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Employment & Labor Law for Public Safety Agencies
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Family, Medical & Personal Leave
Monthly
Law Journal Articles: The Family and Medical Leave
Act and Public Safety Personnel (Part One), 2015 (11) AELE Mo. L. J. 201.
Monthly Law Journal Articles: The Family and Medical Leave
Act and Public Safety Personnel (Part Two), 2015 (12) AELE Mo. L. J. 201.
The plaintiff, a former employee of the federal Office of the Director of National Intelligence, asserted claims against her former employer for disability discrimination under the Rehabilitation Act, 29 U.S.C. 701 et seq., and retaliation under and violation of the Family and Medical Leave Act (FLMA), 29 U.S.C. 2601, et seq. She argued that the defendant discriminated against her and violated the FMLA by not hiring her for a permanent position following her completion of a five-year term. A federal appeals court ruled that summary judgment was properly granted to the employer on the Rehabilitation Act and FMLA retaliation claims. The evidence showed that the employer provided a reasonable accommodation for her depression and when the employee failed to follow the plan, her supervisors attempted a new accommodation, but the employee's attendance problems persisted, and the agency collaborated with the employee in establishing the first accommodation and only acted unilaterally when the accommodation did not work. But the plaintiff could proceed with her FMLA interference claim because a genuine issue of material fact existed as to whether she provided sufficient notice of her disability of depression and interest in taking FMLA leave to trigger the defendant’s duty to inquire as to whether she was in fact seeking to take FMLA leave. Hannah P. v. Coats, #17-1943, 916 F.3d 327 (4th Cir. 2019).
The highest court in Massachusetts upheld an award of damages of $1,332,271 against the Massachusetts Water Resources Authority for retaliatory termination of an employee. The jury found that the MWRA fired the plaintiff in retaliation for his taking leave under the Family and Medical Leave Act (FMLA), 29 U.S.C. 2615 to recover from foot surgery, and expressing his intention to take FMLA leave in the future. The jury awarded back pay damages for lost wages, made an advisory award of damages for the future loss of his pension benefits, and awarded damages for emotional distress and punitive damages. The trial judge additionally awarded liquidated damages and attorney's fees and costs. The Massachusetts Supreme Judicial Court affirmed, rejecting the defendant’s challenge to the jury instructions and to the calculating and award of damages. The jury was properly instructed that they had to find that “but for” the plaintiff exercising their rights under the Family and Medical Leave Act, they would not have been terminated. DaPrato v. Massachusetts Water Resources Authority, #SJC-12651, 482 Mass. 375, 2019 Mass. Lexis 299, 2019 WL 2364353 (Mass.).
A city housing authority employee suffered from seizures, anxiety disorder, post-traumatic stress disorder, bipolar disorder, and depression, which required her to take leaves of absence. After eight years of employment, she was fired. She claimed that the employer improperly denied her requests for medical leave and retaliated against her for these requests by disciplining and terminating her, in violation of the Family and Medical Leave Act, 29 U.S.C. 2601 (FMLA). She also contended that the employer failed to make reasonable accommodations and discriminated and retaliated against her in violation of the Americans with Disabilities Act, 42 U.S.C. 12101, and that she was subjected to retaliation for engaging in protected activity in violation of Title VII of the Civil Rights Act, 42 U.S.C. 2000e and the Fair Housing Act, 42 U.S.C. 3617 (FHA). A federal appeals court upheld summary judgment in favor of the employer. It noted that five months elapsed between the end of the employee’s FMLA leave and a written warning. Although she had requested leave for medical appointments and was told that her leave had been exhausted, she was nonetheless allowed time off for her appointments. She also claimed that she had been terminated because of her disability, but, in her EEOC complaint, she omitted any allegation that the employer had denied her a reasonable accommodation. Finally, rejecting the employee’s retaliation and FHA claims, the court noted that there is no evidence that she called HUD to report a discriminatory housing practice. Riley v. City of Kokomo, Indiana Housing Authority, #17-1701, 2018 U.S. App. Lexis 32844 (7th Cir.).
