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refusing to give preclusive effect to an arbitrator's decision that the employer violated the FMLA because this decision was beyond the arbitrator's authority under the collective bargaining agreement
Summary of this case from Webster v. Milwaukee CountyOpinion
Civil No. 02-715 (JRT/JSM)
December 9, 2003
Mark A Greenman, GREENMAN OSTROM, Minneapolis, MN, for plaintiff
Tracy J. Van Steenburgh, HALLELAND LEWIS NILAN SIPKINS JOHNSON, Minneapolis, MN, for defendants
MEMORANDUM OPINION AND ORDER
Plaintiff Keith Dillaway works for defendant Northwest Airlines ("Northwest") as an aircraft mechanic, and at the time of the events giving rise to this dispute, he was a General Inspector of Line Maintenance for Northwest. Defendant John Ferrante was plaintiffs manager and Robert Gleason was the director of the division in which plaintiff worked. Dillaway was fired for allegedly abusing sick leave and family leave, but was reinstated with back-pay after he grieved the dismissal. Plaintiff then brought this action, alleging that Northwest violated the Family and Medical Leave Act, 29 U.S.C. § 2611 et seq. ("FMLA") by firing him for requesting FMLA leave. He seeks liquidated damages, attorney's fees, interest, and additional back pay that he claims was inadvertently left out of the grievance award. Plaintiff also brought, but has abandoned, a state law claim for negligent infliction of emotional distress. Both parties have moved for summary judgment. The Court grants defendants' motion for summary judgment on the state-law claim that plaintiff is not pursuing. For the reasons discussed below, the parties' motions are denied in all other respects.
BACKGROUND
Plaintiff is a street rod enthusiast and, for several years, he has attended a car show in early August. On July 24, 2001, plaintiff requested vacation time from July 30 through August 3 so he could attend the car show in Louisville, Kentucky. Plaintiff had already used all his vacation time and his supervisor, defendant Ferrante, denied the request. Ferrante told plaintiff that plaintiff could work extra hours and "bank" the necessary hours, and then he would be able to attend the car show. Dillaway also had the option of trading shifts with coworkers. He claims that he chose to "bank" extra hours, and worked several extra hours on the July 24.
The next day, July 25, plaintiff claims that he suffered symptoms of depression. Plaintiff obtained contact information for several health care providers through Northwest's Employee Assistance Program ("EAP"), and was able to make an appointment with Brent Thomson, Ph.D., L.P. This was not plaintiffs first experience with the EAP; he had suffered from depression before, and in 2000 had utilized the EAP to obtain treatment for depression and job-related stress.
Dr. Thomson was able to meet with and examine plaintiff on July 25, the same day plaintiff contacted him. Thomson diagnosed plaintiff as suffering from clinical depression and recommended a leave of absence for one month. Plaintiff immediately called a co-worker who told plaintiff that he would get the necessary FMLA forms for him. Plaintiff had not received the forms by July 30, and he called Ferrante's secretary to request forms. The secretary met plaintiff in a Northwest parking lot to give him the forms. Plaintiff was attempting to avoid Ferrante, because he claims Ferrante was a significant stressor.
On July 30, Thomson completed the FMLA certification form, indicating plaintiff suffered from major depression, onset July 25, and that the probable duration of incapacity from work was one month. Plaintiff delivered the forms to Northwest, and there is no dispute that the forms were received. Plaintiff was treated by Thomson about twice a week during that month. Thomson encouraged plaintiff to do activities that were enjoyable to him, such as working on cars. Thomson also encouraged plaintiff to attend the car show, and plaintiff, along with his older son and a friend, went to the car show on August 3 and 4.
In response to plaintiffs absences, and the coincidence of his denied request for vacation time and his FMLA leave request, defendant Gleason and Northwest's labor relations department decided to hire a private investigator to observe plaintiff during his work hours. The investigator saw plaintiff working on his car, and followed plaintiff to the car show in Louisville. The investigator claims that plaintiff told him that he hated his job at Northwest, that he had found somebody to say he suffered from depression, and essentially that he "faked" his FMLA leave. Plaintiff denies that he made any such statements or admissions. Plaintiff does not deny that he worked on his cars, or that he went to the car show — both of which were recommended by his doctor.
