call the County daily with updates as to his condition. Just as in Callison, this
procedure “merely sets forth obligations of employees who are on leave, regardless of whether the
leave is pursuant to the FMLA.” Callison at 120.
Further, just as was the case in Callison, the County’s call-in requirement helps “ensur[e] that
employees who are on leave from work do not abuse their leave. . . .” Callison at 121. The Third
Circuit found such motivation by employers particularly persuasive when faced with employees with
a penchant for abusing such privileges, noting that “those who enter leave while on the employer’s
Sick Abuse List” were rightly subjected to such policies. Id. Like the employee in Callison, here
the County had documented a history of personnel issues with Allen. In Strickland v. Water
Works and Water Sewage Bd. of the City of Birmingham, 239 F.3d 1199 (11th Cir. 2001), however,
the Eleventh Circuit found that the fact an employee had failed to exhaust his paid sick leave when
he allegedly requested FMLA leave did not preclude the city from being liable for discharging him.
The Strickland court described the right of an employer to substitute paid leave for unpaid FMLA
leave, but noted as follows:
Neither Congress nor the Department of Labor could have intended. . .to allow
employers to evade the FMLA by providing their employees with paid sick leave
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benefits. Otherwise, when an employee misses work for an illness that qualifies
under both his employer’s paid sick leave policy and the FMLA, his employer could
elect to have the absence count as paid sick leave rather than FMLA leave and would
then be free to discharge him without running afoul of the Act.
Strickland, 239 F.3d at 1205. This Court agrees that employers cannot evade their responsibilities
under the FMLA. However, the facts of Strickland are distinguishable from the instant case. Here,
the County did not classify Allen’s leave as non-FMLA. Instead, the County provisionally classified
the leave as FMLA leave, pending Allen’s furnishing the necessary certification, and merely imposed
call-in requirements to police its employees’ use of paid sick leave; Allen remained on concurrent
FMLA leave the entire time, and remained entitled to all protections afforded by that Act with
respect to his right to unpaid leave. In fact, Allen does not claim that he was denied FMLA leave.
The lower court’s holding stands in contrast to the analyses of our sister circuits in similar
situations. The lower court’s holding was as follows:
The Court finds as a matter of law that Defendants’ daily call-in requirement
conflicts with the notice requirements of the FMLA for unforeseeable leave. . . There
is no requirement that once the employee gives notice of the need for leave and the
employer is aware if the reason for the leave, the employee must provide additional
notice by calling in every day during the period of leave. In this regard, the CBA is
more stringent than the FMLA. Defendant may not lawfully interfere with Plaintiff’s
FMLA rights by enforcing stricter notice requirements, regardless of whether those
requirements were contained in the CBA or in an internal company policy.
(JA pp.43-44)(emphasis added). We disagree, and instead hold that the County’s internal call-in
policy neither conflicts with nor diminishes the protections guaranteed by the FMLA. In so holding,
we adopt the reasoning of the Third Circuit in Callison, that “[n]othing in the FMLA prevents
employers from ensuring that employees who are on leave from work do not abuse their leave. . . .”
Callison, 230 F.3d at 121.
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Pursuant to the terms of Allen’s December 1, 2003 “last chance agreement” with the County,
Allen agreed that the County could terminate his employment for any further violations of the
County’s leave requirements, or for any other disciplinary offenses. At the July 29, 2004 disciplinary
hearing, the County found that Allen had violated the “last chance agreement” in two ways: Allen’s
failure to abide by the CBA’s call-in policy; and Allen’s improper “flexing” his work hours without
prior approval. Under the “last chance agreement,” these violations gave the County the authority
to terminate Allen’s employment, and the County exercised that authority in terminating Allen
effective August 4, 2004.
The lower court found the County liable for interfering with Allen’s right to take FMLA
leave. We disagree for the reasons stated above, and therefore REVERSE and REMAND with
instructions for the lower court to grant summary judgment in favor of the County. In light of this
conclusion, the Court need not reach any of Allen’s issues on appeal.
CONCLUSION
For these reasons, we REVERSE the lower court’s grant of partial summary judgment in
favor of Allen, and REMAND with instructions to grant summary judgment in favor of the County.
