Keefe, Campbell & Associates, LLC

Editor’s Comment: In Bailey v. Pregis Innovative Packaging, Inc., No. 09-3539 (April 2, 2010) the Federal Appellate Court ruled the District Court did not err in granting Defendant-employer’s motion for summary judgment in an FMLA action alleging the Employer wrongfully terminated Plaintiff under its no-fault attendance policy when it counted two absences under said policy that were actually covered under FMLA.

The Court noted Plaintiff failed to preliminarily establish she worked required 1,250 hours of service during previous 12-month period of time so as to qualify for protection under FMLA. The Federal Court also rejected Plaintiff’s argument she was entitled to toll the 12-month period by 56 days when on leave during said period. We feel the purpose of the statutory FMLA requirement of 1,250 hours in 12-months is to avoid precisely what Plaintiff was trying to do.

The Court further rejected Plaintiff’s claim her employer retaliated against her by failing to remove an absentee point after expiration of the 12-month period as set forth in absenteeism policy, since any benefit to Plaintiff occasioned by removal of absenteeism point would have occurred after FMLA leave had commenced, and thus was not covered under retaliation provisions of FMLA.

We strongly agree with the ruling. If you have concerns about an FMLA issue or how to best address defense of such claims, send a reply.

Editor’s comment: “Donning and doffing” refers to the minutes it takes a worker to get into and/or out of work attire. In Pirant v. U.S. Postal Service, the United States Supreme Court declined to grant certiorari to appeal a Seventh Circuit Federal Court of Appeals ruling which held an employee could not count towards the 1,250-hour minimum for Family and Medical Leave Act (FMLA) eligibility the three to five minutes she spent each workday donning and doffing her gloves, shoes, and a work shirt.

The Federal Appellate Court ruled such articles of clothing did not constitute extensive and unique protective equipment that was integral and indispensable to her principal activities as a mail handler for the United States Postal Service. The employee’s petition for certiorari asserted the Seventh Circuit’s holding conflicted with decisions of the Third and Ninth Circuit Courts of Appeals, and with the Secretary of Labor’s interpretation of the Act, as set forth in the Postal Service’s petition for rehearing by the Seventh Circuit.

The petition for rehearing, which disavowed the rationale of the Seventh Circuit’s decision, had been supported by an amicus brief from the Secretary of Labor, according to the employee’s petition for certiorari. (Case below: Even though it was turned back, we consider it amazing to see such a claim make it all the way to the highest court in the land. If you would like the location of the ruling on the web, send a reply.

Editor’s comment: We saw a very solid article in Business Insurance magazine that is required reading for HR, benefits, workers’ compensation and safety folks across the U.S. Please don’t take our word C for it, look yourself at http://www.businessinsurance.com/article/20090726/ISSUE01/307269992.

Their focus was to applaud and focus on efforts by Boeing Corporation to look at every step of their leave processes and distill them down to the bare minimum. Boeing’s leave management programs underwent the process beginning in 2007 because of patent inefficiencies. The company with 147,000 employees previously administered eleven different, complex leave programs and its workers generated 59,000 intermittent FMLA absences annually and 16,000 non-FMLA absences. Their managers felt poor administration of those cases was costing millions of dollars and lost productivity.

Employees and managers were very dissatisfied with the complexity of the cumbersome leave management administration. They moved all of them to one main site and administration. The overall management focus was then to revisit and “reinvent” every aspect of every leave request to see if it could be made more efficient. That required examining minutiae of every step in various leave processes to find improvement opportunities. It also allowed establishing an integrated and centrally managed absence-management program.

Boeing teamed with its group disability provider to obtain short and long-term disability support. They worked together to implement a current map of its leave processes. The process required a painstaking look where they mapped out every process, every person involved, every single transaction, every system, and every handoff. From the article, it appears to be a win-win situation for everyone involved from top management to the line workers.

We don’t see why this same process couldn’t be applied to workers comp leave—we feel it would bring definition to a hard to define process. If any of our readers are doing so, please send a reply.

Editor’s comment: On November 17, 2008, the United States Department of Labor (“DOL”) published long-awaited revised and updated final rules interpreting the Family and Medical Leave Act (“FMLA”). The new regulations go into effect on January 16, 2009, unless Congress votes to disapprove the regulations. The new rules help implement the military family leave provisions enacted in the National Defense Authorization Act for fiscal year 2008 and provide clarifications in response to court decisions and public comments pertaining to both the 2008 Notice of Proposed Rulemaking and public comments submitted in reply to DOL’s 2006 Request for Information. The changes and clarifications are detailed and we believe you will begin to see incident specific issues almost immediately. With the potential specifics resulting in many different scenarios, we strongly encourage you to consult legal counsel to answer your case specific questions.

Overview of clarifications and changes we consider significant

§         FMLA protection is expanded to include family members caring for a “covered service member” with a serious injury or illness incurred in the “line of duty on active duty.” These family members are able to take up to 26 work weeks of leave in a 12-month period.

§         Family members of personnel on active duty may also take FMLA leave for “qualifying exigencies,” defined as: (1) short-notice deployment (2) military events and related activities (3) childcare and school activities (4) financial and legal arrangements (5) counseling (6) rest and recuperation (7) post deployment activities and (8) additional activities where the employer and employee agree to the leave.

