Pension & Benefits News Because worker and company both may have violated FMLA, summary judgment vacated
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Friday, February 28, 2020

Because worker and company both may have violated FMLA, summary judgment vacated

By Pension and Benefits Editorial Staff

Reversing and remanding on the question of FMLA interference, the Seventh Circuit U.S. Court of Appeals found material fact disputes as to whether a trailer manufacturer unlawfully interfered with the leave rights of a production worker with broken ribs by not notifying him of required information about his FMLA leave rights, even though eventually the worker stopped reporting his absences as required under the manufacturer’s procedures—but not until after the time had elapsed for required employer notice. In an unpublished opinion, the court agreed, however, with the district court that his retaliation claim should fail.

Broken ribs, broken communication. The 13-year production worker broke his ribs playing with his grandchildren over the July 4 holiday and went to the ER (where additional heart issues were discovered); was told he could undertake "activity as tolerated;" returned to the ER six days later because of continued pain; called in as required, notifying his employer of broken ribs on the days he was scheduled to work over the next two weeks; was told by his primary care physician not to return to work until early August; stopped calling in, never giving the physician’s documentation to his employer; and was fired for violating the absence policy on July 23.

At the same time, the employer never asked for any medical documentation nor informed the employee of his ability to take FMLA leave.

Whose violation is the critical violation? He sued for FMLA interference and retaliation, losing at the district court. On appeal, he argued that his employer violated the FMLA and interfered with his rights because it did not provide him the requisite leave information before he stopped reporting his absences. Discussing at the length the interplay between employer and employee shifting responsibilities under the FMLA, the Seventh Circuit revisited the sparse record and ultimately vacated summary judgment against the interference claim abut affirmed it as to the retaliation claim.

Serious health condition. The parties disputed whether fractured ribs constituted a serious health condition making the worker unable to perform his job as a metal trimmer. The court, however, agreed with the district court that a reasonable jury could find the rib injury constituted a serious health condition: He was treated in the ER, received x-rays, went back to the hospital six days later because his pain had not subsided, and had a follow-up appointment with his primary care physician. This could be either inpatient care at a hospital or continuing treatment by a health care provider, making him unable to perform his manual labor job.

Employee notice of need for leave. On his first workday after his injury, the worker followed company procedures, leaving a voicemail reporting his absence and his ribs as the reason. The plant supervisor and the human resources assistant both heard the voicemail. And although the worker’s wife testified that she also spoke to the HR assistant about her husband’s rib injury, the HR person said she didn’t recall being told any more than the voicemail. Meanwhile the plant manager said he heard from the wife about the worker’s "chest" injury. His wife testified she called six or seven times to discuss the injury further with the plant manager but was unable to reach him.

Was employee’s notice enough? Citing its own precedent that a doctor’s note stating "complications" during labor—without any additional details—would be enough to put an employer on notice of an employee’s need for leave, or to trigger the employer’s duty to seek more information, as well as the mention of a mother’s diabetic coma, the Seventh Circuit called this notice of a rib injury "somewhere on the spectrum between a ‘diabetic coma’ and merely reporting a ‘twisted knee.’" The court also noted neither the HR assistant nor the plant manager had any training on the FMLA. If the employer failed to train its key personnel on how to recognize FMLA-qualifying leave, that may factor into deciding whether the worker provided sufficient notice of his need for leave. It was enough to show a genuine fact dispute regardless.

Impact of employer’s failure to notify worker of leave rights. It was undisputed that the employer failed to either determine eligibility or notify the worker whether his request for leave would be designated as FMLA leave, which could be FMLA interference. But the worker stopped following the attendance policy and stopped reporting his absences. He too may have violated the FMLA.

However, even if the failure to continue reporting his absences violated the FMLA (nine days after he first reported his rib injury), the worker did so after his employer allegedly violated the FMLA, because the regs provide the employer with just five business days after receiving notice of a potentially qualifying situation to determine whether the worker qualified for FMLA leave. The district court’s mistake, said the appeals court, was focusing only on the worker’s conduct. It held that the worker’s eventual failure to follow the attendance policy and keep calling in foreclosed his claim. "To us," said the court, "this presents an issue which merits further examination in the district court."

It is up to the district court to decide if an employer is absolved from violating the FMLA if an employee at some point also violates the FMLA. The next question for the court would be whether the employer’s failure to determine whether the worker’s leave notice counted as FMLA-qualifying interfered with his FMLA rights.

Injured as a result. Further, stressed the court, the worker could not prevent summary judgment by only creating a fact question as to his employer’s asserted FMLA violation—he must show he was injured or prejudiced as a result. The Seventh Circuit looked to the Fourth Circuit for guidance: "Prejudice may be gleaned from evidence that had the plaintiff received the required (but omitted) information regarding his FMLA rights, he would have structured his leave differently," citing Vannoy v. Fed. Res. Bank of Richmond, and noted that the First, Third, and Fifth Circuits agree. Here, if the worker would have structured his leave differently, his claim could survive summary judgment. Because this district court did not address this, the court ordered it to consider prejudice to the worker on remand. The only evidence in the record was from his wife (the worker had since died), who said had he known that his employer would offer FMLA leave, he would have taken it.

No retaliation. Agreeing with the district court, the Seventh Circuit said that even if the worker had engaged in protected activity and the company took adverse action against him, he could not establish causation—all he had was timing, and that by itself was not enough to show retaliation.

SOURCE: Lutes v. United Trailers, Inc. (CA-7), No.19-1579, January 27, 2020, per curiam, unpublished.

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