Thomas, Tina R. v. Pearle Vision Inc ( 2001 )


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  • In the
    United States Court of Appeals
    For the Seventh Circuit
    No. 00-3681
    Tina R. Thomas, O.D.,
    Plaintiff-Appellant,
    v.
    Pearle Vision, Inc.,
    Defendant-Appellee.
    Appeal from the United States District Court
    for the Central District of Illinois.
    No. 97-1441--Joe B. McDade, Chief Judge.
    Argued April 10, 2001--Decided May 30, 2001
    Before Coffey, Rovner, and Diane P. Wood,
    Circuit Judges.
    Coffey, Circuit Judge. When Pearle
    Vision, Inc. ("Pearle") refused to
    restore Dr. Tina Thomas to the
    optometrist position in its Peoria,
    Illinois, store after a medical leave
    related to the birth of her child, she
    sued Pearle, alleging that Pearle had
    breached her employment contract. Thomas
    claimed that Pearle’s 1997 Summary Plan
    Description of employee benefits
    incorporated into her contract the Family
    Medical Leave Act of 1993, 29 U.S.C. sec.
    2601, et seq. Thomas also claimed Pearle
    violated the FMLA by failing to provide
    her with written notice that it
    considered her a highly compensated
    employee and that it intended to deny her
    job restoration upon the completion of
    her leave. The district court granted
    summary judgment to her employer, Pearle,
    holding that the "Problem Resolution"
    clause within the manual afforded Dr.
    Thomas an exclusive remedy for Pearle’s
    failure to comply with the FMLA and
    therefore, Dr. Thomas’s failure to comply
    with that clause defeated her claim. Dr.
    Thomas appeals.
    I.   Factual Background
    Dr. Thomas began working at Pearle in
    September 1994 as a full-time doctor in
    its Peoria, Illinois store. Pearle
    employed only 12 employees at the Peoria
    store and less than 50 employees within
    75 miles of the Peoria store. In 1996,
    however, Pearle distributed to all of its
    employees a 1997 Summary Plan Description
    of Employee Benefits ("1997 SPD"). In a
    section entitled, "The Family and Medical
    Leave Act of 1993," Pearle stated in the
    1997 SPD that "all employees with one
    year of service who worked 1,250 hours
    with Pearle in the 12 months immediately
    prior to requesting leave" were eligible
    for leave under the FMLA. The 1997 SPD
    repeated this eligibility description
    clause later, stating "[i]f you have
    worked for Pearle for at least one year,
    and have worked 1,250 hours or more
    during the 12 month period prior to
    requesting leave, you are eligible for
    Family and Medical leave." The handbook
    further contained instructions on how to
    request leave, which required employees
    requesting leave to notify a supervisor
    at least 30 days in advance and complete
    the necessary FMLA forms. Additionally,
    the 1997 SPD contained a section
    entitled, "Problem Resolution." In that
    section, Pearle advised its employees
    that:
    It is the policy of the organization not
    to discharge or discriminate against any
    employee exercising his or her rights
    under the federal Family and Medical
    Leave Act. If you think you have been
    treated unfairly, please contact the Vice
    President of Human Resources. The
    decision of the Vice President of Human
    Resources will be final and binding.
    In September 1996 while expecting the
    birth of her first child, Dr. Thomas read
    over the potential benefits listed in the
    1997 SPD to determine which one’s she
    might be eligible for, paying particular
    attention to potential benefits pursuant
    to the FMLA. Around February of 1997, Dr.
    Thomas notified her manager of her
    pregnancy and requested maternity leave
    under the FMLA. Dr. Thomas’s manager fur
    nished her with an FMLA checklist and
    other forms that had to be completed
    pursuant to the FMLA. On the FMLA request
    form, Dr. Thomas noted that she sought
    only eight weeks of leave (though the
    FMLA and Pearle’s plan allowed for up to
    twelve weeks of leave). Further, on the
    form for physician certification, which
    she completed before the birth of her
    child, Dr. Thomas and her physician
    answered in the affirmative that she was
    1) able to perform work of any kind, and
    2) able to perform the functions of her
    position.
    Shortly after completing the forms, Dr.
