FMLA INSIGHTS Rachel T. Rowley BrownWinick 666 Grand Avenue, Suite 2000 Des Moines, IA 50309-2510 Telephone: 515-242-2417 Facsimile: 515-323-8517 E-mail:

FMLA INSIGHTS

Rachel T. RowleyBrownWinick

666 Grand Avenue, Suite 2000Des Moines, IA 50309-2510

Telephone: 515-242-2417Facsimile: 515-323-8517

E-mail: [email protected]

mailto:[email protected]

Supervisor’s ill-considered email forms the basis of an

FMLA lawsuit

Shaffer v. American Medical Association (7th Cir. October 18, 2011)

FACTS:

• William Shaffer was the Director of Leadership Communications for the American Medical Association (AMA).

• In 2008, when the economic downturn was taking shape, the AMA cut internal budgets.

• When initial cutbacks were not enough, the AMA slated various staff positions for elimination.

• Shaffer’s boss indicated that it would be an “obvious choice” to eliminate the position of another employee in Shaffer’s Department because that employee’s duties had changed significantly and, in any event, the AMA had stopped work on one of his core campaigns.

Shaffer v. American Medical Association (7th Cir. October 18, 2011) (cont.)

• When Shaffer’s boss was asked on October 28 whether Shaffer should be slated for layoff, he did not believe cutting additional positions was necessary, including Shaffer’s position.

• However, Shaffer’s supervisor suddenly had a change of heart – on November 20, Shaffer asked for FMLA leave for knee replacement surgery. Four to six weeks to be exact.

• By November 30 – Shaffer’s supervisor changed his tune recommending now that Shaffer’s position be eliminated.

• Specifically in an email to his superiors he stated, “The team is already preparing for Bill’s short-term leave in January, so his departure should not have any immediate negative impact.”


COURT RULING:

• Court found:– Shaffer was eligible for FMLA leave, and that he had provided

notice of his intention to take that leave.

– Prior to that notice, there was no mention of elimination of his position; after that notice, he was targeted for termination.

– Based upon those facts, coupled with Shaffer’s supervisor’s email, the Court determined that a reasonable jury could conclude that Shaffer’s exercise of his right to take leave under the FMLA was a motivating factor in the decision to eliminate his position.


TIPS FOR EMPLOYERS:

• Supervisors should undergo training on FMLA – supervisors and manager must be cognizant that a claim of interference does not require proof of actual “intent” to interfere, but requires that plaintiff’s prove that the employer somehow denied an exercise of rights under the Act.

• Here, the supervisor’s email which specifically referenced Shaffer’s request for leave in connection with the decision to terminate him was all the Court needed to find that a reasonable jury could conclude that interference did take place.

Not Returning Employee’s Calls is Sufficient for FMLA

Retaliation Claim

Hofferica v. St. Mary Medical Center (Eastern District Pennsylvania, September 20, 2011)

FACTS:

• The plaintiff was a registered nurse who was approved for intermittent FMLA leave for an unusual medical condition that involved tinnitus, hearing loss and vertigo.

• In September 2008, she took extended FMLA leave to undergo treatment for the condition. She expected to return by November 6, 2008.

• According to the employee, during her leave, she and her husband regularly provided her direct supervisor with leave updates. However her supervisor often failed to return the calls.

• In early November, she provided a return to work certification clearing her return for November 13.


(cont.)

• She also contacted her supervisor to ask for a “modest” extension through November 13, but the supervisor again did not return the call.

• Instead, the Medical Center sent the employee a letter informing her that her employment had been terminated because she failed to return to work on November 6 when her FMLA leave allotment had been exhausted.

• Employee sued claiming, among other things that the Medical Center retaliated against her for taking FMLA leave.


(cont.)

COURT RULING:

• Supervisor’s failure to return phone calls was evidence of “an antagonistic attitude toward the employee, particularly where – as here – such refusal began after the employee initiated FMLA leave, and continued despite regular communications from the employee.”


(cont.)

TIPS FOR EMPLOYERS:

• It is imperative that employers maintain contact with employees on FMLA leave. Employers should communicate with the employee on leave at regular intervals.

• Where FMLA leave ends, employers must be prepared to analyze requests for additional leave under the parameters of the ADA.

• Don’t let supervisors off the hook – discipline if they fail to manage the situation properly and provide additional training.

Frequent Calls to Employee during FMLA Leave may

create Interference with that Leave

Terwilliger v. Howard Memorial Hospital (Western District of Arkansas, January 27, 2011)

FACTS:

• Regina Terwilliger worked for Howard Memorial Hospital for approximately two years, first in the kitchen and then in housekeeping.

