STATEMENTS OF FACTS
Charles Bayne ("Petitioner") filed a lawsuit against West Coast Gas & Electric Company ("WCG&E") in the United States District Court for the Northern District of California in March 1997, claiming that he was entitled to leave under the Family and Medical Leave Act ("FMLA"), and that his termination was a violation of the FMLA. Although the district court found that a part of Petitioner’s leave was covered by the FMLA, the court granted WCG&E’s motion for summary judgment, denying Petitioner’s FMLA claim because no health care provider had determined him to be "incapacitated," or "unable to perform the functions of his position," for the majority of the time Petitioner was off of work. The United States Court of Appeals for the Ninth Circuit affirmed the district court’s ruling. This Court granted Petitioner’s Petition and WCG&E’s Cross Petition for Writ of Certiorari as to the two issues addressed herein.
WCG&E is a gas and electricity service provider that, for some time, has been in the process of moving its power plant operations from a regulated market to a competitive, unregulated market. In order to be in the position to provide the best possible service to its customers at the most competitive prices beginning in 1998 when its power plant operations would be deregulated, WCG&E began implementing new policies as early as January 1996 to increase productivity and minimize costs. As part of this process, WCG&E informed employees of a new absentee policy which they were expected to follow. This policy allowed employees to be absent from work as long as they had enough vacation, holiday, or sick leave to cover their absences. Employees were notified that those who did not comply with the policy would have their employment terminated.
Even before WCG&E implemented the new absentee policy, 36 year-old Petitioner had a history of being absent for more days than he had accumulated. Although WCG&E did not take any action against Petitioner prior to 1996, it was made clear to him and other employees that future violations would result in termination of employment.
As a Control Center Operator for WCG&E, Petitioner was responsible for ensuring the smooth operations of WCG&E’s transmission system, which spans more than half the state of California. In addition to his job at WCG&E in San Francisco, Petitioner and his father owned a company in Santa Clara, which recycled integrated circuits for various local computer companies. When Petitioner was not working at WCG&E, he helped manage this business part-time, on nights, and on weekends. WCG&E did not disapprove of his computer electronics business as long as it did not interfere with his job with WCG&E.
Petitioner’s extensive 1996 absences began in March of that year when he asked for six weeks of leave due to family problems, which WCG&E granted. This absence was paid time off, because Petitioner had accumulated that much leave time.
On November 18, 1996, Petitioner left work upon receiving news that his father was in a coma at the hospital due to a suicide attempt. At that time, Petitioner informed his supervisor that he needed time off to "deal with all of this." Petitioner did not return to work until January 6, 1997. Petitioner’s father passed away on November 22, 1996. In the next few weeks, Petitioner made funeral arrangements and received relatives from Louisiana who came for the funeral. Petitioner also arranged for the sale of his house and reorganized his computer electronics business. On December 9, 1996, WCG&E sent Petitioner a letter, which conveyed the company’s condolences for his loss. The letter also informed Petitioner that since he had depleted his accumulated paid time off, he would be eligible for FMLA leave if he provided medical certification of a serious health condition. In accordance with the new absentee policy, Petitioner was notified that his employment would be terminated if this certification were not provided.
Alarmed, Petitioner the day after receiving the letter made an appointment with Dr. Roberta France ("Dr. France"), a psychiatrist with his health maintenance organization. During this visit, France found somatic symptoms of grief, which included nervousness, crying spells, rapid pulse, fatigue and insomnia. She was unable to make a more specific diagnosis. Although "very concerned" for him, France did not recommend to Petitioner that he should take time off of work. In addition, she did not indicate on her medical record that Petitioner was either "incapacitated" or unable to perform the functions of his position at WCG&E. Nonetheless, she gave him a note to give to WCG&E detailing his symptoms. No medication was prescribed for Petitioner; he was only instructed to return to the psychiatrist’s office twice a week for the following few weeks in order to talk through his grief process. France also recommended that Petitioner manage his company’s affairs as well as spend some time relaxing in order to assist his recovery.
