In Wysong v. The Dow Chemical Co., — F.3d —-, 2007 WL 2819880 (C.A.6 (Ohio)), 12 Wage & Hour Cas.2d (BNA) 1601, the Sixth Circuit further defined the fifth element of an FMLA interference claim, holding that a showing that the employer somehow unlawfully used FMLA leave against an employee would satisfy this element of the claim.

Kimberly Wysong work at The Dow Chemical Company’s Hanging Rock facility as an Operating Technician. In that position, her job was to place raw materials into a laminating machine. The raw material was delivered to her in pallets from the warehouse, and a forklift was used to load the laminating machine. Wysong would operate the forklift on occasion to do this. The laminating machine had moving parts and could be dangerous to operate if all safety precautions were not followed.

In 2001, Wysong took 464 hours of paid medical leave (the equivalent of approximately 58 work days or 11.6 work weeks). In 2002, she took 783.5 hours of paid medical leave (the equivalent of approximately 98 work days or 19.6 work weeks). She took leave during these two years for several conditions including: chronic neck and groin pain, a hernia operation, mononucleosis, a hysterectomy, and caring for a sick child. Dow paid her her full pay for these leaves.

On February 7, 2003, Production Leader Dwight Miller gave Wysong a “Letter of Concern.” In this letter, he indicated that Wysong had exhausted all of her paid medical leave and that if she needed additional leave before accruing more leave time, she would have to use either vacation time or unpaid leave. Miller also required Wysong to notify him and obtain his approval prior to any further absences, including planned medical procedures.

Ten days later, Miller gave Wysong a “Last Chance Letter” indicating that Wysong had reported to work late without prior notification and Dow would terminate Wysong’s employment for any future issues.

On May 13, 2003, Wysong told the plant nurse that she was experiencing neck pain. Wysong, however, did not request any time off from work as a result. Apparently on the watch list, the nurse reported Wysong’s complaint to the plant’s Environmental Health and Safety Directory, Troy Dehoff. Dehoff ran and told Miller. Miller hurried to inform Dr. Teter, Dow’s Regional Medical Director.

Dr. Teter took the information and placed Wysong on work restrictions: no lifting, pushing, pulling or tugging anything over five pounds. Teter did this because of Wysong’s current neck trouble as well as her previous time off work “may have been due to [a] previous neck [problem]. Miller “determined” that he had no work for Wysong that would comport with Teter’s work restrictions, so he sent her home.

On May 15, 2003, Miller sent a letter to Wysong informing her that “her request” for FMLA leave had been approved bu that she only had three more days of FMLA leave available to her. Wysong took the letter to Human Resources Partner Tom Hutson and told him that she had not requested any leave, let alone FMLA leave. Hutson removed the “request” language and sent the letter back to Wysong informing her that Dow had placed her on FMLA leave.

Wysong’s case required review by Dow’s Medical Review Board. The Board required Wysong to pass a functional capacity exam (”FCE”) as a condition to returning to work. Such a test is used to determine if an employee can physically perform her job duties. Wysong signed a release permitting Dow to obtain her medical records. Dr. Teter reviewed them and found a note from one of Wysong’s treating physicians that she was possibly exhibiting “drug-seeking behavior.” Teter took this to mean that Wysong was “drug dependant.”

From that Teter unilaterally determined that Wysong could not take the FCE unless she discontinued taking her pain medication for a two week period. Teter was concerned about safety risks associated with taking such medication and operating a forklift and laminating machine as well as whether the FCE would be valid if taken under such medication. On the advice of her physicians, Wysong refused to stop taking her pain medication.

Dow refused to let her take the FCE and placed her on unpaid leave “pending a release to work without restrictions” from both her physician and Dow’s medical department. Needless to say, Wysong did not obtain these releases and was terminated. Wysong sued Dow alleging violations of the FMLA. The district court granted summary judgment to Dow and Wysong appealed to the Sixth Circuit Court of Appeals.

Judge Gregory L. Frost for the Southern District of Ohio determined that Wysong’s complaint only stated a retaliation claim under the FMLA and refused to consider Wysong’s FMLA interference claim. Frost granted summary judgment for Dow as Wysong did not make out her prima facie case of retaliation. On appeal, Wysong claims that Frost erred in refusing to analyze her FMLA claim under the interference theory.

