Pension & Benefits News Employee didn’t need to claim she was denied FMLA leave to advance FMLA interference claim
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Friday, June 26, 2020

Employee didn’t need to claim she was denied FMLA leave to advance FMLA interference claim

By Pension and Benefits Editorial Staff

An employer that purportedly fired an employee because it believed she lied on her sick leave forms, after having its representatives appear at her doctor’s office unannounced to demand her medical records without her knowledge, wasn’t entitled to dismissal of her claims of FMLA interference and retaliation, disability bias, and intentional infliction of emotional distress. Advancing those claims to discovery, and also allowing the employee to replead her defective invasion-of-privacy claim, a federal district court in Indiana ruled that although the employee didn’t claim that she was denied FMLA leave, she plausibly alleged FMLA interference since a reasonable jury could find that the employer’s alleged conduct could have discouraged her from taking FMLA leave

Intermittent FMLA leave. The employee suffered from Gastroesophageal Reflux Disease (GERD) and chronic Peptic Ulcer Disease (PUD). She claimed these conditions were exacerbated by stress and episodic in nature, and that flare-ups could be debilitating and affect her ability to work. Her employer was aware of her disabilities because it approved her request for intermittent FMLA leave beginning in 2014.

Doctor executes sick-leave forms. At issue here were medical absences in 2019. After being absent from work on January 9, she went to see her doctor on January 10, at which time he completed the company’s sick-leave form excusing her from work January 9-11. The doctor also scheduled her for medical tests on January 21 and, knowing he was going on an extended vacation, also filled out a second sick leave form in anticipation of her future medical absences.

Can’t get records due to doctor’s absence. After missing work due to her medical condition on January 21-22, the employee submitted another sick-leave form. On February 4, the employer notified her that her request was contingent on a review of her medical records and provided her with a medical authorization to execute and provide to her doctor, but this was problematic since the doctor was still on vacation. The employer granted her an initial extension but then sought documentation showing her doctor was out of the office, which she failed to provide.

Employer’s agents go to doctor’s office. After the doctor finally returned, she visited him on March 8 for treatment. At that time, she learned that her employer’s agents had come into his office and demanded copies of her medical records. He refused since she had not yet executed an authorization.

Discharged. On March 19, the employee submitted FMLA paperwork requesting FMLA leave for March 18-20. On March 25, the employer acknowledged it instructed her to execute an authorization for her doctor to provide medical records to determine her FMLA eligibility for those dates. The next day, the employee was advised by her supervisor and HR that she was being terminated. During that meeting, she learned for the first time that her employer believed that she had falsified the sick leave form for her January 21-22 absences.

FMLA interference. The court rejected the employer’s contention that her FMLA interference claim failed since it never actually denied her leave request. This argument failed since employers are not only prohibited from wrongfully denying leave, but also from "interfering with" FMLA rights by "using the taking of FMLA leave as a negative factor in employment actions and discouraging an employee from using such leave." Here, the employee alleged that on some occasions, her employer failed to inform her an absence may have qualified for FMLA protection; that its representatives traveled to her doctor unannounced and demanded her medical records; and that it questioned her honesty about her absences after she requested FMLA leave. Because a reasonable jury could find that such actions had the result of discouraging her from using FMLA leave, she plausibly alleged FMLA interference.

Disability bias. The court also rejected the employer’s contention that the employee’s ADA claim of disability bias must be dismissed because she admitted she was fired because her employer believed she falsified her sick leave claim. The employee explained that she was not advocating a mixed-motive approach and also did not accept the purported falsification of the sick leave form as the true reason for her termination. Thus, at this stage of the proceedings, she plausibly alleged that she was fired because of her disability.

FMLA retaliation. The employer’s similar argument failed as to her FMLA retaliation claim. A jury would have to determine whether the real reason for her termination was falsifying the forms or illegal action under the FMLA.

LMRA preemption. Rejecting the employer’s claim at this early stage that the employee’s state law claims were necessarily preempted by the LMRA, the court found no reason why a collective bargaining agreement would need to be analyzed to determine whether the employer committed an invasion of privacy or intentional infliction of emotional distress. The employee did not claim that her termination was the source of those claims. Rather, they stemmed from the actions taken by her employer’s agents in going to her doctor’s office and demanding her medical information. And based on the facts she alleged, a jury would not need to interpret the terms of the CBA to determine whether these actions constituted an invasion of privacy or were outrageous enough to support an IIED claim.

Invasion of privacy. However, the employee failed to plausibly allege her invasion of privacy claim, which she brought under the intrusion upon seclusion theory. She did not allege any physical contact or invasion of her home and failed to provide any legal support of her "bald assertion" that the company representative’s actions at the doctor’s office qualified as an illegal search. But while the court dismissed her claim, it did so without prejudice.

Too early to toss IIED claim. Finally, whether the employee failed to allege sufficiently egregious conduct to support her IIED claim was an issue best left for either summary judgment or trial. It was at least plausible that alleged conduct—her employer’s agents barging into her doctor’s office unannounced and demanding her medical files—could be deemed extreme or outrageous.

SOURCE: Hogan v. Northern Indiana Public Service Co., (N.D. Ind.), No. 2:19-cv-00412-PPS-JPK, May 26, 2020.

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