Opinion
IP 99-1457-C-T/G.
January 31, 2001.
Entry On Motions To Reconsider And Order Directing Further Briefing
This entry is being made available to the public on the court's web site, but it is not intended for publication either electronically or in paper form. Under the law of the case doctrine, it is presumed that the ruling or rulings in this entry will govern throughout the litigation before this court. See, e.g., Tr. of Pension, Welfare, Vacation Fringe Benefit Funds of IBEW Local 701 v. Pyramid Elec., 223 F.3d 459, 468 n. 4 (7th Cir. 2000); Avitia v. Metro. Club of Chicago, Inc., 49 F.3d 1219, 1227 (7th Cir. 1995). It should be noted, however, that this district judge's decision has no precedential authority and, therefore, is not binding on other courts, other judges in this district, or even other cases before this district judge. See, e.g., Howard v. Wal-Mart Stores, Inc., 160 F.3d 358, 359 (7th Cir. 1998) ("a district court's decision does not have precedential authority"); Malabarba v. Chicago Tribune Co., 149 F.3d 690, 697 (7th Cir. 1998) ("district court opinions are of little or no authoritative value"); Old Republic Ins. Co. v. Chuhak Tecson, P.C., 84 F.3d 998, 1003 (7th Cir. 1996) ("decisions by district judges do not have the force of precedent"); Anderson v. Romero, 72 F.3d 518, 525 (7th Cir. 1995) ("District court decisions have no weight as precedents, no authority.").
Both parties move the court to reconsider portions of the court's prior Entry Discussing Defendant's Motion For Summary Judgment, Plaintiff's Motion To Strike and Plaintiff's Notice Of Motion For Sanctions (the "Entry"). A familiarity with the prior Entry is presumed.
I. Legal Standard
In seeking reconsideration of the court's Entry, both parties mistakenly rely on Rule 59(e) of the Federal Rules of Civil Procedure, and Ms. Niese erroneously relies on Rule 60(b)(2) and (6). Rules 59(e) and 60(b) apply to motions seeking relief from final judgments or orders. Because no final judgment or order has been entered in this case at this time, these rules are inapplicable. Because the parties seek reconsideration of the court's entry granting in part and denying in part GE's motion for summary judgment, the relief they seek is properly sought under Rule 54(b) of the Federal Rules of Civil Procedure. That rule provides that:
Rule 59(e) provides:
Motion to Alter or Amend Judgment. Any motion to alter or amend a judgment shall be filed no later than 10 days after entry of the judgment.
FED. R. CIV. P. 59(e).
Rule 60(b) provides in pertinent part:
Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; Etc. On motion and upon such terms as are just, the court may relieve a party . . . from a final judgment [or] order . . . for the following reasons: . . . (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); . . . or (6) any other reason justifying relief from the operation of the judgment. . . .
FED. R. CIV. P. 60(b)(2), (6).
Thus, GE's argument that Ms. Niese's motion to reconsider should be denied as untimely under Rule 59(e) is to no avail.
any order or other form of decision, however designated, which adjudicates fewer than all the claims . . . shall not terminate the action as to any of the claims . . ., and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
FED. R. CIV. P. 54(b). Rule 54(b) thus allows a party to move the court to reconsider a grant or denial of a motion for summary judgment when the decision sought to be reconsidered did not adjudicate all the claims. See, e.g., Young v. Murphy, 161 F.R.D. 61, 62 (N.D. Ill. 1995). In the interest of justice, the court will treat the pending motions as made pursuant to Rule 54(b).
"[I]t is well established that a district court has the inherent power to reconsider interlocutory orders and reopen any part of a case before entry of final judgment." Fisher v. Nat'l R.R. Passenger Corp., 152 F.R.D. 145, 149 (S. D. Ind. 1993) (citing Marconi Wireless Tel. Co. v. United States, 320 U.S. 1, 47-48 (1943)); see also Akzo Coatings, Inc. v. Aigner Corp., 909 F. Supp. 1154, 1159 (N.D. Ind. 1995) ("Whether to reconsider an interlocutory order is within the sound discretion of the district court.") (quotation omitted). A court may reconsider an interlocutory order as justice requires. See Akzo, 909 F. Supp. at 1160, 1167.
