RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Cavin v. Honda of Am. Mfg., Inc. No. 02-3357 ELECTRONIC CITATION: 2003 FED App. 0366P (6th Cir.) File Name: 03a0366p.06 _________________ COUNSEL UNITED STATES COURT OF APPEALS ARGUED: Joshua J. Morrow, LAW OFFICES OF JOHN S. FOR THE SIXTH CIRCUIT MARSHALL, Columbus, Ohio, for Appellant. Mary Ellen _________________ Fairfield, VORYS, SATER, SEYMOUR & PEASE, Columbus, Ohio, for Appellee. ON BRIEF: Joshua J. SAMUEL J. CAVIN , X Morrow, John S. Marshall, LAW OFFICES OF JOHN S. Plaintiff-Appellant, - MARSHALL, Columbus, Ohio, for Appellant. Mary Ellen - Fairfield, Robert N. Webner, VORYS, SATER, SEYMOUR - No. 02-3357 & PEASE, Columbus, Ohio, for Appellee. Patrick J. Perotti, v. - DWORKEN & BERNSTEIN, Painesville, Ohio, for Amicus > Curiae. , HONDA OF AMERICA - MANUFACTURING, INC., _________________ - Defendant-Appellee. - OPINION - _________________ N Appeal from the United States District Court KAREN NELSON MOORE, Circuit Judge. Plaintiff- for the Southern District of Ohio at Columbus. Appellant Samuel J. Cavin (“Cavin”) appeals the district No. 00-00400—John D. Holschuh, District Judge. court’s dismissal of his claim of wrongful discharge in violation of public policy and the district court’s grant of Argued: July 29, 2003 summary judgment to Defendant-Appellee Honda of America Manufacturing, Inc. (“Honda”) on Cavin’s claim that Honda Decided and Filed: October 10, 2003 interfered with his rights under the Family and Medical Leave Act of 1993 (“FMLA” or “Act”). Cavin was employed by Before: DAUGHTREY and MOORE, Circuit Judges; Honda from 1991 until 1999. Cavin violated Honda policy in CALDWELL, District Judge.* June 1999 by failing to notify Honda’s Leave Coordination Department of his need for leave within the required time period and again in October 1999 by failing timely to submit a medical certification form. Honda terminated Cavin in November 1999 for violating its leave policy. Cavin filed a suit alleging that Honda had interfered with his FMLA rights and wrongfully discharged him in violation of Ohio public policy. The district court dismissed Cavin’s wrongful- * discharge claim and granted Honda summary judgment on the The Honorable Karen Caldwell, United States District Judge for the FMLA-interference claim. Cavin appeals these decisions. Eastern District of Kentucky, sitting by designation.
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For the reasons explained below, we AFFIRM the district The Handbook provides that whenever an employee falls court’s decision to dismiss the wrongful-discharge claim. below 98 percent attendance, Honda will strive to help the However, we REVERSE the district court’s grant of employee improve his attendance through a progressive- summary judgment on the FMLA-interference claim and counseling system designed to ensure that employees REMAND the action for further proceedings. understand the attendance policy. However, failure to comply with Honda’s “established attendance guidelines” and “leave I. FACTS AND PROCEDURE of absence requirements,” J.A. at 288 (Handbook), “will result in corrective action up to and including suspension Cavin worked as a production associate in Honda’s without pay or separation from employment,” J.A. at 287 assembly department from 1991 until 1999. As a Honda (Handbook). In fact, if an employee is “absent for three employee, Cavin received an Associate Handbook consecutive workdays without notifying Administration — (“Handbook”) which contained detailed information about Leave Coordination, [he] will be separated from Honda’s leave policies. In the event of an absence, a Honda employment.” J.A. at 290 (Handbook). employee “must notify either Plant Security, [his] department, or Administration prior to the beginning of [his] scheduled On June 21, 1999, Cavin injured his right shoulder in a shift, or as soon as reasonable.”1 Joint Appendix (“J.A.”) at motorcycle accident. Cavin was treated in the emergency 290 (Handbook). According to Honda, employees may call room of St. Ann’s Hospital and released the same day with a security to report a vacation day, “a one-day absence,” or “a prescription for pain medication. The emergency room one-day sickness.” J.A. at 362 (Patterson Dep.). However, physician wrote Cavin a note excusing him from work until when an employee’s “absence continues beyond one day June 24, 1999. When he returned home from the hospital, away from work . . . [he] should contact Administration — Cavin called Honda to inform the company that he needed to Leave Coordination.” J.A. at 290 (Handbook). If the need take time off work because he was injured in a motorcycle for leave is unforeseeable, leave must be requested “no later accident. According to Cavin, than three (3) consecutive workdays of the first day missed. The first day missed counts as day one.” J.A. at 294 When I called in on the 21st and security asked my (Handbook). reason for calling in, I stated that it was a motorcycle accident. And I knew that when I was a team leader we had a call-in screen [on the company’s computer system] that could tell us why a person was not coming to work, 1 and when I stated motorcycle accident, they also asked W hen an employee notifies security of his absence, information about the absence and the reason for the absence is conveyed to the me when I planned on returning. I gave them a return emp loyee’s supervisor so that the sup ervisor can cover the shift. date, and I thought that information would have been However, Ho nda policy does not dictate that se curity will notify the communicated to my coordinator. Leave Coordination Department that an employee may need a leave of absence when the employee calls in to report that he cannot work due to serious illness. Moreover, Honda does not instruct security to notify J.A. at 251 (Cavin Dep.). There is no evidence that Cavin employees who report an illness that they may need to contact the Leave informed security at that time that he would be absent for Coordination Departm ent. See Joint Appendix (“J.A.”) at 390 (Tribune more than one day. Dep.) (“W hen the associate calls into security and says they’re go ing to be absent, they need to request to speak to Leave Coordination specifically, and then security will transfer the call to LCD .”). No. 02-3357 Cavin v. Honda of Am. Mfg., Inc. 5 6 Cavin v. Honda of Am. Mfg., Inc. No. 02-3357
