FMLA INSIGHTS
Rachel T. Rowley
BrownWinick
666 Grand Avenue, Suite 2000
Des Moines, IA 50309-2510
Telephone: 515-242-2417
Facsimile: 515-323-8517
E-mail: rowley@brownwinick.com
Supervisor’s ill-considered
email forms the basis of an
FMLA lawsuit
Shaffer v. American Medical Association (7th
Cir. October 18, 2011)
FACTS:
• William Shaffer was the Director of Leadership Communications for
the American Medical Association (AMA).
• In 2008, when the economic downturn was taking shape, the AMA
cut internal budgets.
• When initial cutbacks were not enough, the AMA slated various staff
positions for elimination.
• Shaffer’s boss indicated that it would be an “obvious choice” to
eliminate the position of another employee in Shaffer’s Department
because that employee’s duties had changed significantly and, in
any event, the AMA had stopped work on one of his core
campaigns.
Shaffer v. American Medical Association (7th
Cir. October 18, 2011) (cont.)
• When Shaffer’s boss was asked on October 28 whether Shaffer
should be slated for layoff, he did not believe cutting additional
positions was necessary, including Shaffer’s position.
• However, Shaffer’s supervisor suddenly had a change of heart – on
November 20, Shaffer asked for FMLA leave for knee replacement
surgery. Four to six weeks to be exact.
• By November 30 – Shaffer’s supervisor changed his tune
recommending now that Shaffer’s position be eliminated.
• Specifically in an email to his superiors he stated, “The team is
already preparing for Bill’s short-term leave in January, so his
departure should not have any immediate negative impact.”
Shaffer v. American Medical Association (7th
Cir. October 18, 2011) (cont.)
COURT RULING:
• Court found:
– Shaffer was eligible for FMLA leave, and that he had provided
notice of his intention to take that leave.
– Prior to that notice, there was no mention of elimination of his
position; after that notice, he was targeted for termination.
– Based upon those facts, coupled with Shaffer’s supervisor’s
email, the Court determined that a reasonable jury could
conclude that Shaffer’s exercise of his right to take leave under
the FMLA was a motivating factor in the decision to eliminate his
position.
Shaffer v. American Medical Association (7th
Cir. October 18, 2011) (cont.)
TIPS FOR EMPLOYERS:
• Supervisors should undergo training on FMLA –
supervisors and manager must be cognizant that a claim
of interference does not require proof of actual “intent” to
interfere, but requires that plaintiff’s prove that the
employer somehow denied an exercise of rights under
the Act.
• Here, the supervisor’s email which specifically
referenced Shaffer’s request for leave in connection with
the decision to terminate him was all the Court needed to
find that a reasonable jury could conclude that
interference did take place.
Not Returning Employee’s
Calls is Sufficient for FMLA
Retaliation Claim
Hofferica v. St. Mary Medical Center (Eastern
District Pennsylvania, September 20, 2011)
FACTS:
• The plaintiff was a registered nurse who was approved for
intermittent FMLA leave for an unusual medical condition that
involved tinnitus, hearing loss and vertigo.
• In September 2008, she took extended FMLA leave to undergo
treatment for the condition. She expected to return by November 6,
2008.
• According to the employee, during her leave, she and her husband
regularly provided her direct supervisor with leave updates.
However her supervisor often failed to return the calls.
• In early November, she provided a return to work certification
clearing her return for November 13.
Hofferica v. St. Mary Medical Center (Eastern
District Pennsylvania, September 20, 2011)
(cont.)
• She also contacted her supervisor to ask for a “modest”
extension through November 13, but the supervisor
again did not return the call.
• Instead, the Medical Center sent the employee a letter
informing her that her employment had been terminated
because she failed to return to work on November 6
when her FMLA leave allotment had been exhausted.
• Employee sued claiming, among other things that the
Medical Center retaliated against her for taking FMLA
leave.
Hofferica v. St. Mary Medical Center (Eastern
District Pennsylvania, September 20, 2011)
(cont.)
COURT RULING:
• Supervisor’s failure to return phone calls was
evidence of “an antagonistic attitude toward the
employee, particularly where – as here – such
refusal began after the employee initiated FMLA
leave,
and
continued
despite
regular
communications from the employee.”