§         Exigent Circumstances Leave is not available to family members of individuals in the Regular Armed Forces, but rather extends only to those covered military members called or ordered to active duty as part of a contingency operation – retired members of the Regular Armed Forces, members of the Reserves, including the retired reserves, and/or members of the National Guard.

§         Professional Employer Organizations (“PEOs”) which contract with employers are not joint employers with their clients unless the PEO: (1) has the right to hire, fire, assign, or direct and control the client’s employees, or (2) benefits from the work that the employees perform.

§         The final rules now codify an existing rule that an employee may voluntarily settle or release FMLA claims without the approval of the court or DOL.

§         Consolidation of multiple provisions on employer notice which provide that an employee needing FMLA leave must follow the employer’s usual call-in procedures for reporting an absence unless unusual circumstances exist. An employee’s consequences for failing to provide proper notice remain the same to enhance employer planning for employee absences.

§         Under the current regulations, there are six types of conditions that qualify as a serious health condition. The new regulations keep each of the definitions, but clarify three:

o        First, to meet the definition requiring that an employee have a condition involving more than three consecutive days of incapacity plus “two visits to a health care provider,” the employee must make two visits within the 30 days beginning with the initial date of incapacity and the first visit must occur within the first seven days of the incapacity.

o        Second, to meet the definition that requires an employee have a condition that involves more than three consecutive days of incapacity plus continuing treatment, the first visit to a health care provider also must occur within seven days of the first day of incapacity.

o        Finally, to qualify as an employee with a “chronic serious health condition,” an employee must make at least two visits to a health care provider per year.

§         Employees who take intermittent FMLA leave for planned medical treatment have a statutory obligation to make a “reasonable effort” to schedule such leave so as not to disrupt unduly the employer’s operations.

§         If an employee voluntarily performs “light duty” work, time spent doing such work will not count against an employee’s FMLA leave entitlement, and the employee’s right to job restoration is held in abeyance during the light duty period.

§         Employers may deny “perfect attendance” awards to employees who do not have perfect attendance because they took FMLA leave, provided the employer treats employees taking non-FMLA leave in the same way.

§         Employers (e.g., Human Resources) may contact an employee’s healthcare provider directly, but only for clarification and authentication of a medical certification. The employer may not request additional information beyond that included in the certification form. If an employer deems a medical certification incomplete or insufficient, the reasons must be stated in writing and the employee must be given seven days to cure any deficiency.

§         Employers must account for FMLA leave using an increment no greater than the shortest period of time used to account for other forms of leave, provided that it is not greater than one hour.

§         The terms and conditions of an employer’s paid leave policies apply and must be followed by the employee in order to substitute any form of accrued paid leave for unpaid FMLA leave. (Essentially an employee may elect to use or an employer may require use of paid time off concurrently with unpaid FMLA leave and this eliminates procedural distinctions between the use of paid vacation or personal leave versus paid medical or sick leave as a substitute for FMLA leave.)

§         Employers are required to provide employees with a general notice of FMLA rights, an eligibility notice, a rights and responsibilities notice, and a designation notice. The healthcare certification form has been updated and revamped. The DOL has provided several new sample forms that employers can use for these different purposes, including forms covering exigent circumstances and covered service member family leave.

§         If an employer has no handbook or other written materials, it must provide general FMLA notice to new employees upon being hired. An employer has 5 business days to respond to an employee’s request for leave. If an employee suffers individual harm because the employer fails to follow the notification rules, the employer may be liable.

§         Where the amount of leave to be taken is not known at the time of FMLA designation, an employer may inform the employee of the number of hours counted against his or her FMLA leave entitlement only upon employee request, and no more often than every 30 days.

§         Allow employers to require a fitness-for-duty certification before an employee on intermittent FMLA leave may return to work.

We again note these changes are voluminous and detailed. We suggest clarifying any specific issues with legal counsel to review your existing policies and to consider changes to those existing policies. We continue to recommend appropriate documentation be completed and maintained in all cases. This article was researched and written by Shawn R. Biery, J.D. If you have thoughts, comments or questions, please send a reply to sbiery@keefe-law.com.

Editor’s Comments: In Franzen v. Ellis (Nos. 07-2009, 07-3358 September 10, 2008) the Seventh Circuit Court of Appeal held Plaintiff was not entitled to damages under the FMLA as he failed to mitigate his damages and was barred from recovery. Plaintiff was not entitled to a second jury trial on the issue damages as

(1) Plaintiff was unable to return to work at end of FMLA 12-week leave period,

(2) He failed to mitigate damages by failing to look for work of any kind and no reasonable jury could have concluded otherwise.

Finally, Plaintiff was not entitled to attorneys’ fees under the FMLA fee-shifting provision as the district court properly entered judgment in favor of defendant on the issue of damages and an interlocutory jury verdict did not constitute a judgment in favor of employee as required by the statute.

Plaintiff was employed as a mechanical engineer. In April 2002, Plaintiff was seriously injured in an automobile accident. On May 2, 2002 he notified the company’s Human Resources Manager he had been injured and was unsure when he would be able to return to work. Plaintiff requested a doctor’s note to establish eligibility to receive leave under the Family and Medical Leave Act (“FMLA”) and short-term disability.