Cavin received treatment from a second doctor, Dr. Scott On July 7, 1999, Honda disallowed a portion of Cavin’s D. Cohen (“Cohen”), the day after the accident. Cohen leave under the FMLA on grounds that the absences were not excused Cavin from work until June 28, 1999. According to approved. Cavin had violated Honda’s leave policy by failing Cavin, during his absence he “called the company everyday to call Honda’s Leave Coordination Department within three [sic] that [he] was scheduled to work to inform the company consecutive workdays of his first day of leave.2 Honda of [his] status.” J.A. at 135 (Cavin Aff.). Cavin reported his refused to approve Cavin’s absences for June 21-23 as absence to security every day during the week of June 21-25. FMLA-qualifying leave, recognizing only June 24-25 as The following week, Cavin was not scheduled to work qualifying leave. Cavin was forced to take a vacation day to because there was a scheduled plant shutdown. Cavin cover his June 21 absence. returned to work on July 6, 1999, two weeks after the first day of his absence, at which time Cavin finally notified the Leave Cavin missed work several times during the following Coordination Department of his need for a leave of absence. months because he was suffering from extreme pain in the shoulder that was injured during the motorcycle accident. When Cavin returned from leave on July 6, his supervisor Honda approved Cavin’s July 15-20 and July 23-28 leaves of and several other Honda employees knew that Cavin had been absence as FMLA-qualifying, but denied his final request for in a motorcycle accident and inquired about how he was FMLA leave on grounds that he failed timely to submit a doing. That day, Cavin received what Honda refers to as certification form for the September 30-October 4 absence. progressive counseling, or coaching, for employees with less To receive FMLA leave for this period, Cavin was required than 98 percent attendance. Counseling is an element of to submit a certification form to the Leave Coordination Honda’s “progressive discipline” structure for attendance Department before October 19. Cavin met the deadline, but violations. J.A. at 353 (McClellan Dep.). Linda McClellan the certification was facially incomplete; it did not include the (“McClellan”), a representative of Honda’s Associate dates of treatment or incapacity. The Leave Coordination Relations Department, met with Cavin and reviewed Honda’s Department instructed Cavin to submit a completed form by leave policies. She informed Cavin that any future violation October 27. Cavin failed to meet the new deadline when his of company policy would result in his separation. doctor did not timely submit the form to Honda.3 Because Cavin explained to McClellan that he had been injured in a motorcycle accident on June 21, had been excused from 2 Although Cavin claims he was unaware of the Leave Coordination work through June 24 by the emergency room doctor, and Department policy, Honda notes that Cavin had contacted the Leave further excused until June 28 by a second doctor. Cavin told Coordination Departm ent to obtain approval for a leave of absence in McClellan that he had called Honda every day to report his 1998. absence and gave her the return to work slips that his doctors 3 had signed to excuse him. Honda gave Cavin a leave The Leave Co ordination Department finally received the form on November 8, 1999. T he form indicated that Cavin received treatment on coordination packet, instructing Cavin to have his doctor September 30, October 1, and October 4. However, Cavin no w admits complete the forms and to return the packet by July 21, 1999. that the certification form included inaccurate informatio n, “incorrectly Cavin timely completed the packet, in which Cohen certified report[ing] that plaintiff received treatment by Dr. Cohen on September that Cavin’s June 21-28 leave was due to a serious health 30, 1999, O ctober 1, 199 9, and October 4, 19 99.” J.A. at 6 2 (Cavin condition. Admissions). As Cavin no tes, there is a factual question as to whether Cavin misrepresented anything to Honda, given that Cohen com pleted the certification form. Regardless, this misrepresentation clearly was no t a No. 02-3357 Cavin v. Honda of Am. Mfg., Inc. 7 8 Cavin v. Honda of Am. Mfg., Inc. No. 02-3357