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CLAY, Circuit Judge, dissenting. The majority holds that an employer can terminate an
employee for violating the more stringent requirements of its paid sick leave policy while an
employee is out on concurrent FMLA leave. This conclusion is in direct contradiction to the
guidance set forth in 29 C.F.R. § 825.207—a regulation that speaks directly to the matter at hand—
and I find the majority’s interpretation of (and lack of adherence to) this regulation to be logically
and legally unsupported. Moreover, the majority opinion disregards material factual disputes as to
whether Allen was terminated, at least in part, because he took leave that was protected by the
FMLA. Because of the existence of these questions of fact, I would find that summary judgment
could not have been properly granted to either party in this case, would reverse the district court’s
grant of partial summary judgment to Allen, and would remand the case for a jury trial with respect
to all issues. I therefore respectfully dissent.
I.
The majority and I agree that an employer can implement a paid sick leave policy that runs
concurrent with unpaid FMLA leave even though the paid sick leave policy may impose procedural
requirements that are more stringent than those set forth in the FMLA. See 29 C.F.R. § 825.207;
Hicks v. LeRoy’s Jewelers, 2000 U.S. App. LEXIS 17568 (6th Cir. July 17, 2000). However, we
plainly disagree as to the primary issue presented by this case: whether an employer violates the
FMLA when it terminates an employee for violating the more stringent requirements of its
concurrent paid sick leave policy.
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The majority opinion makes this issue appear unduly complicated. However, 29 C.F.R. §
825.207 plainly addresses the matter at hand. The regulation, entitled “Substitution of paid leave,”
states:
Generally, FMLA leave is unpaid leave. However, under the circumstances described
in this section, FMLA permits an eligible employee to choose to substitute accrued
paid leave for FMLA leave. If an employee does not choose to substitute accrued
paid leave, the employer may require the employee to substitute accrued paid leave
for unpaid FMLA leave. The term “substitute” means that the paid leave provided by
the employer, and accrued pursuant to established policies of the employer, will run
concurrently with the unpaid FMLA leave. Accordingly, the employee receives pay
pursuant to the employer’s applicable paid leave policy during the period of
otherwise unpaid FMLA leave. An employee’s ability to substitute accrued paid
leave is determined by the terms and conditions of the employer’s normal leave
policy. When an employee chooses, or an employer requires, substitution of accrued
paid leave, the employer must inform the employee that the employee must satisfy
any procedural requirements of the paid leave policy only in connection with the
receipt of such payment. See § 825.300(c). If an employee does not comply with the
additional requirements in an employer’s paid leave policy, the employee is not
entitled to substitute accrued paid leave, but the employee remains entitled to take
unpaid FMLA leave. Employers may not discriminate against employees on FMLA
leave in the administration of their paid leave policies.
Id. (emphasis added).
Applying the plain text of this regulation, it is clear that Allen was required to “satisfy any
procedural requirements of the paid leave policy only in connection with the receipt of such
payment.” Id. (emphasis added). When he failed to comply with the procedural requirements of the
paid leave policy (i.e., by failing to call in each day), the County was within its rights to “refuse to
substitute accrued paid leave” but Allen “remain[ed] entitled to take unpaid FMLA leave.” Id. The
County did not afford Allen this right. Instead, it fired him for failing to call in on a daily basis,
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without allowing him to continue his leave as unpaid FMLA leave. This action was plainly
prohibited, and the majority’s conclusion to the contrary is unsupportable.
This Court addressed similar circumstances in Cavin v. Honda of Am. Mfg., 346 F.3d 713
(6th Cir. 2003). In Cavin, an employee was terminated for twice violating his employer’s leave
policy, once in June of 1999 by failing to provide proper notice of his intention to take leave, and
once in October of 1999 by failing to timely submit a medical certification form.1 The employee
argued that his employer interfered with his FMLA rights when it denied a portion of his June 1999
leave and disciplined him. Id. at 719. This Court stated “we agree with Cavin that the FMLA does
not permit an employer to limit his employee’s FMLA rights by denying them whenever an
employee fails to comply with internal procedural requirements that are more strict than those
contemplated by the FMLA.” Id. at 720.
