REVISED, March 17, 1998
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
_____________________
No. 97-40135 _____________________
MELANIE SATTERFIELD,
Plaintiff-Appellee,
versus
WAL-MART STORES, INC.,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the Eastern District of Texas _________________________________________________________________ February 25, 1998
Before POLITZ, Chief Judge, GARWOOD, and BARKSDALE, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
This appeal turns on whether, under the Family and Medical
Leave Act of 1993 (FMLA), 29 U.S.C. § 2601, et seq., Melanie
Satterfield, an “at-will” employee of Wal-Mart Stores, Inc., gave
adequate notice of her need for leave, because of an unforeseeable
medical problem/condition (pain in side). Wal-Mart appeals a
judgment in favor of Satterfield. We REVERSE and RENDER.
I.
Satterfield was employed by Wal-Mart from late 1992 until mid-
1995, when Wal-Mart discharged her for excessive unexcused
absences. That October, she filed this action, claiming that Wal-
Mart violated the FMLA. A jury agreed with Satterfield. It awarded her $5,000 in
actual damages, but refused to assess liquidated damages.
Post-trial, the district court denied Wal-Mart’s motion for
judgment as a matter of law (Wal-Mart had also so moved at the
close of both Satterfield’s case-in-chief and all the evidence) but
granted it for Satterfield, increasing the actual damages to
approximately $10,000 and awarding liquidated damages of
approximately $11,000. It also awarded attorney’s fees and costs
of approximately $29,000, and ordered Wal-Mart to reinstate
Satterfield.
II.
Wal-Mart maintains that it should have been granted judgment
as a matter of law on three independent bases, claiming that
Satterfield failed to prove: adequate notice for leave under the
Act; the requisite “serious health condition”, as defined by the
Act; and discrimination, because her excessive unexcused absences
are a legitimate, non-discriminatory reason for her discharge.
Alternatively, it challenges the sufficiency of the evidence of
damages, the constitutionality of the increase in the actual
damages award, the award of liquidated damages, the reinstatement
order, and the attorney’s fee award.
Because we conclude that, as a matter of law, Satterfield’s
notice of the need for FMLA leave was inadequate, we do not address
the other issues.
- 2 - A.
The Family and Medical Leave Act of 1993 was enacted because
Congress found, inter alia, “inadequate job security for employees
who have serious health conditions that prevent them from working
for temporary periods”. 29 U.S.C. § 2601(a)(4). The purposes of
the Act include “balanc[ing] the demands of the workplace with the
needs of families” and “entitl[ing] employees to take reasonable
leave for medical reasons”. 29 U.S.C. § 2601(b)(1) & (2).
However, the FMLA seeks to accomplish these purposes “in a manner
that accommodates the legitimate interests of employers”. 29
U.S.C. § 2601(b)(3); see also 29 C.F.R. § 825.101(b) (“The
enactment of the FMLA was predicated on two fundamental concerns —
the needs of the American workforce, and the development of high-
performance organizations.”).
The Act applies to private-sector employers of 50 or more
employees. 29 U.S.C. § 2611(4). And, an employee is “eligible”
for FMLA leave if she has worked for a covered employer for at
least 1,250 hours during the preceding 12 months. 29 U.S.C. §
2611(2). It is undisputed that Wal-Mart is a covered employer and
Satterfield, an eligible employee.
An eligible employee is entitled to 12 work-weeks of leave in
a 12-month period because of, inter alia, a “serious health
condition” that results in the employee’s inability to perform her
job requirements. 29 U.S.C. § 2612(a). At the conclusion of a
qualified leave period, the employee is entitled to reinstatement
to her former position, or to an equivalent one, with the same
- 3 - terms and benefits. 29 U.S.C. § 2614(a). The FMLA makes it
“unlawful for any employer to interfere with, restrain, or deny the
exercise of or the attempt to exercise, any right provided under”
the Act. 29 U.S.C. § 2615(a).
In determining whether an employee’s leave request qualifies
for FMLA protection, the employer must assess whether the request
is based on a “serious health condition”, and, for that purpose,
may request supporting medical documentation. 29 U.S.C. § 2613; 29
C.F.R. § 825.302(c). The Act defines a “serious health condition”
as “an illness, injury, impairment, or physical or mental condition
that involves[:] (A) inpatient care in a hospital, hospice, or
residential medical care facility; or (B) continuing treatment by
a health care provider.” 29 U.S.C. § 2611(11).
