Mellen v. Trustees of Boston University

• Decision Date: 21 September 2007
• Docket Number: No. 07-1151.,07-1151.
• Citation: 504 F.3d 21
• Parties: Linda MELLEN, Plaintiff, Appellant, v. TRUSTEES OF BOSTON UNIVERSITY and Frances Drolette, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

504 F.3d 21

Linda MELLEN, Plaintiff, Appellant, v. TRUSTEES OF BOSTON UNIVERSITY and Frances Drolette, Defendants, Appellees.

No. 07-1151.

United States Court of Appeals, First Circuit.

Heard September 10, 2007.

Decided September 21, 2007.

Harry C. Beach, for appellant.

Crystal D. Talley, with whom Lawrence S. Elswit was on brief, for appellees.

Before LYNCH and LIPEZ, Circuit Judges, and BARBADORO,^* District Judge.

LYNCH, Circuit Judge.

Linda Mellen challenges the district court's grant of summary judgment in favor of Boston University and an individual, Frances Drolette, on her claims that BU interfered with her substantive rights under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., and the Massachusetts Small Necessities Leave Act (SNLA), Mass. Gen. Laws ch. 149, § 52D. Mellen argues that BU miscalculated the period of leave to which she was entitled under both the FMLA and the SNLA, and also used her leave as a negative factor in an employment decision when it treated her failure to return to work as a voluntary resignation.

We affirm the decision that BU properly calculated and provided Mellen with the requisite amount of leave. Her appeal as to the negative factor claim is precluded by her voluntary dismissal with prejudice of her retaliation claims against BU. Accordingly, we affirm the district court's judgment. This case provides the first occasion for judicial interpretation of the intersection of certain FMLA regulations, 29 C.F.R. § 825.200(f) and 29 C.F.R. § 825.205(a), pertaining to proper allocation of intermittent leave. We also address again, as we did in Colburn v. Parker Hannifin/Nichols Portland Div., 429 F.3d 325 (1st Cir.2005), the distinction between substantive and retaliatory claims under the FMLA.

I.

Linda Mellen began her employment with Boston University in 1977 and became Financial Manager for the School of Public Health (SPH) in 1998. Frances Drolette was hired as SPH's Associate Dean for Administration and Finance in September 2002 and served as Mellen's direct supervisor. There was considerable evidence of friction between the two beginning at least as early as the first months of 2003.

On July 17, 2003, Mellen applied in writing for leave so that she could care for her ailing mother. She requested to be out from August 4 through October 3 and, if necessary, again from October 28 through November 18. (The October gap encompassed fifteen days of vacation time Mellen had previously requested and been granted.) In a letter dated July 31, 2003, BU's Director of Personnel, George Snowdon, approved Mellen's request for leave. Snowdon's letter set forth other terms and conditions governing the leave, including that if Mellen failed to return to work on November 19, she would be considered to have resigned voluntarily.

Throughout the following months, there was communication about Mellen's return to work. In an email on October 1, Mellen indicated to Drolette that her mother's situation was unchanged and that she would be using her second block of FMLA leave. Drolette responded, in effect, that she would have appreciated Mellen's telling her that earlier and that she had thought that Mellen would be back at work on Monday, October 6. In a letter dated October 24 from Drolette to Mellen, Drolette stated that it was her "current understanding" that Mellen would return to work on November 19. In light of Mellen's earlier lack of communication, the letter noted, "If your plans change in this regard you must communicate that to me as soon as possible." Such information was needed so BU could arrange its staffing accordingly. The letter further expressed concern about Mellen's "lack of professionalism, responsibility, and clarity in [her] communications regarding [her] family and medical leave and vacation plans." The letter also referred to Drolette's problems with Mellen's performance at work.

Meanwhile, in an October 23 letter, Mellen informed Drolette that she expected to be out of work through November 20, noting that she had extended her leave period by one day in light of a November 17 internal holiday granted by BU's Trustees. In a response letter dated October 29, Drolette stated that she had been advised that holidays did not serve to extend an employee's allowed FMLA leave and therefore she expected Mellen back at work on Wednesday, November 19.

Mellen did not return to work on November 19. Nor did she call or communicate to BU on November 19 any request for extended leave. Nor did she show up for work at any time thereafter.