In May 2002, Plaintiff received a packet in the mail including a medical certification form to qualify for FMLA leave and short-term disability. He had 15 days, until May 28, 2002, from date of receipt to return the paperwork or any absences would be considered unexcused. Defendant employer contended despite numerous phone calls to Plaintiff it did not receive the required documentation by the deadline and so denied the request for FMLA leave. His absences through May 28, 2002 were considered unexcused and he was terminated. At no time following his termination did Plaintiff seek employment of any kind.

Plaintiff filed a federal suit alleging Defendant interfered unlawfully with his right to take medical leave under the FMLA and discriminated against him for taking leave. Plaintiff further alleged Defendant breached its employment contract and violated a state law against retaliatory discharge.

Defendant moved for summary judgment on all claims. The federal district court dismissed the contract and state law claims, but found a genuine issue of material fact as to the FMLA claims. The trial was bifurcated into liability and damages phases. The jury heard evidence on liability and rendered their verdict in favor of Plaintiff. The sole issue before the jury was whether Defendant received requisite medical documents from Plaintiff prior to the FMLA deadline.

The district court conducted a bench trial on damages and held Plaintiff was not entitled to any damages due to his failure to mitigate his damages, refused to grant Plaintiff’s request for attorneys’ fees and dismissed the case with prejudice. Plaintiff filed a motion to amend or alter judgment contending he was entitled to attorneys’ fees because the jury had found Defendant violated the FMLA. Plaintiff submitted Defendant should have been estopped during the damages trial from introducing evidence of Plaintiff’s inability to work because this had been implicitly decided by jury. The district court denied the motion.

On appeal, Plaintiff employee raised three issues:

• Whether the district court erred in denying Plaintiff a jury trial on the issue of damages in violation of the FMLA and Seventh Amendment;
• Whether Defendant should have been estopped during the damages phase of trial from introducing evidence of Plaintiff’s inability to work as this issue had been implicitly decided by the jury; and
• Whether the district court erred in denying Plaintiff’s request for attorneys’ fees.

In affirming the judgment of the district court, the Seventh Circuit held Plaintiff was not entitled to a jury trial on the issue of damages under the FMLA and Seventh Amendment because (1) Plaintiff was unable to return to work at end of 12-week FMLA leave period, (2) he failed to mitigate damages by failing to look for work of any kind, and no reasonable jury could have concluded otherwise. If the district court had held a jury trial on issue of damages, it would have been required to direct a verdict for defendant.

The Court held Defendant should not have been estopped during the damages phase of the trial from introducing evidence of Plaintiff’s inability to work as the sole question before the jury was whether Plaintiff had proved by a preponderance of the evidence Defendant employer received the requisite documentation before the deadline. Plaintiff’s ability to work was not presented to the jury.

On the issue of attorneys’ fees, the Seventh Circuit upheld the judgment of the district court denying an award of attorneys’ fees. The Court discussed the liberal fee-shifting provision of the FMLA. In so doing, it noted, that pursuant to the plain wording of statute, an actual “judgment” in favor of plaintiff was necessary to trigger an award of attorneys’ fees.

In the instant case, the district court did not enter judgment in favor of plaintiff. Although the jury found termination of employment violated the FMLA, the district court found Plaintiff failed to prove he was entitled to damages, dismissed the case, and entered judgment in favor of the employer. The Seventh Circuit held an interlocutory jury verdict on issue of liability alone was insufficient to constitute a judgment awarded to plaintiff. An award of zero damages supported by a rational basis in the record was generally considered a judgment for defendant.

Editor’s comment: This ruling again confirms an individual can file suit on the barest of allegations, but must show they can potentially prove all necessary elements of a claim—including initially showing a right to be protected under a federal act such as FMLA—to survive summary judgment. Simply citing discrimination or arguing interference with a federally protected mandate is not sufficient. In a side note, Petitioner sued the supervisor for defamation for alleged unfavorable statements including those made at a grievance hearing.

In de la Rama v Illinois Dept of Human Services (No. 07-1156 September 2, 2008), the Seventh Circuit Court of Appeals on appeal from the United States District Court for the Northern District of Illinois affirmed summary judgment was proper in a claim brought alleging discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., interference with her rights under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq. and common law defamation.

De la Rama is a Filipino-American who was employed as a registered nurse at Chicago-Read Mental Health Center (Chicago-Read), a residential facility for mentally ill adults run by the Illinois Department of Human Services (the Department). From January 2004 to January 2005, Mary Zukowski was de la Rama’s supervisor. Pursuant to Chicago-Read’s leave policy, de la Rama received 12 sick days per year, which accrued at a rate of one sick day per month. De la Rama called in sick from July 19, 2004 through August 19, 2004. Although she was diagnosed with fibromyalgia in early August, she did not convey this information to her employer until much later. Instead, de la Rama sporadically submitted notes from physicians stating she was ill. Eventually several work days she missed were treated as unauthorized absences (UAs) totaling 24 UAs. After de la Rama returned to work in 2005, she, her union representative and her new supervisor attended a pre-disciplinary meeting regarding these UAs. The parties decided de la Rama would not be disciplined for the UAs but that future UAs would trigger a disciplinary proceeding against her. De la Rama pursued a grievance in order to remove the UAs from her employment record. At the third-level grievance hearing, management and de la Rama’s union representatives agreed the absences would remain on her record but would never be used in any disciplinary proceedings against her.

