Employees who have worked for more than a year at a company which has more than fifty employees is entitled to protected medical leave under the Family Medical Leave Act (FMLA) for absences due to a serious medical illness or other serious life event. While employers are required to let employees know about their right to use the FMLA leave, employees must follow company procedures for calling in to report absences to use FMLA leave. In general, the employee should given notice directly the employee's supervisor.
In the case Bosley v. Cargill Meat Solutions Corp.,Tanya Bosley, an employee of Cargill Meat Solutions Corporation ("Cargill"), missed work because of depression and other health issues. Bosley missed work the entire month of February 2008. Bosley failed to use Cargill's call-in procedure for absences. Bosley also did not notify Cargill that she would qualify for leave under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 etseq. Cargill terminated Bosley's employment, and Bosley sued Cargill, asserting FMLA entitlement and retaliation claims. The district court granted Cargill's motion for summary judgment on both claims. Bosley appealed, and the Eighth Circuit affirmed.
Cargill's attendance policy included a call-in procedure for employees to inform Cargill of any necessary and unavoidable absences through an automated phone system. Under Cargill's policy, failure to comply with the call-in procedure on three consecutive work days would result in a voluntary termination of employment.
Cargill's attendance policy included a call-in procedure for employees to inform Cargill of any necessary and unavoidable absences through an automated phone system. Under Cargill's policy, failure to comply with the call-in procedure on three consecutive work days would result in a voluntary termination of employment.
Bosley was familiar with this policy. She had the call-in number programmed into her phone, and she successfully utilized the procedure on over 100 occasions. Nevertheless, on February 1, Bosley did not call Cargill. In fact, Bosley missed work the entire month of February 2008, and she never used the call-in procedure.
Bosley was conscious, able to get out of bed, able to visit two healthcare providers, and able to communicate coherently. She admitted in deposition testimony that her depression improved and "became not incapacitating around February 15." According to her FMLA paperwork, her condition was no longer incapacitating by February 25.
The district court granted summary judgment to Cargill on both claims, finding that Bosley did not meet her obligation to provide notice to Cargill of her need for protected leave under the FMLA. Bosley appealed, asking this court to reverse the district court's grant of summary judgment and to remand
Bosley argued that the district court erred in finding that she failed to satisfy her notice obligation under the FMLA. The Eighth Circuit "review[ed] a grant of summary judgment de novo." Rynders v. Williams, 650 F.3d 1188, 1194 (8th Cir. 2011). "Summary judgment is proper if, after viewing the evidence and drawing all reasonable inferences in the light most favorable to the nonmovant, no genuine issues of material fact exist and the movant is entitled to judgment as a matter of law." Id. (quotation and citation omitted). The jury is responsible for weighing the evidence and making credibility determinations, not the court. Id. "'[T]he court should deny summary judgment if there is sufficient evidence for a jury to return a verdict for the nonmoving party.'" Id. (quoting Young-Losee v. Graphic Packaging Int'l, Inc., 631 F.3d 909, 911 (8th Cir. 2011)).
In Scobey v. Nucor Steel-Arkansas, 580 F.3d 781 (8th Cir. 2009), the court reiterated the rigorous notice standard for employees seeking to use FMLA leave for absences. Employees have an affirmative duty to indicate both the need and the reason for the leave, and must let employers know when they anticipate returning to their position. Brown v. Kansas City Freightliner Sales, Inc., 617 F.3d 995, 997 (8th Cir. 2010). "Before an employee can claim FMLA protection, . . . the employee must put the statute in play—she must notify her employer that she may need FMLA leave." Murphy v. FedEx Nat'l LTL, Inc., 618 F.3d 893, 900 (8th Cir. 2010) (citing Scobey, 580 F.3d at 787). "A claim under the FMLA cannot succeed unless the plaintiff can show that he gave his employer adequate and timely notice of his need for leave . . . ." Woods v. DaimlerChrysler Corp., 409 F.3d 984, 991 (8th Cir. 2005).
Notice from a Spokesperson
The regulatory language in place in February 2008 provided that "[n]otice may be given by the employee's spokesperson (e.g., spouse, adult family member or other responsible party) if the employee is unable to do so personally." 29 C.F.R. § 825.303 (2008). Bosley argues that Pilcher gave notice to Cargill of Bosley's absence from work due to depression and, hence, of her need for FMLA leave. Bosley points to Pilcher's deposition testimony regarding the conversation that Pilcher had with Crowell on February 1.
