Sixth Circuit Affirms Employer's Summary Judgment on FMLA Interference and Retaliation Claims Where Employee Was on Last Chance Agreement and Never Sought Medical Treatment

Last week, the Sixth Circuit affirmed an employer’s summary judgment on FMLA interference and retaliation claims.  Paris v. McAllister Machinery Co., Inc., No. 25-1726 (6^th Cir. 5-14-26).  The employee could not prevail on the FMLA interference claim because he could not show that he suffered a serious health condition with hospitalization or consulting with a medical provider about his mental distress.   While he could show that his inquiries about taking FMLA leave for his mental distress were protected activities, and were temporally proximate to his termination less than a month later, he could not show that his termination was pretextual when he was already on a Last Chance Agreement and his violation of any policies justified his termination.   Temporal proximity could not satisfy his need to prove the employer’s explanation was pretextual. 

According to the Court’s opinion, the plaintiff employee had a long history of performance problems and was ultimately placed on a Last Chance Agreement in October 2018 to avoid being immediately terminated.  He was then told by his union steward in early December  that he was about to be fired.  His supervisor a few weeks later confronted him about not wearing steel-toes shoes during his shift. He denied the allegation, which prompted the supervisor to try and stomp on his foot to prove his point.  Upset, he called HR and said he needed time off for anxiety, anguish and mental distress.  They discussed him applying for FMLA and he asked for the forms so that he could do so.  However, despite the passage of a month between this event and his termination, he never sought medical care or treatment for his distress and he never submitted a formal request for FMLA leave after receiving the forms upon request.   He was then fired in mid-January 2019 for a variety of infractions over the last few months, including not wearing required protective clothing, overcharging customers,  and general inability to follow proper procedures.

The Court agreed that he could not prevail on an FMLA interference claim because he had never sought medical treatment of any kind for his mental anguish.   Without such treatment or medical consultation, he could not prove that he had a serious health condition and was entitled to take FMLA leave.  No jury could rule in his favor on such a claim, entitling the employer to summary judgment as a matter of law.

The Court also agreed that he could not prevail on his FMLA retaliation claim, but for different reasons than the trial court.  The Court agreed that his inquiries about taking FMLA leave and requesting the FMLA forms constituted protected conduct and that his termination approximately a month later could support a causal connection between the two (i.e., temporal proximity).  However, he could not show that the employer’s explanation for his termination – poor performance and violation of company policy in violation of his Last Chance Agreement – was pretextual.  He had been told by the union before his protected conduct that he was about to be fired for violating the Last Chance Agreement. The employer specified a number of incidents and violations which took place in the few months before his termination that violated his Last Chance Agreement.  “We agree with [the employer] that a single violation of [its] policies following [the plaintiff’s] entry into the LCA would have constituted a valid, nondiscriminatory reason for his termination.”

[He] then failed to carry the burden of showing that any of [the employer’s] reasons were “in reality a pretext to mask discrimination.”  . . . . He failed to do so because he provided no evidence that [its] termination was pretextual.  . . .  And temporal proximity alone cannot support a showing of pretext.  . . .  There is no genuine issue of material fact as to whether [its] termination of [his] employment was pretextual, and [it] was entitled to judgment as a matter of law on [his] FMLA retaliation claim.

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.

Sixth Circuit Denies Paid Leave as Reasonable Accommodation and Rejects FMLA Claim Based on Normal Application of Policy

Yesterday, the Sixth Circuit affirmed an employer’s summary judgment on ADA and FMLA claims brought by a Cincinnati teacher who sought three weeks of paid leave to be trained with a guide dog.   Tumbleson v. Lakota Local School District, No. 25-3548 (6^th Cir. 5-13-26).   The Court held that the ADA did not require the employer to provide her with paid leave and she could not show that she had been treated less favorably than others.  Unpaid leave remains a reasonable accommodation under the ADA which the employer can select without having to prove undue hardship.  It also found that she failed to show that her employer violated the FMLA by providing her with only unpaid leave under its existing policies.  Nonetheless, it reserved the right of future litigants to show otherwise with better arguments.

According to the Court’s opinion, the plaintiff’s medical condition was causing her to progressively lose her sight and hearing.  She had been provided with a number of classroom accommodations and a five-day leave to be assessed for a guide dog.   She continued to excel in her teaching duties.   She later sought three weeks paid leave to be trained with a guide dog, but the employer would only provide her with unpaid leave under the ADA since her request did not involve a “personal illness” under its sick leave or FMLA policies and she was not incapacitated or unable to perform her job duties. After taking the leave and obtaining her guide dog, her physician wrote a letter saying the dog was necessary for medical reasons, but the employer refused to change its decision.  This lawsuit ensued.

The Court rejected her disparate treatment claim under the ADA.    While the Court found that denial of paid leave could constitute an actionable adverse employment action under the ADA, she failed to show that she was treated less favorably than similarly situated co-workers outside her protected class.   This analysis matters both at the prima facie and pretext stages.    In this case, the employer denied the paid sick leave request because she did not fit within the “ due to personal illness” definition in the policy, Ohio law or the collective bargaining agreement.  “Yet she does not offer a single example of a nondisabled employee who received sick leave even when the employee’s proposed absence did not qualify for that leave.”  It was not enough to show that the HR Director routinely granted brief leaves of less than 10 days because she herself had also benefitted from this policy in her initial absence.   Thus, the policy had been neutrally applied and not discriminatorily.  She had also failed to request comparator information during discovery.

The Court also rejected her failure to accommodate claim because she was provided with three weeks of unpaid leave. 

The parties dispute only the “reasonable accommodation” part of this framework. The employee must identify an accommodation and prove its reasonableness.  . . .  How do we decide whether an accommodation is “reasonable”? The ADA’s text makes clear that an accommodation must be work related, meaning that it will allow an employee to “perform the essential functions of the” relevant job. 42 U.S.C. § 12111(8). To qualify as “reasonable,” then, an accommodation must alleviate “a key obstacle” that has prevented the employee from being able to perform an essential job function.  . . .  So courts will find a proposed accommodation unreasonable if an employee can perform the essential job functions and if the employee requests an accommodation for non-work-related reasons.  . . . We thus held that an employer did not have to change an employee’s schedule to allow her to avoid heavy traffic because this burden “exist[ed] outside the work environment.”

Further, even if an employee needs some accommodation, the employer “need not provide the” specific accommodation that the employee wants.  . . .  Rather, the employer has “discretion” to choose from among alternative reasonable accommodations if they all will permit the employee to perform the job.  . . .  The employer thus may pick an accommodation that is “less expensive” or “easier” to implement when given the choice between two reasonable accommodations.  . . .  We have held, for example, that a police department could provide an officer a “desk job” even though the officer preferred an “on the street” job with various restrictions.  . . . . And we have held that a clothing store could provide a warehouse employee with “leave time” even though the employee preferred a transfer to another warehouse role. . . .

