Plaintiff Charlene K. Wisbey worked for the City of Lincoln as an Emergency Dispatcher II. In that position, she would receive calls for emergency service and dispatch emergency service units. Because of the gravity of the situations encountered on the job, the City required her to function accurately while working under considerable pressure and to think and act quickly and calmly in emergency situations.

Wisbey applied for FMLA intermittent leave after exhausting her sick leave with the City. She made her FMLA intermittent leave application in February 2007 on the basis of depression and anxiety. She indicated on her application that she had a serious health condition that made her unable to perform the essential functions of her position. She also submitted a medical certification from her physician that stated she “suffer[ed] from recurring cycle depression, anxiety [which] interferes with her sleep, energy level, motivation, [and] concentration . . . .” Her doctor’s certification also indicated that, although Wisbey was “able to perform any one or more of the essential functions of [her] job,” she would need to take time off work intermittently over the “next 6 months or longer.” Her physician left the blank labeled “anticipated return to work date” empty.


After receiving this certification, the City requested that Wisbey undergo a fitness for duty exam to determine if Wisbey was qualified to continue to work as an emergency dispatcher. After the examination, the City’s doctor submitted a report with his findings indicating that Wisbey suffered from “chronic relapsing depression (unipolar depression) which intermittently interferes with her ability to function at full capacity at work vis-á-vis tiredness” and that she was not “fit for duty as described in her job description, especially as related to tiredness, her ability to concentrate and her ongoing propensity to likely miss work.”

After receiving the report, the City placed Wisbey on administrative leave. Later, the City terminated her employment stating that she was unfit for duty and that she should pursue long term disability benefits. Wisbey filed suit claiming that the City violated her rights under the Americans with Disabilities Act and the Family and Medical Leave Act.

The appeals court evaluated her claims after the district court awarded summary judgment to the employer. The appeals court first considered her interference claim under the FMLA and reasoned that the City could not have interfered with Wisbey’s FMLA rights as she was never entitled to FMLA leave. The court placed its reliance in the case of Spangler v. Fed. Home Loan Bank of Des Moines, 278 F.3d 847, 853 (8th Cir. 2002) which stated: “The FMLA does not provide an employee suffering from depression with a right to unscheduled and unpredictable, but cumulatively substantial,
absences or a right to take unscheduled leave at a moment’s notice for the rest of her career. On the contrary, such a situation implies that she is not qualified for a position where reliable attendance is a bona fide requirement.”

Wisbey’s request for intermittent leave under the FMLA for six months or longer rendered her ineligible for FMLA leave from the outset.

The Eighth Circuit Court of Appeals was similarly terse when ruling upon Wisbey’s FMLA retaliation claim. It merely indicated that Wisbey failed to establish a causal connection between her application for FMLA leave and her termination because the City did not rely upon her FMLA application but upon its doctor’s fitness for duty exam when it terminated her. Such reliance refutes a retaliatory motive.

In short, employees would do well to limit requests for FMLA intermittent leave to a defined period of time, perhaps a period shorter than six months, and then seek renewal of the intermittent leave for a defined period of time following the expiration of the first period.

No related posts.

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

You Should Also Check Out This Post:

More Active Posts: