Woodman v. Miesel Sysco Food Co.

• Decision Date: 20 February 2003
• Docket Number: Docket No. 226001.
• Citation: 254 Mich. App. 159,657 N.W.2d 122
• Parties: James WOODMAN, Plaintiff-Appellee/Cross-Appellant, v. MIESEL SYSCO FOOD SERVICE COMPANY and Kenneth Angelosanto, Defendants-Appellants/Cross-Appellees.
• Court: Court of Appeal of Michigan — District of US

657 N.W.2d 122

254 Mich. App. 159

James WOODMAN, Plaintiff-Appellee/Cross-Appellant, v. MIESEL SYSCO FOOD SERVICE COMPANY and Kenneth Angelosanto, Defendants-Appellants/Cross-Appellees.

Docket No. 226001.

Court of Appeals of Michigan.

Submitted September 11, 2002, at Detroit.

Decided November 26, 2002, at 9:00 a.m.

Released for Publication February 20, 2003.

Dwight Teachworth, Bingham Farms, for the plaintiff.

Cummings, McClorey, Davis & Acho, P.L.C. (by Ronald G. Acho), Livonia, for the defendants.

Before: O'CONNELL, P.J., and RICHARD ALLEN GRIFFIN and HOEKSTRA, JJ.

RICHARD ALLEN GRIFFIN, J.

Defendants appeal as of right the order of the circuit court granting summary disposition in favor of plaintiff on his claim alleging a violation of the Family and Medical Leave Act (FMLA), 29 U.S.C. 2611 et seq., awarding plaintiff back pay damages of $59,331.94, and reinstating plaintiff to his job as a truck driver. Plaintiff cross appeals, asserting that the trial court erred in denying his request for liquidated damages and in concluding he was not discharged in retaliation for asserting his rights under the FMLA. We affirm.

I

On October 9, 1995, plaintiff, a truck driver who delivered groceries for defendant Miesel Sysco Food Service Company (Miesel), was making a delivery at work when he began to experience chest pains. Plaintiff called Miesel's dispatcher and advised him of his symptoms, but continued to unload his truck until defendant Kenneth Angelosanto, plaintiff's supervisor, arrived with another employee to relieve plaintiff. Plaintiff refused a ride to the hospital and, after retrieving his car at Miesel's plant, picked up his girlfriend and drove himself to the emergency room. At the hospital, plaintiff was given a physical exam and an electrocardiogram (EKG), and medication was administered. There was no apparent heart damage and plaintiff was released from the hospital later that same day. However, plaintiff was told not to return to work until after he had a stress test, which was scheduled in approximately ten days. The written "Personal Discharge Plan" given to plaintiff by the examining physician indicated:

No work until stress test.

* * *

Your doctor has determined that you have chest pain of a minor or stable nature, presumably from the heart. Based on your current symptoms and evaluation, there is a low probability of a heart attack.... Most people with new, changing, or prolonged symptoms need hospitalization until the diagnosis is certain. [Emphasis added.]

Plaintiff did not immediately take this written discharge plan to Miesel following his visit to the emergency room, later offering several explanations regarding why he did not take the hospital form to Miesel. However, there appears to be no dispute that plaintiff did inform Miesel, through its employees, that he would be unable to work until he had the stress test. Plaintiff testified during his deposition that he telephoned Miesel's dispatcher the same evening that he was released from the emergency room and informed the dispatcher that he was going to be off work on medical leave until the stress test was administered. He testified that he spoke again to a dispatcher on October 10 or 11 to remind Miesel that he would not be working until the stress test was done. Plaintiff further testified that he telephoned one of Miesel's employees (Toni Kollios) in its human resources office on October 11 to discuss insurance issues related to the stress test and, on October 13, he called "Debbie" Williams in human resources regarding his absence from work.

Contrary to plaintiff's recollection, Debbie Williams testified that she told plaintiff that she "really had to have something to show why he was not at work." Miesel alleged that attempts were made to contact plaintiff and tell him that he needed to submit the doctor's note, but Miesel could not reach plaintiff because he had traveled out of town to winterize his cottage. On October 19, plaintiff delivered to Miesel the emergency room medical discharge plan that specified "No work until stress test."

On October 23, plaintiff was given a stress test that revealed no heart conditions and he was released to return to work the next day. However, plaintiff, a union member, learned that his employment had already been terminated on October 16 for allegedly violating two rules of the collective bargaining agreement: (1) unauthorized, unexcused absenteeism, and (2) an absence for three successive days without written medical notification.

Plaintiff brought suit against defendants alleging a violation of the FMLA along with other claims.

