The opinion of the court was delivered by: Honorable Candy W. Dale Chief United States Magistrate Judge
AMENDED MEMORANDUM DECISION AND ORDER
The Court has before it the parties' motions for summary judgment filed on February 15, 2011. (Dkt. 25, 27.) The issue presented by both motions is whether Defendant Edmark Auto Inc. ("Edmark") is liable for damages under the Family Medical Leave Act for terminating Plaintiff Toni Siegel's ("Siegel") employment. Edmark filed its motion requesting summary judgment on the issue of liability and damages,*fn1 while Plaintiff Toni Siegel ("Siegel") requested partial summary judgment on the issue of liability and entitlement to liquidated damages under the Family Medical Leave Act, excluding general damages.
The Court conducted a hearing on July 27, 2011. Upon careful consideration of the parties' written submissions, oral arguments, and the evidence in the record, the Court will partially grant and partially deny both parties' motions, as explained in detail below.
Edmark employed Siegel as an Internet sales associate at its facility in Nampa, Idaho, beginning on April 16, 2007. (Siegel Depo. at 71, Dkt. 25-3; Nicholson Decl. Ex. G, Dkt. 29-7 at 30.) At the time Siegel was hired, she was not provided with a policy manual nor was she given one during the course of her employment. (Siegel Depo. at 71, Dkt. 25-3.) Laurel Finch, who primarily handled payroll for Edmark, was responsible for providing new employees with employment paperwork. Finch testified that she does not recall providing Siegel with a copy of Edmark's employee handbook, and did not locate a signed acknowledgment of receipt of the handbook in Siegel's personnel file. (Finch Depo. at 9, 17--18, Dkt. 25-6.)
During the first week of September 2008, Siegel learned her father, who was living in Florida, was diagnosed with cancer. (Siegel Depo. at 112--113, Dkt. 25-3.)*fn3 Siegel decided to travel to Florida to facilitate a move of her father to Boise, but did not know what date she would be leaving because her father's oxygen needed to be ready for travel. (Siegel Depo. at 115.) On or about September 13, 2008, Siegel notified her supervisor, Gene Tilby ("Tilby"), she needed time off from work to travel to Florida and transport her father to Idaho so she could manage his care. (Siegel Depo. at 113--115.) Tilby recalls Siegel mentioned to him about one week prior to September 17, 2008, that her father was "very ill in Florida," and she needed time off from work to bring her father to Idaho. (Tilby Depo. at 41--44, Dkt. 25-5.) Siegel left work at noon on September 17, 2008. (Siegel Depo. at 114.)
On Thursday, September 18, 2008, Tilby e-mailed Laurel Finch that Siegel had left the day before at noon "to take care of some things for her ailing father" and would be returning to work on Monday, September 22, 2008. (Tilby Depo. at 45, Ex. 5, Dkt. 25-5.) Tilby indicated that, any time an employee took time away from work, he notified Laurel Finch because Finch handled payroll. (Tilby Depo. at 45, Dkt. 25-5.) Tilby did not inquire further of Siegel regarding her father's illness, nor did he provide Siegel any paperwork related to the FMLA. (Tilby Depo. at 43--44, 48--49, Dkt. 25-5.) Upon receiving Tilby's e-mail, Laurel Finch did not ask any follow-up questions of Tilby or Siegel and did not determine what illness Siegel's father suffered from, nor did she forward the e-mail to any other Edmark employee to discuss a need for Siegel to take leave under the FMLA. (Finch Depo. at 20--21, Dkt 25-6.)
Siegel returned to work on Monday, September 22, 2008. (Siegel Depo. at 115--116.) On that same date, Tilby and Siegel agreed that Siegel would work additional hours to make up for the hours she had missed the previous week, and agreed to a written schedule that Siegel signed on September 22, 2008. (Siegel Depo. at 116, Dkt. 25-3; Ex. 1, Dkt. 25-3; Tilby Depo. at 47--48, 53--56, Dkt. 25-5.) However, on the afternoon of September 22, 2008, Siegel's father was admitted to a Boise hospital emergency room and later to its intensive care unit. (Siegel Depo. at 116, 121--126, Dkt. 25-3.) Siegel left work when she received the news. (Siegel Depo. at 121, Dkt. 25-3.)
Siegel later informed Tilby of her absence, and on either Tuesday, September 23, or Wednesday, September 24, 2008, she informed Tilby that, rather than making up her prior absences, she would agree to have her pay reduced. (Siegel Depo. at 116--120.)