A man had worked as a village police officer for five years before a female sergeant made what he thought were inappropriate and unwelcome sexual advances toward him. According to him, he was not the only person subjected to the sergeant’s sexual harassment. After rebuffing her invitations, he alleged, she escalated a pattern of harassment and hypercriticism of his performance. After an incident prompted him to report the misconduct, he began experiencing migraine headaches and other medical conditions that he attributed to stress related to the harassment. As he began taking time off, tensions rose between him and the employer. His lawsuit asserted that as a result of his medical condition and use of leave time, the village retaliated against him in violation of the Family and Medical Leave Act, 29 U.S.C. 2601 (FMLA), and the Americans with Disabilities Act (ADA), 42 U.S.C. 12101. A federal appeals court upheld summary judgment in favor of the village. The acts that he identified as retaliation, the court stated, would not discourage a reasonable employee from exercising his rights under the statutes. In fact, he was allowed to take all the unpaid leave he wanted or needed. His claims asserted that doing exactly what the FMLA allows—placing an employee on unpaid leave—violated the anti-retaliation provisions of the FMLA and ADA. Freelain v. Village of Oak Park, #16-4074, 2018 U.S. App. Lexis 10975 (7th Cir.).
The plaintiff was a county 911 dispatcher for 11 years, during the last three of which the county had a third-party vendor manage disability, Family Medical Leave Act (FMLA), and unpaid leave requests. Employees did not need approval from a supervisor. The plaintiff was diagnosed with sleep apnea and subsequently had gastric bypass surgery. She received five warnings concerning her use of vacation time or casual time, three warnings for failure to timely complete mandatory proficiency tests, and a warning for failure to report to work on a date that she mistakenly believed that she was not scheduled to work. She was disciplined for being late to work four times. On February 9, 2013, she failed to report and was given a three-day suspension and warned that if she was late again she could be fired. She attributed her tardiness to sleeping through her alarms and did not mention sleep apnea. There was no evidence that her supervisors were aware of that diagnosis. On March 8, she was again tardy. Her psychiatrist wrote a note stating that she “most probably” had sleep apnea, and needed to be retested. She was fired. A federal appeals court affirmed summary judgment rejecting her suit under the FMLA, 29 U.S.C. 2601, the Americans with Disabilities Act, 42 U.S.C. 12112, and the Rehabilitation Act, 29 U.S.C. 794. There was no evidence that she requested FMLA leave before her termination. Guzman v. Brown County, #16-3599, 2018 U.S. App. Lexis 5722 (7th Cir.).
Over the course of roughly three years, a town employee took three medical leaves, totaling nearly eight months in aggregate leave time. She was fired when she returned from her third leave. She sued under both federal and state law, claiming that she had been retaliated against for taking medical leave and discriminated against on account of a disability. The town asserted that her dismissal was based on poor job performance (including violations of department protocols, breaches of confidentiality, and repeated failures to complete work assignments). A federal appeals court upheld the judgment of the trial court entering a take-nothing verdict in favor of the defendants following a jury trial. The plaintiff argued that the trial court erred in employing the McDonnell Douglas Corp. v. Green, #72-490, 411 U.S. 792 (1973) framework in its jury instructions. That case dealt with the burdens and nature of proof in proving an employment discrimination case and the order in which plaintiffs and defendants present proof. That framework has the following steps:
1. The plaintiff (employee) must first establish a prima facie case of discrimination.
2. The defendant (employer) must produce evidence of a legitimate non-discriminatory reason for its actions. If this occurs, then the presumption of discrimination dissipates.
3. The plaintiff must then be afforded a fair opportunity to present facts to show an inference of discrimination. The plaintiff may do so either by showing that the defendant’s explanation is insufficient and only a pretext for discrimination or by otherwise proving that the defendant’s actions used one of the listed unlawful discriminatory parameters.