Following this appointment, Petitioner provided WCG&E with France’s note regarding his diagnosis. This note made no mention of his inability to return to work, nor did it recommend that he take time off of work. During his remaining absence, Petitioner did not cut back on the number of hours he spent expanding his computer electronics business, but instead devoted the same amount of time to his business as he would have under normal circumstances. In addition to working on his business many nights and weekends, Petitioner set aside approximately five hours per day to play a round of golf with fellow WCG&E employees who had days off. Despite Petitioner’s other activities, he also managed to meet with his psychiatrist twice a week.
On January 6, 1997, he was informed that WCG&E had to end his employment because his accumulated paid leave had expired, and that the FMLA did not cover his near-six week absence. Petitioner then brought this action against WCG&E.
During a subsequent deposition, France admitted that although she thought "it was reasonable" for Petitioner to have missed work, she did not specifically recommend that he take time off of work. Although France initially compared Petitioner’s position to that of an air traffic controller, she later admitted that she was "not exactly sure what all he did at his job." When asked if Petitioner was able to perform the functions of his job, France hesitated, saying that she "couldn’t know for sure," and that she "was not completely convinced that he could have" handled the stress. She also testified that although Petitioner did not make an appointment with her until December, he "in all likelihood" had been in grieving for a while, but was able to keep going in order to accomplish his duties and errands.
After hearing oral argument on WCG&E’s summary judgment motion, the district court found that Petitioner’s first two weeks of leave following his father’s death (from November 23, 1996 to December 8, 1997) were covered by the FMLA on two grounds: 1) Petitioner was still attending to the details of his father’s "serious health condition;" and 2) WCG&E should have informed Petitioner that he should return to work after his father’s death. However, the court still rejected his FMLA claim because no health care provider had determined during the remainder of his leave (December 9, 1996 to January 5, 1997) that Petitioner was "unable to perform the functions of his position" or "incapacitated" due to his condition. Accordingly, the district court entered judgment for WCG&E, which the Court of Appeals for the Ninth Circuit affirmed.
SUMMARY OF THE ARGUMENT
The FMLA covers a wide range of situations, yet nowhere in the FMLA or the Department of Labor’s implementing regulations ("Regulations") is it suggested that coverage extends beyond matters of the living. Specifically, FMLA coverage for caring for a family member with a "serious health condition" ends upon that family member’s death. The lower courts ruled erroneously when they found that the first two weeks following Petitioner's father's death were covered because Petitioner was still attending to the details of his father's "serious health condition." Although Petitioner was covered under the FMLA when his father was living, once Petitioner's father died, Petitioner's FMLA coverage ended as his father no longer suffered from a "serious health condition."
The FMLA Legislative History and relevant caselaw also support this conclusion. The Legislative History, which provides the greatest insight into what Congress intended when it passed the FMLA, reveals that FMLA coverage applies to a parent suffering from a "serious health condition" only while alive. With this foundation, it is not surprising that all courts prior to this case have repeatedly held that the FMLA does not cover funeral leave. Funeral leave is not a "serious health condition" which affects the living.
The FMLA, while broad in its application and interpretation, does have limits. For instance, the FMLA does not cover a call from a police station or from school authorities, a minor ailment that keeps a child home from school with no help immediately available, or a personal crisis in the life of a child or a parent which may cause a severe conflict for an employee between work and family responsibilities. If the FMLA is judicially expanded beyond the limits set by Congress to cover funeral leave, it will be difficult for courts to know where to draw the line limiting this type of coverage. There are inherent practical problems in expanding coverage, because unlike other types of leave such as pregnancy leave, or time off to care for a sick parent, there is no such benchmark to use in evaluating just how long after a parent’s death a child is permitted to "care" for the deceased parent’s estate without abandoning the protections of the FMLA. The FMLA may be interpreted broadly so long as that broad interpretation is practical and consistent with intentions of Congress.
