     15-1113
     Coutard v. Municipal Credit Union


 1                                 UNITED STATES COURT OF APPEALS

 2                                       FOR THE SECOND CIRCUIT

 3                                                    ------

 4                                              August Term, 2015

 5   (Argued: February 10, 2016                                              Decided: February 9, 2017)

 6                                             Docket No. 15-1113

 7   _________________________________________________________

 8   FRANTZ COUTARD,

 9                                                    Plaintiff-Appellant,

10                                           - v. -

11   MUNICIPAL CREDIT UNION,

12                                       Defendant-Appellee.
13   _________________________________________________________

14   Before: KEARSE, POOLER, and SACK, Circuit Judges.

15                   Appeal from a judgment of the United States District Court for the Eastern District of

16   New York, Eric N. Vitaliano, Judge, dismissing plaintiff's complaint alleging that his former employer

17   interfered with and denied his right under the Family and Medical Leave Act of 1993 ("FMLA"),

18   29 U.S.C. § 2601 et seq., to take leave in order to take care of his seriously ill grandfather who, in loco

19   parentis, had raised him as a child. The district court granted defendant's motion for summary

20   judgment dismissing the complaint on the ground that, although the FMLA provides that an eligible

21   employee such as plaintiff may be entitled to leave to care for a person with whom he had an in loco
 1   parentis relationship as a child, plaintiff had informed defendant that he needed to take care of his

 2   grandfather without mentioning the in loco parentis relationship. On appeal, plaintiff contends

 3   principally that the district court erred in ruling that his failure to mention the nature of the relationship

 4   was dispositive, given the facts, acknowledged by defendant, that defendant did not inform its

 5   employees that an in loco parentis relationship could entitle them to FMLA leave, did not inquire

 6   whether plaintiff had such a relationship with his grandfather, and instead, when plaintiff requested

 7   such leave, responded categorically that he was not entitled to FMLA leave to care for a grandparent.

 8   Plaintiff asks that we reverse that ruling and order that partial summary judgment on the issue of

 9   liability be granted in his favor. We hold that because plaintiff met the eligibility requirements for

10   FMLA leave and requested that leave expressly to care for his seriously ill grandfather, defendant as

11   an employer covered by the FMLA had an obligation to specify any additional information that it

12   needed in order to determine whether plaintiff was entitled to such leave. We conclude that the

13   district court erred in granting summary judgment to defendant, but that plaintiff was not entitled to

14   partial summary judgment in his favor.

15                   Vacated and remanded.

16                            ABDUL K. HASSAN, Queens Village, New York (Abdul Hassan Law
17                            Group, Queens Village, New York, on the brief), for Plaintiff-
18                            Appellant.

19                            DOUGLAS E. MOTZENBECKER, New York, New York (Gordon &
20                            Rees, New York, New York, on the brief), for Defendant-Appellee.




                                                           2
 1   KEARSE, Circuit Judge:

 2                   Plaintiff Frantz Coutard appeals from a judgment of the United States District Court

 3   for the Eastern District of New York, Eric N. Vitaliano, Judge, dismissing his complaint alleging that

 4   his employer defendant Municipal Credit Union ("MCU") denied him leave and terminated his

 5   employment in violation of the Family and Medical Leave Act of 1993 ("FMLA" or the "Act"),

 6   29 U.S.C. § 2601 et seq., after Coutard sought leave to take care of his seriously ill grandfather who,

 7   in loco parentis, had raised him as a child. The district court granted MCU's motion for summary

 8   judgment dismissing the complaint on the ground that, although the FMLA provides that an eligible

 9   employee may be entitled to take leave in order to care for a person with whom he had an in loco

10   parentis relationship as a child, Coutard had informed MCU merely that he needed to take care of his

11   grandfather without informing MCU of the in loco parentis relationship. On appeal, Coutard contends

12   principally that the district court erred in ruling that his failure to mention the nature of the relationship

13   was dispositive, given the undisputed facts that MCU did not inform its employees that an in loco

14   parentis relationship could entitle them to FMLA leave, did not inquire whether Coutard had such a

15   relationship with his grandfather, and, when he requested FMLA leave, responded categorically that

16   the FMLA did not entitle him to such leave to care for a grandparent. Coutard asks that we reverse

17   the dismissal of his complaint and order that partial summary judgment on the issue of liability be

18   granted in his favor. For the reasons that follow, we hold that because Coutard met the eligibility

19   requirements for FMLA leave and requested that leave expressly to care for his seriously ill

20   grandfather, MCU as an employer covered by the Act had an obligation to specify the additional

21   information that it needed in order to determine whether he was entitled to such leave. We conclude

22   that the district court erred in granting summary judgment to MCU on the basis that Coutard had failed


                                                           3
 1   to provide the necessary information, given MCU's denial of Coutard's request without requesting

 2   additional information. In light of other facets of the record, we conclude that Coutard was not

 3   entitled to partial summary judgment in his favor.