• In November 2008, she submitted a request for FMLA leave for back surgery.

• After her surgery she was released to return to work without restrictions on February 12, 2009 and returned to work on February 16, 2009, having used eleven weeks of FMLA leave.

• During her recovery, her supervisor, Kim Howard contacted Terwilliger weekly to inquire when she was going to return to work.

• According to Terwilliger, during one call, she asked Howard if her job was in

jeopardy, and Howard replied that she should return to work as soon as possible.

Terwilliger v. Howard Memorial Hospital (Western District of Arkansas, January 27, 2011) (cont.)

• In addition, Terwilliger testified that the HR director, discouraged her from using FMLA leave by telling her not to tell anyone that she had informed her of her FMLA rights.

• In October and November 2008, four hospital employees had money stolen from their desks or lockers.

• In December, Hospital management placed a camera in one office area.


• On March 9, 2009, in spite of the fact that Terwilliger was not assigned to clean that particular office, she was caught on tape opening a desk drawer, looking into it, and closing it without removing anything from the drawer.

• She then was terminated, along with another housekeeping employee who was also caught on tape removing something from the desk drawer and putting it in her pocket.

• Terwilliger filed a lawsuit claiming that she was fired in retaliation for exercising her rights under the FMLA and that the hospital had interfered with her FMLA rights by pressuring her to return to work while she was on leave.


COURT’S RULING:

• Court rejected her retaliation claim.

• On her interference claim however, the Court held:

– Terwilliger had a right not to be discouraged from taking FMLA leave.

– Her supervisor’s weekly phone calls to Terwilliger may have discouraged her from fully exercising her rights under the FMLA.


TIPS FOR EMPLOYERS:

• Employers and their supervisors must not give the impression that the employee is being pressured to return to work.

• Although employers may require employees to report periodically on their status and intent to return to work, employers must not discourage employees from taking their allowed leave.

Conflicting Fitness for Duty Reports Preclude Retaliation

Claim

Degraw v. Exide Technologies

FACTS:

• Terry Degraw worked for Exide Technologies as a senior material handler at its plant in Salina, Kansas.

• According to a written job description, his job involved manually handling batteries weighing from 5 to 80 pounds, occasionally lifting batteries weighing from 80 to 120 pounds with assistance, moving and carrying pallets weighing up to 40 pounds, and continuous standing, walking, or riding a truck during a 12-hour shift.

• Degraw had a long history of back pain and injuries. As a result, Degraw sought and was granted FMLA leave beginning in June 2006. He eventually exhausted his FMLA leave, and was granted additional leave while he underwent further treatment.

• On November 27, 2006, Degraw’s chiropractor released him to return to work.

Degraw v. Exide Technologies (cont.)

• However, on December 7, 2006, Degraw saw Dr. Hanson, a physician under contract with Exide to perform examinations and determine whether employees on medical leave can return to work. Dr. Hanson recommended that Degraw avoid repetitive bending, stooping, lifting, twisting, climbing, and lifting more than 20 pounds and noted that these restrictions were not consistent with Degraw’s job as a material handler.

• Exide determined that Degraw could not safely perform any available jobs at the Salina plant and terminated his employment.

• Degraw filed suit for retaliation and also claimed that Exide violated the FMLA by forcing him to take unnecessary medical leave and failing to reinstate him.

• Degraw argued that Exide improperly relied upon the report of its own doctor


COURT’S RULING:

• The Court rejected Degraw’s argument that Exide improperly relied upon the report of its own doctor – noting that Dr. Hanson reviewed Degraw’s MRI and was familiar with his medical history, work history and the job requirements for his position.

• The Court also noted that there was no evidence for Degraw’s contention that Dr. Hanson issued his recommendations on Exide’s instruction.


TIPS FOR EMPLOYERS:

• The FMLA does not require an employer to reinstate an employee who is not able to perform the essential functions of his or her job.

• Even if an employee has a release from his or her own physician, nothing in the FMLA prohibits an employer from requiring an employee to visit with its own doctor, at its own expense, to confirm the employee’s ability to work.

• Employer’s should exercise caution when faced with conflicting doctor’s reports regarding an employee’s ability to work.

Holiday FMLA Leave Abuse Equals Proper Termination

Rydalch v. Southwest Airlines

FACTS:

• Douglas Rydalch was a reservation sales agent for Southwest.

• When Southwest closed its reservation center in Salt Lake City where he worked, it transferred him to Houston. However, his family remained in Utah.

