Linda Mellen v. TRUSTEES OF BOSTON UNIVERSITY and FRANCES DROLETTE

Of the District of New Hampshire, sitting by designation. *
United States Court of Appeals
For the First Circuit
No. 07-1151
LINDA MELLEN,
Plaintiff, Appellant,
v.
TRUSTEES OF BOSTON UNIVERSITY and FRANCES DROLETTE,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Morris E. Lasker, Senior U.S. District Judge]
Before
Lynch and Lipez, Circuit Judges,
and Barbadoro, District Judge. *
Harry C. Beach for appellant.
Crystal D. Talley, with whom Lawrence S. Elswit was on
brief, for appellees.
September 21, 2007

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LYNCH, Circuit Judge. Linda Mellen challenges the
district court's grant of summary judgment in favor of Boston
University and an individual, Frances Drolette, on her claims that
BU interfered with her substantive rights under the Family and
Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., and the
Massachusetts Small Necessities Leave Act (SNLA), Mass. Gen. Laws
ch. 149, § 52D. Mellen argues that BU miscalculated the period of
leave to which she was entitled under both the FMLA and the SNLA,
and also used her leave as a negative factor in an employment
decision when it treated her failure to return to work as a
voluntary resignation.
We affirm the decision that BU properly calculated and
provided Mellen with the requisite amount of leave. Her appeal as
to the negative factor claim is precluded by her voluntary
dismissal with prejudice of her retaliation claims against BU.
Accordingly, we affirm the district court's judgment. This case
provides the first occasion for judicial interpretation of the
intersection of certain FMLA regulations, 29 C.F.R. § 825.200(f)
and 29 C.F.R. § 825.205(a), pertaining to proper allocation of
intermittent leave. We also address again, as we did in Colburn v.
Parker Hannifin/Nichols Portland Div., 429 F.3d 325 (1st Cir.
2005), the distinction between substantive and retaliatory claims
under the FMLA.

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I.
Linda Mellen began her employment with Boston University
in 1977 and became Financial Manager for the School of Public
Health (SPH) in 1998. Frances Drolette was hired as SPH's
Associate Dean for Administration and Finance in September 2002 and
served as Mellen's direct supervisor. There was considerable
evidence of friction between the two beginning at least as early as
the first months of 2003.
On July 17, 2003, Mellen applied in writing for leave so
that she could care for her ailing mother. She requested to be out
from August 4 through October 3 and, if necessary, again from
October 28 through November 18. (The October gap encompassed
fifteen days of vacation time Mellen had previously requested and
been granted.) In a letter dated July 31, 2003, BU's Director of
Personnel, George Snowdon, approved Mellen's request for leave.
Snowdon's letter set forth other terms and conditions governing the
leave, including that if Mellen failed to return to work on
November 19, she would be considered to have resigned voluntarily.
Throughout the following months, there was communication
about Mellen's return to work. In an email on October 1, Mellen
indicated to Drolette that her mother's situation was unchanged and
that she would be using her second block of FMLA leave. Drolette
responded, in effect, that she would have appreciated Mellen's
telling her that earlier and that she had thought that Mellen would

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be back at work on Monday, October 6. In a letter dated October 24
from Drolette to Mellen, Drolette stated that it was her "current
understanding" that Mellen would return to work on November 19. In
light of Mellen's earlier lack of communication, the letter noted,
"If your plans change in this regard you must communicate that to
me as soon as possible." Such information was needed so BU could
arrange its staffing accordingly. The letter further expressed
concern about Mellen's "lack of professionalism, responsibility,
and clarity in [her] communications regarding [her] family and
medical leave and vacation plans." The letter also referred to
Drolette's problems with Mellen's performance at work.
Meanwhile, in an October 23 letter, Mellen informed
Drolette that she expected to be out of work through November 20,
noting that she had extended her leave period by one day in light
of a November 17 internal holiday granted by BU's Trustees. In a
response letter dated October 29, Drolette stated that she had been
advised that holidays did not serve to extend an employee's allowed
FMLA leave and therefore she expected Mellen back at work on
Wednesday, November 19.
Mellen did not return to work on November 19. Nor did
she call or communicate to BU on November 19 any request for
extended leave. Nor did she show up for work at any time
thereafter.