 4                                            I. BACKGROUND



 5                  Coutard sought leave under the FMLA to care for his grandfather Jean Manesson

 6   Dumond. According to Coutard, Dumond had raised Coutard as his son from before the age of four,

 7   after Coutard's father died, until Coutard was approximately 14. In January 2013 Dumond--who had

 8   suffered a stroke in 2011--lived with Coutard, was 82 years old, and suffered from a number of

 9   chronic medical conditions, including diabetes, hypertension, asthma, prostate cancer, high

10   cholesterol, and heart disease. On the evening of January 22, 2013, Dumond was taken to a hospital

11   by ambulance; he was diagnosed with bronchitis, and was discharged on January 23. Coutard,

12   believing that Dumond was seriously ill and should not be left unattended, determined to stay home

13   and care for him until Coutard could secure the assistance of a home health aide, and he sought FMLA

14   leave to do so. MCU denied him leave, and when he remained at home to care for Dumond, MCU

15   terminated his employment.

16                  In this action alleging that MCU's actions interfered with and violated Coutard's right

17   under the FMLA, both sides moved for summary judgment. Certain of the facts, and the applicability

18   of certain basic legal principles, are undisputed.

19                  It is undisputed that MCU, a financial institution, was an employer to which the FMLA

20   applied throughout January 2013; that Coutard was employed by MCU from July 18, 2011, to


                                                          4
 1   February 4, 2013; and that in the 12 months preceding his January 23, 2013 request for FMLA leave,

 2   Coutard worked for MCU for more than 1250 hours and was within the FMLA's definition of

 3   employees who were "eligible," 29 U.S.C. § 2611(2)(A), to take leave in order to care for a person

 4   deemed a family member by the FMLA, see id. § 2612(a)(1). Such persons include a grandfather who

 5   stood in loco parentis to the employee when the employee was a child under the age of 18. See id.

 6   §§ 2612(a)(1)(C), 2611(7), 2611(12)(A).

 7                  In granting MCU's motion for summary judgment, the district court also found it

 8   undisputed that

 9                         Coutard was raised by his maternal grandfather, Jean Manesson
10                  Dumond, after his biological father passed away before Coutard's fourth
11                  birthday. Dumond acted in all respects as [Coutard's] father--feeding him,
12                  clothing him, paying for his education, taking him to school, providing
13                  emotional and social support. In fact, Dumond referred to Coutard as his son.

14   Memorandum and Order dated April 9, 2015 ("D.Ct. Ord."), at 1-2 & n.1 (internal quotation marks

15   and citations to Plaintiff's Rule 56 Statement of Material Undisputed Facts ("Coutard's Rule 56.1

16   Statement") omitted).

17                  In January 2013, when Coutard requested FMLA leave to care for Dumond, it is

18   undisputed that "MCU informed Coutard that he could not take FMLA leave to care for his

19   grandfather, because the statute does not apply to grandparents . . . ." (Defendant's Statement of

20   Undisputed Facts in Support of Its Motion for Summary Judgment ("MCU's Rule 56.1 Statement")

21   ¶ 12 (emphases added).) The district court stated as follows:

22                          On January 23, 2013, following Dumond's bronchitis episode, plaintiff
23                  took leave from MCU to care more intensively for him. . . . To provide th[e
24                  necessary] level of care for his grandfather, Coutard absented himself from
25                  work from January 23, 2013 to February 4, 2013.



                                                      5
 1                           Prompted by his grandfather's bout with bronchitis, plaintiff requested
 2                  to take FMLA leave from MCU, but it was denied on the ground that
 3                  grandparents are not covered under the Act. Critically, although defendant
 4                  never informed Coutard that grandparents could be covered under the FMLA,
 5                  depending on the circumstances, Coutard admits that he never notified MCU,
 6                  at the time he made the FMLA request or at any relevant point thereafter, that
 7                  Dumond had raised him as if he were his father. Specifically, Coutard admits,
 8                  he merely asked MCU whether he would be permitted to take leave for his
 9                  grandfather and did not provide MCU with specific information about his
10                  personal circumstances or suggest that his grandfather might stand in loco
11                  parentis with him. Following his inquiry, though MCU did not permit him to
12                  take FMLA leave, it did advise him to apply for a short-term leave of absence
13                  under a separate MCU personnel policy. Coutard then took no action, applying
14                  neither for the FMLA leave nor the short-term company leave.

15                         . . . . Because he was absent for more than two consecutive days
16                  without leave, on February 4, 2013, MCU notified him by letter that his
17                  employment was terminated due to job abandonment.

18   D.Ct. Ord. at 3-4 (internal quotation marks--as well as citations to Coutard's Rule 56.1 Statement,

19   MCU's Rule 56.1 Statement, Defendant's Counterstatement of Disputed Facts in Opposition to

20   Plaintiff's Motion for Summary Judgment ("MCU's Rule 56.1 Counterstatement"), and Plaintiff's

21   Counterstatement of Facts in Response to Defendant's Rule 56 Statement of Material Facts--omitted)

22   (emphases added).

