The Federal Sector FMLA Blog

Post-Termination Evidence of Pancreatic Cancer Diagnosis Considered in Determining Whether Employee Had FMLA Serious Health Condition

In Schuler v. Branch Banking & Trust Co., No. 1:08cv378, 2009 U.S. Dist. LEXIS 94043 (W.D. N.C. Oct. 8, 2009), the court allowed Schuler to rely on evidence of her post-termination diagnosis and treatment for pancreatic cancer to establish a forecast of evidence that she was suffering from an FMLA -covered serious health condition, albeit undiagnosed, at the time of her termination, sufficient to defeat the employer's motion for summary judgment on the issue. 

Comment: The post-termination evidence of diagnosis and treatment gave context to the pre-termination symptoms of the disease that Schuler was suffering.  Wide adoption of this standard will make it very difficult for employer's to secure summary judgment in cases where undiagnosed symptoms alone may not meet the requirement of one-or-more FMLA-covered serious health conditions. That may mean more expensive settlements and litigation. 

Court Denies Employee's Motion for Proective Order Delaying Release of Surreptiously Secured Audio Tape

In Jerolimo v. Physicians for Women, P.C., No. 3:05CV1777(CFD)(TPS), 2006 U.S. Dist. LEXIS 80939 (D.Conn. Nov. 7, 2006), the court denied the employee's motion to block disclosure of an audio tape the employee surreptitiously made that supports her assertion that her supervisor's made statements during a meeting that support her claim that she was terminated in violation of the FMLA.  There was no question that the tape recording was discoverable pursuant to Rule 26(b)(3) of the Federal Rules of Civil Procedure.  Plaintiff sought to delay production until after the deposition of the persons whose statements were recorded, under the theory that pre-deposition disclosure may afford the witness an opportunity to tailer deposition testimony to conform with a previous statement. 

In rejecting the employee's argument, the court observed that, absent a specific showing of good cause, there "is no reason to assume automatically that the party whose statements have been recorded will have a propensity to fabricate evidence or lie during the course of his or her testimony."  There is no basis for treating the recorded statements any differently than prior written documents or other records which would be discoverable as of right.  The court also noted that "the need for judicial expedience and the fundamental purpose of discovery militate against a finding of good cause for the delay."  The court continued:

Under Rule 26(c), "[o]pen discovery is the norm. Gamesmanship with information is discouraged and surprises are abhorred.  Adherence to these principles assists the trier of fact and serves efficiency in the adjudication of disputes.

Even if the employee had shown good cause for the delay in discovery, "a balancing of the countervailing interests of the defendants may nevertheless have topped the scales back in favor of the defendants."  Where, as here, the plaintiff recorded her conversations with the defendants without their knowledge, "there is a heightened justification for producing the tape recordings to the defendants in advance of their depositions.  A party whose "conversation was secretly recorded should not be subjected to a deposition, the partial purpose of which is simply to create inconsistencies or otherwise set up impeachment in [the defendants'] testimony, without [the defendant] having the chance to review the tapes- the same opportunity that [plaintiff] had prior to her deposition."

Comment:  Employers would be well-advised to adopt a rule prohibiting all employees from secretly recording workplace conversations, including meetings with management.  Employers may also want to consult federal anti-wiretapping laws which may cover a given situation.  Federal law, however, generally does not prohibit a person from surreptitiously recording their own conversions, hence the need for a separate workplace rule.