Selected Case law Under FMLA

Taylor v. Progress Energy Inc.,   04-1525, 2005 U.S. App. LEXIS 14650 (4^th Cir. July 20, 2005)FMLA waivers or releases are not allowed to bar a claim against an employer unless they have court or Department of Labor approval, the 4th Circuit court of Appeals ruled in July. Strictly interpreting a regulatory provision contained at 29 C.F.R. 825.220(d), the court held that the FMLA waivers must follow the FLSA model in order to be enforceable, as opposed to releases that attorneys might draft under a standard discrimination statute. For more on this case see the Jackson Lewis July 27, 2005 legal update entitled  Federal Appeals Court Rejects Waiver of FMLA Claims not approved by DOL or Court.

Saroli v. Automation and Modular Components, Inc., 2005 U.S.App. LEXIS 7100 (6^th Cir. 2005)

In this FMLA case, the 6^th Circuit Court of Appeals dealt with a case involving “constructive discharge” of an employee returning from maternity leave. Marria Saroli was employed as the Controller at Automation and Modular Components, Inc.

The 6^th Circuit Court of Appeals reversed the judgment of the District Court in the case. Saroli argued that she was constructively discharged in response to her maternity leave and that the Corporation impermissibly interfered with her rights under the FMLA.  The District Court initially dismissed on summary judgment Saroli’s claims against her former employer finding that there was no genuine issue of material fact as to whether Saroli was constructively discharged and that Saroli’s interference claims under the FMLA were not actionable absent a finding of constructive discharge. 

To maintain a successful action for a violation of the FMLA, an employee must demonstrate that an adverse employment action was taken.  In this case, the plaintiff asserted a “constructive discharge,” which requires her to produce evidence to show that:

1)      the employer deliberately created intolerable working conditions, as perceived by a reasonable person, and

2)      the employer did so with the intention of forcing the employee to quit

The mere fact that a demotion “probably” would have occurred if Saroli had not resigned is by itself insufficient for a finding of constructive discharge.   In this case, however, other circumstantial evidence indicated that a reasonable person would have felt that both prior to and following Saroli’s maternity leave, her employer, Mr. Shore, created an intolerable working environment with the intent of forcing Saroli to resign.  Such evidence includes:

• The employer made the process of obtaining maternity leave exceedingly difficult;
• The day following Saroli’s written request for leave, the employer informed her that his son had been hired as the manager of accounting a finance and that she would not be reporting to him
• The employer failed to inform Saroli until the day she returned to work that she would need a doctor’s note in order to be cleared to resume work
• Upon her return to work, Saroli found her computer account had not been reactivated and her work had been taken from her desk, preventing her from resuming her job tasks until late that afternoon
• The employer met with Saroli upon her return to work and indicated his desire to have her resign (He laid out her options – the “staying” option was in an undetermined role, “probably” a demotion, but Shore refused to elaborate)

Saroli also argued that the defendant employer interfered with her rights under the FMLA by failing to respond timely to her request for leave, failing to inform her of her eligibility to take twelve weeks of leave (she was offered only six), and demanding medical certification of her ability to return to work.  To prevail on an interference claim, a plaintiff must establish several elements.  In this case, the only element in dispute was whether the defendant Corporation denied Saroli the benefits to which she was entitled under the FMLA. 

The FMLA entitles qualifying employees experiencing serious health conditions to take leave.  The Act forbids “any employer to interfere with, restrain, or deny the exercise of rights provided by the act.”  Here, the Corporation failed in its obligation to respond to a request for leave in writing within two business days which response should have included:

• designation of the leave as a FMLA leave
• notification to the employee as to whether the leave is to be paid or unpaid
• detail of the employee’s rights and obligations under the Act, including whether the employee must present a fitness-for-duty certificate to return to work and information of her eligibility under the Act to take 12 weeks of leave

“Interfering with” an employee’s rights under the Act includes “discouraging an employee from using leave.”  (RNT)

Russell v. North Broward Hospital (No. 02-13343) Decided Oct. 2, 2003, 11th Circuit

 The Court of Appeals in this case made clear that an employee must be incapacitated for three full consecutive days (rather than partial days) to invoke the claim of a serious health condition under section 29 CFR § 825.114 of the FMLA regulations. The employee in question was terminated for excessive absenteeism. Under the regulations, in order to invoke FMLA protection, the health condition must result in a period of incapacity of more than three consecutive calendar days. Russell was never incapacitated for any continous period of more than 72 hours. See the Jackson Lewis article on this case.

Nevada Dept. of Human Resources v. Hibbs, (No. 01-1368) Decided May 27, 2003

In a significant departure from  recent sovereign immunity cases decided by the U.S. Supreme Court, Chief Justice William Rehnquist authored a 6-3 opinion upholding the right of individuals to sue states over violations of their rights under the federal Family and Medical Leave Act. In this case, a person who was employed by the State of Nevada took time off from work to care for his seriously ill wife. He was dismissed after failing to return to work upon exhaustion of his leave. When the employee sued, the District Court granted summary judgment for the state on the ground that the case was barred by the doctrine of sovereign immunity. The Ninth Circuit reversed, and the Supreme Court upheld the 9th Circuit decision. The case was distinguished from the ADA and ADEA sovereign immunity cases in that sex discrimination is subject to a higher level of scrutiny. The ADA and ADEA cases used  a rational basis standard for reviewing discrimination based on age and disability. Key excerpts from the Court's decision are as follows:

The FMLA aims to protect the right to be free from gender-based discrimination in the workplace. We have held that statutory classifications that distinguish between males and females are subject to heightened scrutiny. See, e.g., Craig v. Boren, 429 U.S. 190, 197—199 (1976). For a gender-based classification to withstand such scrutiny, it must “serv[e] important governmental objectives,” and “the discriminatory means employed [must be] substantially related to the achievement of those objectives.” United States v. Virginia, 518 U.S. 515, 533 (1996) (citations and internal quotation marks omitted). The State’s justification for such a classification “must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.” Ibid. We now inquire whether Congress had evidence of a pattern of constitutional violations on the part of the States in this area.

