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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON Case No. 99cv1262 ALLEN vs. THE BOEING COMPANY Defendant’s Reply Brief In Support Of Motion For Summary Judgment I. SUMMARY OF REPLY Boeing has moved for summary judgment because, for two independent reasons, Larry Dale Allen’s absences from work from May 10 to 14, 1999, were not covered by FMLA leave. First, Allen was absent from work on May 10 to 14 for bereavement purposes — after he had already exhausted the standard paid bereavement leave available under the union contract — but this is not a covered absence under the FMLA. Second, Allen indisputably failed to inform Boeing of any FMLA-qualifying reason for his May 10 to 14 absences. Nothing in Allen’s Response in Opposition to Defendant’s Motion for Summary Judgment (“Plaintiffs Response”) undermines either of Boeing’s bases for summary judgment. Concerning Boeing’s first argument for summary judgment (that the FMLA does not cover bereavement), Allen contends that FMLA is available for bereavement; however, he offers no authorities supporting this view or any reason why this Court should disregard the many authorities uniformly holding that bereavement is not a basis for FMLA leave. In the alternative, Allen continues to assert, as he did in his Complaint, that he in fact had gout from May 10 to 14 and that this — rather than bereavement — was the reason for his May 10 to 14 absences. Despite this factual contention, Allen can point to nothing in the record supporting his bare assertion of gout, and there is much in the record contradicting his claim of gout. Allen’s wholly unsupported assertion of gout does not create a genuine issue of fact on his eligibility for FMLA leave during the May 10 to 14 period. Concerning Boeing’s second argument for summary judgment (no notice to Boeing of an FMLA-qualifying reason for the absences), Allen concedes that he never mentioned gout or any other medical reason for his May 10 to 14 absences to Boeing. Allen argues that, (1) before the May 10 to 14 absences at issue here, he did inform Boeing that his father had passed away and that he, Allen, would be gone from work as a result, and (2) Boeing had a duty under the FMLA to post warnings to employees that they cannot use FMLA leave to extend their bereavement leave beyond the standard paid bereavement leave benefit. As a matter of law, Boeing had no such duty. Moreover, Allen’s “duty to warn” argument is a red herring. The crucial point is that, regardless of whatever FMLA information Boeing did or did not provide to Allen, he requested FMLA leave on the — apparently truthful — basis that he had been gone from work during the period May 10 to 14 because his father had passed away and to assist with funeral arrangements and estate matters; it was only long after the fact that the gout explanation for the May 10 to 14 absences surfaced. Boeing did not violate the FMLA by denying FMLA leave to Allen when he advanced to Boeing a non-qualifying reason (bereavement) for the leave. II. UNDISPUTED FACTS In the wake of Plaintiffs Response, the following key facts are undisputed: a. Allen never called Boeing during his May 10 to 14 absences. Plaintiffs Response at 9 (Allen acknowledges that the only time he called Boeing in the May 1999 time period was May 5). b. Allen did not go to the doctor during his May 10 to 14 absences. When Allen did go to the doctor later in May, he never mentioned a gout episode earlier in the month. Schroder Dep. 1 at 19, Ex. 4 (unrebutted in Plaintiffs Response). [FOOTNOTE 1] c. Allen was active during his May 10 to 14 absences chauffeuring his mother and assisting with funeral arrangements and estate matters. Plaintiffs Response at 5 (‘During this time [May 10 to 14][,] the plaintiff performed chauffeur services for his mother and assisted with funeral arrangements.”). d. The only reason Allen offered to Boeing for his May 10 to 14 absences was bereavement and the need to assist his mother with funeral arrangements and related matters. Id. at 9-10. e. Allen never mentioned gout or any other medical reason for his May 10 to 14 absences to Boeing. Plaintiffs Response at 11-12 (Allen acknowledges that he did not mention gout to Boeing, but contends that Boeing management was not “in any mood to listen”). f. When Allen’s doctor purported to excuse Allen’s May 10 to 14 absences by signing an FMLA Medical Certification Form nearly two months after the fact, it was based on bereavement, not gout. Plaintiffs Response at 11 (“Even the plaintiffs physician, Dr. Schroder, did not know that bereavement or ‘grief reaction’ was not an FMLA qualifying serious health condition.”). These undisputed facts compel summary judgment, as described in more detail below. III. ARGUMENT A. ALLEN WAS NOT ENTITLED TO FMLA LEAVE FOR HIS MAY 10 TO 14 ABSENCES Boeing argued in its Memorandum in Support of Defendants Motion for Summary Judgment (“Memo. in Support”), at 7-11, that the actual reason for Allen’s May 10 to 14 absences was bereavement, not gout, and that federal courts have uniformly held that bereavement is not a basis for FMLA leave. Although it is not entirely clear from Plaintiffs Response, Allen apparently takes issue with both (1) the legal premise that FMLA leave is unavailable for bereavement and (2) the assertion that there is no genuine issue of fact that Allen took time off from work from May 10 to 14 as an extended bereavement leave. Each of these points will be addressed in turn. 1. ALIEN OFFERS NO AUTHORITY THAT BEREAVEMENT IS A BASIS FOR FMLA LEAVE Allen acknowledges the numerous authorities cited by Boeing for the proposition that bereavement is not a basis for FMLA leave. Plaintiffs Response at 2-3. Allen then half- heartedly argues that, despite these authorities, bereavement is — or should be — a basis for FMLA leave, noting that the cases cited by Boeing “are not binding upon this Court” and that the FMLA is a remedial statute that should be interpreted broadly. [FOOTNOTE 2]Id. at 3. Allen provides no authorities contrary to the authorities cited by Boeing and he fails to offer any analysis of the statutory language of the FMLA that would support the view that Congress intended FMLA leave to cover a bereavement period. The cases cited by Boeing in its Memo. in Support at 8, for the proposition that bereavement is not a basis for FMLA leave, Lange v. Showbiz Pizza Time. Inc., 12 F. Supp. 2d 1150, 1154 (D. Kan. 1998), Fisher v. State Farm Mut. Auto. Ins. Co., 999 F. Supp. 866, 869 (E.D. Tex. 1998), affd without op., 176 F.3d 479 (5th Cir. 1999), Beal v. Rubbermaid Comm’l Prods. Inc., 972 F. Supp. 1216, 1226 (S.D. Iowa 1997), affd without op., 1998 U.S. App. LEXIS 9265 (8th Cir. 1998), and Brown v. J.C. Penney Corp., 924 F. Supp. 1158, 1161 (S.D. Fla. 1996), indeed are not from this district and, of course, are not controlling precedent on this Court. However, to the knowledge of Boeing’s counsel, there are no published court decisions — controlling or otherwise — supporting Allen’s view that bereavement is a proper basis for FMLA leave, and Allen cites none. Lange, Fisher, Beal, and Brown are based on a convincing analysis of the text of the FMLA. Bereavement is not a qualifying basis for FMLA leave because it involves neither the employee having a “serious health condition” as that term is used under the FMLA, nor the employee caring for a family member with a “serious health condition.” As the Brown court noted, “if Congress wanted to ensure that employees on FMLA leave could take additional time off after a family member died from a serious health condition, it easily could have said so in the statute.” 924 F. Supp. at 1162. In fact, Congress chose not to include bereavement as a basis for FMLA leave. Allen’s argument to the contrary must be rejected. 2. ALIEN HAS FAILED TO CREATE A GENUINE ISSUE OF FACT THAT HE ACTUALLY HAD GOUT FROM MAY 10 TO 14 Boeing argued in its Memo. in Support, at 8-11, that Allen’s bare assertion that he suffered from gout during the period May 10 to 14 is contradicted by the record and that federal courts have consistently held that a plaintiffs own, uncorroborated assertion that he or she suffered from a serious health condition is insufficient to establish eligibility for FMLA leave or to survive summary judgment. In Plaintiffs Response at 4, Allen repeats the assertion in his Complaint that he had gout from May 10 to 14, but utterly fails to address the contrary evidence in the record. In particular, Allen fails to address the undisputed facts that (a) he did not go to the doctor during the May 10 to 14 period (although he had previously gone to the doctor for gout and acknowledges that effective treatments are available) and (b) when he did go to his doctor on May 25, he said nothing about currently having gout or about just having recovered from gout. In sum, there is no medical evidence that Allen had gout from May 10 to 14; indeed, all available medical evidence indicates he did not have gout in May 1999. Allen concedes that he was actively assisting his mother with funeral arrangements and estate matters during the May 10 to 14 time period, but nonetheless argues that he was incapacitated by gout during this period. Plaintiffs Response at 5. Allen has submitted a declaration providing a lengthy description of his job duties, and he offers the conclusory assertion that his supposed May 10 to 14 gout occurrence prevented him from performing those job duties. Id. at 5. Allen’s declaration falls far short of establishing that Allen had an incapacitating health condition from May 10 to 14, particularly in light of medical evidence that fails to show he was even sick. In one of the most recent decisions under the FMLA, the court, in dismissing an FMLA claim, stated: Bell [the plaintiff] cannot establish that he was “incapacitated” as prescribed under the FMLA’s definition of “serious health condition” …. While he claims that he was unable to do anything, Bell’s own statement is not enough to establish he was incapacitated: Bell must provide evidence from a medical professional or health care provider that he was unable to work. Bell v. Jewel Food Store, 83 F. Supp. 2d 951, 959 (N.D. III. 2000) (emphasis supplied). The same principle applies here: Allen’s own statement is insufficient and he must provide medical evidence. B. IT REMAINS UNDISPUTED THAT ALLEN DID NOT ADEQUATELY OR TIMELY REQUEST FMLA LEAVE FOR HIS MAY 10 TO 14 ABSENCES