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concluding that a plaintiff was not denied any substantive rights under the FMLA when his employer failed to provide notice that his short-term disability would be counted against his FMLA entitlement
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99 Civ. 11054 (JGK)
September 4, 2001
OPINION AND ORDER
Plaintiff Kevin Fulham ("Fulham") brings this action against his former employer HSBC Bank USA ("HSBC") pursuant to the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq. and its implementing regulations. The plaintiff alleges that HSBC improperly denied him leave under the FMLA. The defendant now moves for summary judgment pursuant to Fed.R.Civ. 56.
I.
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "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(c); see also Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Gallo v. Prudential Residential Servs. Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994). "The trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution."Gallo, 22 F.3d at 1224. The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. The substantive law governing the case will identify those facts which are material and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986).
In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also Gallo, 22 F.3d at 1223. If the moving party meets its burden, the burden shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). With respect to the issues on which summary judgment is sought, if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper. See Chambers v. TRM Copy Ctrs Corp., 43 F.3d 29, 37 (2d Cir. 1994)
II. A.
The following facts are not in dispute, except where specifically noted. As of January 1997, the plaintiff had been employed by Morgan Guaranty Bank of New York ("Morgan") for thirty years, the last twenty-three years in the commercial banking division. (Pl.'s 56.1 Counter-St. ¶ 1.) In January 1997, the defendant, then known as Marine Midland Bank, acquired the domestic cash unit of Morgan, where the plaintiff was employed. (Def.'s 56.1 St. ¶ 1; Pl.'s 56.1 Counter-St. ¶ 2.) As a result of the acquisition, the plaintiff became an employee of the defendant. However, the plaintiff retained the same job title, duties and salary as he had with Morgan. (Def.'s 56.1 St. ¶ 1; Pl.'s 56.1 Counter-St. ¶¶ 2-4.) In determining the plaintiff's available benefits, such as his eligibility for family medical leave, the defendant credited the plaintiff with his years at Morgan. (Pl.'s 56.1 Counter-St. ¶ 5.)
For purposes of this motion, where factual disputes exist in the record, the defendant accepts the plaintiff's version of the facts. (Def.'s 56.1 St., n. 1.).
On July 27, 1997, the plaintiff's son was severely injured in an automobile accident that left him a paraplegic. (Def.'s 56.1 St. ¶ 2; Pl.'s 56.1 Counter-St. ¶ 8.) The plaintiff's last day of work for the defendant was July 25, 1997, the Friday prior to his son's accident. (Def.'s 56.1 St. ¶ 3; Pl.'s 56.1 Counter-St. ¶ 8.) In the weeks immediately following the accident, the plaintiff's absence from work was characterized as vacation time. (Def.'s 56.1 St. ¶ 3; Pl.'s 56.1 Counter-St. ¶ 9.) As a result of his son's accident, the plaintiff experienced severe stress and depression. (Def.'s 56.1 St. ¶¶ 4-5; Pl.'s 56.1 Counter-St. ¶ 11.) Starting on or about August 15, 1997, the defendant placed the plaintiff on short-term disability leave for a period of 26 weeks in accordance with the defendant's employee benefits program. (Def.'s 56.1 St. ¶ 4; Pl.'s 56.1 Counter-St. ¶ 10.) The defendant did not inform the plaintiff at any time that his short-term disability leave from August 15, 1997 to February 19, 1998, constituted FMLA leave. (Def.'s 56.1 St. ¶ 21; Second Amended Compl. ¶ 18.)
The defendant informed the plaintiff by letter dated January 13, 1998, that his short-term disability leave would expire on February 19, 1998 and advised the plaintiff of his benefit options following the expiration of his short-term disability leave. (Def.'s 56.1 St. ¶ 7; Pl.'s 56.1 Counter-St. ¶ 13; Affidavit of James R. Grasso, sworn to Sep. 29, 2000 ("Grasso Aff."), Ex. D.) The letter indicated that the plaintiff might qualify for an unpaid family leave of absence for up to 13 weeks under the defendant's employee benefits program, which would maintain the plaintiff's status as an active employee, or long-term disability benefits, which would result in the plaintiff's termination. (Grasso Aff. Ex. D.) In evaluating the two options, the plaintiff spoke by telephone with various individuals employed by the defendant and requested and received information concerning long-term disability. (Def.'s 56.1 St. ¶ 8-10; Pl.'s 56.1 Counter-St. ¶ 14; Grasso Aff. Ex. E.)
