55th Annual Conference
Washington Marriott Wardman Park · Washington, DC · June 28 – July 1, 2015
6D
ADA and FMLA
Update
ADA AND FMLA DEVELOPMENTS 2015
Tuesday, June 30, 2015 2:00 – 3:15 pm
Session 06D
Megan P. Norris
Miller Canfield, Paddock and Stone, P.L.C.
150 West Jefferson, Suite 2500
Detroit, Michigan 48226
(313) 963-6420
Norris@Millercanfield.com
www.millercanfield.com
I.
A.
Darrell R. VanDeusen
Kollman & Saucier, P.A.
1823 York Road
Timonium, Maryland 21093
(410) 727-4300
dvand@kollmanlaw.com
www.kollmanlaw.com
The ADA: What’s Happened, What’s Happening, and What’s to Come.
Attendance
While many attendance issues are addressed in determining whether an employee is
“qualified,” and employers are given some leeway in establishing and enforcing attendance
policies, terminating an employee for “misconduct” as a result of attendance violations can raise
ADA issues. In Picarazzi v. John Crane, Inc., 2011 WL 486211 (S.D. Tex., February 7, 2011),
an employee was assessed attendance violation points while on a leave for treatment for
alcoholism, despite the fact that the leave was protected under the FMLA. While the Court
acknowledged that absences might be protected under the FMLA but not under the ADA, it
noted that the termination would not have occurred but for the inappropriately calculated
attendance points and held that this raised a question of fact as to whether the employee was
terminated in retaliation for taking time off as a result of a disability in violation of the ADA.
Modification of work schedules and leaves of absence may be a reasonable
accommodation under the ADA. For example, in Hubbard v. Day & Zimmerman Hawthorne
Corp., 2015 WL 1281629 (D. Nev. March 20, 2015), a court recently held that an employee was
entitled to a short extension of her leave of absence when she developed emotional issues
following a hysterectomy. Similarly, in Casteel v. Charter Communications, Inc., 2014 WL
5421258 (W.D. Wash. Oct. 23, 2014), the employee was granted 12 weeks of FMLA leave for
cancer treatment, then was granted two 30-day extensions. Even though it later became apparent
that the employee would not be able to return to work in the foreseeable future (her physician
stated that her treatment was not going well and could continue indefinitely), at the time of the
employee’s termination the employer did not have any discussion with the employee regarding
her need for additional time off. The Court confirmed that an indefinite leave is not a reasonable
accommodation, but held that at the time the decision was made the employee had a scheduled
return to work date five months later, which while lengthy was not indefinite, so the employee
should not have been terminated.
Many courts considering the issue, however, have allowed employers to enforce
consistently applied attendance policies, noting that a regular level of attendance is a required
element of most jobs. See, e.g., Valdez v. McGill, 2012 WL 432635 (10th Cir., Feb. 13, 2012)
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(“physical attendance in the workplace is itself an essential function”). Some courts have held
that the employee is not “qualified” if the employee cannot meet the attendance requirements.
See, e.g., Ousley v. New Beginnings C-Star, Inc., 2011 WL 4899950 (E.D. Mo., Oct. 14, 2011),
(an employee who required indefinite leave could not perform the essential function of
reasonable and reliable attendance). Others have held that it is not a reasonable accommodation
to allow a “work when able” schedule. Whether attendance will be considered an essential
function such that the inability to meet the standard will make an employee unqualified will
depend in large part on an employer’s policies and the consistent enforcement of those policies.
The Court rejected the employer’s argument in Jacobs v. Marietta Memorial Hospital, 2010 WL
749897 (S.D. Ohio, Feb. 23, 2010), where a hospital manager had successfully performed her
duties with the ability to occasionally work from home until her supervisor took away that
accommodation and required that she use sick leave and give advance notice prior to any
absence. Similarly, in Valle-Arce v. Puerto Rico Parts Authority, 651 F.3d 190 (1st Cir. 2011),
the Court agreed that attendance was an essential function of the job but held that there was a
fact question for the jury as to whether the plaintiff could perform adequately with a modified
work schedule where she had been so accommodated by a prior supervisor without incident. In
Carmona v. Southwest Airlines Co., 604 F.3d 848 (5th Cir. 2010), the Court upheld a jury verdict
for a flight attendant who was unable to work up to one half of each month as a result of arthritis
flare-ups, noting that flight attendants had “nearly unlimited discretion in determining whether
and how often they want to work,” the plaintiff was able to perform all of the functions of her job
when she appeared for work, and at least five other flight attendants had exceeded the attendance
occurrences set forth in the collective bargaining agreement and were not disciplined. In Alastra
v. National City Corp., 2010 WL 4739763 (E.D. Mich., November 16, 2010), the plaintiff was a
part-time bank teller who had ten absences in less than a year as a result and requested a late start
time as a result of her epilepsy. While the Court found that working on a consistent basis and
being able to fill in for full time tellers whose shifts began early in the morning were “typical”
requirements, the Court held that they were not “essential” because non-disabled employees with
comparable attendance or requesting a modified schedule were not terminated.
While the EEOC agrees with the long line of cases holding that an indefinite leave is not
a reasonable accommodation, the agency has routinely found violations where an employer has a
policy stating that absence beyond a certain length of time (e.g., 6 months or a year) will lead to
automatic termination. Therefore, many employers now append “unless otherwise required by
law” or other limiting language to their policies. However, recent cases from the 6th and 10th
Circuit suggest that courts may uphold the bright-line policies. In Melange v. City of Center
Line, 482 Fed. Appx. 81 (6th Cir. 2012), the Court upheld a collective bargaining provision
providing that employees would be terminated after one year of leave, noting that the employer
also had an accommodation policy and there was no evidence that the employee was prohibited
from asking for an extension of the leave. More strongly, in Hwang v. Kansas State University,
753 F.3d 1159 (10th Cir. 2014), which was brought under the Rehabilitation Act, the Court held
that there was nothing inherently discriminatory in an inflexible six month leave policy, noting,
“to the contrary, in at least one way an inflexible leave policy can serve to protect rather than
threaten the rights of the disabled – by ensuring disabled employees’ leave requests aren’t
secretly singled out for discriminatory treatment, as can happen in a leave system with fewer
rules, more discretion, and less transparency.”
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The most comprehensive discussion of this issue is in the recent case of EEOC v. Ford
Motor Co., ___ F.3d ___, 2015 WL 1600305 (6th Cir. Apr. 10, 2015). In an en banc decision,
the Court held that an employee who could not appear for work in person on a consistent basis
could not perform the essential functions of her job, and that her request for a telecommuting
schedule up to four days per week was unreasonable. The case is heavily reliant on the facts,
which included a horrendous attendance record, documented poor performance over a long
period of time, an established telecommuting policy and practice, the plaintiff’s admission that
she could not perform a number of her job duties from home, a request for a “work when able”
schedule (as opposed to a set schedule for telecommuting), and several failed attempts to
telecommute successfully. However, the Court, while applying those facts to the law, also
makes a number of broad observations regarding attendance and the duty to accommodate.
Most courts hold that an employer bears the burden of proving that a job function is
essential, but that the plaintiff bears the burden of proving that he or she can perform the
essential functions. See, e.g., Hamlin v. Charter Township of Flint, 165 F.3d 426 (6th Cir. 1999);
Basith v. Cook County, 241 F.3d 919 (7th Cir. 2001); Reed v. LePage Bakeries, Inc., 102 F.
Supp.2d 33 (D. Maine 2000), aff’d, 244 F.3d 254 (1st Cir. 2001). However, some courts have
held that it is the employer’s burden to establish that the employee’s attendance poses an undue
hardship. See, e.g., Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638 (1st Cir. 2000);
Ward v. Massachusetts Health Research Institute, Inc., 209 F.3d 29 (1st Cir. 2000). This is the
position taken by the EEOC in its Enforcement Guidance on Reasonable Accommodation and
Undue Hardship (October 17, 2002).
B.
Misconduct Issues
Virtually every court considering the issue has held that an employer may enforce its
consistently-applied conduct standards, even if the misconduct is caused by a disability. See,
e.g., Tate v. Ancell, 551 Fed. Appx. 877 (7th Cir. 2014) (affirming termination for sleeping on the
job even though plaintiff alleged it was caused by his sleep apnea); Brumfield v. City of Chicago,
735 F.3d 619 (7th Cir. 2013) (an employer “may fire an employee for engaging in unacceptable
workplace behavior without violating the ADA . . . even if the behavior was precipitated by a
mental illness); McElwee v. County of Orange, 700 F.3d 635 (2nd Cir. 2012) (“workplace
misconduct is a legitimate and nondiscriminatory reason for terminating employment, even when
such misconduct is related to a disability”); Sullivan v. River Valley School District, 197 F.3d
804 (6th Cir. 1999), cert. den., 530 U.S. 1262 (2000) (teacher was disruptive at school board
meeting, used inappropriate language to student, and publicly disclosed confidential
information); Spath v. Hayes Wheels International, 211 F.3d 392 (7th Cir. 2000) (employee
terminated for submitted false information regarding his injury); Jones v. American Postal
Workers Union, 192 F.3d 417 (4th Cir. 1999); Newberry v. East Texas State University, 161 F.3d
276 (5th Cir. 1998). In Raytheon Co. v. Hernandez, 540 U.S. 44, 124 S.Ct. 513, 157 L.Ed.2d 357
(2003), the United States Supreme Court affirmed an employer’s refusal to re-hire an employee
based on his prior misconduct, even though that misconduct was arguably caused by a disability.
Most courts have held that an employer can establish and enforce its work rules. For
example, in Thomas v. Avis Rent A Car, 408 Fed. Appx. 145 (10th Cir. 2011), the Court upheld
the termination of a hearing impaired rental car service agent where he violated a consistently
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enforced policy that any agent failing to tag and immediately report lost items found in rental
cars would be terminated. An employer is not required to excuse compliance with valid work
rules even where the behavior is related to the employee’s disability. See also, Curley v. City of
North Las Vegas, 772 F.3d 629 (9th Cir. 2014) (employee terminated for threats of violence and
other bad behavior).
In Turner v. The Saloon, Ltd., 595 F.3d 679 (7th Cir. 2010), the plaintiff allegedly had
psoriasis and could not wear underwear. When a female employee found the plaintiff naked
while changing his clothes in the employee break room, the employer told him that if he was
going to strip all the way down, he would have to change in the men’s room. When the
employee was again found naked in the break room, the employer instituted a company-wide
policy about clothing requirements in spaces open to other employees. After additional
violations, the plaintiff was terminated. The Court held that the employer could enforce its dress
requirements and could require that the plaintiff only take off his clothes in a private restroom
stall. In Dovenmuehler v. St. Cloud Hospital, 509 F.3d 435 (8th Cir. 2007), the Court upheld the
termination of a nurse who stole prescription medications from a previous employer.
1.
Drugs and Alcohol
The ADA protection of a “qualified individual with a disability” does not include a
current user of illegal drugs where the employer’s action is based on that drug use. 42 U.S.C.