By letter dated November 19, but not received by BU until later, Mellen stated she was afraid to return to work, in light of what she described as Drolette's "threatening" letter of October 24. On November 20, Mellen's lawyer sent a letter to BU reiterating Mellen's fear of returning to work. Meanwhile, Drolette sent Mellen a letter dated November 20 informing her that pursuant to the terms laid out in Snowdon's July 31 letter, BU was considering Mellen's failure to return to work on November 19 a voluntary resignation.

Mellen sued BU in federal district court, claiming that BU interfered with her substantive rights under the FMLA and SNLA by miscalculating her leave period, and also that BU fired her in retaliation for taking family medical leave. She attempted to separate out a negative factor claim from the retaliation claims by pleading them as separate counts. The parties filed cross-claims for summary judgment, and on October 18, 2005, the district court awarded summary judgment to BU on Mellen's substantive claims and reserved for trial the factual issues raised in her retaliation claims. With respect to the substantive claims, the court determined that Mellen's FMLA leave had been properly calculated because holidays that fell within her leave period were properly counted against it under 29 C.F.R. § 825.200(f). The court also determined that even if BU had improperly calculated Mellen's leave, Mellen needed prior approval for intermittent leave and ought to have requested additional days off rather than failing to show up for work on November 19. As for Mellen's SNLA claim, the court held that Mellen failed to request the leave at least seven days in advance, as required by the governing statute.

On December 1, 2005, the district court rejected Mellen's motion for reconsideration. On November 30, 2006, the parties agreed to the dismissal with prejudice of the retaliation and all related claims. Mellen now appeals the grant of summary judgment on her claim that BU substantively interfered with her FMLA and SNLA rights.

II.

We review a grant of summary judgment de novo, resolving all reasonable inferences in favor of the non-moving party. Ruiz-Rosa v. Rullan, 485 F.3d 150, 155 (1st Cir.2007). "Summary judgment is appropriate when the properly supported facts of record `show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Id. (quoting Fed. R.Civ.P. 56(c)).

A. BU Did Not Fail To Provide Mellen the Full Duration of Leave Required by the FMLA

Mellen's FMLA leave consisted of intermittent leave taken in two blocks: August 4 through October 3 and October 28 through November 18. Intermittent leave is FMLA leave taken in separate blocks of time but for the same reason. 29 C.F.R. § 825.203(a). "There is no limit on the size of an increment of leave when an employee takes intermittent leave." 29 C.F.R. § 825.203(d).

Mellen contends that she was denied the full number of FMLA days owed her because BU did not extend her leave to account for three holidays that fell within it (Labor Day, Veterans' Day, and the November 17 BU internal holiday). Mellen argues that since her leave was intermittent, only the days she actually missed from work, and not holidays, should be counted. See 29 C.F.R. § 825.205(a) ("If an employee takes leave on an intermittent or reduced leave schedule, only the amount of leave actually taken may be counted toward the 12 weeks of leave to which an employee is entitled.") BU counters with another regulation which provides that in calculating the amount of FMLA leave taken, holidays occurring within a week taken as FMLA leave have no effect. See 29 C.F.R. § 825.200(f). Whether holidays are to be counted against intermittent leave taken in an interval of a week or more is a question of first impression.¹

No straining or awkward constructions, such as those advanced by plaintiff, are necessary; the regulations fit together naturally. General provisions governing FMLA leave are set forth in 29 C.F.R. § 825.200. Another regulation, 29 C.F.R. § 825.205, provides specific guidelines for employees taking intermittent leave. The applicability of section 825.200 to intermittent leave is assumed within the regulations. For instance, the provision in section 825.200 restricting an eligible employee's leave to a total of twelve workweeks during any twelve-month period unquestionably applies to intermittent leave. See 29 C.F.R. § 825.200(a); 29 C.F.R. § 825.205(a) (referring to the "12 weeks of leave" to which an employee taking intermittent leave is entitled).

The two particular provisions at issue, 29 C.F.R. § 825.200(f) and 29 C.F.R. § 825.205(a), also work together. Section 825.200(f) defines the "amount of leave used" by an employee: "[f]or purposes of determining the amount of leave used . . . the fact that a holiday may occur within the week taken as FMLA leave has no effect" (emphasis added). In turn, section 825.205(a) provides that for employees taking intermittent leave, only the "amount of leave actually taken" may be counted against the twelve-week entitlement. Thus if an employee's intermittent leave includes a full, holiday-containing week, section 825.200(f) provides that the "amount of leave used" includes the holiday. Nothing in section 825.205(a) changes this result. The "amount of leave actually taken" to which...