Employment Law Daily Jury to say whether employer had notice of employee’s in loco parentis relationship with grandmother
Tuesday, March 27, 2018

Jury to say whether employer had notice of employee’s in loco parentis relationship with grandmother

By Joy P. Waltemath, J.D.

Despite a confusing sequence of events, in which an employee called HR to falsely request bereavement leave related to the death of her grandfather, when she actually intended to assist her grandmother, who suffered with dementia, to visit family—and then did not timely return from that leave but instead called back and requested leave “to tend to” her grandmother—a federal district court in Illinois denied cross-motions for summary judgment on the employee’s claims for violations of the FMLA based on her resulting discharge. The court found material disputed fact issues as to whether the employee provided sufficient notice either that she was requesting leave to care for her grandmother or whether her grandmother stood in loco parentis to her. It was also disputed whether, had the employer known she was lying to it when she originally requested bereavement leave for her already-deceased grandfather, she would have been fired, thus avoiding summary judgment on the employer’s motion to limit damages based on after-acquired evidence. But the court refused to sanction her for erroneously naming her prior employer as a codefendant when its facility had been sold to her employer at the time (Mabins v. AEP NVH OPCO, LLC, dba Applied Acoustics International, March 20, 2018, Pallmeyer, R.).

Employee fired while out, but was she on leave? The facts were complex and confusing, and in brief, revealed that the employee first lied about needing bereavement leave to attend her previously deceased grandfather’s funeral because she did not think she could get time off to take care of her grandmother. When she was scheduled to return to work, she called back and said she needed additional leave “to care for” her grandmother. Her last phone conversation with HR was February 28. Internal emails among HR personnel showed the employer did not really know whether the employee was on leave or what type of leave, but they sent her a letter March 2, seeking confirmation of her bereavement leave and any other leave documentation, and giving her until March 9 to provide it or be fired. Although the employee said she never received this letter, on March 7 she called HR to come back from leave, at which time she was told that she was fired for no-call, no-show on February 27, 28, and 29—even though the employer’s letter gave her until March 9.

Notice. In analyzing her resulting FMLA claims on summary judgment, the court focused on whether the employee provided sufficient notice to trigger the employer’s obligations under the FMLA. Although the employer claimed there was no evidence that the employee ever told it that her grandmother was suffering from a serious health condition, there was evidence that the employee had told the HR manager about her grandmother’s illness the month before she requested leave, a point the employer didn’t dispute. And when the employee called in to say she needed more leave because she was “tending to [her] grandmother,” that suggested illness or incapacitation to the court—enough to at least create a genuine dispute about whether the employer knew of the grandmother’s illness.

As to the whether the employee notified her employer in any way about her grandmother’s in-loco-parentis relationship to her, that issue was more difficult. The employee’s FMLA claim would be stronger if she had told her employer her grandmother raised her, said the court, but it would not find this barred her claim. Instead, reasoning that “grandparents frequently act as parents to their grandchildren,” the court found she only needed to give her employer “enough information to establish probable cause” to believe she was entitled to FMLA leave, and that would trigger the employer’s duty to request such additional information.

That did not happen here. No evidence suggested that the employer explained to the employee that she would not be entitled to leave unless her grandmother had acted as a parent to her. Nor was there evidence that, with respect to her grandmother at least, the employee was trying to game her employer by deliberately setting a “mousetrap” in an attempt to bait it into violating the FMLA, as the employer suggested. The employee did not just demand leave with absolutely no explanation—she said that she needed leave because she was “tending to” her grandmother, reiterated the court, and requiring her employer to seek clarification in circumstances like this would impose an insubstantial burden—all it needed to do was ask, in the two addition conversations it had with the employee, about the nature of her relationship with her grandmother.

Additionally, evidence from the emails written by the HR resources staff before the employer sent the request for document on March 2 suggested that staff suspected the employee was eligible for FMLA leave, but it never asked her for additional information about the grandmother’s relationship. Nor did it explain that FMLA does not ordinarily protect an employee’s right to take leave to care for a grandparent. Instead, HR asked only when she would return to work. The court found disputed circumstances as to whether the employer was obligated here to seek out additional information to confirm or deny the employee’s entitlement to leave, and it denied summary judgment to both parties.

After-acquired evidence. The employer argued that the after-acquired evidence rule would preclude the employee from recovering lost wages beyond February 9, 2017—the date she conceded she had objected to the relevance of (and refused to answer) interrogatories asking for “the date and location of your grandfather’s funeral for which you requested bereavement leave.” Later at deposition she admitted she had lied about her grandfather’s funeral, but she argued that the company had not presented sufficient evidence that it actually would have fired her for lying about her grandfather’s funeral. And the court agreed, finding the evidence “too thin” to support summary judgment on the after-acquired evidence defense. The employer too had objected to the employee’s discovery request to identify employees who previously had been terminated for dishonesty, which the court found directly relevant to its after-acquired evidence defense—at least sufficient to avoid summary judgment in the employer’s favor.

Sanctions. Finally, the court refused to sanction the employee and her counsel under Rule 11 because she had “filed her complaint before verifying that UGN was [her] employer at the time of the alleged violations of her FMLA rights,” since UGN had sold the facility she work to Applied Acoustics by that time. The prior employer also claimed a Rule 11 violation because the employee had not dismissed her claims against it quickly enough after her counsel received a letter from UGN explaining that UGN was not the employer at the time of the alleged FMLA violations. The fact the employee did not withdraw her claims against UGN within 21 days of receiving UGN’s Rule 11(c) notice meant that UGN was entitled to “a decision on the merits” of the motion for sanctions, not that UGN was entitled to a decision in its favor on the motion for sanctions, reiterated the court, noting the employee had not engaged in any independently sanctionable conduct by waiting eight days beyond the end of the safe-harbor period.

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