On September 9, 2005, after receiving a right to sue letter from the Equal Employment Opportunity Commission, de la Rama filed this lawsuit alleging the Department discriminated against her because of her race and national origin. In addition, de la Rama complained the Department violated FMLA by refusing to allow her to take leave for a serious medical condition. She also brought a common law defamation claim against Zukowski, alleging Zukowski falsely claimed de la Rama’s absences were unauthorized and Zukowski made false statements about her during the third-level grievance hearing. On January 5, 2007, the district court granted summary judgment for the defendants which resulted in this decision on appeal.

It is well known that a plaintiff may prove intentional employment discrimination under Title VII by using either the ‘direct method’ or ‘indirect method.’ Rhodes v. Ill. Dep’t of Transp. Both methods require plaintiff to show she suffered a materially adverse employment action. The district court concluded de la Rama did not suffer any cognizable adverse employment action and thus, she could not proceed on her discrimination claim under either the direct or indirect method of proof. On appeal, she disputed that finding, arguing the recording and preservation of 24 UAs on her record constituted a materially adverse employment action. The federal Appellate Court explained in order to be actionable, “adverse actions must be materially adverse . . . meaning more than a ‘mere inconvenience or an alteration of job responsibilities.’ ” Oest v. Ill. Dep’t of Corr. It was also noted the Court concluded negative performance evaluations, standing alone, are not cognizable adverse employment actions. See, e.g., Sublett v. John Wiley & Sons, Inc.; Beamon v. Marshall & Ilsley Trust Co.; Lucas v. Chi. Transit Auth.; Smart v. Ball State Univ.. The Court discerned no reason to treat the UAs in this case differently than they treated negative performance evaluations or the inclusion of a letter of concern in an employee’s personnel file and noted the undisputed facts of this case persuaded the UAs do not in and of themselves constitute a materially adverse action because—pursuant to the agreement reached by de la Rama and her employer at the third-level grievance hearing—the UAs on her record do not have any effect on the terms or conditions of her employment.

In order to prevail on her FMLA interference claim, de la Rama was required to show:

(1) She was eligible for the FMLA’s protections,

(2) Her employer was covered by the FMLA,

(3) She was entitled to leave under the FMLA,

(4) She provided sufficient notice of intent to take leave, and

(5) Her employer denied FMLA benefits to which she was entitled.

The district court concluded de la Rama failed to provide sufficient notice of her intent to take FMLA leave and the Appellate Court agreed because, although an employee is not required to refer to the FMLA in order to give notice of her intent to take FMLA leave, she must alert the employer to the seriousness of a health condition. Calling in sick without providing additional information does not provide sufficient notice under the FMLA. De la Rama did not provide documentation of her fibromyalgia until October 4, 2004. Until that point, de la Rama informed her employer only that she was sick, which is insufficient to suggest she suffered from an FMLA-qualifying condition. The Court noted FMLA does not require employers to play Sherlock Holmes, scanning an employee’s work history for clues as to the undisclosed, true reason for an employee’s absence. The Court also noted there was simply nothing in the record to suggest the kind of “dramatic, observable change in de la Rama’s work performance or physical condition” that would excuse her from failing to notify the Department of her need for FMLA leave. Further, in light of the fact that de la Rama was permitted to take seventeen weeks of leave—five weeks more than the twelve weeks the Department was required to give her under the FMLA—the Court found it difficult to see how the Department interfered with her entitlement to leave at all. In fact, at oral argument her attorney stated de la Rama was not attempting to take FMLA leave when she called in sick in July and August. The Court noted this was a puzzling concession further obscuring the basis for de la Rama’s FMLA interference claim since it was undisputed the Department granted her FMLA leave after she submitted her written request in October. Because de la Rama received FMLA leave after providing notice in October 2004, and because she did not provide adequate notice prior to that date, summary judgment was affirmed.

Finally, de la Rama alleged that Supervisor Zukowski defamed her on two occasions. First, during July and August 2004, when Zukowski allegedly made unfavorable statements about de la Rama’s absences to some of her co-workers. The district court concluded Illinois’ one-year statute of limitations for defamation barred the claim based on these statements since de la Rama filed her lawsuit in September 2005. The second incident of defamation supposedly occurred during the third-level grievance hearing, when Zukowski told “false stories” about de la Rama’s behavior while she was enjoying the unauthorized absences and characterized de la Rama’s doctors’ notes as deficient. The district court concluded the statements “concerned only de la Rama’s failure to navigate through the proper procedures and paperwork that would entitle her to extended time off,” and thus, did not fall into any of the categories of defamation per se under Illinois law.

This case is also another example of the concept that “you can be sued by anyone for anything”. The Plaintiff in this case obviously was availed of multiple avenues to address her concerns and continued to litigate after every determination which did not suit her, going so far as to file common law claims against the supervisor without any real basis in evidence. It also again confirms that documenting effectively will help avoid liability for claims via summary judgment, but nothing can keep an employee from filing suit if the inclination strikes. We again remind all employers to ALWAYS DOCUMENT to bolster your defenses and minimize the costs of litigation. This article was researched and written by Shawn R. Biery, J.D. If you have thoughts and comments or need the case citation, please send a reply to sbiery@keefe-law.com.

