HEIDI K. CHAN, Plaintiff, v. LOYOLA UNIVERSITY MEDICAL CENTER, Defendant.
No. 97 C 3170
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
ILLINOIS, EASTERN DIVISION
1999 U.S. Dist. LEXIS 2790
March 3, 1999, Docketed
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
ILLINOIS, EASTERN DIVISION
1999 U.S. Dist. LEXIS 2790
March 3, 1999, Docketed
DISPOSITION: [*1] Parties' cross-motions for
summary judgment denied.
COUNSEL: For HEIDI K CHAN, plaintiff: Ronald Barry
Schwartz, Hedberg, Tobin, Flaherty & Whalen, P.C.,
Chicago, IL.
For LOYOLA UNIVERSITY MEDICAL CENTER,
defendant: Richard F. Nelson, Richard F. Nelson &
Associates, Chicago, IL.
JUDGES: JOAN B. GOTTSCHALL, United States
[CONTINUED]Chan's final argument is that the written materials do not
clearly designate her leave as FMLA leave. Both parties
argue that a case from the Eastern District of Pennsylvania,
Dintino v. Doubletree Hotels Corp., 1997 U.S. Dist. LEXIS
18145, No. Civ.A. 96-7772, 1997 WL 717208, (E.D.Pa.
Nov. 14, 1997), supports [*19] their respective positions.
n7 In Dintino the plaintiff was terminated for allegedly
abandoning her job after she gave birth to a child. Plaintiff
initially informed her employer in writing that she planned
to "take a maternity leave from July 15, 1994 through
October 17, 1997." Id. at *1. She later developed
complications in her pregnancy and requested "immediate
leave from her employment" on June 21, 1994. Id. Plaintiff
received a Request for Leave of Absence form that made
no mention of FMLA leave. Plaintiff indicated in writing
to her employer that "after the birth of my child, I intend to
take the remaining family leave prior to my return to full-
time employment." Id. In October 1994, plaintiff expressed
her desire to begin her FMLA leave. Defendant contends
that plaintiff began her FMLA leave on June 21, 1994.
When plaintiff did not return in October 1994, she was
terminated for abandoning her job.
n7 There are few cases that discuss the employer's
obligations under the FMLA to provide notice. In a case in
the Middle District of Alabama, Cox v. Autozone, Inc. 990
F. Supp. 1369 (M.D. Ala. 1998), the district court granted
a defendant employer's motion for summary judgment. In
doing so, the court held that the notice requirements placed
on employers by the federal regulations are inconsistent
with Congress' intent when it enacted the FMLA. Neither
party in this case has raised this argument, and the court
declines to consider the issue sua sponte.
[*20]
The district court granted summary judgment, as to
liability, in plaintiff's favor. The court held that the
defendant failed to provide notice that her initial leave was
being counted against her annual FMLA leave. The court
noted that pursuant to the federal regulations, "in all
circumstances, it is the employer's responsibility to
designate leave, paid or unpaid, as FMLA-qualifying,
based on information provided by the employee.." Id. at *2
(quoting 29 C.F.R. 825.208(a)). Further, the court relied
on facts showing that defendant failed to follow its own
self-imposed FMLA policy of sending plaintiff "a
confirming memorandum;" that the "Request for Leave of
Absence" form did not mention FMLA leave; and that
defendant had distinguished between maternity leave and
FMLA leave in its employee handbook.
The situation here is less clear-cut than that in Dintino.
Here, Dean provided Chan with notice that she would be
on FMLA leave by telling her that he would send her
FMLA forms. The packet of materials Loyola sent to Chan
included a "Family/Medical Leave Request for Leave
Form" and a summary of various provisions of the FMLA.
Thus, in contrast with the plaintiff in Dintino, [*21] Chan
received oral and written communications indicating that
her leave would be FMLA leave. n8 Loyola also argues
that, unlike Dintino, there is no evidence here that Loyola
failed to follow its standard procedure when an employee
requests leave that may be covered by the FMLA.
However, Loyola should be wary of placing too much
emphasis on its standard procedures. While Loyola's
communications to Chan may or may not have been
sufficient to constitute notice under the FMLA, Loyola's
compliance, if any, was merely fortuitous. Loyola's
manager for human resources, Gary Soltys, admitted at his
deposition that, at the time of Chan's leave, Loyola was
unaware that the FMLA requires an employer to provide
written notification to an employee that his or her leave has
been designated as FMLA leave. [Soltys Dep. p. 25-27].
n8 Moreover, unlike the plaintiff in Dintino, there is no
indication that Chan was actually under the impression that
she was entitled to FMLA leave in addition to her initial
leave of absence. Of course, the fact that Chan did not
claim at the time that she was entitled to additional leave
does not mean that Loyola's notice was sufficient. Chan
may have been unfamiliar with the provisions of the
FMLA.
[*22]
The question is whether these communications are
sufficient as a matter of law to constitute notice to Chan
that her leave was designated as FMLA leave. The
regulations make clear that the employer must provide
written notice to the employee (or written confirmation of
oral notice) that leave has been designated as FMLA leave.