One of the regulations promulgated by the Secretary of Labor
(approximately two months before Satterfield’s discharge) defines
a “serious health condition” as
an illness, injury, impairment, or physical or mental condition that involves:
(1) Inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility, including any period of incapacity (for purposes of this section, defined to mean inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefor, or recovery therefrom), or any subsequent treatment in connection with such inpatient care; or
(2) Continuing treatment by a health care provider....
29 C.F.R. § 825.114(a) (emphasis in original).
- 4 - The regulation goes on to state that “continuing treatment by
a health care provider” includes, in pertinent part:
(i) A period of incapacity (i.e., inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefor, or recovery therefrom) of more than three consecutive calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves:
(A) Treatment two or more times by a health care provider, by a nurse or physician’s assistant under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider; or
(B) Treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider.
29 C.F.R. § 825.114(a)(2)(i) (emphasis in original).
When the need for FMLA leave is foreseeable, an employee must
provide her employer with no less than 30 days advance notice.
(The type notice considered “advance” notice is a subissue here, as
discussed in Part II. C.) If, however, leave is for the birth of
a child or the placement of a child with the employee for adoption
or foster care and must begin in less than 30 days, “the employee
shall provide such notice as is practicable.” 29 U.S.C. §
2612(e)(1)&(2)(B); see also 29 C.F.R. § 825.302.
On the other hand, the Act is silent as to notice requirements
when, as in this case, the need for leave is unforeseeable. But,
the regulations address this question:
(a) When the approximate timing of the need for leave is not foreseeable, an employee
- 5 - 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. In the case of a medical emergency requiring leave because of an employee’s own serious health condition or to care for a family member with a serious health condition, written advance notice pursuant to an employer’s internal rules and procedures may not be required when FMLA leave is involved.
(b) The employee should provide notice to the employer either in person or by telephone, telegraph, facsimile (“fax”) machine or other electronic means. Notice 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. The employee need not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed. The employer will be expected to obtain any additional required information through informal means. The employee or spokesperson will be expected to provide more information when it can readily be accomplished as a practical matter, taking into consideration the exigencies of the situation.
29 C.F.R. § 825.303 (emphasis added).
Our court has considered notice requirements for unforeseeable
leave only once, in Manuel v. Westlake Polymers Corp., 66 F.3d 758
(5th Cir. 1995). In that case, pursuant to the employer’s “no
fault” attendance policy, the employee was warned in February,
July, and September 1992 that her absenteeism could result in
severe disciplinary action, including termination. Id. at 760. At
the end of December 1992, the employee had missed 14 days of work
- 6 - in the preceding three months, and was warned again that continued
absenteeism could result in suspension or termination. Id.
In October 1993, the employee received permission from her
supervisor to miss work on a Friday for removal of an ingrown
toenail; her doctor had advised her that she could return to work
the following Monday. Id. Complications developed after the
procedure, and the employee contacted her supervisor on the
following Monday and told him that she could not return to work
because of her toe. Id. Keeping in constant contact with her
employer, she missed work for more than a month. Id. After the
employee returned to work, she was suspended for four days and
issued a final warning for unsatisfactory attendance, which stated
that her employment would be terminated unless she reported to work
as scheduled. Id. Less than two months later, the employee went
home from work after becoming ill. She returned three days later,
but was fired because of her persistent absenteeism, including due
to the toenail removal. Id.
At the time of discharge, unlike in Satterfield’s case, the
final regulations had not been adopted. The district court granted
summary judgment for the employer, holding that the employee’s
notice of her extended absence due to the toenail was insufficient
to trigger protection under the FMLA because the employee did not
expressly refer to the Act when requesting leave. Id. at 761.
But, our court held that the district court erred by so
interpreting the FMLA, and remanded for consideration of whether
the employee gave sufficient notice to her employer of the need for
- 7 - FMLA leave. In regard to that issue, our court “decline[d] to
announce any categorical rules for the content of the notice by an
employee”, id. at 764, but stated, consistent with the final
regulations, quoted supra, which had been adopted after the
employee’s discharge:
What is practicable, both in terms of the timing of the notice and its content, will depend upon the facts and circumstances of each individual case. The critical question is whether the information imparted to the employer is sufficient to reasonably apprise it of the employee’s request to take time off for a serious health condition.
