Kathryn Pereda v. Brookdale Senior Living Communities, Inc.

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-14723 JAN 10, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 0:10-cv-60773-FAM
KATHRYN PEREDA,
an individual,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellant,
versus
BROOKDALE SENIOR LIVING COMMUNITIES, INC.,
a Delaware corporation,
llllllllllllllllllllllllllllllllllllllll Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(January 10, 2012)
Before WILSON and FAY, Circuit Judges, and RESTANI, *Judge.
*
Honorable Jane A. Restani, Judge, United States Court of International Trade, sitting by
designation.
FAY, Circuit Judge:
Appellant Kathryn Pereda (“Pereda”) appeals the district court’s dismissal
of her two-count complaint alleging interference and retaliation under the Family
and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601, et seq., against
Appellee Brookdale Senior Living Communities (“Brookdale”). The district court
held that because Pereda was not an eligible employee at the time she was
terminated, she could not bring either claim under the FMLA. This appeal presents
an issue of first impression for this Circuit: whether the FMLA protects a pre-
eligibility request for post-eligibility leave. We answer that question in the
affirmative, and therefore reverse.
I.
Brookdale operates senior living facilities. Pereda began her employment at
the facility located at The Preserve at Palm-Aire in Pompano Beach, Florida on
October 5, 2008. She was terminated 11 months later, in September of 2009. In
June of 2009, Brookdale was advised that Pereda was pregnant and would be
requesting FMLA leave after the birth of her child on or about November 30,
2009. Pereda alleges that, prior to Brookdale learning about her pregnancy, she
was a top employee. After learning about her pregnancy, Pereda alleges that
2
Brookdale began harassing her, causing stress and other complications in her
pregnancy. In addition, Pereda alleges that Brookdale’s management began
denigrating her job performance and placed her on a performance improvement
plan with unattainable goals.
At the time of these complications, Pereda was eligible for accrued sick and
personal leave. Pereda alleges that she was told by management that she could
make doctors visits. Yet, after placing Pereda on the performance improvement
plan, management began writing her up for taking leave to visit the doctor. Pereda
alleges that other employees were not written up for taking the same. In August of
2009, Pereda took a few days off, notifying Brookdale via e-mail. When she
returned to work, she was again written up by management for not getting verbal
authorization for her absence.
Later that same month, Pereda continued to suffer more pregnancy-related
medical issues. Pereda alleges that management told her she was eligible for non-
FMLA leave, including the use of sick, personal, and vacation days. In early
September, she again took time off after her physician instructed that she needed
bed rest. She left a message with the Executive Director, but never heard back.
Several days after she was finally able to reach someone at Brookdale, she was
3
fired.
On May 11, 2010, Pereda filed her Complaint against Brookdale alleging
claims for interference (Count I) and retaliation (Count II) under the FMLA. Her
Complaint asserted that “Brookdale [interfered with her] FMLA rights, insofar as
Brookdale denied Pereda benefits under the FMLA to which she was entitled, and
terminated her for attempting to exercise those rights.” Brookdale moved to
dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of
Civil Procedure. On September 22, 2010,1 the district court dismissed Pereda’s
Complaint. In its order of dismissal, the district court held that Brookdale could
not have interfered with Pereda’s FMLA rights, because she was not entitled to
FMLA leave at the time that she requested it. Moreover, the district court also
held that since Pereda was not eligible for FMLA leave, she could not have
engaged in protected activity and so Brookdale could not have retaliated against
her. Pereda now appeals.
II.
We review a dismissal of a complaint under Fed. R. Civ. P. 12(b)(6) de
1
Pereda filed the instant case on May 11, 2010. On June 2, 2010, Brookdale filed a Motion to
Dismiss. Pereda failed to file its Response in Opposition and the district court dismissed the case
on June 24, 2010. On that same day, Pereda filed a Motion for Relief from the district court’s
Order of Dismissal based on excusable neglect, which the district court granted on September 13,
2010. A few days later, on September 22, 2010, the district court issued its Order on the merits,
and granted Brookdale’s Motion to Dismiss on the merits.
