Paul Mendel v. City of Gibraltar

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0266n.06
Case No. 14-1789
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
PAUL MENDEL,
Plaintiff-Appellant,
v.
CITY OF GIBRALTAR,
Defendant-Appellee.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
MICHIGAN
OPINION
BEFORE: CLAY, KETHLEDGE, and DONALD, Circuit Judges.
BERNICE BOUIE DONALD, Circuit Judge. Plaintiff Paul Mendel brought an action
under the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. §§ 2601-2654, against
his former employer, the City of Gibraltar, after it terminated his employment as a police
dispatcher in February of 2009. The district court granted summary judgment to Gibraltar.
Mendel v. City of Gibraltar, No. 11-10496, 2014 WL 2558218 (E.D. Mich. June 6, 2014).
Citing Edgar v. JAC Products, Inc., 443 F.3d 501 (6th Cir. 2006), the district court concluded
that Mendel was not entitled to relief because the earliest day he could return to work following
medical clearance well-eclipsed the 12-week period of leave provided by the FMLA. Mendel
appeals, arguing that the district court erred (1) by assessing full weeks of utilized leave, rather
than intermittent leave pursuant to 29 C.F.R. § 825.205(b)(1); and (2) by assessing utilized leave

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even for weeks in which Gibraltar had removed Mendel from the dispatcher schedule entirely.
For the reasons stated below, we AFFIRM the district court’s grant of summary judgment to
Gibraltar.
I.
A.
The relevant facts in this case are largely undisputed. Mendel began work as a police
dispatcher for Gibraltar in 2004. Beginning in 2007, he also worked as a dispatcher for the City
of Trenton. Gibraltar dispatchers do not work fixed schedules; rather, the Chief of Police sets the
dispatcher schedule based on employee preferences and availability approximately one month in
advance. Some dispatchers work several days per week, while others work significantly fewer
days. In 2008, Mendel worked a total of 1,862 hours—an average of 35.8 hours per week.
In the autumn of 2008, Mendel began to experience severe and constant abdominal pain.
He did not work his scheduled shifts at Gibraltar from October 2-5, 2008. On October 15, 2008,
Mendel underwent surgery in order to eliminate scar tissue resulting from a previous hernia-
related surgery. The October surgery did not alleviate Mendel’s abdominal-pain issue.
In December of 2008, Mendel’s abdominal pain intensified and incapacitated him from
working. The pain spread from Mendel’s abdomen into his groin, lower back, and hip. At his
deposition, Mendel described the pain as so severe that, at times, he “couldn’t get out of bed for
three, four days” and “couldn’t even bend over to get dressed.” Mendel missed eight
consecutive shifts in December of 2008. On December 22, 2008, Gibraltar Chief of Police Ray
Canterbury sent Mendel a letter requesting a doctor’s certificate of illness by the next day. The
letter indicated that failure to submit such a certificate would result in termination of Mendel’s
employment as a Gibraltar dispatcher. Mendel submitted a note from Dr. John C. Baumann

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indicating that Mendel had been in Dr. Baumann’s care since December 12, 2008, and that
Mendel would be able to return to work on January 2, 2009.
Due to his chronic pain, however, Mendel was unable to work and missed all of his
scheduled Gibraltar shifts in January of 2009. During this time, Mendel alerted Trenton about
his ongoing medical issues and declined to submit his availability for work until he was ready to
return. As a result, he did not appear on the Trenton dispatcher schedule after December of
2008. Mendel never requested removal from the Gibraltar schedule. As a result of his missed
shifts in January, Chief Canterbury removed Mendel from the Gibraltar dispatcher schedule until
January 26, 2009. In a meeting in mid-January, Mendel told Chief Canterbury that he thought he
would be able to return to the February 2009 schedule.
However, Mendel also missed all of his scheduled Gibraltar shifts in February of 2009.
On February 13, 2009, Chief Canterbury sent Mendel another letter requesting a doctor’s
certificate of illness by February 16, 2009, and indicating that the penalty for non-receipt would
be termination. Chief Canterbury also removed Mendel from the February and March 2009
schedules.
On February 20, 2009, Mendel’s wife delivered a note from Dr. Lael A. Stone of the
Cleveland Clinic to the Gibraltar Police Department. The note indicated that Mendel had been
visiting the Cleveland Clinic “intermittently since the first week in January” and that “several
more visits over the next month” would be necessary. The note stated that Mendel “should
remain off work pending further testing.”
On February 23, 2009, Chief Canterbury sent Mendel another letter. The letter noted that
Mendel’s letter from Dr. Stone was late and “[did] not indicate that [Mendel was] in the clinic or
under a doctor’s care on February 7th, 8th, 11th, 12th, or the 13th”—the dates on which Mendel