    Thomas expressed a concern to Pearle
    regional manager, Cheryl Melquist,
    dealing with her eligibility because of
    the section in the 1997 SPD labeled "Job
    Restoration." In that section, Pearle
    noted that "[c]ertain highly compensated
    salaried employees are eligible for
    leave, but are not guaranteed restoration
    to their position if they choose to take
    leave."/1 Melquist advised Dr. Thomas
    that Pearle "would do everything [it]
    could to help, to get fill-in doctors for
    [her]" and that "as long as [it could]
    find fill-in help, [Thomas] would
    havenothing to worry about." Melquist
    also told Thomas to call Pearle’s human
    resources manager, Tim Hying, if she had
    any questions. Admittedly, both Melquist
    and Hying also told Thomas that there may
    not be a position for her when she
    returned, seemingly contradicting her
    earlier statement that Thomas had nothing
    to worry about. But neither Melquist nor
    Hying ever sent Thomas written notice to
    that effect or indicated definitively
    that she would not be offered job
    restoration upon completion of her leave.
    Shortly before Thomas’s leave commenced,
    Pearle hired several doctors to serve
    part-time (both to cover Thomas’s
    absences before the delivery, and her
    leave after delivery). On April 24, Dr.
    Don Nelson told Thomas that he was going
    to fill in for her while she was on
    leave. Thomas’s manager, Traci Soots,
    confirmed that Dr. Nelson was temporary
    help. Thomas commenced her leave on April
    29, several weeks earlier than she
    expected, because of a back problem asso
    ciated with her pregnancy. The next day,
    Thomas sent a letter via facsimile to
    Melquist, informing her that she still
    planned to take pregnancy leave and
    inquiring about what was planned for the
    future regarding her position and about
    Dr. Nelson’s status. On May 5, 1997,
    Melquist phoned Thomas and explained that
    Dr. Nelson was temporary help. But the
    following day, Hying instructed Melquist
    to hire a full-time regular employee
    doctor, and Dr. Nelson was hired shortly
    thereafter. Pearle did not notify Dr.
    Thomas at this time of its decision to
    hire Dr. Nelson full-time. In fact,
    Pearle never did notify Dr. Thomas in
    writing that they were unable to continue
    using temporary help to fill her position
    during her absence or much less that she
    would be denied job restoration upon her
    return from pregnancy leave.
    Instead, sometime around July 1997 Dr.
    Thomas learned that Pearle had hired a
    full-time replacement for her when she
    noticed that her name was not on her
    office door. On July 24, 1997, regional
    manager Kurt Schaefer (who had recently
    replaced Melquist) informed Dr. Thomas
    (still, not in writing, but via a message
    left on her home telephone’s answering
    machine) that Pearle had hired Dr. Nelson
    as a full-time doctor and that there were
    currently no part-time or full-time
    positions available in the region.
    Schaefer did not explain that restoring
    Dr. Thomas to her position (or a similar
    one) would result in substantial and
    grievous economic injury to Pearle (thus
    necessitating the hire of Dr. Nelson).
    Dr. Thomas then commenced suit against
    Pearle for breach of contract, alleging
    that Pearle incorporated the FMLA into
    her contract through the 1997 SPD. Dr.
    Thomas further claimed that Pearle
    breached the contract when it failed to
    comply with the provision of the FMLA
    that an employer give highly compensated
    employees written notice at the time
    leave was requested that it intended to
    deny job restoration on the completion of
    leave. See 29 C.F.R. sec. 825.219.
    Pearle moved for summary judgment,
    arguing that the 1997 SPD did not create
    an enforceable contract granting Dr.
    Thomas any rights under the FMLA, and in
    the alternative, that Dr. Thomas breached
    the contract by failing to take advantage
    of the "Problem Resolution" clause in the
    1997 SPD. The trial court rejected
    defendant’s first argument, holding that
    the 1997 SPD met the requirements of
    Duldulao v. Saint Mary of Nazareth Hosp.
    Ctr., 
    505 N.E.2d 314
    , 317-18 (Ill. 1987),
    and created an enforceable contract that
    gave Dr. Thomas the benefits of the FMLA.
    Nonetheless, the district court granted
    summary judgment to Pearle, holding that
    Dr. Thomas had not complied with the
    "Problem Resolution" procedure and
    therefore her breach of contract defeated
    her claim.
