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.
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
No work until stress test.
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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.
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:
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).
Specifically, 29 C.F.R. 825.303 provides:
What is sufficient, both in terms of the timing of the notice and its content, will depend on the facts and circumstances of each individual case. Manuel v. Westlake Polymers Corp., 66 F.3d 758, 764 (C.A.5, 1995); Mora v. Chem-Tronics, Inc., 16 F.Supp.2d 1192, 1209 (S.D.Cal., 1998). "The 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 for a serious health condition." Manuel, supra at 764. See also Thorson v. Gemini, Inc., 205 F.3d 370, 381 (C.A.8, 2000), quoting Browning v. Liberty Mut. Ins. Co., 178 F.3d 1043, 1049 (C.A.8, 1999) ("`Under the FMLA, the employer's duties are triggered when the employee provides enough information to put the employer on notice that the employee may be in need of FMLA leave.'"); Brohm v. JH Props., Inc., 149 F.3d 517, 523 (C.A.6, 1998). As expressed in 29 C.F.R. 825.303(b), in giving notice, an employee need not expressly assert rights under the FMLA or even mention the FMLA, but need only state
See also Price v. Fort Wayne, 117 F.3d 1022, 1026 (C.A.7, 1997); Manuel, supra at 764; Mora, supra at 1208-1209; Stubl v. T A Sys., Inc., 984 F.Supp. 1075, 1085 (E.D.Mich., 1997); Brannon v. OshKosh B'Gosh, Inc., 897 F.Supp. 1028, 1038 (M.D.Tenn., 1995); Hendry v. GTE North, Inc., 896 F.Supp. 816, 828 (N.D.Ind., 1995).
Once circumstances suggest that an employee may qualify for FMLA leave, the employer has the obligation of inquiring further into the matter. Spangler v. Fed. Home Loan Bank of Des Moines, 278 F.3d 847, 853 (C.A.8, 2002); Mora, supra at 1209; Williams v. Shenango, Inc., 986 F.Supp. 309, 319 (W.D.Pa., 1997). An employer may require that an employee's leave be verified by a medical certification issued by the health care provider of the employee. 29 C.F.R. 825.305(a).
In the present case, plaintiff left work on October 9, 1995, because of chest pains. Plaintiff testified that after being evaluated at a local hospital emergency room, he telephoned Miesel on October 9 and again on either the tenth or eleventh and informed defendants that he would be off work until he received the prescribed stress test. On October 19, plaintiff provided defendants with the written personal discharge plan from the emergency room
Defendants argue that in granting summary disposition in plaintiff's favor, the lower court never should have reached the question whether plaintiff provided medical verification within fifteen days, 29 C.F.R. 825.305(b), because under the circumstances of this case, plaintiff failed to provide adequate notice of a potential FMLA-qualifying "serious health condition." Defendants contend that "[a] verbal statement that `I am waiting for a stress test' is not adequate notice." Defendants further maintain that "[g]iven the employee's behavior on October 9th which negated any concerns over a serious medical problem of any immediate nature, and under all the facts of this case, adequate notice of possible FMLA implications could only be adequately achieved by the employee providing the medical statement to the employer as was the established policy and practice of the employer." We disagree.
Generally, whether the notice is adequate is a question of fact. Mora, supra at 1209, citing Hopson v. Quitman Co. Hosp. & Nursing Home, Inc., 126 F.3d 635, 640 (C.A.5, 1997). However, numerous courts have granted summary judgment for the employer or employee on the basis of the adequacy of notice given for unforeseeable FMLA leave. See Satterfield v. Wal-Mart Stores, Inc., 135 F.3d 973, 976-977 (C.A.5, 1998); Mora, supra at 1209. Indeed, it is well established that a telephone call can constitute sufficient verbal notice as a matter of law under the regulations and FMLA case law.
In the instant case, we conclude that plaintiff's notice, by telephone, was sufficient as a matter of law to put defendants on notice that plaintiff might qualify for FMLA leave. Although there is some factual dispute regarding whether defendants verbally informed plaintiff that he had to submit his doctor's note, it is undisputed that plaintiff telephoned Miesel on more than one occasion within two days of his emergency room visit and informed its personnel that he would be off work until the stress test was done. Given defendants' awareness of the events leading to plaintiff's emergency room visit, plaintiff's telephone calls to Miesel's dispatcher and its insurance and human resources departments constituted adequate notice as a matter of law and indicated to defendants that the medical condition might be serious or that the FMLA could be applicable.
Defendants complain that "common experience would not require that an employer equate a stress test with `incapacity,' " and in light of indications that plaintiff's chest pain was of a "minor or stable nature," plaintiff should have provided further details regarding his "serious" medical condition when he called Miesel. However, defendants' argument improperly places the burden on plaintiff to explain how his leave qualified under the FMLA. Mora, supra at 1212-1213. As previously noted, under the FMLA it was incumbent on defendants to make a specific written request for medical certification; if an employer is uncertain whether an employee's leave is covered by the FMLA, it has the burden to inquire further. 29 C.F.R. 825.301(b)(1), (c)(2)(i), and 29 C.F.R. 825.305(a); Mora, supra at 1209, 1213; Stubl, supra at 1089; George, supra at 1016. Although defendants herein purportedly attempted to contact plaintiff to obtain further details regarding his absence, on October 19, 1995, plaintiff provided defendants with certification in the form of the treating physician's personal discharge plan, well within the fifteen-day period specified by 29 C.F.R. 825.305(b). Although
Defendants also argue that plaintiff did not establish that he had a "serious health condition" entitling him to the protections of the FMLA. Defendants maintain that plaintiff did not suffer from a serious health condition because he never actually had a heart attack but was merely tested for the condition, and no "serious health condition" was ultimately diagnosed following the stress test. We disagree.
As previously noted, the FMLA provides that eligible employees are entitled to take leave "[b]ecause of 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). With this requirement,
"Congress sought to parse out [minor] illnesses which it believed should be treated under sick leave policy from those much more serious illnesses that implicate the protections of the FMLA." Bauer v. Dayton-Walther Corp., 910 F.Supp. 306, 310 (E.D.KY., 1996), aff'd 118 F.3d 1109 (C.A.6, 1997). The FMLA defines the parameters of a "serious health condition" as follows: "The term `serious health condition' means an illness, injury, impairment, or physical or mental condition that involves—(A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider." 29 U.S.C. 2611(11).
The regulations of the Department of Labor (DOL) further explain that "continuing treatment by a health care provider" includes
Of particular import to the present case is an additional regulation that, in conjunction with the above provision, further explains that "[t]reatment ... includes (but is not limited to) examinations to determine if a serious health condition exists and evaluations of the condition. Treatment does not include routine physical examinations, eye examinations, or dental examinations." 29 C.F.R. 825.114(b) (emphasis added).