Editor’s comment: This ruling is a classic example of how employers should deal with employees who want to work “short shifts” or reduced hours due to medical problems. The Court confirmed companies have the right to expect and require documentation of medical necessity for FMLA and also noted, as they have many times in the past, that simply being terminated with a WC claim pending does not provide sufficient evidence that the termination is in retaliation for filing a WC claim.

In Ridings v. Riverside Medical Center (No. 06-4328 August 11, 2008), the Seventh Circuit Court of Appeals on appeal from the United States District Court for the Central District of Illinois decided a claim where a worker was terminated under company and FMLA guidelines for refusal to complete appropriate FMLA forms after repeated opportunities to provide the information. The district court granted summary judgment for Defendants, finding the request to complete information was appropriate and termination was neither interference with FMLA rights nor retaliation by the employer.

Plaintiff was an employee of Riverside Medical Center from October 1998 until May 13, 2004 and was classified as full-time exempt. Riverside required full-time exempt employees to “swipe in” to the time-keeping system every day, but the employees’ hours were not tracked. In December 2002, Ridings was diagnosed with Graves’ disease, which is a disorder of the thyroid. In January 2003, Ridings’ doctor advised her to have her thyroid removed & Ridings applied for FMLA leave, completed an FMLA leave form and submitted a medical certification form to her doctor, as required by Riverside. Riverside granted the FMLA leave for two weeks and later permitted Ridings to extend the leave for one additional week after surgery. Ridings returned to work after surgery and worked from about 8:00 a.m. until 12:00 p.m. for a few weeks gradually increasing hours until she was working nearly a full day. On two occasions in 2003, Ridings nearly fell asleep while driving home; thereafter, she did not work past 4:30 p.m. unless she had a ride home.

In June 2003, Ridings received an annual employee evaluation of “Key Contributor” which is one step below the highest possible ranking. In July 2003, Ridings submitted a claim under the Illinois Workers’ Compensation Act, asserting that she had developed Graves’ disease due to workplace stress. Ridings worked less than eight hours on premises and regularly took work home in the evenings and on weekends. On January 25, 2004, her supervisor Kyle Hansen discussed Ridings’ work schedule with her, and expressed the need for Plaintiff to begin working a full eight-hour day on premises. On February 25, 2004, Hansen again confirmed and Ridings did not comply after either meeting. On March 11, 2004, Hansen drafted a “corrective action report” (“CAR”) regarding Ridings’ work schedule. After HR review, a modified CAR was presented to Ridings March 22, 2004 stating Ridings’ attendance was unsatisfactory because she had not been working a full eight-hour day, that she must begin working full eight-hour days immediately and advised her that the next action taken, if she did not comply, would be to place a warning in her personnel file.

Ridings provided a note from her doctor on the same day, March 22, 2004, which stated that she could not work an eight-hour day because of a medical condition until further notice. On April 1, 2004, Hansen met with Ridings and informed her that based on her doctor’s note, she needed to provide Riverside with FMLA paperwork. He gave Ridings an FMLA leave application to complete and an FMLA medical certification form for her physician to complete. On April 16, 2004, Hansen asked Ridings about the FMLA forms. She presented Hansen with her attorney’s business card and stated her attorney needed to handle the matter. On April 21, 2004, Hansen provided Ridings with another CAR. The CAR stated Ridings failed to adhere to policy because she “[d]id not complete FMLA paperwork as requested in 15 day period.” The CAR stated the “expected improvement” for Ridings would require “FMLA paperwork requesting intermittent leave . . . be completed by her physician and presented back to her supervisor by April 28, 2004.” The CAR stated the next action taken if the FMLA forms were not completed would be to place Ridings on suspension for three days without pay. If she returned to work after the suspension without presenting the FMLA paperwork to Hansen, then she could be terminated. Ridings signed the CAR, objecting to the disciplinary process. On May 10, 2004, Hansen provided a third CAR to Ridings. At that time, Ridings was suspended for three days without pay because she “did not turn in FMLA paperwork requesting intermittent leave by April 28, 2004.” The CAR identified the next action that would be taken: “Upon returning to work after the suspension, if the FMLA paperwork is not presented then further action, up to and including termination may be taken.” Ridings signed the CAR, again objecting to the disciplinary process. On May 13, 2004, Ridings returned to work after her suspension without the completed FMLA paperwork, and Riverside terminated her employment.

As a brief refresher of FMLA, eligible employees are allowed up to twelve work weeks of leave during a twelve-month period where the employee has a serious health condition that renders them unable to perform the functions of their position. To prevail on an FMLA interference claim, an employee must show their employer deprived her of an FMLA entitlement. The FMLA permits an employer to require a request for leave due to a serious health condition be supported by certification issued by the health care provider of the employee. See 29 U.S.C. § 2613(a).

Ridings asserted the requests for documentation were not proper. The Court concluded Ridings’ obligations under Riverside’s policies were also essentially identical regardless of which type of leave she was taking. She would have filled out the same forms, checked the same boxes, and had the same obligations to provide medical certification. The only difference would have been Ridings’ need to answer one alternate fill-in-the-blank question on Riverside’s application form. The Court acknowledged the CARs were clear that Ridings was directed to apply for “intermittent leave.” However, the Court determined they could not conclude from the evidence presented the term “intermittent” was used, as Ridings contends, in an attempt to force her to cease taking a reduced schedule leave and apply anew for intermittent leave. The application form was used for all types of leave, including extensions of leave. The Court found if Ridings had presented any evidence that the use of the term “intermittent” had in any way influenced her decision not to turn in the FMLA forms, they would consider that fact and the reasonable inferences drawn therefrom in favor of Ridings. However, Ridings’ own complaint, summary judgment exhibits, and deposition testimony indicated her reasons for failing to turn in the FMLA forms were entirely unrelated to the use of the term “intermittent.” Especially damaging–Ridings’ own complaint stated: “[Ridings] refused to apply for FMLA leave and declined to provide the requested medical certification.”

Ridings also argued Riverside was obviously aware of her condition from the prior issues and leave and noted her doctor’s note regarding the inability to work 8 hours also provided certification. The Court noted that, even assuming the doctor’s note constituted “certification,” Riverside certainly gave Ridings a reasonable opportunity to cure any deficiency in it, when it repeatedly told her from April 1, 2004, until her termination on May 13, 2004, that she needed to fill out the FMLA paperwork.

Ridings further argued she could not be forced to take FMLA leave. As written in a recent KC&A Update, the court addressed a similar argument recently in Dotson v. BRP U.S. Inc., 520 F.3d 703, 708 (7th Cir. 2008). If an employee does not wish to take FMLA leave but continues to be absent from work, then the employee must have a reason for the absence that is acceptable under the employer’s policies, otherwise termination is justified.

Ridings also asserted a claim against Riverside for retaliation in violation of the FMLA. The FMLA provides it is unlawful for any person to “discharge or in any other manner discriminate against any individual for opposing any practice made unlawful” by the FMLA. Ridings contended there was no “business justification” for needing her to work an eight-hour day or to work her full schedule on the premises. Riverside acknowledged it did not terminate Ridings because of poor work quality. However, this does not lead to an inference Ridings’ termination was retaliatory. Riverside was entitled to ask Ridings to work a full schedule on the premises because she was a full-time employee; an employee cannot simply inform the employer when and from where she would like to work. The Court noted Riverside was permitted by the FMLA to require Ridings to substantiate her continued need for a reduced schedule, and it terminated her in accordance with the FMLA and its employment policies, after giving her repeated opportunities to provide the information it had requested. An employer cannot be deemed to retaliate against an employee by asking her to fulfill her obligations under the FMLA.

In regard to the claim of workers’ compensation retaliation, Ridings asserted Riverside also retaliated against her in violation of the Illinois Workers’ Compensation Act. To prevail on a claim for retaliatory discharge under the Illinois Workers’ Compensation Act, Ridings must allege

(1) She was an employee of Riverside before or at the time of the injury;

(2) She exercised a right granted by the Act; and

(3) Her discharge was causally related to the exercise of that right under the Act.

If Riverside can demonstrate a valid basis for discharging Ridings that is not pretextual, the element of causation is not met. Here, there is no such evidence of pretext. Riverside admitted Ridings was not terminated for poor work performance. The evidence shows Ridings was terminated for failure to turn in FMLA paperwork which Riverside was lawfully entitled to ask her to complete

In regard to all claims, the Court found Riverside articulated a valid basis for terminating Ridings, and Ridings failed to demonstrate sufficient evidence to show that Riverside’s stated reason for the termination was pretext. Therefore, Ridings could not succeed on the claims.

This case again verifies an employer’s right to obtain documentation, including medical certification, as support for leave under FMLA. We again remind all employers to have a set policy regarding information necessary to support an FMLA claim and we recommend you follow company guidelines as strictly as possible in all cases to provide the company with defenses in these types of litigation. We also note that it is still appropriate to terminate employees who do not comply with company guidelines regardless of potential other pending claims as long as the termination is not related to the pending claims. This article was researched and written by Shawn R. Biery, J.D. If you have thoughts and comments or need the case citation, please send a reply to sbiery@keefe-law.com.

Editor’s comment: The court looked at the employment situation as a whole and analyzed the amount of control to make the determination. The decision again notes small employers with less than 50 employees do not fall under FMLA guidelines. For a joint-employer relationship to exist, each alleged employer must exercise control over the working conditions of the employee.

In Moldenhauer v. Tazewell-Pekin Consolidated Communications Center (No. 07-1118 July 31, 2008), the Seventh Circuit Court of Appeals on appeal from the United States District Court for the Central District of Illinois was faced with a claim where a worker who was terminated for absenteeism sued for being retaliated against for exercising her rights under the FMLA. The district court granted summary judgment for the defendants, finding that there were not joint employers and that FMLA did not apply due to the small employer exception.

