United States District Court, M.D. Pennsylvania
November 22, 2005.
LAURA C. ROBINSON, Plaintiff,
JOHN E. POTTER, Postmaster General, United States Postal Service, Defendant.
The opinion of the court was delivered by: WILLIAM CALDWELL, Senior District Judge
The Plaintiff, Laura Robinson, has sued the Defendant, John E.
Potter, Postmaster General of the United States Postal Service,
for violations of the Family and Medical Leave Act (FMLA),
29 U.S.C. § 2601, et seq. Robinson claims that the Defendant
interfered with her FMLA right in violation of
29 U.S.C. § 2615(a)(1),*fn1 by including FMLA covered dates in the
decision to terminate her employment. A bench trial was held on
September 12, 2005. What follows constitutes the our findings of
fact and conclusions of law.*fn2 I. Findings of Fact
1. The Postal service has more than fifty employees.
2. Beginning in May, 1998, the Plaintiff, Laura Robinson, was
employed by the United States Postal Service as a mail handler.
(Robinson testimony, Tr. 6).
3. Prior to September 26, 2002, the Plaintiff had worked for
the Postal Service for twelve months and for at least 1,250
hours. She also had enough FMLA time to cover her absences from
October 11, 2002 to November 3, 2002. (Stipulated).
4. During her employment with the Postal Service, Robinson was
frequently absent from work. These absences resulted in Robinson
being subject to various levels of discipline prior to the time
period in question. These included a letter of warning, a
three-day no time-off suspension, and a fourteen day suspension.
(Def. Ex. 22, 23, 24).
5. To be considered for leave under the FMLA, an employee must
provide a health care provider's, or doctor's, report usually
done on what is known as a WH-380 Form.
6. The Postal Service received a WH-380 Form, dated July 8,
2002, from Robinson regarding a period of absence from June 21,
2002, to June 24, 2002. This absence was due to a history of
asthma and bronchitis. Her doctor stated that the condition was
chronic, and indicated that Robinson could be intermittently incapacitated due to the episodic nature of the condition. (Def.
7. The Postal Service received a WH-380 Form dated October 8,
2002, regarding Plaintiff's absences occurring between October 1,
2002, to October 15, 2002. These absences were due to an episode
of major depression. The healthcare provider indicated that
Robinson's condition qualified under the FMLA as "absence plus
treatment." It was indicated on the WH-380 Form that because
depression can last from six to nine months, Robinson may be
recommended to take FMLA leave when she could not function due to
her condition. (Def. Ex. 15).
8. Asthma/bronchitis and depression are serious health
conditions and the Postal Service approved absences for these
conditions prior to the contested dates. (Stipulated).
9. A classification of "absence plus treatment" by a health
care provider includes not only the immediate absence and
treatment but also "any subsequent treatment or period of
incapacity relating to the same condition." (Def. Ex. 7A).
10. Robinson's depression was also classified as an
"injury-on-duty" (IOD). (Def. Ex. 4).
11. Robinson was informed in the various letters requesting
certification of her conditions, that the person taking a leave
request for an approved FMLA condition should be told that the
request was for a "FMLA ON FILE" condition. (Def. Exs. 5, 9, 11,
13, 14, 16). 12. At some point prior to Robinson's absences beginning on
October 11, 2002, Barbara Nicka, the FMLA coordinator, told
Robinson that because she had more than one FMLA condition on
file, she would have to specify whether the condition she was
experiencing was condition number 1, number 2, etc. Nicka
indicated the condition would be treated as a new request if this
detail was not provided. This requirement was not based on any
written policy. (Nicka Testimony, Tr. 161-2, 165, Proctor
Testimony, Tr. 191).
13. Robinson requested leave from work on October 11 and 14,
2002, and, according to the leave slips filled out by Marsha
Garner, indicated that her request was not related to her IOD or
a FMLA condition. (Def. Ex. 1, pp. 128, 131).
14. Robinson testified that she told Garner that these days
were IOD and FMLA. We do not find this testimony credible.
