Gilliam v. UPS, 99-3942
| Decision Date | 29 November 2000 |
| Docket Number | No. 99-3942,99-3942 |
| Citation | 233 F.3d 969 |
| Parties | (7th Cir. 2000) Reginald Gilliam, Plaintiff-Appellant, v. United Parcel Service, Inc., Defendant-Appellee |
| Court | U.S. Court of Appeals — Seventh Circuit |
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 398CV0442RM--Robert L. Miller, Jr., Judge.
Before Easterbrook, Ripple, and Williams, Circuit Judges.
An employee who fails to report to work for three consecutive days and does not notify the company by the beginning of the scheduled starting time on the third day is in trouble under Article 16(d) of the collective bargaining agreement between United Parcel Service and the Teamsters Union. Reginald Gilliam violated this rule and was fired. He took off Friday, August 22, 1997, with the permission of Allen Kinsey, his supervisor. Kinsey expected Gilliam to return to work the next Monday; Gilliam, however, thought that his leave had an indefinite duration and did not try to get in contact with Kinsey until the following Thursday (and did not succeed until Friday, August 29). Kinsey gave Gilliam the bad news by failing to call in by the start of his shift on Tuesday, August 26 (the third working day of leave), Gilliam had abandoned his job. This is an understanding of the collective bargaining agreement that Gilliam and the union might have challenged--perhaps on the ground that by granting leave Kinsey extended the notice period to Wednesday or even later, depending on how much leave Gilliam reasonably thought Kinsey had authorized--but arbitration did not occur, and Gilliam does not say that his union violated its duty of fair representation. Like the district court, therefore, we take it as established that Article 16(d) entitled UPS to act as it did. We must decide whether the application of this collective bargaining agreement to Gilliam violates the Family and Medical Leave Act, 29 U.S.C. sec.sec. 2601-54.
Gilliam took time off to be with his fianc e, Diana Nukes, after she delivered their child. The birth occurred on August 20, 1997, when Nukes was in her home town of Columbus, Ohio, and Gilliam was working in Elkhart, Indiana. Gilliam had known about the pregnancy since November 1996 but did not tell UPS that he wanted time off until the day after Nukes gave birth--although the collective bargaining agreement, which like the FMLA affords unpaid family leave, requires 10 days' notice. During work hours on August 21 Gilliam told Kinsey that he wanted leave to be with Nukes. Kinsey waived the 10-day notice rule and granted Gilliam's request. Gilliam told Kinsey that he would be back in a "couple" of days (or "a few" days; recollections differ). Kinsey understood this to mean a few calendar days. Gilliam did not get in touch with UPS for a week. By then it was too late, under UPS's understanding of the collective bargaining agreement. But Gilliam believes that the FMLA entitled him to stay away from work for up to 120 days without informing his employer when he would return.
The district court understood Gilliam's claim as one asserting that UPS had retaliated against him for using FMLA leave and deemed it insufficient under the framework that King v. Preferred Technical Group, 166 F.3d 887 (7th Cir. 1999), adopts for such claims. 1999 U.S. Dist. Lexis 21749, 5 Wage & Hour Cas. 2d 1853 (N.D. Ind. Oct. 13, 1999). Yet the thrust of Gilliam's claim is substantive; after all, UPS did not think that he had taken FMLA leave in the first place. He contends that the FMLA not only gave him an entitlement to time off (which he enjoyed) but also required UPS to take him back at the end of the leave. 29 U.S.C. sec.2614(a)(1)(A); Rice v. Sunrise Express, Inc., 209 F.3d 1008 (7th Cir. 2000); Diaz v. Fort Wayne Foundry Corp., 131 F.3d 711 (7th Cir. 1997). Using the language of "retaliation" to analyze such a contention detracts attention from what matters. Diaz, 131 F.3d at 712-13. Still, for Gilliam the difference between substantive and retaliation approaches does not matter, because his core...
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...COLLECTIVE BARGAINING AGREEMENTS (“CBA’s”) 6.1 Application of Agreement Did Not Violate FMLA 6.1.1 Gilliam v. United Parcel Serv., Inc. , 233 F.3d 969 (7th Cir. 2000). Gilliam took time off from work to attend to his fiancée upon the delivery of their child. UPS expected Gilliam to return t......
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Family and Medical Leave Act
...6 COLLECTIVE BARGAINING AGREEMENTS(“CBA’s”) 6.1 Application of Agreement Did Not Violate FMLA 6.1.1 Gilliam v. United Parcel Serv., Inc. , 233 F.3d 969 (7th Cir. 2000). Gilliam took time off from work to attend to his fiancée upon the delivery of their child. UPS expected Gilliam to return ......