Marlene Dawkins v. Fulton County Government

COX, Circuit Before WILSON VOORHEES,* Judge. District Judges, and PER CURIAM: appeal on challenges Marlene sum- granting court’s order the district Fulton the Defendants mary judgment for Nair, Stokes, Vijay Ste- County, Andrew (collec- Yearby, and Louis D’Souza phanie “Defendants”) Family Medi- tively (“FMLA”) claim. Act retaliation cal Leave de- claims that the Defendants ninety-day temporary moted her from a leaving for work assignment retaliation ailing an uncle. While Dawkins to care for covered that this absence was not admits FMLA, nevertheless con- under the she equitably are tends that the Defendants common law from estopped under federal because disputing her her FMLA leave. manager approved prima fails to establish Because Dawkins common law facie case of federal court’s or- we affirm the district estoppel, com- deciding without whether federal der equitable estoppel applies law mon FMLA. Sr., Starkey, Starkey Rory Keven The GA, Firm, LLC, Atlanta, for Plain-

Law AND PROCEDURAL I. FACTS tiff-Appellant. HISTORY Daw- Miles, Jr., County employed Marlene Law Fulton Patrick Pace

William Burwell, Manager. Maintenance PC, Building kins as a Nwakaego Kaye Woodard * Carolina, Voorhees, designation. sitting by North L. United States Honorable Richard Judge for the Western District of District 51.) County September On Fulton leave.” 83-3 at request reassigned po- request, said, was not an FMLA temporarily Yearby Dawkins to County because Fulton only approve Mechanic can Building Manager sition of leave as FMLA leave after receiving “pa- A ninety days. temporary percent ten sala- perwork employee] that [an would take to ry accompanied position. increase the new (Id. a doctor.” reassignment, Two weeks after the on Oc- tober Dawkins learned that her County’s Under Fulton policy, terminally uncle was ill and sent Andrew employee complete must an application manager, an email requesting and obtain written certification from a emergency subject leave line provider health care before FMLA leave Stephanie Yearby, “FMLA.” Fulton Coun- approved. can be According policy, to the Services, ty’s Deputy Director of General (1) FMLA may granted leave for: Jones, County and Barnett the Fulton Per- (2) child; birth of a placement of a Director, copied sonnel were on the email. (3) adoption care; child for or foster to The email reads: child, spouse, care for a parent or with a (4) condition; serious

“I am health requesting emergency leave from and to care employee’s for an to own serious health con- October 2007 November dad, Dawkins, terminally dition. Care for a ill my uncle is assist Kenneth not covered. while he surrounding deals issues terminally Additionally his ill brother. I days email, Four after Dawkins’s on Oc- requesting package am for FMLA a[n] County tober Fulton rescinded to be sent to: [Florida address].” temporary Dawkins’s reassignment due to (Dkt.94-24.) her absence. Dawkins returned to work on November and was reinstated to later, replied “Ap- Two hours Stokes original position Building Mainte- proved.” 65-17 at Neither Year- Manager. question nance She did not by nor copied Jones was on Stokes’s re- decision or complain County about Fulton sponse. parties dispute The whether rescinding her reassignment. Almost five approving Stokes was request Dawkins’s later, months Dawkins filled an EEOC emergency for or leave whether Stokes complaint on an During unrelated issue. meant that Dawkins’s leave was covered the course of the investigation, EEOC she court, by the FMLA. In the district Daw- complained being also about removed from testify kins did not that she understood temporary assignment. investiga- response be an eligibili- Stokes’s FMLA County tor that pay recommended Fulton ty determination or that she relied on his wages Dawkins in full for the she deciding email when to leave work. Year- salary have made in addition her normal by testified if that she had read Dawkins’s if temporary assignment had not been it, email when she received she would not County paid rescinded. Fulton then Daw- have it request understood as a for FMLA kins $827.90.1 reading during leave. After the email deposition, she “request- events, said Dawkins was As a result of these and others no, ing packet, requesting but appeal, not relevant on filed a requesting emergency complaint leave. She was against alleging the Defendants Although dispute ry damages plus $827.90 Dawkins does not that she in the amount of already compensatory damages, has received apparently interest. This is the amount argument at oral that Dawkins contended un- controversy in this case. der the FMLA she should also receive statuto- determination violations, magistrate judge’s retalia- Title VII constitutional true facts retaliation, in- aware of the intentional was not tion, Stokes eligibility. Dawkins Specifically, regarding distress. her FMLA emotional fliction of judge’s County challenge magistrate Fulton re- did not Dawkins contended pro- estoppel had nev- ninety-day temporary conclusion scinded leaving for work FMLA in the Elev- applied in retaliation motion er been volun- ailing uncle. Dawkins modifications not care for her some enth Circuit. With claim, one of the constitutional district tarily dismissed relevant to the of emo- intentional infliction claims and the and recommenda- adopted report court The Defendants summary claim. tional distress granted the Defendants’ tion all summary judgment on then moved all claims. judgment motion on partial claims, moved for and Dawkins appeals. FMLA retalia- judgment on her

