Sixth Circuit Reinstates FMLA Claims Where Employee Called Off for Vague "Flare-ups" and Manager Knew of FMLA Requests.

Yesterday, the Sixth Circuit reversed an employer’s summary judgment on FMLA retaliation and interference claims.  Render v. FCA US LLC, No. 21-2851 (6^th Cir. 11-16-22).   The plaintiff had been tentatively approved for intermittent FMLA leave for his depression and anxiety.  However, when he called off on multiple days, he only once referred to the FMLA (when asked) and usually just said he was unwell or was having a “flare-up” (the term his physician used to describe his need for FMLA).  The Court found that this otherwise vague reference to his FMLA Medical Certification was sufficient to put the employer on notice of the need to inquire further and that he did not need to specially refer to the FMLA or to his anxiety or depression.  The Court also found sufficient evidence of retaliation in light of the temporal proximity of his protected activity of requesting FMLA leave and the termination decision. “It is the request that is protected activity,” not whether the leave is qualified or not.  The Court rejected the employer’s honest believe defense because the decisionmaker was aware that he had requested FMLA leave, was seeking to use it on the days in question, and had disputed the mis-coding of his absences as non-FMLA (i.e., that she had been provided with mistaken information which she had the authority and power to correct herself).   Finally, the Court agreed that the employee had sufficiently complied with the employer’s customary call off procedures when the information he had been provided was confusing and contradictory.

According to the Court’s opinion, the plaintiff had been terminated for poor attendance, but was reinstated following a grievance and subject to a conditional reinstatement letter that he would be fired again if he had more than two attendance infractions in the next year’s probationary period.  Within six months, he missed or was tardy at least four times and was fired.  Thing is, he applied for and was conditionally approved for four days per month of intermittent FMLA leave for his depression and anxiety.  The FMLA administrator sent him inconsistent and contradictory information about how he was to report his FMLA absences and the recordkeeping of the employer and FMLA Administrator was also inconsistent and contradictory.   Although he was given confirmation numbers when he called, he generally failed to indicate that he was using or had been approved for FMLA leave and would only refer vaguely to “flare-ups” and not being well enough to work.  The decisionmaking HR manager checked with other HR and the FMLA Administrators, but was given incorrect and/or misinterpreted the information.   Because she could not confirm that he had called in as required on all of the dates and the FMLA administrator had failed to record them as FMLA absences, the HR manager decided to terminate him even though he told her that he had attempted to use his approved FMLA leave. 

The Court’s majority found that there was sufficient evidence to prove that the employer may have interfered with his right to take FMLA leave.  While employees who have been approved for FMLA leave are required when calling off work to refer to the FMLA or to their FMLA approved condition and say more than that they are “sick,” the Court found that the employer is bound by the employee’s prior notice requesting FMLA leave and the supporting medical statement describing his medical condition.   

Either way, an employee “[c]alling in ‘sick’ without providing more information will not be considered sufficient notice to trigger an employer’s obligations under the Act,” though an “employer will be expected to obtain any additional required information through informal means.”

 In this case, the plaintiff had requested and been approved for intermittent FMLA leave for “flare-ups” of his chronic depression and anxiety.  So, when he called off due to “flare ups,” the employer was on notice to inquire further if it questioned whether this was covered by the FMLA:

With less context, some of [the plaintiff’s] four call-ins could be viewed as providing insufficient notice. Although [he] referenced the FMLA during his December 7, 2017 call-in, he did not do so during his call-ins on December 6, 2017 and January 5, 2018, opting instead to say that he was suffering from “flare ups.” . . . .  As the district court noted, a “flare up” just means “a sudden appearance or worsening of the symptoms of a disease or condition.” . . . .The term does not by itself indicate what these symptoms or the underlying disease or condition are. Standing alone, an employee reporting that they were having a “flare up” could be the equivalent of calling in “sick,” which 29 C.F.R. § 825.303(b) explicitly provides “will not be considered sufficient notice to trigger an employer’s obligations under the Act.” The same is true of [his] call from December 8, 2017, during which he merely reported having been “sick the last few days,” referencing his calls from December 6 and 7.

But there is more to this story. Nothing in 29 C.F.R. § 825.303(b) commands that we overlook pertinent background. . . . Given that employers are under a duty to inquire further about the nature of the leave requested, a previously submitted medical certification listing symptoms is relevant to evaluating what can be reasonably gleaned from an employee’s call-in. See 29 C.F.R. §§ 825.301(a), 825.303(b).

Before making any of his calls, [he] provided [the employer] with such a certificate.  . . . This document informed the company that [he] would be unable to work when the symptoms of his depression and anxiety were acute. . . . . More importantly, the certificate alerted [the employer] that [he] would be unable to work when these symptoms “flare[d] up.” Id. It also noted that these flare ups could occur three-to-four times a month. Id. Therefore, when [he] called in on three consecutive days in December 2017 specifically referencing either his symptoms flaring up, or the FMLA, or, by the last day, his previous two days out and his subsequent need to be late to work, it would be reasonable to conclude that he put [the employer] on notice that he was referring to his FMLA-qualifying condition. . . . . The same is true for the January 5, 2018 call, during which [he] also identified a flare up of his symptoms as the reason for his tardiness. . . . .. At the very least, [the employer] knew that [he] had been requesting FMLA leave during the December call-ins by the day of the last leave request because he reinformed the company that he had been doing so.  . . . . On this record, we hold that a reasonable jury could conclude that [he] provided adequate notice of his need for unforeseeable FMLA leave each time that he called in.

The minority opinion also concluded that he had complied with the employer’s customary call-off policies and the majority opinion agreed: “For the reasons stated in the lead opinion, a reasonable jury could find that [the plaintiff] provided sufficient notice of his intent to take FMLA leave under [the employer’s] internal leave policies.”

In general, employers can establish call-in procedures, and they may deny FMLA leave if an employee fails to follow those instructions. . . . Accordingly, [the employer] could adopt a policy requiring employees to call both Sedgwick and the [the employer’s] call-in line to report an FMLA absence. But an employee cannot be faulted for failing to comply with company policy if the policy was unclear or the employee lacked notice of the policy.

In this case, Sedgwick’s letter was so confusing that even Mitchell, who worked in FCA’s human resources department, could not decipher what it was asking employees to do. . . .

Understandably, [the plaintiff] did not follow these confusing instructions to a tee. He believed that he simply had to call the 1-800 number and report his absence. He “didn’t realize there was a second number.” . . . .We cannot fault him for failing to call both [the employer] and Sedgwick when (1) the list of instructions only gave one phone number (the one he called), and (2) the letter did not clearly list a phone number for Sedgwick. Moreover, Render took other steps to ensure that he properly reported his FMLA days. In the days immediately following his absences, he told two different supervisors that his absences were FMLA days, and he followed up with [the HR Manager] to ensure that his absences were properly coded.

