Samuel J. Cavin v. Honda of America Manufacturing, Inc.

*The Honorable Karen Caldwell, United States District Judge for the
Eastern District of Kentucky, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0366P (6th Cir.)
File Name: 03a0366p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
SAMUEL J. CAVIN,
Plaintiff-Appellant,
v.
HONDA OF AMERICA
MANUFACTURING, INC.,
Defendant-Appellee.
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No. 02-3357
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 00-00400—John D. Holschuh, District Judge.
Argued: July 29, 2003
Decided and Filed: October 10, 2003
Before: DAUGHTREY and MOORE, Circuit Judges;
CALDWELL, District Judge.*
2 Cavin v. Honda of Am. Mfg., Inc. No. 02-3357
_________________
COUNSEL
ARGUED: Joshua J. Morrow, LAW OFFICES OF JOHN S.
MARSHALL, Columbus, Ohio, for Appellant. Mary Ellen
Fairfield, VORYS, SATER, SEYMOUR & PEASE,
Columbus, Ohio, for Appellee. ON BRIEF: Joshua J.
Morrow, John S. Marshall, LAW OFFICES OF JOHN S.
MARSHALL, Columbus, Ohio, for Appellant. Mary Ellen
Fairfield, Robert N. Webner, VORYS, SATER, SEYMOUR
& PEASE, Columbus, Ohio, for Appellee. Patrick J. Perotti,
DWORKEN & BERNSTEIN, Painesville, Ohio, for Amicus
Curiae.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Plaintiff-
Appellant Samuel J. Cavin (“Cavin”) appeals the district
court’s dismissal of his claim of wrongful discharge in
violation of public policy and the district court’s grant of
summary judgment to Defendant-Appellee Honda of America
Manufacturing, Inc. (“Honda”) on Cavin’s claim that Honda
interfered with his rights under the Family and Medical Leave
Act of 1993 (“FMLA” or “Act”). Cavin was employed by
Honda from 1991 until 1999. Cavin violated Honda policy in
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
FMLA-interference claim. Cavin appeals these decisions.

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

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No. 02-3357 Cavin v. Honda of Am. Mfg., Inc. 5
Cavin received treatment from a second doctor, Dr. Scott
D. Cohen (“Cohen”), the day after the accident. Cohen
excused Cavin from work until June 28, 1999. According to
Cavin, during his absence he “called the company everyday
[sic] that [he] was scheduled to work to inform the company
of [his] status.” J.A. at 135 (Cavin Aff.). Cavin reported his
absence to security every day during the week of June 21-25.
The following week, Cavin was not scheduled to work
because there was a scheduled plant shutdown. Cavin
returned to work on July 6, 1999, two weeks after the first day
of his absence, at which time Cavin finally notified the Leave
Coordination Department of his need for a leave of absence.
When Cavin returned from leave on July 6, his supervisor
and several other Honda employees knew that Cavin had been
in a motorcycle accident and inquired about how he was
doing. That day, Cavin received what Honda refers to as
progressive counseling, or coaching, for employees with less
than 98 percent attendance. Counseling is an element of
Honda’s “progressive discipline” structure for attendance
violations. J.A. at 353 (McClellan Dep.). Linda McClellan
(“McClellan”), a representative of Honda’s Associate
Relations Department, met with Cavin and reviewed Honda’s
leave policies. She informed Cavin that any future violation
of company policy would result in his separation.
Cavin explained to McClellan that he had been injured in
a motorcycle accident on June 21, had been excused from
work through June 24 by the emergency room doctor, and
further excused until June 28 by a second doctor. Cavin told
McClellan that he had called Honda every day to report his
absence and gave her the return to work slips that his doctors
had signed to excuse him. Honda gave Cavin a leave
coordination packet, instructing Cavin to have his doctor
complete the forms and to return the packet by July 21, 1999.
Cavin timely completed the packet, in which Cohen certified
that Cavin’s June 21-28 leave was due to a serious health
condition.
6 Cavin v. Honda of Am. Mfg., Inc. No. 02-3357
2Although Cavin claims he was unaware of the Leave Coordination
Department policy, Honda notes that Cavin had contacted the Leave
Coordination Departm ent to obtain approval for a leave of absence in
1998.