While her father was in the hospital, Siegel spent every day at the hospital with her father talking with his physicians, drafting his will and testament, power of attorney, and other documents to manage his care, and providing emotional support to her father because he was "scared." (Siegel Depo. at 122--23.) On Thursday, October 2, 2008, Siegel was scheduled to work at Edmark, and she attempted to call Tilby to let him know she was still at the hospital with her father. (Siegel Depo. at 129.) Siegel was unable to reach Tilby, so she called her husband, Jeff Siegel, and asked him to try to reach Tilby to let him know she would be absent both October 2 and 3. (Siegel Depo. at 130.) Siegel's husband spoke to Tilby's secretary on the afternoon of October 2, 2008, and after being informed Tilby was not in his office, asked to speak with another supervisor, John Chalfant ("Chalfant"). (Jeff Siegel Depo. at 6, Dkt. 24-5.) Jeff Siegel spoke to Chalfant and explained that Siegel was with her father at the hospital and would be absent from work on Friday and Saturday, October 3 and 4, 2008. (Jeff Siegel Depo. at 5--6, Dkt. 25-4.)
Tilby confirmed in deposition testimony that he did not have any communications with either Siegel or her husband on October 2, 2008, about Siegel's absence. (Tilby Depo. at 65--66, Dkt. 25-5.) Instead, Tilby learned from a co-worker on either October 2 or 3, 2008, that Siegel had called when she was in the emergency room with her father. (Tilby Depo. at 67--68, Dkt. 25-5.) Tilby does not recall speaking with Chalfant, who was Tilby's boss, about Siegel's absences on either of these dates. (Tilby Depo. at 69--72, Dkt. 25-5.)
Siegel's father was discharged from the Boise hospital during the late afternoon of Friday, October 3, 2008. (Siegel Depo. at 120, 127.) Because her father required 24-hour care, Siegel made arrangements at a nursing home and on the afternoon of October 3, 2008, Siegel assisted her father with his move from the hospital to the nursing home. (Siegel Depo. at 127--28.) Siegel attempted to call Tilby on October 3, 2008, to let him know she would not be at work, and when she was unable to speak to him she spoke to a fellow employee, Carolyn, and gave Carolyn an update as to what was happening with Siegel's father. (Siegel Depo. at 131.) Siegel spent Saturday, October 4 and Sunday, October 5, 2008, with her father getting him settled and reassuring him that she would not leave him at the nursing home alone. (Siegel Depo. at 128.)
Siegel returned to work on Monday, October 6, 2008. (Siegel Depo. at 128.) However, she arrived late to work because she did not wake to her alarm. (Siegel Depo. at 129.) Siegel attempted that morning to call Tilby, but was unable to speak to him until she had already arrived to the parking lot at Edmark. (Siegel Depo. at 129, 134--35.) Tilby documented that Siegel called at approximately 8:21 a.m. and arrived at 8:45 a.m. (Tilby Depo. Ex. 7, Dkt. 25-5.) Later that afternoon, Siegel met with Tilby and Chalfant, and during that meeting, Edmark terminated Siegel's employment. (Siegel Depo. at 136.)
Prior to the meeting on the afternoon of October 6, 2008, and after Siegel had returned from Florida, Tilby met with Chalfant to discuss Tilby's "frustrations with [Siegel] not contacting - or staying in contact with me and letting me know where she was at and why she wasn't showing up for her shift." (Tilby Depo. at 73--75; See also Tilby Depo. at 90--91, Dkt. 25-5.) During the week prior to October 6, 2008, Tilby had no intention of terminating Siegel's employment. (Tilby Depo. at 98, Dkt. 25-5.) In response to Siegel's claim for unemployment benefits, Tilby represented to the Department of Labor that Siegel's employment was terminated because she called in late on October 6, 2008, after three days absence with "no notification or not proper notification." (Tilby Depo. at 102--103, Ex. 8, Dkt. 25-5.) Tilby explained that the proper procedure would have been for Siegel to notify Tilby directly about her absences, or leave him a message on his voice mail. (Tilby Depo. at 103--104, Ex. 10, Dkt. 25-5.)