23                  Coutard argued that he would have informed MCU about the in loco parentis

24   relationship with his grandfather had he been asked or had he known of those FMLA provisions.

25   However, he stated,

26                  [d]efendant . . . never informed me that grandfathers are in fact covered by the
27                  FMLA if an in loco parentis relationship exists. If defendant or [its benefits
28                  manager with whom Coutard spoke] had informed me about the FMLA's
29                  in loco parentis coverage or had requested information as to whether grandpa
30                  Dumond had an in loco parentis relationship with me when I was a child, I
31                  would have gladly and promptly provided such information.

32   (Declaration of Frantz Coutard dated May 12, 2014, ¶ 23.)


                                                       6
 1                  In response, MCU took the position that it was not obligated to inform employees

 2   affirmatively of the FMLA's coverage of in loco parentis relationships.               (See, e.g., MCU

 3   Memorandum of Law in Opposition to Coutard's Motion for Summary Judgment ("MCU's Opposing

 4   Mem.") at 1-2, 7-8.) MCU pointed out that United States Department of Labor ("DOL") regulations

 5   promulgated under the FMLA allowed employers to post a DOL form provided in Appendix C to

 6   29 C.F.R. Part 825 ("Appendix C") in satisfaction of their duties to provide employees with "a notice

 7   explaining the Act's provisions," 29 C.F.R. § 825.300(a)(1); see id. § 825.300(a)(4). Based on part

 8   of the DOL form provided in Appendix C--submitted to the district court by MCU in support of its

 9   motion for summary judgment (see Declaration of Douglas E. Motzenbecker dated May 12, 2014

10   ("Motzenbecker Declaration"), Exhibit J)--MCU argued that the employee has the burden, at the time

11   he requests FMLA leave, to provide all of the facts needed to show his entitlement to that leave. (See

12   MCU's Opposing Mem. at 2-3, 6-7.)

13                  The district court agreed with MCU's position. It stated that in order to prevail on his

14   FMLA claim, Coutard was required to prove five elements, to wit,

15                  (1) that he [wa]s an eligible employee; (2) that defendant constitute[d] an
16                  employer covered by the Act; (3) that he was entitled to leave; (4) that he gave
17                  notice to his employer of his intention to take leave; and (5) that his employer
18                  denied him benefits that he was entitled to under the Act,

19   D.Ct. Ord. at 8, "the only one in material controversy [being] the fourth," id. at 9. The court framed

20   the dispositive issue as "whether Coutard sufficiently notified MCU of Dumond's in loco parentis

21   relationship with him and that it was on that basis he sought FMLA leave," id. It quoted a regulation

22   that requires an employee to "'provide sufficient information'" to indicate that "'the FMLA may apply

23   to the leave request,'" and requires the "'employer'" to seek "'any additional . . . information'" needed



                                                        7
 1   for it to determine "'whether the leave is FMLA-qualifying,'" id. at 11-12 (quoting 29 C.F.R.

 2   § 825.303(b) (emphases ours)). But the court concluded that the employee's obligation is to provide

 3   the employer with all of the needed information "at or before the time he requests leave." D.Ct. Ord.

 4   at 14. It stated:

 5                   Under 29 C.F.R. § 825.303(b), to seek leave for the unforeseeable illness of an
 6                   immediate family member, such as a parent, an employee must "provide
 7                   sufficient information for an employer to reasonably determine whether the
 8                   FMLA may apply to the leave request." Further, "[w]hen an employee seeks
 9                   leave for the first time for a FMLA-qualifying reason, the employee need not
10                   expressly assert rights under the FMLA or even mention the FMLA." Id. "The
11                   employer will be expected to obtain any additional required information
12                   through informal means," and "the employee has an obligation to respond to
13                   an employer's questions designed to determine whether an absence is
14                   potentially FMLA-qualifying." Id. . . . Similarly, pursuant to 29 C.F.R.
15                   § 825.300(b), an employer becomes obligated to notify the employee of his
16                   eligibility to take FMLA leave "[w]hen an employee requests FMLA leave, or
17                   when the employer acquires knowledge that an employee's leave may be for an
18                   FMLA-qualifying reason." The employer's notification requirements come into
19                   effect once "the employer has enough information to determine whether the
20                   leave is being taken for a FMLA-qualifying reason." Id. at § 825.300(d)(1),
21                   (2).

22                            In determining the adequacy of the notice given by the employee, [t]he
23                   critical question is whether the information imparted to the employer is
24                   sufficient to reasonably apprise it of the employee's request to take time off. . . .
25                   While an employer's duty to inquire may be predicated on statements made by
26                   the employee, the employer is not required to be clairvoyant. . . . An
27                   employer's duty to conduct further inquiry into a request for leave is triggered
28                   when an employee gives sufficient notice of a . . . need for the requested
29                   leave. . . .