summary the Defendants’ response In tion claim. APPEAL II. ON ISSUE brief, argued court that the district Dawkins contends “[djefendants should for the first time summary in the Defendants granting erred denying that Ms. Daw- from estopped claim FMLA retaliation judgment on her qualifying kins’ leave was [s] equita- should be because the Defendants where, one, evidence that there is no denying her FMLA eli- bly estopped from two, valid and approval was not Stokes’[s] gibility. any gave Dawkins they never Ms. where had not been counted notice that her leave REVIEW III. STANDARD OF quota- at This as FMLA.” entirety of Dawkins’s represents tion grant a court’s We review district in the district court. estoppel argument summary judgment de novo or denial of fa light in the most summary viewing all evidence court referred the The district Dol non-moving party. magistrate judge. a vorable judgment motion to Communities, Inc., phin v. WCI LLC judge report and magistrate The issued “All rea grant- F.3d that recommended recommendation arising from the undis inferences summary judgment sonable ing the Defendants’ made in favor of puted retal- facts should be all claims. On the FMLA motion on nonmovant, an inference based on claim, but magistrate judge reasoned iation conjecture is not reason speculation and qualify that Dawkins’s absence did not Fund, Ltd. v. Bank able.” Avenue CLO magistrate judge The rec- FMLA leave. (11th Am., NA, 1287, 1294 Eleventh Circuit has nev- ognized that the Cir.2013). moving party bears the equitable estoppel expand applied er absences, of a establishing the absence burden of coverage unqualified fact and that it genuine issue of material any in event the elements and that judgment as a matter law. in is entitled to were not met this case because this Id. Once the moving party meets true facts not aware of the Stokes was burden, non-moving party bears regarding Dawkins’s FMLA on each es presenting burden of evidence saying the email she was when he sent claim, that a of its such objected to the sential element “approved.”2 Busby JRHBWRealty, infra, facts.” See 2. As discussed one element of federal Cir.2008). (11th equitable is that "the common law party estopped aware of the true to be explain jury why could rule its favor. Dawkins does we reasonable burden, nonmoving this equi- Id. To meet should create a federal common law beyond pleadings “go must coverage. table to extend FMLA showing facts designate specific ... Furthermore, only contends on genuine issue for trial.” Celo- there is second, appeal that she meets “aware- Catrett, Corp. tex facts,” ness of true element of 91 L.Ed.2d 265 S.Ct. estoppel and has never addressed the oth- omitted). (1986) (citations er four elements. After careful review of record, and with the benefit of oral IV. DISCUSSION argument, we conclude that Dawkins does the De contends not meet the “reasonable and detrimental against fendants retaliated violation reliance” element. Because Dawkins does by rescinding ninety-day of the FMLA element, not meet least this we do not she took temporary promotion because remaining four elements in discuss uncle. ailing leave to care for “To opinion and need not decide at this retaliation, prove FMLA must [Dawkins] ap- time whether should employer intentionally [her] show ply to the FMLA. exercising against discriminated [her] right.” Martin v. Brevard correctly granted A. The district court Sch., Cnty. Pub. since Dawkins Cir.2008). the FMLA Recognizing does not contend that she reason- absence, does not cover her Dawkins does ably any relied on appeal on that she “exer contend misrepresentation. Rather, right.” an FMLA she cise[ed] law, federal common a party Under argues her FMLA retaliation claim is mer itorious, being asserting estoppel must show reasonable despite outside the statute’s eq misrepresen the and detrimental reliance on a protection, because Defendants are uitably denying from tation. Dawkins did not contend in the estopped eligibili her court, ty for FMLA leave. While we have never district and does not on contend any extend estoppel appeal, misrepresen decided can that she relied on coverage FMLA to otherwise uncovered tation. work, from

