United States District Court, M.D. Pennsylvania
October 13, 2005.
SANDRA SOLOVEY, Plaintiff,
WYOMING VALLEY HEALTH CARE SYSTEM HOSPITAL, Defendant.
The opinion of the court was delivered by: RICHARD CONABOY, Senior District Judge
MEMORANDUM AND ORDER
Here we consider the parties' cross motions for summary
judgment. Plaintiff filed her Complaint in the underlying action
on December 13, 2004, alleging that Defendant violated the Family
Medical Leave Act ("FMLA") when it did not allow her to use
vacation pay for days she was absent from work due to her
father's illness. (Doc. 1.) The reason given for the denial was
that Plaintiff did not comply with the two-week notification
policy regarding request for vacation leave. (Id.) In addition
to monetary damages, Plaintiff requests that the Court declare
Defendant's policy a violation of the FMLA and restrain Defendant
from enforcing the two-week notice policy. On August 25, 2005,
Plaintiff filed her summary judgment motion, (Doc. 25), and on
August 26, 2005, Defendant filed its motion, (Doc. 26). On
September 30, 2005, both parties filed their supportive briefs,
(Docs. 31-1, 32-1). By agreement of the parties, the summary judgment briefing schedule is now complete. (See Doc. 24.)
Therefore these motions are now ripe for disposition.
The only issue presented by these motions is whether
Defendant's application of the policy requiring two weeks advance
notice of the use of vacation time to the situation where an
employee is requesting to be paid for time off taken pursuant to
the Family Medical Leave Act violates the FMLA. For the reasons
discussed below, we conclude that Defendant's policy conflicts
with the FMLA and, therefore, summary judgment is granted in
favor of Plaintiff.
The parties have stated that the facts are not in
dispute.*fn1 (Doc. 31-1 at 3; Doc. 32-1 at 1-2.) Sandra
Solovey was at all relevant times a nurse employed by Wyoming
Valley Health Care System-Hospital ("WVHCS" "Defendant") in the
emergency room at Wilkes-Barre General Hospital ("WGBH").
Plaintiff was a member of a bargaining unit consisting of
registered nurses employed by Defendant and represented for
purposes of collective bargaining by the Wyoming Valley Nurses
Association/PASNAP ("Union"). At all relevant times, Defendant
and the Union were parties to a collective bargaining agreement
("CBA") governing the terms and conditions of employment. The CBA contained, inter alia, the vacation policy at issue here and
grievance and arbitration procedures.
Plaintiff's father was placed in hospice care in June 2003. On
June 23, 2003, Solovey left work in the middle of her shift after
receiving word that her father's condition had worsened. She
spent June 24 and 25, 2003, with her father, and returned to work
on June 26th. Plaintiff left work early on June 26th when
she received word that her father's condition was critical and
that he was in extremis. She remained out of work on June 27,
2003, and her father died on June 28th. Defendant deemed the
time Plaintiff missed work beginning on June 23, 2004, through
June 27, 2004, to constitute leave under the FMLA.
Plaintiff was paid for the time she was absent from work on
June 23rd and June 24th, using available paid time off
known as "family ill" days. However, Defendant denied Plaintiff's
request to use a portion of her paid vacation allotment to obtain
compensation for her partial day absences on June 22nd and
June 26th and her full day absence on June 27th.
Defendant denied the request on the grounds that Plaintiff had
not complied with the CBA requirement that employees provide two
weeks advance notice before taking a vacation day in order to
qualify for use of paid vacation time. Plaintiff did not learn of
her need for the absences from work until June 22, 2003.
