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QUESTIONS PRESENTED FOR REVIEW

 

1. Whether the Family and Medical Leave Act, which covers an employee’s care for a parent with a "serious health condition, also covers the following time period for funeral arrangements and other related matters for that same parent, even though the Family and Medical Leave Act, its regulations, or Legislative History fail to mention or even suggest this type of coverage. Furthermore, whether a minor omission by an employer under the Family and Medical Leave Act creates coverage for an employee who is not otherwise covered.

 

2. Whether an employee who failed to furnish a doctor’s determination of ""incapacity," defined as the inability to work or perform regular daily activities, can still meet the FMLA "incapacity" requirement if he engaged in activities such playing golf daily and managing a computer electronics business.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

TABLE OF CONTENTS

 

Questions Presented for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

 

Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

 

Statutes Involved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

 

Statements of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

 

Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

 

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

 

  1. THE FAMILY AND MEDICAL LEAVE ACT DOES NOT COVER THE TIME PERIOD NEEDED FOR FUNERAL ARRANGEMENTS AND OTHER RELATED MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

 

    1. The FMLA and its Regulations provide coverage only for the living . . . . 11

      2.  

    2. The Legislative History as well as caselaw underscores the conclusion that FMLA coverage is limited to individuals who are alive . . . . . . . . . . . . . . . . . 12

      3.  

    3. The lower courts seemed to incorrectly interpret the FMLA as covering every family crisis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

 

  1. ALTHOUGH WCG&E DID NOT PROVIDE FULL FMLA NOTICE, THIS OMISSION DOES NOT CREATE FMLA COVERAGE . . . . . . . . . . . . . . . . . . 16

 

  1. A DOCTOR’S DETERMINATION IS REQUIRED TO MEET THE FMLA "INCAPACITY" REQUIREMENT.

 

    1. The FMLA regulations explicitly require a doctor’s determination of "incapacity," which the courts have consistently upheld.

      2.  

    2. Eliminating a doctor’s determination of "incapacity" would cause employee abuse, leading to consequences that Congress sought to avoid in enacting the FMLA.

 

  1. PETITIONER OTHERWISE FAILED TO SHOW "INCAPACITY" AND THEREFORE DID NOT QUALIFY FOR FMLA LEAVE.

 

    1. A doctor’s after-the-fact testimony that "it was reasonable" for an employee to have missed work is insufficient to prove "incapacity" for FMLA purposes.

      2.  

    2. Petitioner’s engagement in regular daily activities while on leave evidences that he was not "incapacitated" for FMLA leave purposes.

 

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

TABLE OF AUTHORITIES

 

Cases

 

Beal. v. Rubbermaid Commercial Products Inc., 972 F. Supp. 1216

(S.D. Iowa 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 28

 

Bond v. Abbott Laboratories, 7 F. Supp. 2d 967 (N.D. Ohio 1998) . . . . . . . . . 20, 21, 22

 

Statutes and Regulations

 

Family and Medical Leave Act of 1993, 29 U.S.C.A.

§ 2601 (West Supp. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 8, 14, 21

 

§ 2611 (West Supp. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 19

 

Miscellaneous Authorities

 

Senate Report on the Family and Medical Leave Act of 1993, S. Rep. No. 103-3 (1993), reprinted in 1993 U.S.C.C.A.N. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13, 22, 23, 25

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

STATUTES INVOLVED

 

The Family and Medical Leave Act of 1993 provides in pertinent part as follows:

 

Section 2601 provides:

 

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(b) Purposes

It is the purpose of this Act -

(1) to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity;

(2) to entitle employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition;

(3) to accomplish the purposes described in paragraphs (1) and (2) in a manner that accommodates the legitimate interests of employers;

(4) to accomplish the purposes described in paragraphs (1) and (2) in a manner that, consistent with the Equal Protection Clause of the Fourteenth Amendment, minimizes the potential for employment discrimination on the basis of sex by ensuring generally that leave is available for eligible medical reasons (including maternity-related disability) and for compelling family reasons, on a gender-neutral basis; and

(5) to promote the goal of equal employment opportunity for women and men, pursuant to such clause.

 

29 U.S.C.A. § 2601 (West Supp. 1998).

 

 

Section 2611 provides:

 

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(2) Eligible Employee

(A) In general

The term "eligible employee" means an employee who has been employed-

(i) for at least 12 months by the employer with respect to whom leave is requested under section 2612 of this tile; and

(ii) for at least 1,250 hours of service with such employer during the previous 12-month period.

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(4) Employer

    1. In general

The term "employer"-

(i) Means any person engaged in commerce or in any industry or activity affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year;

(ii) includes-

(I) any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer; and

(II) any successor in interest of an employer;

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(11) Serious Health Condition

The term "serious health condition" means an illness, injury, impairment, or physical or mental condition that involves-

(A) inpatient care in a hospital, hospice, or residential medical care facility; or

(B) continuing treatment by a health care provider.

****

 

29 U.S.C.A. § 2611 (West Supp. 1998).

 

 

Section 2612 provides:

 

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(a) In general

(1) Entitlement to Leave

Subject to section 2613, an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period for one or more of the following:

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(C) In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.

(D) Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.

****

 

29 U.S.C.A. § 2612 (West Supp. 1998)

 

 

Section 2614 provides:

 

    1. Restoration to position
    1. In general

Except as provided in subsection (b) of this section, any eligible emplopyee who takes leave under section 2612 of this title for the intended purpose of the leave shall be entitled, on return from such leave-

(A) to be restored by the employer to the position of employment held buy the employee when the leave commenced; or

(B) to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.

****

 

29 U.S.C.A. § 2614 (West Supp. 1998).

 

Section 2615 provides:

 

    1. Interference with rights
    1. Exercise of rights

It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter.

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29 U.S.C.A. § 2615 (West Supp. 1998)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

No. 98-1001

 

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1998

____________________

 

CHARLES BAYNE,

 

Plaintiff and Petitioner,

 

v.

 

WEST COAST GAS AND ELECTRIC COMPANY,

 

Defendant and Respondent

____________________

 

ON WRIT OF CERIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

 

No. 97-7024

 

____________________

 

 

BRIEF ON THE MERITS FOR RESPONDENT

WEST COAST GAS AND ELECTRIC COMPANY

 

____________________

 

 

 

 

 

 

 

 

575147170, Issue #1

727763222, Issue #2

Santa Clara Law School

Santa Clara, California 95053

 

Attorneys for Respondent, West Coast Gas and Electric Company