On August 2, defendant Gleason informed plaintiff that his FMLA leave request was pending and that a second doctor's appointment would be set up for plaintiff. Plaintiff received this notice on August 7. That same day, Northwest sent plaintiff a letter stating that it wanted to conduct a formal question and answer session ("QA") with plaintiff. Plaintiffs union representative reminded Northwest that plaintiff was on FMLA leave due to workplace stress and suggested an alternative to an in-person QA. Nonetheless, Northwest required plaintiff to participate in the live QA on August 8. During the QA, Northwest questioned plaintiff about his sick leave, and his activities while on leave. The next day, Northwest again summoned plaintiff and ordered him to appear at headquarters. Plaintiff contacted his union, and the union indicated that plaintiff was being summoned in order to verify the transcript of the QA. The union advised plaintiff to come to the union office instead, where he verified his QA. Plaintiff was fired the day after the QA. As the basis for the termination, Northwest claimed that plaintiff failed to cooperate in a company investigation, was insubordinate and filed a fraudulent claim for sick leave. The next day, August 10, plaintiff was informed that Northwest had set up an appointment for plaintiff to be seen by a second doctor. The record does not indicate whether plaintiff attended this appointment, or whether defendants attempted to follow up on it.
Northwest's employment contract with plaintiffs union provides that disciplinary decisions must be made within 15 days of the date the employee's manager knew or had reason to know of the offense. Defendants requested that plaintiff waive the 15-day requirement in this case, but plaintiff, through his union, refused, because the 15 days would have been unpaid. Therefore, Northwest determined that action had to be taken against plaintiff, if at all, by August 9. Defendants suggest it was unable to schedule a second doctor's appointment for plaintiff within the 15-day window because plaintiff refused to sign a release of medical records. Plaintiff disputes this contention, and suggests that he signed a release well within the 15-day period.
Plaintiff then grieved his termination, asserting that he was discharged without just cause. A hearing was held December 18, 2001, before the System Board of Adjustment ("SBA"). Plaintiff was represented by a union representative, and Northwest was represented by counsel. Both sides called witnesses, and had the opportunity to cross-examine those witnesses. Although defendants were allowed to present the testimony of the private investigator, Piccirillo, the SBA did not consider his testimony "as it relate[d] to [Piccirillo's] conversation with the grievant on July 31, 2001." (Plaintiffs Exhibit U at 43.)
At the arbitration, the parties stipulated that the issue at hand was whether just cause existed for the discharge of Dillaway based on the charges as set forth in the termination letter.
On March 22, 2002, the SB A sustained plaintiffs grievance and ordered him reinstated with back-pay. The arbitrator issued a 52-page opinion, in which he determined that "the medical documentation and testimony . . . establishes that the grievant had a legitimate mental illness during the period in question, and such illness qualified as a serious health condition under the FMLA." (Plaintiffs Exhibit U at 38.) The arbitrator further noted that "there is absolutely no medical evidence . . . to contradict the bona fides of the Thomson certification and grievant's illness." Id. at 40. The arbitrator ordered that within 30 days, plaintiff was to be reinstated with full back pay and benefits. Plaintiff complains that defendants did not pay his back pay until well after the 30-day deadline. Plaintiff also complains that defendants had not paid his full back pay and benefits when this lawsuit commenced.
ANALYSIS
I. Standard of Review
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56. Only disputes over facts that might affect the outcome of the suit under the governing substantive law will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is not appropriate if the dispute about a material fact is genuine, that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. Summary judgment is to be granted only where the evidence is such that no reasonable jury could return a verdict for the nonmoving party. Id.