After Defendant denied Plaintiff's request to use paid vacation time, Plaintiff filed a grievance under the CBA to
contest Defendant's determination. On August 19, 2003, the Union
filed a demand for arbitration under the CBA. On February 13,
2004, an arbitration hearing was held in Wilkes-Barre,
Pennsylvania. The parties to the proceeding were the Defendant
and the Union. Plaintiff attended the hearing. Both parties
submitted post-hearing briefs. The Union argued, inter alia,
that the CBA incorporated by reference the language of the FMLA
and that denial of the vacation time sought by Plaintiff was
contrary to the terms of the FMLA and therefore violated the
FMLA. In an Opinion and Award issued on June 3, 2004, the
arbitrator denied the grievance and rejected the Union's
Following this determination, Plaintiff filed the current
action on December 13, 2004. On February 11, 2005, Defendant
filed a Motion to Dismiss, asserting the Court should dismiss
this action because the issue raised was decided in arbitration.
(Docs. 8, 11, 18.) The issue presented was whether the
arbitration decision precluded Plaintiff from pursuing her FMLA
claim in this court. We determined the arbitration decision had
no preclusive effect and Plaintiff's claim could go forward.
The parties agree that the issue of the interpretation of FMLA
statutory and regulatory provisions is a matter of law, as is the
relationship between the relevant provisions and Defendant's
policy regarding the application of the vacation time notice
provision to FMLA leave. (Docs. 31, 32.) As noted above, the briefing schedule
in this matter is complete and the parties' motions are ripe for
A. SUMMARY JUDGMENT STANDARD
A motion for summary judgment should be granted only if the
record "show[s] there is no genuine issue of material fact and
that the moving party is entitled to judgment as a matter of
law." Fed.R.Civ.P. 56(c). Facts that may alter the outcome of
the case are "material facts." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). Disputes are "genuine" if evidence
exists from which a rational person could conclude that the
position of the party with the burden of proof on the disputed
issue is correct. Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). A defendant meets this standard when there is an absence
of evidence that rationally supports the plaintiff's case. Id.
at 325. A plaintiff must point to admissible evidence that would
be sufficient to show all elements of a prima facie case under
applicable substantive law. See, e.g., Williams v. Borough of
West Chester, 891 F.2d 458, 460 (3d Cir. 1989).
B. FAMILY MEDICAL LEAVE ACT CLAIM
Plaintiff argues that the language of the FMLA and relevant
regulatory provisions clearly establish her right to use earned
but unused paid vacation for the dates of June 22, 26 and 27,
2005, and Defendant's failure to allow her to do so constitutes a violation
of the FMLA. (Doc. 31-1 at 4-14.) Defendant argues that
application of the CBA provision requiring two weeks advance
notice in order to become entitled to use paid vacation time to
FMLA leave does not violate the FMLA.
The stated purposes of the FMLA include:
(1) to balance the demands of the workplace with the
needs of families, to promote the stability and
economic security of families, and to promote
national interests in preserving family integrity;
(2) to entitle employees to take reasonable leave for
medical reasons, for the birth or adoption of a
child, and for the care of a child, spouse, or parent
who has a serous health condition;
(3) to accomplish the purposes described in
paragraphs (1) and (2) in a manner that accommodates
the legitimate interests of employers[.]
29 U.S.C. § 2601(b).
Section 2612 sets out an employee's entitlement to leave. As
pertains to this action, an eligible employee is entitled to a
total of twelve workweeks of leave during any twelve month period
in order to care for a parent who has a serious health condition.
29 U.S.C. § 2612(a)(1)(C).
The FMLA provision addressing the use of vacation time provides
as follows: "An eligible employee may elect, or an employer may
require the employee, to substitute any of the accrued paid
vacation leave, personal leave, or family leave of the employee
provided under subparagraph . . . (C) of subsection (a)(1) of this section for any part of the twelve-week period of such
leave under such subsection." 29 U.S.C. § 2612(d)(2)(A).
In protection of the rights granted under the FMLA,
29 U.S.C. § 2615(a)(1) makes it "unlawful for any employer to interfere with,
restrain, or deny the exercise of or the attempt to exercise, any
right provided under this subchapter."
Here the parties do not dispute that Plaintiff was an eligible
employee entitled to FMLA leave because of her father's serious
illness. Rather, as noted above, they dispute Plaintiff's
entitlement to be paid for certain time off by using accrued paid
We concur with Plaintiff that § 2612(d)(2)(A) is an express
grant allowing her to use her accrued vacation time without the
restriction of the two-week notice policy.