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was scheduled to work in February of 2009. Chief Canterbury’s letter further stated: “After not
receiving the required Certificate of Illness by February 16, 2009, it is my belief that you have
voluntarily terminated your employment as a dispatcher with the City of Gibraltar.” Thereafter,
Mendel no longer appeared on the Gibraltar dispatcher schedules.
At his deposition, Mendel testified that he was unable to work from December 12, 2008,
until at least May of 2009, when surgery alleviated his chronic-pain issue. Ultimately, doctors
did not clear Mendel to work until June 1, 2009. He returned to work at Trenton in June of 2009.
B.
Mendel filed his FMLA complaint against Gibraltar in the United States District Court
for the Eastern District of Michigan on February 7, 2011. On September 20, 2011, Gibraltar
moved for summary judgment, arguing that because the City did not employ more than 50
employees, Mendel was not an “eligible employee” under the FMLA. See 29 U.S.C.
§ 2611(2)(B)(ii). Specifically, Gibraltar argued that its volunteer firefighters should not count
toward its total number of employees under the relevant statutory definitions because, inter alia,
they receive only a nominal stipend and are not required to respond to emergency calls. See id.
§ 2611(3); id. § 203(e), (g). The district court agreed and, on January 31, 2012, granted
summary judgment to Gibraltar. Mendel v. City of Gibraltar, 842 F. Supp. 2d 1035, 1044
(E.D. Mich. 2012).
On August 15, 2013, a divided panel of this Court reversed and remanded the case.
Mendel v. City of Gibraltar, 727 F.3d 565, 572 (6th Cir. 2013). The majority held that “the
substantial wages paid to [Gibraltar’s] firefighters constitute compensation, not nominal fees,
which makes the Gibraltar firefighters employees, not volunteers, for purposes of the FLSA and

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FMLA.”1 Id. (footnote omitted). Notably, and unlike in the current appeal, the facts in the prior
appeal “[did] not concern Mendel or the story surrounding his termination.” Id. at 567.
Following remand, on February 14, 2014, Gibraltar again moved for summary judgment.
This time, Gibraltar argued that Mendel could not establish an FMLA violation because the
indisputable facts showed that he was unable to work for over six months—far longer than the
12-week period contemplated by the FMLA. Gibraltar also moved for sanctions under Federal
Rule of Civil Procedure 11.
On June 6, 2014, the district court agreed with Gibraltar’s summary judgment argument.
Citing Edgar, 443 F.3d at 510, the court noted that “a plaintiff cannot recover under the FMLA
even if he is terminated before the remaining FMLA-leave expires, if he could not return to work
prior to week twelve,” and that “terminating an employee does not toll FMLA weeks.” Mendel,
2014 WL 2558218, at *3, *4. The court further reasoned that, based on Mendel’s own
admissions, Mendel was unable to work for two months straight beginning on January 1, 2009,2
and could not work during the fifteen weeks between his termination in February and his return
to the workforce on June 1, 2009. Id. at *4-5. Assuming for calculation purposes that Mendel
would have worked a full-time schedule based on his average of 35.8 hours worked per week in
2008, see 29 C.F.R. § 825.205(b)(3),3 the court held that “Mendel’s injury exceeded the statutory
1The dissent took issue with the majority’s characterization of the firefighters’ fees as “substantial wages,” noting
that, when unpaid training is taken into account, “a McDonald’s employee receives more than these public servants
do.” Mendel, 727 F.3d at 573 (Kethledge, J., dissenting). The dissent also emphasized that Gibraltar’s firefighters
were not required to respond to emergencies—“[i]ndeed a firefighter could go for years without responding to a
single fire—and the City would not discipline him.” Id.
2The court determined that, pursuant to 29 C.F.R. § 825.200(b) and (e), the beginning of the calendar year—
January 1, 2009—was the date on which the 12-month period for FMLA-leave entitlement should begin to run
because it “provide[d] the most beneficial outcome” to Mendel. Mendel, 2014 WL 2558218, at *3.
329 C.F.R. § 825.205(b)(3) provides:
If an employee’s schedule varies from week to week to such an extent that an employer is unable
to determine with any certainty how many hours the employee would otherwise have worked (but
for the taking of FMLA leave), a weekly average of the hours scheduled over the 12 months prior

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framework.” Id. at *5. In doing so, the court rejected Mendel’s argument that it should have
calculated his utilized leave on a pro rata or proportional basis pursuant to 29 C.F.R.
§ 825.205(b)(1)4 because he was a part-time employee taking leave intermittently. Id. at *3. The
court emphasized that “a part-time employee who misses his entire scheduled work week,” as
Mendel did, “uses a full FMLA week.” Id. at *4. The district court declined to assess Rule 11
sanctions against Mendel. Id. at *5.
Mendel timely appealed. Gibraltar did not appeal the district court’s denial of Rule 11
sanctions.
II.
We review a district court’s order granting summary judgment de novo. Srouder v. Dana
Light Axle Mfg., LLC, 725 F.3d 608, 613 (6th Cir. 2013). Summary judgment is appropriate “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.” Fed. R. Civ. P. 56(a). In making this determination, we
must construe all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “The central issue is ‘whether the
evidence presents a sufficient disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.’” Edgar, 443 F.3d at 506 (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)).
to the beginning of the leave period (including any hours for which the employee took leave of
any type) would be used for calculating the employee’s leave entitlement.
429 C.F.R. § 825.205(b)(1) provides:
Where an employee works a part-time schedule or variable hours, the amount of FMLA leave that
an employee uses is determined on a pro rata or proportional basis. If an employee who would
otherwise work 30 hours per week, but works only 20 hours a week under a reduced leave
schedule, the employee’s 10 hours of leave would constitute one-third (1/3) of a week of FMLA
leave for each week the employee works the reduced leave schedule. An employer may convert
these fractions to their hourly equivalent so long as the conversion equitably reflects the
employee’s total normally scheduled hours. An employee does not accrue FMLA-protected leave
at any particular hourly rate.

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The FMLA entitles “eligible employee[s] . . . to a total of 12 workweeks of leave during
any 12-month period . . . [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). “Once
the 12-week period ends, however, employees who remain ‘unable to perform an essential
function of the position because of a physical or mental condition . . . [have] no right to
restoration to another position under the FMLA.’” Edgar, 443 F.3d at 506 (alteration in original)
(quoting 29 C.F.R. § 825.216(c)). In his complaint, Mendel asserts that Gibraltar interfered with
his FMLA-leave rights by terminating his employment. To prevail on such a claim, he must
prove that:
(1) [he] was an eligible employee, (2) the defendant was an employer as defined
under the FMLA, (3) [he] was entitled to leave under the FMLA, (4) [he] gave the
employer notice of [his] intention to take leave, and (5) the employer denied the
employee FMLA benefits to which [he] was entitled.
Id. at 507 (citing Walton v. Ford Motor Co., 424 F.3d 481, 485 (6th Cir. 2005)). In this appeal,
the parties dispute only the fifth factor.
Mendel’s primary argument on appeal is that the district court erred by assessing full
weeks of utilized leave beginning on January 1, 2009,5 rather than partial weeks under the
intermittent-leave regulations, 29 C.F.R. § 825.205(b)(1). He maintains the position he asserted
before the district court—i.e., that because he only took off fractions of a week at a time, he
should only be charged for the partial weeks he took off in January and February of 2009.
According to Mendel, the appropriate calculation of utilized leave amounts to 2.4 weeks, broken
down as follows:
January 1-5, 2009 3 days 0.6 week
January 6-12, 2009 1 day 0.2 week
January 13-19, 2009 0 0 week
5Mendel concedes that January 1, 2009, is the appropriate start date for purposes of calculating his utilized leave.

