By Kathleen Kapusta, J.D.
A corrections department employee’s testimony that chronic understaffing prohibited him from eating in the employee lunchroom and forced him to eat in one of the rooms where inmates congregated created a fact issue as to whether his lunch breaks were spent predominantly benefitting his employer, found a federal district court in Illinois. Rejecting the employer’s assertion that even if he did work through his lunch, that time should not count as work time because it did not have actual or constructive knowledge of this, the court found fact issues existed as to whether the employee was eligible for FMLA leave for several absences that were deemed unauthorized and that led to his termination (Caggiano v. Illinois Department of Corrections
, January 29, 2016, Gettleman, R.).
In 2011 and 2012, the employee was scheduled to work from 11 p.m. to 7 a.m. with a 30-minute lunch break. In 2011, he took leave to care for his seriously ill mother. Believing that he had exhausted his 60 days of leave by December 7, the employer granted him Family Responsibility Leave until December 20.
In 2012, the employee did not report to work April 7 through April 12 because he was taking care of his mother. Although he subsequently requested FMLA protection for these dates, he was told he did not meet the yearly 1,250-requirement until April 15; thus his request was denied. Ultimately terminated for unauthorized absences, he sued alleging unlawful interference with his FMLA rights.
No lunch breaks.
Defending against the employer’s summary judgment motion, the employee argued that even though he was scheduled to work seven and a half hours a day, he actually worked eight hours a day because the third shift was so understaffed he was not “relieved at lunch,” not able to “leave the premises,” not able to “eat in the lunchroom,” and always “ate on duty in the dayroom with inmates.” Thus, he contended, a reasonable jury could find that by April 7, 2012, he was an FMLA eligible employee because he had worked 1,299 hours and his employer had actual or constructive knowledge of this. The court agreed.
The employer submitted an affidavit from the employee’s supervisor, in which he attested to never observing, ordering, or requiring him to work through his lunch break from April 2011 through April 2012; an affidavit from the superintendent/center supervisor, in which he attested he would have approved an employee’s overtime request if the employee worked through his lunch; the employee’s time sheets for April 2011 through April 2012, which showed he never claimed to have worked through any of his lunches; and his payroll records to demonstrate that he never requested overtime pay. For his part, the employee testified at his deposition that because of understaffing, staff members on his shift were unable to take their scheduled half-hour breaks and their various responsibilities prohibited him eating in the lunchroom. While the employer argued that his deposition testimony was self-serving, the court found that pursuant to Seventh Circuit precedent, his testimony was sufficient to create a material fact issue.
As to the employer’s contention that even if the employee worked through his lunch, that time should not count as work time because it “did not have actual or constructive knowledge” of him working through his breaks, the court found that the regulation it relied on, 29 C.F.R. §785.11, did not impose an affirmative duty on the employee to establish the employer’s knowledge. Rather, it provides that unrequested work is work time if the employer “suffer[s] or permit[s]” the work and “knows or has reason to believe that [the employee] is continuing to work.” Observing that on summary judgment a court may not conduct this type of fact-intensive inquiry but must determine only whether there is a genuine issue of material fact, the court here determined that regardless of what knowledge was required, there was a fact issue as to whether “it was not a secret” that the employee worked through his lunch breaks.
Finally, the court rejected the employer’s argument that even if the employee was FMLA eligible, he exhausted his leave prior to April 7, 2012. Pointing out that the employer did not submit any evidence establishing that it clearly articulated to its employees when the 12-month period for calculating FMLA leave began, the court found that the record showed he had not exhausted his FMLA leave by April 7. While the employer asserted that he exhausted his leave by taking leave from “October of 2011 to December of 2011,” the court note that to accurately calculate an employee’s remaining FMLA leave requires a specificity in dates that “October of 2011 to December of 2011” does not provide. Noting that it is 10 weeks from October 11 to December 20, 2011,the court found that even assuming the FMLA year is calculated from October 2011 to October 2012, the employee was entitled to an additional two weeks of leave following his return to work on December 20, 2011. Thus, there were fact issues on whether he was eligible for FMLA leave from April 7 through April 10, 2012, and entitled to FMLA benefits.