Pension & Benefits News Employer had duty to determine if employee’s leave request was FMLA qualified
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Friday, September 20, 2019

Employer had duty to determine if employee’s leave request was FMLA qualified

By Pension and Benefits Editorial Staff

Denying an employer’s motion for summary judgment on an employee’s FMLA claims, a federal district court in Montana ruled there were disputed issues of material fact as to whether the employee provided sufficient notice of his intent to take FMLA leave, the employer took appropriate action to determine if the leave was FMLA qualified, and the employer considered the employee’s leave as a negative factor in his termination.

Complications from cortisone shot. The employee worked as an operator for a mining company. He suffered from joint problems and pain in his right shoulder, and obtained a cortisone shot from his doctor on July 20, 2015. The next day he experienced an adverse reaction and although the complication did not immediately cause him to miss work, he realized he would not be able to work his next scheduled shift on July 24. He contacted the HR department to request FMLA leave, and HR provided him with the necessary FMLA paperwork. The employee’s doctor faxed the employer an FMLA "Certification of Healthcare Provider" that indicated the employee had a serious health condition that would require him to be absent from work from July 20 to August 1.

Remaining vacation days? The employee returned to work on August 1, and during his August 3 shift, he spoke to his supervisor about additional time off due to his shoulder injury. He submitted a vacation request form for August 4 and included a comment on the form stating, "for Doctor Apt Regarding FMLA follow up." The employee thought he had vacation days remaining when he submitted his leave form and his supervisors approved his requested leave. However, the employer later took the position that the employee did not have any vacation days remaining. On August 12, the employee met with his supervisor, a union representative and an HR representative to determine the circumstances of his August 4 absence. The employer concluded the employee violated the terms of his CBA by using a vacation day he did not have and terminated his employment. The employee filed a union grievance regarding his termination, but it was unsuccessful.

The employee filed this lawsuit, alleging in Count I that the employer denied and interfered with his FMLA rights, and in Count II that it retaliated against him for the exercise of those rights. Stillwater filed a motion for summary judgment on both counts.

Questions of fact for a jury. The court found summary judgment was not appropriate on the interference claim because it was disputed whether the employee provided the employer sufficient notice of his intent to take FMLA leave, and whether the employer fulfilled its duty to determine if FMLA leave was sought. The court found a jury could reasonably conclude the employee’s actions did not constitute a clear declination of his FMLA rights. He told his supervisor he was seeking time off due to his shoulder injury and indicated on his leave request form that his time off was "regarding FMLA follow up." The employee contended he sought vacation time simply because he thought it was available to him, and it was an easier process than taking FMLA leave. When he told his supervisor the reason for his leave, it became his supervisor’s duty to determine whether his request qualified as protected FMLA leave, explained the court. The question of whether he effectively gave notice of his intention to take leave covered by the FMLA is a question of fact for the jury.

Retaliation claim treated as interference claim.T urning to the retaliation claim, the court first noted that interference and retaliation claims are often confused. Here, the employer argued summary judgment was appropriate because the employee incorrectly pled his claim that it impermissibly considered his use of FMLA as a factor in his termination under a retaliation rather than interference theory. The employee claimed he was terminated because he requested and obtained FMLA leave. He set forth no allegation that Stillwater punished him for opposing unlawful practices. Although pled as a retaliation claim, the court found the employee’s claim fell within the purview of interference. Based on the Ninth Circuit’s recognition that interference claims are often misclassified as retaliation claims, the court said it would follow the circuit’s lead and consider Count II as an interference claim.

The court then found a dispute of material fact existed as to whether the employer considered the employee’s FMLA leave as a factor in its decision to terminate him. Stillwater argued the employee was terminated because he violated the CBA by using a vacation day he did not have. The employee countered that the day in question should have been treated as FMLA leave, and, therefore, the only factor Stillwater allegedly considered in his termination was his use of FMLA leave. The employee also pointed to the August 12 meeting just prior to his termination where he alleged the employer commented that he was using FMLA leave "a lot." Thus, the court found it was for a jury to decide whether the employer’s actions amount to interference with the employee’s rights, and it denied Stillwater’s motion for summary judgment on both counts.

SOURCE: Sims v. Stillwater Mining Company, D. Mont., No. CV 17-109-BLG-TJC, August 30, 2019.

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