Thom v. American Standard, Inc.

• Citation: 18 Wage & Hour Cas.2d (BNA) 1132,666 F.3d 968
• Decision Date: 26 March 2012
• Docket Number: No. 09–3507,09–3508.,09–3507
• Parties: Carl L. THOM, Jr., Plaintiff–Appellee/Cross–Appellant, v. AMERICAN STANDARD, INC., Defendant–Appellant/Cross–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

18 Wage & Hour Cas.2d (BNA) 1132

666 F.3d 968

Carl L. THOM, Jr., Plaintiff–Appellee/Cross–Appellant,

v.AMERICAN STANDARD, INC., Defendant–Appellant/Cross–Appellee.

No. 09–3507

09–3508.

United States Court of Appeals, Sixth Circuit.

Argued: Nov. 16, 2011.Decided and Filed: Jan. 20, 2012.Rehearing and Rehearing En Banc Denied March 26, 2012.

ARGUED: David A. Campbell III, Vorys, Sater, Seymour and Pease LLP, Cleveland, Ohio, for Appellant. John D. Franklin, Franklin & Greenfield, LLC, Toledo, Ohio, for Appellee. ON BRIEF: David A. Campbell III, Charles F. Billington III, Vorys, Sater, Seymour and Pease LLP, Cleveland, Ohio, G. Ross Bridgman, Vorys, Sater, Seymour and Pease LLP, Columbus, Ohio, for Appellant. John D. Franklin, Franklin & Greenfield, LLC, Toledo, Ohio, for Appellee.Before: MERRITT, CLAY, and GRIFFIN, Circuit Judges.

OPINION

MERRITT, Circuit Judge.

This is a FMLA employee-discharge case arising from confusion as to when an employee should return to work after his leave. The defendant, American Standard, Inc., appeals the district court's grant of partial summary judgment in favor of the plaintiff, Carl Thom, Jr., on his claim that American Standard interfered with his rights under 29 U.S.C. § 2612(a)(1)(D) of the Family and Medical Leave Act (FMLA) (the “interference” claim).¹ American Standard also disputes the district court's calculation of Thom's damages. Thom cross-appeals on the basis that the district court erred by not granting him the liquidated damages provided for in the FMLA (the “liquidated damages” claim), which calls for double damages except where the employer acted in “good faith” in discharging the employee.² We affirm on the interference claim and reverse on the liquidated damages claim.

I. Facts

Thom worked for American Standard in Tiffin, Ohio, as a molder from July 16, 1969, until he was discharged on June 17, 2005—a period of approximately 36 years. Because of a non-work-related shoulder injury that required surgery, Thom requested leave under the FMLA from April 27, 2005, until June 27, 2005. American Standard officially granted Thom's request for this time period in writing, the only company document setting out a return-to-work date. Dr. Brems performed surgery on Thom's shoulder on April 27. Thom's shoulder healed more quickly than anticipated. After a follow-up appointment, Dr. Brems wrote a note that cleared Thom for light duty work beginning on May 31 and set June 13 as the probable date on which Thom could return for unrestricted work. But when Thom attempted to resume light work on May 31, Amy Baker, in charge of Human Resources for American Standard, sent him home because she said that the company did not permit employees with non-work-related injuries to perform light duty work temporarily after FMLA leave.

On June 14, Amy Baker contacted Thom by phone because he failed to come to work on June 13. Thom responded that he was experiencing increased pain in his shoulder and would return to work on June 27, the end date of his approved leave. Although Thom promised to get a doctor's note extending his time table for recovery, he was unable to secure a timely appointment with Dr. Brems. He did schedule an appointment with his primary care physician, Dr. Vela, for the morning of June 17 and left a message with Baker notifying her of his progress. After the appointment, Thom went directly to work with a doctor's note requesting an extension of his leave until July 18. By the time he reached work, however, American Standard had already terminated his employment. American Standard had counted every day from June 13 to 17 as an unexcused absence; and, as a result, Thom had exceeded the absences allowed by the company. The district court granted partial summary judgment to Thom on the interference claim and reserved the question of damages for trial. The parties, however, waived their rights to a jury trial and submitted the question of damages to the judge. The district court awarded Thom $99,960 in attorney fees, $2,732.90 in costs, and $104,354.85 in back pay. The court below further ordered that American Standard change Thom's termination date from June 17, 2005, to December 31, 2007, so that Thom would be eligible for his expected pension and retiree health benefits for both himself and his spouse. If this change was impossible, the court required American Standard to pay Thom a monthly annuity covering the difference between his expected pension and the pension that he actually received because of his early termination (a difference of 36%). The district court denied Thom statutory liquidated damages because it found that, despite violating the FMLA, American Standard acted both in “good faith” and with reasonable grounds for its actions when it discharged Thom.

