Cloutier v. GoJet Airlines, LLC

• Decision Date: 29 April 2021
• Docket Number: 19-1823,Nos. 19-1322,19-3279,19-1773,s. 19-1322
• Citation: 996 F.3d 426
• Parties: John F. CLOUTIER, Plaintiff-Appellee, Cross-Appellant, v. GOJET AIRLINES, LLC, Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

996 F.3d 426

John F. CLOUTIER, Plaintiff-Appellee, Cross-Appellant,

v.GOJET AIRLINES, LLC, Defendant-Appellant, Cross-Appellee.

Nos. 19-1322

19-1773

19-1823

19-3279

United States Court of Appeals, Seventh Circuit.

Argued February 24, 2021

Decided April 29, 2021

John F. Cloutier, Attorney, Cloutier Law Group, Richard D. Grossman, Attorney, Law Offices of Richard D. Grossman, Chicago, IL, for Plaintiff - Appellee

Rodney A. Harrison, David Lawrence Schenberg, Attorneys, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., St. Louis, MO, for Defendant - Appellant

Before Flaum, Manion, and Kanne, Circuit Judges.

Flaum, Circuit Judge.

Plaintiff-appellee and cross-appellant John F. Cloutier was a pilot for defendant-appellant and cross-appellee GoJet Airlines, LLC. Cloutier learned he had type II diabetes on June 2, 2014, which meant he could not resume flying for GoJet until the Federal Aviation Administration ("FAA") confirmed he could safely return. During this period—in which Cloutier took medication and underwent medical testing necessary for FAA approval—GoJet granted Cloutier medical leave under the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq . Once GoJet determined that Cloutier would not be able to return to flying within the maximum twelve weeks of leave to which he was entitled, however, GoJet terminated him.

This dispute first arose when Cloutier filed a grievance asserting FMLA violations pursuant to the "Collective Bargaining Agreement" between GoJet and his union. The parties battled in arbitration to no avail. Then turning to the courts, Cloutier initiated this complex lawsuit, suing GoJet for violations of the FMLA and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. The jury reached a verdict in Cloutier's favor, finding GoJet had interfered with his FMLA rights and retaliated against him for exercising his FMLA rights. The district court then granted him back pay, liquidated damages, and front pay.

On appeal, as it did below, GoJet presents an array of issues for our consideration. GoJet argues that this dispute should never have been allowed in litigation because the parties’ Collective Bargaining Agreement required them to arbitrate FMLA claims. Failing that, GoJet asserts that the district court erred in denying its motion for judgment as a matter of law on several different grounds. For his own part, Cloutier cross-appealed to present an additional set of issues attacking the district court's findings and calculations connected to Cloutier's damages award. For the reasons below, we affirm in part and reverse in part.

I. Background

A. Factual Background

In 2008, Cloutier began flying as a pilot for GoJet, a commercial airline operating flights on behalf of United Airlines and Southwest Airlines. On June 2, 2014, Cloutier's doctor, Dr. Camelia Pop, notified him that he had type II diabetes and accordingly prescribed him the medication Metformin

. Cloutier's diagnosis would entitle him to FMLA medical leave up to a maximum of twelve weeks. See 29 U.S.C. § 2612(a)(1)(D) ("[A]n eligible employee shall be entitled to a total of 12 work-weeks of leave during any 12-month period ... [b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee.").

Cloutier testified that he "believe[d]" he could not fly on June 2, 2014. This matters for our purposes because GoJet's Family and Medical Leave Act Policy ("FMLA Policy") required that an employee with knowledge of the need to take leave must notify GoJet "as soon as practicable," defined as "the same or next business day." Despite Cloutier's belief, Dr. Pop told him that whether he could fly would be handled by his FAA-designated physician. More generally, Cloutier said he did not fully understand what a diabetes diagnosis meant or entailed on June 2 and that he had a meeting scheduled with a diabetes specialist on June 10, 2014, to learn more. Moreover, as of June 2, 2014, GoJet had not scheduled him on any flights, allowing Cloutier to continue to fulfill his obligations to GoJet by attending a mandatory yearly simulator training in St. Louis, Missouri, from June 4 until June 9, 2014.

On June 10, 2014, once he returned to his home base in Chicago, Cloutier called Dr. Kitslaar, his FAA medical examiner, who explained to him the FAA protocol for pilots prescribed Metformin. Dr. Kitslaar told Cloutier he would need to take the medication for sixty days, after which an Aviation Medical Examiner would need to run tests on him. In the meantime, he was prohibited from flying until the FAA evaluated his test results and approved his return with a first-class medical certificate. The parties dispute whether Cloutier knew on June 2, 2014 (when he was diagnosed), or on June 10, 2014 (when he spoke with Dr. Kitslaar), that he would need medical leave.

