Date: 05-08-2007

Case Style: Carla Mutchler v. Dunlap Memorial Hospital, et al.

Case Number: 06-3132

Judge: Clay

Court: United States Court of Appeals for the Sixth Circuit on appeal from the Northern District of Ohio (Summit County)

Plaintiff's Attorney:

David Van Gaasbeek, North Canton, Ohio, for Appellant.

Defendant's Attorney:

Karen Soehnlen of McQueen, KRUGLIAK, WILKINS, GRIFFITHS & DOUGHERTY CO., L.P.A., Canton, Ohio, for Appellees.

Description:

Plaintiff, Carla Mutchler, appeals the district court's grant of summary judgment to Defendants, Dunlap Memorial Hospital and Kathy Loede, on her claim that Defendants violated the Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601 et seq. Plaintiff's appeal rests on two claims: first, that she met the "hours of service" requirement for purposes of FMLA eligibility; and second, that Defendants should be equitably estopped from denying her eligibility. For the reasons that follow, we AFFIRM.

BACKGROUND

Plaintiff began working as a registered nurse at Defendant Dunlap Memorial Hospital ("Defendant Hospital") in September 1997. On May 29, 2002, Plaintiff transferred into Defendant Hospital's so-called "Weekender Program." Through the Weekender Program, participating nurses work two twelve-hour shifts each weekend and one assigned holiday during the year. If the participating nurse works the full forty-eight scheduled hours in a two week period, Defendant Hospital compensates that nurse for sixty-eight hours of work.1 Additionally, nurses participating in the Weekender Program qualify to receive full time benefits.

On April 24, 2004, Plaintiff requested medical leave to obtain treatment for severe bilateral carpel tunnel syndrome. She sought leave between May 13, 2004 and June 7, 2004, her "expected return date," noting that surgery on her second wrist would occur in June or July.2 In a response dated May 4, 2004, Defendant Kathy Loede ("Defendant Loede"), the human resources manager at Defendant Hospital, granted Plaintiff's request for medical leave, finding her eligible for FMLA leave and calculating her entitlement "on the basis of . . . a "rolling" 12-month period measured backward from the date" leave begins. (J.A. at 196) At that time, Defendant Hospital did not typically verify the hours worked when processing FMLA-protected leave requests. Rather, it apparently relied upon the requesting employee's certification that they had worked the requisite hours.

Plaintiff sustained open carpal tunnel release surgery on her left wrist on May 13, 2004. On or about May 19, 2004, however, Defendant Loede discovered that Plaintiff had not worked the requisite 1,250 hours to qualify for FMLA-protected leave. Rather, Defendant Hospital's payroll records revealed that Plaintiff had worked only 1,242.8 hours in the year preceding the leave.3 Accordingly, on May 21, 2004, Defendant Loede contacted Plaintiff to inform her that she fell short of the hours of service required for FMLA eligibility. Defendant Loede told Plaintiff that Defendant Hospital would honor the FMLA leave through June 7, 2004, but that Plaintiff did not qualify for additional FMLA-protected leave and would receive only non-FMLA leave for any time not previously requested. Nevertheless, on June 1, 2004, Plaintiff scheduled her second surgery for June 3, 2004. Plaintiff's physician estimated that Plaintiff would be prepared to return to work July 5, 2004.4

Following her surgery on June 3, 2004, Plaintiff signed a "Request for Leave Not Subject to F.M.L.A." to cover the period from June 3, 2004 to July 5, 2004. In a letter dated June 7, 2004, Defendant Loede informed Plaintiff that "[b]ecause this leave [requested June 3] is for a new health condition and for a new period of leave associated with that health condition, it has been processed in that manner." (J.A. at 421-22; 507) Defendant Hospital treated Plaintiff's second period of leave as not protected under the FMLA. On June 8, 2004, when Plaintiff failed to return to work, Defendant Hospital assigned Ms. Kiko to Plaintiff's previous position in the Weekender Program. Upon her return to work, Plaintiff found that her position in the Weekender Program had been given to Ms. Kiko, and that Defendants had scheduled Plaintiff to work weekdays. Plaintiff protested the change and sought reassignment to the Weekender Program, but her efforts were to no avail.

Plaintiff filed suit in the Wayne County, Ohio Court of Common Pleas, alleging violations of the FMLA. Defendants removed the suit to federal district court and, subsequently, filed a motion to dismiss. The district court denied Defendants' motion to dismiss. Following discovery, Defendants filed a motion for summary judgment, which the district court granted. The district court concluded that Plaintiff did not meet the definition of "eligible employee" under the FMLA. Additionally, the district court found that Plaintiff could not successfully invoke principles of equitable estoppel, either as set forth in the common law or in the FMLA's implementing regulation at 29 C.F.R. § 825.110(d). Plaintiff timely appealed.

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The FMLA implementing regulations clarify that

[w]hether an employee has worked the minimum 1,250 hours of service is determined according to the principles established under the [FLSA] for determining compensable hours of work (see 29 CFR Part 785). The determining factor is the number of hours an employee has worked for the employer within the meaning of the FLSA. . . . Any accurate accounting of actual hours worked under FLSA's principles may be used.

