Millea v. Metro–north R.R. Co.

• Decision Date: 08 August 2011
• Docket Number: Docket Nos. 10–409–cv (L),10–564–cv (XAP).
• Citation: 43 NDLR P 175,17 Wage & Hour Cas.2d (BNA) 1825,94 Empl. Prac. Dec. P 44288,658 F.3d 154
• Parties: Christopher MILLEA, Plaintiff–Appellant–Cross–Appellee,v.METRO–NORTH RAILROAD COMPANY, Defendant–Appellee–Cross–Appellant.
• Court: U.S. Court of Appeals — Second Circuit

658 F.3d 154

94 Empl. Prac. Dec. P 44,288

17 Wage & Hour Cas.2d (BNA) 1825

43 NDLR P 175

Christopher MILLEA, Plaintiff–Appellant–Cross–Appellee,

v.METRO–NORTH RAILROAD COMPANY, Defendant–Appellee–Cross–Appellant.

Docket Nos. 10–409–cv (L)

10–564–cv (XAP).

United States Court of Appeals, Second Circuit.

Argued: Feb. 7, 2011.Decided: Aug. 8, 2011.

Joseph D. Garrison, Jr., Garrison, Levin–Epstein, Chimes, Richardson & Fitzgerald, P.C., New Haven, CT, for Appellant.Charles C. Goetsch, Cahill Goetsch & Perry, P.C., New Haven, CT; Charles A. Deluca, Beck S. Fineman, William N. Wright, Ryan Ryan Deluca LLP, Stamford, CT, for Appellee.Before: DENNIS JACOBS, Chief Judge, PETER W. HALL, Circuit Judge, and SHIRA A. SCHEINDLIN, District Judge.^*DENNIS JACOBS, Chief Judge:

Following a jury trial in the United States District Court for the District of Connecticut (Bryant, J.), plaintiff Christopher Millea won partial victory on his claims under the Family Medical Leave Act (“FMLA”). He and the defendant, Metro–North Railroad Co. (“Metro–North”), cross-appeal. Millea argues that, on his unsuccessful retaliation claim, the jury charge should have adopted the standard set forth for Title VII retaliation in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). Millea also appeals the award of only $204 in attorneys' fees on his one successful claim, that Metro–North interfered in his exercise of FMLA rights. Metro–North cross-appeals the denial of its Rule 50 motion for judgment as a matter of law on the interference claim. We affirm the district court's denial of Metro–North's motion. Because the district court erred in rejecting the Burlington Northern jury charge, and this error prejudiced the plaintiff, we vacate and remand for a new trial on the retaliation claim. We also vacate the award of attorneys' fees and remand for recalculation in conformity with the lodestar method.

BACKGROUND

Christopher Millea suffers from severe post-traumatic stress disorder as a result of combat as a Marine during the First Gulf War. Notwithstanding psychotherapy and medication, he suffers unpredictable panic attacks and exhaustion that can require time off work on short notice. In 2001, Millea began working for Metro–North, a tri-state area commuter railroad. In 2005, he applied for special leave under the FMLA; Metro–North approved his application and granted him 60 days of intermittent FMLA leave for 2006.

The Incident. In the summer of 2006, Millea was working in a Stamford storeroom under supervisor Earl Vaughn, with whom Millea had developed a contentious relationship. A phone conversation with Vaughn on September 18, 2006, developed into a heated disagreement that triggered one of Millea's panic attacks. Millea immediately left work to see his doctor. Because the encounter with Vaughn led to the attack, Millea did not inform Vaughn about his unforeseen FMLA leave; instead, he advised Garrett Sullivan, the Lead Clerk, and asked Sullivan to advise Vaughn, which Sullivan did. The next day, Millea called Sullivan at 5:45 a.m. to report that he was taking another FMLA day; Sullivan again relayed the information to Vaughn. In both instances, Vaughn received timely, although indirect, notice of Millea's use of FMLA leave.

Metro–North's internal leave policy provides, in relevant part, “[i]f the need for FMLA leave is not foreseeable, employees must give notice to their supervisor as soon as possible.” Because Millea did not notify Vaughn of his two absences directly, Vaughn told Metro–North's payroll department to log Millea's absences as non-FMLA leave. Metro–North then opened an official investigation of Millea, which resulted in a formal Notice of Discipline being placed in his employment file for one year. The Notice was expunged after a year, Millea having had no further disciplinary incidents. After the investigation, Millea voluntarily transferred to a custodian janitorial job, which paid slightly less but was not supervised by Vaughn.