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By letter dated November 19, but not received by BU until
later, Mellen stated she was afraid to return to work, in light of
what she described as Drolette's "threatening" letter of October
24. On November 20, Mellen's lawyer sent a letter to BU
reiterating Mellen's fear of returning to work. Meanwhile,
Drolette sent Mellen a letter dated November 20 informing her that
pursuant to the terms laid out in Snowdon's July 31 letter, BU was
considering Mellen's failure to return to work on November 19 a
voluntary resignation.
Mellen sued BU in federal district court, claiming that
BU interfered with her substantive rights under the FMLA and SNLA
by miscalculating her leave period, and also that BU fired her in
retaliation for taking family medical leave. She attempted to
separate out a negative factor claim from the retaliation claims by
pleading them as separate counts. The parties filed cross-claims
for summary judgment, and on October 18, 2005, the district court
awarded summary judgment to BU on Mellen's substantive claims and
reserved for trial the factual issues raised in her retaliation
claims. With respect to the substantive claims, the court
determined that Mellen's FMLA leave had been properly calculated
because holidays that fell within her leave period were properly
counted against it under 29 C.F.R. § 825.200(f). The court also
determined that even if BU had improperly calculated Mellen's
leave, Mellen needed prior approval for intermittent leave and

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ought to have requested additional days off rather than failing to
show up for work on November 19. As for Mellen's SNLA claim, the
court held that Mellen failed to request the leave at least seven
days in advance, as required by the governing statute.
On December 1, 2005, the district court rejected Mellen's
motion for reconsideration. On November 30, 2006, the parties
agreed to the dismissal with prejudice of the retaliation and all
related claims. Mellen now appeals the grant of summary judgment
on her claim that BU substantively interfered with her FMLA and
SNLA rights.
II.
We review a grant of summary judgment de novo, resolving
all reasonable inferences in favor of the non-moving party. Ruiz-
Rosa v. Rullan, 485 F.3d 150, 155 (1st Cir. 2007). "Summary
judgment is appropriate when the properly supported facts of record
'show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of
law.'" Id. (quoting Fed. R. Civ. P. 56(c)).
A. BU Did Not Fail To Provide Mellen the Full Duration of
Leave Required by the FMLA
Mellen's FMLA leave consisted of intermittent leave taken
in two blocks: August 4 through October 3 and October 28 through
November 18. Intermittent leave is FMLA leave taken in separate
blocks of time but for the same reason. 29 C.F.R. § 825.203(a).

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There is no published precedent on the consequences of an 1
employee taking intermittent leave in a period of a week or more
when one (or more) of the weeks contains a holiday. In Shelton v.
Charlotte-Mecklenberg Hosp. Auth., 2006 WL 3454859 (W.D.N.C. Nov.
29, 2006), an employee was placed on intermittent leave under the
FMLA. There was disagreement as to when eligibility for unpaid
leave expired: the employer contended that it was April 21, 2004,
and the employee claimed that the employer improperly counted two
holidays against her leave and so her leave extended through April
23, 2004. However, the court did not resolve the issue because
there was no dispute that the employee's eligibility had ceased
long before June 7, 2004, when the employer sought other applicants
to fill the position. Id. at *2.
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"There is no limit on the size of an increment of leave when an
employee takes intermittent leave." 29 C.F.R. § 825.203(d).
Mellen contends that she was denied the full number of
FMLA days owed her because BU did not extend her leave to account
for three holidays that fell within it (Labor Day, Veterans' Day,
and the November 17 BU internal holiday). Mellen argues that since
her leave was intermittent, only the days she actually missed from
work, and not holidays, should be counted. See 29 C.F.R.
§ 825.205(a) ("If an employee takes leave on an intermittent or
reduced leave schedule, only the amount of leave actually taken may
be counted toward the 12 weeks of leave to which an employee is
entitled.") BU counters with another regulation which provides
that in calculating the amount of FMLA leave taken, holidays
occurring within a week taken as FMLA leave have no effect. See 29
C.F.R. § 825.200(f). Whether holidays are to be counted against
intermittent leave taken in an interval of a week or more is a
question of first impression.1