4
novo. Speaker v. U.S. Dep’t. of Health &Human Servs. Centers for Disease
Control & Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010). We “accept[ ] the
factual allegations in the complaint as true and construe[ ] them in the light most
favorable to the plaintiff.” Id.III.
Before the Court is the question left open by Walker v. Elmore County,
Board of Education, 379 F.3d 1249, 1253 (11th Cir. 2004): “whether the FMLA
protects a pre-eligibility request for post-eligibility maternity leave.”2 We resolve
that question in the affirmative.
Under section 2615(a) of the FMLA, an employee may bring two types of
claims: interference claims, in which an employee asserts that his employer denied
or otherwise interfered with his substantive rights under the Act; and retaliation
claims, in which an employee asserts that his employer discriminated against him
because he engaged in an activity protected by the Act. Strickland v. Water Works
& Sewer Bd. of Birmingham, 239 F.3d 1199, 1206 (11th Cir. 2001) (citations
omitted).
2
In Walker, the Court held that the FMLA did not protect an attempt to exercise the right to
begin FMLA-leave before one is eligible. Id. There, Walker, a third-grade teacher, announced she
was pregnant and would be needing leave beginning on her due date of August 2. Id. at. 1250.
Because Walker needed leave to commence several days before she was eligible under the
FMLA, the Court held that she was not protected by the Act. The Walker Court reserved for
another day the factual scenario before us today: whether the FMLA protects a pre-eligibility
request for post-eligibility maternity leave.
5
In order to receive FMLA protections, one must be both eligible, meaning
having worked the requisite hours,3 and entitled to leave, meaning an employee
has experienced a triggering event, such as the birth of a child. See 29 U.S.C.
2612(a)(1) (stating that only an eligible employee shall be entitled to FMLA
leave). “The determination 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 the FMLA
leave is to start.” 29 C.F.R. § 825.110(d).4
Here, it is undisputed that Pereda, at the time she requested leave, was not
eligible for FMLA protection because she had not worked the requisite hours and
had not yet experienced a triggering event, the birth of her child. It is also
undisputed that she would have been entitled to FMLA protection by the time she
gave birth and began her requested leave.5
3
Under the FMLA, an eligible employee is one who has worked for at least 12 months, and for
at least 1,250 hours during the previous 12-month period. 29 U.S.C. § 2611(2).
4
Brookdale argues 29 C.F.R. § 825.110(d) is inapplicable to this case because the regulation
was enacted to address whether a employee out on non-FMLA leave could be transferred to
FMLA leave once the employee became eligible. Brookdale relies on Brungart v. BellSouth
Telecomm. Inc., 231 F.3d 791, 795–97 (11th Cir. 2000) to argue that Pereda’s interpretation of
the regulation would improperly expand the reach of the FMLA to cover ineligible employees.
We find Brungart, which held an employer’s failure to provide sufficient notice of ineligibility
did not transform an ineligible employee to an eligible employee, inapplicable to the issues of
this case. Moreover, our holding does not expand FMLA eligibility to an otherwise ineligible
employee.
5
Pereda was first employed by Brookdale on October 5, 2008 and terminated on September 5,
2009. Had she not been terminated, Pereda would have been eligible and entitled to begin
FMLA-leave as of her due date on November 30, 2009. By November 30, 2009 she would have
6
The district court denied Pereda’s interference claim because she had not yet
experienced a triggering event when she requested her leave and, thus, “she was
not entitled to FMLA leave such that Defendant could have interfered with her
right.” Dist. Ct. Order at 4. The district court also denied Pereda’s retaliation
claim, finding that Pereda’s request for leave was not a statutorily protected
activity. The district court reasoned that the FMLA did not grant employees the
right to request leave before becoming eligible and, because Pereda was not
eligible for FMLA leave when she made her request, her request was not an
attempt to exercise a protected right.6
Pereda argues that if the district court decision is allowed to stand,
employees will fear mentioning leave in anticipation of the birth of a child.
Moreover, employees would cease to provide their employers with adequate notice
of an impeding absence in fear of retaliation. Brookdale counters that Pereda was
been employed 14 months, well within the 12-month/1,250-hour Department of Labor (“DOL”)
requirement.