A regulation promulgated pursuant to 29 U.S.C. § 2654 makes
clear that "no limitations may be placed by the employer on
substitution of paid vacation" time which an employee has opted
to substitute for qualified FMLA leave. 29 C.F.R. § 825.207(e).
The statute itself addresses the relationship of FMLA rights and
those which are found in a collective bargaining agreement: the
latter may grant more rights, but may not diminish FMLA rights.
29 U.S.C. § 2652.
We conclude that Defendant's two week notification policy
regarding the use of accrued paid vacation time in substitution
for FMLA leave diminishes Plaintiff's right to use the paid vacation
time when the employee's need to use the time is not foreseeable
two weeks prior to the time when the leave is needed. Our
decision is based in part on the fact that the regulations
recognize limitations on an employee's right to use paid
sick/medical leave: such leave
may be elected to the extent the circumstances meet
the employer's usual requirements for the use of
sick/medical leave. An employer is not required to
allow substitution of paid sick or medical leave for
unpaid FMLA leave `in any situation' where the
employer's uniform policy would not normally allow
such paid leave.
29 C.F.R. § 825.207(c). The regulation also speaks directly to
the employee's need to meet more stringent requirements of an
employer's temporary disability plan. 29 C.F.R. § 825.207(d)(1).
In contrast, the same regulation specifically states that "no
limitations" may be placed on the employee's election to use paid
vacation time. It is just as common that employers, whether
through a CBA or other employment policy, have some restrictions
or requirements associated with the use of vacation time. Given
that the regulation speaks to the allowance of limitations in
some circumstances, if it were intended that the use of paid
vacation time could be limited, the regulation would say so.
Because it does not, we take "no limitations" to mean just that.
Defendant attempts to persuade the Court that the two week
notification policy is not a "limitation." (Doc. 32-1 at 13.) Rather, Defendant argues the policy is a requirement of the
vacation provision in the CBA. We find this argument without
merit. (Id.) In general, notice is required under the FMLA only
when the reason for the leave is foreseeable. See
29 U.S.C. § 2612(e). Pursuant to Defendant's application of the CBA notice
policy to unforeseeable FMLA leave, the notice requirement limits
the use of accrued paid vacation leave. Further, the FMLA
specifically states that rights established under the FMLA "shall
not be diminished by any collective bargaining agreement."
29 U.S.C. § 2652(b). Whether termed a "limitation" or "a regular
requirement of the vacation provision as set forth in the
parties' collective bargaining agreement," (Doc. 32-1 at 13), the
notice provision in the vacation policy places a requirement upon
the use of accrued vacation leave that diminishes the right to
use the leave when the need for FMLA need is not adequately
foreseeable. Defendant's semantic argument does not dissuade us
from our conclusion that § 825.207(e) does not permit such a
We also find Defendant's other proffered arguments without
merit and cited support distinguishable. In conjunction with the
argument that the entitlement to use accrued paid vacation leave
must be interpreted to mean that the time may only be used
according to the terms of the employer's policy, Defendant
analogizes the situation where an employee is not entitled to
paid vacation leave at all. (See Doc. 32-1 at 8, 12.) While
Defendant is correct that "the employer's policy itself . . .
will necessarily control as to whether any paid vacation time is
provided to employees," (id. at 8), and an employee is not
entitled to use paid vacation time when an employer does not
afford the employee paid vacation time, (id. at 8, 12), the
statute and implementing regulations only apply when the employee
has accrued vacation time. Thus, no analogy can be made between
a situation where a person has no accrued vacation time and a
situation directly addressed in the statute and implementing
regulations the right of an employee who has accrued paid
vacation time to substitute it for FMLA leave.
Similarly, we conclude the cited Department of Labor ("DOL")
Opinion Letters do not support Defendant's position. Defendant
first cites Opinion Letter Family and Medical Leave Act
FMLA-61, 1995 WL 1036732 (May 12, 1995). This letter addresses
the situation where an employer told an employee that he must use
vacation time for part of his FMLA leave that he would otherwise
not yet be entitled to use under the terms of the employer's
vacation leave plan. FMLA-61, 1995 WL 1036732. Under the plan, an
employee who worked 800 hours in the current vacation year earns
paid vacation that may not be used until the next vacation year.