II. Ms. Niese's Motion to Reconsider
Ms. Niese first contends that the court should reconsider its Entry because summary judgment is generally inappropriate in employment law cases as intent and credibility are central issues. (Pl.'s Br. Supp. Mot. Reconsider at 1.) Though the Seventh Circuit has said that the summary judgment standard is applied with added vigor in employment law cases, where motive and intent are crucial issues, see, e.g., Webb v. Clyde L. Choate Mental Health Dev. Ctr., 230 F.3d 991, 997 (7th Cir. 2000), as in other types of cases, summary judgment may be granted in an employment law case "if the record as a whole reveals no genuine issue of material fact and that the moving party is entitled to summary judgment as a matter of law." See id. Even where motive and intent are at issue, summary judgment may be appropriate if the plaintiff cannot produce evidence of an alleged motive or intent to discriminate. See Cliff v. Board of Sch. Comm'rs, 42 F.3d 403, 409 (7th Cir. 1994).
Ms. Niese contends the court erred in the following ways: (A) ruling that the affidavit of Carven Thomas consisted largely of hearsay; (B) denying her motion to strike; (C) finding that she did not have a disability under the ADA; (D) finding that even if she did not have a disability, she was not otherwise qualified for her job due to attendance problems; (E) finding she was not unlawfully denied Family Medical Leave Act ("FMLA") leave because she did not provide notice of a serious health condition; and (F) concluding the state wage claim was preempted by Section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185(a).
A. The Carven Thomas Affidavit
On reconsideration, the court concludes that the statements of Carven Thomas, President of Local 2249 in 1997 and 1998, that GE agreed to settle Ms. Niese's grievance over her vacation pay as part of a strike vote settlement are not hearsay. The Thomas affidavit and memorandum attached as Exhibit A are not a model of clarity, but a more careful reading of them reveals that the individual who allegedly agreed to settle Ms. Niese's grievance on GE's behalf was Mike Harris. The statements allegedly made by Mr. Harris, a Human Resources Manager at GE, do not constitute hearsay. Rather, Ms. Niese has come forward with enough evidence to establish that the statements attributed to Mr. Harris are admissible under Rule 801(d)(2)(D) of the Federal Rules of Evidence.
Ms. Niese seems to suggest that the court ruled that the Thomas affidavit in its entirety was inadmissible hearsay, but the court's ruling was limited to the statements in the affidavit that GE agreed to settle her grievance over vacation pay.
See Thomas Aff. ¶ 7 (stating that Thomas discussed the matter of Ms. Niese's entitlement to vacation pay in 1998 with Mike Harris several times), ¶ 8 (stating Thomas discussed the vacation pay issue with Harris after Ms. Niese left GE and discussed the issue with him on 15 to 20 occasions and that Harris made representations that "he would take care of it" or "it shouldn't be a problem"), ¶ 9 (stating that Ms. Niese's grievance over her vacation pay was part of a "strike vote," and once a grievance becomes part of a "strike vote" it is "essentially absorbed into the other issues and exhausted."), ¶ 10 (stating GE decided to resolve all grievance issues, Ms. Niese's grievance was a part of that settlement, GE agreed to give her vacation pay, and the vacation pay issue was not pursued further because of this agreement), Ex. A ("I Carven Thomas was witness to Donna Nieses' [sic] settlement of her grievance. To which senior labor relations manager Mike Harris agreed to pay said grievant Donna Niese vacation pay due to her for 1998. This grievance was part of a strike vote settlement.").
GE's Statement of Undisputed Material Facts No. 49 identifies Mike Harris as "the first shift Human Resources Manager."
The statements are offered against GE, and given that GE has identified Mr. Harris as a Human Resources Manager, Ms. Niese has made a minimal showing that the statements attributed to Harris concerned a matter within the scope of his agency or employment with GE. There is no dispute that the statements were made during the existence of that relationship.
It should be noted that in the memorandum memorializing the 1998 strike vote, Mr. Thomas identifies Mr. Harris as "senior labor relations manager." (Thomas Aff., Ex. A.) Though it is unclear whether a "Human Resources Manager" and "senior labor relations manager" are different titles or positions, from this a reasonable trier of fact could (but is not required to) infer that Mr. Harris held a position of even greater authority at the time of the strike vote and settlement of the grievances bundled in the strike vote than he did in the fall of 1997.
