Opinion
Civ. No. AMD 99-41.
October 13, 1999.
ORDER
Plaintiff, a former employee of defendant Hogan Brothers, filed this action for damages and injunctive relief under the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq., alleging that defendant violated FMLA when it failed to afford him medical leave as he requested for the purpose of obtaining treatment for a recurrent flare-up of boils ("chronic hidradenitis suppurative"). His employment was terminated contemporaneously with his resulting absence, but the parties vigorously dispute the actual circumstances: plaintiff claims he was fired; defendant contends that he quit.
Discovery has concluded and pending before me is the defendant's motion for summary judgment which, together with the plaintiff's opposition thereto, have been read and considered. No hearing is necessary. The motion is denied.
The gravamen of the motion is that, as a matter of law, defendant lacked sufficient information, inter alia, on account of plaintiff's faulty notice to it of his actual condition, to have reasonably concluded that the particular episode of erupting boils which required treatment was a "serious health condition" within the meaning of FMLA. I am persuaded, however, viewing the record evidence and the inferences reasonably to be drawn therefrom in favor of the plaintiff as they must be, that disputes of material fact exist. Specifically and most importantly, the question of the quantity and quality of the information about plaintiff's medical condition that was in the possession of plaintiff's supervisor (who is charged with knowledge of a prior absence and who arguably had knowledge of Iversen's recurrent problem with boils), and the reasonableness vel non of the supervisor's failure to conduct a minimal inquiry into the circumstances surrounding the disputed request for leave, are not issues that can be decided as a matter of law on the present record.
Defendant also contends that, as a matter of law, plaintiff's condition was not a serious medical condition. This contention patently lacks merit and is rejected.
To the contrary, depending upon the credibility determinations it chooses to make, and the inferences it chooses to draw from the evidence, a reasonable jury might reasonably conclude that an employer armed with the information known to plaintiff's supervisor should have explored the FMLA implications of his request for leave, and that the failure to do so violated FMLA. See Gay v. Gilman Paper Co., 125 F.3d 1432, 1436 (11th Cir. 1997) ("We agree with the decisions cited above that, where an employee's need for FMLA leave is unforeseeable, the employee need only provide her employer with notice sufficient to make the employer aware that her absence is due to a potentially FMLA-qualifying reason.") (emphasis added).
The relevant regulation provides as follows, in pertinent part:
The employee should provide notice [of the need for leave] to the employer either in person or by telephone, telegraph, facsimile ("fax") machine or other electronic means. . . . The employee need not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed. The employer will be expected to obtain any additional required information through informal means.29 C.F.R. § 825.303.
This conclusion is bolstered by the factual circumstances presented by this case. Part of the difficulty for the employer lies in the fact that after Iversen took the disputed leave, he never had a further opportunity to "amplify" the notice he had previously provided to Hogan Brothers of the circumstances which necessitated his absence, either because he was fired or because he quit. Thus, Hogan argues from these circumstances (but only implicitly) that the sufficiency of an employee's notice under 29 C.F.R. § 825.303 must be measured solely by the information he or she provides in advance of the disputed absence. This seems to me plainly not to be a correct statement of the law. See, e.g., Bryant v. Delbar Products, Inc., 18 F. Supp.2d 799, 805-06 (M.D.Tenn. 1998) (discussing cases in which an employer's affirmative defense of inadequacy-of-notice was evaluated on the basis of information which was provided both before and after the period of absence for which FMLA leave was asserted). It seems instead to be an obvious reading of the statute that an employer cannot escape liability merely through the termination of an employee (assumed here for purposes of the pending motion for summary judgment) before he or she can provide fully (even upon his or her return to work) all the necessary information respecting the nature and scope of the underlying medical condition and the resulting need for leave.
Accordingly, it is this 13th day of October, 1999, by the United States District Court for the District of Maryland,
(1) ORDERED that the Defendant's Motion for Summary Judgment IS DENIED; and it is further
(2) ORDERED that this case is calendared for a three day jury trial beginning Monday, January 31, 2000, with the pre-trial conference to be held on Thursday, January 20, 2000, at 4:00 p.m.; and it is further
(3) ORDERED that the CLERK of the Court TRANSMIT a copy of this Order to counsel of record.