Honda did not timely receive the certification, Cavin was National Employment Lawyers Association (“NELA”), a disciplined a second time in November 1999. Honda then “professional membership organization of lawyers who fired Cavin for violating the Honda leave policy twice. represent employees in discrimination, wrongful discharge, employee benefit, and other employment-related matters,” On April 3, 2000, Cavin filed a suit in the United States filed an amicus brief in support of Cavin. NELA Br. at 1. District Court for the Southern District of Ohio, alleging that Honda had interfered with his FMLA rights and wrongfully II. THE FAMILY AND MEDICAL LEAVE ACT discharged him in violation of Ohio public policy. Honda filed a motion to dismiss the wrongful discharge claim, and The district court granted Honda summary judgment on the district court granted the motion on March 28, 2001. Cavin’s claim that Honda interfered with his rights under the Cavin v. Honda of Am. Mfg., Inc., 138 F. Supp. 2d 987, 998 Family and Medical Leave Act (“FMLA”) of 1993, 29 U.S.C. (S.D. Ohio 2001) (Cavin I). Honda then filed a motion for §§ 2601 et seq. See Cavin II, 2002 WL 484521, at *25. summary judgment on the FMLA claim, which the district According to the district court, no reasonable juror could have court granted on February 22, 2002. Cavin v. Honda of Am. found that Cavin provided Honda “with timely, adequate Mfg., Inc., No. C2-00-400, 2002 WL 484521, at *25 (S.D. notice of his need for FMLA leave” because Cavin did not Ohio Feb. 22, 2002) (Cavin II). follow Honda’s policy for contacting the Leave Coordination Department. Id. at *14. Cavin argues that Honda did receive Cavin filed a timely notice of appeal. On appeal, “Cavin timely actual notice of Cavin’s leave and therefore Honda chose to simplify his claim . . . by only appealing the June interfered with Cavin’s FMLA rights when it denied a portion 1999 denial of FMLA” and by declining to appeal the district of Cavin’s June 1999 leave and disciplined him. court’s grant of summary judgment with respect to Cavin’s September-October leave.4 Cavin Reply Br. at 4 n.1. The This court reviews de novo a district court’s grant of summary judgment pursuant to Federal Rule of Civil Procedure 56(c). Kincaid v. Gibson, 236 F.3d 342, 346 (6th Cir. 2001). Summary judgment is appropriate factor in Honda’s decision to separate Cavin because Honda was not aware of the misrepresentation at the time of Cavin’s termination. We do if the pleadings, depositions, answers to interrogatories, recog nize, however, that the misrepresentation may be relevant to the and admissions on file, together with the affidavits, if calculation of Cavin’s damages. See McKen non v. Nashville Banner Publ’g Co., 513 U.S. 352, 361-62 (1995) (explaining that when an any, show that there is no genuine issue as to any employer learns of an employee’s wrongdoing after improperly material fact and that the moving party is entitled to a terminating the employee on other grounds, “as a general rule . . . neither judgment as a matter of law. reinstatement nor front pay is an appropriate remedy. . . . The beginning point in the trial court’s formulation of a rem edy should be calculation of backpay from the date of the unlawful discharge to the date the new information was discovered”).
4 The district court reaso ned that “Cavin’s termination is based on two v. Ho nda of Am . Mfg ., Inc., No. C2-00-400, 2002 WL 484521, at *9 (S.D. separate alleged violations of the leave p olicy, neither of which, standing Ohio Feb. 22, 2002) (Cavin II). But see Cavin Reply Br. at 4 n.1 (“[T]he alone, would be sufficient grounds for termination . . . . If a reaso nable record is clear that if Honda would have approved the June 1999 leave, jury could find that either of these absences should have been designated Cavin would not have been fired in November 19 99. An appeal of the as FMLA -qualifying leave, summary judgment must be denied.” Cavin September-Octob er leave would be superfluous.”). No. 02-3357 Cavin v. Honda of Am. Mfg., Inc. 9 10 Cavin v. Honda of Am. Mfg., Inc. No. 02-3357
Fed. R. Civ. P. 56(c). However, “if the evidence is such that FMLA-qualifying leave. To prevail on an interference claim, a reasonable jury could return a verdict for a nonmoving a plaintiff must establish that (1) he is an “[e]ligible party,” then summary judgment will not lie. Anderson v. employee,” 29 U.S.C. § 2611(2); (2) the defendant is an Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In reviewing “[e]mployer,” 29 U.S.C. § 2611(4); (3) the employee was a motion for summary judgment, we view the evidence, all entitled to leave under the FMLA, 29 U.S.C. § 2612(a)(1); facts, and any inferences that may properly be drawn from the (4) the employee gave the employer notice of his intention to facts in the light most favorable to the nonmoving party. take leave, 29 U.S.C. § 2612(e)(1); and (5) the employer Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. denied the employee FMLA benefits to which he was entitled. 574, 587 (1986). See Price v. Multnomah County, 132 F. Supp. 2d 1290, 1297 (D. Or. 2001); see generally Arban v. West Publ’g Co., Nos. A. FMLA Interference Claims 01-2278/2370, --- F.3d ---, 2003 WL 22189281, at *7-8 (6th Cir. Sept. 24, 2003). Honda concedes that during the relevant The FMLA entitles qualifying employees to twelve weeks time period, Honda was an employer and Cavin was an of unpaid leave each year if, among other things, an employee eligible employee for FMLA purposes. Honda also concedes has “a serious health condition that makes the employee that Cavin would have been entitled to take FMLA leave for unable to perform the functions of the position of such June 21-23 had he given appropriate notice, as Honda employee.” 29 U.S.C. § 2612(a)(1)(D). Congress enacted the recognized Cavin’s June 24 and June 25 absences arising FMLA because, among other reasons, “there is inadequate job from the same circumstances as qualifying leave.5 security for employees who have serious health conditions Ultimately, Honda contends that Cavin’s interference claim that prevent them from working for temporary periods.” 29 fails because Cavin did not give Honda proper notice of his U.S.C. § 2601(a)(4). The FMLA “accommodates the intention to take leave. important societal interest in assisting families by establishing minimum labor standard[s] for leave.” H.R. Rep. No. 103- B. Cavin’s Notice to Honda 8(I), 103d Cong., 1st Sess. 1993, at *21 (hereinafter “Cong. Rep.”). Honda’s Associate Handbook articulates the following procedure for employees seeking a leave of absence: Pursuant to the FMLA, “[i]t shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or If you require a leave of absence, you must formally the attempt to exercise, any right provided under [the request a leave from the Administration — Leave FMLA].” 