In the
United States Court of Appeals
For the Seventh Circuit

No. 00-3681

Tina R. Thomas, O.D.,

Plaintiff-Appellant,

v.

Pearle Vision, Inc.,

Defendant-Appellee.

Appeal from the United States District Court
for the Central District of Illinois.
No. 97-1441--Joe B. McDade, Chief Judge.

Argued April 10, 2001--Decided May 30, 2001



  Before Coffey, Rovner, and Diane P. Wood,
Circuit Judges.

  Coffey, Circuit Judge. When Pearle
Vision, Inc. ("Pearle") refused to
restore Dr. Tina Thomas to the
optometrist position in its Peoria,
Illinois, store after a medical leave
related to the birth of her child, she
sued Pearle, alleging that Pearle had
breached her employment contract. Thomas
claimed that Pearle’s 1997 Summary Plan
Description of employee benefits
incorporated into her contract the Family
Medical Leave Act of 1993, 29 U.S.C. sec.
2601, et seq. Thomas also claimed Pearle
violated the FMLA by failing to provide
her with written notice that it
considered her a highly compensated
employee and that it intended to deny her
job restoration upon the completion of
her leave. The district court granted
summary judgment to her employer, Pearle,
holding that the "Problem Resolution"
clause within the manual afforded Dr.
Thomas an exclusive remedy for Pearle’s
failure to comply with the FMLA and
therefore, Dr. Thomas’s failure to comply
with that clause defeated her claim. Dr.
Thomas appeals.

I.   Factual Background

  Dr. Thomas began working at Pearle in
September 1994 as a full-time doctor in
its Peoria, Illinois store. Pearle
employed only 12 employees at the Peoria
store and less than 50 employees within
75 miles of the Peoria store. In 1996,
however, Pearle distributed to all of its
employees a 1997 Summary Plan Description
of Employee Benefits ("1997 SPD"). In a
section entitled, "The Family and Medical
Leave Act of 1993," Pearle stated in the
1997 SPD that "all employees with one
year of service who worked 1,250 hours
with Pearle in the 12 months immediately
prior to requesting leave" were eligible
for leave under the FMLA. The 1997 SPD
repeated this eligibility description
clause later, stating "[i]f you have
worked for Pearle for at least one year,
and have worked 1,250 hours or more
during the 12 month period prior to
requesting leave, you are eligible for
Family and Medical leave." The handbook
further contained instructions on how to
request leave, which required employees
requesting leave to notify a supervisor
at least 30 days in advance and complete
the necessary FMLA forms. Additionally,
the 1997 SPD contained a section
entitled, "Problem Resolution." In that
section, Pearle advised its employees
that:

It is the policy of the organization not
to discharge or discriminate against any
employee exercising his or her rights
under the federal Family and Medical
Leave Act. If you think you have been
treated unfairly, please contact the Vice
President of Human Resources. The
decision of the Vice President of Human
Resources will be final and binding.

  In September 1996 while expecting the
birth of her first child, Dr. Thomas read
over the potential benefits listed in the
1997 SPD to determine which one’s she
might be eligible for, paying particular
attention to potential benefits pursuant
to the FMLA. Around February of 1997, Dr.
Thomas notified her manager of her
pregnancy and requested maternity leave
under the FMLA. Dr. Thomas’s manager fur
nished her with an FMLA checklist and
other forms that had to be completed
pursuant to the FMLA. On the FMLA request
form, Dr. Thomas noted that she sought
only eight weeks of leave (though the
FMLA and Pearle’s plan allowed for up to
twelve weeks of leave). Further, on the
form for physician certification, which
she completed before the birth of her
child, Dr. Thomas and her physician
answered in the affirmative that she was
1) able to perform work of any kind, and
2) able to perform the functions of her
position.

