Mendel v. City of Gib., Case No. 14-1789
| Decision Date | 14 April 2015 |
| Docket Number | Case No. 14-1789 |
| Parties | PAUL MENDEL, Plaintiff-Appellant, v. CITY OF GIBRALTAR, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
PAUL MENDEL, Plaintiff-Appellant,
v.
CITY OF GIBRALTAR, Defendant-Appellee.
Case No. 14-1789
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
April 14, 2015
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0266n.06
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
OPINION
BEFORE: CLAY, KETHLEDGE, and DONALD, Circuit Judges.
BERNICE BOUIE DONALD, Circuit Judge. Plaintiff Paul Mendel brought an action under the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. §§ 2601-2654, against his former employer, the City of Gibraltar, after it terminated his employment as a police dispatcher in February of 2009. The district court granted summary judgment to Gibraltar. Mendel v. City of Gibraltar, No. 11-10496, 2014 WL 2558218 (E.D. Mich. June 6, 2014). Citing Edgar v. JAC Products, Inc., 443 F.3d 501 (6th Cir. 2006), the district court concluded that Mendel was not entitled to relief because the earliest day he could return to work following medical clearance well-eclipsed the 12-week period of leave provided by the FMLA. Mendel appeals, arguing that the district court erred (1) by assessing full weeks of utilized leave, rather than intermittent leave pursuant to 29 C.F.R. § 825.205(b)(1); and (2) by assessing utilized leave
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even for weeks in which Gibraltar had removed Mendel from the dispatcher schedule entirely. For the reasons stated below, we AFFIRM the district court's grant of summary judgment to Gibraltar.
The relevant facts in this case are largely undisputed. Mendel began work as a police dispatcher for Gibraltar in 2004. Beginning in 2007, he also worked as a dispatcher for the City of Trenton. Gibraltar dispatchers do not work fixed schedules; rather, the Chief of Police sets the dispatcher schedule based on employee preferences and availability approximately one month in advance. Some dispatchers work several days per week, while others work significantly fewer days. In 2008, Mendel worked a total of 1,862 hours—an average of 35.8 hours per week.
In the autumn of 2008, Mendel began to experience severe and constant abdominal pain. He did not work his scheduled shifts at Gibraltar from October 2-5, 2008. On October 15, 2008, Mendel underwent surgery in order to eliminate scar tissue resulting from a previous hernia-related surgery. The October surgery did not alleviate Mendel's abdominal-pain issue.
In December of 2008, Mendel's abdominal pain intensified and incapacitated him from working. The pain spread from Mendel's abdomen into his groin, lower back, and hip. At his deposition, Mendel described the pain as so severe that, at times, he "couldn't get out of bed for three, four days" and "couldn't even bend over to get dressed." Mendel missed eight consecutive shifts in December of 2008. On December 22, 2008, Gibraltar Chief of Police Ray Canterbury sent Mendel a letter requesting a doctor's certificate of illness by the next day. The letter indicated that failure to submit such a certificate would result in termination of Mendel's employment as a Gibraltar dispatcher. Mendel submitted a note from Dr. John C. Baumann
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indicating that Mendel had been in Dr. Baumann's care since December 12, 2008, and that Mendel would be able to return to work on January 2, 2009.
Due to his chronic pain, however, Mendel was unable to work and missed all of his scheduled Gibraltar shifts in January of 2009. During this time, Mendel alerted Trenton about his ongoing medical issues and declined to submit his availability for work until he was ready to return. As a result, he did not appear on the Trenton dispatcher schedule after December of 2008. Mendel never requested removal from the Gibraltar schedule. As a result of his missed shifts in January, Chief Canterbury removed Mendel from the Gibraltar dispatcher schedule until January 26, 2009. In a meeting in mid-January, Mendel told Chief Canterbury that he thought he would be able to return to the February 2009 schedule.
However, Mendel also missed all of his scheduled Gibraltar shifts in February of 2009. On February 13, 2009, Chief Canterbury sent Mendel another letter requesting a doctor's certificate of illness by February 16, 2009, and indicating that the penalty for non-receipt would be termination. Chief Canterbury also removed Mendel from the February and March 2009 schedules.
