Employment Law Matters : Employment Lawyer & Attorney : Ogletree Deakins Law Firm : Labor Law, Human Resources

In an unpublished opinion, the 6th U.S. Circuit Court of Appeals has held that an employee’s appraisal score, given during a Reduction in Force (RIF) review, that was significantly lower than an annual performance review score given only 20 days earlier might support a jury’s finding that the true reason for the employee’s layoff was her requested FMLA leave. Cutcher v. Kmart Corporation, 6th Circuit, No. 09-1145, February 1, 2010.

Susan Cutcher was initially hired by Kmart as a part-time employee in 1984, and eventually moved to a “full-time hourly associate” (FTHA) position. Kmart regular conducts performance appraisals of its employees on or around the anniversary date of their hiring. Between 2001 and 2003, Cutcher was rated as “exceptional” by her supervisor. In 2004, Cutcher’s rating dropped to “exceeds expectations” which was the second highest possible rating, with a total numerical score of 20 out of 22. On November 15, 2005, Cutcher again was rated as “exceeds expectation” with a rating of 18 out of 22.

In early November 2005, Cutcher submitted FMLA forms to her HR representative, informing the company that she would be off work for six weeks after undergoing surgery. At the same time, Cutcher completed forms for short-term disability leave, and commenced paid leave effective December 5, 2005.

On December 21, 2005, the company announced a nation-wide RIF, within which Cutcher’s location ultimately laid off six FTHAs. The RIF guidelines required each store to complete an Associate Performance Recap form for each FTHA. That form included the same categories as did the annual performance evaluation review, and considered the employee’s most recent appraisal rating in calculating the employee’s score for purposes of the RIF. The form’s instructions also required an explanation if there was a significant change in the RIF score as compared to the employee’s annual appraisal.

Although Cutcher’s pre-RIF annual evaluation was enough to avoid layoff, her performance was re-evaluated, and that score placed her close to the bottom of the rankings. On her RIF evaluation, in a “comment” section net to her name, Cutcher was noted as “Poor customer and associate relations. LOA.” The store’s manager indicated that “LOA” simply indicated that Cutcher was on a Leave of Absence at the time of the RIF evaluation, and that her layoff would be delayed until her return. Cutcher, in fact, was terminated upon her return from leave on January 23, 2006, and her position ws given to another FTHA who received a higher ranking.

Cutcher filed suit in federal court, claiming interference with, and termination in retaliation of, her FMLA leave. Although the district court granted Kmart’s motion for summary judgment, the Sixth Circuit reversed that decision, holding that the fact that there had been no prior complaints against Cutcher, and that an “LOA” note had been written next to her name created issues of material fact for the jury as to the reason for her RIF rating score.

The real issue in this case is the lack of documentation for the company’s reasons for the RIF ranking. While the company argued that Cutcher’s performance had been declining, there was no documentation evidencing a prior concern about that performance. While the individual who conducted Cutcher’s annual review in early November testified that she “often scored associates higher on annual appraisals than they deserved” because she “did not like confrontation,” she also admitted that she was not aware of any specific problems with Cutcher’s performance between the annual evaluation and the RIF ranking.

Employers must recognize that, when it comes to performance evaluation, honesty really is the best policy. Had the supervisor been more direct in her evaluation of Cutcher and documented a declining performance, such documentation would have eliminated the basis of Cutcher’s FMLA claim by supporting the company’s reason for the lower RIF ranking. Supervisors and managers should be trained to use performance evaluations as constructive feedback, and not as motivational tools or anticipatory rewards.
 

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The U.S. District Court for the Middle District of Pennsylvania recently re-visited a case on remand from the Third Circuit, and allowed an insurance company employee’s claims of FMLA interference and retaliation to go forward. Erdman v. Nationwide Insurance Co., M.D. Pa., No. 1:05-cv-0944, 1/15/10. The case is noteworthy on more than one point: first, the 3d Circuit remanded the case on a finding that the employee’s hours worked at home might be counted toward the 1250 minimum hours needed to be eligible for FMLA leave; second, that evidence of ongoing “antagonism” between the company and the employee might form the basis of FMLA retaliation; and finally, that a request for FMLA leave may be viewed as a “protected activity” under Pennsylvania’s Human Relations Act.

Nationwide Insurance Company hired Brenda Erdman in 1980. Erdman was a full-time employee until 1998, when she began to work part-time in order to care for her daughter, who was born with Downs Syndrome. In 2002, Erdman’s request for a 4-day workweek schedule was granted. However, Erdman regularly worked extra hours from home, for which her supervisor consistently authorized payment, allowing Erdman to exercise “comp” time based upon those hours. In 2002, Erdman began to report to a new supervisor, and asked that person whether continued comp time would be allowed. Although there was no specific response, the supervisor made no initial objection to Erdman’s continued use of comp time. However, in September 2002, that supervisor admonished Erdman on a number of performance issues, and then told her that she could no longer use extra hours as “comp” time.

In February 2003, Nationwide informed Erdman that her part-time position was being eliminated, and offered her a full-time job, which Erdman accepted. In April 2003, Erdman submitted paperwork asking for FMLA leave for the month of August, which she needed to prepare her daughter for school. Nationwide fired Erdman on May 9, 2003, stating that it was doing so for prior workplace behavioral issues. Erdman filed a lawsuit against Nationwide, including claims under the FMLA and of the Pennsylvania Human Relations Act. In dismissing the case, the lower court initially granted summary judgment in favor of the company, holding that Erdman had not worked the necessary 1250 hours to qualify for FMLA leave. Erdman appealed.