As for his retaliation claim, the Court had no trouble finding that the plaintiff had engaged in protected activity in requesting FMLA leave and that the employer knew about his requests before terminating him.  It was irrelevant whether the absences were in fact protected by the FMLA for purposes of deciding whether he had engaged in protected activities. 

Employers are charged with knowing about FMLA protected activity as soon as an employee requests leave, even if it turns out the employee was not entitled to benefits. It is the request that is protected activity. . . . . Even if [the employer] did not know that [the plaintiff] was using his intermittent FMLA leave at the time of his absences, the issue is whether it knew about his protected activity before it terminated him. In this case, even if [the manager] was unaware that [the plaintiff] asked to use his leave on December 6, she admitted that she knew he was claiming FMLA protection by December 8, over a month before she terminated him.

The Court’s majority also found that the plaintiff could satisfy his burden of showing that his protected activity motivated his termination because of the temporal proximity between his initial FMLA request in October, his first attempt to use it in December and his termination in January.  While the employer may rely on the violation of his probation terms as its legitimate and non-discriminatory reason, the prima facia causation element was satisfied by the temporal proximity of the events. 

The Court also found that the plaintiff could show pretext on the ground that the employer’s explanation had no basis in fact because his absences had been miscoded by the FMLA administrator as miscellaneous instead of as intermittent FMLA as he had been conditionally approved.  When the plaintiff discovered the mistake, he was told that he would have to request HR to re-code his absences as protected by the FMLA.  However, when he went to the HR manager about the problem, she admitted that she could re-code his absences, but terminated him instead.   

The Court rejected the employer’s argument that it could rely on the honest belief rule based on incorrect information given to it by the FMLA administrator and other HR employees because the HR Manager was aware that the plaintiff had been conditionally approved for FMLA leave, that he had attempted to use that FMLA leave on all but one of the absences in question and that she had the authority to re-code the absences as covered by the FMLA leave.

Viewing the facts in the light most favorable to [the plaintiff], [the HR Manager] failed to catch the many errors that were made in the process of marking [his] absences as “MISU.” Even though she had the power to fix those errors, [she] did not recode [his] absences. Instead, she terminated him. A jury could find that [her] errors were the only thing giving her a reason to terminate [him], given that his absences would have otherwise been excused. Indeed, the record shows that [she] terminated [him] even though she knew that he was trying to use his FMLA days and that he was already conditionally approved for intermittent FMLA leave. Still, she refused to recode the absences as FMLA. A jury could thus find that the proffered reason had no basis in fact.

. . . .At this point, [he] has provided ample evidence indicating that [the employer] wrongfully designated his absences as unexcused when they should have been coded as FMLA. And [she] admitted that she terminated [him] even knowing that he qualified for FMLA leave and that he was trying to use his approved leave to cover his absences and tardies in December and January. [He] thus raised sufficient facts showing that FCA’s nondiscriminatory reason was pretextual.

In short, the honest belief rule will not protect a manager from her own error when she was on notice that she may have been given incorrect information during her investigation. 

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 FMLA Interference Claim When Employee Was Fired for Missing Work Due to Isolation Order During 2020 Pandemic

Last month, the Sixth Circuit Court of Appeals affirmed the dismissal of an employee’s FMLA interference claim when she was fired after missing work for three weeks because of an upper respiratory infection during the COVID pandemic after her physician had advised her to stay home for 10 days and the Health Board advised her to self-quarantine because she had been exposed to COVID. Nuttal v. Progressive Parma Care Center LLC, No. 21-4199 (6^th Cir. 7/26/22).   The Court excused the employer’s failure to provide her with new FMLA eligibility or designation notices and concluded that she could not show interference with FMLA leave because she had not given her employer notice that she suffered from a serious health condition that incapacitated her or required continuing care from a physician by simply referring to her physician’s direction or the isolation order.   She had never been incapacitated and did not require continued medical care.  She had already been provided with eligibility notices with prior FMLA requests within the year and her eligibility had not changed.  A designation notice was not required until she provided a medical certification, which was never received.  Because she had already been on notice of her FMLA rights and obligations, she could not show that she had been prejudiced by the lack of a designation notice.  Interestingly, the Court never addresses the Families First Cornavirus Relief Act and how notice of an isolation order could trigger the FMLA.    

According to the Court’s opinion, in March 2020, the plaintiff developed an upper respiratory infection after being exposed to COVID.  Her physician advised her to remain home for 10 days and the Board of Health directed her to remain home until she had been symptom free for 72 hours and 1 week after symptoms first appeared.  She immediately notified her supervisor that she needed time off work.  She advised HR a few days later and was directed to use her accrued vacation and then apply for unemployment.  In early April, she asked her physician to send HR a letter about needing to remain home, but it was apparently never sent.  She continued to keep her employer informed and expressed concern about contracting COVID and her hesitancy to return to work.  On April 17, she was released to return to work and immediately informed her employer, which had already posted her job and told her that she was no longer needed.   

The plaintiff filed suit on the grounds that the employer never provided with her the required FMLA notices and interfered with her FMLA leave.  The trial court found that the plaintiff had not given adequate notice of her intent to take FMLA leave, that the employer provided required notice and she could not show the failure to provide an additional notice interfered with her FMLA leave.

The Sixth Circuit focused exclusively on the regular FMLA regulations and never cited to the Families First Cornavirus Relief Act, which was enacted by March 19, 2020:

A “serious health condition” is an illness that involves “continuing treatment by a health care provider.” 29 U.S.C. § 2611(11)(B). Illnesses like the common cold and the flu, which can be treated with bed rest, fluids, and over-the-counter medication, generally do not qualify as serious health conditions. 29 C.F.R. § 825.113(c)–(d). “Calling in ‘sick’ without providing more information will also not be considered sufficient notice to trigger an employer’s obligations under the Act.” Id. § 825.303(b).

The plaintiff alleged that she had been her employer on notice when she texted her supervisor that she had been directed by her physician to quarantine for two weeks, sent a copy of the Health Board’s isolation order and provided her physician’s contact information in case HR required more information. 

But she told them nothing about the severity of her illness—which in fact did not require continuing treatment by her doctor. See id. § 825.115(a)(1). . . . . . In short, Nuttall gave no indication that she sought time off because she had a serious health condition that incapacitated her. She thus cannot make out a prima facie case that Parma Care Center interfered with her rights under the FMLA.

