In Sarnowski v. Air Brook Limousine, Inc., — F.3d —-, 2007 WL 4323259 (C.A.3 (N.J.)), 13 Wage & Hour Cas.2d (BNA) 73, the Third Circuit held that employee’s notice of potential need for time off in the future for heart surgery was sufficient to invoke protection of FMLA and prevent interference by employer.

James Sarnowski began his employment with Air Brook Limousine, Inc., in July 2001. Air Brook provides limousine, van and charter bus services. Air Brook hired Sarnowski to its service manager position. His responsibilities included the maintenance of Air Brook’s vehicles. Air Brook gave Sarnowski good initial performance evaluations. In June 2002, Air Brook gave him another favorable review along with a salary increase.

Sarnowski suffers from Coronary Artery Disease and Wolff-Parkinson-White syndrome (an abnormal electrical communication in the heart which causes episodes of rapid heart rate). In October 2002, Sarnowski underwent quintuple coronary artery bypass surgery.

In December 2002, Air Brook gave Sarnowski a written warning regarding job performance issues. Air Brook indicated that his excellent performance had nose-dived and now his performance had reached unacceptable levels in the weeks leading up to and following his hospitalization and leave. Air Brook told Sarnowski to improve his job performance and to communicate with his supervisors regarding any job performance problems he might be experiencing.

Sarnowski began experiencing heart palpitations the following spring. In April 2003, he underwent a coronary angiogram which revealed four more blocked arteries. His doctors recommended that he wear a heart monitor for 30 days with surgery to follow depending on the results. Sarnowski claims that he immediately informed his supervisor that his doctors had found four more blockages, that his condition would be monitored, and that he might need an additional six weeks off for further surgery. The 30 days of monitoring did indicate that he would require further surgery.

Sarnowski claims that Air Brook terminated his employment after he had told his supervisor of the monitor and of the possible need for more surgery but before the further surgery became definite. Air Brook claims that Sarnowski was fired for performance related issues.

Sarnowski filed suit in the United States District Court for the District of New Jersey claiming that Air Brook had violated the FMLA. The district court ultimately dismissed his suit on Air Brook’s motion for summary judgment.

Sarnowski appealed that decision to the Court of Appeals for the Third Circuit. In his appeal, Sarnowski claims that Air Brook interfered with his rights under the FMLA by unjustly terminating his employment.

The Third Circuit Court of Appeals began its analysis with a general statement of an employee’s rights under the FMLA: “The FMLA grants eligible employees the right to take up to twelve workweeks of leave in any twelve-month period if a “serious health condition … makes the employee unable to perform the functions of the position of such employee.”29 U.S.C. § 2612(a)(1)(D). The FMLA also provides that it shall be unlawful for an employer to interfere with, restrain, or deny an employee’s exercise of or attempt to exercise that right. 29 U.S.C. § 2615(a)(1). In order to assert a claim of interference, an employee must show that he was entitled to benefits under the FMLA and that his employer illegitimately prevented him from obtaining those benefits.”

In his suit, Sarnowski claims that Air Brook interfered with his FMLA rights by firing him in order to prevent him from taking leave because of his impending heart surgery. The District Court found otherwise on the ground that Sarnowski was not entitled to benefits under the FMLA because he did not submit a formal leave request in accordance with Air Brook’s policy.

The Third Circuit noted that employees must provide employers with notice of their need for leave in order to be entitled to benefits under the FMLA: “An employee seeking leave under § 2612(a)(1)(D)“shall provide the employer with not less than 30 days’ notice, before the date the leave is to begin, of the employee’s intention to take leave under such subparagraph, except that if the date of the treatment requires leave to begin in less than 30 days, the employee shall provide such notice as is practicable.”29 U.S.C. § 2612(e)(2)(B).” The point of contention becomes whether what Sarnowski did provide was sufficient notice to entitle him to benefits under the FMLA.

The appeals court noted that written notice is not necessary and that verbal notice can be sufficient. In fact, the employee need not expressly assert rights under the FMLA or even mention the FMLA in his notice to the employer. The employee, however, must provide a qualifying reason for the needed leave. Employees may also provide FMLA qualifying notice even before knowing the exact dates or duration of the leave to be taken. The reviewing court also remarked that the 30 day advance notice is meant to be flexible and an employee is not required to give greater notice than is practicable.

The court of appeals cited to the Sixth Circuit’s test for determining when an employee’s intention to take leave has been sufficiently conveyed to his employer so as to constitute requisite notice under the FMLA, the court found it useful to employ the following test: “[T]he critical test for substantively-sufficient notice is whether the information that the employee conveyed to the employer was reasonably adequate to apprise the employer of the employee’s request to take leave for a serious health condition that rendered him unable to perform his job.”

Basically, an employee must provide his employer with enough information to show that he may need FMLA leave. And, generally, employees who have failed to indicate why they need the leave have given insufficient notice to the employer. In the instant case, the Third Circuit determined that Sarnowski had given sufficient notice to Air Brook of his intent to take leave to legally prevent Air Brook from interfering with his FMLA rights: Sarnowski had had blockages and surgery in the past, had informed his supervisor of his need for monitoring and possible future surgery, and had conveyed that his health problems were continuing. This factual background was enough to get Sarnowski past summary judgment. He would still bear the ultimate burden of persuading the trier of fact that his version of the notice was the true version. Even then, Air Brook could still demonstrate that it terminated him for a reason unrelated to his intention to excorcise his rights under the FMLA.

No related posts.

Related posts brought to you by Yet Another Related Posts Plugin.

You Should Also Check Out This Post:

More Active Posts: