Ragsdale v. Wolverine World Wide, Inc. – Oral Argument – January 07, 2002

Media for Ragsdale v. Wolverine World Wide, Inc.

Audio Transcription for Opinion Announcement – March 19, 2002 in Ragsdale v. Wolverine World Wide, Inc.

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William H. Rehnquist:

We’ll hear hear argument now in number oh oh six oh two nine, Tracy Ragsdale versus Wolverine World Wide.

Mr. Sutter.

[Inaudible]

Luther O. Sutter:

Mr. Chief Justice, and may it please the Court.

The FMLA guarantees much more than twelve weeks of absence from work.

The FMLA guarantees a specific bundle of statutory rights that an employer must grant eligible employees.

In many cases, the company’s leave plan, as is the case here, may provide different rights from the bundle of rights that in the FML- that the FMLA grants eligible employees.

Eight twenty-five two oh eight and eight twenty-five seven hundred A implement the statute in an in an important way.

Under the regulations, eight twenty-five two oh eight and seven hundred, if the employer wants a period of absences or leave to count against a worker’s annual FMLA entitlement, the employer must do three things.

First, the company must decide to grant the worker this bundle of rights that the FMLA grants him or her.

Second, the employer must tell the employee that they have these bundle of rights, and third, the employer must tell the employee that the employ- the employer has elected to count this period of leave against the FMLA.

[Inaudible]

Sandra Day O’Connor:

Does the act require the posting of some general notice in the place of employment about the Family Leave?

Luther O. Sutter:

Yeh- yes, Justice O’Connor, it does.

Twenty-nine USC twenty-six nineteen provides that each employer shall post a general notice in the form that the Secretary shall prescribe, so Congress painted in in in broad brush brush strokes and intended that the Secretary had the ability to provide what information is provided to employees.

[Inaudible]

Sandra Day O’Connor:

Well, can the Secretary then provide that it has to be done by personal communication?

Luther O. Sutter:

Well, Your Honor, that is just as this Court noted in the F in F in the FDA case, just simply because the Secretary has spoken and required posting in this instance does not mean that the Secretary cannot fill the gap, as it were and require personal notice if the Secretary determines that such notice is reasonably necessary to implement the act.

In this case, Justice O’Connor, I think all would agree that it is difficult to exercise a right that one does not know that one has, and in this case the Secretary decided that the employer must first choose to that the FMLA that the worker will get the FMLA rights, and then tell the employee, and this regulation promotes communication, communication between the employer and the employee.

[Inaudible]

Ruth Bader Ginsburg:

Mr.

Sutter,

Mistuh-

may I ask if in this case, as I understand it, the employee initially did not qualify for the FMLA leave because she hadn’t been there long enough.

Luther O. Sutter:

Justice Ginsburg, the thrust of my argument is, is that the FMLA is more than just twelve weeks.

Yes, I well,

Ruth Bader Ginsburg:

that’s a that’s a separate question, but let’s assume that there’s no difference in the rights under each, and in this case I don’t know that that bundle that you describe is any different under the company plan as far as continuing the insurance and the pension payments, but is it your contention that she would therefore, because she didn’t have enough to qualify her for the FMLA leave, she would get sixteen weeks…

Yes, Your Honor.

Luther O. Sutter:

Yes.

Ruth Bader Ginsburg:

So it’s a little odd that when she didn’t qualify she gets extra time than if she had already been there long enough to qualify, in which case it would be only twelve weeks.

Luther O. Sutter:

Well, I can see where one might believe that it is a bit odd, but again, Justice Ginsburg, the company leave plan in this case did not provide her with all of the FMLA bundle of rights.

Why didn’t it?

Luther O. Sutter:

Because the the l- leave plan in this case, for example, did not allow her to have intermittent leave.

twelve…

Antonin Scalia:

wasn’t able to have intermittent leave anyway, as I understand it.

Luther O. Sutter:

Well, Justice Scalia, the doctor only had two options.