Around this time, GoJet added a flight to Cloutier's schedule for June 11, 2014. So, on June 10, 2014, Cloutier attempted to call crew scheduling to notify them he was sick pursuant to GoJet procedures because of his diabetes diagnosis. He also notified the scheduling office that he would need medical leave. As he later testified, he could not contact the Chief Pilot as he normally would because at that time the Chief Pilot had quit, leaving the position unfilled. Following up on his efforts to notify GoJet of his need for leave, he sent an email on June 12, 2014, to the base manager, Tracey Ryan, informing her of his need for leave. In that email he told her that FAA protocol prohibited him from flying until he had taken his medicine for sixty days, undergone certain tests for FAA review, and received clearance from the FAA to fly.

In response, Ryan informed Cloutier that the required FMLA forms could be found on GoJet's website and that he only had five days to return the forms to her. She told him to have his doctor "fax [the paperwork] over to me by Tuesday of next week," or five days later. There is no evidence that Ryan then told Cloutier of the "anticipated consequences" if he failed to provide this paperwork. See 29 C.F.R. § 825.305(d) (requiring that when an "employer requests certification, the employer must also advise an employee of the anticipated consequences of an employee's failure to provide adequate certification"). While GoJet had the above-referenced FMLA Policy on its website, Cloutier testified that he "was never directed to this [policy] and had no knowledge that it even existed." On the subject of "Notice and Scheduling of Leave," the FMLA Policy instructed that "[w]hen planning medical treatment, employees should consult with the Human Resources Department." At that time, however, GoJet did not have a human resources department. This language appeared in the same section of the FMLA Policy requiring employees to give notice of their need for leave "as soon as practicable (meaning the same or next business day)."

On June 17, 2014, Cloutier submitted his formal request for sixty days’ leave commencing the next day. Dr. Pop submitted a medical certification on his behalf to support this request, although it only indicated her estimation that Cloutier would be incapacitated until July 31, 2014. Accordingly, there was a mismatch between the sixty days of FMLA leave requested and the July 31 date used in Dr. Pop's certification. Also on June 17, Ryan responded to Cloutier via email indicating she would update his schedule to reflect FMLA leave from June 11 to July 31, 2014. Cloutier responded to this email that same day. With a start date of June 11, 2014, his leave would expire, at its statutory maximum, twelve weeks later on September 2, 2014, requiring that he be able to return by September 3, 2014. If Cloutier could not return until after September 3, 2014, GoJet would be free to terminate him.

Understanding he would need leave past July 31, 2014, Cloutier contacted GoJet's Vice President of Operations, Steve Briner, on June 25 and 26, 2014, to notify him that he would not be able to return on August 1, 2014, and needed leave until at least late August—by which time he expected the FAA to review his tests and approve his return. Instead of responding to Cloutier, Briner emailed Ryan and the new Chief Pilot, Randy Bratcher, on June 26, 2014:

I do not want you to reach out to this man again either via phone or e-mail. Let Randy know the instant you are back in the office if he calls or sends an e-mail, so we can all discuss. After his [FMLA leave] ends, our intent is to terminate his employment for noncompliance with the law. Steve.

Ryan acknowledged with a reply: "Will do – thank you."

GoJet did not communicate with Cloutier until July 31, 2014, leaving a voicemail to notify him that he had been scheduled to resume flying. Up to that point, Cloutier alleges that GoJet failed to make several required notices pursuant to FMLA regulations.¹ Cloutier testified that if GoJet had made its required notices under these regulations, he would have expedited his submission of paperwork to the FAA and ensured an earlier return. Even still, prior to July 31, 2014, Cloutier tried at least four times to communicate to GoJet that he would not be able to return until late August due to his pending FAA approval. GoJet neither adjusted his leave past July 31 nor notified him that it was formally denying the requested leave in response to these communications.

Checking for a response from GoJet to his many communications, Cloutier opened his email inbox on August 1, 2014, around 5:00 p.m. He found none. At 6:15 p.m., however, Ryan emailed him stating that his requested extension of FMLA leave required a recertification by his doctor no later than August 15, 2014. Cloutier testified that he did not see this email until August 19, 2014, which was the first time that he recalled checking his email since August 1. Cloutier also argues Ryan's demand provided him less than the minimum fifteen days employers must give employees to provide a...