8th CIRCUIT SAYS EMPLOYEE FAILED TO PROVIDE FMLA NOTICE

The United States Court of Appeals for the Eighth Circuit says that an employee who had often followed a company’s call-in procedure in the past, but instead relied on a coworker to notify her employer of her need for Family and Medical Leave Act (FMLA) leave failed to provide sufficient notice of her need for FMLA leave. The employee’s retaliation claim was also rejected because the employee did not provide notice on a timely basis.

 

The case is Tanya Bosley v. Cargill Meat Solutions Corporation.

 

Tanya Bosley, an employee of Cargill Meat Solutions Corporation, missed work because of depression and other health issues. Bosley missed the entire month of February 2008. Bosley failed to use Cargill’s call-in procedure for absences. Bosley also did not notify Cargill that she would qualify for leave under FMLA. Cargill terminated Bosley’s employment, and Bosley sued Cargill, asserting FMLA entitlement and retaliation claims. The district court granted Cargill’s motion for summary judgment on both claims. Bosley appealed, and the 8th Circuit affirmed the decision.

 

Tanya Bosley was hired by Cargill in September 2003. Bosley regularly carpooled to work with her coworker, Christine Pilcher. Bosley sometimes missed work due to illness, and she occasionally took leaves of absence under the FMLA. William Crowell was Bosley’s supervisor. Sometimes when Bosley was absent from work due to illness, Pilcher would notify Crowell of the absence on Bosley’s behalf.

On February 1, 2008, Pilcher arrived to pick up Bosley. Bosley told Pilcher that she could not get up due to depression. Bosley missed work that day, and Pilcher informed Crowell that Bosley was absent because she was sick.

 

Cargill’s attendance policy included a call-in procedure for employees to inform Cargill of any necessary and unavoidable absences through an automated phone system. Under Cargill’s policy, failure to comply with the call-in procedure on three consecutive work days would result in a voluntary termination of employment. Bosley was familiar with this policy. She had the call-in number programmed into her phone, and she successfully utilized the procedure on over 100 occasions. Nevertheless, on February 1, Bosley did not call Cargill. In fact, Bosley missed work the entire month of February 2008, and she never used the call-in procedure.

 

The record shows that between February 1 and February 21, Bosley was conscious, able to get out of bed, able to visit two healthcare providers, and able to communicate coherently. She admitted in deposition testimony that her depression improved and ceased to be incapacitating around February 15. According to her FMLA paperwork, her condition was no longer incapacitating by February 25.

 

On February 16, during Bosley’s absence, David Clark replaced Crowell as Bosley’s supervisor. Clark was unaware of Bosley’s mental health condition, and he did not know why Bosley was absent. In late February, Clark inquired about Bosley to Cargill’s nurses’ office, Cargill’s FMLA coordinator and Cargill’s human resources manager. No one had any information regarding her absence. On February 27, Cargill terminated Bosley’s employment on the basis that she had three consecutive call-in violations between February 1 and 27. On March 3, Bosley went to Cargill to pick up forms for approval of FMLA leave for her missed work during the month of February. That day, Bosley learned of her termination.

 

Bosley filed suit in the district court, asserting entitlement and retaliation claims under the FMLA. Cargill moved for summary judgment. The district court granted summary judgment to Cargill on both claims, finding that Bosley did not meet her obligation to provide notice to Cargill of her need for protected leave under the FMLA. Bosley appealed, asking the 8^th Circuit court to reverse the district court’s grant of summary judgment.

 

Bosley argued that the district court erred in finding that she failed to satisfy her notice obligation under the FMLA. Bosley asserted FMLA entitlement and retaliation claims.

 

The regulatory language in place in February 2008 provided that notice may be given by the employee’s spokesperson (e.g., spouse, adult family member or other responsible party) if the employee is unable to do so personally. Bosley argued that Pilcher gave notice to Cargill of Bosley’s absence from work due to depression and, hence, of her need for FMLA leave. Bosley pointed to Pilcher’s deposition testimony regarding the conversation that Pilcher had with Crowell on February 1.

 

Pilcher’s affirmation that at some point she told Crowell that Bosley was depressed was directly contradicted by a statement in her own affidavit. Pilcher’s equivocal and self-contradictory recollections of what she told Crowell fail to show that Bosley gave notice through Pilcher. The only reasonable inference that could be drawn in Bosley’s favor is that Pilcher simply did not recall whether she told Crowell that Bosley was depressed. The 8^th Circuit held that Bosley provided insufficient evidence for a reasonable jury to find that she gave Cargill adequate notice under the FMLA.

 

Bosley argued that Department of Labor regulations excuse the notice requirement where extraordinary circumstances make the giving of such notice unrealistic. Cargill responded that the regulation does not excuse the notice requirement altogether in extraordinary circumstances; rather, it merely modifies the general rule that “as soon as practicable” means one or two working days. Cargill’s interpretation is correct. The language of the regulation does not completely excuse the notice requirement but only extends the allowable notice period beyond two working days.

 

Bosley did not make contact with Cargill until March 3, 2008—32 days after she last utilized the call-in procedure. Bosley stated no facts constituting extraordinary circumstances to justify her delay in notifying Cargill. As a matter of law, Bosley’s notice requirement was not excused on the basis of extraordinary circumstances.

 

Bosley argued that her behavior could have placed Cargill on constructive notice of her need for FMLA leave. The 8^th Circuit said that there are no genuine issues of material fact as to her failure to satisfy her notice obligation under the FMLA and that the district court did not err in dismissing Bosley’s entitlement claim.

 

An employee’s meeting his or her notice obligation to an employer of a need for FMLA leave is essential to a FMLA retaliation claim. Here, Bosley notified Cargill that she would seek FMLA leave only after Cargill had terminated her employment. Because Bosley did not meet her FMLA notice obligation to Cargill while employed, her termination could not have been retaliation. There is no genuine issue of material fact regarding Bosley’s failure to meet her notice obligation, so Bosley failed to make a prima facie case for FMLA retaliation. The 8^th Circuit found that the district court did not err in dismissing this claim.

 

While the employer in this case let the absence slide for a long period of time, the employer’s clear call-in policy, including the consequences of failure to follow the policy helped the employer win this case. This case should serve as a reminder to all employers to have clear policies on reporting absences.