Frantz COUTARD, Plaintiff-Appellant, v. MUNICIPAL CREDIT UNION, Defendant-Appellee.
Docket No. 15-1113
United States Court of Appeals, Second Circuit.
August Term, 2015. Argued: February 10, 2016. Decided: February 9, 2017
DOUGLAS E. MOTZENBECKER, New York, New York (Gordon & Rees, New York, New York, on the brief), for Defendant-Appellee.
Before: KEARSE, POOLER, and SACK, Circuit Judges.
KEARSE, Circuit Judge:
Plaintiff Frantz Coutard appeals from a judgment of the United States District Court for the Eastern District of New York, Eric N. Vitaliano, Judge, dismissing his complaint alleging that his employer defendant Municipal Credit Union (MCU) denied him leave and terminated his employment in violation of the Family and Medical Leave Act of 1993 (FMLA or the Act),
I. BACKGROUND
Coutard sought leave under the FMLA to care for his grandfather Jean Manesson Dumond. According to Coutard, Dumond had raised Coutard as his son from before the age of four, after Coutard‘s father died, until Coutard was approximately 14. In January 2013 Dumond—who had suffered a stroke in 2011—lived with Coutard, was 82 years old, and suffered from a number of chronic medical conditions, including diabetes, hypertension, asthma, prostate cancer, high cholesterol, and heart disease. On the evening of January 22, 2013, Dumond was taken to a hospital by ambulance; he was diagnosed with bronchitis, and was discharged on January 23. Coutard, believing that Dumond was seriously ill and should not be left unattended, determined to stay home and care for him until Coutard could secure the assistance of a home health aide, and he
In this action alleging that MCU‘s actions interfered with and violated Coutard‘s right under the FMLA, both sides moved for summary judgment. Certain of the facts, and the applicability of certain basic legal principles, are undisputed.
It is undisputed that MCU, a financial institution, was an employer to which the FMLA applied throughout January 2013; that Coutard was employed by MCU from July 18, 2011, to February 4, 2013; and that in the 12 months preceding his January 23, 2013 request for FMLA leave, Coutard worked for MCU for more than 1250 hours and was within the FMLA‘s definition of employees who were eligible,
In granting MCU‘s motion for summary judgment, the district court also found it undisputed that
Coutard was raised by his maternal grandfather, Jean Manesson Dumond, after his biological father passed away before Coutard‘s fourth birthday. Dumond acted in all respects as [Coutard‘s] father—feeding him, clothing him, paying for his education, taking him to school, providing emotional and social support. In fact, Dumond referred to Coutard as his son.
Memorandum and Order dated April 9, 2015 (D.Ct. Ord.), at 1-2 & n.1 (internal quotation marks and citations to Plaintiff‘s Rule 56 Statement of Material Undisputed Facts (Coutard‘s Rule 56.1 Statement) omitted).
In January 2013, when Coutard requested FMLA leave to care for Dumond, it is undisputed that MCU informed Coutard that he could not take FMLA leave to care for his grandfather, because the statute does not apply to grandparents. . . . (Defendant‘s Statement of Undisputed Facts in Support of Its Motion for Summary Judgment (MCU‘s Rule 56.1 Statement) ¶ 12 (emphases added).) The district court stated as follows:
On January 23, 2013, following Dumond‘s bronchitis episode, plaintiff took leave from MCU to care more intensively for him. . . . To provide th[e necessary] level of care for his grandfather, Coutard absented himself from work from January 23, 2013 to February 4, 2013.