"Extraordinary Circumstances" Excuse
Bosley argued that Department of Labor regulations excuse the notice requirement where "extraordinary circumstances" make the giving of such notice unrealistic. The regulation provides, in pertinent part that when the approximate timing of the need for leave is not foreseeable, an employee should give notice to the employer of the need for FMLA leave as soon as practicable under the facts and circumstances of the
particular case. It is expected that an employee will give notice to the employer within no more than one or two working days of learning of the need for leave, except in extraordinary circumstances where such
notice is not feasible. 29 C.F.R. § 825.303(a) (2008). Cargill responded that the regulation does not excuse
the notice requirement altogether in extraordinary circumstances; rather, it merely modifies the general rule that "as soon as practicable" means "one or two working days." Id. Cargill's interpretation is correct. The language of the regulation does not completely excuse the notice requirement but only extends the allowable notice period beyond two working days.
The Eighth Circuit considered whether Bosley gave notice "as soon as practicable under the facts and circumstances of[her] particular case." Id. Bosley did not make contact with Cargill until March 3, 2008,—32 days after she last utilized the call-in procedure. Bosley admitted in her deposition that her depression "became not incapacitating around February 15." Or, according to her FMLA paperwork, her condition was no longer incapacitating by February 25. Because 2008 was a leap year, March 3 was one full week beyond February 25. Thus, Bosley did not contact Cargill for at least five full working days after her depression "became not incapacitating." Bosley states no facts constituting extraordinary circumstances to justify her delay in notifying Cargill. As a matter of law, Bosley's notice requirement was not excused on the basis of "extraordinary circumstances."
"Constructive Notice" Excuse
Bosley argues that her behavior could have placed Cargill on constructive notice of her need for FMLA leave. Bosley relies principally on Byrne v. Avon Products, Inc., 328 F.3d 379 (7th Cir. 2003), in arguing that the Department of Labor regulations in effect at the time recognized constructive notice of the need for leave. But as Cargill points out, we expressly rejected Byrne in Scobey. There, we voiced our "serious doubts about the continuing validity of constructive notice in the FMLA context." 580 F.3d at 788.
The Seventh Circuit in Byrne v. Avon Prods. relied on a previous version of 29 C.F.R. § 825.303(a), which stated that, when leave is unforeseeable, "[i]t is expected that an employee will give notice to the
employer within no more than one or two working days of learning of the need for leave, except in extraordinary circumstances where such notice is not feasible." 328 F.3d at 382 (adding emphasis). Based on this "extraordinary circumstances" exception, the court in Byrne concluded that an employee's aberrant or unusual behavior could, in some cases, be "itself notice that something had gone medically wrong, or perhaps [excuse] notice . . . ." Id. at 381. However, the DOL has subsequently deleted the sentence relied on by the court in Byrne and replaced it with language that currently reads: "[i]t generally should be practicable for the employee to provide notice of leave that is unforeseeable within the time prescribed by the employer's usual and customary notice requirements applicable to such leave." 29 C.F.R. § 825.303(a). Now that the DOL has nullified the regulatory basis for the doctrine, we decline to create a constructive-notice exception to an employee's "affirmative duty," see Woods, 409 F.3d at 990–91, to notify his or her employer of the need for leave that might be FMLA-qualifying. Id. at 788 (alterations in original) (footnotes omitted).
The court found that there were no genuine issues of material fact as to her failure to satisfy her notice obligation under the FMLA. The Eighth Circuit held that the district court did not err in dismissing Bosley's entitlement claim. B. Bosley's FMLA Retaliation Claim Bosley lacked any "direct evidence of retaliation." Phillips v. Mathews, 547 F.3d 905, 912 (8th Cir. 2008). As a result, "we analyze her FMLA retaliation claim under the McDonnell Douglas burden-shifting framework." Id.
[Bosley] was required to first establish a prima facie case of retaliation, which required her to show that she exercised rights afforded by the [FMLA], that she suffered an adverse employment action, and that there was a causal connection between her exercise of rights and the adverse employment action. Id.
An employee's meeting his or her notice obligation to an employer of a need for FMLA leave is essential to a FMLA retaliation claim. See, e.g., Wierman v. Casey's Gen. Stores, 638 F.3d 984, 1000 (8th Cir. 2011) ("In order to benefit from the protections of the statute, an employee must provide her employer with enough information to show that she may need FMLA leave." (quotation, alterations, and citation omitted)). Here, Bosley notified Cargill that she would seek FMLA leave only after Cargill had terminated her employment. Because Bosley did not meet her FMLA notice obligation to Cargill while employed, her termination could not have been retaliation. There is no genuine issue of material fact regarding Bosley's failure to meet her notice obligation, so Bosley fails to make a prima facie case for FMLA retaliation. The district court did not err in dismissing her claim.
If you have questions about your qualification for or use of FMLA leave, contact Madathil Law Office. The firm offers free consultations.
If you are a small business owner and you have questions about how to comply with the FMLA, contact Madathil Law Office.
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