1. Hours worked at home might count toward 1250 hour requirement.
Last year, the 3d U.S. Circuit Court of Appeals addressed an issue of first impression for that court: whether Erdman’s of-site work hours could be counted toward the number of hours needed to qualify for leave under the FMLA. The Court decided that the issue was a question of fact, because the FMLA counts all work hours that an employer “knows or has reason to believe” are being worked by the employee. The Third Circuit held that a reasonable jury could conclude that Nationwide had constructive notice of the fact that Erdman had worked from home and, therefore, could find that she had worked the requisite number of hours to qualify for FMLA leave. The case was remanded back to the district court following that determination.

2. Ongoing antagonism supports FMLA retaliation claim
On remand, the district court specifically discussed Erdman’s FMLA retaliation claim, and determined that Erdman had provided sufficient evidence to create an issue of fact as to whether “ongoing antagonism” - including monitoring personal calls, misapplying company policies, and providing inconsistent reasons for the termination - to establish a causal link between her FMLA request and her firing. According to the court, those actions could allow a trier of fact to discredit the company’s contention that “incidents of inappropriate workplace behavior” prompted it to terminate Erdman’s employment.

3. FMLA can be “protected activity” under state law
To establish a prima facie case of retaliation under the Pennsylvania Human Relations Act (PHRA), Erdman must show that she “engaged in a protected activity” for which an adverse action was taken. In this case, Erdman claimed that the protected activity was her request for FMLA leave. She pointed out that the PHRA prohibits sex-based discrimination, and one basis of the FMLA as stated by Congress is to “expressly delineate how sexual/gender discrimination can occur in caretaker roles and how the purpose of the FMLA is to minimize employment discrimination based on sex.” Here, the district court predicted that, although Pennsylvania courts have not yet addressed the issue, the Pennsylvania Supreme Court would find that an FMLA request qualifies as a protected activity under the PHRA, and therefore denied Nationwide’s motion for summary judgment on the PHRA retaliation claim.

This case is one which employers should review and understand before taking an adverse employment action against any employee who is on FMLA leave or who has requested such a leave. While employers are entitled to impose disciplinary actions based upon violation of company policies and procedures, such actions cannot be based upon an employee’s FMLA leave. Importantly, an employee’s FMLA-related absences or intermittent-leave schedule does not provide a sufficient legal basis for disciplinary action against that employee.
 

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The Family and Medical Leave Act prohibits employers from discriminating against employees who have taken leave under that Act. However, the 7th U.S. Circuit Court of Appeals has affirmed summary judgment in favor of an employer who terminated an individual for excessive absenteeism and performance issues that developed prior to that employee’s request for FMLA leave, even though her termination occurred during that protected leave. Long v. Teachers’ Retirement System of Illinois, 7th Cir., No. 08-3094, Oct. 23, 2009.

Julie Stephens Long was employed by the Teachers’ Retirement System of the State of Illinois (TRS) from 1985 until her termination in 2006. Starting in 2000, Long worked in TRS’ payroll department, where she had responsibilities that included enrolling members in an electronic fund transfer (EFT) program, entering information into a database, and verifying bank routing and account numbers. She reported directly to TRS’ Payroll Insurance Manager (Branham). While Long’s initial performance in Payroll was good, both her absences and her work errors increased over time. In June of 2005, Long missed 25% of her scheduled work days; this rose to 40% during the following month. In addition, Long failed to train employees from other departments on the EFT process, in spite of multiple directives from Branham to do so.

On July 26, 2005, Branham met with Long to inform her that because of her frequent absences, he planned to withdraw his nomination of her for a promotion. In September, Branham traced several errors in the EFT system to Long. He then met with Long to discuss her errors, her failure to conduct the requested training sessions, and the effect of her increased absences on co-worker morale. He summarized those issues in a memo dated September 20, 2005.

On September 26, Long applied for FMLA leave for medial epicondylitis (“tennis elbow”). After the leave was granted, Long informed TRS that her September absences were related to that condition. She then modified her leave request to ask for intermittent leave for treatment of ovarian cysts. She took six days off in October and eight days in November under that leave. However, she also was absent on nine days in December 2005 and five in January 2006 for non-FMLA reasons. Branham’s frustration with Long increased to the point where he met with TRS’ HR manager (Larkin) and a Deputy Director of its Benefits Department (Sherman) and recommended that Long be fired. Larkin then undertook a full review of Long’s performance evaluations, co-worker and TRS member complaints, and comments from both Branham and Sherman, and then recommended to TRS’ Executive Director (Bauman) that Long’s employment be terminated. Bauman had no knowledge of Long’s FMLA leave when he made the final decision to fire her.

Long filed suit against TRS, claiming violation of the FMLA. While TRS did not dispute the fact that Long engaged in protected activity when she took the FMLA leave, it argued that its decision to fire her was based on a number of factors, and not on any retaliatory animus. The district court granted summary judgment in favor of TRS, and decision was upheld by the 7th Circuit on appeal.

Long’s lawsuit centered around the claim that Branham was angry about her absences, and that he unduly influenced the decision to fire her on that basis. However, the Court noted that Long had not applied for leave prior to the documented disciplinary meeting with Branham on September 20, and that Branham already had documented the fact that Long’s absences were negatively affecting the performance of her group prior to Long’s request for leave. Therefore, any comments by Branham regarding Long’s pre-FMLA leave absences could not be used as evidence of FMLA retaliation on Branham’s part. Further, the Court pointed to Larkin’s independent investigation, in which she reviewed not only Branham’s comments, but information from others as well. The decision to fire Long ultimately was made by Bauman, who relied on multiple sources of information, and was unaware of Long’s FMLA leave.

