Pension & Benefits News Fired Lowe’s manager who never provided return-to-work clearance can’t pursue FMLA claims
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Friday, March 29, 2019

Fired Lowe’s manager who never provided return-to-work clearance can’t pursue FMLA claims

By Pension and Benefits Editorial Staff

Despite Lowe’s repeated requests, a manager failed to provide medical clearance to return to work by the time her FMLA leave expired, and even several months thereafter, so she couldn’t claim that Lowe’s interfered with her FMLA rights or retaliated against her for taking FMLA leave. Granting summary judgment for Lowe’s, the federal court in Michigan also tossed her ADA claim because Lowe’s took no adverse action against her because of her disability. Her ERISA claim also failed because Lowe’s provided her with all her entitled insurance and disability coverage.

Poor job performance. The employee worked as a manager for Lowe’s. In early 2010, Lowe’s transferred her to another store at her request because she believed her supervisor had unfairly disciplined her for poor performance. However, her job performance did not improve at the new location.

FMLA leave. A few months later, she took 12 weeks of approved FMLA leave to undergo surgery. When she returned, she continued to perform poorly, and in August 2013, and again in September, received disciplinary notices for deficient work. In late 2013, Lowe’s placed her on a performance improvement plan.

However, after continuing to struggle with her job responsibilities, in part due to medical issues, she decided to take medical leave. She was approved for continuous FMLA leave from mid-May to the end of June 2014. A day before the employee’s leave was to expire, she requested that it be extended until August. Nevertheless, she never provided the requested documentation to extend her leave beyond June.

Repeated requests for clearance. Even had the employee been approved for more leave, her total FMLA leave would have expired on August 4. However, she did not return to work after her approved leave expired in late June, or any time after that. In late July, and again in early August, the third-party administrator that processed Lowe’s FMLA leave requests advised her to contact HR to verify her return date.

However, the employee did not provide medical clearance as required to return to work before August 20. Her doctor provided her with a clearance letter on August 20, seven weeks after her approved FMLA leave expired, but she never submitted the letter to Lowe’s or the third-party administrator.

In early September, the third-party provider again requested medical clearance documentation so that the employee could return to work, even though by this time, her approved FMLA had expired two months before. The employee never responded.

Termination and lawsuit. In May 2015, Lowe’s terminated the employee. The employee sued, asserting that Lowe’s refused to give her a return-to-work schedule and prevented her from returning to her job, in violation of the FMLA, ERISA, the ADA, the Michigan Persons with Disabilities Civil Rights Act, and the Michigan Bullard-Plawecki Employee Right to Know Act.

FMLA interference. The court granted summary judgment on the employee’s FMLA interference claim, finding that Lowe’s did not deny her any benefit to which she was entitled under the FMLA because she failed to promptly submit return-to-work clearance. Although the employee alleged that Lowe’s interfered with her FMLA rights by refusing to provide her with a return-to-work date, she did not provide a return-to-work clearance from her doctor before her FMLA leave expired in late June.

Rather, the employee admitted she was not medically cleared to return to work until August 4. The physician’s letter indicated he did not assess her ability to return until August 20. Although the employee insisted that she sent HR two letters releasing her to return as of August 4, the third-party administrator’s records showed it still had not received any clearance by early September, and she could not show she sent the alleged letters before her leave expired in June.

FMLA retaliation. The court also dismissed the employee’s FMLA retaliation claim because she could not show any causal connection between her decision to take FMLA leave and Lowe’s decision not to issue her a return-to-work schedule, and ultimately terminate her. The employee could not point to any evidence showing Lowe’s was unhappy with her decision to take FMLA leave, except for her vague hearsay recollection of hearing about some members of management having issues with her leave, which was insufficient to establish a causal connection.

The evidence showed instead that Lowe’s did not give the employee a return-to-work schedule because she never provided return-to-work clearance when her FMLA leave expired, nor the required medical documentation to extend her leave until August 4. The employee maintained she was first cleared to return on August 4, over a month after her leave ended, and the third-party provider had yet to receive any clearance even by September.

ADA and ERISA. The employee’s ADA and Michigan Persons with Disabilities Civil Right Act claims failed because there was no evidence that any adverse employment action was taken against her because of her disability. Rather, she was terminated because she did not return to work after her FMLA leave expired.

Her ERISA claim also failed. The employee admitted that Lowe’s provided her with all of her entitled insurance and disability coverage, and no Lowe’s employee objected to her receiving pension or health care benefits.

Bullard-Plawecki Employee Right to Know Act. The court granted summary judgment on the employee’s claim under Michigan’s Employee Right to Know Act. It was undisputed that Lowe’s permitted her access to her personnel folder shortly after she requested it in November 2014. Although the employee alleged that Lowe’s either failed to accurately maintain her personnel file, or purposely deleted positive reviews, the statute did not permit relief on that basis.

SOURCE: Shimko v. Lowe’s Home Centers, LLC, (E.D. Mich.), No. 4:17-cv-11709, February 26, 2019.

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