By Marjorie Johnson, J.D.
A jury will decide whether a personnel administrator, in denying the FMLA leave request, solely relied on the daughter’s older age without considering whether she was incapable of self-care following her surgery, and if so, whether the two-year or three-year statute of limitations applied.
Triable issues existed as to whether an employer improperly denied an employee’s request for FMLA leave to care for her adult daughter and grandchildren based solely on the fact that the daughter was over the age of 18 or whether it also implicitly considered whether the daughter was incapable of self-care following surgery. Denying the employer’s motion for summary judgment on the employee’s FMLA interference claim, a federal court in New York also rejected the employer’s contention that the three-year-statute of limitations could not apply as a matter of law; it was debatable whether the decisionmaker either knew that a denial based solely on the age of the employee’s daughter was contrary to the requirements of FMLA or recklessly disregarded the risk that he was not properly applying all of the required criteria (Gibson v. New York State Office of Mental Health, November 25, 2019, Suddaby, G.).
FMLA denied due to daughter’s age. The employee worked as a secure hospital treatment assistant at a state-run psychiatric center providing care and treatment of inmates. On February 27, 2013, she requested FMLA leave to care for her 31-year-old daughter and her 7- and 8-year-old grandsons, following the daughter’s surgery. About a month later, the center’s associate personnel administrator discussed her FMLA request with an attorney who served as counsel to the governor’s office of employee relations. On March 22, the administrator told the employee that her FMLA request was denied since her daughter was over 18 years old.
The employee brought this lawsuit asserting, amongst other things, willful interference with her FMLA rights. In particular, she argued that she was entitled to FMLA leave to care for her adult daughter because she submitted medical documentation showing that she was incapable of self-care at the relevant time. The employer moved for summary judgment, arguing that her FMLA interference claim was time-barred under the two-year statute of limitations and that the three-year statute of limitations did not apply since she failed to establish willfulness.
Willfulness under FMLA. While the FMLA does not define the term “willful,” the Second Circuit has applied the definition found in the FLSA to FMLA cases. Under this standard, an employer acts willfully if it “knew or showed reckless disregard for the matter of whether its conduct was prohibited” by the statute. Conduct is not considered willful where the employer acted reasonably, or acted unreasonably but not recklessly, when determining whether its actions violated the FMLA. Additionally, “neither an employer’s good-faith but incorrect assumption regarding its statutory obligations, nor an employer’s lack of a reasonable basis for believing that it was complying with the statute” is alone sufficient to demonstrate willfulness.
Jury could find interference. At issue here was the FMLA’s provision entitling an eligible employee to leave in order to care for their spouse, son or daughter, or parent if that individual has a serious health condition. “Son or daughter” is defined to include those who are “under 18 years of age” or “18 years of age or older and incapable of self-care because of a mental or physical disability.” Consequently, a reasonable jury could conclude that the employer violated the FMLA based on evidence that it denied the employee’s FMLA request simply because her daughter was over the age of 18 and did not consider whether she was incapable of self-care despite documentation from her daughter’s doctor which she submitted with her FMLA request. Alternatively, a jury could also find that the employer “implicitly and reasonably” found no incapability of self-care despite not explicitly asserting that as a basis for the denial.
Actions arguably willful. Assuming that the employer improperly relied solely on the age of the employee’s daughter without considering whether she was also incapable of self-care, a triable issue also existed as to whether it did so willfully. The FMLA clearly provides that children over the age of 18 are covered if they have a condition that renders them incapable of self-care and the employer’s personnel administrator arguably should have been familiar with that statute given that his duties undisputedly included reviewing and approving FMLA leave requests. A reasonable jury could thus conclude that he either knew that a denial based solely on the fact that the employee’s daughter was over the age of 18 (without a consideration of whether she was incapable of self-care) was contrary to the requirements of FMLA, or recklessly disregarded the risk that he was not properly applying all of the required criteria.
Incorrect assumption. In particular, a question existed as to whether he made an “incorrect assumption” as to who constituted a “son or daughter” under the definitions of FMLA. Did he know that there were certain instances in which a child over the age of 18 was covered? And if so, was any such incorrect assumption in good-faith or was it so reckless as to be willful? Given these triable issues, it was too early to say which statute of limitations applied.
Consulting with attorney didn’t eliminate recklessness. The fact that the personnel administrator consulted with the government attorney before deciding to deny the employee’s FMLA request did not foreclose a finding that his conduct was reckless, particularly since the record did not clearly establish what he and the attorney specifically discussed. Indeed, his notes appeared to suggest that the two discussed only the aspect of her request about the care she would need to provide to her two grandchildren and not specifically whether the care of the employee’s daughter would be covered by the FMLA.
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