  Shortly after completing the forms, Dr.
Thomas expressed a concern to Pearle
regional manager, Cheryl Melquist,
dealing with her eligibility because of
the section in the 1997 SPD labeled "Job
Restoration." In that section, Pearle
noted that "[c]ertain highly compensated
salaried employees are eligible for
leave, but are not guaranteed restoration
to their position if they choose to take
leave."/1 Melquist advised Dr. Thomas
that Pearle "would do everything [it]
could to help, to get fill-in doctors for
[her]" and that "as long as [it could]
find fill-in help, [Thomas] would
havenothing to worry about." Melquist
also told Thomas to call Pearle’s human
resources manager, Tim Hying, if she had
any questions. Admittedly, both Melquist
and Hying also told Thomas that there may
not be a position for her when she
returned, seemingly contradicting her
earlier statement that Thomas had nothing
to worry about. But neither Melquist nor
Hying ever sent Thomas written notice to
that effect or indicated definitively
that she would not be offered job
restoration upon completion of her leave.

  Shortly before Thomas’s leave commenced,
Pearle hired several doctors to serve
part-time (both to cover Thomas’s
absences before the delivery, and her
leave after delivery). On April 24, Dr.
Don Nelson told Thomas that he was going
to fill in for her while she was on
leave. Thomas’s manager, Traci Soots,
confirmed that Dr. Nelson was temporary
help. Thomas commenced her leave on April
29, several weeks earlier than she
expected, because of a back problem asso
ciated with her pregnancy. The next day,
Thomas sent a letter via facsimile to
Melquist, informing her that she still
planned to take pregnancy leave and
inquiring about what was planned for the
future regarding her position and about
Dr. Nelson’s status. On May 5, 1997,
Melquist phoned Thomas and explained that
Dr. Nelson was temporary help. But the
following day, Hying instructed Melquist
to hire a full-time regular employee
doctor, and Dr. Nelson was hired shortly
thereafter. Pearle did not notify Dr.
Thomas at this time of its decision to
hire Dr. Nelson full-time. In fact,
Pearle never did notify Dr. Thomas in
writing that they were unable to continue
using temporary help to fill her position
during her absence or much less that she
would be denied job restoration upon her
return from pregnancy leave.

  Instead, sometime around July 1997 Dr.
Thomas learned that Pearle had hired a
full-time replacement for her when she
noticed that her name was not on her
office door. On July 24, 1997, regional
manager Kurt Schaefer (who had recently
replaced Melquist) informed Dr. Thomas
(still, not in writing, but via a message
left on her home telephone’s answering
machine) that Pearle had hired Dr. Nelson
as a full-time doctor and that there were
currently no part-time or full-time
positions available in the region.
Schaefer did not explain that restoring
Dr. Thomas to her position (or a similar
one) would result in substantial and
grievous economic injury to Pearle (thus
necessitating the hire of Dr. Nelson).
Dr. Thomas then commenced suit against
Pearle for breach of contract, alleging
that Pearle incorporated the FMLA into
her contract through the 1997 SPD. Dr.
Thomas further claimed that Pearle
breached the contract when it failed to
comply with the provision of the FMLA
that an employer give highly compensated
employees written notice at the time
leave was requested that it intended to
deny job restoration on the completion of
leave. See 29 C.F.R. sec. 825.219.