30                          . . . FMLA is not triggered unless the employee can later show that the
31                   employer should have reasonably understood, at the time of the request, that
32                   the expressed need for leave was covered by FMLA. . . .

33                           Overall, an employee will be found to have failed to sufficiently explain
34                   his reasons for needed leave, and the burden of inquiry will not shift to the
35                   employer if he does not, at or before the time he requests leave, explain that
36                   his grandparent had raised him and it was that relationship, as opposed to the


                                                          8
 1                  blood-grandfather relationship, that brought his request under the FMLA
 2                  umbrella.

 3   D.Ct. Ord. at 11-15 (footnote and other internal quotation marks omitted (emphases ours)).

 4                  Because Coutard did not inform MCU of the in loco parentis relationship when he

 5   requested FMLA leave, the court granted MCU's motion for summary judgment and dismissed the

 6   complaint. This appeal followed.



 7                                              II. DISCUSSION



 8                  On appeal, Coutard contends principally that he provided MCU with sufficient

 9   information to permit it to understand that his leave request was potentially within the scope of the

10   FMLA, and that if he did not provide sufficient information it was only because MCU failed in its

11   obligations (a) to provide him with information as to his right to seek such leave under the Act's

12   in loco parentis provision, and (b) to request further information from him. For the reasons that

13   follow, we conclude that MCU was required to make further inquiry of Coutard before denying his

14   request for FMLA leave, and we vacate the judgment and remand for further proceedings. We reject

15   MCU's contention that the district court's dismissal of the complaint can be upheld on other grounds,

16   see Part II.C. below; and we reject Coutard's request that we order the grant of partial summary

17   judgment on the issue of liability in his favor, see Part II.D.

18




                                                         9
 1   A. The FMLA and the Regulations Implementing It

 2                   The FMLA provides generally that a covered employer is required to grant an eligible

 3   employee up to a total of 12 weeks of leave during any 12-month period for personal or family needs

 4   indicated in the Act. See 29 U.S.C. § 2612(a). There are four principal facets to the scope of the Act:

 5   (1) the employers to which it applies, (2) the employees who are eligible for FMLA leave, (3) the

 6   personal or family relationship in question, and (4) the qualifying reasons for the requested leave.

 7                   An FMLA-covered "employer" includes "any person engaged in commerce or in any

 8   industry or activity affecting commerce who employs 50 or more employees for each working day

 9   during each of 20 or more calendar workweeks in the current or preceding calendar year." 29 U.S.C.

10   § 2611(4)(A)(i). With respect to a covered employer that has at least 50 employees within 75 miles

11   of the employee's worksite, see id. § 2611(2)(B)(ii), the Act defines an "eligible employee," in

12   pertinent part, as

13                   an employee who has been employed--

14                                  (i) for at least 12 months by the employer with respect to whom
15                          leave is requested under section 2612 of this title; and

16                                  (ii) for at least 1,250 hours of service with such employer
17                          during the previous 12-month period,

18   id. § 2611(2)(A); see also 29 C.F.R. § 825.110(a) (so defining "eligible employee").

19                   In general, with respect to "Entitlement to leave," the FMLA provides in part that

20   (subject to the employer's right to request certification from a health care provider, see 29 U.S.C.

21   § 2613),

22                   an eligible employee shall be entitled to a total of 12 workweeks of leave
23                   during any 12-month period for one or more of the following:



                                                       10
 1                                   ....

 2                                   (C) In order to care for the spouse, or a son, daughter, or
 3                           parent, of the employee, if such spouse, son, daughter, or parent has a
 4                           serious health condition,

 5   id. § 2612(a)(1)(C) (emphases added). The term "parent" is defined to include not only the employee's

 6   biological parent but also "an individual who stood in loco parentis to an employee when the employee

 7   was a son or daughter," id. § 2611(7); "son or daughter," to the extent pertinent here, is defined to

 8   include "a child[,] of a person standing in loco parentis, who is . . . under 18 years of age," id.

 9   § 2611(12).

10                   The FMLA provides that covered employers must conspicuously "post . . . a notice,

11   to be prepared or approved by the [DOL], setting forth excerpts from, or summaries of, the pertinent

12   provisions of th[e Act]," id. § 2619(a), and that it is "unlawful for any employer to interfere with,

13   restrain, or deny the exercise of or the attempt to exercise, any right provided under th[e Act]," id.

14   § 2615(a)(1).

15                   With respect to interference claims under the FMLA, our Court has "formally

16   adopt[ed]" the "standard regularly used by district courts of this Circuit"--which was used by the

17   district court in this case--that is, that to prevail on an interference claim,

18                   a plaintiff must establish: 1) that she is an eligible employee under the FMLA;
19                   2) that the defendant is an employer as defined by the FMLA; 3) that she was
20                   entitled to take leave under the FMLA; 4) that she gave notice to the defendant
21                   of her intention to take leave; and 5) that she was denied benefits to which she
22                   was entitled under the FMLA.

