250 F.3d 820 (4th Cir. 2001), 00-1277, Miller v. AT&T

Docket Nº:00-1277 No. 00-1928
Citation:250 F.3d 820
Party Name:KIMBERLY MILLER, Plaintiff-Appellee, v. AT&T; CORPORATION, a foreign corporation, Defendant-Appellant. EQUAL EMPLOYMENT ADVISORY COUNCIL; CHAMBER OF COMMERCE, of the United States of America; SECRETARY OF LABOR; COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, Amici Curiae. Page 821 KIMBERLY MILLER, Plaintiff-Appellee, v. AT&T; CORPORATION, a foreign
Case Date:May 07, 2001
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 820

250 F.3d 820 (4th Cir. 2001)

KIMBERLY MILLER, Plaintiff-Appellee,

v.

AT&T; CORPORATION, a foreign corporation, Defendant-Appellant.

EQUAL EMPLOYMENT ADVISORY COUNCIL; CHAMBER OF COMMERCE, of the United States of America; SECRETARY OF LABOR; COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, Amici Curiae.

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KIMBERLY MILLER, Plaintiff-Appellee,

v.

AT&T; CORPORATION, a foreign corporation, Defendant-Appellant.

EQUAL EMPLOYMENT ADVISORY COUNCIL; CHAMBER OF COMMERCE, of the United States of America; SECRETARY OF LABOR; COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, Amici Curiae.

No. 00-1277 No. 00-1928

United States Court of Appeals, Fourth Circuit

May 7, 2001

Argued: January 24, 2001

Appeals from the United States District Court for the Southern District of West Virginia, at Charleston. Joseph Robert Goodwin, District Judge. (CA-98-808-2)

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COUNSEL ARGUED: Catherine Michele Kirk, AT&T; CORPORATION, Morristown, New Jersey, for Appellant. Barbara Eby Racine, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Amicus Curiae Secretary. Lonnie Carl Simmons, LAW OFFICE OF P. RODNEY JACKSON, Charleston, West Virginia, for Appellee. ON BRIEF: Laura A. Kaster, AT&T; CORPORATION, Basking Ridge, New Jersey; William E. Robinson, Michael A. Kawash, ROBINSON & MCELWEE, Charleston, West Virginia, for Appellant. Henry L. Solano, Solicitor of Labor, Steven J. Mandel, Associate Solicitor, William J. Stone, Senior Trial Attorney, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Amicus Curiae Secretary. Ann Elizabeth Reesman, Corrie L. Fischel, MCGUINESS, NORRIS & WILLIAMS, L.L.P., Washington, D.C., for Amicus Curiae Advisory Council; Stephen A. Bokat, Robin S. Conrad, Sussan Mahallati Kysela, NATIONAL CHAMBER LITIGATION CENTER, INC., Washington, D.C., for Amicus Curiae Chamber of Commerce. Mary K. O'Melveny, Washington, D.C.; Ray A. Byrd, SHRADER, BYRD & COMPANION, P.L.L.C., Wheeling, West Virginia, for Amicus Curiae Communications Workers.

Before WILKINS and MICHAEL, Circuit Judges, and Claude M. HILTON, Chief United States District Judge for the Eastern District of Virginia, sitting by designation.

Affirmed by published opinion. Judge Wilkins wrote the majority opinion, in which Judge Michael joined. Chief Judge Hilton wrote a dissenting opinion.

OPINION

WILKINS, Circuit Judge:

AT&T; Corporation (AT&T;) appeals orders of the district court finding it liable for violating Kimberly Miller's rights under the Family and Medical Leave Act (FMLA) of 1993, 29 U.S.C.A. SS 26012654 (West 1999), and awarding back pay and attorneys' fees. With respect to liability, AT&T; contends that it did not violate the FMLA because the illness for which Miller sought FMLA leave--an episode of the flu--was not a serious health condition as defined by the Act and implementing regulations; that if Miller's flu was a serious health condition under the applicable

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regulations, those regulations are contrary to congressional intent and are therefore invalid; and that in any event, Miller failed to comply with AT&T;'s procedures for the granting of FMLA leave. With respect to the award of back pay, AT&T; claims that the award should have been limited by after-acquired evidence and Miller's failure to mitigate her damages. 1 We conclude that none of AT&T;'s challenges warrants reversal, and we therefore affirm.

I.

A. The Family and Medical Leave Act

The FMLA entitles an eligible employee to as many as 12 weeks of unpaid leave per year for "a serious health condition that makes the employee unable to perform the functions of the position of such employee."2 29 U.S.C.A. S 2612(a)(1)(D). The Act defines "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.