In accordance with the FMLA and its Regulations an employer must provide adequate notice to employees of FMLA policies. However, an oversight, which resulted in a lack of notice of Petitioner’s rights under the FMLA, does not establish coverage for the time Petitioner was absent from work after his father died because his FMLA coverage had ended upon his father’s death. In other words, the FMLA does not create substantive rights in the employee (e.g. FMLA coverage) when an employer mistakenly fails to follow procedure. Furthermore, because Petitioner never qualified for FMLA leave, the failure to provide him with notice did not cause him to forfeit any FMLA coverage. In order for a lack of notice of FMLA rights to interfere with one’s attempt to exercise these rights, there must be a valid FMLA claim. Because petitioner never had a valid FMLA claim after his father died, it is unnecessary to decide the effect lack of notice may have had on his FMLA rights.
Whether or not his first two weeks of leave were FMLA-qualified, the lower courts properly denied Petitioner FMLA leave for the remainder of his absence because he failed to show "incapacity" during that time. For Petitioner’s leave to be FMLA-qualified due to his own "serious health condition," his condition had to pass a two-prong test: 1) it had to "incapacitate" him for over three days; and 2) it had to involve continuing treatment of two or more times by a health care provider. Courts do not consider the second prong until the employee passes the first one. To meet the first prong, the FMLA Regulations provided that the employee must obtain a doctor’s determination of his "incapacity." Petitioner, having failed to furnish a doctor’s determination of "incapacity" during his leave following his father’s death, did not pass the first prong and therefore did not qualify for FMLA leave.
To ignore the FMLA requirement of a doctor’s determination of "incapacity" invites employee abuse, which leads to consequences that Congress did not intend the FMLA to precipitate. Without a doctor’s determination of an employee’s "incapacity," the employee or anyone else will be able to declare himself "incapacitated" due to a minor illness (a condition that the FMLA explicitly excluded) for up to the twelve weeks of leave within a twelve-month period allotted by the FMLA. The employer’s efforts to save costs in maintaining an enlarged staff to cover its loss in personnel will be reflected in reduced benefits to its employees, higher prices of its products and services to consumers, and possible dissolution of employers, all of which cyclically will affect society. Thus, the elimination of the requirement of a doctor’s determination of "incapacity" would be contrary to the two fundamental concerns of the FMLA: 1) the needs of the American workforce and 2) the development of high-performance organizations.
Even without his required medical determination of "incapacity," Petitioner still fails to qualify for leave under the FMLA. At the time an employee visits a doctor, the doctor must assess conclusively that the employee’s condition falls under the FMLA’s legal definition of "incapacity." Dr. France, however, failed to indicate any "incapacity" on her medical record or on her note that Petitioner gave WCG&E regarding his diagnosis. She did not even recommend that he take time off of work. Instead, she told him to talk with her twice a week and to relax. Dr. France’s after-the-fact speculation that it was "reasonable" for Petitioner to have missed work is insufficient for a finding of "incapacity" under the FMLA, especially since she was uncertain as to the nature of Petitioner’s position at WCG&E. Accordingly, Petitioner was not "incapacitated" as required for FMLA leave.
Furthermore, an employee who, while on leave, can still meet a family need or perform an activity of daily living does not meet the FMLA standard of "incapacity." Consequently, because Petitioner during his absence played a round of golf daily and managed his and his father’s computer electronics business every night and on weekends, he could not have been "incapacitated" under the FMLA. While on leave, Petitioner also executed the sale of his house, which involved procuring a broker and most likely an attorney. Only after receiving the letter from WCG&E informing him of the need for medical certification did Petitioner seek a psychiatrist and make an appointment. The combination of Petitioner’s activities leads to the inevitable conclusion that he was not "incapacitated" under the FMLA. As a result, the lower courts properly denied Petitioner FMLA leave because he lacked the requisite "incapacity."