As for the lack of eligibility notice, she had already been sent two such notices within the prior 12 months and her eligibility had not changed.  “When ‘an employee provides notice of a subsequent need for FMLA leave’ within 12 months ‘due to a different FMLA-qualifying reason, and the employee’s eligibility status has not changed, no additional eligibility notice is required.’ Id. § 825.300(b)(3).”    However, the employer apparently never notified her with 12-month period it was using – meaning that she was entitled to rely on the 12-month period most advantageous to her under 29 C.F.R. § 825.200(e).  Since a new calendar year had started since her last FMLA request, she asserted that a new eligibility notice was required because she would have provided the medical certification form if it had ever been requested.

The Court was unimpressed.  It concluded that the prior FMLA notices had adequately informed her  of her rights and obligations:

[She] has not presented evidence that a FMLA notice in 2020 would have made a difference. Her choice in 2019 to fill out the FMLA paperwork—even though she states she did not ultimately take FMLA leave—is evidence that she knew her FMLA rights and the FMLA process. And without taking FMLA leave in 2019, no 12-month period could start, so the calculation method chosen by Parma Care Center is irrelevant. Simply put, [her] failure to provide evidence that Parma Care Center’s lack of notice in the 2020 calendar year precluded her from completing the same paperwork again for her respiratory illness is fatal to her claim.  Her knowledge of her FMLA eligibility in 2019 precludes the possibility of harm, even if the center had to provide notice.

Because Nuttall cannot prove that Parma Care Center’s alleged lack of notice actually caused her harm, she cannot prove yet another one of the elements needed for a prima facie case of FMLA interference, and her claim fails. We need not address the other elements.

The Court never indicates why the FFCRA did not apply in this case and it seems likely that the employer was a large employer with over 500 employees.

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 Reverses Employer’s Judgment on FMLA Claim When Policy Penalized Employees Taking FMLA Leave Differently Than Other Employees on Unpaid Leave

Last month, the Sixth Circuit Court of Appeals reversed an employer’s summary judgment on an FMLA claim because the employer’s perfect attendance system (which reduced attendance points under its disciplinary policy) made exceptions for pre-scheduled leave (i.e., holidays, military leave, jury duty, bereavement leave, and union leave), but not FMLA leave.  Dyer v. Ventra Sandusky, LLC, No. 18-3802 (6^th Cir. 2019).  The employer’s no-fault attendance system did not assess attendance points for FMLA absences, but would only “roll back” attendance points after 30 consecutive days of perfect attendance under its system (which did not count FMLA absences in calculating perfect attendance).  The plaintiff had been fired under the no-fault attendance policy and argued that he would not have been terminated if the employer had given him credit for perfect attendance when he took FMLA leave.  The Court found that “denying a valuable term or condition of employment to an employee taking FMLA leave interferes with the right to take that leave.”  In short, " FMLA leave could freeze the accrual of attendance but could not reset it; upon returning, [the plaintiff] was entitled to the days of attendance he had accrued when leave began and to continue accruing them in the same way."


According to the Court’s opinion, the employer utilized a no-fault attendance policy which did not assess points for FMLA absences.  The plaintiff exercised his FMLA rights in connection with his migraine headaches, which caused him to miss a few days of work each month.  The employer would drop points from an employee’s attendance record for every 30 consecutive days that the employee had perfect attendance.  As mentioned, an employee could be absent for various approved absences (like holidays, vacations, bereavement leave, jury duty and military leave) and still get credit for perfect attendance because these issues were treated as days worked  However, FMLA leave was not considered to be perfect attendance and was not treated as days worked.  


Whenever the plaintiff took a day off for FMLA leave, the 30-day calendar restarted for purposes of calculating perfect attendance.   Although taking FMLA leave did not add points to his disciplinary record, it re-started the perfect attendance clock. When he reached 12 attendance points (for non-FMLA issues), he was terminated.  His union did not pursue arbitration because his termination did not violate the bargaining agreement.   It was undisputed that the plaintiff received all FMLA leave which he requested.

It is considered interference for purposes of the Act for employers to use the taking of FMLA leave as a negative factor in employment actions.  29 C.F.R. § 825.220(c).  To prevail on his FMLA interference claim, [the plaintiff] must show that taking FMLA-protected leave was used as a negative factor in defendant’s decision to terminate him.  The sole issue on appeal is whether [the employer]’s “Attendance Point Reduction Schedule” violates the FMLA by serving as a “negative” factor in defendant’s decision to terminate Dyer.

               . . ..

The plain language of the FMLA is clear.  “At the expiration of the employee’s leave period, she must be reinstated to her position or to a position equivalent in pay, benefits, and other terms and conditions of employment.”  . . . . Therefore, denying a valuable term or condition of employment to an employee taking FMLA leave interferes with the right to take that leave.  Put differently, “attaching negative consequences to the exercise of protected rights surely ‘tends to chill’ an employee’s willingness to exercise those rights.”   . . . .  Resetting [the plaintiff's] perfect-attendance clock every time he took FMLA leave effectively denied him the flexibility of the no-fault attendance policy that every other employee not taking FMLA leave enjoyed. . . . Although the policy here does not formally hinge point reduction on not taking FMLA leave, the practical result is the same for someone like Dyer who must take frequent intermittent FMLA leave.

Based on the language of the Act and the Department of Labor regulations, point reduction can be viewed as an employment benefit, the accrual of which, like the accrual of other benefits or seniority, must be available to an employee upon return from leave.  See 29 U.S.C. § 2614(a)(2).  The regulations state that “[a]t the end of an employee’s FMLA leave, benefits must be resumed in the same manner and at the same levels as provided when the leave began.”  29 C.F.R. § 825.215(d)(1).  Whereas an employee is not entitled to “accrue any additional benefits or seniority during unpaid FMLA leave[,] [b]enefits accrued at the time leave began . . . must be available to an employee upon return from leave.”  Id. § 825.215(d)(2).  The FMLA defines “employment benefits” expansively to mean “all benefits provided or made available to employees by an employer, including . . . sick leave, [and] annual leave,” whether provided by practice or written policy.  See 29 U.S.C. § 2611(5).  Point reduction fits within this definition, because it is both a benefit Ventra Sandusky affords its employees to flexibly manage their absences, and because the reduction of a point effectively awards an additional day of allowed absence, akin to awarding sick leave.  Consistent with this approach, the Seventh Circuit has held that “wiping a point off the absenteeism slate is indeed an employment benefit.”  Bailey v. Pregis Innovative Packaging, Inc., 600 F.3d 748, 750–51 (7th Cir. 2010).  In other words, [the plaintiff's] FMLA leave could freeze the accrual of attendance but could not reset it; upon returning, Dyer was entitled to the days of attendance he had accrued when leave began and to continue accruing them in the same way.