You you mean you mean the…

Antonin Scalia:

doctor skewed his medical advice and and told her you can’t work at all only because the employer hadn’t told her she could work intermittently? I ca- I can’t imagine that.

Luther O. Sutter:

Well, an…

it’s — it’s been…

Antonin Scalia:

problem I have with your case is is not not the i- the rule that the employer has to give notice.

Luther O. Sutter:

Well, Justice Scalia, we it is difficult, looking three, four years later, to determine whether or not Ms. Ragsdale would have been able to work intermittently.

having said that the Secretary’s regulation…

Antonin Scalia:

of the act you have to prove that.

Luther O. Sutter:

Well, certainly the district court did not address the issue of prejudice.

But but as Justice Scalia…

Anthony M. Kennedy:

points out, the em- em- employee under your view gets even more that she’s entitled to the under the act under certain circumstance.

Luther O. Sutter:

Right.

Anthony M. Kennedy:

And also give twelve additional weeks.

Luther O. Sutter:

No, no Justice Kennedy, I do not believe that we are, because in this case, while the statute explicitly requires twelve weeks of leave in any period, twenty-six twelve B one also allows employees to extend that twelve weeks over a calendar year using intermittent leave, so looking at this case as simply a calculation of weeks is inaccurate.

Anthony M. Kennedy:

But I I I I put you the case in which she I I would think would be entitled to th- i- i- back to s- compensatory damages for not having paid for medical benefits, and in addition, so that during the period that she took off the government counts that for purposes of monetary liability, but it doesn’t count that for purposes of accrued leave, so she’s entitled to monetary r- i- c- r- compensation for the benefits that weren’t paid during the unnoticed leave period, and she’s entitled to an additional twelve weeks.

Luther O. Sutter:

Well, Justice Kennedy, the s- specific issue here is what happens when the employer provides the employee with less rights w- than the FMLA bundle of rights provides.

And the answer…

Anthony M. Kennedy:

is that she ends up with more than what the Family Leave Act would have provided.

Luther O. Sutter:

In this case, Justice Kennedy, in terms of time I believe the Court is correct.

entitled to specifically.

Antonin Scalia:

agree that that’s the issue.

Luther O. Sutter:

The Secretary may have reasonably required that this analysis occur after the need for for intermittent leave arose.

It’s a prophylactic…

Antonin Scalia:

rule that the Secretary’s adopted, even though the statute itself, in the provisions that it that it sets forth for where the employer has failed to comply with the act, does not adopt a prophylactic rule.

Luther O. Sutter:

Under either a morning prophylactic rule, or the interpretive powers granted the Secretary under Chevron, we believe the regulation is entirely appropriate because the issue of notice is not addressed.

David H. Souter:

Well, may I go back to the question of of what the damages are? On your view, or on the Secretary’s view, does the employee get another twelve weeks of leave if the employee does not need another twelve weeks of leave?

Luther O. Sutter:

If the employee does not need…

David H. Souter:

Let’s assume the employee is cured.

Luther O. Sutter:

Not unless, for example, she is involved in a a serious car accident,

and in another serious…

David H. Souter:

is that whatever the reason for the leave was, sickness or pregnancy leave, whatever, it’s it’s over, so that I take it that the the additional twelve weeks, are only an additional twelve weeks, if the person still has some medical or social need for the leave.

Luther O. Sutter:

That’s exactly correct, Justice.

Ruth Bader Ginsburg:

As I understood what Judge McGill said in the Eighth Circuit, he did say that he there could be cases where it would be appropriate for this regulation to apply if she could show that she was that she was disadvantaged by not being given the option, and he so he left that door open if there were some disadvantage.

Luther O. Sutter:

Yes, and that’s an that’s an entirely reasonable interpretation, a a reasonable alternative to what the Secretary did here, but that is not the Just- i- Judge McGill did not give the Secretary the appropriate deference that she is entitled to in promulgating this regulation.