3The Leave Co ordination Department finally received the form on
November 8, 1999. T he form indicated that Cavin received treatment on
September 30, October 1, and October 4. However, Cavin no w admits
that the certification form included inaccurate informatio n, “incorrectly
report[ing] that plaintiff received treatment by Dr. Cohen on September
30, 1999, O ctober 1, 199 9, and October 4, 19 99.” J.A. at 62 (Cavin
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
On July 7, 1999, Honda disallowed a portion of Cavin’s
leave under the FMLA on grounds that the absences were not
approved. Cavin had violated Honda’s leave policy by failing
to call Honda’s Leave Coordination Department within three
consecutive workdays of his first day of leave.2 Honda
refused to approve Cavin’s absences for June 21-23 as
FMLA-qualifying leave, recognizing only June 24-25 as
qualifying leave. Cavin was forced to take a vacation day to
cover his June 21 absence.
Cavin missed work several times during the following
months because he was suffering from extreme pain in the
shoulder that was injured during the motorcycle accident.
Honda approved Cavin’s July 15-20 and July 23-28 leaves of
absence as FMLA-qualifying, but denied his final request for
FMLA leave on grounds that he failed timely to submit a
certification form for the September 30-October 4 absence.
To receive FMLA leave for this period, Cavin was required
to submit a certification form to the Leave Coordination
Department before October 19. Cavin met the deadline, but
the certification was facially incomplete; it did not include the
dates of treatment or incapacity. The Leave Coordination
Department instructed Cavin to submit a completed form by
October 27. Cavin failed to meet the new deadline when his
doctor did not timely submit the form to Honda.3 Because

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No. 02-3357 Cavin v. Honda of Am. Mfg., Inc. 7
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
recog nize, however, that the misrepresentation may be relevant to the
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
employer learns of an employee’s wrongdoing after improperly
terminating the employee on other grounds, “as a general rule . . . neither
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”).
4The district court reasoned that “Cavin’s termination is based on two
separate alleged violations of the leave p olicy, neither of which, standing
alone, would be sufficient grounds for termination . . . . If a reaso nable
jury could find that either of these absences should have been designated
as FMLA -qualifying leave, summary judgment must be denied.” Cavin
Honda did not timely receive the certification, Cavin was
disciplined a second time in November 1999. Honda then
fired Cavin for violating the Honda leave policy twice.
On April 3, 2000, Cavin filed a suit in the United States
District Court for the Southern District of Ohio, alleging that
Honda had interfered with his FMLA rights and wrongfully
discharged him in violation of Ohio public policy. Honda
filed a motion to dismiss the wrongful discharge claim, and
the district court granted the motion on March 28, 2001.
Cavin v. Honda of Am. Mfg., Inc., 138 F. Supp. 2d 987, 998
(S.D. Ohio 2001) (Cavin I). Honda then filed a motion for
summary judgment on the FMLA claim, which the district
court granted on February 22, 2002. Cavin v. Honda of Am.
Mfg., Inc., No. C2-00-400, 2002 WL 484521, at *25 (S.D.
Ohio Feb. 22, 2002) (Cavin II).
Cavin filed a timely notice of appeal. On appeal, “Cavin
chose to simplify his claim . . . by only appealing the June
1999 denial of FMLA” and by declining to appeal the district
court’s grant of summary judgment with respect to Cavin’s
September-October leave.4 Cavin Reply Br. at 4 n.1. The
8 Cavin v. Honda of Am. Mfg., Inc. No. 02-3357
v. Honda of Am . Mfg ., Inc., No. C2-00-400, 2002 WL 484521, at *9 (S.D.
Ohio Feb. 22, 2002) (Cavin II). But see Cavin Reply Br. at 4 n.1 (“[T]he
record is clear that if Honda would have approved the June 1999 leave,
Cavin would not have been fired in November 19 99. An appeal of the
September-Octob er leave would be superfluous.”).
National Employment Lawyers Association (“NELA”), a
“professional membership organization of lawyers who
represent employees in discrimination, wrongful discharge,
employee benefit, and other employment-related matters,”
filed an amicus brief in support of Cavin. NELA Br. at 1.
II. THE FAMILY AND MEDICAL LEAVE ACT
The district court granted Honda summary judgment on
Cavin’s claim that Honda interfered with his rights under the
Family and Medical Leave Act (“FMLA”) of 1993, 29 U.S.C.
§§ 2601 et seq. See Cavin II, 2002 WL 484521, at *25.
According to the district court, no reasonable juror could have
found that Cavin provided Honda “with timely, adequate
notice of his need for FMLA leave” because Cavin did not
follow Honda’s policy for contacting the Leave Coordination
Department. Id. at *14. Cavin argues that Honda did receive
timely actual notice of Cavin’s leave and therefore Honda
interfered with Cavin’s FMLA rights when it denied a portion
of Cavin’s June 1999 leave and disciplined him.
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
if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if
any, 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.

