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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Plaintiff and defendant stipulated in pretrial order that employee’s health benefits were terminated while she was on approved FMLA leave. Therefore, district court erred in finding that employee failed to prove that fact for purposes of determining whether termination of health insurance benefits constituted interference with employee’s FMLA rights.

Employer’s failure to provide employee with health insurance through end of the month after employee had paid for such benefits through the end of the month violated FMLA’s provision prohibiting interference with employee’s exercise of FMLA rights.


Breneisen v. Motorola, Inc., 512 F.3d 972 (CA 7 2008)

Employee brought claim alleging that he was not reinstated to original or similar position after returning from FMLA leave. Issue of fact existed as to whether old position and new one were equivalent and summary judgment was improperly granted.

Summary judgment was also not appropriate where issue of fact existed as to whether employee’s former position was eliminated because he took FMLA leave.

Summary judgment not appropriate on employee’s claim of discrimination and retaliation under FMLA as issue of fact existed as to whether employee’s transfer to keypad position from process analyst position was a demotion or reduction in opportunities for promotion.

Reduction in employer tuition reimbursement may constitute an adverse employment action.

Supervisor’s comment that if he had full staff he could get some work done was not materially adverse action. Receipt of lower raise was not adverse action. Supervisor’s questioning employee as to why she took FMLA leave and threatening to make employee come to work on days of absence were not adverse actions.

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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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On January 7, 2004, Dotson hurt his back while working under a boat. He continued working for a few more days on light duty status but eventually went to see Dr. Dallas Lipscomb upon BRP’s suggestion. Dr. Lipscomb referred Dotson to Dr. McGuire, a chiropractor, and Dr. Rutz, an orthopedic spine specialist.


Dotson kept an appointment with Dr. Rutz on February 13 for an independent medical evaluation that had been requested by Gallgher Bassett Services on behalf of the workers’ compensation carrier for BRP. Dr. Rutz performed surgery on Dotson’s lower back in March 2004. Dr. Rutz released Dotson for limited duty work at the end of June. Dr. Rutz released Dotson for full duty work in August. From January 19 through the August work release, Dotson could not perform the grind and trim job as a result of his back injury.

Pursuant to its absenteeism policy, BRP permitted employees up to twelve weeks (480 hours) of unpaid leave in any rolling twelve-month period for qualifying absences. According to its employee handbook:

All FMLA time runs concurrent with short term disability and worker’s compensation or any qualifying event. When an employee has exhausted twelve weeks of FMLA time during a rolling calendar year, employment with [BRP] may be terminated.

An employee who is unable to work for more than twelve weeks will be considered automatically terminated at the expiration of that period, regardless of the reason for the inability to work.

In accordance with its policy, BRP terminated any employee who exceeded twelve weeks of leave in a twelve month period.

Prior to the time of his back injury, Dotson had already used 286 hours of FMLA leave in the then current rolling twelve month period. On January 19, BRP sent a letter to Dotson notifying him that he might be eligible for FMLA leave as a result of his injury, that he had 194 hours of FMLA leave to use, and that any FMLA leave would run concurrently with workers’ compensation and short term disability benefits.

BRP followed up with a February 10 letter to Dotson informing him that his leave would end on February 23. Dotson objected stating that workers’ compensation absences did not count against FMLA leave time. BRP responded by stating that Dotson must apply for FMLA leave or face immediate termination. Faced with this threat, Dotson signed the FMLA paperwork but later tried to revoke it. When his FMLA leave expired on February 24, BRP provided Dotson with a letter terminating his employment due to excessive absenteeism.

Doston later sued BRP alleging that BRP terminated his employment after he attempted to re-
turn to work with restrictions for a work-related injury; BRP wrongfully required him to use FMLA leave rather than affording him temporary total disability time as authorized by law; and BRP violated the Illinois Workers’ Compensation Act by wrongfully terminating him for exercising his lawful right to claim workers’ compensation benefits.

The District Court granted summary judgment to BRP finding that Dotson had not shown a causal connection between his workers’ compensation claim and his termination. Dotson appealed the ruling to the Seventh Circuit Court of Appeals.

On appeal, Dotson argued that an employer may not lawfully “force” an employee to take FMLA
leave, may not terminate an employee who is absent for a work-related injury, and may not
count leave covered by workers’ compensation toward the FMLA total. Dotson argued that each of these actions by BRP was evidence of its unlawful retaliation against him.

