Franklin County Court of Appeals Helps Pro Se Plaintiff with FMLA Claim.

Last week, the Franklin County Court of Appeals partially reversed summary judgment against an employee on his FMLA claim. Randolph v. Grange Mutual Casualty Co., 2009-Ohio-6782 (12/22/09). The pro se plaintiff had been summarily fired after failing to report to or timely call off work on the last day of an attendance probation. He claimed that he had blacked out during an episode of depression, which he claimed was aggravated when he learned he had been fired after he finally woke up and started to drive to his doctor and call his supervisor. In his lawsuit, he claimed that the employer interfered with his right to take FMLA leave. The trial court found that he failed to notify the employer of his need for FMLA leave as soon as practicable and his absence was not encompassed by his earlier FMLA request for intermittent leave for “treatment.” However, the appellate court found that the employee’s depressive episode could arguably constitute a serious medical condition which would support new, unforeseeable FMLA leave and that a jury could conclude that he had notified the employer in sufficient time.

According to the Court’s opinion, the employer’s policy:

requires an employee to report any absence and the reason for it within a half-hour of the employee's scheduled start time and states that failure to report an absence may result in disciplinary action up to and including termination. Under the absenteeism policy, an employee with seven absences in a 12- month period is placed on "absence probation," during which the employee may have only one absence. More than one absence during the absence probation subjects an employee to termination.

The plaintiff had been placed on attendance probation on June 24 until December 5 for reasons unrelated to an FMLA leave he had taken the prior year. Nonetheless, the employer did not count against his probation his absences as excused by his physician for his depression or for an asthma attack which he admitted was not covered by FMLA.

On the last day of his probation, the plaintiff failed to report to or call off work within 30 minutes of the beginning of his shift. His supervisor claimed that she left him a voice mail near the end of the day terminating his employment for violating the terms of his probation. According to the plaintiff, he awoke from a blackout in the late afternoon, realized he needed immediate medical attention and when he began to call his supervisor while driving to the doctor, he checked his voice mail and learned he had already been fired. At this point, he claimed that he began to have a nervous breakdown and drove to his mother’s home instead of his physician. His mother then telephoned the supervisor that evening and attempted to explain the situation and how her son would probably be hospitalized. The plaintiff himself called his supervisor and human resources first thing in the morning and explained the same. Nonetheless, the employer refused to reconsider his termination.

While the Court agreed that the plaintiff’s FMLA rights had not been interfered with before December 5, it found a factual dispute as to whether he was entitled to new, unforeseeable FMLA leave beginning on December 5 even though he failed to call off work during his shift that day. The Court agreed that the plaintiff’s earlier FMLA certification only covered “treatment” and “recovery from treatment” and did not encompass the December 5 absence because he had not received any treatment that day. However, to the extent that his need for leave on December 5 was unforeseeable, the plaintiff was only required by both the earlier and current FMLA regulations to give notice of his need for leave “as soon as practicable.” This could be two days, or less, or more depending on the particular factual circumstances of the situation.

The employer argued that the plaintiff had admitted that the depressive episode began on November 30 and thus, plaintiff was on notice days earlier that he might need FMLA leave. However, the court found a reasonable jury could conclude that the plaintiff did not require time off work until he blacked out during the evening of December 4, and thus, he notified his employer as soon as practicable under the circumstances. In reaching this decision, the Court found it relevant that the employer summarily terminated the employee by voice mail and how this notice of his termination adversely affected his mental health, preventing him from calling his employer any earlier in the day under the circumstances.

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 Dismisses FMLA Claim of Employee Hit By Car for Lack of Specific Medical Evidence Despite Employer’s Own FMLA Violation.

This morning, a divided federal Sixth Circuit Court of Appeals affirmed the dismissal of an FMLA claim, but on different grounds than the trial court. Stimpson v. UPS, 08-2263 (6th Cir. 11/3/09). The Court found that the employee did not qualify for FMLA leave because he failed to show that he suffered from a serious health condition even though he had been injured when his bicycle was hit by an automobile, visited an emergency room, was prescribed medication and produced statements from two different physicians that he was unable to work for several weeks. Rather, the Court was influenced by the plaintiff’s failure to fill the drug prescription given to him in the ER and the lack of specificity by his medical providers. Nonetheless, the Court also rejected the argument that the plaintiff failed to give sufficient notice of his need for FMLA leave and noted that the employer violated the FMLA when it only gave the employee 72 hours to produce a medical statement under the collective bargaining agreement because the FMLA gave the employee 15 days to produce such a statement. However, the employer’s violation did not save the employee’s FMLA claim because he failed to produce the requested medical statement within fifteen days.