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No. 02-3357 Cavin v. Honda of Am. Mfg., Inc. 9
Fed. R. Civ. P. 56(c). However, “if the evidence is such that
a reasonable jury could return a verdict for a nonmoving
party,” then summary judgment will not lie. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In reviewing
a motion for summary judgment, we view the evidence, all
facts, and any inferences that may properly be drawn from the
facts in the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986).
A. FMLA Interference Claims
The FMLA entitles qualifying employees to twelve weeks
of unpaid leave each year if, among other things, an employee
has “a serious health condition that makes the employee
unable to perform the functions of the position of such
employee.” 29 U.S.C. § 2612(a)(1)(D). Congress enacted the
FMLA because, among other reasons, “there is inadequate job
security for employees who have serious health conditions
that prevent them from working for temporary periods.” 29
U.S.C. § 2601(a)(4). The FMLA “accommodates the
important societal interest in assisting families by establishing
minimum labor standard[s] for leave.” H.R. Rep. No. 103-
8(I), 103d Cong., 1st Sess. 1993, at *21 (hereinafter “Cong.
Rep.”).
Pursuant to the FMLA, “[i]t shall be unlawful for any
employer to interfere with, restrain, or deny the exercise of or
the attempt to exercise, any right provided under [the
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
provided by the Act.”). Employers who violate § 2615 are
“liable to any eligible employee affected” for damages and
“for such equitable relief as may be appropriate.” 29 U.S.C.
§ 2617(a)(1).
Cavin maintains that Honda interfered with his rights under
the FMLA by refusing to recognize his June 21-23 absence as
10 Cavin v. Honda of Am. Mfg., Inc. No. 02-3357
5“[A]n illness, injury, im pairm ent, or p hysical or mental condition
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.
§ 2611(11). Cavin was incapacitated for more than three days and was
treated by a health care provider more than once. Honda clearly accepted
that Cavin’s injuries from the accident constituted a “serious health
condition” because it granted some of Cavin’s FMLA claims arising out
of the same incident, recognizing his June 24-25, July 15-20, and July 23-
28 absences as qualifying leave.
FMLA-qualifying leave. To prevail on an interference claim,
a plaintiff must establish that (1) he is an “[e]ligible
employee,” 29 U.S.C. § 2611(2); (2) the defendant is an
“[e]mployer,” 29 U.S.C. § 2611(4); (3) the employee was
entitled to leave under the FMLA, 29 U.S.C. § 2612(a)(1);
(4) the employee gave the employer notice of his intention to
take leave, 29 U.S.C. § 2612(e)(1); and (5) the employer
denied the employee FMLA benefits to which he was entitled.
See Price v. Multnomah County, 132 F. Supp. 2d 1290, 1297
(D. Or. 2001); see generally Arban v. West Publ’g Co., Nos.
01-2278/2370, --- F.3d ---, 2003 WL 22189281, at *7-8 (6th
Cir. Sept. 24, 2003). Honda concedes that during the relevant
time period, Honda was an employer and Cavin was an
eligible employee for FMLA purposes. Honda also concedes
that Cavin would have been entitled to take FMLA leave for
June 21-23 had he given appropriate notice, as Honda
recognized Cavin’s June 24 and June 25 absences arising
from the same circumstances as qualifying leave.5
Ultimately, Honda contends that Cavin’s interference claim
fails because Cavin did not give Honda proper notice of his
intention to take leave.
B. Cavin’s Notice to Honda
Honda’s Associate Handbook articulates the following
procedure for employees seeking a leave of absence:
If you require a leave of absence, you must formally
request a leave from the Administration — Leave

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No. 02-3357 Cavin v. Honda of Am. Mfg., Inc. 11
6Ho nda’s timing requirements are more stringent because the
regulations do not strictly limit the timing of notice when an em ployee’s
need for leave is not foreseeable. Instead, the regulations acknowledge
that under “extrao rdinary circum stances . . . such notice is not feasible,”
in which case notice should be given “as soon as practicable under the
facts and circumstances of the particular case.” 29 C.F.R. § 825.30 3(a).
Coordination Department. Your request must be made
in a timely manner:
• If your need for a leave is foreseeable, you must
request the leave at least thirty- (30) days (or as soon
as practicable) before your leave is to begin.
• If your need for a leave is not foreseeable, you must
request the leave no later than three (3) consecutive
workdays of the first day missed. The first day missed
counts as day one.
J.A. at 294 (Handbook). Honda’s timing requirements are
consistent with the FMLA’s requirements for foreseeable
leave, see 29 U.S.C. § 2612(e)(1); 29 C.F.R. § 825.302(b),
and for the most part more generous than the FMLA’s
requirements for unforeseeable leave,6 see 29 C.F.R.