Prompted by his grandfather‘s bout with bronchitis, plaintiff requested to take FMLA leave from MCU, but it was denied on the ground that grandparents are not covered under the Act. Critically, although defendant never informed Coutard that grandparents could be covered under the FMLA, depending on the circumstances, Coutard admits that he never notified MCU, at the time he made the FMLA request or at any relevant point thereafter, that Dumond had raised him as if he were his father. Specifically, Coutard admits, he merely asked MCU whether he would be permitted to take leave for his grandfather and did not provide MCU with specific information about his personal circumstances or suggest that his grandfather might stand in loco parentis with him. Following his inquiry, though MCU did not permit him to take FMLA leave, it did advise him to apply for a short-term leave of absence under a separate MCU personnel policy. Coutard then took no
action, applying neither for the FMLA leave nor the short-term company leave. . . . . Because he was absent for more than two consecutive days without leave, on February 4, 2013, MCU notified him by letter that his employment was terminated due to job abandonment.
D.Ct. Ord. at 3-4 (internal quotation marks as well as citations to Coutard‘s Rule 56.1 Statement, MCU‘s Rule 56.1 Statement, Defendant‘s Counterstatement of Disputed Facts in Opposition to Plaintiff‘s Motion for Summary Judgment (MCU‘s Rule 56.1 Counterstatement), and Plaintiff‘s Counterstatement of Facts in Response to Defendant‘s Rule 56 Statement of Material Facts—omitted) (emphases added).
Coutard argued that he would have informed MCU about the in loco parentis relationship with his grandfather had he been asked or had he known of those FMLA provisions. However, he stated,
[d]efendant . . . never informed me that grandfathers are in fact covered by the FMLA if an in loco parentis relationship exists. If defendant or [its benefits manager with whom Coutard spoke] had informed me about the FMLA‘s in loco parentis coverage or had requested information as to whether grandpa Dumond had an in loco parentis relationship with me when I was a child, I would have gladly and promptly provided such information.
(Declaration of Frantz Coutard dated May 12, 2014, ¶ 23.)
In response, MCU took the position that it was not obligated to inform employees affirmatively of the FMLA‘s coverage of in loco parentis relationships. (See, e.g., MCU Memorandum of Law in Opposition to Coutard‘s Motion for Summary Judgment (MCU‘s Opposing Mem.) at 1-2, 7-8.) MCU pointed out that United States Department of Labor (DOL) regulations promulgated under the FMLA allowed employers to post a DOL form provided in Appendix C to
The district court agreed with MCU‘s position. It stated that in order to prevail on his FMLA claim, Coutard was required to prove five elements, to wit,
(1) that he [wa]s an eligible employee; (2) that defendant constitute[d] an employer covered by the Act; (3) that he was entitled to leave; (4) that he gave notice to his employer of his intention to take leave; and (5) that his employer denied him benefits that he was entitled to under the Act,
D.Ct. Ord. at 8, the only one in material controversy [being] the fourth, id. at 9. The court framed the dispositive issue as whether Coutard sufficiently notified MCU of Dumond‘s in loco parentis relationship with him and that it was on that basis he sought FMLA leave, id. It quoted a regulation that requires an employee to provide sufficient information to indicate that the FMLA may apply to the leave request, and requires the employer to seek any additional . . . information needed for it to determine whether the leave is FMLA-qualifying, id. at 11-12 (quoting
Under
29 C.F.R. § 825.303(b) , to seek leave for the unforeseeable illness of an immediate family member, such as a parent, an employee must provide sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request. Further, [w]hen an employee seeks leave for the first time for a FMLA-qualifying reason, the employee need not expressly assert rights under the FMLA or even mention the FMLA. Id. The employer will be expected to obtain any additional required information through informal means, and the employee has an obligation to respond to an employer‘s questions designed to determine whether an absence is potentially FMLA-qualifying. Id. . . . Similarly, pursuant to29 C.F.R. § 825.300(b) , an employer becomes obligated to notify the employee of his eligibility to take FMLA leave [w]hen an employee requests FMLA leave, or when the employer acquires knowledge that an employee‘s leave may be for an FMLA-qualifying reason. The employer‘s notification requirements come into effect once the employer has enough information to determine whether the leave is being taken for a FMLA-qualifying reason. Id. at§ 825.300(d)(1) ,(2) .In determining the adequacy of the notice given by the employee, [t]he critical question is whether the information imparted to the employer is sufficient to reasonably apprise it of the employee‘s request to take time off. . . . While an employer‘s duty to inquire may be predicated on statements made by the employee, the employer is not required to be clairvoyant. . . . An employer‘s duty to conduct further inquiry into a request for leave is triggered when an employee gives sufficient notice of a . . . need for the requested leave. . . .