On February 20, 2009, Mendel's wife delivered a note from Dr. Lael A. Stone of the Cleveland Clinic to the Gibraltar Police Department. The note indicated that Mendel had been visiting the Cleveland Clinic "intermittently since the first week in January" and that "several more visits over the next month" would be necessary. The note stated that Mendel "should remain off work pending further testing."
On February 23, 2009, Chief Canterbury sent Mendel another letter. The letter noted that Mendel's letter from Dr. Stone was late and "[did] not indicate that [Mendel was] in the clinic or under a doctor's care on February 7th, 8th, 11th, 12th, or the 13th"—the dates on which Mendel
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was scheduled to work in February of 2009. Chief Canterbury's letter further stated: "After not receiving the required Certificate of Illness by February 16, 2009, it is my belief that you have voluntarily terminated your employment as a dispatcher with the City of Gibraltar." Thereafter, Mendel no longer appeared on the Gibraltar dispatcher schedules.
At his deposition, Mendel testified that he was unable to work from December 12, 2008, until at least May of 2009, when surgery alleviated his chronic-pain issue. Ultimately, doctors did not clear Mendel to work until June 1, 2009. He returned to work at Trenton in June of 2009.
Mendel filed his FMLA complaint against Gibraltar in the United States District Court for the Eastern District of Michigan on February 7, 2011. On September 20, 2011, Gibraltar moved for summary judgment, arguing that because the City did not employ more than 50 employees, Mendel was not an "eligible employee" under the FMLA. See 29 U.S.C. § 2611(2)(B)(ii). Specifically, Gibraltar argued that its volunteer firefighters should not count toward its total number of employees under the relevant statutory definitions because, inter alia, they receive only a nominal stipend and are not required to respond to emergency calls. See id. § 2611(3); id. § 203(e), (g). The district court agreed and, on January 31, 2012, granted summary judgment to Gibraltar. Mendel v. City of Gibraltar, 842 F. Supp. 2d 1035, 1044 (E.D. Mich. 2012).
On August 15, 2013, a divided panel of this Court reversed and remanded the case. Mendel v. City of Gibraltar, 727 F.3d 565, 572 (6th Cir. 2013). The majority held that "the substantial wages paid to [Gibraltar's] firefighters constitute compensation, not nominal fees, which makes the Gibraltar firefighters employees, not volunteers, for purposes of the FLSA and
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FMLA."1 Id. (footnote omitted). Notably, and unlike in the current appeal, the facts in the prior appeal "[did] not concern Mendel or the story surrounding his termination." Id. at 567.
Following remand, on February 14, 2014, Gibraltar again moved for summary judgment. This time, Gibraltar argued that Mendel could not establish an FMLA violation because the indisputable facts showed that he was unable to work for over six months—far longer than the 12-week period contemplated by the FMLA. Gibraltar also moved for sanctions under Federal Rule of Civil Procedure 11.
On June 6, 2014, the district court agreed with Gibraltar's summary judgment argument. Citing Edgar, 443 F.3d at 510, the court noted that "a plaintiff cannot recover under the FMLA even if he is terminated before the remaining FMLA-leave expires, if he could not return to work prior to week twelve," and that "terminating an employee does not toll FMLA weeks." Mendel, 2014 WL 2558218, at *3, *4. The court further reasoned that, based on Mendel's own admissions, Mendel was unable to work for two months straight beginning on January 1, 2009,2 and could not work during the fifteen weeks between his termination in February and his return to the workforce on June 1, 2009. Id. at *4-5. Assuming for calculation purposes that Mendel would have worked a full-time schedule based on his average of 35.8 hours worked per week in 2008, see 29 C.F.R. § 825.205(b)(3),3 the court held that "Mendel's injury exceeded the statutory
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framework." Id. at *5. In doing so, the court rejected Mendel's argument that it should have calculated his utilized leave on a pro rata or proportional basis pursuant to 29 C.F.R. § 825.205(b)(1)4 because he was a part-time employee taking leave intermittently. Id. at *3. The court emphasized that "a part-time employee who misses his entire scheduled work week," as Mendel did, "uses a full FMLA week." Id. at *4. The district court declined to assess Rule 11 sanctions against Mendel. Id. at *5.
Mendel timely appealed. Gibraltar did not appeal the district court's denial of Rule 11 sanctions.
We review a district court's order granting summary judgment de novo. Srouder v. Dana Light Axle Mfg., LLC, 725 F.3d 608, 613 (6th Cir. 2013). Summary judgment is...
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