§ 825.303(a) (“It is expected that an employee will give
notice to the employer within no more than one or two
working days of learning of the need for leave.”). However,
Cavin violated Honda’s policy by failing to request a leave of
absence from the Leave Coordination Department within
three consecutive workdays of the first day of work missed
due to the motorcycle accident.
1. Honda’s Policy is Inconsistent with the FMLA
Cavin contends that Honda’s policy is inconsistent with the
notice requirements set forth in the FMLA. Specifically,
Cavin argues that the FMLA would not permit employers to
deny otherwise-qualifying FMLA leave simply because an
employee fails to follow a company’s internal notice
requirements. Although the regulations do specifically
contemplate the establishment of notice policies by individual
12 Cavin v. Honda of Am. Mfg., Inc. No. 02-3357
employers, we agree with Cavin that the FMLA does not
permit an employer to limit his employee’s FMLA rights by
denying them whenever an employee fails to comply with
internal procedural requirements that are more strict than
those contemplated by the FMLA.
Honda policy requires an employee to notify the Leave
Coordination Department of his need for leave “no later than
the third day missed.” J.A. at 290 (Handbook). Cavin was
absent five days from June 21 through June 25, he was
excused from work the following week due to a plant
shutdown, and he returned to work on July 6. On July 6,
Cavin notified the Leave Coordination Department of his
need for leave. Honda apparently concluded that Cavin
provided timely notice to the Leave Coordination Department
with respect to his June 24 and June 25 absences — because
July 6 was not more than the third workday from those days
missed — and recognized those two days of leave as FMLA-
qualifying. However, because Cavin failed to notify the
Leave Coordination Department within three workdays of his
absence on June 21-23, Honda denied those days. Honda’s
internal notice requirements thus may foreclose relief
otherwise available under the FMLA. We must determine
whether Honda’s notice requirements are consistent with the
FMLA.
The regulations governing the application of the FMLA
state that an employee with a foreseeable need for leave “shall
provide at least verbal notice sufficient to make the employer
aware that the employee needs FMLA-qualifying leave, and
the anticipated timing and duration of the leave.” 29 C.F.R.
§ 825.302(c). However, in the context of requests for
foreseeable leave, the regulations also state that
An employer may also require an employee to comply
with the employer’s usual and customary notice and
procedural requirements for requesting leave. . . .
However, failure to follow such internal employer
procedures will not permit an employer to disallow or

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No. 02-3357 Cavin v. Honda of Am. Mfg., Inc. 13
delay an employee’s taking FMLA leave if the employee
gives timely verbal or other notice.
29 C.F.R. § 825.302(d). The regulations do not so explicitly
discuss employer notice procedures in the context of an
employee’s unforeseeable need for leave, noting only that
when an employee requires emergency medical leave, an
employer cannot require advance written notice pursuant to
its internal rules and procedures. 29 C.F.R. § 825.303(a); see
Mora v. Chem-Tronics, Inc., 16 F. Supp. 2d 1192, 1208 (S.D.
Cal. 1998) (“The Act does not specify the form of notice that
is required for foreseeable leave, and interestingly the Act
makes no reference to any notice requirement for
unforeseeable leave.”).
In this case, we must focus on § 825.303 because Cavin’s
need for leave was not foreseeable. Clearly the emergency
medical leave provision of § 825.303 does not apply here
because Honda’s policy did not require advance written
notice at all. Beyond the emergency medical leave provision,
the regulation governing unforeseeable need for leave makes
no other references to an employer’s internal requirements.
In light of this silence, the Tenth Circuit, in an unpublished
opinion, interpreted the regulation to mean that the FMLA
prohibits an employer from enforcing only its requirement of
advance written notice and, even then, only in the context of
emergencies. Holmes v. The Boeing Co., No. 98-3056, 1999
WL 9760, at *3 (10th Cir. Jan. 12, 1999). The Tenth Circuit
reasoned that “[t]he FMLA does not prohibit an employer
from requiring its employees to give notice to specific
company supervisors on the day the employee is going to be
absent in a nonemergency situation, as in this case.” Id. The
Holmes court thus concluded that an employee cannot seek
FMLA relief in the event of his noncompliance with his
employer’s specific notice requirements absent an
“alleg[ation] that his physical condition was such that he
could not comply with defendant’s reasonable notice
requirements.” Id. (emphasis added). Similarly, the Seventh
Circuit in Lewis v. Holsum of Fort Wayne, Inc., 278 F.3d 706
14 Cavin v. Honda of Am. Mfg., Inc. No. 02-3357
(7th Cir. 2002), concluded that an employer did not violate
the FMLA by discharging an employee who “failed to
comply with applicable company rules and policies”
regarding leave notice where “it was not impossible” for her
to do so. Id. at 710 (emphasis added).