This law forecloses [the plaintiff’s] failure-to-accommodate claim. At the outset, it is not obvious that [her] proposed accommodation—that [the school] provide her with paid leave to attend the Leader Dogs training—qualified as a reasonable one. At the time that [she] requested leave, she continued to be an excellent teacher who did a “wonderful job” in the classroom.  . . . . And we see little record evidence to suggest that the lack of a guide dog stood as an “obstacle” that stopped her from completing any “necessary function” of her teaching role.  . . .  Yet we need not decide this issue because [the employer] ultimately gave her an accommodation that allowed her to complete the guide-dog training: unpaid leave.

If [the school’s] unpaid-leave accommodation were reasonable, then, that fact would preclude [her] failure-to-accommodate claim because the ADA did not give her the right to her preferred accommodation.   . . .  Even if we assume that [she] needed a guide dog to work as a teacher, [its] accommodation met our reasonableness test.  . . .  There is no dispute that unpaid leave allowed [her] to attend the Leader Dogs training and bring home Henry. [She] also “offers no evidence linking” paid leave “to the performance of her job.”  . . .  Her doctor’s letter, for example, says nothing about whether that leave should be paid or unpaid. So [the employer] (not[the plaintiff]) had the “ultimate discretion” to choose between the paid-versus-unpaid alternatives because both allowed [her] to perform her job.  . . .  [bolding added for emphasis]

[Plaintiff] responds that unpaid leave was only “partially responsive” to her request because this accommodation required her to go three weeks without pay and caused some financial difficulties for her family.  . . . . But these financial difficulties arose “outside the work environment” and so do not go into the reasonableness calculus.  . . . [Her] financial difficulties are thus “beyond” [the employer’s] “duties to accommodate under the ADA.”  . . .  Indeed, her argument has no stopping point. The ADA says that giving an employee a “part-time” schedule can qualify as a reasonable accommodation. See 42 U.S.C. § 12111(9)(B). Under [the plaintiff’s] view, if this employee did not have the financial means to work only part time, the ADA would require the employer to provide full-time pay for the part-time work. The rule requiring an accommodation to be for work-related reasons avoids this result.  . . . . [bolding added for emphasis]

The Court rejected the plaintiff’s argument that the employer was required to show that paid leave would be an undue hardship.  “That fact is true but irrelevant.”

True, an employer need not provide a reasonable accommodation if it “would impose an undue hardship on the” employer’s operations. 42 U.S.C. § 12112(5)(A). In other words, even if paid leave were the only reasonable accommodation, Lakota would not have to provide that leave if it would cause this hardship . . .  But we need not reach this hardship question because we resolve the appeal on a distinct element. The record proves that two different accommodations—paid leave and unpaid leave—were both reasonable. In that scenario, Lakota had the “ultimate discretion” to choose the “less expensive” option even if the more expensive one would not have posed an excessive hardship.  . . .  In sum, because unpaid leave allowed [the plaintiff] to obtain her guide dog, [the employer] met its obligation to provide a reasonable accommodation. The ADA required nothing more. [bolding added for emphasis]

The Court also rejected her FMLA claim.  “Although the FMLA requires employers to grant leave, it does not require them to pay the employee while off work. Rather, the FMLA presumptively allows employers to treat the required leave as unpaid.”

That said, the law gives employees the right “to substitute any of [their] accrued paid vacation leave, personal leave, or medical or sick leave” for FMLA leave.  . . .  But it then makes clear that “nothing in [the FMLA’s general rules] shall require an employer to provide paid sick leave or paid medical leave in any situation in which such employer would not normally provide any such paid leave.” Id. To obtain paid leave, then, the employee must satisfy “the additional requirements in an employer’s paid leave policy[.]”

The Court observed that there were questions about whether the plaintiff even qualified for FMLA leave because, despite the serious health condition, she could still teach and it was her desire to attend training in Michigan that she sought leave.   The plaintiff did not address these issues, so the Court chose not to address them.    Instead, it rejected her argument that she was entitled to paid leave under the school’s policy when it did not normally provide such leave in similar circumstances.

To obtain paid leave under the FMLA, [the plaintiff] needed to show that [the employer] “normally provide[d]” this leave for those in her “situation[.]” Id. § 2612(d)(2)(B). But [the HR Director] testified that the guide-dog training did not fall within “the definition of sick leave” in the Ohio Revised Code, the collective bargaining agreement, or the school board’s sick-leave policy.  . . . . The district court thus held that [she] did not qualify for paid leave under the FMLA because she did not qualify for it under [the employer’s] sick-leave policy.

The Court rejected the argument that because the policy and statute did not define “due to personal illness” that this meant that it must be interpreted to incorporate guide dog training.  The Court instead agreed with the District Court that “due to personal illness” should be given its ordinary meaning.   While the symptoms of her serious medical condition could constitute a personal illness,  obtaining training when she was not incapacitated arguably could not.  Because, again, the plaintiff failed to argue this issue [that she required the training because of her serious health condition], thus giving the employer the opportunity to respond, the Court refused to raise the issue on its own initiative.   Nonetheless, it pointed out that this was an issue which could be argued in the future by other litigants. 

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.

Franklin County Appeals Court Affirms Employer’s Summary Judgment on Sex, Race, Harassment and FMLA Retaliation Claims

Last month, the Franklin County Appeals Court affirmed an employer’s summary judgment on FMLA retaliation and sex and race discrimination allegations following the plaintiff’s demotion. Fields-Arnold v. Cent. State Univ. Bd. of Trustees, 2026-Ohio-826. The Court found that the plaintiff waived certain arguments about direct evidence, race discrimination and hostile work environment by failing to provide any substantive argument before the trial or appeals courts.  The plaintiff also failed to show replacement outside the protected class or to show that the employer’s explanation for her demotion was pretextual, dooming her sex discrimination and FMLA retaliation claims.  While she was not given a specific reason at the time of her demotion, she admitted that her job performance had previously been criticized and she failed to dispute the reasons given in the employer’s summary judgment motion.

According to the Court’s opinion, the plaintiff was encouraged by the university president to apply for a certain promotion, which she eventually received.  However, in their first post-promotion meeting, their relationship soured when she requested a higher salary than offered.  Although she prevailed in receiving a $5K increase, the president allegedly said that she talked too much and reminded him of his wife.   He later criticized her performance in a few meetings and she was demoted back to her prior position a few months later.  In the meantime, she had applied for and, after submitting additional documentation, FMLA leave. She was replaced by a white female and resigned the following year after filing this lawsuit.   The court of claims granted summary judgment on all claims to the employer.

The Court found that she had abandoned her race discrimination claim by failing to make any substantive arguments in her appellate brief when challenging the trial court’s rejection of this claim for failing to show pretext.  Indeed, she apparently only used the word “race” three times in her entire brief.

Similarly, it rejected any claims of direct evidence of sex discrimination because she never raised this argument in opposing the summary judgment brief at the trial court level.  Moreover, the three alleged comments were not directly related to the issue of her demotion, and thus, were not direct evidence since it still required an inference as to the speaker’s intent. 

