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HEIDI K. CHAN, Plaintiff, v. LOYOLA UNIVERSITY MEDICAL CENTER, Defendant.

No. 97 C 3170

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF

ILLINOIS, EASTERN DIVISION

1999 U.S. Dist. LEXIS 2790

March 3, 1999, Docketed

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF

ILLINOIS, EASTERN DIVISION



1999 U.S. Dist. LEXIS 2790



March 3, 1999, Docketed



DISPOSITION: [*1] Parties' cross-motions for

summary judgment denied.



COUNSEL: For HEIDI K CHAN, plaintiff: Ronald Barry

Schwartz, Hedberg, Tobin, Flaherty & Whalen, P.C.,

Chicago, IL.

For LOYOLA UNIVERSITY MEDICAL CENTER,

defendant: Richard F. Nelson, Richard F. Nelson &

Associates, Chicago, IL.



JUDGES: JOAN B. GOTTSCHALL, United States

[CONTINUED]

Chan's final argument is that the written materials do not

clearly designate her leave as FMLA leave. Both parties

argue that a case from the Eastern District of Pennsylvania,

Dintino v. Doubletree Hotels Corp., 1997 U.S. Dist. LEXIS

18145, No. Civ.A. 96-7772, 1997 WL 717208, (E.D.Pa.

Nov. 14, 1997), supports [*19] their respective positions.

n7 In Dintino the plaintiff was terminated for allegedly

abandoning her job after she gave birth to a child. Plaintiff

initially informed her employer in writing that she planned

to "take a maternity leave from July 15, 1994 through

October 17, 1997." Id. at *1. She later developed

complications in her pregnancy and requested "immediate

leave from her employment" on June 21, 1994. Id. Plaintiff

received a Request for Leave of Absence form that made

no mention of FMLA leave. Plaintiff indicated in writing

to her employer that "after the birth of my child, I intend to

take the remaining family leave prior to my return to full-

time employment." Id. In October 1994, plaintiff expressed

her desire to begin her FMLA leave. Defendant contends

that plaintiff began her FMLA leave on June 21, 1994.

When plaintiff did not return in October 1994, she was

terminated for abandoning her job.

n7 There are few cases that discuss the employer's

obligations under the FMLA to provide notice. In a case in

the Middle District of Alabama, Cox v. Autozone, Inc. 990

F. Supp. 1369 (M.D. Ala. 1998), the district court granted

a defendant employer's motion for summary judgment. In

doing so, the court held that the notice requirements placed

on employers by the federal regulations are inconsistent

with Congress' intent when it enacted the FMLA. Neither

party in this case has raised this argument, and the court

declines to consider the issue sua sponte.

[*20]



The district court granted summary judgment, as to

liability, in plaintiff's favor. The court held that the

defendant failed to provide notice that her initial leave was

being counted against her annual FMLA leave. The court

noted that pursuant to the federal regulations, "in all

circumstances, it is the employer's responsibility to

designate leave, paid or unpaid, as FMLA-qualifying,

based on information provided by the employee.." Id. at *2

(quoting 29 C.F.R. 825.208(a)). Further, the court relied

on facts showing that defendant failed to follow its own

self-imposed FMLA policy of sending plaintiff "a

confirming memorandum;" that the "Request for Leave of

Absence" form did not mention FMLA leave; and that

defendant had distinguished between maternity leave and

FMLA leave in its employee handbook.



The situation here is less clear-cut than that in Dintino.

Here, Dean provided Chan with notice that she would be

on FMLA leave by telling her that he would send her

FMLA forms. The packet of materials Loyola sent to Chan

included a "Family/Medical Leave Request for Leave

Form" and a summary of various provisions of the FMLA.

Thus, in contrast with the plaintiff in Dintino, [*21] Chan

received oral and written communications indicating that

her leave would be FMLA leave. n8 Loyola also argues

that, unlike Dintino, there is no evidence here that Loyola

failed to follow its standard procedure when an employee

requests leave that may be covered by the FMLA.

However, Loyola should be wary of placing too much

emphasis on its standard procedures. While Loyola's

communications to Chan may or may not have been

sufficient to constitute notice under the FMLA, Loyola's

compliance, if any, was merely fortuitous. Loyola's

manager for human resources, Gary Soltys, admitted at his

deposition that, at the time of Chan's leave, Loyola was

unaware that the FMLA requires an employer to provide

written notification to an employee that his or her leave has

been designated as FMLA leave. [Soltys Dep. p. 25-27].



n8 Moreover, unlike the plaintiff in Dintino, there is no

indication that Chan was actually under the impression that

she was entitled to FMLA leave in addition to her initial

leave of absence. Of course, the fact that Chan did not

claim at the time that she was entitled to additional leave

does not mean that Loyola's notice was sufficient. Chan

may have been unfamiliar with the provisions of the

FMLA.

[*22]



The question is whether these communications are

sufficient as a matter of law to constitute notice to Chan

that her leave was designated as FMLA leave. The

regulations make clear that the employer must provide

written notice to the employee (or written confirmation of

oral notice) that leave has been designated as FMLA leave.