The critical issues in this matter are ones of which employers should be aware: (1) Branham’s documentation of his September meeting with Long showed that there were performance concerns prior to Long’s request for FMLA leave; (2) the multiple sources of information used in the termination investigation supported TRS’ argument that Branham’s concerns about Long were not the sole basis for TRS’ decision; and (3) the independent deliberation of the ultimate decision-maker was evidence that Branham was not the deciding factor in the adverse action against Long. Companies that follow this model of “documentation/multiple sources of information/independent decision-making” are far more likely to be successful in avoiding liability under the FMLA.
 

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On October 28, 2009, President Obama signed the National Defense Authorization Act (NDAA), which includes provisions that expand the military leave entitlements of the Family and Medical Leave Act (FMLA) by expanding both the “qualifying exigency” leave and military caregiver leave that became effective in January 2008.

Prior to these new amendments, an eligible employee whose spouse, son, daughter or parent was on active duty or called to active duty in support of a contingency operation as a member of the National Guard or Reserves was entitled to “qualifying exigency” leave. The new law extends qualifying exigency leave to an eligible employee whose spouse, son, daughter, or parent is a member of any branch of the military, including the National Guard or Reserves, and who was deployed or called to active duty in a foreign country. In addition to extending qualifying exigency leave to eligible family members of a member of any branch of the Armed Forces, the new law eliminates the requirement that the active duty be in support of a contingency operation.

The new law did not change the length of leave entitlement under the FMLA. A covered employer still must allow an eligible employee up to a total of 12 workweeks of unpaid leave during the normal 12-month period established by the employer for FMLA leave. The reasons for which an eligible employee can take qualifying exigency leave also are unchanged. Such leave still can be taken for short-notice deployment, military events, and related activities such as official ceremonies, financial and legal arrangements, counseling, rest and recuperation, post-deployment activities, and additional activities to address other events which arise out of the covered military member’s active duty or call to active duty status.

The new amendments expand military caregiver leave in two ways: First, the new law extends military caregiver leave to eligible family members of veterans who were members of any branch of the military at any time within five years of receiving the medical treatment that triggers the need for military caregiver leave. Therefore, employees who are family members of a current service member or veteran undergoing medical treatment, recuperation, or therapy for a serious injury or illness incurred in the line of duty may take up to six months of caregiver leave, so long as the veteran was a member of the military within five years of receiving such treatment. Employers do not have the option of using the typical FMLA calendar-year method for military caregiver leave – the 12-month period begins when the employee begins using caregiver leave.

Second, the new amendment expands the definition of a “serious injury or illness” for purposes of determining eligibility for military caregiver leave. It has been expanded to include the aggravation of existing or pre-existing injuries to an active duty service member in the Armed Forces. Thus, employees may now take military caregiver leave for a family member whose pre-existing injury or illness was aggravated while on active duty. For veterans, the definition allows the leave whether the injury or illness manifested itself before or after the Armed Forces member became a veteran.

The NDAA did not specify the date on which these amendments to the family military leave entitlements become effective. Thus, the presumption is that these changes took effect when President Obama signed the NDAA on October 28. It is anticipated that the U.S. Department of Labor will issue guidance to address the changes in the near future.
 

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The Family and Medical Leave Act (FMLA) was designed, in large part, to protect the medical needs of employees with serious health conditions. The Department of Labor regulations, which provide guidance to both courts and companies, were revised on January 1, 2009, but continue to require that an employee provide notice of the need for leave associated with a serious medical condition. In a recent case, decided under the “old” version of the DOL regulation, the 8th U.S. Circuit Court of Appeals upheld summary judgment in favor of an employer who had demoted an employee after the employee missed work for a claimed “nervous breakdown.” Talmadge Scobey v. Nucor Steel-Arkansas, 8th Cir., No. 08-1192, Aug. 25, 2009. In that case, an individual sued his employer for interference with and retaliation for exercise of his FMLA rights, claiming that he was demoted because of his attempt to obtain leave under that Act.

Talmadge Scobey began working at Nucor Steel in 1998. Until 2005, Scobey worked as a “ladle man” in Nucor’s Hickman, Arkansas facility. The position, which paid over $80,000, was dangerous and demanding, and included handling thousands of pounds of molten steel.

In February, 2005, Scobey accumulated two unexcused absences. Under the company’s attendance policy, an employee could be terminated after four unexcused absences. On Saturday, April 9, 2005, Scobey called his supervisor, ostensibly to ask for time off work for the funeral of his ex-father-in-law, but was unable to reach that supervisor. Scobey did not appear for work on April 10. On April 11, he called and told his supervisor that he had “suffered a nervous breakdown,” and was “through with” the company, and then hung up with no further explanation. During that call, Scobey’s speech was slurred and his supervisor “had the impression” that Scobey was intoxicated. Scobey did not show up for work on April 12 or 13. On April 14, he called Blakemore, a supervisor and a friend of Scobey’s, and told him that he couldn’t remember the past four days and “wanted some help.” On April 15, Scobey visited a doctor, who diagnosed him with hypertension. On April 20, Scobey was assessed by Nucor’s EAP provider, at the company’s suggestion, and entered an outpatient alcohol treatment program, which he left before completing.