Hofferica v. St. Mary Medical Center (Eastern
District Pennsylvania, September 20, 2011)
(cont.)
TIPS FOR EMPLOYERS:
• It is imperative that employers maintain contact with
employees on FMLA leave. Employers should communicate
with the employee on leave at regular intervals.
• Where FMLA leave ends, employers must be prepared to
analyze requests for additional leave under the parameters of
the ADA.
• Don’t let supervisors off the hook – discipline if they fail to
manage the situation properly and provide additional training.
Frequent Calls to Employee
during FMLA Leave may
create Interference with that
Leave
Terwilliger v. Howard Memorial Hospital (Western
District of Arkansas, January 27, 2011)
FACTS:
•
Regina Terwilliger worked for Howard Memorial Hospital for approximately
two years, first in the kitchen and then in housekeeping.
•
In November 2008, she submitted a request for FMLA leave for back
surgery.
•
After her surgery she was released to return to work without restrictions on
February 12, 2009 and returned to work on February 16, 2009, having used
eleven weeks of FMLA leave.
•
During her recovery, her supervisor, Kim Howard contacted Terwilliger
weekly to inquire when she was going to return to work.
•
According to Terwilliger, during one call, she asked Howard if her job was in
jeopardy, and Howard replied that she should return to work as soon as
possible.
Terwilliger v. Howard Memorial Hospital (Western
District of Arkansas, January 27, 2011) (cont.)
• In addition, Terwilliger testified that the HR
director, discouraged her from using FMLA leave
by telling her not to tell anyone that she had
informed her of her FMLA rights.
• In October and November 2008, four hospital
employees had money stolen from their desks or
lockers.
• In December, Hospital management placed a
camera in one office area.
Terwilliger v. Howard Memorial Hospital (Western
District of Arkansas, January 27, 2011) (cont.)
• On March 9, 2009, in spite of the fact that Terwilliger was not
assigned to clean that particular office, she was caught on
tape opening a desk drawer, looking into it, and closing it
without removing anything from the drawer.
• She then was terminated, along with another housekeeping
employee who was also caught on tape removing something
from the desk drawer and putting it in her pocket.
• Terwilliger filed a lawsuit claiming that she was fired in
retaliation for exercising her rights under the FMLA and that
the hospital had interfered with her FMLA rights by pressuring
her to return to work while she was on leave.
Terwilliger v. Howard Memorial Hospital (Western
District of Arkansas, January 27, 2011) (cont.)
COURT’S RULING:
• Court rejected her retaliation claim.
• On her interference claim however, the Court held:
– Terwilliger had a right not to be discouraged from
taking FMLA leave.
– Her supervisor’s weekly phone calls to Terwilliger
may have discouraged her from fully exercising
her rights under the FMLA.
Terwilliger v. Howard Memorial Hospital (Western
District of Arkansas, January 27, 2011) (cont.)
TIPS FOR EMPLOYERS:
• Employers and their supervisors must not give
the impression that the employee is being
pressured to return to work.
• Although employers may require employees to
report periodically on their status and intent to
return to work, employers must not discourage
employees from taking their allowed leave.
Conflicting Fitness for Duty
Reports Preclude Retaliation
Claim
Degraw v. Exide Technologies
FACTS:
•
Terry Degraw worked for Exide Technologies as a senior material handler at
its plant in Salina, Kansas.
•
According to a written job description, his job involved manually handling
batteries weighing from 5 to 80 pounds, occasionally lifting batteries
weighing from 80 to 120 pounds with assistance, moving and carrying
pallets weighing up to 40 pounds, and continuous standing, walking, or
riding a truck during a 12-hour shift.
•
Degraw had a long history of back pain and injuries. As a result, Degraw
sought and was granted FMLA leave beginning in June 2006. He
eventually exhausted his FMLA leave, and was granted additional leave
while he underwent further treatment.
•
On November 27, 2006, Degraw’s chiropractor released him to return to
work.
Degraw v. Exide Technologies (cont.)
•
However, on December 7, 2006, Degraw saw Dr. Hanson, a physician
under contract with Exide to perform examinations and determine
whether employees on medical leave can return to work. Dr. Hanson
recommended that Degraw avoid repetitive bending, stooping, lifting,
twisting, climbing, and lifting more than 20 pounds and noted that these
restrictions were not consistent with Degraw’s job as a material handler.