§§12114(a), 12210(a); 29 C.F.R. §1630.3(a); Fahey v. City of New York, 2012 WL 413990
(E.D.N.Y., Feb. 7, 2012) (firefighter terminated for positive cocaine test did not have ADA
action for discrimination based on post traumatic stress disorder). “Drugs” are controlled
substances as defined by the Controlled Substances Act, 21 U.S.C. §801, et seq., and “illegal
drugs” are those controlled substances which it is illegal to possess or distribute under that Act.
42 U.S.C. §§12111(6), 12210(d); 29 C.F.R. §1630.3(a). Courts considering the issue have held
that the ADA provisions regarding “illegal drugs” cover not only the use of illegal drugs, but
also the illegal use of legal drugs (e.g., the illegal use of prescription drugs). Shirley v. Precision
Carparts Corp., 726 F.3d 675 (5th Cir. 2013); Nielsen v. Moroni Feed Co., 162 F.3d 604 (10th
Cir. 1998). At least one court has held that the recent proliferation of states allowing the use of
marijuana, either for medical purposes or generally, does not change the fact that marijuana is
classified as an illegal drug under federal law: “[D]octor-recommended marijuana use permitted
by a state law, but prohibited by federal law, is an illegal use of drugs for purposes of the ADA,
and the plaintiffs’ federally proscribed medical marijuana use therefore brings them within the
ADA’s illegal drug exclusion.” James v. City of Costa Mesa, 700 F.3d 394 (9th Cir. 2012).
Although current users of illegal drugs are not protected, the ADA does protect
rehabilitated drug users who are no longer engaged in illegal drug use. 42 U.S.C. §§12114(b),
12210(b); 29 C.F.R. §1630.3(b). A recovering drug addict does not have a per se disability, and
must establish that the impairment substantially limits a major life activity. Zanor v. El Paso
Healthcare System, Ltd., 176 F.3d 847 (5th Cir. 1999). There is no bright line test to determine
when a current user becomes a rehabilitated user. Courts considering the issue generally require
that a significant amount of time pass between the use and the declaration of rehabilitation. See,
e.g., Shirley v. Precision Carparts Corp., 726 F.3d 675 (5th Cir. 2013) (“current” use includes
drug use “in the weeks (or even months) preceding the adverse employment action”); Greer v.
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Cleveland Clinic Health System, 503 Fed. Appx. 422 (6th Cir. 2012) (illegal use three months
before termination); A.B. ex rel Kehoe v. Housing Authority of South Bend, 498 Fed. Appx. 620
(7th Cir. 2012) (one month earlier). As the Court wrote in Mauerhan v. Wagner Corp., 649 F.3d
1180 (10th Cir. 2011), the question is not how many days or weeks have passed, but rather
whether the illegal drug use was sufficiently recent to justify the employer’s conclusion that drug
abuse was an ongoing problem.
Thus, when an employee’s use leads to the disciplinary action at issue, the employee
cannot claim that he or she has since stopped using. See, e.g., Salley v. Circuit City Stores, Inc.,
160 F.3d 977 (3rd Cir. 1998) (three week period of abstinence is not enough); Zenor v. El Paso
Healthcare System, Ltd., 176 F.3d 847 (5th Cir. 1999) (use of illegal drugs five weeks prior to
notification of discharge constitutes “current” use). As the Court graphically wrote in Shafer v.
Preston Memorial Hospital Corp., 107 F.3d 274 (4th Cir. 1997), where an employee stole
medication to which she had become addicted, then completed inpatient drug rehabilitation, but
was terminated from her misconduct, “current” does not require “that a drug user have a heroin
syringe in his arm or a marijuana bong to his mouth at the exact moment contemplated.”
As the Court in Shafer suggested, the act of entering rehabilitation will not be enough to
escape the “current” moniker. In McDaniel v. Mississippi Baptist Medical Center, 877 F. Supp.
321 (D. Miss. 1995), aff’d, 74 F.3d 1238 (5th Cir. 1995), a person must be drug free for a
“considerable” length of time. See, e.g., Collings v. Longview Fibre Co., 63 F.3d 828 (9th Cir.
1995), cert. den., 516 U.S. 1048 (1996) (“current” does not mean being drug free for days or
weeks); Brown v. Lucky Stores, 246 F.3d 1182 (9th Cir. 2001) (participation in rehabilitation
program is insufficient).
The ADA makes it clear that an employer may establish reasonable policies and
procedures, including drug testing, to make sure that a previous user of illegal drugs is no longer
using. 42 U.S.C. §§12114(b), 12210(b); 29 C.F.R. §1630.3(c). An employer covered by the
regulations of the Department of Defense, Nuclear Regulatory Commission, or Department of
Transportation can comply with those regulations, including required testing for covered
employees. 42 U.S.C. §§12114(c)(5), (e); 29 C.F.R. §§1630.16(b)(5), (6). An employer can
also have a policy against hiring or re-hiring an applicant or employee who previously failed a
drug test. Thus, in Lopez v. Pacific Maritime Association, 657 F.3d 762 (9th Cir. 2011), the
Court upheld a “one strike” rule set forth in a collective bargaining agreement. In that case, the
plaintiff failed a pre-employment drug screen. Seven years later, he was rejected for the position
based on his earlier positive drug test. Citing the Supreme Court’s decision in Raytheon Co. v.
Hernandez, 540 U.S. 44, 124 S.Ct. 513, 157 L.Ed.2d 357 (2003), the Court held that the policy
was based on conduct, not whether the positive drug test was the result of drug addiction or
recreational use, and thus was enforceable.
Because current use of illegal drugs is not protected by the ADA, testing for such use is
not considered a medical examination under the ADA, and an employer’s ability to conduct such
testing or take action based on the results of a positive drug test are not affected by the ADA. 42
U.S.C. §§12114(d), 12210(b); 29 C.F.R. §1630.16(c)(1).
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Most courts agree that alcoholism may be a protected disability under the ADA. See,
e.g., Brown v. Lucky Stores, 246 F.3d 1182 (9th Cir. 2001); Mararri v. WCI Steel, Inc., 130 F.3d
1180 (6th Cir. 1997). Although both alcoholism and prior drug addiction may be protected by the
ADA, an employer can prohibit the use of illegal drugs or alcohol in the workplace, can require
that employees not be under the influence of drugs or alcohol while working, and can hold users
of illegal drugs and alcoholics to the same work standards for job performance and behavior that
apply to other employees, even if any unsatisfactory performance or behavior is relative to the
use of drugs or alcohol. 42 U.S.C. §12114(c); 29 C.F.R. §1630.16(b). See, e.g., Clifford v.
County of Rockland, 2012 WL 2866268 (2nd Cir. June 25, 2013); Baptista v. Hartford Board of
Education, 427 Fed. Appx. 39 (2nd Cir. 2011); Ostrowski v. Con-Way Freight, Inc., 543 Fed.
Appx. 128 (3rd Cir. 2013); Budde v. Kane County Forest Preserve, 597 F.3d 860 (7th Cir. 2010)
(police chief who violated rules on public intoxication).
Thus, an employer could reject employee’s bid for bus driver position where he was
found drinking on the job. Martin v. Barnseville Exempted Village School District, 209 F.3d 931
(6th Cir. 2000), cert. den., 531 U.S. 992 (2000). See also, Renaud v. Wyoming Department of
Family Services, 203 F.3d 723 (10th Cir. 2000) (superintendent of juvenile facility terminated for
coming to work drunk); Pernice v. City of Chicago, 237 F.3d 783 (7th Cir. 2001) (rejecting
plaintiff’s argument that need to possess illegal drugs was caused by the disability of drug
addiction); Ames v. Home Depot USA, Inc., 629 F.3d 665 (7th Cir. 2011) (upholding termination
for coming to work under the influence of alcohol in violation of code of conduct, even if action
caused by disability of alcoholism).
In VandenBroek v. PSEG Power Connecticut, LLC, 356 Fed. Appx. 457 (2nd Cir. 2009),
the Court upheld plaintiff’s termination for attendance violations, even though they were caused
by alcoholism, holding that an alcoholic can be held to the same standards as other employees.
In Budde v. Kane County Forest Preserve, 597 F.3d 860 (7th Cir. 2010), the police chief was
terminated after a drunk driving accident that caused injuries to others. The employer argued
that the chief both violated written work rules and was unable to perform the essential functions
of his job because he did not have a valid driver’s license. The Court upheld the termination,
despite the fact that it may have been caused by alcoholism, a protected disability, holding that
the chief was terminated for his violation of work rules, regardless of whether he was an
alcoholic. See also, Renaud v. Wyoming Department of Family Services, 203 F.3d 723 (10th Cir.
2000); Maddox v. University of Texas, 62 F.3d 843 (6th Cir. 1995); Despears v. Milwaukee
County, 63 F.3d 635 (7th Cir. 1995); Newland v. Dalton, 81 F.3d 904 (9th Cir. 1996). Courts
have consistently concluded that, unlike other disabilities, the alcoholic can choose not to drink,
and therefore not to engage in the conduct allegedly caused by drinking.
Recently, in Jarvela v. Crete Carrier Corp., 776 F.3d 822 (11th Cir. 2015), the Court
affirmed the termination of a truck driver who had a week-old diagnosis of chronic alcohol
dependence, rejecting the employee’s argument that he was a “former” alcoholic and that his
alcoholism was in remission, so he was no longer in violation of the Department of
Transportation’s requirements. “We are not prepared to draw a bright line as to how much time
must pass before a diagnosis of alcoholism is no longer ‘current,’ but we hold that a seven-dayold diagnosis is ‘current’ . . .”
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However, an employer cannot treat a protected “alcoholic” differently than a casual
drinker when disciplining for these violations. See, e.g., Miners v. Cargill Communications, Inc.,
113 F.3d 829 (8th Cir. 1997), cert. den., 522 U.S. 981 (1997).
At least one court has allowed an employer to discipline an employee for failure to take a
drug test despite the fact that the “failure” was caused by the employee’s disability and there was
no evidence that the employee had, in fact, violated the employer’s illegal drug policy. Kinneary
v. City of New York, 601 F.3d 151 (2nd Cir. 2010), was brought by a New York City sludge boat
captain who, as a result of “shy bladder syndrome, was unable to successfully complete a urine
drug test. The Court upheld his termination for “refusing” a drug test despite uncontroverted
evidence that his disability prevented him from providing a urine sample within three hours on
demand and that the plaintiff had successfully passed hair sample and blood drug tests.
2.
Safety and Violence
An employer can terminate an employee for violation of a conduct policy prohibiting
violence in the workplace. Lopez v. AT&T Corp., 457 Fed. Appx. 872 (11th Cir. 2012)
(employee with stress disorder terminated for saying “I know where you live” and that he knew
what it was like “being at war and killing people”); Venter v. Potter, 435 Fed. Appx. 92 (3rd Cir.
2011 (employee was terminated for threatening to “punch” and “kill” his union steward). In
Bodenstab v. County of Cook, 569 F.3d 651 (7th Cir. 2009), cert. den., __ U.S. __, 130 S.Ct.
1059, 175 L. Ed.2d 884 (2010), the Court held that an employer did not have to tolerate an
employee’s threats to kill his co-worker, even if the threats were somehow related to disability.