ARGUMENT
The Family and Medical Leave Act allows eligible employees up to twelve weeks of unpaid leave during any twelve-month period for reasons including the birth or adoption of a child; care for son, daughter or parent suffering from a serious health condition; or care for an employee’s own "serious health condition." 29 U.S.C.A. § 2612(a)(1). An employee is entitled to "be restored" to the same position that the employee held before taking FMLA leave. 29 U.S.C.A. § 2614(a)(1)(A) & (B). Here, WCG&E is an employer covered under the FMLA, see 29 U.S.C.A. § 2611(2), and Petitioner is an employee eligible for FMLA leave, see 29 U.S.C.A. § 2611(4). The FMLA balances the needs of families with the demands of the workplace in a manner that accommodates the legitimate interests of employers. 29 U.S.C.A. § 2601(b)(1) & (3). Petitioner seeks to disrupt that balance by asking this Court to interpret the FMLA contrary to its intended purpose and that of Congress when it adopted the Act.
The lower courts erroneously ruled that funeral leave is covered by the FMLA. The FMLA, which in specific situations enables employees to take time off work without jeopardizing their job security, does not cover time off for employees to attend to personal affairs after the death of a parent. Other than the lower courts' decisions in this case, which would allow FMLA coverage for funeral leave, there has been no other indication that this type of leave is within the scope of the FMLA. Rather, the text of both the FMLA and of the Department of Labor’s Regulations governing the FMLA, make it clear that only the living are covered. The Legislative History as well as caselaw is supportive of this finding that the FMLA is limited to those that are alive. Additionally, sound public policy mandates that FMLA coverage not be extended so far as to include the needs of the deceased.
Contrary to the language of the FMLA and the Department of Labor Regulations, the United States Court of Appeals for the Ninth Circuit affirmed the ruling of the United States District Court for the Northern District of California that the first two weeks taken off work following Petitioner’s father’s death were covered by the FMLA. Although the lower courts decided that because Petitioner was still attending to the details of his father’s "serious health condition," for which he was on leave already, and thus FMLA coverage was warranted, this finding is erroneous since it lacks support in the statute as well as in the Regulations.
Neither the FMLA nor the Regulations expressly provide for or even suggest that the FMLA covers funeral leave. Rather, the FMLA provides that an "eligible employee shall be entitled to . . . leave . . . in order to care for . . . a . . . parent . . . if such . . . parent has a serious health condition." 29 U.S.C.A. § 2612(a)(1)(C). While it is uncontested that the time taken by Petitioner to assist his sick father falls within this definition because his father had a "serious health condition," this coverage definition does not encompass the time after his father’s death because his father no longer had a "serious health condition." The FMLA defines a "serious health condition" as "an illness, injury, impairment, or physical or mental condition that involves inpatient care in a hospital . . . or continuing treatment by a health care provider." 29 U.S.C.A. § 2611(11). The FMLA Regulations further clarify this definition to mean inability to attend to "regular daily activities," and include many examples to illustrate this point. 29 C.F.R. § 825.114(a)(1), (c)(4) (Alzheimer's, a severe stroke, terminal stages of a disease). One court said it well: "[p]ut simply, if Congress wanted to ensure that employees on FMLA leave could take additional time off after a family member died from a "serious health condition," it easily could have said so in the statute." Brown v. J.C. Penney Corp., 924 F. Supp. 1158, 1162 (S.D. Fla. 1996). Considered together, the language of the statute and Regulations make it apparent that the term "serious health condition" is limited to health problems that afflict an individual who is alive.
Additionally, the phrase "to care for . . . a parent" from Section 2612(a)(1)(C) of the FMLA is also limited to matter of the living. The FMLA Regulations define "to care for" as "encompass[ing] both physical and psychological care. It includes situations where . . . the family member is unable to care for his or her own basic medical, hygienic or nutritional needs or safety . . . ." 29 C.F.R. § 825.116(a). The term "to care for" also includes situations where the employee may be needed to fill in for others who are caring for the family member. . . ." 29 C.F.R. § 825.116 (b). Contrary to the lower courts' decisions, visiting with relatives, arranging real estate transactions, and devoting time to further the growth of Petitioner's electronics business does not fall within the boundaries of this definition. Section 825.116 most certainly allows FMLA coverage for the management of details of sick family members who are alive, as all examples given in section 825.116 (as well as the entire FMLA) pertain only to the care of the living. The examples given in the Regulations do not make any sense if they are interpreted to cover the deceased as well as the living. "Providing psychological comfort and reassurance . . . to a parent with a "serious health condition" (29 C.F.R. § 825.116(a)) is only logical if that parent is alive. To interpret the plain language of the FMLA and Regulations otherwise would considerably alter the meaning and purpose of the FMLA.