In two separate opinion letters, the most recent of which was issued in August 2018, the Department of Labor applied these regulations to no-fault attendance and point-reduction policies and stated that accrual toward point reduction must, at the very least, be frozen during FMLA leave.  In its 1999 opinion letter, the Department of Labor opined that an employer’s FMLA obligation to restore an employee to the same or equivalent position includes the obligation to restore the number of days accrued toward absentee point reduction.   . . . . It clarified the point by example:  “If the employee had 45 days without a recordable [absence] at the time the unpaid FMLA leave commenced, the employer would be obligated to restore the employee to this number of days credited without an [absence].”  Id.  In 2018, the DOL reaffirmed the point, approving a policy under which “the number of accrued points remains effectively frozen during FMLA leave.”  . . . . Although these letters are not binding, they are entitled to persuasive effect.

               .. . .

In addition, [the employer] is not entitled to summary judgment if FMLA leave is treated less favorably than other equivalent leave statuses.  The district court held that the policy did not violate the Act because “equivalent” non-FMLA leave also interrupts the 30-day window.  But, under [the employer]'s policy, there is a disputed issue of material fact as to what constitutes “equivalent” leave and whether any equivalent leave statuses similarly reset the point-reduction clock.  Although neither the FMLA nor its implementing regulations define “equivalent leave status,” the regulations imply that equivalency turns on whether the leave is paid or unpaid.  For example, in describing the equivalency principle, the regulations state that “if an employee on leave without pay would otherwise be entitled to full benefits (other than health benefits), the same benefits would be required to be provided to an employee on unpaid FMLA leave.”  See 29 C.F.R. § 825.220(c) (emphasis added).  At her deposition, [an] employee, Catherine Cupal, stated that under the collective bargaining agreement, active duty military leave and some forms of union leave are both unpaid leave and yet, unlike FMLA leave, they do not restart the 30-day point-reduction clock.  

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 be changed or 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 Affirms Dismissal of FMLA Claims Without Actual Damages

Last month, the Sixth Circuit affirmed dismissal of FMLA interference and retaliation claims brought by a terminated warehouse worker, but remanded for the court to consider her state law claims.  Thiess v. Walgreen Company, No. 14-3892 (6^th Cir. 12-7-15).  The plaintiff could not show that she suffered any compensable harm from the alleged FMLA interference.  Her allegation “that she would have taken more absences if her request had been granted in no way proves that [the employer] interfered with her request in any way.”  She also could not show unlawful retaliation when the employer had an honest belief following its internal investigation that she was properly terminated in accordance with company policy for fabricating assault allegations against a co-worker and assaulting him.  Finally, the Court remanded the case for resolution of her remaining claims.

According to the Court’s opinion, the plaintiff failed to provide medical certification to support her request for intermittent FMLA leave despite many opportunities and reminders.  In the meantime, the employer provisionally issued disciplinary actions for her unexcused absences that she alleged should have been covered by her FMLA request.   A few months later, she alleged that a co-worker assaulted her and filed a criminal complaint against him.  Following separate investigations by the police and the employer, which included video evidence, both the police and the employer determined that the plaintiff had falsely accused her co-worker and had actually assaulted him.  Accordingly, she was terminated. 

The plaintiff brought suit in state court alleging sexual harassment, discrimination and retaliation, and violation of the FMLA.   The employer removed to federal court on the basis of diversity jurisdiction.  After dismissing the FMLA claims on summary judgment, the trial court remanded the remaining claims back to state court. 

The Court of Appeals found that the plaintiff could not show FMLA interference because she suffered no financial harm from the employer’s failure to approve her FMLA leave.  Although she alleged that she would have taken more time off work than she actually did if it had been approved and if she had not been provisionally disciplined, she suffered no compensable damages from this alleged harm. “[T]he FMLA does not provide a remedy “unless the employee has been prejudiced by the violation.”  

The FMLA provides that an employee whose rights are interfered with is entitled to

damages equal to the amount of any wages, salary, employment benefits, or other compensation denied or lost to such employee by reason of the violation; or in a case in which wages, salary, employment benefits, or other compensation have not been denied or lost to the employee, any actual monetary losses sustained by the employee as a direct result of the violation.

29 U.S.C. § 2617(a)(1)(A)(i). If an employee does not suffer any damages, then the FMLA does not provide a remedy.

The Court also rejected the FMLA retaliation claim because the plaintiff could not show that the employer lacked on honest belief that she had violated company policy by fabricating assault allegations against a co-worker and assaulting him.  Therefore, there was insufficient evidence that it terminated her on account of her FMLA requests instead of its proffered reasons:

In deciding whether an employer reasonably relied on the particularized facts then before it, we do not require that the decisional process used by the employer be optimal or that it left no stone unturned.” . . . In reviewing Walgreens’s decision to fire Theiss, we are looking for “error on the part of the employer that is too obvious to be unintentional.”  . . . In light of this standard, we find nothing in the record showing any gross deficiency or oversight in Walgreens’s investigation. There is no evidence showing that Walgreens’s reasons for firing Theiss were dishonest, pretextual, not sincerely held, or discriminatory. On the contrary, Walgreens had a specific policy that provided for immediate termination in cases of “harassment or horseplay” and “falsifying . . . documents.” Since Walgreens determined—after due investigation—that this is precisely what Theiss had done, her termination was directly in line with a clearly established company policy.

Finally, the Court found that the case had been improperly remanded back to the state court after the dismissal of the FMLA claims.  The case had been removed to federal court on the basis of diversity jurisdiction, not just federal question jurisdiction.  Accordingly, the court had jurisdiction over the state law claims on the basis of diversity of citizen between the parties.

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 be changed or 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 Reverses Employer’s ADA and FMLA Summary Judgments

Earlier this week, the Sixth Circuit Court of Appeals reversed an employer’s summary judgment on ADA and FMLA claims and made several notable holdings. Hurtt v. International Services, Inc., No. 14-1824 (6^th Cir. 9-14-15).   First, the Court reiterated that a constructive discharge could constitute an actionable adverse employment action for discrimination and retaliation claims.  Second, an employee whose commission draw and pre-paid expenses are revoked and issued a $22,000 invoice for prior draws could feel his working conditions had become intolerable so as to be constructively discharged.  Third, refusing to discuss an employee’s request to receive eight-hours of sleep per night – especially after being supported with a medical opinion -- could violate the ADA.  Finally, a constructive discharge could constitute FMLA interference even though the employer never overtly denied the employee’s request for FMLA leave.

