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Moore v. GPS Hospitality Partners IV, LLC

United States District Court, S.D. Alabama, Southern Division

June 3, 2019




         This matter is before the Court on the defendant's motion for summary judgment and the plaintiff's motion for partial summary judgment. (Docs. 50, 51). The parties have submitted briefs and evidentiary materials in support of their respective positions, (Docs. 50-52, 54-55, 58-59), and the motions are ripe for resolution. After careful consideration, the Court concludes that the defendant's motion is due to be denied and the plaintiff's motion granted in part and denied in part.


         According to the amended complaint, (Doc. 9), the plaintiff was employed by the defendant, the owner of a number of Burger King restaurants. The plaintiff sought FMLA leave in February 2017 to care for her hospitalized mother but did not receive such leave and instead was terminated days later. The complaint asserts claims for interference with the plaintiff's FMLA rights and retaliation for exercising those rights. The defendant seeks summary judgment as to both claims. The plaintiff seeks summary judgment as to her interference claim.


         Summary judgment should be granted only if “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). The party seeking summary judgment bears “the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The moving party may meet its burden in either of two ways: (1) by “negating an element of the non-moving party's claim”; or (2) by “point[ing] to materials on file that demonstrate that the party bearing the burden of proof at trial will not be able to meet that burden.” Id. “Even after Celotex it is never enough simply to state that the non-moving party cannot meet its burden at trial.” Id.; accord Mullins v. Crowell, 228 F.3d 1305, 1313 (11th Cir. 2000); Sammons v. Taylor, 967 F.2d 1533, 1538 (11th Cir. 1992).

         “When the moving party has the burden of proof at trial, that party must show affirmatively the absence of a genuine issue of material fact: it must support its motion with credible evidence ... that would entitle it to a directed verdict if not controverted at trial. [citation omitted] In other words, the moving party must show that, on all the essential elements of its case on which it bears the burden of proof, no reasonable jury could find for the nonmoving party.” United States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir. 1991) (en banc) (emphasis in original); accord Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993).

         “If the party moving for summary judgment fails to discharge the initial burden, then the motion must be denied and the court need not consider what, if any, showing the non-movant has made.” Fitzpatrick, 2 F.3d at 1116; accord Mullins, 228 F.3d at 1313; Clark, 929 F.2d at 608.

         “If, however, the movant carries the initial summary judgment burden ..., the responsibility then devolves upon the non-movant to show the existence of a genuine issue of material fact.” Fitzpatrick, 2 F.3d at 1116. “If the nonmoving party fails to make ‘a sufficient showing on an essential element of her case with respect to which she has the burden of proof,' the moving party is entitled to summary judgment.” Clark, 929 F.2d at 608 (quoting Celotex Corp. v. Catrett, 477 U.S. 317 (1986)) (footnote omitted); see also Fed. R. Civ. P. 56(e)(2) (“If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may … consider the fact undisputed for purposes of the motion ….”).

         In deciding a motion for summary judgment, “[t]he evidence, and all reasonable inferences, must be viewed in the light most favorable to the nonmovant ….” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003).

         I. Interference Claim.

         “It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter.” 29 U.S.C. § 2615(a)(1). “An interference claim has two elements: (1) the employee was entitled to a benefit under the FMLA; and (2) her employer denied her that benefit.” White v. Beltram Edge Tool Supply, Inc., 789 F.3d 1188, 1191 (11th Cir. 2015).

         The first element identified in White subsumes several sub-elements. As relevant to this case, these include the following: (1) that the defendant is a covered entity; (2) that the plaintiff is eligible for FMLA benefits; (3) that the plaintiff sought leave for a qualifying reason; and (4) that the plaintiff provided notice meeting certain criteria.[1] The defendant's argument targets only this final sub-element of the first element; however, because the plaintiff moves for summary judgment on her interference claim, the Court must consider all elements of that claim.

