Killian v. Yorozu Automotive Tennessee, Inc.

• Citation: 454 F.3d 549
• Decision Date: 20 July 2006
• Docket Number: No. 04-6202.,04-6202.
• Parties: Jackie KILLIAN, Plaintiff-Appellee, v. YOROZU AUTOMOTIVE TENNESSEE, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

454 F.3d 549

Jackie KILLIAN, Plaintiff-Appellee, v. YOROZU AUTOMOTIVE TENNESSEE, INC., Defendant-Appellant.

No. 04-6202.

United States Court of Appeals, Sixth Circuit.

Argued: March 17, 2006.

Decided and Filed: July 20, 2006.

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ARGUED: William S. Rutchow, Ogletree, Deakins, Nash, Smoak & Stewart, Nashville, Tennessee, for Appellant. Michael D. Galligan, Galligan & Newman, McMinnville, Tennessee, for Appellee. ON BRIEF: William S. Rutchow, Kathryn Sawtelle Caudle, Ogletree, Deakins, Nash, Smoak & Stewart, Nashville, Tennessee, for Appellant. Michael D. Galligan, Galligan & Newman, McMinnville, Tennessee, for Appellee.

Before: BATCHELDER, CLAY, and McKEAGUE, Circuit Judges.

OPINION

ALICE M. BATCHELDER, Circuit Judge.

Appellant, Yorozu Automotive Tennessee, Inc. ("Yorozu"), appeals the district court's judgment in favor of appellee, Jackie Killian ("Killian"), on her claim under the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. (the "FMLA"). We find that Yorozu's termination of Killian violated the FMLA, and although we disagree in part with the district court's reasoning, we nonetheless affirm its judgment.

Killian began working for Yorozu as a third-shift spot welder. Over the years, she accrued enough seniority to earn a place on the first shift. She was, according to Yorozu, a good employee, and her hourly wage was among the highest available in her locality. Killian required surgery and she requested family medical leave for the period of November 29, 2001, through December 4, 2001. As was customary, she filed her request with Yorozu's company nurse, who passed it along to the human resources department for processing. In order to qualify for leave, Killian was required to submit a medical certification. Killian's doctor sent her certification via facsimile, and it stated that Killian could not return to work prior to December 10, 2001. Yorozu approved Killian's leave and scheduled her return-to-work date as December 10, 2001.

During surgery, Killian's doctor discovered that her condition was more serious than he had anticipated, and he required Killian to report for a follow-up appointment on December 11, 2001. Killian contacted Yorozu's company nurse on December 4, 2001, and requested a leave extension. The nurse reputedly told Killian, "That's fine. Get a statement and we'll extend the time." Although Killian believed that the nurse had approved her request, Yorozu claims that only the human resources department could grant such an extension. Killian, who believed that she had fifteen days to submit her certification, did not immediately call her doctor.

On December 10, 2001, Killian's supervisor contacted her and inquired about her absence. Killian informed him that the company nurse had extended her leave. The call left her unsettled, and she asked her doctor to provide a new certification to Yorozu as soon as possible. The doctor sent a new certification via facsimile on the same day. It stated that Killian would be unable to work before December 17, 2001. When Killian called the human resources department to ensure that it had received her doctor's notice, Killian's supervisor fired her.

After trying unsuccessfully to regain her job at Yorozu, Killian looked for a new first-shift job with comparable pay. She was unable to accept employment on the second or the third shifts because her husband, who was a long-haul truck driver, was often not available to care for their twelve-year old daughter. Killian checked the unemployment office, read listings in the local newspaper and inquired with friends who worked at other factories, but she was unable to find a comparable position. She decided to apply for a workforce grant in cosmetology, which she received. The grant allowed her to attend school and learn a trade. After she graduated and passed the state licensing exam, Killian found a full-time job at Images, a local hair salon.

Killian filed a complaint against Yorozu alleging that her termination violated the FMLA. After a bench trial, the district court ruled in Killian's favor and awarded her a total of $55,000 in damages. The court held that Yorozu had unlawfully terminated Killian in retaliation for exercising her FMLA rights and that Yorozu's policy, by its terms, violated the FMLA. Finally, the court found that Killian had mitigated her damages to the extent required by law. On appeal, Yorozu challenges each of the district court's findings.