As for the statements attributed to Milton Johnson and Mike Harris in paragraph six of the Thomas affidavit, these statements likewise are admissible under FED. R. EVID. 801(d)(2)(D). Mr. Thomas states that some time in November 1997 he met with Johnson and Harris the day after Ms. Niese had met with Johnson and Ruth Ann Vaught and both Johnson and Harris indicated that Mr. Niese told them she had depression and her son was ill. Mr. Thomas continues by stating that both Johnson and Harris represented that Ms. Niese probably would be granted leave and, though they made no guarantees, they indicated "that it would not be a problem." (Thomas Aff. ¶ 6.) Mr. Thomas indicates that he conveyed this information to Ms. Niese. (Id.) The statements attributed to Johnson and Harris were made during their employment with GE, are offered against GE, and given that GE has identified both men as Human Resources Managers, it is reasonable to conclude that the statements concerned matters within the scope of Johnson's and Harris's agency or employment with GE.
GE has identified Milton Johnson as the Human Resources Manager for the second shift. (GE's Statement of Undisputed Material Facts No. 47.)
The court's prior Entry, however, did not hold that they were inadmissible hearsay.
The date of Ms. Niese's meeting with Johnson and Vaught was approximately November 15, 1997. (GE's Statement of Undisputed Material Facts No. 47.)
In reconsidering its prior ruling on GE's summary judgment motion, these statements attributed to Johnson and Harris in the Thomas affidavit are considered admissible evidence and will be taken into account. Whether any of these statements will affect the disposition of the summary judgment motion remains to be seen at this point.
B. Ms. Niese's Motion to Strike
Ms. Niese seeks reconsideration of the court's denial of her motion to strike Section III.B of GE's Memorandum In Support Of Defendant's Motion For Summary Judgment, in which GE raised a federal preemption defense to her wage claim based on Section 301 of the LMRA. The court declines to change its ruling in this regard. While Ms. Niese is correct that failure to exhaust remedies under a collective bargaining agreement is not the same as federal preemption, (see Pl.'s Br. Supp. Mot. Reconsider at 6), claims arising under Section 301 of the LMRA are governed by federal substantive law and that law generally requires an employee to exhaust any grievance and arbitration remedies provided in a collective bargaining agreement before filing suit. See, e.g., DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 163 (1983); Atchley v. Heritage Cable Vision Assocs., 101 F.3d 495, 501 (7th Cir. 1996).
An exception to this requirement arises when the union breaches its duty of fair representation. See DelCostello, 462 U.S. at 164. Such a breach has not been alleged here.
Ms. Niese argues that the court erred in basing its decision on federal law because the instant action was commenced in state court such that the court should have relied upon Indiana Trial Rules 8(C) and 12(B) and supporting case law. (See Pl.'s Br. Supp. Mot. Reconsider at 6.) The language of Indiana Trial Rules 8(C) and 12(B) is essentially identical to that contained in Rules 8(c) and 12(b) of the Federal Rules of Civil Procedure. Ms. Niese also argues that National Metalcrafters, Division of Keystone Consolidated Industries v. McNeil, 784 F.2d 817, 826 (7th Cir. 1986), cited in the court's Entry, is factually distinguishable from the instant case because this action was commenced in state court and GE agreed not to raise any new defenses. (See Pl.'s Br. Supp. Mot. Reconsider at 6-7.) This argument is unavailing for the reasons that the Indiana Trial Rules relied upon by Ms. Niese are essentially identical to the federal counterparts and, further, because the court has found that GE has not raised any new defense that did not "fairly shout" from its state court pleadings.
Indiana Trial Rule 8(C) provides: "Affirmative defenses. A responsive pleading shall set forth affirmatively and carry the burden of proving: [certain affirmative defenses] . . . and any other matter constituting an avoidance, matter of abatement, or affirmative defense." Indiana Trial Rule 12(C) provides in pertinent part: "Every defense, in law or fact, to a claim for relief in any pleading . . . shall be asserted in the responsive pleading thereto if one is required. . . ."
FED. R. CIV. P. 8(c) provides: "Affirmative Defenses. In pleading to a preceding pleading, a party shall set forth affirmatively [certain affirmative defenses] . . . and any other matter constituting an avoidance or affirmative defense." FED. R. CIV. P. 12(b) provides in pertinent part: "Every defense, in law or fact, to a claim for relief in any pleading . . . shall be asserted in the responsive pleading thereto if one is required. . . ."