Defendants argue that this language does not authorize FMLA leave for the purpose of having an examination to determine whether one has a serious health condition. Rather, defendants maintain in their brief that the question of treatment does not arise until plaintiff has established that he has a "serious health condition":
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In support of their argument, defendants rely on Seidle v. Provident Mut. Life Ins. Co., 871 F.Supp. 238 (E.D.Pa., 1994), in which the plaintiff sought FMLA leave after being absent from work because of her son's ear infection. The Seidle court, id. at 246, held that
However, we find Seidle to be inapposite for several reasons. First, the Seidle court held that the plaintiff could not establish that her son had a "serious health condition" because he had been incapacitated from attending daycare for only three days, not the statutory four or more. Id. at 243-244. Second, the plaintiff took her son to the doctor on only one occasion; thus, he was not receiving "`continuing treatment by a health care provider,'" id. at 244, and, unlike the present case, no physician had recommended that the plaintiff's son be kept home for more than three
Defendants also cite Hodgens v. Gen. Dynamics Corp., 963 F.Supp. 102 (D.R.I., 1997), in support of their argument in this regard. In Hodgens, the plaintiff experienced chest pains, visual problems, and profuse perspiration—ultimately diagnosed as atrial fibrillation, an arrhythmia of the heart—and took time off from his job while his doctor monitored his blood pressure and adjusted his medication. The federal district court held that the plaintiff's leave was not covered under the FMLA because the plaintiff had failed to establish that he had a "serious health condition" or was "incapacitated." The court held "an employee's absence [from work] must be necessary to enable the employee to receive treatment. If an employee can obtain treatment without missing work, any period of absence cannot be attributed to the need to receive treatment." Id. at 106. The court found that there was no evidence that Hodgens was required to be absent from work in order to receive treatment from his physician and no indication that he could not carry out the duties of his job, id., and thus granted summary judgment in favor of the defendant employer.
However, defendants fail to note that on subsequent appeal, Hodgens v. Gen. Dynamics Corp., 144 F.3d 151 (C.A.1, 1998), the First Circuit Court of Appeals affirmed the district court's grant of summary judgment in favor of the defendant employer but, in so doing, based its decision on different reasoning and indeed criticized the above-stated rationale of the district court. The circuit court stated:
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Hodgens suffered from numerous symptoms in July and August 1993. Dr. Wilkinson examined him and, concerned about angina and its serious implications, ordered a series of tests directed toward diagnosing the cause and nature of his problem, with a view toward prescribing treatment (which she eventually did, although she never was able to rule out angina). Then between September 22 and 27, Hodgens was diagnosed with atrial fibrillation, and again was required to make many visits to Dr. Wilkinson's office. This latter period constituted more than three consecutive days' worth of absences from work for a serious health condition. And these absences were medically necessary: Hodgens' treating physician, Dr. Wilkinson, filled out a work-restriction form—at the top of which appeared the date ... on which Hodgens could return to work. Dr. Wilkinson's form carries the inference that that entire period of absence was medically necessary, and GD nowhere rebuts that inference. Indeed, on September 21, GD's own nurse refused to let Hodgens return to work at least in part because of his atrial fibrillation. Thus, we cannot accept GD's claim, based on Dr. Wilkinson's initially clearing Hodgens to return to work on September 20, that Hodgens's health condition
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The Hodgens court then addressed the issue of the plaintiff's inability to perform the functions of his position as required in 29 U.S.C. 2612(a)(1)(D) and once again disagreed with the district court's interpretation of this statutory provision:
In determining which interpretation to adopt, we must consider the fact that the FMLA is a remedial statute....
The First Circuit Court of Appeals further noted, id. at 164, that its interpretation of 29 U.S.C. 2612(a)(1)(D) was supported not only by the legislative history of the FMLA, but also by the Department of Labor's final (not interim) regulations, most notably 29 C.F.R. 825.114(b), which includes "examinations to determine if a serious health condition exists and evaluations of the condition" within the definition of "serious health condition" in terms of "treatment" received. Thus, the First Circuit Court of Appeals opined that
condition diagnosed and treated, such as those at issue here. The agency did not interpret the statutory language—that Hodgens's health condition render him "unable to perform" his work—as requiring him to be "too sick to work." The agency's interpretation is entitled to deference.... We hold that Hodgens's absences from work were protected by the FMLA if they were required for the diagnosis and treatment of his medical condition, as long as he satisfied the other requirements for "seriousness"; it is not necessary that the medical condition make him "too sick to work" on a particular day in order for an absence on that day to be covered under the statute. We therefore reverse the district court's holding to the extent that it stated a contrary view. The FMLA protected Hodgens's absences whenever his health condition required him to visit his physician rendering him unable to work during the time it took to accomplish those visits. [Hodgens, supra, 144 F.3d at 165.]
