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USDC: EMPLOYMENT LAW | Family Medical Leave Act - whether leave FMLA is answered at beginning; no changeover in character

Case No. 06-CV-5108 (PJS/RLE)
John J. Curi, CURI LAW OFFICE, for plaintiff.
Cynthia A. Bremer and Barbara Jean DAquila, FULBRIGHT & JAWORSKI, LLP, for
Plaintiff Mohamed Adly brings a claim against SuperValu, Inc., his former employer, for
interfering with his rights under the Family and Medical Leave Act (FMLA), 29 U.S.C.
2611-15. Adly has moved for summary judgment. For the reasons that follow, the Court
denies his motion.
Adly began working for SuperValu as a payroll supervisor on March 28, 2005. Ybarra
Decl. 4 [Docket No. 24]. On about January 23, 2006, Adly asked for a medical leave of
absence because he was suffering from depression and chronic migraine headaches. Ybarra
Decl. 5; Adly Aff. 3 [Docket No. 19]. Dee Ybarra of SuperValus human-resources
department told Adly that he was not entitled to leave under the FMLA because he had not
worked for SuperValu for at least 12 months. Adly Aff. 3; Ybarra Decl. 5. Neither at that
time nor at any later time did SuperValu tell Adly precisely when he would become eligible for
FMLA leave. Adly Aff. 8-9.
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SuperValu did, however, allow Adly to take short-term disability leave beginning on
about January 24. Ybarra Decl. 5-6. Adlys salary during all but the first few days of his
leave was paid by CIGNA, the insurer that underwrites SuperValus short-term disability
insurance policy. Ybarra Decl. 12; Adly Aff. Ex. A-1.
In mid-February, a few weeks after the start of Adlys leave, Ybarra sent Adly a letter
informing him that SuperValu was removing him from his position as a payroll supervisor.
Ybarra Decl. 7-8 & Ex. A. (Another SuperValu employee was given Adlys position.)
Ybarra wrote that Adly would remain an active employee through the duration of [his] shortterm
disability and would retain his benefits while on short-term disability leave. Ybarra Decl.
Ex. A. Ybarra also wrote that when Adly became able to return to work, SuperValu would
determine whether it had a job available for him. Id.
On about March 30, 2006, Adly told Ybarra that his doctor had cleared him to return to
work beginning on April 10, 2006. Id. 10 & Ex. B. As promised, Ybarra circulated Adlys
resume within SuperValu, but she was unable to find a position for him. Id. 11 & Exs. C-E.
On April 13, 2006 before Adly actually returned to work SuperValu terminated Adlys
employment. Ybarra Decl. 11.
A. Standard of Review and Applicable Law
A party is entitled to prevail on a motion for summary judgment if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c). In considering a motion for
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summary judgment, a court must assume that the nonmoving partys evidence is true and draw
all justifiable inferences arising from the evidence in that partys favor. Taylor v. White, 321
F.3d 710, 715 (8th Cir. 2003). In this case, the facts are essentially undisupted.
The FMLA, as relevant to this case, gives an eligible employee with a sufficiently serious
medical condition the right to up to 12 weeks of leave, paid or unpaid, within a 12-month period.
29 U.S.C. 2612(a)(1)(D), 2612(c)-(d). The FMLA also gives employees the right to take
leave to care for a seriously ill family member or a new child. 29 U.S.C. 2612(a)(1)(A)-(C).
An employee who takes FMLA leave generally has the right, upon returning from leave, to be
reinstated to the position that he occupied when he went on leave or to an equivalent position.
29 U.S.C. 2614(a)(1).
Employees become eligible for FMLA leave only after twelve months of employment.
29 U.S.C. 2611(2)(A)(i). Under the governing Department of Labor regulations, periods of
absence during which an employee remains on the payroll such as vacation and sick leave
count toward the twelve-month threshold. 29 C.F.R. 825.110(b). The regulations also provide
that the determination of an employees eligibility under the FMLA must be made as of the date
leave commences. 29 C.F.R. 825.110(d). Although the parties disagree over the meaning of
these regulations, they do not challenge the Department of Labors authority to issue them.