         A. Covered Entity.

         The defendant must be an “employer” that is “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.” 29 U.S.C. § 2611(4)(A)(i). The defendant admits that this requirement is satisfied. (Doc. 9 at 2, ¶ 7; Doc. 15 at 2, ¶ 7).

         B. Eligibility.

         To be eligible to receive FMLA benefits, the plaintiff must have “been employed … for at least 12 months by the employer with respect to whom leave is requested … and … for at least 1, 250 hours of service with such employer during the previous 12-month period.” 29 U.S.C. § 2611(2)(A). In addition, the plaintiff must be employed at a worksite where, or within 75 miles of which, the defendant employs at least 50 employees. Id. § 2611(2)(B)(ii). The defendant admits that all parts of these requirement but one are satisfied. (Doc. 9 at 2, ¶¶ 5, 7; Doc. 15 at 2, ¶¶ 5, 7).

         The defendant in its answer does not admit that the plaintiff had been employed by the defendant for at least twelve months, but neither does it dispute the plaintiff's assertion that she is an eligible employee. (Doc. 50 at 13). It is uncontroverted that the defendant became the plaintiff's employer in December 2016, less than two months before the plaintiff was terminated.[2] It is also uncontroverted, however, that the defendant in December 2016 purchased 190 Burger King restaurants, including the plaintiff's store, from Strategic Solutions (“Strategic”), and that the defendant retained the employees of Strategic, transitioning them directly into employment by the defendant, complete with retention of entitlement to benefits, including FMLA eligibility.[3]

         The term “employer” includes “any successor in interest of an employer.” 29 U.S.C. § 2611(4)(A)(ii)(II). The relevant factors include: (1) substantial continuity of the same business operations; (2) use of the same plant; (3) continuity of the work force; (4) similarity of jobs and working conditions; (5) similarity of supervisory personnel; (6) similarity in machinery, equipment, and production methods; (7) similarity of products or services; and (8) the ability of the predecessor to provide relief. 29 C.F.R. § 825.107(a).

         The first seven factors all plainly support successor status: the defendant purchased almost 200 Burger King restaurants and retained all personnel and equipment to provide the same products in the same manner and by the same means at the same locations. The final factor is relevant only when the successor is sought to be held liable for the infractions of the predecessor and so is not relevant here.[4]

         “A successor which meets FMLA's coverage criteria must count periods of employment and hours of service with the predecessor for purposes of determining employee eligibility for FMLA leave.” 29 C.F.R. § 825.107(c). Because the defendant is Strategic's successor, and because the defendant meets the FMLA's coverage criteria, the plaintiff's length of employment with Strategic must be added to her two months with the defendant to determine her eligibility. It is uncontroverted that the plaintiff was employed by the defendant's predecessor for several years before the defendant's acquisition.[5] The plaintiff therefore satisfies the FMLA's eligibility requirements.

         C. Qualifying Reason.

         An eligible employee may receive FMLA leave “in order to care for the … parent … of the employee, if such … parent has a serious health condition.” 29 U.S.C. § 2612(a)(1)(C). A “serious health condition” includes “an illness, injury, impairment, or physical or mental condition that involves … inpatient care in a hospital ….” Id. § 2611(11)(A). It is uncontroverted that the plaintiff's mother was hospitalized from February 5, 2017 to well past the termination of the plaintiff's employment and that the plaintiff provided care to her mother throughout this period.[6] The plaintiff therefore sought leave for a qualifying reason.

         D. Employee Notice.

         A plaintiff “must also give her employer notice of her need for leave, … and she can state an interference claim only if she gave proper notice ….” White, 789 F.3d at 1195. Notice “must satisfy two criteria - timing and content, ” and the parameters of these criteria depend on whether the need for leave is “foreseeable” or “unforeseeable.” Id.

         The defendant does not challenge the content or timing of the plaintiff's notice. Instead, the defendant argues the plaintiff gave no lawful notice because she did not follow the procedures set forth in the defendant's FMLA policy. The defendant asserts no other argument in support of its motion for summary judgment as to the plaintiff's interference claim.