23   Graziadio v. Culinary Institute of America, 817 F.3d 415, 424 (2d Cir. 2016) ("Graziadio") (emphasis

24   added). We did not, however, have occasion to consider what constitutes notice that is sufficient. See

25   id. at 425 ("Defendants have not questioned the adequacy of Graziadio's notice . . . ."). Although the


                                                         11
 1   adequacy of notice is usually a fact-specific question, the determinative issue on this appeal is whether

 2   the district court correctly interpreted the DOL regulations in determining what kind of notice Coutard

 3   was required to provide.

 4                  The regulations in effect at the time Coutard requested FMLA leave from MCU, see

 5   29 C.F.R. pt. 825 (2009), include instructions as to the proper timing and contents of the notice that

 6   an employee is required to give an employer in order to take such leave, and the notice that employers

 7   must provide to employees as to their rights under the Act. As pertinent here, the regulation governing

 8   the notice that an employee must give the employer as to his need for leave that was not foreseeable

 9   provided as follows:

10                          (a) Timing of notice. When the approximate timing of the need for
11                  leave is not foreseeable, an employee must provide notice to the employer as
12                  soon as practicable . . . .

13                          (b) Content of notice. An employee shall provide sufficient
14                  information for an employer to reasonably determine whether the FMLA may
15                  apply to the leave request. Depending on the situation, such information may
16                  include . . . whether the employee or the employee's family member is under
17                  the continuing care of a health care provider . . . or if the leave is for a family
18                  member that the condition renders the family member unable to perform daily
19                  activities . . . . When an employee seeks leave for the first time for a FMLA-
20                  qualifying reason, the employee need not expressly assert rights under the
21                  FMLA or even mention the FMLA. . . . The employer will be expected to
22                  obtain any additional required information through informal means.

23   29 C.F.R. §§ 825.303(a) and (b) (emphases added); see also id. § 825.302(c) (with respect to

24   foreseeable needs, "the employer should inquire further of the employee if it is necessary to have more

25   information about whether FMLA leave is being sought").

26                  The regulation in 29 C.F.R. § 825.300 prescribed the notice that must be given by a

27   covered employer:



                                                        12
 1                         (a) General notice. (1) Every employer covered by the FMLA is
 2                  required to post and keep posted on its premises, in conspicuous places where
 3                  employees are employed, a notice explaining the Act's provisions . . . .

 4                          ....

 5                          (3) If an FMLA-covered employer has any eligible employees, it shall
 6                  also provide this general notice to each employee by including the notice in
 7                  employee handbooks or other written guidance to employees concerning
 8                  employee benefits or leave rights, if such written materials exist, or by
 9                  distributing a copy of the general notice to each new employee upon hiring.
10                  In either case, distribution may be accomplished electronically.

11                          (4) To meet the requirements of paragraph (a)(3) of this section,
12                  employers may duplicate the text of the notice contained in Appendix C of this
13                  part or may use another format so long as the information provided includes,
14                  at a minimum, all of the information contained in that notice.

15   29 C.F.R. §§ 825.300(a)(1), (3), and (4) (emphases added).

16                         (b) Eligibility notice. (1) When an employee requests FMLA leave, or
17                  when the employer acquires knowledge that an employee's leave may be for an
18                  FMLA-qualifying reason, the employer must notify the employee of the
19                  employee's eligibility to take FMLA leave within five business days, absent
20                  extenuating circumstances.

21   29 C.F.R. § 825.300(b)(1) (emphases added); see also id. § 825.300(c)(5) ("Employers are also

22   expected to responsively answer questions from employees concerning their rights and responsibilities

23   under the FMLA."); id. § 825.300(e) ("Failure to follow the notice requirements set forth in this

24   section may constitute an interference with, restraint, or denial of the exercise of an employee's FMLA

25   rights.").

26                  "Appendix C to Part 825--Notice to Employees of Rights under FMLA

27   (WH Publication 1420)," referred to above in § 825.300(a)(4), provides a form ("DOL Form" or

28   "Form"), that employers may use to inform employees of their rights under the FMLA. The DOL

29   Form is titled "EMPLOYEE RIGHTS AND RESPONSIBILITIES UNDER THE FAMILY AND


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 1   MEDICAL LEAVE ACT" and includes sections headed "Basic Leave Entitlement," "Eligibility

 2   Requirements, "Employee Responsibilities," and "Employer Responsibilities."

 3                  Under "Basic Leave Entitlement," the DOL Form states, in pertinent part, as follows:

 4                         FMLA requires covered employers to provide up to 12 weeks of unpaid
 5                  job-protected leave to eligible employees for the following reasons:

 6                            ....

 7                          C to care for the employee's spouse, son or daughter, or parent, who has
 8                  a serious health condition . . . .

 9   29 C.F.R. pt. 825, App'x C. As this "Basic Leave Entitlement" section of the DOL Form does not

10   mention that the term "parent" includes a person who, when the employee was a child, served in loco

11   parentis to the employee, MCU argues that it was not required to inform employees of those

12   provisions of the Act.