The circuit court ultimately granted plaintiff's motion for partial summary disposition and denied defendants' motion pertaining to the FMLA claim, finding no genuine issue of material fact that defendants, by terminating plaintiff's employment, violated the provisions of the FMLA as a matter of law.¹ An evidentiary hearing was held to determine the extent of plaintiff's damages stemming from the FMLA violation, and the trial court subsequently awarded plaintiff $59,331.94 in damages, attorney fees, and also ordered defendants to reinstate plaintiff to his "original position." Defendants now appeal and plaintiff cross appeals. Both appeals involve only issues related to plaintiff's claim under the FMLA.

II

Defendants first contend that the lower court erred in denying their motion for summary disposition and granting plaintiff's motion because plaintiff failed to give defendants adequate notice of his need for an unpaid leave of absence as required by the FMLA, and, further, that his employment was terminated for just cause separate and apart from any obligation under the FMLA. Although our state appellate courts have not yet had occasion to address issues concerning notice requirements under the FMLA, "review by this Court of the federal law regarding this federal statute is proper." Smith v. Goodwill Industries of West Michigan, Inc., 243 Mich.App. 438, 443, 622 N.W.2d 337 (2000). See also Young v. Young, 211 Mich.App. 446, 448, n. 1, 536 N.W.2d 254 (1995). With respect to our review:

Where there is no conflict, state courts are bound by the holdings of federal courts on federal questions. Schueler v. Weintrob, 360 Mich. 621, 105 N.W.2d 42 (1960); Kocsis v. Pierce, 192 Mich.App. 92, 98, 480 N.W.2d 598 (1991). However, [when the] issue has divided the circuits of the federal court of appeals, we are free to choose the most appropriate view. Schueler, supra at 634, 105 N.W.2d 42; Bruno v. Dept' of Treasury, 157 Mich.App. 122, 130, 403 N.W.2d 519 (1987). [Id. at 450, 536 N.W.2d 254.]

This Court reviews de novo a trial court's decision on a motion for summary disposition. Smith, supra at 442, 622 N.W.2d 337. A motion for summary disposition pursuant to MCR 2.116(C)(10) tests the factual support of a claim. The motion should be granted if the evidence demonstrates that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. MacDonald v. PKT, Inc., 464 Mich. 322, 332, 628 N.W.2d 33 (2001). In deciding a motion under MCR 2.116(C)(10), the trial court considers the pleadings, affidavits, depositions, admissions, or other documentary evidence in a light most favorable to the nonmoving party to determine whether a genuine issue of fact exists. Ritchie-Gamester v. Berkley, 461 Mich. 73, 76, 597 N.W.2d 517 (1999).

Enacted in 1993, the FMLA represents an attempt to reconcile "the demands of the workplace with the needs of families...." 29 U.S.C. 2601(b)(1). Thus, while Congress sought to provide employees the right to "take reasonable leave for medical reasons," it also sought to do so "in a manner that accommodates the legitimate interests of employers." 29 U.S.C. 2601(b)(2) and (3). The FMLA applies to private-sector employers of fifty or more employees. 29 U.S.C. 2611(4). An eligible employee is entitled to twelve work weeks of unpaid leave during any twelve-month period because of, among other reasons, "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)(1)(D). At the conclusion of a qualified leave period, the employee is entitled to reinstatement to his former position, or to an equivalent one, with the same terms and benefits. 29 U.S.C. 2614(a). The FMLA makes it "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under" the FMLA. 29 U.S.C. 2615(a)(1). The threshold issue raised by defendants involves the adequacy of the notice allegedly given by plaintiff regarding his need for FMLA leave time. When the need for FMLA leave is foreseeable, an employee must provide the employer with no less than thirty days advance notice. 29 U.S.C. 2612(e)(1) and (e)(2)(B); 29 C.F.R. 825.302(a). However, where, as in the instant case, the need for FMLA leave is unforeseeable, the FMLA itself is silent regarding notice requirements, but the regulations implementing the act address the issue. In this regard, the FMLA grants the secretary of labor authority to promulgate regulations implementing the act. See 29 U.S.C. 2654. "Regulations promulgated pursuant to such an express delegation of authority `are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.' " Miller v. AT & T Corp., 250 F.3d 820, 833 (C.A.4, 2001), quoting Chevron, U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Thus, we examine those regulations in interpreting its provisions. Summerville v. Esco Co. Ltd. Partnership, 52 F.Supp.2d 804, 810 (W.D.Mich., 1999).

Specifically, 29 C.F.R. 825.303 provides:

(a) When the approximate timing of the need for leave is not foreseeable, an employee should give notice to the employer of the need for FMLA leave as soon as practicable under the

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