The moving party bears the burden of bringing forward sufficient evidence to establish that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The nonmoving party is entitled to the benefit of all reasonable inferences to be drawn from the underlying facts in the record. Vette Co. v. Aetna Casualty Surety Co., 612 F.2d 1076, 1077 (8th Cir. 1980). However, the nonmoving party may not merely rest upon allegations or denials in its pleadings, but it must set forth specific facts by affidavits or otherwise showing that there is a genuine issue for trial. Forrest v. Kraft Foods, Inc., 285 F.3d 688, 691 (8th Cir. 2002).
II. The FMLA
The FMLA provides that an eligible employee may take a total of 12 weeks of unpaid leave during a 12-month period if a serious health condition makes the employee unable to perform the functions of the employee's position. 29 U.S.C. § 2612(a)(1)(D). The FMLA creates two types of claims, the first are referred to as "interference" or (a)(1) claims, in which an employee asserts that an employer denied or otherwise interfered with his or her substantive rights under the FMLA. Interference claims are premised on 29 U.S.C. § 2615(a)(1), which provides that it is "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided." Plaintiff in this case alleges that defendants violated § 2615(a)(1) by interfering with his ability to take FMLA leave when defendants fired him instead of granting his request for FMLA leave.
There is no dispute that plaintiff is an eligible employee.
The FMLA also provides leave to care for family members, but that component of the statute is not at issue here.
The FMLA also provides protection in the event an employee is discriminated against for exercising those rights. Specifically, it provides that "[i]t shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter." 29 U.S.C. § 2615(a)(2). Claims for retaliation are characterized as (a)(2) claims. In his complaint, plaintiff pled a retaliation claim in the alternative.
Defendants suggest that plaintiffs claim is not appropriately considered an "interference" or (a)(1) claim, and instead must be characterized as a "retaliation" or (a)(2) claim. This distinction is important because the Eighth Circuit imposes strict liability for violations of (a)(1) and therefore the employer's motive is not important in (a)(1) claims. In contrast, motive is relevant to (a)(2) claims, which are analyzed under the familiar McDonnell-Douglas burden shifting analysis. See Smith v. Alien Health Sys., Inc., 302 F.3d 827, 832 (8th Cir. 2002); see also Rankin v. Seagate Tech., Inc., 246 F.3d 1145, 1148 (8th Cir. 2001) (declining to apply burden shifting to (a)(1) claim where plaintiff had been fired after taking FMLA leave) (citing Hodgens v. General Dynamics Corp., 144 F.3d 151, 159-60 (1st Cir. 1998) (noting that "the employer's subjective intent is not relevant. The issue is simply whether the employer provided its employee the entitlements set forth in the FMLA.")).
To state a claim for an (a)(1) violation, an employee "need only demonstrate by a preponderance of the evidence that he was entitled to the benefit denied." Strickland v. Water Works and Sewer Ed., 239 F.3d 1199, 1206-07 (11th Cir. 2001); see also Rankin, 246 F.3d at 1148; Jennings v. Mid-American Energy Co., 2003 WL 22176002 (S.D. Iowa Sept. 17, 2003) ("Where an employee states a claim of interference with a substantive right, an objective test applies, requiring the employee to show, by a preponderance of the evidence, that she was entitled to the benefit denied.").
Plaintiff claims that defendants violated the FMLA by wrongfully discharging him for taking FMLA leave. Plaintiff moves for summary judgment only on his (a)(1) claim. Plaintiff argues first that the arbitration award collaterally estopps defendants from arguing that it did not violate plaintiffs FMLA rights. Plaintiff suggests, in the alternative, that he is entitled to summary judgment because, as a matter of law, his depression constituted a "serious health condition" that rendered him unable to perform the functions of his job. Finally, plaintiff claims that because defendants did not obtain a second medical opinion, defendants have waived the ability to argue that plaintiff did not have a "serious health condition."
It appears plaintiff has abandoned his (a)(2) retaliation claim. See Plaintiff's Memorandum in Opposition to Defendant's Motion for Summary Judgment at 1 ("Through discovery, it became clear that this case is not a retaliation case, but an interference/denial of rights case.").