13                  However, the DOL Form, after defining or describing, inter alia, eligibility

14   requirements, protections, and serious health conditions, goes on to describe the notice responsibilities

15   of employees and employers, in pertinent part, as follows:

16                  Employee Responsibilities

17                            ....

18                         Employees must provide sufficient information for the employer to
19                  determine if the leave may qualify for FMLA protection . . . .

20                  Employer Responsibilities

21                         Covered employers must inform employees requesting leave whether
22                  they are eligible under FMLA. If they are, the notice must specify any
23                  additional information required . . . .

24   29 C.F.R. pt. 825, App'x C (emphases added).



                                                        14
 1                  Thus, the "Responsibilities" sections of the DOL-prescribed notice and the related

 2   regulations establish that if an eligible employee provides sufficient information for the employer

 3   reasonably to determine that the requested leave "may" qualify for FMLA protection, the employer

 4   "must" specify whether, and what, additional information is required for a determination of whether

 5   the employee is entitled to such leave. Id.; see 29 C.F.R. § 825.303(b).

 6                  An employer is not required to use the DOL Form; but if it does not, "the information

 7   provided" by the employer must "include[], at a minimum, all of the information contained in that

 8   [Appendix C] notice." 29 C.F.R. § 825.300(a)(4) (emphases added). Thus, whether or not the DOL

 9   Form is used, a covered employer "must" inform employees both (a) that they need provide only

10   sufficient information to show that the requested leave reasonably "may" be FMLA-qualifying, and

11   (b) that if an eligible employee provides such information and the employer needs additional

12   information it is the employer's responsibility to seek such additional information. 29 C.F.R. pt. 825,

13   App'x C; see 29 C.F.R. § 825.300(a)(4); id. § 825.303(b).

14                  In light of these regulations, we conclude that the obligation of an employee to give

15   notice of his need for FMLA leave is not the obligation, imposed by the district court on Coutard, to

16   provide the employer with all of the necessary details to permit a definitive determination of the

17   FMLA's applicability at or before the time of the request. Rather, in the absence of a request for

18   additional information, an employee has provided sufficient notice to his employer if that notice

19   indicates reasonably that the FMLA may apply. See, e.g., Lichtenstein v. University of Pittsburgh

20   Medical Center, 691 F.3d 294 (3d Cir. 2012) (interpreting the 2009 version of § 825.303).

21                  In Lichtenstein, the district court had summarily dismissed an FMLA claim because

22   the notice given by the employee had described a circumstance that "'might not'" qualify for FMLA


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 1   leave, id. at 304. The Third Circuit reversed the grant of summary judgment. In considering "the

 2   specificity of information employees must provide to adequately notify employers of unforeseeable

 3   FMLA leave," id. at 296, the court of appeals concluded that

 4                   the District Court answered the wrong question. The question is not whether
 5                   the information conveyed to the employer necessarily rules out non-FMLA
 6                   scenarios. The question is whether the information allows an employer to
 7                   "reasonably determine whether the FMLA may apply." 29 C.F.R.
 8                   § 825.303(b) (emphases added). Reasonableness does not require certainty,
 9                   and "may" does not mean "must,"

10   691 F.3d at 304.

11                   We note that a prior version of § 825.303 did not contain the above "FMLA may apply"

12   language; it provided that an employee, in giving notice, "need not expressly assert rights under the

13   FMLA or even mention the FMLA, but may only state that leave is needed," and that "[t]he employer

14   will be expected to obtain any additional required information through informal means," 29 C.F.R.

15   § 825.303(b) (1995). But even that earlier regulation's less specific language has been interpreted as

16   meaning that an employee need only provide the employer with sufficient information to understand

17   that the circumstances indicate that the FMLA "may" apply. See, e.g., Rask v. Fresenius Medical Care

18   North America, 509 F.3d 466, 471 (8th Cir. 2007) ("[T]he employer's duties are triggered when the

19   employee provides enough information to put the employer on notice that the employee may be in

20   need of FMLA leave." (internal quotation marks omitted (emphasis ours))), cert. denied, 554 U.S. 919

21   (2008); Burnett v. LFW Inc., 472 F.3d 471, 479 (7th Cir. 2006) ("The employee's notice obligation is

22   satisfied so long as he provides information sufficient to show that he likely has an FMLA-qualifying

23   condition. . . . [T]he employee's duty is merely to place the employer on notice of a probable basis

24   for FMLA leave. . . . [E]mployers . . . are entitled to the sort of notice that will inform them . . . that



                                                         16
 1   the FMLA may apply." (internal quotation marks omitted (emphases in Burnett))); Bachelder v.

