Manuel v. Westlake Polymers Corp.

Citation66 F.3d 758
Decision Date03 October 1995
Docket NumberNo. 95-30050,95-30050
Parties66 Empl. Prac. Dec. P 43,685, 64 USLW 2217, 130 Lab.Cas. P 33,288, 2 Wage & Hour Cas.2d (BNA) 1569, 7 NDLR P 324 June MANUEL, Plaintiff-Appellant, v. WESTLAKE POLYMERS CORPORATION, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Scott Damon Wilson, Baton Rouge, LA, for plaintiff-appellant.

Robert E. Landry, Scofield, Gerard and Veron, Lake Charles, LA, C. Eston Singletary, Lake Charles, LA, for defendant-appellee.

Judith Lichtman, Donna R. Lenhoff, Lisa M. Guerin, Women's Legal Defense Fund, Washington, DC, Victor Roma Farrugia, New Orleans, LA, for Women's Legal Defense Fund amicus curiae.

William J. Stone, Mary J. Rieser, United States Department of Labor, Washington, DC, for Secretary of Labor amicus curiae.

Appeal from the United States District Court for the Western District of Louisiana.

Before KING, HIGGINBOTHAM and PARKER, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

June Manuel appeals a summary judgment in favor of Westlake Polymers Corporation. The district court held that Manuel did not satisfy the notice requirements of the Family and Medical Leave Act of 1993, 29 U.S.C. Sec. 2601 et seq., because she did not expressly invoke the statute's protection when she notified her employer of her need for leave. We reverse and remand.

I.

June Manuel began working for Westlake Polymers Corporation in July 1986. Manuel missed a substantial number of days of work each year. In 1987, for example, she was absent seventeen days. As a result, Westlake's supervisors advised Manuel that her employment would be in jeopardy if her attendance did not improve. Despite the warning, she missed forty-nine days in 1988 and thirty days in 1990. In June, 1991, Bryan Taylor, Westlake's Human Resources Coordinator, informed Manuel that her attendance record was unacceptable.

In 1992 Westlake established a "no fault" employment policy designed to ensure that its employees met reasonable attendance standards. Under the terms of the policy, every absence was counted regardless of the cause of the absence. The policy established a four-step system of progressive warnings and disciplinary measures calculated to apprise employees of attendance problems. Step one was an oral reprimand; step two was a written warning; step three was a one-week suspension and final warning; and step four was termination.

Manuel was warned in February, July, and September of 1992, the last of which informed her that "failure to immediately correct this problem will result in more severe disciplinary action, up to and including termination." Manuel continued to miss days of work. On December 30, 1992, Westlake sent Manuel a formal warning letter notifying her that, since the last warning three months earlier, she had missed approximately 14 days of work. This letter again advised her that her continued absenteeism could result in suspension or termination.

On October 6, 1993, two months after the FMLA went into effect, Manuel visited Dr. Frank Robbins seeking treatment for an ingrown toenail. Dr. Robbins advised her that her toenail needed to be removed and that, if the procedure were performed on a Friday, she could return to work the following Monday. Manuel notified her supervisor, Sheldon Cooley, who immediately gave her permission to take Friday, October 8th off from work.

Dr. Robbins performed the procedure that Friday, but complications developed. Due to infection and swelling of her toe, Manuel was unable to walk without crutches. On the following Monday, Manuel contacted Cooley and notified him that she could not return to work due to her toe. Keeping in constant contact with Westlake, she remained absent from work for over a month. During this time, Manuel did not mention the FMLA, nor did she expressly invoke its protection. In fact, Manuel did not know the Act existed.

On November 29, 1993 at the request of Westlake, Manuel saw Dr. White, the Westlake company physician. After examining Manuel, Dr. White pronounced her able to return to work and advised her to report for work. The following day she returned to work, but Westlake promptly suspended her for four days and issued its "Final Warning/Suspension Letter for Unsatisfactory Attendance." The letter stated that "unless you are able to and actually do report for work regularly and as scheduled, your employment will be terminated."

Less than two months later, on January 25, 1994, Manuel became ill while at work and went home. She returned to work after three days, but this absence was one too many. On February 7, Westlake fired her because of her persistent attendance problem.