         In the case of foreseeable leave:

An employer may require an employee to comply with the employer's usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. For example, … [a]n employee … may be required by an employer's policy to contact a specific individual. … Where an employee does not comply with the employer's usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied.

29 C.F.R. § 825.302(d).

         A substantively similar provision applies to unforeseeable leave:

[A]n employee must comply with the employer's usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. For example, an employer may require employees to call a designated number or a specific individual to request leave. … If an employee does not comply with the employer's usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied.

Id. § 825.303(c).

         1. “Usual and customary notice and procedural requirements for requesting leave.”

         As discussed in Part I.E, it is uncontroverted that the plaintiff repeatedly contacted her store manager (Owes) and the district manager (Morrissette) to request leave to care for her hospitalized mother. The defendant argues these communications did not suffice because the plaintiff did not also notify Human Resources of her need for leave. The defendant's FMLA policy, as expressed in its employee handbook, includes the statement that “[e]mployees should notify their supervisor and Human Resources for approval for a leave”; the policy later states that “[a]ll employees requesting FMLA leave must provide Human Resources with verbal or written notice of the need for the leave.”[7]

         The defendant assumes that an employer's “usual and customary notice and procedural requirements for requesting leave” means, when the employer has an FMLA policy addressing such matters, the employer's requirements for requesting FMLA leave specifically, even if those requirements differ from, and are more onerous than, its requirements for requesting leave in general. The defendant cites a number of cases that indulge the same assumption without subjecting it to critical analysis.[8] For reasons that follow, the Court rejects this reading of the regulations and concludes that the relevant notice and procedural requirements are those governing leave generally, not FMLA leave specifically.

         As always, analysis begins with the text. The regulations speak in terms of the usual and customary requirements for requesting “leave, ” not those for requesting “FMLA leave.” The Department of Labor (“DOL”) knew the difference, as it uses the terms “FMLA leave, ” “FMLA-qualifying leave” and “FMLA-protected leave” at least ten times in Section 825.302. The regulation also uses the unadorned “leave” repeatedly, but the context makes clear what is intended. Subsections (a), (b) and (c) are each introduced with the phrase, “FMLA leave” or “FMLA-qualifying leave, ” and subsequent usages of “leave” within those subsections plainly refer to the FMLA leave mentioned initially. Subsection (f) addresses intermittent or reduced-schedule leave and so obviously addresses FMLA leave.[9]

         Subsection (d) is different, as it begins with five consecutive references to “leave, ” the first of which is the presently relevant grant of permission to enforce compliance with the employer's usual and customary requirements “for requesting leave.” As subsections (a), (b) and (c) reflect, if these requirements were those for requesting “FMLA leave” specifically, subsection (d) would have followed the pattern of the preceding subsections and employed that phrase to introduce the provision. Moreover, the first usage of “FMLA leave” in subsection (d) appears in the following sentence:

Unusual circumstances would include situations such as when an employee is unable to comply with the employer's policy that requests for leave should be made by contacting a specific number because on the day the employee needs to provide notice of his or her need for FMLA leave there is no one to answer the call-in number and the voice mail box is full.

29 C.F.R. § 825.302(d) (emphasis added). This phraseology clearly distinguishes between the employer's policy (leave generally) and the employee's request (FMLA leave specifically).

         “In interpreting statutory text, we ordinarily presume that the use of different words is purposeful and evinces an intention to convey a different meaning.” Abbott v. Abbott, 560 U.S. 1, 33 (2010) (Stevens, J., dissenting). The agency's use of “leave” rather than “FMLA leave” in subsection (d) must be presumed to be purposeful and to reflect its intention that the usual and customary requirements an employer may enforce in the FMLA context are those generally applicable to other forms of leave.

         Under Section 825.303, “in the case of an emergency requiring leave because of a FMLA-qualifying reason, written advance notice pursuant to an employer's internal rules and procedures may not be required when FMLA leave is involved.” 29 C.F.R. § 825.303(c). This language similarly reflects that the employer's “usual and customary notice and procedural requirements for requesting leave” (its internal rules and procedures) means those applying both “when FMLA leave is involved” and when other forms of leave are involved.