 

  As the FMLA’s legislative record reflects, a 1990 Bureau of Labor Statistics (BLS) survey stated that 37 percent of surveyed private-sector employees were covered by maternity leave policies, while only 18 percent were covered by paternity leave policies. S. Rep. No. 103—3, pp. 14—15 (1993). The corresponding numbers from a similar BLS survey the previous year were 33 percent and 16 percent, respectively. Ibid. While these data show an increase in the percentage of employees eligible for such leave, they also show a widening of the gender gap during the same period. Thus, stereotype-based beliefs about the allocation of family duties remained firmly rooted, and employers’ reliance on them in establishing discriminatory leave policies remained widespread.

 

   Congress also heard testimony that “[p]arental leave for fathers … is rare. Even … [w]here child-care leave policies do exist, men, both in the public and private sectors, receive notoriously discriminatory treatment in their requests for such leave.” Id., at 147 (Washington Council of Lawyers) (emphasis added). Many States offered women extended “maternity” leave that far exceeded the typical 4- to 8-week period of physical disability due to pregnancy and childbirth, but very few States granted men a parallel benefit: Fifteen States provided women up to one year of extended maternity leave, while only four provided men with the same. M. Lord & M. King, The State Reference Guide to Work-Family Programs for State Employees 30 (1991). This and other differential leave policies were not attributable to any differential physical needs of men and women, but rather to the pervasive sex-role stereotype that caring for family members is women’s work.

 

The significance of this case was summarized by Linda Greenhouse in the New York Times article entitled Justices, 6-3, Rule Workers Can Sue States Over Leave, (page A-1, May 28, 2003)

But in fact, the debate in Nevada Department of Human Resources v. Hibbs, No. 01-1368, appeared to be less over facts and figures than over what the court most needed to say at this point in the evolution of the federalism revolution that is certain to be considered one of the Rehnquist court's major legacies. Among those engaged by the issue, this case was widely seen as a potential watershed because it moved the debate about Congressional authority close to the core of traditional civil rights concerns. The Bush administration along with dozens of current and former members of Congress urged the court to uphold the full reach of the law.

 

Ragsdale v. Wolverine Worldwide Inc ., (No. 00-6029) 122 S.Ct. 1155, U.S.,2002, Decided March 19, 2002. 

In this case the U.S. Supreme Court upheld the dismissal of an FMLA claim. The employee in question actually received seven months of leave, but requested an additional 12 weeks upon notice of her termination. Her claim for the extra time was based on 29 CFR § 825.700(a), which requires the employer to grant an employee 12 extra weeks of leave if proper notice was not given that the leave taken has been designated as FMLA leave. The regulation in question states as follows:  

If an employee takes paid or unpaid leave and the employer does not designate the leave as FMLA leave, the leave taken does not count against an employee's FMLA entitlement. 29 CFR § 825.700(a).

In holding for the Employer, the Court did not invalidate the requirement for the individual notice about FMLA designation in the regulation, but did invalidate the penalty imposed on the employer of requiring the employer to provide 12 additional weeks of leave to the employee. The Court stated as follows at pp. 1160-61: 

According to the Secretary, the more comprehensive and individualized notice required by the regulations is necessary to ensure that employees are aware of their rights when they take leave. See 60 Fed.Reg. 2220 (1995). We need not decide today whether this conclusion accords with the text and structure of the FMLA, or whether Congress has instead "spoken to the precise question" of notice,Chevron, supra, at 842, 104 S.Ct. 2778, and so foreclosed the notice regulations. Even assuming the additional notice requirement is valid, the categorical penalty the Secretary imposes for its breach is contrary to the Act's remedial design.

Further on in the text of the opinion the Court notes as follows: 

The challenged regulation is invalid because it alters the FMLA's cause of action in a fundamental way: It relieves employees of the burden of proving any real impairment of their rights and resulting prejudice. In the case at hand, the regulation permitted Ragsdale to bring suit under § 2617, despite her inability to show that Wolverine's actions restrained her exercise of FMLA rights.

Given this ruling, employers should continue to give notice to employees of their FMLA rights as required by the statute, both generally (by postings) and individually. However, the Court's opinion does give employers a boost when answering a claim involving a situation where an employer has complied with the substance of FMLA, but failed to comply with a technical provision in the regulations. In order to show that an employer has violated the FMLA, an employee must prove that the employer negatively interfered with their FMLA rights, resulting in  prejudice to the employee. 

For excellent advice on sorting out the implications of the Ragsdale decision, including tips on leave policies in general, see the March 21, 2002 Jackson Lewis article on this case.

Personal Liabilty for Supervisors Upheld in FMLA cases

See Darby v. Bratch, 287 F. 3d 673 (8th Cir.2002) for a holding by the 8th Cir. Court of Appeals that supervisors may have personal liability for FMLA violations. In accord, Hibbs v. HDM, 273 F. 3d 844, 872 (9th Cir. 2001).




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