504 F.3d 21 (1st Cir. 2007), 07-1151, Mellen v. Trustees of Boston University

Docket Nº:07-1151.
Citation:504 F.3d 21
Party Name:Linda MELLEN, Plaintiff, Appellant, v. TRUSTEES OF BOSTON UNIVERSITY and Frances Drolette, Defendants, Appellees.
Case Date:September 21, 2007
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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504 F.3d 21 (1st Cir. 2007)

Linda MELLEN, Plaintiff, Appellant,


TRUSTEES OF BOSTON UNIVERSITY and Frances Drolette, Defendants, Appellees.

No. 07-1151.

United States Court of Appeals, First Circuit.

September 21, 2007

Heard Sept. 10, 2007.


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Harry C. Beach for appellant. Crystal D. Talley, with whom Lawrence S. Elswit was on brief, for appellees.

Before LYNCH and LIPEZ, Circuit Judges, and BARBADORO, [*] District Judge.

LYNCH, Circuit Judge.

Linda Mellen challenges the district court's grant of summary judgment in favor of Boston University and an individual, Frances Drolette, on her claims that BU interfered with her substantive rights under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., and the Massachusetts Small Necessities Leave Act (SNLA), Mass. Gen. Laws ch. 149, § 52D. Mellen argues that BU miscalculated the period of leave to which she was entitled under both the FMLA and the SNLA, and also used her leave as a negative factor in an employment decision

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when it treated her failure to return to work as a voluntary resignation.

We affirm the decision that BU properly calculated and provided Mellen with the requisite amount of leave. Her appeal as to the negative factor claim is precluded by her voluntary dismissal with prejudice of her retaliation claims against BU. Accordingly, we affirm the district court's judgment. This case provides the first occasion for judicial interpretation of the intersection of certain FMLA regulations, 29 C.F.R. § 825.200(f) and 29 C.F.R. § 825.205(a), pertaining to proper allocation of intermittent leave. We also address again, as we did in Colburn v. Parker Hannifin/Nichols Portland Div., 429 F.3d 325 (1st Cir. 2005), the distinction between substantive and retaliatory claims under the FMLA.


Linda Mellen began her employment with Boston University in 1977 and became Financial Manager for the School of Public Health (SPH) in 1998. Frances Drolette was hired as SPH's Associate Dean for Administration and Finance in September 2002 and served as Mellen's direct supervisor. There was considerable evidence of friction between the two beginning at least as early as the first months of 2003.

On July 17, 2003, Mellen applied in writing for leave so that she could care for her ailing mother. She requested to be out from August 4 through October 3 and, if necessary, again from October 28 through November 18. (The October gap encompassed fifteen days of vacation time Mellen had previously requested and been granted.) In a letter dated July 31, 2003, BU's Director of Personnel, George Snowdon, approved Mellen's request for leave. Snowdon's letter set forth other terms and conditions governing the leave, including that if Mellen failed to return to work on November 19, she would be considered to have resigned voluntarily.

Throughout the following months, there was communication about Mellen's return to work. In an email on October 1, Mellen indicated to Drolette that her mother's situation was unchanged and that she would be using her second block of FMLA leave. Drolette responded, in effect, that she would have appreciated Mellen's telling her that earlier and that she had thought that Mellen would be back at work on Monday, October 6. In a letter dated October 24 from Drolette to Mellen, Drolette stated that it was her "current understanding" that Mellen would return to work on November 19. In light of Mellen's earlier lack of communication, the letter noted, "If your plans change in this regard you must communicate that to me as soon as possible." Such information was needed so BU could arrange its staffing accordingly. The letter further expressed concern about Mellen's "lack of professionalism, responsibility, and clarity in [her] communications regarding [her] family and medical leave and vacation plans." The letter also referred to Drolette's problems with Mellen's performance at work.

Meanwhile, in an October 23 letter, Mellen informed Drolette that she expected to be out of work through November 20, noting that she had extended her leave period by one day in light of a November 17 internal holiday granted by BU's Trustees. In a response letter dated October 29, Drolette stated that she had been advised that holidays did not serve to extend an employee's allowed FMLA leave and therefore she expected Mellen back at work on Wednesday, November 19.

Mellen did not return to work on November 19. Nor did she call or communicate

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to BU on November 19 any request for extended leave. Nor did she show up for work at any time thereafter.

By letter...

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