Bachelder v. AM. W. Airlines

• Decision Date: 08 August 2001
• Docket Number: PLAINTIFFS-APPELLANTS,No. 99-17458,DEFENDANT-APPELLEE,99-17458
• Citation: 259 F.3d 1112
• Parties: (9th Cir. 2001) PENNY BACHELDER; MARK BACHELDER,, v. AMERICA WEST AIRLINES, INC.,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1112

259 F.3d 1112 (9th Cir. 2001)

PENNY BACHELDER; MARK BACHELDER, PLAINTIFFS-APPELLANTS, v. AMERICA WEST AIRLINES, INC., DEFENDANT-APPELLEE.

No. 99-17458

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted April 11, 2001

Filed August 8, 2001

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[Copyrighted Material Omitted] Counsel William R. Hobson, Hobson & Ringler, Tempe, Arizona, for the plaintiffs-appellants.

Daniel C. Barr, Brown & Bain, P.A., Phoenix, Arizona, for the defendant-appellee.

Appeal from the United States District Court for the District of Arizona Roslyn O. Silver, District Judge, Presiding D.C. No. CV-97-01942-ROS

Before: Stephen Reinhardt, A. Wallace Tashima and Marsha S. Berzon, Circuit Judges.

Opinion by Judge Berzon

Penny Bachelder¹ claims that her employer, America West Airlines, violated the Family and Medical Leave Act of 1993 ("FMLA" or "the Act") when it terminated her in 1996 for poor attendance. The district court granted partial summary judgment to America West, holding that Bachelder was not entitled to the Act's protection for her 1996 absences. Bachelder also appeals from the district court's subsequent finding, after a bench trial, that, in deciding to fire her, America West did not impermissibly consider FMLA-protected leave that she took in 1994 and 1995. This appeal requires us to interpret both the Act and the regulations issued pursuant to it by the Department of Labor.

I. BACKGROUND

A. The Family and Medical Leave Act of 1993

The FMLA provides job security to employees who must be absent from work because of their own illnesses, to care for a family members who are ill, or to care for new babies. 29 U.S.C. §§ 2612. Congress recognized that, in an age when all the adults in many families are in the work force, employers' leave policies often do not permit employees reasonably to balance their family obligations and their work life. The result, Congress determined, is "a heavy burden on families, employees, employers and the broader society." S. Rep. No. 103-3 at 4, 103d Cong., 2d Sess. (1993). As for employees' own serious health conditions, Congress found that employees' lack of job security during serious illnesses that required them to miss work is particularly devastating to single-parent families and to families which need two incomes to make ends meet. Id. at 11-12. As Congress concluded, "it is unfair for an employee to be terminated when he or she is struck with a serious illness and is not capable of working." Id. at 11. In response to these problems, the Act entitles covered employees² to up to twelve weeks of leave each year for their own serious illnesses or to care for family members, and guarantees them reinstatement after exercising their leave rights. 29 U.S.C. §§§§ 2612(a)(1), 2614(a)(1).³

The FMLA was the culmination of several years of negotiations in Congress to achieve a balance that reflected the needs of both employees and their employers. While recognizing employees' need for job security at the times when they most needed time off from work, Congress in enacting the FMLA, also took employers' legitimate prerogatives into account:

It is the purpose of this Act -

(1) to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity;

(2) to entitle employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition;

(3) to accomplish the purposes described in paragraphs (1) and (2) in a manner that accommodates the legitimate interests of employers.

29 U.S.C. §§ 2601(b). The twelve-week limitation on employees' protected leave time--protected in the sense that the employee is entitled to reinstatement upon the end of the leave--as well as other provisions in the final Act, demonstrates that Congress wanted to ensure that employees' entitlement to leave and reinstatement did not unduly infringe on employers' needs to operate their businesses efficiently and profitably.⁴

The regulations implementing the twelve-week leave provision reflect this concern for employers' administrative efficiency and convenience needs. See Family and Medical Leave Act of 1993, 60 Fed. Reg. 2180, 2199 (Jan. 6, 1995) ("The choice of options was intended to give maximum flexibility for ease in administering FMLA in conjunction with other ongoing employer leave plans, given that some employers establish a `leave year' and because of state laws that may require a particular result."). Consistent with that concern, the regulations provide employers with a menu of choices for how to determine the "twelve-month period" during which an employee is entitled to twelve weeks of FMLA-protected leave:

An employer is permitted to choose any one of the following methods for determining the "12-month period" in which the 12 weeks of leave entitlement occurs:

(1) The calendar year;

(2) Any fixed 12-month "leave year," such as a fiscal year, a year required by State law, or a year starting on an employee's "anniversary" date;

(3) The 12-month period measured forward from the date an employee's first FMLA leave begins; or,

(4) A "rolling" 12-month period measured backward from the date an employee uses any FMLA leave.