B. The Nature of Adlys Leave
Adly argues that SuperValu violated the FMLA by terminating him, rather than
reinstating him, when he attempted to return from FMLA leave. But if Adly was never on
FMLA leave in the first place, then SuperValu was not required under the FMLA to reinstate
him. The key question, then, is this: What kind of leave did Adly take from SuperValu? This
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questions answer depends on the answer to a second question: At what point in time should the
nature of Adlys leave be assessed?
Adly went on leave on January 24, 2006 (give or take a day or two). But he did not reach
his 12-month anniversary with SuperValu until March 28, 2006 over two months later. And
Adly did not seek to return to work until April 10, 2006. For the entire period from January 24
to April 10, Adly was on short-term disability leave for a single, unchanging purpose: to try to
recover from his depression and migraine headaches.
Under 825.110(d), Adlys eligibility for FMLA leave must be determined as of the
date leave commences. Common sense dictates that Adlys leave commence[d] on
January 24 a date on which Adly was not eligible for FMLA leave. That should be the end of
the matter.
Adly argues, however, that his eligibility under the FMLA should be assessed not as of
January 24 (the date on which his leave commenced), but rather as of March 28 (the date on
which he became eligible for FMLA leave). In effect, Adly contends that, on March 28, the
period of leave that commenced on January 24 was transformed by operation of law from non-
FMLA leave to FMLA leave. See Pl. Mem. Supp. Mot. S.J. at 7-9 (Adly S.J. Mem) [Docket
No. 18]. Thus, in Adlys view, when he was fired on April 13, he was on FMLA leave. The
Court disagrees.
Adly bases his argument primarily on 825.110(b), which provides that periods of leave
such as sick time and vacation time count toward the 12-month eligibility threshold under the
FMLA. Adly S.J. Mem. at 5-7. Adly concludes, and SuperValu does not dispute, that under this
regulation, Adly became eligible for FMLA leave on March 28, because his time on short-term1The
Court need not decide whether a changed purpose within an unbroken period of
absence could require an employer to treat the single period of absence as two separate periods
of leave for purposes of the FMLA. For example, suppose that on March 29, without having
returned from his disability leave, Adly had asked for and received leave to care for a
newborn baby. One could argue that the post-March 29 paternity leave should be treated as a
different period of leave from the earlier disability leave. The Court expresses no opinion as to
the merits of such an argument.
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disability leave counted toward the required 12 months of employment. And indeed, had Adly
returned to work on March 28 and asked for FMLA leave on March 29, he would have been
eligible for such leave (provided, of course, it was for a proper purpose).
Adlys leave, however, was uninterrupted. It was a single period of leave, taken for a
single purpose a purpose that in no way changed during the course of the leave. Under
825.110(d), courts must characterize a period of leave, for FMLA purposes, at the front end.
An unbroken leave taken for a single purpose does not change its character in the midst of the
leave just because the employee becomes eligible under the FMLA.1 Accordingly, the Court
finds that Adly never took FMLA leave. He thus did not have a right of reinstatement under the
The Courts application of 825.110(d) in this case is consistent with the approach taken
by almost every other court in similar situations. Indeed, this Court took a similar approach to
applying 825.110(d) in McEachern v. Prime Hospitality Corp., No. 02-536, 2003 WL
21057078, at *3 (D. Minn. May 8, 2003). In that case, the plaintiff, McEachern, took personal
leave for medical reasons in February 2001, roughly 11 months after she started work. Id. at *1.
When McEachern asked to return to work a few weeks later, her employer told her that her old
job was gone and offered her a different job. Id. at *2. McEachern refused the offer. She then
brought an FMLA claim (among others), arguing that her employer wrongfully refused to
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reinstate her to her old job. Id. at *2-3. The court granted summary judgment to the employer,
finding that McEachern began her leave of absence before she had attained a year of
employment and therefore cannot qualify as an eligible employee. Id. at *3 (citing 29 C.F.R.