In the instant case, as in Cavin, the County violated the FMLA when it terminated its
employee for “fail[ing], to comply with internal procedural requirements that are more strict than
those contemplated by the FMLA.” Id. To be sure, the employer in Cavin denied the employee his
June leave because of his failure to provide what it deemed proper notice, while in the instant case,
Allen was provisionally granted concurrent paid and FMLA leave but fired before he was reinstated.
However, Allen’s right to be reinstated or to continue to receive FMLA leave is no less compelling
than his right to have his request for leave approved in the first place. See id. at 726-27 (in an FMLA
interference claim, a termination based even in part on the use of FMLA-qualified leave can violate
1
On appeal, the employee in Cavin “chose to simplify his claim” by appealing only the
June 1999 denial of FMLA. Id. at 718.
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the FMLA) (collecting cases); see also Edgar v. JAC Prods., 443 F.3d 501, 507 (6th Cir. 2003)
(acknowledging that improper termination of employment based on conduct related to the FMLA
would constitute FMLA interference). Cavin therefore reinforces 29 C.F.R. § 825.207’s provision
that an employee who fails to satisfy the procedural requirements of an employer’s stricter leave
policy remains entitled to take unpaid FMLA leave. See id. at 722 (“Central to the purposes of the
FMLA is that its provisions apply even where the entitlements created by the Act are in excess of
those that an employer would be willing or able to provide on its own.”) (internal quotation marks
and citations omitted).
The majority points to no cases that suggest that an employee on concurrent FMLA leave can
be terminated for failing to meet the requirements of the employer’s paid leave policy. As the
majority acknowledges, this is an issue of first impression in this Circuit. In fact, this Court’s
unpublished decision in Hicks, 2000 U.S. App. LEXIS 17568, is the only case in which this Court
interprets § 825.207. The case is not particularly helpful, however, as it merely confirms a point on
which we agree—that an employer can provide its paid sick leave concurrently with FMLA leave.
Likewise, there are notably few cases in which our sister circuits interpret § 825.207. Most of the
cases that do, like Hicks, merely confirm that an employer may provide sick leave concurrently with
FMLA leave and that an employee cannot demand them consecutively if the employee was given
proper notification by his or her employer. See, e.g., Dotson v. BRP US Inc., 520 F.3d 703, 708 (7th
Cir. 2008); Slentz v. City of Republic, 448 F.3d 1008, 1010 (8th Cir. 2006). Even fewer cases
address a situation in which an employee was terminated after he failed to comply with his
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employer’s paid leave policy. This is not surprising because § 825.207 clearly and unambiguously
resolves the question.
However, Strickland v. Water Works & Sewer Bd., 239 F.3d 1199 (11th Cir. 2001), is
instructive. Strickland involved an employer who terminated an employee after he left the job site
because he was suffering a diabetic attack. On summary judgment, the district court held that the
FMLA provided no relief because, at the time of the employee’s discharge, he was covered by the
employer’s paid sick leave policy. Id. at 1201-02. On appeal, the Eleventh Circuit addressed
whether the employee was entitled to the protection of the FMLA under those circumstances.
As noted by my colleagues, the Strickland court explained that “Neither Congress nor the
Department of Labor could have intended . . . to allow employers to evade the FMLA by providing
their employees with paid sick leave benefits.” Id. at 1205. Otherwise, the court explained, “when
an employee misses work for an illness that qualifies under both his employer’s paid sick leave
policy and the FMLA, his employer could elect to have the absence count as paid sick leave rather
than FMLA leave and would then be free to discharge him without running afoul of the Act.” Id.
The Strickland court therefore held that “the district court erred in holding that an employee who has
not exhausted his paid sick leave is not entitled to the protections of the FMLA.” Id. at 1206.2
2
The Strickland court noted that the district court’s confusion was understandable, given
the “unartful and unfortunate use of language in the FMLA and its accompanying regulations
indicating that paid leave may be used as a ‘substitute’ for unpaid FMLA leave.” Id. at 1204.
The court went on to explain that, as § 825.207 expressly states, “substitute” merely means to run
concurrently.