We conclude that the Seventh and Tenth Circuits have
misinterpreted the FMLA’s notice requirements. Their
interpretations are contrary to the goals of the FMLA and
inconsistent with the regulation of notice in situations where
an employee has a foreseeable need for leave. Rather than
simply drawing an inference from the silence of § 825.303
about employer notice requirements other than advance
written notice, we read § 825.303 in the context of the FMLA
itself and § 825.302.
As an initial matter, we note that the discussion in
§ 825.302 about employer notice procedures in the context of
an employee’s foreseeable need for leave should also apply in
the context of an employee’s unforeseeable need for leave. It
would be illogical to conclude that Congress intended to
prohibit employers from “disallow[ing] or delay[ing] an
employee’s taking of FMLA leave” for failure to comply with
“internal employer procedures” in the context of foreseeable
need for leave, but not in the context of unforeseeable need
for leave. 29 C.F.R. § 825.302(d). The regulations suggest
that notice requirements for unforeseeable leave are more
relaxed than the requirements for foreseeable leave, in
keeping with the idea that an unforeseeable need for leave
will often arise in the context of a medical emergency.
Therefore, there is no principled reason to conclude that
employers may “disallow or delay an employee’s taking
FMLA leave” for “failure to follow . . . internal employer
procedures” in the context of unforeseeable leave when they
are prohibited from doing so in the context of foreseeable
leave. Id.
Moreover, the conclusion that employers cannot deny
FMLA leave on grounds that an employee failed to comply

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No. 02-3357 Cavin v. Honda of Am. Mfg., Inc. 15
with internal procedures — as long as “the employee gives
timely verbal or other notice” — is consistent with the
purpose of the FMLA. 29 C.F.R. § 825.302(d). In enacting
the FMLA, one problem that Congress sought to remedy was
the “inadequate job security for employees who have serious
health conditions that prevent them from working for
temporary periods.” 29 U.S.C. § 2601(a)(4). Congress
sought to articulate a “minimum labor standard for leave” that
employers would not be able to limit. Cong. Rep. at *21.
“Central to the purposes of the FMLA is that its provisions
apply even where the entitlements created by the Act are in
excess of those that an employer would be willing or able to
provide on its own.” Marrero v. Camden County Bd. of Soc.
Servs., 164 F. Supp. 2d 455, 463 (D.N.J. 2001) (citing 29
C.F.R. § 825.101). Some courts have struck employer
policies that impose more stringent requirements on
employees seeking FMLA leave. See, e.g., id. (striking an
internal policy requiring a doctor’s certification within five
days rather than the fifteen days provided for under the
FMLA); Mora, 16 F. Supp. 2d at 1218 (“Defendant’s policy
that employees call within thirty minutes of the beginning of
their shift is inconsistent with the FMLA and is inapplicable
to employees requesting FMLA qualifying leave.”). In
permitting employers to develop notice procedures, the
Department of Labor did not intend to allow employers in
effect to undermine the minimum labor standard for leave.
Reading § 825.303 in the context of the FMLA and
§ 825.302, we conclude that employers cannot deny FMLA
relief for failure to comply with their internal notice
requirements. Therefore, we conclude that Honda could not
interfere with Cavin’s FMLA rights by enforcing its notice
requirements to deny Cavin benefits to which he otherwise
may have been entitled under the FMLA.
2. Cavin’s Compliance with the FMLA
“[W]here an employer’s internal policies conflict with the
provisions of the FMLA, the FMLA controls and an
16 Cavin v. Honda of Am. Mfg., Inc. No. 02-3357
employee need only comply with the requirements of the Act
to invoke its protections.” Marrero, 164 F. Supp. 2d at 463-
64. Having concluded that Cavin was not obligated to
comply with Honda’s requirement that he notify the Leave
Coordination Department, we proceed to evaluate whether,
viewing the facts in a light favorable to Cavin, he complied
with the notice requirements of the FMLA.
When discussing notice requirements in other statutory
contexts, this court has said that “adequacy of notice is
consistently regarded as a finding of mixed fact and law.”
Burkhart v. Post-Browning, Inc., 859 F.2d 1245, 1249 (6th
Cir. 1988) (analyzing the notice provisions of the Vietnam
Era Veterans’ Readjustment Assistance Act of 1974). We
have distinguished the factual and legal aspects of notice as
follows:
[T]he question of whether any notice was given, and if
so, what the notice consisted of and when it was given,
is one of fact. However, the question of whether the
notice satisfied the statutory requirement is one of law.
