Opinion
No. 1:01-CV-336.
July 10, 2002
MEMORANDUM AND ORDER
Plaintiff Fenesa Russell brings this action against her former employer, Convergys Customer Management Group ("Convergys"), pursuant to the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601-2654, and TENN. CODE ANN. § 4-21-108. She contends that Convergys failed to return her to her customer service representative position following her maternity leave. Presently before the Court is plaintiff's motion for partial summary judgment (Court File No. 5) and defendant's motion for summary judgment (Court File No. 7). For the following reasons, plaintiff's motion for partial summary judgment is DENIED and defendant's motion for summary judgment is DENIED. This case shall proceed to trial on the issues of (1) whether plaintiff Russell detrimentally relied on Convergys' representation that she was eligible for FMLA leave, and (2) whether Convergys failed to restore Russell to an equivalent job position.
I. Standard of Review
Summary judgment is appropriate where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). In ruling on a motion for summary judgment, the Court must view the facts contained in the record and all inferences that can be drawn from those facts in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); National Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th Cir. 2001). The Court cannot weigh the evidence or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the initial burden of demonstrating that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To refute such a showing, the non-moving party must present some significant, probative evidence indicating the necessity of a trial for resolving a material, factual dispute. Celotex Corp., 477 U.S. at 322. A mere scintilla of evidence is not enough. Anderson, 477 U.S. at 252; McLean v. Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). The Court's role is limited to determining whether the case contains sufficient evidence from which a jury could reasonably find for the non-moving party. Anderson, 477 U.S. at 248, 249; National Satellite Sports, 253 F.3d at 907.
II. Facts
Plaintiff Russell commenced employment with Convergys as a customer service representative in the company's 1-800-Imagine program on or about June 17, 1999. She resigned from her position on or about August 25, 1999, and her termination date was effective on August 27, 1999. Russell submitted another application for employment on April 26, 2000. Convergys rehired plaintiff effective May 5, 2000. She was provided a "bridge of service," which credited plaintiff with approximately nine weeks of service that she had accrued during her prior employment with Convergys. As a result of her bridge of service, plaintiff's initial employment date was set at February 20, 2000.
On July 31, 2000, Russell entered into a new training program for Convergys' CBM/Retention program. On August 29, 2000, she requested a leave of absence because of complications with her pregnancy. Prior to taking the leave of absence, plaintiff completed a "Leave of Absence Request Form" and circled "medical" as the reason for her leave. She did not circle "FMLA," "personal," or "military" as a basis for her leave of absence.
After receiving Russell's application, Alice Driggers, Convergys' benefits administrator, wrote to plaintiff and requested additional medical documentation. On September 12, 2000, Driggers sent plaintiff an FMLA notification stating that plaintiff was eligible for leave under the FMLA. The notice listed the commencement date of plaintiff's leave as August 29, 2000. It further indicated that the period of leave was expected to be indefinite. Plaintiff was required to provide a certificate of fitness for duty prior to being restored to her position with Convergys. Defendant contends that the notice was sent in error because plaintiff's service date was February 20, 2000, and she had not been employed with Convergys for twelve months prior to her request for leave. Additionally, she had not accumulated 1250 hours of work in the required period of time. Convergys did not inform plaintiff of the error.
Convergys then notified Russell that her leave of absence would end on November 21, 2000. She was offered a position in the CBM/Retention training class to commence on December 4, 2000. However, Russell did not join the class because the training hours were between 4:00 p.m. and 12:00 a.m. She opted to wait for the next daytime class.
Convergys also instructed Russell to obtain a return to work slip from her physician. Plaintiff obtained such documentation, which was dated December 8, 2000, and indicated that she could return to work on December 11, 2000. Plaintiff was not restored to her former position with Convergys. She now seeks damages for back pay, front pay, pain and suffering, and emotional distress.
III. Analysis
The Family and Medical Leave Act provides employees with certain substantive rights. For purposes of this case, the Act provides that eligible employees may take twelve weeks of leave within a twelve month period because of the birth of the employee's child or when the employee suffers from "a serious health condition." 29 U.S.C. § 2612(a)(1)(A) and (C). Leave for the birth of a child is available under TENN. CODE ANN. § 4-21-408 as well. Both employers and employees have certain notification obligations under the FMLA.
Like any federal employment legislation, not all individuals are entitled to rights under the FMLA. To be eligible for FMLA leave, an employee must be employed "(1) for at least 12 months by the employer with respect to whom leave is requested . . . [and] (2) for at least 1250 hours of service with such employer during the previous 12-month period." 29 U.S.C. § 2611(2)(A). Under TENN. CODE ANN. § 4-21-408, an employee must have been employed by the relevant employer for at least twelve consecutive months prior to the covered leave. It is undisputed that Russell did not actually meet any of the foregoing requirements.