Some have criticized that framework as overly complex and difficult for jurors to understand. In this case, however, the appeals court ruled that the “employee did not show that the outcome of her discrimination and retaliation action against her employer would likely have changed had the district court rearranged the components of the jury charge inasmuch as the court provided the jury with a thoughtful, thorough, and easily understandable explanation of the relevant legal concepts involved in the McDonnell Douglas framework.” “A trial court that wishes to use the McDonnell Douglas framework as part of its jury instructions should translate it into everyday parlance and fit it to the facts and circumstances of a particular case.” Teixeira v. Town of Coventry, #17-1049, 2017 U.S. App. Lexis 27570 (1st Cir.).
While a city manager was off work recovering from surgery, the city council voted to fire her for causing strife in the community. She had previously declined to fill out the city’s Family and Medical Leave Act (FMLA) paperwork to request leave. She sued claiming a FMLA violation. Upholding summary judgment for the defendants, the federal appeals noted that there was no evidence that she was fired in a way that interfered with her FMLA rights, even though she was then out because of the surgery. It seemed apparent the dismissal would have occurred regardless and she had even stated that she would not seek medical leave. The defendants stated a non-discriminatory reason for firing her. Mullendore v. City of Belding, #16-2198, 2017 U.S. App. Lexis 16310, 2017 Fed. App. 491N (6th Cir.).
An administrative assistant in the Illinois courts was suspended on the day she returned to work from a leave taken under the Family and Medical Leave Act, 29 U.S.C. 2601. She chose not to attend a disciplinary meeting and was then fired. Her judge supervisor sent a letter citing several instances of alleged misconduct, including insubordination. The terminated employee sued the Administrative Office of the Illinois Courts, asserting that it employed her and that she was fired in retaliation for taking FMLA leave. The trial court granted summary judgment for the agency, reasoning that it never employed her and thus could not have discharged her, and that additionally, there was no evidence of retaliation. A federal appeals court found it unnecessary to resolve whether the Administrative Office was the plaintiff’s employer, but upheld summary judgment for the defendant, given that the plaintiff failed to show any evidence from which a jury could reasonably find that any of her supervisors had retaliatory animus against her. Her mere disagreement about the reasons given for her termination did not show that they were a pretext, particularly when she declined even to participate in the disciplinary process. Tibbs v. Administrative Office of the Illinois Courts, #16-1671, 2017 U.S. App. Lexis 10789 (7th Cir.).
A former government employee at a registry of deeds office claimed that her rights under the Family and Medical Leave Act had been violated. A federal appeals court rejected this claim because it was not plausible that an email that stated the employee would be out sick for a week caused her termination. The allegations related to a longstanding dispute between the employer and the employee, the employer's fear that the employee may have brought a gun to work, and a subsequent lock-out of the employee, all before the email was sent. She failed to show that she was terminated in retaliation for seeking leave under the FMLA. Germanowski v. Harris, #16-1306, 2017 U.S. App. Lexis 6288 (1st Cir.).
A man worked for a Port Authority for four years, primarily managing fleet vehicles. He suffered from migraine headaches and claimed that their frequency increased after he was transferred to the engineering department. He applied for Family and Medical Leave Act (FMLA) leave. Intermittent FMLA leave was approved. An issue came up because he had been reporting only the approximate number of hours he had been working. He was then informed that all economic development work was being eliminated (he had actually done only a small amount of such work), that his “temporary reassignment” to the engineering department was ended, and that he was terminated. He claimed that this was in retaliation for his seeking FMLA leave. A jury rejected this claim and the federal appeals court found that the trial court erred in failing to give a mixed motive jury instruction. A U.S. Department of Labor regulation stated that a plaintiff could rely o a mixed motive theory if there was evidence, either direct or circumstantial, that would lead a reasonable juror to decide that the use of FMLA leave was a negative factor in the employer’s adverse employment action against her. Egan v. Delaware River Port Authority, #16-471, (3rd Cir.),
A postal employee sued his employer and supervisor
claiming that he was terminated in retaliation for taking Family Medical Leave Act (FMLA) leave. A federal appeals
court affirmed summary judgment for the defendants, holding that the trial
court properly found that the supervisor lacked the requisite knowledge
necessary to hold him liable for retaliation in violation of the FMLA, as he
thought the employee was out on paid workers’ compensation medical leave
following an injury, rather than FMLA leave. Chase
v. United States Postal Service, #16-1351, 843 F.3d
553 (1st Cir. 2016).
A juvenile detention
officer sued a county for disability discrimination as well as for retaliation
in violation of federal and state disability discrimination statutes and the
Family Medical Leave Act (FMLA). The county fired her because she could not
meet the job requirement of lifting 40 pounds. The requirement was related, the
employer maintained, to protecting juveniles from harming themselves or others.
A federal appeals court upheld summary judgment for the employer. The plaintiff
was not an otherwise qualified individual because she could not perform the
essential functions of her job with or without reasonable accommodation.
Because this was still the case at the end of her FMLA leave period, the county
did not violate the FMLA by firing her after her leave expired. Scruggs v.
Pulaski County, #15-1248, 2016 U.S. App. Lexis 5970 (8th Cir.).
An account technician
working for a state correctional agency was fired based on a rule that
authorized termination for those accumulating 12 unauthorized absences. Such
absences were automatically expunged when an employee had a clean attendance
record for 4 consecutive months. The employee's absences accrued over a seven
year period. She claimed that three of the absences were protected by the
Family and Medical Leave Act (FMLA), 29 U.S.C. Sec. 2601, as they were for
family or medical care. A federal appeals court rejected a FMLA claim, and
upheld the dismissal, because the lawsuit was time barred by a two year statute
of limitations that began to run each time the employer denied the requests for
leave and classified the absences as unauthorized, not at the time that she was
fired years later as a result of her overall long term attendance record.
Barrett v. Ill. Dep't of Corrs., #13-2833, 2015 U.S. App. Lexis 18144 (7th
Cir.).
A federal appeals court has held that employers
who receive a faulty request for leave filed under the Family and Medical Leave
Act cannot simply reject it, but instead must inform the employee about the
deficiency of their request and give them an opportunity to correct it. The
case involved a nurse's assistant at a hospital who requested medical leave for
a then undiagnosed condition with symptoms of shortness of breath, nausea and
vomiting. After taking five days off in a two week period, she was fired for
excessive absenteeism and at that time, the employer stated that her request
was faulty and had been denied. The doctor had filled out a medical
certification, and her condition was later determined to be diabetes and high
blood pressure. The employer took the position that since her condition wasn't
diagnosed and her request was only for a month, she could not show that she had
a serious medical condition that would persist for an extended period of time,
as required by the FMLA. The appeals court rejected that reasoning. Department
of Labor regulations, the court ruled, require employers to notify employees of
perceived deficiencies in FMLA requests. They must also notify the employee of what
information would be needed to correct the incomplete or insufficient request.
Hansler v. Lehigh Valley Health Network, #14-1772, 2015 U.S. App. Lexis 10444
(3rd Cir.).
An officer with the U.S. Capitol Police claimed that
her employer violated her rights under the Family Medical Leave Act, 29 U.S.C.
Sec. 2615, and retaliated against her for trying to exercise her rights. She
sought pre-approval under the Act for a "bank" leave when she was
suffering from bouts of depression following her husband's suicide. The Capitol
Police had in place a system allowing an employee to obtain a pre-approval of a
"bank" of leave under the Act, without identifying specific start or
end dates. After providing medical documentation, she was granted a bank of 240
hours of leave. But after approving the leave, her employer ordered her to
submit to a fitness for duty exam, stating that the facts supporting her leave
request were the basis for the order. Her police powers were then revoked and
she was assigned to administrative duties while she waiting to take the exam.
These allegations adequately supported an inference of retaliatory motive, so
the trial court should not have dismissed the lawsuit. Further, an employer's
actions with a reasonable tendency to "interfere with, restrain, or
deny" the exercise or attempt to exercise a right to take family or
medical leave is enough for a valid interference claim, even if the plaintiff
employee actually took the leave. Gordon v. United States Capitol Police,
#13-5072, 2015 U.S. App. Lexis 2556 (D.C. Cir.).
A former employee of the Michigan Department of
Corrections sued the warden of the facility at which he worked, claiming that
he was harassed, intimidated, retaliated against, and finally fired, all
because he took leave under the self-care provision of the Family Medical Leave
Act. The remedy sought was reinstatement. That claim, the court held, was
untimely under the two year statute of limitations in the Act. While there was
an extended three year statute of limitations in the Act for willful
violations, the plaintiff's complaint was devoid of any assertion of
willfulness. Crugher v. Prelesnik, #13-2425, 2014 U.S. App. Lexis 14767, 2014
Fed. App. 169P (6th Cir.).
A county employee who took various time off after
suffering injuries in an accident claimed that she was fired in retaliation for
taking leave under the Family and Medical Leave Act. Rejecting this claim, the
appeals court found that even taking the evidence in the light most favorable
to the plaintiff, the county established that she would have been fired
regardless of her request for leave. Reasons given for her termination included
failure to timely submit Fanily and Medical Leave Act forms in a timely manner,
untruthfulness regarding the extent of her injury and her ability to work,
abuse of sick leave, personal use of a county digital camera, and failure to
schedule a requested independent medical examination (IME). Dalpiaz v. Carbon
County, Utah, #13-4062, 2014 U.S. App. Lexis 14165 (10th Cir.).
A defendant city was not entitled to judgment as
a matter of law on a Family Medical Leave Act retaliation claim. A reasonable
juror could find that the plaintiff, a former employee, was able to perform the
essential functions of a position that he interviewed for, since his doctor had
released him to perform work, and that there was sufficient evidence to support
an inference that the city had a retaliatory motive in not granting him that
job. He was the most qualified applicant and a supervisor said that it would be
a mistake to hire him because of his past Family Medical Leave Act leave
following surgery. A state law disability discrimination claim was rejected as
there was no proof that the city knew about his allegedly disabling condition
when he sought to be rehired. The appeals court upheld the vacating of a jury
award for emotional distress damages as unsupported by the evidence and
overturned the trial court's denial of liquidated damages since the city
provided no evidence to support the trial court's finding that it refused to
rehire the plaintiff in good faith. Jackson v. City of Hot Springs, #13-1772,
2014 U.S. App. Lexis 8810 (8th Cir.).
An investigator for a county prosecutor's office
who had peace officer status and carried a weapon took leave under the Family
and Medical Leave Act (FMLA) because of emotional difficulties and severe
depression that she was experiencing following the death of her brother-in-law.
A California intermediate appeals court ruled that when the employer was not
satisfied with the employee's health care provider's certification that she was
able to resume work, the employer could restore the employee to the job, but
then seek its own independent evaluation of her fitness for duty at its own
expense. The employer was concerned because of instances in which her
depression had caused her to put her safety in danger, called into question her
ability to react properly in tactical situations, and caused her to provide
unprofessional, and conceivably false testimony in a criminal proceeding. White
v. County of Los Angeles, #B243471, 225 Cal. App. 4th 690, 2014 Cal. App. Lexis
336.