Thus, the issue of notice in this case presents a mixed
question of fact and law.
K & M Joint Venture v. Smith Int’l, Inc., 669 F.2d 1106, 1111
(6th Cir. 1982) (analyzing notice requirements for breach of
warranty claims under a state statute). In a recent
unpublished opinion, however, a panel of this court
characterized the issue of adequate notice under the FMLA as
involving “primarily questions of fact . . . not questions of
law.” Williams v. Schuller Int’l, Inc., No.00-3614, 2002 WL
193929, at *3 (6th Cir. Feb. 5, 2002). In spite of this recent
unpublished opinion, however, it seems more accurate to
describe notice as a mixed question: surely there are some
facts that as a matter of law are not sufficient reasonably to
apprise an employer of an employee’s need for leave.
Although it is within the province of the jury to determine the
facts of the notice given, it is for the court to determine
whether those facts are sufficient reasonably to give an

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No. 02-3357 Cavin v. Honda of Am. Mfg., Inc. 17
employer notice as required by the FMLA. Therefore, for
summary judgment purposes, we should determine whether,
viewing the facts in the light most favorable to Cavin, Cavin
has complied with the FMLA’s notice requirements as a
matter of law.
“[T]o invoke the protection of the FMLA, an employee
must provide notice and a qualifying reason for requesting the
leave.” Brohm v. JH Props., Inc., 149 F.3d 517, 523 (6th Cir.
1998). However, “[a]n employee does not have to expressly
assert his right to take leave as a right under the FMLA.”
Hammon v. DHL Airways, Inc., 165 F.3d 441, 450 (6th Cir.
1999); see 29 C.F.R. §§ 825.302(c), 825.303(b). Because an
employee need not expressly invoke the FMLA, “[t]he critical
question is whether the information imparted to the employer
is sufficient to reasonably apprise it of the employee’s request
to take time off for a serious health condition.” Brohm, 149
F.3d at 523 (quotation omitted). “[A]n employee gives his
employer sufficient notice that he is requesting leave for an
FMLA-qualifying condition when he gives the employer
enough information for the employer to reasonably conclude
that an event described in the FMLA § [2612(a)(1)] has
occurred.” Hammon, 165 F.3d at 451. We agree with the
Fifth Circuit that it would be inappropriate to articulate
categorical rules governing the content of notices, instead
recognizing that “[w]hat is practicable, both in terms of the
timing of the notice and its content, will depend upon the
facts and circumstances of each individual case.” Manuel v.
Westlake Polymers Corp., 66 F.3d 758, 764 (5th Cir. 1995).
Cavin called security on the day of his motorcycle accident
to inform Honda of his absence. According to Cavin,
“[w]hen I called in on the 21st and security asked my reason
for calling in, I stated that it was a motorcycle accident.” J.A.
at 251 (Cavin Dep.). He told security that he expected to
return to work the following day, but after receiving treatment
from another doctor Cavin called in absences for several
additional days on a daily basis. According to Cavin’s
affidavit of June 22, 2001,
18 Cavin v. Honda of Am. Mfg., Inc. No. 02-3357
7Cavin now m aintains tha t he did not tell security that he would
return to work the following day. Ho wever, bec ause Cavin disputes this
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
not regard this as a disputed fact.
On June 21, 1999, I was in a motorcycle accident in
which I was badly injured. On this same day, I called
Honda to inform the company that I just got out of the
hospital because I was injured in a motorcycle accident.
I told Honda that I could not work. Thereafter, I called
my company everyday [sic] that I was scheduled to work
to inform the company of my status. When I returned
from leave on July 6, 1999, many employees at Honda
knew that I had been injured in a motorcycle accident.
Many of these employees, such as Judd, Jock, and Steve
asked how I was feeling after the accident. Shawn
Dobbins, my supervisor at the time, also asked how the
accident occurred, how I was feeling, and if I was alright.
J.A. at 135 (Cavin Aff.). According to Honda, Cavin only
“told the security desk that he had been in an accident, could
not work that day, and would be back at work the next day.”7
Honda Br. at 20. Honda notes that Cavin never requested
leave, did not state that he would need to miss work for an
extended period, and failed to provide any other information
that might lead Honda to conclude that Cavin was
experiencing a “serious health condition” for FMLA
purposes. Clearly there is a disputed issue of material fact as
to the content of the notice Cavin gave Honda on June 21.