The circuit court concluded that the district court "erred to the extent that it predicated its grant of summary judgment [to General Dynamics] on the ground that there was no FMLA-qualifying leave at issue." Id. (Emphasis in original.) Thus, although General Dynamics ultimately prevailed on appeal in Hodgens,
Another case that is relevant to the question whether plaintiff had a "serious health condition" within the meaning of the FMLA is Thorson v. Gemini, Inc, supra. In Thorson, the plaintiff left work on Wednesday, February 2, 1994, complaining of diarrhea and stomach cramps and went to see a physician. She was absent from work for the remainder of the week and returned Monday, February 7, with a note from her doctor indicating "no work" until Monday, February 7. On Monday, she worked only a few hours before returning to the doctor with stomach pain. The doctor, suspecting either a peptic ulcer or gallbladder disease, ordered tests for Friday, February 11. The test results were normal, and the plaintiff returned to work on Monday, February 14, once again with her doctor's note stating "no work" until February 14. The plaintiff worked that week but her employment was terminated on February 18 for absenteeism exceeding five percent of her scheduled work hours during the previous twelve months. On March 9, another doctor determined that the plaintiff had a small hiatal hernia, mild antral gastritis that could be managed with antacid, and duodenitis, all stress-related conditions. The plaintiff brought suit alleging violations of the FMLA, and the federal district court granted summary judgment to her on the issue of FMLA liability. Following a jury trial on the issue of damages, the plaintiff was awarded damages. On appeal, the order and judgment in favor of the plaintiff was affirmed. The Eighth Circuit Court of Appeals, citing 29 C.F.R. 825.114(b), Thorson, supra at 378, concluded that the plaintiff had a "serious health condition" within the meaning of the FMLA:
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... While Congress may have "expected" that minor illnesses "normally" would not come within the definition of "serious health condition," that does not mean such ailments can never be FMLA "serious health conditions." Further, a non-exclusive list of ailments [set forth in the FMLA legislative history] that might qualify as "serious health conditions" that does not include Thorson's final diagnosis does not preclude FMLA leave for her absence. She missed work for more than a "few days" on the advice of a doctor. Thorson's treating physician originally thought she might have a peptic ulcer or gallbladder disease, conditions
With regard to the defendant employer's claim that even if Thorson met the "continuing treatment" element of a "serious health condition," she nonetheless failed to show that her condition resulted in an incapacity requiring absence from work, the Thorson court stated:
Other courts have similarly concluded that, under certain circumstances, absences based on examinations or evaluations to determine if a serious health condition exists pursuant to 29 C.F.R. 825.114(b) are within the coverage of the FMLA. See Miller v. AT & T Corp., 250 F.3d 820, 830-831 (C.A.4, 2001) (episode of flu may constitute serious health condition and the plaintiff's second visit to physician as a result of flu, which included physical examination and drawing blood, constituted "treatment" within meaning of 29 C.F.R. 825.114[b] to determine if serious health condition existed, even though physician simply evaluated the employee's condition); Stubl, supra at 1088-1089 (citing 29 C.F.R. 825.114[b], the court held that the employee's two visits to a doctor regarding the effects his son's suicide had on his health constituted "continuing treatment"
We find the reasoning of the Thorson court to be persuasive and applicable to the present, closely comparable circumstances. Here, the trial court found that although tests ultimately revealed that plaintiff did not have a serious heart condition, his absence nonetheless qualified under the FMLA because, following an emergency room visit, a health care provider made "a professional assessment of plaintiff's conditions and determined that an extended absence from work was necessary." We agree with the lower court's conclusion. The legislative history of the FMLA shows that Congress clearly contemplated that "heart attacks" and "heart conditions" would fall within the definition