The FMLA Legislative History is consistent with the foregoing interpretation of the language of the statute and the Regulations. Although the definition of "serious health condition" is "broad and intended to cover various types of physical and mental conditions," (S. Rep. No. 103-3, at 28 (1993), reprinted in 1993 U.S.C.C.A.N. 3, 30) it should not be interpreted so broadly as to extend coverage beyond the needs of the living. Generally, a "serious health condition" of a parent covers "illnesses that affect the health of the . . . parent such that he . . . is . . . unable to participate in . . . regular daily activities." Id.
Example of serious health conditions include but are not limited to heart attacks, heart conditions requiring heart bypass of valve operations, most cancers, back conditions requiring extensive therapy or surgical procedures, strokes, severe respiratory conditions, spinal injuries, appendicitis, pneumonia, emphysema, severe arthritis, severe nervous disorders, injuries caused by serious accidents on or off the job, ongoing pregnancy, miscarriages, complications or illnesses related to pregnancy . . . .
S. Rep. No. 103-3, at 29 (1993), reprinted in 1993 U.S.C.C.A.N. 3, 31. These examples of "serious health conditions" illustrate that the drafters of the FMLA intended coverage to extend only to medical conditions affecting the living.
The Legislative History also provides greater insight into what Congress intended in FMLA section 2612(a)(1)(C) which allows children to take time off work to care for parents with "serious health conditions." "Examples include a parent or spouse whose daily living activities are impaired by such conditions as Alzheimer’s disease, stroke, or clinical depression or who is recovering from major surgery or who is in the final stages of a terminal illness." S. Rep. No. 103-3, at 24 (1993), reprinted in 1993 U.S.C.C.A.N. 3, 26. Once again, this definition only includes health conditions affecting the living.
With this foundation in mind, it is not surprising that all courts prior to this case have reached the conclusion that FMLA coverage for care of a parent with a "serious health condition" ends when that parent dies. The first court to deal with the issue in a published decision found that FMLA leave ended when the plaintiff’s terminally ill father died. Brown v. J.C. Penney Corp., 924 F. Supp. 1158, 1162 (S.D. Fla. 1996). The court reasoned, "the drafters of the FMLA were concerned with medical conditions affecting the living." Id. The Brown court also found that "the term ‘serious health condition’ is limited to health problems that afflict an individual who is alive." Id. Additionally, after reviewing the Legislative History, the court concluded "we see no basis to carve out a judicially crafted exception to an otherwise plain limitation in the FMLA." Id. See also Lange v. Showbiz Pizza Time, Inc.,12 F. Supp. 2d 1150, 1154 (D. Kan. 1998) ( "[A] ‘serious health condition’ within the meaning of the FMLA contemplates only ‘medical conditions affecting the living.’"); and Beal v. Rubbermaid Commercial Prods. Inc., 972 F. Supp. 1216, 1226 (S.D. Iowa 1997) ("Leave is not meant to be used for bereavement because a deceased person has no basic medical, nutritional, or psychological needs which need to be ‘cared for.’").
The facts of Petitioner’s case are identical to those involved in Brown. There, plaintiff took leave to care for his terminally ill father and did not return to work until almost a month after his father died. Brown 924 F. Supp. at 1162 (S.D. Fla. 1996). Here, Petitioner took leave to care for his sick father and did not contact WCG&E until several weeks after his father’s death and did not return to work for almost two months. The similarities between these cases compel a finding consistent with that of Brown its progeny, that leave after a parent has died is not covered by the FMLA. Considering the fact that the courts have repeatedly interpreted the FMLA as not covering funeral leave, perhaps Petitioner would be more successful pursuing a legislative remedy. Since the courts do not seem willing to rewrite the statute, Petition should ask the Legislature to consider the possibility of expanding the FMLA to include funeral leave.