Moldenhauer began working at Tazcom in August 1983 as a dispatch telecommunicator. In 1991 she was diagnosed with chronic pancreatitis. As her illness progressed so did the amount of work she was forced to miss. A Tazcom manager first voiced concern regarding Moldenhauer’s absenteeism in 1998. In May of 2002 Moldenhauer advised she wished to invoke her rights under the FMLA. Moldenhauer claims the manager denied her request for FMLA leave, and she then filed a complaint with the U.S. DOL. An investigation culminated in a preliminary letter from the U.S. DOL labeling Tazcom, Pekin, and Tazewell joint employers under FMLA. In January 2003 the manager suspended Moldenhauer for twenty days due to her absenteeism, her third suspension for missing work. After returning from her suspension, she again missed work, and the company fired her in April 2003. Moldenhauer brought suit in district court for multiple claims including that Tazcom, Pekin, and Tazewell retaliated against her for trying to exercise her rights under the FMLA. The district court granted summary judgment in favor of Defendants, reasoning that Pekin and Tazewell did not have control over Tazcom employees and therefore were not joint employers of Moldenhauer.

Summary judgment was appropriate in favor of Tazcom, the court reasoned, because it had fewer than fifty employees and was therefore exempt from the FMLA. Because the court’s decision turned on the amount of control Pekin and Tazewell exercised over Moldenhauer, it is important to understand the relationship between Pekin, Tazewell, and Tazcom. Pekin and Tazewell created Tazcom in 1976 as a non-profit corporation in Illinois to provide emergency 911 communications at a more affordable rate. Tazcom serves thirty-eight public and private entities. Tazcom was established as an independent entity, but, as its name suggests, it does a great deal of business with Pekin and Tazewell. All of Tazcom’s clients pay for their emergency services, however the bulk of Tazcom’s operating budget was derived from the largest users, Pekin and Tazewell. Tazcom also rents office space from Pekin, and in order to enter the building, Tazcom’s employees were issued Pekin identification badges. Tazcom also contracted with Pekin for the provision of various services including Payroll, Health Care Insurance, Workers Compensation Insurance, and Illinois Municipal Retirement. Tazcom paid Pekin in exchange for payroll services. According to Pekin, technological limitations required all Tazcom employees be labeled as Pekin employees to provide payroll services. Pekin was also listed as Moldenhauer’s employer on many of her employment forms, including her W-2s, wage garnishment form, and direct deposit form. The Tazcom sexual harassment policy listed a Pekin city employee as the reporting official for potential claims. Finally, prior to 2002, Tazcom contracted with Pekin for health and life insurance providers, although it has since procured its own providers. As for the day-to-day operations of Tazcom, the parties dispute what level of control Pekin and Tazewell exercised over Tazcom. The Tazcom bylaws stipulate that a board of directors be appointed consisting of four individuals: the Sheriff of Tazewell, the Chairperson of the Tazewell Board of Supervisors, the Mayor of Pekin, and the Pekin Chief of Police, all of whom have the choice of serving personally or designating an alternate to serve in their place. But the board appoints a separate Executive Director to manage the day-to-day operations, including the hiring and firing of employees and creation of a preliminary budget. Steven Thompson served as Executive Director for all periods relevant to this claim and Thompson is not affiliated with Pekin or Tazewell in any way and is only employed by Tazcom.

In making their decision, the Court reviewed the guidelines for determining joint employment, it was noted this circuit had yet to address joint-employer liability under the FMLA, but had addressed a question of joint employers under the Fair Labor Standards Act. The Court noted the joint employer regulation in the FLSA mirrors that in the FMLA, and thus it makes sense to use this standard to govern the FMLA.

The test was noted as:

(1) Where there is an arrangement between employers to share an employee’s services or to interchange employees;

(2) Where one employer acts directly or indirectly in the interest of the other employer in relation to the employee; or,

(3) Where the employers are not completely disassociated with respect to the employee’s employment and may be deemed to share control of the employee, directly or indirectly, because one employer controls, is controlled by, or is under common control with the other employer.

The court also noted Congress exempted “small employers,” defined as employers with fewer than fifty employees. They strongly noted that it would not be tolerated if an organization divided itself into smaller entities with fewer than the statutory minimum number of employees for the express purpose of avoiding FMLA obligations. And where such evidence exists, they will not hesitate to deem these entities joint employers for purposes of the FMLA.

In this case, the Court found absolutely no evidence that Pekin and Tazewell created Tazcom in order to avoid their FMLA responsibilities. Indeed, Tazcom was created in 1976, seven years before the FMLA was enacted. Moldenhauer stresses that Tazcom’s board of directors was filled with officials from Pekin and Tazewell. But never does Moldenhauer point to any evidence these individuals acted as representatives of Pekin or Tazewell. There were no allegations that any of the directors, when acting in their capacity as a Tazcom director, sought to advocate for Pekin or Tazewell. Moldenhauer seems to suggest that because these leaders sat on the Tazcom board, it is implicit that Pekin and Tazewell were joint employers of Tazcom. But many government officials sit on many boards, and this fact alone cannot suffice to justify the extension of joint-employer liability. The Court also pointed out Moldenhauer cannot point to one instance of either Pekin or Tazewell hiring a Tazcom employee, determining the working conditions of the dispatchers (such as by specifying the number of dispatchers working at any given time and thus affecting the workload of each dispatcher), or deciding the compensation for a Tazcom dispatcher.

This case is the initial look into this particular issue by the Seventh Circuit and highlights the guidelines for FMLA requirements in relation to joint employers. This article was researched and written by Shawn R. Biery, J.D. If you have thoughts and comments or need the case citation, please send a reply to sbiery@keefe-law.com.