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Allen v. Butler County
In sum, Strickland supports the proposition that the full protections of the FMLA apply when
an employer elects to provide FMLA leave concurrent with its own sick leave. In this case as well,
the County was not allowed to evade the protections of the FMLA and terminate Allen while he was
out on protected leave.
The majority’s arguments to the contrary are unpersuasive. First, the majority points to
Edgar, 443 F.3d 501. In Edgar, this Court affirmed a grant of summary judgment after holding that
an employer did not violate the FMLA when it fired an employee who was indisputably unable to
return to work at the conclusion of the 12-week period of statutory leave. Id. at 514. The majority
opinion does not attempt to argue that Edgar is factually similar to this case, or even that it addresses
an employee who uses paid sick leave and FMLA leave concurrently. Instead, it points to a passage
in which the Edgar Court states that “interference with an employee’s FMLA rights [e.g., by
dismissing or refusing to reinstate an employee on FMLA leave] does not constitute a violation if
the employer has a legitimate reason unrelated to the exercise of FMLA rights for engaging in
challenged conduct.” Slip op. at 7 (quoting Edgar, 443 F.3d at 508).
In applying Edgar, the majority states that “the County had not one, but two proffered reasons
for terminating Allen: 1) his ‘flex time’ violations; and 2) his failure to abide by the paid sick-leave
call-in requirement” and that “[t]he County fired Allen for both violations.” Slip op. at 8 (emphasis
in original). To be sure, the County can legitimately claim that it fired Allen based on his use of flex
time, but it is by no means clear that the County actually fired (or would have fired) him on this
basis. Allen was fired almost immediately after he took protected FMLA leave and the County’s
own termination paperwork states that Allen was fired for improper call-in of sick leave while
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Allen v. Butler County
making no mention of flex time.3 A jury could quite rationally reject an argument that Allen was
fired or would have been fired based on improper use of flex time. See Edgar, 443 F.3d at 508
(explaining that an employee is lawfully dismissed “only if the dismissal would have occurred
regardless of the employee’s request for or taking of FMLA leave”) (citation omitted). Whether this
proffered reason is pretext, and the concomitant legitimacy of the County’s “same result anyway”
defense, are disputed issues of fact that preclude a grant of summary judgment.
The majority also fails to explain how the County could terminate Allen for a “legitimate
reason unrelated to the exercise of FMLA rights,” by dismissing him for failing to call in sick each
day. See Edgar, 443 F.3d at 508. Allen was required to call in sick precisely because he was out
on leave that was undisputedly FMLA-qualified leave. It is illogical to conclude that the termination
was “unrelated” to Allen’s exercise of his rights. Moreover, when Allen failed to comply with the
procedural requirements of the County’s stricter paid leave policy, the County was within its rights
to “refuse to substitute accrued paid leave,” but Allen “remain[ed] entitled to take unpaid FMLA
leave.” See 29 C.F.R. § 825.207 (an employee on concurrent FMLA and paid sick leave is required
to “satisfy any procedural requirements of the paid leave policy only in connection with the receipt
of such payment”); see also Cavin, 346 F.3d at 720 (“[T]he FMLA does not permit an employer to
3
As will be discussed below, Allen’s supervisor stated in his deposition that Allen had
been discharged, at least in part, because he had failed to call in his sick leave on a daily basis.
Allen’s personnel records also state that he was discharged for “violating a company rule or
policy for “improper call in of an absence.” (Joint Appendix (“J.A.”) at 154.) Further, an
unemployment form completed by the Butler County Auditor provided that the “final event that
caused the discharge” was “6-10-03 improper call-in of an absence. Violated a Last Chance
Agreement that was in place because of attendance problems.” (J.A. at 155.)
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Allen v. Butler County
limit his employee’s FMLA rights by denying them whenever an employee fails to comply with
internal procedural requirements that are more strict than those contemplated by the FMLA.”).
When the County terminated Allen for failing to call in sick on a daily basis, it did so improperly,
and the alleged call-in violations were not a “legitimate reason” for the termination. The majority’s
reliance on Edgar is therefore misplaced.