On May 20, Scobey met with Nucor’s plant manager who, rather than terminate Scobey’s employment, suspended Scobey for three days and demoted him to an entry-level position. After two weeks in that position, Scobey stopped coming to work, and subsequently sued the company for violation of the FMLA. The district court dismissed both claims on summary judgment, and the dismissal was upheld by the Eighth Circuit on appeal.

In order to request leave under the FMLA, an employee does not have to reference the Act. However, under both the old and the recently amended regulations, the employee must do more than merely call in sick to trigger an employer’s duty to act under the FMLA. An employee has an affirmative duty to indicate both the need for and the reason for the leave, and should let the employer know how long the anticipated leave might be. Scobey’s case turned on the issue of whether he provided to Nucor a sufficient and timely notice of a serious health condition for his absences from April 10-13. According to the Eighth Circuit, he did not, and was therefore estopped from claiming violation of the FMLA. The Court made this decision based primarily on the fact that Scobey’s notice to Nucor did not include sufficient information to adequately apprise the company that Scobey’s condition might be protected by the FMLA.

In his April 11 call, he informed his supervisor that he “was through” with the company – notice of quitting, not notice of the need for medical leave. He was intoxicated enough to forget the next four days, and although absences for the treatment of alcoholism are protected under the FMLA, absences caused by the use of alcohol are not. Scobey argued that his inebriated state was a manifestation of underlying depression, which should have been recognized by the company. The Court found, however, that based upon Scobey’s apparent intoxication, his prior absences, and his shifting explanations of the reason for his absence, his phone calls were not adequate to apprise Nucor that the FMLA might apply.

Having failed to provide sufficient notice to trigger the FMLA, Scobey was unable to support his FMLA claim. However, employers should not read this case as blanket permission to ignore incomplete or non-specific information regarding an employee’s health condition. Had the facts been slightly different, and had Scobey suffered from depression in the past of which Nucor had been aware, or had Scobey previously provided doctors’ notes regarding the status of an ongoing depressive episode, a question of fact may have existed regarding whether Scobey’s calls constituted adequate notice of the need for FMLA leave. Employers must recognize that these cases are very fact specific, and should review such situations carefully before making a decision to refuse a request for FMLA leave.
 

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An employee who takes leave under the Family and Medical Leave Act (FMLA) is entitled - in most instances - to be reinstated to his or her former position, with equivalent pay and benefits, upon expiration of that leave. However, an employee is not entitled to a position or other benefit of employment to which he would not otherwise be entitled simply because he is on FMLA leave. It is on that basis that the 7th U.S. Circuit Court of Appeals upheld the termination of a company’s Vice President of Information Technology, even though the termination occurred while that individual was on an FMLA leave. Daugherty v. Wabash Center, Inc., 7th Cir., No. 08-3104, August 14, 2009.

During his work history with Wabash, a not-for-profit agency serving individuals with developmental disabilities, Michael Daugherty worked his way from maintenance assistant to VP of the agency’s IT group. In 2006, Daugherty became involved in “e-mail wars” with a number of Wabash employees. During the same time period, he was accused of poor management techniques by the employees of an affiliated company for whom he acted as Chief Information Officer. At a meeting on June 19, Daugherty received a written reprimand for both issues. Daugherty agreed with the substance of the discipline and volunteered to draft a corrective action plan for himself. Daugherty was then told that permission for his upcoming month-long vacation was being revoked because of pressing company business. At that, Daugherty left the meeting and went to visit his doctor. He returned to Wabash to request FMLA leave, providing a note from his doctor that he was to be “off work for 2 weeks due to medical illness.” Although his FMLA paperwork only stated that he had been “placed under a tremendous amount of stress” at work, Daugherty was granted two weeks of leave under the FMLA.

During Daugherty’s absence, Wabash discovered that Daugherty had used the company’s credit card without authorization to order items that were delivered to his home. In addition, on June 30, Wabash’s VP of Finance discovered that certain e-mail correspondence with Daugherty was missing from his computer. Based upon suspicions that Daugherty was remotely accessing (and possibly sabotaging) the company’s computer system, outside experts were brought in to investigate. Upon initial investigation, it was determined that Daugherty had failed to back-up servers, and that the company’s IT infrastructure (Daugherty’s responsibility) was deficient.

Upon his return on July 3, Daugherty informed the company that he was taking additional medical leave. At that point, management asked him to sign a new corrective action plan and to return his keys and passwords. Daugherty refused, saying that such action would be “working,” and he was not to be working during leave. He also refused subsequent requests for the keys and information.

On July 31, a forensic expert found that Daugherty had deleted over 5,000 files from his computer on June 19, the day of the original disciplinary meeting. On August 9, Wabash terminated Daugherty’s employment, citing the missing files, violation of purchasing protocols, poor IT practices, failure to turn over keys, and poor management style. Daugherty filed suit in September 2006, claiming that his termination was in violation of the FMLA. The district court granted summary judgment in favor of the company. That decision was affirmed on appeal by the Seventh Circuit.

Daugherty argued that Wabash was required to reinstate him after his FMLA leave and that he could not be fired before that reinstatement. However, FMLA only entitles an employee to the same position to which he would have been entitled had he not gone on leave. Because the information discovered by Wabash during Daugherty’s leave would have justified his termination had the leave not been taken, there was no reason to wait until Daugherty’s return in order to fire him. Because Daugherty acknowledged the fact that he had violated company policies, there was no disputed fact that his actions factually supported the termination.