 2   America West Airlines, Inc., 259 F.3d 1112, 1130-31 (9th Cir. 2001) ("[I]t is the employer's

 3   responsibility, not the employee's, to determine whether a leave request is likely to be covered by the

 4   Act. . . . Employees need only notify their employers that they will be absent under circumstances

 5   which indicate that the FMLA might apply . . . . In short, the employer is responsible, having been

 6   notified of the reason for an employee's absence, for being aware that the absence may qualify for

 7   FMLA protection." (emphasis added)).

 8                  We conclude that the district court erred in ruling that Coutard was required, at the time

 9   of his request, to provide MCU with all of the information it needed to determine with certainty that

10   his requested leave was within the FMLA.

11                  MCU asks us to reach the contrary conclusion, relying principally on Sherrod v.

12   Philadelphia Gas Works, 57 F. App'x 68 (3d Cir. 2003), in which the Third Circuit upheld summary

13   judgment dismissing an FMLA complaint because the plaintiff's request for leave in order to care for

14   her grandmother had not specified "that her grandmother had raised her," see id. at 72. The regulation

15   applied in that case, however, was § 825.208(a)(1), which required the employee to "'explain the

16   reasons for the needed leave so as to allow the employer to determine that the leave qualifies under

17   the Act,'" 57 F. App'x at 72 (quoting 29 C.F.R. § 825.208(a)(1) (2002) (emphasis ours)). Section

18   825.208(a)(1) was withdrawn effective January 16, 2009; and although it was revised and renumbered

19   825.301, the revised version adds the caveat that the employee's notice must "satisfy the notice

20   requirements set forth in § 825.302 or § 825.303," 29 C.F.R. § 825.301(b) (2009).

21                  Section 825.303, the regulation relevant to Coutard, required him initially, as discussed

22   above, only to provide sufficient information to indicate that the FMLA "may" apply.


                                                       17
 1   B. The Sufficiency of Coutard's Notice

 2                  There can be no serious question that an employee's request for leave to care for his

 3   seriously ill grandfather seeks leave that "may" qualify for FMLA protection. Although MCU argues

 4   that it was not required to inquire as to whether Coutard had a "[u]nique" relationship with his

 5   grandfather (MCU brief on appeal at 27), a grandparent's raising of a child in loco parentis is hardly

 6   unique. The very reason that Congress in the FMLA defined "parent" and "son or daughter" to

 7   include, respectively, "an individual who stood in loco parentis to an employee when the employee"

 8   was "under 18 years of age," 29 U.S.C. §§ 2611(7) & 2611(12)(A) (emphasis added), and "a child of

 9   a person standing in loco parentis," 29 U.S.C. § 2611(12), was to "reflect the reality that many

10   children in the United States today do not live in traditional 'nuclear' families with their biological

11   father and mother," and are increasingly raised by others including "their grandparents," S. Rep. No.

12   103-3, at 22 (1993), reprinted in 1993 U.S.C.C.A.N. 3, 24 (other internal quotation marks omitted

13   (emphases ours)).

14                  Indeed, MCU, in support of its summary judgment motion, submitted a July 2010 DOL

15   "Fact Sheet #28C"--attached to the Motzenbecker Declaration as Exhibit K--titled "FMLA leave to

16   care for a parent with a serious health condition on the basis of an in loco parentis relationship." That

17   general-information document stated that

18                  [i]n enacting the FMLA, Congress recognized the changing needs of the
19                  American family, including the growing need for wage earners to provide care
20                  both for their children and for their parents.

21                        This Fact Sheet provides guidance on an employee's entitlement to
22                  FMLA leave to care for an individual who stood in loco parentis to the
23                  employee when the employee was a child. . . .

24                          ....


                                                        18
 1                          Examples of in loco parentis

 2                         Examples of situations in which FMLA leave to care for a parent may
 3                  be based on an in loco parentis relationship include:

 4                          ....

 5                         An employee may take leave to care for her grandmother with a serious
 6                  health condition if the grandmother assumed responsibility for raising the
 7                  employee after the death of her parents when the employee was a child.

 8   DOL Fact Sheet #28C at 1-2 (emphasis added). Both the express provisions in the FMLA for

 9   coverage with respect to in loco parentis relationships and the express example of a grandmother in

10   the publication available to employers on the DOL website--submitted to the district court by MCU--

11   made it reasonable for MCU to understand that Coutard's request for leave in order to take care of his

12   seriously ill grandfather might come within the FMLA.

13                  We conclude that the district court erred in ruling that Coutard's notice to MCU was

14   deficient because he did not specify the in loco parentis relationship with his grandfather at or before

15   the time he requested FMLA leave, and in ruling that MCU was entitled as a matter of law to deny

16   Coutard FMLA leave without requesting additional information.



17   C. MCU's Alternative Grounds for Affirmance

18                  MCU contends that we can affirm the judgment dismissing the complaint on alternative

19   grounds, including Coutard's alleged failure to provide certification that Dumond had a serious health

20   condition and his failure to mitigate damages. These contentions are meritless.