    Dr. Thomas filed a motion to reconsider
    the judgment and also for leave to
    supplement the record (to show that she
    had complied with the clause). In her
    motion, Dr. Thomas argued that Pearle had
    breached the contract first, and
    therefore her breach was immaterial. The
    court granted Dr. Thomas’s motion and
    vacated its initial order. The court
    further declared Dr. Thomas’s motion to
    supplement the record as moot. After the
    district court vacated the judgment,
    Pearle filed a motion to reconsider,
    arguing that the court’s holding rendered
    the "Problem Resolution" clause
    meaningless. The court agreed and again
    granted summary judgment to Pearle. The
    court reasoned that, although the 1997
    SPD granted Dr. Thomas rights under the
    FMLA, it also limited those rights
    through the Problem Resolution clause,
    which operated as an exclusive remedy for
    violations of FMLA benefits given to Dr.
    Thomas by the 1997 SPD. Dr. Thomas
    appeals, arguing that the Problem
    Resolution clause is ambiguous in that it
    can reasonably be interpreted as either
    permissible or mandatory and in that it
    does not apply to her as published.
    II.    Issues
    Two issues present themselves in Dr.
    Thomas’s appeal. Initially, we must
    determine whether the 1997 SPD created an
    enforceable contract that granted Dr.
    Thomas the benefits of the FMLA. Next, if
    we determine that the 1997 SPD did create
    an enforceable contract, we must
    determine whether the Problem Resolution
    clause was ambiguous.
    III.    Analysis
    We review de novo a district court’s
    grant of summary judgment. Kuchenruether
    v. City of Milwaukee, 
    221 F.3d 967
    , 972
    (7th Cir. 2000). Summary judgment is
    proper if "there is no genuine issue as
    to any material fact and . . . the moving
    party is entitled to a judgment as a
    matter of law." Fed. R. Civ. P. 56(c).
    Under Illinois law a genuine issue of
    material fact exists in contract cases
    when a key provision of a contract is
    ambiguous, requiring admission of
    extrinsic evidence. McDonald’s Operators
    Risk Mgmt. Ass’n, Inc. v. CoreSource,
    Inc., 
    717 N.E.2d 485
    , 488; Dudek, Inc. v.
    Shred Pax Corp., 
    626 N.E.2d 1204
    , 1209
    (Ill. App. Ct. 1993); Dash Messenger
    Serv., Inc. v. Hartford Ins. Co., 
    582 N.E.2d 1257
    , 1260 (1991). Moreover, once
    the trial court has interpreted the
    contract as a matter of law, the
    reviewing court may independently
    construe the contract. In re Marriage of
    Davis, 
    678 N.E.2d 68
    , 70 (Ill. App. Ct.
    1997); Omnitrus Merging Corp. v. Illinois
    Tool Works, Inc., 
    628 N.E.2d 1165
    , 1168
    (Ill. App. Ct. 1994).
    A. Existence of a Contract and FMLA
    Benefits
    Because Pearle employed less than 50
    employees within 75 miles of the store at
    which Dr. Thomas worked, she would not be
    an eligible employee as defined by the
    FMLA. See 29 U.S.C. sec. 2611(2)(B).
    Thus, Dr. Thomas’s claim arises not under
    the FMLA, but under the language of her
    contract. Dr. Thomas contends that the
    1997 SPD that Pearle distributed to all
    of its employees, and language therein
    created an enforceable contract granting
    her rights under the FMLA. Under Illinois
    law, employee manuals can create
    enforceable contracts if the traditional
    elements of contract formation are
    present. See 
    Duldulao, 505 N.E.2d at 318
    ;
    Perma v. Arcventures, Inc., 
    554 N.E.2d 982
    , 987 (Ill. App. Ct. 1990).
    To support her contention that Pearle
    made an express promise to grant her
    benefits under the FMLA, Dr. Thomas
    points to a passage in the 1997 SPD that
    reads:
    If you have worked for Pearle for at
    least one year, and have worked 1,250
    hours or more during the 12 month period
    prior to requesting leave, you are
    eligible for Family and Medical Leave.