[His] comments, while disrespectful and perhaps based on stereotypes, do not satisfy the requirements to constitute direct evidence of discrimination. “ ‘Direct evidence is proof which speaks directly to the issue, requiring no support by other evidence.’ ”  . . .  It “ ‘does not require a factfinder to draw any inferences in order to conclude that the challenged employment action was motivated at least in part by prejudice against members of the protected group.’ ”

In addition, she failed to identify anyone outside her protected age or sex class who was similarly situated, failed to meet the employer’s performance expectations and was treated better than her. 

The Court also rejected her appeal dismissing her hostile work environment when the trial court found that three alleged comments over a four month period were insufficiently pervasive or hostile.   As with her direct evidence argument, she failed to even mention “hostile work environment” when opposing the employer’s summary judgment motion at the trial court. 

As for her FMLA retaliation claim, the trial court had found that it failed because she received all of the FMLA leave she requested and her demotion did not deter her from seeking additional FMLA leave.  The Court’s majority reversed that determination, but found she still could not prevail because she failed to present evidence showing that the university’s dissatisfaction with her performance was pretext for retaliation. She admitted that the university president had criticized her performance to her face several times and did not try to show that those and other criticisms lacked a factual basis or were insufficient to motivate her demotion, etc.   Therefore, the fact that she was not told at the time of her demotion the specific performance reasons for it, she had previously been informed about dissatisfaction with her performance and failed to show those and other criticisms were pretextual.

Even if an employer approves an employee’s FMLA requests, the employer could still go on to impose an adverse employment action against the employee for exercising her rights under the FMLA. . . .  And that is exactly what [plaintiff] alleged in her complaint—that she was demoted because she took FMLA leave. We find the court of claims erred in concluding [she] “failed to identify an adverse employment action that was taken against her because she used FMLA leave.”

. . . .

Although [Plaintiff] did not receive specific examples of her unsatisfactory performance at or around the time of the demotion  . . . , she was aware of Dr. Thomas’s dissatisfaction before the demotion occurred. In her deposition, [she]recounted two meetings where [he] criticized her performance. . . .

While [her] deposition testimony reflects her general belief that she satisfied the job duties as listed in the job description  . . . , she did not contest the specific assertions [he] made about her purportedly unsatisfactory work. 

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.

Interesting FLSA and FMLA Issues Arise in 2026 as well as Remote Workers Working Hours

Earlier this month, the Department of Labor issued a few interesting opinion letters which will be of interest to both employers and employees.  One involved the FMLA and the others the FLSA.  In FMLA2026-2, the DOL instructed that FMLA time off includes time travelling to and from the medical provider office, which should not have been necessary to explain.  In FLSA2026- 2, the DOL confirmed that the regular rate must include the generous safety/punctuality bonus when calculating overtime pay.  In FLSA2026-4 (1/5/26), the DOL explained that the federal exemption for commissioned workers in section 7(i) only requires that the pay be more than the federal minimum wage, but that the employer could still be in violation of similar exemptions under state  law if the pay was not sufficiently higher than the higher state minimum wage and that tips only count towards the pay if the employer utilizes the tip credit.  Finally, in September, the federal district court in Columbus issued an opinion on when a work-from-home employee’s working hours begin and end each day. 

In Opinion FMLA2026-2  (1-5-26), the inquiry asked about how much time off the FMLA would require when the medical provider indicated that the employee needed time off for 45-minute medical appointments, but the employee claimed that s/he needed 1 hour travel each way from home to the office of the medical provider.  “For the reasons set forth below, an employee may use FMLA-protected leave that counts against his or her FMLA entitlement to travel to or from a medical appointment for a serious health condition.” Additionally, a health care provider need not provide an estimate of an employee’s travel time to or from an appointment for the medical certification to be complete and sufficient under the Act. “

In Opinion FLSA2026- 2 (1-5-26), the inquiry involved whether the regular rate (used to calculate overtime pay) must include the safety/punctuality bonus (up to $9.50/hour) on top of the $12/hour wage contractual rate when calculating overtime anytime it is earned.    The answer was yes.  “[T]he rule for determining the regular rate of pay is to divide the wages actually paid by the hours actually worked in any workweek[.]”

In FLSA2026-4 (1/5/26), the inquiry involved the commissioned employee’s exemption under section 7(i) when state minimum wage exceeds federal minimum wage.   The DOL explained “an employee of a qualifying retail or service establishment paid more than one and one-half times the federal minimum wage satisfies the minimum pay standard in section 7(i)(1). “  Therefore, “the exemption currently requires that the employee’s regular rate exceed $10.875 per hour ($7.25 × 1.5)—or, for practical purposes, that the employee’s regular rate be at least $10.88 per hour—for any workweek in which the employer claims the exemption.”  That being said, this does not answer whether using the federal minimum wage could violate the state law which requires employers to pay a higher minimum wage.

Moreover, although tips are not commissions under section 7(i), in some circumstances, a portion of an employee’s tips would be compensation for purposes of determining whether an employee is primarily paid by commission under section 7(i)(2).  This would depend on whether employer utilizes the tip credit or not. 

In Lott v. Recker Consulting, LLC, 798 F. Supp. 3d 778 (S.D. Oh 2025), the Court addressed  when the workday begins for remote workers.  Plaintiffs claimed that they were not paid for time spent logging and clocking in before work and end of lunch and logging out each day – entitling them to unpaid overtime, etc.  The Court decided that

the workday starts at the moment a remote worker opens and begins operating a program or application they use as part of the principal work activities they are employed to perform. By the same token, the workday ends at the moment the employee closes out of the last such program or application. In the Court's view, this better reflects the relationship between the employee and the computer in terms of job performance.

The Court rejected the argument that the workday began as soon as the employee turned on his or her computer. 

In short, the question is not when an employee has powered on or logged into their computer. Rather, the question is when they have configured that computer to perform the tasks they are employed to perform—or stated differently, when they have loaded the first application that they use to perform their job.

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.

Sixth Circuit Finds Adult Sibling Could be "Child" Under In Loco Parentis FMLA Theory and False Unemployment Compensation Answers Could Be Retaliatory

Last month, the Sixth Circuit Court of Appeals reversed an employer’s summary judgment and remanded the case for the trial court to determine whether the plaintiff employee could qualify as in loco parentis for her adult sister and, thus, be eligible for FMLA leave. Chapman v.  Brentlinger Enterprises, No. 23-2582 (6^th Cir. 12/13/24).   It also remanded on the grounds to determine whether the employer retaliated against her for seeking FMLA leave and for being associated with an individual with a disability based on it, among other things, providing false information to dispute her unemployment compensation claim and telling her to choose between her job and her sister.   It affirmed that the employer did not retaliate for threatening to seek Rule 11 sanctions for pursuing a frivolous FMLA claim and for imposing $85/day fines for failing to send the mandatory COBRA notice.

