204 F. Supp.2d 16 (2002) | Cited 0 times | D. Maine | May 10, 2002


A former hospital employee complains that the hospital violated theFamily and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq., byrefusing to reinstate him after he took leave to receive treatment for aserious medical condition. Presently before the Court is Defendant'sMotion to Dismiss pursuant to Rule 12(b)(6) (Docket #2). For thefollowing reasons, the Court DENIES Defendant's Motion.


In deciding a Motion to Dismiss pursuant to Rule 12(b)(6), the Courtmust accept the allegations in the Complaint and indulge all reasonableinferences in Plaintiff's favor.1 Nethersole v. Bulger, 287 F.3d 15(1st Cir. 2002) (pagination unavailable). It may only dismiss theComplaint if it appears beyond doubt that Plaintiff can prove no set offacts that would entitle him to relief under any viable legal theory.Id.; see Fed. R. Civ. P. 12(b)(6).

The Federal Rules of Civil Procedure require only that the Complaintset forth "a short and plain statement of the claim showing that thepleader is entitled to relief." Swierkiewicz v. Sorema N.A., ___ U.S.___, 122 S.Ct. 992, 998 (2002) (quoting Fed. R. Civ. P. 8(a)(2)). Courtsshould assess the Complaint according to two touchstone inquiries:First, can Plaintiff prove any set of facts, consistent with theallegations in the Complaint, that would entitle him to relief? Id.(citing Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)). Second, arethe allegations in the Complaint adequate to give Defendant "fair noticeof what the [P]laintiff's claim is and the grounds upon which itrests"? Id. (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). If theanswer to either question is "no," then the Court may dismiss theComplaint for failure to state a claim.


Plaintiff Robert Ruder began working for Defendant MaineGeneral MedicalCenter ("MaineGeneral") on January 17, 2000, as the practice managerresponsible for offices in Augusta and Waterville, Maine. Ruder leftwork for what he contends were qualifying medical reasons on or aboutJanuary 5, 2001.2 At that time, Ruder had at least two weeks ofunused accumulated vacation time.

MaineGeneral denied Ruder's request for leave under the Family andMedical Leave Act but permitted him to take a medical leave of absencethrough April 1, 2001. Although Ruder reported to work when his approvedmedical leave ended, MaineGeneral terminated his employment.MaineGeneral subsequently divided his former position into two: one tomanage the Augusta office and the other to manage the Waterville office.Each position had job duties equivalent to those Ruder performed beforehis leave. After requiring Ruder to reapply and be interviewedfor one of the new positions, MaineGeneral declined to rehire him.

On November 2, 2001, Ruder filed this action alleging that MaineGeneralhad violated the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601et seq. (FMLA), by denying his request for FMLA leave, failing toreinstate him upon his return and terminating his employment.


The FMLA requires employers to grant "eligible" employees up to twelveweeks of leave within a twelve-month period for certain serious medicalconditions. 29 U.S.C. § 2612(a)(1). During that time, employeesretain their employment benefits, including health care.29 U.S.C. § 2614(a)(2), (c)(1). Moreover, employees returning fromFMLA leave are entitled to reinstatement at their former position or itsequivalent. 29 U.S.C. § 2614(a)(1). Plaintiff claims that because hewas absent for twelve or fewer weeks for a qualifying medical reason,Defendant's failure to reinstate him at the end of that absence violatedthe FMLA.