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No straining or awkward constructions, such as those
advanced by plaintiff, are necessary; the regulations fit together
naturally. General provisions governing FMLA leave are set forth
in 29 C.F.R. § 825.200. Another regulation, 29 C.F.R. § 825.205,
provides specific guidelines for employees taking intermittent
leave. The applicability of section 825.200 to intermittent leave
is assumed within the regulations. For instance, the provision in
section 825.200 restricting an eligible employee's leave to a total
of twelve workweeks during any twelve-month period unquestionably
applies to intermittent leave. See 29 C.F.R. § 825.200(a); 29
C.F.R. § 825.205(a) (referring to the "12 weeks of leave" to which
an employee taking intermittent leave is entitled).
The two particular provisions at issue, 29 C.F.R. § 825.200(f)
and 29 C.F.R. § 825.205(a), also work together. Section 825.200(f)
defines the "amount of leave used" by an employee: "[f]or purposes
of determining the amount of leave used . . . the fact that a
holiday may occur within the week taken as FMLA leave has no
effect" (emphasis added). In turn, section 825.205(a) provides
that for employees taking intermittent leave, only the "amount of
leave actually taken" may be counted against the twelve-week
entitlement. Thus if an employee's intermittent leave includes a
full, holiday-containing week, section 825.200(f) provides that the
"amount of leave used" includes the holiday. Nothing in section
825.205(a) changes this result. The "amount of leave actually

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Mellen also argues that BU violated 29 C.F.R. § 825.208(c), 2
which mandates that if an employer requires that paid leave taken under
an existing leave plan be counted as FMLA leave, that decision must
be made within two business days of the time the employee gives
notice of the need for leave or the employer determines that the
leave qualifies as FMLA leave. However, Mellen presents no
evidence that an employer giving holidays like Labor Day and
Columbus Day constitutes the sort of "leave plan" referenced by the
statute.
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taken" to which section 825.205(a) refers is the "amount of leave
used" defined in section 825.200(f).
This construction does not, as plaintiff argues, render
section 825.205(a) meaningless. As the examples provided in the
regulation demonstrate, the provision's purpose is to ensure that
an employer does not claim that an employee who takes off one day
during a five-day work week has taken off the entire week, or that
an employee who works half days under a reduced work schedule has
taken off more than a half day. Its purpose is not to give an
advantage to an employee who takes off five weeks but designates it
intermittent leave over an employee who takes off five weeks as
continuous FMLA leave. Because BU gave Mellen the proper amount of
leave, summary judgment was properly granted to BU on this
substantive claim.2
Even if BU had incorrectly calculated the amount of
Mellen's leave, intermittent leave requires prior approval by the
employer. BU approved Mellen's leave only through November 18,
2003. Mellen failed to respond to Drolette's letter of October 29

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stating that Mellen was expected back at work on November 19.
Therefore, as far as BU was aware, Mellen was planning to return to
work on November 19. Mellen had an obligation to inform BU if she
was intending to claim FMLA leave beyond November 18. See Gilliam
v. United Parcel Serv., Inc., 233 F.3d 969, 971 (7th Cir. 2000)
(noting that the FMLA does not "authorize employees on leave to
keep their employers in the dark about when they will return").
B. Mellen's Negative Factor Claim Is a Retaliation Claim
Which Has Been Dismissed with Prejudice
Under 29 U.S.C. § 2615 (a)(1), it is unlawful for an
employer to "interfere with, restrain, or deny the exercise of or
the attempt to exercise" any FMLA right. Mellen contends that BU
interfered with her FMLA rights by treating her leave as a "negative
factor" in an employment decision. See 29 C.F.R. § 825.220(c)
("[E]mployers cannot use the taking of FMLA leave as a negative factor
in employment actions, such as hiring, promotions or disciplinary
actions.").
Mellen claims that BU used her FMLA leave as a negative
factor in deciding to terminate her after she failed to show up for
work on November 19. In particular, she argues that BU denied her
several benefits that would have excused her November 19 absence.
First, Mellen refers to a three-day grace period which she argues
BU's Personnel Policy Manual allows to employees in her situation
before their absence would be construed as a resignation. She also