According to the Court’s opinion, the plaintiff employee’s sister, who lived in Louisville, was dying from cancer and the plaintiff (who worked in Columbus) was helping her other sister (who apparently lived in another state) to care for her.  Her request for FMLA leave was denied because she was not the parent.  However, she was given paid and unpaid leave and her work schedule was reduced to permit her more time off.  That being said, she alleged that the HR Representative indicated that she should choose between her sister and her job.  When her healthy sister’s flight was delayed, she claimed to have attempted to contact her employer on Sunday night to let them know that she would be late on Monday.  However, the text was not received until mid-Monday morning, after the employer attempted to call her when she was late reporting to work, and she was terminated.  Her sister died two days later.  The employer apparently informed the unemployment office that she abandoned her job, disenrolled her from the medical plan the next month, but then failed to send her a COBRA notice.  When her lawyer threatened to file suit under the ADA, the employer’s lawyer threatened to see sanctions under Rule 11.

The trial court agreed that the FMLA does not allow for time off to care for a sibling and could not be “in loco parentis” unless that parental relationship or the serious illness began while the sibling was a minor. Otherwise, the list of enumerated relationships covered by the FMLA would be meaningless.  The court explained that “if merely caring for someone with a serious ailment could create an ‘in loco parentis’ relationship, then anyone who took time off to care for a seriously ill nephew, cousin, or friend would have an ‘in loco parentis’ relationship with that person.”

 However, the appellate court found that it was an issue of fact. In examining the FMLA, it concluded the statute and regulations to be ambiguous about when the parental relationship must have begun.  It found no requirement that it must begin before the onset of the serious illness.  It then looked at common law decisions (concerning mostly cases about survivorship benefits) and found that a cousin, sibling or aunt could qualify as a parent depending on the circumstances even though the relationship did not begin until adulthood. 

While the FMLA tells us what protections are available for in loco parentis parents and their children, this case hinges on whether [the plaintiff] was an in loco parentis parent at all. The FMLA neither defines “in loco parentis” nor specifies how or when these relationships form. We know that the FMLA contemplates in loco parentis relationships that involve children who are eighteen or older. After all, the FMLA states that an employee, including an in loco parentis parent, can take time off to care for a sick child over the age of eighteen if that child has a disability that renders them incapable to care for themselves. Id. § 2611(12)(B). But in that situation, the text does not say whether the in loco parentis relationship or the child’s disability must have started during the child’s minority. The text also does not specify whether the in loco parentis relationship must predate the child’s incapacity. Resolving this case requires us to answer those questions.

 . . .

we drew an analogy to legal adoption, which is not limited to minors. Id. The definition of an in loco parentis relationship from the Cyclopedia of Law and Procedure centered on adoption: “A person standing in loco parentis to a child is one who has put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation, without going through the formalities necessary to a legal adoption.” . . . .

 . . . [The employer] argues that Niewiadomski—which also surveyed the common law—weighs in its favor because there, we observed that an in loco parentis relationship “is essentially different from the relationship of brother and sister,” which does “not include the legal obligations existing between parent and child.”  . . .  But that observation just restates an obvious point: when a person acts in loco parentis to another, they take on duties of care and support that surpass what is typically shown toward a sibling. The observation does not rule out the possibility that a sibling could take on those duties. And Niewiadomski explicitly declined to rule on the question of whether a deceased cousin’s adulthood foreclosed the possibility that an in loco parentis relationship formed when his slightly older cousin took him in.

 . . . .

Therefore, reading the FMLA against the backdrop of the common law, we conclude that in loco parentis relationships can form between adults, including adults who also happen to be siblings. Contrary to the district court’s reading, the “child” in the in loco parentis relationship need not be a minor at the time the relationship forms, have developed a debilitating condition as a minor, or have developed that condition before the relationship formed. Indeed, under the common law, a debilitating condition was not a requirement at all.

It also concluded that she had alleged sufficient facts to warrant reconsideration, although it was still unclear whether she would qualify under the common law standard as a parent instead of as a sibling who shared care-giving duties with another sibling. “The district court’s concern assumes that ‘merely caring for someone with a serious ailment’ creates an in loco parentis relationship. As we describe later, that’s not so; it requires a more robust relationship.”    The court’s decision indicates that:

Between June 20 and 25, [the plaintiff] used her allotted paid time off to travel to Kentucky to take care of [her dying sister]. [She] alleges that she supported her sister financially by paying some portion of her bills and buying groceries and other essential household items. She also cooked her sister’s meals and hand fed her, helped her use the bathroom, cleaned her up when she was incontinent, brushed her hair and teeth, and took care of her apartment by cleaning, taking out the trash, and doing laundry. She managed some of her sister’s medical needs by administering over-the-counter medications, using massage tools and hot-and-cold packs, and shifting her around in bed to prevent bed sores. She also provided emotional support. [Her] other sister  . . . . provided similar care to [the dying sister] during the same period. On some days, [the plaintiff] or [her other sister] took care of [the dying sister] alone, and on others, the sisters divided the responsibilities. [The other sister] was [the dying sister’s] medical power of attorney. When [the plaintiff] ran out of paid days off, [the employer] allowed her to take unpaid leave at its discretion, but it was unclear for how long.

A number of factors remain to be explored.

The touchstone of this inquiry is intention. As Lord Cottenham observed in synthesizing Lord Eldon and Sir Grant’s definitions, “the principal value” in the definition of in loco parentis is “the intention, rather than . . . the act of the party.”  . . .  Accordingly, we ask not just whether a person has taken on the role of a parent by “assuming obligations” of a parental nature, but also whether they have done so “with the intention” of serving as a parent.  . . .  It’s not enough that a person has provided for another as a parent might, though that “raises a strong inference that the person had assumed the character of a parent.” Id. The person “must have intended to assume” that role.  . . . . Other circuits examining the common law agree, emphasizing that “the loco parentis relationship is such that it must reside in the minds and hearts of the parties involved.”

But how do we know adult parties intended to assume a parental relationship? In some cases, we have relied on direct evidence that the parties thought of themselves as parent and child, including their internal communications and statements to others that they perceived themselves as being akin to a “mother” or “son.” Mainly, however, courts have relied on indirect evidence to discern the parties’ intent. Courts look for “objective manifestations” of a parent-child relationship, including “the kind of service done and the kind of thing given.” Banks, 267 F.2d at 538–39.

                   . . .

Juxtaposing two of our precedents provides helpful guidance. In both Niewiadomski and Thomas, an adult relative—who either had no immediate family or was estranged from immediate family—came to live with an older relative (though the cousin in Niewiadomski was only a few months older, while the aunt in Thomas was about two decades older).  . . . The cases have many similarities. We noted in both that the alleged in loco parentis parent took her cousin or nephew into her home and provided lodging, a seat at the table for meals, medical care, and clothing.  . . . The alleged in loco parentis children also accompanied the families on vacations, exchanged gifts on the holidays, and contributed to household chores.  . . .  And in both cases, the younger relatives later served in the military and designated their aunt or cousin as the beneficiary of their statutorily provided military life insurance, identifying the relationship as parental . . .  Both servicemen died while serving in the military, and the cousin in Niewiadomski and aunt in Thomas sought to collect as the in loco parentis parent.  . . .