•
Exide determined that Degraw could not safely perform any available
jobs at the Salina plant and terminated his employment.
•
Degraw filed suit for retaliation and also claimed that Exide violated the
FMLA by forcing him to take unnecessary medical leave and failing to
reinstate him.
•
Degraw argued that Exide improperly relied upon the report of its own
doctor
Degraw v. Exide Technologies (cont.)
COURT’S RULING:
• The Court rejected Degraw’s argument that Exide
improperly relied upon the report of its own doctor –
noting that Dr. Hanson reviewed Degraw’s MRI and was
familiar with his medical history, work history and the job
requirements for his position.
• The Court also noted that there was no evidence for
Degraw’s contention that Dr. Hanson issued his
recommendations on Exide’s instruction.
Degraw v. Exide Technologies (cont.)
TIPS FOR EMPLOYERS:
• The FMLA does not require an employer to reinstate an
employee who is not able to perform the essential functions of
his or her job.
• Even if an employee has a release from his or her own
physician, nothing in the FMLA prohibits an employer from
requiring an employee to visit with its own doctor, at its own
expense, to confirm the employee’s ability to work.
• Employer’s should exercise caution when faced with
conflicting doctor’s reports regarding an employee’s ability to
work.
Holiday FMLA Leave Abuse
Equals Proper Termination
Rydalch v. Southwest Airlines
FACTS:
•
Douglas Rydalch was a reservation sales agent for Southwest.
•
When Southwest closed its reservation center in Salt Lake City where he
worked, it transferred him to Houston. However, his family remained in
Utah.
•
In 2004 he injured his back and his issues continued through 2007.
•
Curiously his back injury would tend to flare up on the days just before or
after his previously scheduled time off – 35 times to be precise.
•
In addition, he often used FMLA leave on important dates and holidays. In
2007, for example, he used FMLA leave in conjunction with July 4, Labor
Day, Thanksgiving Day, Christmas Day, New Years Eve and his own
birthday.
Rydalch v. Southwest Airlines (cont.)
•
Southwest caught onto his pattern of absences and began monitoring his
FMLA use.
•
It learned that he had a habit of taking flights to and from Utah on the days
he requested FMLA leave.
•
Rydalch’s supervisor learned that he again had taken FMLA leave and later
learned that he had been out of town when he called in his absence on
Christmas Eve 2007.
•
Upon further investigation, the supervisor determined that he booked a trip
to Utah from December 22 to 27 – so it was not surprising when he also
called in on the 26th and 27th.
•
Southwest terminated his employment for abusing FMLA leave.
•
Rydalch sued claiming retaliation and interference with his FMLA rights.
Rydalch v. Southwest Airlines (cont.)
COURT’S RULING:
• Southwest rightfully had an honest belief
that Rydalch was abusing FMLA leave and
that its termination decision was
legitimate.
Rydalch v. Southwest Airlines (cont.)
TIPS FOR EMPLOYERS:
• Employers should be vigilant to identify
patterns of FMLA abuse and act swiftly to
investigate and stop it from occurring.
• When abuse is suspected, employers
have every right to investigate the
circumstances.
No FMLA Protection for
Employees Who Lie
Prigge v. Sears (3rd Circuit, June 23, 2011)
FACTS:
• The Plaintiff applied for FMLA leave, telling his employer
that he was suffering from prostrate cancer, which had
been in remission.
• In fact, though, the employee needed the leave to seek
treatment for Bipolar Disorder.
• Approximately 8 months after he was hired, he was
hospitalized due to depression, at which time he
confessed to his employer the real reason he had been
missing work.
Prigge v. Sears (3rd Circuit, June 23, 2011)
(cont.)
• Before returning to work, the employee was supposed to provide
documentation to support his absences.
• Although he provided some of the medical certification, he never
complied fully with his employer’s request for information.
• He was subsequently terminated and later filed suit.
• In defending the lawsuit, the employer offered two reasons for
terminating the employee:
– The employee’s failure to provide the required documentation;
and
– The false reasons offered by the employee as the basis for the
leave.
