Smith v. The Hope School, Not Reported in F.Supp.2d, 2008 WL 1722194) (C.D. Ill., 2008)

Tanum Smith worked for The Hope School (currently known as The Hope Institute) from May 5, 2005 through September 19, 2006. The Hope School is a school for children with developmental disabilities. Smith individually worked with students as an individual instruction aide.

After less than a year on the job, Smith had had some bad luck in dealing with students. On April 3, 2006, a student had pushed Smith to the ground, struck her and kicked her. Apparently the altercation was severe enough that Smith filed an Illinois Worker’s Compensation claim because of injuries that she had received. On June 9, 2006, another student hit Smith in the mouth, chipped her tooth, and injured her neck. Smith filed another Illinois Worker’s Compensation claim. The injuries also led Smith to visit a chiropractor, Dr. Bryan Taylor. Dr. Taylor advised Smith to remain at home for two or three weeks. Smith followed the recommendation, and on June 21, 2006, Taylor approved her return to work “on light duty.” Upon Smith’s return to work, she was assigned to work in The Autism Project performing clerical duties. At The Autism Project, Smith had no contact with students.


About a month after returning to work, Smith underwent an independent medical examination by Dr. Dellheimer, apparently in relation to her worker’s compensation matters. Dellheimer provided a report on August 10, 2006 indicating that Smith was ready to return to work without restrictions. In response, Smith consulted with her primary care physician, Dr. Cara Vasconcelles, whom she had been seeing since February 17, 2005. Vasconcelles had treated Smith for mild anxiety dating back to Smith’s first visit. On August 14, Vasconcelles provided Smith with a doctor’s note stating: “Please excuse from work [due] to neck pain until cleared by neurologist unless light duty and not around residents.” Vasconcelles also referred Smith to a neurologist for her neck pain.

The Hope School decided not to push the matter and transferred Smith to the dietary department working in the kitchen. Working in the kitchen, Smith placed labels on trays and cared for silverware. The Hope School contended that students did not access the kitchen. Smith vied that up to 30 students a day entered the kitchen to pick up food trays or carts.

On approximately August 22, 2006, a student approach Smith in the kitchen. The court’s opinion gives no details as to whether any hostility occurred. Smith complained to Human Resources concerning the incident claiming that the school had failed to provide her with a safe environment. Smith also gave notice that she was leaving work.

The Hope School responded with a letter on August 23, 2006 stating:

I am assured that no children are allowed in the kitchen and since your light duty assignment is kitchen duty you should not encounter any children unless you initiate the contact. If you need to be out of the kitchen, someone will accompany you. To that end we expect you at work on Friday, August 25, 2006 to work in the kitchen at the Hope School. If you fail to report for work you will be recorded as unexcused absence and after three such occurrences you will be scheduled for a pre-disciplinary meeting to pursue your termination for job abandonment.

Smith left a voicemail with Dr. Vasconcelles indicating that The Hope School would not allow Smith to work without resident contact. Smith also queried as to whether she would qualify for disability or Family and Medical Leave Act leave.

On August 25, 2006, Smith reported to work but left after a few minutes without reporting to her supervisor or with HR. Smith claimed that she did leave a voicemail with Melissa Thompson, The Hope School Worker’s Compensation Specialist.

On August 28, 2006, Smith requested FMLA paperwork from Jennifer Cline, FMLA Leave Coordinator at The Hope School. Smith claimed that she told Cline that she was taking leaving as a result of depression and because of medication she was taking to relieve stress. The Hope School vied that Smith did not tell Cline she was taking medication for stress.

Smith further claimed that she was not returning to work and was taking FMLA leave effective immediately. Smith asserted that Cline assented to this request.

Smith took the FMLA paperwork to Dr. Vasconcelles who completed it the same day. In the form entitled “Certification of Health Care Provider for FMLA Leave,” Dr. Vasconcelles stated: “patient having severe recurrent muscle tension [headaches] and [right] neck & arm pain [secondary] to trauma suffered at work.”

Smith did not report to work on August 29 and did not call her supervisor to notify her of the absence. The Hope School followed up with a letter to Smith offering to provide her an escort to enter and exit the building. The letter also indicated that any other days that Smith missed and failed to notify her supervisor would be considered unexcused absences.

Smith received her FMLA paperwork from her physician on September 6. She added the phrase, “plus previous depression,” to her doctor’s description on the Certification of Health Care Provider for FMLA Leave form. Smith did not consult with her doctor prior to adding this information. Smith had never been diagnosed with depression. She then faxed the form to The Hope School.

Upon their receipt of the FMLA paperwork, Cline and Thompson immediately remarked that the FMLA leave form appeared altered. They checked with Dr. Vasconcelle’s office and confirmed that the FMLA paperwork had been altered. Cline then contacted a Department of Labor representative who advised that Hope could deny leave based on an alleged failure to provide timely notice and the alleged alteration of FMLA documentation.

On September 11, 2006, Cline denied Smith’s request for leave based upon the reasons provided by the DOL representative.

Hope’s employee handbook permitted termination of an employee who missed work for three consecutive days without calling to report the absences. Hope began disciplinary proceedings against Smith for failing to work or report her absences on September 6. Hope claims that it began these proceedings prior to receiving Smith’s FMLA paperwork. Smith claimed otherwise. Also on the sixth, Hope sent out notice to Smith of a September 12 predisciplinary hearing.

Smith skipped that hearing as well. Hope rescheduled it for the fourteenth. Smith did attend on that date. At the hearing, Hope made it clear that it was considering terminating her employment because of three consecutive absences.

Smith attended another disciplinary meeting on September 19. At that meeting, she asked about her FMLA leave request. Hope stated that it had been denied because it believed the request had been altered and submitted untimely. Hope later terminated Smith’s employment with The Hope School.

In response to her termination, Smith filed a lawsuit against The Hope School alleging that it had intefered with her FMLA rights and retaliated against her because of her exercise of FMLA rights.

To succeed on an FMLA interference claim, a plaintiff must show that the defendant deprived the plaintiff of an FMLA entitlement, without regard for the defendant’s intent. The plaintiff must establish that:

(1) plaintiff was eligible for FMLA protection;
(2) plaintiff’s employer was covered by the FMLA;
(3) plaintiff was entitled to leave under the FMLA;
(4) plaintiff provided sufficient notice of plaintiff’s intent to take leave; and
(5) defendant denied plaintiff’s FMLA benefits to which plaintiff was entitled.

The Hope School argued that Smith could not establish the third element of that showing. More specifically, Hope argued that Smith was not entitled to leave under the FMLA because she had altered her FMLA documentation supporting her request for FMLA leave.

Under the FMLA, an employer may require an employee to submit certification of her condition from a health care provider. Hope questioned Smith’s addition of the words “plus previous depression,” to her certification form as an alteration of that document. However, pursuant to the FMLA regulations, Cline was not permitted to contact Smith’s physician to determine whether the certification form had been altered (which she had done). See 29 C.F.R. § 825.305(a). The Hope School was limited to having a second health care provider contact the employee’s health care provider, with the employee’s permission, to discuss the certification. 29 C.F.R. § 825.307.

The district court noted that other statutes do provide recourse for the actions of The Hope School (in impermissibly contacting Smith’s physician) and the FMLA would as well if the action interfered with, restrained, or denied Smith’s exercise of her rights under the FMLA. For the court, the issue was whether The Hope School was justified in denying Smith’s FMLA leave request based on her alteration of the form, even if it also was aware that the rest of the form was valid.

The district court found several analogous cases in which employers were justified in denying FMLA leave requests where the employees submitted false forms. E.g., Fuller v. Alliant Energy Corp. Svs ., Inc., 456 F.Supp.2d 1044, 1073 (N.D.Iowa 2006) (citing 29 C.F.R. § 825.311(b) (“If the employee never produces the certification, the leave is not FMLA leave.”)).

Other cases have held that falsifying FMLA certification forms is grounds for termination. E.g., Kariotis v. Navistar Int’l Transp. Corp., 131 F.3d 672, 681 (7th Cir.1997); Blackburn v. Potter, 2003 WL 1733549, at *8 (S.D.Ind. March 31, 2003); see also29 C.F.R. § 825.312(g) (“An employee who fraudulently obtains FMLA leave from an employer is not protected by the FMLA’s job restoration or maintenance of health benefits”); Salgado v. CDW Computer Centers, Inc., 1998 WL 60779, at *7 (N.D.Ill. Feb. 5, 1998) (assuming that the regulation permitting employers to terminate employees who previously obtained leave fraudulently provides grounds to deny FMLA rights “even if the fraud was not
successful in obtaining leave.”).

The district court even located a case finding that alteration of a certification form provided grounds for termination even where the unaltered form would have entitled the employee to FMLA leave. Yasmeen, 2007 WL 3254923, at *3 (D.Utah Nov. 2, 2007).

In Yasmeen, an employee was seeking FMLA leave to care for her husband. Her husband’s doctor completed the certification form but in a manner preventing the employee from clearly determining the length of the leave. The physician was unavailable later to clarify what he had written. The employee had the resident change the form resulting in a longer leave than was intended by the physician. Despite the employee’s legitimate reason for a shorter leave period, the court concurred with the employer that whether or not the employee came back to work early from the leave, the employee’s honesty was at issue. The court upheld the termination of the employee.

Based on these cases, the district court held that an employee who alters a certification form without her health care provider’s permission is not entitled to FMLA leave, regardless of whether the unaltered form would have been sufficient. In so holding the court also addressed Smith’s argument that the employer was required to seek a second opinion if it questioned whether her doctor’s certification was valid. The court stated that a second opinion was only necessary where the employer suspected that the health care provider’s opinion was wrong and not when it was inauthentic. The court also held that Smith’s retaliation claim must likewise fail because her alteration of the certification form was not statutorily protected activity .

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