29 U.S.C. § 2615(a)(1); see 29 C.F.R. § 825.220(b) (“Any violations of the Act or of these regulations constitute interfering with, restraining, or denying the exercise of rights 5 provided by the Act.”). Employers who violate § 2615 are “[A]n illness, injury, im pairm ent, or p hysical or mental condition “liable to any eligible employee affected” for damages and that involve s . . . continuing treatment b y a health care p rovid er” is considered a “[s]erious health condition” for FMLA purposes. 29 U.S.C. “for such equitable relief as may be appropriate.” 29 U.S.C. § 2611(11). Cavin was incapacitated for more than three days and was § 2617(a)(1). treated by a health care provider more than once. Honda clearly accepted that Cavin’s injuries from the accident constituted a “serious health Cavin maintains that Honda interfered with his rights under condition” because it granted some of Cavin’s FMLA claims arising out the FMLA by refusing to recognize his June 21-23 absence as of the sam e incident, recognizing his June 24-25, July 15-20, and July 23- 28 absences as qualifying leave. No. 02-3357 Cavin v. Honda of Am. Mfg., Inc. 11 12 Cavin v. Honda of Am. Mfg., Inc. No. 02-3357
Coordination Department. Your request must be made employers, we agree with Cavin that the FMLA does not in a timely manner: permit an employer to limit his employee’s FMLA rights by • If your need for a leave is foreseeable, you must denying them whenever an employee fails to comply with request the leave at least thirty- (30) days (or as soon internal procedural requirements that are more strict than as practicable) before your leave is to begin. those contemplated by the FMLA. • If your need for a leave is not foreseeable, you must request the leave no later than three (3) consecutive Honda policy requires an employee to notify the Leave workdays of the first day missed. The first day missed Coordination Department of his need for leave “no later than counts as day one. the third day missed.” J.A. at 290 (Handbook). Cavin was absent five days from June 21 through June 25, he was J.A. at 294 (Handbook). Honda’s timing requirements are excused from work the following week due to a plant consistent with the FMLA’s requirements for foreseeable shutdown, and he returned to work on July 6. On July 6, leave, see 29 U.S.C. § 2612(e)(1); 29 C.F.R. § 825.302(b), Cavin notified the Leave Coordination Department of his and for the most part more generous than the FMLA’s need for leave. Honda apparently concluded that Cavin requirements for unforeseeable leave,6 see 29 C.F.R. provided timely notice to the Leave Coordination Department § 825.303(a) (“It is expected that an employee will give with respect to his June 24 and June 25 absences — because notice to the employer within no more than one or two July 6 was not more than the third workday from those days working days of learning of the need for leave.”). However, missed — and recognized those two days of leave as FMLA- Cavin violated Honda’s policy by failing to request a leave of qualifying. However, because Cavin failed to notify the absence from the Leave Coordination Department within Leave Coordination Department within three workdays of his three consecutive workdays of the first day of work missed absence on June 21-23, Honda denied those days. Honda’s due to the motorcycle accident. internal notice requirements thus may foreclose relief otherwise available under the FMLA. We must determine 1. Honda’s Policy is Inconsistent with the FMLA whether Honda’s notice requirements are consistent with the FMLA. Cavin contends that Honda’s policy is inconsistent with the notice requirements set forth in the FMLA. Specifically, The regulations governing the application of the FMLA Cavin argues that the FMLA would not permit employers to state that an employee with a foreseeable need for leave “shall deny otherwise-qualifying FMLA leave simply because an provide at least verbal notice sufficient to make the employer employee fails to follow a company’s internal notice aware that the employee needs FMLA-qualifying leave, and requirements. Although the regulations do specifically the anticipated timing and duration of the leave.” 29 C.F.R. contemplate the establishment of notice policies by individual § 825.302(c). However, in the context of requests for foreseeable leave, the regulations also state that 6 Ho nda’s timing requirements are more stringent because the An employer may also require an employee to comply regulations do not strictly limit the timing of notice when an em ployee’s with the employer’s usual and customary notice and need for leave is not foreseeable. Instead, the regulations acknowledge procedural requirements for requesting leave. . . . that under “extrao rdinary circum stances . . . such notice is not feasible,” However, failure to follow such internal employer in which case notice should be given “as soon as practicable under the procedures will not permit an employer to disallow or facts and circumstances of the particular case.” 29 C.F.R. § 825.30 3(a). No. 02-3357 Cavin v. Honda of Am. Mfg., Inc. 13 14 Cavin v. Honda of Am. Mfg., Inc. No. 02-3357
delay an employee’s taking FMLA leave if the employee (7th Cir. 2002), concluded that an employer did not violate gives timely verbal or other notice. the FMLA by discharging an employee who “failed to comply with applicable company rules and policies” 29 C.F.R. § 825.302(d). The regulations do not so explicitly regarding leave notice where “it was not impossible” for her discuss employer notice procedures in the context of an to do so. Id. at 710 (emphasis added). employee’s unforeseeable need for leave, noting only that when an employee requires emergency medical leave, an We conclude that the Seventh and Tenth Circuits have employer cannot require advance written notice pursuant to misinterpreted the FMLA’s notice requirements. Their its internal rules and procedures. 29 C.F.R. § 825.303(a); see interpretations are contrary to the goals of the FMLA and Mora v. Chem-Tronics, Inc., 16 F. Supp. 2d 1192, 1208 (S.D. inconsistent with the regulation of notice in situations where Cal. 1998) (“The Act does not specify the form of notice that an employee has a foreseeable need for leave. Rather than is required for foreseeable leave, and interestingly the Act simply drawing an inference from the silence of § 825.303 makes no reference to any notice requirement for about employer notice requirements other than advance unforeseeable leave.”). written notice, we read § 825.303 in the context of the FMLA itself and § 825.302. In this case, we must focus on § 825.303 because Cavin’s need for leave was not foreseeable. Clearly the emergency As an initial matter, we note that the discussion in medical leave provision of § 825.303 does not apply here § 825.302 about employer notice procedures in the context of because Honda’s policy did not require advance written an employee’s foreseeable need for leave should also apply in notice at all. Beyond the emergency medical leave provision, the context of an employee’s unforeseeable need for leave. It the regulation governing unforeseeable need for leave makes would be illogical to conclude that Congress intended to no other references to an employer’s internal requirements. prohibit employers from “disallow[ing] or delay[ing] an In light of this silence, the Tenth Circuit, in an unpublished employee’s taking of FMLA leave” for failure to comply with opinion, interpreted the regulation to mean that the FMLA “internal employer procedures” in the context of foreseeable prohibits an employer from enforcing only its requirement of need for leave, but not in the context of unforeseeable need advance written notice and, even then, only in the context of for leave. 29 C.F.R. § 825.302(d). The regulations suggest emergencies. Holmes v. The Boeing Co., No. 98-3056, 1999 that notice requirements for unforeseeable leave are more WL 9760, at *3 (10th Cir. Jan. 12, 1999). The Tenth Circuit relaxed than the requirements for foreseeable leave, in reasoned that “[t]he FMLA does not prohibit an employer keeping with the idea that an unforeseeable need for leave from requiring its employees to give notice to specific will often arise in the context of a medical emergency. company supervisors on the day the employee is going to be Therefore, there is no principled reason to conclude that absent in a nonemergency situation, as in this case.” Id. The employers may “disallow or delay an employee’s taking Holmes court thus concluded that an employee cannot seek FMLA leave” for “failure to follow . . . internal employer FMLA relief in the event of his noncompliance with his procedures” in the context of unforeseeable leave when they employer’s specific notice requirements absent an are prohibited from doing so in the context of foreseeable “alleg[ation] that his physical condition was such that he leave. Id. could not comply with defendant’s reasonable notice requirements.” Id. (emphasis added). Similarly, the Seventh Moreover, the conclusion that employers cannot deny Circuit in Lewis v. Holsum of Fort Wayne, Inc., 278 F.3d 706 FMLA leave on grounds that an employee failed to comply No. 02-3357 Cavin v. Honda of Am. Mfg., Inc. 15 16 Cavin v. Honda of Am. Mfg., Inc. No. 02-3357
with internal procedures — as long as “the employee gives employee need only comply with the requirements of the Act timely verbal or other notice” — is consistent with the to invoke its protections.” Marrero, 164 F. Supp. 2d at 463- purpose of the FMLA. 29 C.F.R. § 825.302(d). In enacting 64. Having concluded that Cavin was not obligated to the FMLA, one problem that Congress sought to remedy was comply with Honda’s requirement that he notify the Leave the “inadequate job security for employees who have serious Coordination Department, we proceed to evaluate whether, health conditions that prevent them from working for viewing the facts in a light favorable to Cavin, he complied temporary periods.” 29 U.S.C. § 2601(a)(4). Congress with the notice requirements of the FMLA. sought to articulate a “minimum labor standard for leave” that employers would not be able to limit. Cong. Rep. at *21. When discussing notice requirements in other statutory “Central to the purposes of the FMLA is that its provisions contexts, this court has said that “adequacy of notice is apply even where the entitlements created by the Act are in consistently regarded as a finding of mixed fact and law.” excess of those that an employer would be willing or able to Burkhart v. Post-Browning, Inc., 859 F.2d 1245, 1249 (6th provide on its own.” Marrero v. Camden County Bd. of Soc. Cir. 1988) (analyzing the notice provisions of the Vietnam Servs., 164 F. Supp. 2d 455, 463 (D.N.J. 2001) (citing 29 Era Veterans’ Readjustment Assistance Act of 1974). We C.F.R. § 825.101). Some courts have struck employer have distinguished the factual and legal aspects of notice as policies that impose more stringent requirements on follows: employees seeking FMLA leave. See, e.g., id. (striking an internal policy requiring a doctor’s certification within five [T]he question of whether any notice was given, and if days rather than the fifteen days provided for under the so, what the notice consisted of and when it was given, FMLA); Mora, 16 F. Supp. 2d at 1218 (“Defendant’s policy is one of fact. However, the question of whether the that employees call within thirty minutes of the beginning of notice satisfied the statutory requirement is one of law. their shift is inconsistent with the FMLA and is inapplicable Thus, the issue of notice in this case presents a mixed to employees requesting FMLA qualifying leave.”). In question of fact and law. permitting employers to develop notice procedures, the Department of Labor did not intend to allow employers in K & M Joint Venture v. Smith Int’l, Inc., 669 F.2d 1106, 1111 effect to undermine the minimum labor standard for leave. (6th Cir. 1982) (analyzing notice requirements for breach of warranty claims under a state statute). In a recent Reading § 825.303 in the context of the FMLA and unpublished opinion, however, a panel of this court § 825.302, we conclude that employers cannot deny FMLA characterized the issue of adequate notice under the FMLA as relief for failure to comply with their internal notice involving “primarily questions of fact . . . not questions of requirements. Therefore, we conclude that Honda could not law.” Williams v. Schuller Int’l, Inc., No.00-3614, 2002 WL interfere with Cavin’s FMLA rights by enforcing its notice 193929, at *3 (6th Cir. Feb. 5, 2002). In spite of this recent requirements to deny Cavin benefits to which he otherwise unpublished opinion, however, it seems more accurate to may have been entitled under the FMLA. describe notice as a mixed question: surely there are some facts that as a matter of law are not sufficient reasonably to 2. Cavin’s Compliance with the FMLA apprise an employer of an employee’s need for leave. Although it is within the province of the jury to determine the “[W]here an employer’s internal policies conflict with the facts of the notice given, it is for the court to determine provisions of the FMLA, the FMLA controls and an whether those facts are sufficient reasonably to give an No. 02-3357 Cavin v. Honda of Am. Mfg., Inc. 17 18 Cavin v. Honda of Am. Mfg., Inc. No. 02-3357
employer notice as required by the FMLA. Therefore, for On June 21, 1999, I was in a motorcycle accident in summary judgment purposes, we should determine whether, which I was badly injured. On this same day, I called viewing the facts in the light most favorable to Cavin, Cavin Honda to inform the company that I just got out of the has complied with the FMLA’s notice requirements as a hospital because I was injured in a motorcycle accident. matter of law. I told Honda that I could not work. Thereafter, I called my company everyday [sic] that I was scheduled to work “[T]o invoke the protection of the FMLA, an employee to inform the company of my status. When I returned must provide notice and a qualifying reason for requesting the from leave on July 6, 1999, many employees at Honda leave.” Brohm v. JH Props., Inc., 149 F.3d 517, 523 (6th Cir. knew that I had been injured in a motorcycle accident. 1998). However, “[a]n employee does not have to expressly Many of these employees, such as Judd, Jock, and Steve assert his right to take leave as a right under the FMLA.” asked how I was feeling after the accident. Shawn Hammon v. DHL Airways, Inc., 165 F.3d 441, 450 (6th Cir. Dobbins, my supervisor at the time, also asked how the 1999); see 29 C.F.R. §§ 825.302(c), 825.303(b). Because an accident occurred, how I was feeling, and if I was alright. employee need not expressly invoke the FMLA, “[t]he critical question is whether the information imparted to the employer J.A. at 135 (Cavin Aff.). According to Honda, Cavin only is sufficient to reasonably apprise it of the employee’s request “told the security desk that he had been in an accident, could to take time off for a serious health condition.” Brohm, 149 not work that day, and would be back at work the next day.”7 F.3d at 523 (quotation omitted). “[A]n employee gives his Honda Br. at 20. Honda notes that Cavin never requested employer sufficient notice that he is requesting leave for an leave, did not state that he would need to miss work for an FMLA-qualifying condition when he gives the employer extended period, and failed to provide any other information enough information for the employer to reasonably conclude that might lead Honda to conclude that Cavin was that an event described in the FMLA § [2612(a)(1)] has experiencing a “serious health condition” for FMLA occurred.” Hammon, 165 F.3d at 451. We agree with the purposes. Clearly there is a disputed issue of material fact as Fifth Circuit that it would be inappropriate to articulate to the content of the notice Cavin gave Honda on June 21. categorical rules governing the content of notices, instead recognizing that “[w]hat is practicable, both in terms of the Summary judgment for Honda is nevertheless appropriate timing of the notice and its content, will depend upon the if, viewing these disputed facts in the light most favorable to facts and circumstances of each individual case.” Manuel v. Cavin, Cavin failed to give his “employer enough information Westlake Polymers Corp., 66 F.3d 758, 764 (5th Cir. 1995). for the employer to reasonably conclude that an event described in FMLA § [2612(a)(1)] has occurred.” Hammon, Cavin called security on the day of his motorcycle accident 165 F.3d at 451. Pursuant to § 2612, “an eligible employee to inform Honda of his absence. According to Cavin, shall be entitled to a total of 12 workweeks of leave during “[w]hen I called in on the 21st and security asked my reason any 12-month period . . . [b]ecause of a serious health for calling in, I stated that it was a motorcycle accident.” J.A. at 251 (Cavin Dep.). He told security that he expected to 7 return to work the following day, but after receiving treatment Cavin now m aintains tha t he did not tell security that he w ould from another doctor Cavin called in absences for several return to work the following day. Ho wever, bec ause Cavin disputes this additional days on a daily basis. According to Cavin’s fact only in his brief before this court and stated in his sworn deposition that he told Honda that he would return to work the following day, we do affidavit of June 22, 2001, not reg ard this a s a disputed fact. No. 02-3357 Cavin v. Honda of Am. Mfg., Inc. 19 20 Cavin v. Honda of Am. Mfg., Inc. No. 02-3357
condition that makes the employee unable to perform the an employee can give notice sufficient to make his employer functions of the position of such employee.” Id. § 2612(a)(1). aware that he needs FMLA-qualifying leave without using the In the context of the FMLA, “[t]he term ‘serious health words “leave” or “leave of absence.” condition’ means an illness, injury, impairment, or physical or mental condition that involves — (A) inpatient care in a We recognize that in some cases, there may be a question hospital, hospice, or residential medical care facility; or (B) of whether or not an employee gave notice to his employer. continuing treatment by a health care provider.” 29 U.S.C. The amicus brief filed by the NELA emphasizes urges this § 2611(11). court to recognize a broad definition of “employer” in the FMLA context. However, we need not decide the scope of We conclude that for summary judgment purposes Cavin’s the definition of “employer” under the FMLA in this case. notice to Honda was sufficient to apprise Honda of his Honda, assuming for the sake of argument that its internal “request to take time off for a serious health condition.” notice requirements were not applicable to Cavin, does not Brohm, 149 F.3d at 523. In his affidavit, Cavin stated that he argue that notice was given to the wrong individual, but rather told security he “was injured in a motorcycle accident” and Honda only contends that the contents of the notice given that he “just got out of the hospital.” J.A. at 135 (Cavin Aff.). were insufficient to provide the adequate notice required by Although “a person who is involved in a car accident does not the FMLA. necessarily incur a serious health condition,” Reich v. Midwest Plastic Eng’g, Inc., No. 1:94-CV-525, 1995 WL Even if we were to evaluate whether the person to whom 514851, at *4 (W.D. Mich. July 26, 1995), Cavin specifically Cavin gave notice was his “employer,” however, we believe informed Honda (1) that he had been at the hospital, and that Cavin’s notice to security should be deemed notice to (2) that he was unable to work due to his injury. Thus Cavin Honda under the circumstances.8 Honda specifically directs did not merely state that he was involved in a motorcycle employees to report their absences to security. Although accident, but rather provided additional information about his Honda might have notice of an absence when an employee treatment and condition — he told Honda that he was unable contacts security, it claims to have no notice of a need for a to perform his job because of his injury. See id. (explaining leave of absence until an employee contacts the Leave that an employee involved in a car accident should inform the Coordination Department. We recognize that it is both employer of his hospitalization as a result of the accident and appropriate and efficient for Honda to delegate the of his condition in order to give the employer notice for management of all FMLA claims to one department and that FMLA purposes). it has chosen the Leave Coordination Department for this
Honda attempts to make much of the fact that Cavin never discussed a leave of absence with security when he called to 8 inform security that he would not be at work. However, we Even if notice to security did not constitute notice to Honda, we would conc lude that Ho nda had actual no tice of C avin’s potential need for conclude that Cavin’s failure to use the word “leave” or the leave. Viewed in the light most favorable to Cavin, the evidence indicates phrase “leave of absence” is of no consequence in assessing that Cavin’s sup ervisor had actual notice. T he kno wledge of C avin’s whether Honda received sufficient notice pursuant to the supervisor should be imputed to Honda management, as it generally is in requirements of the FMLA. Just as an employee can give an other statutory contexts. See, e.g., Cunningham v. Gibson Elec. Co., 43 employer notice of his request for FMLA-qualifying leave F. Supp. 2d 965 , 975 (N.D . Ill. 1999) (explaining that und er the Fair Labor Standards Act, “[k]nowledge of its supervisors is imputed to the without invoking the FMLA, see Hammon, 165 F.3d at 450, employer”). No. 02-3357 Cavin v. Honda of Am. Mfg., Inc. 21 22 Cavin v. Honda of Am. Mfg., Inc. No. 02-3357
purpose. See Cavin II, 2002 WL 484521, at *14 (“The goals recover under § 2617. Even when an employee proves that of the FMLA are more likely to be met when a large company his employer violated § 2615, coordinates FMLA leave through one department that is familiar with the FMLA and its accompanying rules and § 2617 provides no relief unless the employee has been regulations. The FMLA is designed to provide job security prejudiced by the violation: The employer is liable only to employees, but the employees’ needs must be balanced for compensation and benefits lost ‘by reason of the with the legitimate interests of the employers.”). However, violation,’ § 2617(a)(1)(A)(i)(I), for other monetary we are not persuaded that notice to security constitutes notice losses sustained ‘as a direct result of the violation,’ to Honda only of the event of an absence, but not of a need § 2617(a)(1)(A)(i)(II), and for ‘appropriate’ equitable for a leave of absence.9 relief, including employment, reinstatement, and promotion, § 2617(a)(1)(B). The remedy is tailored to In light of the above analysis, we conclude that Cavin’s the harm suffered. notice to Honda of his unforeseeable need for leave may meet the requirements of the FMLA. If Honda lacked “sufficient Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, __, 122 information about the employee’s reason for taking leave, [it] S. Ct. 1155, 1161 (2002). According to Honda, Cavin should [have] inquire[d] further to ascertain whether the paid suffered direct harm only as a result of his September-October leave is potentially FMLA-qualifying.” Manuel, 66 F.3d at leave. 