         Other regulatory provisions further support the proposition that the relevant employer requirements are those applicable to leave in general. First, “[a]n employee giving notice of the need for FMLA leave does not need to expressly assert rights under the Act or even mention the FMLA to meet his or her obligation to provide notice ….” 29 C.F.R. § 825.301(b). This principle is repeated for both foreseeable leave, id. § 825.302(c), and unforeseeable leave. Id. § 825.303(b). These provisions protect an employee from being denied FMLA leave based on the employee's lack of understanding that her need for leave is potentially FMLA-qualifying. It would seem a curious regime that would grant such protection only to effectively negate it by requiring the employee to follow an explicitly FMLA-specific notice procedure - which she would do only if she understood that her leave could be FMLA-qualifying.

         Second, “the employer may take appropriate action under its internal rules and procedures for failure to follow its usual and customary notification rules, absent unusual circumstances, as long as the actions are taken in a manner that does not discriminate against employees taking FMLA leave.” 29 C.F.R. § 825.304(e). It would seem difficult to discriminate in the enforcement of notification rules unless the same rules apply to both FMLA leave and non-FMLA leave.

         The language of the regulations readily supports a reading that restricts the “usual and customary notice and procedural requirements for requesting leave” to those requirements applicable to leave generally and that does not permit employers to deny leave based on a failure to comply with more stringent notice and procedural requirements applicable to FMLA requests but not to other forms of leave. Even could the regulations also reasonably be construed otherwise, the agency's understanding as to the scope of the regulations resolves any ambiguity against the defendant's position.

         “Because the salary-basis test is a creature of the Secretary's own regulations, his interpretation of it is, under our jurisprudence, controlling unless plainly erroneous or inconsistent with the regulation.” Auer v. Robbins, 519 U.S. 452, 461 (1997) (internal quotes omitted). This is especially so when “there is no indication that [the agency's] current view is a change from prior practice or a post hoc justification adopted in response to litigation.” Decker v. Northwest Environmental Defense Center, 568 U.S. 597, 614 (2013). “Auer deference is warranted only when the language of the regulation is ambiguous.” Christensen v. Harris County, 529 U.S. 576, 588 (2000). In sum, “Auer deference provides that when a regulation is ambiguous, we defer to the promulgating agency's interpretation of that regulation, unless its construction is plainly erroneous or inconsistent with the regulation[, ] [a]s long as the agency's interpretation … reflects [its] fair and considered judgment on the matter in question.” United States v. Phifer, 909 F.3d 372, 382-83 (11th Cir. 2018) (internal quotes omitted).

         Courts may look to a regulation's preamble to resolve ambiguity in the regulation. E.g., Fidelity Federal Savings and Loan Association v. de la Cuesta, 458 U.S. 141, 158 & n.13 (1982); Watkins v. City of Montgomery, 775 F.3d 1280, 1284 (11th Cir. 2014). This only makes sense, given that the preamble evidences the agency's contemporaneous understanding of its rules. Halo v. Yale Health Plan, 819 F.3d 42, 52-53 (2nd Cir. 2016).

         By its terms, the FMLA became effective on August 5, 1993. DOL issued its interim final rule in June 1993, to take effect on the Act's effective date.[10]Section 825.302(d) provided that an employer “may also require an employee to comply with the employer's usual and customary notice and procedural requirements for requesting leave without pay.”[11] Because “[t]he FMLA requires only unpaid leave, ” Nevada Department of Human Resources v. Hibbs, 538 U.S. 721, 739 (2003), “without pay” would be hopelessly redundant were “leave without pay” construed to mean “FMLA leave without pay.” Because courts should “avoid a reading which renders some words altogether redundant, ” Gustafson v. Alloyd Co., 513 U.S. 561, 574 (1995), the relevant notice and procedural requirements must be those applicable to leave without pay generally and not those specially applicable to FMLA leave.

