Miller v. Defiance Metal Products, Inc., 3:97CV7267.

• Decision Date: 12 December 1997
• Docket Number: No. 3:97CV7267.,3:97CV7267.
• Citation: 989 F.Supp. 945
• Parties: Lisa MILLER, Plaintiff, v. DEFIANCE METAL PRODUCTS, INC., Defendant.
• Court: U.S. District Court — Northern District of Ohio

Page 945

989 F.Supp. 945

Lisa MILLER, Plaintiff, v. DEFIANCE METAL PRODUCTS, INC., Defendant.

No. 3:97CV7267.

United States District Court, N.D. Ohio, Western Division.

December 12, 1997.

Jeffrey I. Julius, Sherrie E. Voyles, Joseph M. D'Angelo, Gallon & Takacs, Toledo, OH, Lisa Miller, for Plaintiff.

Stanley J. Yoder, Weaner, Zimmerman, Bacon, Yoder & Hubbard, Defiance, OH, Defiance Metal Products Company, for Defendant.

Order

CARR, District Judge.

This is a civil rights case in which plaintiff alleges that Defiance Metal Products, Inc. (DMP), violated her rights under the Family Medical Leave Act (FMLA), 29 U.S.C § 2601, et seq., by terminating her employment and under the Ohio Civil Rights Act, Ohio Rev.Code § 4121.01, et seq., by exposing her to a hostile, offensive, and intimidating work environment based upon her gender. (Doc. 1). This court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367. Pending is plaintiff's motion for summary judgment with respect to her FMLA claim. (Doc. 17). For the following reasons, plaintiff's motion shall be granted.

On December 4, 1994, plaintiff was assigned by Interim Personnel (Interim), to defendant, DMP, on a temporary basis. At this time, plaintiff was given a full-time temporary position by defendant. This relationship continued until July 24, 1995, when plaintiff accepted a permanent full-time position with defendant, thus terminating her relationship with interim. Plaintiff maintained this position until she was terminated by defendant, citing absenteeism, on March 18, 1996.

On January 30, 1996, prior to her termination, plaintiff sought medical attention for pain in her back, neck and shoulder regions. On the same day, plaintiff received an Excuse From Work form and promptly submitted this form to defendant. Subsequent forms excusing plaintiff from work for the period up to and including March 28, 1996, were also submitted to defendant. On February 14, 1996, defendant sent plaintiff a letter indicating that it did not believe plaintiff was entitled to leave under FMLA because, in their opinion, plaintiff was not an eligible employee.

On March 26, 1997, plaintiff filed a claim in this court alleging that defendant's actions contravened her rights under FMLA. (Doc. 1). On September 4, 1997, plaintiff filed a motion for summary judgment with respect to her FMLA claim. (Doc. 17). Shortly thereafter, defendant submitted a memorandum in opposition to this motion, (Doc. 18), to which plaintiff replied. (Doc. 19).

Under FMLA, "an eligible employee shall be entitled to a total of twelve workweeks of leave during any twelve-month period ... [b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of the employee." 29 U.S.C. § 2612(a)(1)(D). An eligible employee is defined as an employee who has been employed for at least twelve months by the employer and at least 1250 hours with such employer during the twelve-month period. 29 U.S.C. § 2611(2)(A) Under FMLA, an employer is defined as "any person engaged in commerce or any industry or activity affecting commerce who employs 50 or more employees for each work day during each of 20 or more calendar workweeks in the current or preceding calendar year." 29 U.S.C. § 2611(4)(A)(i). Finally, an employer who interferes with an employee's rights under FMLA shall be liable to the eligible employee. 29 U.S.C. § 2616(a)(1). Therefore, in order to prevail on her claim, plaintiff must show four things: (1) she was an eligible employee, (2) she had a serious medical condition, (3) she was employed by a covered employer, and (4) the employer interfered with her rights under FMLA.

Defendant fails to bring forth any evidence refuting plaintiff's showing that she had a serious medical condition, that defendant is an employer as defined under FMLA, or that plaintiff was terminated due to absenteeism caused by the aforementioned medical condition, which constitutes an interference under FMLA. (Doc. 18). Accordingly, the only issue before this court is whether plaintiff was an eligible employee, as defined under FMLA, at the time she began her leave.

Plaintiff began working at defendant's Defiance facility, as assigned by Interim, on December 4, 1994, became a permanent, full-time employee of defendant on July 24, 1995, and was terminated on March 18, 1996. Therefore, the only question is whether the time during which plaintiff was classified as an employee of the temporary agency while working at defendant's facility can be used to determine the length of her employment with defendant for FMLA purposes.

