Employer Religious Accomodations

may recover. Significantly, under the FMLA, plaintiffs may not assert claims for punitive damages or non-economic compensatory damages such as emotional distress and humiliation. See Nero v. Industrial Molding , 167 F.3d 921, 929-30 (5th Cir. 1999) (no out-of-pocket expenses or mental anguish); Cavin v. Honda of Am. Mfg. , 138 F. Supp. 2d 987, 992 (S.D. Ohio 2001) (no punitives); Keene v. Rinaldi , 127 F. Supp. 2d 770, 772 (M.D.N.C. 2000) (no punitives); Rogers v. AC Humko , 56 F. Supp. 2d 972, 979 (W.D. Tenn. 1999) (collecting cases; no emotional distress); Hite v. Biomet , 53 F. Supp. 2d 1013, 1024 n.13 (N.D. Ind. 1999) (no punitives or emotional damages); Dawson v. Leewood Nursing Home 14 F. Supp. 2d 828, 833 (E.D. Va. 1998) (no medical damages caused by the stress of the FMLA violation). V. Show me the money Early in the life of the case, counsel for the federal agency should comprehensively review the compensable damages available to the plaintiff. The plaintiff may have suffered no compensable damages under the FMLA. Several courts have found on summary judgment that, under the FMLA, nominal damages may not be awarded and the claim should be dismissed. In Walker v. United Parcel Service, the plaintiff's claim was based upon a five-day suspension she received for excessive absenteeism and job abandonment. However, the suspension ran concurrently with her disability leave and she therefore lost no wages or benefits as a result. The court held that "because Walker has . . . suffered no actual monetary losses as a result of UPS' asserted violation of the FMLA and has no claim for equitable relief, she has no grounds for relief under that statute" including "nominal damages." 240 F.3d 1268, 1278 (10th Cir. 2001). In Williams v. Toyota Motor Mfg., Kentucky, the plaintiff was placed under a "no work of any kind restriction" by her doctor and could never have returned to work. Because the plaintiff could not offer any evidence of compensable damages, the court affirmed the dismissal of plaintiff's FMLA claim. 224 F.3d 840, 844-45 (6th Cir. 2000), aff'd on other grounds, 532 U.S. 970 (2001). In Cianci v. Pettibone, the court affirmed summary judgment for the defendant on plaintiff's FMLA claim. In February 1994, the plaintiff requested FMLA leave for June 1994. The employer denied the leave, and the plaintiff was fired in April 1994, before she could take the leave. As the plaintiff was not employed at the

that the employees covered by Title II of the FMLA should not have a right to judicial review of their FMLA claims through the FMLA." Mann , 120 F.3d at 37. Where two sections of the same statute contain different language, federal courts have traditionally honored the canon that Congress intended the difference. Russello v. United States , 464 U.S. 16, 23 (1983). Accordingly, Title II of the FMLA creates neither an express nor an implied right of action whereby federal employees may obtain judicial review of adverse FMLA decisions. Mann , 120 F.3d at 37 . Title II federal employees are not without recourse for alleged violations of the FMLA. Instead of bringing a civil action, a federal employee covered by Title II of the FMLA, seeking to redress a violation of the FMLA, may file an administrative grievance, where provided for by the union agreement or other internal grievance procedures. See Mann , 120 F.3d at 38. After proceeding through the administrative grievance procedures, an employee may pursue arbitration as provided for under the agreement. Id. Further, as provided for in 31 U.S.C. § 3702(a)(2) and 5 C.F.R. §§ 178.101-178.107, an employee may also file an administrative claim concerning an FMLA leave dispute with the Office of Personnel Management (OPM). IV. Title I employees – available damages Another area in which FMLA complaints may be vulnerable is the area of damages. Title I of the FMLA provides for monetary damages, including compensatory back pay and other lost compensation, interest thereon, and liquidated damages doubling that amount. Specifically, if a violation is established, Title I of the FMLA provides that an employee could recover damages equal to the amount of: (1) any wages, salary, employment benefits or other compensation denied or lost to such employee by reason of the violation; or (2) in a case in which wages, salary, employment benefits, or other compensation have not been denied or lost to the employee, any actual monetary losses sustained by the employee as a direct result of the violation, such as the cost of providing care, up to a sum equal to 12 weeks of wages or salary for the employee. 29 U.S.C. § 2617(a)(1)(A)(i) and (ii) . The FMLA also provides for equitable remedies, such as employment, reinstatement, and promotion. 29 U.S.C. § 2617(a)(1)(B). Because the FMLA is a remedial statute, there are limits to the types of damages an employee

UNITED STATES ATTORNEYS ' B ULLETIN

M AY 2004

27