In February 1998, the plaintiff requested to be placed on unpaid family leave. (Def.'s 56.1 St. ¶ 14; Pl.'s 56.1 Counter-St. ¶ 17.) The plaintiff also submitted an application for long-term disability, although the parties dispute the plaintiff's reasons for submitting the application for long-term disability. (Def.'s 56.1 St. ¶ 15; Pl.'s 56.1 Counter-St. ¶ 18.) The defendant placed the plaintiff on unpaid family leave. (Def.'s 56.1 St. ¶ 14; Pl.'s 56.1 Counter-St. ¶ 18, 30; Grasso Aff. Exs. J K.) By letter dated March 4, 1998, the defendant informed the plaintiff that he was ineligible for leave under the FMLA because the plaintiff had not worked 1,250 hours in the preceding 12 months. (Def.'s 56.1 St. ¶ 20; Pl.'s 56.1 Counter-St. ¶ 31; Grasso Ex. R.) The plaintiff's long-term disability application was approved on April 16, 1998, and the plaintiff received long-term disability benefits until January 2000. (Def.'s 56.1 St. ¶ 18; Pl.'s 56.1 Counter-St. ¶ 40.) The plaintiff signed a formal Separation Checklist on May 6, 1998. (Pl.'s 56.1 Counter-St. ¶ 40.)
The plaintiff's first cause of action in the Second Amended Complaint alleges that the plaintiff was entitled to 12 weeks of leave under the FMLA upon expiration of his short-term disability leave and that the defendant's failure to advise the plaintiff of his ineligibility for FMLA leave in a timely fashion under 29 C.F.R. § 825.110(d) prevented the defendant from contesting the plaintiff's eligibility for that leave (Count I). In the plaintiff's second cause of action, the plaintiff contends that, even if he did not qualify for FMLA leave, pursuant to 29 C.F.R. § 825.700(a), he was entitled to 13 weeks of family medical leave upon expiration of his short-term disability leave under his employee benefit program (Count II).
B.
The FMLA was enacted because, among other reasons, Congress found that "there is inadequate job security for employees who have serious health conditions that prevent them from working for temporary periods. . . ." 29 U.S.C. § 2601(a)(4). In relevant part, tFMLA entitles "an eligible employee . . . to a total of 12 workweeks of leave during any 12-month period . . . [b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612(a)(1)(D). An "eligible employee" is an employee who has been employed for at least 12 months by the employee's employer and has been employed for at least 1,250 hours of service with such employer during the previous 12-month period. 29 U.S.C. § 2611(2)(A). The FMLA explicitly permits employers to provide FMLA leave on an unpaid basis. See 29 U.S.C. § 2612(c).
The defendant does not dispute that the plaintiff suffered from a serious health condition nor does it dispute that the plaintiff was eligible for FMLA leave at the time the plaintiff was placed on short-term disability leave.
After the 12 week FMLA leave period, an eligible employee is entitled to reinstatement to the employee's former position or an equivalent one.See 29 U.S.C. § 2614(a). Employers may not "use the taking of FMLA. leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions." 29 C.F.R. § 825.220(c). The FMLA tries to accomplish its purposes "in a manner that accommodates the legitimate interests of employers." 29 U.S.C. § 2601(b)(3). Any eligible employees affected by the employer's unlawful conduct are entitled to a private right of action for damages or equitable relief.See 29 U.S.C. § 2617(a)(1).
III.
The defendant moves for summary judgment to dismiss Count I of the Second Amended Complaint on the ground that the plaintiff was not denied any substantive rights under the FMLA. The defendant argues that, although the defendant never formally notified the plaintiff that it was designating the plaintiff's short-term disability leave as FMLA leave, the plaintiff received all the leave to which he was entitled under the FMLA because he received 26 weeks of leave while on short-term disability leave. In response, the plaintiff argues that, pursuant to 29 U.S.C. § 2612(d)(2) and 29 C.F.R. § 825.208(c) and 825.700, he was entitled to an additional 12 weeks of leave under the FMLA upon expiration of his short-term disability leave because the defendant failed to designate formally the plaintiff's short-term disability leave as FMLA leave.