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points to the many sick and vacation days she had accrued as of
late 2003 and BU's policy of allowing employees to take unpaid time
off or leaves of absence for personal or medical reasons. Mellen
also claims that BU did not honor its policy of allowing employees
holiday leave if they were on authorized leave immediately before
and after a holiday, as she was with respect to Labor Day,
Veterans' Day, and the BU holiday on November 17.
Although they are based on the same underlying facts,
Mellen argues that her negative factor claim is distinct from her
dismissed retaliation claims because it relates to the FMLA's
substantive provisions as opposed to its retaliatory ones. This
position is directly contrary to our precedent. We have
distinguished the FMLA's prescriptive provisions, which set forth
substantive entitlements and for which an employer's subjective
intent is irrelevant, from its proscriptive ones, for which the
employer's motivation is central, Colburn, 429 F.3d at 331-32, and
we have noted that negative factor claims should be characterized
as proscriptive, Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 159-
60 (1st Cir. 1998). In Colburn, we posited that whatever label a
claim is given, what matters is "whether the plaintiff is, at
bottom, claiming that the employer denied his or her substantive
rights under the FMLA or that the employer retaliated against him
or her for having exercised or attempted to exercise those rights."
Colburn, 429 F.3d at 332; see also Lufkin v. E. Me. Med. Ctr., 2006

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WL 1892442, at *11 (D. Me. July 7, 2006). Here, the negative
factor argument is that BU deliberately deprived Mellen of benefits
available to others precisely because she took FMLA leave.
Pleading negative factor as a separate count does not escape the
reality that in this case it is a retaliation claim.
Moreover, the district court understood Mellen to present
two distinct claims -- interference with substantive FMLA rights
and retaliation -- and it expressly viewed the substantive
interference claim as encompassing only the question of whether BU
properly calculated Mellen's FMLA leave. Mellen's motion for
reconsideration did not object to this reading of her pleadings.
Mellen chose to dismiss with prejudice her retaliation
claims and cannot now backtrack and attempt, contrary to Colburn
and Hodgens, to recharacterize the negative factor claim as one of
substantive entitlement.
C. BU Did Not Owe Mellen Additional Leave Under the SNLA
The SNLA allows employees to take a total of twenty-four
hours of leave during any twelve-month period in addition to leave
available under the FMLA. Mass. Gen. Laws ch. 149, § 52D(b).
Mellen claims that BU failed to take the SNLA into account in
calculating her leave and that the SNLA entitled her to twenty-four
additional hours -- translating into three eight-hour workdays --
of leave.

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No Massachusetts court has yet construed the SNLA. 3
Mellen argues that by analogy to the FMLA, no specific reference to
the law is required in order for an employee to assert rights under
the SNLA, an issue we do not reach. We do reject, on the
undisputed facts, her position that BU should have known of her
need for leave under the SNLA merely by virtue of its knowledge of
her mother's illness.
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The SNLA did not extend Mellen's leave because she failed
to heed the statute's clear requirements. The SNLA provides that
"[i]f necessity for leave under this section is foreseeable, the
employee shall provide the employer with not less than seven days'
notice before the date the leave is to begin." Mass. Gen. Laws
ch. 149, § 52D(d). Mellen's situation was foreseeable, yet she
failed to provide BU with any notice -- let alone seven days'
notice -- that she desired leave beyond that available under the
FMLA.
Mellen argues that she did not need to refer to the SNLA
by name in order to seek relief under it and therefore her original
application for leave should be construed as a request for SNLA as
well as FMLA leave. Without resolving the question of exactly how
much notice an employee must give an employer in order to assert
her rights under the SNLA, we agree with the district court that 3
Mellen did not provide sufficient notice of her need for leave
beyond that made available by the FMLA.
When Mellen originally asked for time off, she indicated
that although she applied for the full twelve weeks available under

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the FMLA, she didn't "expect to need all of it." Accordingly, BU
and Mellen agreed that her leave would extend until November 18
only "if needed." Mellen did nothing to even suggest that the FMLA
leave period would be inadequate -- and in fact she implied the
opposite. During the following months, Mellen indicated that she
would need to take the second block of her FMLA leave but she never
requested any family-related leave beyond that already granted by
BU. Mellen did inform Drolette, by letter dated October 23, that
she believed the BU internal holiday on November 17 extended her
leave by a day; BU rejected her position on October 29; she said
nothing in return. Disagreement about a return date does not
constitute a request for -- or the demonstration of a need for --
additional leave.
We affirm the district court's grant of summary judgment
to the defendants.

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