BRP contended on appeal that it terminated Dotson’s employment because he exceeded his twelve-week allotment of leave under the company’s policy for excessive absenteeism. Because Dotson’s physician did not release him to return to work until August, BRP contended that Dotson’s termination did not violate the law.

Dotson retorted that BRP’s reason was pretextual and that he did not exhaust his FMLA leave. More specifically, Dotson argued that BRP “forced” him to use FMLA leave against his will, terminated him while he was on leave for a work-related injury, and illegally counted time covered by workers’ compensation as FMLA leave.

The Seventh Circuit examined Dotson’s arguments individually. As to his argument that he was forced to take FMLA leave against his will, the appeals court determined that Dotson was absent beyond the twelve weeks allowed under BRP’s policy. If not under the FMLA, Dotson would still have to provide some other legitimate excuse for his absence. The court noted that it was perfectly legal for BRP to institute an absenteeism policy tracking the minimum requirements of the FMLA.

Dotson mistakenly argued that he could not be terminated for absence resulting from a work-related injury. Illinois law does permit this. In addition, an employer may designate an absence as an FMLA absence, provided the employer gives the employee appropriate notice. See 29 C.F.R. § 825.208.

As to Dotson’s final argument that BRP illegally counted workers’ compensation leave towards his FMLA total, the court of appeals turned to the FMLA regulations on the subject:

An employee may be on a workers’ compensation absence due to an on-the-job injury or ill-
ness which also qualifies as a serious health condition under FMLA. The workers’ compens-
ation absence and FMLA leave may run concurrently (subject to proper notice and designa-
tion by the employer).

29 C.F.R. § 825.702(d)(2). See also29 C.F.R. § 825.207(d)(2) (“The Act provides that a seri-
ous health condition may result from injury to the employee ‘on or off’ the job. If the employer designates the leave as FMLA leave in accordance with § 825.208, the employee’s FMLA 12-week leave entitlement may run concurrently with a workers’ compensation absence when the injury is one that meets the criteria for a serious health condition.”). FMLA regulations also provide that:

If the employee has been on a workers’ compensation absence during which FMLA leave has been taken concurrently, and after 12 weeks of FMLA leave the employee is unable to return to work, the employee no longer has the protections of FMLA and must look to the workers’ compensation statute or ADA for any relief or protections.

29 C.F.R. § 825.216(d).

Turning to the evidence, the appeals court noted that BRP had adequately notified Dotson that his leave was designated as FMLA leave and that his workers’ compensation leave would run concurrently with his FMLA leave. BRP did this through its employee handbook and through its January 19 letter to Dotson:

When an employee misses work due to a work related injury, personal illness or family
emergency the employee may also be eligible for FMLA Leave which runs concurrent with
Workers’ Compensation and Short Term Disability.

As long as the employer gives adequate notice to the employee that leave time has been designated as FMLA leave and that workers’ compensation leave will be counted against remaining FMLA leave time, workers’ compensation and FMLA leave may run concurrently.

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On March 17, 2008, a federal jury awarded Nicholas Lore $2.2 million dollars in an employment discrimination suit alleging violations of the FMLA. Still yet to be awarded are liquidated damages in an amount equal to the $2.2 million verdict, prejudgment interest (as required by the FMLA Act) and attorney’s fees. After these items are tallied, the total judgment could reach close to $8 million. The main reason for the large award was that Lore was making $600,000.00 a year as a regional manager for Chase Manhattan Mortgage Corporation.

Chase forced Lore out of his position after he requested FMLA leave on several occasions. Chase tried to play it off as if Lore had resigned his position from Chase. Lore maintained otherwise and the jury believed him and not Chase.

Gary R. Kessler of Irvin & Kessler represented Chase, along with Ann B. Hale-Smith of his firm and William L. Pratt of Everitt, Pratt & Latham in Atlanta. Amanda A. Farahany of Barrett & Farahany represented plaintiff Nicholas Lore.

Here’s the docket report.

According to the docket, Chase filed the following motions:

3/28/08 – MOTION for Stay of Execution of Judgment with Brief In Support

4/3/08 – MOTION for Judgment as a Matter of Law Or, Alternatively, For A New Trial
And To Deny Liquidated Damages with Brief In Support

4/3/08 – MOTION For Remittitur Of Judgment As As Matter Of Law with Brief In
Support

Lore filed a motion for attorney’s fees and MOTION for Judgment on Liquidated Damages, Interest and Reinstatement with Brief In Support on April 3 as well.