Defendant moves to dismiss on only one ground: that Plaintiff wasnot an "eligible" employee when he took his leave and thus does not meritthe protections of the FMLA. In order to receive the statute'sprotections, an employee must meet two threshold requirements: (1) hemust have worked for the employer for a minimum of twelve months; and (2)he must have worked at least 1250 hours in the preceding twelve months.29 U.S.C. § 2611(2)(A); 29 C.F.R. § 825.110(a). Defendant arguesthat because Plaintiff began working for Defendant on January 17, 2000,he had not yet met the first eligibility requirement when he left workfifty-one weeks later on January 5, 2001.3

Defendant relies primarily on authority establishing that thedetermination of whether an employee is eligible for the protections ofthe FMLA must be made "as of the date leave commences."29 C.F.R. § 825.110(d); see, e.g., Butler v. Owens-Brockway PlasticProds., 199 F.3d 314, 316 (6th Cir. 1999). From this starting point,however, the analysis rapidly derails, because the authorities aresilent as to the crucial follow-up question: when was Plaintiff's"leave" deemed to have "commenced" for purposes of the FMLA? Thus, it ismore useful to tailor the analysis closely to the facts of this case andsimply inquire whether the FMLA permits Plaintiff to use his accruedvacation time to achieve one year of employment and become eligible forthe statute's protections.

Plaintiff insists that it does, citing 29 C.F.R. § 825.110(b),which provides,

The 12 months an employee must have been employed by the employer need not be consecutive months. If an employee is maintained on the payroll for any part of a week, including any periods of paid or unpaid leave (sick, vacation) during which other benefits or compensation are provided by the employer (e.g., workers' compensation, group health plan benefits, etc.), the week counts as a week of employment.

Thus, according to this regulation, an employee may take vacation timeduring his first year of employment, and any weeks spent on vacationcount toward the required year of employment. Exactly when within thatfirst year the employee takes the vacation is irrelevant under theregulation. An employee could take vacation during his thirtieth andthirty-first weeksof employment or his fiftieth and fifty-first weeks,and in either case count those as weeks of employment for purposes ofFMLA eligibility.

This regulation notwithstanding, Defendant argues that the Courtshould not interpret the FMLA to permit employees, such as Plaintiff, totake leave during the last weeks of their first year of employment andthereby grow into FMLA eligibility. Such an interpretation, according toDefendant, would thwart the purposes of the statute. Some courts inother jurisdictions have held that an employee may not useemployer-approved leave to get over the one-year eligibility threshold.See Sewall v. Chicago Trans. Auth., No. 99 C 8372, 2001 WL 40802, *5(N.D.Ill. Jan. 16, 2001); Jessie v. Carter Health Care Ctr.,926 F. Supp. 613, 617 (E.D.Ky. 1996); Schlett v. Avco Fin. Servs.,950 F. Supp. 823, 835 (N.D.Ohio. 1996). The Court is not persuaded bythe reasoning of these courts, however, because they did not consider theimpact of 29 C.F.R. § 825.110(b), which the Court finds to bedispositive in this case.

Moreover, contrary to Defendant's contentions, Plaintiff'sinterpretation is not inconsistent with the purposes of the FMLA.Defendant first points out that if an employee is permitted to usetwo weeks of vacation time to surpass the threshold and become FMLAeligible, he will then be entitled to an additional twelve weeks of FMLAleave, for a total of fourteen consecutive weeks of leave. It arguesthat courts, including the Supreme Court, have rejected interpretationsof the FMLA that operate to give employees more than twelve weeks ofleave within a twelve-month period. See Ragsdale v. Wolverine WorldWide, Inc., ___ U.S. ___, 122 S.Ct. 1155, 1163-64 (2002) (striking downregulation in part because it "amends the FMLA's most fundamentalsubstantive guarantee — the employee's entitlement to `a total of12 workweeks of leave during any 12-month period.'").

The interpretation that Plaintiff urges here, however, is distinct in acrucial respect from the scenario the Supreme Court faced in Ragsdale.There, the employee enjoyed the protections of the FMLA throughout aninitial period of leave but nevertheless insisted that those weeksshould not be counted against her total FMLA allotment. See Ragsdale,122 S.Ct. at 1164. By contrast, an employee who takes leave duringhis first year of employment does not enjoy the protections of the FMLA,such as guaranteed health care benefits and a right to reinstatement,during that leave. Only after he exceeds the one-year threshold doeshe, like other employees, become entitled to twelve weeks ofFMLA-protected leave. It may be the case that he takes advantage of hisordinary leave and his FMLA-protected leave consecutively. However, thiscoincidence does not change the total amount of FMLA-protected leave towhich he is entitled and does not expand his eligibility under thestatute.