Id. S 2611(11). Thus, as is relevant here, an eligible employee is entitled to FMLA leave for an illness that incapacitates the employee from working and for which the employee receives"continuing treatment," a term the FMLA does not define.

The FMLA grants the Secretary of Labor authority to promulgate regulations implementing the Act. See id.S 2654. Pursuant to this authority, the Secretary promulgated the following regulation:

A serious health condition involving continuing treatment by a health care provider includes . . . :

(i) A period of incapacity (i.e. , inability to work . . .) of more than three consecutive calendar days . . . that also involves:

(A) Treatment two or more times 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. S 825.114(a)(2) (2000). The regulations further provide that "treatment" "includes (but is not limited to) examinations to determine if a serious health condition exists and evaluations of the condition." 29 C.F.R. S 825.114(b) (2000).

The FMLA allows an employer to require that a request for leave for an employee's serious health condition be supported by a certification from the employee's health care provider. See 29 U.S.C.A. S 2613(a). Among other things, the employer may require that the certification include "appropriate medical facts" regarding the condition. Id. S 2613(b)(3). If the employer doubts the validity of a certification, it may require the employee to obtain a second opinion at the employer's expense.

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See id. S 2613(c)(1). In the event of a conflict between the two opinions, the employer may require the employee to obtain a third opinion, again at the employer's expense. See id. S 2613(d)(1). The opinion of the third health care provider is binding on both parties. See id. S 2613(d)(2).

The FMLA provides a private cause of action to an employee whose request for FMLA leave has been improperly denied by an employer. See id. S 2617(a). A prevailing employee may be awarded damages, liquidated damages, and equitable relief such as reinstatement. See id. S 2617(a)(1). The court must also award attorneys' fees and costs to a prevailing plaintiff. See id.S 2617(a)(3).

B. AT&T;'s Attendance and Leave Policies3

1.

AT&T; considers satisfactory attendance to be a condition of employment, and it expects all employees to be at work on time on scheduled work days and to remain at their posts during scheduled hours. However, AT&T; does not have specific standards for determining whether an employee's attendance is unsatisfactory. Rather, a determination of unsatisfactory attendance is made based upon the reasons for the employee's absences, the circumstances involved, the employee's record with AT&T;, and the employee's length of service. Absences are either "chargeable" or "non-chargeable," and only chargeable absences are considered in determining whether an employee's attendance is satisfactory. Absences covered by the FMLA are considered non-chargeable.

Employee attendance is monitored by an attendance administrator, who reviews the employee's record after each absence. If this review demonstrates that the employee's attendance is unsatisfactory, the attendance administrator may recommend disciplinary action to the employee's supervisor. In evaluating an employee's attendance, a supervisor may not consider an absence as to which there is a pending request for FMLA leave.

AT&T; employs a progressive disciplinary system for attendance matters. The first step in this system is a "development session," during which the employee is reminded of the requirements of AT&T;'s attendance policy. If the employee's attendance does not improve, the employee is engaged in a "serious discussion" about his attendance. A serious discussion includes a warning that the employee's attendance problems must be corrected if formal disciplinary action is to be avoided. If the serious discussion proves ineffective, the employee is issued a "letter of warning" and subsequently, if necessary, a "final letter of warning." An employee may be terminated for a chargeable absence incurred while under a final letter of warning.

2.

AT&T; has implemented procedures for employees who seek FMLA leave. In order to request FMLA leave, an employee must submit two forms. The first, a Family and Medical Leave of Absence Notification Form ("FMLA-1"), requires the employee to provide general information regarding the reason for the requested leave and the expected duration of the leave if known. The form is completed by a supervisor, who verifies that the employee is eligible for FMLA leave, i.e., that the

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employee has worked the requisite number of hours during the preceding 12-month period and has not exhausted all FMLA leave. The second form, a Certification of Health Care Provider ("FMLA-2"), requires the employee's doctor to provide information regarding the employee's health condition. Item 3 on the FMLA-2 requires the physician to indicate which of six categories of serious health conditions the employee's illness falls into.4

Once completed, both forms are submitted to AT&T;'s Health Affairs office in Morristown, New Jersey. The forms are first reviewed for completeness, then forwarded to a case manager. The case manager, a registered nurse, recommends granting or denying the request for leave based upon the submitted information. If the submission is not complete, or if clarification is required, further information may be requested from the employee or the employee's doctor. A final decision...

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