Once again, a company’s complete investigation – here, involving an outside consultant - and full and contemporaneous documentation of the results form the basis of a successful legal defense. Employers should recognize that in this atmosphere of layoffs, restructurings, and increased litigation, those two factors have continued to be the critical elements of an effective defense to an employee’s claims of discrimination and illegal treatment.
www.employmentlawmatters.net/uploads/file/FMLA - Daugherty.pdf

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The Family and Medical Leave Act (FMLA) entitles eligible employees to 12 weeks of leave during a 12-month period under certain circumstances which include a “serious medical condition.” An employer is allowed, under the regulations associated with the FMLA, to require an employee to document his or her medical condition, and further may require the employee to submit certification of that condition from a health care provider.

Recently, the 7th U.S. Circuit Court of Appeals addressed a situation in which an employee altered her health care provider’s certification to add an impairment that had not been diagnosed by that provider. In that case, the Court upheld the lower court’s summary judgment in favor of the employer, finding that the employee’s alteration invalidated the entire application. Smith v. The Hope School, 7th Cir., No. 08-2176, March 30, 2009.

Tanum Smith worked for The Hope School from May 2005 until September 2006. In her position, Smith worked with developmentally challenged children as a one-on-one instructional aide. During 2006, Smith was injured on two separate occasions: first in April, when she was pushed to the ground by a student who then struck and kicked her, and then in June, when she was hit in the mouth, after which Smith suffered neck pain. During the following months, Hope School attempted to work with Smith to place her in a position without student contact, consistent with restrictions instituted by Smith’s doctor.

On August 22 or 23, however, Smith went the school‘s HR department to complain that her job assignment was “unsafe,” and that she was leaving until a safe assignment could be found for her. At that point, Smith was informed that if she failed to appear for work on August 25 as scheduled, her absence would be considered as “unexcused,” putting her job in jeopardy. However, on August 24, Smith left a phone message, asking for FMLA leave.

Smith then was provided with FMLA paperwork, and was told to complete it as soon as possible. Smith took the paperwork to her physician, who completed it that same day, although Smith did not pick up the forms until September 6. At that point, Smith added to her doctor’s description of her condition the words “plus previous depression,” in spite of the fact that no doctor had ever diagnosed or treated Smith for that condition. In addition, she submitted a second form that her doctor had not filled out or signed, adding more information about her “depression.” She then faxed the altered paperwork to the school. Because the school suspected that the certification had been altered, the school’s HR department called the physician’s office to ask about the form. Upon receiving confirmation that the form had been changed, the school contacted the Department of Labor, who advised them that they could deny Smith’s request for leave, which they did. Smith was then disciplined for her absences from work, and ultimately was fired.

Smith then filed a lawsuit against Hope School, alleging that the school had interfered with her FMLA rights and had retaliated against her for requesting the leave. The lower court granted summary judgment in favor of the school, finding that Smith’s alteration of the provider’s certification invalidated the FMLA application, and that the school’s decision to terminate Smith’s employment for unexcused absences was appropriate in that circumstance. That decision was upheld on appeal by the Seventh Circuit.

FMLA leave may be denied to an employee who attempts to receive such leave fraudulently. The Smith decision is of note, however, because Smith actually had a valid basis for FMLA leave without the “plus previous depression” language. Therefore, the question reviewed and decided by the Seventh Circuit was whether an employer can deny FMLA leave to which an employee might otherwise be entitled because that person submitted false paperwork. According to the court, it can.

While this decision is one of which employers should be aware, employers also should be advised that the court emphasized the limited nature of the ruling, pointing out the “especially strong inference” that Smith had intentionally submitted false paperwork. The court specifically stated that it did not reach the question of whether more insignificant alterations, such as “correcting a typographical error or correcting or adding to a portion of the form with the knowledge and approval of a treating physician,” would result in a similar ruling. This comment by the court adds a level of difficulty for employers, who now will have to review such circumstances on a case-by-case basis to determine whether each circumstance includes the “especially strong inference” of falsity evident in Smith’s case.

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The Family and Medical Leave Act allows individuals to take unpaid leave from work and requires that in most cases, such individuals be returned to their prior position or an equivalent one upon return from the leave. The 7th U.S. Circuit Court of Appeals has clarified that requirement, and has held that when an employer discovers information during an employee’s FMLA leave that would otherwise form the basis of a valid termination, the FMLA does not act as a bar to such adverse employment action.  Cracco v. Vitran Express, Inc., 7th Cir., No 07-3827, March 17, 2009.

Kevin Cracco was employed by Vitran, a trucking company, as a Service Center Manager in Markham, Illinois. In October 2006, Cracco requested and was granted a medical leave under the FMLA for a serious health condition that rendered him temporarily unable to work. Vitran then hired temporary employees to cover Cracco’s responsibilities during his absence. These employees discovered several problems that had been created during Cracco’s tenure, including undelivered or damaged freight, unresolved customer complaints, and incorrectly handled overtime payments.

An investigation was undertaken, which resulted in a finding that on multiple occasions, Cracco had deliberately disguised late and damaged deliveries, and had made other work-related mistakes. On November 13, 2006, the day that Cracco returned from his FMLA leave, Vitran terminated his employment.