Tilby and Chalfant drafted a document reflecting the events of the termination meeting that occurred with Siegel on the afternoon of October 6, 2008, which indicated that she was discharged from employment due to "irreconcilable differences that could not be overcome," and also because of "frustration about the lack of communication when she was gone. Did not let us know what was happening." (Tilby Depo. Ex. 9, Dkt. 25-5.)
Tilby did not have much understanding of the Family Medical Leave Act, and did not have any discussions with Laurel Finch, whom he regarded as having knowledge about the FMLA, concerning whether Edmark should provide Siegel paperwork related to the Act. (Tilby Depo. at 48--49, Dkt. 25-5.) Tilby indicated that, because he did not understand all of the rules of FMLA, he would not have discussed those issues with Siegel and he "would have just referred any of that back to Laurel." (Tilby Depo. at 50, Dkt. 25-5.) Laurel Finch, however, testified that Carol Squibb, another Edmark employee, handled requests for leave, including FMLA paperwork, but that there was no document that an employee could reference that would indicate Carol was the person to contact for FMLA leave. (Finch Depo. at 19, Dkt. 25-6.)
Edmark admitted that Carol Squibb ("Squibb") did not provide Siegel with any paperwork related to the FMLA during either September or October of 2008, nor did Squibb inquire or obtain information from Siegel about the health condition of Siegel's father or Siegel's need to care for him. (Nicholson Decl. Ex. A, Dkt. 29-1.) Siegel testified she was never requested to provide medical certification with respect to her father's condition, or provided paperwork to complete related to the FMLA. (Siegel Depo. at 148--149, Dkt. 29-3.) Edmark did, however, have a general poster regarding the FMLA in the break room at its main dealership building. (Chalfant Depo. at 24, Dkt. 29-5; Finch Depo. at 28--29, Dkt. 29-6.)
After Siegel's employment was terminated, Siegel cared for her father until his death in December of 2008. (Aff. of Def.'s Counsel Ex. 6, Dkt. 25-8.) Siegel began dental assistant school in April of 2009, and completed her certification in January of 2010. (Id.) Siegel did not look for work until she graduated from the dental assistant program. (Def.'s Statement of Facts ¶ 7; Aff. of Def.'s Counsel Ex. 6.) Siegel was unable to find a position in the dental assistant field. (Aff. of Def.'s Counsel Ex. 7, Dkt. 25-9.)
Siegel's earning capacity was evaluated by two experts. Plaintiff's expert, Nancy Collins, explained that Siegel's employment was terminated during a significant recession. (Aff. of Def.'s Counsel Ex. 8, Dkt. 25-10.) In Collins's opinion, as a result of the economy and high unemployment, it was "not probable she would have been able to replace [her] wage after termination. Even with additional training, she will likely not earn at the $40,000 wage range for a number of years." (Aff. of Def.'s Counsel Ex. 8, Dkt. 25-10.) On the other hand, Defendant's expert Douglas Crum was of the opinion that Siegel's failure to perform a job search that included her best set of skills and experience, which was in sales, was "unreasonable from a vocational rehabilitative standpoint. By not pursuing job openings in that milieu, she has not demonstrated that she could not restore the earning capacity that she had at Edmark Auto, Inc." (Decl. of Crum, Dkt. 26.) Mr. Crum identified job openings for automotive sales representatives during the period Siegel was unemployed, although none were internet sales positions. (Decl. of Crum, Dkt. 26; Decl. of Nicholson, Ex. A, Crum Depo. at 38--41, 50--53, Dkt. 36-1.)
1. Summary Judgment Standards
Motions for summary judgment are governed by Rule 56 of the Federal Rules of Civil Procedure. Rule 56 provides, in pertinent part, that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion." Fed. R. Civ. P. 56(a).*fn4 "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1).
The party moving for summary judgment has the initial burden of showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, 477 U.S. 242, 247-48 (1986). Once the moving party has met this initial burden, the nonmoving party has the burden of presenting evidence to show that a genuine issue of fact remains. The party opposing the motion for summary judgment may not rest upon the mere allegations or denials of her pleading, but must set forth specific facts showing that there is a genuine issue for trial. Id. at 248. If the non-moving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial" then summary judgment is proper as "there can be no 'genuine issue of material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).*fn5
Moreover, under Rule 56, it is clear that an issue, in order to preclude entry of summary judgment, must be both "material" and "genuine." An issue is "material" if it affects the outcome of the litigation. Before it may be considered "genuine," an issue must be established by "sufficient evidence supporting the claimed factual dispute . . . to require a jury or judge to resolve the parties' differing versions of the truth at trial." Hahn v. Sargent, 523 F.3d 461, 464 (1st Cir. 1975) (quoting First Nat'l Bank v. Cities Serv. Co. Inc., 391 U.S. 253, 289 (1968)). The Ninth Circuit cases are in accord. See, e.g., British Motor Car Distrib. v. San Francisco Automotive Indus. Welfare Fund, 883 F.2d 371 (9th Cir. 1989).