Id. (emphasis added).
In Hopson v. Quitman County Hosp. & Nursing Home, Inc., 126
F.3d 635 (5th Cir. 1997), our court, addressing the notice
requirements for foreseeable — not unforeseeable — leave, including
whether a “change in circumstances” must be medically-related,
stated that, “in a case where the court is asked to apply the
standards of a relatively recent statute to undisputed facts, it is
our opinion that the adequacy of Hopson’s notice is a fact issue.”
Id. at 640 (emphasis added) (citing Manuel).
What constitutes a “change in circumstances,” whether a plaintiff’s notice is given “as soon as practicable”, and whether the employee has made a reasonable effort to schedule her treatment so as not to disrupt unduly the operations of the employer requires an inquiry into the particular facts and circumstances of each case. Such determinations are questions of fact and are better left to the jury with its traditional function of assessing human behavior and expectations.
- 8 - Concerning the adequacy of notice of a need for foreseeable
FMLA leave, this passage could be read to foreclose judgment as a
matter of law (or summary judgment, for which the standard is, of
course, the same, see FED. R. CIV. P. 50, advisory committee note,
1991 amendment, and 56), and, instead, always require a jury
determination. But, needless to say, for unforeseeable leave, as
in the case at hand, the questions are not totally the same (and
arguably less complex and less subjective). In any event, we do
not read the passage so broadly.
Obviously, the court meant that, even based on the undisputed
evidence in that case, rational triers of fact could nevertheless
differ on whether the advance notice was adequate. Cf. Little v.
Liquid Air Corp., 37 F.3d 1069, 1075-76 n.14 (5th Cir. 1994) (en
banc) (noting that dicta that summary judgment is generally not
appropriate in certain types of cases “is essentially empty chatter
... inasmuch as we have never reversed a district court’s entry of
summary judgment solely because it involved a particular class of
allegations”, and rejecting “any suggestion that the
appropriateness of summary judgment can be determined by such case
classification”). In this regard, and as discussed infra, other
circuits have granted summary judgment for the employer on the
question of adequacy of notice for unforeseeable FMLA leave.
Moreover, although it apparently was not an issue in Manuel, which
also involved an appeal from a summary judgment, we note,
nevertheless, that our court gave no indication that summary
- 9 - judgment was not an available means for resolving FMLA-notice
questions.
Accordingly, to determine whether the district court erred by
denying judgment as a matter of law on the notice-adequacy, we must
view the evidence and inferences in the light most favorable to
Satterfield and determine whether a rational juror could conclude,
pursuant to the test established by Manuel, 66 F.3d at 764, that
the information Satterfield gave Wal-Mart was “sufficient to
reasonably apprise it of [Satterfield’s] request to take time off
for a serious health condition.” See FED. R. CIV. P. 50; Boeing Co.
v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969) (en banc),
overruled on other grounds, Gautreaux v. Scurlock Marine, Inc., 107
F.3d 331 (5th Cir. 1997) (en banc); see also Bellows v. Amoco Oil
Co., 118 F.3d 268, 273 (5th Cir. 1997), cert. denied, ___ U.S. ___,
118 S. Ct. 739 (1998).
B.
It goes without saying that the FMLA makes incredible inroads
on an at-will employment relationship, such as Satterfield’s with
Wal-Mart. For example, as stated in the earlier-quoted pertinent
regulation, “[i]n a case of a medical emergency requiring leave
because of an employee’s own serious health condition ... written
advance notice pursuant to an employer’s internal rules and
procedures may not be required when FMLA leave is involved.” 29
C.F.R. § 825.303(a) (emphasis added). This notwithstanding,
Satterfield’s employment history and her knowledge, as well as
utilization, of Wal-Mart’s rules and procedures concerning leave
- 10 - and absenteeism provide a backdrop for determining whether she gave
sufficient FMLA-notice.
At the commencement of her employment with Wal-Mart in
December 1992, Satterfield received an Associate’s Handbook and
Associate’s Benefit Book. She also signed an acknowledgment,
stating that she had received a copy of Wal-Mart’s policies and
procedures and understood that her employment was “on an ‘at-will’
basis” and that Wal-Mart had the right to “terminate the employment
relationship with or without good cause and without prior notice”.
