           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                        2    Cavin v. Honda of Am. Mfg., Inc.           No. 02-3357
        ELECTRONIC CITATION: 2003 FED App. 0366P (6th Cir.)
                    File Name: 03a0366p.06                                                   _________________
                                                                                                  COUNSEL
UNITED STATES COURT OF APPEALS
                                                                          ARGUED: Joshua J. Morrow, LAW OFFICES OF JOHN S.
                  FOR THE SIXTH CIRCUIT                                   MARSHALL, Columbus, Ohio, for Appellant. Mary Ellen
                    _________________                                     Fairfield, VORYS, SATER, SEYMOUR & PEASE,
                                                                          Columbus, Ohio, for Appellee. ON BRIEF: Joshua J.
 SAMUEL J. CAVIN ,                X                                       Morrow, John S. Marshall, LAW OFFICES OF JOHN S.
           Plaintiff-Appellant,    -                                      MARSHALL, Columbus, Ohio, for Appellant. Mary Ellen
                                   -                                      Fairfield, Robert N. Webner, VORYS, SATER, SEYMOUR
                                   -  No. 02-3357                         & PEASE, Columbus, Ohio, for Appellee. Patrick J. Perotti,
           v.                      -                                      DWORKEN & BERNSTEIN, Painesville, Ohio, for Amicus
                                    >                                     Curiae.
                                   ,
 HONDA OF AMERICA                  -
 MANUFACTURING, INC.,                                                                        _________________
                                   -
          Defendant-Appellee. -                                                                  OPINION
                                   -                                                         _________________
                                  N
      Appeal from the United States District Court                          KAREN NELSON MOORE, Circuit Judge. Plaintiff-
     for the Southern District of Ohio at Columbus.                       Appellant Samuel J. Cavin (“Cavin”) appeals the district
   No. 00-00400—John D. Holschuh, District Judge.                         court’s dismissal of his claim of wrongful discharge in
                                                                          violation of public policy and the district court’s grant of
                     Argued: July 29, 2003                                summary judgment to Defendant-Appellee Honda of America
                                                                          Manufacturing, Inc. (“Honda”) on Cavin’s claim that Honda
             Decided and Filed: October 10, 2003                          interfered with his rights under the Family and Medical Leave
                                                                          Act of 1993 (“FMLA” or “Act”). Cavin was employed by
   Before: DAUGHTREY and MOORE, Circuit Judges;                           Honda from 1991 until 1999. Cavin violated Honda policy in
             CALDWELL, District Judge.*                                   June 1999 by failing to notify Honda’s Leave Coordination
                                                                          Department of his need for leave within the required time
                                                                          period and again in October 1999 by failing timely to submit
                                                                          a medical certification form. Honda terminated Cavin in
                                                                          November 1999 for violating its leave policy. Cavin filed a
                                                                          suit alleging that Honda had interfered with his FMLA rights
                                                                          and wrongfully discharged him in violation of Ohio public
                                                                          policy. The district court dismissed Cavin’s wrongful-
    *
                                                                          discharge claim and granted Honda summary judgment on the
     The Honorable Karen Caldwell, United States District Judge for the   FMLA-interference claim. Cavin appeals these decisions.
Eastern District of Kentucky, sitting by designation.

                                  1
No. 02-3357               Cavin v. Honda of Am. Mfg., Inc.              3    4      Cavin v. Honda of Am. Mfg., Inc.          No. 02-3357

For the reasons explained below, we AFFIRM the district                        The Handbook provides that whenever an employee falls
court’s decision to dismiss the wrongful-discharge claim.                    below 98 percent attendance, Honda will strive to help the
However, we REVERSE the district court’s grant of                            employee improve his attendance through a progressive-
summary judgment on the FMLA-interference claim and                          counseling system designed to ensure that employees
REMAND the action for further proceedings.                                   understand the attendance policy. However, failure to comply
                                                                             with Honda’s “established attendance guidelines” and “leave
                I. FACTS AND PROCEDURE                                       of absence requirements,” J.A. at 288 (Handbook), “will
                                                                             result in corrective action up to and including suspension
  Cavin worked as a production associate in Honda’s                          without pay or separation from employment,” J.A. at 287
assembly department from 1991 until 1999. As a Honda                         (Handbook). In fact, if an employee is “absent for three
employee, Cavin received an Associate Handbook                               consecutive workdays without notifying Administration —
(“Handbook”) which contained detailed information about                      Leave Coordination, [he] will be separated from
Honda’s leave policies. In the event of an absence, a Honda                  employment.” J.A. at 290 (Handbook).
employee “must notify either Plant Security, [his] department,
or Administration prior to the beginning of [his] scheduled                    On June 21, 1999, Cavin injured his right shoulder in a
shift, or as soon as reasonable.”1 Joint Appendix (“J.A.”) at                motorcycle accident. Cavin was treated in the emergency
290 (Handbook). According to Honda, employees may call                       room of St. Ann’s Hospital and released the same day with a
security to report a vacation day, “a one-day absence,” or “a                prescription for pain medication. The emergency room
one-day sickness.” J.A. at 362 (Patterson Dep.). However,                    physician wrote Cavin a note excusing him from work until
when an employee’s “absence continues beyond one day                         June 24, 1999. When he returned home from the hospital,
away from work . . . [he] should contact Administration —                    Cavin called Honda to inform the company that he needed to
Leave Coordination.” J.A. at 290 (Handbook). If the need                     take time off work because he was injured in a motorcycle
for leave is unforeseeable, leave must be requested “no later                accident. According to Cavin,
than three (3) consecutive workdays of the first day missed.