According to the Court’s opinion, the plaintiff was a commissioned salesperson.  Following his resignation, he was convinced to return to work by the promise of a $70,000/year forgivable draw, a four-day work week, a $40/day per diem and pre-paid travel expenses.    However, the employer later denied that the draw was to be forgivable and the four-day work week never materialized.  The plaintiff claimed to only be permitted a few hours of sleep each night because of his travel schedule.  The plaintiff then submitted a doctor’s note in March noting, among other things, mental fatigue and recommended time off from traveling and sleep hygiene. The employer did not address his repeated requests for more sleep time and need for a four-day work week or the physician’s note.  On September 1, his therapist faxed the employer a note about his acute anxiety and depression, that he would be off work until September 5 and that he would require additional time off in the future under the FMLA.  On September 4, the plaintiff submitted an FMLA request for time off when his anxiety or depression flared up.  The employer responded the next day by terminating his draw retroactive to September 1, reinstated his commissioned pay plan, terminated his pre-paid travel expenses and requested that he repay the $22,752 already advanced to him through his draw.  The plaintiff indicated that he could not work under the new conditions and requested that his former compensation arrangements be reinstated.  In the meantime, the employer processed his FMLA request and sent a medical certification form to his medical provider.  On September 18, the plaintiff’s attorney notified the employer that he would not be returning to work and the proceedings were commenced.

The trial court had dismissed the plaintiff’s ADA discrimination allegation on the grounds that a constructive discharge could not constitute an adverse employment action (which is necessary to establish a prima facie case). The Court noted that this was not a proper analysis of the law.  “Thus, although already well established, we hold once more today that a plaintiff may use a constructive discharge claim to show that he or she has suffered an adverse employment action.”

In addition, the Court found that the plaintiff had produced sufficient evidence to show that he had been constructively discharged.   

To demonstrate a constructive discharge, the plaintiff must show that (1) the employer deliberately created intolerable working conditions, as perceived by a reasonable person; (2) the employer did so with the intention of forcing the employee to quit; and (3) the employee actually quit. . . .

 . . .“[w]hether a reasonable person would have [felt] compelled to resign depends on the facts of each case[,]” but we consider several factors, including but not limited to, “reduction in salary” and “badgering, harassment, or humiliation by the employer calculated to encourage the employee’s resignation.” . . .

                . . . Further, in analyzing the second prong, we have held that “a complete failure to accommodate, in the face of repeated requests, might suffice as evidence to show the deliberateness necessary for constructive discharge.”

The Court found that a reasonable person would have found continued employment intolerable and felt compelled to resign by having his draw and pre-paid expenses terminated retroactively to his first date of medical leave and being put back on a commissioned pay plan. It was not difficult to find that the employer was attempting to force his resignation because he had already resigned before over the commissioned pay plan and only returned when promised a draw and the employer had refused to acknowledge or discuss his repeated requests for more sleep.  Accordingly, the Court found that the plaintiff’s disability discrimination claim should gone to a jury.

The Court also found that the plaintiff had stated actionable claims for retaliation.  His repeated requests for a reasonable accommodation (i.e., more sleep) and for FMLA leave constituted protected activity.  The Court rejected the employer’s contention that it had never been put on notice that he had a disability.  “But, the pertinent inquiry here is not whether Hurtt proved he had a disability under the ADA, or whether ISI had specific knowledge of Hurtt’s alleged disability, but rather, whether Hurtt showed a good-faith request for reasonable accommodations.”  

As a whole, these acts are sufficient, good-faith requests for accommodations. [The employee's] verbal requests initially notified [the employer] that he sought sleep accommodations during his travels. And while Dr. Littles’ document did not explicitly request an accommodation, it specifically corroborated [his] verbal requests that he be given sufficient time to sleep during his travels to accommodate his medical conditions. Furthermore, Dr. Sharnowski’s letter and [his] FMLA leave request notified [the employer] that he sought accommodation in the form of time off from work. Accordingly, we conclude that [the plaintiff] has put forth sufficient evidence to show that he engaged in protected activity as required under a claim for retaliation under the ADA.

His constructive discharge was sufficient evidence of an adverse employment action to support his retaliation claim. “To be adverse, a retaliatory action must be enough to dissuade a reasonable person from engaging in the protected activity. . . .”  

Although the employer never denied the plaintiff’s FMLA request or demanded that he return to work, its constructive discharge of him could be construed as discouraging an employee from taking FMLA leave and, thus, constitute an actionable FMLA interference claim.  

Contrary to [the employer's] assertions, the fact that [it] did not literally interfere with [his] FMLA leave (i.e., by denying it, requesting he report to work, or complete work-related tasks) does not impede [the plaintiff's] claim of FMLA interference. By engaging in an act that would discourage [him] from using his FMLA leave, [the employer] could be liable under a claim for FMLA interference.

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 be changed or 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.

Pregnancy Discrimination: Abstract New EEOC Guidelines vs. Real World

At the end of last month, the EEOC updated the pregnancy discrimination guidelines it issued last summer in the wake of March’s Supreme Court’s decision in Young v. UPS.   Ignoring the Court’s significant criticisms of last year’s guidelines, the EEOC notes in its press release that it made only a few changes to reflect the Court’s new pregnancy discrimination standard.  It has completely replaced the former guidelines on its website with the new guidelines, so it’s virtually impossible to evaluate the breadth and significance of the changes.   Coincidentally, about a week later, the Sixth Circuit dismissed the FMLA and pregnancy discrimination claims of an employee who was fired during her pregnancy because she could not perform the essential functions of her job and refused to return FMLA forms.   Huffman v. Speedway LLC, No. 14-1668 (6^th Cir. 7-1-15).

Last summer’s EEOC’s pregnancy discrimination guidelines provided that employers should provide light duty and time off to pregnant employees under the same conditions as other non-pregnant employees.   In particular, the EEOC’s standard was that pregnant employees “be treated the same for all employment-related purposes as other persons no so affected by similar in their ability or inability to work.”  As examples, the EEOC posited that pregnant employees must be provided with light duty if light duty is provided to employees with work related injuries and must provide the same reasonable accommodation provided to an employee with a disability if it also would not create an undue hardship. 

In March, however, the Supreme Court strongly criticized the EEOC’s new positions on pregnancy discrimination and refused to give them any significant weight in its decisionmaking. Both before and immediately after the passage of the PDA, the EEOC guidelines required only that pregnancy be treated the same as other medical conditions:

“Disabilities caused or contributed to by preg­nancy . . . for all job-related purposes, shall be treated the same as disabilities caused or contributed to by other medical conditions.”