II. Standard of Review

The district court decided most of the issues now on appeal at summary judgment; this court reviews those decisions de novo. Int'l Union v. Cummins, Inc., 434 F.3d 478, 483 (6th Cir.2006). A district court should “grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). On the issue of damages, for which the district court acted as the fact finder, this court reviews any questions of fact for clear error. Grand Traverse Band of Ottawa and Chippewa Indians v. Dir., Mich. Dep't of Natural Res., 141 F.3d 635, 638 (6th Cir.1998). Finally, this court reviews the district court's decision to deny Thom statutory liquidated damages for “abuse of discretion ... exercised consistently with the strong presumption under the [FMLA] statute in favor of doubling [the damages].” Elwell v. Univ. Hosps. Home Care Servs., 276 F.3d 832, 840 (6th Cir.2002) (internal quotations omitted).

III. Thom's Interference Claim

American Standard asks this court to reverse the district court's partial grant of summary judgment in favor of Thom on his claim of FMLA interference and to either enter judgment in American Standard's favor or remand the claim for a jury trial. See Thom v. Am. Standard, 562 F.Supp.2d 949, 955 (N.D.Ohio 2008). In support of his claim, Thom asserts that American Standard failed to adequately notify him of its method for calculating FMLA leave because it did not inform him in writing or otherwise that company policy was to use a “rolling” method of leave calculation.

A. Notice of American Standard's FMLA Calculation Method

The FMLA stipulates that, “an eligible employee shall be entitled to a total of 12 work weeks of leave during any 12–month period ... because 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)(D). Employers, for their part, are “permitted to choose any one of ... [four] methods for determining the ‘12–month period’ in which the 12 weeks of leave entitlement ... occurs.” 29 C.F.R. § 825.200(b). Two of these four methods, namely, the “rolling” method and the “calendar” method, are pertinent to this case. The “rolling” method calculates an employee's leave year “backward from the date an employee uses any FMLA leave.” Id. Using this method, Thom's leave would have expired on June 13. Appellant's First Br. 32. By contrast, under the “calendar” method, which renders an employee eligible for 12 weeks of FMLA leave each calendar year, Thom's allowed leave would have extended theoretically through July 14. American Standard terminated Thom for unexcused absences on June 17. Thus, Thom needs the “calendar” method to apply. At no time throughout the FMLA process did the Company mention to Thom that his leave time would be governed by a “rolling” 12–month period. The only written document he received from the company stated that his leave would expire on June 27. He was only notified that American Standard had accelerated his return-to-work date on June 14, after it had already elapsed the day before. The first time Thom was given actual notice that the Company was using a “rolling” method requiring him to return to work on an earlier date was after he filed his lawsuit in this case when the defense lawyers raised the rolling method as a defense.

American Standard now claims that it has always used the “rolling” method for calculating FMLA leave and that Thom should have known this fact. Id. at 38. It further contends that because two key officers in Thom's union provided affidavits during the lawsuit stating that American Standard historically maintained a policy of applying the “rolling” method, their knowledge is imputed to Thom “through simple agency law.” Id. In rejecting American Standard's constructive notice arguments, the district court concluded that an employer is required to take affirmative steps to inform employees of its selected method for calculating leave. See Thom, 562 F.Supp.2d at 953 (citing Bachelder v. Am. West Airlines, Inc., 259 F.3d 1112, 1117 (9th Cir.2001); Austin v. Fuel Sys., 379 F.Supp.2d 884, 894 (W.D.Mich.2004)). We agree that employers should inform their employees in writing of which method they will use to calculate the FMLA leave year. This standard is consistent with the principles of fairness and general clarity, and applying it, American Standard's notice to Thom fell decidedly short. Although American Standard did internally amend its FMLA leave policy in March 2005 to indicate that it would now calculate employee leave according to the “rolling” method, it did not give Thom actual notice of this changed policy or in any way tell him that his official leave date would expire earlier than June 27, the date the company had approved. Consequently, Thom was entitled to rely on the calendar method and the date of June 27 that the company had given in writing. Neither Amy Baxter nor anyone else from her department or elsewhere advised him of any change. See 29 C.F.R. § 825.200(e).³

Despite the fact that the Company approved ...