As described by the Court, the plaintiff was riding his bicycle (while intoxicated) when it was struck by a car around 3:30 p.m. on April 29, 2006. The motorist was cited for following him too closely. He denied medical treatment at the scene, but later visited an ER where he was prescribed medication after complaining about lower back pain and the physicians noted extensive bruising where he had collided with the road pavement in the earlier accident. He was also diagnosed with an acute lumbar strain. He was discharged 2.5 hours after checking in. Even though he never filled the medical prescription, he returned to the ER the next day because of his back pain and was promptly discharged for failing to fill his earlier prescription. There was evidence that he also notified his supervisors at UPS about his accident, but he did not return to work for about three weeks, failed to call off daily under regular UPS procedures and failed to provide medical documentation of his inability to work before May 22. UPS claims that it verbally requested medical documentation and sent him a letter requesting medical documentation to be submitted within 72 hours (as required under the CBA). When the plaintiff failed to submit medical documentation before May 12 (because, as he claimed, he had moved and did not receive the UPS letter until May 22), he was terminated.

On May 23, the plaintiff filed a grievance with the union and submitted three medical statements that he could not work until May 20. When his grievance was denied, he filed an Unfair Labor Practice Charge with the NLRB on the grounds that he was being retaliated against for his prior union activities (in that he had previously been terminated by UPS for union activities and was reinstated by court order in September 2005 after an earlier ULP Charge he filed with the NLRB). However, unlike his prior ULP Charge, the NLRB dismissed this Charge. He then filed his FMLA lawsuit.

The District Court granted summary judgment to UPS because it concluded that the plaintiff was not eligible for FMLA leave in that -- even disregarding his earlier unlawful termination – he had not worked 1250 hours in the prior 12 months and had failed to give proper notice of his need for FMLA leave. In addition, the trial court questioned whether he suffered from a serious health condition under the circumstances.

The Court of Appeals agreed with the plaintiff that there was a material factual dispute about how many hours he would have worked in the prior 12 months if he had not previously been unlawfully terminated. Even though the NLRB only required payment of a certain amount of back pay (less than 1250 hours), it failed to address the plaintiff’s claim that he would have worked additional hours and such evidence had been submitted to the District Court. Accordingly, summary judgment on that issue was inappropriate.

The Court also found sufficient evidence that the plaintiff had properly notified UPS of his accident and potential need for FMLA leave. The Court also noted that UPS acted entirely properly by notifying the plaintiff in writing that it wanted more medical information before designating FMLA leave. The Court did not address the question of whether the plaintiff was required to call off each day as required by UPS internal procedures.

However, the Court found that UPS violated the FMLA by only giving the plaintiff 72 hours written notice of the need for medical documentation:

The regulations state that “[t]he employee must provide the requested certification to the employer within 15 calendar days after the employer’s request, unless it is not practicable under the particular circumstances to do so.” 29 C.F.R. § 825.305(b). While UPS argues that its labor agreement with the Teamsters allows it to provide a shorter time period of seventy-two hours, the FMLA expressly provides that no collective bargaining agreement, such as that UPS has with the Teamsters Union, may diminish any protection granted by the FMLA. 29 U.S.C. § 2652(b). The fifteen-day period expired on May 20, 2006, two days before [the plaintiff] submitted his medical information. However, UPS terminated [the plaintiff] on May 12, 2006, well before the expiration of the fifteen-day period. [The plaintiff] missed the deadline, but UPS had first terminated him under a mistaken understanding of the applicable deadline.

Section 2652(b) of the FMLA provides that: “The rights established for employees under this Act or any amendment made by this Act shall not be diminished by any collective bargaining agreement or any employment benefit program or plan.”

Ultimately, the Court majority concluded that UPS’s mistake was irrelevant because even if he had submitted the information within fifteen days, the plaintiff failed to show that he suffered from a serious health condition. The plaintiff had never been admitted as an inpatient. His failure to fill his ER prescription also meant that he could not show a regiment of continuing care. “For example, an outpatient procedure with a follow-up appointment is not a “regimen of continuing treatment.” See Morris v. Family Dollar Stores of Ohio, Inc., No. 07-3417, 2009 U.S. App. LEXIS 6852, at *17-18 (6th Cir. Mar. 31, 2009).”

Surprisingly, the Court also found the medical statements submitted by his physicians to be deficient:

While [the plaintiff] has produced three separate notes from physicians stating that he could not return to work, the most detailed notation given on the forms is that [the plaintiff] cannot work “for medical reasons.” These notes fall far short of the requirement that any doctor’s certification must contain at a minimum “(1) the date on which the serious health condition began, (2) the probable duration of the condition, (3) the appropriate medical facts within the health care provider’s knowledge, and (4) a statement that the employee is unable to perform [his] job duties” in order to be valid.

The Court was also influenced by the fact that the plaintiff failed to follow his physician’s treatment advice:

[The plaintiff] also has not provided any other medical evidence to counter the emergency treating physician’s final diagnosis of bruises and mild back pain. Importantly, none of the medical information [the plaintiff] has provided suggests that his back pain significantly limited his movement or lifting ability, particularly when treated with the prescription [the plaintiff] refused to take. Because [the plaintiff] cannot demonstrate that he suffered from a serious health condition, he is not eligible for FMLA leave.

In short, even though two different physicians indicated that the plaintiff should not return to work for three weeks and even though there was no contrary medical evidence offered by the employer, the Court disregarded their expert medical opinions of the treating physicians and focused, instead, on the particular diagnosis and the fact that the plaintiff failed to follow medical advice (which presumably lengthened his period of disability).

