Penny Bachelder Mark Bachelder v. America West Airlines, Inc.
259 F.3d 1112, 2001 Daily Journal DAR 8373, 2001 Cal. Daily Op. Serv. 6809 (2001)
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Rule of Law:
An employer that fails to explicitly communicate its chosen FMLA leave year calculation method to employees must apply the method that provides the most beneficial outcome for the employee, and cannot use an employee's FMLA-protected leave as a negative factor in employment decisions.
Facts:
- Penny Bachelder began working for America West Airlines in 1988 and served as a passenger service supervisor from 1993 until her termination in 1996.
- In 1994, Bachelder took five weeks of medical leave for a broken toe, and in mid-1995, she took approximately three months of maternity leave; both were FMLA-protected.
- Bachelder also had several other sick absences in 1994 and 1995.
- On January 14, 1996, an America West manager had a 'corrective action discussion' with Bachelder about her attendance, noting her prior FMLA leaves and other sick days.
- In February 1996, Bachelder was absent from work for three weeks due to illness, during which she submitted two doctor's notes to America West.
- In early April 1996, Bachelder called in sick for one day to care for her ill baby.
- On April 9, 1996, America West fired Bachelder, citing 16 absences since mid-January, inadequate administration of the Employee of the Month program, and unsatisfactory on-time performance.
Procedural Posture:
- Penny Bachelder filed a lawsuit in federal district court, alleging America West Airlines impermissibly considered her FMLA-protected leave in its decision to terminate her.
- America West Airlines moved for partial summary judgment, arguing that Bachelder's 1996 absences were not FMLA-protected under the company's 'rolling' year calculation method.
- The district court granted America West's motion for partial summary judgment, ruling that none of Bachelder’s 1996 absences were protected by the FMLA.
- The district court found that a factual dispute remained as to whether America West had impermissibly considered Bachelder’s 1994 medical leave and her 1995 maternity leave (which were agreed to be FMLA-protected) in its decision to fire her.
- After finding that Bachelder had failed to timely request a jury trial, the district court submitted this remaining issue to a bench trial.
- Following the bench trial, the district court found that America West had not considered Bachelder’s 1994 and 1995 FMLA-protected leaves when making the firing decision and entered judgment in favor of America West.
- Bachelder appealed both the partial summary judgment ruling and the judgment following the bench trial to the United States Court of Appeals for the Ninth Circuit.
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Issue:
Does an employer violate the Family and Medical Leave Act (FMLA) by terminating an employee based in part on absences that would have been FMLA-protected under the method most favorable to the employee, where the employer failed to notify employees of its chosen FMLA leave year calculation method?
Opinions:
Majority - Berzon, Circuit Judge
Yes, an employer violates the FMLA by terminating an employee based in part on absences that would have been FMLA-protected under the method most favorable to the employee when the employer failed to notify employees of its chosen FMLA leave year calculation method. The court held that FMLA Section 2615(a)(1) prohibits employers from 'interfering with, restraining, or denying' the exercise of FMLA rights, a prohibition that, as explained in 29 C.F.R. § 825.220(c), encompasses an employer's consideration of FMLA-covered leave as a negative factor in employment decisions. This interpretation is reasonable, aligning with the National Labor Relations Act (NLRA) Section 8(a)(1) which prohibits employer actions that 'chill' employee participation in protected activities. The FMLA regulations offer employers four methods for calculating the 12-month period for FMLA leave (29 C.F.R. § 825.200(b)) but require employers to notify employees of their chosen method, particularly if they provide written guidance like an employee handbook (29 C.F.R. § 825.301(a)(1)). America West’s employee handbook merely stated that 'employees are entitled to up to twelve calendar weeks of unpaid [FMLA] leave within any twelve month period,' which simply parrots the statutory language and fails to inform employees of the specific calculation method chosen. Because America West failed to clearly select and communicate a calculating method, 29 C.F.R. § 825.200(e) dictates that 'the option that provides the most beneficial outcome for the employee' must be used. For Bachelder, the calendar year method was most favorable, making her February 1996 absences FMLA-protected. The employer's subjective belief at the time of termination regarding whether the leave was protected is immaterial to liability; the employer bears the responsibility to determine FMLA coverage. Furthermore, the McDonnell Douglas burden-shifting framework for anti-discrimination claims is inapplicable to FMLA interference claims; Bachelder only needed to prove by a preponderance of the evidence that her FMLA-protected leave was a negative factor in the termination decision. America West admitted considering her 1996 absences as a basis for her firing, which the court determined were, in fact, FMLA-protected.
Analysis:
This case significantly clarifies the FMLA's 'interference with rights' provision, distinguishing it from anti-retaliation claims by rejecting the application of the McDonnell Douglas burden-shifting framework. It establishes a robust employer duty to clearly and expressly communicate FMLA policies, especially the chosen method for calculating the 12-month leave period. By defaulting to the most employee-favorable calculation method when employers fail to provide adequate notice, the ruling places the onus of FMLA compliance firmly on employers and enhances employee protections against adverse employment actions based on protected leave. Future cases will likely emphasize the critical importance of clear and unambiguous communication in employee handbooks regarding FMLA leave year calculation methods.