In his motion, Lore asks for $550,000 in attorney’s fees.

See followup on Chase’s motion for judgment as a matter of law or new trial in our monthly update

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1 – Whether two employers could be deemed single employer under integrated employer test – in this case, they could not as they didn’t have common management, integrated operations, had no centralized control of labor relations and were not subject to common ownership or financial control.

2 – Whether two entities could be a joint employer for purposes of satisfying numerosity requirements of FMLA – court found that two entities were a joint employer where staffing agency provided firm’s specialized technical staff and acting in firm’s interest by managing technical employee and ensuring firm’s needs were met.

3 – Which employer was primary employer and which was secondary employer of employee requesting FMLA leave – in the case, the staffing agency was the primary employer.

4 – Whether notice to primary employer of FMLA leave constituted notice to both employers – notice to primary employer constitutes notice to both employers.

5 – Whether employee set out failure to reinstate claim under FMLA;

6 – Whether staffing agency that bid on and took over placement agency’s contract became a successor in interest under FMLA – staffing agency did in this case.

7 – Whether employee’s working hours at predecessor counted towards the 12 month FMLA requirement – as staffing agency had become a successor in interest, employee’s time with predecessor would count towards her FMLA eligibility.

Baker v. Hunter Douglas, Inc. 2008 WL 744734 (C.A.3 (N.J.))

Employee alleged that employer violated FMLA by failing to reinstate her job after she came back from FMLA leave; however, employee could not show that she could perform essential functions of her former position at time of expiration of her FMLA leave (could not work full time) – failure to reinstate job did not violate FMLA.

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

Use of sick leave did not implicate FMLA (in order to establish retaliation claim and required protected activity) especially when employee insisted at time of taking sick leave that FMLA did not apply.

Employee waived interference claim under FMLA by not including it in pretrial order.

Four years passing between firing and leave taken destroyed any causal connection between the two events.

read more recent FMLA case summaries in our monthly newsletter – April edition coming April 8

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Under the interference theory, if an employer interferes with an employee’s FMLA-created right to a medical leave, it has violated the FMLA, regardless of its intent.

A prima facie case of interference requires a showing that: (1) plaintiff was entitled to FMLA leave; (2) that an adverse action by the employer interfered with plaintiff’s right to take FMLA leave; and (3) that the employer’s adverse action was related to the exercise or attempted exercise of plaintiff’s FMLA rights.

In this particular case, the employer argued that the employee was not entitled to FMLA leave because she didn’t give the required notice of her need for FMLA leave. The FMLA requires 30 days’ notice for foreseeable leave or notice as soon as practicable for unforeseeable leave. The court indicated that the issue of proper notice was separate from the issue of an employer’s interference with the exercise of an employee’s FMLA rights. Disputed facts prevented a determination by the court on the issue of whether proper notice was given.

I’ll try to give a quick facts summation. This must be a typical fact scenario where an employee misses work and continues to miss work as her condition gets worse and gives vague statements (according to the employer) of how long she will be out and what exactly her health situation is. The employee, of course, argues that she followed the employer’s absenteeism rules to the hilt and explicitly described her health condition to the employer. Finally, this particular absence (especially in light of several other past periods of absence) is the straw that breaks the camel’s back and the employer fires the employee – leading to an FMLA suit.

What else is interesting about an interference claim is that

even when an employee requests and can demonstrate an entitlement to FMLA leave, she has no greater rights than the employee who continues to report to work. Thus, an employee may be terminated, even where the termination interferes with her ability to take FMLA leave, so long as she would have been terminated regardless of her leave request.

Of course, the burden is on the employer to prove that the employee would have been terminated regardless of her leave request.

In the instant case, the employer argued that the employee misled it about her health condition thus disqualifying her from entitlement to FMLA leave. The court again said that material facts were in dispute precluding dismissal of the claim on summary judgment. I mention it merely as an example of how an employer argued against the first element of the prima facie case.

To establish the second element of an interference claim, the employee must show that she was prevented from taking the full twelve weeks’ of leave guaranteed by the FMLA, denied reinstatement following leave, or denied initial permission to take leave. In the instant case, the plaintiff argued that she was denied the right to reinstatement. The employer argued that the right to reinstatement did not accrue because the plaintiff was not on FMLA leave as she did not give proper notice of need for leave and/or misled the employer concerning her health condition.