Defendants claim that summary judgment is appropriate because defendants terminated plaintiffs employment for valid reasons, and therefore defendants did not violate the FMLA. Defendants further argue that even if plaintiff could establish a violation of the FMLA, he would not be entitled to damages as a matter of law because he has been fully compensated by the SBA arbitration decision.
The Court first addresses whether plaintiffs claim is fairly brought pursuant to (a)(1), or if it can be characterized only as an (a)(2) claim. The Court will then discuss whether defendants are collaterally estopped from denying a violation of the FMLA. Along the same lines, the Court will address whether the defendants have waived its ability to challenge plaintiffs "serious health condition." Finally, the Court discusses the parties' arguments regarding damages.
III. Interference or Retaliation
Plaintiff initially based his (a)(1) "interference" claim on the allegations that defendants did not provide him FMLA forms in a timely manner and that he was fired while his FMLA leave request was pending. Plaintiff is not pursuing his claim that Northwest failed to provide him forms in a timely manner. Instead, plaintiff argues that his (a)(1) claim is appropriately premised on the fact that he was fired instead of being granted FMLA leave. This adverse employment action, plaintiff argues, amounts to "interference." The facts in this case are not unlike those before the Eighth Circuit in Rankin v. Seagate Technologies, 246 F.3d 1145 (8th Cir. 2001). In that case, the plaintiff was fired while she was on FMLA leave. The Eighth Circuit analyzed the claim as an "interference" rather than a "retaliation" claim. See id. at 1148 n. 2. See also Strickland v. Water Works Sewer Ed. of Birmingham, 239 F.3d 1199, 1207-08 (11th Cir. 2001) (reversing summary judgment for employer because the district court erred in not considering employee's interference claim, even though the appellate court agreed that plaintiff could not succeed on the retaliation claim). Although in some circumstances, a given set of facts will fall clearly into either (a)(1) or (a)(2), it appears that the lines between the two categories are not hard and fast. Viewing the record in the light most favorable to plaintiff, plaintiffs recitation of the facts gives rise to a colorable claim under (a)(1).
IV. Collateral Estoppel
Plaintiff suggests that the SB A determination has a collateral estoppel effect in this case. Specifically, plaintiff argues that the arbitrator's determinations that plaintiff suffered a serious medical condition that met the requirements for FMLA leave, and that defendants violated the FMLA and the parties' collective bargaining agreement ("CBA") precludes any different determination in this Court. Defendants argue that arbitration decisions subject to CBAs do not have collateral estoppel effect in subsequent lawsuits in federal court.
The majority of cases dealing with the preclusive effect of arbitrations pursuant to CBAs come at the question from a different angle — typically, the employee either failed to submit his or her complaint to arbitration, or suffered an adverse arbitration decision. In such situations, it is relatively clear that the employee can pursue his or her claim unencumbered by either the failure to arbitrate, or the employee-adverse arbitration decision. In other words, in the typical case, there is no collateral estoppel effect of employee-adverse arbitration decisions. See Varner v. National Super Markets, Inc., 94 F.3d 1209, 1213 (8th Cir. 1996) (noting that the Supreme Court has held that the pursuit of a claim through grievance and binding arbitration under a CBA does not preclude a civil suit under Title VII, and reasoning that the same rationale would apply to a plaintiff who has chosen not to participate in the grievance procedure) (citing Alexander v. Gardner-Denver Co., 415 U.S. 36, 47 (1974) (holding no preclusive effect when employee brings Title VII claim after unsuccessfully arbitrating discharge)). See also Cooper v. Asplundh Tree Expert Co., 836 F.2d 1544, 1553 (10th Cir. 1988) (collecting cases and denying preclusive effect to arbitral fact-finding in ADEA claims); McDonald v. City of West Branch, 466 U.S. 284, 292 (1984) (no preclusive effect when employee brings § 1983 claim); Barrentine v. Arkansas-Best Freight System, 450 U.S. 728, 745 (1981) (no preclusive effect when employee brings FLSA claim).