  Pearle moved for summary judgment,
arguing that the 1997 SPD did not create
an enforceable contract granting Dr.
Thomas any rights under the FMLA, and in
the alternative, that Dr. Thomas breached
the contract by failing to take advantage
of the "Problem Resolution" clause in the
1997 SPD. The trial court rejected
defendant’s first argument, holding that
the 1997 SPD met the requirements of
Duldulao v. Saint Mary of Nazareth Hosp.
Ctr., 505 N.E.2d 314, 317-18 (Ill. 1987),
and created an enforceable contract that
gave Dr. Thomas the benefits of the FMLA.
Nonetheless, the district court granted
summary judgment to Pearle, holding that
Dr. Thomas had not complied with the
"Problem Resolution" procedure and
therefore her breach of contract defeated
her claim.
  Dr. Thomas filed a motion to reconsider
the judgment and also for leave to
supplement the record (to show that she
had complied with the clause). In her
motion, Dr. Thomas argued that Pearle had
breached the contract first, and
therefore her breach was immaterial. The
court granted Dr. Thomas’s motion and
vacated its initial order. The court
further declared Dr. Thomas’s motion to
supplement the record as moot. After the
district court vacated the judgment,
Pearle filed a motion to reconsider,
arguing that the court’s holding rendered
the "Problem Resolution" clause
meaningless. The court agreed and again
granted summary judgment to Pearle. The
court reasoned that, although the 1997
SPD granted Dr. Thomas rights under the
FMLA, it also limited those rights
through the Problem Resolution clause,
which operated as an exclusive remedy for
violations of FMLA benefits given to Dr.
Thomas by the 1997 SPD. Dr. Thomas
appeals, arguing that the Problem
Resolution clause is ambiguous in that it
can reasonably be interpreted as either
permissible or mandatory and in that it
does not apply to her as published.

II.    Issues

  Two issues present themselves in Dr.
Thomas’s appeal. Initially, we must
determine whether the 1997 SPD created an
enforceable contract that granted Dr.
Thomas the benefits of the FMLA. Next, if
we determine that the 1997 SPD did create
an enforceable contract, we must
determine whether the Problem Resolution
clause was ambiguous.

III.    Analysis

  We review de novo a district court’s
grant of summary judgment. Kuchenruether
v. City of Milwaukee, 221 F.3d 967, 972
(7th Cir. 2000). Summary judgment is
proper if "there is no genuine issue as
to any material fact and . . . the moving
party is entitled to a judgment as a
matter of law." Fed. R. Civ. P. 56(c).
Under Illinois law a genuine issue of
material fact exists in contract cases
when a key provision of a contract is
ambiguous, requiring admission of
extrinsic evidence. McDonald’s Operators
Risk Mgmt. Ass’n, Inc. v. CoreSource,
Inc., 717 N.E.2d 485, 488; Dudek, Inc. v.
Shred Pax Corp., 626 N.E.2d 1204, 1209
(Ill. App. Ct. 1993); Dash Messenger
Serv., Inc. v. Hartford Ins. Co., 582
N.E.2d 1257, 1260 (1991). Moreover, once
the trial court has interpreted the
contract as a matter of law, the
reviewing court may independently
construe the contract. In re Marriage of
Davis, 678 N.E.2d 68, 70 (Ill. App. Ct.
1997); Omnitrus Merging Corp. v. Illinois
Tool Works, Inc., 628 N.E.2d 1165, 1168
(Ill. App. Ct. 1994).

A. Existence of a Contract and FMLA
Benefits

  Because Pearle employed less than 50
employees within 75 miles of the store at
which Dr. Thomas worked, she would not be
an eligible employee as defined by the
FMLA. See 29 U.S.C. sec. 2611(2)(B).
Thus, Dr. Thomas’s claim arises not under
the FMLA, but under the language of her
contract. Dr. Thomas contends that the
1997 SPD that Pearle distributed to all
of its employees, and language therein
created an enforceable contract granting
her rights under the FMLA. Under Illinois
law, employee manuals can create
enforceable contracts if the traditional
elements of contract formation are
present. See Duldulao, 505 N.E.2d at 318;
Perma v. Arcventures, Inc., 554 N.E.2d
982, 987 (Ill. App. Ct. 1990).

  To support her contention that Pearle
made an express promise to grant her
benefits under the FMLA, Dr. Thomas
points to a passage in the 1997 SPD that
reads:

If you have worked for Pearle for at
least one year, and have worked 1,250
hours or more during the 12 month period
prior to requesting leave, you are
eligible for Family and Medical Leave.