21                  In urging that the complaint was properly dismissed because Coutard failed to proffer

22   medical proof of Dumond's health, MCU relies on the FMLA provision that "[a]n employer may



                                                       19
 1   require that a request for leave under" 29 U.S.C. § 2612(a)(1)(C) for a "parent['s]" serious health

 2   condition "be supported by a certification issued by the [relevant] health care provider," 29 U.S.C.

 3   § 2613(a). However, "[u]nder the FMLA, an employee seeking leave need not submit a medical

 4   certification unless and until one is specifically requested by her employer." Graziadio, 817 F.3d

 5   at 426 (emphasis in original). Although the record indicates that MCU may have requested evidence

 6   of Dumond's health in suggesting that Coutard apply for leave that would not be protected by the

 7   FMLA, it does not indicate that MCU made any request pursuant to the FMLA. Instead, "MCU

 8   informed Coutard that . . . the statute does not apply to grandparents . . . ." (MCU's Rule 56.1

 9   Statement ¶ 12.) MCU not having requested information pursuant to the FMLA--and having wrongly

10   indicated to Coutard that the FMLA cannot be applied to a grandfather--MCU is not entitled to defend

11   this FMLA claim on the ground that Coutard did not provide information that the FMLA would have

12   required if MCU had requested it.

13                  In urging that Coutard failed to mitigate damages, MCU relies principally on the fact

14   that he did not accept MCU's conditional offer of reinstatement. MCU's letter communicating that

15   offer, however--sent by its attorneys to Coutard's attorney after the commencement of the present

16   lawsuit (see Motzenbecker Declaration ¶ 5)--proposed a "resolution of the case . . . without an

17   admission of fault or liability on the part of either party" (see id. Exhibit D). Such an offer could not

18   properly be the basis for affirmance of summary judgment, as "[t]he evidence considered on summary

19   judgment must generally be admissible evidence," LaSalle Bank National Ass'n v. Nomura Asset

20   Capital Corp., 424 F.3d 195, 205 (2d Cir. 2005); see Fed. R. Civ. P. 56(c)(4) ("declaration used to

21   support or oppose a motion [for summary judgment] must . . . set out facts that would be admissible

22   in evidence"), and offers of compromise are not admissible in evidence to "disprove the validity or


                                                        20
 1   amount of a disputed claim," Fed. R. Evid. 408(a) (emphasis added). MCU's offer is inadmissible for

 2   the purpose proffered here. The letter offered reinstatement in exchange for settlement of the pending

 3   lawsuit; it stated that it was being sent "[p]ursuant to FED. EVID. R. 408"; and it is proffered here

 4   with respect to the amount of damages Coutard could receive.

 5                  MCU's other contentions in support of the grant of summary judgment in its favor have

 6   no greater merit and do not warrant discussion.



 7   D. Coutard's Request for Partial Summary Judgment in His Favor

 8                  We also reject Coutard's contention that because MCU failed in its obligations (a) to

 9   provide him with notice of his right to seek FMLA leave under the Act's in loco parentis provision,

10   and (b) to request further information from him upon his request for leave, he was entitled to partial

11   summary judgment in his favor on the issue of liability. The fact that both sides have moved for

12   summary judgment does not guarantee that there is no material issue of fact to be tried and that one

13   side or the other is entitled to that relief. See, e.g., Eastman Machine Co. v. United States, 841 F.2d

14   469, 473 (2d Cir. 1988). In considering such motions and determining whether there is a genuine

15   issue of fact to be tried, "the court must evaluate each party's motion on its own merits, taking care

16   in each instance to draw all reasonable inferences against the party whose motion is under

17   consideration." Schwabenbauer v. Board of Education, 667 F.2d 305, 314 (2d Cir. 1981); see, e.g.,

18   United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (the evidence must be viewed in the light

19   most favorable to the party opposing the motion under consideration).

20                  Here, in addition to the unresolved issue of whether the state of Dumond's health met

21   FMLA standards, MCU did not in fact concede the truth of Coutard's assertions that Dumond had


                                                       21
 1   raised him in loco parentis. Rather, it objected to the in loco parentis characterization as asserting a

 2   conclusion of law (see MCU's Rule 56.1 Counterstatement ¶ 14) and denied knowledge or information

 3   as to the truth of the underlying factual assertions (see id. ¶¶ 17-24). Thus, although it was proper for

 4   the district court to accept Coutard's assertions as true when it was deciding the summary judgment

 5   motion of MCU, it could not properly accept them as true in deciding the motion by Coutard. A jury

 6   would not be compelled to accept such testimony by Coutard; his credibility is a matter for assessment

 7   by the factfinder; and his childhood relationship with Dumond remains one of the issues for trial.



 8                                               CONCLUSION



 9                  We have considered all of MCU's arguments in support of the judgment and all of

10   Coutard's arguments in support of his request for partial summary judgment in his favor, and have

11   found in them no merit. The judgment dismissing the complaint is vacated; the matter is remanded

12   for further proceedings not inconsistent with this opinion.




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