To withstand a motion for summary judgment, a party (1) must make a showing sufficient to establish a genuine issue of fact with respect to any element for which it bears the burden of proof; (2) must show that there is an issue that may reasonably be resolved in favor of either party; and (3) must come forward with more persuasive evidence than would otherwise be necessary when the factual context makes the non-moving party's claim implausible. Id. at 374 (citation omitted). When applying the above standard, the Court must view all of the evidence in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255; Hughes v. United States, 953 F.2d 531, 541 (9th Cir. 1992).
In the instant case, the parties have filed cross-motions for summary judgment on the issue of liability under the Family Medical Leave Act. "The filing of cross-motions for summary judgment, both parties asserting that there are no uncontested issues of material fact, does not vitiate the court's responsibility to determine whether disputed issues of material fact are present." Fair Housing Council of Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001). The Court has an obligation to independently review each cross-motion and its supporting evidence to determine if a genuine issue of material fact is in dispute. Fair Housing Council, 249 F.3d at 1137.
Congress enacted the FMLA in response to growing concerns about
security for employees who have serious health conditions that prevent
them from working for temporary periods of time. Scamihorn v. General
Truck Drivers, 282 F.3d 1078, 1082 (9th Cir.2002). It is an expressed
purpose of the statute to "entitle employees to take reasonable leave
for medical reasons . . . in a manner that accommodates the legitimate
interests of employers." 29 U.S.C. § 2601(b)(2)-(3) (2008);*fn6
see also Bachelder v. Am. West Airlines, Inc., 259 F.3d 1112, 1120 (9th
Cir.2001)(describing the purpose of the FMLA to "balance the demands
of the workplace with the needs of employees to take leave for
eligible medical conditions"). The FMLA does not replace traditional
employer-established sick and personal leave policies; rather, it
provides leave for uncommon and often stressful events such as caring
for a family member with a serious health condition. See, e.g.,
Scamihorn, 282 F.3d at 1082.
To effect this purpose, the FMLA guarantees an "eligible employee" twelve work weeks of leave each year "[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). The FMLA further provides that the taking of such leave "shall not result in the loss of any employment benefit accrued prior to the date on which the leave commenced." Id. § 2614(a)(2). An employee may sue to recover damages or equitable relief when her employer "interfere[s] with, restrain[s], or den[ies] the exercise or attempt to exercise" the rights guaranteed by the statute. Id. §§ 2615(a)(1), 2617(a)(2).
The FMLA places affirmative obligations on employers to notify employees of their rights and obligations under the Act, 29 U.S.C. § 2619; provide up to twelve weeks of unpaid leave to employees who qualify and provide sufficient notice to their employers, 29 U.S.C. § 2612; refrain from disciplining employees for taking leave covered by FMLA, 29 U.S.C. § 2615; reinstate employees to the same or equivalent job after their leave, 29 U.S.C. § 2614(a); and continue the employees' health care benefits during their absence. 29 U.S.C. § 2614(c).
Additionally, the right to FMLA leave includes the right to absences on an intermittent basis. 29 U.S.C. § 2612(b)(1); 29 C.F.R. § 825.203.*fn7 Employees may take leave in any size increments and employers may account for the leave in the shortest period of time the payroll system uses to calculate absences. 29 C.F.R. § 825.203(d).
Count One of Siegel's Complaint alleges violation of the FMLA. Accordingly, the motions for summary judgment require an analysis of whether Siegel was entitled to leave on the dates in question. Siegel must show that she was an eligible employee; that her father had a serious heath condition which required her care; and that she properly notified Edmark of her need for leave.
A. Siegel Was An Eligible Employee
29 U.S.C. § 2611 defines an "eligible employee" as an employee who has worked for the employer for at least 1,250 hours during the 12-month period immediately preceding the start of the leave, has worked for the employer for at least twelve months, and the company at which the employee works employs fifty or more people ...