Editor’s comment: When an employee is appropriately disciplined and terminated within the set company guidelines, and where the employee alleges leave for medical related causes, the testimony of the terminated employee alone is not sufficient to show a chronic condition or to support a claim of ongoing medical care absent other medical evidence. It is also interesting to note that the parent company in these situations is entitled to summary judgment because they generally do not directly control the employee.

In Caskey v. Colgate-Palmolive Co. (No. 06-2919 July 24, 2008), the Seventh Circuit Court of Appeals on appeal from the United States District Court for the Southern District of Indiana was faced with a claim where a worker who was disciplined and ultimately terminated and then sued her former employer and its parent company for interfering with her right to medical leave, in violation of the Family and Medical Leave Act; discriminated against her because of her sex, in violation of Title VII of the Civil Rights Act of 1964; and retaliated against her for exercising her rights under the FMLA, Title VII, and Indiana law. The district court granted summary judgment for the defendants, finding Caskey’s discipline was lawful and her termination resulted from three unexcused absences from work.

Hill’s Pet Nutrition, Inc. (“Hill’s”) produces pet food, and Colgate-Palmolive Co. (“Colgate”) is their corporate parent. Caskey began working as a technician at the Richmond, Indiana plant of Hill’s in 1995. One of her primary duties involved operating an extruder, a piece of heavy machinery that, at the Hill’s plant, pushed unprocessed dog food through a grinder and then sliced the food into smaller pieces known as “kibbles.”

Hill’s had a detailed policy regarding performance, discipline and termination with a graduated process of discipline up to the termination. Hill’s also provided paid FMLA but did not have “sick days” so any leave not covered by FMLA or some other form of protected leave was determined to be an unexcused absence. Caskey had received FML at times and had also accumulated some unexcused absences which had advanced her in the discipline program. Caskey had also been disciplined for job performance after 50,000 pounds of reject “kibble” had been produced and 20,000 pounds had been packaged while she was in charge of quality control on a shift. This placed Caskey into the stage of discipline just prior to termination.

Caskey signed a letter of recommitment to the job with certain conditions and then violated the rules by requesting time off without 48 hours notice—but was not terminated due to that violation. Caskey then began to treat for depression and was taken off work by a physician qualifying for FML.

After returning from FML, Caskey took a birthday holiday 4 days later and took vacation the following two days. She then saw an employment assistance counselor regarding her depression. The counselor, like her treating physician, did not impose any work restrictions on Caskey. The following day, Caskey called a teammate at the Hill’s plant and said she was “sick” and was going to miss work for the following two days. She then failed to report to work on May 21, 22, and 27. Caskey did not receive any medical treatment for these absences, and her next visit to a physician occurred in August for an unrelated condition. On May 29, Hill’s sent Caskey a letter stating that she had “self-terminated” by not reporting to work on those three days (May 21, 22, 27).

The Court granted summary judgment for several reasons. Initially, Caskey did not present sufficient evidence to show that the string of absences starting on May 21 was the result of a serious health condition. At no point in late May did Caskey receive inpatient treatment in any medical facility. The FMLA regulations define “continuing treatment by a health care provider” as including, in relevant part, (1) a period of incapacity of more than three consecutive calendar days that also involves either treatment two or more times by a health care provider or a regimen of continuing treatment; or (2) any period of incapacity due to a chronic serious health condition, which requires periodic treatment by a health care provider.

It did not matter whether her discipline or her termination qualified as the adverse action, because she failed to present enough evidence on the third element—connecting her FML with her discipline or termination. Caskey can rely on two types of evidence in showing that her protected activity motivated Hill’s action under the direct method of proof: “direct evidence” or “circumstantial evidence.” The court found Caskey presented no direct evidence of a causal connection for both her FMLA or Title VII retaliation claims, and insufficient circumstantial evidence for her FMLA claim. Caskey pointed to some circumstantial evidence for her Title VII retaliation claim but her vague reference to a pattern, without any detail regarding the context of the other terminations, creates too sparse a trail to create circumstantial evidence of a causal connection. Caskey also did not present evidence of a similarly situated employee who was treated more favorably. Moreover, Caskey did not meet the legitimate expectations of her employer. She had progressed through the disciplinary process to the final stage, she did not follow the explicit agreement under the letter of recommitment to have no absences and use no emergency vacation time, and she did not follow the proper procedures for giving notice of any intended time off.

Turning finally to her state law wrongful termination claim, Caskey contended she was fired in retaliation for filing a workers’ compensation claim. Caskey failed to make a sufficient causal connection here. She relied heavily on the timing of her discipline—i.e., that she was disciplined shortly after her injury, and terminated shortly after that. This timeline omitted several other intervening events, including the series of unexcused absences in late May in violation of the Performance Agreement. And timing evidence alone rarely creates a jury issue on causation. The Court ruled the district court correctly found the dearth of evidence establishing a causal connection doomed her state law retaliation claim.

This case highlights several legal keys for employers which KC&A lawyers cite on a daily basis—DOCUMENT, DOCUMENT, DOCUMENT & follow your company policy as closely as possible to ensure questionable claims can be defended appropriately. This article was researched and written by Shawn R. Biery, J.D. If you have thoughts and comments or need the case citation, please send a reply to sbiery@keefe-law.com.