29 C.F.R. §§ 825.200(b).This "leave year " regulation is at the heart of Bachelder's appeal.

B. Facts

Bachelder began working for America West as a customer service representative in 1988. From 1993 until her termination in 1996, she was a passenger service supervisor, responsible for several gates at the Phoenix Sky Harbor Airport.

From 1994 to 1996, Bachelder was often absent from work for various health-and family-related reasons. In 1994, she took five weeks of medical leave to recover from a broken toe, and in mid-1995, she took maternity leave for approximately three months. It is undisputed that these two leaves were covered by, and protected by, the FMLA. In addition to these extended absences, Bachelder also called in sick several times in 1994 and 1995.

On January 14, 1996, one of America West's managers had a "corrective action discussion" with Bachelder regarding her attendance record. Among the absences that concerned the company were several occasions on which Bachelder had called in sick and the 1994 and 1995 FMLA leaves. Bachelder was advised to improve her attendance at work and required to attend pre-scheduled meetings at which her progress would be evaluated.

In February 1996, Bachelder was absent from work again for a total of three weeks. During that time, she submitted two doctor's notes to America West indicating her diagnosis and when she could return to work. Bachelder's attendance was flawless in March 1996, but in early April, she called in sick for one day to care for her baby, who was ill. Right after that, on April 9, Bachelder was fired. The termination letter her supervisor prepared gave three reasons for the company's decision: (1) Bachelder had been absent from work 16 times since being counseled about her attendance in mid-January; (2) she had failed adequately to carry out her responsibilities for administering her department's Employee of the Month program; and (3) her personal on-time performance and the on-time performance in the section of the airport for which she was responsible were below par.

In due course, Bachelder filed this action, alleging that America West impermissibly considered her use of leave protected by the FMLA in its decision to terminate her. ⁵ In response, America West maintained that it had not relied on FMLA-protected leave in firing Bachelder, because none of her February 1996 absences were protected by the Act, and because her 1994 and 1995 FMLA leaves did not factor into its decision. None of Bachelder's February 1996 absences were covered by the Act, argued America West, because the company used the retroactive "rolling" year method--the fourth of the four methods permitted by the leave year regulation--to calculate its employees' eligibility for FMLA leave. If that method was used, Bachelder had exhausted her full annual allotment of FMLA leave as of June 1995, ⁶ and was entitled, according to the company, to no more such leave until twelve months had elapsed from the commencement of her 1995 maternity leave. Therefore, America West maintained, Bachelder's February 1996 absences could not have been protected by the Act.

Bachelder countered that according to the regulations implementing the FMLA, she was entitled to have her leave eligibility calculated by the method most favorable to her. Under a calendar year method of calculating leave eligibility, she contended, her February 1996 absences were protected by the FMLA, and America West had violated the Act by relying on those absences in deciding to fire her.

The district court granted America West's motion for summary judgment in part, deciding that none of Bachelder's 1996 absences were protected by the FMLA. The court nonetheless determined that a factual dispute remained as to whether America West had impermissibly considered Bachelder's 1994 medical leave and her 1995 maternity leave, which all agreed were covered by the FMLA, in its decision to fire her. Because it found that Bachelder had failed timely to request a jury trial, the court submitted this issue to a bench trial. Following the trial, the district court found that America West had not considered Bachelder's 1994 and 1995 FMLA-protected leaves in making the firing decision, and entered judgment for America West. Bachelder appeals from both the summary judgment and the judgment following the bench trial.

II. DISCUSSION

A. Prohibition on Considering Use of FMLA Leave in Making Employment Decisions

The FMLA creates two...