The defendant also moved for summary judgment to dismiss Count I on the grounds that: (i) the plaintiff voluntarily terminated his employment when he applied for and accepted long-term disability benefits; and (ii) even assuming that the plaintiff was entitled to FMLA leave upon the expiration of his short-term disability leave, he would not have been able to return to work even following an additional 12 week leave period. At argument on this motion, the defendant took the position that it was not necessary to reach these grounds. (Tr. dated May 31, 2001, at 9.) Thus, given the defendant's position and the Court's conclusion that the plaintiff was not entitled to FMLA leave upon the expiration of his short-term disability leave, it is unnecessary to consider these alternative arguments.
A.
The plaintiff first argues that he was entitled to an additional 12 weeks of leave under the FMLA upon expiration of his short-term disability leave pursuant to 29 U.S.C. § 2612(d)(2). The plaintiff interprets 29 U.S.C. § 2612(d)(2) to provide that if an employer does not affirmatively designate in advance an employee's leave as the leave provided by the FMLA, its right to designate that time as FMLA leave is waived.This argument is contrary to the language of the statute and is without merit. 29 U.S.C. § 2612(d)(2) provides that:
(A) In general. An eligible employee may elect, or an employer may require the employee, to substitute any of the accrued paid vacation leave, personal leave, or family leave of the employee for leave provided under subparagraph (A), (B), or (C) of [ 29 U.S.C. § 2612(a)(1)] for any part of the 12 week period of such leave under such subsection.
(b) Serious health condition. An eligible employee may elect, or an employer may require the employee, to substitute any of the accrued paid vacation leave, personal leave, or medical or sick leave of the employee for leave provided under (C) or (D) of ( 29 U.S.C. § 2612(a)(1)] for any part of the 12 week period of such leave under such subsection. . . .
29 U.S.C. ¶ 2612(d)(2). The purpose underlying 29 U.S.C. § 2612(d)(2) is to protect employers who offer paid sick leave benefits to their employees from having to provide both those paid leave benefits and the 12 weeks of leave required by the FMLA separately. See Strickland v. Water Works and Sewer Board of the City of Birmingham, 239 F.3d 1199, 1205 (11th Cir. 2001) Ragsdale v. Wolverine Worldwide Inc., 218 F.3d 933, 938 (8th Cir. 2000), cert. granted, 69 U.S.L.W. 3783 (U.S. Jun. 25, 2001) (No. 00-6029). As the Court of Appeals for the Eleventh Circuit explained recently in Strickland:
If employers could not require a sick employee to use accrued paid sick leave and FMLA leave concurrently when the employee's condition qualifies for both, then the employee could choose to use his paid leave benefit and his 12 weeks of FMLA leave sequentially. That would unduly and unfairly burden employers. To balance the needs of employers and sick employees, Congress intended that the FMLA provide employees with a minimum entitlement of 12 weeks of leave, while protecting employers against employees tacking their FMLA entitlement on to any paid leave benefit offered by the employer.Strickland, 239 F.3d at 1205-06; see also Ragsdale, 218 F.3d at 938;Santos v. Knitgoods Workers' Union Local 155, 252 F.3d 175, 178 (2d Cir. 2001) (noting that 29 U.S.C. § 2612(d)(2)(B) "does not create or supplement employer benefits").
While the FMLA requires employers to provide a total of 12 workweeks of leave during a 12-month period for the reasons specified in the statute, it does not require an employer to provide more. In this case the plaintiff was given 26 weeks of paid leave. 29 U.S.C. § 2612(d)(2) does not specifically provide that an employer who fails to designate an employee's paid vacation leave, personal leave, family leave, or sick leave as FMLA leave waives the right to substitute such leave for FMLA leave. Nor does the statute impose any requirement of advance designation of sick leave as FMLA leave. The express language of the statute itself "does not impose any specific requirements for the type of notification an employer must provide or when that notification must occur." McGregor v. Autozone Inc., 180 F.3d 1305, 1307 (11th Cir. 1999). Thus, 29 U.S.C. § 2612(d)(2) itself did not entitle the plaintiff to an additional 12 weeks of leave under the FMLA upon expiration of his 26 weeks of short-term disability leave in February 1998.
B.
The plaintiff next argues that under the DOL's implementing regulations, in particular, 29 C.F.R. § 825.208 and 825.700, the defendant had the obligation to "designate" his short-term disability leave as FMLA. leave in advance. The defendant argues that these regulations are invalid insofar as they purport to preserve the employee's FMLA leave entitlement because of an employer's failure to designate leave as FMLA leave. The defendant argues that the regulations impermissibly expand the rights conferred on employees under the FMLA by extending the 12-week leave period required in the FMLA.
The FMLA directs the Secretary of the Labor ("DOL") to "prescribe such regulations as are necessary" to carry out the FMLA's substantive provisions. 29 U.S.C. § 2654. The DOL has issued a series of regulations requiring an employer to provide an employee with notice that leave will be considered FMLA leave. The DOL has directed that "[i]n all circumstances, it is the employer's responsibility to designate leave, paid or unpaid, as FMLA-qualifying, and to give notice of the designation to the employee as provided in [ 29 C.F.R. § 825.208]." 29 C.F.R. § 825.208(a). "Once the employer has acquired knowledge that leave is being taken for an FMLA required reason, the employer must promptly (within two business days absent extenuating circumstances) notify the employee that the paid leave is designated and will be counted as FMLA leave." 29 C.F.R. § 825.208(b)(1). The regulations provide that failure to notify an employee that leave taken pursuant to an employer's leave policy is also designated as FMLA leave will preserve the employee's FMLA leave entitlement. 29 U.S.C. § 825.208(c) provides in pertinent part:
If the employer requires paid leave to be substituted for unpaid leave, or that paid leave taken under an existing leave plan be counted as FMLA leave, this decision must be made by the employer within two business days of the time the employee gives notice of the need for leave, or, where the employer does not initially have sufficient information to make a determination, when the employer determines that the leave qualifies as FMLA leave if this happens later. The employer's designation must be made before the leave starts, unless the employer does not have sufficient information as to the employee's reason for taking the leave until after the leave commenced. If the employer has the requisite knowledge to make a determination that the paid leave is for an FMLA reason at the time the employee . . . commences leave and fails to designate the leave as FMLA leave (and so notify the employee in accordance with paragraph (b)), the employer may not designate leave as FMLA leave retroactively, and may designate only prospectively as of the date of notification to the employee of the designation. In such circumstances, the employee is subject to the full protections of the [FMLA], but none of the absence preceding the notice to the employee of the designation may be counted against the employee's 12-week FMLA leave entitlement.
29 U.S.C. § 825.208(c). In addition, 29 U.S.C. § 825.700(a) provides that "[i]f an employee takes paid or unpaid leave and the employer does not designate the leave as FMLA leave, the leave taken does not count against an employee's FMLA entitlement." 29 U.S.C. § 825.700(a).
Agency regulations are given "controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute." Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984). To determine whether an agency regulation is valid, courts apply a two-step analysis as set forth in Chevron. First, a court must determine whether Congress has directly spoken on the particular issue. If it has, a court "must give effect to the unambiguously expressed intent of Congress." Id. at 843; see also New York Currency Research Corp. v. Commodity Futures Trading Comm., 180 F.3d 83 (2d Cir. 1999). If the statute is silent or ambiguous on the issue in dispute, the court must inquire whether the agency has provided a permissible interpretation of the statute. See Chevron, 467 U.S. at 843. The court must defer to the agency's interpretation unless it is "arbitrary, capricious, or manifestly contrary to the statute." Id. at 844; see also Skubel v. Fuoroli, 113 F.3d 330, 335 (2d Cir. 1997)
Courts differ on the question of whether the DOL regulations, relied upon by the plaintiff, imposing notice and advance designation requirements and preventing retroactive designation are a permissible interpretation of the FMLA. Compare Ragsdale, 218 F.3d at 937-39 (striking down the regulations because they improperly expand the substantive guarantees of the statute); McGregor, 180 F.3d at 1307-08 (same); Daley v. Wellpoint Health Networks, Inc., No. 99 Civ. 11464, 2001 WL 539463, at *5 (D. Mass. May 14, 2001) (same) Nolan v. Hypercom Mfg. Resources, No. Civ. 00-802, 2001 WL 378235, at *3-7 (D. Ariz. Mar. 26, 2001) (same); Twyman v. Dilks, No. Civ. A. 99-4378, 2000 WL 1277917, at *11-14 (E.D. Pa. Sept. 8, 2000) (same) with Plant v. Morton Int'l Inc., 212 F.3d 929, 935-36 (6th Cir. 2000) (upholding both 29 C.F.R. § 825.208(c) and 825.700(a) as valid exercises of regulatory power); Ritchie v. Grand Casinos of Mississippi, Inc., 49 F. Supp.2d 878, 881 (S.D. Miss. 1999) (holding that the DOL's regulations appropriately "filled the gaps" of the FMLA); Chan v. Loyola Univ. Med. Ctr., No. 97 C 3170, 1999 WL 1080372 (M.D. Ill. Nov. 23, 1999) (same).
