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Download NowWhat happened. Linda Mellen joined Boston University in 1977, and by 1998 was a financial manager. Late in 2002, Frances Drolette became her new supervisor, and, according to court records, their relationship was a rocky one. Mellen apparently waited until October 1 to say that she needed the extra leave until November 18, and Drolette was angry at the late notice. The school also wrote Mellen that she must return November 19. She asked for an extra day because November 17 was a university holiday, but when that was refused she asked for a day under the state's Small Necessities Leave Act. That Massachusetts law provides for 24 hours of leave annually for employees who need it, but requires 7 days' notice.
Mellen didn't return on November 19, or, in fact, ever. She sued, contending that the university should not have counted paid holidays against her leave. By doing so, it had violated her rights under FMLA and the Small Necessities law. A federal district judge ruled for the employer, and she appealed to the 1st Circuit, which covers Maine, Massachusetts, New Hampshire, and Rhode Island.
What the court said. Mellen said a Department of Labor FMLA regulation means that holidays should not be counted against leave. It is 29 C.F.R. § 825.205(a), which reads, "If an employee takes leave on an intermittent or reduced schedule, only the amount of leave actually taken may be counted toward the 12 weeks of leave to which an employee is entitled." Appellate judges found that none of the circuit courts had ruled on "the consequences of an employee taking intermittent leave in a period of a week or more when one (or more) of the weeks contains a holiday." Nor did they feel the cited regulation covers the situation.
Meanwhile, the university offered another regulation, 29 C.F.R. § 825.200(f), saying, "For purposes of determining the amount of leave used by an employee, the fact that a holiday may occur within the week taken as FMLA leave has no effect; the week is counted as a week of FMLA leave." Judges felt the reg cited by Mellen means only that leave actually taken is leave used. So her claims were again dismissed. Mellen v. Boston University, U.S. Court of Appeals for the 1st Circuit, No. 07-1151 (9/21/07).
Point to remember: It's hard to tell why Mellen quibbled so much about a single day. But it takes an angry employee to sue, and she was clearly angry about the way she had been treated.