Cracco filed a lawsuit, alleging that Vitran interfered with his FMLA rights by failing to reinstate him to his position and retaliated against him by firing him. The district court granted summary judgment in favor of Vitran, and the decision was upheld on appeal. In addressing Cracco’s claims, the Seventh Circuit found that the timing of Cracco’s termination, standing alone, could not establish a causal link between Cracco’s FMLA leave and his termination. Instead, the Court held that “the fact that the leave permitted the employer to discover the problems can not logically be a bar to the employer’s ability to fire the deficient employee.” Otherwise, an employer could be forced to reinstate and continue to employ a substandard employee, or risk liability under the FMLA.

Additionally, Cracco argued that his prior positive performance history supported his claim of FMLA violations. The Court disagreed, stating that the existence of such positive reviews did not prohibit Vitran from relying on newly discovered evidence of wrongdoing in its decision to terminate Cracco’s employment. In fact, because Cracco was unable to show that he met Vitran’s legitimate job expectations at the time of his termination, he was unable to set forth a prima facie case of FMLA retaliation, and dismissal of the case was appropriate.

This case is important, because employers often feel as if the FMLA’s reinstatement requirement insulates employees from discipline or termination upon return from medical leave. This case indicates that an employee’s right to return to work after FMLA leave is not unlimited. The fact that an FMLA leave permits the employer to discover problems or policy violations does not bar employer’s ability to fire a deficient employee. Therefore, an employer’s ability to prove that it would have made the same decision had the employee not exercised his rights under the FMLA can assist in avoiding legal liability under that Act.
 

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The Family and Medical Leave Act (FMLA) generally provides 12 weeks of unpaid leave during a 12-month period to an eligible employee suffering from a serious health condition. An employee who takes FMLA leave is entitled to be restored to the job he or she held at the time the leave commenced, or to an equivalent position. If, however, the employee is unable to return to work at the end of that 12-week period, he or she is no longer protected by the FMLA. Roberts v. The Health Association, 2d Circ., No. 07-3553-cv, February 3, 2009.

Laura Roberts was terminated from her employment with The Health Association (THA) in June 2004. At the time of her termination, Roberts had been out of work for approximately 10 weeks, on an approved FMLA leave. However, at the time of Roberts’ discharge, her doctor had opined that she would be unable to work until at least July 19, 2004, which would have come after the end of her 12-week leave.

Roberts sued her employer, alleging interference with her rights under the FMLA, and claiming retaliation for her exercise of those rights. The district court dismissed the claims, and Roberts appealed to the 2d U.S. Circuit Court of Appeals. The Second Circuit upheld the lower court’s decision on the basis that Roberts could not have returned to her original position at the end of her 12-week leave, based upon her doctor’s opinion. Therefore, the Court held, Roberts was not prejudiced by the early termination. In addition, THA actually paid Roberts for 12 weeks worth of health benefits, which is all to which she would have been entitled had she completed the 12 weeks of leave before being discharged.

In addition, Roberts was unable to show that the circumstances surrounding her termination created an inference of retaliation. In fact, the evidence showed that Roberts was made aware that her job was in jeopardy prior to her formal request for FMLA leave. That fact precluded Roberts from successfully alleging that her termination was based upon a protected FMLA leave request.

In addition to her FMLA claims, Roberts argued that THA violated the Americans with Disabilities Act when the company fired her because it regarded her as disabled. In order to succeed on that claim, Roberts would have to prove that THA regarded her as substantially limited in a major life activity. Where, as in this case, the “major life activity” at issue is working, an employee is required to show that the employer believes the individual to be suffering from a condition that prevents her from working in a broad range of jobs, not simply the job she previously held. Because Roberts did not provide such evidence regarding THA’s actions, the Second Circuit concluded that the lower court’s decision to dismiss the ADA claim was correct, as well.

The FMLA is one of the most administratively difficult federal anti-discrimination laws, partly because of its complexity, and partly because of its overlap with other federal statutes, as in this case. It is essential that an employer understand both its obligations under the FMLA, and the rights that can be appropriately exercised by an employer in dealing with individual employees with medical impairments and serious health conditions. In this case, the employer’s record keeping (which documented the early conversations with Roberts informing that her job was in jeopardy), along with the company’s willingness to treat Roberts fairly by allowing her to collect the 12 weeks of benefits to which she would have been entitled under the FMLA, supported the court’s decision that the company’s actions had a legitimate business basis, and did not violate federal law.

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The Family and Medical leave Act allows “eligible” employees to take unpaid leave for reasons articulated in that act, including leave of up to 12 workweeks during a 12-month period for the birth or adoption of a child. The act defines “eligible employee” as one who has been employed for at least 12 months and who has worked for the employer for at least 1250 hours during the previous 12-month period. The FMLA specifically makes it unlawful for an employer to “deny the exercise of or the attempt to exercise, any right provided under the FMLA.”

One federal district court recently addressed the issue of whether an employee is barred from proceeding with an FMLA claim when he had been employed for less than 12 months, but requested FMLA leave that would begin more than a year after his employment had begun. Reynolds v. Inter-Indus. Conf. on Auto Collision Repair, N.D. Ill., No. 08-2115, Jan. 23, 2009.