Ms. Niese further argues that GE should have asserted the defense of federal preemption in the state court action, and its failure to do so bars it from raising it in this federal court. As this court previously found, given GE's allegation in its Answer and Amended Answer in the state court action that "the plaintiff is barred from recovery because she failed to exhaust her remedies under the union's collective bargaining grievance procedure agreement," (Answer, § II; Answer to Amended Compl., § II), federal preemption under Section 301 of the LMRA "fairly shouted" from the pleadings. See Nat'l Metalcrafters, 784 F.2d at 826 (concluding federal preemption "fairly shouted from the facts" since plaintiff alleged that defendant had improperly and incorrectly interpreted collective bargaining agreement under state law principles). Furthermore, the court held that Ms. Niese's claim for vacation pay was barred for failure to exhaust her remedies under the collective bargaining agreement ("CBA"). Regardless of whether GE pled federal preemption as an affirmative defense, as noted, it specifically alleged Ms. Niese's claim was barred for failure to exhaust her remedies under the CBA. (See Entry at 31.) Ms. Niese states that she never would have agreed to removal to this federal court had she known GE would raise federal preemption as a defense. However, assuming this action had remained in state court (and Section 301 of LMRA does not divest state courts of jurisdiction over actions alleging breach of collective bargaining agreements, see Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 505-06 (1962)), the state court would have been bound to apply federal law, including the requirement of exhaustion of administrative remedies. See Avco Corp. v. Aero Lodge No. 735, Int'l Ass'n of Machinists Aerospace Workers, 390 U.S. 557, 560 (1968) ("An action arising under § 301 is controlled by federal substantive law even though it is brought in a state court."); Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 456 (1957); Mitchell v. Pepsi-Cola Bottlers, Inc., 772 F.2d 342, 345 (7th Cir. 1985). Therefore, Ms. Niese's claim that equity requires reconsideration of the court's denial of her motion to strike is unavailing. For all these reasons as well as for the reasons stated in the original Entry, the court declines to reconsider its ruling on Ms. Niese's motion to strike.
Besides, as discussed infra, the court on reconsideration has determined that the claim for vacation pay is not preempted by the Section 301 of the LMRA.
C. The ADA Claims
Ms. Niese seeks reconsideration of the court's holding that she has not come forward with sufficient evidence to demonstrate that she was disabled and was an otherwise qualified individual under the Americans with Disabilities Act ("ADA"). The court declines to reconsider this decision.
To prevail on her ADA claims, Ms. Niese bears the burden of establishing first that she has a disability under the ADA. See 42 U.S.C. § 12112(a); Gile v. United Airlines, Inc., 213 F.3d 365, 372 (7th Cir. 2000); Weiler v. Household Fin. Corp., 101 F.3d 519, 524 (7th Cir. 1996). The ADA defines "disability" as "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2). Ms. Niese has alleged that she satisfies the definition of disability under prongs (A) and (C) and that she was substantially limited in caring for her family, performing household chores, taking care of her personal health, and working.
The court acknowledges that "substantially limits" does not mean that a person is totally unable to function. Rather, "'Substantially limits' means that the person is either unable to perform a major life function or is 'significantly restricted as to the condition, manner or duration' under which the individual can perform a particular major life function, as compared to the average person in the general population." Weiler, 101 F.3d at 524. In finding that Ms. Niese had not produced sufficient evidence to demonstrate that she was substantially limited in a major life activities, the court did not require her to show that she was "almost catatonic," as Ms. Niese suggests. Nor does it follow from the court's ruling that even the "most depressed" individuals can never demonstrate a substantial limitation in a major life activity. The court's finding was not based upon the mere fact that Ms. Niese could perform some daily tasks, but rather on the lack of evidence to support the conclusion that she was substantially limited in the major life activities she identified.
Evidence that Ms. Niese is unable to perform certain activities with "ordinary ease" is insufficient to show that she is significantly restricted in her ability to perform such activities. See Orme v. Swifty Oil Co., No. IP 98-1494-C H/G, 2000 WL 682678, at *5 (S.D. Ind. 2000).
Ms. Niese takes issue with the court's finding that she was not substantially limited in her ability to work, citing to the prior leave of absence she had been granted by GE. She argues, "Obviously, she was unable to work at all, and GE agreed by granting her the first leave." (Pl.'s Br. Supp. Mot. Reconsider at 9.) But the fact that Ms. Niese had been granted a prior leave is not evidence that she was unable to work at a subsequent time. Nor does it raise a reasonable inference that GE believed she was substantially limited because of an impairment. Ms. Niese compares two different, though temporally proximate, time periods. Her argument presupposes that once an individual is unable to work, that individual is unable to work at all times thereafter. Moreover, as noted in the court's Entry, on October 27, 1997, Ms. Niese "cleared the clinic" at the GE plant and provided GE with a medical release indicating that she could return to work without restrictions — compelling evidence that she was not substantially limited in the major life activity of working. See Brookins v. Indianapolis Power Light Co., 90 F. Supp.2d 993, 1002 (S.D. Ind. 2000) (employee's testimony that depression left him unable to work was insufficient to establish a substantial limitation in major life activity of working where employee's physician testified employee could work without any restrictions). This evidence also suggests that Ms. Niese's condition had vastly improved over what it had been when she was on her leave of absence.