  In rejecting the recent EEOC guidance, the Court cited concerns with the EEOC’s

timing, “consistency,” and “thor­oughness” of “consideration.” The EEOC promulgated its 2014 guidelines only recently, after this Court had granted certiorari in this case. In these circumstances, it is fair to say that the EEOC’s current guidelines take a position about which the EEOC’s previous guidelines were silent. And that position is inconsistent with positions for which the Government has long advocated. . . . Nor does the EEOC explain the basis of its latest guidance. Does it read the statute, for example, as embodying a most-favored-nation status?   Why has it now taken a position contrary to the litigation position the Government previously took?   Without further explanation, we cannot rely significantly on the EEOC’s determination.

 

The new guidelines strike significant portions of its prior discussions and examples about finding pregnancy discrimination when a pregnant employee is treated differently than another employee with similar abilities to work (particularly with respect to light duty requests) and, instead, attempt to explain the Supreme Court’s similarly new position on pregnancy discrimination.   “Employer policies that do not facially discriminate on the basis of pregnancy may nonetheless violate the provision of the PDA where they impose significant burdens on pregnant employees that cannot be supported by a sufficiently strong justification.” 

A plaintiff need not resort to the burden shifting analysis set out in McDonnell Douglas Corp. v. Green in order to establish an intentional violation of the PDA where there is direct evidence that pregnancy-related animus motivated the denial of light duty. Absent such evidence, however, a plaintiff must produce evidence that a similarly situated worker was treated differently or more favorably than the pregnant worker to establish a prima facie case of discrimination.

According to the Supreme Court's decision in Young v. United Parcel Serv., Inc., a PDA plaintiff may make out a prima facie case of discrimination by showing "that she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others 'similar in their ability or inability to work.'" As the Court noted, "[t]he burden of making this showing is not 'onerous.'" For purposes of the prima facie case, the plaintiff does not need to point to an employee that is "similar in all but the protected ways." For example, the plaintiff could satisfy her prima facie burden by identifying an employee who was similar in his or her ability or inability to work due to an impairment (e.g., an employee with a lifting restriction) and who was provided an accommodation that the pregnant employee sought.

Once the employee has established a prima facie case, the employer must articulate a legitimate, non-discriminatory reason for treating the pregnant worker differently than a non-pregnant worker similar in his or her ability or inability to work. "That reason normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those ('similar in their ability or inability to work') whom the employer accommodates."

Even if an employer can assert a legitimate non-discriminatory reason for the different treatment, the pregnant worker may still show that the reason is pretextual. Young explains that

[t]he plaintiff may reach a jury on this issue by providing sufficient evidence that the employer's policies impose a significant burden on pregnant workers, and that the employer's "legitimate, nondiscriminatory" reasons are not sufficiently strong to justify the burden, but rather-when considered along with the burden imposed-give rise to an inference of intentional discrimination.

An employer's policy of accommodating a large percentage of nonpregnant employees with limitations while denying accommodations to a large percentage of pregnant employees may result in a significant burden on pregnant employees. For example, in Young the Court noted that a policy of accommodating most nonpregnant employees with lifting limitations while categorically failing to accommodate pregnant employees with lifting limitations would present a genuine issue of material fact.

That being said, the Sixth Circuit soon thereafter affirmed the summary judgment dismissal of pregnancy discrimination and FMLA claims brought by a pregnant plaintiff who was fired during her pregnancy when she could not perform all of the essential functions of her position and refused to return the FMLA forms (after having already provided other letters from her physician explaining her work restrictions).  Huffman v. Speedway LLC, No. 14-1668 (6^th Cir. 7-1-15).

According to the Court’s opinion, the plaintiff worked as a shift leader and sometimes worked in the store alone.  About four months into her pregnancy, she presented a doctor’s note explaining that she could not work more than 8 hours and needed a 15 minute break every four hours.  Her request was granted.  After experiencing some hip pain a month later, her doctor sent a note that she should not engage in activities which could cause her to fall or drop something on herself. When the employer asked the plaintiff which job duties were concerning to her, she identified: taking out the trash, standing for long periods of time, squatting, bending, leaning over, climbing ladders and lifting heavy objects.   Seeking more expert opinion on the plaintiff’s abilities, the employer requested her physician to evaluate her abilities to perform her job duties.  The physician indicated that she should perform light medium work, not lift over 20 pounds, not climb, and not frequently lift over 10 pounds, but that she could bend, squat, kneel, stand and walk for short periods.  He also advised her to avoid certain job duties for the remainder of her pregnancy, including cleaning the coolers, making tea, emptying trash, stocking outside, cleaning baseboards, walls, windows and restrooms, etc.  The plaintiff admitted that this mean that certain job duties would not be performed whenever she worked alone.

The employer indicated that it could not accommodate these medical restrictions, that the plaintiff could not return to work until the restrictions were lifted and that she should take FMLA leave or, if ineligible, personal leave.  Despite her having already provided a detailed medical opinion, the employer then sent her an FMLA forms to complete, which the plaintiff refused to do since she wanted to remain at work.  The employer explained that it might provide her with personal leave after she exhausted FMLA leave, but it would not guarantee returning her to her shift leader position after the FMLA period lapsed.  She was also informed that if she refused to complete the FMLA paperwork, she would be fired for job abandonment.  While the plaintiff took vacation days, her FMLA deadline passed and the employer denied her FMLA leave.  However, it offered her personal leave if she returned the paperwork within two weeks.  Again, the plaintiff refused.  Accordingly, her employment was terminated several weeks later and the litigation ensued.

The Court dismissed her involuntary/interference FMLA leave claim on the basis it was not ripe.  In the Sixth Circuit, a plaintiff cannot sue for being involuntarily placed on FMLA leave (when the plaintiff wants to remain at work) until after the plaintiff seeks FMLA leave and is denied on the grounds that it had been exhausted because of the involuntary FMLA leave.

While being forced to take unpaid leave has an effect similar to being suspended without pay, the statute does not grant employees the right to be free from suspension. Several of our sister circuits have therefore held that involuntary FMLA leave does not directly injure an employee’s FMLA rights. . . .