In contrast, in this case, plaintiff not only pursued his claim via the CBA, but he pursued it successfully. Although defendants acknowledge this difference, defendants suggest that the rationale supporting the Gardner-Denver line of cases applies with equal force here. Plaintiff, in contrast, suggests that because the policy rationale supporting Gardner-Denver are not of concern here, collateral estoppel should apply. The rationale for not giving preclusive effect to employee-adverse arbitration decisions was laid out in Gardner-Denver, and has been thoroughly discussed by courts in this district. See, e.g., Neppl v. Signature Flight Support Corp., 234 F. Supp.2d 1016, 1021-1022 (D. Minn. 2002) (discussing policy basis for Gardner-Denver line of cases, and holding that plaintiff-employee subject to CBA had not waived the right to bring his FMLA claim against employer in federal court).
In sum, courts refusing to give preclusive effect to arbitration note that "arbitral fact-finding is not equivalent to judicial fact-finding, the arbitrator's expertise is the law of the shop, not the law of the land, and the arbitrator's authority derives solely from contract so that he has no general authority to invoke public laws that conflict with the collective bargaining agreement." Johnson v. University of Wisconsin-Milwaukee, 783 F.2d 59, 62 (7th Cir. 1986) (citation and internal quotation marks omitted). Courts also reason that affording preclusive effect to arbitration decisions has the potential to undermine the Congressional intent of employee-protection statutes. Alexander v. Gardner-Denver Co., 415 U.S. 36, 51 (1974). Similarly, courts emphasize that statutes that protect individual rights should not be allowed to be waived through the collective bargaining process. Id. at 53.
Employees may waive some rights through the collective bargaining process, but only those rights considered collective, such as the right to strike. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 51 (1974).
It does not appear that any court in this Circuit has spoken on the preclusive effect on an FMLA claim of an employee-favorable arbitration decision. The Seventh Circuit, in an age discrimination case, determined that arbitration will not be given preclusive effect regardless of who is attempting to use the prior arbitration. Johnson, 783 F.2d at 62. Similarly, the First Circuit, this time addressing an FMLA claim, held that it was not error for the trial court to refuse to give estoppel effect to an employee-favorable arbitration decision. Plumley v. Southern Container, Inc., 303 F.3d 364, 373-74 (1st Cir. 2002). In that case, unlike the record before this Court, the Court noted that `the record contain[ed] no evidence that the FMLA was mentioned, let alone adjudicated." Id.
The Court agrees with those courts that do not afford preclusive effect to employee-favorable arbitration decisions. "[T]he same policy reasons for not giving the arbitration preclusive effect apply when the plaintiff attempts to use a prior arbitration against the defendant." Johnson, 783 F.2d at 62. The Court is especially concerned that a contrary holding would presume arbitrators have authority beyond that instilled by the parties' agreement — that is an authority to invoke public laws that potentially conflict with the collective bargaining agreement. This is an authority that the Supreme Court consistently holds arbitrators do not have. Gardner-Douglas, 466 U.S. at 53. Therefore the Court determines it is not bound by the SBA decision.
Because the Court holds that collateral estoppel is not applicable in this case, the Court will not address defendants' argument that plaintiff has not established the elements of collateral estoppel.
V. Waiver
The Eighth Circuit instructs that whether a plaintiff has a "`serious health condition' should be defined by an objective test that [is] applied consistently based on the facts of each case." Rankin, 246 F.3d at 1148. The objective test requires a plaintiff to prove "(1) that he had a `period of incapacity requiring absence from work,' (2) that this period of incapacity exceeded three days, and (3) that [h]e received `continuing treatment by . . . a health care provider' within the period." Id. (citing Thorson v. Gemini, Inc., 205 F.3d 370, 377 (8th Cir. 2000)).
Plaintiff suggests that defendants have waived the right to challenge whether plaintiff has a "serious medical condition" because defendants failed to follow the certification procedure set out in the FMLA for such challenges. Defendants also make a waiver argument — contending that plaintiff has waive d his right to claim that defendants violated the FMLA by his refusal to allow defendants to obtain a second medical opinion.