Finally, the third element concerns whether the employer’s adverse action was related to the exercise or attempted exercise of plaintiff’s FMLA rights. Here, the employer argued that the employee cannot prove the third element of her prima facie case since she was terminated because she did not call in to report her absences on two or more consecutive work days, and that the FMLA does not exempt employees from compliance with the employer’s attendance and reporting requirements. Again, the court found that this was a disputed material fact (whether plaintiff called in to work to give notice of her absences as the plaintiff claimed that she did and the employer claimed otherwise) precluding summary judgment.

In essence, the employer is arguing that its rules requiring employees to call in if they are absent apply to all employees whether on FMLA leave or not; therefore, you can still lose your job for not following the rules even if you are on FMLA leave.

This case summary should give a basic idea on interference claims. Intent to interfere with an employee’s FMLA rights is not required but this is tempered by the employer’s ability to avoid liability by proving that the adverse action would have occurred despite the employee’s being on FMLA leave.

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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 letter, the lawyer emphatically indicated that the FMLA Act did not apply. It appears that this was erroneously done for fear of Ms. Ney losing
her paid sick leave. Later, the clerk was terminated and claimed FMLA retaliation despite her attorney’s earlier protests that the FMLA did not apply.

How did it all turn out? Subscribe to our monthly newsletter coming out March 3 to find out.

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True North originally stated to her (before her leave) that she could return to work after her medical leave. True North was anything but true to its word as it refused to return Cox to work upon her attempt to do so. It later terminated her employment.

True North argued that Cox was not an eligible employee because she did not satisfy the FMLA’s requirement that she have worked 12 months for True North prior to taking the leave. True North claimed that Cox could not aggregate her two periods of employment with True North to satisfy the 12 month requirement.

An eligible employee, as defined by the FMLA, is “an employee who has been employed (i) for at least 12 months by the employer with respect to whom leave is requested … and (ii) for at least 1,250 hours of service with such employer during the previous 12-month period.” 29 U.S.C. § 2611(2)(A).

The district court looked at several sources for advice as to how to rule:

1 – In the case of Mulcher v. Dunlap Memorial Hospital, 485 F.3d 854 (CA6 2007), an employee tried to meet the 1250 hour requirement by tacking on bonus hours to the employee’s actual hours of service. The court held that bonus hours did not constitute “hours of service” for purposes of determining FMLA eligibility. The Mulcher court did not consider the question of whether an employee’s employment need be continuous to satisfy the 12 month requirement.

2 – Other district courts had held that an employee could aggregate periods of employment with the same employer to meet the 12 month requirement. Bell v. Prefix, Inc., 422 F.Supp.2d 810, 813 (E.D.Mich.2006) (holding that “[t]he plain language of the statute does not … support defendant’s contention that the 12 months must be continuous”); Mitchell v. Continental Plastic Containers, Inc., No. C-1-97-412, 1998 U.S. Dist. Lexis 21464 (S.D.Ohio March 27, 1998), adopting1998 U.S. Dist. Lexis 21465 (S.D.Ohio March 3, 1998) (finding that the plain language of the statute does not require a plaintiff to work 12 consecutive months to be an FMLA-eligible employee).

3 – One federal circuit court had so held as well – Rucker v. Lee Holding Co., 471 F.3d 6, 13 (1 st Cir.2006)(finding that regulations promulgated by US Department of Labor establish that previous periods of employment do count).

4 – Employers should not be able to employ employees for less than 12 months at a time merely to avoid FMLA obligations/coverage either.

Based on these authorities, the court ruled that an employee can aggregate various periods of employment with the same employer in order to meet the 12 month eligibility requirement of FMLA.

read the full story in our FMLA newsletter

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Specifically, unless the parties stipulate as to their contents and authenticity, FED.R.EVID. 1007; documents must meet a two-prong test: (1) they must be attached to and authenticated by an affidavit (or a sworn or certified copy must be attached to or served with the affidavit); and (2) the affiant must be a competent witness through whom the documents may be received into evidence at trial. Stuart v. General Motors Corp., 217 F.3d 621, 636 n. 20 (8th Cir.2000); FED.R.CIV.P. 56(e).See also 11 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE ¶ 56.14(2)(c) (3d ed. 1997) (“Unauthenticated documents, once challenged, cannot be considered by a court in determining a summary judgment motion.”). Therefore, regardless of the documents’ essential nature or probative value; without proper foundation, they will not be permitted for summary judgment purposes. Cordray v. 135-80 Travel Plaza, Inc., 356 F.Supp.2d 1011, 1015 (D.Neb.2005)

And the court actually did exclude several of Nationwide’s exhibits for failing to meet this test. How do you explain that one to your client especially at $500 or so an hour? Can we say, “New counsel?”

