When Bizarre and Threatening Behavior Constitutes Constructive Notice of a Need for FMLA Leave.

Setting a rather dangerous precedent, the Seventh Circuit Court of Appeals – in a 2-1 vote -- recently reversed summary judgment in favor of an employer which had fired an employee who freaked out over a stray puppy that had entered her workspace, engaged in bizarre and threatening behavior, called off sick for days on end due to the stray dog, and failed to provide the necessary medical certification to justify a medical leave of absence. Stevenson v. Hyre Electric Co., No. 06-3501 (7th Cir. 10/16/07).

After a dog wondered near the plaintiff’s desk, she began cursing, spraying deodorizer, and otherwise displaying agitated and belligerent behavior. Two hours later, she went home “ill.” She called off “sick” the next day as well. The following day, she accosted the company president first thing in the morning and screamed at him about the dog for ten minutes despite his efforts to calm her. She then left work again, filed a complaint with OSHA about the single incident involving the stray dog and went to the local ER, which obtained normal CAT scans and EKGs, but diagnosed her with anxiety and stress and prescribed Antivan. She called off “sick” for the next three workdays (again without elaborating why), but met with her union steward about the stray dog incident. She finally came to work for a few hours (and had been moved to a different office to accommodate her fear of stray dogs), but called the police about undefined harassment, screamed at her co-workers and left work again “ill” without completing any significant work. Before leaving, she left a copy of her records from her ER visit.

The company then notified the plaintiff that she had exhausted her paid leave and needed to provide medical certification of her need for FMLA leave within 15 days of her first absence or she would be terminated. Plaintiff called off “sick” again, but went to her regular physician (who prescribed sleep medication). Plaintiff did not return to work for a few days, but met with her union again. She also obtained a note from her physician “excusing” her absences through that date (February 20), but not certifying or even mentioning that she had a “serious health condition” or that she had been directed to remain off work. Despite her doctor visit, the plaintiff still did not return to work, but she provided the doctor’s “excuse” to her union, which sent it to the company president. In this age of workplace violence, the employer was alarmed by her bizarre behavior and lack of cooperation in supplying medical information. It changed its locks and barred her from entering when she finally showed up a few days later without a doctor's release. Only then did Plaintiff obtain an updated medical release to return to work, but by then, the company did not want it and refused to explain why to her union when asked.

Apparently not as concerned with the safety of her co-workers, the majority of the court interpreted the same bizarre behavior as sufficient evidence for a jury to believe that the plaintiff suffered from a serious health condition which was protected by the FMLA and excused her from seeking medical leave or providing timely medical certifications. Her bizarre behavior could constitute “constructive notice” to the employer of her need for medical leave in the same way that watching an employee break his or her arm would constitute constructive notice of a need for medical leave:

“Lengthy encounters of yelling and swearing at one’s superiors so severe that a company locks out an employee with a previously unblemished record for safety concerns, coupled with that employee’s calling the police because her belongings have been moved to another desk, are undeniably unusual and could be viewed by a trier of fact as unusual enough to give [the president] notice of a serious mental health condition. Of course, the factfinder could find that [Plaintiff] just had a bad temper that erupted during the period in question. The point here is that this is not a decision the court can make as a matter of law.”

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. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney. Insomniacs can read the full opinion at http://caselaw.lp.findlaw.com/data2/circs/7th/063501p.pdf.