Ruth Bader Ginsburg:

But his reason, i- I understand, was that Congress said twelve weeks, and to interpret that statute that says twelve weeks to mean twenty-four weeks, or in this case even more than that because the company leave was thirty weeks, right?

Luther O. Sutter:

The company granted four weeks pre- FMLA eligibility and twenty-six weeks post.

So so he’s…

Ruth Bader Ginsburg:

his view was that the regulation conflicted with the statute.

Luther O. Sutter:

Well, and y- as this Court recognized in F in in the FDA case, you cannot read one statute in isolation.

William H. Rehnquist:

Very well, Mr. Sutter.

Malcolm L. Stewart:

Mr. Chief Justice, and may it please the Court.

their determin —

Sandra Day O’Connor:

do you think that that can be met by just posting some general notice saying that any leave taken by an em- an employee is going to require taking FMLA leave first?

Malcolm L. Stewart:

No, we don’t, Your Honor.

That’s fine,

Antonin Scalia:

but but where the employee has no FMLA rights, that is to say, where the leave that the employer provides gives the employee everything that the employee would have under the F FMLA, why should the employee get another twelve weeks?

Well First, it’s it’s not —

Antonin Scalia:

is is not the requirement of i- t- to my mind i- is not the requirement of notice that a- a- at the beginning of the leave.

Malcolm L. Stewart:

Well well, first it’s not clear in many cases, and it’s not clear in this case, whether in fact the leave that the employer provided complied with all the requirements of the act.

Antonin Scalia:

Well I’m I I I agree that that that those are questions, but it seems to me those are questions that that that have to be answered by by the person who is seeking to impose a liability on the employer.

Malcolm L. Stewart:

But the thrust of the Secretary’s regulation is that it is better to have a bright line rule than to require the courts to engage in after the fact speculative inquiries regarding what might have been done months or years earlier if the requisite notice had been given and and this, to the extent this is harsh, it is harsh in the same way that a statute of limitations is harsh.

likely to produce —

William H. Rehnquist:

of limitations are not imposed by regulation.

Malcolm L. Stewart:

Certainly, statutory li- statutes of limitations by by definition are imposed by the legislature, but there are instances, and we’ve cited one in our brief, in which an administrative agency that is given authority to resolve complaints under an act may be authorized to promulgate reasonable procedural regulations to implement that directive, and that might include the requirement that a claim be filed within a certain number of…

What…

cases are they?

Malcolm L. Stewart:

Do you have our our brief This is on page twenty-four of our brief in footnote six.

Ruth Bader Ginsburg:

But here there’s there’s something really strange about it.

Malcolm L. Stewart:

Well, first the the regulation specific- she she was not entitled to FMLA leave at the time of her first request, but in fact the the DOL regulations specifically require that if an employee requests leave for an FMLA-covered purpose but is not yet eligible for the protections of the FMLA, the employer is required to notify the employee of the time when she will become eligible, and second, at any rate, when the employee made her first request for extension of leave she had passed the the twelve month period and she was eligible for the protections of the act, and it’s true that in terms of the sheer number of weeks of leave that it was willing to give, the company was more generous than the act required, but the fact that an individual or a business goes beyond the requirements of the law in some respects doesn’t excuse its noncompliance with other aspects of the law.

Ruth Bader Ginsburg:

I don’t see any noncompliance.

Malcolm L. Stewart:

Well, that that the intermittent leave is itself important, and and again there may be a substantial question as to whether this particular employee could have made effective use of the FMLA right to intermittent lead leave had she known she had it, and the Secretary might, as the Eighth Circuit suggested, have adopted the regulatory approach under which that would be the dispositive inquiry, but instead the Secretary has chosen to promulgate a bright line rule.

Antonin Scalia:

A prophylactic rule, an- and e- which the statute itself does not do.