However, the regulations also grant some flexibility to the
employer as to the form of the notice. "The written notice
may be in any form, including a notation on the employee's
pay stub." 29 C.F.R. 825.208(b)(2). The facts here do
suggest that Loyola provided some form of oral and written
notice to Chan. However, the communications with Chan
that allegedly gave her notice she would be on FMLA
leave occurred before she had even filled out the
"Family/Medical Leave Request for Leave Form." n9 Chan
was not explicitly told she was on FMLA leave until
Dean's letter dated February 21, 1996. n10 Under the
circumstances here, this court cannot find as a matter of
law that Loyola's communications did or did not constitute
adequate notice. The question should be left for a jury. Cf.
Price v. City of Fort Wayne, 117 F.3d 1022, 1025-26 (7th
Cir. 1997) (vacating [*23] summary judgment and
concluding that trier of fact must determine if plaintiff
suffered from "serious medical condition" and if plaintiff
provided adequate notice of need for leave under FMLA
regulations).
n9 Indeed, Loyola contends that this form (and other
forms sent contemporaneously) constitutes the requisite
written notice.
n10 Although, as noted above, the regulations allow
some flexibility as to the form of written notice, it is
instructive to compare the purported notice given here
with the "Prototype Notice" provided by the
Department of Labor as an appendix to the FMLA
regulations. Among other things, the "Prototype
Notice" contains the following language:
This is to inform you that: (check appropriate boxes,
explain where indicated)
1 You are [ ] eligible [ ] not eligible for leave under
the FMLA.
2 The requested leave [ ] will [ ] will not be counted
against your annual FMLA leave entitlement.
29 C.F.R. Pt. 825, App. D. Of course, this is only an
optional form. Nevertheless, the clarity of the
"Prototype Notice" highlights the ambiguous nature of
the purported notice here.
[*24]
2. Did Loyola notify Chan that paid leave would be
substituted for unpaid leave?
As noted above, the FMLA requires an employer to
provide written notice of "the employee's right to substitute
paid leave and whether the employer will require the
substitution of paid leave, and the conditions related to any
substitution." 29 C.F.R. 825.301(b)(1)(iii). Loyola
concedes that Dean did not discuss with Chan her paid sick
leave or vacation time. At his second deposition, Dean
testified that he did not inform Chan that her paid sick and
vacation leave would run concurrently with her 12-week
FMLA leave. [Feb. 4, 1998 Dean Dep., p. 65-66].
Therefore, Dean's conversation with Chan did not
constitute notice that paid leave would be substituted for
unpaid FMLA leave. Instead, Loyola argues that the packet
of FMLA material and/or Chan's paycheck stubs provided
the requisite notice.
a. Loyola's packet of FMLA material
Loyola contends that the packet of FMLA material
notified Chan that her paid sick leave and vacation time
would run concurrently with her FMLA leave. In
particular, Loyola argues that language in the five-page
summary of the FMLA and "Guidelines for Employees"
[*25] constitutes notice that paid leave would be
substituted for unpaid leave. Loyola relies on the following
provision in the summary:
Subject to certain conditions, employees or employers may
choose to use accrued paid leave (such as sick or vacation
leave) to cover some or all of the FMLA leave. The
employer is responsible for designating if paid leave used
by an employee counts as FMLA leave, based on
information provided by the employee. In no case can an
employee's paid leave be credited as FMLA leave after the
leave has been completed.
[Loyola's 12(M), Ex. E] (emphasis in original). In
addition, Loyola relies on the following language from the
"Guidelines for Employees"
If an employee requests a leave for non-medical reasons,
accrued vacation time and personal/bonus days may be
used for pay purposes. Any leave requested for the
employee's own illness will be paid through accrued sick
time. Vacation, personal and bonus time may is [sic]
payable once the sick bank is exhausted.
[Loyola's 12(M), Ex. E].
The language in the summary does not provide the
requisite notice. The summary merely indicates that the
FMLA permits an employer or [*26] an employee to
substitute paid leave for unpaid FMLA leave and that the
employer must notify the employee if paid leave will be
substituted for unpaid leave. The summary does not specify
that Loyola will substitute paid leave for unpaid leave.
The language in the "Guidelines for Employees" presents
a more difficult question. By specifying that "any leave
requested for the employee's own illness will be paid
through accrued sick time" and that "vacation, personal and
bonus time may is [sic] payable once the sick bank is
exhausted," Loyola arguably provided notice that paid
leave would be substituted for unpaid FMLA leave.
However, even aside from the typographical error, it is not
unambiguously clear that Loyola is specifying that it will
substitute vacation leave and sick leave for FMLA leave.
n11 The Guidelines do not explicitly state that FMLA
leave would run concurrently with paid sick leave and
vacation time or that paid sick leave and vacation time
would be substituted for unpaid FMLA leave. Again, a
comparison between the ambiguous notice her and the
"Prototype Notice" is instructive. The "Prototype Notice"
includes the following language:
This is to inform you that" [*27] (check appropriate
boxes, explain where indicated)
* * *
4 You may elect to substitute accrued paid leave for
unpaid FMLA leave. We [ ] will [ ] will not require that
you substitute accrued paid leave for unpaid FMLA leave.