Facts – Beginning in September 2003, Andrew Rabe worked in a temp position at Nationwide. He hired on full time in January 2004 as a senior accountant. Under his first supervisor, Mr. Parks, Rabe had no problems. His next supervisor, Mr. McGeehan, experienced difficulties with Rabe.

On August 17, 2005, Rabe informed McGeehan that his wife was scheduled to give birth on September 23, 2005 and requested 2 weeks of FMLA leave. Rabe claims that McGeehan told him that he would not be able to take leave if Nationwide was really busy and he was not entitled to the same leave as his female co-workers. Rabe claims that McGeehan refused his FMLA leave request.

On August 26, 2005, Rabe was called into a meeting with McGeehan and Ms. Baker where he was told that he would be eligible for FMLA leave and was given the necessary paperwork to fill out.

McGeehan also provided him a memo on the same date:

The issue that I want to outline is not [Mr. Rabe's] desire to take time off, but the manner in which [he] approached me. Instead of talking in a professional manner, [Mr. Rabe] almost immediately put me on the defensive by challenging the time off another associate received when they had a child.
This is just one example of what has become a pattern of unprofessional and unacceptable behavior that [Mr. Rabe] has been displaying in the accounting department …
…
Any further incidents that do not adhere to these guidelines [or other directives] will result in a written warning and could include termination, if the offense warrants such action.

To complete Rabe’s perfect day, McGeehan assigned him a filing project to be finished by the end of the day. Rabe took on the assignment with much fervor but was unable to complete it by day’s end. He missed the following Monday because of health reasons and Nationwide terminated him on Tuesday, Aug. 30.

Nationwide attempted to claim that the decision to fire Rabe was made by Parks, his former supervisor. Parks fired Rabe for failing to complete the filing assignment and for lack of confidence in his abilities to perform as instructed.

At this point, Nationwide may have lost all credibility with the court.

A further hit to Nationwide’s credibility came when they took issue with Rabe’s “tardiness”; however, testimony by its employees negated that as it was of no concern to Parks as reflected in his testimony.

Nationwide’s first argument is that termination does not constitute interference because “termination itself is not a refusal to authorize leave or ‘chilling’ factor.”Therefore, Nationwide argues, Mr. Rabe’s claim would be more properly stated (if at all) as one of retaliation, under Section 2615(a)(2).

The district court made short work of that argument:

Whether an alleged act occurs prior to, during, or subsequent to FMLA leave, that which “deters an employee from participating in protected activities constitutes an ‘interference’ or ‘restraint’ of the employee’s exercise of his rights.’“ Stallings, 447 F.3d at 1050 (quoting 29 C.F.R. § 825.220(b)).

At this point, Nationwide claimed that it would have fired Rabe despite his FMLA leave inquiry. Somebody must have made the judge unhappy because I’ve never seen language so strong:

For summary judgment purposes, Nationwide has failed to sufficiently establish the existence of a lawful reason unrelated to Mr. Rabe’s exercise of FMLA rights. First, much of the evidence relied upon by Nationwide is controverted and/or without adequate foundation, and therefore unusable by the Court; the remaining documents largely consist of those prepared subsequent to Mr. Rabe’s leave request. Next, the deposition testimony of Nationwide’s management is substantially inconsistent, equivocal, and/or without foundation; and often useless to support its mis-characterized statements of “fact.” Lastly, the veracity of any “performance issues” prior to Mr. Rabe’s leave request has not been established. Notably, the record is absent any proper evidence which demonstrates that Mr. Rabe’s employment with Nationwide was ever in jeopardy, notwithstanding his inconsistent work schedule and previous cash application inaccuracies. Further, the evidence is not summarily sufficient to prove that Mr. Rabe had been issued warnings or exhibited unprofessional behavior. In fact, Mr. Rabe received a rating of “good” on his most recent performance evaluation. See also note 4, supra.Accordingly, Mr. Rabe’s interference claim survives summary judgment.

The court used much of the same reasoning to deny Nationwide’s summary judgment motion on Rabe’s retaliation claim as well.

Rabe v. Nationwide Logistics, Inc., —F.Supp.2d—, 2008 WL 113658 (E.D.Mo.)

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