An Illinois correctional officer's wife suffered
from mental health problems relating to opiate dependency. He submitted a
Family and Medical Leave Act (FMLA) form seeking leave to take off work
intermittently or to work less than a full schedule to care for her, based on
recommendations from his wife's psychiatrist, who believe that the need for the
leave would continue for an "unknown" period of time. The leave
request was approved, and no further medical documentation was asked for, and
the employer paid its share of his health insurance costs. After 130 days of
absence were recorded, he was told that his FMLA leave had expired, but that he
could take up to a year of unpaid leave under a state program, the Illinois
Family Responsibility Leave program, but that the state would only contribute
to his health insurance cost for six months. After he took 29 absences under
that program, a request for two more days off was denied by a warden. He was
later notified that the state mistakenly continued to pay for his health
insurance beyond the time to which he was entitled, and started withholding 25%
of his pay until he had refunded $8,291.83. He sued the state, claiming
interference with FMLA rights. A jury returned a verdict in favor of the state.
The trial judge, however, entered a judgment notwithstanding the jury's verdict
finding that the plaintiff's FMLA leave should have lasted one additional
month, and awarding him, therefore $1,222.10 for that one month's medical
benefits cost, a ruling the appeals court upheld. Holder v. IL Dep't of Corrs.,
#12-1456, 2014 U.S. App. Lexis 8431 (7th Cir.).
A former postal employee was not required to
resolve her claims arising under the Family and Medical Leave Act (FMLA)
through arbitration because her union's collective bargaining agreement with
the employer did nor clearly and unmistakably require her to do so. The
collective bargaining agreement's incorporation of the federal Rehabilitation
Act's prohibitions on disability discrimination, however, was sufficiently
clear and unmistakable enough to waive her right to sue for claims under that
statute in federal court. Because the plaintiff had subsequently retired, she
lost her standing to seek injunctive relief, as she could not realistically
face a continuing threat of violation of her rights under the FMLA. Gilbert v.
Donahoe, #13-40328, 2014 U.S. App. Lexis 8182 (5th Cir.).
A public employee's mother was diagnosed with
end-stage heart failure. The employee acted as her mother's caregiver,
administering insulin, draining fluid from her heart, and bathing and dressing
her. The employee requested unpaid leave from her job to accompany her dying
mother on a six-day trip to Las Vegas to fulfill her dying mother's lifelong
dream. The employer denied the request, but the employee claimed that she was
not notified of the denial before going on the trip. Months after the trip, the
employer terminated the employee for alleged unauthorized absences during the
trip. A federal appeals court upheld a trial court's ruling in favor of the
terminated employee on a claim under the Family and Medical Leave Act,
authorizing unpaid leave to care for relatives, including a parent with a
serious health condition. The lower court had stated that "where the care
takes place has no bearing on" protection for family leave under the
statute, and denied summary judgment to the employer. Ballard v. Chicago Park
Dist., #13-1445, 2014 U.S. App. Lexis 1747 (7th Cir.).
An Arkansas state agency employee was not
entitled to leave under the Family Medical Leave Act as she had not been
employed for 12 months and could not assert a claim for disability
discrimination when she could not perform the essential functions of her job,
with or without accommodation. Hill v. Walker, #13-1381, 2013 U.S. App. Lexis
24835 (8th Cir.).
A county employee filed suit under the Family
Medical Leave Act, 29 U.S.C. Sec. 2601, claiming that she was improperly demoted
in retaliation for having left work to take care of her ill uncle. The trial
court granted summary judgment to the defendants. On appeal, the court rejected
the plaintiff's argument that the employer was equitably estopped from
disputing her eligibility for leave because her manager had approved it.
Assuming for the purposes of argument that equitable estoppel under federal
common law applied to the Family Medical Leave Act, the plaintiff failed to
assert a valid case for estoppel in this case. She failed to show that she
relied on any misrepresentation. Dawkins v. Fulton County, #12-11951 2013 U.S.
App. Lexis 19918 (11th Cir.).
After a police dispatcher was fired, he sued
under the Family Medical Leave Act (FMLA). The trial court ruled that he did
not qualify as an eligible employee under the law because the city had only 41
employees, not the required 50. It regarded between 25-30 volunteer
firefighters as not constituting employees. The federal appeals court reversed,
finding that these firefighters were employees because they were paid $15 an
hour when responding to emergency calls or maintaining equipment, even though
they were not required to respond to emergency calls, had no consistent
schedule, and did not receive health insurance, vacation or sick time or social
security benefits. They constituted employees both for purposes of FMLA and the
Fair Labor Standards Act. Mendel v. City of Gibraltar, #12-1231, 2013 U.S. App.