A number of courts have relied on 29 C.F.R. § 825.208 without deciding the issue of whether the notice and designation requirements of the regulation are valid under Chevron. See e.g., Cline v. Wal-Mart, Inc., 144 F.3d 294, 300-301 (4th Cir. 1998); Barone v. Leukemia Soc'y of America, 42 F. Supp.2d 452, 459 (D. N.J. 1998); Blankenship v. Buchanan General Hosp., 999 F. Supp. 832, 835-36 (W.D. Va. 1998).
The Court of Appeals for the Second Circuit has not yet determined the validity of the advance notice and designation requirements of 29 C.F.R. § 825.208 and 825.700. However, in Sarno v. Douglas Elliman-Gibbons Ives Inc, 183 F.3d 155 (2d Cir. 1999) the Court found that the plaintiff's claim depended on whether the plaintiff was denied any substantive right under the FMLA rather than whether a notice provision under the regulations was violated. In Sarno, the plaintiff, who had been seriously injured and placed on FMLA leave, was terminated when, after 12 weeks of unpaid leave, he was unable to return to work. The Court of Appeals affirmed the summary judgment dismissing the plaintiff's FMLA claim, finding that because the plaintiff's condition rendered him unable to return to work after 12 weeks, the exercise of his FMLA substantive rights was not affected by any lack of notice. See Sarno, 183 F.3d at 161-62. Sarno is instructive on the importance of determining whether a plaintiff's substantive rights under the FMLA have been violated but it did not discuss the validity of 29 C.F.R. § 825.208 (a) and 825.700(a). See also Donnellan v. New York City Transit Authority, No. 98 Civ. 1096, 1999 WL 527901 (S.D.N.Y. Jul. 22, 1999) (declining to determine validity of DOL designation regulation but finding the plaintiff had stated no claim for a violation of the FMLA because, despite the violation of the designation regulations, the plaintiff had received more than the 12 weeks of leave to which she was entitled under the FMLA).
For the reasons stated by the Court of Appeals for the Eighth Circuit in Ragsdale and by the Court of Appeals for the Eleventh Circuit inMcGregor, the Court agrees that the DOL regulations regarding notice and designation are invalid insofar as they purport to require an employer to provide more than 12 weeks of leave time. See Ragsdale, 218 F.3d at 937-39; McGregor, 180 F.3d at 1307-08; Daley, 2001 WL 539463, at *5;Nolan, 2001 WL 378235, at *3-7; Twyman, 2000 WL 1277917, at *ll-14. The DOL regulations effectively create an entitlement to an additional twelve weeks of leave whenever an employer fails to notify an employee that the employee is using FMLA leave. This is directly inconsistent with the plain language of the FMLA, which makes clear that eligible employees are entitled to a total of 12 weeks of leave. See 29 U.S.C. § 2612(a)(1) and (d)(1). Thus, the FMLA sets both a minimum term of leave that employers must provide to employees and a maximum term that the statute requires. See Ragsdale, 218 F.3d at 937; McGregor, 180 F.3d at 1308;Twyman, 2000 WL 1277917, at *13.
The FMLA does not in any way suggest that the 12-week FMLA leave entitlement may be extended. Moreover, other provisions of the FMLA indicate that where Congress required explicit notice, it provided for such notice in the statute. See 29 U.S.C. § 2612(e)(1) (detailing notice obligations of employees to employers when employee requests certain qualifying FMLA leave); 29 U.S.C. § 2614(b)(1)(A)(B) (allowing employer to refuse to restore "highly compensated employee" to former position if such denial is necessary to prevent "substantial and grievous economic injury to the operations of the employer" so long as employer gives notice of such to employee "at the time the employer determines such injury would occur"); 29 U.S.C. § 2619 (assessing monetary penalties on employers who do not post notices on premises explaining FMLA rights).