• In 2004 he injured his back and his issues continued through 2007. • Curiously his back injury would tend to flare up on the days just before or

after his previously scheduled time off – 35 times to be precise.

• In addition, he often used FMLA leave on important dates and holidays. In 2007, for example, he used FMLA leave in conjunction with July 4, Labor Day, Thanksgiving Day, Christmas Day, New Years Eve and his own birthday.

Rydalch v. Southwest Airlines (cont.)

• Southwest caught onto his pattern of absences and began monitoring his FMLA use.

• It learned that he had a habit of taking flights to and from Utah on the days he requested FMLA leave.

• Rydalch’s supervisor learned that he again had taken FMLA leave and later learned that he had been out of town when he called in his absence on Christmas Eve 2007.

• Upon further investigation, the supervisor determined that he booked a trip to Utah from December 22 to 27 – so it was not surprising when he also called in on the 26th and 27th.

• Southwest terminated his employment for abusing FMLA leave.

• Rydalch sued claiming retaliation and interference with his FMLA rights.


COURT’S RULING:

• Southwest rightfully had an honest belief that Rydalch was abusing FMLA leave and that its termination decision was legitimate.


TIPS FOR EMPLOYERS:

• Employers should be vigilant to identify patterns of FMLA abuse and act swiftly to investigate and stop it from occurring.

• When abuse is suspected, employers have every right to investigate the circumstances.

No FMLA Protection for Employees Who Lie

Prigge v. Sears (3rd Circuit, June 23, 2011)

FACTS:

• The Plaintiff applied for FMLA leave, telling his employer that he was suffering from prostrate cancer, which had been in remission.

• In fact, though, the employee needed the leave to seek treatment for Bipolar Disorder.

• Approximately 8 months after he was hired, he was hospitalized due to depression, at which time he confessed to his employer the real reason he had been missing work.

Prigge v. Sears (3rd Circuit, June 23, 2011) (cont.)

• Before returning to work, the employee was supposed to provide documentation to support his absences.

• Although he provided some of the medical certification, he never

complied fully with his employer’s request for information.

• He was subsequently terminated and later filed suit.

• In defending the lawsuit, the employer offered two reasons for terminating the employee: – The employee’s failure to provide the required documentation;

and– The false reasons offered by the employee as the basis for the

leave.


COURT’S RULING:

• Although the employee may have been entitled to the leave that he took had he been honest about the reasons for it, he became ineligible for the protections of the FMLA when he lied about his illness.

• Without the protections of the FMLA, there was no basis for liability and the case was dismissed.


TIPS FOR EMPLOYERS:

• Employees must tell the truth when applying for leave.

• The employer is not the only one obligated to follow the FMLA’s many rules.

To Invoke FMLA Protection to Care for Another, Some Geographic Proximity Is

Required by the Employee

Baham v. McLane Foodservice Inc.

(5th Circuit July 1, 2011) FACTS:

• Girard Baham was hired by McLane Foodservices, a Texas company in 2006.

• During a family vacation in Honduras during March 2008, Baham’s daughter fell and suffered serious head trauma. She was airlifted to Miami where she underwent emergency surgery.

• Baham called his supervisor and asked for FMLA leave related to his daughter’s injury.

• In response, the supervisor told Baham to “take all the time he needed,” and forwarded FMLA leave forms to him for completion.

Baham v. McLane Foodservice Inc. (5th Circuit July 1, 2011) (cont.)

• Baham completed and returned the forms, asking for leave from March 20 to May 5, 2008.

• He was subsequently notified that the paperwork was

incomplete because it did not include information indicating the expected duration of his daughter’s treatment. At no point did he provide the requested information.

• On April 12 Baham returned to the family’s home in Texas, leaving his wife and daughter in Miami.

• He claimed he returned home to prepare the house for his daughter’s return.


• His wife and daughter returned on April 29 and he returned to work on May 5.

• Upon his return to work, the employer informed him that his FMLA paperwork still was incomplete, and again was asked to provide the required information.

• Later that day, he left the work premises, leaving his keys and ID with a security guard. The employer interpreted his abrupt departure as a resignation, and sent a letter two days later, terminating his employment.

• Baham filed a lawsuit, claiming he was fired in retaliation for requesting/taking FMLA leave.


COURT’S RULING:

• The Court upheld a dismissal of Baham’s claims.

• Because Baham was not “taking care” of his daughter after he returned to Texas, he was not entitled to FMLA leave and therefore could not set forth a cognizable claim of retaliation.

• In order to be entitled to FMLA leave (according to the Court), an employee must show that he is needed “to care for” a family member with a serious health condition. The Court cited the fact that various courts have affirmed the use of FMLA leave only where the employee is in physical proximity for the cared-for person.