Yet in Niewiadomski we held there was no in loco parentis relationship, while in Thomas, we held there was.  . . . This distinction rested on several key factors. Perhaps most significant, we focused on the direct evidence of how the relatives thought of one another. Recall that the “intention” to take on a parental role is critical, so in Niewiadomski, the older cousin’s own testimony that they referred to one another as “brother” and “sister” and that “she considered the insured as a brother, and not as a child” was the “most conclusive factor” in the case.  . . . . Contrast that with Thomas. While in the army, the nephew sent his aunt “intimate letters of affection,” including a “so-called ‘Mother-gram’” on Mother’s Day, concluding with: “You are a wonderful Mother.”

The Court also remanded to reconsider the retaliation claim.  The plaintiff alleged that co-workers with poor attendance were not terminated under similar circumstances and, if that she was not fired for being absent but in retaliation for having requested FMLA leave (even if she ultimately were not eligible for FMLA leave).   Also, the employer provided false information to oppose her unemployment compensation claim by claiming that she abandoned her job when it was admitted that she was fired and that she had not quit or abandoned her job.

A jury could find that making false statements to an unemployment authority is a “plainly adverse repercussion on [the plaintiff] and her family” because it can result in “the loss of income associated with unemployment benefits.”  . . .  The false statements, or threat thereof, may require a plaintiff to choose whether to “seek vindication” of her rights or “risk a former employer’s intentional efforts to . . . stymie her receipt of income.” Id. And they could reasonably dissuade her from choosing the former.

Interestingly, it did not find the threat of Rule 11 sanctions to be retaliatory because lawyers are supposed to send such a letter before filing a Rule 11 motion.

The Court also remanded the plaintiff’s ADA claim.  Although she was not entitled to leave under the ADA to care for her sister, it would violate the ADA to fire her because of her association with her dying sister.   She alleged that the HR Representative had told her that she should choose between her sister and her job and she was fired when she was late returning to work from caring for her sister.  She alleged that the employer made a discriminatory assumption that her sister was distracting her from her job duties. “The ADA thus prevents an employer from terminating an employee based on “unfounded fears that [the employee] would be distracted at work on account of” a loved one’s disability."

Finally, the Court affirmed the $85/day fine for failing to provide the plaintiff with the mandatory COBRA notice.  It maximum fine is $110/day. “ The district court reasoned that Chapman had not produced evidence that MAG violated COBRA in bad faith, but that she had shown she was “significantly prejudiced by the lack of notice.”  . . .  Because she did not receive notice of her coverage options under COBRA, Chapman did not acquire health insurance until May 2020. Without coverage, she delayed treatment for a condition she later discovered was malignant skin cancer.”

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.

Be Careful What You Ask For: Employees With Disabilities Lost Two Cases Last Week.

 In the vein of “be careful what you ask for,” two different courts last week ruled against employees with medical issues.  In the first case, an employee with a serious disability and who required a medical leave of absence admittedly asked to be laid off so that he could received enhanced unemployment compensation during COVID because the employer did not have a paid leave program.  Bair v. Crystal Glass, No. 24-1390 (6^th Cir. 12/3/24).    Although he had been told that he could not return to work without a medical release from his physician, he never provided one and, instead, sued under the ADA.  The court summarily ruled against him because he received the accommodation that he requested. 

In the second case, the employee’s FMLA approval and accommodation agreement for his sleep apnea and narcolepsy had expired years earlier and he had failed to update them with a medical statement from a practicing physician because his former physician had retired. Price v. Cellco Partnership, 2024-Ohio-5697.  When he requested July 2022 additional breaks to deal with stress and sleep deprivation, his request was denied because he could not support it with a physician’s statement.  He did not request any other accommodations or leave before resigning without notice in May 2023. “He also admitted that he did not take any other actions to avoid quitting on May 11, 2023.”  Indeed, he still had not found another physician as of the time of the unemployment hearing.   As a result, his claim for unemployment benefits was denied on the grounds that he quit his employment without a good reason.

The court rejected his argument that it would have been futile to ask for another reasonable accommodation:

[He] also asserts that asking whether alternative/comparable positions were available would have been futile because finding a position that could be performed while operating under only 30 minutes of nightly sleep would have been difficult or even impossible.  . . .  Nevertheless, the onus was on [him] to make the request. The record is clear—indeed, [he] concedes—that he did not. Thus, the Commission’s finding that [he] voluntarily quit his job without just cause is supported by competent, credible evidence, and he is not entitled to unemployment compensation benefits. . . .

In sum, as the trial court and the Commission found, an ordinarily intelligent person would have inquired whether comparable jobs that could accommodate his medical conditions were available (and then not being offered any such opportunities, if any) prior to quitting his position. In addition, an ordinarily intelligent person would have pursued a potential FMLA-related leave more diligently by taking additional steps to obtain the required medical documentation for such a leave (as [he] had done in the past). Competent, credible evidence shows that [he] did not do either—indeed, [his] own testimony readily shows this. Thus, competent, credible evidence shows Price voluntarily abandoned his job without just cause. Therefore, he is not entitled to unemployment compensation benefits.

 . . .

There is no evidence in the record that [the employer] was planning on discharging [him]. Indeed, [he] himself testified that no one from [the employer] told him he was going to be terminated; nor was he ever asked to resign in lieu of being discharged . . .

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.

FMLA Retaliation Claim Survives Dismissal Even if Employee Was Not FMLA Eligible at Time of FMLA Request

On Monday, the Lake County Court of Appeals reversed an employer’s judgment on a FMLA claim brought by a former employee who had been fired the day before she was to marry her seriously ill finance after she requested once again to leave work early.   Mahoney-Offi v. Great Expressions Dental Ctrs., 2024-Ohio-5160.   The court concluded that her complaint could state a valid claim for FMLA retaliation because she was not required to be eligible for FMLA at the time of the leave request.  If she “is ultimately able to prove that her termination was not the result of her request to leave early on December 9 but in retaliation for her prior inquiry about FMLA leave, then she has stated a viable claim for retaliation under the FMLA.”

According to the court’s opinion, the plaintiff had been requesting to take time off to care for her seriously ill boyfriend.  She had requested and been denied FMLA on the grounds that they were not married.  However, it was suggested to her by management that she would be eligible for FMLA if she married him.  Shortly thereafter, they became engaged and were scheduled to be married on December 10.  On December 9, she requested to leave work early.  Initially, it was to prepare for her wedding, but later she said it was because he had become sicker and she needed to care for him.  Knowing that she planned to marry the next day, the employer then fired her on December 9.  She filed suit under the FMLA, which was initially dismissed on the grounds that she was not eligible for leave on December 9 and had already been denied leave.

The Court of Appeals reversed on the grounds that a plaintiff may pursue a FMLA retaliation claim if she was terminated for merely requesting leave (which is a protected activity) even if she was not eligible for leave at the time of the FMLA request.   However, a jury could still rule in favor of the employer if it found that she was fired for requesting to leave early on December 9, instead of the leave which the employer knew she intended to take after she was married on December 10. 

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.

What's New with Unions, Non-Competes and FMLA?