The Benefit Book explains how employees can maintain insurance
benefits following termination. It also describes the procedures
applicable to the different types of leaves of absence available,
including medical leave. It states that, if an employee has
advance notice that leave will be required, she should submit a
Request for Leave at least 30 days prior to the day leave is to
begin “or as soon as practical after the associate learns of the
need for leave”; and that, for unexpected leave, employees “are
required to notify their supervisor as soon as practical but not
later than three days after the commencement of the leave”.
Even though these procedures pre-dated the FMLA, they are,
most interestingly, quite similar to the FMLA and implementing
regulations. In fact, it may well be that Wal-Mart was trying to
track the FMLA, then in the works, but not signed into law until
early 1993. A version of the FMLA was passed in 1990, H.R. 770,
101st Cong., 1st Sess. (1989), but was vetoed by President Bush on
29 June 1990. S. REP. NO. 68, 102d Cong., 1st Sess. 67-68 (1991).
- 11 - The House of Representatives failed to override the veto on 25 July
1990. H.R. REP. NO. 135, 102d Cong., 1st Sess., pt. 1, at 18
(1991). Another version was passed in 1992, S. 5, 102d Cong., 1st
Sess. (1991); H.R. 2, 102d Cong., 1st Sess. (1991). It was also
vetoed by President Bush. A&P S. DOC. 102-26 (22 Sept. 1992). The
Senate overrode the veto, 138 CONG. REC. S14841-03 (24 Sept. 1992),
but the House did not, 138 CONG. REC. H9930-03 (30 Sept. 1992). In
short, the FMLA did not become law until approximately three months
after Satterfield began working for Wal-Mart.
Satterfield’s personnel file confirms that she was quite
familiar with Wal-Mart’s policies for leaves of absence. In
February 1993, pursuant to Wal-Mart’s leave request policy, she
requested, and received, medical leave when she had her gallbladder
removed; and, in August 1994, she requested, and received, a leave
of absence from 22 August through 5 September, in order to locate
a new babysitter for her son.
Satterfield’s attendance record, included in her personnel
file, contains the notation “NS” (“no show”) for 28 and 29 May and
3 June, 1995. It is undisputed that these absences were unrelated
to the alleged “serious health condition” at issue.
On Friday, 16 June, Satterfield did not report for scheduled
work. She testified that, when she awoke that morning, she was
having a lot of pain in her right side, which worsened after she
remained standing for a long time; that she did not know the cause
or probable duration of the pain; and that, because her job as a
cashier required her to stand, she did not think she was going to
- 12 - be able to work that day. Lacking a telephone, she asked her
mother to deliver a note to Wal-Mart management. According to
Satterfield, the note stated that she “was having a lot of pain and
... wouldn’t make it in to work that day, and could [she] make up
that day on one of [her] days off”. (On cross-examination,
Satterfield testified that the note also specified that the pain
was in her “side”.) In addition, the note stated that her mother
could pick up Satterfield’s paycheck.
Satterfield’s mother, Jean Grimes, who read the note,
testified that it stated “that [Satterfield] was sick and that
could I please pick up her check and that could she make up her
hours whenever -- on her scheduled off days”. Grimes also
testified that she told the store manager, Mark Neighbors, on 16
June that Satterfield was sick, but that she did not know “what was
wrong with that girl” because, “[i]f somebody is having pain in
that particular area of the body, if it’s not appendicitis, then I
have no idea what it is”; however, she could not recall whether
Neighbors said anything to her during that conversation that
indicated he thought Satterfield was sick that day.
Satterfield testified further that, later that day (16 June),
she was still having “some pain” and thought she needed to see a
doctor; and that, later that afternoon, just before her doctor’s
office closed, she drove to a convenience store a few blocks from
her home and telephoned for an appointment, but the doctor was
unable to see her until the following Tuesday, 20 June.
- 13 - On direct examination, Satterfield testified that she did not
recall whether she was scheduled to work on 17-19 June, but that
she was not able to work on any of those days because she was
“having a lot of pain”. On cross-examination, upon being shown the
17-20 June work schedule, Satterfield acknowledged that she was
scheduled to work each of those days. She also admitted that, by
the afternoon of 16 June, when she scheduled her doctor’s
appointment, she recognized the possibility that she was not going
to be able to work 17-20 June.