    Dr. Thomas argues that this language,
    repeated elsewhere in the 1997 SPD,
    serves to waive the jurisdictional
    threshold mandating a minimum number of
    employees be employed within a certain
    radius for an employee to be eligible for
    the FMLA. In essence, Dr. Thomas contends
    that this language expressly incorporates
    the FMLA, in its entirety, into her
    contract.
    Pearle contends on appeal, as it did
    below, that the 1997 SPD does not create
    an enforceable contract because the
    statement discussing FMLA eligibility is
    not an express promise that it
    "incorporates, adopts, abides by, or
    provides to all its employees the full
    array of FMLA rights." But it is hard to
    construe the statement in the 1997 SPD
    that "all employees with one year of
    service who worked 1,250 hours with
    Pearle in the 12 months immediately prior
    to requesting leave" are eligible for the
    FMLA as anything other than an express
    promise. Cf. Lee v. Canuteson, 
    573 N.E.2d 318
    , 322 (Ill. App. Ct. 1991) (holding
    that employee manual that stated "it is
    the sincere intent of [employer] to be
    fair and reasonable with all employees at
    all times" and that employees "may" be
    subject to progressive discipline did not
    constitute express promises). Had Pearle
    wished to limit this clause, it needed
    only omit the "all" and replace it with
    "any employee who is employed at a work
    site with less than 50 employees."
    Similarly, had Pearle intended the
    section on the FMLA to merely describe
    FMLA benefits for those employees who
    were eligible it could have drafted the
    clause accordingly. It did neither.
    The above is not the only evidence in
    the record that Pearle obligated itself
    to provide Dr. Thomas (and other
    employees not otherwise statutorily
    eligible) the benefits of the FMLA.
    Pearle’s actions provide further evidence
    of their intent to provide Dr. Thomas
    with FMLA benefits. The 1997 SPD
    established a procedure for employees to
    follow when requesting leave under the
    FMLA, and pursuant to this procedure
    Pearle provided Dr. Thomas with FMLA
    forms to complete. In short, Pearle acted
    as if the 1997 SPD did, in fact, grant
    Dr. Thomas the right to request leave
    under the FMLA, despite the fact that at
    this point in time she was not
    statutorily eligible. Dr. Thomas’s
    reliance on Pearle’s actions was
    reasonable, and Pearle’s argument that
    the 1997 SPD did not offer Dr. Thomas the
    benefits of the FMLA is disingenuous at
    best.
    B. Interpretation of the Problem
    Resolution Clause
    Although we hold that the 1997 SPD did
    create an enforceable contract that
    rendered Dr. Thomas eligible for the
    FMLA, this alone does not carry the day
    for Dr. Thomas. This is because of the
    simple principle that what a contract
    gives, it can also take away. Pearle
    argues that, even if the 1997 SPD did
    make Dr. Thomas eligible for benefits
    under the FMLA, other parts of the 1997
    SPD took away certain benefits.
    Principally, Pearle contends that the
    Problem Resolution clause/2 serves
    either as an exclusive remedy for any
    violations of the FMLA or as a
    requirement that must be exhausted before
    an aggrieved employee may bring suit.
    Thus, Pearle argues that Dr. Thomas’s
    claim for breach of contract is barred
    because Dr. Thomas failed to follow the
    procedure set forth in the Problem
    Resolution clause. Dr. Thomas suggests,
    however, that the Problem Resolution
    clause is ambiguous, pointing to two
    ambiguities: 1) whether it is mandatory
    or permissive; 2) whether it applies to
    any claim under the FMLA or only claims
    of retaliation or discrimination for
    exercising FMLA rights.
    A contract is ambiguous if it is
    reasonably or fairly susceptible to more
    than one interpretation. Owens v.
    McDermott, Will & Emery, 
    736 N.E.2d 145
    ,
    150 (Ill. App. Ct. 2000); Pennsylvania
    Life Ins. Co. v. Pavlick, 
    637 N.E.2d 1160
    , 1162 (Ill. App. Ct. 1994); Omnitrus
    Merging 
    Corp., 628 N.E.2d at 1168
    .
    However, merely because the parties do
    not agree on the contract’s meaning does
    not render it ambiguous. Pennsylvania
    Life Ins. 