15. Robinson requested leave from work on October 19, 20, and
21, 2002, and, according to leave slips, indicated that her
request was not related to her IOD but was for a FMLA condition.
(Def. Ex. 1, pp. 132, 133, 134).
16. Robinson requested leave from work on October 25, 2002,
and, according to the leave slip, indicated that her request was
not related to her IOD but was for a FMLA condition. (Def. Ex. 1,
17. Robinson requested leave from work on October 27 and 28,
2002, and, according to the leave slips, indicated that her request was not related to her IOD but was for a FMLA condition.
(Def. Ex. 1, p. 140).
18. Robinson requested leave from work on November 1, 2, and 3,
2002, and, according to the leave slips, indicated that the
request was not related to her IOD but was for a FMLA condition.
(Def. Ex. 1, pp. 141, 142, 143).
19. Robinson told the people taking her calls that her FMLA
conditions were "on file." (Robinson Testimony, Tr. 11-2)
20. The absences spanning October 19, 2002, to November 3,
2002, were treated as new requests by Nicka because Robinson did
not specify the "condition number" when she called attendance
21. Nicka sent Robinson a letter on October 23, 2002,
requesting certification for the October 19, 2002, to November 3,
2002, absences. (Def. Ex. 16).
22. Because Robinson did not return certification to Nicka, the
absences from October 19, 2002, to November 3, 2002, were not
approved as FMLA absences. Nicka denied FMLA approval for these
absences on November 7, 2002. (Def. Ex. 17).
23. Following these absences, an attendance control supervisor,
John Mills, had a pre-disciplinary meeting with Robinson on
November 7, 2002. He informed her that because of her recent
absences, along with seven other absences between May and July,
2002, the Postal Service would take corrective action. (Mills
testimony, Tr. 96). 24. Robinson informed Mills that she considered the absences
from October 11, 2005, to November 3, 2005, to be FMLA absences.
(Id. at 97).
25. Mills told Robinson that he would ask the FMLA coordinator
about the contested dates prior to taking any action. He spoke
with Barbara Nicka and was informed she would deny the dates.
26. On November 9, 2002, Robinson was given notice that she
would be terminated because of her excessive absenteeism,
effective December 13, 2002. The disputed dates were included in
the decision to terminate. (Def. Ex. 25).
27. Subsequent to making the decision to terminate Robinson,
Nicka requested that she re-certify her asthma/bronchitis and
depression for absences that occurred after November 9, 2002.
(Def. Ex. 18).
28. Mills testified that had the October and November dates
been FMLA absences, he would not have considered them in making
his decision to recommend Robinson for termination. He also
testified that even if the dates were FMLA protected, he would
have recommended that Robinson be terminated based on the
absences that occurred from May 2002, to July 2002 and a November
7, 2002, absence that is not disputed. However, we find this
testimony to be unpersuasive as no action was taken until after
the October and November dates. (Mills Testimony, Tr. 99). 29. In November, 2004, Robinson was reinstated at the Postal
Service. (Robinson Testimony, Tr. 42).
30. In 2001, Plaintiff earned $19,920. (Def. Exs. 38 & 42).
31. In 2002, Plaintiff earned $24,207.99. (Id.)
32. Defendant paid Plaintiff $425.21 for the final pay period
of 2002. (Def. Ex. 38).
33. Defendant paid Plaintiff $2835.02 for the final two pay
periods of 2004. (Id.)
34. The Postal Service employment policy required Plaintiff to
mitigate any damages in case of a determination of wrongful
termination. (Def. Ex. 29).
35. Plaintiff testified that she sought employment in the year
following her termination but was unsuccessful. She provided no
corroboration or documentation to support this assertion.
(Robinson Testimony, Tr. 40-2).
36. From November 2003, to November 2004, Robinson worked as a
barmaid. She worked twenty hours a week and earned $7.00 an hour.