The Complaint. Millea's complaint against Metro–North alleges that he never violated Metro–North's internal leave policy because he notified Vaughn (indirectly) of his absences, or, in the alternative, that the aspect of Metro–North's policy he violated was void because it conflicted with the regulations implementing the FMLA. Millea alleges three claims:

1. Interference with Millea's ability to take FMLA leave. See 29 U.S.C. § 2615(a)(1) (“It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter.”).

2. Retaliation against Millea for taking FMLA leave by: (i) placing a notice of discipline in his employment file for a year; (ii) requiring him to update his FMLA certification; (iii) creating a work environment that motivated him to transfer to a lower paying job; (iv) delaying approval of his bid for the lead custodian position in 2009; and (v) subjecting him to heightened managerial surveillance. See 29 U.S.C. § 2615(a)(2) (“It shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter.”).

3. Intentional infliction of emotional distress (“IIED”).

The Answer. On the interference claim, Metro–North answered that it was entitled to log Millea's absences as non-FMLA leave because he violated Metro–North's legally valid internal leave policy. On the retaliation claim, Metro–North answered that none of the claimed acts of retaliation was the result of Millea's use of FMLA leave, and none was materially adverse. On the IIED claim, Metro–North answered that any violation of the FMLA was not done intentionally or outrageously and so could not amount to IIED.

The Trial. Millea's suit against Metro–North was tried in May 2009. Millea requested that the court charge the jury on the definition of “materially adverse employment action” using the standard articulated by the Supreme Court in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (“ Burlington Northern ”), a Title VII retaliation claim case. The court rejected the proposed charge on the ground that this case involved the FMLA, not Title VII, and instead issued an instruction with a narrower definition of “materially adverse.”

The jury returned a verdict in favor of Millea on his interference claim, awarding him $612.50 in lost wages and other damages. The jury found in favor of Metro–North on both the retaliation and IIED claims. Millea moved for costs and attorneys' fees, and the court awarded $204 in attorneys' fees and $18,643 in costs. Metro–North moved for judgment as a matter of law on the interference claim and for its costs associated with the retaliation and EEID claims. The court denied these motions.

Both parties now appeal.

DISCUSSION

This appeal and cross-appeal together present three questions. First, did the district court err in denying Metro–North's request for judgment as a matter of law on Millea's interference claim? Second, did the district court commit nonharmless error when it rejected Millea's proposed retaliation instruction based on the Burlington Northern standard? Third, did the district court abuse its discretion in awarding Millea only $204 in attorneys' fees for his successful interference claim?

I

“We review a district court's ruling on a Rule 50 motion de novo, and apply the same standard used by the district court below.” Cobb v. Pozzi, 363 F.3d 89, 101 (2d Cir.2004). Judgment as a matter of law is available only if there is no “legally sufficient evidentiary basis” for a reasonable jury to find for the prevailing party on that claim. Fed.R.Civ.P. 50(a)(1). Judgment as a matter of law is only granted when “(1) there is such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or (2) there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded persons could not arrive at a verdict against it.” Cruz v. Local Union No. 3 of the Int'l Bhd. of Elec. Workers, 34 F.3d 1148, 1154 (2d Cir.1994) (brackets and internal quotation marks omitted).

A

Metro–North argues there is no legal basis on which the jury could have concluded that Metro–North interfered with Millea's exercise of his FMLA rights. Metro–North concedes that Millea was entitled to take FMLA leave and that it disciplined Millea for his use of such leave, but argues that such discipline was justified as a matter of law by Millea's failure to comply with Metro–North's internal leave policy requiring an employee to notify his supervisor directly when FMLA leave is taken. There is no dispute that a company may discipline an employee for violating its internal leave policy as long as that policy is consistent with the law; however, we conclude that, on these facts, Metro–North's internal leave policy is inconsistent with the FMLA.

The FMLA generally requires employees to “comply with the employer's usual and customary notice and procedural requirements for requesting leave.” 29 C.F.R. § 825.303(c). However, this requirement is relaxed in “unusual circumstances” or where the company policy conflicts with the law. Id.

The regulations implementing the FMLA provide that when an employee's need for FMLA leave is unforeseeable (as Millea's was), “[n]otice 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.” Id. § 825.303(a). Because this regulation expressly condones indirect notification when the employee is unable to notify directly, Metro–North's policy conflicts with the FMLA and is therefore invalid to the extent it requires direct notification even when the FMLA leave is unforeseen and direct notification is not...