6
In support of its conclusion that an employee who is not eligible at the time of her request does
not engage in protected activity, the district court cited several district court opinions. See Dist.
Ct. Order at 6. We conclude these cases are inapplicable because none of the cases cited
involved an employee who would have been eligible at the time his or her leave was to
commence. See Hills v. Wal-Mart Stores, Inc., No. 08-23197-CIV, 2010 WL 1839268, at *7–8
(S.D. Fla. May 6, 2010) (dismissing retaliation claim when plaintiff was not an eligible employee
at the time of the request or when leave commenced); Pennant v. Convergys Corp., 368 F. Supp.
2d 1307, 1310 (S.D. Fla. 2005) (calculating eligibility as of the day leave commenced per 29
C.F.R. § 825.110(d)); Morehardt v. Sprint Airlines, Inc., 174 F. Supp. 2d 1272, (M.D. Fla. 2001)
(dismissing retaliation claim when employee had not worked the required number of hours by the
day of her request, which was also the day FMLA leave was to commence). Because none of the
cases involved a pre-eligibility request for post-eligibility leave, they are not applicable here.
7
not an FMLA eligible employee at any point during her employment because she
was terminated well before the 12-month/1,250 hour requirement. Because she
was not an eligible employee, she was not entitled to any protection pursuant to
the FMLA and both her claims were properly dismissed. Moreover, Brookdale
argues that Pereda’s anticipated eligibility was not sufficient to make her an
eligible employee under the FMLA in June 2009, when Brookdale learned of her
pregnancy.
After examining the various elements of the FMLA regulatory scheme, such
as the 30-day notice requirement and the DOL implementing regulations, we
conclude that allowing the district court’s ruling to stand would violate the
purposes for which the FMLA was enacted. Without protecting against pre-
eligibility interference, a loophole is created whereby an employer has total
freedom to terminate an employee before she can ever become eligible. Such a
situation is contrary to the basic concept of the FMLA. Thus, this Court disagrees
with the district court and finds that Pereda stated sufficient facts to establish
prima facie claims for both FMLA interference and retaliation. We address each
claim in turn.
8
A. FMLA Interference7
The FMLA makes it illegal “for an employer to interfere with, restrain, or
deny the exercise of or the attempt to exercise, any right provided under this
subchapter.” 29 U.S.C. § 2615(a)(1). “A Plaintiff claiming interference must
demonstrate by a preponderance of the evidence that she was denied a benefit to
which she was entitled.” Harley v. Health Ctr. of Coconut Creek, 487 F. Supp. 2d
1344, 1357 (S.D. Fla. 2006) (citation omitted). In Harley, Judge Gold explained
that “unless unique circumstances exist, a pregnant employee is only entitled to
protection against interference with her FMLA rights once she delivers her baby
and the circumstances of her needing leave arises.” 487 F. Supp. 2d at 1358. The
district court in this case, following Harley, held that because Pereda had not yet
delivered her child, she was not entitled to leave at the time of her request, and,
thus, Pereda could not prove she was denied a benefit to which she was entitled.
We disagree with such a narrow interpretation of the statute.
We hold that because the FMLA requires notice in advance of future leave,
employees are protected from interference prior to the occurrence of a triggering
event, such as the birth of a child. The FMLA mandates that, “In any case in which
7
There exists a dearth of opinions from circuit courts on the precise issue we are dealing with
here. Consequently, we are setting forth excerpts from some district court opinions that, although
not precedential, are illuminating and persuasive.
9
the necessity for leave . . . is foreseeable based on an expected birth or placement,
the employee shall provide the employer with not less than 30 days’ notice, before
the date the leave is to begin, of the employee’s intention to take leave . . . .” 29
U.S.C. § 2612(e)(1). The notice period was meant as protection for employers to
provide them with sufficient notice of extended absences. “It would be illogical to
interpret the notice requirement in a way that requires employees to disclose
requests for leave which would, in turn, expose them to retaliation, or interference,
for which they have no remedy.” Reynolds v. Inter-Indus. Conf. On Auto Collision
Repair, 594 F. Supp. 2d 925,928 (N.D. Ill. 2009).