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January 20-26, 2009 1 0.2 week
January 27-February 2, 2009 2 0.4 week
February 3-9, 2009 2 0.4 week
February 10-16, 2009 3 0.6 week
(February 17-June 1, 2009) 0 0 week
Mendel, 2014 WL 2558218, at *3. We reject Mendel’s argument.
Simply put, Mendel did not take leave on an intermittent basis. Rather, as the district
court noted, he “missed every day he was scheduled to work for two months straight from
January 1, 2009.” Id. at *4. Further, as Mendel has conceded, he was not able to work at all
between January 1, 2009, and June 1, 2009. The regulations implementing the FMLA define
intermittent leave as “leave taken in separate periods of time due to a single illness or injury,
rather than for one continuous period of time.” 29 C.F.R. § 825.102; see also Hoffman v. Prof’l
Med Team, 394 F.3d 414, 418 (6th Cir. 2005) (noting that intermittent leave is “taken in separate
periods of time” rather than in “one block of leave of twelve weeks or fewer”). The clear import
of the regulation and the examples it provides is that intermittent leave applies to employees who
continue to work reduced workweeks. See 29 C.F.R. § 825.205(b)(1) (“If an employee who
would otherwise work 30 hours per week, but works only 20 hours a week under a reduced leave
schedule, the employee’s 10 hours of leave would constitute one-third (1/3) of a week of FMLA
leave for each week the employee works the reduced leave schedule.” (emphasis added)); see
also Miller v. Personal-Touch of Va., Inc., 342 F. Supp. 2d 499, 512 (E.D. Va. 2004)
(“[I]ntermittent leave is designed to be interspersed with periods of work.”).
Mendel did not—indeed, could not—continue working during the relevant period. Thus,
the intermittent-leave regulations do not govern his situation. See Mellen v. Trs. of Bos. Univ.,
504 F.3d 21, 25 (1st Cir. 2007) (noting that the purpose of the intermittent-leave provision “is to
ensure that an employer does not claim that an employee who takes off one day during a five-day

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work week has taken off the entire week . . . . Its purpose is not to give an advantage to an
employee who takes off five weeks but designates it intermittent leave over an employee who
takes off five weeks as continuous FMLA leave.”). Because Mendel missed entire workweeks
for which he was scheduled, the district court properly assessed his utilization of “full FMLA
week[s].” Mendel, 2014 WL 2558218, at *4.
Mendel also argues, without citation to authority, that the district court erroneously
assessed utilized weeks of leave for weeks in which Chief Canterbury had removed Mendel from
the dispatcher schedule. There does appear to be some support for the position that an employer
cannot assess FMLA leave against an employee who is otherwise not scheduled to work. For
example, in Truitt v. Doyon Drilling, Inc., a district court considered an FMLA claim by a
mechanic who “worked a two weeks on, two weeks off rotation.” 764 F. Supp. 2d 1167, 1168
(D. Alaska 2010). The mechanic suffered medical ailments that sidelined him from work from
January to March of 2006, and again from June to October of 2006. Id. The mechanic’s
employer declined to reinstate his employment as a mechanic after assessing utilized weeks of
leave for the off-weeks in the mechanic’s rotational schedule. Id. at 1168-69. The court, citing
the preamble to the final FMLA regulations disseminated by the Department of Labor, ruled in
favor of the mechanic, holding that “an employee’s FMLA leave time may not be reduced by
periods the employee is not scheduled to work.” Id. at 1170; see also 60 Fed. Reg. 2180, 2203
(Jan. 6, 1995) (“An employee’s FMLA leave entitlement may only be reduced for time which the
employee would otherwise be required to report for duty, but for the taking of the leave. If the
employee is not scheduled to report for work, the time period involved may not be counted as
FMLA leave.”).

