In Barnes v. LaPorte County, 2008 WL 5263364 (N.D. Ind.), employer suspected employee’s request for FMLA leave was fraudulent and requested second medical opinion. Court held that such a request was justified given evidence supporting employer’s suspicion.

Kimberly Barnes worked for the LaPorte County, Indiana Auditor. During the summer of 2006, her position with the Auditor was reclassified to be equal in pay and title with her coworker, Sheryl Lestinksy. On November 21, 2006, the Auditor adopted a revised policy for employee’s use of accrued Paid Time Off (“PTO”) days. The policy change required that request for PTO be made directly to the employee’s supervisor and required that compensatory time be used prior to PTO time.

Barnes was not content with the policy changes. At trial, she testified that she felt insulted that her job was reclassified as comparable to Lestinksy’s and that the PTO policy changes were “stressors.” Theresa Shuter, Auditor for LaPorte County and Barnes’ direct supervisor, testified that Barnes quit talking to her and missed work on a more frequent basis following the policy changes. Barnes further testified that the Auditor’s office “wasn’t a pleasant working environment and it was affecting my health.”


Lestinsky testified that Barnes had twice stated to her that she was planning on leaving the Auditor’s office. Barnes stated that she may have told Lestinsky this and acknowledged that she was planning on transferring offices within LaPorte County. Lestinsky also testified that prior to Barnes’ scheduled vacation in March 2007, Barnes cleaned out her desk of all personal belongings.

Barnes took a two week vacation at the beginning of March 2007. On March 16, the last day of her vacation, she sent a facsimile and a note from the doctor’s office signed by nurse practitioner, Michael Beach, to the Auditor. The note stated that Barnes required a medical absence through April 2, 2007. Shuter responded with a letter to Barnes which included an FMLA leave-request form. In the letter, Shuter informed Barnes that her time off would be unpaid until the FMLA leave was verified. She also warned Barnes that she would be subject to LaPorte County attendance policies if her leave was judged as not FMLA qualifying. Shuter later determined that she had sent outdated FMLA forms to Barnes. Upon discovering this, she had Lestinsky send out current FMLA forms. Upon delivery, Barnes told Lestinsky that she would rather take PTO leave instead of FMLA leave.

Barnes apparently changed her mind again and returned the completed FMLA forms to Shuter on March 27, 2007. These forms confirmed her need for leave through April 2, 2007 and indicated that she was suffering from stress and insomnia. Shuter remained unconvinced and sent a letter to Barnes requiring her to obtain a second medical opinion. Shuter scheduled the doctor’s appointment for the second opinion. Predictably, Barnes did not show up for the appointment. On April 2, 2007, Barnes did choose to submit another note from nurse Beach requesting further medical leave. Ten days later, Shuter sent a letter to Barnes terminating her employment with the Auditor due to “continued absence from work . . . without approval or excuse.” Barnes brought suit under the FMLA and a bench trial was held before a magistrate judge of the United States District Court for the Northern District of Indiana.

At trial, the Auditor argued that Barnes forfeited her rights under the FMLA because she failed to attend a second medical appointment to certify her leave. Barnes claimed that she did not attend the second appointment because she did not believe that the Auditor had the money to pay for the appointment. On cross-examination at trial, Barnes changed her story claiming that she did not attend the appointment because she felt that it was unjustified. The magistrate found that Barnes’ failure to comply with her employer’s request for a second medical opinion was fatal to her FMLA claim.

The FMLA permits an employer to require the employee to obtain a second medical opinion at the employer’s expense if the employer has reason to doubt the validity of the employee’s medical certification. 29 U.S.C. § 2613(c)(1); 29 C.F.R. § 825.307(a)(2). The magistrate also relied upon a Seventh Circuit opinion holding that “[a]n employee who fails to cooperate with the second-opinion process under 2613(c), loses the benefit of leave under 2612(a)(1)(C) or (D).” Diaz v. Fort Wayne Foundry Corp., 131 F.3d 711, 713 (7th Cir.1997). Barnes countered by contending that under the FMLA the purpose for seeking a second opinion is limited to verifying the certification, and that the Auditor sought to obtain more information thus overreaching the statutory provision. The magistrate found otherwise.

Shuter claimed that she had an “honest suspicion” that Barnes’ FMLA leave application was not legitimate. Given this honest suspicion, the Auditor argued that it did not violate Barnes’ FMLA rights by requesting a second opinion. As support for her suspicion, Barnes remarked upon the frequency and timing of Barnes’ absences; Barnes’ known frustration regarding the change in PTO policy; Barnes’ repeated statements to Lestinsky that she was leaving her position at the Auditor’s office; and Barnes’ efforts to clean out her desk prior to taking an extended leave of absence. The court also noted Barnes’ testimony that she was never physically examined by a doctor for the conditions which resulted in her leave requests as well as the vague leave requests in general and suspicious timing, faxed to the Auditor’s office on the last day of Barnes’ vacation.

Given this evidence, the district court concluded that the Auditor had an honest suspicion warranting its request for additional certification by an independent medical examiner. Relying on the Seventh Circuit’s decision in Vail v. Raybestos Prods. Co., 533 F.3d 904, 909 n1 (7th Cir. 2008)(finding that employer does not interfere with FMLA rights if it had honest suspicion that employee was abusing her leave), the district court held that the Auditor’s request did not violate Barnes’ substantive FMLA rights.

The trial court further concluded that Barnes’ failure to attend the second opinion appointment resulted in Barnes’ forfeiting her substantive rights under the FMLA. This forfeiture allowed the Auditor to to apply the County attendance policy which, in turn, resulted in Barnes’ termination.

Barnes contended that the Auditor failed to provide her with notice of the consequences of failing to properly certify her leave as required by statute. 29 C.F.R. §825.305(d) (“At the time the employer requests certification, the employer must also advise an employee of the anticipated consequences of an employee’s failure to provide adequate certification.”). The Auditor claimed that it had provided Barnes a letter indicating that if her leave was not FMLA qualifying, she would be subject to standard LaPorte County Attendance policies. The Auditor then made reference to the employee handbook which indicated that all LaPorte County employees are considered employees-at-will and also stated “[a]bsence from duty, without approval in accordance with these rules, for a period of three working days may be considered by the supervisor as cause for dismissal.”

Despite admitting that the letter did not specifically mention termination as a consequence of Barnes’ failure to attend the appointment, the trial court found that the letter was sufficient under the FMLA. It did indicate that Barnes would be subject to LaPorte County attendance policies if her leave was not FMLA qualifying. Barnes testified that she was aware and understood her duty to contact her direct supervisor regarding PTO leave requests, and Barnes had signed for receipt of the employee handbook which indicated that termination could result from three days or more of unapproved absence. This evidence, according to the court, was sufficient to put Barnes on notice that termination could result from her failure to abide by LaPorte County attendance policies.

Employers who question an employee’s request for FMLA leave may, given sufficient evidence supporting their doubts, request the employee to submit to a second medical opinion without violating an employee’s FMLA rights. As seen in this opinion, an employee’s refusal to undergo that second evaluation can prove fatal to her FMLA claim.

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