Court Finds Equitable Estoppel Should not Bar FMLA Non-Eligibility as a Defense

John GarnerDMEC News

Upon returning to work from an approved leave of absence for an elective surgical procedure, Daniel Dobrowski, a mechanical engineer, was terminated by his employer Jay Dee Contractors, Inc.  Dobrowski sued Jay Dee alleging that, notwithstanding his admitted ineligibility for the Family and Medical Leave Act’s (FMLA) protections, Jay Dee should be prohibited from later denying his eligibility because it was represented, prior to his taking leave, that he was eligible.  Dobrowski’s arguments were rejected and summary judgment was granted to Jay Dee.  He appealed the court’s findings.  Although the appeals court disagreed with the court’s reasoning in part, it agreed with its resolution, upholding the lower courts findings.

The case is Daniel Dobrowski vs. Jay Dee Contractors, Inc.

Danial Dobrowski was hired by Jay Dee Contractors, Inc. (Jay Dee) in September 2003 and assigned to a project at the Detroit Wastewater Treatment Plant. 

Dobrowski was diagnosed with epilepsy as a child, and even though he took regular medication and underwent various treatments to control his disease, he continued to have seizures as an adult.  Dobrowski, in consultation with his physician, decided to explore additional treatment options, ultimately settling on a surgical option.  In mid-July, his doctor cleared him for the surgery and scheduled it for October.  At that time, Dobrowski informed his supervisor that he had scheduled the surgery.  He explained, “I got the okay and so I will be having surgery on this date.” All parties appeared to have assumed that Jay Dee would grant him time off for the operation, but Dobrowski’s conversations with his superiors over the next months did not eliminate all confusion over the amount of leave required.  On September 10, 2004, Dobrowski sent an email to Jay Dee’s President, captioned “leave of absence” that identified his “operation coming up.”  He explained how much work he could miss depending on the “many ways this procedure could end up” and indicated that he thought with all the information provided, “a small meeting would clear things up.”

Following that meeting between Dobrowski, his supervisor and the company president to discuss the surgery and leave, he was given a form headed “APPLICATION FOR LEAVE OF ABSENCE UNDER THE FMLA.”  Dobrowski filled out the form and returned it, dated September 27, 2004.  On October 5, he wrote to Jay Dee, memorializing the decision as to his leave. The letter indicated that Dobrowski was to have the surgery on October 15, and that “pursuant to the Family and Medical Leave Act, Jay Dee Contractors, Inc. will leave Dobrowski’s position open for at least twelve (12) weeks from October 18, 2004.” Included with the letter was the Department of Labor’s “Employer Response to Employee Request for Family or Medical Leave” form that summarized Dobrowski’s application, which indicated that Dobrowski was an eligible employee, and confirmed that Jay Dee was providing him with FMLA leave. 

Dobrowski contacted Jay Dee on November 22, 2004 about scheduling his return.  They apparently agreed that, provided he received his doctor’s consent, Dobrowski would return in early December.  Dobrowski called Jay Dee and left a voicemail indicating that he would have the return-to-work letter on the following Monday, December 13. Dobrowski reported to company headquarters on that day and was informed that he was being terminated.  Jay Dee explained that the work at the wastewater plant was winding down and they no longer needed his services.  When Dobrowski inquired about a transfer, Jay Dee advised that none of the company’s other projects needed an additional engineer.  When asked why the decision had not been communicated to him earlier, the company president responded “Why? So you could stay on medical leave?”

Dobrowski then sued Jay Dee in state court, alleging a violation of the Michigan Handicapper’s Civil Rights Act. He later amended his complaint to include a claim under the FMLA, and Jay Dee removed the case to federal court.  The district court declined to exercise supplemental jurisdiction over the state law claim and remanded it to state court.

Following discovery, Jay Dee moved for summary judgment, arguing that:  (1) Dobrowski was not eligible for FMLA protection because they employed fewer than 50 employees within 75 miles of Dobrowski’s work site; and (2) he was not entitled to reinstatement because his job was eliminated from the project.  In response, Dobrowski argued that the doctrine of equitable estoppel applied to prevent Jay Dee from denying his eligibility after having indicated to him at the time of his surgery that he was eligible, and that the record established a material dispute of fact as to the second ground. The lower court rejected these arguments, and granted summary judgment on each ground.  Dobrowski appealed the court’s decision.

The appeals court held that to prevail on his equitable estoppel argument, Dobrowski needed to show (1) a definite misrepresentation as to a material fact, (2) a reasonable reliance on the misrepresentation, and (3) a resulting detriment to the party relying on the misrepresentation.  The court found no evidence in the record to show that Dobrowski had “changed his position” in reliance on the belief that his leave would be FMLA-protected. Had Dobrowski relied on the erroneous representations, the court’s expectation was that he would have pointed to some action or statement that indicated that his decision to have the surgery was contingent on his understanding of his FMLA status; or perhaps evidence that raises an inference of such contingency – for example, a record that he made an inquiry as to his rights, asked for written confirmation of his leave arrangement, or changed his behavior after being told he was eligible.  At the very least, it was expected that Dobrowski would have placed an affidavit in the record stating that he would have forgone the surgery but for his belief that his job status was protected by the FMLA.  Instead it was found that the record showed Dobrowski had already decided on and scheduled the surgery by the time he was informed of his eligibility.  No evidence was found of a discussion of the FMLA eligibility prior to the application for leave filed with Jay Dee on September 27 – about three weeks prior to his October 15 surgery, and well after he informed the company of his planned absence.  In deposition, Dobrowski indicated that he knew that he would undergo the surgery about six months in advance, and told Jay Dee as soon as he knew the date.  After his superiors asked questions about how long he planned to take off work, Dobrowski organized a meeting to discuss his absence.  His email preceding the meeting did not ask for permission to take leave, discuss his rights under the FMLA, or indicate a willingness to delay or reschedule depending on his legal status.

Dobrowski argued that because the surgery was elective, he could have rescheduled it had he known that he was not FMLA eligible.  It was found to be true that in the abstract that he could have rescheduled it; but it was his burden on summary judgment to produce evidence supporting his estoppel claim, and the record did not contain evidence permitting a finding that he would have.  For the foregoing reasons, the Court of Appeals of the Sixth Circuit affirmed the decision of the district court granting summary judgment to Jay Dee.

While the decision in this case may provide some comfort to employers, employers are still required under the FMLA regulations to provide employees accurate information as to their eligibility for FMLA leave.

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