The Court first addresses plaintiffs argument. The disputed certification procedure is found in 29 U.S.C. § 2613(d), which provides that an employer may require an employee seeking medical leave to provide certification that he has a serious health condition. If an employer has reason to doubt the validity of the medical certification presented by the employee in support of his request for medical leave, the employer "may" require the employee to obtain a second opinion. 29 U.S.C. § 2613(c). If the second medical opinion differs from the first medical opinion, the employer "may" require the employee to obtain a third medical opinion. 29 U.S.C. § 2613(d)(1). The third medical opinion "shall" be binding. 29 U.S.C. § 2613(d)(2).
The Eighth Circuit first addressed this issue in Thorson v. Gemini, Inc., 205 F.3d 370 (8th Cir. 2000), in which the Court held that failure to follow the certification process prevented the employer from later challenging whether the employee had a serious medical condition. The Court noted, "because the company did not resort to the protections for employers provided by the FMLA to address just this sort of situation, there is no genuine issue of fact on this part of the `serious health condition' question." Id. at 381. In a decision issued shortly thereafter, the Eighth Circuit took a slightly different tact, and noted its "disagreement with [plaintiffs] contention that [defendant] has waived its right to contest the fact that she has a "`serious health condition.' . . . We do not read § 2613(c)(1) as requiring an employer to obtain a second opinion or else waive any future opportunity to contest the validity of the certification." Stekloff v. St. John's Mercy Health Sys., 218 F.3d 858, 859 (8th Cir. 2000). The Court went on to cite Thorson, stating that "We note, moreover, that several of our recent cases involving the FMLA have considered employer arguments that an employee did not have a serious medical condition in spite of the fact that no second opinion was sought." Id. at 860 (citing Thorson, 205 F.3d 370).
A Fourth Circuit case decided shortly thereafter discussed both Thorson and Stekloff, and agreed with the Eighth Circuit's approach in Stekloff. Rhoads v. F.D.I.C., 257 F.3d 373, 385 (4th Cir.), cert. denied, 535 U.S. 933 (2002). The Rhoads Court noted, the "critical distinction between this case and . . . Thorson is that, in the latter, there was no evidence independent of the defense's belated evaluations of the plaintiff to indicate that she had been misleading her employer about her health condition." Id. at 385.
That same feature distinguishes this case from Thorson. In particular, Northwest points to the timing of the vacation request and the FMLA leave request, as well as the investigator's report as timely, independent evidence that plaintiff had been misleading defendants about his health condition. This case is also distinguishable from Thorson because Northwest, unlike the employer in Thorson, attempted to obtain a somewhat contemporaneous second opinion. Given the Eighth Circuit's reasoning in Stekloff, and the unique facts of this case, the Court finds that defendants have not waived the ability to challenge whether plaintiff had a "serious health condition." Similarly, defendants have presented adequate evidence to preclude summary judgment for plaintiff on the "serious health condition" question.
The Court also rejects defendants' argument that by refusing to grant an extension to the 15-day rule, plaintiff somehow waived his ability to pursue an FMLA claim. Defendants have not established that plaintiff's actions alone prevented defendants from obtaining a second opinion. Defendants were, or should have been, well aware of the 15-day rule and nonetheless waited some period before taking action to schedule an appointment to obtain a second opinion. Plaintiff likely would have been prejudiced by agreeing to the unpaid extension, and the Court will not assume waiver where an employee insists that the terms of a collective bargaining agreement be enforced.
VI. Damages
Defendants argue that because plaintiff was reinstated with back pay, even if the plaintiff could prevail on the FMLA liability question, plaintiff has suffered no damages. In contrast, plaintiff suggests that he is entitled to back pay from July 25th to August 25th, because the SBA erred in failing to include that time period. On a more substantial level, plaintiff argues he is also entitled to liquidated damages, and interest on the entire amount of back pay and benefits. Plaintiff also argues he is entitled to damages for emotional distress.