Accordingly, to the extent that the DOL regulations, namely 29 C.F.R. § 825.208 and 825.700, would entitle the plaintiff to an additional 12 weeks of FMLA leave simply because the defendant failed to notify the plaintiff that the leave he unquestionably received, which was in excess of that required by the FMLA was being designated FMLA leave, the DOL regulations are invalid.
C.
In some situations an employer's failure to provide notice to an employee that the employee's leave would be designated FMLA leave may interfere with an employee's substantive FMLA rights. See Ragsdale, 218 F.3d at 939-40 (describing scenarios where an employer's failure to provide notice may interfere with an employee's substantive FMLA rights);Donnellan, 1999 WL 527901, at *4 n. 10. However, this case is not one of them. Here, the plaintiff received 26 weeks of paid leave — from August 15, 1997 to February 19, 1998 — before he was eventually terminated. The plaintiff therefore received more leave than he was entitled to under the FMLA. Because it is undisputed that the plaintiff was not able to return to work at any point during the 26 week period of time he was on short-term disability, any failure by the defendant to notify the plaintiff that his short-term disability leave was being designated as FMLA leave cannot be found to have impeded his return to work. Thus, the plaintiff was not denied any substantive right under the FMLA f or having not been notified that his short-term disability leave was being designated FMLA leave. See Donnellan, 1999 WL 527901, at *4.5;Cormier v. Littlefield, 112 F. Supp.2d 196, 200 (D. Mass. 2000). Cf. Sarno, 183 F.3d at 161-62 (declining to give an employee the right under the FMLA "to sue the employer for failing to give notice of the terms of the [FMLA] where the lack of notice had no effect on the employee's exercise of or attempt to exercise any substantive right conferred by the [FMLA]). To find that the defendant's technical violation of the designation regulations functions as a denial of the plaintiff's FMLA rights "would be an egregious elevation of form over substance."Donnellan, 1999 WL 527901, at *4 (internal quotation omitted); see also Ragsdale, 218 F.3d at 940.
Thus, in this case, the plaintiff received all of the substantive benefits of the FMLA to which he was entitled and no rational juror could find that the defendant's failure to notify him that his short-term disability leave was designated as FMLA, leave denied him any rights under the FMLA. Accordingly, the defendant's motion for summary judgment dismissing Count I is granted.
The plaintiff also argues that he was eligible for FMLA leave upon expiration of his short-term disability leave pursuant to 29 C.F.R. § 825.110(d) because the defendant failed to inform him of his alleged ineligibility in a timely manner. 29 C.F.R. § 825.110(d) provides:
The determinations of whether an employee has worked for the employer for at least 1,250 hours in the past 12 months and has been employed by the employer for a total of at least 12 months must be made as of the date leave commences. If an employee notifies the employer of need for FMLA leave before the employee meets these eligibility criteria, the employer must either confirm the employee's eligibility based upon a projection that the employee will be eligible on the date leave would commence or must advise the employee when the eligibility requirement is met. If the employer confirms eligibility at the time the notice for leave is received, the employer may not subsequently challenge the employee's eligibility. In the latter case, if the employer does not advise the employee whether the employee is eligible as soon as practicable (i.e., two business days absent extenuating circumstances) after the date employee eligibility is determined, the employee will have satisfied the notice requirements and the notice of leave is considered current and outstanding until the employer does advise. If the employer fails to advise the employee whether the employee is eligible prior to the date the requested leave is to commence, the employee will be deemed eligible. The employer may not, then, deny the leave. Where the employee does not give notice of the need for leave more than two business days prior to commencing leave, the employee will be deemed to be eligible if the employer fails to advise the employee that the employee is not eligible within two business days of receiving the employee's notice.29 C.F.R. § 825.110(d). In this case, the plaintiff's leave for purposes of the FMLA commenced, at the latest, on August 15, 1997 when the plaintiff started his short-term disability leave. As discussed above, the plaintiff received the 12 weeks of leave to which he was entitled under the FMLA while he was on short-term disability leave and thus 29 C.F.R. § 825.110(d) does not entitle the plaintiff to additional leave because he already received his FMLA leave. See 29 U.S.C. § 2612(a)(1). To the extent that the plaintiff seeks to read 29 C.F.R. § 825.110(d) as requiring the defendant to provide more than the 12 weeks leave required by the FMLA, which the plaintiff received, the regulation would be invalid as applied to him for all of the reasons mentioned above with respect to 29 C.F.R. § 825.208 and 825.700. See also Brungart v. BellSouth Telecommunications, Inc., 231 F.3d 791, 797 (11th Cir. 2000), cert. denied, 69 U.S.L.W. 3619 (U.S. May 21, 2001) (No. 00-1383) (finding 29 C.F.R. § 825.110(d) invalid to the extent that it purported to extend the eligibility provisions of the FMLA to an otherwise ineligible employee who is not promptly notified after requesting leave that the employee is ineligible for such leave under the statute); Dormeyer v. Comercia Bank-Illinois, 223 F.3d 579, 582-83 (7th Cir. 2000)(same).