We nonetheless recognize that involuntary FMLA leave has the potential to indirectly interfere with an employee’s FMLA rights. An employer who forces an employee who does not have a job-restricting serious health condition—i.e., an employee who remains capable of performing all essential job duties—to take FMLA leave may improperly exhaust the twelve weeks of leave to which the employee is statutorily entitled each year. . . . But the injury to the employee’s FMLA rights would remain inchoate unless she develops a serious health condition within a year and requests FMLA leave. If the employer were to grant the employee the full twelve weeks of leave to which she is entitled—i.e., not counting the previous involuntary FMLA leave against her annual limit—the employee would not suffer a cognizable injury under the FMLA. Therefore, an involuntary-leave interference claim “ripens only when and if the employee seeks FMLA leave at a later date, and such leave is not available because the employee was wrongfully forced to use FMLA leave in the past.”

The Court refused to recognize her opposition to involuntary leave as an FMLA retaliation claim either:

Because involuntary leave cannot by itself violate the FMLA, opposing involuntary leave is not protected conduct under the statute. Therefore, termination for refusing involuntary leave is not retaliation.

The Court rejected the plaintiff’s argument that the employer’s citation to her pregnancy as a reason to place her on involuntary medical leave constituted direct evidence of discrimination.   In light of her own physician’s instructions, this was not a stereotyping case.  Bizarrely, the plaintiff attacks the employer’s policy (which mostly quotes the FMLA regulations) that medical conditions related to pregnancy may constitute a serious health condition under the FMLA.  The Court correctly found the policy does not distinguish between providing leave for pregnancy and other serious health conditions.  In any event, the Court decided that the employer was too straightforward to be trying to hide discrimination:

Even if Speedway had misidentified the reason for Huffman’s FMLA leave, the paperwork would not be direct evidence because we are not required to conclude that Speedway acted with discriminatory motive. The existence of an ulterior motive that Speedway was trying to cover up with an “invented reason” must be inferred. A second inference is required to conclude that the ulterior motive was pregnancy discrimination.

 

Ultimately, the plaintiff’s discrimination claim failed because she failed to submit any admissible evidence that non-pregnant employees were treated more favorably.  All she had was her own hearsay testimony based on what she heard from co-workers who believed that other employees had been placed on light duty when faced with similar medical restrictions.

 

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 be changed or 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: FMLA Notice and Intermittent Leave Rules Do Not Apply to Long-Term Medical Absence

This morning, the Sixth Circuit affirmed an employer’s summary judgment in an FMLA case where the employee’s medical condition kept him off work for approximately six months.   Mendel v. City of Gibraltar, No. 14-1789 (6^th Cir. 4-14-15).  In that case, the plaintiff worked as a part-time EMS dispatcher and was unable to report to work beginning in December 2008 due to complications from a prior hernia surgery.  Because the employer had not counted volunteer firefighters as employees, it did not think that it was subject to the FMLA and never provided any of the mandatory FMLA notices.   He had provided some medical documentation of his need to be off work and had been taken off the work schedule, but was terminated in February 2009 for failing to provide medical documentation on particular dates.  He admittedly was unable to return to work until June 1, 2009.  The Court rejected some interesting arguments that he raised about how his twelve weeks of FMLA should be counted (i.e., as though he had only taken intermittent leave and should not have been assessed FMLA leave for periods when he was taken off the work schedule).  The Court ultimately held that he could not prevail on an FMLA interference claim unless he could show that he would have been able to return to work before his twelve-week FMLA entitlement expired.

The Court rejected the plaintiff’s argument that he had not exhausted his twelve weeks of FMLA leave by June 1.  The Plaintiff argued that he should have only been assessed partial week absences because he was only scheduled to work a couple of days each week.   However, the Court noted that he was a part-time employee and the FMLA is calculated based on a regular/average work week, not on a hypothetical work week.  He missed every day that he was scheduled to work until he was fired at the end of February and was not able to return to work until June 1.

The regulations implementing the FMLA define intermittent leave as “leave taken in separate periods of time due to a single illness or injury, rather than for one continuous period of time.” 29 C.F.R. § 825.102;  . . . The clear import of the regulation and the examples it provides is that intermittent leave applies to employees who continue to work reduced workweeks.

Mendel did not—indeed, could not—continue working during the relevant period. Thus, the intermittent-leave regulations do not govern his situation.

The Court also rejected the plaintiff’s argument that he should not have been assessed with FMLA time after he was removed from the work schedule.  He attempted to analogize his situation to those of employees who are regularly rotated off a work schedule at regular periods.  However, in contrast to that situation, the “only reason” that the plaintiff was removed from the work schedule was because of his serious health condition.

Because the plaintiff’s entitlement to medical leave under the FMLA expired – at the latest – on March 26 and he could not return to work until June 1, he could not prove that his employer interfered with his FMLA entitlement by firing him in February.

It does not matter in this case that Gibraltar terminated Mendel’s employment in February of 2009, prior to the expiration of the statutory leave period. See Edgar, 443 F.3d at 506-07 (“[A]n employer does not violate the FMLA when it fires an employee who is indisputably unable to return  to work at the conclusion of the 12-week period of statutory leave.”).

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 be changed or 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 Affirms $173K Jury Verdict in FMLA Interference Case Where Employee Never Returned Medical Certification Because Employer Failed to Provide Unequivocal Written Notice About Consequences

In a case where a plaintiff-employee had become so emotionally distraught that she refused to tell her employer about her medical/mental problems, to return her FMLA medical certification or to provide updated medical notes from her doctor, she prevailed pro se in a FMLA interference action after her employer terminated her for violating its attendance policy by not reporting off or showing up to work for two consecutive days after the two week period mentioned in her physician’s note.  Wallace v. FedEx Corp., No. 11-5500 (6^th Cir. 8-22-14).  The primary rule from the Sixth Circuit’s case last Friday is that an employer cannot require an employee to provide a medical certification form from her physician unless the employer explains in writing to the employee the consequences for failing to return the completed form.   In this case, the twenty year plaintiff-employee had well documented attendance counseling and generally attributed it to non-medical issues because she was embarrassed.   Exacerbated, the employer provided several FMLA forms to the employee and directed her verbally to return the forms within 15 days.  She had also received a disciplinary notice suggesting that she take medical leave until she could comply with the attendance policy, but not mentioning any medical certification requirement.   She had provided the employer with verbal notice of her need for medical leave and a note from her physician which indicated that she needed to be off work for two weeks before being reassessed.  The Court found this note could reasonably be interpreted to support the plaintiff’s need for additional medical leave following the two week period and the employer interfered with her FMLA leave by terminating her a few days after the two-week period expired.   The jury awarded her $173,000 in compensatory damages (i.e., lost wages) and the Sixth Circuit reversed the magistrate judge’s ruling reducing that amount.