Dr. Thomas argues that this language,
repeated elsewhere in the 1997 SPD,
serves to waive the jurisdictional
threshold mandating a minimum number of
employees be employed within a certain
radius for an employee to be eligible for
the FMLA. In essence, Dr. Thomas contends
that this language expressly incorporates
the FMLA, in its entirety, into her
contract.

  Pearle contends on appeal, as it did
below, that the 1997 SPD does not create
an enforceable contract because the
statement discussing FMLA eligibility is
not an express promise that it
"incorporates, adopts, abides by, or
provides to all its employees the full
array of FMLA rights." But it is hard to
construe the statement in the 1997 SPD
that "all employees with one year of
service who worked 1,250 hours with
Pearle in the 12 months immediately prior
to requesting leave" are eligible for the
FMLA as anything other than an express
promise. Cf. Lee v. Canuteson, 573 N.E.2d
318, 322 (Ill. App. Ct. 1991) (holding
that employee manual that stated "it is
the sincere intent of [employer] to be
fair and reasonable with all employees at
all times" and that employees "may" be
subject to progressive discipline did not
constitute express promises). Had Pearle
wished to limit this clause, it needed
only omit the "all" and replace it with
"any employee who is employed at a work
site with less than 50 employees."
Similarly, had Pearle intended the
section on the FMLA to merely describe
FMLA benefits for those employees who
were eligible it could have drafted the
clause accordingly. It did neither.

  The above is not the only evidence in
the record that Pearle obligated itself
to provide Dr. Thomas (and other
employees not otherwise statutorily
eligible) the benefits of the FMLA.
Pearle’s actions provide further evidence
of their intent to provide Dr. Thomas
with FMLA benefits. The 1997 SPD
established a procedure for employees to
follow when requesting leave under the
FMLA, and pursuant to this procedure
Pearle provided Dr. Thomas with FMLA
forms to complete. In short, Pearle acted
as if the 1997 SPD did, in fact, grant
Dr. Thomas the right to request leave
under the FMLA, despite the fact that at
this point in time she was not
statutorily eligible. Dr. Thomas’s
reliance on Pearle’s actions was
reasonable, and Pearle’s argument that
the 1997 SPD did not offer Dr. Thomas the
benefits of the FMLA is disingenuous at
best.

B. Interpretation of the Problem
Resolution Clause

  Although we hold that the 1997 SPD did
create an enforceable contract that
rendered Dr. Thomas eligible for the
FMLA, this alone does not carry the day
for Dr. Thomas. This is because of the
simple principle that what a contract
gives, it can also take away. Pearle
argues that, even if the 1997 SPD did
make Dr. Thomas eligible for benefits
under the FMLA, other parts of the 1997
SPD took away certain benefits.
Principally, Pearle contends that the
Problem Resolution clause/2 serves
either as an exclusive remedy for any
violations of the FMLA or as a
requirement that must be exhausted before
an aggrieved employee may bring suit.
Thus, Pearle argues that Dr. Thomas’s
claim for breach of contract is barred
because Dr. Thomas failed to follow the
procedure set forth in the Problem
Resolution clause. Dr. Thomas suggests,
however, that the Problem Resolution
clause is ambiguous, pointing to two
ambiguities: 1) whether it is mandatory
or permissive; 2) whether it applies to
any claim under the FMLA or only claims
of retaliation or discrimination for
exercising FMLA rights.