of "serious health condition." See citations of FMLA legislative history contained in Miller, supra at 834-835, Bond v. Abbott Laboratories, 7 F.Supp.2d 967, 973 (N.D.Ohio, 1998), aff'd 188 F.3d 506 (C.A.6, 1999), Olsen v. Ohio Edison Co., 979 F.Supp. 1159, 1163 (N.D.Ohio, 1997), and Seidle, supra at 242. Certainly, then, it is reasonable and prudent for an emergency room physician, when presented with a patient complaining of chest pains, to err on the side of safety and prohibit any work-related activities until further testing either confirms or rules out a serious heart-related condition. Whether an illness qualifies as a "serious health condition" for purposes of the FMLA is a legal question that an employee or an employer cannot avoid "`simply by alleging it to be so.'" Bond, supra at 974, quoting Carter v. Rental Uniform Serv. of Culpeper, Inc., 977 F.Supp. 753, 761 (W.D.Va., 1997). As explained by the court in Olsen, supra at 1166:
"Generally then, a health care provider must instruct, recommend, or at least authorize an employee not to work for at least four consecutive days for that employee to be considered incapacitated for the required period of time under the FMLA." Bond, supra at 974. Here, on October 9, 1995, an emergency room physician instructed plaintiff he should not work until after his stress test, which was administered on October 23, 1995. Although defendants argue that plaintiff did not
Defendants also argue that the trial court erred in awarding plaintiff backpay damages and by ordering that he be reinstated to his job. An award of damages following an evidentiary hearing is reviewed on appeal pursuant to the clearly erroneous standard. Triple E Produce Corp. v. Mastronardi Produce, Ltd., 209 Mich.App. 165, 177, 530 N.W.2d 772 (1995).
If an employer has violated the FMLA, and if justified by the facts of a particular case, an employee may recover wages, employment benefits, or other compensation and may also obtain appropriate relief, such as employment, reinstatement, and promotion. 29 U.S.C. 2614(a), 29 U.S.C. 2617; 29 C.F.R. 825.400(c). However, the employee is not entitled to any more reimbursement or benefits "than if the employee had been continuously employed during the FMLA leave period. An employer must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment." 29 C.F.R. 825.216(a). Moreover, if "`the employee is unable to perform an essential function of the position because of a physical or mental condition, including the continuation of a serious health condition, the employee has no right to restoration to another position under the FMLA.'" Reynolds v. Phillips & Temro Industries, Inc., 195 F.3d 411, 414 (C.A.8, 1999), quoting 29 C.F.R. 825.214(b). Thus, "[i]f the employee has been on a workers' compensation absence during which FMLA leave has been taken concurrently, and after 12 weeks of FMLA leave the employee is unable to return to work, the employee no longer has the protections of FMLA and must look to the workers' compensation statute or ADA [Americans with Disabilities Act] for any relief or protections." 29 C.F.R. 825.216(d).
Here, defendants argue that plaintiff was not entitled to reinstatement because he filed a worker's compensation claim concurrently with the instant case. Plaintiff testified, however, that he had not required treatment for his prior elbow injury in over two years and the trial court found that plaintiff was ready and willing to return to work. Plaintiff was not on a worker's compensation absence at the time of the termination of his employment and, in fact, was ready to return to work immediately after taking the stress test. Consequently, the trial court did not err in awarding plaintiff back wages and reinstatement.
Plaintiff argues on cross appeal that the trial court erred in disallowing an award of liquidated damages pursuant to 29 U.S.C. 2617(a)(1)(A)(iii) and 29 C.F.R. 825.400(c). We disagree.
Liquidated damages are to be awarded under the FMLA "unless such amount is reduced by the court because the violation was in good faith and the employer had reasonable grounds for believing the employer had not violated the Act." 29 C.F.R. 825.400(c). As explained by the court in Chandler v. Specialty Tires of America (Tennessee), Inc., 283 F.3d 818, 827 (C.A.6, 2002):
The decision whether to reduce the damages is within the discretion of the trial court. 29 U.S.C. 2617(a)(1)(A)(iii); Nero v. Industrial Molding Corp., 167 F.3d 921, 928 (C.A.5, 1999).