In Macy v. Hopkins County School Board of Education, 484 F.3d 357 (6th Cir. 2007), cert. den.,
552 U.S. 826 (2007), the Court upheld the termination of a teacher who threatened to kill her
students and made inappropriate comments about their families. See also, Sista v. CDC Ixis
North America, Inc., 445 F.3d 161 (2nd Cir. 2006) (threatening supervisor); Jones v. American
Postal Workers Union, 192 F.3d 417 (4th Cir. 1999) (Post Office could terminate employee after
he threatened the life of his supervisor). Recently, the Ninth Circuit upheld the termination of
employee who had threatened his co-workers, threatening to put a bomb under a car, insinuating
that he had mafia connections, talking about throwing a blanket over a person’s head and beating
him, threatening to kick in a fellow employee’s teeth if he did not join the union, and threatening
to shoot his supervisor’s children in the kneecaps. Although the employee had a hearing
impairment that arguably rose to the level of a disability, the Court held that the employer had a
legitimate, non-discriminatory business reason for its actions and rejected the claim of disability
discrimination. Curley v. City of North Las Vegas, 772 F.3d 629 (9th Cir. 2014).
However, the employer must be careful not to overreact, which will lead to a “regarded
as” claim. For example, in Lizotte v. Dacotah Bank, 677 F. Supp.2d 1155 (D. N.D. 2010), a
bank executive got drunk, threatened his sister with a gun, threatened suicide, and was
involuntarily committed to a psychiatric facility. All of this happened off duty, and plaintiff had
no on-duty misconduct. When the employer terminated him based on safety concerns and his
inability to do his job, the Court held that the bank acted on “myth, fear, or stereotype” regarding
mental illness.
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Qualification standards may include a requirement that an individual not pose a direct
threat to himself others in the workplace. 42 U.S.C. §12113(b); 29 C.F.R. §1630.15(b)(2).
Chevron USA, Inc. v. Echazabal, 536 U.S. 73, 122 S.Ct. 2045, 153 L.Ed.2d 82 (2002). A direct
threat exists only where there is a “significant risk” of “substantial harm” to the safety or health
of others that cannot be eliminated by reasonable accommodation. 42 U.S.C. §12111(3); 29
C.F.R. §1630.2(r). In order to determine whether a direct threat exists, an employer must make
an individualized assessment of the individual’s present ability to safely perform the essential
functions of the job, based on a reasonable medical judgment that relies on the most current
medical knowledge and the best available objective evidence. Id. Factors to be considered
include the duration of the risk, the nature and severity of potential harm, the likelihood that
potential harm will occur, and the imminence of the potential harm. Id.
The risk must be “highly probable,” not just “likely.” Hamlin v. Charter Township of
Flint, 165 F.3d 426 (6th Cir. 1999). While both “significant risk” and “substantial harm” are
required, the level of one will affect the requirement of the other. For example, in Donahue v.
Consolidated Rail Corp., 224 F.3d 226 (3rd Cir. 2000), the Court found a direct threat where the
potential danger caused by a train dispatcher with a heart ailment was a train crash, even though
the likelihood of such a risk was minor.
Where the job requires handling food, an employer may establish a direct threat by
showing that an individual has a communicable disease which can be transmitted through food
handling, provided that the threat cannot be reduced below “significant risk” through reasonable
accommodation. 42 U.S.C. §12113(e)(2); 29 C.F.R. §1630.16(e)(1). An employer does not get
to decide what communicable diseases pose a risk; the list of infectious diseases that can be
transmitted through food handling is set by the Department of Health and Human Services. 42
U.S.C. §12113(e)(1); 29 C.F.R. §1630.16(e)(1). While the provisions regarding diseases
communicable through food service, significant risk, and reasonable accommodation still apply,
the ADA gives some deference to state and local laws regarding food handling which are
designed to protect the public health. 42 U.S.C. §12113(e)(3); 29 C.F.R. §1630.16(e)(2).
The determination of whether a person poses a direct threat requires an individualized
assessment of his or her condition. Lachance v. Duffy’s Draft House, Inc., 146 F.3d 832 (11th
Cir. 1998); Lowe v. Alabama Power Co., 244 F.3d 1305 (11th Cir. 2001). Thus, in Rizzo v.
Children’s World Learning Centers, Inc., 213 F.3d 209 (5th Cir. 2000), cert. den., 531 U.S. 958
(2000), the Court found that a driver’s hearing impairment did not pose a direct threat where the
individual had an excellent driving record, had never had any problems, and there was no
evidence of any danger. On the other hand, in Bekker v. Humana Health Plan, Inc., 229 F.3d
662 (7th Cir. 2000), cert. den., 532 U.S. 972 (2001), the Court upheld the employer’s finding that
a physician posed a direct threat when she was under the influence of alcohol because of the
danger of making a mistake in a prescription or diagnosis or having a problem with medical
instruments. See also, Borgialli v. Thunder Basin Coal Co., 235 F.3d 1284 (10th Cir. 2000)
(mine explosive detonator with mental disability who had threatened suicide posed a direct
threat).
Courts have occasionally made their own assessments of danger without requiring
evidentiary support. For example, in Crocker v. Runyon, 207 F.3d 314 (6th Cir. 2000), the Court
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found that a mail carrier could not safely perform his job because it seemed obvious to the Court
that carrying heavy boxes and pushing equipment down a ramp on one leg would not be safe.
However, generally the assessment must be based on objective, scientific information. Bragdon
v. Abbott, 524 U.S. 624, 118 S.Ct. 2196, 141 L. Ed.2d 540 (1998). The fact that the condition
has already caused problems may be considered in analyzing the threat. See, e.g., Robertson v.
The Neuromedical Center, 161 F.3d 292 (5th Cir. 1998), cert. den., 526 U.S. 1098 (1999)
(neurologist with short-term memory problem had made mistakes on patients’ charts and in
dispensing medicine); Altman v. New York City Health & Hospitals Corp., 100 F.3d 1054 (2nd
Cir. 1996) (alcoholic doctor who had previously avoided detection posed direct threat).
An institution will not be able to establish the existence of a direct threat where the threat
could be reduced to an acceptable level with a reasonable accommodation. See, e.g., Nunes v.
Wal-Mart Stores, Inc., 164 F.3d 1243 (9th Cir. 1999) (danger of dropping something heavy when
fainting could be cured by removing non-essential lifting function); McKenzie v. Dovala, 242
F.3d 967 (10th Cir. 2001) (patrol officer with post-traumatic stress disorder could be placed in a
position that did not require the use of force).
Because this is treated as an affirmative defense, most courts have held that the defendant
bears the burden of proving that a direct threat exists. See, e.g., Rizzo v. Children’s World
Learning Centers, Inc., 213 F.3d 209 (5th Cir. 2000), cert. den., 531 U.S. 958 (2000). However,
some courts have treated the absence of a threat as an essential function, thus placing the burden
on the plaintiff. Gillen v. Fallon Ambulance Service, Inc., 283 F.3d 11 (1st Cir. 2002); Bekker v.
Humana Health Plan, Inc., 229 F.3d 662 (7th Cir. 2000), cert. den., 532 U.S. 972 (2001);
Donahue v. Consolidated Rail Corp., 224 F.3d 226 (3rd Cir. 2000); Waddell v. Valley Forge
Dental Associates, Inc., 276 F.3d 1275 (11th Cir. 2001), cert. den., 535 U.S. 1096 (2002); EEOC
v. Amego, Inc., 110 F.3d 135 (1st Cir. 1997); Moses v. American Nonwovens, Inc., 97 F.3d 446
(11th Cir. 1996), cert. den., 519 U.S. 1118 (1997); Leonberger v. Martin Marietta Materials, Inc.,
231 F.3d 396 (7th Cir. 2000); Lachance v. Duffy’s Draft House, Inc., 146 F.3d 832 (11th Cir.
1998). Other courts have allowed the employer to apply a general qualification standard that
includes the ability to perform the job safely, which is then evaluated under the “job-related and
justified by business necessity” rule rather than the “direct threat” test. See, EEOC v. Exxon
Corp., 203 F.3d 871 (5th Cir. 2000); Rizzo v. Children’s World Learning Centers, Inc., 213 F.3d
209 (5th Cir. 2000), cert. den., 531 U.S. 958 (2000).
C.
Pregnancy
For many years, the law of the land has been that the Pregnancy Discrimination Act of
1978 prohibited discrimination on the basis of pregnancy as a form of sex discrimination, but did
not require any affirmative special treatment for pregnant workers. See e.g., Serednyj v. Beverly
Healthcare, LLC, 656 F.3d 540, 548-549 (7th Cir. 2011); Reeves v. Swift Transportation Co., 446
F.3d 637, 641 (6th Cir. 2006); Spivey v. Beverly Enterprises, Inc.,196 F.3d 1309, 1312-1313 (11th
Cir. 1999);Urbano v. Continental Airlines, Inc.,138 F.3d 204, 207-208 (5th Cir. 1998). As the
Court wrote in Troupe v. May Dept. Stores, Co., 20 F.3d 734, 738 (7th Cir. 1994), “The
Pregnancy Discrimination Act does not, despite the urgings of feminist scholars . . . require
employers to offer maternity leave or take other steps to make it easier for pregnant women to
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work. Employers can treat pregnant women as badly as they treat similarly affected but nonpregnant employees.”
Similarly, it was widely accepted, both under the ADA and the ADAAA, that pregnancy,
absent complications, was not a disability and therefore did not give rise to any duty to
accommodate. See, e.g., Oliver v. Scranton Materials, Inc., 2015 WL 1003981 (M.D. Pa. March
5, 2015); Nayak v. St. Vincent Hospital & Health Care Center, Inc., 2013 WL 121838 (S.D. Ind.
Jan. 9. 2013); Spees v. James Marine, Inc., 617 F.3d 380 (6th Cir. 2010); DeJesus v. LTT Card
Services, 474 F.3d 16 (1st Cir. 2007); Navarro v. Pfizer Corp., 261 F.3d 90 (1st Cir. 2001);
Tsetseranos v. Tech Prototype, 893 F. Supp. 109 (D. N.H. 1995); Brennan v. National Telephone
Director Corp., 850 F. Supp. 331 (E.D. Pa. 1994).
Notwithstanding the above, on January 14, 2014, the Equal Employment Opportunity
Commission issued its Enforcement Guidance on Pregnancy Discrimination and Related Issues.
In that 51-page Guidance, the EEOC appeared to expand the protections provided to pregnant
women in several ways. Most significantly, the EEOC opined that where light duty (e.g., work
to accommodate lifting restrictions) is provided to individuals with work-related injuries,
similarly light duty would have to be provided to pregnant employees with similar work
restrictions. This ran counter to the prevailing position that as long as pregnant workers were
treated the same as others with non-work-related conditions, there was no discrimination. In
addition, the EEOC indicated that “accommodation” would have to be provided to pregnant
employees if accommodation was provided to others, even though accommodation to others
might be required for disabilities covered by the ADA, which historically has not covered
pregnancy.