29 C.F.R. § 825.110(c) (emphasis added). Accordingly, the regulations set forth at 29 C.F.R. Part 785 guide the determination of hours worked for purposes of the FLSA, as well as our analysis of the FMLA's "hours of service" requirement. See id.; Family and Medical Leave Act, 60 Fed. Reg. 2,180, 2,186 (Jan. 6, 1995) (codified at 29 C.F.R. § 825.100 et seq.) ("[T]he minimum hours of service requirement is meant to be construed in a manner consistent with the legal principles established for determining hours of work for payment of overtime compensation under § 7 of the FLSA and regulations under the act, . . . specifically 29 CFR Part 785 . . . and . . . 29 CFR 778.103."); S. Rep. No. 103-3, at 23 (1993), as reprinted in 1993 U.S.C.C.A.N. 3, 25 (noting the "hours of service" requirement should be construed "under section 7 of the FLSA and regulations under that act, 29 CFR Part 785 (see 29 CFR 778.103)"); see also 29 C.F.R. § 778.103 ("The principles for determining what hours are hours worked within the meaning of the Act are discussed in Part 785 of this chapter.").

The regulations at 29 C.F.R. § 785.1 et seq. "discuss[] the principles involved in determining what constitutes working time." 29 C.F.R. § 785.1. The principles set forth therein, though few, direct a finding that "all hours are hours worked which the employee is required to give his employer." Id. at § 785.7 (citing Armour & Co. v. Wantock, 323 U.S. 126 (1944); Skidmore v. Swift & Co., 323 U.S. 134 (1944)); see also id. at § 785.6 (noting that § 3(o) of the FLSA partially defines "hours worked" by excluding "clothes-changing and wash-up time"); id. at § 785.11 ("Work not requested but suffered or permitted is work time."); see also Plumley v. S. Container, Inc., 303 F.3d 364, 372 (1st Cir. 2002) (concluding that "hours of service" under the FMLA "include only those hours actually worked in the service and at the gain of the employer"). Discussing ‘waiting time,' the regulations provide that "[p]eriods during which an employee is completely relieved from duty and which are long enough to enable him to use the time effectively for his own purposes are not hours worked." Id. at § 785.16(a).

Applying these principles to the instant case, it becomes clear that Weekender Hours do not count towards "hours of service" for purposes of FMLA-eligibility. The parties do not dispute that the additional twenty Weekender Hours of compensation each pay period flow to participants as an incentive, and not as compensation for hours actually worked. Weekender Hours do not amount to "hours worked" because the employee is not "required to give his employer" twenty hours worth of time at work to receive the Weekender pay. Rather, during those twenty hours, Weekender employees may "use the time effectively for [their] own purposes," with no obligation to their employer. Cf. 29 C.F.R. § 785.16(a) ("waiting time" is not hours worked). Pursuant to the language of the statute and the implementing regulations, then, Plaintiff had not amassed sufficient "hours of service" to qualify for FMLA-protected leave.

In so concluding, we do not disturb this Court's previous holding in Ricco v. Potter, 377 F.3d 599, 600 (6th Cir. 2004), wherein we considered the FMLA's "hours of service" requirement. There, the U.S. Postal Service terminated the plaintiff who, after grieving her termination, received a "make whole" remedy – that is, she was reinstated "with full credit for years of service" and received back pay. Id. at 601. After reinstatement the plaintiff requested FMLA leave, but the Postal Service denied her request and claimed she did not meet the "hours of service" requirement. Id. Had the Postal Service given the plaintiff credit for hours she would have worked during the period of wrongful termination, however, the plaintiff would have been FMLA-eligible. Id. Finding that neither the FMLA nor the FLSA defined "hours of service," the Ricco court followed the FMLA's directive that "an employee's ‘hours of service' are to be calculated according to . . . § 207" and concluded that "the only plausibly applicable standards are those contained in the definition of the term ‘regular rate.'" Id. at 604. The court observed that § 207 enumerates exceptions to the term "regular rate," and that the plaintiff's make-whole remedy did not fall within those exceptions inasmuch as "time that an employee does not work due to vacation or illness is conceptually dissimilar from time that an employee does not work due to unlawful termination." Id.

Ultimately, the Ricco court held that "make-whole relief awarded to an unlawfully terminated employee may include credit towards the hours-of-service requirement contained in the FMLA's definition of ‘eligible employee.'" Id. at 600. Of course, the critical point in Ricco was that the employer wrongfully terminated the plaintiff, the plaintiff received a make-whole award, and "[t]he goal of a make-whole award is to put the employee in the same position that she would have been in" absent the employer's unlawful conduct. See Ricco, 377 F.3d at 605. The effect of the Ricco court's decision was to give the plaintiff credit for "hours that [she] would have worked but for her unlawful prior termination by her employer." Id. On remand, the district court was left to "determine . . . the number of hours that [the plaintiff] would have worked." Id. at 606. Inasmuch as the Ricco court focused on the hours worked (albeit hours that would have been worked) in approaching a factually dissimilar circumstance, our reading of the FMLA's "hours of service" requirement does not create a conflict with the Ricco court's analysis. Accordingly, we affirm the district court's grant of summary judgment, and find that the Weekender Hours do not count as "hours of service" for purposes of FMLA eligibility.

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Outcome: For the foregoing reasons, we AFFIRM the district court’s order.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: None