Here, the trial court awarded damages but concluded that liquidated damages were not warranted because defendants' violation of the FMLA was in good faith and defendants had reasonable grounds for believing the act was not violated. On these facts, we conclude that the trial court did not abuse its discretion in declining to award liquidated damages to plaintiff. Id.; Nero, supra.
Finally, plaintiff argues for the first time on cross appeal that the trial court erred in not finding that he was discharged "in retaliation" under the FMLA. See, generally, Skrjanc v. Great Lakes Power Service Co., 272 F.3d 309 (C.A.6, 2001). An employer is prohibited from interfering with, restraining, or denying the employee's exercise of rights under the FMLA. 29 U.S.C. 2615(a)(1). The employer is also prohibited from discharging or discriminating against the employee "for opposing any practice made unlawful" by the FMLA. 29 U.S.C. 2615(a)(2). Discrimination is not permitted against an employee for filing a charge, giving information, or testifying in connection with an FMLA action. 29 U.S.C. 2615(b). Plaintiff did not allege that defendants discriminated against him under the FMLA, did not raise the issue of retaliation below, and now offers no factual support, other than generalized assertions, for his claim. Consequently, we decline to consider this unpreserved issue on appeal. Adam v. Sylvan Glynn Golf Course, 197 Mich.App. 95, 98, 494 N.W.2d 791 (1992). In any event, the trial court found for plaintiff on the substantive FMLA claim. Thus, the trial court did not err in not specifically addressing an alternative ground for its decision.
HOEKSTRA, J., concurred.
I respectfully dissent. The majority opinion impliedly concludes that a conflict exists between the Family and Medical Leave Act (FMLA), 29 U.S.C. 2611 et seq., and defendants' collective bargaining agreement (CBA). I disagree. Since the FMLA and the CBA are not in conflict, and each is clear on its face, I conclude that the employer has not violated the FMLA and plaintiff's employment was properly terminated under the CBA.
In Staff v. Johnson, 242 Mich.App. 521, 530, 619 N.W.2d 57 (2000), this Court stated, "To determine whether there is a real conflict between a statute and a court rule, both are read according to their plain meaning." Applying this reasoning analogously when comparing the FMLA and the CBA, there exists no conflict. The majority, 242 Mich.App. at 530, 619 N.W.2d 57, states that "the FMLA itself is silent regarding notice requirements ..." The CBA provides that an absence of three consecutive days requires written medical notification. Reading the FMLA and the CBA in conjunction with each other, I conclude that the plaintiff bargained for, and received, pursuant to the terms of the CBA, a period of three days in which no written medical authorization needed to be presented to his employer. However, after three days the CBA requires written notification from an authorized medical professional.
The FMLA intentionally leaves open the notice requirement. In my opinion, this allows employers and employees to bargain for the usual and customary terms and conditions of employment within a particular industry without violation of the FMLA. I concur with the majority opinion that the FMLA grants the secretary of labor authority to promulgate regulations implementing the FMLA. However, when the act itself is clear, there exists no reason to refer to the regulations implementing the act.
The majority, in order to reach a result not within the plain language of the FMLA, relies on the regulations implementing the FMLA. "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, in my opinion, the controlling weight test of the regulations is only resorted to if the FMLA is not clear or a conflict exists. Because both the FMLA and the CBA are clear and not in conflict, there is no need to rely on the implementing regulations to resolve this dispute. I do not believe the secretary of labor's implementing regulations take precedence over the clear language of the FMLA.
When read together, the FMLA and the CBA are not in conflict. Because they are not in conflict, the CBA controls the terms and conditions of employment. I would reverse the trial court's order and affirm the employer's right to terminate plaintiff's employment under the terms and conditions of the CBA.
See also Marrero v. Camden Co. Bd. of Social Servs., 164 F.Supp.2d 455, 463-464 (D.N.J., 2001).