. . . FMLA is not triggered unless the employee can later show that the employer should have reasonably understood, at the time of the request, that the expressed need for leave was covered by FMLA. . . .
Overall, an employee will be found to have failed to sufficiently explain his reasons for needed leave, and the burden of inquiry will not shift to the employer if he does not, at or before the time he requests leave, explain that his grandparent had raised him and it was that relationship, as opposed to the blood-grandfather relationship, that brought his request under the FMLA umbrella.
D.Ct. Ord. at 11-15 (footnote and other internal quotation marks omitted (emphases ours)).
Because Coutard did not inform MCU of the in loco parentis relationship when he requested FMLA leave, the court granted MCU‘s motion for summary judgment and dismissed the complaint. This appeal followed.
II. DISCUSSION
On appeal, Coutard contends principally that he provided MCU with sufficient information to permit it to understand that his leave request was potentially within the scope of the FMLA, and that if he did not provide sufficient information it was only because MCU failed in its obligations (a) to provide him with information as to his right to seek such leave under the Act‘s in loco parentis provision, and (b) to request further information from him. For the reasons that follow, we conclude that MCU
A. The FMLA and the Regulations Implementing It
The FMLA provides generally that a covered employer is required to grant an eligible employee up to a total of 12 weeks of leave during any 12-month period for personal or family needs indicated in the Act. See
An FMLA-covered employer includes any person engaged in commerce or in any industry or activity affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.
(i) for at least 12 months by the employer with respect to whom leave is requested under section 2612 of this title; and
(ii) for at least 1,250 hours of service with such employer during the previous 12-month period,
In general, with respect to Entitlement to leave, the FMLA provides in part that (subject to the employer‘s right to request certification from a health care provider, see
an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period for one or more of the following:
. . . .
(C) In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition,
The FMLA provides that covered employers must conspicuously post . . . a notice, to be prepared or approved by the [DOL], setting forth excerpts from, or summaries of, the pertinent provisions of th[e Act],
With respect to interference claims under the FMLA, our Court has formally adopt[ed] the standard regularly used by district courts of this Circuit—which was used by the district court in this case—that is, that to prevail on an interference claim,
The regulations in effect at the time Coutard requested FMLA leave from MCU, see
(a) Timing of notice. When the approximate timing of the need for leave is not foreseeable, an employee must provide notice to the employer as soon as practicable. . . .
(b) Content of notice. An employee shall provide sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request. Depending on the situation, such information may include whether the employee or the employee‘s family member is under the continuing care of a health care provider . . . or if the leave is for a family member that the condition renders the family member unable to perform daily activities. . . . When an employee seeks leave for the first time for a FMLA-qualifying reason, the employee need not expressly assert rights under the FMLA or even mention the FMLA. . . . The employer will be expected to obtain any additional required information through informal means.
The regulation in
(a) General notice. (1) Every employer covered by the FMLA is required to post and keep posted on its premises, in conspicuous places where employees are employed, a notice explaining the Act‘s provisions. . . .
. . . .
(3) If an FMLA-covered employer has any eligible employees, it shall also provide this general notice to each employee by including the notice in employee handbooks or other written guidance to employees concerning employee benefits or leave rights, if such written materials exist, or by distributing a copy of the general notice to each new employee upon hiring. In either case, distribution may be accomplished electronically.
(4) To meet the requirements of paragraph (a)(3) of this section, employers may duplicate the text of the notice contained in Appendix C of this part or
may use another format so long as the information provided includes, at a minimum, all of the information contained in that notice.