    Co., 637 N.E.2d at 1102
    . Thus,
    we must determine whether Dr. Thomas’s
    interpretations of the Problem Resolution
    clause are reasonable, bearing in mind
    that Illinois has long recognized the
    rule of contract construction that any
    ambiguity in the contract should be
    resolved against the drafting party, in
    this case Pearle. See Liccardi v. Stolt
    Terminals (Chicago), Inc., 
    669 N.E.2d 1192
    , 1199 (Ill. App. Ct. 1996); Wheeler
    v. Phoenix Co. of Chicago, 
    658 N.E.2d 532
    , 537 (Ill. App. Ct. 1995)
    (ambiguities in language contained within
    employee manual construed against the
    drafter); Epstein v. Yode 
    391 N.E.2d 432
    (Ill. App. Ct. 1979).
    1.   Mandatory or Permissive
    We note at the outset that the plain
    language of the contract is permissive,
    not mandatory. See 
    Owens, 736 N.E.2d at 150
    (holding that a party’s intent is
    best determined from the plain language
    of the contract). The clause reads, "[i]f
    you think you have been treated unfairly,
    please contact the Sr. Vice President of
    Human resources." It does not read, "you
    must contact the Sr. Vice President" or
    "failure to contact the Sr. Vice
    President will result in a loss of your
    rights and benefits." If Pearle had
    wished the Problem Resolution clause to
    be an exclusive and mandatory remedy that
    must be exhausted before a complainant
    resorts to litigation, then it could very
    easily have drafted the clause with
    clear, unambiguous, and express mandatory
    language. Cf. Lee v. Canuteson, 
    573 N.E.2d 318
    , 320 (1991) ("failure to
    comply with any of the time limits listed
    below shall constitute a waiver of the
    grievance."). Even though the district
    court’s interpretation could perhaps be
    deemed reasonable, so too is an
    interpretation that the Problem
    Resolution clause merely offered Pearle
    employees the additional benefit of an
    informal resolution procedure.
    Pearle suggests that to interpret the
    clause as permissive eviscerates its
    meaning, and deprives Pearle of a
    bargained for right, citing Mayfair v.
    Waveland, 
    619 N.E.2d 144
    , 152 (Ill. App.
    Ct. 1993) (contracts should be construed
    to give effect to every clause). We
    disagree. Pearle may have intended the
    Problem Resolution clause to grant
    employees additional rights, giving them
    an informal remedy should they chose to
    avoid retaining an attorney. This could
    both generate good will among Pearle
    employees (who may not have to struggle
    as mightily to validate their FMLA rights
    when management makes an honest mistake),
    but also, in turn, helps Pearle avoid
    legal expenses when those employees
    choose that remedy. Pearle’s suggestion
    that employees would never avail
    themselves of a permissive remedy and
    would instead always resort to litigation
    is but speculation.
    But there is more to cast doubt on
    Pearle’s interpretation of the Problem
    Resolution clause. The FMLA
    prohibitscovered employers from
    discouraging eligible employees from
    exercising their rights under the FMLA,
    see 29 C.F.R. sec. 825.220(a)(1), and
    Pearle distributed the 1997 SPD to all of
    its employees, including those
    statutorily eligible for protection under
    the FMLA. Accordingly, if the Problem
    Resolution clause is obligatory, then it
    arguably violates the FMLA and would be
    entirely invalid against its FMLA-
    eligible employees. Pearle suggests that
    every contract should be read so that
    every clause is given effect, but the
    very interpretation of the contract that
    it proposes would strip the Problem
    Resolution clause of meaning for many
    Pearle employees./3
    Because the express language of the
    Problem Resolution clause is permissive
    and because an interpretation of the
    clause as such is reasonable, we hold
    that the Problem Resolution clause is
    ambiguous. Therefore, there is a genuine
    issue of material fact as to whether
    Pearle intended the procedure set forth
    in the Problem Resolution clause to be
    permissive or mandatory.
