The FMLA Blog

Employee's Subjective Feelings that Employer Was Attempting To Dissuade Him from Taking FMLA Leave Insufficent to Establish Interference Claim

Joseph Di Giovanna alleged that Beth Israel Medical Center interfered with his FMLA rights by attempting, unsuccessfully, to dissuade him from taking FMLA leave.  Di Giovanna pointed to comments made by his supervisor, Dakis.  When Di Giovanna allegedly asked her if he should file for FMLA leave, Dakis allegedly told him that "there was no need to, that another director.. had a mother that was terminal, that passed away and she did not file for FMLA."  Without even inquiring what Dokis meant, Di Giovanna claims that he "understood" Dakis to have been discouraging him from filing for FMLA leave." 

Di Giovanna also alleged that he was discouraged as a result of being "interrogated" and "harassed" with "barrages of questions" about his father's condition at "inappropriate times."  The court found that the cited deposition testimony failed to support the inflammatory characterization.  The alleged offensive questions were how Di Giovanna's father was doing and which hospital he was in. 

The court found that Di Giovanna's subjective feelings, assuming he actually had the feelings he now claim he had, abut what they actually said are insufficient to constitute interference under the FMLA, and not one of the alleged statements would have dissuaded a similarly situated employee of ordinary resolve from attempting to exercise FMLA rights."  The court observed that Di Giovanna himself was granted all of the leave he requested.  The court awarded summary judgment in favor of the defendant Medical Center.

Comment:  An employee's subjective belief that his or her employer was attempting to discourage them from exercising their FMLA rights is not the controlling standard.  Rather, courts will apply an objective standard to determine whether, in context, the alleged discouraging conduct would have discouraged a similarly situated employee "of ordinary resolve."   

Unfounded Fear that Employer Might Discipline Employee for Taking FMLA Leave Insufficient to Establish FMLA Interference Claim

Anderson, an eligible employee of Avon Products, an FMLA covered employer, requested a sick day for a diverticulitis episode.  In response, Shao, his supervisor, indicated that Anderson would incur an attendance violation if he did not come to work only if he did not produce a doctor's note explaining his absence.  Anderson elected not to take the leave.  He was not assessed an attendance violation. 

Anderson sued alleging that Avon interfered with his right to take FMLA leave. The Sixth Circuit disagreed.  The court noted that Shao did not deny Anderson's request for leave.  Rather, the logical implication of Shao's statement was that Anderson "would not incur a violation if he did produce a doctor's note."  The FMLA permitted Avon to require Anderson to substantiate his request for serious health condition leave with a medical certification from a health care provider.  The court observed:

Anderson's FMLA-interference claim is therefore based on his fear that Avon might have         disciplined him had he taken the leave.  But that fear, as explained above, ws unfounded, given Shao's statement.

Comment:  Although unstated, the court applied a reasonable person standard in finding that that Shao's statement did not interfere with Anderson's FMLA rights.  Although awkwardly phrased, Shao's statement, when deconstructed, did not threaten adverse action if Anderson took FMLA leave.  The fact that Anderson believed otherwise was not controlling. 

While ultimately victorious, the lawsuit undoubtedly cost Avon a bundle in time and treasure to defend.  The situation may have been avoided had Avon provided Shao with an approved form or packet for responding to employee requests for FMLA leave in a way that avoids costly ambiguity. Supervisors would be trained to simply hand over the FMLA packet.  If the employee has questions they should be directed to a named HR professional.  Given the complexity of the FMLA and the cost of litigation, vesting primary responsibility for handling FMLA requests with front line supervisors is fraught with expensive danger.            

Anderson v. Avon Products, Inc., 2009 FED App. 0540N, 2009 U.S. App. LEXIS 17499 (6th Cir. Aug. 5, 2009). 

    

Absent Damages, Technical Violations of the FMLA Do Not Support Recovery

The FMLA does not afford an employee relief for technical violations of the Act absent proof that the employee was harmed by the employer's violation.  To demonstrate harm, an employee is not required to prove monetary damages.  However, they must be able to demonstrate some harm as a result of the violation.