A. Emotional Distress
Under the FMLA, an employer is liable for "any wages, salary, employment benefits, or other compensation denied or lost to such employee by reason of the violation." 29 U.S.C. § 2617(a)(1)(A)(i)(I). Most courts that have addressed this portion of the statute agree that "other compensation" does not include compensation for mental anguish. See, e.g., Walker v. UPS, 240 F.3d 1268, 1277 (10th Cir. 2001) (noting that courts consistently refuse to award FMLA recovery for emotional distress damages); Settle v. S.W. Rodgers, Co., 998 F. Supp. 657, 665-66 (E.D. Va. 1998) (plaintiff may not seek or receive damages for emotional distress); Koch v. Saint Francis Med. Ctr., 2002 WL 32063336 (E.D. Mo. Oct. 23, 2002) (noting that courts have routinely held that emotional and other non-monetary damages are not recoverable in actions under the FMLA); Damon v. American Rail Car Indus., Inc., 2002 WL 340792, at *1 (E.D. Ark. Feb. 13, 2002) (holding damages for emotional distress not recoverable under FMLA).
Plaintiff suggests that a recent Eighth Circuit case, Duty v. Norton-Alcoa Proppants, 293 F.3d 481, 496 (8th Cir. 2002), reaches the opposite conclusion, and indeed allows awards for mental anguish in FMLA cases. Plaintiff's reading of the Duty v. Norton-Alcoa case is not unreasonable. However, the Court is not persuaded that the Duty case stands for such a broad and novel proposition. Cf. Koch, 2002 WL 32063336 at *1 (rejecting similar argument and deciding that the Duty case "does not stand for the proposition that damages for emotional distress are recoverable under the FMLA").
The plaintiff in Duty sued his former employer under both the FMLA and the Arkansas Civil Rights Act ("ACRA"). Duty, 293 F.3d at 485. A jury determined that both the FMLA and ACRA had been violated, and awarded $305,000 for tack pay, liquidated damages, and punitive damages. Id. The Eighth Circuit affirmed the denial of the employer's motions for judgment as a matter of law, a new trial, amendment of the judgment, and remittur. In arguing for reversal of the jury verdict, the employer did not argue that the FMLA does not allow damages for emotional distress, but that the plaintiff failed to present any evidence of out-of-pocket expenses or physical symptoms related to severe emotional distress. Id. at 496. The ACRA allows damages for emotional distress. Koch, 2002 WL 32063336 at *1 (citing Dermott Special Sch. Dist. v. Johnson, 32 S.W.3d 477 (Ark. 2000)). The Eighth Circuit did not specify that the award for emotional distress was premised on the FMLA, as opposed to the ACRA, and it is much more reasonable to presume that the Court relied on ACRA. In addition, as the Koch court noted, "there is no hint in Duty that the defendants raised the argument that damages for emotional distress are not recoverable under the FMLA. Thus any statement by the Court of Appeals on that issue would be dictum." Id. at *2. This Court agrees with the Koch court, whether damages for emotional distress are recoverable in an FMLA claim is an open question in this Circuit, and this Court also joins the majority of federal courts to hold that such damages are not recoverable under the FMLA.
Even if damages for emotional distress were recoverable, plaintiff has not brought forward sufficient evidence to support his claim for damages for mental anguish. Plaintiff's only such evidence is an unsworn letter from his wife regarding the emotional harm he suffered. It is inappropriate for the Court to rely on inadmissible hearsay when determining a summary judgment motion, and therefore, plaintiff's claim for emotional damage would fail were the Court empowered to reach it.