absences the elements of feder reliance, To show detrimental the al common law in this plaintiff generally must show that the de “(1) party estopped circuit are: the to be change fendant’s actions caused her to (2) facts; misrepresented par material the Heckler v. position Cmty. the worse. ty to of true estopped aware the Inc., Cnty., Health Servs. (3) facts; party estopped the to be intend of Crawford U.S. 104 S.Ct. misrepresentation ed that the be acted on (1984). L.Ed.2d While detrimental reli or had reason to believe the assert (4) misrepresenta ance can still exist when a it; ing rely on the plaintiff tion causes the to refrain from know, party asserting did not action, plaintiff must known, facts; taking mitigating nor should it have the true (5) damages still assert a causal link and show party asserting misrepresentation. from the Nat'l Cos. reasonably relied on the Joseph’s Hosp. Ben. Plan v. misrepresentation.” Busby v. Health St. JRHBW (11th Atlanta, Inc., Realty, Cir.2008). Cir.1991), abrogated grounds on other misrepresenta on his that Dawkins relied Corp., Med. 524 U.S. v. Moore

Geissal (1998). tion, suggests in the record 141 L.Ed.2d 64 the evidence 118 S.Ct. reasonably Additionally, plaintiff cannot have been unrea Dawkins’s reliance would agent of an misrepresentation rely on the taken previously Dawkins had sonable. agent 31.) is unautho- (Dkt. if knows the plaintiff at In her FMLA leave. 94-34 64-65, Heckler, at rized. re specifically email Heckler, Supreme In S.Ct. at package” “FMLA addition quested an participant a Medicare held that Court (Dkt. 94-24.) Dawkins emergency leave. reasonably rely on an intermedi- could not knew deposition that she testified par- advice when the ary’s reimbursement her to County’s protocol required Fulton have known that ticipant knew or should paperwork complete packet authority to make intermediary lacked (Dkt. at leave. 94-34 doctor for FMLA policy Id. determinations. 30.) Dawkins was correct. Fulton Coun case, requires completion never asserts that ty’s policy In this any misrepresentation, much and a doctor’s certifica paperwork she relied on FMLA that her reliance was both reasonable can be less tion before determinations contrast, In the evidence and detrimental. Because Daw made. did not suggests County’s in the record familiar with Fulton kins was rely any misrepresentation. Although policy, any reliance on Stokes’s County, in Fulton Geor- Dawkins worked been alleged approval email would have County to send the gia, admission, she asked Fulton By her own unreasonable. paperwork to her uncle’s eligibility pa completion Dawkins knew that (Dkt.94-24.) This address in Florida. and the certification were perwork doctor’s already means that Dawkins had decided necessary for an FMLA leave go work and to Flori- that she would leave determination. requested paper-

da before she had even whether her leave was work determine may the district court’s We affirm FMLA. Consequently, covered under the any supported by the ground decision “on rely any misrepresen- not Dawkins did Oy Mosley, record.” Kernel Records Rather, already planned tation. she had 1294, Ac 694 F.3d regardless to leave work of her correctly cordingly, the district court receiving and before Stokes’s re- eligibility County’s summary judg granted Fulton Jay Dee ply email. See Dobrowski v. Con- Dawkins failed to ment motion because (6th tractors, Inc., 551, of an element of provide evidence essential Cir.2009) (holding plaintiff that a did not claim. rely misrepresentation on the defendant’s already planned to take leave when he had defendants, As to the individual surgery and scheduled a before the defen- correctly in the district court held accor incorrectly him the leave dant told was in prior dance with our decision Wascura FMLA). covered under the (11th Cir.1999), Carver, 169 F.3d 683 in Furthermore, public officials sued an individual assuming for even subject capacity employers were not argument the sake of that Stokes did mis liability under the FMLA.3 Dawkins’s FMLA and individual represent subject liability the FMLA. Neverthe- appeal does not chal- under 3. Dawkins’s brief on less, ap- parties lenge Dawkins made them the district court’s decision employers peal. individual defendants were not ly granted summary judg- the Defendants’ court’s sum- the district B. Because correct, motion and we affirm. ment mary judgment is we order federal not decide whether need AFFIRMED. equitable estoppel is