Plaintiff argues, however, that Convergys cannot now revoke its earlier decision that she was entitled to FMLA leave. She argues that once Convergys notified plaintiff that her leave was being treated as leave under the FMLA, the company was bound to that decision. She argues that Convergys is now estopped from denying that plaintiff was eligible for FMLA leave.
The Department of Labor has addressed eligibility requirements in several regulatory provisions. Under 29 C.F.R. § 825.110(d) provides as follows:
If an employee notifies the employer of need for FMLA leave before the employee meets [the] eligibility criteria, the employer must either confirm the employee's eligibility based upon a projection that the employee will be eligible on the date leave would commence or must advise the employee when the eligibility requirement is met. If the employer confirms eligibility at the time the notice for leave is received, the employer may not subsequently challenge the employee's eligibility.
Applying the plain terms of this provision to the facts of the present case, Convergys, who notified Russell that she was eligible for FMLA leave, cannot now protest her eligibility. Although Russell did not meet the eligibility criteria of 29 U.S.C. § 2611(2)(A), she was deemed eligible by her employer at the time she requested medical leave.
Convergys argues that 29 C.F.R. § 825.110(d) is overly broad and therefore unenforceable. A number of courts have considered this argument, and there is a split of authority on the matter. Most of the courts considering the issue have found that the regulation impermissibly enlarges the statutory definition of an eligible employee. See Woodford v. Community Action of Greene County, Inc., 268 F.3d 51, 56-57 (2nd Cir. 2001); Brungart v. BellSouth Telecomm., Inc., 231 F.3d 791, 797 (11th Cir. 2000); Dormeyer v. Comerica Bank-Illinois, 223 F.3d 579, 582 (7th Cir. 2000). One court has found the regulation to be a permissible exercise of the Department of Labor's rulemaking authority. See Miller v. Defiance Metal Prods., 989 F. Supp. 945, 949 (N.D.Ohio. 1997). However, this Court need not decide the issue, as plaintiff has raised another argument that governs the matter.
Russell contends, in the alternative, that even absent § 825.110(d), Convergys is equitably estopped from denying her eligibility under the FMLA. Several courts have acknowledged the possibility that such an equitable claim may apply under the FMLA. See Woodford, 268 F.3d at 57; Dormeyer, 223 F.3d at 582. "Equitable estoppel prevents relief when one party induces another to believe certain facts exist and the other party changes his position in reasonable reliance on those facts to his detriment." Miller v. Fidelity Security Life Ins. Co., ___ F.3d ___, 2002 WL 1343742, *5 n. 5 (6th Cir. June 21, 2002) (quotation omitted). Where a party negligently or intentionally induces reliance on a set of facts, it cannot later deny those facts in a legal proceeding. Great Earth Cos. v. Simons, 288 F.3d 878, 895 (6th Cir. 2002).
The parties do not address whether equitable estoppel would apply to plaintiff's claim under TENN. CODE ANN. § 4-21-408. However, the rights provided by that statute are coextensive with those provided by the FMLA. See Best v. Distribution Auto Servs., 1999 WL 704730, *4 (Tenn.Ct.App. Sept. 13, 1999).
The present case involves a genuine issue of material fact as to whether plaintiff detrimentally relied on Convergys's representation that she was eligible and approved for FMLA leave. Viewing the facts in the light most favorable to Russell, a factfinder could conclude that she took maternity leave for the time she did because Convergys instructed her that she was entitled to such leave. Plaintiff did not request "FMLA leave," but only "medical leave," suggesting that she did not intend to utilize the full amount of leave available under the FMLA. Convergys then instructed plaintiff that she was entitled to twelve weeks of unpaid leave under the FMLA. A jury could conclude that plaintiff relied on Convergys' representations to determine the length of her leave. The Court cannot make this determination in ruling on the present motions for summary judgment. See J.C. Wyckoff Assoc. v. Standard Fire Ins. Co., 936 F.2d 1474, 14 (6th Cir. 1991) ("[w]here an allegation of estoppel raises factual questions on which reasonable minds might disagree, the questions must be resolved at trial by the trier of fact").
Finally, Convergys contends that it is entitled to summary judgment because plaintiff failed to return to work and enter the training session commencing on December 4, 2000. Defendant argues that plaintiff's decision not to accept the training program that occurred between the hours of 4:00 p.m. and 12:00 a.m. rendered her ineligible to return to work after that time. Therefore, they argue that plaintiff was compelled to accept the position in the training session offered.
Upon the completion of an employee's FMLA leave, she is entitled "to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment." 29 U.S.C. § 2614(a)(1)(A). Moreover, the employee is entitled to return to the same shift on which employed before taking FMLA leave." 29 C.F.R. § 825.216(a)(2). The December 4, 2000 training session occur at hours considerably different from those Russell worked prior to her leave. Additionally, Russell asserts that Convergys promised her the ability to return to a day shift class. Under these circumstances, a factual issue exists as to whether Convergys properly attempted to restore Russell to an equivalent position. This determination is properly left to the trier of fact. Summary judgment shall be denied.
An order shall enter.