Coutard v. Municipal Credit Union, No. 15-1113 (2d Cir. Feb. 9, 2017)

By Paul Mollica

The Family and Medical Leave Act (FMLA) provides that eligible employees may be entitled to leave to care for relatives with whom they had an in loco parentis relationship as a child. The Second Circuit holds that where the plaintiff requested leave to care for a sick grandparent, who raised him has a child, the employer had a duty to inquire further about the relationship before denying leave.

Coutard v. Municipal Credit Union, No. 15-1113 (2d Cir. Feb. 9, 2017): plaintiff Coutard “sought leave under the FMLA to care for his grandfather Jean Manesson Dumond. According to Coutard, Dumond had raised Coutard as his son from before the age of four, after Coutard’s father died, until Coutard was approximately 14.”

Dumond was sent to the hospital, and Coutard request leave to take care of him until home-health care could be arranged. Under the FMLA, “family” includes a grandparent who stood in loco parentis to the employee when the employee was a child under the age of 18. See 29 U.S.C. §§ 2612(a)(1)(C), 2611(7), 2611(12)(A). But the employer “MCU informed Coutard that he could not take FMLA leave to care for his grandfather, because the statute does not apply to grandparents . . . .” Coutard stayed away from work anyway and was fired.

The crux of the case is Coutard’s argument that “he would have informed MCU about the in loco parentis relationship with his grandfather had he been asked or had he known of [the relevant] FMLA provisions,” but was not. “In response, MCU took the position that it was not obligated to inform employees affirmatively of the FMLA’s coverage of in loco parentis relationships.”

Both sides moved for summary judgment, and the district court ruled for MCU, holding that it’s the employee’s burden to notify the employer of all of the facts relevant to determining eligibility “at or before the time he requests leave.” Because Coutard failed to lay out the in loco parentis relationship, he and not the hospital was at fault.

The Second Circuit vacates. It begins by setting straight the district court’s error of law. Under the DOL regulations in effect when Coutard requested FMLA leave from MCU, the burden was clearly on the employer to request missing information. See 29 C.F.R. § 825.303(b): “When an employee seeks leave for the first time for a FMLA-qualifying reason, the employee need not expressly assert rights under the FMLA or even mention the FMLA. . . . The employer will be expected to obtain any addition al required information through informal means.” See also id. § 825.302(c) (with respect to foreseeable needs, “the employer should inquire further of the employee if it is necessary to have more information about whether FMLA leave is being sought”).

Moreover, the DOL notices (required to be posted, in some version, in covered workplaces) underscore that employers “must” inform employees “both (a) that they need provide only sufficient information to show that the requested leave reasonably ‘may’ be FMLA-qualifying, and (b) that if an eligible employee provides such information and the employer needs addition al information it is the employer’s responsibility to seek such addition al information. 29 C.F.R. pt. 825, App’x C.”

Accordingly, “[t]here can be no serious question that an employee’s request for leave to care for his seriously ill grandfather seeks leave that “may” qualify for FMLA protection.” The panel also rejects alternative arguments that the plaintiff failed to provide certification that Dumond had a serious health condition and that he supposedly failed to mitigate damages.

In the end, though, the panel does not enter a judgment for the plaintiff because it finds genuine disputes of material fact. “[I]n addition to the unresolved issue of whether the state of Dumond’s health met FMLA standards, MCU did not in fact concede the truth of Coutard’s assertions that Dumond had raised him in loco parentis …. A jury would not be compelled to accept such testimony by Coutard; his credibility is a matter for assessment by the factfinder; and his childhood relationship with Dumond remains one of the issues for trial.”