Without remedy, the advanced notice requirement becomes a trap for newer
employees and extends to employers a significant exemption from liability. Beffert
v. Pa. Dep’t. Of Pub. Welfare, No. Civ. A. 05-43, 2005 WL 906362, at *3 (E.D.
Pa., April 18, 2005). Such an interpretation is inconsistent with FMLA and the
purpose of the Act. If we were to hold that Pereda had no cause of action for
interference because she had not yet been employed the full 1,250 hours during a
12-month period, or given birth to her child, than she should not be required to
give her employer any advance notice of impending leave. As the statute requires
advance notice, logic mandates that FMLA be read to allow a cause of action for
employees who, like Pereda, in goodwill exceed the notice requirement.
10
In support of its position, Brookdale argues that, pursuant to DOL’s
implementing regulation 29 C.F.R. § 825.112, employees are eligible for FMLA
leave only upon the delivery of a child. Eligibility is but one aspect of the
regulation. Notice of a future trigger event is another. It is axiomatic that the
delivery of a child is necessary in order for FMLA leave to actually commence,
but that requirement does not open the door for pre-eligible interference with
FMLA rights with impunity. Furthermore, that regulation cannot be read in
isolation. Taken together with other regulations addressing leave, it is clear that
the FMLA scheme intends that a determination as to FMLA eligibility be made “as
of the date the FMLA leave is to start.” 29 C.F.R. § 825.110(d). “Moreover, the
“reference to ‘employee’ rather than ‘eligible employee’ . . . is a recognition that
some employees will and should give notice of future leave before they have been
on the job for twelve months.” Beffert, 2005 WL 906362, at *3. Notice of an
intent to use FMLA leave in the future is distinct but deserving of similar
protection.
Thus, because the statute contemplates notice of leave in advance of
becoming eligible, i.e., giving birth to a child, the FMLA regulatory scheme must
necessarily protect pre-eligible employees such as Pereda, who put their employers
on notice of a post-eligibility leave request. An expectant mother who is along in
11
her pregnancy cannot hide that, in due time, she will give birth to a child. By the
very nature of the fact that a full-term pregnancy takes nine months to complete,
not affording pre-eligible expecting parents any protection would leave them
exposed to adverse action by their employer.
Although there are no Eleventh Circuit decisions on point, there is helpful
precedent on the meaning of “employee” for FMLA purposes. While on
concededly distinct facts, here we must construe Pereda as “eligible” for
protection if we are to honor the purpose for which FMLA was enacted. In Smith
v. BellSouth Telecommunications, Inc., 273 F.3d 1303, 1307 (11th Cir. 2001), we
held that a former employee who alleged that his employer retaliated against him
in its decision not to rehire him is considered an “employee” within the meaning
of the FMLA. We further explained that a narrow interpretation would permit an
employer to evade the FMLA by blacklisting an employee that the employer
suspects is likely to take advantage of the Act. Id. at 1307 (citing Duckworth v.
Pratt &Whitney, Inc., 152 F.3d 1,11 (1st Cir. 1998)). Here, the interpretation that
Brookdale urges would similarly frustrate the purpose of the FMLA by permitting
employers to eliminate staff that the employer perceives will need FMLA.
In that same vein, Brookdale argues that the term “eligible employee” in the
FMLA evinces clear congressional intent to limit the right to bring private actions.
12
This Court does not disagree entirely. An employee has to be both eligible and
entitled to FMLA leave on the day her FMLA leave is to commence. As stated
above, these requirements do not open the door for pre-eligibility interference with
FMLA rights. Contrary to Brookdale’s contentions, the Court’s holding today does
not expand FMLA coverage to a new class of employees. We are simply holding
that a pre-eligible employee has a cause of action if an employer terminates her in
order to avoid having to accommodate that employee with rightful FMLA leave
rights once that employee becomes eligible.
B. FMLA Retaliation
Turning to Pereda’s claim for FMLA retaliation, in order to state a prima
facie case, Pereda must show that: “(1) she engaged in a statutorily protected
activity; (2) she suffered an adverse employment decision; and (3) the decision
was casually related to a protected activity.” Walker, 379 F.3d at 1252 (citing
Strickland, 239 F.3d at 1207). After concluding that Pereda was not eligible for
FMLA benefits, the district court ruled that she therefore could not have engaged
in statutorily protected activity, even if she would have become eligible at some
point in the future.