• The activities in which Baham was engaged – although preparation for his daughter’s return – were not “care” in the sense required by the FMLA which requires some level of participation in the ongoing treatment of the family member’s medical condition.


TIPS FOR EMPLOYERS:

• Employers should not interpret this case to mean that the employee/caregiver must be the sole provider of care, or that the care must be medical in nature.

• The facts of the particular situation must be reviewed carefully before a decision is made that would adversely affect the employment of the person requesting or participating in FMLA leave.

Employers Must Prove Reasons for Denying

Reinstatement after FMLA Leave

Sanders v. City of Newport (9th Circuit March 17, 2011)

FACTS:

• Diane Sanders worked as a utility billing clerk for the City of Newport for approximately 10 years.

• After the City started to use a different type of billing paper, Sanders began to suffer health problems.

• She consulted with a specialist who diagnosed her as suffering from multiple-chemical sensitivity that was triggered by handling the new billing paper.

• On this advice, Sanders requested and receive FMLA leave.

Sanders v. City of Newport (9th Circuit March 17, 2011) (cont.)

• While Sanders was out on leave, the City notified her that she needed “to present a fitness for duty certificate from her physician prior to being restored to employment.”

• Sander’s doctor faxed a letter to the City stating that she could return to work, so long as she avoided using the problem-causing paper, which the City had stopped using during her leave.

• The City, however, subsequently terminated her employment because it could not guarantee that her workplace would be safe for her due to her chemical sensitivity.

• Sanders sued for interfering with her FMLA right to reinstatement.


COURT’S RULING:

• To prove an interference claim, the employee must establish that: – She was eligible for the FMLA’s protections, – Her employer was covered by the FMLA,– She was entitled to leave under the FMLA– She provided sufficient notice of her intent to take leave, and – Her employer denied her FMLA benefits to which she was

entitled.

• Evidence that an employer failed to reinstate an employee “to her original (or an equivalent) position establishes a prima facie denial of the employee’s rights under the FMLA.


• However, the right to reinstatement is not absolute.

• When an employer seeks to establish that he has a legitimate reason to deny an employee reinstatement, the burden of proof on that issue rests with the employer.


TIPS FOR EMPLOYERS:

• While the right to reinstatement is not absolute, an employer who denies reinstatement to an employee must be prepared to prove the employee had no such right.

FMLA Protects an Employee’s Pre-Eligibility Request for

Post-Eligibility Leave

Pereda v. Brookdale Senior Living Communities, Inc.

(11th Circuit January 10, 2012)

FACTS:

• Kathryn Pereda was employed by a senior living facility.

• Eight months after she began working for the facility, she advised the facility that she was pregnant and would be requesting FMLA leave after the birth of her child.

• Prior to the facility learning about her pregnancy, Pereda had received good evaluations from the facility.


(11th Circuit January 10, 2012) (cont.)

• After notifying the facility of her pregnancy, the facility placed her on a performance improvement plan with unattainable goals.

• Pereda suffered pregnancy-related medical issues. After she was placed on bed rest by her physician, the facility terminated Pereda’s employment.


(11th Circuit January 10, 2012) (cont.)COURT’S RULING:

• The Court reversed the dismissal of Pereda’s claims.

• In order to receive FMLA protections, one must be both eligible and entitled to leave.

• Generally, an employee is eligible if they have worked 1,250 hours in the past 12 months and have been employed for a total of at least 12 months. A triggering event for FMLA is the birth of a child.



• The court acknowledged that at the time Pereda requested leave, she was not eligible for FMLA protection because she had not worked the requisite hours and had not yet experienced a triggering event. However, at the time she gave birth to her child, she would have been entitled to FMLA protection.



• The court reversed the district court and found that a pre-eligible request for post-eligible leave is protected by the FMLA. In other words, the FMLA protects pre-eligible employees who discuss with their employers a post-eligibility leave request from interference and retaliation.



TIPS FOR EMPLOYERS:

• Supervisors must be trained that employees who discuss FMLA leave and who are not currently eligible for FMLA protections may still be protected if they are requesting leave that will begin after they become eligible under the FMLA.

• Employers must keep accurate records of when an employee is eligible for FMLA protection and take careful note of when the employee is requesting FMLA leave.

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FMLA INSIGHTS Rachel T. Rowley BrownWinick 666 Grand Avenue, Suite 2000 Des Moines, IA 50309-2510 Telephone: 515-242-2417 Facsimile: 515-323-8517 E-mail:

Documents

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