Malcolm L. Stewart:

Well, in this case the statute not only gives the agency general rulemaking authority but also provides that it will be a violation of the act for an employer to interfere with or restrain an employee in her exercise of FMLA rights and and, by its nature, that language presumes that there will be instances in which employer conduct is not in terms prohibited by the act, but is likely to have the practical effect of dissuading or preventing employees from effectively exercising their…

statutory —

Antonin Scalia:

had no rights, he’s not guilty of that.

Malcolm L. Stewart:

Well, sir- un- under the the NLRB, under the NLRBs approach to implementation of the NLRA, the question of whether employer conduct has interfered with or restrained the exercise of protected rights is not resolved by asking whether particular employees were, in fact, deterred from engaging in protected conduct.

if a suit is filed —

Anthony M. Kennedy:

statue of limitations, if i- i- if a district judge throws out a suit because a two year statute has run and then the appellate court said no, you’ve there was three weeks available there and it was filed on time, we don’t give them a whole new two years.

Malcolm L. Stewart:

bu- the analogy to the statute of limitations is really that, if the statute of limitations has expired, we don’t ask whether the defendant could have done anything differently, or whether the defendant was prejudiced by the absence of notice within the two year period.

Mr.

Ruth Bader Ginsburg:

Stewart, suppose somebody has worked for five months but the company has leave that kicks in that early, and then seven months later would qualify for the F M L L but or has already had much more than the twelve weeks of leave, hasn’t been given notice because there wasn’t any eligibility, what happens then?

Malcolm L. Stewart:

May I answer? Mister…

William H. Rehnquist:

Yes…

Malcolm L. Stewart:

There’s a separate provision in the statute that makes eligibility for FMLA benefits contingent upon having worked twelve hundred fifty hours in the preceding calendar year and, therefore, it’s likely that an employee who had worked only five months and then had been on leave for seven months would fail to satisfy that requirement.

William H. Rehnquist:

Thank you, Mr. Stewart.

Richard D. Bennett:

Good morning, Mr. Chief Justice, may it please the Court.

Stephen G. Breyer:

I suppose I suppose that the government didn’t think of what it was doing as giving an extra twelve weeks of leave.

Richard D. Bennett:

Again, the issue, as Justice Scalia has pointed out, is not is not the requirement…

Stephen G. Breyer:

That’s what I’m assuming.

Richard D. Bennett:

Congress specified a monetary penalty.

penalty…

Stephen G. Breyer:

it, would have been a better remedy if the agency had said, and if you don’t tell them, you have to pay them ten thousand dollars cash.

Richard D. Bennett:

I think the some employers may object to the to the amount of the penalty, Your Honor.

Stephen G. Breyer:

Oh well,

let’s say five…

Stephen G. Breyer:

thousand.

Richard D. Bennett:

I I…

believe…

Stephen G. Breyer:

thousand dollars cash to any employee because the notice provision wasn’t given, and all small employers, large employers, any time they fail to to now, would you have but you would have preferred that remedy.

Richard D. Bennett:

Well, aside from constitutional issues as a p- penalty, I believe we have to look at what Congress intended.

Stephen G. Breyer:

I’m just trying to make to to try to understand, to put you in the position of the agency.

Richard D. Bennett:

[Inaudible]

Stephen G. Breyer:

count it as leave.

Richard D. Bennett:

I believe the agency does have a range to choose what’s reasonable, Your Honor, but I don’t believe…

Ruth Bader Ginsburg:

Would the could the agency choose a a monetary penalty? Could the agency as a matter of administrative discretion impose a a penalty, or would that have to come from the is is that even within the realm of choice that the agency would have?

Richard D. Bennett:

Well, again, one of the contingents we raise, Your Honor, is that Congress specifically spoke to notice, all the notice that’s required under the statute.

primary focus was the leave…

Ruth Bader Ginsburg:

let’s assume that it would be permissible for the Secretary to say, give them notice that the leave counts as this for this purpose, that that would be permissible.