This issue was squarely presented in the case of Young v. United Parcel Service, Inc. In
the Court of Appeals, 707 F.3d 437 (4th Cir. 2013), the Court rejected the argument that the
Pregnancy Discrimination Act gives pregnant employees a “most favored nation” status such that
they are entitled to the benefits provided to anyone else, regardless of whether the distinction has
anything to do with pregnancy, as opposed to work-related vs. non-work-related injuries, or
accommodation required by the ADA vs. conditions not protected by the ADA. On March 25,
2015, the Supreme Court reversed this ruling, indicating that an employee can establish a prima
facie case of pregnancy discrimination by showing that others “similarly situated in their ability
or inability to work” (as opposed to the traditional “similarly situated in all relevant respects”)
were accommodated. While an employer could rebut this prima facie case by articulating a
legitimate, non-discriminatory business reason, the Supreme Court modified the “pretext”
standard to allow an employee to establish pretext by showing that the employer accommodates
a large percentage of non-pregnant workers while not accommodating pregnant workers, without
requiring any proof that pregnancy was the actual motivating reason for the distinction.
Technically, the Supreme Court’s decision in Young has nothing to do with the ADA and
does not change any of the case law holding that pregnancy is not a disability. As a practical
matter, however, where an employer is accommodating any meaningful number of employees
with disabilities or employees with work-related injuries, the employer will also have a duty to
provide comparable accommodation to pregnant employees.
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D.
Wellness Programs
While prohibiting certain medical inquiries, such as pre-offer medical examinations and
post-offer examinations that are not job-related and consistent with business necessity, the ADA
specifically allows “voluntary medical examinations, including voluntary medical histories,
which are part of an employee health program available to employees at that work site.” 42
U.S.C. §12112(d)(4). The EEOC Regulations mimic the statutory language, expanding only
“voluntary medical examinations” to “voluntary medical examinations and activities,” and
require that medical information obtained through the voluntary medical examination be kept
confidential. 29 C.F.R. §1630.14(d). In its Enforcement Guidance: Disability-Related Inquiris
and Medical Examinations of Employees Under the ADA,” Guidance No. 915.002, issued on
July 27, 2000, the EEOC confirmed that wellness programs will be considered voluntary medical
inquiries “as long as an employer neither requires participation nor penalizes employees who do
not participate.” Id. at Question No. 22.
In May 2013, the EEOC held public hearings to explore potential problems with wellness
programs, both in terms of possible discrimination in violation of the ADA and possible
violations of GINA. One month later, in June 2013, in conjunction with the Affordable Care
Act, the Departments of Labor, Health and Human Services, and Treasury issued regulations
permitting employers to reward employees (including both incentives and disincentives) for
participation in wellness programs, in some cases allowing for incentives of 30-50% of the cost
of health care coverage. 26 C.F.R. §54.9802-1.
Subsequently, apparently to the surprise of these Departments, the EEOC filed three
lawsuits between August and October of 2014 alleging that various wellness programs fully in
compliance with the regulations were unlawful and in violation of the ADA because the
incentives, in the EEOC’s view, effectively rendered the programs involuntary. In June 2014,
the Senate Health, Education, Labor and Pension Committee convened hearings regarding
wellness programs and attempted to get the EEOC on board with the consensus reached by the
other federal departments.
On March 20, the EEOC sent a Notice of Proposed Rulemaking to the Office of
Management and Budget. Once cleared by OMB, these proposed regulations will be submitted
to the Federal Register for public comment. The proposed rules, if adopted, will amend the
ADA regulations to the extent necessary to make them consistent with the Affordable Care Act
provisions. Pursuant to the proposed regulations, employee health programs will be compliant if
they meet the following:
1)
The program must have a reasonable chance of improving health or preventing
disease and must not be an attempt to circumvent the ADA or other anti-discrimination laws.
For instance, assessing employees for unknown health risks is an acceptable practice, but simply
collecting medical information without providing any follow-up information or advice is not.
2)
The program must be voluntary, which means that participation cannot be
required, benefits cannot be denied to non-participating employees, no adverse employment
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action can be taken against non-participating employees, and employees must be notified of the
medical information being obtained, how it is being used, and how it will be secured.
3)
An employer may offer incentives for participation without rendering a program
involuntary, but the incentive cannot exceed 30% of the total cost (i.e., employee plus employer
contribution) of employee-only coverage. An employer may be required an accommodation to
enable an employee to participate in the incentive program, such as a sign language interpreter
for a nutrition class.
4)
Medical information must be kept confidential in separate, secured files.
Although supervisors can be informed regarding necessary restrictions on job duties and
accommodations needed, generally the employer can only use the information so long as the
particular employee is not identified.
5)
Meeting the above requirements will not necessarily ensure compliance with other
non-discrimination laws.
E.
Developments of the Definition of “Disability” Under the ADAAA
The definition of “disability” under the ADA was expanded significantly by the ADA
Amendments Act, which went into effect on January 1, 2009. The ADAAA made it clear that
Congress was rejecting the Supreme Courts’ previous interpretations of the language
“substantially limits a major life activity,” which relied on the legislative history to determine
that the Act was designed to assist an insular minority and should not be broadly construed.
However, while rejecting the interpretation by the Supreme Court, Congress did not replace the
language except to modify the legislative history to indicate that the phrase should be interpreted
expansively. The ensuing EEOC regulations suggest that employers should consider everything
a disability and focus on non-discrimination and accommodation.
Since 2009, only a handful of courts have attempted to reinterpret the “substantially
limits” prong of the definition of disability in the context of the ADAAA and EEOC regulations.
At this point, there is not a body of cases sufficient to clarify the definition. However, while it is
clear that the standard is now easier to meet, it is also apparent that the courts are not assuming
that all medical conditions meet the test. The following cases are instructive:
1.
Cases Finding that an Impairment Substantially Limits a Major Life Activity
Courts are clearly applying a lower standard under the ADAAA. in Mazzeo v. Color
Resolutions International, 746 F.3d 1264 (11th Cir. 2014), the 11th Circuit found that an
employee’s back impairment, which included a herniated disc and torn ligaments, met the “no
longer demanding standard” where the condition caused pain and intermittently affected a
number of activities, including the ability to walk, sit, bend, run and lift more than 10 pounds.
The ADAAA changed the definition of “substantially limits” to specifically state not only
that conditions should be evaluated in their unmitigated state, but also that episodic disorders
should be evaluated in their active state. Therefore, in Gogos v. AMS Mechanical Systems, Inc.,
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737 F.3d 1170 (7th Cir. 2013), high blood pressure and episodic vision loss could be disabilities,
even if brief and infrequent, because while active the major life activities of circulatory functions
and vision are substantially limited. Similarly, in Britting v. Department of Veterans, 409 Fed.
Appx. 566 (3rd Cir. 2011) (3rd Cir. 2011), the Court held that while the plaintiff’s irritable bowel
syndrome was not a disability under the applicable pre-amended ADA, it would meet the
standard under the ADAAA because it was an episodic condition that was substantially limiting
when active.
2.
Cases Finding that an Impairment Does Not Substantially Limit a Major
Life Activity
The Court in Reynolds v. Red Cross, 701 F.3d 143 (4th Cir. 2012), applied the preADAAA standard because the events at issue occurred prior to January 1, 2009. However, the
Court noted that even under the lesser standard anticipated by the amendments it would have
found that an employee was not substantially limited because the 15 pound lifting restriction was
only temporary and he continued to lift on a regular basis. In Sanders v. Judson Center, Inc.,
2014 WL 3865209 (E.D. Mich. Aug. 6, 2014), the Court agreed with the plaintiff that her need
for frequent urination as a result of medication was an impairment but rejected her argument that
she was substantially limited in the activity of “thinking” where worrying about needing to go to
the bathroom allegedly caused her to lose focus. The Court in Weaving v. City of Hillsboro, 763
F.3d 1106 (9th Cir. 2014), cert. den., 2015 WL 852430, ___ U.S. ___ (March 2, 2015), held that
the plaintiff failed to show that his ADHD substantially limited his ability to get along with
others because he could communicate with his superiors and the public, even though he
apparently could not get along with his peers or subordinates.
F.
Performance Issues
An employer can take action against an employee for poor performance, even where that
performance is caused by the disability. For example, in Whitfield v. Tennessee, 639 F.3d 253
(6th Cir. 2011), the plaintiff was a clerical employee with cerebral palsy who was terminated for
poor performance. While the Court acknowledged that some of the performance problems might
have been related to her disability and the employer’s failure to provide appropriate
accommodation, many were not. The job required answering phones, copying and filing
documents, logging complaints on a computer, and preparing mailings. The plaintiff frequently
entered the wrong county or no county on forms, made serious errors on mailing labels, made
spelling and grammatical errors, and did not file in alphabetical order. The Court upheld the
termination.
Furthermore, courts will reject failure to accommodate claims where unacceptable
performance cannot be ameliorated by an accommodation. Thus, in Agha v. SunTrust Bank,
2015 WL 539573 (E.D. Va. Feb. 9, 2015), the Court granted summary judgment where a
probationary employee with a hearing impairment had numerous documented errors processing
basic teller transactions. The Court noted that certain accommodations might have assisted the
employee in communications by telephone and with customers, but that the employee’s basic
inability to perform the core element of her job – properly recording deposits and withdrawals –
was unrelated to her hearing loss.
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G.
Other Accommodation Issues
The requested accommodation must be related to the disability at issue. In Gordon v.
Acosta Sales and Marketing, Inc., 2014 WL 7339117 (Dec. 22, 2014), the plaintiff needed
frequent bathroom breaks due to the effects of medication. As an accommodation, he was
provided unlimited, unfettered access to nearby restrooms. The accommodation requested by the
employee – transfer to a different position, away from his supervisor – was related to his dislike
of his boss, not his medical condition, and therefore was not reasonable.
Employers are not required to eliminate essential job functions as a reasonable
accommodation. For example, in Minnihan v. Mediacom Communications Corp., ___ F.3d ___,
2015 WL 1003603 (8th Cir. March 9, 2015), the Court held that where the plaintiff’s job –
supervising technicians who install cable and internet services in customers’ homes – required
driving to customers’ homes, the employer was not required to restructure the job into a nondriving position when the plaintiff was prevented from driving due to epilepsy, because doing so
would require eliminating an essential function of the job. However, the Court noted that the
employer had made a number of attempts to accommodate, initially eliminating the driving
function, offering a non-driving position in a different location (but the plaintiff argued he
couldn’t drive to the new location), and providing information regarding ride-sharing and public
transportation. The employer terminated the employee only after he declined the transfer and
suffered a third seizure, extending the time of his driving restriction. Likewise, in Stephenson v.
Pfizer Inc., 2014 WL 4410580 (M.D. N.C. Sept. 8, 2014), the Court held that a sales
representative who spent 90% of her time traveling to doctor’s offices for sales calls was not
entitled to a full-time driver or other transportation as an accommodation.
On the other hand, employers may have to eliminate non-essential job functions as an
accommodation. In Kauffman v. Petersen Health Care VII, LLC, 769 F.3d 958 (7th Cir. 2014),
the Court held that there was a fact question regarding whether the ability to push nursing home
residents in wheelchairs to the facility’s salon was an essential function of the hairdresser’s
position where the nursing home also had orderlies who could transport the residents.
Courts continue to hold that an employer is not required to create a new position or bump
an employee as a reasonable accommodation. Thus, in Waltherr-Willard v. Mariemont City
Schools, ___ Fed. Appx. ___, 2015 WL 542944 (6th Cir. Feb. 11, 2015), the Court held that a
school teacher with pedophobia – a fear of young children – was not entitled to be transferred
from the middle school to a full-time Spanish teacher position at the high school where doing so
would require either creating a new position or bumping the incumbent employee.