In Demers v. Adams Homes of Northwest Florida, Inc., No. 08-13044, 2009 U.S. App. LEXIS 5844 (11th Cir. March 20, 2009) the employer violated the FMLA by denying the employee leave.  The employee was unable to articulate any harm suffered as a result of the denial.  In sustaining the award of summary judgment to the employer, the Eleventh Circuit observed that the FMLA does not entitle a plaintiff to recover for technical infractions of the FMLA absent damages.

Comment: To maintain a viable civil suit an employee must be able to demonstrate some harm or prejudice resulted from the FMLA violation.  The prejudice need not result in a monetary loss to the employee, but it might.  For example, the employee may have been required to use paid leave rather than unpaid FMLA leave for the absence.  Or the employee may have been subject to a cancellation fee for a missed medical appointment.  Absent prejudice, the employee's FMLA claim, even if the employer technically violated the FMLA, will likely be dismissed.               

Threatening Termination for Any Leave After Expiration of FMLA Leave Interfered With Employee FMLA Rights

In response an employee's request for additional FMLA leave, the employer allegedly asked "Does this mean you're going to take another three months off?"  Plaintiff had a history of FMLA leave usage, including taking 3 months off in the preceding year following foot surgery.  The following day, the supervisor sent a letter to the employee stating:

Upon calculation of lost time due to FMLA, it has been determined that until September 28, 2006, you have five weeks of FMLA time left available to you per federal law guidelines.  Please be advised that any time taken beyond the five weeks of remaining leave between now and September 28, 2006 will result in the loss of benefits and termination of employment under the law.

The employee was terminated four days later, before she took any FMLA leave.  The employee sued alleging retaliation and interference with FMLA rights.  The employer moved for summary judgment arguing that the employee was terminated for a reason independent of the FMLA (bad attitude).

In denying summary judgment to the employer, the court noted the the supervisor's statement was susceptible to various interpretations depending on the tone it ws given, "from solicitous of Plaintiff's well-being, to merely information-seeking, to annoyed or resentful." Similarly, the court noted that the letter could be reasonably construed as simply informing Plaintiff of her remaining FMLA leave time, or as an expression of displeasure of her intent to request more FMLA leave.  For purposes of summary judgment, where all inferences favor the non-moving party, the court went with the latter interpretation.

The court opined that the combination of the supervisor's statement, the threatening letter, and the fact that the employee was terminated four days later before she could take any FMLA leave, suggested that the employer was displeased with the employee's request for additional FMLA leave.  The court noted that the FMLA prohibits an employer from interfering with or retaliating for an employee's attempt to exercise FMLA rights.

Almeida v. Althena Health Care Associates, Inc., No. 3:07cv517 (PCD), 2009 U.S. Dist. LEXIS 15103 (D. Conn. Feb. 26, 2009).

Comment:   A common misconception by employers is that FMLA protections end once the employee  uses up their 12-week entitlement.  The Almeida cases illustrates that this is simply not the case.  How an employer treats an employee's use of unprotected, non-FMLA leave may, in some circumstances, violate the FMLA.  This is particularly true where, as in Almeida, the employer threatens the employee with termination for the first absence after FMLA leave is exhausted, followed a few days later by terminating the employee anyway before any FMLA leave is used.

The denial of summary judgment does not mean that the employer will ultimately be found liable for violating the FMLA.  It does, however, make resolution of the claim, whether by settlement or trial, exponentially more expensive and time consuming.  This expense, moreover, may have been avoided had supervisors been properly trained about employee FMLA rights and protections.  As a free practice tip, putting your illegal threats in writing is something to be avoided.         

FMLA Usage and Percentage Absenteeism Rate Attendance Policies: Be Careful

In Dickinson v. St. Cloud Hospital, No. 07-3346 ADM/RLE (D. Minn. Oct. 20, 2008), the court addressed the interaction of the FMLA with attendance policies based on absenteeism percentage rates. In that case, the Hospital had separate policies for FMLA and non-FMLA absences.  For non-FMLA absences, an employee could be subject to discipline for exceeding a 4% absenteeism rate.  The absenteeism rate was calculated by dividing the number of hours an employee is absent by the scheduled hours of the employee.  FMLA absences are not factored into the absenteeism rate. 