The appeals court quickly dispatched with the lower court’s ruling that Wysong had never brought an interference claim: “A defendant looking at Wysong’s complaint would be on sufficient notice that she was broadly alleging violations under 29 U.S.C. ß 2615, and that her FMLA claim could encompass either the interference theory, the retaliation theory, or both theories. Contrary to the district court’s characterization, Wysong has never alleged a new claim since filing her complaint. The claim has always been the same one: that Dow’s actions violated the FMLA.”

From there the appeals court analyzed Wysong’s interference claim: “The FMLA prohibits qualifying employers from “interfer[ing] with, restrain[ing], or deny[ing] the exercise of or the attempt to exercise, any right provided under th[e] [FMLA].” 29 U.S.C. ß 2615(a)(1).

To prevail under the interference theory, the employee must establish the following:

(1) he is an “[e]ligible employee,” 29 U.S.C. ß 2611(2);
(2) the defendant is an “[e]mployer,” 29 U.S.C. ß 2611(4);
(3) the employee was entitled to leave under the FMLA, 29 U.S.C. ß 2612(a)(1);
(4) the employee gave the employer notice of his intention to take leave, 29 U.S.C. ß 2612(e)(1); and
(5) the employer denied the employee FMLA benefits to which he was entitled. Cavin v. Honda of Am. Mfg., Inc., 346 F.3d 713, 719 (6th Cir.2003).

The question for the court’s review became whether the employer denied Wysong FMLA benefits to which she was entitled. Wysong argued that an alternate fifth element to an interference theory claim is that the employer “somehow used the leave against her and in an unlawful manner, as provided in either the statute or regulations” and cited Bradley v. Mary Rutan Hosp., 322 F.Supp.2d 926, 940 (S.D.Ohio 2004). The appeals court found that this interpretation of the fifth element did not conflict with the Cavin case but added depth to the fifth element set forth in Cavin. The reviewing court then cited 29 C.F.R. ß 825.220(c) - “employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions.” In the case of Brenneman v. Medcentral Health Sys., 366 F.3d 412, 422 (6th Cir.2004) and Pharakhone v. Nissan N. Am., Inc., 324 F.3d 405, 408 (6th Cir.2003), the Sixth Circuit had previously used this negative factor analysis in parsing interference claims. In short, “if an employer takes an employment action based, in whole or in part, on the fact that the employee took FMLA-protected leave, the employer has denied the employee a benefit to which he is entitled. ”

Along those lines, Wysong’s view of the case was that she was eventually terminated for taking FMLA leave in 2002. Wysong’s chain of events leading to her termination began with Teter’s writing work restrictions based, in part, on his knowledge that she had taken significant leave in 2002. The work restrictions prevented her from working and she could not go off all pain medications to take the FCE. As a result, she was not reporting to work and was thus terminated. Dow used the 2002 leave against her and in an unlawful manner (her eventual termination).

As the cat was already out of the bag, Dow had to acknowledge that Dr. Teter took into account Wysong’s previous absences when he issued the restrictions and required her to take the FCE without pain medications. Dow’s argument on appeal was that Teter did not solely base his restrictions on Wysong’s 2002 leave time. The appeals court quickly shot down that argument: “employers cannot use the taking of FMLA leave as a negative factor in employment actions.” 29 C.F.R. ß 825.220(c).

Dow made numerous other attempts at arguments including one that Dr. Teter was simply trying to protect Wysong from further neck injury. However, Teter wrote his restrictions with no idea why Wysong had missed work in 2002.

The court concluded that “the initial issuance of the severe restrictions set in motion an unbroken chain of events (as set forth above) culminating in her termination” and thus Dow had used her taking of leave in 2002 against her and in an unlawful manner.
The court also considered Wysong’s involuntary-leave theory claim: Dow violated her FMLA rights by forcing her to take her last three days of FMLA leave when she did not need to do so. The court noted that employees have involutary-leave claims against their employers when they are forced to take FMLA leave when they do not have a qualifying serious health condition. The claim ripens only when the employee seeks FMLA leave at a later date and the leave is unavailable as a result of the involuntary leave. As this did not happen in Wysong’s case, the appeals court affirmed the district court’s dismissal of this claim.

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