Prigge v. Sears (3rd Circuit, June 23, 2011)
(cont.)
COURT’S RULING:
• Although the employee may have been entitled
to the leave that he took had he been honest
about the reasons for it, he became ineligible for
the protections of the FMLA when he lied about
his illness.
• Without the protections of the FMLA, there was
no basis for liability and the case was dismissed.
Prigge v. Sears (3rd Circuit, June 23, 2011)
(cont.)
TIPS FOR EMPLOYERS:
• Employees must tell the truth when
applying for leave.
• The employer is not the only one obligated
to follow the FMLA’s many rules.
To Invoke FMLA Protection to
Care for Another, Some
Geographic Proximity Is
Required by the Employee
Baham v. McLane Foodservice Inc.
(5th Circuit July 1, 2011)
FACTS:
• Girard Baham was hired by McLane Foodservices, a Texas
company in 2006.
• During a family vacation in Honduras during March 2008, Baham’s
daughter fell and suffered serious head trauma. She was airlifted to
Miami where she underwent emergency surgery.
• Baham called his supervisor and asked for FMLA leave related to
his daughter’s injury.
• In response, the supervisor told Baham to “take all the time he
needed,” and forwarded FMLA leave forms to him for completion.
Baham v. McLane Foodservice Inc.
(5th Circuit July 1, 2011) (cont.)
• Baham completed and returned the forms, asking for leave
from March 20 to May 5, 2008.
• He was subsequently notified that the paperwork was
incomplete because it did not include information indicating
the expected duration of his daughter’s treatment. At no point
did he provide the requested information.
• On April 12 Baham returned to the family’s home in Texas,
leaving his wife and daughter in Miami.
• He claimed he returned home to prepare the house for his
daughter’s return.
Baham v. McLane Foodservice Inc.
(5th Circuit July 1, 2011) (cont.)
• His wife and daughter returned on April 29 and he returned to work
on May 5.
• Upon his return to work, the employer informed him that his FMLA
paperwork still was incomplete, and again was asked to provide the
required information.
• Later that day, he left the work premises, leaving his keys and ID
with a security guard.
The employer interpreted his abrupt
departure as a resignation, and sent a letter two days later,
terminating his employment.
• Baham filed a lawsuit, claiming he was fired in retaliation for
requesting/taking FMLA leave.
Baham v. McLane Foodservice Inc.
(5th Circuit July 1, 2011) (cont.)
COURT’S RULING:
•
The Court upheld a dismissal of Baham’s claims.
•
Because Baham was not “taking care” of his daughter after he returned to
Texas, he was not entitled to FMLA leave and therefore could not set forth a
cognizable claim of retaliation.
•
In order to be entitled to FMLA leave (according to the Court), an employee
must show that he is needed “to care for” a family member with a serious
health condition. The Court cited the fact that various courts have affirmed
the use of FMLA leave only where the employee is in physical proximity for
the cared-for person.
•
The activities in which Baham was engaged – although preparation for his
daughter’s return – were not “care” in the sense required by the FMLA
which requires some level of participation in the ongoing treatment of the
family member’s medical condition.
Baham v. McLane Foodservice Inc.
(5th Circuit July 1, 2011) (cont.)
TIPS FOR EMPLOYERS:
• Employers should not interpret this case to
mean that the employee/caregiver must be the
sole provider of care, or that the care must be
medical in nature.
• The facts of the particular situation must be
reviewed carefully before a decision is made
that would adversely affect the employment of
the person requesting or participating in FMLA
leave.
Employers Must Prove
Reasons for Denying
Reinstatement after FMLA
Leave
Sanders v. City of Newport
(9th Circuit March 17, 2011)
FACTS:
• Diane Sanders worked as a utility billing clerk for the City of
Newport for approximately 10 years.
• After the City started to use a different type of billing paper,
Sanders began to suffer health problems.
• She consulted with a specialist who diagnosed her as
suffering from multiple-chemical sensitivity that was triggered
by handling the new billing paper.
• On this advice, Sanders requested and receive FMLA leave.
Sanders v. City of Newport
(9th Circuit March 17, 2011) (cont.)
• While Sanders was out on leave, the City notified her that she
needed “to present a fitness for duty certificate from her
physician prior to being restored to employment.”
• Sander’s doctor faxed a letter to the City stating that she could
return to work, so long as she avoided using the problem-causing
paper, which the City had stopped using during her leave.
• The City, however, subsequently terminated her employment
because it could not guarantee that her workplace would be safe
for her due to her chemical sensitivity.
• Sanders sued
reinstatement.
for
interfering
with
her
FMLA
right
to
Sanders v. City of Newport
(9th Circuit March 17, 2011) (cont.)
COURT’S RULING:
• To prove an interference claim, the employee must establish that:
– She was eligible for the FMLA’s protections,
– Her employer was covered by the FMLA,
– She was entitled to leave under the FMLA
– She provided sufficient notice of her intent to take leave, and
– Her employer denied her FMLA benefits to which she was
entitled.
• Evidence that an employer failed to reinstate an employee “to her
original (or an equivalent) position establishes a prima facie
denial of the employee’s rights under the FMLA.
Sanders v. City of Newport
(9th Circuit March 17, 2011) (cont.)
• However, the right to reinstatement is not
absolute.
• When an employer seeks to establish that
he has a legitimate reason to deny an
employee reinstatement, the burden of
proof on that issue rests with the
employer.
Sanders v. City of Newport
(9th Circuit March 17, 2011) (cont.)
TIPS FOR EMPLOYERS:
• While the right to reinstatement is not
absolute, an employer who denies
reinstatement to an employee must be
prepared to prove the employee had no
such right.
FMLA Protects an Employee’s
Pre-Eligibility Request for
Post-Eligibility Leave
Pereda v. Brookdale Senior Living
Communities, Inc.
(11th Circuit January 10, 2012)
FACTS:
• Kathryn Pereda was employed by a senior living facility.
• Eight months after she began working for the facility, she
advised the facility that she was pregnant and would be
requesting FMLA leave after the birth of her child.
• Prior to the facility learning about her pregnancy, Pereda had
received good evaluations from the facility.
Pereda v. Brookdale Senior Living
Communities, Inc.
(11th Circuit January 10, 2012) (cont.)
• After notifying the facility of her pregnancy, the
facility placed her on a performance improvement
plan with unattainable goals.
• Pereda suffered pregnancy-related medical issues.
After she was placed on bed rest by her physician,
the facility terminated Pereda’s employment.
Pereda v. Brookdale Senior Living
Communities, Inc.
(11th Circuit January 10, 2012) (cont.)
COURT’S RULING:
• The Court reversed the dismissal of Pereda’s
claims.
• In order to receive FMLA protections, one must be
both eligible and entitled to leave.
• Generally, an employee is eligible if they have
worked 1,250 hours in the past 12 months and have
been employed for a total of at least 12 months. A
triggering event for FMLA is the birth of a child.
Pereda v. Brookdale Senior Living
Communities, Inc.
(11th Circuit January 10, 2012) (cont.)
• The court acknowledged that at the time
Pereda requested leave, she was not eligible
for FMLA protection because she had not
worked the requisite hours and had not yet
experienced a triggering event. However, at
the time she gave birth to her child, she
would have been entitled to FMLA protection.
Pereda v. Brookdale Senior Living
Communities, Inc.
(11th Circuit January 10, 2012) (cont.)
• The court reversed the district court and
found that a pre-eligible request for posteligible leave is protected by the FMLA. In
other words, the FMLA protects pre-eligible
employees who discuss with their employers
a post-eligibility leave request from
interference and retaliation.
Pereda v. Brookdale Senior Living
Communities, Inc.
(11th Circuit January 10, 2012) (cont.)
TIPS FOR EMPLOYERS:
• Supervisors must be trained that employees who
discuss FMLA leave and who are not currently
eligible for FMLA protections may still be protected if
they are requesting leave that will begin after they
become eligible under the FMLA.
• Employers must keep accurate records of when an
employee is eligible for FMLA protection and take
careful note of when the employee is requesting
FMLA leave.
Website: www.brownwinick.com
Toll Free Phone Number: 1-888-282-3515
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Des Moines, Iowa 50309-2510
Telephone: (515) 242-2400
Facsimile: (515) 283-0231
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Pella, Iowa 50219
Telephone: (641) 628-4513
Facsimile: (641) 628-8494
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