According to the Court’s opinion the plaintiff was absent
from work and produced return-to-work medical slips concerning multiple medical
conditions, including gout, arthritic hip, hypertension and low back strain in
2008. There is no indication that any of
these conditions triggered the FMLA and he was issued a written reprimand in
July 2008 for missing 10 hours of work in a two year period for these (and
possibly other) reasons. In January
2009, he was approved for 12 weeks of FMLA leave for a resurfacing of his hip in
April 2009 due to severe degenerative joint disease. He was suspended for three days in June 2010
for missing another 10 hours of work and then was approved for intermittent FMLA
leave due to continuing problems with his hip. In December 2011, he was approved again for
intermittent FMLA leave for multiple medical conditions involving his kidneys,
hypertension, back pain and hips. His
physician indicated that he require FMLA leave once each month for 3-4 days,
but that this was unpredictable and unstable.
The plaintiff sought FMLA leave for 9 consecutive days in
February 2012. The County wrote him to
remind him to bring a return-to-work certification (for every absence of more
than 3 days) and requested him to recertify his FMLA leave because his 9-day
absence was longer than the 3-4 days in his FMLA medical certification. Notably, the County did not place a deadline
on the recertification or explain the consequences of failing to provide the
recertification. The County also sent
him an FMLA Eligibility Notice about being eligible as of February 6, and which
specified a February 24 deadline, but
did not check any of the boxes in Part B about what he was to provide prior to February 24. The plaintiff did not provide the
recertification information until April
24, but the County approved his absence under the FMLA through February 9,
2012.
At the end of February, the plaintiff missed four more days
of work. The County claims that he
called off for chest pains (which was not an FMLA approved reason under his
prior medical certifications). The
plaintiff says that he initially called off for hip pain (which was covered by
his FMLA medical certification) and then the last day (Friday) was chest pains,
which caused him to immediately schedule an appointment with a cardiologist for
that Monday and request new FMLA paperwork. However, upon his mentioning chest pains, the
County designated his entire absence
as unapproved and began proceedings to terminate his employment under its
attendance policy (even though it sent him the requested FMLA paperwork for the
cardiologist on Monday to cover the entire period of his absence). Again, the FMLA paperwork noted that he was
eligible for FMLA leave and also failed to identify what information he needed
to produce in order to qualify for FMLA leave.
In other words, he was never informed in writing that he needed to
produce a medical certification of his cardiac condition by a certain date or
risk his FMLA leave being denied. The plaintiff
claimed that he immediately faxed the forms to the cardiologist, who promptly
completed and dated them on February 29.
However, the County denied receiving them until April 26 – the date of
the plaintiff’s pre-termination hearing.
Moreover, the County admitted that it had never informed the plaintiff
that it failed to receive a timely medical certification. This seems logical since the plaintiff had
produced a return-to-work slip from the cardiologist on February 27 releasing
him to return to work without any medical restrictions. Nonetheless, the FMLA certification completed
by the same cardiologist two days later indicated possible flare-ups and
further testing, etc.
At the pre-termination hearing, the County noted that his
certifications and recertifications were tardy (i.e., beyond the 15-day
deadline) and were completed after the periods of the plaintiff’s unapproved
absence. The County did not seek
clarification from the physicians. The
County then terminated the plaintiff even though he had 376 FMLA hours
remaining. He was not even given paid
sick time for his February absences.
The plaintiff brought suit alleging that the County discriminated
against him on the basis of a disability and interfered with his FMLA rights
when it terminated him, but failed to include allegations about his prior
disciplinary actions being inappropriate for considering his FMLA
absences. The district court granted
summary judgment to the County on the grounds that the plaintiff failed to
provide timely medical certifications and recertifications. However, the Sixth Circuit reversed since the
conclusion was based on conflicting evidence:
First, although [the County’s] February 9, 2012 letter could
be interpreted as alerting [the plaintiff] that his prior leave (approved in
December 2011) was no longer valid by directing him “to recertify to
substantiate the need for additional time off,” . . . the County nonetheless approved absences that
were presumably covered by the February 9 request (January 30 - February 9).
The County also approved absences in March 2012 under [his] December 2011
certification. Both approvals call into question whether the County actually
considered the certification invalid after February 24 (the due date for recertification).
In addition, [the County’s] letter of February 9 “required” a doctor’s note on
Pearson’s return but merely “requested” a recertification. . . . While [the County’s]
letter of February 9 requests both a doctor’s note and recertification, it
fails to specify any particular documentation (beyond a note) that [he] might
need to provide. Thus, there remains a question of fact regarding whether the
doctor’s note satisfied the recertification request.
We also disagree with the district court’s finding that there
was no question regarding the County’s reason for disapproving the February 21
through 24 absences. The County maintains it was because of [the plaintiff’s]
failure to recertify, but there is conflicting evidence on this point: It appears
[the County] chose not to approve those dates based on her determination that [he]
was absent for a non-FMLA covered condition, i.e., chest pain. . . . . And there was at least a question of
fact whether [he] reported that he was absent due to the hip condition (already
certified).
. . . Further, the
district court’s determination that [the plaintiff’s] FMLA interference claim
fails because Dr. Tuffuor’s recertification was “untimely” (not received by the
County by February 24, 2012) was premature. FMLA compliance officer Lori Acosta
testified that the County “has had employees bring in their completed [FMLA]
med certs at a predisciplinary conference,” and that “[t]ypically, Cuyahoga
County will not deny a request for [FMLA] if it’s not received by the 16th day. We do allow for extenuating circumstances
to afford more time to provide the medical certification, particularly, if an employee
indicates need for additional time, within reason.”
. . . .
If [the
plaintiff’s] absences from February 21 through 24 were due to hip pain as he
testified, PID 327-31, (or back pain or hypertension), no doctor’s note or
certification was required, and the absences should have been covered under the
intermittent FMLA leave the County approved in December 2011.
Accordingly,
because there was a factual dispute about whether the plaintiff’s absences were
covered by the FMLA, summary judgment for the employer was held to be
inappropriate on the FMLA claim. Nonetheless,
the Court affirmed dismissal of the disability discrimination claim on the
grounds that the plaintiff never specifically requested a reasonable
accommodation “either when he called off work on February 21 through 24,
2012, or after he became aware that the
County was contesting the validity of his FMLA leave for those absences.”
NOTICE: This summary is designed
merely to inform and alert you of recent legal developments. It does not
constitute legal advice and does not apply to any particular situation because
different facts could lead to different results. Information here can change or
be amended without notice. Readers should not act upon this information without
legal advice. If you have any questions about anything you have read, you
should consult with or retain an employment attorney.