Defendant contends that plaintiff is not an eligible employee because she has not been employed by defendant for a twelve-month period. Defendant argues that plaintiff's employment with it began when defendant hired her as a full-time permanent employee and not when, as an employee of Interim, she began working at defendant's Defiance facility.

Plaintiff's response is threefold. First, plaintiff responds that under the definition of "employ" incorporated into the FMLA, defendant was plaintiff's employer from the date she was assigned to defendant's Defiance facility, as a temporary employee, by Interim. Second, plaintiff argues that defendant and Interim were joint employers and, as such, plaintiff's employment with defendant is retroactive to the date she began working at defendant's Defiance facility. Third, plaintiff asserts that defendant failed to notify plaintiff of its decision that plaintiff's leave would not be classified as FMLA leave within the two-day guideline and, thus, defendant is estopped from denying plaintiff's claim.

First, plaintiff contends that defendant employed plaintiff for a twelve-month period and, as such, plaintiff is an eligible employee. Under FMLA, an eligible employee is "an employee who has been employed for at least twelve months by the employer with respect to whom the leave is requested." 29 U.S.C. § 2611(2)(A)(i). Because it is uncontested that defendant is the employer from whom leave was requested, the only question is whether plaintiff was "employed" by defendant for a twelve-month period.

The history of FMLA indicates that Congress intended the definitions of employ and employee to be broadly inclusive. S.Rep. No. 103-3 at 25 (1993). Thus, FMLA incorporates the definition of these terms from the Fair Labor Standards Act (FLSA). 29 U.S.C. § 2611(3). Under FLSA, the term employ is defined as "to suffer or permit" to work. 29 U.S.C. § 203. Furthermore, FLSA was not intended to exclude temporary workers. Mitchell v. Feinberg, 123 F.Supp. 899, 903 (E.D.N.Y.1954).

Plaintiff reported to work at defendant's Defiance facility from December 4, 1994 through January 30, 1996. As such, plaintiff was permitted to work at defendant's Defiance facility for a twelve-month period of time. The reclassification of plaintiff from temporary to permanent employee does not alter that time frame. Accordingly, plaintiff was "employed" by defendant, as that term is defined under FMLA, for the requisite twelve-month interval and, therefore, is an eligible employee.

Plaintiff alternatively argues that defendant and Interim were joint employers under FMLA and, as such, defendant employed plaintiff from the date plaintiff began working at defendant's Defiance facility and not from the date that defendant hired plaintiff as a permanent full-time employee.

Although FMLA does not discuss joint employment, the Department of Labor (DOL) discusses this term in its regulations promulgated under the authority of Congress. 29 U.S.C. § 2654. Under this regulation, "[w]here two or more businesses exercise some control over the work or working conditions of the employee, the businesses may be joint employers under FMLA." 29 CFR § 825.106(a). Also, joint employment exists "[w]here one employer acts directly or indirectly in the interest of the other employer in relation to the employee." 29 CFR § 825.106(a)(2). Moreover, "joint employment will ordinarily be found to exist when a temporary ... agency supplies employees to a second employer." 29 CFR § 825.106(b).

Although defendant contests the application of joint employment based on the regulation's use of the word "may," defendant has stated no facts which would indicate that the present situation is one in which the relationship would not be deemed a joint employment.¹ Furthermore, this court, viewing the facts in a light most favorable to the nonmoving party, finds no basis for a ruling that joint employment did not exist. While defendant may have been the secondary employer under the regulation, this is irrelevant because "[e]mployees jointly employed by two employers must be counted by both employers ... in determining employer coverage and employee eligibility." 29 CFR § 825.106(d).² Therefore, plaintiff's eligibility is determined from the date joint employment of plaintiff by defendant and Interim began, December 4, 1994 and, as such, plaintiff is an eligible employee under FMLA.

Finally, plaintiff argues that defendant's failure to notify plaintiff that she was not entitled to leave under FMLA within two days of receiving her notice for leave estops defendant from denying her such leave.

Under FMLA, when the need for leave is foreseeable, an eligible employee is required to give at least 30 days notice of the need for leave. 29 U.S.C. § 2612(e). Where the need for leave is not foreseeable, the employee is required to notify the employer of the need for leave as soon as practicable. Brannon v. OshKosh B'Gosh, Inc., 897 F.Supp. 1028, 1038 (M.D.Tenn.1995). When the employee gives less...