IV.
The defendant also moves for summary judgment dismissing Count II of the Second Amended Complaint on the ground that the FMLA does not create a private right of action for an employer's alleged failure to comply with its own employee policies. In Count II, the plaintiff contends that, even if he did not qualify for FMLA leave, pursuant to 29 C.F.R. § 825.700(a), he was entitled to 13 weeks of family medical leave upon expiration of his short-term disability leave under his employee benefit program.29 C.F.R. § 825.700(a) provides in relevant part that "[a]n employer must observe any employment benefit program or plan that provides greater family or medical leave rights to employees than the rights established by the FMLA." 29 C.F.R. § 825.700(a). The plaintiff argues that 29 C.F.R. § 825.700(a) is a reasonable interpretation of 29 U.S.C. § 2652(a), which provides that "[n]othing in [the FMLA] . . . shall be construed to diminish the obligation of an employer to comply with . . . any employment benefit program or plan that provides greater family or medical leave rights to employees than rights established under the (FMLA]." 29 U.S.C. § 2652(a). The plaintiff construes 29 C.F.R. § 825.700(a) to mean that when an employer has an employee benefit program that is more generous in providing leave than the FMLA, then the employee has a cause of action under the FMLA to enforce the terms of the employee benefit program if the employer deviates from such a program.
29 C.F.R. § 825.700(a), however, cannot be interpreted to give employees a federal cause of action under the FMLA to enforce employee benefit programs. See, e.g., Holmes v. E.Spire Communications, Inc., 135 F. Supp.2d 657, 666-67 (D. Md. 2001); Covey v. Methodist Hosp. of Dyersburgh, Inc., 56 F. Supp. 965, 971-72 (W.D. Tenn. 1999); Rich v. Delta Air Lines, Inc., 921 F. Supp. 767, 773-74 (N.D. Ga. 1996). As the court in Rich, explained:
The purpose of this regulation is to ensure that the FMLA is not interpreted to abrogate any currently existing employee-benefit plan. Therefore, if an employer has a plan or program more generous than the FMLA, then the FMLA will not supersede or reduce those more generous benefits which the employer has chosen to provide. In essence, the regulation is merely a truism which emphasizes that employers are legally bound by valid contractual agreements made with their employees regarding employment benefits. An employer's contractual obligations are distinct, however, from the regulation at issue and the FMLA itself.
Rich, 921 F. Supp at 773. Thus, the regulation does not purport to provide the plaintiff with a cause of action to enforce the terms of the defendant's employee benefit program and there is nothing in the FMLA itself that provides a federal cause of action against employers for violation of their own employee benefit plans.
Moreover, as discussed above, under the FMLA, 12 weeks of leave is both the minimum the employer must provide and the maximum that the FMLA requires. See, e.g., 218 F.3d at 937.
Accordingly, because 29 C.F.R. § 825.700(a) does not provide the plaintiff with a federal cause of action under the FMLA, the defendant's motion for summary judgment dismissing Count II is granted.
CONCLUSION
For the reasons explained above, the defendant's motion for summary judgment pursuant to Fed.R.Civ.P. 56 is granted. The Clerk of the Court is directed to enter judgment dismissing the Second Amended Complaint and closing this case.
SO ORDERED.