Then…

Ruth Bader Ginsburg:

w- what does the Secretary have in her arsenal to put teeth behind that, if if if not the extension of the period?

Richard D. Bennett:

Again, u- the Secretary can exercise the discretion to determine a fashion a reasonable remedy for the company’s failure to to provide this u- this notice, but that remedy, Your Honor, cannot…

exceed…

Ruth Bader Ginsburg:

what would be reasonable? Y- i- th-

The fine question maybe a…

Ruth Bader Ginsburg:

question was the Secretary has authority to do it.

Richard D. Bennett:

Your Honor, I I believe the o- the penalty that de- u- that the Secretary should have granted in this particular case, or authorized under this regulation, would be a monetary penalty.

Anthony M. Kennedy:

Would there ever be an instance in which the Secretary, on a case by case basis, could say that we are g- i- ordering you to grant additional family leave? I I E, suppose the employee knows that his wife is going to have a difficult pregnancy and he says, I’m I’m going to take some time off u- under the company plan at the early stages and I’ll save my family leave for later, he makes a mistake, and the mistake is compounded by the fact that there was no notice.

Richard D. Bennett:

Your Honor, I’m not sure that there would be.

interfered with…

Anthony M. Kennedy:

could that remedy ever consist of granting additional leave?

Richard D. Bennett:

I suppose, in those…

situations —

Anthony M. Kennedy:

employee was prejudiced in a in in of in a case such as I suppose on a case-by-case basis.

Richard D. Bennett:

What we con- we contend, Your Honor, they could not.

wage. If they do —

Anthony M. Kennedy:

all we’re talking about is dollars.

Richard D. Bennett:

Correct, Your Honor, but if,

indeed, if we have…

Anthony M. Kennedy:

currency that the agency has to deal with, a- and and you say under no circumstance may the the Secretary, however reasonable the employee’s reliance was, however faulty the notice was, under no circumstance may they ever give additional leave.

Richard D. Bennett:

Provided the leave already granted provided provided the employee had already been given twelve weeks of leave under the conditions contained within the statute, Your Honor, that is our contention.

suppose…

Antonin Scalia:

not sure I’m not sure it’s it’s incumbent upon you to to write a regulation for the agency.

Richard D. Bennett:

Your Honor, that’s not our s- u- specific case, that’s correct.

Anthony M. Kennedy:

W- Well, but it might be it might be the case if if we stipulate that in some instances al- additional leave must be granted.

i- It could be the case —

Anthony M. Kennedy:

we s- if we stipulate that.

[Inaudible]

Anthony M. Kennedy:

Then what the agency, what the i- u- the government is going to say, Department of Labor is, well, since in some instances you can do ooh grant leave it’s just administratively simpler for us to do it this way and you wi- you always get the leave.

Again, Your Honor —

Anthony M. Kennedy:

does make a difference t- in answering the question whether or not leave can ever be in effect a standard.

Richard D. Bennett:

Your Honor, we i- again, under the statute, if you read the statute, and you look at the legislative history surrounding the statute, im- prior to the enactment of this statute Congress specifically noted in the legislative history that United States stood alone in the industrialized world as not having leave for these particular types of conditions.

That was what Congress —

Ruth Bader Ginsburg:

argument in the brief that that that she could have initially had the company leave when she wasn’t eligible yet, and then she could have said at that point, four weeks later when she became eligible for the FMLA leave, she could say, okay, company, stop the company leave.

Richard D. Bennett:

Y- Your Honor, we n- n- n- n- that is a a a good point that Your Honor makes.

What if…

Antonin Scalia:

what if the employer’s leave doesn’t precisely mirror the statutory requirements? For example, what if the employer’s leave does not allow intermittent leave? It says, you’ve got to take your your twelve weeks in in one big lump.

Richard D. Bennett:

The statute deals with that, Your Honor, in the u- section d- dealing with interference.

John Paul Stevens:

Of course the employee has to know about the tha- that particular right in order to invoke it.