Other courts have squarely rejected the argument that an employee who begins a period
of leave before 12 months of employment and then crosses the 12-month threshold for FMLA
eligibility while still on leave should be considered eligible under the FMLA. See Flannery v.
Nextgen Healthcare Info. Sys. Inc., No. 05-6007, 2006 WL 2338408, at *3 (E.D. Pa. Aug. 10,
2006) (rejecting employees contention that he became eligible on . . . his one-year anniversary
date, while on leave because 825.110(d) is clear: the 12-month work requirement triggers
as of the day the leave commences, not while on leave); Willemssen v. Conveyor Co., 359 F.
Supp. 2d 813, 818 (N.D. Iowa 2005) (holding that because the employee was not an eligible
employee on the date her leave commenced, she was not entitled to the protections of the
FMLA even though the leave extended beyond the end of the twelve-month eligibility period);
Sewall v. Chicago Transit Auth., No. 99-C-8372, 2001 WL 40802, at *5-6 (N.D. Ill. Jan. 16,
2001) (rejecting employees argument that the court should pick a date in the middle of his
absence to determine the beginning of his FMLA leave); see also Walker v. Elmore County Bd.
of Educ., 223 F. Supp. 2d 1255, 1257-58 (M.D. Ala. 2002) (observing that an employee who
sought FMLA leave to begin before her 12-month anniversary was not entitled to that leave,
even though she remained on her employers payroll for just over 12 months), affd on other
grounds, 379 F.3d 1249 (11th Cir. 2004).
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Only one court has (arguably) taken the approach advocated by Adly: the District of
Maine in Ruder v. MaineGeneral Medical Center, 204 F. Supp. 2d 16 (D. Me. 2002). The
employee in that case, Ruder, began a medical leave of absence in January 2000, just under two
weeks before his 12-month anniversary date with his employer. Id. at 17. Ruder attempted to
return to work a few months later, in April 2000, but instead of welcoming him back, Ruders
employer fired him. Id. Ruder sued, arguing that his employer violated the FMLA by refusing
to reinstate him. Id. at 18. The employer moved to dismiss on the basis that because Ruder
began his leave before he was eligible under the FMLA, Ruder had not taken FMLA leave and
thus had no right to reinstatement. Id.
The court in Ruder denied the employers motion, holding, in effect, that Ruders single
period of leave could potentially be treated as two periods of leave under the law. The court
relied on the fact that Ruder, at the time he went on leave, had over two weeks of available
vacation time. Id. at 17. The court noted that under 825.110(b), an employee may take a
vacation during which he remains on the payroll and is receiving benefits, and during that
vacation pass the one-year eligibility threshold of the FMLA. Id. at 20. The court in Ruder
therefore denied the employers motion to dismiss, holding that Ruder might be able to establish
that he had taken FMLA leave. Id. The court seemed to envision the possibility that Ruder
could establish that he used his vacation time for the initial period of his leave, and then began
FMLA leave only after using up his vacation time. Id. (Plaintiff has alleged that he worked for
fifty-one weeks and had accrued at least two weeks of vacation time when he left work. He may
be able to prove facts consistent with these allegations that entitle him to the protections of the
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This Court agrees, in principle, with the observation in Ruder that under 825.110(b)
which requires that certain periods of sick leave and vacation leave be counted toward the 12-
month FMLA eligibility threshold an employee could take a vacation that spans his 12-month
anniversary date and seek FMLA leave immediately following that vacation. This presupposes,
however, that the employee in fact took vacation. To the extent that Ruder suggests that a
portion of an unbroken leave taken for a single purpose like Adlys leave, and apparently like
Ruders leave can be retrospectively recharacterized as vacation time (or some other kind of
leave) if the employee had such time available, the Court cannot agree.
Section 825.110(d) requires that an employees FMLA eligibility be determined as of
the date leave commences. Retrospectively recharacterizing a portion of an employees leave
in order to create a new leave-commencement date is completely inconsistent with 825.110(d).