         The agency's final rule was published in January 1995.[12] With respect to Section 825.302(d), the final rule traced the interim final rule but deleted the concluding words, “without pay.”[13] The preamble to Section 825.302 specifies that:

The employee is required to provide notice of need to take FMLA leave to the same person(s) within the company the employee ordinarily contacts to request other forms of leave, usually the employee's supervisor. It is the responsibility of the supervisor either to refer the employee … to the appropriate person, or to alert that person to the employee's notice. Once the employee has provided notice to the supervisor or other appropriate person in the usual manner, the employee's obligation to provide notice of the need for FMLA leave has been fulfilled.[14]

         This language makes clear that the notice requirements the employer may enforce are the “usual” ones applicable to “other forms of leave.”

         Section 825.302(g) of the 1995 regulation confirms the importance of the employer's generally applicable notice requirements. When an employee substitutes paid vacation leave for unpaid FMLA leave “and the employer's paid vacation leave plan imposes no prior notification requirements for taking such vacation leave, no advance notice may be required for the FMLA leave taken in these circumstances”; similarly, when an employee takes unpaid FMLA leave, “FMLA notice requirements would apply to a period of unpaid FMLA leave, unless the employer imposes lesser notice requirements on employees taking leave without pay.”[15] In both cases, the relevant employer notice rules are the employer's generally applicable ones, not special ones designed specifically for FMLA leave.[16]

         In 2007, DOL solicited public comment regarding the Act and the effectiveness of its implementing regulations.[17] Commenters expressed frustration with then-current Section 825.302(d)'s prohibition on delaying or denying FMLA leave for failure to follow the employer's usual and customary notice and procedural requirements for requesting leave, which the agency distilled as seeking permission to enforce generally applicable leave requirements in the FMLA context.[18]

         The following year, DOL published a notice of proposed amendments to its FMLA regulations.[19] The preamble to proposed Section 825.302(d) states that the amended version “retains the current rule providing that an employer may require an employee to comply with the employer's usual notice and procedural requirements for calling in absences and requesting leave, ”[20] which it equated with “employer absence policies” and “normal leave policies”[21]; each phrasing indicates generally applicable policies. The agency also acknowledged that “call-in procedures, which are enforced routinely outside the FMLA context, can serve as a crucial element of an attendance program, ”[22] again reflecting that the agency was contemplating requirements of an employer's entire “attendance program, ” not special requirements for requesting FMLA leave.

         The preamble to proposed Section 825.303(c) (a new provision designed to parallel Section 825.302(d) with respect to unforeseeable leave) states that, if “an employer requires that workers needing unscheduled leave call a designated call-in number, ” absent unusual circumstances the employer “may treat the employee's failure to comply with the call-in rule in the same manner it would normally handle such an infraction”[23]; that is, the same call-in rule applies to all unscheduled absences, not just FMLA unscheduled absences.

         Finally, the preamble to proposed Section 825.304 states that “an employer can take disciplinary action for the employee's violation of the employer's internal call-in procedures, as long as such procedures and discipline are applied equally to employees taking leave for non-FMLA reasons ….”[24] Explicitly, then, the “usual and customary notice and procedural requirements for requesting leave” that an employer may enforce in the FMLA context are limited to those that are also applicable in the non-FMLA context.

         The agency issued its final rule in November 2008, effective January 2009, [25] giving Sections 825.302(d) and 825.303(c) their current form. The preamble summarized responses to the proposed changes to the former section as follows: employees objected to allowing employers to delay or deny FMLA leave for failure to comply with the employer's usual requirements for requesting leave, while employers “argued that employees should be required to follow the same procedures for requesting leave regardless of whether their need for leave was covered by the FMLA.”[26] The agency agreed with the employers' position: “[C]all-in procedures are routinely enforced in the workplace and are critical to an employer's ability to ensure appropriate staffing levels. … The Department believes that employers should be able to enforce non-discriminatory call-in procedures” in the FMLA context.[27] Both quotes reflect that the only internal procedures an employer may enforce with respect to FMLA leave are those also applicable to other forms of leave.