Ms. Niese contends that the court should have focused on the reason she submitted the medical release to GE. This matter was considered and rejected by the court. The court found that Ms. Niese's unsupported assertion that the release "was not provided for the purpose of actually returning to work but rather so that Niese could move from the status of paid leave to unpaid leave because she was having problems with GE's insurance provider concerning coverage . . . the medical release and Niese's actual condition did not coincide" insufficient to create a genuine issue of material fact regarding whether she was able to perform the functions of her job when she requested leave. (Entry at 23.)
Ms. Niese claims the court ignored key evidence that although she felt better while on Prozac, it was only in relation to how she felt before taking the medication and incorrectly believed that the Prozac corrected her impairment. The court did not find that taking Prozac corrected Ms. Niese's depression; rather, the court found that the benefits of taking Prozac provided additional evidence to support the finding that Ms. Niese was not substantially limited in any major life activity. (Entry at 14-15.) The court did not need to find that the Prozac eliminated the depression in order to find that Ms. Niese was not substantially limited in a major activity. See Krocka v. City of Chicago, 203 F.3d 507, 513 (7th Cir. 2000) ("if an impaired individual employs measures to mitigate that impairment, such as taking medication or using a prosthetic device, the individual must be evaluated taking into account the ameliorating, or aggravating, effects of the measures on his ability to perform a major life activity").
Ms. Niese also challenges the court's determination that she did not produce sufficient evidence to create a triable issue regarding her ability to perform the essential functions of her job, namely regular attendance. She argues that the court's reasoning ignored why she was absent from work, but her reasons for not attending work were identified in the Entry. (See Entry at 5 (noting Johnson told Ms. Niese not to worry about her absences from work), 6 (noting Harris told Ms. Niese that he would talk to Ben Lane (GE's Human Resources Director) about her absences)). Ms. Niese does not have to show deliberate avoidance of work. See Nowak v. St. Rita High Sch., 142 F.3d 999, 1001 (7th Cir. 1998). To the extent Ms. Niese argues GE should be estopped from arguing that her absences from work prevented her from proving that she was a qualified individual because of its misrepresentations that she would be granted leave, such an argument does not assist her. Even if estoppel were applied, Ms. Niese's ADA claims still fail to survive summary judgment because of a lack of evidence that she suffers from a disability as defined under the Act.
Finally, Ms. Niese complains that the court's Entry did not address GE's duty to engage the interactive process. The court did not mention the interactive process because the process is "not an end in itself; [but] rather it is a means for determining what reasonable accommodations are available to allow a disabled individual to perform the essential job functions of the position sought." Sieberns v. Wal-Mart Stores, Inc., 125 F.3d 1019, 1023 (7th Cir. 1997). Having concluded that Ms. Niese could not demonstrate that she has a disability under the ADA, there was no reason for the court to consider whether GE engaged in the interactive process. See Hansen v. Henderson, 233 F.3d 521, 523 (7th Cir. 2000) ("When . . . [a] disabled worker has communicated his disability to his employer and asked for an accommodation so that he can continue working, the employer has the burden of exploring with the worker the possibility of a reasonable accommodation.") (Emphasis added).
For these reasons, the court declines to reconsider its prior ruling that GE is entitled to summary judgment on Ms. Niese's claims under the ADA.
D. FMLA Claims
Ms. Niese disagrees with the court's decision that her FMLA claim cannot survive summary judgment because she did not produce evidence that she had a serious health condition and did not provide GE proper notice of her or her son's condition.
Though Ms. Niese did not have to invoke the FMLA by name or assert rights under the FMLA, she had to give GE "enough information to put the employer on notice that FMLA-qualifying leave is needed." See Stoops v. One Call Commun., Inc., 141 F.3d 309, 312 (7th Cir. 1998). It remains uncontradicted that Ms. Niese's request for leave states as the reason for her requested leave: "Personal Problems Child care issues." (Def.'s Ex. D.) This court concluded that "[n]o reasonable jury could find that Ms. Niese's initial, written request for FMLA leave constituted sufficient notice that FMLA leave was needed." (Entry at 24.) Case law supports this conclusion. See Satterfield v. Wal-Mart Stores, Inc., 135 F.3d 973, 980-81 (5th Cir. 1998) (holding employee failed to give adequate notice of need for FMLA leave for unforeseeable condition where she notified employer that she had a lot of pain in her side and was unable to work that day); Carter v. Ford Motor Co., 121 F.3d 1146, 1147, 1148 (8th Cir. 1997) (holding employee failed to give adequate notice of need to take FMLA leave where his wife (also an employee) told employer that she was sick and she and her husband would be out because of family problems and employee subsequently told employer that he would be out sick and replied to inquiry that the problem was "personal").