  A contract is ambiguous if it is
reasonably or fairly susceptible to more
than one interpretation. Owens v.
McDermott, Will & Emery, 736 N.E.2d 145,
150 (Ill. App. Ct. 2000); Pennsylvania
Life Ins. Co. v. Pavlick, 637 N.E.2d
1160, 1162 (Ill. App. Ct. 1994); Omnitrus
Merging Corp., 628 N.E.2d at 1168.
However, merely because the parties do
not agree on the contract’s meaning does
not render it ambiguous. Pennsylvania
Life Ins. Co., 637 N.E.2d at 1102. Thus,
we must determine whether Dr. Thomas’s
interpretations of the Problem Resolution
clause are reasonable, bearing in mind
that Illinois has long recognized the
rule of contract construction that any
ambiguity in the contract should be
resolved against the drafting party, in
this case Pearle. See Liccardi v. Stolt
Terminals (Chicago), Inc., 669 N.E.2d
1192, 1199 (Ill. App. Ct. 1996); Wheeler
v. Phoenix Co. of Chicago, 658 N.E.2d
532, 537 (Ill. App. Ct. 1995)
(ambiguities in language contained within
employee manual construed against the
drafter); Epstein v. Yode 391 N.E.2d 432
(Ill. App. Ct. 1979).

1.   Mandatory or Permissive

  We note at the outset that the plain
language of the contract is permissive,
not mandatory. See Owens, 736 N.E.2d at
150 (holding that a party’s intent is
best determined from the plain language
of the contract). The clause reads, "[i]f
you think you have been treated unfairly,
please contact the Sr. Vice President of
Human resources." It does not read, "you
must contact the Sr. Vice President" or
"failure to contact the Sr. Vice
President will result in a loss of your
rights and benefits." If Pearle had
wished the Problem Resolution clause to
be an exclusive and mandatory remedy that
must be exhausted before a complainant
resorts to litigation, then it could very
easily have drafted the clause with
clear, unambiguous, and express mandatory
language. Cf. Lee v. Canuteson, 573
N.E.2d 318, 320 (1991) ("failure to
comply with any of the time limits listed
below shall constitute a waiver of the
grievance."). Even though the district
court’s interpretation could perhaps be
deemed reasonable, so too is an
interpretation that the Problem
Resolution clause merely offered Pearle
employees the additional benefit of an
informal resolution procedure.

  Pearle suggests that to interpret the
clause as permissive eviscerates its
meaning, and deprives Pearle of a
bargained for right, citing Mayfair v.
Waveland, 619 N.E.2d 144, 152 (Ill. App.
Ct. 1993) (contracts should be construed
to give effect to every clause). We
disagree. Pearle may have intended the
Problem Resolution clause to grant
employees additional rights, giving them
an informal remedy should they chose to
avoid retaining an attorney. This could
both generate good will among Pearle
employees (who may not have to struggle
as mightily to validate their FMLA rights
when management makes an honest mistake),
but also, in turn, helps Pearle avoid
legal expenses when those employees
choose that remedy. Pearle’s suggestion
that employees would never avail
themselves of a permissive remedy and
would instead always resort to litigation
is but speculation.

  But there is more to cast doubt on
Pearle’s interpretation of the Problem
Resolution clause. The FMLA
prohibitscovered employers from
discouraging eligible employees from
exercising their rights under the FMLA,
see 29 C.F.R. sec. 825.220(a)(1), and
Pearle distributed the 1997 SPD to all of
its employees, including those
statutorily eligible for protection under
the FMLA. Accordingly, if the Problem
Resolution clause is obligatory, then it
arguably violates the FMLA and would be
entirely invalid against its FMLA-
eligible employees. Pearle suggests that
every contract should be read so that
every clause is given effect, but the
very interpretation of the contract that
it proposes would strip the Problem
Resolution clause of meaning for many
Pearle employees./3

  Because the express language of the
Problem Resolution clause is permissive
and because an interpretation of the
clause as such is reasonable, we hold
that the Problem Resolution clause is
ambiguous. Therefore, there is a genuine
issue of material fact as to whether
Pearle intended the procedure set forth
in the Problem Resolution clause to be
permissive or mandatory.

2. The Scope of the Problem Resolution
Clause

  Even if, however, the Problem Resolution
clause clearly expressed Pearle’s intent
to create an obligatory remedy that
aggrieved employees must utilize before
resorting to litigation, Dr. Thomas
further argues that the Problem
Resolution clause is ambiguous as to its
scope. Dr. Thomas contends that the
clause applies only if an employee seeks
to bring a claim of retaliation for
exercising rights under the FMLA. She
points to language in the clause that
reads "[i]t is the policy of the
organization not to discharge or
discriminate against any employee
exercising his or her rights under the
Family and Medical Leave Act." Pearle
largely ignores this argument, relegating
its response to a footnote in which it
claims that Thomas’s reading of the
clause is "tortured" and "facially
unavailing."

  But an examination of the structure of
the FMLA suggests that Dr. Thomas’s
reading of the Problem Resolution clause
is, in fact, reasonable. The FMLA
establishes two categories of broad
protections for employees--one
prescriptive in nature, the other
proscriptive. See 29 U.S.C. sec. 2615
(a)(1) & (2); see also Rice v. Sunrise
Express, 209 F.3d 1008, 1016-17 (7th Cir.
2000); King v. Preferred Technical Group,
166 F.3d 887 (7th Cir. 1999); Strickland
v. Water Works and Sewer Bd. of the City
of Birmingham, 239 F.3d 119, 1206-07
(11th Cir. 2001); Chaffin v. John H.
Carter Co., 179 F.3d 316, 319 (5th Cir.
1999); Hodgens v. General Dynamics Corp.,
144 F.3d 151, 159-60 (1st Cir. 1998). The
prescriptive category of protections
ensures the availability of the FMLA’s
substantive statutory rights, making it
"unlawful for any employer to interfere
with, restrain, or deny the exercise of
or the attempt to exercise, any right
provided." See 29 U.S.C. sec. 2615(a)(1);
see also King, 166 F.3d at 891;
Strickland, 239 F.3d 1206-07. The
proscriptive category of protections does
not ensure substantive rights, but
instead, protects employees from
retaliation, making it unlawful for
employers to discriminate against
employees who have exercised their rights
under the FMLA. See 29 U.S.C. sec. 2615
(a)(2); 29 C.F.R. sec.825.220(c); see
also King, 166 F.3d at 891; Strickland,
239 F.3d at 1206-07. Courts have
routinely recognized the difference
between the two types of claims, and have
applied different tests when employees
bring only one of the two types of
claims. See, e.g., Diaz v. Fort Wayne
Foundry Corp., 131 F.3d 711 (7th Cir.
1997); Nero v. Industrial Molding Corp.,
167 F.3d 921 (5th Cir. 1999); Chaffin,
179 F.3d at 319. In this case, language
of the Problem Resolution clause suggests
that it applies to proscriptive claims of
retaliation and discrimination and not to
prescriptive claims that Pearle failed to
provide substantive FMLA rights. It
directs employees who believe they have
been discriminated against for exercising
their rights under the FMLA (and not
those employees who believe they have
unlawfully been denied FMLA benefits) to
contact the Sr. Vice President. Further,
the second paragraph of the clause
directs employees who have "questions"
about their FMLA benefits to contact
their benefits coordinator./4 A
reasonable interpretation of the entire
clause, which differs from that offered
by Pearle, is that employees who have
questions about substantive FMLA benefits
(such as Dr. Thomas) contact their
benefits coordinator, while employees who
believe that they have been retaliated
against for exercising FMLA rights (a
category in which Dr. Thomas would not be
included) contact the Sr. Vice President.
Accordingly, we hold that the Problem
Resolution clause is also ambiguous as to
its scope. Therefore, there is a genuine
issue of material fact as to whether the
procedure set forth in the Problem
Resolution clause applies to Dr. Thomas.