The first day missed counts as day one.” J.A. at 294                             When I called in on the 21st and security asked my
(Handbook).                                                                      reason for calling in, I stated that it was a motorcycle
                                                                                 accident. And I knew that when I was a team leader we
                                                                                 had a call-in screen [on the company’s computer system]
                                                                                 that could tell us why a person was not coming to work,
    1                                                                            and when I stated motorcycle accident, they also asked
      W hen an employee notifies security of his absence, information
about the absence and the reason for the absence is conveyed to the              me when I planned on returning. I gave them a return
emp loyee’s supervisor so that the sup ervisor can cover the shift.              date, and I thought that information would have been
However, Ho nda policy does not dictate that se curity will notify the           communicated to my coordinator.
Leave Coordination Department that an employee may need a leave of
absence when the employee calls in to report that he cannot work due to
serious illness. Moreover, Honda does not instruct security to notify
                                                                             J.A. at 251 (Cavin Dep.). There is no evidence that Cavin
employees who report an illness that they may need to contact the Leave      informed security at that time that he would be absent for
Coordination Departm ent. See Joint Appendix (“J.A.”) at 390 (Tribune        more than one day.
Dep.) (“W hen the associate calls into security and says they’re go ing to
be absent, they need to request to speak to Leave Coordination
specifically, and then security will transfer the call to LCD .”).
No. 02-3357           Cavin v. Honda of Am. Mfg., Inc.       5    6       Cavin v. Honda of Am. Mfg., Inc.                  No. 02-3357

   Cavin received treatment from a second doctor, Dr. Scott          On July 7, 1999, Honda disallowed a portion of Cavin’s
D. Cohen (“Cohen”), the day after the accident. Cohen             leave under the FMLA on grounds that the absences were not
excused Cavin from work until June 28, 1999. According to         approved. Cavin had violated Honda’s leave policy by failing
Cavin, during his absence he “called the company everyday         to call Honda’s Leave Coordination Department within three
[sic] that [he] was scheduled to work to inform the company       consecutive workdays of his first day of leave.2 Honda
of [his] status.” J.A. at 135 (Cavin Aff.). Cavin reported his    refused to approve Cavin’s absences for June 21-23 as
absence to security every day during the week of June 21-25.      FMLA-qualifying leave, recognizing only June 24-25 as
The following week, Cavin was not scheduled to work               qualifying leave. Cavin was forced to take a vacation day to
because there was a scheduled plant shutdown. Cavin               cover his June 21 absence.
returned to work on July 6, 1999, two weeks after the first day
of his absence, at which time Cavin finally notified the Leave      Cavin missed work several times during the following
Coordination Department of his need for a leave of absence.       months because he was suffering from extreme pain in the
                                                                  shoulder that was injured during the motorcycle accident.
  When Cavin returned from leave on July 6, his supervisor        Honda approved Cavin’s July 15-20 and July 23-28 leaves of
and several other Honda employees knew that Cavin had been        absence as FMLA-qualifying, but denied his final request for
in a motorcycle accident and inquired about how he was            FMLA leave on grounds that he failed timely to submit a
doing. That day, Cavin received what Honda refers to as           certification form for the September 30-October 4 absence.
progressive counseling, or coaching, for employees with less      To receive FMLA leave for this period, Cavin was required
than 98 percent attendance. Counseling is an element of           to submit a certification form to the Leave Coordination
Honda’s “progressive discipline” structure for attendance         Department before October 19. Cavin met the deadline, but
violations. J.A. at 353 (McClellan Dep.). Linda McClellan         the certification was facially incomplete; it did not include the
(“McClellan”), a representative of Honda’s Associate              dates of treatment or incapacity. The Leave Coordination
Relations Department, met with Cavin and reviewed Honda’s         Department instructed Cavin to submit a completed form by
leave policies. She informed Cavin that any future violation      October 27. Cavin failed to meet the new deadline when his
of company policy would result in his separation.                 doctor did not timely submit the form to Honda.3 Because
  Cavin explained to McClellan that he had been injured in
a motorcycle accident on June 21, had been excused from               2
                                                                        Although Cavin claims he was unaware of the Leave Coordination
work through June 24 by the emergency room doctor, and            Department policy, Honda notes that Cavin had contacted the Leave
further excused until June 28 by a second doctor. Cavin told      Coordination Departm ent to obtain approval for a leave of absence in
McClellan that he had called Honda every day to report his        1998.
absence and gave her the return to work slips that his doctors        3
had signed to excuse him. Honda gave Cavin a leave                       The Leave Co ordination Department finally received the form on
                                                                  November 8, 1999. T he form indicated that Cavin received treatment on
coordination packet, instructing Cavin to have his doctor         September 30, October 1, and October 4. However, Cavin no w admits
complete the forms and to return the packet by July 21, 1999.     that the certification form included inaccurate informatio n, “incorrectly
Cavin timely completed the packet, in which Cohen certified       report[ing] that plaintiff received treatment by Dr. Cohen on September
that Cavin’s June 21-28 leave was due to a serious health         30, 1999, O ctober 1, 199 9, and October 4, 19 99.” J.A. at 6 2 (Cavin
condition.                                                        Admissions). As Cavin no tes, there is a factual question as to whether
                                                                  Cavin misrepresented anything to Honda, given that Cohen com pleted the
                                                                  certification form. Regardless, this misrepresentation clearly was no t a
No. 02-3357               Cavin v. Honda of Am. Mfg., Inc.                7    8      Cavin v. Honda of Am. Mfg., Inc.                  No. 02-3357

Honda did not timely receive the certification, Cavin was                      National Employment Lawyers Association (“NELA”), a
disciplined a second time in November 1999. Honda then                         “professional membership organization of lawyers who
fired Cavin for violating the Honda leave policy twice.                        represent employees in discrimination, wrongful discharge,
                                                                               employee benefit, and other employment-related matters,”
   On April 3, 2000, Cavin filed a suit in the United States                   filed an amicus brief in support of Cavin. NELA Br. at 1.
District Court for the Southern District of Ohio, alleging that
Honda had interfered with his FMLA rights and wrongfully                           II. THE FAMILY AND MEDICAL LEAVE ACT
discharged him in violation of Ohio public policy. Honda
filed a motion to dismiss the wrongful discharge claim, and                      The district court granted Honda summary judgment on
the district court granted the motion on March 28, 2001.                       Cavin’s claim that Honda interfered with his rights under the
Cavin v. Honda of Am. Mfg., Inc., 138 F. Supp. 2d 987, 998                     Family and Medical Leave Act (“FMLA”) of 1993, 29 U.S.C.
(S.D. Ohio 2001) (Cavin I). Honda then filed a motion for                      §§ 2601 et seq. See Cavin II, 2002 WL 484521, at *25.
summary judgment on the FMLA claim, which the district                         According to the district court, no reasonable juror could have
court granted on February 22, 2002. Cavin v. Honda of Am.                      found that Cavin provided Honda “with timely, adequate
Mfg., Inc., No. C2-00-400, 2002 WL 484521, at *25 (S.D.                        notice of his need for FMLA leave” because Cavin did not
Ohio Feb. 22, 2002) (Cavin II).                                                follow Honda’s policy for contacting the Leave Coordination
                                                                               Department. Id. at *14. Cavin argues that Honda did receive
  Cavin filed a timely notice of appeal. On appeal, “Cavin                     timely actual notice of Cavin’s leave and therefore Honda
chose to simplify his claim . . . by only appealing the June                   interfered with Cavin’s FMLA rights when it denied a portion
1999 denial of FMLA” and by declining to appeal the district                   of Cavin’s June 1999 leave and disciplined him.
court’s grant of summary judgment with respect to Cavin’s
September-October leave.4 Cavin Reply Br. at 4 n.1. The                          This court reviews de novo a district court’s grant of
                                                                               summary judgment pursuant to Federal Rule of Civil
                                                                               Procedure 56(c). Kincaid v. Gibson, 236 F.3d 342, 346 (6th
                                                                               Cir. 2001). Summary judgment is appropriate
factor in Honda’s decision to separate Cavin because Honda was not
aware of the misrepresentation at the time of Cavin’s termination. We do           if the pleadings, depositions, answers to interrogatories,
recog nize, however, that the misrepresentation may be relevant to the             and admissions on file, together with the affidavits, if
calculation of Cavin’s damages. See McKen non v. Nashville Banner
Publ’g Co., 513 U.S. 352, 361-62 (1995) (explaining that when an                   any, show that there is no genuine issue as to any
employer learns of an employee’s wrongdoing after improperly                       material fact and that the moving party is entitled to a
terminating the employee on other grounds, “as a general rule . . . neither        judgment as a matter of law.
reinstatement nor front pay is an appropriate remedy. . . . The beginning
point in the trial court’s formulation of a rem edy should be calculation of
backpay from the date of the unlawful discharge to the date the new
information was discovered”).

    4
      The district court reaso ned that “Cavin’s termination is based on two   v. Ho nda of Am . Mfg ., Inc., No. C2-00-400, 2002 WL 484521, at *9 (S.D.
separate alleged violations of the leave p olicy, neither of which, standing   Ohio Feb. 22, 2002) (Cavin II). But see Cavin Reply Br. at 4 n.1 (“[T]he
alone, would be sufficient grounds for termination . . . . If a reaso nable    record is clear that if Honda would have approved the June 1999 leave,
jury could find that either of these absences should have been designated      Cavin would not have been fired in November 19 99. An appeal of the
as FMLA -qualifying leave, summary judgment must be denied.” Cavin             September-Octob er leave would be superfluous.”).
No. 02-3357           Cavin v. Honda of Am. Mfg., Inc.         9    10       Cavin v. Honda of Am. Mfg., Inc.                  No. 02-3357

Fed. R. Civ. P. 56(c). However, “if the evidence is such that       FMLA-qualifying leave. To prevail on an interference claim,
a reasonable jury could return a verdict for a nonmoving            a plaintiff must establish that (1) he is an “[e]ligible
party,” then summary judgment will not lie. Anderson v.             employee,” 29 U.S.C. § 2611(2); (2) the defendant is an
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In reviewing         “[e]mployer,” 29 U.S.C. § 2611(4); (3) the employee was
a motion for summary judgment, we view the evidence, all            entitled to leave under the FMLA, 29 U.S.C. § 2612(a)(1);
facts, and any inferences that may properly be drawn from the       (4) the employee gave the employer notice of his intention to
facts in the light most favorable to the nonmoving party.           take leave, 29 U.S.C. § 2612(e)(1); and (5) the employer
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.         denied the employee FMLA benefits to which he was entitled.
574, 587 (1986).                                                    See Price v. Multnomah County, 132 F. Supp. 2d 1290, 1297
                                                                    (D. Or. 2001); see generally Arban v. West Publ’g Co., Nos.
A. FMLA Interference Claims                                         01-2278/2370, --- F.3d ---, 2003 WL 22189281, at *7-8 (6th
                                                                    Cir. Sept. 24, 2003). Honda concedes that during the relevant
  The FMLA entitles qualifying employees to twelve weeks            time period, Honda was an employer and Cavin was an
of unpaid leave each year if, among other things, an employee       eligible employee for FMLA purposes. Honda also concedes
has “a serious health condition that makes the employee             that Cavin would have been entitled to take FMLA leave for
unable to perform the functions of the position of such             June 21-23 had he given appropriate notice, as Honda
employee.” 29 U.S.C. § 2612(a)(1)(D). Congress enacted the          recognized Cavin’s June 24 and June 25 absences arising
FMLA because, among other reasons, “there is inadequate job         from the same circumstances as qualifying leave.5
security for employees who have serious health conditions           Ultimately, Honda contends that Cavin’s interference claim
that prevent them from working for temporary periods.” 29           fails because Cavin did not give Honda proper notice of his
U.S.C. § 2601(a)(4). The FMLA “accommodates the                     intention to take leave.
important societal interest in assisting families by establishing
minimum labor standard[s] for leave.” H.R. Rep. No. 103-            B. Cavin’s Notice to Honda
8(I), 103d Cong., 1st Sess. 1993, at *21 (hereinafter “Cong.
Rep.”).                                                               Honda’s Associate Handbook articulates the following
                                                                    procedure for employees seeking a leave of absence:
   Pursuant to the FMLA, “[i]t shall be unlawful for any
employer to interfere with, restrain, or deny the exercise of or      If you require a leave of absence, you must formally
the attempt to exercise, any right provided under [the                request a leave from the Administration — Leave
FMLA].” 29 U.S.C. § 2615(a)(1); see 29 C.F.R. § 825.220(b)
(“Any violations of the Act or of these regulations constitute
interfering with, restraining, or denying the exercise of rights         5
provided by the Act.”). Employers who violate § 2615 are                  “[A]n illness, injury, im pairm ent, or p hysical or mental condition
“liable to any eligible employee affected” for damages and          that involve s . . . continuing treatment b y a health care p rovid er” is
                                                                    considered a “[s]erious health condition” for FMLA purposes. 29 U.S.C.
“for such equitable relief as may be appropriate.” 29 U.S.C.        § 2611(11). Cavin was incapacitated for more than three days and was
§ 2617(a)(1).                                                       treated by a health care provider more than once. Honda clearly accepted
                                                                    that Cavin’s injuries from the accident constituted a “serious health
  Cavin maintains that Honda interfered with his rights under       condition” because it granted some of Cavin’s FMLA claims arising out
the FMLA by refusing to recognize his June 21-23 absence as         of the sam e incident, recognizing his June 24-25, July 15-20, and July 23-
                                                                    28 absences as qualifying leave.
No. 02-3357                Cavin v. Honda of Am. Mfg., Inc.              11     12   Cavin v. Honda of Am. Mfg., Inc.            No. 02-3357

  Coordination Department. Your request must be made                            employers, we agree with Cavin that the FMLA does not
  in a timely manner:                                                           permit an employer to limit his employee’s FMLA rights by
  • If your need for a leave is foreseeable, you must                           denying them whenever an employee fails to comply with
    request the leave at least thirty- (30) days (or as soon                    internal procedural requirements that are more strict than
    as practicable) before your leave is to begin.                              those contemplated by the FMLA.
  • If your need for a leave is not foreseeable, you must
    request the leave no later than three (3) consecutive                         Honda policy requires an employee to notify the Leave
    workdays of the first day missed. The first day missed                      Coordination Department of his need for leave “no later than
    counts as day one.                                                          the third day missed.” J.A. at 290 (Handbook). Cavin was
                                                                                absent five days from June 21 through June 25, he was
J.A. at 294 (Handbook). Honda’s timing requirements are                         excused from work the following week due to a plant
consistent with the FMLA’s requirements for foreseeable                         shutdown, and he returned to work on July 6. On July 6,
leave, see 29 U.S.C. § 2612(e)(1); 29 C.F.R. § 825.302(b),                      Cavin notified the Leave Coordination Department of his
and for the most part more generous than the FMLA’s                             need for leave. Honda apparently concluded that Cavin
requirements for unforeseeable leave,6 see 29 C.F.R.                            provided timely notice to the Leave Coordination Department
§ 825.303(a) (“It is expected that an employee will give                        with respect to his June 24 and June 25 absences — because
notice to the employer within no more than one or two                           July 6 was not more than the third workday from those days
working days of learning of the need for leave.”). However,                     missed — and recognized those two days of leave as FMLA-
Cavin violated Honda’s policy by failing to request a leave of                  qualifying. However, because Cavin failed to notify the
absence from the Leave Coordination Department within                           Leave Coordination Department within three workdays of his
three consecutive workdays of the first day of work missed                      absence on June 21-23, Honda denied those days. Honda’s
due to the motorcycle accident.                                                 internal notice requirements thus may foreclose relief
                                                                                otherwise available under the FMLA. We must determine
  1. Honda’s Policy is Inconsistent with the FMLA                               whether Honda’s notice requirements are consistent with the
                                                                                FMLA.
  Cavin contends that Honda’s policy is inconsistent with the
notice requirements set forth in the FMLA. Specifically,                          The regulations governing the application of the FMLA
Cavin argues that the FMLA would not permit employers to                        state that an employee with a foreseeable need for leave “shall
deny otherwise-qualifying FMLA leave simply because an                          provide at least verbal notice sufficient to make the employer
employee fails to follow a company’s internal notice                            aware that the employee needs FMLA-qualifying leave, and
requirements. Although the regulations do specifically                          the anticipated timing and duration of the leave.” 29 C.F.R.
contemplate the establishment of notice policies by individual                  § 825.302(c). However, in the context of requests for
                                                                                foreseeable leave, the regulations also state that
    6
      Ho nda’s timing requirements are more stringent because the
                                                                                  An employer may also require an employee to comply
regulations do not strictly limit the timing of notice when an em ployee’s        with the employer’s usual and customary notice and
need for leave is not foreseeable. Instead, the regulations acknowledge           procedural requirements for requesting leave. . . .
that under “extrao rdinary circum stances . . . such notice is not feasible,”     However, failure to follow such internal employer
in which case notice should be given “as soon as practicable under the            procedures will not permit an employer to disallow or
facts and circumstances of the particular case.” 29 C.F.R. § 825.30 3(a).