Ms. Niese argues that GE knew she had some type of mental health problem because it had provided her with the first leave and the medical release she provided GE lists her condition as "depression." But knowledge that an employee has depression and that she had taken a prior leave of absence is insufficient to put an employer on notice that a request for leave for "Personal Problems Child care issues" is really a request for leave because of a serious health condition of the employee that makes her unable to perform her job. As explained, the medical release indicated that Ms. Niese was able to work without restrictions. GE would have no way of guessing that the very day that Ms. Niese presented herself as able to return to work without restrictions, she was requesting leave because of her serious health condition making her unable to perform her job where the stated reason for the leave was "Personal Problems Child care issues." A release to work without restrictions is not consistent with a request for FMLA leave due to the employee's serious health condition that makes her unable to perform her job. GE's duty to inquire further for additional information did not arise because Ms. Niese gave insufficient notice of the need for FMLA leave in the first instance. See Stoops, 141 F.3d at 313; Price v. City of Ft. Wayne, Ind., 117 F.3d 1022, 1025-26 (7th Cir. 1997). Ms. Niese argues that she provided some notice by telling Johnson and Harris she suffered from depression in November of 1997. But as the court decided previously, this subsequent notice — given almost two weeks after Ms. Niese requested leave — was untimely. See 29 C.F.R. § 825.303(a) (notice expected to be given in one or two working days). Had Ms. Niese argued that this notice in November 1997 should be considered a second request for FMLA leave (she has not), her argument would be unavailing. "An employer may . . . require an employee to comply with the employer's usual and customary notice and procedural requirements for requesting leave." 29 C.F.R. § 825.302(d); see Gilliam v. United Parcel Serv., 233 F.3d 969, 971 (7th Cir. 2000) (holding nothing in the FMLA or implementing regulations prevents an employer from enforcing a rule that the employee inform his supervisor by the third consecutive day of absence of the employee's plans to return work). Though Ms. Niese informed Johnson and Harris as well as Ben Lane of the alleged serious health conditions of herself and her son, it is undisputed that she never submitted another leave request form to GE.
Ms. Niese identifies this as "the physician's statement which GE and the Court relies (sic) upon" (Pl.'s Br. Supp. Mot. Reconsider at 12) and the court understands her as referring to the medical release she provided GE on October 27, 1997.
Ms. Niese next appears to be raising an argument based on equitable estoppel, detrimental reliance or other related concept, claiming GE led her to believe that her leave request would be granted. She neither identifies the doctrine upon which she relies nor cites to any legal authority to support her argument, however. (See Pl.'s Br. Supp. Mot. Reconsider at 12-13 ("When an employer tells an employee that leave will be granted, it certainly should not be allowed in later litigation to argue that somehow it did not have enough information to determine if the employee is FMLA qualified. . . .")). Possibly as a consequence, GE has not addressed this argument.
Though the Seventh Circuit in dicta has suggested that equitable estoppel may be applicable in an appropriate FMLA case, see Dormeyer v. Comerica Bank-Ill., 223 F.3d 579, 582 (7th Cir. 2000), neither the Seventh Circuit nor any other circuit court of appeals of which this court is aware has applied the doctrine to an FMLA claim. In Dormeyer, the Seventh Circuit examined a regulation implemented under the FMLA. The plaintiff had requested leave under the FMLA, and the defendant employer failed to respond to her request, which was the basis of her FMLA claim. See id. at 581. To be eligible for leave under the FMLA, an employee must have worked at least 1,250 hours during the 12 months preceding the day on which she wanted to take FMLA leave. 29 U.S.C. § 2611 (2)(A)(ii). The plaintiff did not satisfy this eligibility requirement. See Id. at 581. The regulation in question provides in pertinent part that "if the employer fails to advise the employee whether the employee is eligible [for FMLA leave] prior to the date the requested leave is to commence, the employee will be deemed eligible." 29 C.F.R. § 825.110(d). The Seventh Circuit held the regulation invalid because it allowed an employee to claim benefits to which he or she was not entitled. See Dormeyer, 223 F.3d at 582-83. In dicta, however, the Seventh Circuit suggested that where it is clear that an employee relied upon an employer's inaction, the employer may be estopped from pleading the defense of ineligibility to the employee's claim to FMLA leave. See id. at 582.