common law WILSON, Judge, dissenting: Circuit applicable FMLA. to the I for two reasons. dissent re requests Dawkins The relief First, majority, “[ajssuming for the to create a new federal this court quire argument sake of that federal common law applicable law common FMLA,” equitable estoppel applies when we should the FMLA. The times affirms because Daw- are “few new federal common law create kins fails to demonstrate that she reason- O’Melveny Myers & and restricted.” ably upon rep- relied FDIC, S.Ct. provided to her that she resentation (1994). 2055, 129 Resolution L.Ed.2d disagree. take FMLA I entitled to leave. require in us to this issue this case would produced sufficient evidence of questions that have been answer reasonable and detrimental reliance to sur- and are not neces by parties briefed summary judgment. vive The record re- case. “Decid sary to the resolution of this flects that on October by parties real ing presented real issues sent an e-mail to Andrew her su- judicial making decision real time focuses pervisor, subject with the line “FMLA.” In making speculative pro ways e-mail, requested time off so questions hypothetical about nouncements help that she could her father take care of Robertson, Corp. v. cannot.” McDonald’s copied Stephanie ill uncle. Year- She Cir.1998) (11th Jones, Barnett General Ser- (Carnes, concurring). This issue is J. Director. The e- vices Human Resources at a later appropriately more addressed mail read: (de Martin, 543 F.3d at 1266 time. See leave from requesting emergency I am equitable es clining to consider whether 2[,] 2007, October 2007 to November applied to the FMLA when the toppel Dawkins, dad, my Kenneth to assist met); were not Brun estoppel elements surrounding while he deals with issues Telecomms., v. BellSouth gart Additionally, terminally his ill brother. Cir.2000) (same); n. 4 requesting package I am an FMLA Corp., 147 F.3d at 1315 McDonald’s to: be sent (Carnes, concurring) (noting that dicta J. temporary address]. [Dawkins’s declining join to dicta in is less reliable and receiving request, the Two hours after impression). an issue of first e-mail: responded in a one-word Stokes “Approved.” V. CONCLUSION subsequent- Dawkins took her leave provide failed to evidence or higher paying a ly reassignment lost her to any misrep- even assert that she relied in the Viewing this evidence position. Assuming Dawkins, for the sake of ar- resentation. there is a light favorable to most equitable that federal common law gument of fact as to whether she genuine issue FMLA, upon applies reasonably relied about prima employer’s misrepresentation facie case of her has not asserted Any leave. Thus, to take FMLA court correct- her entitlement estoppel. the district (8th Cir.2010) (holding that that the about the inferences 899-901 disagreement prevent company doctrine is from the facts should be available should be drawn challenging employee’s right from an by ultimate fact-finder. And resolved the bring noting a claim under the FMLA and about the facts at any reasonable doubts requires that all the doctrine is that the summary judgment stage should be the believed, “employee reasonably based on Dawkins, the non- resolved in favor of circumstances, totality that the Glade, City movant. Burton v. Belle for FMLA employer’s approval was (11th Cir.), 1175, reh’g 178 F.3d de- leave”); Minard ITC Deltacom (11th Cir.1999). nied, F.3d 525 Commc’ns, Inc., 352, 447 F.3d determining than Secondly, rather Cir.2006) (holding employee that if the rea equitable estoppel is viable in the whether sonably representation by relies on a clarifying context and its elements detriment, employer and acts to her an them, majority applying before deter- who, employer “without intent to deceive not mines that Dawkins has satisfied representa makes a definite but erroneous hypothetical hypothetical elements of a employee requested tion” to the that the it that claim. Were clear had eligible, leave is FMLA and who has rea meet an essential element of the failed to that employee son believe claim, majority’s attempt to avoid mak- rely representation, may on that be es- ing appropriate. new law would be Be- topped arguing from that the leave was a genuine dispute cause this case turns on eligible); Duty Prop v. Norton-Alcoa of fact about one of the essential elements (8th Cir.2002) pants, 293 F.3d 493-94 claim, however, this Dawkins’s (affirming the district decision court’s clarifying case cannot resolved without equitably estop employer an from contest in this circuit. the law an ing employee’s eligibility); Ko All of the other circuits to address the Assocs., Radiology sakow v. New Rochelle equitable issue have concluded that (2d Cir.2001) (af P.C., 274 F.3d applies doctrine in FMLA em firming the application district court’s ployment discrimination cases when its el employer to “an who ements are met. Those circuits include employee remains silent when its an Second, Fifth, Eighth. Sixth and See plans nounces that she to take medical Contractors, Jay Dee Dobrowski leave,” because “mislead[s] the silence (6th Cir.2009) (“Our 571 F.3d employee believing into protect she is recognizes FMLA”).1 circuit in certain circum ed Consistent with equitable estoppel applies circuits, stances to em these we should take opportu ployer regarding employee’s statements nity recognize to both estop eligibility....”); Murphy see also pel applies clarify FMLA cases and its LTL, Inc., Nat’l FedEx 618 F.3d elements.2 First, Seventh, Ninth, (1st Cir.2002); 1. The and Tenth Cir Marchish ultimately County, cuits have considered but refused eck v. San Mateo apply the doctrine because its elements Scis., were not satisfied. See Peters v. Gilead Inc., 594, (7th Cir.2008) Beyond 533 F.3d 598-99 2. the fundamental issue of whether available, (noting "suggest equitable estoppel that Seventh Circuit caselaw is we must also equitable estoppel might, appropriate ed in an determine whether of true "awareness facts case,” (internal quotation by party estopped” be available marks to be is an element of Potter, 1098, omitted)); Bass 522 F.3d 1106 the claim in the FMLA context. Outside of Container, Inc., (10th Cir.2008); context, Plumley recognized v. S. the FMLA this court