In that case, Christopher Reynolds asked for FMLA leave to care for his newborn son, who was born prematurely and had suffered medical complications. Reynolds began employment with Inter-Industry Conference on Auto Collision Repair (a/k/a/I-CAR) on August 25, 2005. His son was born on August 8, 2006. Reynolds promptly notified his employer of the child’s birth and medical problems, and was granted immediate time off work because of the emergency nature of the situation. On or about August 16, Reynolds returned to work and notified the company’s HR department that his son would remain hospitalized for three months. While the child’s mother would be with the baby during those months, Reynolds asked for his own FMLA leave to begin in November when the baby left the hospital, so that he could assist in his family’s care at that time. At the end of the business day, Reynolds received a phone call from his supervisor and the HR director, terminating his employment for reasons, they said, “related to his skill set.” At the time of his termination, Reynolds had worked for the company for slightly less than one year.

Reynolds then filed a lawsuit alleging, in part, that the company violated the FMLA by firing him immediately after his request for leave. The company filed a motion to dismiss that claim, arguing that Reynolds was not an “eligible employee” (because he had not worked there for 12 months at the time of his request for leave) and, therefore, could not assert a cause of action under the FMLA.

The district court denied the motion to dismiss, allowing the case to go forward. It based that decision on the provision of the FMLA which states that an employer is entitled to 30 days of notice in instances where a requested leave is foreseeable. According to the court, it would be illogical to interpret the notice requirement in a way that would require employees to disclose requests for leave as a convenience to the employer, but then would allow that same employer to retaliate against the employee, based simply on the fact that the employee was just short of becoming “eligible” under the FMLA. The court’s decision means that under the FMLA, an employer may not terminate an “ineligible” employee for requesting foreseeable future leave for which that employee will be eligible and to which he or she will be entitled at the time the leave is to begin.

While this case is a district court decision, and therefore is appealable, the opinion is instructive and is an indication of the fact that courts are recognizing that one purpose in enacting the FMLA was to “balance the demands of the workplace and the needs of families.” Employers should understand that in light of this, courts that address this issue in the future are likely to interpret the FMLA consistently with this opinion.

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The 8th U.S. Circuit Court of Appeals recently upheld summary judgment in favor of an employer who discharged an employee for failing to follow a company policy requiring employees to call in each day during an extended absence. This ruling is notable because the employee previously had been granted leave under the FMLA. Bacon v. Hennepin County Medical Center, 8th Cir., No. 08-1237, Dec. 22, 2008.

Melondy Bacon was employed as a janitor by Hennepin County Medical Center (HCMC). In the summer of 2003, Bacon began periodically to break out in hives while at work. On July 8, 2004, Bacon obtained FMLA paperwork from HCMC, and had the paperwork completed by her physician. According to the doctor’s report, Bacon needed to take intermittent leave for a chronic skin irritation caused by chemicals at work. While the doctor was unable to specify the duration of the necessary intermittent leave, she predicted that Bacon would need treatment approximately once each month, and that 24 hours would be needed for recovery from such treatment. It is undisputed that Bacon’s medical documentation neither specified the length of time during which she would need intermittent leave nor provided a return-to-work date. Bacon submitted the paperwork to her supervisor, telling him that she was going to be on extended leave until she could get an appointment with an allergist.

During the following month, Bacon called HCMC each day on which she was scheduled to work, reporting that she had not yet seen the allergist, and that she would be absent on that particular day. Her absences were recorded by HCMC as FMLA-related. Bacon called in pursuant to HCMC’s policy which requires an employee on indefinite sick leave to call in every day to report an absence.

On August 5, 2004, Bacon stopped calling in to report her absences. On August 11, Bacon’s employment was terminated under a provision of the applicable union contract which states that three consecutive days of absence without notice is considered to be a resignation of employment. Bacon filed for unemployment benefits, explaining that her failure to continue calling in came after she “received information on the federal guidelines for FMLA which did not require any call ins.” Bacon subsequently filed suit in federal court, claiming that HCMC interfered with her rights under the FMLA by terminating her employment.

The district court granted summary judgment in favor of HCMC, and that dismissal was affirmed on appeal to the Eighth Circuit. The Eighth Circuit specifically held that an employer who takes an adverse action against an employee who is exercising FMLA rights will not be liable if the employer can prove that it would have made the same decision had the employee not exercised those rights.

Employers should recognize that HCMC took two actions that assured its ability to successfully defend against Bacon’s claim. First, its request for FMLA leave form requires the employee to acknowledge in writing that the HR policies and the prevailing labor agreement (including the call-in procedure) extend to FMLA leave. Second, HCMC’s employee handbook includes language that provides that the FMLA “does not change the County’s leave of absence procedures” and that the “Human Resources Rules and/or union contracts continue to apply.” Because HCMC had written policies that were consistently enforced, it was therefore able to show that the call-in procedure applied to all extended absences whether or not FMLA-related, and was able to prove definitely that it did not single out Bacon for disciplinary action because she was on FMLA leave.
 

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A judge for the United States District Court for the Western District of Washington recently ruled that a Seattle apprenticeship program was the “joint-employer” of a plumbing apprentice for purposes of coverage under the FMLA. Frees v. UA Local 32 Plumbers & Steamfitters, W.D. Wash., No. C07-1469 (11/21/08).

Frees, a plumbing apprentice, was part of an apprenticeship program operated by the Seattle Area Plumbing and Pipefitting Industry Journeyman and Apprentice Training Committee (“JATC”). The program required Frees to complete 10,000 hours of “reasonably continuous employment” and required 216 hours of class time per year. Frees entered the program in 2003 and had worked with 5 different plumbing contractors until his discharge in 2006.