 I’m running a bit behind in my blogging, so I will cover more ground and be a bit more abbreviated than usual. The Supreme Court held that unions can be held liable for intentionally damaging employer’s property during a strike under state law because such claims are not pre-empted by the NLRA.  The NLRB’s General Counsel has officially declared war on most non-compete agreements, although employees can be prohibited from accepting an ownership or management interest in a competitor.   The DOL also explained how to calculate FMLA leave during a holiday week and when the employee’s doctor says that they cannot work more than 8 hours/day. 

The Supreme Court ruled that an employer’s intentional tort claims against a union were not preempted by the National Labor Relations Act when the union started a strike after the employer had filled its cement trucks, which caused the employer to lose all of the cement and risk losing many of the trucks if they were not immediately unloaded in a safe location before the cement hardened in them.  Glacier Northwest, Inc. v. Int’l Bhd of Teamsters, Local 174, No. 21-1449 (U.S. 6/1/23).  The state supreme court had held that the damage was incidental to the lawful strike and, therefore that the tort claim was preempted.  However, the Court’s 8-1 majority found that the NRLB had long required employees to take “reasonable precautions” to protect an employer’s property from foreseeable, aggravated and imminent danger.  Because the union had failed to take “reasonable precautions,” and actually sought the obtained result, its strike activity was not even arguably protected and could not pre-empt state tort laws.  By reporting for duty and prompting the employer create a perishable product, they created an imminent risk of harm to the trucks and destroyed the concrete by then walking off the job after it was poured.

 . . . the Union’s decision to initiate the strike during the workday and failure to give [the employer] specific notice do not themselves render its conduct unprotected. Still, they are relevant considerations in evaluating whether strikers took reasonable precautions, whether harm to property was imminent, and whether that danger was foreseeable. In this instance, the Union’s choice to call a strike after its drivers had loaded a large amount of wet concrete into [the employer’s] delivery trucks strongly suggests that it failed to take reasonable precautions to avoid foreseeable, aggravated, and imminent harm to [the employer’s] property.

                . . .

[The employer] alleges that the drivers’ conduct created an emergency in which it had to devise a way to offload concrete “in a timely manner to avoid costly damage to [its] mixer trucks.” App. 72. The Union’s actions not only resulted in the destruction of all the concrete [the employer] had prepared that day; they also posed a risk of foreseeable, aggravated, and imminent harm to [its] trucks. Because the Union took affirmative steps to endanger [the employer’s] property rather than reasonable precautions to mitigate that risk, the NLRA does not arguably protect its conduct.

A day earlier, the DOL issued a rare opinion letter FMLA2023-2-A about the FMLA.  In it, it explained that when holidays fall during a week in which the employee takes FMLA leave, whether the holiday counts towards the FMLA 12 week entitlement depends on whether the employee took off the full week (meaning the holiday counts) or whether the employee took off less than a full week (meaning the holiday would not count towards the 12 weeks).  The reason being that if the employee typically works 5 days a week and only took one day off for FMLA during a holiday week, the employer may only count 20% of the week against the 12-week entitlement and not 25% (as though it were a four-day work week). 

When a holiday falls during a week that an employee is taking a full workweek of FMLA leave, the entire week is counted as FMLA leave. 29 C.F.R. § 825.200(h). Thus, for example, an employee who works Monday through Friday and takes leave for a week that includes the Fourth of July on Thursday would use one week of leave and not 4/5 of a week. However, when a holiday falls during a week when an employee is taking less than a full workweek of FMLA leave, the holiday is not counted as FMLA leave unless the employee was scheduled and expected to work on the holiday and used FMLA leave for that day. Id. The Department has taken a consistent approach to the treatment of holidays since the first publication of its FMLA regulations in 1995. See 60 Fed. Reg. at 2200; see also Final Rule: The Family and Medical Leave Act of 1993, 73 Fed. Reg. 67934, 67972-73 (Nov. 17, 2008).

Also on May 30, the NLRB’s General Counsel issued an enforcement Memorandum indicating that she intends to litigate the enforceability  of most non-management non-compete agreements on the grounds that they prevent employees from quitting their jobs and finding new ones and on the belief that most are overly broad.  In other words, she finds most non-compete agreements issued to non-management employees to violated the National Labor Relations Act whether issued during, before or after (in a severance agreement) employment and regardless of the motivation (i.e., confidential information or training investments).  She had conceded that it would not violate the NLRA to prevent employees from engaging in an ownership, management or independent contractor relationship with a competitor following employment. 

Earlier this year, the DOL also issued an FMLA opinion letter No. FMLA2023-1-A reminding employers that employees can essentially take unlimited FMLA leave.  In the employer’s request, the employee’s physician instructed him to not work more than 8 hours/day, even though the employer frequently needs employees to work more than 8 hours/day and operates a 24-hour-day business.  The DOL indicated that the employee remains entitled to 12-weeks of FMLA leave, not just an ADA reasonable accommodation.  If the employee typically works 50 hours/week, then employee would be entitled to 600 hours of leave, not just 480 like a typical 40-hour/week employee. 

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.

Sixth Circuit Rejects EFMLEA Claim Where Employer's Final Offer of Reinstatement Was Not Shown to Be a Violation and Revocation of Flexible Class Schedule Affected More Than Just the Plaintiff.

On Friday, the Sixth Circuit Court of Appeals affirmed an employer’s summary judgment on claims by a medical assistant that it interfered with her EFMLEA leave by refusing to reinstate her to her former position or on the same terms and conditions by changing her job duties during the COVID pandemic and revoking her prior flexible work schedule.  Clement v. The Surgical Clinic, PLLC, No. 22-5801 (6^th Cir. 4-21-23).  The Court found that reassignment claim lacked merit because, after she objected to the change in job duties, she was offered a suitable transfer which she had accepted and which was willing to accommodate her job schedule.   While the revocation of her flexible schedule (to attend classes) constituted a prima facie violation of the statute, the employer was able to show that it revoked all prior authorizations of flexible schedules to attend classes – regardless of whether the employee had utilized EFMLEA or FMLA – because of the emergency situation created by the pandemic.  This was not only a legitimate and non-discriminatory reason, it applied regardless of whether the employee took EFMLEA or not.  Employees taking EFMLEA are not entitled to greater rights than employees who do not take such leave. 

According to the Court’s opinion, the plaintiff was hired for the clinic’s downtown (and busiest) clinic in 2018 where she would assist one physician and sometimes engage in patient triage.  She was allowed to shift her schedule by 30 minutes each day because of childcare responsibilities and to start two hours later when she had class (which required the employer to find replacement coverage for those hours).  When the pandemic began, the plaintiff utilized two months of leave under the Emergency Family and Medical Expansion Act.  When she sought to return to work, she was informed that she would be assigned to engage in triage on a full-time basis and that she could no longer report to work later than the rest of the staff.  When she objected, the employer found that one of its other offices was willing to give her a non-triage position and permit her to start work 30 minutes later each day.  However, around the same time, the employer notified all of its clinics that employees could no longer miss work in order to attend class because of the staffing shortage caused by the pandemic.  The plaintiff and at least one of the employee resigned because of the new policy of no longer accommodating class schedules and the plaintiff filed suit, claiming that these changes violated her rights under the EMFLEA.