    2. The Scope of the Problem Resolution
    Clause
    Even if, however, the Problem Resolution
    clause clearly expressed Pearle’s intent
    to create an obligatory remedy that
    aggrieved employees must utilize before
    resorting to litigation, Dr. Thomas
    further argues that the Problem
    Resolution clause is ambiguous as to its
    scope. Dr. Thomas contends that the
    clause applies only if an employee seeks
    to bring a claim of retaliation for
    exercising rights under the FMLA. She
    points to language in the clause that
    reads "[i]t is the policy of the
    organization not to discharge or
    discriminate against any employee
    exercising his or her rights under the
    Family and Medical Leave Act." Pearle
    largely ignores this argument, relegating
    its response to a footnote in which it
    claims that Thomas’s reading of the
    clause is "tortured" and "facially
    unavailing."
    But an examination of the structure of
    the FMLA suggests that Dr. Thomas’s
    reading of the Problem Resolution clause
    is, in fact, reasonable. The FMLA
    establishes two categories of broad
    protections for employees--one
    prescriptive in nature, the other
    proscriptive. See 29 U.S.C. sec. 2615
    (a)(1) & (2); see also Rice v. Sunrise
    Express, 
    209 F.3d 1008
    , 1016-17 (7th Cir.
    2000); King v. Preferred Technical Group,
    
    166 F.3d 887
    (7th Cir. 1999); Strickland
    v. Water Works and Sewer Bd. of the City
    of Birmingham, 
    239 F.3d 119
    , 1206-07
    (11th Cir. 2001); Chaffin v. John H.
    Carter Co., 
    179 F.3d 316
    , 319 (5th Cir.
    1999); Hodgens v. General Dynamics Corp.,
    
    144 F.3d 151
    , 159-60 (1st Cir. 1998). The
    prescriptive category of protections
    ensures the availability of the FMLA’s
    substantive statutory rights, making it
    "unlawful for any employer to interfere
    with, restrain, or deny the exercise of
    or the attempt to exercise, any right
    provided." See 29 U.S.C. sec. 2615(a)(1);
    see also 
    King, 166 F.3d at 891
    ;
    Strickland, 
    239 F.3d 1206-07
    . The
    proscriptive category of protections does
    not ensure substantive rights, but
    instead, protects employees from
    retaliation, making it unlawful for
    employers to discriminate against
    employees who have exercised their rights
    under the FMLA. See 29 U.S.C. sec. 2615
    (a)(2); 29 C.F.R. sec.825.220(c); see
    also 
    King, 166 F.3d at 891
    ; 
    Strickland, 239 F.3d at 1206-07
    . Courts have
    routinely recognized the difference
    between the two types of claims, and have
    applied different tests when employees
    bring only one of the two types of
    claims. See, e.g., Diaz v. Fort Wayne
    Foundry Corp., 
    131 F.3d 711
    (7th Cir.
    1997); Nero v. Industrial Molding Corp.,
    
    167 F.3d 921
    (5th Cir. 1999); 
    Chaffin, 179 F.3d at 319
    . In this case, language
    of the Problem Resolution clause suggests
    that it applies to proscriptive claims of
    retaliation and discrimination and not to
    prescriptive claims that Pearle failed to
    provide substantive FMLA rights. It
    directs employees who believe they have
    been discriminated against for exercising
    their rights under the FMLA (and not
    those employees who believe they have
    unlawfully been denied FMLA benefits) to
    contact the Sr. Vice President. Further,
    the second paragraph of the clause
    directs employees who have "questions"
    about their FMLA benefits to contact
    their benefits coordinator./4 A
    reasonable interpretation of the entire
    clause, which differs from that offered
    by Pearle, is that employees who have
    questions about substantive FMLA benefits
    (such as Dr. Thomas) contact their
    benefits coordinator, while employees who
    believe that they have been retaliated
    against for exercising FMLA rights (a
    category in which Dr. Thomas would not be
    included) contact the Sr. Vice President.
    Accordingly, we hold that the Problem
    Resolution clause is also ambiguous as to
    its scope. Therefore, there is a genuine
    issue of material fact as to whether the
    procedure set forth in the Problem
    Resolution clause applies to Dr. Thomas.
    C.   Form over Function
    Lest we elevate form over substance, we
    discuss briefly whether Dr. Thomas was
    actually damaged by Pearle’s failure to
    provide her written notice that she was a
    highly compensated employee and that it
    intended to deny job restoration. The
    parties do not dispute that both Melquist
    and Hying told Thomas that there may not
    be a position for her when she returned.
