In Anders v. Waste Management of Wisconsin, Inc., No. 05-3862, 2006 U.S.App. LEXIS 23184 (7th Cir. Sept. 12, 2006), plaintiff was a “roll-off” waste hauler employed at Waste Management’s Franklin, Wisconsin facility. As a roll-off driver, Anders had no pre-determined route. Each day when he reported to work to work he was handed a route slip that detailed his itinerary for the day. On November 12, 2002, he received a route slip when he reported to work. A co-worker told him that the stops on his route had been serviced the day before. If that were the case, Anders believed that his assigned route would not need to be serviced. Waste Management policy, however, stated that a driver should attend to his route even if it were serviced the day before. Believing that his route would not need to be serviced again, Anders decided to leave work. Claiming that he was feeling sick, i.e., sleepy, shaky, and experiencing headaches, he told a supervisor he was going home. After Anders left the facility a co-worker informed management that Anders had discussed “going to get” Regional Manager Drephal and Manager Koch, who worked at a different facility 30 miles away. The mangers were called and forewarned. Anders did not go home but drove the thirty miles to the other facility. While at the other facility Anders became violent in the company of other managers, punching his car with his fists, smashing his cellular phone, and charging at a supervisor. He was subsequently fired for this conduct. Anders sued alleging that Waste Management violated the FMLA by denying him leave on November 6. He claimed that he suffered from a panic anxiety, depression disorder. The court disagreed. The court found that Anders failed to notify Waste Management that he was applying for FMLA leave by merely indicating that he was “not feeling well.” The court also found that Anders behavior on November 12 did not demonstrated that his inability to perform the duties of his job was the result of a serious health condition. The court found that his termination was the result of his deliberate and aggressive act of driving 30 miles to confront his supervisor, not his request for leave or panic disorder that yielded his termination. The FMLA, the court concluded, was not intended to excuse violence in the workplace.
Comment: The FMLA does not protect employees who engage in conduct that would otherwise warrant disciplinary action absent the invocation of FMLA rights. Note that the court found that advising an employer that an employee is “not feeling well failed to provide adequate notice of the need for FMLA leave.