The FMLA is not a comprehensive family crisis statute and should not be interpreted as being one. The FMLA was established to serve a distinct purpose limited to only four situations. In the words of the drafters, "[i]t is the purpose of this Act . . . 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." 29 U.S.C.A § 2601(b)(2). The Court must be careful not to extend the coverage beyond what is intended by this simple purpose statement. Situations such as a call from a police station or from school authorities, a minor ailment that keeps a child home from school with no help immediately available, or a personal crisis in the life of a child or a parent which may cause a severe conflict for an employee between work and family responsibilities are not covered by the FMLA. Nor does the FMLA cover Petitioner's situation, unfortunate as it was.
Some courts view the FMLA as a remedial statute, meaning that it "should be construed broadly to effectuate its purposes." Arnold v. United Parcel Serv., Inc., 136 F.3d 854, 861 (1st Cir. 1998); Hodgens v. General Dynamics Corp., 144 F.3d 151 (1st Cir. 1998) (the "purpose [of the FMLA] is better served by adopting [a] broader reading than by adopting [a] more constrained construction . . . ."). Although WCG&E agrees that the purpose of remedial statutes is best served when interpreted broadly, if interpreted too broadly there is the risk that the purpose of the remedial statute will be lost because it will become unmanageable. In other words, a broad interpretation of the FMLA may make sense as long as it is within the parameters set by Congress. Nowhere in the FMLA, its Regulations, or Legislative History is the slightest suggestion that leave after a parent dies is covered. To interpret the Act that broadly would be contrary to original intentions of the Legislature as well as the stated purpose of the Act.
Moreover, expanding the FMLA to cover funeral leave, has inherent practical problems because such coverage was never contemplated by Congress when it drafted the FMLA. If the FMLA were to be expanded to include funeral leave there would be "no meaningful benchmark to use in evaluating just how long after a parent’s death a child is permitted to "care" for the deceased parent’s estate without abandoning the protections of the FMLA." Brown, 924 F. Supp. at 1162. Unlike pregnancy leave or leave to care for a parent suffering from a "serious health condition" where it is easy to define a specific point at which FMLA coverage ends, funeral leave has no such readily identifiable bright line. For some families the grief process could conclude quickly, while for others it could take months. Given this ambiguity it makes no sense to weaken the overall structure of the FMLA by expanding it to include funeral leave coverage.
The FMLA and its Regulations require an employer to provide adequate notice to employees of FMLA policies. However, a lack of notice does not equate to automatic FMLA coverage. The lower courts erroneously concluded that Petitioner was entitled to coverage simply because of an oversight on the part of WCG&E to alert Petitioner to the fact that time off after his father's death was not covered by the FMLA. The ruling of the lower courts is incorrect for several reasons. First, substantive rights in the employee are not created by a mere procedural mistake of the employer. And second, because Petitioner never qualified for FMLA leave, the failure to provide him with notice did not cause him to forfeit any FMLA coverage.
The Regulations require that if "an employer does not have . . . [a] handbook . . . the employer shall provide written guidance to an employee concerning all the employee’s rights and obligations under the FMLA." 29 C.F.R. § 825.301(a)(2). Furthermore, "the notice shall be given within a reasonable time after notice of the need for leave is given by the employee . . . ." 29 C.F.R. § 825.301(c). WCG&E now realizes that notice should have been provided to Petitioner within a few days of when Petitioner left work on November 18, 1996. On December 9, 1996 Petitioner did receive a letter from WCG&E alerting him to the fact that his absence was possibly covered by the FMLA. Despite WCG&E’s delay in providing notice to Petitioner, he should have been aware of the FMLA policies because WCG&E followed the requirement that a poster be displayed giving "notice explaining the Act’s provisions." 29 C.F.R. § 825.300(a). WCG&E posted this notice in every building where its employees work. Despite the availability of the posted notice Petitioner is technically correct in claiming that no written notice concerning his FMLA rights was given to him in November 1996. Because WCG&E did not have a handbook at the time of Petitioner’s absence, 29 C.F.R. § 825.301(a)(1) does not apply as it requires information concerning FMLA entitlements to be included in the handbook if the company has a handbook.