Dickinson was terminated for having a non-FMLA absenteeism rate of 7.12% for the period November 6, 2005 to March 25, 2006.  Prior to that, Dickinson had used FMLA leave for problems with her kidneys. She had also been subjected to several levels of progressive discipline for exceeding the 4% absenteeism rates during various periods over the last several years. 

Dickinson sued, alleging that the Hospital interfered with her FMLA rights by the manner in which it calculated her non-FMLA absenteeism rate.  Specifically, Dickinson argued that FMLA leave must be included in the denominator of the absenteeism calculation because failing to do so causes the negative effect of increasing her absenteeism rate.  The Hospital argued that it did not interfere with her rights because it treats FMLA leave neutrally by excluding it from both the numerator and the denominator. 

Agreeing with Dickinson, the court observed:

As a ".9" employee, Dickinson was scheduled to work 1,872 hours per year.  To remain below the 4% absenteeism rate required by [the Hospital], she could only miss 74.88 hours of work a year (74.88/1872 = 4%).  Applying the method by which [the Hospital] calculates the absenteeism rate means that if Dickinson takes 100 hours of FMLA leave as well as 74.88 hours of non-FMLA leave, her absenteeism rate rises above 4% (74.88/1772 = 4.22%).

The court concluded that, under the Hospital's policy, employees who elect to take FMLA leave may be allowed fewer non-FMLA absences.  As such, the policy uses the taking of FMLA leave as a negative factor, which is prohibited by the Act. 

Comment: Employers with attendance policies based on non-FMLA leave absenteeism percentages need to ensure that FMLA leave usage is completely factored out of the calculation.  WARNING: THIS MAY REQUIRE MATH SKILLS. 

The court went on to find that the Hospital could still prevail if it could show that it would have terminated Dickinson even if she had not exercised FMLA rights.  To do so, the Hospital, the court opined, would need to demonstrate the Dickinson 's absenteeism rate would be above 4% over the time period used to determine the rate even with FMLA leave factored into the denominator.  The court ultimately found material facts in dispute on the issue and denied employer's motion for summary judgment.

Failure to Prorate Performance Goals To Account for Leave Usage Violates FMLA

In Wojan v. Alcon Laboratories, Inc.,No. 07-11544, 2008 U.S. Dist. LEXIS 69576 (E.D. Mich. Sept. 15, 2008), the employee took 12 weeks of FMLA leave from her medical sales position incident to the birth of a child.  Because she took 12 weeks of FMLA leave, she did not meet her sales goals for the year.  The company did not adjust her sales quota to account for her leave. Under company policy, sales goals are not adjusted for any employee for any reason, including FMLA leave.  Alcon placed Wojan on a performance improvement plan because she did not meet her sales goals.  She was eventually terminated.  Prior to this incident, Wojan had consistently achieved high performance ratings.   

In denying the employer summary judgment, the court found that Alcon used Wojan's FMLA leave as a negative factor in her evaluation.  The court opined that Alcon's policy is "in direct contravention of FMLA provisions which prohibit the taking of FMLA leave as a negative factor in employment actions."  The court reasoned that Alcon may have interfered with Wojan's FMLA rights by adversely evaluating her, in part, based on time she was absent on FMLA leave.  That adverse evaluation led to her placement on a PIP, which led to her termination.    

Comment:  The decision appears problematic.  While the FMLA prohibits an employer from using FMLA leave as a negative factor against an employee, it also provides that an employee has no greater right to employment benefits for having exercised FMLA rights.  The court's decision, in my opinion, provides greater employment rights to employees who have exercised FMLA rights than if they had not taken FMLA leave.  Like it or not, the employer's policy does not recognize the use of leave of any kind as an exception to the requirement that the employee meet their annual sales quota.  The court's decision effectively carves out an exception to that general rule that benefits employee's who have used FMLA leave over those who used another form of leave, or no leave at all.  

This is not a case where the employee was denied a perfect attendance bonus because of their use of FMLA leave.  The current DOL regulations (29 CFR 825.215) distinguish bonuses based on meeting performance goals from those based on the absence of certain events, such as safety and perfect attendance bonuses.   The distinction is predicted on the DOL's view that performance goals require activity on the part of the employee independent of FMLA leave, whereas the latter did not require any effort on the part of the employee.  Because achieving perfect attendance or no accidents required no effort on the part of the employee, the DOL believed that the denial of the bonus was more directly tied to the use of FMLA leave.    Wojan clearly involved performance by the employee to meet the annual sales quota.  