Summary judgment for Honda is nevertheless appropriate
if, viewing these disputed facts in the light most favorable to
Cavin, Cavin failed to give his “employer enough information
for the employer to reasonably conclude that an event
described in FMLA § [2612(a)(1)] has occurred.” Hammon,
165 F.3d at 451. Pursuant to § 2612, “an eligible employee
shall be entitled to a total of 12 workweeks of leave during
any 12-month period . . . [b]ecause of a serious health

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No. 02-3357 Cavin v. Honda of Am. Mfg., Inc. 19
condition that makes the employee unable to perform the
functions of the position of such employee.” Id. § 2612(a)(1).
In the context of the FMLA, “[t]he term ‘serious health
condition’ means an illness, injury, impairment, or physical
or mental condition that involves — (A) inpatient care in a
hospital, hospice, or residential medical care facility; or (B)
continuing treatment by a health care provider.” 29 U.S.C.
§ 2611(11).
We conclude that for summary judgment purposes Cavin’s
notice to Honda was sufficient to apprise Honda of his
“request to take time off for a serious health condition.”
Brohm, 149 F.3d at 523. In his affidavit, Cavin stated that he
told security he “was injured in a motorcycle accident” and
that he “just got out of the hospital.” J.A. at 135 (Cavin Aff.).
Although “a person who is involved in a car accident does not
necessarily incur a serious health condition,” Reich v.
Midwest Plastic Eng’g, Inc., No. 1:94-CV-525, 1995 WL
514851, at *4 (W.D. Mich. July 26, 1995), Cavin specifically
informed Honda (1) that he had been at the hospital, and
(2) that he was unable to work due to his injury. Thus Cavin
did not merely state that he was involved in a motorcycle
accident, but rather provided additional information about his
treatment and condition — he told Honda that he was unable
to perform his job because of his injury. See id. (explaining
that an employee involved in a car accident should inform the
employer of his hospitalization as a result of the accident and
of his condition in order to give the employer notice for
FMLA purposes).
Honda attempts to make much of the fact that Cavin never
discussed a leave of absence with security when he called to
inform security that he would not be at work. However, we
conclude that Cavin’s failure to use the word “leave” or the
phrase “leave of absence” is of no consequence in assessing
whether Honda received sufficient notice pursuant to the
requirements of the FMLA. Just as an employee can give an
employer notice of his request for FMLA-qualifying leave
without invoking the FMLA, see Hammon, 165 F.3d at 450,
20 Cavin v. Honda of Am. Mfg., Inc. No. 02-3357
8Even 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
leave. Viewed in the light most favorable to Cavin, the evidence indicates
that Cavin’s sup ervisor had actual notice. T he kno wledge of C avin’s
supervisor should be imputed to Honda management, as it generally is in
other statutory contexts. See, e.g., Cunningham v. Gibson Elec. Co., 43
F. Supp. 2d 965 , 975 (N.D . Ill. 1999) (explaining that under the Fair
Labor Standards Act, “[k]nowledge of its supervisors is imputed to the
employer”).
an employee can give notice sufficient to make his employer
aware that he needs FMLA-qualifying leave without using the
words “leave” or “leave of absence.”
We recognize that in some cases, there may be a question
of whether or not an employee gave notice to his employer.
The amicus brief filed by the NELA emphasizes urges this
court to recognize a broad definition of “employer” in the
FMLA context. However, we need not decide the scope of
the definition of “employer” under the FMLA in this case.
Honda, assuming for the sake of argument that its internal
notice requirements were not applicable to Cavin, does not
argue that notice was given to the wrong individual, but rather
Honda only contends that the contents of the notice given
were insufficient to provide the adequate notice required by
the FMLA.
Even if we were to evaluate whether the person to whom
Cavin gave notice was his “employer,” however, we believe
that Cavin’s notice to security should be deemed notice to
Honda under the circumstances.8 Honda specifically directs
employees to report their absences to security. Although
Honda might have notice of an absence when an employee
contacts security, it claims to have no notice of a need for a
leave of absence until an employee contacts the Leave
Coordination Department. We recognize that it is both
appropriate and efficient for Honda to delegate the
management of all FMLA claims to one department and that
it has chosen the Leave Coordination Department for this

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No. 02-3357 Cavin v. Honda of Am. Mfg., Inc. 21
9Honda perhaps m ay not receive actual notice of leaves of absence
from security in light of the fact that Honda policy does not require
communication betwe en security and the Leave C oordination De partm ent.
