“Common sense” supported the idea that the employer’s policies would not allow the employee to work as a peace officer while taking high dosages of opioids. Still, a fact issue remained as to the legitimacy of the employer’s independent reason for terminating him.
Although concerned that “a person tasked with the responsibilities of a ‘sworn police officer’ and clothed with its power, and the right to use necessary physical force to perform relevant work, would be allowed to do so while on substantial dosages of painkiller medication,” a federal court in Michigan nonetheless denied cross-motions for summary judgment on the FMLA interference claim of a transit police officer who was fired purportedly for exhausting his FMLA leave after testing positive for prescription pain medication. Not only did the employer fail to provide proper FMLA notice to the employee, fact issues remained regarding the legitimacy and motivations for the adverse actions taken against him, said the court. His retaliation claims under the FMLA, ADA, and Michigan Persons with Disabilities Civil Rights Act (PWDCRA) also advanced, although the court dismissed without prejudice the employee’s PWDCRA retaliation claim against the HR supervisor individually (Anderson v. Detroit Transportation Corp., January 27, 2020, Cleland, R.).
While off work from December 21 through January 3 due to elevated blood pressure, the employee requested FMLA leave relating to symptoms from cervical disc disease, including intermittent pain that was controlled by prescription pain medication. He sought leave for occasional late arrivals, early departures, and absences for a couple of times a month.
Returned to work. Although he returned to work on January 4, he received a letter informing him of his benefit options, including short-term disability. The letter referred back to his leave starting on December 21 and indicated that “disability benefits and paid sick or vacation time runs concurrent with FMLA.” On January 11, the employee’s doctor informed the company that his prescriptions would not prevent him from performing his job’s essential functions, including carrying a firearm. The employee’s FMLA request was approved that same day.
Ordered to leave. On January 18, the HR supervisor told the employee he needed to submit to a drug test and ordered him to leave work. She then sent him a letter explaining that he had not provided a return-to-work note from his doctor or obtained a verifiable negative drug test result. The employee submitted to a drug test that day, testing positive for morphine, hydrocodone, and hydromorphone. However, he obtained a “verified negative” from the medical review officer, who had confirmed with the employee’s doctor that he was prescribed the drugs for which he tested positive.
IME. On February 22, the employee was ordered to undergo an independent medical evaluation, which determined that he was not fit for duty with the medications he was taking. Also on February 22, the HR supervisor sent the employee another letter indicating that his last day of work was January 18 and again stating that “disability benefits and paid sick or vacation time runs concurrent with FMLA.”
Second drug test. The HR supervisor then informed the employee that his FMLA leave would expire on April 5 and told him he could return to work only after taking a drug test and obtaining a “verifiable negative” result. The employee submitted to another drug test, tested positive for hydrocodone and hydromorphone, and again received a verified negative. On April 20, he was fired for exhausting his FMLA leave, which the HR supervisor calculated as starting after January 18 when she ordered him off work.
FMLA interference. The employee argued that when the HR supervisor removed him from his job on January 18, she did not tell him his subsequent absences would qualify under the FMLA and consume FMLA leave time. While the employer argued that it notified him of the FMLA designation when it granted his FMLA leave request on January 11, that notification, said the court, was made with regard to his cervical disc disease and was for intermittent leave.
No way of knowing. From January 18, the date he was ordered to leave work, until February 22, when he received the second letter from his employer, the evidence showed only that he was notified he was on administrative leave. There was no evidence his leave was designated as FMLA-qualifying or that his forced leave on January 18 was for his pain resulting from his cervical disc disease. “This is significant,” said the court, because he had no way of knowing that his leave for occasional back pain “would be applied to procedural violations for coming back to work after taking leave for high blood pressure.”
Administrative leave. Although the employer argued that the employee should have known that the administrative leave was FMLA leave, “the term ‘administrative leave’ would not have, in and of itself, put [him] on notice that his forced absences were in any way related to FMLA,” the court explained. Further, FMLA leave notice must be in writing, which was not the case here. In addition, the HR supervisor explained that administrative leave is a discretionary leave granted by management and has no formal, documented policy which could potentially connect it to a “serious health condition” under the FMLA.