    But Melquist, Soots, and even Dr. Nelson
    himself, told Thomas on numerous
    occasions, 4 in number, that she had
    "nothing to worry about" and that Dr.
    Nelson was only temporary help. Indeed,
    on the day before Melquist hired Dr.
    Nelson, she advised Thomas that Dr.
    Nelson was only performing her duties as
    "temporary help." Thus, Pearle’s actions
    should not be considered so clear to a
    reasonable individual, including Dr.
    Thomas, that it considered her to be a
    highly compensated employee and would not
    necessarily offer her job restoration
    when she returned from leave. They are,
    in fact, far from it.
    And there is more. At the same time
    Pearle employees told Thomas that she
    might not be offered job restoration,
    they provided her with FMLA forms to
    complete, which could have lead a
    reasonable person to believe that her
    position was secure and her leave had
    been granted. On those leave request
    forms, Dr. Thomas also indicated that she
    was able and willing to perform the
    functions of her position--and yet Pearle
    never informed her that it planned to
    hire Dr. Nelson full-time because they
    could not find sufficient coverage for
    Dr. Thomas’s position. Indeed, Thomas did
    not even learn that Pearle had hired a
    full-time replacement until she began
    preparing and was physically able to
    return from her leave in July and noticed
    that her name was no longer on the office
    door.
    In essence Pearle never did provide Dr.
    Thomas with a clear and definite
    statement of its intentions. Perhaps, if
    faced with the decision between two
    definite alternatives--either to continue
    her leave knowing that her job would not
    be restored or to abort her leave to
    secure her position--Dr. Thomas would
    have chosen the latter, and that is
    sufficient to establish that Pearle’s
    failure to provide her written notice was
    certainly far more important than a
    simple, technical error, but one that
    substantively affected Dr. Thomas’s
    rights.
    IV.   Conclusion
    We disagree with the district court’s
    conclusion that the Problem Resolution
    clause in Pearle’s 1997 SPD unambiguously
    created an exclusive remedy for Pearle’s
    breach of the FMLA. The clause neither
    used express language indicating such an
    intent, nor clearly defined the scope of
    the clause. Further, we hold that Dr.
    Thomas was injured by Pearle’s failure to
    provide clear, written notice of its
    intention not to offer her job
    restoration, with which she might have
    chosen to continue working rather than
    risk the loss of her job. Accordingly,
    because the contract is ambiguous, its
    interpretation is a question for the
    trier of fact and summary judgment was
    improper.
    The decision of the district court is
    REVERSED and the case REMANDED for further
    proceedings consistent with this opinion.
    FOOTNOTES
    /1 This clause is similar to an exemption in the
    FMLA, allowing employers under certain conditions
    to deny restoration to highly compensated
    employees. 29 U.S.C. sec. 2614(b)(1). The
    regulations implementing the FMLA require an
    employer that chooses to avail itself of this
    exemption to provide the employee written notice
    at the time the employee requests leave that it
    intends to deny restoration pursuant to sec.
    2614. If the employer does not provide written
    notice to the employee, then it loses its right
    to deny restoration. 29 C.F.R. sec. 825.219.
    /2 The Problem Resolution clause reads, in its
    entirety:
    It is the policy of the organization not to
    discharge or discriminate against any employee
    exercising his or her rights under the federal
    Family and Medical Leave Act. If you think you
    have been treated unfairly, please contact the
    Sr. Vice President of Human Resources. The deci-
    sion of the Sr. Vice President of Human Resources
    will be final and binding.
    If you have questions about the Family and Medi-
    cal Leave Act of 1993, please contact your Bene-
    fits Coordinator.
    /3 The record does not disclose how many Pearle
    employees are eligible employees as defined by
    the FMLA, but presumably all of those employees
    in major metropolitan areas (where it is likely
    that more than 50 employees work within a 75 mile
    radius) are eligible.
    /4 Although the record does not disclose who Thom-
    as’s benefits coordinator was, she had contact
    with both Pearle’s regional manager, Melquist,
    and Pearle’s human resources manager, Hying,
    regarding her leave.