In Bellofatto v. Red Robin International, Inc., 2014 WL 7365788 (W.D. Va. Dec. 24,
2014), the Court held that a diabetic employee may be entitled to short breaks to eat or drink
something to regulate her blood sugar levels.
An employer must engage in an individualized assessment of an employee’s medical
condition and capabilities when determining what accommodation is appropriate. See, e.g.,
Backhaus v. General Motors, LLC, ___ F. Supp. 3d ___, 2014 WL 4705111 (E.D. Mich. Sept.
22, 2014) (fact issues as to whether the employer acted properly in placing an employee on an
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involuntary and indefinite leave of absence without assessing whether the employee, who had
monocular vision, could demonstrate that he could safely perform his duties driving a forklift).
An employee who refuses to engage in the interactive process cannot maintain a failure to
accommodate claim. In EEOC v. Kohl’s Department Stores, Inc., 774 F.3d 127 (1st Cir. 2014),
an employee sought a schedule change so that she would no longer have swing shifts and thus
could better regulate her diabetes. Her physician suggested that a “predictable day shift” would
be best. When the employer advised the employee that it could not accommodate a consistent 95 schedule, the employee stormed out of the room and resigned. The employer attempted to
reach the employee to discuss other potential accommodations, but the employee did not
respond. The Court held that the employee was responsible for ending the interactive process.
Finally, while the law is not yet entirely clear, there is a developing area of
accommodation involving non-service animal “comfort” pets. For example, in Assaturian v.
Hertz Corp., 2014 WL 4374430 (D. Ha. Sept. 2, 2014), an employee was fired after a series of
angry outbursts directed toward co-workers. The employee argued that his behavior was caused
by depression and an adjustment disorder, and it could have been avoided if he had been allowed
to bring his Shih Tzu, Sugar Bear, who was not a trained service dog, to work. The Court held
that there were fact questions as to whether there was a breakdown in the interactive process and
whether allowing the employee to bring his dog to work would be a reasonable accommodation.
For the best discussion of the current status of this issue, the author of this paper cannot do better
than the article by Patricia Marx, “Pets Allowed,” in the October 20, 2014 edition of The New
Yorker: http://www.newyorker.com/magazine/2014/10/20/pets-allowed.
II.
A.
The FMLA: Developing into a Responsible Young Adult, Most of the Time
DOL Publishes Final Rule on Definition of “Spouse.” Texas Court Stays the Rule.
80 Fed. Reg. 9989 (February 25, 2015).
The Rule: The Department of Labor published a final rule amending the definition of spouse
under the FMLA on February 23, 2015. This regulatory change has been in the works since the
Supreme Court’s decision in United States v. Windsor, 133 S. Ct. 2675 (2013) struck down as
unconstitutional section 3 of the Defense of Marriage Act (DOMA). DOMA defined “marriage”
under federal law as limited to heterosexual marriages. As a result, same-sex couples could not
take FMLA leave to care for their spouses. Following Windsor, the DOL initially said an
eligible employee could take FMLA leave to care for a same-sex spouse, but only if the
employee lived in a state that recognized same-sex marriage.
The Final Rule, which was to take effect on March 27, 2015, amends Sections 825.102 and
825.122(a) of the FMLA regulations to define “spouse” to include all individuals in legal
marriages. Prior regulation followed a “place of residence” rule in defining “spouse” according
to the law of the state in which the employee resided. The new rule follows the “place of
celebration” rule, under which spousal status for FMLA purposes will be determined by the
jurisdiction in which the couple was married.
Therefore, under the Final Rule, an eligible employee may take FMLA leave to care for a samesex or common law spouse:
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•
•
if the marriage was “entered into in a State that recognizes such marriages,” or
if the marriage was entered into outside of the United States and “is valid in the
place where entered into and could have been entered into in at least one State.”
In addition, the Final Rule extends the available leave to care for a stepchild or stepparent related
to the employee through a same-sex marriage. Prior regulations stated that an employee in a
same-sex marriage not recognized by his or her state of residence could not take leave to care for
a stepchild unless he or she stood in loco parentis to the stepchild. Nor was FMLA leave
available to care for a stepparent unless the stepparent stood in loco parentis to the employee.
By using a “place of celebration” rule, employees in a legal same-sex marriage can take leave to
care for a stepparent or stepchild regardless of the state in which he or she resides and without
proof of an in loco parentis relationship.
The Stay: On March 27, the day before the Rule was to take effect, Judge Reed O’Connor of
the Northern District of Texas ordered the DOL to stay application of the final rule on a request
for a preliminary injunction brought by the Texas attorney general’s office and joined by state
attorneys general in Arkansas, Louisiana and Nebraska. Texas v. United States, N.D. Tex., No.
7:15-cv-00056, March 26, 2015. The DOL responded on March 21, 2015 by requesting a
hearing on the preliminary injunction to be held in April.
The question of whether states can ban same-sex marriage is pending before the Supreme Court
in Obergefell v. Hodges, where the questions presented on cert., are: “1) does the Fourteenth
Amendment require a state to license a marriage between two people of the same sex? and
2) does the Fourteenth Amendment require a state to recognize a marriage between two people
of the same sex when their marriage was lawfully licensed and performed out-of-state?” 135 S.
Ct. 1039 (2015). The court heard oral argument in Obergefell on April 28, 2015.
B.
Immunities Protect State and Individual Supervisor from Some FMLA Claims
Bryant v. Tex. Dep't of Aging & Disability Servs., 2015 U.S. App. LEXIS 4848 (5th Cir.
Mar. 25, 2015).
The Fifth Circuit has held that sovereign and qualified immunity both precluded an employee
from proceeding with many of her FMLA claims against the state of Texas and her supervisor.
Tammy Bryant worked for the Brenham State Supported Living Center, a state-run home to
several hundred people with intellectual and developmental disabilities. Kim Littleton was her
immediate supervisor.
In 2010 Bryant took leave to care for her husband as he recovered from surgery. Upon her return
to work, Littleton issued Bryant discipline and reassigned her. Bryant also had high blood
pressure and suffered a mini-stroke, which caused her to miss many days of work. Now
suffering from severe depression and panic attacks, Bryant’s doctor recommended that Bryant
take time off from work. Bryant claimed that she thought the doctor said take two months off -but the doctor’s note only said one month. Bryant changed the note to reflect two months and
turned it in. When the altered note was discovered, an investigation ensued and things did not
end well for Bryant. She was fired, and her actions served as the basis for the office of the
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inspector general turning the matter over to the district attorney for possible charges of criminal
forgery.
Bryant’s response? She sued the state of Texas and Littleton for alleged FMLA violations under
the “interference” and “retaliation” prongs of the Act, for FMLA leave taken both for “family
care” and “self care” reasons. The defendants’ moved for summary judgment on the grounds of
both sovereign and qualified immunity. The district court denied the motion, holding among
other things that Littleton was not entitled to qualified immunity and that sovereign immunity did
not apply because “the plaintiff seeks reinstatement, relief that escapes Eleventh Amendment
preclusion.” The defendants filed an interlocutory appeal, which is permissible under such
circumstances.
Federal courts lack jurisdiction over suits against a state, a state agency, or a state official in his
official capacity unless that state has waived its sovereign immunity or Congress has clearly
abrogated it. The question of whether Congress adequately abrogated a state’s immunity from
suit under the FMLA was addressed by the Supreme Court in Nevada Dept. of Human Res. v.
Hibbs, 538 U.S. 721 (2003) (family care) and Coleman v. Court of Appeals of Md., 132 S. Ct.
1327 (2012) (self care).
In Hibbs, the Court considered whether Congress abrogated Eleventh Amendment immunity and
found that it had, but limited the ruling to the family care provisions of the FMLA. In Coleman,
the Court held that Eleventh Amendment Immunity was not abrogated regarding the FMLA’s
self care provisions. There was no question, therefore, that Bryant’s family care claims of
FMLA retaliation by the Department would proceed.
The Fifth Circuit held that the district court incorrectly determined that sovereign immunity does
not bar a self care FMLA claim when a plaintiff seeks “reinstatement, relief that escapes
Eleventh Amendment preclusion.” Bryant argued that her claim for reinstatement was an
acceptable form of prospective relief. The appellate court disagreed, “as the Ex parte Young
exception on which Bryant relies does not apply to suits against state agencies; this narrow
exception is limited to certain claims against state employees acting in their official capacities.”
See Raj v. La. State Univ., 714 F.3d 322, 328 (5th Cir. 2013) (discussing Ex parte Young, 209
U.S. 123, 155-56 (1908)). Thus, Bryant’s self-care claims against the Department were barred
by sovereign immunity.
The Fifth Circuit also held that Bryant’s interference claims were barred by the doctrine of
qualified immunity. Government officials are generally “immune from civil damages if their
conduct does not violate clearly established statutory or constitutional law of which a reasonable
person would have known.” Hernandez ex rel. Hernandez v. Tex. Dep't of Protective &
Regulatory Servs., 380 F.3d 872, 879 (5th Cir. 2004).
The Fifth Circuit noted that a defense of qualified immunity is analyzed in two parts. “‘First, a
court must decide whether a plaintiff’s allegation, if true, establishes a violation of a clearly
established right.’ Id. (citation omitted). Second, a ‘court must decide whether the conduct was
objectively reasonable in light of clearly established law at the time of the incident . . . .’ Courts
may address these two elements in either order, and need not proceed to the second where the
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first is resolved in the negative.’ Thompson v. Mercer, 762 F.3d 433, 437 (5th Cir. 2014)
(citation omitted).”
Here, the court found that Bryant’s FMLA interference claim against Littleton was barred by
qualified immunity, as the acts she complained of did not violate a clearly established right. The
defendants also argued that because sovereign immunity barred Bryant’s self care claims against
the Department, the self care claims against Littleton were similarly barred. That argument, said
the court, depends on the state’s being the real party in interest because, “[a]lthough a plaintiff
may in some circumstances obtain damages from a state officer in his individual capacity for
violating federal law even when the state is immune, that avenue of relief is closed when ‘the
state is the real, substantial party in interest.’ Pennhurst State Sch. & Hosp. v. Halderman, 465
U.S. 89 (1984).” As this argument was made for the first time on appeal the Court decided not to
consider it, since it would be addressed when the case was remanded to the district court to
proceed with Bryant’s retaliation claims.
The best takeaway from this case came in a footnote, where the Fifth Circuit made a most useful
observation regarding FMLA claims: “[t]his case exemplifies the difficulty of using the
‘interference’ and ‘retaliation’ labels. While these ‘labels have utility — particularly in the
context of the individual cases in which they appear — it is difficult to distinguish FMLA claims
based on these terms alone.’ Cuellar v. Keppel Amfels, L.L.C., 731 F.3d 342, 349 (5th Cir. 2013)
(Elrod, J., concurring). Regardless of the labels, the critical inquiry is ‘whether [the claim] arises
from the deprivation of an [employee’s] FMLA entitlement or from punishment exacted for her
exercise of an FMLA right.’ Id. at 351. The former claim should be brought under Section
2615(a)(1) and the latter under Section 2615(a)(2). Here, qualified immunity extends to Bryant’s
claim under Section 2615(a)(1) because the post-leave reassignment did not deprive her of an
FMLA entitlement.” Stated otherwise, where a plaintiff got all the FMLA leave she wanted and
there was no deprivation, there should be no interference claim available.