In Plaintiffs Response, Allen has not disputed that he never mentioned — to Boeing — gout or any other medical reason for his May 10 to 14 absences. This is unsurprising, given Allen’s unambiguous deposition testimony and unemployment hearing testimony that he told Boeing nothing more about his May 10 to 14 absences than that his father had passed away and that his mother needed assistance with funeral arrangements. Boeing’s Memo. in Support at 15-16. Allen admits that Boeing informed all Everett plant employees, such as Allen, that they “should state clearly the reasons for absence” within two days of returning to work in order to request FMLA leave. Plaintiffs Response at 11. His only explanation for failing to inform Boeing of his supposed gout situation was that Boeing managers and human resources employees were not “in any mood to listen to the plaintiff” Id. Allen cites no authority for the proposition that an employee may elect to not tell his employer of an FMLA-qualifying reason for an absence, simply because the employee decides that the employer is not in a “mood to listen,” yet still be entitled to FMLA leave for the absence. Allen’s concession that he never stated to Boeing a qualifying reason for FMLA leave for his May 10 to 14 absences is dispositive to his lawsuit. The critical legal question is “whether the information imparted to the employer is sufficient to reasonably apprise it of the employee’s request to take time off for a serious health condition.” Brohm v. ill Properties. Inc., 149 F.3d 517, 523 (6th Cir. 1998) (quotation omitted); accord Seaman v. CSPH. Inc., 179 F.3d 297, 302 (5th Cir. 1999); Satterfield v Wal-Mart Stores. Inc., 135 F.3d 973, 977 (5th Cir. 1998); Manuel v. Westlake Polymers Corp., 66 F.3d 758, 764 (5th Cir. 1995). The undisputed fact is that Allen only mentioned an extended bereavement leave and assisting his mother with funeral arrangement as reasons for his May 10 to 14 absences, which plainly did not serve to apprise Boeing that Allen had taken time off for an alleged serious health condition. Addressing the same situation, the Fifth Circuit ruled that where the employee’s only stated reason for time off from work “was the desire to settle his father’s estate,” the employee “did not sufficiently inform [the employer] of an FMLA-qualifying reason for leave and his claim must fail.” Seaman, 179 F.3d at 302. C. BOEING HAD NO DUTY TO WARN ALLEN THAT FMLA LEAVE DOES NOT COVER BEREAVEMENT Perhaps to divert attention from Allen’s fatal admission that he never gave notice to Boeing that he had been absent for an FMLA-qualifying reason, Allen argues that Boeing “failed to post adequate warning to employees that FMLA leave is not available for bereavement.” Plaintiffs Response at 10. Allen further argues that, under 29 U.S.C. � 2619 and 29 C.F.R. � � 825.300 and 825.30 1, this alleged failure to warn by Boeing means Boeing cannot take any “adverse action” against Allen, including termination of his employment. Plaintiffs Response at 10, 12. Allen grossly misconstrues applicable law on the employer’s duty under the FMLA to provide information to employees. Under the FMLA regulations, Boeing must post “a notice to employees explaining [the FMLA's] provisions and providing information concerning the procedures for filing complaints of violations of the act with the Wage and Hour Division.” 29 C.F.R. � 825.300(a). The U.S. Department of Labor (“DOL”) provides a model poster that employers may use to satisfy the requirements of 29 C.F.R. � 825.300(a). 114. The DOL model poster, a copy of which is attached hereto, states generally the reasons why employees may take FMLA leave, but does not specifically address the issue of using FMLA leave for bereavement. Allen has not alleged that Boeing failed to post the DOL model poster or its equivalent, and Allen has no basis for arguing that Boeing was required to post more detailed information about the FMLA than is contained in the DOL model poster. IV. CONCLUSION As a matter of law, Boeing is entitled to judgment dismissing Allen’s Complaint. There is no genuine issue of fact that Allen was absent from work from May 10 to 14 as an extended bereavement leave, and courts have uniformly held that bereavement is not a basis for FMLA leave. Alternatively, even if Allen in fact had been absent from May 10 to 14 for a potentially FMLA-qualifying reason, such as gout or some other health condition, it is undisputed that he never mentioned such a reason for his absences to Boeing, and this in itself dooms his FMLA claim. Boeing respectfully requests that the Court grant its motion for summary judgment. FOOTNOTES FN1Relevant excerpts of the transcript of the deposition of Derek Schroder are attached as Exhibit B to the Declaration of Paul E. Smith in Support of Defendant’s Motion for Summary Judgment, filed herein on March 30, 2000. FN2Allen’s only support for his argument that the FMLA is a remedial statute and must be broadly interpreted is a court decision analyzing a wholly separate and unrelated statute, the Fair Labor Standards Act. Plaintiffs Response at 3. Signature:PAUL E. SMITH PERKINS COIE LLP � 2001 Juritas.com. All Rights Reserved.

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