It should be noted that the DOL has proposed to do away with the current distinction as confusing and illogical.  The DOL proposal questions its own previous asumption that achieving perfect attendance or no accidents requires no effort on the part of the employee.        

Discouraging FMLA Usage Interferes with FMLA Rights Even Where All FMLA Leave Requests Are Approved

An employer that discourages an employee from taking FMLA leave may be liable for interfering with an employee's FMLA rights even though the employer ultimately grants all FMLA leave requested.  

The issue was recently addressed in Jennings v. Ford Motor Co., No. 1:06-cv-0877-SEB-TAB, 2008 U.S. Dist. Lexis 62761 (S.D. Ind. Aug. 15, 2008).  For purposes of summary judgment, the court accepted that Ford managers had discouraged employees by denying overtime to any employee who took time off during the week, including time off for FMLA leave.  

Ford moved for summary judgment, arguing that Jennings could not establish an unlawful interference claim because he was not denied any FMLA benefits.  Denial of FMLA benefits is one of the five factors that an employee must prove to establish an FMLA interference claim.  Ford's argument was based on the language of the Seventh Circuit in Burnett v. LFW, Inc.,472 F.3d 471, 477 (7th Cir. 2006).  In that case, the Seventh Circuit set forth the following five factors an employee must establish to prevail on an FMLA interference claim:

(1) he was eligible for the FMLA's protections, (2) his employer was covered by the FMLA, (3) he was entitled to leave under the FMLA, (4) he provided sufficient notice of his intent to take leave, and (5) his employer denied him FMLA benefits to which he was entitled.

Ford argued that it should be awarded summary judgment because Jennings could not establish the fifth element: that he was denied FMLA benefits.  The court distinguished Burnett because the fifth element was not at issue in the case.  Instead, the court followed the lead of the Sixth Circuit in Hoge v. Honda of Am. Mfg., 384 F.3d 238, 244 (6th Cir. 2004), and modified the fifth element to read: the employer denied the employee FMLA benefits or interfered with FMLA rights to which the employee was entitled.  Applying that standard, the court found sufficient evidence in the record to deny summary judgment to Ford.  

Comment: The decision preserves the prohibition on discouraging employees from exercising FMLA rights in 825.220(b).  The decision allows employees (with sufficient supporting facts) to take FMLA interference claims past summary judgment in situations where the employer's efforts to discourage FMLA usage were either successful (denied FMLA benefits) or unsuccessful (granted FMLA benefits, but discouraged in the process).  Given the time and legal expenses involved, a case that gets past summary judgment becomes significantly more expensive for the employer to defend.         

Requirement that Health Care Provider Submit Medical Certification Directly to Employer Does Not Violate the FMLA

In Taylor v. Ameritech Services, Inc., No. 07-2166, 2008 U.S. App. LEXIS 9237 (7th Cir. April 29, 2008), the court found that the employer did not interfere with the employee's FMLA rights by requiring that the completed medical certification form be faxed or mailed by the health care provider directly to the employer, rather than permitting the employee to provide the certification.  The court noted that:

Nothing in the statute forbids an employer to adopt reasonable, nonburdensome measures to prevent fraud.

The court reasoned that that an employee might "forge a letter from a doctor, or embellish it before forwarding it to the employer."

Comment: To perfect the right to leave, the employee requesting leave bears the responsibility to ensure that an employer receives a medical certification, if one is requested.  The FMLA does not, however, address the method of delivery of a medical certification from the health care provider to the employer. 

The FMLA permits an employer to require an employer to comply with the employer's usual and customary procedural requirements for requesting leave.  29 CFR 825.302(d).  According to the Seventh Circuit, those permissible procedural requirements include the requirement that a supporting medical certification be directly submitted to the employer by the health care provider. 

Direct submission of medical information from a health care provider to an employer gives rise to HIPPA issues.  Generally, HIPPA prohibits disclosure of medical information to an employer absent patient authorization.  However, an employee who exercised their HIPPA right and refused to authorize direct disclosure of medical information as required by employer policy would almost certainly loose FMLA protections.  The employee may also be subject to disciplinary action for violating such an employer policy.   