No. 02-3357          Cavin v. Honda of Am. Mfg., Inc.      13    14   Cavin v. Honda of Am. Mfg., Inc.           No. 02-3357

  delay an employee’s taking FMLA leave if the employee          (7th Cir. 2002), concluded that an employer did not violate
  gives timely verbal or other notice.                           the FMLA by discharging an employee who “failed to
                                                                 comply with applicable company rules and policies”
29 C.F.R. § 825.302(d). The regulations do not so explicitly     regarding leave notice where “it was not impossible” for her
discuss employer notice procedures in the context of an          to do so. Id. at 710 (emphasis added).
employee’s unforeseeable need for leave, noting only that
when an employee requires emergency medical leave, an               We conclude that the Seventh and Tenth Circuits have
employer cannot require advance written notice pursuant to       misinterpreted the FMLA’s notice requirements. Their
its internal rules and procedures. 29 C.F.R. § 825.303(a); see   interpretations are contrary to the goals of the FMLA and
Mora v. Chem-Tronics, Inc., 16 F. Supp. 2d 1192, 1208 (S.D.      inconsistent with the regulation of notice in situations where
Cal. 1998) (“The Act does not specify the form of notice that    an employee has a foreseeable need for leave. Rather than
is required for foreseeable leave, and interestingly the Act     simply drawing an inference from the silence of § 825.303
makes no reference to any notice requirement for                 about employer notice requirements other than advance
unforeseeable leave.”).                                          written notice, we read § 825.303 in the context of the FMLA
                                                                 itself and § 825.302.
  In this case, we must focus on § 825.303 because Cavin’s
need for leave was not foreseeable. Clearly the emergency          As an initial matter, we note that the discussion in
medical leave provision of § 825.303 does not apply here         § 825.302 about employer notice procedures in the context of
because Honda’s policy did not require advance written           an employee’s foreseeable need for leave should also apply in
notice at all. Beyond the emergency medical leave provision,     the context of an employee’s unforeseeable need for leave. It
the regulation governing unforeseeable need for leave makes      would be illogical to conclude that Congress intended to
no other references to an employer’s internal requirements.      prohibit employers from “disallow[ing] or delay[ing] an
In light of this silence, the Tenth Circuit, in an unpublished   employee’s taking of FMLA leave” for failure to comply with
opinion, interpreted the regulation to mean that the FMLA        “internal employer procedures” in the context of foreseeable
prohibits an employer from enforcing only its requirement of     need for leave, but not in the context of unforeseeable need
advance written notice and, even then, only in the context of    for leave. 29 C.F.R. § 825.302(d). The regulations suggest
emergencies. Holmes v. The Boeing Co., No. 98-3056, 1999         that notice requirements for unforeseeable leave are more
WL 9760, at *3 (10th Cir. Jan. 12, 1999). The Tenth Circuit      relaxed than the requirements for foreseeable leave, in
reasoned that “[t]he FMLA does not prohibit an employer          keeping with the idea that an unforeseeable need for leave
from requiring its employees to give notice to specific          will often arise in the context of a medical emergency.
company supervisors on the day the employee is going to be       Therefore, there is no principled reason to conclude that
absent in a nonemergency situation, as in this case.” Id. The    employers may “disallow or delay an employee’s taking
Holmes court thus concluded that an employee cannot seek         FMLA leave” for “failure to follow . . . internal employer
FMLA relief in the event of his noncompliance with his           procedures” in the context of unforeseeable leave when they
employer’s specific notice requirements absent an                are prohibited from doing so in the context of foreseeable
“alleg[ation] that his physical condition was such that he       leave. Id.
could not comply with defendant’s reasonable notice
requirements.” Id. (emphasis added). Similarly, the Seventh       Moreover, the conclusion that employers cannot deny
Circuit in Lewis v. Holsum of Fort Wayne, Inc., 278 F.3d 706     FMLA leave on grounds that an employee failed to comply
No. 02-3357          Cavin v. Honda of Am. Mfg., Inc.      15    16   Cavin v. Honda of Am. Mfg., Inc.            No. 02-3357

with internal procedures — as long as “the employee gives        employee need only comply with the requirements of the Act
timely verbal or other notice” — is consistent with the          to invoke its protections.” Marrero, 164 F. Supp. 2d at 463-
purpose of the FMLA. 29 C.F.R. § 825.302(d). In enacting         64. Having concluded that Cavin was not obligated to
the FMLA, one problem that Congress sought to remedy was         comply with Honda’s requirement that he notify the Leave
the “inadequate job security for employees who have serious      Coordination Department, we proceed to evaluate whether,
health conditions that prevent them from working for             viewing the facts in a light favorable to Cavin, he complied
temporary periods.” 29 U.S.C. § 2601(a)(4). Congress             with the notice requirements of the FMLA.
sought to articulate a “minimum labor standard for leave” that
employers would not be able to limit. Cong. Rep. at *21.           When discussing notice requirements in other statutory
“Central to the purposes of the FMLA is that its provisions      contexts, this court has said that “adequacy of notice is
apply even where the entitlements created by the Act are in      consistently regarded as a finding of mixed fact and law.”