(b) Eligibility notice. (1) When an employee requests FMLA leave, or when the employer acquires knowledge that an employee‘s leave may be for an FMLA-qualifying reason, the employer must notify the employee of the employee‘s eligibility to take FMLA leave within five business days, absent extenuating circumstances.
Appendix C to Part 825—Notice to Employees of Rights under FMLA (WH Publication 1420), referred to above in
Under Basic Leave Entitlement, the DOL Form states, in pertinent part, as follows:
FMLA requires covered employers to provide up to 12 weeks of unpaid job-protected leave to eligible employees for the following reasons:
. . . .
● to care for the employee‘s spouse, son or daughter, or parent, who has a serious health condition. . . .
However, the DOL Form, after defining or describing, inter alia, eligibility requirements, protections, and serious health conditions, goes on to describe the notice responsibilities of employees and employers, in pertinent part, as follows:
Employee Responsibilities
Employees must provide sufficient information for the employer to determine if the leave may qualify for FMLA protection. . . .
Employer Responsibilities
Covered employers must inform employees requesting leave whether they are eligible under FMLA. If they are, the notice must specify any additional information required. . . .
Thus, the Responsibilities sections of the DOL-prescribed notice and the related regulations establish that if an eligible employee provides sufficient information for the employer reasonably to determine that the requested leave may qualify for FMLA protection, the employer must specify whether, and what, additional information is required for a determination of whether the employee is entitled to such leave.
In light of these regulations, we conclude that the obligation of an employee to give notice of his need for FMLA leave is not the obligation, imposed by the district court on Coutard, to provide the employer with all of the necessary details to permit a definitive determination of the FMLA‘s applicability at or before the time of the request. Rather, in the absence of a request for additional information, an employee has provided sufficient notice to his employer if that notice indicates reasonably that the FMLA may apply. See, e.g., Lichtenstein v. University of Pittsburgh Medical Center, 691 F.3d 294 (3d Cir. 2012) (interpreting the 2009 version of
In Lichtenstein, the district court had summarily dismissed an FMLA claim because the notice given by the employee had described a circumstance that might not qualify for FMLA leave, id. at 304. The Third Circuit reversed the grant of summary judgment. In considering the specificity of information employees must provide to adequately notify employers of unforeseeable FMLA leave, id. at 296, the court of appeals concluded that the District Court answered the wrong question. The question is not whether the information conveyed to the employer necessarily rules out non-FMLA scenarios. The question is whether the information allows an employer to reasonably determine whether the FMLA may apply.
We note that a prior version of
We conclude that the district court erred in ruling that Coutard was required, at the time of his request, to provide MCU with all of the information it needed to determine with certainty that his requested leave was within the FMLA.
MCU asks us to reach the contrary conclusion, relying principally on Sherrod v. Philadelphia Gas Works, 57 Fed. Appx. 68 (3d Cir. 2003), in which the Third Circuit upheld summary judgment dismissing an FMLA complaint because the plaintiff‘s request for leave in order to care for her grandmother had not specified that her grandmother had raised her, see id. at 72. The regulation applied in that case, however, was
Section 825.303, the regulation relevant to Coutard, required him initially, as discussed above, only to provide sufficient information to indicate that the FMLA may apply.
B. The Sufficiency of Coutard‘s Notice
There can be no serious question that an employee‘s request for leave to care for his seriously ill grandfather seeks leave that may qualify for FMLA protection. Although MCU argues that it was not required to inquire as to whether Coutard had a [u]nique relationship with his grandfather (MCU brief on appeal at 27), a grandparent‘s raising of a child in loco parentis is hardly unique. The very reason that Congress in the FMLA defined parent and son or daughter to include, respectively, an individual who stood in loco parentis to an employee when the employee was under 18 years of age,
Indeed, MCU, in support of its summary judgment motion, submitted a July 2010 DOL Fact Sheet #28C—attached to the Motzenbecker Declaration as Exhibit K—titled FMLA leave to care for a parent with a serious health condition on the basis of an in loco parentis relationship. That general-information document stated that [i]n enacting the FMLA, Congress recognized the changing needs of the
This Fact Sheet provides guidance on an employee‘s entitlement to FMLA leave to care for an individual who stood in loco parentis to the employee when the employee was a child. . . .