762 (quotation omitted). Viewing the facts in the light most favorable to Cavin, Honda was on notice and had a duty to The regulations clearly provide that “employers cannot use collect additional information from Cavin that would be the taking of FMLA leave as a negative factor in employment necessary to make his leave comply with FMLA actions, such as hiring, promotions or disciplinary actions; nor requirements. can FMLA leave be counted under ‘no fault’ attendance policies,” 29 C.F.R. § 825.220(c), suggesting that C. Damages employment actions affected by such considerations are cognizable harms under § 2617; see Bachelder v. Am. W. Finally, Honda argues that even if it interfered with Cavin’s Airlines, Inc., 259 F.3d 1112, 1125 (9th Cir. 2001) FMLA rights in June 1999, Cavin suffered no cognizable (explaining that to prevail on an FMLA interference claim, an injury as a result of that interference and therefore cannot employee “need only prove by a preponderance of the evidence that her taking of FMLA-protected leave constituted a negative factor in the decision to terminate her”). Thus, “a termination based only in part on an absence covered by the 9 Honda perhaps m ay not re ceive actual notice of leaves of absence FMLA, even in combination with other absences, may still from security in light of the fact that Honda policy does not require violate the FMLA.” Barnett v. Revere Smelting & Refining communication betwe en security and the Leave C oordinatio n De partm ent. Corp., 67 F. Supp. 2d 378, 388 (S.D.N.Y. 1999). But if Honda wants the Leave Co ordination D epartment to be aware of all potential leaves of absence, it can take several steps to protect itself. For example, upon learning of an emp loyee’s p otential need for a leave of Cavin arguably suffered direct harm as a result of the June absence, security could transfer the call to the Leave Coordination incident. Cavin was coached about Honda leave policies, Departm ent, directly contact the Leave C oordinatio n De partm ent to notify which the company considered to be “the first step in them o f a possible candidate for leave, or even inform the employee that progressive discipline.” J.A. at 353 (McClellan Dep.); cf. J.A. he sho uld co ntact the Leave Co ordination D epartment. No. 02-3357 Cavin v. Honda of Am. Mfg., Inc. 23 24 Cavin v. Honda of Am. Mfg., Inc. No. 02-3357
at 291 (Handbook) (“The purpose of coaching and counseling of action, holding that “as a matter of Ohio common law, a for attendance is to confirm your understanding of the cause of action for wrongful discharge in violation of public attendance policy, gain understanding of the reasons for your policy based solely on an employer’s violation of the FMLA absenteeism, and to help correct the attendance situation.”). . . . is unnecessary to vindicate the policy goals of the Moreover, when the facts of Cavin’s separation were FMLA.” Wiles v. Medina Auto Parts, 773 N.E. 2d 526, 528 presented to Honda’s employee review panel, it was (Ohio 2002). Because Ohio does not recognize a cause of emphasized that the September-October incident was not the action for wrongful discharge in violation of the public policy sole reason for Cavin’s separation. The review panel was told embodied in the FMLA, we affirm the district court’s that Cavin had violated Honda’s leave of absence policy in dismissal of Cavin’s wrongful-discharge claim. June, at which time he “received a re-education/coaching on our leave of absence policy.” J.A. at 168 (Review Panel). It IV. CONCLUSION was further emphasized before the review panel that For the reasons explained above, we AFFIRM the district [T]his one incident did not on its own separate Mr. Cavin court’s dismissal of Cavin’s wrongful-discharge claim and from employment. Mr. Cavin was put on notice in July REVERSE and REMAND for further proceedings regarding that if future violations occurred he would be seperated Cavin’s FMLA-interference claim. [sic]. . . . Mr. Cavin disregarded [Honda] policy and the direction that was given to him on July 6, 1999. J.A. at 168 (Review Panel). Because these facts were included in the presentation to the review panel evaluating Cavin’s separation, Honda’s conclusion that the June absences were not FMLA-qualifying leave was arguably a “negative factor” in Honda’s decision to separate Cavin. 29 C.F.R. § 825.220(c). Therefore, Cavin has introduced sufficient evidence to establish a genuine issue of material fact about whether he was harmed by the June incidents. III. WRONGFUL DISCHARGE IN VIOLATION OF OHIO PUBLIC POLICY Cavin also appeals the district court’s dismissal of his Ohio common-law claim for wrongful discharge in violation of public policy. See Cavin I, 138 F. Supp. 2d at 994. We review de novo a district court’s decision to dismiss a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Decker v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 205 F.3d 906, 909 (6th Cir. 2000). After the briefs were filed in this case, the Ohio Supreme Court declined to recognize such a cause