C.
“Joint Employers”
Cuff v. Trans States Holdings, Inc., 768 F.3d 604 (7th Cir. 2014).
The Seventh Circuit has held that two air carriers that supplied regional air service for United
Airlines are joint employers for purposes of the Family and Medical Leave Act (FMLA). Cuff v.
Trans States Holdings, Inc., 2014 U.S.App. LEXIS 18091 (7th Cir. September 19, 2014). In so
doing, the court held that an employee who was on the Trans States payroll was covered by the
FMLA.
United contracts with firms for regional air service as “United Express.” Trans States Holdings
(Holdings) is one of those suppliers, and it owns two air carriers: Trans States Air-lines (Trans
States) and GoJet Airlines (GoJet). Cuff worked at O’Hare Airport as a Trans States employee
and was fired in January 2010 when he took leave even after his FMLA request was denied. At
the time, Trans States had 33 employees at or within 75 miles of O’Hare; GoJet had 343
employees; Holdings had no employees.
The FMLA applies only if an employer has at least 50 employees within 75 miles of a given
location. 29 U.S.C. § 2611(2)(B)(ii). Thus, if Cuff worked only for Trans States, he could not
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avail himself to the FMLA’s protections. On the other hand, if Trans States and GoJet were
coupled together under the Holdings label, there were more than enough employees to warrant
FMLA coverage.
The district court granted summary judgment for Cuff, holding that he worked for the two
airlines jointly. 816 F. Supp. 2d 556 (N.D. Ill. 2011). The Seventh Circuit agreed, relying on
DOL regulations: 29 C.F.R. § 825.106(a), which says that workers are covered by the FMLA
when they are jointly employed by multiple firms that collectively have 50 or more workers, and
29 C.F.R. § 825.104(c), which provides that two or more firms may be treated as a single
employer when they operate a joint business.
The court noted that the joint-employment inquiry under Section 825.106(a) is person-specific:
it is possible for one person to be employed jointly by two firms that otherwise have distinct
labor forces. And the regulation supplies a list of factors to consider, “all relevant, none
dispositive.”
Relying on its decision in Moldenhauer v. Tazewell-Pekin Consol. Commun. Ctr., 536 F.3d 640,
644 (7th Cir. 2008), the court noted “that open-ended lists do not decide concrete cases. Often a
set of factors to be considered and balanced implies the need for a trial, but summary judgment is
possible when the facts allow. Cf. Secretary of Labor v. Lauritzen, 835 F.2d 1529 (7th Cir.
1987).” The two main factors identified by the regulation are (1) whether “there is an
arrangement between employers to share an employee’s services” and (2) whether “one
employer acts directly or indirectly in the interest of the other employer in relation to the
employee.”
Cuff’s title was “regional manager” of Trans States, but he represented the three entities in their
dealings with United and O’Hare. Cuff’s business card had all three firms’ logos on it. In
deposition, the Vice President for Customer Services at Holdings testified that Cuff was hired to
provide services to both Trans States and GoJet. And, noted the court, the internal directories of
Holdings and United Express identified Cuff as the person to contact with any question about
how Trans States or GoJet operated at O’Hare.
The court stressed that Cuff’s supervisor told United and other airlines that Cuff “will be your go
to person if there are any operational issues or concerns with Trans States or GoJet Airlines
flights operating in and out of your cities.” Cuff testified that he worked with Trans States and
GoJet every day. His replacement was put on the payroll of Holdings because, the company
explained, “We made the decision to put the support positions that support both [Trans States
and GoJet] where we can into a Holdings position.”
Based on this record, the court held that the answer to both questions in Cuff’s case was “yes,”
and that none of the remaining factors helped the defendants. Cuff was a joint employee of at
least Trans States and GoJet, if not of Holdings too. He should have been permitted to use leave
because he was protected under the FMLA.
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D.
Failure to Follow FMLA Certification Rules
Wallace v. Fedex Corp., 764 F.3d 571 (6th Cir. 2014).
The DOL’s FMLA Regulations are pretty clear on when you can take action against an employee
for failing to provide medical certification. Section 825.305(d) provides that: “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.” 29 C.F.R.
§ 825.305(d). FedEx recently learned the hard -- and expensive -- way from the Sixth Circuit
that the regulatory language means what it says. Wallace v. Fedex Corp., 764 F.3d 571 (6th Cir.
2014).
Tina Wallace had worked for FedEx for over 20 years, most recently as a paralegal, when she
confronted a series of medical difficulties that required her to take time from work. She was
reluctant to disclose these health issues. But eventually, she met with FedEx human resources
personnel to explain that she needed time off from work. She was given a blank FMLA medical
certification form and verbally told to have it completed by her doctor and return it to FedEx.
No one told her, however, about what would happen if she did not return the form.
Wallace had her doctor complete the form, but she did not return it. Two days after the 15 days
provided in the regulations for returning the form passed, FedEx fired Wallace for her failure to
return the certification form. Wallace sued.
The next three years saw all sorts of messy litigation in the case. But on the issue of the medical
certification form and her termination, Wallace’s position was pretty simple: no one told her that
if she didn’t return the certification form within the 15 days she would be fired. (Note that such
a draconian consequence is really not a best practice, since Section 825.305 also suggests the
need to remind the employee of the need to return the certification form if it’s not provided
within 15 days). There was nothing provided to Wallace in writing of the consequences of not
returning the form, and she testified that “she would have called or turned in the medicalcertification form if she had known the consequences of not doing so.” 764 F.3d at 579.
A jury returned a verdict for Wallace on the issues of liability and back pay; the judge held that
Wallace was not entitled to liquidated damages or front pay. There were cross appeals. On the
issue of the termination, the Sixth Circuit held that FedEx caused its own mess by failing to
follow the requirements of Section 825.305. Simply put, the jury found that FedEx failed to
follow the requirements of the regulation and so could not penalize Wallace for failing to return
the completed certification form. Reviewing this conclusion, the appellate court agreed and
rejected FedEx’s multiple (complicated) legal arguments that did not address the fact it had, in
fact, failed to follow the rules. Wallace recovered $173,000, plus her attorneys’ fees and costs.
The takeaway from this case is pretty simple. In every FMLA situation reduce the expectations
of the parties to writing, and then follow them. Think of any document created and sent to an
employee as a possible “Exhibit A” in a subsequent case. If it was blown up on poster board (or
on a computer screen) would it be unquestionably clear that the employee knew what was
expected?
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E.
Independent Contractor Status
Alexander v. Avera St. Luke’s, 768 F.3d 756 (8th Cir. 2014).
The definition of “employee” under the Family and Medical Leave Act (FMLA), 29 U.S.C.
§§ 2601 et seq. is that used in Section 203 of the Fair Labor Standards Act (FLSA), 20 U.S.C.
§ 203, which provides that an employee is “any individual employed by an employer.” Other
employment laws, such as the Age Discrimination Employment Act (ADEA), 29 U.S.C. §§ 621
et seq. and the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12102 et seq. use the same
unhelpful definition.
Who qualifies as an “employee” is quite important, since these laws apply to those individuals
who are employees (or applicants for employment, or former employees) but not to independent
contactors. The Eighth Circuit recently confronted the question of whether a doctor whose
contract with a South Dakota hospital was terminated after he had a heart transplant and was
treated for bipolar disorder could state a claim under the FMLA, ADEA and ADA. The Court
affirmed dismissal of his claims because he was an independent contractor rather than an
employee.
Dr. Alexander’s relationship with Avera began in January 1991, through a professional services
contract with another pathologist who had entered into an agreement to provide Avera “all of
Hospital’s necessary pathological services and provide the medical direction and supervision of
the Department of Pathology.” The contract provided that Alexander would become a member
of the Hospital’s medical staff, and that services he provided were those of “a professional
physician working as an independent contractor,” and not as an employee of the other
pathologist.
Over the years there were subsequent contracts between Alexander and Avera, and all of them
explicitly stated Alexander was an independent contractor and not an employee. Each contract
provided Avera had no authority to control or direct the performance of Alexander’s services.
The contracts provided that Alexander was solely responsible for paying taxes, obtaining
malpractice insurance, and paying for his professional licenses, and that Avera would neither pay
nor withhold taxes. The contracts also gave Alexander the right to hire assistants and substitute
pathologists at his own expense.
Alexander suffered a heart attack in March 2008, underwent a heart transplant in May 2009, and
was hospitalized for bipolar disorder in October 2010. In August 2011, the Hospital relied on a
clause in Alexander’s agreement that permitted either party to end the relationship, with or
without cause, on ninety days prior written notice.
The Hospital then hired -- as employees -- two other pathologists, with very specific employment
agreements that contained provisions (such as a non-competition clause and health benefits) that
were not in Alexander’s contracts. Alexander sued, alleging that the termination of his
agreement occurred because of his age and disabilities, and that he was prevented from taking
FMLA leave.
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The district court dismissed the claims because it found Alexander was an independent
contractor, not an employee of Avera. Alexander appealed. The Eighth Circuit affirmed.
The court first looked at the ADA and the ADEA, and the Supreme Court’s decision in
Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 (1992), where it reaffirmed the “wellestablished” principle that “when Congress has used the term ‘employee’ without defining it . . .
Congress intended to describe the conventional master-servant relationship as understood by
common-law agency doctrine.” It noted that the court has “consistently applied this principle in
determining whether a plaintiff asserting claims under the ADA or the ADEA was a protected
employee, or an unprotected independent contractor.” See Ernster v. Luxco, Inc., 596 F.3d 1000,
1004 (8th Cir. 2010).
Using the non-exhaustive list of relevant common-law factors the Supreme Court derived from
the Restatement (Second) of Agency § 220(2) (1958) in Darden, “all of the incidents of the
relationship must be assessed and weighed with no one factor being decisive.” Lerohl v. Friends
of Minn. Sinfonia, 322 F.3d 486, 489 (8th Cir.), cert. denied, 540 U.S. 983 (2003), quoting
Darden, 503 U.S. at 324. The Darden list of factors includes: the skill required; the source of
the instrumentalities and tools; the location of the work; the duration of the relationship between
the parties; whether the hiring party has the right to assign additional projects to the hired party;
the extent of the hired party’s discretion over when and how long to work; the method of
payment; the hired party’s role in hiring and paying assistants; whether the work is part of the
regular business of the hiring party; whether the hiring party is in business; the provision of
employee benefits; and the tax treatment of the hired party.
The court found that all of these factors pointed to an independent contractor relationship. As to
the FMLA claim, Alexander argued that here, the analysis should be governed by a six-factor
“economic realities” test, rather than the common-law agency principle of Darden. This was a
question of first impression, said the court, “and one that is largely unexplored by our sister
circuits.”
The FMLA claim required a bit more analysis. In the FMLA, Congress used the FLSA
definition of employee, which is the same as under the ADA and ADEA, but the FMLA
reference also adopts the FLSA’s definition of “employ” -- which means “to suffer or permit to
work.” 29 U.S.C. §§ 2611(3), 203(g). As a result, Alexander argued, the breadth of coverage
under the FLSA definition -- and the FMLA as a result -- permits the meaning of “employee” to
cover some individuals who might not be employees under traditional agency law principles.
The Supreme Court has construed this broad FLSA definition as meaning that “employees are
those who as a matter of economic reality are dependent upon the business to which they render
service.” Bartels v. Birmingham, 332 U.S. 126, 130 (1947). And, it is true, the FMLA, has been
read in that way. Last year, for example, in Mendel v. City of Gibraltar, 727 F.3d 565 (6th Cir.
2013), the Sixth Circuit held that volunteer firefighters could be counted as employees for
FMLA coverage purposes.
In this case, however, the Eighth Circuit held that no such result could obtain. Said the court:
“Alexander was an independent contractor, not an employee, under the common-law standard of
Darden, taking into account economic realities such as Alexander’s freedom to use his fixed
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contractual compensation to hire substitute pathologists and assistants, his responsibility to pay
his professional licensing and malpractice insurance expenses, and the economic independence
reflected on his tax returns.”
The court continued that “[f]ocusing more directly on the ‘economic realities’ underlying the
FMLA, Congress considered this a statute establishing minimum labor standards for unpaid
leave. Dr. Alexander’s 2008 Pathology Services Agreement more than met the FMLA’s
minimum standard. It provided him unlimited freedom to hire -- at his expense -- ‘a qualified
and competent substitute pathologist’ if he was ‘unable to provide necessary services to St.
Luke’s for a period beyond thirty-five (35) days during a calendar year’ for any reason. Thus,
the conclusion that Alexander was an independent contractor rather than an employee does no
violence to the ‘economic realities’ underlying the FMLA.”
F.
Exempt Employees and Reaching 1,250 hours of Service
Alexander v. Boeing, 2014 U.S. Dist. LEXIS 102735 (W.D. Wash. July 28, 2014).
But just because time is not recorded does not mean that it was not worked or does not count
toward the 1,250 hour requirement. In Alexander v. Boeing, 2014 U.S. Dist. LEXIS 102735
(W.D. Wash. July 28, 2014), the court found that the plaintiff, an FLSA exempt manager at
Boeing who recorded only 1,203.2 total hours worked nevertheless could proceed with her
FMLA claim because she testified that she regularly worked extra hours each day, including 15
minutes to check emails each morning and evening that were not recorded. She also produced
corroborating evidence of Boeing’s “culture and expectations that managers regularly work
additional hours without recording their time” through testimony from a human resources
generalist who explained that she often worked “outside the scheduled hours without recording
the time into the system.” Id. at * 13.
G.
Serious Health Conditions.
1.
Hemorrhiods - Nasamba v. North Shore Med. Ctr., Inc., 727 F.3d 33 (1st Cir.
2013).
In Nasamba, the First Circuit addressed issues surrounding the plaintiff’s hemorrhoids. The
plaintiff left work due to her hemorrhoids and informed her employer that she needed time off
for a colonoscopy. Three days later, having not returned to work, she was fired. The district
court dismissed her FMLA lawsuit, holding that she did not establish her absences were due to a
serious health condition, although the court did find that she presented “sufficient evidence that
her hemorrhoids represented an ‘illness, injury, impairment or physical or mental condition.’”
2012 U.S. Dist. LEXIS 70417 *9 (D. Mass. May 21, 2012). The problem was that there was no
continuing course of treatment. According to the First Circuit, a series of litigation strategy
errors regarding plaintiff’s medical records by her attorneys doomed the appeal and summary
judgment was affirmed. The district court’s suggestion that the plaintiff’s hemorrhoids could
qualify as a serious health condition was left undisturbed, however.
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2.
Stage One Kidney Disease - Dalton v. ManorCare of West Des Moines IA, LLC,
2015 U.S. App. LEXIS 5536 (8th Cir. Apr. 7, 2015).
Lucinda Dalton worked for a skilled nursing facility in Iowa when she was diagnosed with stage
one kidney disease. She had significant weight gain and an edema. Following a series of doctor
visits in January 2011, she went to a kidney specialist who diagnosed her with stage one kidney
disease related to obesity. Additional tests, however, showed that Dalton had normal kidney
function. Based upon testimony from Dalton’s own doctor, the court noted that stage one kidney
disease is a “warning that the kidneys are working too hard, not an advanced disease, and renal
testing of Dalton revealed no abnormal kidney functions.” The court stressed that “[w]e do not
doubt that edema and fluid retention may be signs of a potentially serious condition, such as
congestive heart failure, liver disease, or primary kidney disease. But no such condition was
ever diagnosed, and ManorCare did not interfere with Dalton’s frequent medical appointments to
obtain needed diagnosis and treatment.”
H.
Notice Obligations
Lupyan v. Corinthian Colleges, Inc., 761 F.3d 314 (3d Cir. 2014).
If an employer intends to require certification, it is incumbent on the employer to insure that the
employee receives not just the certification form but notice of her FMLA rights. In Lupyan v.
Corinthian Colleges, Inc., 761 F.3d 314 (3d Cir. 2014), the plaintiff, a College instructor,
decided to take “personal leave” at the suggestion of her supervisor who had noticed that she
seemed depressed. The supervisor suggested that she apply for short-term disability leave
instead. She saw a doctor and submitted a certification form. The College determined she was
eligible for FMLA leave. But that’s where any FMLA talk ended. There was no discussion with
Human Resources about Lupyan’s FMLA rights or the College’s expectations. The College
allegedly mailed Lupyan a letter, but Lupyan claimed that she never got it. The College took no
further action to check on her or follow up. When Lupyan was released to work and advised the
College of that fact, she was told first that she could not come back if there were any medical
restrictions. When she provided a full release, Lupyan was told that she could not come back
because she had not returned to work within 12 weeks. This was the first time, Lupyan claimed,
she had any knowledge that she had even been on FMLA leave.
Reversing the district court’s entry of summary judgment in the College’s favor, the Third
Circuit rejected the College’s invocation of the “mailbox rule” -- the presumption that a letter
placed in the mail was received. Here, the presumption was weak because the College did not
send the letter by certified or registered mail, with only a claim by a human resources
representative that she had put the letter in an envelope and in the mail bin. Said the court,
“[g]iven Lupyan’s denial, and the ease with which a letter can be certified, tracked, or proof of
receipt obtained, that weak rebuttable presumption is not sufficient to establish receipt as a
matter of law and thereby entitle [the College] to summary judgment.” Id.
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I.
Employee Obilgations to Comply with the Employer’s Notice Requirements
Dalpiaz v. Carbon Cnty., 760 F.3d 1126 (10th Cir. 2014).
In Dalpiaz v. Carbon Cnty., 760 F.3d 1126 (10th Cir. 2014), the Tenth Circuit affirmed summary
judgment for an employer that fired its benefits administrator while on leave for failing to timely
complete and submit her FMLA forms, as well as for alleged dishonesty regarding the extent of
injuries she suffered in a car accident. As the County’s benefits administrator, said the court,
Dalpiaz was very familiar with the FMLA and its requirements, as she routinely scheduled
medical appointments for new County employees. Yet, despite repeated requests, Dalpiaz did
not submit her forms until she was given a final ultimatum and turned them in at the eleventh
hour. Coupled with this dilatory behavior, co-workers and community members reported that
Dalpiaz had been seen engaging in physical activities that were inconsistent with her claims of
injury. When the County asked her to see a doctor for an independent medical exam, Dalpiaz
delayed and never scheduled the appointment. Ultimately she was fired for, among other things,
her failure to timely submit the FMLA forms. Given the record, the court had no problem
affirming summary judgment for the County on Dalpiaz’s FMLA interference claim, finding that
she would have been fired regardless of her request for FMLA leave.
J.
The Incomplete Certification Form
Gienapp v. Harbor Crest, 756 F.3d 527 (7th Cir. 2014).
In Gienapp v. Harbor Crest, 756 F.3d 527 (7th Cir. 2014), the Seventh Circuit held that an
employer was not entitled to summary judgment on an employee’s interference claim where no
return to work date was included on the certification form. In this case, Gienapp took FMLA
leave to care for her adult daughter who had thyroid cancer. She returned the certification form,
but left the return to work date blank, because she was not sure if her daughter might die soon, or
live longer (which she did). Harbor Crest did not ask her to fill in the date, or provide any
written request for a return to work date. When Gienapp tried to come back to work, she was
told that she had been terminated. She had forfeited her right to any FMLA protection because
she had failed to tell her employer how much time she needed.
The Seventh Circuit rejected this argument, stressing that when Gienapp completed the form,
“[t]he date on which a medical professional would replace Gienapp’s assistance, or care might
become unnecessary, could not be known . . . . That left two possibilities: Gienapp might have
said something like ‘I will return no later than April 1, and earlier if possible’ or something like
‘I will stay with my daughter as long as necessary, even if that means giving up my job, but will
return by April 1 if things work out.’ As we understand Harbor Crest’s position, putting either of
these statements on the form would have complied with the FMLA’s notice requirement and thus
held Gienapp’s job open. Yet neither of these statements would have given Harbor Crest
materially more information than the blank box, plus the physician’s statement describing the
daughter’s medical status. It is hard to see why omitting something obvious should have such a
striking legal effect—certainly not when Harbor Crest could and should have asked.” Id. at 529.
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K.
Seeking Additional Information: Doctors’ Notes
Oak Harbor Freight Lines, Inc. v. Antti, 998 F. Supp. 2d 968 (D. Or. 2014).
The FMLA’s recertification requirements do constrain employers from seeking additional
information from an employee’s health care provider, causing frustration in some cases.
Employers who believe that they have an epidemic of workers suffering from “FMLA-itis” -FMLA abuse involving intermittent FMLA leave -- sometimes try ways to combat this perceived
abuse by asking for doctors’ notes to support absences. In Oak Harbor Freight Lines, Inc. v.
Antti, 998 F. Supp. 2d 968 (D. Or. 2014), the employer implemented such a requirement in its
attendance policy and then took the unusual step of seeking a declaratory judgment in federal
court that the note requirement did not violate the FMLA. Things did not work out quite the way
Oak Harbor hoped.
The district court declined to provide declaratory relief, stressing that “while both the FMLA
itself and its implementing regulations are silent on the specific question at issue here -- whether
Oak Harbor’s doctor’s note policy to support an already medically certified FMLA-protected
absence is permissible -- the statute and regulations ‘show an intent to limit medical verification
to certification and recertification as delineated. Neither the FMLA nor its regulations provide
for any other means by which an employer can require documentation from an employee’s
medical provider.’ Jackson v. Jernberg Indust., Inc., 677 F. Supp. 2d 1042, 1051 (N.D. Ill.
2010). As Jackson pointed out, ‘[h]ad Congress, or the Department of Labor, desired to permit
employers to demand such intermittent verifications, the statute or regulations would provide as
much. Instead, the regulations provide that an employer can verify the absence-condition
connection by means of recertification.’ Id. at 1052. While Oak Harbor attempts to distinguish
Jackson on the basis that the employee had to actually visit the doctor each time he took
intermittent leave -- as opposed to its policy which requires only a note from the provider’s
office -- the court’s decision was not premised on the extent of a doctor’s involvement, but that
the statutory and regulatory scheme contemplated only the specified and delineated involvement
of a doctor.” Id. at 976.