The majority also states that under Killian v. Yorozo Automotive Tennessee, Inc., “employers
may rightfully terminate an employee for failure to comply with notification and medical
certification procedures inherent in FMLA regulations.” Slip. op. at 8 (quoting Killian, 454 F.3d
549, 55 (6th Cir. 2006)). That case, which addresses restrictions on leave that were expressly
authorized by the FMLA, is inapposite. In Killian, an employer attempted to justify its termination
of an employee by pointing to 29 C.F.R. § 825.310, which permits an employer to require a returning
employee to provide a fitness-for-duty certification, and provides that an employee who fails to do
so can be terminated. 454 F.3d at 555. This Court ultimately found that the employer had not
actually requested the certification, and that the employer was not justified in terminating the
employee. Id.
Killian in no way supports the majority’s position. Although an employer can legally
terminate an employee, under appropriate circumstances, for violating a requirement imposed by the
FMLA, the employer in the instant case terminated Allen for violating requirements that were
concededly stricter than the FMLA requirements. The majority’s reliance on this case indicates just
how little support there is for its position.
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Allen v. Butler County
Finally, the majority relies heavily on the Third Circuit’s decision in Callison v. City of
Philadelphia, 430 F.3d 117, 120-21 (3rd Cir. 2005). In Callison, an employee was placed on an
employer’s “Sick Abuse List” after being absent from work twenty-six days in one year, and twelve
days in the next. Id. at 118. This policy required Callison, while out on sick leave, to notify his
employer when leaving home and upon return. Id. After being placed on this list, Callison was out
on approved FMLA leave for approximately three months. Id. at 119. The employer reinstated
Callison after his leave, but suspended him pursuant to its Sick Abuse policy for instances in which
he failed to notify his employer when he left and returned to his home. Id.
Callison argued that the FMLA afforded him a right to be “left alone” when he was out on
FMLA leave, and that his employer interfered with his rights when it suspended him for failing to
adhere to its policy. Id. at 120. The Callison court disagreed and found that these suspensions did
not violate the FMLA because the city’s policy “neither prevent[ed] employees from taking FMLA
leave nor discourage[d] employees from taking such leave. It simply ensure[d] that employees do
not abuse their FMLA leave.” Id.
Contrary to the majority’s assertion that “the facts of this case are analogous to those of
Callison[,]” Callison, like Edgar, did not address an employee who was out on concurrent paid and
FMLA leave. The majority opinion makes no effort to reconcile its position with the specific
guidance set forth in § 825.207, which explicitly provides that when an employee is out on
concurrent FMLA leave, the employer can require the employee to “satisfy any procedural
requirements of the paid leave policy only in connection with the receipt of such payment.” 29
C.F.R. § 825.207; see also Cavin, 346 F.3d at 720 (“[T]he FMLA does not permit an employer to
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Allen v. Butler County
limit his employee’s FMLA rights by denying them whenever an employee fails to comply with
internal procedural requirements that are more strict than those contemplated by the FMLA.”).
Notwithstanding this obvious distinction, the majority states that “we adopt the reasoning of
the Third Circuit in Callison, that ‘nothing in the FMLA prevents employers from ensuring that
employees who are on leave from work do not abuse their leave[.]’” Slip op. at 12 (quoting
Callison, 430 F.3d 117, 120-21 (3rd Cir. 2005)). The majority appears to reason that employers
must be able to enforce their more restrictive sick leave policy to prevent employees from abusing
leave, even if that means terminating an employee whose leave is covered by the FMLA. This
reasoning is inherently flawed. An employer who wishes to “ensur[e] that employees who are on
leave from work do not abuse their leave[,]” see id, can already do so without violating the FMLA
by “refus[ing] to substitute accrued paid leave.” See 29 C.F.R. § 825.207. Refusing to pay an
employee on concurrent FMLA leave when he would otherwise be paid is a meaningful penalty that
would discourage abuse. Then, after the employee’s twelve weeks of unpaid FMLA leave expired,
if an employee were to take additional non-FMLA leave and continue to abuse that leave, the
employer would be permitted to take action without implicating the FMLA. What the employer
cannot legally do under the FMLA and 29 C.F.R. § 825.207 is fire the employee for violations of the
employer’s more stringent policy while he is on FMLA leave.