         Based on all these demonstrations of DOL's contemporaneous, fair and considered judgment as to the meaning of its regulations, which understanding is neither plainly erroneous nor inconsistent with the regulations themselves, the Court concludes that any ambiguity in the scope of Sections 825.302(d) and 825.303(c) is to be resolved in favor of the construction that the “usual and customary notice and procedural requirements for requesting leave” that an employer may require an employee to comply with, the violation of which permits the employer to delay or deny FMLA leave, are limited to those requirements applicable to leave generally and do not extend to more stringent requirements the employer imposes on FMLA leave requests in particular.

         Other courts have concluded or assumed that Sections 825.302(d) and 825.303(c) refer to an employer's generally applicable leave requirements. See, e.g., Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 1008 (10th Cir. 2011) (“[A]n employer generally does not violate the FMLA if it terminates an employee for failing to comply with a policy requiring notice of absences, even if the absences that the employee failed to report were protected by the FMLA”; the Court applied the employer's general attendance policy rather than its FMLA policy) (emphasis in original); Bones v. Honeywell International, Inc., 366 F.3d 869, 878 (10th Cir. 2004) (“Bones' request for FMLA leave does not shelter her from the obligation, which is the same as that of any other Honeywell employee, to comply with Honeywell's … absence policy.”); Lewis v. Holsum, Inc., 278 F.3d 706, 710 (7th Cir. 2002) (“Holsum's [generally applicable] company rules and Attendance Policy are ‘usual and customary' requirements.”). The Court concurs and offers herein a rationale supporting this conclusion.

         It is not clear whether the plaintiff's leave should be classified as foreseeable or unforeseeable. The distinction is immaterial for present purposes, because the defendant does not require an employee to contact Human Resources for any absence other than FMLA, whether scheduled or unscheduled.[28] Because the defendant could not properly refuse the plaintiff FMLA leave for failure to contact Human Resources, its motion for summary judgment must fail.

         2. “Unusual circumstances.”

         Even were Sections 825.302(d) and 825.303(c) to be read as the defendant desires, its motion would still be denied. Both sections preclude the employer from delaying or denying FMLA leave when “unusual circumstances justify” the employee's failure to comply with the employer's usual and customary notice and procedural requirements for leave. The plaintiff argues that this case presents unusual circumstances justifying her failure to contact Human Resources. The Court agrees.

         The following facts are uncontroverted. In late November 2016, as it was finalizing its acquisition of 190 stores, the defendant required its newly acquired employees to complete and/or sign a number of online documents. These included at least: a job application; a W-4; an I-9; payroll documents; and the 31-page employee handbook.[29] Employees in the plaintiff's store were required to come to the office, log in and complete all these tasks while on the clock and working a shift, and they took an average of ten minutes to complete all these assignments; the defendant did not instruct Owes to ensure that employees had enough time to read the handbook, and Owes did not tell the plaintiff to take the necessary time.[30]The plaintiff did not read the handbook or its 2½-page FMLA policy, because she did not have time to do so, since she was running a shift; indeed, it was not possible to complete all the paperwork and read the handbook in ten minutes.[31]The plaintiff did electronically sign or initial the final page of the handbook eight times, including to acknowledge that she had received a copy of the handbook and that she understood her responsibility to read and comply with its policies.[32] She did not, however, actually receive a physical copy of the handbook.[33] Nor did the defendant conduct any training in the plaintiff's store regarding the handbook in general or the FMLA policy in particular.[34]

         When completing her online paperwork, the plaintiff had the option to print out the handbook but did not do so; neither did any other employee of the plaintiff's store, to Owes' knowledge.[35] At some point during the plaintiff's employment, Owes printed a copy of the handbook and left it in the store.[36] If employees create a user name and password when completing ...

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