In May 2006, Frees received a call from his wife’s physician ordering emergency testing for his wife to determine whether she was suffering from multiple sclerosis. Frees informed his instructor, and left class early that day. He also missed three subsequent days of work while attending to his wife. Frees was dismissed from the program that same month for poor attendance.

Frees filed suit against JATC and the UA Local 32 Plumbers & Steamfitters, alleging violations of the FMLA. The Union was dismissed on summary judgment on grounds that it was not Frees’ employer. JATC also moved for summary judgment on the grounds that it was not Frees’ “employer” within the meaning of the FMLA.

Under DOL regulations, two or more separate corporations or entities may be treated as a single employer for purposes of counting employees if they have a joint employment relationship. JATC contended that the joint-employer doctrine did not apply, because JATC is an educational or academic institution. JATC argued that the FMLA was designed to protect those in the workplace, as opposed to students. JATC argued that the FMLA should not be interpreted to inhibit an educational institution from taking disciplinary action, including dismissal, against students for missing classes, failing to complete assignments or taking examinations due to family or medical needs.

The court, in finding against JATC, declined to shield academic institutions, solely based upon their “educational” designation. The court found that although JATC identifies itself as an educational institution, the standards for apprenticeship fit more appropriately under an “employer” definition. Under the standards of the program, a commercial plumbing apprentice is required to average 38.5 hours per week working, while only attending class approximately 4.2 hours per week. Furthermore, the JATC standards give the JATC coordinator sole authority to make the apprentices’ assignments, dictate the quantity of assignments, outline wages, and control the amount of time the apprentices remain in a certain rotation. Based upon the factors as a whole, JATC was found to have sufficient control over the apprentices to be considered an “employer” for purposes of the FMLA. The court denied summary judgment, finding a joint-employment relationship existed.
 

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U.S. Circuit Court of Appeals found that an employer’s failure to rehire an individual after layoff, based on the employee’s opiate-based prescription medication, did not violate the ADA. However, in an example of the overlap between the ADA and the FMLA, the court allowed the employee’s FMLA retaliation claim to go forward to trial, based upon a manager’s statements related to the same employee’s medical leave. Daugherty v. Sajar Plastics, Inc., No. 05-02787 (6^th Circ. Oct. 16, 2008).  

James Daugherty worked for Sajar Plastics as a maintenance technician from 1991 until his layoff on January 5, 2004. In that capacity, he maintained buildings and equipment, often using hand and power tools, and operated certain heavy machinery including forklifts and overhead cranes.

In 2000 and 2001, Daugherty suffered flare ups of a previous back injury. To manage pain associated with those flare ups, Daugherty was prescribed increasing doses of Oxycontin and Duragesic, both opiate-based medications. Daugherty also requested and was granted intermittent FMLA leave during period of increased pain. In November 2003, Daugherty requested a lengthy period of such leave, and provided a doctor’s note that he would be able to return to work in January 2004. Daugherty claims that Sajar’s HR Director (Alexander) told him at that time that if he took FMLA leave for that period, “there would not be a job waiting for [him] when [he] returned.” Alexander disputes that claim.

Soon after Daugherty went on leave, Sajar began a round of lay offs. Because Dougherty was the least senior maintenance worker, it was decided that he would be laid off upon his return from leave. However, within a month, Sajar experienced an increase in business and decided to recall Daugherty to work. Alexander made the re-hire contingent upon passing a physical examination conducted by Dr. Altemus, who was routinely used by the company for pre-employment physicals. While Dr. Altemus found Dougherty physically able to perform the functions of the position, he expressed concerns about Dougherty’s medications, stating that “the analgesics may mask the symptoms of re-injury,” and “may cause am impairment of perception or judgment which might lead to an injury to himself or others.” Sajar then called Daugherty and told him that if he could provide documentation regarding a “reduction in his medications,” the company would consider re-employing him. Dougherty failed to provide that documentation, even after repeated requests, and his employment ultimately was terminated.

Daugherty then filed a lawsuit alleging that Sajar regarded him as disabled and that it violated the ADA when it failed to rehire him. He also claimed that his termination was in retaliation for his FMLA leave. The lower court granted Sajar’s motion for summary judgment on both claims, and Daugherty appealed.

On appeal, the Sixth Circuit found that Sajar’s decision regarding Daugherty’s employment did not violate the ADA. To support a regarded-as-disabled claim, a plaintiff must show that the employer regards him as unable to perform a broad class or range of jobs. Dr. Altemus’ viewpoint regarding Dougherty’s medication restricted Dougherty only from the maintenance technician positions at Sajar and, therefore, was not sufficient to support his ADA regarded-as-disabled claim. However, the court reversed the lower court’s dismissal of Dougherty’s FMLA claim. The court held that Dougherty presented “direct evidence” of discrimination in the form of Alexander’s threat that the FMLA leave would affect Dougherty’s continued employment, and that a jury could find a “clear connection” between the FMLA leave and Sajar’s ultimate decision to terminate Dougherty’s employment.

As the number of cases filed under the “regarded as” provision of the ADA continues to increase, it is imperative for employers to be familiar with the standard of proof required to overcome that claim. In this case, the fact that the company was willing to continue to employ the individual if he was able to work with his physician to decrease the amount of his opiate-based medication indicated a perception on the part of the company that Dougherty was able to be employed in some capacity and, therefore, precluded a claim that the company was excluding Dougherty from a broad range of employment positions. In this case, the company’s effort to find a mutually beneficial resolution to the issue - while unsuccessful - had the ultimate effect of helping the company to avoid liability under the ADA.

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