L.
Hostile to FMLA Work Environment
Henson v. United States Foodservice, 588 Fed. Appx. 121 (3d Cir. 2014) (unpublished).
Despite the fact that a supervisor referred to the FMLA as the “fraudulent medical leave act” and
that he told employees they had to work overtime because of “their FMLA buddies” and “those
motherf---ers on FMLA leave,” an employee could not get past summary judgment in
challenging his termination while he was on FMLA leave. Henson was a selector in the US
Foodservice warehouse in Bridgeport, New Jersey. He was fired for failing to follow his
supervisor’s instructions to reload a pallet that was “leaning precariously,” thereby creating a
safety hazard. Instead, Henson replaced the pallet with a “better looking” pallet and left, because
he “was just really trying to get home.” He showed no remorse for his actions.
Henson’s termination for insubordination occurred during “a designated FMLA period” although
it is unclear from the decision what exactly that means. In any event, he sued alleging retaliation
for use of FMLA, and a racially hostile work environment. The district court granted summary
judgment and the Third Circuit affirmed, holding that Henson produced no evidence to suggest
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that US Foodservice’s proffered legitimate, non-discriminatory reasons for firing Henson were
pretextual.
M.
The Case of the Three-Fingered Typist
Budhun v. Reading Hosp. & Med. Ctr., 765 F.3d 245 (3d Cir. 2014).
Supervisors and Human Resources representatives typically do not have medical degrees, but
sometimes they act like they do. The result is usually not a positive one for the employer.
Budham worked as a credentialing assistant at one of Reading Hospital’s affiliates. Her job
required that she generate and maintain records, and to demonstrate “efficiency and accuracy in
the credentialing” of network healthcare providers. Budhun estimated that approximately sixty
percent of her job was typing.
In late July 2010, Budhun broke her fifth metacarpal (the bone in her hand connecting her wrist
to her pinky finger) in an accident outside of work. She arrived at work the following Monday
with a metal splint on her right hand. Later that morning, she got an email from Stacey Spinka, a
Reading human resources employee, stating “Your supervisor has made us aware that you have
an injury that prevents you from working full duty,” and providing Budhun with FMLA leave
forms. Budhun apparently then left work and saw an Orthopaedic physician’s assistant that same
day.
Within the time required, Budhun provided the certification form and a note from a doctor
stating “[n]o restrictions in splint” and that she could return to work on August 16. But when
Budhun returned to work as she promised, she emailed Spinka, stating that she still had a splint
on her right hand, but that she could “type slowly and write a little bit, but not as fast as I used to
. . . . I could work but not fast.” Spinka replied that because Budhun’s return to work note
“states ‘no restrictions’, therefore you should be at full duty (full speed) in your tasks. If you are
unable to do so, you should contact your physician and ask him to write you and [sic.] excuse to
stay out of work until you may do so.”
Budhun responded immediately, stating that she could “use my index and thumb finger of that
[right] hand so I can’t go at full speed, but I could work.” Spinka again replied and informed
Budhun that she needed to perform at the “same capacity” as she did prior to going on leave and
that she should have full use of all her digits in order to be considered full duty. “It seems that
your physician was incorrect in stating that you could work unrestricted. If you were truly
unrestricted in your abilities, you would have full use of all your digits.”
Budhun, under the impression that Reading would not permit her to work with three fingers in
her right hand incapacitated, left her place of work and went back to the doctor’s office.
Although the certification then provided was a bit unclear, the doctor did write “[p]lease excuse
patient from work until reevaluation on 9/8/2010.” Reading approved FMLA leave for Budhun
through September 8, 2010.
When Budhun was reevaluated on September 8, and additional occupational therapy was
required, Budhun told Spinka and the FMLA leave was extended through September 23, the day
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her 12 weeks of leave were exhausted. The Hospital also approved non-FMLA leave through
November 9. When the FMLA leave ended on September 23, her position was filled by the parttime employee who had been doing the work while Budhun was on leave. Within the week,
Budhun informed the Hospital that she would have a return to work note for October 4.
But Spinka told Budhun that her job had been filled. And under Hospital policy Budhun was not
eligible to transfer to another position within the hospital because of her prior written discipline.
She was told that if her doctor released her to work before she found another position at the
hospital (even though she would have to apply as though she were an outsider), she would be
terminated. Budhun was told to come pick up her belongings and turn in her identification badge
and keys.
Budhun remained on leave, continuing to be eligible for fringe benefits, through November 9,
2010. At the expiration of her leave, she did not contact Reading. Reading considered her to
have voluntarily resigned at the end of her leave, consistent with its internal leave policy.
Budhun sued almost immediately, alleging FMLA interference and retaliation claims.
Reading moved for summary judgment, which the district court granted, holding that Budhun’s
interference claim failed because “[s]he was never medically cleared to return to work and . . . a
doctor’s note was never provided to defendant.” It also concluded that Budhun was never
entitled to the protections of the FMLA because she claimed that she was fully capable of
working at the time that she attempted to return to work on August 16, 2010.
The district court granted summary judgment on Budhun’s retaliation claim because it held that
Budhun suffered no adverse employment action because she was medically unable to return to
work at the conclusion of her FMLA leave. It also concluded that Budhun could not establish
any temporal nexus between her termination and her FMLA leave because “Budhun was
terminated on November 10, 2010 almost two months after she took FMLA.”
On appeal, the Third Circuit reversed the district court, holding that a dispute of fact existed on
the efforts Budhun made to return to work on August 16. The question was whether Reading
interfered with Budhun’s right to be restored to her position when Spinka told her that she
needed full use of all ten fingers before she could be reinstated, despite the fact that there was no
essential function of her job that she could not perform.
The court noted that “[a]lthough we have never had occasion to address specifically what
constitutes invocation of one’s right to return to work, Budhun has adduced enough evidence
such that a reasonable jury could find that she did so here.” The doctor said that Budhun could
work without restrictions. Reading did not give the doctor a list of job duties, so all he could go
on was Budhun’s description of what she did. That was Reading’s choice.
The regulations contemplate just this kind of situation. Section 825.312(b) provides that if the
employer requires clarification of the fitness-for-duty certification, the employer can contact the
employee’s health care provider (as long as the employee gives the employer permission to do
so). However, an “employer may not delay the employee’s return to work while contact with the
health care provider is being made.” Here, said the court, “instead of following the regulations,
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Spinka (who is not a doctor) seemingly overruled [the doctor’s] conclusion (albeit reached
without an employer-provided list of essential job functions) by telling Budhun that if she was
“truly unrestricted,” she “would have full use of all of [her] digits.” The Third Circuit found the
record sufficient to allow a reasonable jury to conclude that Budhun attempted to invoke her
right to return to work, and that Reading interfered with it when it told Budhun that she could
not.
N.
To Move or Not to Move for Summary Judgment, that is the Question.
Taylor v. eCoast Sales Solutions, Ltd., 35 F. Supp. 3d 195 (D.N.H. 2014).
Litigation strategy in employment cases often results in a “default mode” of the employer
moving for summary judgment. No doubt, many cases are resolved in this manner, and many
attorneys expect that the fees and costs associated with a motion for summary judgment will be
built into the case. And, if the record created in discovery supports it, surely the cost of a motion
will pale in comparison to going forward with trial preparation and trial itself. Nevertheless,
ALL cases are not good candidates for summary judgment, and some judges get a tad prickly at
having to remind counsel of this fact. Such was the case in Taylor v. eCoast Sales Solutions,
Ltd., 35 F. Supp. 3d 195 (D.N.H. 2014).
Taylor worked for eCoast as a sales representative until she was fired after taking FMLA leave
for childbirth. Before the events that led to her firing, Taylor had worked from home for three
months after having foot surgery, without incident. In fact, her supervisor at that time called her
the highest producer “month over month” even though she was not physically in the office.
The next year, she quit her job, but reconsidered when she learned that she was pregnant, and
was rehired by eCoast, but assigned to a new supervisor, Jon Decolfmacker. Within a couple of
months of returning, Taylor experienced complications due to the pregnancy and her doctor
instructed her to remain working at home. Apparently, at least according to Taylor, this did not
sit well with Decolfmacker, who “made quite a few statements that [she] should be back in that
office instead of working from home.” Taylor testified that
•
•
•
•
He made these comments “on numerous occasions,” including after he learned, in late
July 2010, that her doctor had just ordered Taylor to work from home through midAugust 2010;
He “was telling me that I needed to get back in the office and that he needed to get a time
that I was going to be back in the office.”
He said, after Taylor told him of her doctor’s order “that [she] would be working from
home at that point until [she went] out on . . . leave for the baby,” he “didn’t expect that I
would be out of the office [that] long with my pregnancy and that I should be back in the
office;” and that
From August on, Decolfmacker repeatedly kept telling her that she needed to be back in
the office and she shouldn’t be out on leave and working from home due to her
pregnancy. He was making these statements, Taylor recalled, nearly “every time” she
talked to him.
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In early November, Taylor was hospitalized due to complications from her pregnancy and was
placed on FMLA leave. She gave birth in December and returned to work in March. When she
returned, however, she was put at a new work station, which she testified “looked like a dump
. . . . It was layered with dirt. There was stuff everywhere.” Unlike her prior experience at
eCoast (including when she worked from home), she got no sales goals or quotas. When she
asked Decolfmacker to assign them, he said “not to worry about it.”
Then, about a week after she returned, Decolfmacker warned her about using “inappropriate
language” in a recent call to a sales prospect, and two days later Decolfmacker met with HR and
said that Taylor had fabricated a sales lead, which was a terminable offense. With this
information, eCoast fired Taylor. She sued, alleging FMLA retaliation and pregnancy
discrimination. Discovery established, among other things, that there were less than clearly
established rules at eCoast regarding “fabricating” leads and that a male employee had not been
fired for “embellishing” a lead, but put on a performance improvement plan.
Nevertheless, eCoast moved for summary judgment. Denying the motion, the court stressed that
the question was not whether a reasonable jury could find that eCoast would have fired Taylor
even in the absence of retaliatory intent. Rather, the question pertinent to summary judgment
was whether no reasonable jury could find otherwise.
The court recognized that an employer is of course entitled to fire an employee for dishonesty.
And, after hearing the evidence in this case, a jury could reasonably conclude that eCoast fired
Taylor for just that reason, rather than because of her pregnancy and the accommodations it
required. The court stressed that the evidence -- which eCoast ignored in its opening summary
judgment memorandum and incorrectly dismissed as “unsupported allegations” in its reply -created a genuine issue of material fact as to whether working from home and taking leave due to
her pregnancy played an impermissible role in Taylor’s firing.
In language that would make most all defense lawyers cringe, the court concluded that “it is
hardly an esoteric or difficult concept that summary judgment is appropriate only when the
record -- including the plaintiff’s own competent testimony -- fails to demonstrate a genuine
issue of material fact. This court is hopeful that, someday, competent counsel’s undoubted
awareness of this principle will trump the insistence by certain segments of the bar (undoubtedly
driven to some degree by client expectations) on moving for summary judgment in seemingly
every case, regardless of the state of the record.”
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