By Marjorie Johnson, J.D.
Supervisors who denied an employee’s request for FMLA leave while his documentation and request were being processed willfully interfered with his FMLA rights, a federal court in New Mexico ruled in granting his motion for partial summary judgment on his interference claim. Regardless of the employer’s approval process, denying his ability to take FMLA leave when he met federal eligibility standards and had an FMLA-qualifying condition constituted unlawful interference, the court said. It also denied the defendants’ cross-motion for summary judgment on all his claims, which included retaliation, violation of due process, breach of implied contract, and retaliatory discharge (Cordova v. State of New Mexico, November 2, 2018, Parker, J.).
Time off due to PTSD. The employee, who worked for the University of New Mexico Hospital (UNMH), suffered from post-traumatic stress disorder (PTSD). His symptoms included acute anxiety and panic attacks, which he initially managed with medication. However, after his symptoms increased in February 2016, he began receiving more consistent treatment though a UNMH-sponsored health care program. On March 7, he received a note from his medical provider recommending that he be excused from work for ten days due to severe anxiety.
FMLA documentation. On March 17, he received another medical note confirming that he had been experiencing acute anxiety and panic attacks and had been treated on March 10 and March 17. The note stated that though he was able to return to work, he might need brief breaks if he experienced symptoms of panic. His medical provider also filled out an FMLA certification which confirmed his PTSD and explained that periodic increases in his symptoms (which were expected to occur one to two times per day and last about an hour) could temporarily prevent him from performing his job functions.
When the employee returned to work on March 18, he gave the FMLA certification to his supervisor, as well as a UNMH Notice of Eligibility and Rights & Responsibility form for FMLA leave. Though the supervisor did not recall filling out the notice, his signature was on it and he submitted the paperwork to HR for processing that same day. He also filled out the supervisor’s section but indicated that the employee would not require any accommodation.
An “FMLA thing.” On March 23, the employee told the supervisor that he needed to go home because of an “FMLA thing.” When the supervisor told his manager, she replied that the employee could not go home because he was needed at work. The employee therefore stayed at work, but the supervisor later met with him and “badgered” him about his productivity, causing him to suffer a panic attack. He left to seek medical treatment, leaving his UNMH badge behind. The next day, he obtained a doctor’s note stating that he would return to work on March 28. However, prior to his return, he received a letter stating that he had “voluntarily resigned.”
FMLA interference during “processing.” The individual defendants asserted that the employee’s leave request was denied because his paperwork had not yet been processed and approved by HR; as such, his FMLA interference claim must fail. They relied on UNMH policies that allowed five days to process an FMLA leave request and the FMLA’s notice and processing requirements. However, those rules apply to the employer and do not limit the employee’s actual eligibility, which is determined by federal law. Thus, regardless of UNMH’s approval process, denying his ability to take FMLA leave when he met the federal eligibility standards and had an FMLA-qualifying condition constituted interference, the court said, squarely rejecting the defendants’ contention.
Supporting authority. Indeed, FMLA regulations provide that the refusal to authorize leave constitutes interference with FMLA rights and “it would be contrary to those regulations to require approval from the employer before an employee was entitled to FMLA leave, since an interference claim can be based on FMLA leave that is never approved.” The Third Circuit had reached this conclusion, rejecting an employer’s assertion that it could not have interfered with an employee’s FMLA rights when it did not allow her to return to work because she was ineligible for FMLA benefits until it approved her leave. In an unpublished opinion, the Tenth Circuit has similarly held that an employee is entitled to protection from retaliation under the FMLA upon the invocation of an intent to take FMLA leave, even when the leave has not yet been applied for, let alone approved.
Ignorance no excuse. The employee also demonstrated that the interference was willful because the supervisor and manager were both on notice of his FMLA-qualifying condition when they refused to allow him to take leave. Though they claimed that they believed that he was not entitled to FMLA leave, their ignorance of the law was at least reckless. And to avoid liquidated damages, they needed to show that their actions were “in good faith” and that they “had reasonable grounds” for believing that they were not violating the FMLA. They could not make that showing here, as FMLA regulations clearly provide that the employee was eligible and proscribed their conduct. Accordingly, the court granted the employee’s motion for summary judgment on his interference claim against his supervisor and the manager.
Triable issues as to other claims. The defendants argued, among other things, that the employee voluntarily resigned and that his employment was governed by a collective bargaining agreement (CBA). However, he vehemently denied that he intended to resign and pointed out that he was having a panic attack at the time and was not thinking clearly when he left his badge on the counter. He also denied that he was subject to the CBA as a non-dues-paying member of the union, and that the grievance procedure didn’t apply since hadn’t been subject to any discipline. Because issues of fact existed that would need to be decided at trial, the court denied the defendants’ motion for summary judgment as to the employee’s other claims.
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