But this matter presents a different issue, not one related to FMLA eligibility. Here, Ms. Niese requested leave in a manner which did not hint that it could have been FMLA qualifying leave. The facts in the record at this stage, although disputed, indicate that GE's response to her request for leave led her to believe that her request would be granted.
Subsequently, Ms. Niese learns or suspects that her leave request was not granted. Unfortunately, by the time she discovered that her request was not granted, it was too late for her to give timely notice to GE that the request could have been for FMLA qualifying leave. Shortly after learning that her requested leave was being denied, Ms. Niese then provided GE with information about her depression and her son's medical problems — that he suffered from stomach pains and severe vomiting which had been diagnosed as irritable bowel syndrome — which information was arguably sufficient to notify GE of the FMLA qualifying nature of the leave request. This information, however, was not timely if measured from the original leave request on October 27, 1997. So the question is whether GE's response to Ms. Niese's leave request (i.e. "that it would not be a problem") estops GE (through estoppel, detrimental reliance or some other doctrine) from contending that the subsequently provided supplemental information (about her health and her son's) was untimely or otherwise inadequate. As this issue does not appear to have been squarely addressed by any controlling authority, the court believes that its decision-making would be greatly assisted by briefing by the parties. To that end the court DIRECTS the plaintiff to serve and file a brief no later than February 8, 2001:
• clarifying under what doctrine(s) her argument is(are) made;
• addressing the applicability of that doctrine(s) in the context of the FMLA generally;
• addressing the applicability of that doctrine(s) more specifically in the factual context presented here:
• where the employee's initial request for leave was insufficient notice under the FMLA,
• but the employer led the employee to believe that she would be granted leave,
• and the employee subsequently provided additional though untimely information that leave was requested for her health and her son's health.
The Plaintiff is also required to discuss the relevant statutes, regulations and/or case authorities which support her position on this issue. The Defendant is DIRECTED to serve and file a brief in response no later than February 16, 2001. The parties may supplement their Local Rule 56.1 factual assertions and evidentiary submissions if appropriate. The parties should also address the jury's role, if any, in determining whether GE is barred from asserting that Ms. Niese is not entitled to FMLA leave.
Resolution of this matter impacts the court's reconsideration of Ms. Niese's claim for leave under the FMLA as well as her FMLA retaliation claim. Therefore, the court DEFERS ruling on Ms. Niese's motion to reconsider with respect to the FMLA claims and DEFERS ruling on GE's motion to reconsider the denial of summary judgment on Plaintiff's FMLA retaliation.
E. Vacation Pay Claim
In moving for reconsideration of the grant of summary judgment on the state law wage claim, Ms. Niese contends that her claim is not preempted because the dispute over her vacation pay does not concern significant interpretation of the CBA but rather, what Mike Harris and/or other GE officials promised her. Thus, Ms. Niese argues that her claim for vacation pay is based not upon the CBA but upon a separate oral contract with GE. Upon careful reconsideration, the court finds that its earlier decision was erroneous: Ms. Niese's claim for vacation pay is not preempted by Section 301 of the LMRA.
In holding that Ms. Niese's claim for vacation pay was preempted, the court reasoned that her claim was inconsistent with the CBA. A closer examination of the authorities upon which the court relied, however, reveals that this reliance was mistakenly placed. The first case relied upon, J.I. Case Co. v. N.L.R.B., 321 U.S. 332 (1943), does not proscribe every individual contract between an employer and employee where there is a CBA. Instead, the Court left open the question of whether individual contracts more advantageous than the CBA could be enforced. Id. at 339. The court said that individual contracts "cannot subtract from collective ones, and whether under some circumstances they may add to them in matters covered by the collective bargain, we leave to be determined by appropriate forums under the laws of contracts applicable, and to the Labor Board if they constitute unfair labor practices." Id. GE's alleged oral promise to pay Ms. Niese vacation pay for 1998 is more advantageous to her than the terms of the CBA regarding vacation pay.
In Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987), the Court wrote that "J.I. Case does not stand for the proposition that all individual employment contracts are subsumed into, or eliminated by, the collective-bargaining agreement." Id. at 396. The Court stated that the employer's "basic error is its failure to recognize that a plaintiff covered by a collective-bargaining agreement is permitted to assert legal rights independent of that agreement, including state-law contract rights, so long as the contract relied upon is not a collective-bargaining agreement." Id. Rather, in Caterpillar the Court explained that Section 301 preempts two types: First, claims "founded directly on rights created by collective-bargaining agreements, and second, claims "substantially dependent on analysis of a collective-bargaining agreement." Caterpillar, 482 U.S. at 394 (quotation omitted); see also In re Bluffton Casting Corp., 186 F.3d 857, 862 (7th Cir. 1999).
Though an independent contract between Ms. Niese and GE for 1998 vacation pay may be inconsistent with the provisions of the CBA, the claim for vacation pay is neither founded directly on rights created by the CBA nor substantially dependent on an analysis of the CBA. See Caterpillar, 482 U.S. at 394. Ms. Niese claims that GE orally promised her vacation pay for 1998. She does not claim entitlement to vacation pay under the CBA. Instead, she concedes that she is not entitled to any vacation pay for 1998 under the terms of the CBA. Similar claims have been held not preempted under Section 301. See, e.g., Pauley v. Ford Elecs. Refrig. Corp., 941 F. Supp. 794, 802-04 (S.D. Ind. 1996) (holding LMRA did not completely preempt employee's state law claims to difference between wages employer allegedly promised her with lower wages she received in accordance with CBA). Further, GE's alleged oral promise to Ms. Niese regarding vacation pay for 1998 was more generous to her than the provisions of the CBA concerning vacation pay.
See Loewen Group Int'l, Inc. v. Haberichter, 65 F.3d 1417, 1422-23 (7th Cir. 1995) (holding claim for breach of individual contract not preempted where claim required only inquiry into the behavior of the parties and not into CBA and individual contract was more generous to employee). Resolution of the vacation pay claim necessitates inquiries of fact regarding what was said to Ms. Niese by Mr. Harris and/or other GE officials and when. No reference to the CBA is needed.
Chmiel v. Beverly Wilshire Hotel Co., 873 F.2d 1283 (9th Cir. 1989), is distinguishable on its facts. The CBS at issue there stated that "[n]o employee covered by this Agreement shall be . . . allowed to enter into any individual contract or agreement with the Employer . . . varying the conditions of employment contained [in the CBA]." Id. at 1235-68. Aguilera v. Pirelli Armstrong Tire Corp., 223 F.3d 1010 (9th Cir. 2000), is distinguishable because there the plaintiffs were laid off under provisions in the CBA regarding layoff and seniority, and interpretation of those provisions was found "integral" to the plaintiffs' breach of contract claims. See id. at 1013, 1015. Accordingly, on reconsideration, the court determines that the vacation pay claim is not preempted by Section 301 of the LMRA.
Moreover, there is yet another reason why the court's prior decision to dismiss the vacation pay claim was in error. When the statements attributed to Harris in the Thomas affidavit are taken into account, there is a factual issue concerning whether Ms. Niese exhausted her grievance and arbitration remedies under the CBA. Thomas states that Ms. Niese's grievance over vacation pay was bundled into the strike vote, the grievances bundled in the strike vote were essentially exhausted, and GE agreed to settle the grievances which were part of the strike vote, including Ms. Niese's grievance over vacation pay.
For these reasons, on reconsideration the court finds that Ms. Niese's claim for vacation pay is not preempted by Section 301 of the LMRA and its decision to dismiss that claim was in error. The claim is reinstated as there are triable issues of fact regarding GE's alleged promises to pay Ms. Niese vacation pay for 1998 and GE's motion for summary judgment on that claim is DENIED.
III. Conclusion
For the foregoing reasons, the court DEFERS ruling on GE's Motion To Alter, Amend Or Vacate Order Denying Summary Judgment On Plaintiff's FMLA Retaliation Claim and on Ms. Niese's Motion To Reconsider with respect to her claims under the FMLA, GRANTS Ms. Niese's Motion To Reconsider with respect to the wage claim for vacation pay, thus VACATING that portion of the Entry dismissing the claim for vacation pay (Entry at 28-31), and DENIES Ms. Niese's Motion To Reconsider in all other respects.
The Plaintiff is DIRECTED to serve and file a brief no later than February 8, 2001, as described above. The Defendant is DIRECTED to serve and file a brief in response no later than February 16, 2001. The parties may supplement their Local Rule 56.1 factual assertions and evidentiary submissions if appropriate. Ruling on the remaining issues will proceed as quickly as possible.
ALL OF WHICH IS ORDERED this 31st day of January 2001.