Pension & Benefits News Dispute over content of employee’s voicemails precluded summary judgment as to her FMLA claims
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Wednesday, February 13, 2019

Dispute over content of employee’s voicemails precluded summary judgment as to her FMLA claims

By Pension and Benefits Editorial Staff

A dispute between the parties as to whether an employee’s voicemails to her supervisor alerted the employer that she was designating her absences as FMLA covered due to migraine headaches precluded the grant of summary judgment to either party on her FMLA claims.

Finding that a factual dispute remained as to content of an employee’s voicemails notifying her employer of her absences, a federal district court in Iowa denied the parties’ cross-motions for summary judgment against her FMLA interference and retaliation claims. If the employee cited migraines as the reason for her absences in her voicemails, she complied with her obligations under 29 C.F.R. § 825.303(b), and it was the employer’s responsibility to make any further inquiries as to whether the FMLA applied to those absences. On the other hand, if the employee merely said in her voicemails that she was ill, without more, then her notice was deficient.

Leaves of absence. The employee was hired by the electronics manufacturer as an assembly operator at an Iowa plant. While employed with the company, she was a union member, so that the terms of her employment were governed by a collective bargaining agreement. Among the provisions of the CBA was a provision governing leaves of absence. All requests for leaves of absences were to be in writing, and approved or disapproved in writing. A request for a leave of absence in writing was required for all absenteeism extending beyond three consecutive days. In case of an unforeseen illness or accident, a formal leave request must be in writing as soon as practical.

The CBA did not state the consequences of failing to follow procedures; however, the employer’s attendance policy provided that “[a]bsences beyond three consecutive working days without an approved leave of absence are considered a voluntary quit (AWOL).” As a member of the union, the employee received a “Medical Leave of Absence Checklist.” For medical absences exceeding three consecutive days, the employee was instructed to contact health services and provide a medical statement from her physician no later than the start of shift on the fourth day. The medical statement was to contain: (1) the nature of the illness or injury; (2) the name of the employee’s health care provider; (3) the date and time the employee last worked; (4) the expected date of return (if known); and (5) the name of the employee’s supervisor.

Recurrent migraines. On June 20, 2016, the employee submitted to the employer an FMLA request form, describing her condition as “recurrent migraines.” On June 29, 2016, she submitted a Certification of Health Care Provider in support of her request for FMLA leave. Her physician described her condition as “intractable migraines” and indicated the employee would need follow-up treatments, or work part-time or a reduced schedule. The doctor estimated that she would experience two-to-three flare-ups per month and that she could be incapacitated for up to two days per episode.

The employer approved the request for intermittent FMLA leave. The employee was instructed to designate her leave as FMLA. To identify an absence as FMLA leave, she was to submit an “FMLA Absence Form” to her supervisor with the appropriate absence code, the date of the absence, and the number of hours that should be treated as FMLA leave.

Employee absences. From July 18 thru July 21, the employee was absent from work. She left a voicemail on each of those days for her supervisor to report her absence. However, the parties disagreed as to any other details in the voicemails. By the start of the July 21 shift, the employee had not submitted a doctor’s note for the absences of July 18–21. When she contacted the employer, she was told that a doctor’s note was due "now." She submitted a doctor’s note approximately two hours after the start of the shift.

In the meantime, the employer’s HR department was contacted about the employee’s absence of three consecutive days without a doctor’s note prior to the start of her shift on the fourth day of absence. The employee’s termination was recommended based on the CBA and attendance policy. After the employee was terminated, her union filed a grievance on her behalf, but it was denied. Thereafter, the employee filed a suit for FMLA interference and retaliation. The parties stipulated that her claim "is a claim of interference with her substantive rights under the FMLA." The employer moved for summary judgment in its favor on the merits. The employee moved for summary judgment on the issue of the employer’s liability.

Content of notice. 29 C.F.R. § 825.303 governs employee notice requirements for unforeseeable FMLA leave. Here, the employee argued "the uncontroverted evidence showed that she reported her absences as due to her migraine headaches in compliance with 29 C.F.R. § 825.303(b)." The court agreed that the employer approved the employee for intermittent FMLA leave for her migraine headaches, and she took leave for that reason prior to her absence on July 18. Thus, if the employee cited migraines as the reason for her absences in her voicemails on July 18–21, she complied with her obligations under Section 825.303(b), and it was the employer’s responsibility to make any further inquiries as to whether the FMLA applied to those absences. On the other hand, if the employee merely said in her voicemails that she was ill, without more, then her notice was deficient and her interference claim must fail.

In this instance, the court disagreed with the employee that the "uncontroverted evidence" showed that she attributed her absences to migraines. The employer had contemporaneous written records of the voicemails that did not include information that the employee referenced migraines. Thus, the parties disputed the content of the voicemails, and there was evidence to support each party’s view.

Compliance with other policies. Even if the content of an employee’s notice satisfies the requirements of 29 C.F.R. § 825.303(b), an employee must still "comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances," 29 C.F.R. § 825.303(c). "If an employee does not comply with the employer’s usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied."

In this instance, the employer’s procedures required the employee to obtain a doctor’s note for absences in excess of three consecutive days. The employee countered that the employer’s leave of absence policy conflicted with the FMLA’s provisions on certification and recertification. Here, the court agreed that the employer’s leave of absence policy conflicted with the FMLA’s recertification regulations to the extent that the employee notified her supervisor in her voicemails that her absences were due to migraines. Thus, the issue of the employer’s unrelated reason for terminating the employee turned on the content of her July 18–21 voicemails. Because a factual dispute remained as to the contents of the employee’s voicemails, summary judgment for either party was inappropriate.

SOURCE: Holladay v. Rockwell Collins, Inc. (S.D. Iowa), No. 3:17-CV-00078-SMR-SBJ, January 24, 2019.

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