Moreover, the employer’s first letter to the employee explaining that “disability benefits and paid sick or vacation time runs concurrent with FMLA” did not mention administrative leave. Observing that the employer’s “Administrative Procedure” on FMLA leave stated that “[a]ny other type of leave, such as disability leave and workers’ compensation, is counted toward the 12-week total leave entitlement under the FMLA,” the court found that to the extent it referred to “any other type of leave,” it did not establish proper FMLA notice. “Providing notice of a different type of leave not obviously related to FMLA, without any reference to FMLA, will not constitute adequate notice simply by placing a provision in the employee handbook that ties that other leave to FMLA.”
Deprived of leave. The FMLA leave the employee was forced to take starting January 18 was based on an FMLA-qualifying condition separate from the one he had been approved for, the court observed, and to “claim otherwise would imply that the effect of any treatment of a ‘serious health condition’ is itself a ‘serious health condition.’” It was not until the February 22 letter, observed the court, that the employer potentially appeared to comply with the FMLA designation requirement. That letter mentioned his January 18 departure, tied it to “Short Term Disability Leave of Absence,” and stated that “disability benefits and paid sick or vacation time runs concurrent with FMLA.” But even assuming it was a designation notice, the employer began counting his leave on January 22, not February 22, and thus it deprived him of 184 hours of leave at the time of his termination.
Consumption of medication. While the employer argued that the employee’s consumption of medication in itself constituted a serious health condition that qualified for FMLA leave, the court found its calculation of the employee’s FMLA time was flawed as he was entitled to four additional weeks at the time he was terminated. Thus, if he was terminated solely because he exhausted his FMLA leave, the employer denied him benefits to which he was entitled under the FMLA. However, observed the court, the employer provided a legitimate reason for his termination—his use of prescription painkillers prevented him from performing his job. Yet while the employee’s positive drug tests were above the drug test thresholds provided for in the employer’s policy, which cited to federal regulations, the HR supervisor told him he only need to obtain “verified negatives,” which he did. Thus, a fact issue existed as to the legitimacy of the employer’s independent reason for terminating the employee.
Issues narrowed. In denying the employee’s summary judgment motion, the court narrowed the issues: If the employer fired the employee because of FMLA exhaustion alone, it interfered with his FMLA rights. But if the jury were to find the employer fired him due to his prescription drug use and the drugs’ effect on his performance, notwithstanding the employer’s failure to comply with FMLA designation requirements, and that justification complied with its own policies, it would not be liable. For these same reasons, the court denied the employer’s motion as well.
FMLA retaliation. As to the employee’s FMLA retaliation claim, a reasonable jury, said the court, could find that being forced to leave work, being placed on leave without pay, having FMLA protections used up unwillingly, and being terminated were adverse actions. While the employer argued that the actions were tied to the employee’s use of opioid medications, the court emphasized again that there was a fact issue as to whether this was sufficient to warrant the employee’s termination or in fact caused his termination. Further, said the court, a reasonable jury could conclude that his removal from work violated the employer’s policy and practice and when combined with the employer’s failure to properly designate his leave as FMLA, a genuine issue of fact existed over whether the nondiscriminatory justification for termination was pretext.
ADA/PWDCRA retaliation. The employee contended that his FMLA leave for his back condition was protected activity under the ADA and PWDCRA. The court, however, found it “unlikely that the ADA’s retaliation provision is designed to be a catchall for all actions taken by an employer that negatively affect the employee’s ability to exercise ADA rights, regardless of whether such actions were taken in retaliation against opposition to an ADA violation.” Further, it observed, Michigan courts have denied retaliation claims arising solely from accommodation requests. Nonetheless, because the parties did not dispute the issue, the court accepted that his request was protected activity. His assertion, however, that he was retaliated against for filing an EEOC charge was “on firmer ground” under both statutes.
As for adverse actions and causal connection, the court, for the same reasons as its FMLA retaliation analysis, found enough evidence to require a trial. In addition, the court again found that the employer’s nondiscriminatory justification could reasonably be found to be pretextual.
Individual liability. Finally, the court turned to the individual liability of the HR supervisor under the PWDCRA. Because this is a heavily contested issue on which Michigan courts have not yet ruled, the court refused to continue exercising supplemental jurisdiction over this claim. Accordingly, it dismissed this claim without prejudice. Further, observing that it is well established under Sixth Circuit law that “[the FMLA] does not impose individual liability on public agency employers,” the court advised the employee it was “considering summary judgment on its own” on the issue of the supervisor’s individual liability under the FMLA and granted him 21 days to respond.
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