The regulation directs employers (and courts) to determine an employees eligibility for FMLA
leave at the front end when the leave begins. The regulation does not specify that an
employees eligibility should be determined anew once the employee passes his FMLA
eligibility date even though such a regulation could easily have been written.
Section 825.110(d) implicitly recognizes the possibility that an employee could as
Adly did begin a period of leave when he is not FMLA eligible, continue that leave past his
12-month anniversary date, and have the entire period of leave treated as non-FMLA leave
because he was not eligible at the time his leave commenced. If, as Adly proposes, an
employees FMLA eligibility is assessed both at the commencement of a period of leave, and
again when the employee becomes FMLA eligible while out on leave, the clear instruction in
825.110(d) about when to determine FMLA eligibility would be drained of meaning. The
2Section 825.110(d) reads, in its entirety, as follows:
The determinations of whether an employee has worked for the
employer for at least 1,250 hours in the past 12 months and has
been employed by the employer for a total of at least 12 months
must be made as of the date leave commences. If an employee
notifies the employer of need for FMLA leave before the employee
meets these eligibility criteria, the employer must either confirm
the employees eligibility based upon a projection that the
employee will be eligible on the date leave would commence or
must advise the employee when the eligibility requirement is met.
If the employer confirms eligibility at the time the notice for leave
is received, the employer may not subsequently challenge the
employees eligibility. In the latter case, if the employer does not
advise the employee whether the employee is eligible as soon as
practicable (i.e., two business days absent extenuating
circumstances) after the date employee eligibility is determined,
the employee will have satisfied the notice requirements and the
notice of leave is considered current and outstanding until the
employer does advise. If the employer fails to advise the
employee whether the employee is eligible prior to the date the
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Court therefore rejects Adlys suggestion that the portion of his leave before March 28, 2006
should be treated as short-term, non-FMLA disability leave, while the portion of his leave after
that date should be treated as FMLA leave. See Pl. Reply Mem. at 7.
C. Adlys Request for Leave and SuperValus Response
Adly raises one additional argument as to why his leave, from March 28, 2006 forward,
should be treated as FMLA leave. Adly contends that when he asked for FMLA leave in late
January 2006, SuperValu did not comply with 825.110(d). Adly S.J. Mem. at 7-9; Adly Aff.
8-9. Under 825.110(d), when an employee requests FMLA leave before he has become
eligible, the employer must either confirm the employees eligibility based upon a projection
that the employee will be eligible on the date leave would commence or must advise the
employee when the eligibility requirement is met. 29 C.F.R. 825.110(d) (emphasis added).2
requested leave is to commence, the employee will be deemed
eligible. The employer may not, then, deny the leave. Where the
employee does not give notice of the need for leave more than two
business days prior to commencing leave, the employee will be
deemed to be eligible if the employer fails to advise the employee
that the employee is not eligible within two business days of
receiving the employees notice.
3SuperValu contended at oral argument that Adlys eligibility date was implicit in
SuperValus statement that he was not eligible for FMLA leave because he had not reached his
twelve-month anniversary. For purposes of ruling on Adlys summary-judgment motion, the
Court will assume, without deciding, that such an assertion-by-implication does not meet
825.110(d)s requirement that an employer advise the employee when the eligibility
requirement is met.
- 10 -
SuperValu denied Adlys leave request when he made it (in late January), but never did tell Adly
(except perhaps implicitly3) when he would meet the FMLAs eligibility requirements. See
Ybarra Decl. 5; Adly Aff. 8-9.
Although this portion of 825.110(d) is not a model of clarity, the Court is confident that
the regulation does not require that Adlys post-March 28 leave be treated as FMLA leave. The
provisions of 825.110(d) that relate to an employers notice obligations must be read in the
context of the entirety of subsection (d), which begins by establishing that an employees
eligibility for FMLA leave must be determined as of the date leave commences. The
employer-notice provisions relate to a request for future leave made by an employee who is not
eligible at the time of the request, but who may (or may) become eligible before the proposed
leave would begin.
