Labor and Employment - Patrick L. Coyle and Alexandra v. Garrison

• Publication year: 2011

Labor and Employment

by Patrick L. Coyle* and Alexandra V. Garrison**

Courts within the Eleventh Circuit handed down a number of important opinions affecting labor and employment during the January 1, 2010 to December 31, 2010 survey period.¹ The following is a discussion of those opinions.

I. Family Medical Leave Act

In Krutzig v. Pulte Home Corp.,² the United States Court of Appeals for the Eleventh Circuit addressed an issue of first impression and aligned itself with several other circuits, concluding that the right to commence leave under the Family and Medical Leave Act of 1993 (FMLA)³ is not absolute.⁴ In Krutzig the court of appeals addressed a plaintiff's claim that her employer interfered with her right to take FMLA leave when her employer terminated her employment.⁵ In affirming the holding ofthe United States District Court for the Middle District of Florida, the Eleventh Circuit held that "an employee who requests FMLA leave has no greater protection against her employment

* Senior Associate in the firm of Alston & Bird LLP, Atlanta, Georgia. University of Notre Dame (B.A., magna cum laude, 1999); University of Virginia School of Law (J.D., 2004). Member, State Bars of Georgia and South Carolina.

** Associate in the firm of Alston & Bird LLP, Atlanta, Georgia. Dartmouth College (A.B., magna cum laude, 2007); University of Virginia School of Law (J.D., 2010). Member, State Bar of Georgia.

1. For an analysis of Eleventh Circuit labor and employment law during the prior survey period, see W. Christopher Arbery & Valerie N. Njiiri, Labor and Employment, 2009 Eleventh Circuit Survey, 61 MERCER L. REV. 1177 (2010).

2. 602 F.3d 1231 (11th Cir. 2010).

3. 29 U.S.C. §§ 2601-2654 (2006 & Supp. III 2009).

4. Krutzig, 602 F.3d at 1236.

5. Id. at 1233.

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being terminated for reasons unrelated to an FMLA request than she did before submitting the request."⁶

In the underlying proceedings, the district court granted summary judgment on the plaintiff's FMLA interference claim in favor of the defendant employer on three alternate grounds.⁷ First, the district court found that the plaintiff "failed to provide any medical evidence substantiating her alleged medical condition and entitlement to FMLA leave."⁸ Second, the district court concluded that the plaintiff failed to prove that she submitted a valid FMLA leave request. Finally, the district court held that the plaintiff would have been terminated despite her request for FMLA leave. On appeal, the plaintiff argued that the first two grounds for granting summary judgment were not raised by the defendant in its motion and, therefore, those grounds should not have been a basis for summary judgment.⁹ Regardless, the Eleventh Circuit only addressed the third ground for summary judgment: the plaintiff's employment would have been terminated regardless of the plaintiff's request for FMLA leave.¹⁰

The plaintiff, Betsy Krutzig, began working for the defendant, Pulte Home Corporation (Pulte), as a sales associate selling homes in Sarasota, Florida, in January 2005. In June 2007, Krutzig injured her foot at work, but she did not initially request leave for the injury. The following month, Krutzig was placed on a thirty-day performance plan after receiving two written warnings from Janet Parsons, her immediate supervisor. On Friday, August 17, 2007, Krutzig contacted Pulte's human resources representative, Jessica Hernandez-Parkman, who worked at the Estero, Florida facility, and requested FMLA leave to coincide with her scheduled surgery on her injured foot. Hernandez-Parkman faxed forms pertinent to medical leave to Krutzig and provided contact information so Krutzig could file a claim for short-term disability-benefits with an insurance company. Krutzig responded by faxing Hernandez-Parkman a form signed by her doctor. Krutzig also attempted to have Parsons sign her leave form that same day; however, Krutzig was never able to ask for approval.¹¹

On Friday, August 17, 2007, Krutzig met with an angry customer who had complained to the CEO of Pulte about a situation involving a home the customer was purchasing. After the meeting, the customer spoke

6. Id. at 1236.

7. Id. at 1234.

8. Id.

9. Id. at 1235.

10. Id. at 1235-36.

11. Id. at 1233.

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with Jill Hoffman, Pulte's Vice President of Sales. Hoffman contacted JeffCooper, Pulte's Director ofSales in Sarasota, to discuss the problem. The following day, Cooper called Hoffman and notified her of his decision to terminate Krutzig.¹² When Krutzig returned to work on Monday, Cooper informed Krutzig "that her employment had been terminated."¹³