On April 14, 1994, Manuel sued Westlake in the United States District Court for the Western District of Louisiana, alleging that Westlake violated the Family and Medical Leave Act of 1993, 29 U.S.C. Sec. 2601 et seq., by counting her October-November, 1993 absence as an additional step in its "no fault" policy. After conducting limited discovery, both Manuel and Westlake moved for summary judgment.

The district court granted Westlake's motion for summary judgment. The court found that Manuel notified her supervisor of the need to miss work for medical reasons but did not expressly invoke the FMLA or its protection when requesting leave. Examining the Department of Labor's interim regulations, the court noted that the regulations specified different notice requirements depending upon the foreseeability of the need for leave. Although in the case of foreseeable leave the employee "need not express certain rights under the FMLA or even mention the FMLA," 29 C.F.R. Sec. 825.302(b), the regulation governing unforeseeable leave omitted this language and required an employee to give notice to her employer "of the need for the FMLA leave." 29 C.F.R. Sec. 825.303(a).

Noting that Manuel's extended absence in October-November, 1993 was unforeseeable, the district court determined that her ingrown toenail was not such "an obviously serious injury, such as a broken leg, cancer, or heart attack, which would trigger an employer inquiry into whether the employee intended to use FMLA leave." The court concluded that when the need for leave is unforeseeable "and when the serious medical condition alleged is not the type which would normally require an employer to inquire whether FMLA leave is needed, it is not inconvenient nor unduly burdensome to require an employee in some manner to refer, or attempt to refer, to the Act." Because Manuel did not make such an attempt, the court held that Manuel's notice to Westlake was insufficient to trigger the protection of the FMLA and granted Westlake's motion for summary judgment.

II.

The FMLA provides eligible employees such as June Manuel twelve weeks of unpaid leave each year for "a serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. Sec. 2612(a)(1)(D). Where that leave is foreseeable, the Act requires that the employee:

(B) shall provide the employer with not less than 30 days' notice, before the date the leave is to begin, of the employee's intention to take leave under such subparagraph, except that if the date of the treatment requires leave to begin in less than 30 days, the employee shall provide such notice as is practicable.

29 U.S.C. Sec. 2612(e)(2)(B). Significantly, the Act does not specify the form of notice required for foreseeable leave, nor does it mention any notice requirement for unforeseeable leave.

Similarly, the legislative history of the FMLA does not mention the content of the notice that an employee must give. The Senate Report accompanying the Act explains that 30-day advance notice is required for foreseeable leave but that "[e]mployees who face emergency medical conditions or unforeseen changes will not be precluded from taking leave if they are unable to give 30 days' advance notice." S.Rep. No. 3, 103rd Cong., 1st Sess. 25 (1993), reprinted in 1993 U.S.C.C.A.N. 3, 27. The House Report is more vague, stating only that "30-day advance notice is not required in cases of medical emergency or other unforeseen events." H.R.Rep. No. 8, 103rd Cong., 1st Sess., pt. 1, at 38 (1993). However, neither report mentions whether an employee must expressly invoke the FMLA when taking leave.

More helpfully, the Secretary of Labor, pursuant to his statutory authority, 1 promulgated interim regulations specifying what notice an employee must give. 29 C.F.R. Secs. 825.302, 825.303. 2 The interim regulations provide that, when the need for leave is foreseeable, the employee must give "at least verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave." 29 C.F.R. Sec. 825.302(c). Significantly, the regulation continues, providing that an employee "need not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed for an expected birth or adoption, for example." Id.

When the need for leave is unforeseeable, however, the interim regulations contain no disclaimer of notice expressly invoking the FMLA's protection. The regulation requires that an employee "should give notice to the employer of the need for FMLA leave as soon as practicable under the facts and circumstances of the particular case." 29 C.F.R. Sec. 825.303(a). Westlake interprets this difference in regulatory language as denoting that, when the need for leave is unforeseeable, an employee must mention the FMLA in order to provide sufficient notice to the employer. We disagree.

First, the regulation governing notice for unforeseeable leave does not, on its face, require express invocation of the FMLA. Rather, the regulation requires "notice of the need for FMLA leave." The reference to "FMLA leave" is ambiguous at best; it does not compel the conclusion that an employee seeking "FMLA leave" must mention ...

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