excess of those that an employer would be willing or able to     Burkhart v. Post-Browning, Inc., 859 F.2d 1245, 1249 (6th
provide on its own.” Marrero v. Camden County Bd. of Soc.        Cir. 1988) (analyzing the notice provisions of the Vietnam
Servs., 164 F. Supp. 2d 455, 463 (D.N.J. 2001) (citing 29        Era Veterans’ Readjustment Assistance Act of 1974). We
C.F.R. § 825.101). Some courts have struck employer              have distinguished the factual and legal aspects of notice as
policies that impose more stringent requirements on              follows:
employees seeking FMLA leave. See, e.g., id. (striking an
internal policy requiring a doctor’s certification within five     [T]he question of whether any notice was given, and if
days rather than the fifteen days provided for under the           so, what the notice consisted of and when it was given,
FMLA); Mora, 16 F. Supp. 2d at 1218 (“Defendant’s policy           is one of fact. However, the question of whether the
that employees call within thirty minutes of the beginning of      notice satisfied the statutory requirement is one of law.
their shift is inconsistent with the FMLA and is inapplicable      Thus, the issue of notice in this case presents a mixed
to employees requesting FMLA qualifying leave.”). In               question of fact and law.
permitting employers to develop notice procedures, the
Department of Labor did not intend to allow employers in         K & M Joint Venture v. Smith Int’l, Inc., 669 F.2d 1106, 1111
effect to undermine the minimum labor standard for leave.        (6th Cir. 1982) (analyzing notice requirements for breach of
                                                                 warranty claims under a state statute). In a recent
  Reading § 825.303 in the context of the FMLA and               unpublished opinion, however, a panel of this court
§ 825.302, we conclude that employers cannot deny FMLA           characterized the issue of adequate notice under the FMLA as
relief for failure to comply with their internal notice          involving “primarily questions of fact . . . not questions of
requirements. Therefore, we conclude that Honda could not        law.” Williams v. Schuller Int’l, Inc., No.00-3614, 2002 WL
interfere with Cavin’s FMLA rights by enforcing its notice       193929, at *3 (6th Cir. Feb. 5, 2002). In spite of this recent
requirements to deny Cavin benefits to which he otherwise        unpublished opinion, however, it seems more accurate to
may have been entitled under the FMLA.                           describe notice as a mixed question: surely there are some
                                                                 facts that as a matter of law are not sufficient reasonably to
  2. Cavin’s Compliance with the FMLA                            apprise an employer of an employee’s need for leave.
                                                                 Although it is within the province of the jury to determine the
  “[W]here an employer’s internal policies conflict with the     facts of the notice given, it is for the court to determine
provisions of the FMLA, the FMLA controls and an                 whether those facts are sufficient reasonably to give an
No. 02-3357           Cavin v. Honda of Am. Mfg., Inc.        17    18       Cavin v. Honda of Am. Mfg., Inc.                  No. 02-3357

employer notice as required by the FMLA. Therefore, for               On June 21, 1999, I was in a motorcycle accident in
summary judgment purposes, we should determine whether,               which I was badly injured. On this same day, I called
viewing the facts in the light most favorable to Cavin, Cavin         Honda to inform the company that I just got out of the
has complied with the FMLA’s notice requirements as a                 hospital because I was injured in a motorcycle accident.
matter of law.                                                        I told Honda that I could not work. Thereafter, I called
                                                                      my company everyday [sic] that I was scheduled to work
   “[T]o invoke the protection of the FMLA, an employee               to inform the company of my status. When I returned
must provide notice and a qualifying reason for requesting the        from leave on July 6, 1999, many employees at Honda
leave.” Brohm v. JH Props., Inc., 149 F.3d 517, 523 (6th Cir.         knew that I had been injured in a motorcycle accident.
1998). However, “[a]n employee does not have to expressly             Many of these employees, such as Judd, Jock, and Steve
assert his right to take leave as a right under the FMLA.”            asked how I was feeling after the accident. Shawn
Hammon v. DHL Airways, Inc., 165 F.3d 441, 450 (6th Cir.              Dobbins, my supervisor at the time, also asked how the
1999); see 29 C.F.R. §§ 825.302(c), 825.303(b). Because an            accident occurred, how I was feeling, and if I was alright.
employee need not expressly invoke the FMLA, “[t]he critical
question is whether the information imparted to the employer        J.A. at 135 (Cavin Aff.). According to Honda, Cavin only
is sufficient to reasonably apprise it of the employee’s request    “told the security desk that he had been in an accident, could
to take time off for a serious health condition.” Brohm, 149        not work that day, and would be back at work the next day.”7
F.3d at 523 (quotation omitted). “[A]n employee gives his           Honda Br. at 20. Honda notes that Cavin never requested
employer sufficient notice that he is requesting leave for an       leave, did not state that he would need to miss work for an
FMLA-qualifying condition when he gives the employer                extended period, and failed to provide any other information
enough information for the employer to reasonably conclude          that might lead Honda to conclude that Cavin was
that an event described in the FMLA § [2612(a)(1)] has              experiencing a “serious health condition” for FMLA
occurred.” Hammon, 165 F.3d at 451. We agree with the               purposes. Clearly there is a disputed issue of material fact as
Fifth Circuit that it would be inappropriate to articulate          to the content of the notice Cavin gave Honda on June 21.
categorical rules governing the content of notices, instead
recognizing that “[w]hat is practicable, both in terms of the          Summary judgment for Honda is nevertheless appropriate
timing of the notice and its content, will depend upon the          if, viewing these disputed facts in the light most favorable to
facts and circumstances of each individual case.” Manuel v.         Cavin, Cavin failed to give his “employer enough information
Westlake Polymers Corp., 66 F.3d 758, 764 (5th Cir. 1995).          for the employer to reasonably conclude that an event
                                                                    described in FMLA § [2612(a)(1)] has occurred.” Hammon,
  Cavin called security on the day of his motorcycle accident       165 F.3d at 451. Pursuant to § 2612, “an eligible employee
to inform Honda of his absence. According to Cavin,                 shall be entitled to a total of 12 workweeks of leave during
“[w]hen I called in on the 21st and security asked my reason        any 12-month period . . . [b]ecause of a serious health
for calling in, I stated that it was a motorcycle accident.” J.A.
at 251 (Cavin Dep.). He told security that he expected to
                                                                         7
return to work the following day, but after receiving treatment           Cavin now m aintains tha t he did not tell security that he w ould
from another doctor Cavin called in absences for several            return to work the following day. Ho wever, bec ause Cavin disputes this
additional days on a daily basis. According to Cavin’s              fact only in his brief before this court and stated in his sworn deposition
                                                                    that he told Honda that he would return to work the following day, we do
affidavit of June 22, 2001,                                         not reg ard this a s a disputed fact.
No. 02-3357           Cavin v. Honda of Am. Mfg., Inc.        19    20       Cavin v. Honda of Am. Mfg., Inc.                   No. 02-3357

condition that makes the employee unable to perform the             an employee can give notice sufficient to make his employer
functions of the position of such employee.” Id. § 2612(a)(1).      aware that he needs FMLA-qualifying leave without using the
In the context of the FMLA, “[t]he term ‘serious health             words “leave” or “leave of absence.”
condition’ means an illness, injury, impairment, or physical
or mental condition that involves — (A) inpatient care in a           We recognize that in some cases, there may be a question
hospital, hospice, or residential medical care facility; or (B)     of whether or not an employee gave notice to his employer.
continuing treatment by a health care provider.” 29 U.S.C.          The amicus brief filed by the NELA emphasizes urges this
§ 2611(11).                                                         court to recognize a broad definition of “employer” in the
                                                                    FMLA context. However, we need not decide the scope of
   We conclude that for summary judgment purposes Cavin’s           the definition of “employer” under the FMLA in this case.
notice to Honda was sufficient to apprise Honda of his              Honda, assuming for the sake of argument that its internal
“request to take time off for a serious health condition.”          notice requirements were not applicable to Cavin, does not
Brohm, 149 F.3d at 523. In his affidavit, Cavin stated that he      argue that notice was given to the wrong individual, but rather
told security he “was injured in a motorcycle accident” and         Honda only contends that the contents of the notice given
that he “just got out of the hospital.” J.A. at 135 (Cavin Aff.).   were insufficient to provide the adequate notice required by
Although “a person who is involved in a car accident does not       the FMLA.
necessarily incur a serious health condition,” Reich v.
Midwest Plastic Eng’g, Inc., No. 1:94-CV-525, 1995 WL                  Even if we were to evaluate whether the person to whom
514851, at *4 (W.D. Mich. July 26, 1995), Cavin specifically        Cavin gave notice was his “employer,” however, we believe
informed Honda (1) that he had been at the hospital, and            that Cavin’s notice to security should be deemed notice to
(2) that he was unable to work due to his injury. Thus Cavin        Honda under the circumstances.8 Honda specifically directs
did not merely state that he was involved in a motorcycle           employees to report their absences to security. Although
accident, but rather provided additional information about his      Honda might have notice of an absence when an employee
treatment and condition — he told Honda that he was unable          contacts security, it claims to have no notice of a need for a
to perform his job because of his injury. See id. (explaining       leave of absence until an employee contacts the Leave
that an employee involved in a car accident should inform the       Coordination Department. We recognize that it is both
employer of his hospitalization as a result of the accident and     appropriate and efficient for Honda to delegate the
of his condition in order to give the employer notice for           management of all FMLA claims to one department and that
FMLA purposes).                                                     it has chosen the Leave Coordination Department for this

  Honda attempts to make much of the fact that Cavin never
discussed a leave of absence with security when he called to             8
inform security that he would not be at work. However, we                 Even if notice to security did not constitute notice to Honda, we
                                                                    would conc lude that Ho nda had actual no tice of C avin’s potential need for
conclude that Cavin’s failure to use the word “leave” or the        leave. Viewed in the light most favorable to Cavin, the evidence indicates
phrase “leave of absence” is of no consequence in assessing         that Cavin’s sup ervisor had actual notice. T he kno wledge of C avin’s
whether Honda received sufficient notice pursuant to the            supervisor should be imputed to Honda management, as it generally is in
requirements of the FMLA. Just as an employee can give an           other statutory contexts. See, e.g., Cunningham v. Gibson Elec. Co., 43
employer notice of his request for FMLA-qualifying leave            F. Supp. 2d 965 , 975 (N.D . Ill. 1999) (explaining that und er the Fair
                                                                    Labor Standards Act, “[k]nowledge of its supervisors is imputed to the
without invoking the FMLA, see Hammon, 165 F.3d at 450,             employer”).
No. 02-3357                Cavin v. Honda of Am. Mfg., Inc.              21     22   Cavin v. Honda of Am. Mfg., Inc.             No. 02-3357

purpose. See Cavin II, 2002 WL 484521, at *14 (“The goals                       recover under § 2617. Even when an employee proves that
of the FMLA are more likely to be met when a large company                      his employer violated § 2615,
coordinates FMLA leave through one department that is
familiar with the FMLA and its accompanying rules and                             § 2617 provides no relief unless the employee has been
regulations. The FMLA is designed to provide job security                         prejudiced by the violation: The employer is liable only
to employees, but the employees’ needs must be balanced                           for compensation and benefits lost ‘by reason of the
with the legitimate interests of the employers.”). However,                       violation,’ § 2617(a)(1)(A)(i)(I), for other monetary
we are not persuaded that notice to security constitutes notice                   losses sustained ‘as a direct result of the violation,’
to Honda only of the event of an absence, but not of a need                       § 2617(a)(1)(A)(i)(II), and for ‘appropriate’ equitable
for a leave of absence.9                                                          relief, including employment, reinstatement, and
                                                                                  promotion, § 2617(a)(1)(B). The remedy is tailored to
  In light of the above analysis, we conclude that Cavin’s                        the harm suffered.
notice to Honda of his unforeseeable need for leave may meet
the requirements of the FMLA. If Honda lacked “sufficient                       Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, __, 122
information about the employee’s reason for taking leave, [it]                  S. Ct. 1155, 1161 (2002). According to Honda, Cavin
should [have] inquire[d] further to ascertain whether the paid                  suffered direct harm only as a result of his September-October
leave is potentially FMLA-qualifying.” Manuel, 66 F.3d at                       leave.
