previous twelve-month period. 29 U.S.C. § 2611(2)(A). The USPS has presented the affidavit of John C. Pullan, the Postmaster of the Winnetka Post Office, and an analysis of work hours for Mr. Thoele from December 19, 1993, to December 19, 1994, indicating Mr. Thoele only worked 1,209.51 hours during the twelve months before he requested FMLA leave.
Mr. Thoele does not dispute that he failed to work the necessary 1,250 hours to be eligible for FMLA leave. Instead, he makes a variety of arguments to prove he should still be covered by the FMLA: 1) that under the terms of the FMLA an employer must notify an employee that he or she is ineligible to receive leave within two days of the leave or the employee will be deemed eligible, 2) that the arbitrator determined the USPS did not notify Mr. Thoele he was ineligible for FMLA leave until after he took the leave and thus, this court is collaterally estopped to determine otherwise, 3) he would have worked 1,250 had it not been for an improper suspension in June, 1994. All of Mr. Thoele's arguments are without merit.
As currently implemented in the Code of Federal Regulations, the FMLA requires an employer to advise an employee if he or she is ineligible for FMLA leave. 29 C.F.R. § 825.110(d). If the employer does not notify an employee of ineligibility within two days of the leave period, the employee is deemed eligible for the leave. The USPS did not inform Mr. Thoele of his FMLA ineligibility until February 16, 1995. The rule requiring notification, however, was not in existence at the time Mr. Thoele requested FMLA leave. It became effective on April 6, 1995. 60 Fed. Reg. 6,658, 6,658 (1995). Between the passing of the FMLA and the implementation of the regulations in the Code of Federal Regulations, the FMLA was effectuated using interim rules. The interim rules did not require an employer to notify an employee of ineligibility. 58 Fed. Reg. 31,794, 31,816 (1993). The rule requiring an employer's notification of ineligibility has been held to be non-retroactive. Bauer v. Varity Dayton-Walther Corp., 118 F.3d 1109, 1111 n.1 (6th Cir. 1997); Schlett v. AVCO Fin. Serv., Inc., 950 F. Supp. 823, 835 (N.D. Ohio 1996); Robbins v. Bureau of Nat'l Affairs, Inc., 896 F. Supp. 18, 21-22 (D.D.C. 1995). Thus, Mr. Thoele's argument that the USPS' failure to notify him of ineligibility rendered him automatically eligible for FMLA leave is without merit. The USPS was not under an obligation at the time Mr. Thoele requested leave to notify him of his ineligibility.
Mr. Thoele next argues that since the arbitrator found that an employee is deemed eligible for FMLA leave if he or she is not notified otherwise, I am bound to apply collateral estoppel to find that Mr. Thoele was an eligible employee. Collateral estoppel applies if: "(1) the issue sought to be precluded is the same as that involved in the prior action; (2) the issue was actually litigated; (3) the determination of the issue was essential to the final judgment; and (4) the party against whom estoppel is invoked was fully represented in the prior action." Havoco of Am., Ltd. v. Freeman, Atkins & Coleman, Ltd., 58 F.3d 303, 307 (7th Cir. 1995) (citations omitted).
In a footnote, the arbitrator stated, in conclusory fashion, that an employee is deemed eligible for FMLA unless otherwise notified by the employer. (Arbitrator's Decision at 16). Based on this minor statement, I do not find that the employer notification requirement of the FMLA was "actually litigated." Additionally, the issue in the arbitration was whether Mr. Thoele had been removed for just cause. The arbitrator indicated in his "award summary" that the propriety of Mr. Thoele's FMLA claim was immaterial to the just cause determination by stating that discipline for Mr. Thoele was appropriate " whether or not [Mr. Thoele] was entitled to [Leave Without Pay] ... under the Family and Medical Leave Act (FMLA)." (Arbitrator's Decision at 1) (emphasis added). Thus, to the extent the arbitrator actually made a determination of the applicability of the FMLA, it was not "essential to the final judgment."
Mr. Thoele next argues that he would have reached 1,250 hours had he not been improperly suspended in June, 1994. Mr. Thoele was suspended for failure to maintain regular work hours. He filed a Step 1 grievance as set forth in the collective bargaining agreement. (1994-98 Coll. Bargaining Agree. at 91-92). This grievance was denied and the APWU did not appeal Mr. Thoele's suspension to the next Step or to arbitration. (Fitzgerald Aff. P 4). Mr. Thoele served his suspension. Now, Mr. Thoele wishes to litigate the propriety of his suspension. As noted above, Section 1208(b) of the Postal Reorganization Act limits jurisdiction to suits between employers and unions. An exception applies if Mr. Thoele claims the APWU has breached its duty of fair representation. Mr. Thoele has not made such a argument. Thus, I am without jurisdiction to consider this claim.
Mr. Thoele concedes he did not have the required 1,250 hours of service necessary to qualify for FMLA leave. Under the interim rules, which apply to Mr. Thoele, the USPS did not have to notify Mr. Thoele of his FMLA ineligibility.
Mr. Thoele may not maintain an action under the FMLA. Accordingly, the USPS' motion for summary judgment is granted and Mr. Thoele's motion for summary judgment is denied.
Elaine E. Bucklo
United States District Judge
Dated: March 10, 1998
JUDGMENT IN A CIVIL CASE
Decision by Court. This action came to hearing before the Court. The issues have been heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED that plaintiff's motion for summary judgment is denied and defendant's motion for summary judgment is granted. Accordingly, judgment is entered in favor of defendant and against plaintiff.