1093 Plaintiffs-Appellees, reverse the I would proceedings. further for and remand (BAHAMAS) LTD., Defendant-

NCL Appellant.

No. 12-15204. Appeals, States of United Court Eleventh Circuit. 1,

Oct. WALLACE, Palmer, Glenford

Abraham James, Nash, George

Adrian John Barrant, each on their own

Everol

behalf, of all other and on behalf employees and former

current

Norwegian Lines Limited sim Cruise

ilarly situated, Haughton, Pauline Inc., County, equitable estoppel 467 U.S. 104 five-element claim. See Crawford (1984)].”). S.Ct. 81 L.Ed.2d Busby Realty, v. JRHBW 513 F.3d (11th Cir.2008) (including that the element is awareness of Even if it is assumed necessary, the district court failed to consider by party estopped true to be facts reasonably have whether Stokes should element). County v. Brevard an In Martin ineligible was for FMLA known that Dawkins Schools, announcing whether Public without knowledge.” by See leave "constructive applicable N.Y., Myers v. Fid. & Cas. Co. claims, this court that the five ele- assumed (11th Cir.1985) (stating n. 9 recognized Busby ments would be neces- estoppel person against is to whom the "[t]he sary to make out the claim. 543 F.3d apply knowl must have actual or constructive circuits that Other added) (emphasis (quoting edge of the facts” estoppel recognized equitable in FMLA have Indus., Inc., F.Supp. Choat v. Rome element from cases eliminate at least one (N.D.Ga.1978))); Co. v. see also Trane See, Dobrowski, Busby. e.g., 571 F.3d at 556 Co., Constr. Whitehurst-Lassen ("The estoppel rule con- two versions of (11th Cir.1989) ("A asserting party Supreme tain a manifest difference. knowledge theory must have neither require the rule does not Court’s version of of, opportunity means or nor a reasonable party asserting the to show that of, knowledge in dis obtaining the facts party was aware of the 'true facts’ other it as pute.”). The Fifth Circuit has described for the state- or that other intended something apprehension that "more than ap- upon____ The better ment to be relied wrong knowl might but less than actual Airlines, Inc., requirements equi- proach is to follow the edge.” Luckett Delta 1999) (internal Supreme Court table endorsed Cir. omitted). quotation Community marks in Heckler Health Services [v.

Case Details

Case Name: Marlene Dawkins v. Fulton County Government

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Sep 30, 2013

Citation: 733 F.3d 1084

Docket Number: 12-11951

Court Abbreviation: 11th Cir.