For all of these reasons, the County would plainly violate the FMLA if it terminated Allen,
at least in part, for failing to call in on a daily basis, and the majority’s conclusions to the contrary
are completely unsupported. It is therefore inappropriate to remand with orders that the district court
grant summary judgment to the County, and I dissent as to the majority’s holding in that regard.
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Allen v. Butler County
II.
The majority opinion also completely disregards material factual disputes pertaining to
whether Allen was fired for reasons related to the exercise of his FMLA rights. Because of these
genuine issues of material fact, I believe it would be inappropriate to grant summary judgment to
either party in this case.
The FMLA prohibits qualifying employers from “interfer[ing] with, restrain[ing], or
deny[ing] the exercise of or the attempt to exercise, any right provided under th[e] [FMLA].” 29
U.S.C. § 2615(a)(1). To prevail under a FMLA interference theory, which is the theory pursed by
Allen, the employee must establish:
(1) he is an “[e]ligible employee,” 29 U.S.C. § 2611(2);
(2) the defendant is an “[e]mployer,” 29 U.S.C. § 2611(4);
(3) the employee was entitled to leave under the FMLA, 29 U.S.C. §
2612(a)(1);
(4) the employee gave the employer notice of his intention to take
leave, 29 U.S.C. § 2612(e)(1); and
(5) the employer denied the employee FMLA benefits to which he
was entitled.
Cavin, 346 F.3d at 719. The first four elements are not contested by the parties. However, the
parties disagree as to whether the County denied Allen FMLA benefits to which he was entitled.
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Nos. 07-4320, 07-4327
Allen v. Butler County
Allen can establish that he was denied FMLA benefits if he can prove that he was disciplined
or terminated, at least in part, because he exercised his FMLA rights. See id. at 726. In a case like
this, where the employer-employee relationship has broken down and when an employee has already
taken leave on multiple occasions for arguably minor health issues, there is a question as to whether
the employer actually dismissed him for the stated reasons, or whether it dismissed him for an
impermissible reason—e.g., because it felt he was an employee who took too much leave. The issue
is one of causation which necessarily involves considerations of pretext. If the County utilized the
alleged disciplinary infractions merely to justify actions that were truly based on protected FMLA
conduct, the employer’s actions violated the FMLA. See id. (“[A] termination based only in part on
an absence covered by the FMLA, even in combination with other absences, may still violate the
FMLA.”) (internal quotation marks and citation omitted).
Reasonable jurors could reach different conclusions with regard to whether Allen was
disciplined and/or terminated, at least in part, for protected FMLA conduct. The County presents
evidence that Allen was actually disciplined for a number of performance issues that were unrelated
to the FMLA or any medical issues. This is part of its “same result anyway” defense. For example,
the County presented evidence that Allen was issued “Pre-Disciplinary Hearing Notices” that
charged him with failing to complete required tasks and with making inappropriate comments about
his supervisor in February 2003; with failing to complete assignments, failing to follow directives,
and exhibiting poor communication skills in June 2003; with failing to provide requested
documentation regarding calibration of required regulatory reports in October 2003; and with
improperly flexing his time in June 2004. The County argues that it was entitled to, and that it did,
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Nos. 07-4320, 07-4327
Allen v. Butler County
fire him for reasons completely unrelated to the FMLA. A reasonable jury could credit these
arguments and find in favor of the County, and it was therefore improper to grant partial summary
judgment to Allen on the issue of liability. See Edgar, 443 F.3d at 508 (clarifying that interference
with an employee’s FMLA rights does not constitute a violation if the employer has a legitimate
reason unrelated to the exercise of FMLA rights for engaging in the challenged conduct).
Allen, in contrast, presented evidence that he had worked for approximately ten years without
disciplinary action, and that his alleged disciplinary problems did not begin until he began to take
leave for medical issues. He presented evidence that he suffered from valid medical issues, supplied
physician statements documenting these issues, and argued that many of the alleged disciplinary
infractions occurred on the heels of a medical absence from work. In light of this evidence, a jury
could reasonably infer that the County did not approve of Allen’s repeated absences and the amount
of FMLA leave he used, and that these issues were the true cause of his termination. Because the
motivations behind the County’s actions and the truth of the County’s allegations underlying his
disciplinary writeups constitute genuine issues of material fact, the case should have been submitted
to the jury and the majority’s chosen remedy—summary judgment in favor of the County—is
inappropriate. See Cavin, 346 F.3d at 726.