Id. The Department of Labor interpreted 29 U.S.C. § 2612(d)(2)
to mean that "the employee has both earned the leave and is
entitled to use that leave during the FMLA leave period." Id. In the
particular situation under consideration, the DOL opined that the
employer "could not require the employee to substitute leave not
yet available to the employee to use under the terms of the
employer's leave plan." Id.
Defendant argues that this letter indicates that an employer is
not required to allow an employee to use paid time during an FMLA
leave period if the employee were not entitled to use the time
under the employer's leave plan. (Doc. 32-1 at 8.)
Although this argument may be somewhat persuasive on the
surface, we conclude that a notice provision in a vacation policy
should be distinguished from the provision at issue in the
Opinion Letter. In the latter situation, the right to use the
time had not yet accrued the right to use the time did not
arise until the following year. In the case of a notice
provision, the right to use the time has accrued albeit subject
to giving the employer the required notice. Thus, the notice
provision is more procedural than substantive. While this may
seem to be a narrow distinction, we conclude that it is
consistent with both the letter and the spirit of the FMLA. As
set out above, one of the stated purposes of the FMLA is to
promote the economic security of families. See supra p. 6. To
adopt Defendant's interpretation would mean that an employee who
had ample accrued paid vacation time to substitute for FMLA leave
may have to go without pay for up to two weeks in the common situation where a serious health situation necessitating
leave was not foreseeable. We conclude that this is the kind of
economic hardship the FMLA seeks to avoid. Therefore, it is
appropriate to treat a procedural impediment to using paid leave
differently from a substantive right to use the leave.
We make a similar distinction between the case at bar and the
situation presented in Opinion Letter Family and Medical Leave
Act FMLA-75, 1995 WL 1036746 (November 14, 1995). There an
employee was only entitled to take vacation during the two week
period when the plant was shut down. FMLA-75, 1995 WL 1036746.
The employer's expressed concern was that if the employee could
use paid vacation at another time the employee would be entitled
to unemployment compensation during the period when the plant was
shut down. Id. The DOL's opinion was that neither the statute
nor regulations required this result. Id. Similar to FMLA-61,
the DOL interpreted the relevant provisions "to require that the
employee has earned the right to take the leave under the
employer's plan and is entitled to, therefore, substitute the
accrued leave during the FMLA period. Consequently leave that has
not yet been earned is not available for substitution by an
employee." Id. The letter added "where an employee may only use
leave under the employer's plan during a specified period when
the plant is shut down, the employee has not fully vested in the
right to substitute that leave for purposes of FMLA." Id. This quoted language reveals that a deciding factor is whether
the right to take the leave has vested. As discussed above, in
the case at bar Plaintiff was entitled to use paid vacation time
subject to the procedural provisions of the CBA policy.
Therefore, the right had vested the notice provision addressed
procedural considerations for using the vested time. Also as
discussed above, it is important to distinguish procedural and
substantive aspects of a CBA or leave program to determine
whether the provision in question diminishes the employee's
rights. Here, the notice provision is procedural and, as analyzed
above, diminishes Plaintiff's FMLA rights.
The case which Defendant finds "very instructive to the issue
in this case," (Doc. 32-1 at 11), Callison v. City of
Philadelphia, 128 Fed. Appx. 897 (3d Cir. 2005) (not
precedential), does not provide the suggested support. Callison
addressed whether an employer's application of the call-in
provision of its sick leave policy to an employee on FMLA leave
violated the FMLA. Id. The court held that the sick leave
policy which required an employee to call in before leaving home
during working hours did not violate the FMLA because it "neither
conflicts with nor diminishes the protections guaranteed by the
FMLA." Id. at 901. The Third Circuit Court of Appeals agreed
with the District Court's rationale "that the purpose of the FMLA
is not compromised by [the call-in] policy because `it neither
prevents employees from taking FMLA leave nor discourages employees from taking such leave. It simply
ensures that employees do not abuse their FMLA leave.'" Id. at
The same cannot be said of the notice policy at issue here.