She earned approximately $30.00 in tips during each of her two
six-hour shifts, and approximately $50.00 in tips on her
eight-hour shift. This income was not reported to the Internal
Revenue Service (IRS). (Robinson testimony, Tr. 45). II. Conclusions of Law
1. The Defendant interfered with Plaintiff's rights under the
2. The Defendant is liable to the Plaintiff for lost wages,
pre-judgment and post-judgment interest, and reasonable
attorney's fees and costs.
3. The Defendant is not liable to the Plaintiff for liquidated
Under the FMLA, an eligible employee is entitled to twelve work
weeks of leave during a twelve month period if the employee has a
serious health condition that prohibits her from performing the
requirements of her job. 29 U.S.C. § 2612(a)(1)(D). An employee
is eligible for leave if she has been employed by the current
employer for at least twelve months and has worked at least 1250
hours during the previous twelve months. 29 U.S.C. § 2611(2)(A).
If an employee is eligible for FMLA leave and an employer
violates "the [FMLA] or [the FMLA] regulations [it] constitute[s]
interfering with, restraining, or denying the exercise of rights
provided by the [FMLA]." 29 C.F.R. § 825.220.
The dispute in this case concerns whether the Plaintiff gave
the Postal Service adequate notice of her need to take leave
under the FMLA. Robinson claims that her October and November absences were FMLA protected and that the Postal Service should
not have considered those dates in making the decision to
terminate. The Defendant argues that because Robinson failed to
specify the previously approved FMLA condition for which she was
requesting leave, as instructed by Barbara Nicka, the notice she
gave was inadequate and her requests were treated as new
conditions which required certification. The Defendant maintains
that since she failed to return certifications in a timely
manner, her absences were not FMLA protected and that the Postal
Service was justified in considering these absences in making the
decision to terminate her employment. It is further argued by the
Defendant that at least one of Robinson's previously approved
certifications was not valid during the time period in question.
We have made the factual determination that Robinson did not
request FMLA leave for October 11 and 14, 2002. Therefore, our
discussion pertains to the absences beginning October 19, 2002,
and ending November 3, 2002.
Before addressing the question of adequate notice, we must
determine whether the Plaintiff's certification for depression
was valid. The Defendant argues that even if Robinson followed
the proper procedure in making her leave requests, her leave
certification for depression was only valid until October 15,
2002. The Defendant contends that since the certification was for
"absence plus treatment," it was only valid for the days
specified in the certification. However, the WH-380 Form provides that the category of "absence plus treatment" includes not only
the immediate absence and treatment but also "[includes] any
subsequent treatment or period of incapacity relating to the same
condition." (See Finding of Fact #9). The certification from
Robinson's health care provider noted that depression can last
for six to nine months and that Robinson might be advised to take
FMLA leave on the days that she could not function due to her
depression. As such, we conclude that the depression
certification was valid after October 15, 2002, because the
Postal Service was informed that Robinson may need more time off
for her condition and "absence plus treatment" includes
subsequent periods of incapacity.
We now turn to the adequacy of the notice given by Plaintiff.
According to the medical certifications that Robinson provided,
while she may need to take time off from work because of her
conditions, the exact time Plaintiff would need was not
foreseeable. Since absences were not foreseeable, Robinson was
required to give the Postal Service notice "as soon as
practicable under the facts and circumstances of the particular
case." 29 C.F.R. § 825.303(a). There is no requirement that an
employee "expressly assert rights under the FMLA or even mention
the FMLA." 29 C.F.R. § 825.303(b). Once an employee informs the
employer that leave is needed, "[t]he employer [is] expected to
obtain any additional required information through informal
means." Id. The employee is expected to furnish this
information as soon as practicable. Id. When an employee requests FMLA leave "the
employer must, within a reasonable time thereafter one or two
business days if feasible, provide the employee with written
notice detailing the specific expectations and obligations of the
employee and explaining any consequences of a failure to meet
these obligations." Conoshenti v. Public Service Elec. & Gas
Co., 364 F.3d 135, 142 (3d Cir. 2004) (quoting
29 C.F.R. § 825.301(b)(1), (c)) (internal quotations omitted) (emphasis
added). This must happen "no less often than the first time in
each six-month period that an employee gives notice of the need
for FMLA leave." 29 C.F.R. § 825.301(c).