The regulation expressly provides for three possible responses by an employer to such a
request. First, the employer may confirm the employees eligibility. 29 C.F.R. 825.110(d).
4There is some doubt as to whether these estoppel provisions are entirely valid. See, e.g.,
Mutchler v. Dunlop Meml Hosp., 485 F.3d 854, 859 n.5 (6th Cir. 2007) (collecting cases);
Dormeyer v. Comerica Bank-Ill., 223 F.3d 579, 582 (7th Cir. 2000).
- 11 -
An employer who does so is forbidden (at least according to the regulation) to subsequently
challenge the employees eligibility. Id.
Second, the employer may fail to respond entirely. Under the regulation, [i]f the
employer fails to advise the employee whether the employee is eligible prior to the date the
requested leave is to commence, the employee will be deemed eligible. The employer may not,
then, deny the leave. Id. Section 825.110(d) thus places both the risk of erroneous approval of
FMLA leave requests, and the risk of erroneous failure to disapprove FMLA leave requests, on
the employer.4
Third, the employer may choose to advise the employee when the eligibility requirement
is met. Id. (emphasis added). Based on text and context, the Court finds that this provision
does not require an employer to predict an employees eligibility date. The provision could
easily have been written to require the employer to advise the employee when the eligibility
requirement will be met; it was not. Rather, this provision seems to mean the following: When
a not-yet-eligible employee asks his employer for FMLA leave to begin after the employees
FMLA eligibility date, the employer may choose to remain silent until that eligibility date.
When that eligibility date arrives (i.e., when the eligibility requirement is met), the employer
should advise the employee [that] the employee is eligible as soon as practicable . . . after the
date employee eligibility is determined . . . . Id. (emphasis added).
If the employer drags its heels in advising the employee of his eligibility, the employee is
deemed to have satisfied the notice requirements and the notice of leave is considered current
5The notice requirements to which the regulation refers appear to be the provisions in
29 U.S.C. 2612(e) that generally require employees to provide employers with 30 days notice
of a foreseeable need for leave.
- 12 -
and outstanding until the employer does advise.5 Id. And if the employer never advises the
employee of his eligibility, then, as noted above, the employee will be deemed eligible for
FMLA leave.
Adly latches on to the language in 825.110(d) stating that a notice of leave is
considered current and outstanding until the employer advises an employee of his eligibility for
FMLA leave. Adly S.J. Mem. at 9. According to Adly, if a notice is current and outstanding
when an employee becomes eligible for FMLA leave, and the employee is on leave at that time,
his leave is transformed from non-FMLA leave to FMLA leave by operation of law.
Adly does not provide any case law to support this argument. See id. The Court rejects it
for a simple reason: Where an employer has already advised an employee that he will not be
eligible for FMLA leave as of the date that the employees proposed leave would begin,
825.110(d) does not impose an additional requirement that the employer notify the employee
once he is out on non-FMLA leave that his FMLA eligibility date has arrived. The very sentence
on which Adly relies supports this interpretation: An employees notice of leave is considered
current and outstanding only if the employee does not advise the employer whether the
employee is eligible as soon as practicable . . . . In this case, SuperValu did advise Adly
whether he would be eligible for FMLA leave as of the date he proposed to begin his leave:
SuperValu accurately told him that he was not eligible for FMLA leave as of January 24, 2006.
In effect, denying an employees request for FMLA leave is a fourth possibility under
825.110(d). The regulation does not discuss this fourth possibility for a simple reason: If an
6An employee who is told that his proposed leave will not be FMLA eligible might wish,
if possible, to reschedule the start of his leave until after he becomes eligible under the FMLA.
If he proposes to his employer a new start date for his leave after the employer has denied FMLA
leave for the first proposed date, the employer must naturally comply with 825.110(d) with
respect to the new date.