762 (quotation omitted). Viewing the facts in the light most
favorable to Cavin, Honda was on notice and had a duty to                          The regulations clearly provide that “employers cannot use
collect additional information from Cavin that would be                         the taking of FMLA leave as a negative factor in employment
necessary to make his leave comply with FMLA                                    actions, such as hiring, promotions or disciplinary actions; nor
requirements.                                                                   can FMLA leave be counted under ‘no fault’ attendance
                                                                                policies,” 29 C.F.R. § 825.220(c), suggesting that
C. Damages                                                                      employment actions affected by such considerations are
                                                                                cognizable harms under § 2617; see Bachelder v. Am. W.
  Finally, Honda argues that even if it interfered with Cavin’s                 Airlines, Inc., 259 F.3d 1112, 1125 (9th Cir. 2001)
FMLA rights in June 1999, Cavin suffered no cognizable                          (explaining that to prevail on an FMLA interference claim, an
injury as a result of that interference and therefore cannot                    employee “need only prove by a preponderance of the
                                                                                evidence that her taking of FMLA-protected leave constituted
                                                                                a negative factor in the decision to terminate her”). Thus, “a
                                                                                termination based only in part on an absence covered by the
    9
      Honda perhaps m ay not re ceive actual notice of leaves of absence        FMLA, even in combination with other absences, may still
from security in light of the fact that Honda policy does not require           violate the FMLA.” Barnett v. Revere Smelting & Refining
communication betwe en security and the Leave C oordinatio n De partm ent.      Corp., 67 F. Supp. 2d 378, 388 (S.D.N.Y. 1999).
But if Honda wants the Leave Co ordination D epartment to be aware of all
potential leaves of absence, it can take several steps to protect itself. For
example, upon learning of an emp loyee’s p otential need for a leave of           Cavin arguably suffered direct harm as a result of the June
absence, security could transfer the call to the Leave Coordination             incident. Cavin was coached about Honda leave policies,
Departm ent, directly contact the Leave C oordinatio n De partm ent to notify   which the company considered to be “the first step in
them o f a possible candidate for leave, or even inform the employee that       progressive discipline.” J.A. at 353 (McClellan Dep.); cf. J.A.
he sho uld co ntact the Leave Co ordination D epartment.
No. 02-3357           Cavin v. Honda of Am. Mfg., Inc.       23    24   Cavin v. Honda of Am. Mfg., Inc.            No. 02-3357

at 291 (Handbook) (“The purpose of coaching and counseling         of action, holding that “as a matter of Ohio common law, a
for attendance is to confirm your understanding of the             cause of action for wrongful discharge in violation of public
attendance policy, gain understanding of the reasons for your      policy based solely on an employer’s violation of the FMLA
absenteeism, and to help correct the attendance situation.”).      . . . is unnecessary to vindicate the policy goals of the
Moreover, when the facts of Cavin’s separation were                FMLA.” Wiles v. Medina Auto Parts, 773 N.E. 2d 526, 528
presented to Honda’s employee review panel, it was                 (Ohio 2002). Because Ohio does not recognize a cause of
emphasized that the September-October incident was not the         action for wrongful discharge in violation of the public policy
sole reason for Cavin’s separation. The review panel was told      embodied in the FMLA, we affirm the district court’s
that Cavin had violated Honda’s leave of absence policy in         dismissal of Cavin’s wrongful-discharge claim.
June, at which time he “received a re-education/coaching on
our leave of absence policy.” J.A. at 168 (Review Panel). It                           IV. CONCLUSION
was further emphasized before the review panel that
                                                                     For the reasons explained above, we AFFIRM the district
  [T]his one incident did not on its own separate Mr. Cavin        court’s dismissal of Cavin’s wrongful-discharge claim and
  from employment. Mr. Cavin was put on notice in July             REVERSE and REMAND for further proceedings regarding
  that if future violations occurred he would be seperated         Cavin’s FMLA-interference claim.
  [sic]. . . . Mr. Cavin disregarded [Honda] policy and the
  direction that was given to him on July 6, 1999.
J.A. at 168 (Review Panel). Because these facts were
included in the presentation to the review panel evaluating
Cavin’s separation, Honda’s conclusion that the June
absences were not FMLA-qualifying leave was arguably a
“negative factor” in Honda’s decision to separate Cavin.
29 C.F.R. § 825.220(c). Therefore, Cavin has introduced
sufficient evidence to establish a genuine issue of material
fact about whether he was harmed by the June incidents.
III. WRONGFUL DISCHARGE IN VIOLATION OF
          OHIO PUBLIC POLICY
   Cavin also appeals the district court’s dismissal of his Ohio
common-law claim for wrongful discharge in violation of
public policy. See Cavin I, 138 F. Supp. 2d at 994. We
review de novo a district court’s decision to dismiss a claim
pursuant to Federal Rule of Civil Procedure 12(b)(6). Decker
v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 205 F.3d 906,
909 (6th Cir. 2000). After the briefs were filed in this case,
the Ohio Supreme Court declined to recognize such a cause