On appeal, the Eleventh Circuit addressed the district court's grant of summary judgment to Pulte on Krutzig's claims for FMLA retaliation and Employment Retirement Income Security Act (ERISA)¹⁴ interference; however, the most significant part of the decision in Krutzig stems from the Eleventh Circuit's conclusion regarding the plaintiff's FMLA interference claim.¹⁵ To establish a claim for interference, "an employee need only demonstrate by a preponderance of the evidence that he was entitled to the benefit denied."¹⁶ The employee does not need to "allege that [her] employer intended to deny the benefit, because 'the employer's motives are irrelevant.'"¹⁷ The Eleventh Circuit "previously concluded that, if an employer [could] show that it refused to reinstate an employee for a reason unrelated to FMLA leave, the employer [would] not [be] liable for failing to reinstate the employee after the employee [had] taken FMLA leave."¹⁸ However, "[o]ther circuits have extended the same analysis to FMLA claims based on interference with the right to commence FMLA leave."¹⁹ These circuits explained that the "right to non-interference with the commencement ofleave is not absolute, and if a dismissal would have occurred regardless of the request for FMLA leave, an employee may be dismissed, preventing her from exercising her right to leave or reinstatement."²⁰

Prior to Krutzig, the Eleventh Circuit had not decided whether the right to FMLA leave commencement was absolute.²¹ When presented with this issue, the court decided to follow the reasoning of its sister circuits who have determined "that the right to commence FMLA leave

12. Id. at 1233-34.

13. Id. at 1234.

14. 29 U.S.C. §§ 1001-1461 (2006).

15. See Krutzig, 602 F.3d at 1233, 1236.

16. Id. at 1235 (quoting Strickland v. Water Works & Sewer Bd., 239 F.3d 1199, 1207

(11th Cir. 2001)) (internal quotation marks omitted).

17. Id. (quoting Strickland v. Water Works & Sewer Bd., 239 F.3d 1199, 1208 (11th Cir.

2001)).

18. Id. at 1236.

19. Id.; see, e.g., Phillips v. Mathews, 547 F.3d 905 (8th Cir. 2008); Bones v. Honeywell Int'l, Inc., 366 F.3d 869 (10th Cir. 2004); Arban v. West Publ'g Corp., 345 F.3d 390 (6th Cir.

2003).

20. Krutzig, 602 F.3d at 1236; see, e.g., Phillips, 547 F.3d at 911-12; Bones, 366 F.3d

at 877-78; Arban, 345 F.3d at 401.

21. Krutzig, 602 F.3d at 1236.

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is not absolute, and that an employee can be dismissed, preventing her from exercising her right to commence FMLA leave, without thereby violating the FMLA, if the employee would have been dismissed regardless of any request for FMLA leave."²² The court related this analysis to Krutzig's situation and explained that the unrebutted evidence of Cooper's lack of awareness of Krutzig's request to commence leave when he terminated her employment, established as a matter of law that Krutzig's termination was for circumstances separate from her requested leave.²³ At his deposition, Cooper testified that his decision to terminate Krutzig was based on her failure to correct the problems in her performance plan, such as her attitude, teamwork, and lack of communication with customers. Krutzig failed to provide evidence to support a conclusion that Cooper knew of her FMLA leave request when he decided to terminate her employment.²⁴

Krutzig clarified a previous conflicting assertion that the Eleventh Circuit made about the existence of an absolute right to commence FMLA leave.²⁵ In O'Connor v. PCA Family Health Plan, Inc.,²⁶ the Eleventh Circuit set forth the standard for establishing an interference claim under the FMLA.²⁷ The court stated that "[u]nlike the right to commence leave, an employer can deny the right to reinstatement in certain circumstances, because United States Department of Labor regulation qualifies the right."²⁸ This suggests that an employee has an absolute right to commence FMLA leave. The court in Krutzig, however, noted that its opinion in O'Connor unnecessarily distinguished between the right of reinstatement and the right to commence leave under the FMLA.²⁹ The court explained that O'Connor only involved a reinstatement claim and observed that its comment about the right of an employee to commence FMLA leave was non-binding dicta.³⁰ In addition to clearing up this ambiguity, Krutzig is significant because it brings the Eleventh Circuit in line with the United States Courts of Appeals for the Sixth, Eighth, and Tenth Circuits, which previously

22. Id.

23. Id.

24. Id. at 1234.

25. See id. at 1236.

26. 200 F.3d 1349 (11th Cir. 2000).

27. See id.

28. Id. at 1354 (citation omitted).

29. Krutzig, 602 F.3d at 1236 n.1.

30. Id.

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reached the same conclusion that no absolute right to commencing FMLA leave exists.³¹

II. Fair Labor Standards Act

Polycarpe v. E&S Landscaping Service, Inc.³² is a highly technical case that clarifies which employers are subject to the minimum wage and overtime pay requirements of the Fair Labor Standards Act of 1938 (FLSA).³³ In Polycarpe, the question before the Eleventh Circuit was whether the defendant employers had sufficiently engaged in interstate commerce to fall within the scope of enterprise coverage under the FLSA.³⁴ The court held that in the enterprise liability context, the proper analysis for determining whether an employer...