The EFMLEA entitles qualified employees to reinstatement to the same position they held prior to taking leave—or, at least, to an “equivalent position.”  . . . An equivalent position is “one that is virtually identical to the employee’s former position in terms of pay, benefits and working conditions, including privileges, perquisites and status” and which “involve[s] the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.” 29 C.F.R. § 825.215(a). Among other things, employees are generally entitled to work the same or an equivalent work schedule upon their return from leave. Id. § 825.215(e)(2). That said, “[t]he requirement that an employee be restored to the same or equivalent job with the same or equivalent pay, benefits, and terms and conditions of employment does not extend to de minimis, intangible, or unmeasurable aspects of the job.” Id. § 825.215(f).

The Court refused to find any interference with the plaintiff’s EFMLEA right to reinstatement based on its initial condition of assigning her to full-time triage work and revoking her authorization to start and end work 30 minutes after the rest of the staff because it was not the employer’s final offer.

But we are aware of no authority suggesting that an employer’s offer that it later revises is binding for purposes of establishing interference. On the other hand, it is well-established that plaintiffs must prove they suffered harm from an employer’s interference with their statutory rights. . . . To assess harm, we must evaluate the employer’s action that prompted the employment outcome, and it would seem that early offers would be superseded by the final offer on which the plaintiff was required to act. Notably, we have also consistently held that “the FMLA is not a strict-liability statute.” . . . approach tends toward strict liability in that it would deprive even the most well-meaning employers the opportunity to course-correct from potential EFMLEA violations—for example, by returning to the table with their employees to work out acceptable terms of employment.

 . .. To be considered equivalent, an employee’s new role must be identical in pay, benefits, and working conditions. 29 C.F.R. § 825.215(a). There is no dispute that [her] compensation and benefits would have gone unchanged following a transfer to The Vein Centre. What’s more, [she] would have continued working as a medical assistant at The Vein Centre, which is located a short distance away from TSC. And although she argues that TSC’s first reinstatement offer entailed substantially altered job duties (in that TSC would have assigned her to triage full-time, for example), she makes no effort to establish how or why TSC’s final offer suffered from the same shortcomings. Nor has she developed any argument on appeal that working at The Vein Centre, in and of itself, would deprive her of an equivalent position. Thus, even viewing the facts in the light most favorable to Clement, nothing suggests that the position at The Vein Centre would have involved anything less than “the same or substantially similar duties and responsibilities” as Clement’s previous role. And TSC agreed to accommodate her preferred 8:00 a.m. start time at The Vein Centre—a fact which Clement concedes. Thus, no reasonable factfinder could determine that her pre- and post-leave positions were inequivalent in this regard.

However, the revocation of her two-hour schedule delays when she previously would have attended class presented a different issue and outcome. 

The district court held that this series of events raised a question of fact as to whether TSC restored Clement to the same or an equivalent position at the company. We agree. 29 C.F.R. § 825.215(e)(2) provides that employees are generally entitled to “the same or an equivalent work schedule” following leave. There is no dispute that TSC did not allow Clement to work the same schedule she had before her EFMLEA leave. And TSC’s proposed altered schedule, excluding time away during the workday to attend classes, made it impossible for her to balance her school and work obligations—ultimately leading to her resignation from TSC. We thus cannot say that this schedule change was de minimis as a matter of law. See id. § 825.215(f).

Nonetheless, “interference with an employee’s FMLA rights does not constitute a violation if the employer has a legitimate reason unrelated to the exercise of FMLA rights for engaging in the challenged conduct.”

The FMLA relatedly provides that it “shall [not] be construed to entitle any restored employee to . . . any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave.”  . . .  Thus, employees who request FMLA or EFMLEA leave “have no greater protection against [their] employment being terminated for reasons not related to [their EFMLEA] request than [they] did before submitting that request.” . . . This means a plaintiff has no actionable interference claim if her employer can show that it would have made the same decision at issue even had the employee not exercised her EFMLEA rights.

The employer had no difficulty proving that it would have the same scheduling decision even if the plaintiff had not taken EFMLA leave:

 . . . employees testified that accommodating [her] school schedule “put a hardship on [it]” even before the pandemic. Then, after the COVID-19 outbreak in March 2020, [its] staff had to balance increased demand at their clinics with staffing shortages. Under these circumstances, [it] concluded it could no longer permit staff to leave the office during working hours for school. It therefore enacted a company-wide policy prohibiting flexible school and work schedules. This pandemic-related change was not specific to [her] and would have occurred regardless of her EFMLEA leave. Therefore, [it] proffered a legitimate justification for its decision.

The plaintiff attempted to prove that the policy change was related only to her reinstatement.  However, when the employer initially revoked her authorization to attend class during work hours, it did so in connection with the pandemic scheduling challenges – the same justification for the company-wide policy.  This was not inconsistent with the employer’s explanation for the policy.  While the pandemic cannot be a magic bullet justification for every employment decision, in this case, even the plaintiff acknowledged the challenges facing the medical profession.    It was also undisputed that the employer’s decisions affected (and motivated the resignations) of individuals besides the plaintiff.

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.

Sixth Circuit Rejects ADA Claim Based on Self-Diagnosis and Belated Request to Transfer to Avoid Supervisor Even Though Employee Later Discovered Brain Tumor

A unanimous Sixth Circuit yesterday affirmed an employer’s summary judgment on claims brought by an employee terminated for repeated poor attendance which she later blamed on persistent depression and a brain tumor that were not discovered or diagnosed until after her termination.   Hrdlicka v. General Motors LLC, No. 22-1328 (6^th Cir. 2/7/23), reissued (6th Cir. 3-23-23).  The Court found that her time off requests were not specific enough to prevail on disability discrimination, failure to accommodate or denial of FMLA claims and the employer was justified in acting based on the information that it had at the time and was apparently not required to inquire further.   Merely mentioning possible depression is insufficient to put an employer on notice of the ADA because depression is not always a disability and the employer reasonably attributed the issues to a personality conflict.  The Court also found that the employer was not required to engage in the interactive process when her unreasonable request to transfer was plausibly based on her dislike of her job, co-worker and supervisor rather than self-diagnosed depression.   It also found her request to transfer was too little too late when it came after her Final Written Warning, after she had been late two more times and two days before she was ultimately fired.