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employee requests FMLA leave to which he will not be entitled as of the date when that leave
would commence the relevant date under 825.110(d) and the employer properly denies
the request, the employers notification duties are over. The employer has no obligation to
inform the employee when he will be eligible for FMLA leave in the future because that future
eligibility date is irrelevant to the employees actual, pending request. After all, under
825.110(d), FMLA eligibility is determined as of the date leave commences. If an employee
asks for leave that would begin before his eligibility date, and the employer tells him that the
requested leave will not be FMLA leave, the employer has accurately informed the employee of
his rights. And that is the end of the matter.6
D. Adlys Position at SuperValu
As explained above, the Court finds that Adly had no right of reinstatement because he
never took FMLA leave. But even if the Court accepted Adlys theory that on March 28, his
short-term disability leave became FMLA leave, Adly would not be entitled to reinstatement
because as of March 28, he had no position of employment to which he could be restored.
The FMLA provides an eligible employee with a right to be restored by the employer to
the position of employment held by the employee when the leave commenced or to an
equivalent position. 29 U.S.C. 2614(a)(1)(A)-(B). Granting, for the sake of argument, that
Adlys FMLA leave began on March 28, he would have had a right on April 10 to be restored to
the position that he held at SuperValu on March 28. But on March 28, Adly had no position at
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SuperValu. The company had removed Adly from his payroll-supervisor job in mid-February.
Ybarra Decl. 7 & Ex. A.
Adly attempts to skirt this significant problem by characterizing his position on March 28
as that of an active employee who was continuing to receive benefits. See Pl. Reply Mem. at 9
(internal quotation omitted). The Court believes that a position is something more than the
right to receive certain benefits; a position is a particular job. This conclusion is implicit in the
definition of the term equivalent position in the FMLA regulations: Section 825.215(a)
defines an equivalent position as one that involve[s] the same or substantially similar duties
and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and
authority. 29 C.F.R. 825.215(a) (emphasis added).
As of March 28, Adly did not have a particular job at SuperValu. He had no title, and no
duties and responsibilities. Rather, Adly was receiving pay and benefits even though he had
no obligation to perform any service for SuperValu in return. Adly can not seriously believe that
the FMLA requires that he be restored to the position of collecting paychecks without having
to do any work.
Notably, Adlys paychecks were not even coming from SuperValu. He was, instead, paid
directly by CIGNA, SuperValus disability-insurance carrier, from February 3 through his
termination. Ybarra Decl. 12. Although this alone would not require the Court to conclude
that Adly had no position at SuperValu after all, he was still a payroll supervisor until
SuperValu removed him from that position in mid-February, id. 7 this fact supports the
conclusion that, based on Adlys lack of a job title and any duties or responsibilities, he had no
position at SuperValu as of March 28.
- 15 -
Adly makes the further argument, however, that his lack of a particular position at
SuperValu on March 28 does not doom his reinstatement claim because the FMLA provides
covered employees the right to be restored to an equivalent position. Pl. Reply Mem. at 9-10.
The Court cannot agree. As a matter of simple logic, without a position of some kind to start
with, there can be no equivalent position to which an employee can be restored. The only
equivalent of no position is no position.
Finally, the Court agrees with SuperValu that if Adly had a position at all on March 28
and, again, the Court finds that he did not that position was former Payroll Supervisor
for whom [SuperValu] would look for a new position if and when Mr. Adly became able to
return to work. Def. Mem. Opp. Mot. S.J. at 16. It is undisputed that when Adly notified
SuperValu on March 30 that he would be able to return to work on April 10, Dee Ybarra of
SuperValus human-resources department circulated Adlys resume within the company but did
not find any suitable openings. Ybarra Decl. 11 & Exs. C-E. Accordingly, the Court finds that
SuperValu did not violate the FMLA by failing to restore Adly to the position that he held on
March 28.
- 16 -
Based on the foregoing and on all the files, records, and proceedings herein, plaintiffs
motion for summary judgment [Docket No. 7] is DENIED.
Dated: August 3 , 2007 s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge


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