While the two-week notice policy does not prevent an employee
from taking FMLA leave, it discourages her from doing so if the
need for the leave is unforeseeable: despite having ample accrued
vacation time, an employee could have to go two weeks without pay
an economic hardship that could discourage the employee from
taking appropriate FMLA leave. Because the effect of the sick
leave policy at issue in Callison and the notice provision as
applied in the case at bar have significantly different impacts
on the exercise of FMLA rights, the Third Circuit's decision does
not suggest that a similar outcome is appropriate here. While, as
Defendant argues, it is certainly true that "Plaintiff's union is
free to collectively bargain for a more lenient vacation
provision in general or a shorter advance notice period
specifically," (Doc. 32-1 at 12), until the Union successfully
does so, the provision as applied diminishes an employee's right
to used accrued paid vacation leave.
Finally, keeping in mind that another stated purpose of the
FMLA is to grant employee entitlements "in a manner that
accommodates the legitimate interests of employers,"
29 U.S.C. § 2601(b)(3), we will examine whether our interpretation of an employee's right to use accrued paid vacation without two-weeks
notice to the employer is in accord with this FMLA purpose.
Defendant does not argue that Plaintiff's interpretation violates
a legitimate business interest and we do not otherwise find one.
This is not a situation where the notice policy is intended to
"ensure that employees do not abuse their FMLA leave,"
Callison, 128 Fed. Appx. at 899. Nor is it a case where an
employee may potentially double dip (using vacation time for FMLA
leave and collecting unemployment when the plant is shut down
during the set vacation period), as in Opinion Letter, FMLA-75.
Here Defendant asserts that the notice policy "does not in any
way" prevent an employee from obtaining leave. (Doc. 32-1 at 11.)
While we disagree with Defendant's assessment of the effect of
the policy, we find that this statement supports our conclusion
that Defendant has no business reason (other than its desire to
enforce strict adherence to the procedural aspects of the CBA
vacation policy) to prohibit an employee from taking paid time
off during the two-week notice period when the need for the FMLA
leave was not adequately foreseeable.
For the reasons discussed above, we conclude that the two-week
notice policy diminishes the right to the use of paid vacation
leave in the case of leave which is not foreseeable two weeks
before needed and, thus, this policy is in violation of 29 U.S.C.
§ 2612(d)(2), 29 U.S.C. § 2652(b) and 29 C.F.R. § 825.207(e).
Therefore, pursuant to 29 U.S.C. § 2615(a)(1), Defendant is in
violation of the FMLA because it has applied the two-week notice
policy to an employee seeking to use accrued paid vacation time
in substitution for FMLA leave. On this basis, we grant
Plaintiff's Motion for Summary Judgment, (Doc. 25), and deny
Defendant's Motion for Summary Judgment. An appropriate Order
AND NOW, THIS 13th DAY OF OCTOBER 2005, FOR THE REASONS
DISCUSSED IN THE ACCOMPANYING MEMORANDUM, IT IS HEREBY ORDERED
1. Plaintiff's Motion for Summary Judgment, (Doc.
25), is GRANTED;
2. Defendant's Motion for Summary Judgment, (Doc.
26), is DENIED;
3. Plaintiff is awarded the monies lost to her
because of Defendant's refusal to permit her to
substitute paid vacation leave on June 22, 26 and 27,
2003, for her unpaid FMLA leave with interest and
4. Defendant's policy requiring that eligible
employees must provide two weeks written notice
before using paid vacation time when substituting
that time for FMLA leave violates the FMLA and, therefore, Defendant is to
cease enforcement of this policy in cases where an
employee is exercising rights pursuant to the FMLA
and is unable to provide such notice;
5. Defendant is to pay the Plaintiff's attorney's
fees and other costs of this action;
6. The Clerk of Court is directed to close this case.
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