C.   Form over Function

  Lest we elevate form over substance, we
discuss briefly whether Dr. Thomas was
actually damaged by Pearle’s failure to
provide her written notice that she was a
highly compensated employee and that it
intended to deny job restoration. The
parties do not dispute that both Melquist
and Hying told Thomas that there may not
be a position for her when she returned.
But Melquist, Soots, and even Dr. Nelson
himself, told Thomas on numerous
occasions, 4 in number, that she had
"nothing to worry about" and that Dr.
Nelson was only temporary help. Indeed,
on the day before Melquist hired Dr.
Nelson, she advised Thomas that Dr.
Nelson was only performing her duties as
"temporary help." Thus, Pearle’s actions
should not be considered so clear to a
reasonable individual, including Dr.
Thomas, that it considered her to be a
highly compensated employee and would not
necessarily offer her job restoration
when she returned from leave. They are,
in fact, far from it.

  And there is more. At the same time
Pearle employees told Thomas that she
might not be offered job restoration,
they provided her with FMLA forms to
complete, which could have lead a
reasonable person to believe that her
position was secure and her leave had
been granted. On those leave request
forms, Dr. Thomas also indicated that she
was able and willing to perform the
functions of her position--and yet Pearle
never informed her that it planned to
hire Dr. Nelson full-time because they
could not find sufficient coverage for
Dr. Thomas’s position. Indeed, Thomas did
not even learn that Pearle had hired a
full-time replacement until she began
preparing and was physically able to
return from her leave in July and noticed
that her name was no longer on the office
door.
  In essence Pearle never did provide Dr.
Thomas with a clear and definite
statement of its intentions. Perhaps, if
faced with the decision between two
definite alternatives--either to continue
her leave knowing that her job would not
be restored or to abort her leave to
secure her position--Dr. Thomas would
have chosen the latter, and that is
sufficient to establish that Pearle’s
failure to provide her written notice was
certainly far more important than a
simple, technical error, but one that
substantively affected Dr. Thomas’s
rights.

IV.   Conclusion

  We disagree with the district court’s
conclusion that the Problem Resolution
clause in Pearle’s 1997 SPD unambiguously
created an exclusive remedy for Pearle’s
breach of the FMLA. The clause neither
used express language indicating such an
intent, nor clearly defined the scope of
the clause. Further, we hold that Dr.
Thomas was injured by Pearle’s failure to
provide clear, written notice of its
intention not to offer her job
restoration, with which she might have
chosen to continue working rather than
risk the loss of her job. Accordingly,
because the contract is ambiguous, its
interpretation is a question for the
trier of fact and summary judgment was
improper.
  The decision of the district court is
REVERSED and the case REMANDED for further
proceedings consistent with this opinion.

FOOTNOTES

/1 This clause is similar to an exemption in the
FMLA, allowing employers under certain conditions
to deny restoration to highly compensated
employees. 29 U.S.C. sec. 2614(b)(1). The
regulations implementing the FMLA require an
employer that chooses to avail itself of this
exemption to provide the employee written notice
at the time the employee requests leave that it
intends to deny restoration pursuant to sec.
2614. If the employer does not provide written
notice to the employee, then it loses its right
to deny restoration. 29 C.F.R. sec. 825.219.

/2 The Problem Resolution clause reads, in its
entirety:

It is the policy of the organization not to
discharge or discriminate against any employee
exercising his or her rights under the federal
Family and Medical Leave Act. If you think you
have been treated unfairly, please contact the
Sr. Vice President of Human Resources. The deci-
sion of the Sr. Vice President of Human Resources
will be final and binding.

If you have questions about the Family and Medi-
cal Leave Act of 1993, please contact your Bene-
fits Coordinator.

/3 The record does not disclose how many Pearle
employees are eligible employees as defined by
the FMLA, but presumably all of those employees
in major metropolitan areas (where it is likely
that more than 50 employees work within a 75 mile
radius) are eligible.

/4 Although the record does not disclose who Thom-
as’s benefits coordinator was, she had contact
with both Pearle’s regional manager, Melquist,
and Pearle’s human resources manager, Hying,
regarding her leave.