According to the Court’s opinion, the plaintiff had worked for GM for over 30 years when she was terminated for excessive absenteeism.  She had previously taken a few medical and other leaves of absence, showing that she knew how to request such leaves.   She was transferred to a new department in May 2018, but did not like a co-worker, her new supervisor or the work environment.   She requested by August to be returned to her former department, but her position had been eliminated, she was not qualified for any other positions and someone would have to backfill her current position.   Within a year, she began frequently missing, and being hours late for, work.  She gave a variety of reasons for her attendance, when she explained it at all, including child care issues, traffic, not feeling well, headache, bad cough, family situations, being tired, etc.  The only time she mentioned going to see a doctor was a fabrication.  Her attendance was criticized in her June 2019 performance evaluation and, finally, she was given a final written warning on August 14, 2019 after she had missed the summer intern presentations over which she had primary responsibility.  She was encouraged to utilize a medical leave of absence or seek a reasonable accommodation if necessary and provided with information to contact the EAP.  She was late the next two days and then on August 19 requested against to transfer back to her former department.  To support this request, she mentioned that she was unhappy with her work environment and supervisor and it was disputed whether she also mentioned that she had been suffering from [self-diagnosed] depression.  She was late again the next day and her employment was terminated.    

She immediately appealed her termination and claimed that she had informed HR before her termination that she suffered from depression caused by her supervisor.   In October, she was diagnosed with persistent depressive disorder.  A brain tumor was discovered in November and removed.  The employer was so informed.   Her appeal – which was limited to facts which existed at the time the August termination decision was made – was denied because there was no evidence submitted prior to her termination to substantiate her depression.  She then filed suit, alleging violations of the ADA, FMLA, state law, ERISA,  and Title VII.  The employer was granted summary judgment on all claims and the Court of Appeals affirmed. 

The Court agreed that she could not prevail on a disability discrimination or failure to accommodate claim based on an impairment which was not even diagnosed until after her termination, particularly when she never sought medical help until after she had been fired.  The Court was not influenced by her self-diagnoses:

Although an employee is not required to use the word “disabled” to put his or her employer on notice, the employer still must “know enough information about the employee’s condition to conclude that he is disabled. Relevant information could include, among other things, a diagnosis, a treatment plan, apparent severe symptoms, and physician-imposed work restrictions.”  . . . “The employer is not required to speculate as to the extent of the employee’s disability or the employee’s need or desire for an accommodation.”

[Plaintiff’s] text messages required [her supervisor] to speculate as to the existence of a disability. Many of the text messages reference only generalized ailments, such as [her] “head . . . really hurting,” having a “fever and other symptoms,” or simply being “sick.” Such symptoms are consistent with many short-term, nondisabling ailments, including a common cold. Other text messages make even more general references to “having a tough time” or dealing with “a mental thing.” Although these messages might have given [the supervisor] a general awareness of a health issue, that is not enough. . . . .. At bottom, these text messages were not sufficient to apprise [the supervisor] of a disability, especially when [the plaintiff] herself was unaware of any disability.

The closer question is whether [the plaintiff] put General Motors on notice of a disability when she met with [HR] shortly before she was terminated. In that meeting, [she] told them that she had felt depressed since transitioning to the Design Academy. In explaining her tardiness, however, [she] stated that “it was all related to [her] current work environment created by [her supervisor,] . . . includ[ing] a lack of leadership, direction, a lack of trust within the group, favoritism,” etc. . . .

In sum, [the plaintiff] made only a single, unsubstantiated statement that she was depressed without any corroborating medical evidence and without ever having sought medical help, and she consistently presented the issue as a workplace conflict, not a disability. Although a diagnosis is not necessary for an ADA claim to succeed,  . . .  [she] failed to present any of the “[r]elevant information” that this court has found pertinent to determining if an employer was placed on notice of a disability. . . .

The mention of depression alone is insufficient to constitute a “severe symptom” for two reasons. First, depression does not always render an employee “disabled.” . . . Second, [she] consistently and specifically attributed both her attendance issues and depression to a dislike of [her supervisor] and the work environment, leaving General Motors to “speculate” as to the existence of a disability as opposed to [her] concern about her interpersonal work conflict.

The Court also concluded that even if she suffered from a disability, the employer had a legitimate reason to terminate her for her repeated poor attendance and prior warnings: “The chronic tardiness and repeated absences, coupled with [her] immediate failure to abide by her Attendance Letter, were clearly legitimate, nondiscriminatory reasons to terminate her.”

The Court also rejected her failure to accommodate claim based on her request to transfer back to her former department days after her Final Written Warning and two days before she was terminated (after she had again been late to work without a valid medical excuse).   She had never linked this request with any purported disability.  Unlike the Sixth Circuit panel just days earlier, it found her request to transfer to avoid her supervisor was unreasonable:

Based on the facts in the record, however, this request was not “reasonable.” A transfer request is not reasonable if it was made to avoid working with certain people. . . . . A court is not in a position to “act as a super-bureau of Human Resources” and determine who should work with whom.

[She] herself conceded during her deposition that, when meeting with [HR], she “complained about [her co-worker] and [her supervisor’s] lack of leadership at this meeting” and that her tardiness was “related to [her] current work environment created by [her supervisor].” In other words, she attributed her attendance issues to the work environment and to her supervisor. She explicitly noted that her depression began once she was transferred to the Design Academy, and that this “precipitated her request for a transfer back to Sculpting.”

These facts compel the conclusion that her transfer request was specifically linked to her distaste for her current work environment. Basically, it was a desire to “force [the defendant] to transfer [her] so that [she] will not be required to work with certain people.” . . .

Even assuming that [she] adequately attributed her request to a disability and not just to a desire to escape the Design Academy, her request was untimely. “When an employee requests an accommodation for the first time only after it becomes clear that an adverse employment action is imminent, such a request can be ‘too little, too late.’” . . .

Similarly, [her] request came after a long history of attendance issues and a warning that her “job was in jeopardy” if she did not improve. After [she] arrived late for three successive days immediately following the issuance of her Attendance Letter, she was terminated. Her last-minute request for a transfer back to the Sculpting Department was not reasonable under the circumstances.

The Court also rejected her argument that her employer failed to engage in the interactive process:

General Motors did not violate a duty to engage in an interactive process because the duty is an independent violation of the ADA only “if the plaintiff establishes a prima facie showing that he proposed a reasonable accommodation.” Id. at 1041. As discussed above, [she] did not request a reasonable accommodation and, therefore, General Motors did not fail to engage in an interactive process.

The Court also rejected her FMLA claim on the ground that she failed to provide sufficient notice of the need for such leave.  Her “general references to her head “really hurting,” feeling “sick,” or having a “fever and other symptoms” are simply generalized descriptions of ailments that do not rise to the level of “serious health conditions” within the meaning of the FMLA.”

The better argument is when [she] more explicitly referenced having “depression” in her meeting with [HR] shortly before she was terminated. But this conversation was not accompanied by any request for FMLA leave despite the fact that [she] was familiar with the process because she herself had already taken FMLA and maternity leave when she had had her two children. Moreover, the possibility of taking FMLA leave was directly stated in her Attendance Letter, which was both read and emailed to [her].

                 . . .

             . . . In sum, [she] made only a single statement that she was depressed, which was not made in the context of requesting time off, but as a justification for her desire to transfer back to the sculpting Department (and to continue working, not stop working as FMLA leave would entail).

The remaining claims were denied based on the employer’s legitimate and non-discriminatory reason to terminate her on account of her poor attendance, after several warnings, based on the information that the employer had at the time of the decision. 

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.