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 employee’s p otential need for a leave of
absence, security could transfer the call to the Leave Coordination
Departm ent, directly contact the Leave C oordination De partm ent to notify
them o f a possible candidate for leave, or even inform the employee that
he sho uld co ntact the Leave Co ordination D epartment.
purpose. See Cavin II, 2002 WL 484521, at *14 (“The goals
of the FMLA are more likely to be met when a large company
coordinates FMLA leave through one department that is
familiar with the FMLA and its accompanying rules and
regulations. The FMLA is designed to provide job security
to employees, but the employees’ needs must be balanced
with the legitimate interests of the employers.”). However,
we are not persuaded that notice to security constitutes notice
to Honda only of the event of an absence, but not of a need
for a leave of absence.9
In light of the above analysis, we conclude that Cavin’s
notice to Honda of his unforeseeable need for leave may meet
the requirements of the FMLA. If Honda lacked “sufficient
information about the employee’s reason for taking leave, [it]
should [have] inquire[d] further to ascertain whether the paid
leave is potentially FMLA-qualifying.” Manuel, 66 F.3d at
762 (quotation omitted). Viewing the facts in the light most
favorable to Cavin, Honda was on notice and had a duty to
collect additional information from Cavin that would be
necessary to make his leave comply with FMLA
requirements.
C. Damages
Finally, Honda argues that even if it interfered with Cavin’s
FMLA rights in June 1999, Cavin suffered no cognizable
injury as a result of that interference and therefore cannot
22 Cavin v. Honda of Am. Mfg., Inc. No. 02-3357
recover under § 2617. Even when an employee proves that
his employer violated § 2615,
§ 2617 provides no relief unless the employee has been
prejudiced by the violation: The employer is liable only
for compensation and benefits lost ‘by reason of the
violation,’ § 2617(a)(1)(A)(i)(I), for other monetary
losses sustained ‘as a direct result of the violation,’
§ 2617(a)(1)(A)(i)(II), and for ‘appropriate’ equitable
relief, including employment, reinstatement, and
promotion, § 2617(a)(1)(B). The remedy is tailored to
the harm suffered.
Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, __, 122
S. Ct. 1155, 1161 (2002). According to Honda, Cavin
suffered direct harm only as a result of his September-October
leave.
The regulations clearly provide that “employers cannot use
the taking of FMLA leave as a negative factor in employment
actions, such as hiring, promotions or disciplinary actions; nor
can FMLA leave be counted under ‘no fault’ attendance
policies,” 29 C.F.R. § 825.220(c), suggesting that
employment actions affected by such considerations are
cognizable harms under § 2617; see Bachelder v. Am. W.
Airlines, Inc., 259 F.3d 1112, 1125 (9th Cir. 2001)
(explaining that to prevail on an FMLA interference claim, an
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
FMLA, even in combination with other absences, may still
violate the FMLA.” Barnett v. Revere Smelting & Refining
Corp., 67 F. Supp. 2d 378, 388 (S.D.N.Y. 1999).
Cavin arguably suffered direct harm as a result of the June
incident. Cavin was coached about Honda leave policies,
which the company considered to be “the first step in
progressive discipline.” J.A. at 353 (McClellan Dep.); cf. J.A.

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No. 02-3357 Cavin v. Honda of Am. Mfg., Inc. 23
at 291 (Handbook) (“The purpose of coaching and counseling
for attendance is to confirm your understanding of the
attendance policy, gain understanding of the reasons for your
absenteeism, and to help correct the attendance situation.”).
Moreover, when the facts of Cavin’s separation were
presented to Honda’s employee review panel, it was
emphasized that the September-October incident was not the
sole reason for Cavin’s separation. The review panel was told
that Cavin had violated Honda’s leave of absence policy in
June, at which time he “received a re-education/coaching on
our leave of absence policy.” J.A. at 168 (Review Panel). It
was further emphasized before the review panel that
[T]his one incident did not on its own separate Mr. Cavin
from employment. Mr. Cavin was put on notice in July
that if future violations occurred he would be seperated
[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
24 Cavin v. Honda of Am. Mfg., Inc. No. 02-3357
of action, holding that “as a matter of Ohio common law, a
cause of action for wrongful discharge in violation of public
policy based solely on an employer’s violation of the FMLA
. . . is unnecessary to vindicate the policy goals of the
FMLA.” Wiles v. Medina Auto Parts, 773 N.E. 2d 526, 528
(Ohio 2002). Because Ohio does not recognize a cause of
action for wrongful discharge in violation of the public policy
embodied in the FMLA, we affirm the district court’s
dismissal of Cavin’s wrongful-discharge claim.
IV. CONCLUSION
For the reasons explained above, we AFFIRM the district
court’s dismissal of Cavin’s wrongful-discharge claim and
REVERSE and REMAND for further proceedings regarding
Cavin’s FMLA-interference claim.

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