If paid leave will be used the following conditions will
apply: (Explain)
29 C.F.R. Pt. 825, App. D.
n11 For example, the Guidelines state, "Any leave
requested for the employee's own illness will be paid
through accrued sick time." The Guidelines refer to "any
leave" and not specifically to FMLA leave. While one
could assume that Loyola is referring to FMLA leave,
elsewhere in the Guidelines Loyola specifically references
"FMLA leave" and "leave under the Family and Medical
Leave Act."
Again, both parties rely on the same case, Cline v.
Wal-Mart Stores, Inc., 144 F.3d 294 (4th Cir. 1998), as
support for their respective positions. In Cline, the
plaintiff was demoted from his supervisor position
after he returned to work from leave for surgery for a
brain tumor and [*28] was later terminated for
allegedly "stealing time." Plaintiff was employed by
defendant as a night maintenance supervisor. Plaintiff
advised the store manager that he needed to take a
medical leave of absence for surgery to remove the
tumor. Id. at 298. The store manager approved
plaintiff's leave. The store manager also had plaintiff
meet with the personnel manager, who was responsible
for informing employees about the terms and
conditions of medical leave and vacation leave. Id.
During the meeting, the personnel manager advised
plaintiff that he was required to expend any accrued
vacation time before the commencement of his medical
leave. Id. Based on that representation, plaintiff submitted
the required form requesting five days of his accrued paid
vacation. Plaintiff was also provided with a form entitled
"Request for Leave of Absence" to be completed by
plaintiff's treating physician. Plaintiff, however, "was not
provided with any notices relating to his rights under the
FMLA." Id. at 299. Plaintiff's leave began August 4, 1994.
He returned on November 1, 1994 and was demoted from
his supervisor position.
The lower court granted plaintiff's summary judgment
"on [*29] all questions related to the duration of his leave
under the FMLA and struck [defendant's] defense that
[plaintiff's] leave included the period during which he had
received paid vacation leave." Id. at 300. On defendant's
appeal, the Fourth Circuit affirmed the lower court on the
grant of summary judgment to plaintiff on his FMLA. In
doing so the appellate court stated:
WalMart contends that the request for leave form that
Cline signed provided adequate notice of WalMart's intent
to designate Cline's vacation days as FMLA leave. We
disagree. The request for leave of absence form Cline
signed prior to the commencement of his leave did not
mention vacation leave or contain any other language that
would reasonably put Cline on notice that his vacation days
were to be designed as part of his twelve weeks of FMLA
leave. Although the form explained that leave for
"medical" reasons was designated as FMLA leave, it said
nothing about vacation leave, and a reasonable employee
reviewing the form would have no idea that vacation leave
was designated. In the absence of proper notice, Cline was
entitled to twelve weeks of FMLA leave plus five days of
paid vacation leave, for a total [*30] of almost thirteen
weeks away from work.
Id. at 300-01.
Unlike the purported notice in Cline, Loyola's Guidelines
do explicitly mention sick leave and vacation leave. While
the language in Loyola's Guidelines could be construed as
notice that paid leave would be substituted for unpaid
leave, the Guidelines are too ambiguous for this court to
find that the Guidelines provided adequate notice as a
matter of law.
c. Chan's paycheck stubs
Loyola also contends that Chan's paycheck stubs
provided her with notice that her paid sick leave and
vacation time ran concurrently with her FMLA leave.
Loyola argues that because Chan's paycheck stubs during
her initial leave identified her earnings type as "sick pay,"
"vacation," and/or "holiday", Chan received notice that her
accumulated sick pay and vacation pay would run
concurrently with her FMLA leave.
The paycheck stubs do not establish that Loyola provided
Chan with the required notice. A close inspection of Chan's
paycheck stubs reveals that there is no language explicitly
informing Chan that her paid leave is running concurrently
with her FMLA leave. This type of notice could have been
provided by Loyola since [*31] it provided other general
information on the stubs. See [Chan's 12(M), Ex. 5]. n12
The stubs merely indicate that the balance of Chan's paid
sick leave, vacation, and personal time were decreasing
during her initial leave of absence. While it is possible that
a jury could conclude that the paycheck stubs, especially
viewed in conjunction with the Guidelines, constituted
adequate notice that paid leave would be substituted for
unpaid leave, this "notice" is far too ambiguous to entitle
Loyola to judgment as a matter of law.
n12 Several of the stubs had typed messages announcing
Loyola sponsored events as well as other general
information related to taxes and the Social Security
deductions.
III. CONCLUSION
For the reasons set forth in this opinion, the parties'
cross-motions for summary judgment are denied. The
parties shall appear for a status conference on April 20,
1999 at 9:30 A.M. at which time the court will schedule a
trial date.
ENTER:
JOAN B. GOTTSCHALL
United States District Judge
DATED: [*32] March 1, 1999