By Pension and Benefits Editorial Staff
Granting summary judgment in favor of the Boeing Company against a former mechanic’s FMLA interference and retaliation claims, a federal district court in Pennsylvania found that the employee’s substance abuse and mental health conditions were not serious health conditions as defined by the FMLA. Although the employee was diagnosed with several mental health conditions, he did not seek inpatient care or receive continuing treatment as required by the Act. Furthermore, the record showed he was discharged after violating a last chance agreement that required him to appear at work on time because he failed to appear at work, without notice, for four consecutive days and not because of a previous five-week period of FMLA leave.
Substance abuse. The employee worked as a sheet metal mechanic for Boeing. During his employment, he was addicted to Adderall, methamphetamines, and alcohol. The employee missed work because of his alcohol use but asserted that he never used amphetamines less than seven or eight hours before his shifts
Poor attendance. The employee had substantial attendance issues that resulted in Boeing issuing a verbal warning and three corrective action memos. Finally, in October 2016, Boeing discharged the employee after he committed 21 attendance violations in the previous 12 months. Six days later, Boeing placed his discharge in abeyance because he agreed to complete a treatment program and undergo follow-up alcohol testing for three years. The following day he began four weeks of FMLA leave.
Last chance agreement. In November, the employee signed a last chance agreement and returned to work. Under the terms of the agreement, he had to arrive to work on time, call the company’s attendance line to report absences and late arrivals, and submit FMLA paperwork when required. The agreement also provided that the employee would be immediately discharged if he received two attendance infractions during the agreement period.
Unfit for duty. In January 2017, the employee’s outpatient treatment counselor told him that he was unfit for duty. The next day, the employee requested FMLA leave due to anxiety, stress, acute withdrawal syndrome and depression. Boeing’s contractor that managed employee leave sent the employee a letter acknowledging his request and instructing him to submit FMLA documentation. The employee did not return the form and the contractor followed up with another letter directing him to return to work after the expiration of his FMLA leave or risk termination.
First discharge. The employee failed to report to work or call the attendance line for four days after his leave expired. On February 23, 2017, Boeing issued the employee a corrective action memo and terminated his employment. A union representative met with him and they called the contractor and explained that the employee needed a leave extension. On March 10, the contractor approved a leave extension through March 26. The employee submitted FLMA documentation on March 20 indicating that he had been diagnosed with mixed bipolar disorder, depression, and mania. On March 7, 2017, the employee began receiving treatment for his conditions. He filed suit alleging interference and retaliation in violation of the FMLA.
Serious health condition. The employee’s interference claim failed because he could not prove that he had a "serious health condition." The employee was deemed unfit for duty on January 19, 2017, but he did not receive treatment until March 7, 2017. Under the FMLA, an employee with a serious health condition involving continuing treatment must begin in-person treatment within seven days of incapacity and receive treatment a second time "within 30 days of the first incapacity" or undergo a "regimen of continuing treatment." The court found that the employee failed to meet any of those requirements. Nor was he able to establish that his anxiety, depression, stress, and acute withdrawal syndrome were chronic conditions under the FMLA because he was diagnosed with anxiety and depression in 2012, but never sought treatment and because he had not been previously diagnosed with acute withdrawal syndrome.
The employee argued that he established his FMLA eligibility because the contractor determined that he could take FMLA leave based on his serious health condition. However, the contractor did not approve the extension until after the employee was discharged; and the contractor could not retroactively approve the February 2017 absences that formed the basis for the employee’s termination.
Retaliation. As to his retaliation claim, the court found the employer articulated a legitimate nonretaliatory reason for terminating the employee. Although the employer advised the employee to return to work on February 20, 2017, when his leave expired, and that his failure to do so could result in his termination, he did not report to work for four days after he leave expired. Further, the employee failed to call the attendance line to report the absences.
Further, the employee failed to show that retaliation was the real reason for his discharge. He asserted that his failure to call the attendance line was excused by his mental breakdown and that the employer should have contacted him prior to his termination. Rejecting this argument, the court noted that the employee agreed in the last chance agreement to call the attendance line to report any absences and that he also agreed that failure to comply with the last chance agreement would result in immediate termination. Lastly, the contractor’s after-the fact approval of the employee’s leave request did not establish pretext because Boeing terminated him several weeks prior to the contractor’s approval of FMLA leave.
SOURCE: Alkins v. The Boeing Co., (E.D. Pa.), No. 19-763, January 2, 2020.
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