The Court also notes that plaintiff's abandoned state law claim for negligent infliction of emotional distress would likely fare no better. See, e.g., Neppl v. Signature Flight Support Corp., 234 F. Supp.2d 1016, 1025-27 (D. Minn. 2002) (dismissing employee's claim for negligent infliction of emotional distress because plaintiff offered no evidence of physical manifestation of emotional distress, and did not satisfy Minnesota's "zone of danger" test) (citing Soucek v. Banham, 503 N.W.2d 153, 154 (Minn.Ct.App. 1993)). Similarly, plaintiff here offers no evidence of physical manifestations of the emotional distress, he was not in a "zone of danger" and his case does not fit into the possible exception to the zone of danger requirement. See Bohdan v. Alltool Mfg., Co., 411 N.W.2d 902, 907 (Minn.Ct.App. 1987) (recognizing exception to "zone of danger" requirement where the plaintiff suffers a direct invasion of his or her individual rights, such as "defamation, malicious prosecution, or other willful, wanton or malicious conduct.")
B. Liquidated Damages and Attorney Fees
The Supreme Court has noted that where an employee has prevailed in arbitration, but was not awarded the full panoply of remedies as the employee would be allowed by the remedial statute, it is appropriate for the employee to pursue his claims in court. Specifically, the Court noted, "Nor can it be maintained that election of remedies is required by the possibility of unjust enrichment through duplicative recoveries. Where, as here, the employer has prevailed at arbitration, there, of course, can be no duplicative recovery. But even in cases where the employee has first prevailed, judicial relief can be structured to avoid such windfall gains." Garnder-Denver, 415 U.S. at 51 n. 14 (citing Oubichon v. North American Rockwell Corp., 482 F.2d 569 (9th Cir. 1973); Bowe v. Colgate-Palmolive Co., ( 416 F.2d 711 (7th Cir. 1969)). The Court went on to state that "If the relief obtained by the employee at arbitration were fully equivalent to that obtainable under [the statute], there would be no further relief for the court to grant and hence no need for the employee to institute suit." Id. (emphasis added).
In this case, plaintiff claims that he did not recover the full equivalent of relief obtainable under the FMLA because he was not awarded liquidated damages, as such, plaintiff can pursue his claim for liquidated damages. The FMLA authorizes liquidated damages unless a defendant proves that the FMLA violation "was in good faith and . . . the employer had reasonable grounds for believing that the act or omission was not a violation." 29 U.S.C. § 2617(a)(1)(A)(iii). Defendants request summary judgment that its actions were in "good faith." Defendants have not yet established, however, that they acted with the requisite "good faith" and "reasonableness" so as to avoid liability for liquidated damages. See Arban v. West Pub. Corp., 345 F.3d 390, 407-08 (6th Cir. 2003) (discussing "good faith" and holding that district court abused its discretion in refusing to award liquidated damages where the jury found that plaintiff-employee was dismissed because he took medical leave); Chandler v. Specialty Tires of America (Tennessee), Inc., 283 F.3d 818, 827 (6th Cir. 2002) (noting that the employer must show to the satisfaction of the court that employer acted both with good faith and reasonableness). Therefore summary judgment is inappropriate on the issue of liquidated damages.
Defendants argue that because plaintiff is not entitled to any award of damages, he is not entitled to attorney's fees. Because the Court finds that plaintiff is eligible to pursue liquidated damages, defendants' argument regarding attorney's fees is moot.
Given the Court's decisions that collateral estoppel is not applicable, that neither party has waived the "serious medical condition" issue, and that plaintiff is entitled to pursue at least some damages, summary judgment is inappropriate for either party.
ORDER
Based upon the foregoing, the submissions of the parties, the arguments of counsel and the entire file and proceedings herein, IT IS HEREBY ORDERED that:
1. Defendants' motion for summary judgment [Docket No. 25] is GRANTED in part and DENIED in part.
a. Defendants' motion is granted as to Count 2 of plaintiff's amended complaint [Docket No. 12]. Count 2 of plaintiff's amended complaint is DISMISSED WITH PREJUDICE; b. Defendants' motion is DENIED in all other respects.
2. Plaintiff's motion for summary judgment [Docket No. 17] is DENIED. IT IS FURTHER ORDERED that the court caption shall be AMENDED to reflect the true spelling of plaintiff's name from "Dilloway" to "Dillaway."