Employers concerned with fraud may want to consider implementing a reasonable policy requiring that any medical certification be submitted directly by the health care provider.

The Seventh Circuit covers Wisconsin, Illinois, and Indiana.   

Forcing Employee to take FMLA Leave May Be Grounds for Lawsuit

An employee may have an interference claim as a result of being forced to take FMLA leave where the reason for the leave is not covered by the FMLA. 

In Wysong v. Dow Chemical Co., No. 05-4197, 2007 Fed. App. 0402 (6th Cir. Oct. 1, 2007), the employee alleged that DOW violated her rights by forcing her to take 3 days of FMLA leave when she did not need to do so.  Wysong did not believe that her neck pain constituted a "serious health condition" within the coverage of the FMLA. 

The Sixth Circuit recognized an involuntary-leave claim as a type of interference claim.  To state a viable interference claim, an employee must show both that she was not suffering from a "serious health condition" that precluded her from working during the time the employer forced her to take FMLA leave, and that the employee sought FMLA leave at a later date, and such leave was not available because the employee was wrongfully forced to use FMLA leave in the past.  Critically, an involuntary-leave claim ripens only when FMLA leave is exhausted and, as a result, a request for FMLA-qualifying leave is subsequently denied. 

Comment:   The decision illustrates two important points. First, the FMLA permits an employer to force an employee to exhaust FMLA leave.  Second, an employer that forces an employee to exhaust FMLA leave over an employee's objection runs the risk of having that decision challenged in a subsequent suit, at least where the employer denies FMLA leave or disciplines an employee for a subsequent FMLA-covered absence on the grounds that the employee has exhausted their 12-week FMLA leave entitlement and protections.   

Employers must exercise great care to ensure that leave counted against an employee's 12-week FMLA leave entitlement is, in fact, covered by the FMLA.  It is just as illegal to prematurely exhaust an employee's FMLA leave balance for leave that is not covered by the FMLA as it is to deny FMLA leave to an employee where the reason for leave is covered by the FMLA.  To avoid expensive litigation and substantial monetary liability, employers must make the effort to determine that the reason for leave is covered by the FMLA in every instance.  The alternative is to simply give up, grant all leave, and never issue discipline for attendance.  Your call.   

Asking Employee on FMLA Leave to Return to Work Did Not Interefere or "Chill" Employee's Rights

In Whitaker v. Electronic Data Systems Corp., No. 3:05-CV-473-S, 2007 U.S. Dist. LEXIS 48658 (W.D. Ky. July 3, 2007), the employee alleged interference with his FMLA rights based on repeated phone calls from his supervisors during FMLA leave telling him to return to work.  Whitaker alleged that the calls discouraged him from using FMLA leave, which is prohibited by 29 CFR 825.220(b).  The court disagreed.  According to the court:

Merely asking someone to return to work, however, does not amount to discouragement from taking leave.  In order for Defendants to have discouraged Whitaker from taking FMLA leave, they must have provided a "power disincentive for taking FMLA leave."  Coleman v. Blue Cross Blue Shield of Kan., No. 05-4149-JAR, 2007 WL 218903, at *2 (10th Cir. April 15, 1999). 

As an example of a "power disincentive,"the court cited another case wherein the employer made repeated calls to the employee on FMLA leave culminating in a threat of termination if the employee did not return to work.

Here, in contrast, the court noted that the Defendants did not suggest any type of consequence if Whitaker refused to return to work.  In fact, Whitaker did not claim he refused to return to work and actually admitted that, while on FMLA leave, he requested to return to work as soon as possible.  Whitaker, the court concluded, was denied nothing. 

Comment:  The decision raises the bar on what is required to establish an interference claim based on employer actions that allegedly "chill" or discourage an employee from taking FMLA leave. Some courts will want to see fairly explicit evidence of a threat for an employee's exercise of FMLA rights.  Other courts have set a relatively low standard, at least for purposes of summary judgment (where all inferences are drawn in favor of the non-moving party-usually the employee).  For these courts, repeated calls during leave with instructions to return to work while, as in Whitaker, an employee is on an attendance control plan with the very real prospect of discipline for attendance violations, would likely tip the balance in favor of a finding of interference that discourages an employee for exercising their right to FMLA leave.