November 15, 2007

In a case of first impression, the First Circuit Court of Appeals ruled that work holidays falling on days when an employee is out on intermittent Family and Medical Leave Act leave of one week or more can count toward the employee's statutory twelve-week FMLA leave entitlement. Mellen v. Trustees of Boston University, No. 07-1151 (1st Cir. Sept. 21, 2007).

Plaintiff, Linda Mellen, had worked at Boston University since 1977. In July 2003, Ms. Mellen applied for leave to spend time caring for her mother. Her request covered the period from August 4th to October 3rd and, if necessary, from October 28th to November 18th. (Ms. Mellen previously requested vacation time between October 4th and October 27th.) On July 31, 2003, the University's Director of Personnel wrote Ms. Mellen granting her leave request and, among other terms and conditions, stated that if Ms. Mellen did not report to work on November 18th, the University would view it as a voluntary resignation.

While out on leave, Ms. Mellen sent an e-mail on October 1st notifying Frances Drolette, her direct supervisor and a defendant in this case, that she would be using her second block of leave time. Ms. Drolette wrote Ms. Mellen a letter on October 24th confirming her understanding that Ms. Mellen would return to work on November 19th and expressing concerns about Ms. Mellen's "lack of professionalism, responsibility and clarity in [her] communications regarding [her] family and medical leave and vacation plans," as well as her job performance.

Ms. Mellen informed Ms. Drolette in writing on October 23rd that she would be extending her leave by one day because of a November 17th University holiday and would return to work on November 20th instead of November 19th. Ms. Drolette responded in writing that she was advised that holidays did not extend an employee's FMLA leave time.

Ms. Mellen did not return to work on November 19th. Nor did she return afterwards. On November 20th, Ms. Drolette wrote that the University considered Ms. Mellen's failure to return to work as a voluntary resignation.

Ms. Mellen subsequently brought suit against both the University and Ms. Drolette in federal court, claiming that the University miscalculated the leave she was entitled to under both the FMLA and Massachusetts Small Necessities Leave Act. The district court granted summary judgment in defendants' favor.

On appeal, Ms. Mellen argued that because she was on intermittent leave, "only the days she actually missed from work, and not holidays, should be counted" toward her FMLA entitlement. (As the court explained, "Intermittent leave is FMLA leave taken in separate blocks of time but for the same reason.")

The crux of Ms. Mellen's position was that there is a distinction between 29 C.F.R. § 825.200(f), the regulation relied upon by defendants, and 29 C.F.R. § 825.205(a). Section 825.200(f) provides: "For purposes of determining the amount of leave used… the fact that a holiday may occur within the week taken as FMLA leave has no effect." Section 825.205(a) provides: "If an employee takes leave on an intermittent or reduced leave schedule, only the amount of leave actually taken may be counted toward the 12 weeks of leave to which an employee is entitled."

Judge Lynch, writing for the First Circuit, disagreed with Ms. Mellen. These two provisions "fit together naturally," said the court. "The 'amount of leave actually taken' to which section 825.205(a) refers is the 'amount of leave used' defined in section 825.200(f)."

Responding to plaintiff's argument that this interpretation leaves section 825.205(a) without meaning, Judge Lynch explained, "[T]he provision's purpose is to ensure that an employer does not claim that an employee who takes off one day during a five-day week has taken off the entire week, or that an employee who works half days under a reduced work schedule has taken off more than a half day." The Judge continued, "It's purpose is not to give an advantage to an employee who takes off five weeks but designates it intermittent leave over an employee who takes off five weeks as continuous FMLA leave."

Nor did the First Circuit find Ms. Mellen's SNLA claim persuasive. Under the SNLA, employees are entitled to 24 hours of leave in addition to FMLA leave during any twelve-month period. According to the court, Ms. Mellen failed to give the University seven days' notice of her need for additional leave time as required by the SNLA when the extension is foreseeable. Judge Lynch made clear that "[d]isagreement about a return date does not constitute a request for—or the demonstration of a need for—additional leave." Thus, because Ms. Mellen did nothing to indicate that the FMLA period would be insufficient, she could not prevail on an SNLA claim, ruled the court.

The First Circuit upheld the district court's decision that the University "properly calculated and provided Mellen with the requisite amount of leave" and affirmed the summary judgment ruling in defendants' favor.

Jackson Lewis attorneys are available to answer questions regarding complying with the FMLA.

For More Information Contact:

Francis P. Alvarez
Partner
White Plains Office
One North Broadway
15th Floor
White Plains, NY 10601
Email: [email protected]
Phone: (914) 514-6149
Fax: (914) 328-1882

Rebecca McSweeney
Of Counsel
Providence Office
127 Dorrance Street
4th Floor
Providence, RI 02903
Email: [email protected]
Phone: (401) 490-3444
Fax: (401) 454-7702

© 2007 Jackson Lewis LLP.  Reprinted with permission.  Originally published at www.jacksonlewis.com.  Jackson Lewis LLP is a national workplace law firm with offices nationwide.