I.

Yorozu alleges that its policy — which required Killian to provide medical recertification prior to expiry of her original leave — did not violate the FMLA. Killian did not provide Yorozu with recertification until the day on which she was originally scheduled to return to work; therefore, Yorozu argues, its termination of Killian was lawful.

The FMLA provides that an eligible employee such as Killian is entitled to medical leave in the event of "a serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612(a)(1)(D). This leave is not unconditional. To garner its benefit, an employee must abide by the conditions provided in 29 U.S.C. § 2613, which provides, inter alia, that an employer may require an employee to submit a doctor's certification of the employee's condition. In addition, an employer may require an employee to report "periodically" on her status and her intention to return to work. 29 U.S.C. § 2614(a)(5). The employer may also require the employee to "obtain subsequent recertifications on a reasonable basis." 29 U.S.C. § 2613(e).

The FMLA regulations clarify an employee's rights and responsibilities under the act. The regulations relevant to Killian's claim can be divided into two groups: those dealing with notice and those dealing with medical certification. We first turn our attention to notice. Whenever possible, an employee must give her employer sufficient notice of her intention to use family medical leave. 29 C.F.R. § 825.302(a). The notice may be verbal, and it "need not expressly assert rights under the FMLA ...." 29 C.F.R. § 825.302(c). Although an employer may require an employee to "comply with the employer's usual and customary notice and procedural requirements for requesting leave .... failure to follow such internal employer procedures will not permit an employer to disallow or delay an employee's taking FMLA leave if the employee gives timely verbal or other notice." 29 C.F.R. § 825.302(d). If an employee fails to give adequate notice, the employer may choose between two courses of action: it may waive the notice requirements or it may delay the employee's leave. 29 C.F.R. § 825.304(a). The regulations also provide:

It may be necessary for an employee to take more leave than originally anticipated. Conversely, an employee may discover after beginning leave that the circumstances have changed and the amount of leave originally anticipated is no longer necessary.... In both of these situations, the employer may require that the employee provide the employer reasonable notice (i.e., within two business days) of the changed circumstances where foreseeable.

29 C.F.R. § 825.309(c).

It is clear that Killian provided Yorozu with adequate notice of her need for an extended period of leave. She contacted the company nurse on December 4, 2001, six full days before the expiration of her original leave period. Under the regulations, she could have waited until December 8, 2001. Accordingly, we find that Yorozu was required to extend Killian's leave under 29 C.F.R. § 825.309, unless she failed to provide adequate medical certification under the FMLA and accompanying regulations. Finally, even if Killian's notice had been late, Yorozu's only legal recourse would have been either to waive the notice requirement or to delay her leave. The statute and regulations do not permit an employer to terminate an employee merely for failure to provide timely notice.

Having determined that Killian provided Yorozu with sufficient notice, we turn now to the issue of medical certification. When leave is foreseeable, an employee must provide her employer with medical certification at least thirty days prior to her scheduled absence. 29 C.F.R. § 825.305(b). "When this is not possible, the employee must provide the requested certification to the employer within the time frame requested by the employer (which must allow at least 15 calendar days after the employer's request), unless it is not practicable under the particular circumstances to do so despite the employee's diligent, good faith efforts." Id. (emphasis added). The regulations detail the consequences of an employee's failure to provide an appropriate medical certification. 29 C.F.R. § 825.311 provides the following:

(a) In the case of foreseeable leave, an employer may delay the taking of FMLA leave to an employee who fails to provide timely certification after being requested by the employer to furnish such certification (i.e., within 15 calendar days, if practicable), until the required certification is provided.

(b) When the need for leave is not foreseeable, or in the case of recertification, an employee must provide certification (or recertification) within the time frame requested by the employer (which must allow at least 15 days after the employer's request) .... If an employee fails to provide a medical certification within a reasonable time under the pertinent circumstances, the employer may delay the employee's continuation of FMLA leave. If the employee never produces the certification, the leave is not FMLA leave.

29 C.F.R. § 825.311 clearly and unequivocally required Yorozu to provide Killian with fifteen days from the date of its request to submit medical certification supporting her extension of leave. Yorozu requested the additional certification on December 4, 2001, and it terminated Killian six days later, on ...