Nevertheless, Satterfield testified that, after scheduling
that appointment, she did not telephone Wal-Mart from the
convenience store on 16 June to notify her supervisor of the status
of her condition, or the scheduled appointment, or that she might
be out for another four days; in fact, she did not contact Wal-Mart
until 28 June. But, she testified that her mother informed Wal-
Mart every day that she would miss work. At odds with this mother-
advised-every-day testimony is the mother’s (Grimes’) testimony
that Neighbors informed her on 16 June that he had decided to fire
Satterfield, but that she did not so advise Satterfield.
Satterfield saw her physician on 20 June; he prescribed
antibiotics and pain pills. According to Satterfield, her
physician also then gave her a written medical excuse, and her
mother took it to Wal-Mart; her mother also testified that she
delivered a medical excuse to Wal-Mart for Satterfield on 20 June.
However, Satterfield’s personnel file does not contain a medical
excuse dated 20 June. And, on cross-examination, Satterfield
- 14 - admitted that, after seeing her doctor, she once again did not
contact Wal-Mart.
Satterfield next saw her doctor at the emergency room late on
27 June; she testified that, at that time, he told her that she
would need surgery. However, neither the doctor’s, nor emergency
room’s, records contain any notations on that date about surgery.
Satterfield testified that the doctor gave her a medical
excuse, which her mother took to Wal-Mart. The doctor’s excuse,
which was introduced into evidence, is dated 28 June 1995, and
states that Satterfield had been under the doctor’s care “from 6-
20-95 [four days after Wal-Mart’s decision to discharge her] to
date”, and “is able to return to work on: indefinite”.
Following the 27 June emergency room treatment, Satterfield
testified that, on 28 June, she went to the hospital for surgery,
but was then informed that her health insurance had been canceled.
Because she could not pay for the surgery, it was not then
performed. That same day, after becoming aware of the insurance
cancellation, Satterfield contacted Wal-Mart’s store manager,
Neighbors, about her condition and the status of her insurance, and
learned that she had been fired.
Several weeks later, in August 1995, Satterfield wrote a
letter to Wal-Mart’s district manager, Terry Farr, stating that she
had spoken with an attorney, who said she should have been covered
by the FMLA, and that she was fired for being sick. Satterfield
testified that she did not receive a response from Wal-Mart.
- 15 - Satterfield was treated at the emergency room again on 4 and
10 July and 16 September 1995, and 18 February 1996. But, she did
not revisit her doctor in his office until 1 April 1996. On 3
April, after qualifying for Medicaid, she had surgery. She
testified that the pain did not bother her after the surgery.
(Satterfield’s physician did not testify at trial.) In May 1996,
she began working part-time for Dairy Queen.
Neighbors, the Wal-Mart store manager, testified that, on 16
June (Friday), Satterfield’s mother, who was employed at the same
Wal-Mart store, delivered a note to him from Satterfield, which
only stated: “Please allow my mother to pick up my check”. He
testified that, upon receipt of the note, he asked Grimes, “Where
is Melanie? Why isn’t she coming to work?”; and that Grimes
responded, “I don’t know what’s wrong with that girl”. Neighbors,
however, did not keep the note.
Neighbors testified further that, because Satterfield’s 16
June absence was her fourth failure to report for work in three
weeks, he decided to discharge her, in accordance with Wal-Mart’s
policy, which allows termination for excessive absences. He
testified that, in making that decision, he took into account the
unexcused absences on 28 and 29 May and 3 June; and that he would
not have terminated Satterfield only for missing work on 16 June.
Wal-Mart’s records reflect that Satterfield’s employment was
officially terminated on Monday, 19 June. Satterfield’s exit
interview form, signed by Neighbors, states in the “Explanation of
- 16 - Termination” section: “Unreported Absence - didn’t call in or show
5/28/95, 5/29/95, 6/3/95, 6/16/95".
In addition, Neighbors testified that he told Satterfield’s
mother on 19 June (as stated, Grimes testified that this
conversation occurred instead on 16 June) that he had decided to
discharge Satterfield because of her excessive unexcused absences;
according to Neighbors, Grimes did not tell him that Satterfield’s
absence was the result of illness.
Resolving the factual variances in favor of Satterfield, as we
must, the evidence establishes that the only information
Satterfield imparted to Wal-Mart prior to its discharge decision
was a note delivered to Wal-Mart by her mother on 16 June, advising
that she was “was having a lot of pain in her side”, and would not
be able to work that day, but would like to make it up on one of
her days off; and her mother’s statement to Neighbors that
Satterfield was “sick”. As hereinafter discussed, we conclude
that, pursuant to the Manuel test, 66 F. 3d at 764, no rational
trier of fact could conclude that this was “sufficient to
reasonably apprise [Wal-Mart] of [Satterfield’s] request to take
time off for a serious health condition” within the meaning of the
FMLA.
“While an employer’s duty to inquire may be predicated on
statements made by the employee, the employer is not required to be
clairvoyant.” Johnson v. Primerica, 1996 WL 34148, at *5 (S.D.N.Y.
1996). Although Satterfield was able to telephone her doctor’s
office on the afternoon of 16 June and schedule an appointment, she
- 17 - made no attempt to then contact Wal-Mart to advise of both the
status of her condition and that appointment for the following
Tuesday, 20 June. Indeed, she did not contact Wal-Mart until 28
June.
The 28 June doctor’s excuse Satterfield provided Wal-Mart
stated that she had been under the doctor’s care since 20 June,
after Wal-Mart had discharged her, and that it was indefinite as to
when she could return to work; but, it did not state that the
condition for which she was being treated necessitated her absence
from work on 16 June. As explained, Satterfield and her mother
testified that they also provided Wal-Mart an excuse dated 20 June.
But, there is no evidence regarding its contents.
Obviously, “[w]hat is practicable, both in terms of the timing
of the notice and its content, will depend upon the facts and
circumstances of each individual case.” Manuel, 66 F.3d at 764
(emphasis added); see 29 C.F.R. § 825.303. Other very relevant
facts and circumstances at hand include: (1) Satterfield knew how
to obtain similar leave from Wal-Mart, because she had requested,
and received, leave pursuant to its policies in 1993 and 1994; and
(2) in the three weeks preceding 16 June 1995, she had three
unexcused absences.
Considering all of these facts and circumstances, no rational
trier of fact could conclude that the meager information
Satterfield imparted to Wal-Mart on 16 June was sufficient to
require Wal-Mart to seek additional information about her
condition, and whether it qualified for FMLA protection. See Cehrs
- 18 - v. Northeast Ohio Alzheimer Research Center, 959 F. Supp. 441, 449
n.9 (N.D. Ohio 1997) (“While notice to the employer may be informal
and need not invoke the FMLA by name, the employer, at a minimum,
must receive information sufficient to make it evident that the
leave requested is qualifying leave under the FMLA.”); Reich v.
Midwest Plastic Engineering, Inc., 1995 WL 514851, at *3 (W.D.
Mich. 1995) (“at a minimum, an employee must inform her employer of
her condition with sufficient detail to make it evident that the
requested leave is protected as FMLA-qualifying leave”).
It is well to remember that the FMLA is designed only to
protect employees when there is a “serious health condition”, and
only in a manner that “accommodates the legitimate interests of
employers”. 29 U.S.C. § 2601(a)(4), (b)(3). Requiring an employer
to undertake to investigate whether FMLA-leave is appropriate each
time an employee, who has been absent without excuse three times in
the preceding three weeks, informs the employer that she will not
be at work “that day” because she is “having a lot of pain in her
side” or is “sick”, is quite inconsistent with the purposes of the
FMLA, because it is not necessary for the protection of employees
who suffer from “serious health conditions”, and would be unduly
burdensome for employers, to say the least. See Price v. City of
Fort Wayne, 117 F.3d 1022, 1023 (7th Cir. 1997) (“The goal [of the
FMLA] was not to supplant employer-established sick leave and
personal leave policies, but to provide leave for more uncommon
and, presumably, time-consuming events such as having or adopting
- 19 - a child or suffering from what is termed a ‘serious health
condition’.”).
The same is true of the information provided after 16 June.
It was either too little, or too late, or both. No rational trier
of fact could conclude otherwise.
Even though each case obviously turns on its own particular
facts and circumstances, we find it instructive, nevertheless, to
consider other decisions regarding the adequacy of notice for
unforeseeable leave. In Carter v. Ford Motor Co., 121 F.3d 1146
(8th Cir. 1997), the court affirmed a summary judgment for the
employer, Ford. (As noted supra, this is an example of the summary
judgment procedure being appropriate, as it must be under the
applicable Federal Rules of Civil Procedure, so long as those Rules
are satisfied, for FMLA notice-adequacy questions.)