Richard D. Bennett:

Yes, Your Honor, we posted the statutory notices, and as a matter of fact, because my client has a i- its own company provided leave policy, this is within a collective bargaining agreement, and it’s also within the employee handbook, so the employees were aware of it through the collective bargaining agreement, through the employee handbook which was handed out along with the collective bargaining agreement to all employees.

John Paul Stevens:

But did that that notice describe the collective bargaining agreement.

Richard D. Bennett:

I do not believe there was any specific reference to the FMLA notice posting, Your Honor.

So that to the extent…

John Paul Stevens:

that there may have been a difference between the statutory requirement and the company policy, they would not have been advised of the statutory requirement.

Richard D. Bennett:

Not by the company, Your Honor, but the statute doesn’t require that.

Ruth Bader Ginsburg:

If the if the requirement was so difficult to deal with, one would expect there would have been some comment to that effect.

Richard D. Bennett:

I believe there was there was a notice on these regulations when they came out initially, and then they issued final regulations, and u- I can’t speak d- directly as to the comments that were all the comments that were made about this one particular regulation, but I believe the DOL in their brief does mention that there was not an objection specific objection by employers to that, and I I believe that to be accurate, Your Honor, but I don’t believe and I I n- n- I can attest for my client’s purpose that we did rec- r- recognize from reading that that that what we were going to have to do was grant additional leave, additional leave, that we’re not going to be able to grant additionally, that we’re going to have to grant addition leave over an- above what we’ve given.

But why wouldn’t they recognize…

Ruth Bader Ginsburg:

that, because that’s what the regulation said.

Richard D. Bennett:

No, Justice Ginsburg, it was not.

for leave under this —

David H. Souter:

there- s- fore saying that even the notice provision i- is is beyond the St- Secretary’s power?

Richard D. Bennett:

Your Honor, we have taken the position that i-

the statute —

David H. Souter:

I thought that’s what what you were suggesting a moment ago.

The the notice —

David H. Souter:

cannot even require a notice?

Richard D. Bennett:

Correct, Your Honor.

Antonin Scalia:

What if the employer’s leave does does not does not comply with all of the conditions, all right, that that are required by the act, and the employee goes off on that leave, and there’s no notification that the employee could get more, could have the benefits continued or what not.

Does that…

Antonin Scalia:

leave count? It doesn’t count as as as statutory leave, does it?

Richard D. Bennett:

If the employee was given the leave, Your Honor, I believe that the leave counts.

Okay.

Richard D. Bennett:

you didn’t hold their job open…

Antonin Scalia:

Then the damage provision would cut…

in. Twelve so…

Richard D. Bennett:

the it’s not like, as if the leave doesn’t count.

The leave —

Richard D. Bennett:

an additional twelve weeks plus damages…

for not…

Richard D. Bennett:

giving them their job back.

But this regulation —

Ruth Bader Ginsburg:

there was a requirement that went beyond what the Federal act requires.

Richard D. Bennett:

Your Honor, the s- the regulations promulgated by the Department of Labor provide that if an employer s- excuse me.

days, which…

David H. Souter:

period chosen in this case because the employer’s regulation says we’ll only do it for thirty days at a time?

Richard D. Bennett:

That is true, Your Honor.

Antonin Scalia:

So you you’re saying it’s it’s it’s a false it’s a false question as as as to whether, when the employee takes leave, he’s taking F L M FMLA leave or employer’s leave, that that that that there aren’t two categories?

Richard D. Bennett:

No, sir, they’re they’re i- tha- tha- that’s…

correct, Justice Sca- —

Antonin Scalia:

give the notice in order that the employee can know which of the two leaves he’s taking.

Richard D. Bennett:

That’s correct, Your Honor.

is FMLA leave.

David H. Souter:

there’s no provision, but neither is there any clear answer to the question, and I suppose one of the the arguments in favor of the Secretary’s regulation here is that it really was a gap filling regulation with respect to unpaid company leave.