. . . .
Examples of in loco parentis
Examples of situations in which FMLA leave to care for a parent may be based on an in loco parentis relationship include:
. . . .
An employee may take leave to care for her grandmother with a serious health condition if the grandmother assumed responsibility for raising the employee after the death of her parents when the employee was a child.
DOL Fact Sheet #28C at 1-2 (emphasis added). Both the express provisions in the FMLA for coverage with respect to in loco parentis relationships and the express example of a grandmother in the publication available to employers on the DOL website—submitted to the district court by MCU—made it reasonable for MCU to understand that Coutard‘s request for leave in order to take care of his seriously ill grandfather might come within the FMLA.
We conclude that the district court erred in ruling that Coutard‘s notice to MCU was deficient because he did not specify the in loco parentis relationship with his grandfather at or before the time he requested FMLA leave, and in ruling that MCU was entitled as a matter of law to deny Coutard FMLA leave without requesting additional information.
C. MCU‘s Alternative Grounds for Affirmance
MCU contends that we can affirm the judgment dismissing the complaint on alternative grounds, including Coutard‘s alleged failure to provide certification that Dumond had a serious health condition and his failure to mitigate damages. These contentions are meritless.
In urging that the complaint was properly dismissed because Coutard failed to proffer medical proof of Dumond‘s health, MCU relies on the FMLA provision that [a]n employer may require that a request for leave under
In urging that Coutard failed to mitigate damages, MCU relies principally on the fact that he did not accept MCU‘s conditional offer of reinstatement. MCU‘s
MCU‘s other contentions in support of the grant of summary judgment in its favor have no greater merit and do not warrant discussion.
D. Coutard‘s Request for Partial Summary Judgment in His Favor
We also reject Coutard‘s contention that because MCU failed in its obligations (a) to provide him with notice of his right to seek FMLA leave under the Act‘s in loco parentis provision, and (b) to request further information from him upon his request for leave, he was entitled to partial summary judgment in his favor on the issue of liability. The fact that both sides have moved for summary judgment does not guarantee that there is no material issue of fact to be tried and that one side or the other is entitled to that relief. See, e.g., Eastman Machine Co. v. United States, 841 F.2d 469, 473 (2d Cir. 1988). In considering such motions and determining whether there is a genuine issue of fact to be tried, the court must evaluate each party‘s motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration. Schwabenbauer v. Board of Education, 667 F.2d 305, 314 (2d Cir. 1981); see, e.g., United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (the evidence must be viewed in the light most favorable to the party opposing the motion under consideration).
Here, in addition to the unresolved issue of whether the state of Dumond‘s health met FMLA standards, MCU did not in fact concede the truth of Coutard‘s assertions that Dumond had raised him in loco parentis. Rather, it objected to the in loco parentis characterization as asserting a conclusion of law (see MCU‘s Rule 56.1 Counterstatement ¶ 14) and denied knowledge or information as to the truth of the underlying factual assertions (see id. ¶¶ 17-24). Thus, although it was proper for the district court to accept Coutard‘s assertions as true when it was deciding the summary judgment motion of MCU, it could not properly accept them as true in deciding the motion by Coutard. A jury would not be compelled to accept such testimony by Coutard; his credibility is a matter for assessment by the factfinder; and his childhood relationship with Dumond remains one of the issues for trial.
CONCLUSION
We have considered all of MCU‘s arguments in support of the judgment and all of Coutard‘s arguments in support of his