In contrast, the dissent concluded that UPS would be required to first notify the plaintiff why his medical certification was deficient before he could be terminated for failing to satisfy his burden of proof. The majority dismissed this concern on the grounds that the plaintiff failed to submit any medical documentation within fifteen days. Thus, only when medical certification has been timely submitted would an employer be required to permit an employee to cure a deficiency.

The dissent also noted that while bruises probably are not serious health conditions, an acute lumbar strain could be:

Symptoms vary depending on the severity of the strain, but “[t]ypically, the patient with a low back strain moves with care, particularly when sitting down or standing up.” Id. Treatment “includes patient reassurance, brief bed rest during the acute phase of low back pain, a firm mattress with a bed board, and the judicious use of analgesics or nonsteroidal anti-inflammatory drugs (NSAIDs).” Id. ¶ 15A.46. Additionally, “the patient should be instructed to avoid activities that intensify back pain.” Id. The recovery period depends upon the severity of the strain. Although “[t]he acute back strain patient generally experiences gradual improvement over a period lasting approximately two weeks,” patients with severe strains may not recover for up to three weeks. Id. ¶ 15A.47. Finally, there is a “significant likelihood of recurrence,” and “[w]hile the first episode of back pain is usually the briefest and least severe, the vast majority of such patients are at risk of developing another episode of back pain that will be more severe and longer lasting.” Id. Clearly, an acute lumbar strain can be a “serious health condition that makes the employee unable to perform the functions of [his] position.” 29 U.S.C. § 2612(a)(1)(D).

The majority dismissed this concern as merely hypothetical in light of the lack of evidence and specificity in the medical statements.

Insomniacs may read the full opinion at http://www.ca6.uscourts.gov/opinions.pdf/09a0712n-06.pdf.

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.

DOL Issues FMLA Opinion Letter Formally Killing 1995 Two-Day Rule for Employees to Give Notice of Need for FMLA Leave.

Yesterday, in Letter Opinion FMLA2009-1-A (1/6/09), the Department of Labor published on its website an Administrator Letter Opinion which formally withdrew Letter Opinion FMLA-101 from January 1999 which barred employer attendance policies that required employees taking intermittent FMLA leave to report within one hour after the start of their shift. The requesting employer complained that the 1999 Letter Opinion prevented employers from “applying internal call-in policies, disciplining employees under the no call/no show policies or disciplining employees who call in late, as long as the employees provide notice within two business days that the leave FMLA-qualifying, regardless of whether they could have practicably provided notice sooner.”

The FMLA itself requires employees to provide “such notice as is practicable” when the need for leave is not foreseeable 30 days in advance. However, the 1995 regulations essentially interpreted “as soon as practicable” to mean within two business days. This interpretation was formalized in the 1999 Letter Opinion. The DOL noted that the FMLA regulations were substantially revised in November 2008 and became final on January 16, 2009 because the “one to two business days time frame set forth in the 1995 regulations had been misinterpreted as permitting employees to business days from learning of their need for leave to provide notice to their employers regardless of whether it would have been practicable to provide notice more quickly.” In the Notice of Proposed Rulemaking, the DOL explained the proposed rule change because it “expected that it will be practicable for the employee to provide notice of the need for leave either the same day (if the employee becomes aware of the need for leaving during work hours) or the next business day (if the employee becomes aware of the need for leave after work hours.)” Thus, “absent unusual circumstances, employees may be required to follow established call-in procedures (except one that imposes amore stringent timing requirement than the regulations provide) and failure to properly notify employers of absences may cause a delay or denial of FMLA protection.”

In particular, “[i]t generally should be practicable for the employee to provide notice of leave that is unforeseeable within the time prescribed by the employer’s usual and customary notice requirements applicable to such leave. . . . In both situations, employees must comply with their employers’ usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.”

The Department recognizes that call-in procedures are routinely enforced in the workplace and are critical to an employer’s ability to ensure appropriate staffing levels. Such procedures frequently specify both when and to whom an employee is required to report an absence. The Department believes that employers should be able to enforce non-discriminatory call-in procedures, except where an employer’s call-in procedures are more stringent than the timing for FMLA notice . . . . In that situation, the employer may not enforce the more stringent timing requirement of its internal policy. Additionally, where unusual circumstances prevent an employee seeking FMLA-protected leave from complying with the procedures, the employee will be entitled to FMLA-protected leave so long as the employee complies with the policy as soon as he or she can practicably do so.

Therefore, “where an employer’s usual and customary notice and procedural requirements for requesting leave are consistent with what is practicable given the particular circumstances of the employee’s need for leave, the employer’s notice requirements can be enforced. . . . Thus, . . . [if] an employer policy require[es] employees to call in one hour prior to their shift to report absences and an employee who is absent on Tuesday and Wednesday, but does not call in on either day and instead provides notice of his need for FMLA leave when he returns to work on Thursday, it is our opinion that unless unusual circumstances prevented the employee from providing notice consistent with the employer’s policy, the employer may deny FMLA leave for the absence. “

Insomniacs can read the full opinion letter at http://www.dol.gov/esa/whd/opinion/FMLA/2009/2009_01_06_1A_FMLA.htm.

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.