Because we have concluded that the FMLA protects a pre-eligibility request
for post-eligibility maternity leave, we hold that Pereda could also state a cause of
13
action for FMLA retaliation. Here, we need only address the first prong of
FMLA’s retaliation analysis. Under the allegations of the Complaint, Pereda was
engaged in statutorily protected activity when she discussed with her employer the
FMLA leave she was denied after the birth of her baby.
We hold that a pre-eligible request for post-eligible leave is protected
activity because the FMLA aims to support both employees in the process of
exercising their FMLA rights and employers in planning for the absence of
employees on FMLA leave. Protecting both reflects that the FMLA should be
executed “in a manner that accommodates the legitimate interest of employers,” 29
U.S.C. 2601(b)(3), without abusing the interests of employees.
Under the FMLA an employee need not be currently exercising her rights or
currently eligible for FMLA leave in order to be protected from retaliation. 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 the FMLA. 29
U.S.C. § 2615(a)(1). The FMLA also protects employees and prospective
employees even if the individual is not currently eligible or entitled to leave. See
29 C.F.R. § 825.220 (prohibiting employers from discriminating against
employees or prospective employees who have previously used FMLA leave); see
also Potts v. Franklin Elec. Co., No. Civ. 05-443, 2006 WL 2474964, at *1 (E.D.
14
Okla. 2006) (holding an employee who gave notice of expected FMLA leave
could bring a retaliation claim even though a triggering event never occurred). In
Potts, the district court reasoned that “[i]f courts were to read the FMLA to allow
employers to dismiss ineligible employees who give advance notice of their need
for FMLA leave, it would open a large loophole in the law and undermine the
plain language and purpose of the notice requirement in § 2612(e)(1).” 2006 WL
2474964, at *3. Similarly, the FMLA protects Pereda from retaliation, even
though at the time of her request and termination, she was not yet eligible or
entitled to FMLA leave because she had not yet given birth.8 The question
remains for the district court as to whether there is colorable evidence that
Brookdale did in fact retaliate against plaintiff.
Brookdale warns of a slippery slope where, if Pereda’s argument is
accepted, an employee could be deemed FMLA eligible from the first week of
employment. However, as the court mentioned in Reynolds, “The scenario in
8
Our holding that a pre-eligibility request for post-eligibility leave is a protected activity is in
accord with other courts to consider the issue. See Skrjanc v. Great Lakes Power Serv. Co., 272
F.3d 309, 314 (6th Cir. 2001) (“The right to actually take [FMLA] leave . . . includes the right to
declare an intention to take such leave in the future.”); Beffert, 2005 WL 906362, at *3 (holding
a pregnant employee who provided notice of post-eligible FMLA leave could bring a retaliation
claim even though she was not eligible at the time of her request); Reynolds, 594 F. Supp. 2d at
928 (finding an employer “has no legitimate interest in being able to terminate an eleventh
month-employee for simply requesting foreseeable leave for which he is eligible” especially
when the same decision would be prohibited a month later); Walker, 223 F. Supp. 2d at 1260
(finding it “absurd” to interpret the FMLA to allow a employer to retaliate against an employee
who gives pre-eligible notice of post-eligible leave).
15
which an employee works eight hours and then requests foreseeable FMLA leave
beginning in 364 days . . . is a non-starter.” 594 F. Supp. 2d at 930. That
employee, just as Pereda, still could be terminated for legitimate reasons, such as
poor performance or dishonesty. Moreover, liability to that employee could also
be denied for failure to meet other requirements of the FMLA. Our decision today
simply means that pre-eligible discussion of post-eligible FMLA leave is protected
activity under the FMLA. Accordingly, because Pereda engaged in protected
activity by discussing her maternity plans with her employer, she has alleged a
valid cause of action for retaliation under the FMLA.
IV.
For the foregoing reasons, the district court’s judgment is reversed and the
case is remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
16