However, an administrative error that resulted in no notice being given to Petitioner, which would have informed him that funeral leave was not covered by the FMLA, does not establish coverage for this period. As is succinctly stated in Krohn v. Forsting, "any failure . . . to comply with the FMLA’s notice requirements does not create substantive rights in the plaintiff." Krohn v. Forsting, 11 F. Supp. 2d 1082, 1091 (E.D. Mo. 1998). See also Beal v. Rubbermaid Commercial Prods., Inc., 972 F. Supp. 1216, 1226 (S.D. Iowa 1997) (holding fact that defendant violated FMLA by including erroneous information in its employee handbook was immaterial where the plaintiffs were not eligible for protection under the FMLA). Although in Sherry, the court held that a violation of section 825.301 automatically equates to FMLA coverage, this was an erroneous decision which has since been corrected by more recent cases. Sherry v. Protection, Inc., 981 F. Supp. 1133 (N.D. Ill. 1997).
Since the FMLA makes it "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter," Petitioner may claim interference with his rights because no notice of his rights under the FMLA was provided to him. 29 U.S.C.A. § 2615(a)(1). It is well settled that if the employer fails to provide an employee with notice of FMLA rights, this lack of notice will constitute interference only if it causes the employee to give up rights under the FMLA. Fry v. First Fidelity Bancorporation, No. CIV.A.95-6019, 1996 WL 36910, at *6 (E.D. Penn. 1996); see also Kruse v. Laguardia Hostpital, No. 95-CV-4467, 1996 WL 1057147, at *5 (E.D.N.Y. 1996) (holding that a deficiency in notice does not automatically equate to FMLA protection). In order to succeed on a claim for interference based on inadequate notice Petitioner must first show that he qualified for FMLA protection. Mora v. Chem-Tronics, Inc., 16 F. Supp. 2d 1192, 1227 (S.D. Ca. 1998).
A failure to provide adequate notice of FMLA procedures may constitute interference with an employee's FMLA rights if it causes the employee to forfeit FMLA protections. Lacoparra v. Pergament Home Center, Inc., 982 F. Supp. 213, 220 (S.D.N.Y. 1990). There the court found that even if the employer caused the employee's ineligibility by failing to properly notify her of FMLA requirements, the employee's own evidence contradicted her assertion that the employer denied her benefits to which the FMLA would have entitled her. Lacoparra 982 F. Supp. at 222. Therefore, because the employee had no FMLA rights to begin with, the employer's motion for summary judgment with respect to the FMLA claim was granted. Id. Moreover, a failure to notify the employee of FMLA rights does not constitute interference if the employee never had any rights under the FMLA. Mion v. Aftermarket Tool & Equipment Group, 990 F. Supp. 535, 539 (W.D. Mich. 1997) (although the employer offered sixteen weeks of leave without notifying the employee that it would count the first twelve weeks toward the employee's FMLA entitlement, the court found that this failure did not interfere with any FMLA right because the employee had no right to the additional leave).
As discussed earlier, funeral leave is not one of the situations covered by the FMLA. Therefore because Petitioner's funeral leave claim does not qualify for FMLA protection it is unnecessary to decide the consequences of our failure. In addition, because under the FMLA funeral leave is not covered, a shortcoming on the part of WCG&E to provide Petitioner with notice of his FMLA rights did not result in forfeiture of rights under the FMLA, as he never had any in the first place. Furthermore, because Petitioner is claiming that he suffered from a "serious health condition" himself, it makes no difference whether or not he received notice regarding funeral leave. Even if he had received notice, Petitioner’s own alleged "serious health condition" would have prevented him from returning to work any earlier than he did.
Thus, no substantive rights were created in Petitioner because of the lack of notice, and further, our administrative error did not cause Petitioner to forfeit any FMLA right because he never qualified for FMLA leave in the first place.