However, the regulations also grant some flexibility to the

employer as to the form of the notice. "The written notice

may be in any form, including a notation on the employee's

pay stub." 29 C.F.R. 825.208(b)(2). The facts here do

suggest that Loyola provided some form of oral and written

notice to Chan. However, the communications with Chan

that allegedly gave her notice she would be on FMLA

leave occurred before she had even filled out the

"Family/Medical Leave Request for Leave Form." n9 Chan

was not explicitly told she was on FMLA leave until

Dean's letter dated February 21, 1996. n10 Under the

circumstances here, this court cannot find as a matter of

law that Loyola's communications did or did not constitute

adequate notice. The question should be left for a jury. Cf.

Price v. City of Fort Wayne, 117 F.3d 1022, 1025-26 (7th

Cir. 1997) (vacating [*23] summary judgment and

concluding that trier of fact must determine if plaintiff

suffered from "serious medical condition" and if plaintiff

provided adequate notice of need for leave under FMLA

regulations).



n9 Indeed, Loyola contends that this form (and other

forms sent contemporaneously) constitutes the requisite

written notice.



n10 Although, as noted above, the regulations allow

some flexibility as to the form of written notice, it is

instructive to compare the purported notice given here

with the "Prototype Notice" provided by the

Department of Labor as an appendix to the FMLA

regulations. Among other things, the "Prototype

Notice" contains the following language:

This is to inform you that: (check appropriate boxes,

explain where indicated)

1 You are [ ] eligible [ ] not eligible for leave under

the FMLA.

2 The requested leave [ ] will [ ] will not be counted

against your annual FMLA leave entitlement.

29 C.F.R. Pt. 825, App. D. Of course, this is only an

optional form. Nevertheless, the clarity of the

"Prototype Notice" highlights the ambiguous nature of

the purported notice here.

[*24]



2. Did Loyola notify Chan that paid leave would be

substituted for unpaid leave?



As noted above, the FMLA requires an employer to

provide written notice of "the employee's right to substitute

paid leave and whether the employer will require the

substitution of paid leave, and the conditions related to any

substitution." 29 C.F.R. 825.301(b)(1)(iii). Loyola

concedes that Dean did not discuss with Chan her paid sick

leave or vacation time. At his second deposition, Dean

testified that he did not inform Chan that her paid sick and

vacation leave would run concurrently with her 12-week

FMLA leave. [Feb. 4, 1998 Dean Dep., p. 65-66].

Therefore, Dean's conversation with Chan did not

constitute notice that paid leave would be substituted for

unpaid FMLA leave. Instead, Loyola argues that the packet

of FMLA material and/or Chan's paycheck stubs provided

the requisite notice.



a. Loyola's packet of FMLA material



Loyola contends that the packet of FMLA material

notified Chan that her paid sick leave and vacation time

would run concurrently with her FMLA leave. In

particular, Loyola argues that language in the five-page

summary of the FMLA and "Guidelines for Employees"

[*25] constitutes notice that paid leave would be

substituted for unpaid leave. Loyola relies on the following

provision in the summary:

Subject to certain conditions, employees or employers may

choose to use accrued paid leave (such as sick or vacation

leave) to cover some or all of the FMLA leave. The

employer is responsible for designating if paid leave used

by an employee counts as FMLA leave, based on

information provided by the employee. In no case can an

employee's paid leave be credited as FMLA leave after the

leave has been completed.

[Loyola's 12(M), Ex. E] (emphasis in original). In

addition, Loyola relies on the following language from the

"Guidelines for Employees"

If an employee requests a leave for non-medical reasons,

accrued vacation time and personal/bonus days may be

used for pay purposes. Any leave requested for the

employee's own illness will be paid through accrued sick

time. Vacation, personal and bonus time may is [sic]

payable once the sick bank is exhausted.

[Loyola's 12(M), Ex. E].



The language in the summary does not provide the

requisite notice. The summary merely indicates that the

FMLA permits an employer or [*26] an employee to

substitute paid leave for unpaid FMLA leave and that the

employer must notify the employee if paid leave will be

substituted for unpaid leave. The summary does not specify

that Loyola will substitute paid leave for unpaid leave.



The language in the "Guidelines for Employees" presents

a more difficult question. By specifying that "any leave

requested for the employee's own illness will be paid

through accrued sick time" and that "vacation, personal and

bonus time may is [sic] payable once the sick bank is

exhausted," Loyola arguably provided notice that paid

leave would be substituted for unpaid FMLA leave.

However, even aside from the typographical error, it is not

unambiguously clear that Loyola is specifying that it will

substitute vacation leave and sick leave for FMLA leave.

n11 The Guidelines do not explicitly state that FMLA

leave would run concurrently with paid sick leave and

vacation time or that paid sick leave and vacation time

would be substituted for unpaid FMLA leave. Again, a

comparison between the ambiguous notice her and the

"Prototype Notice" is instructive. The "Prototype Notice"

includes the following language:

This is to inform you that" [*27] (check appropriate

boxes, explain where indicated)



* * *

4 You may elect to substitute accrued paid leave for

unpaid FMLA leave. We [ ] will [ ] will not require that

you substitute accrued paid leave for unpaid FMLA leave.

If paid leave will be used the following conditions will

apply: (Explain)

29 C.F.R. Pt. 825, App. D.



n11 For example, the Guidelines state, "Any leave

requested for the employee's own illness will be paid

through accrued sick time." The Guidelines refer to "any

leave" and not specifically to FMLA leave. While one

could assume that Loyola is referring to FMLA leave,

elsewhere in the Guidelines Loyola specifically references

"FMLA leave" and "leave under the Family and Medical

Leave Act."

Again, both parties rely on the same case, Cline v.

Wal-Mart Stores, Inc., 144 F.3d 294 (4th Cir. 1998), as

support for their respective positions. In Cline, the

plaintiff was demoted from his supervisor position

after he returned to work from leave for surgery for a

brain tumor and [*28] was later terminated for

allegedly "stealing time." Plaintiff was employed by

defendant as a night maintenance supervisor. Plaintiff

advised the store manager that he needed to take a

medical leave of absence for surgery to remove the

tumor. Id. at 298. The store manager approved

plaintiff's leave. The store manager also had plaintiff

meet with the personnel manager, who was responsible

for informing employees about the terms and

conditions of medical leave and vacation leave. Id.



During the meeting, the personnel manager advised

plaintiff that he was required to expend any accrued

vacation time before the commencement of his medical

leave. Id. Based on that representation, plaintiff submitted

the required form requesting five days of his accrued paid

vacation. Plaintiff was also provided with a form entitled

"Request for Leave of Absence" to be completed by

plaintiff's treating physician. Plaintiff, however, "was not

provided with any notices relating to his rights under the

FMLA." Id. at 299. Plaintiff's leave began August 4, 1994.

He returned on November 1, 1994 and was demoted from

his supervisor position.



The lower court granted plaintiff's summary judgment

"on [*29] all questions related to the duration of his leave

under the FMLA and struck [defendant's] defense that

[plaintiff's] leave included the period during which he had

received paid vacation leave." Id. at 300. On defendant's

appeal, the Fourth Circuit affirmed the lower court on the

grant of summary judgment to plaintiff on his FMLA. In

doing so the appellate court stated:

WalMart contends that the request for leave form that

Cline signed provided adequate notice of WalMart's intent

to designate Cline's vacation days as FMLA leave. We

disagree. The request for leave of absence form Cline

signed prior to the commencement of his leave did not

mention vacation leave or contain any other language that

would reasonably put Cline on notice that his vacation days

were to be designed as part of his twelve weeks of FMLA

leave. Although the form explained that leave for

"medical" reasons was designated as FMLA leave, it said

nothing about vacation leave, and a reasonable employee

reviewing the form would have no idea that vacation leave

was designated. In the absence of proper notice, Cline was

entitled to twelve weeks of FMLA leave plus five days of

paid vacation leave, for a total [*30] of almost thirteen

weeks away from work.

Id. at 300-01.



Unlike the purported notice in Cline, Loyola's Guidelines

do explicitly mention sick leave and vacation leave. While

the language in Loyola's Guidelines could be construed as

notice that paid leave would be substituted for unpaid

leave, the Guidelines are too ambiguous for this court to

find that the Guidelines provided adequate notice as a

matter of law.



c. Chan's paycheck stubs



Loyola also contends that Chan's paycheck stubs

provided her with notice that her paid sick leave and

vacation time ran concurrently with her FMLA leave.

Loyola argues that because Chan's paycheck stubs during

her initial leave identified her earnings type as "sick pay,"

"vacation," and/or "holiday", Chan received notice that her

accumulated sick pay and vacation pay would run

concurrently with her FMLA leave.



The paycheck stubs do not establish that Loyola provided

Chan with the required notice. A close inspection of Chan's

paycheck stubs reveals that there is no language explicitly

informing Chan that her paid leave is running concurrently

with her FMLA leave. This type of notice could have been

provided by Loyola since [*31] it provided other general

information on the stubs. See [Chan's 12(M), Ex. 5]. n12

The stubs merely indicate that the balance of Chan's paid

sick leave, vacation, and personal time were decreasing

during her initial leave of absence. While it is possible that

a jury could conclude that the paycheck stubs, especially

viewed in conjunction with the Guidelines, constituted

adequate notice that paid leave would be substituted for

unpaid leave, this "notice" is far too ambiguous to entitle

Loyola to judgment as a matter of law.



n12 Several of the stubs had typed messages announcing

Loyola sponsored events as well as other general

information related to taxes and the Social Security

deductions.

III. CONCLUSION



For the reasons set forth in this opinion, the parties'

cross-motions for summary judgment are denied. The

parties shall appear for a status conference on April 20,

1999 at 9:30 A.M. at which time the court will schedule a

trial date.



ENTER:



JOAN B. GOTTSCHALL



United States District Judge

DATED: [*32] March 1, 1999