The Defendant contends that Robinson's notice was inadequate
because she failed to indicate to the person taking her call the
specific condition for which she was requesting leave. As a
result, her requests were treated as new conditions and
certification was requested. The Defendant maintains that since
certifications were not returned in a timely manner, the Postal
Service was justified in considering the disputed dates when
terminating the Plaintiff. Robinson argues that her notice was
adequate because she informed the Postal Service that she was
requesting leave for an FMLA condition that was on file. We find
Nicka's testimony, that she told Robinson about specifying a
condition number, credible. However, the only notice to Robinson,
concerning the procedures to follow when requesting leave for a
previously certified FMLA condition, was in the letters
requesting certification for her various conditions. These letters informed
Robinson that once a certification had been approved, she was
required to tell the person taking her call that the leave
request was for a "FMLA [condition] ON FILE." (See Finding of
Fact #11). This is the procedure that Robinson followed.
Nicka's verbal direction to Robinson, requiring her to provide
condition numbers, does not satisfy 29 C.F.R. § 825.301, which
requires written notice of expectations and consequences to the
employee. Thus, the Defendant cannot treat the Plaintiff's
October and November absences as new conditions based on the her
failure to specify a condition number when she requested leave.
The Postal Service's written policy is such that the Defendant
was put on notice of Robinson's request for FMLA leave for an
approved condition when she informed the person taking her call
that the leave request was for an "on file" condition. Once the
Plaintiff informed the Defendant of her need for FMLA leave, the
Defendant should have inquired as to which condition she was
Having determined that the Plaintiff provided the Defendant
with all the notice that was required under the circumstances of
the instant case, we conclude that the Defendant violated
Robinson's rights under the FMLA when the October and November dates were included in the decision to terminate her
The Plaintiff is seeking lost wages, interest, liquidated
damages, and attorney's fees and costs. Since the Defendant has
violated 29 U.S.C. § 2615, Robinson is entitled to lost wages and
interest. 29 U.S.C. § 2617(a)(1)(A)(i)(I) & (1)(A)(ii) ("Any
employer who violates section 2615 of this title shall be liable
to any eligible employee affected for damages equal to the amount
of any wages . . . denied or lost to such employee by reason of
the violation; [and] the interest on the amount described in
clause (i) calculated at the prevailing rate."). The Plaintiff is
entitled to liquidated damages unless the employer "proves to the
satisfaction of the court that the act or omission which violated
section 2615 . . . was in good faith and that the employer had
reasonable grounds for believing that the act or omission was not
a violation of section 2615." 29 U.S.C. § 2617(1)(A)(iii). The
Defendant is also liable to Robinson for "reasonable attorney's
fees . . . and other costs of the action." 29 U.S.C. § 2617(3). Robinson is seeking back pay (lost wages) for the last Postal
Service pay period of 2002, all of 2003 and pay periods one
through twenty-three for 2004. However, despite Plaintiff's
assertion to the contrary, Defendant's exhibit #42 indicates that
she was paid for the last pay period of 2002. Thus, we will focus
on 2003 and 2004 in our calculation. Robinson argues that her
lost wages should be calculated assuming that she worked all
scheduled days during that time period. The Defendant contends
that we should take into consideration Robinson's extensive
absenteeism during 2001 and 2002 which resulted in the Plaintiff
earning far less during those years than she could have if she
had worked all of her scheduled days.