A related objection is that allowing employees to use vacation time toattain the one-year threshold would grant short-term employees moretotal leave than employees who have worked for longer than one year.This apparent anomaly results because the statute authorizes employers toforce employees who are already FMLA-eligible to take their allottedleave time as part of their twelve-week entitlement. See29 U.S.C. § 2612(d)(2)(A); 29 C.F.R. § 825.207(a). In contrast,employees who use their vacation time to become eligible would bepermitted to take vacation time in addition to twelve weeks of FMLAleave. However, this argument fails because, as discussed above,employees do not enjoy the protections of the FMLAduring the weeks ofvacation that precede their one-year anniversary of employment. There isno reason to make them count those weeks against their FMLA allotment ifthe protections of the statute do not apply.

Finally, Defendant objects that Plaintiff's interpretation willdiscourage employers from offering generous leave policies. The FMLAcautions that nothing in it "shall be construed to discourage employersfrom adopting or retaining leave policies more generous" than thoserequired under the statute. 29 U.S.C. § 2653. Defendant predictsthat employers will be stingier in formulating vacation policies if theyknow that every week of vacation time they provide during the first yearreduces by one week the time employees have to work before they becomeFMLA-eligible. This objection ignores, however, that leave time duringthe first year already counts toward an employee's FLMA eligibilityunder the DOL regulations. See 29 C.F.R. § 825.110(b). In acceptingPlaintiff's position, the Court simply confirms what appears plain fromthe language of the regulation: leave time taken at the end of thefirst year of employment counts toward an employee's FMLA eligibilityjust like leave time taken earlier in the year. This clarificationwill be utterly irrelevant to the vast majority of employees, who usetheir allotted vacation time for recreational or other personal purposesand not for an FMLA-qualifying event that occurs immediately beforetheir one-year anniversary of employment. Therefore, even if employersperceive the Court's ruling to be a novel interpretation of the FMLA,it is an interpretation that will affect so few employees that it isunlikely to significantly change employers' incentives informulating general leave policies.

In sum, none of Defendant's arguments persuades the Court to rejectwhat it believes is the most natural reading of 29 C.F.R. § 825.110(b),namely, that an employee may take a vacation during which he remains onthe payroll and is receiving benefits, and during that vacation pass theone-year eligibility threshold of the FMLA. See Rollins v. Wilson CountyGov't, 154 F.3d 626, 628 (6th Cir. 1998) (noting in dicta that pregnantplaintiff could have used four weeks of medical leave during which sheremained on the payroll and received benefits to extend her employmentperiod beyond twelve months). Here, Plaintiff has alleged that he workedfor fifty-one weeks and had accrued at least two weeks of vacation timewhen he left work. He may be able to prove facts consistent with theseallegations that entitle him to the protections of the FMLA. Moreover,the Complaint is sufficiently specific in terms of dates and Defendant'schallenged conduct to put Defendant on notice as to the nature of theFMLA claim it will have to defend. Plaintiff has thus stated a claim thatmay ultimately entitle him to relief.


For the above reasons, the Court DENIES Defendant's Motion to Dismiss.


1. Defendant appended several documents to its Motion to Dismiss. Atoral argument, however, Defendant agreed that, because of the way theparties had developed the issues, these additional documents are nowunnecessary for the Court's determination of this Motion. The Courtaccordingly declines to consider the additional documents. SeeFed.R.Civ.P. 12(b) (prohibiting courts from considering matters outsidethe pleadings on a motion to dismiss).

2. The Complaint does not specify the nature of his medicaldifficulties.

3. Both sides agree that the 1250-hour requirement is not at issue forpurposes of this Motion.

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