According to the Court’s opinion, the employee’s health had deteriorated, but she transferred to a new department with a strict attendance requirement.  When she was coached about her attendance, she apologized for “slacking.”  Her medical condition caused significant weight loss, stomach problems and interfered with her sleep.  When her physician discontinued a narcotic drug, she experienced severe withdrawal symptoms.  Sometimes, she just sat in the employer’s parking lot and cried instead of going into work and other times she reported to her desk and cried.  She told her supervisor on Monday, August 6, 2007 that she was having personal problems because of her “past/baggage/history,” but wasn’t comfortable going into detail.  He encouraged her to be open and offered to find someone with whom she was comfortable speaking.  She then called off work for the rest of week, which made her supervisor suspicious that she knew in advance that she would be sick for the rest of the week.  He directed her to meet with him promptly when she reported to work the following week. 

She was 90 minutes late to work the following Monday.  After she was then 30 minutes late the following Tuesday, the supervisor refused to accept her apology or explanation.  Instead, he gave her a written verbal warning about her repeated poor attendance.  A meeting was held with HR the next day (Wednesday) and the employee attributed her problems to getting her child off to school.  However, she also mentioned that she was having trouble with adjustments in her medication.  She was given the options of coming to work on time, taking medical leave or going through the disciplinary process.  She then met with her doctor who was concerned with her condition and gave her a medical statement covering the prior week’s absence and indicating that she needed to be off work for two more weeks before being reassessed.  She returned to her supervisor, who arranged a meeting with inhouse legal counsel.  He gave her blank FMLA forms and she was verbally directed to return them within 15 days.   The forms stated in part:

that “Family Medical Leave is not automatic” and that “[q]ualification under FMLA will be determined upon timely receipt of the medical certification form (within 15 calendar days) if requested,”   . . . (emphasis added).  In addition, the form stated that “[w]hether your absence is FMLA will be determined upon timely receipt of the medical certification.”  . . . However, the forms were left unmarked. Moreover, the memorandum that [the supervisor] gave [the plaintiff] on August 15 to sign stated: “consider taking a period of time for medical leave until such time as [you] feel[] capable of adhering to the attendance policy and completing [your] work tasks . . .There is no mention of the need for medical certification or the consequences of failing to produce it.

The plaintiff returned to her physician and he promptly completed the FMLA forms.  He also provided her a note that she should remain off work for an additional three weeks.  She never returned the FMLA forms or the updated doctor’s note to her employer.  She later explained that she was experiencing extreme disappointment and was not herself.  She was later diagnosed with depression and ADHD.   When she did not return the FMLA forms or return to work on August 30, her supervisor tried for two days to reach her by telephone and email.  Her line was always busy and she did not respond to the emails warning her of the consequences of not keeping him updated about her medical progress.  The following Tuesday, the plaintiff left a voice mail for HR that she was on her way to the hospital for ear surgery, but her employment was terminated later that day despite that information.  When she received the termination notice, she telephoned the company’s General Counsel that she had the completed medical certification form, but was told it no longer mattered.  At trial, the plaintiff testified that she would have turned in the medical certification form if she had realized the consequences of failing to do so.

On appeal, the Sixth Circuit found that plaintiff need only provide notice of her need for FMLA leave.  She is not required to mention or refer to the FMLA and she is not required to mention the possible duration of the medical leave.  The plaintiff mentioned the problems with the adjustment in her medication and provided her employer with a note from her physician about her need to be off work for two weeks before being reassessed, so she provided sufficient notice of her need for FMLA leave.   The Court rejected the employer’s reliance on the two-week period in the physician’s note:

By focusing on whether [the plaintiff] provided enough documentation for continued leave, [the employer] misses the point of this notice element. The relevant question is whether [the plaintiff] provided [the employer] notice that she needed FMLA leave, not whether she provided notice that she needed a certain amount of FMLA leave.

Granted, “in an ideal world,” the plaintiff would have provided her employer with the updated physician’s note indicating a need for an additional three weeks of medical leave.  However, since his prior note referred to a “reassessment” the jury could reasonably conclude that the two weeks were merely an estimate and that the plaintiff could not return to work before being cleared by her physician.

Being on notice of her need for FMLA leave, it was up to the employer to take action to obtain any necessary information it required about the duration of her leave and any medical certification.  The Court found that the FMLA forms which the employer provided to the plaintiff on August 15 were not clear about there being any consequences if she did not timely complete and return the forms.  There was no unequivocal statement that her FMLA leave could be denied or delayed if she failed to return the forms.  It was irrelevant that she had been verbally instructed to return the forms within 15 days because the FMLA regulations require the warning to be in writing.  Without such written notice to the employee about the consequences of failing to timely return the medical certification, the employer cannot deny or delay FMLA leave based on a failure to provide medical certification.  Accordingly, the plaintiff could not be fired not returning the medical certification.  In other words, she had begun her FMLA leave on August 16 and the employer terminated her during the FMLA leave because it could not object to the lack of information.

[Her] failure to report for work—and her subsequent termination—is a direct result of failing to perfect her FMLA leave, which is a consequence of [the employer] failing to meet its responsibilities under § 825.305. . . .

 . . .

[The employer] claims that it terminated [the plaintiff’s] employment because she was absent—without a valid excuse—for two consecutive days, but the reason her absences were unexcused was because [she] failed to perfect her FMLA leave. The reason she failed to perfect her leave was because she failed to return the medical-certification form, and the reason she failed to return the form, according to the jury, was because [the employer] failed to inform her of the consequences of failing to do so as required by 29 C.F.R. § 825.305. Thus, [the employer’s] failure to provide notice was the proximate cause of her termination, meaning that its failure to comply with the regulations prejudiced [her].

The Court rejected the employer’s argument that it was the plaintiff’s mental illness – and not its failure to comply with the FMLA notice regulations – which caused the plaintiff to fail to return the medical certification forms. “In making this argument, [the employer] disregards § 825.305’s equitable-tolling provision, elevates its attendance policy over the protections of the FMLA, and oversimplifies mental illness. It is impossible to recreate how [she] balanced her exertions in August of 2007, and if she had known that returning the certification was necessary to keep her job, she may have rearranged her priorities in dealing with her mental illness to comply with [the employer’s] request.”

 The Court also rejected the employer’s attack on the legality of the FMLA regulations. Finally, there were a host of technical procedural issues dealing with remittitur (i.e., reduction in the plaintiff’s damages), and the timeliness of post-trial motions and notices of appeal.  In short, the Court ultimately affirmed the jury’s initial award of $173,000, chastised the plaintiff for failing to timely argue her right to front pay and liquidated damages and rejected the employer’s remaining arguments.

 

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.