In 2001, Robinson earned $19,920. She earned $24,207.99 in
2002. In total she earned $44,127.99. We conclude that given
Robinson's history of absenteeism, we cannot assume, as suggested
by the Plaintiff, that she would have worked all of her scheduled
days during 2003 and 2004. We find it far more probable that had
Robinson been in the employ of the Postal Service for 2003 and
all of 2004, she would have earned the same amount of income
during those years as she had in the preceding two years. As a
result, we conclude that Robinson is entitled to $41,292.97 in
lost wages, which is the total amount that she earned during 2001
and 2002, less the $2835.02 Robinson earned at the Postal Service
during the last two pay periods in 2004. Under the Postal Services employment policies, Robinson had a
duty to mitigate her damages should it be found that she is
entitled to back pay. Robinson was not employed during the year
following her termination. In the second year, she worked as a
barmaid. Although her wages were not reported to the IRS, the
Plaintiff's testimony reveals that she earned approximately
$13,000 during that time period. As noted, other than her
testimony, Plaintiff has offered no evidence to support her claim
that she sought but was unable to obtain employment during the
year following her termination. As a result, we conclude that
Plaintiff could have earned at least $13,000 during the first
year, especially since she had previously worked for the
establishment that employed her. Thus, Plaintiff's back pay shall
be reduced by $26,000, for a back pay total of $15,292.97.
The Defendant also contends that Robinson's damages award
should be reduced by the amount of unemployment compensation she
collected during the year following her termination. However, it
appears that neither party has provided the court with evidence
of the amount of unemployment compensation Plaintiff received.
Although Plaintiff may be liable to repay this amount, we cannot
deduct the unemployment compensation received by
Plaintiff.*fn5 As previously noted, Plaintiff is also entitled to interest on
her award. Post-judgment interest is, of course, governed by
statute. See 28 U.S.C. § 1961. With regard to pre-judgment
interest, the parties have not indicated what they consider the
"prevailing rate" to be and the FMLA is silent on this issue.
See 29 U.S.C. § 2617(a)(1)(A)(ii) (requiring interest at the
"prevailing rate."). Two recent FMLA cases have interpreted
prevailing rate to mean that courts can look to sources such as
the "prime rate, the statutory post-judgment rate, or the state
statutory rate," to determine pre-judgment interest. Hite v.
Vermeer Mfg. Co., 361 F.Supp.2d 935, 949 (S.D.Iowa 2005); see
also Hall v. Meadwestvaco Corp., 2005 WL 1205554 at *5(D.Mass.
2005). We find these cases to be persuasive.
The current prime rate is 7.00% and the current post-judgment
rate, in accordance with 28 U.S.C. § 1961, is 4.36%. See
November 21, 2005). The state statutory rate is 6.00%. See
41 P.S. § 202. We find that state statutory rate of 6.00% is
reasonable in this instance as it is between the post-judgment
rate and the prime rate. Thus, prejudgment interest shall be
awarded from the effective date of Robinson's termination to the
date of judgment. We have determined this amount of interest to be $2752.74. Further, post-judgement interest shall be award at a
rate of 4.36%, computed daily and compounded annually until the
date of payment, in accordance with § 1961.
We further conclude that the Plaintiff is not entitled to
liquidated damages in this case. Although Barbara Nicka's
conversation with Robinson regarding condition numbers and her
subsequent attempts to obtain certification from the Plaintiff do
not serve to negate the Defendant's liability in this case, we
find that the Defendant has demonstrated that Ms. Nicka's
attempts to enforce the FMLA requirements were made in good
faith. Thus, the Defendant's reliance on the disputed days in
terminating Plaintiff's employment was also in good faith.
Plaintiff is also entitled to an award of reasonable attorney's
fees and costs. Hopefully, the parties will agree on a figure for
an award. If not, Plaintiff's attorney may submit an application
for attorney's fees and costs no later than 60 days hereof.
We will enter an appropriate order. VERDICT
AND NOW, this 22nd day of November, 2005, a verdict is entered
in favor of the Plaintiff, Laura Robinson, and against the
Defendant, John E. Potter, Postmaster General of the United
States Postal Service, in the sum of $18,045.71, which includes
prejudgment interest at a rate of 6.00% from the effective date
of the Plaintiff's termination, December 13, 2002, to the present
date. Post-judgement interest is awarded at a rate of 4.36%
computed daily and compounded annually until the date of payment,
in accordance with 28 U.S.C. § 1961.
The Clerk of Court is instructed to enter judgment in favor of
the Plaintiff and against the Defendant in accordance with the
The Clerk of Court shall close this file.
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