Finally, and importantly, Allen also presented evidence that he was, in fact, fired because of
his failure to call in his absences. Allen’s supervisor stated in his deposition that Allen had been
discharged, at least in part, because he had failed to call in his sick leave on a daily basis. Allen’s
personnel records also state that he was discharged for “violation of a last chance agreement” by
violating a company rule or policy for “improper call in of an absence.” (J.A. at 154.) These were
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Nos. 07-4320, 07-4327
Allen v. Butler County
the only reasons provided for Allen’s termination on this form. Further, an unemployment form
completed by the Butler County Auditor provided that the “final event that caused the discharge”
was “6-10-03 improper call-in of an absence. Violated a Last Chance Agreement that was in place
because of attendance problems.” (J.A. at 155.) All of these facts would permit a reasonable jury
to decide that Allen was terminated because he failed to call his absences on a daily basis. As
discussed above, under 29 C.F.R. § 825.207 and the FMLA, an employer cannot legally terminate
an employee for violations of the employer’s more stringent policy while he is on concurrent FMLA
leave. The jury could have properly found that Allen was terminated because he failed to call in sick,
and that his termination on these grounds violated the FMLA.
In sum, given the contested facts in this case, a reasonable jury could have found for either
Allen or the County. I therefore conclude that summary judgment should not have been entered in
favor of either party and that the district court erred in granting partial summary judgment to Allen.
III.
While, for the reasons stated above, I would find that the district court should not have
granted partial summary judgment to Allen, I will also address the path that the district court did take
and why I think it was improper.
The district court granted partial summary judgment in Allen’s favor, holding that the County
had interfered with Allen’s FMLA rights by terminating his employment based, at least in part, on
his failure to call in to report his absences. The court reserved the issue of damages for trial and
allowed the County to present its “same result anyway” defense at the bifurcated damages portion
of the trial. As part of this defense, the County argued that even if it was improper to terminate Allen
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Nos. 07-4320, 07-4327
Allen v. Butler County
based on his failure to call in his absences, it would have fired him for performance issues that were
unrelated to the FMLA.4
The district court’s decision to bifurcate the trial requires us to assess whether the County’s
“same result anyway” defense was an issue pertaining to liability, or whether it was an issue that
could have properly been resolved at a trial that was limited to the issue of damages. Because this
defense is part and parcel of the liability determination, I conclude that it was improper for the
district court to allow the County to present it in the bifurcated damages trial.
Prior to trial, Allen filed two motions in limine, arguing that Court should have prohibited
the County from presenting evidence that Allen was not prejudiced by any interference with his
FMLA rights. The district court denied the motions.5 On appeal to this Court, Allen argued that
4
As stated above, the County presented evidence that Allen was issued “Pre-Disciplinary
Hearing Notices” that charged him with failing to complete required tasks and with making
inappropriate comments about his supervisor in February 2003; with failing to complete
assignments, failing to follow directives, and exhibiting poor communication skills in June 2003;
with failing to provide requested documentation regarding calibration of required regulatory
reports in October 2003; and with improperly flexing his time in June 2004.
5
At a pre-trial motions conference, the district court stated:
With regard to the defendants’ motion in limine to exclude evidence of
alleged FMLA interferences and damages prior to the Last Chance
Agreement, I think that’s well-taken. I think the Last Chance Agreement
should be the cutoff point for evidence from either the defendant or the
plaintiff. It is what it is. I don’t want to get into a lot of side issues as to
whether the Last Chance Agreement was fair or reasonable or there was
sufficient progressive discipline prior to it. As I said, it is what it is.
Mot. Conf. Tr. at 5.
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Nos. 07-4320, 07-4327
Allen v. Butler County
the district court abused its discretion when it denied Allen’s motion in limine and admitted evidence
that the County would have discharged Allen for reasons unrelated to the FMLA.
