Debra Ney worked as a clerk for the City of Hoisington’s Police Department and Municipal Court. In 1998, she reported to the relevant authorities that the police chief possessed child pornography on his computer. Because of this the police chief lost his job and Kenton Doze was named the new police chief.

Ney claimed that her working conditions became extremely hostile because she had blown the whistle on the former police chief. Doze reprimanded her and did other things to make her working environment unpleasant. In April 1999, Ney’s doctors recommended that she take time off work to the tune of seven months because she had suffered an “emotional breakdown.” Ney apparently had enough time in unused sick leave that she could take the time off with pay.

The City of Hoisington sent Ney a letter suggesting that she complete FMLA paperwork to determine if she qualified for FMLA leave for some of the time she would be off. Ney forwarded this paperwork to her attorney. Apparently afraid that the City was trying to renege on its obligation to pay Ney for part of her unused sick leave, Ney’s attorney wrote the following letter indicating that the FMLA was not applicable:

For your information, the [FMLA] does not apply in this case. The FMLA would require the City of Hoisington to allow Ms. Ney to take up to 12 weeks of unpaid leave if she didn’t have any earned sick leave and needed or wanted time off for one of the reasons allowed by the federal law. The FMLA has absolutely nothing to do with Ms. Ney’s situation and the employee has to request the time off through the Act, which Ms. Ney did not do and didn’t need to do. Ms. Ney is taking sick leave through her accumulated sick leave she earned as a job benefit from 16 years of service to the City of Hoisington. Ms. Ney chose to use her paid sick leave and accrued vacation and not take time off pursuant to the FMLA; therefore, the Act does not apply.

In the rush to save her paid sick time, Ney’s attorney made several mistakes. It appears from the limited facts provided that Ney may have qualified for FMLA leave as she appears to have suffered from a serious health condition.

A serious health condition is defined as a period of incapacity of more than three consecutive calendar days (including any, subsequent treatment or period of incapacity relating to the same condition that also involves: (1) Treatment two or more times by a health care provider, by a nurse or physicians assistant under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of or on referral by a health care provider, or (2) Treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider. Ney may have qualified for FMLA leave under this provision.

Ney’s attorney appears not to have realized that Ney could concurrently take her paid time off and her FMLA leave as well. In the rush to save the paid leave, Ney’s attorney expressly rejected FMLA leave and any later benefits from having invoked the FMLA’s protection.

After her seven month absence and upon her return to work, Ney found that the keys to the building had been changed, her file cabinet was gone, she was assigned to work “in a closet” and she was given an unreasonably large amount of work. On top of that, Ney was subjected to verbal abuse from Doze and Allen Dinkel, the new city manager. Doze also took the liberty of changing Ney’s work schedule and now required her to work on Fridays and certain evenings.

In March 2003, Ney reported to Doze and Dinkel that her doctor had recommended that she not attend meetings with them unless her husband or doctor was present to provide emotional support and legal protection. Dinkel agreed to the doctor’s recommendation so long as the support person did not speak during the meetings. Ney’s husband accompanied her to a meeting; however, he couldn’t resist participating in it.

Two months later, Ney refused to attend a meeting with Dinkel because she could not contact her husband or doctor. Dinkel terminated her employment four days later when Ney refused to attend another meeting without a support person.

Unhappy with her termination, Ney sued the City, the Police Department, Doze and Dinkel alleging, among other things, that her termination violated the FMLA’s anti-retaliatory provision.

To state a prima facie case of FMLA retaliation, Ms. Ney must show that (1) she engaged in protected activity; (2) a reasonable employee would have found the City’s action materially adverse; and (3) there is a causal connection between her protected activity and the City’s adverse action. At the district court level, the district judge concluded that Ney could not establish a prima facie case of FMLA retaliation because she, through her lawyer, had rejected the City’s offer to apply for FMLA leave. In essence, Ney had expressly refused FMLA coverage. Her lawyer had stated that the FMLA did not apply.

On appeal, Ney attempted to argue that the rejection was not controlling because she engaged in FMLA protected activity by merely taking sick leave. Such an argument assumes that all sick leave is FMLA qualifying. The appeals court disagreed with Ney’s argument stating that “the FMLA comes into play when there is a serious health condition that prevents the employee from performing her work. Consequently, the employee must provide ‘notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave.’ This notice triggers the employer’s right to require a doctor’s certification confirming that the employee truly has a serious health condition. Leave taken by an employee who fails to provide requested certification ‘is not FMLA leave.’”

An employee cannot claim FMLA protection after expressly rejecting its coverage as well as failing to provide notice of the need for FMLA leave and certification confirming the serious health condition underlying the need for FMLA leave.

The appeals court also stated that even if Ney had established the first element of a prima facie case of FMLA retaliation, she still could not demonstrate a causal connection between her 1999 leave and her 2003 termination. The four year time span between the two is too long to demonstrate that her employer continued to harbor animus for her 1999 leave. If the City was going to fire her for taking leave in 1999 it would have done so shortly after her return to work. Furthermore, it appears that Ney was more at fault in her termination than the initial facts set out. She did have a support person available on the next day following the first missed meeting yet Ney did not bother to reschedule the missed meeting with Dinkel. Given this evidence, it was unlikely that the City terminated her for her 1999 leave.

When taking extended periods of leave, employees should take advantage of the opportunity to obtain FMLA coverage. A refusal to seek out FMLA coverage at the time of the leave may disqualify the employee from the protections of the Act after the leave has long ended.

FMLA leave can be paid leave. The employee simply needs to indicate to the employer that he/she would like the FMLA leave to run concurrently with the paid leave available to the employee.

Ney v. City of Hoisington, 2008 WL 324203 (C.A.10 (Kan.)).

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