On 16 February 1994, the plaintiff’s wife, who was also a Ford
employee, telephoned the labor relations office at the plant and
stated that she was sick and that she and her husband “were going
to be ‘out’ because of family problems”. Id. at 1147. Two days
later, the plaintiff (husband) was diagnosed as suffering from
anxiety and depression, and his doctor concluded that he was
totally disabled. Id. On 21 February, the plaintiff called the
labor relations office and stated that he would be “out sick”. Id.
In response to inquiries, the plaintiff stated that the problem
“was personal” and that “he did not know” when he would return to
work. Id. On 25 February, the plaintiff called the labor
relations office again and stated that he was still sick, but he
- 20 - did not request medical leave at that time. Id. That same day,
the plaintiff received a letter “instructing him to report for work
or provide a reason justifying his continued absence within five
days”; the letter also warned that failure to comply would result
in termination. Id.
On 28 February, the plaintiff went to the Ford plant and
requested sick leave; he was given a form for his attending
physician to complete as soon as possible to explain the need for
such leave. Id. Although his physician completed the form on 2
March, the plaintiff did not then return it, allegedly based on the
labor relations representative’s assurance that there was no hurry.
Id. The plaintiff also claimed that his wife telephoned the labor
relations office on 2 March to advise that she would soon deliver
the document completed by her husband’s physician, but that she did
not do so because the representative allegedly told her that her
husband had already been fired. Id. Ford discharged the plaintiff
on 3 March, for failure to provide medical documentation of the
need for leave. Id. at 1148.
As stated, the Eighth Circuit affirmed the summary judgment
for the employer, stating that, even assuming the employee had a
“serious health condition” within the meaning of the FMLA (which
the court considered “doubtful”), the employee did not give Ford
adequate or timely notice of his need to take leave because of such
condition. Id. at 1148-49. The notice given to Wal-Mart by
Satterfield, that she was “having a lot of pain in her side” and
would not be at work on 16 June, is even less informative than
- 21 - Carter’s statements to Ford that he was “sick” and did not know
when he would be able to return to work. Moreover, Satterfield had
a history of unexcused absences — three in the three weeks
preceding 16 June. And, again, subsequent notice was either too
little, or too late, or both.
Again, consistent with granting summary judgment for notice-
adequacy questions, such judgment for the employer was affirmed by
the Eleventh Circuit in Gay v. Gilman Paper Co., 125 F.3d 1432
(11th Cir. 1997). Gay had been warned on five occasions because of
tardiness or absenteeism. Id. at 1433. She worked on 18 June
1994, and was scheduled to return four days later, on 22 June. Id.
However, on 20 June, she was admitted to a psychiatric hospital for
treatment for a nervous breakdown. Id. On 22 June, her husband
informed her supervisor by telephone that she was in the hospital
“having some tests run”. Id. In his deposition, Gay’s husband
admitted that he had lied to Gay’s supervisor about her whereabouts
and condition, and had instructed his sons not to give the employer
any information about her condition or location. Id. The
plaintiff did not contact her employer regarding her condition or
her absence from work during the following week. Id. at 1433-34.
On 28 June, she was fired for “extended failure to report off, or
explain absences”. Id. at 1434.
The Eleventh Circuit rejected Gay’s contentions that her
husband’s assertion that she was in the hospital for tests was
sufficient to put her employer on notice that her condition was
potentially FMLA-qualifying and was, therefore, sufficient to shift
- 22 - the burden to the employer to make further inquiry as to whether
Gay’s absence qualified for FMLA protection. Id. at 1434-35.
[N]ot only was there a dearth of information provided, but the information that was provided was false. Gay’s husband informed her supervisor that Gay was having some tests run on the first day of her absence from work. When questioned by Gay’s supervisor about his wife’s condition, Gay’s husband deliberately withheld information concerning the true nature of her condition and instructed his sons to do the same. Under these circumstances, the burden to request further information never shifted to [the employer] because [the employer] could not reasonably be expected to conclude that Gay’s absence might have qualified for treatment under the FMLA.
125 F.3d at 1436.
Although Satterfield did not give Wal-Mart false information
about her condition, she withheld: (1) the status of her condition
on the afternoon of 16 June; (2) the fact that she had scheduled a
doctor’s appointment for 20 June; and (3) her expectation that her
condition would not improve prior to that appointment. In the
light of her previous use of Wal-Mart’s leave policy, and her three
unexcused absences during the preceding three weeks, Wal-Mart could
not reasonably be expected to conclude that Satterfield’s absence
on 16 June might have qualified for FMLA protection.
The inadequacy of Satterfield’s notice to Wal-Mart is even
more apparent when compared to that provided by the employee in
Brannon v. OshKosh B’Gosh, Inc., 897 F. Supp. 1028 (M.D. Tenn.
1995). There, the employee informed her employer in advance that
her three-year-old daughter was ill and that she might have to miss
work if her daughter’s condition did not improve; notified her
- 23 - supervisor by telephone that her daughter was too sick for her to
come to work each workday that she was at home caring for her
daughter; and submitted a medical note to her employer requesting
that her absences from work be excused on the basis of her
daughter’s illness. 897 F. Supp. at 1032-33. The court concluded
that the employer was sufficiently aware that the plaintiff’s
absence may have qualified under the FMLA and thus was obligated to
inquire as to whether her absences were excusable. Id. at 1039.
Obviously, Brannon’s advance notice and continuous contact
with her supervisor were far more detailed than the vague
information Satterfield imparted to Wal-Mart. Moreover, unlike
Satterfield, Brannon did not have a history of failing to report
for work without contacting her employer. See also Price v. City
of Fort Wayne, 117 F.3d at 1025 (employee who filled out employer-
provided leave request form, indicated that cause was medical need,
and attached doctor’s note requiring her to take the time off
provided sufficient information to put employer on notice of
possible FMLA leave situation).
C.
The FMLA regulations require covered employers to post on
their premises, in conspicuous places, a notice explaining the
provisions of the Act and the procedures for filing complaints of
violations. 29 C.F.R. § 825.300(a). Along that line,
[a]n employer that willfully violates the posting requirement may be assessed a civil money penalty by the Wage and Hour Division not to exceed $100 for each separate offense. Furthermore, an employer that fails to post the required notice cannot take any adverse
- 24 - action against an employee, including denying FMLA leave, for failing to furnish the employer with advance notice of a need to take FMLA leave.
29 C.F.R. § 825.300(b) (emphasis added).
As she did in response to Wal-Mart’s motion for judgment as a
matter of law at the close of all the evidence, Satterfield
contends that, because Wal-Mart did not present evidence that it
posted the required notice, it was prohibited from firing her, even
if she failed to give notice of her need for FMLA leave. We
disagree.
In the first place, nothing in the regulations places the
burden of proving compliance with § 825.300(a) on the employer. In
any event, § 825.300(b) by its own terms, applies only in
situations where the employee is required to provide “advance”
notice of a need for FMLA leave. As discussed supra, such advance
notice is required only when the need for FMLA leave is
foreseeable; it is not required when, as in this case, the need is
unforeseeable.
On the other hand, as also discussed supra, when the need for
leave is unforeseeable, an employee is not required to give advance
notice. Indeed, on occasion, the employee would not be able to
give notice in advance. The employee can, instead, give notice
after absence from work, provided it is given “as soon as
practicable under the facts and circumstances of the particular
case”. 29 C.F.R. § 825.303(a) (“It is expected that an employee
will give notice to the employer within no more than one or two
- 25 - working days of learning of the need for leave, except in
extraordinary circumstances where such notice is not feasible.”).
Again, case law supports our conclusion. See Gay v. Gilman
Paper Co., 125 F.3d at 1436 n.6 (emphasis added) (rejecting
employee’s contention that, even if notice provided was
insufficient, employer should be estopped from challenging
sufficiency of her notice because it failed to comply with posting
requirements, because those requirements “do not address the notice
required in the case of an employee’s unforeseeable need for FMLA
leave”); see also Reich v. Midwest Plastic Engineering, Inc., 66
Empl. Prac. Dec. ¶ 43,701, 1995 WL 478884, at *7 (W.D. Mich. 1995)
(employer’s alleged failure to post notices “would have been
relevant only if [employee] had been required to provide advance
notice of her intent to take leave”).
III.
For the foregoing reasons, the judgment is REVERSED, and
judgment is RENDERED in favor of Wal-Mart.
REVERSED and RENDERED
- 26 -