Allen first argued that the “same result anyway” defense was not admissible to show whether
a party was prejudiced by alleged FMLA interference. He argued that Bachelder v. Am. W. Airlines,
Inc., 259 F.3d 1112 (9th Cir. 2001), is directly on point and compelled a result in his favor. In
Bachelder, the court stated that “there is no room for a . . . pretext analysis when evaluating an
‘interference’ claim under this statute [the FMLA]. . . . [T]he regulations clearly prohibit the use of
FMLA-protected leave as a negative factor at all.” Id. at 1131.
This argument contradicts binding precedent from this circuit and the Supreme Court. This
Court has held, in the context of a FMLA interference claim, that “the FMLA is not a strict-liability
statute” and that employees seeking relief must still “establish that the employer’s violation caused
them harm.” Edgar, 443 F.3d at 507-08 (collecting cases). This Court clarified that “interference
with an employee’s FMLA rights does not constitute a violation if the employer has a legitimate
reason unrelated to the exercise of FMLA rights for engaging in the challenged conduct.” Id. at 508.
Moreover, in Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002), the Supreme Court
held that a plaintiff asserting a claim based on a violation of the FMLA must demonstrate prejudice
as a result of a defendants alleged violation of the FMLA. The County properly notes that Bachelder
was decided prior to the Supreme Court’s decision in Ragsdale, 535 U.S. 81. See Coker v. McFaul,
247 F. App’x 609, 619 (6th Cir. 2007) (noting that Ragsdale effectively overruled Bachelder on the
issue of whether prejudice must be shown in a FMLA claim). Allen’s arguments therefore lack merit
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Nos. 07-4320, 07-4327
Allen v. Butler County
under Edgar and Ragsdale, and the “same result anyway” defense was clearly relevant to show
whether a defendant was prejudiced by a FMLA violation.6
In this case, however, the more important question is when and by whom evidence regarding
the defense should have been considered. The issue of causation is part of Allen’s prima facie claim,
see Cavin, 346 F.3d at 719, and therefore, it should have been considered along with other evidence
relating to the County’s liability. Because the issue of liability was resolved in the district court’s
motion for summary judgment, the district court prohibited Allen from presenting evidence about
circumstances surrounding the medical leave that Allen took in the past, and the disciplinary actions
that occurred at or around the same time. See Mot. Conf. Tr. at 5.
Under those circumstances, the jury was unable to properly assess whether the alleged
disciplinary issues were pretext, and/or whether FMLA-related absences were the true cause of
Allen’s termination. Although the trial was ostensibly limited to the issue of damages, the jury—in
considering the “same result anyway” defense—effectively considered the liability issue anyway.
Because it did so under circumstances in which only the County was permitted to fully set forth its
theory of liability to the jury, the district court’s ruling was improper.
6
Allen also argued that the County waived that argument because it did not allege its
defense in its answer to his complaint. This argument lacks merit. In the Sixth Defense of the
County’s answer to the complaint, the County stated that “Plaintiff is estopped from asserting
these claims by his own conduct.” (J.A. at 170.) The Tenth Defense stated, “Any damages
incurred by Plaintiff, which are denied by Defendant, are the direct result of Plaintiff’s own
conduct.” (Id.) These statements were sufficient to give Allen notice of the positions and
defenses of the County, and Allen’s arguments regarding waiver therefore lack merit. See
Blonder-Tongue Lab. v. Univ. of Ill. Found., 402 U.S. 313, 350 (1971) (explaining that pleadings
under Fed. R. Civ. P. 8(c) are notice pleadings and are designed to put a party on notice of the
positions and defenses of the opposing party).
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Nos. 07-4320, 07-4327
Allen v. Butler County
Consequently, I conclude that it was improper for the district court to allow the jury to
consider evidence that Allen would have been fired for reasons unrelated to the FMLA in the context
of a bifurcated damages trial, while preventing Allen from presenting evidence pertinent to the same
issue. As stated above, given the contested facts regarding liability, the district court should have
put the entire case, including the issue of liability under the FMLA, before the jury.
IV.
For the reasons stated above, I disagree with the majority’s decision to remand the case with
instructions to grant summary judgment in favor of the County. Instead, I would reverse the district
court’s grant of partial summary judgment to Allen, and would remand the case for a jury trial as to
all issues. I therefore respectfully dissent.
31