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But Truitt is not on all fours with this case. For one, Truitt involved an employee who,
during his regularly scheduled off-weeks, was not required to report to work regardless of his
leave-inducing medical conditions. 764 F. Supp. 2d at 1168. Conversely here, as noted by
Gibraltar in its appellate briefing, the only reason Chief Canterbury removed Mendel from the
dispatcher schedule was because he did not—and could not—show up for his shifts due to his
ongoing condition. Nor was Mendel a rotational employee, as was the mechanic in Truitt. See
60 Fed. Reg. at 2203 (referencing “employees who work seven days and then are off for seven
days”). In that sense, Mendel would be required to show up for work as a Gibraltar dispatcher
during the times Chief Canterbury removed him from the schedule “but for the taking of the
leave.” Id. at 2203 (emphasis added).
We are not convinced that the principles set forth in Truitt are applicable to the
circumstances here. The preamble language relied on by Truitt falls within an explanatory
paragraph referencing 29 C.F.R. § 825.205—the regulation governing intermittent or reduced
leave schedules. See 60 Fed. Reg. at 2203; see also Murphy v. John Christner Trucking, LLC,
No. 11-CV-444-GKF-TLW, 2012 WL 3428072, at *5 (N.D. Okla. Aug. 15, 2012) (“The Federal
Register preamble language relied upon by the court in Truitt addressed regulations pertaining to
intermittent and reduced leave . . . .”). But we already have determined that the leave taken by
Mendel cannot be characterized as intermittent leave. Thus, it is not clear that the preamble’s
language governs continuous blocks of leave, such as the one taken by Mendel, which are
enumerated in and governed by 29 U.S.C. § 2612(a) and 29 C.F.R. § 825.200.
In light of the foregoing analysis, we agree with the district court’s calculation of
Mendel’s utilized leave. Mendel concedes that his twelve-week FMLA-leave clock began to run
on January 1, 2009. Using full weeks of leave in one continuous block, Mendel’s statutory leave

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period expired on March 26, 2009. Mendel, 2014 WL 2558218, at *3, *5. Doctors did not clear
Mendel to return to work until June 1, 2009, after which he returned to work at Trenton. It does
not matter in this case that Gibraltar terminated Mendel’s employment in February of 2009, prior
to the expiration of the statutory leave period. See Edgar, 443 F.3d at 506-07 (“[A]n employer
does not violate the FMLA when it fires an employee who is indisputably unable to return to
work at the conclusion of the 12-week period of statutory leave.”).6 Mendel has not “testified
unequivocally that [he] would have returned to work by the end of the leave period if [he] had
known that [his] job[ was] at stake,” id. at 510, or otherwise pointed to evidence creating a
genuine dispute of fact regarding his ability to return at the expiration of the statutory leave
period, Demyanovich v. Cadon Plating & Coatings, L.L.C., 747 F.3d 419, 429 (6th Cir. 2014).
He therefore cannot establish a prima facie case that Gibraltar denied him FMLA-leave rights to
which he was entitled. See Edgar, 443 F.3d at 508 (“Employees seeking relief under the
entitlement theory must . . . establish that the employer’s violation caused them harm.”); Cehrs v.
Ne. Ohio Alzheimer’s Research Ctr., 155 F.3d 775, 785 (6th Cir. 1998) (holding that the plaintiff
had “failed to raise a genuine issue of material fact concerning her claim under the FMLA”
because she “was clearly unable to return to work within the period provided by the FMLA”).
6Mendel attempts to distinguish Edgar from his case by noting that Edgar did not involve “a part-time employee
who sets his own schedule.” Thus, he asserts, the Court cannot presume that he would have placed himself on the
dispatcher schedule in March, April, or May of 2009, and that he would thereby require FMLA leave during those
months. Even taking all reasonable inferences in Mendel’s favor, as we must, the record does not support his
contention. Although Chief Canterbury clarified that Gibraltar dispatchers did have input regarding their schedules
based on past practices and preferences, he nonetheless testified that he retained the ultimate authority for assigning
work schedules. Moreover, the fact that Mendel worked at Gibraltar 35.8 hours per week on average prior to his
medical issues undercuts his speculation that he might not have been scheduled at all in March of 2009 and beyond.
In fact, Mendel admitted at his deposition that he considered Gibraltar his “main employer” and that he “was just
picking up shifts [at Trenton] on [his] off shifts [from] Gibraltar.” In any event, as we already have noted, that
distinction is irrelevant because Mendel did not take intermittent leave.

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III.
For the reasons stated above, we AFFIRM the district court’s grant of summary
judgment to Gibraltar.

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