Richard D. Bennett:

Your Honor, I believe the statute itself creates a default rule.

David H. Souter:

For for unp- when when the company’s leave is unpaid?

Richard D. Bennett:

For the unpaid.

it creates —

David H. Souter:

What is it, the default rule, again?

Richard D. Bennett:

I- in twenty-six twelve C and twenty-six twelve D one, the statute specifically talks about unpaid leave, that leave shall be unpaid.

David H. Souter:

No, but that that as I understand it, that addresses the the issue of w- b- the character of the leave, if there isn’t a full twelve weeks provided, but as I understand it also there is no clear default provision when we have a situation in which there could be concurrent i- in which the leave could be seen either as unpaid company leave or as leave under the act.

Richard D. Bennett:

i- t- That’s true, Your Honor.

And their argument is that…

David H. Souter:

because the statute didn’t talk about that, there has g- or it is reasonable for the Secretary to come up with a rule that tells us whether it counts against the act or whether it doesn’t in the unpaid case.

Richard D. Bennett:

The- i- their assumption is that there’s a gap and that it’s reasonable for them to step in.

That’s right.

Richard D. Bennett:

position, Your Honor, is that Congress specifically decided not to require that.

unpaid.

David H. Souter:

Congress may not have required it, but at the end of the twelve weeks there’s still the question, did this count under the statute, or didn’t it count under the statute, and if the statute is silent, it would seem to be that that would be a a a subject for S- the Secretary’s regulation.

Richard D. Bennett:

Well Your But Justice Souter, the statute is not silent.

leave.

Antonin Scalia:

all leave counts under the statute.

Richard D. Bennett:

That’s…

correct. All leave.

Antonin Scalia:

under the statute.

Richard D. Bennett:

Be it paid or…

unpaid, Your Honor.

Antonin Scalia:

and if you haven’t provided in connection with the leave everything that the statute requires, such as a person can come back to the same job and so forth, there’s a damages provision.

Richard D. Bennett:

That’s that’s…

correct, Justice Scalia.

Richard D. Bennett:

That’s In the statute, that’s…

correct.

David H. Souter:

what was the purpose of having the special provisions with respect to whether it counts as statutory or company when the leave is paid?

Richard D. Bennett:

There are many employers out there who such as my client who have more generous leave policies.

William H. Rehnquist:

Thank you, Mr. Bennett.

Luther O. Sutter:

The company never gave the doctor the option to allow Miss Ragsdale to work intermittently.

Court —

Antonin Scalia:

damages provision for that, I…

assume.

Luther O. Sutter:

Yes, Justice, but there is also a a provision for appropriate injunctive relief such as reinstatement and other and relief as the court may deem appropriate, and I would submit to you that, as one of the Justices recognized, this is not simply about money.

power —

Sandra Day O’Connor:

course, you couldn’t really do it on the front end here because she wasn’t eligible originally for FMLA leave.

Luther O. Sutter:

Well, that’s true, Justice O’Connor, but the regula- the regulatory scheme provides that the employer should have given her a date by which she would have been eligible for FMLA leave.

William H. Rehnquist:

Well, that’s true of most agreements, isn’t it?

Luther O. Sutter:

And that is why that is why that is why Congress required the FMLA…

John Paul Stevens:

But it is somewhat unusual that a union wouldn’t in- advise the employee its membership about their statutory rights.

Luther O. Sutter:

Of course it is, and it might be entirely reasonable for me to stand up here and substitute my judgment for the Secretary’s, but it is also equally reasonable that the company be allowed the benefit of making this determination, and to the to say that the requirement that employees communicate is in- is inferred, we disagree, because you see, twenty-six twelve twenty-six eleven requires communication for planning when intermittent leave is required.

Thank you, Mr. Sutter.

Luther O. Sutter:

Thank you.

William H. Rehnquist:

The case is submitted.