Lexis 16922, 2013 Fed App. 0232P (6th Cir.).
A correctional clerical employee's job involved
looking for coded gang messages in inmate mail. She filed a lawsuit under
Americans with Disabilities Act (ADA), 42 U.S.C. 12112(a), and the Family
Medical Leave Act (FMLA), 29 U.S.C. 2612(a)(1)(D), claiming that her allergic reaction
to the use of scented candles and wall plug-ins around her work area
constituted a disability. A federal appeals court held that this did not
qualify as a disability under the ADA and that her employer had not received
her FMLA certification before an applicable deadline, so that her rights under
that statute were not violated. Milton v. Texas Dept. of Criminal Justice,
#12-20034, 2013 U.S. App. Lexis 4177 (5th Cir.).
A correctional employee was forced to take
intermittent leave after he was diagnosed with abdominal and heart conditions.
He subsequently claimed that he was fired for supposed attendance problems
because of taking leave, in violation of his rights under the Family and
Medical Leave Act, and in retaliation for exercising those rights. A second
employee, after being placed on stress leave by her physician, claimed that a
supervised punished her for taking leave by disciplining her and increasing her
workload. While a state employee can receive damages for violations of the
family care provisions of the Family and Medical Leave Act, prior Sixth Circuit
precedent established that they may not receive money damages for the
employer's violations of the statute's self-care provisions. Claims for
violations of that are barred by states' sovereign immunity, and there can be
no individual liability for a public employer under the law. Equitable claims,
such as claims for reinstatement are not barred. Diaz v. Mich. Dept. of
Corrections.. #11-1213, 2013 U.S. App. Lexis 361, 2013 Fed. App. 3P (6th Cir.).
A county employee had worked as supervisor of
released adult offenders for a decade before developing sacroiliac joint
dysfunction. This condition rendered her unable to work outside of her home, or
to visit the offenders in the jail or at their homes. She was granted a lengthy
leave of absence, but was still unable to perform all of her job functions. She
was then fired. Her claims under the Family and Medical Leave Act (FMLA) and
the Americans with Disabilities Act (ADA) were both properly rejected as she
could not show that she could return to her job, with or without reasonable
accommodations when her FMLA leave ended. She was not an "otherwise
qualified" disabled person under the ADA, as supervising offenders in
person was a necessary component of her job which she could not perform. At the
time she was fired, the employer had no reasonable estimate of when, if ever,
she would be able to resume all of her essential job functions. Robert v. Board
of County Commissioners of Brown County, #11–3092, 2012 U.S. App. Lexis 18365
(10th Cir.).
A state court employee sued his employer for
alleged violations of the Family and Medical Leave Act of 1993 (FMLA), 29
U.S.C.S. § 2601 et seq., claiming that it had refused to provide him with
self-care leave (personal sick leave). A plurality of the U.S. Supreme Court
ruled that the provisions of the statute concerning leave for self-care were
distinguishable from those concerning family-care leave. On claims for
family-care leave, the Eleventh Amendment sovereign immunity from suit enjoyed
by the states has been validly abrogated based on evidence at the time of the
law's enactment that state family-leave policies concerning leave for the care
of a spouse, son, daughter, or parent with a serious medical condition
discriminated against women. No such evidence was presented about similar
discrimination on self-care leave policies. Congress did not abrogate the
states' Eleventh Amendment immunity on claims under the FMLA concerning denials
of self-care leave. Coleman v. Court of Appeals of Maryland, #10–1016, 2012
U.S. Lexis 2315.
A Fire and Safety Officer on the night shift at a
state facility for delinquent boys failed to show that he was terminated
because of his Caucasian race. He did state possibly meritorious claims for
violations of his rights under the Family and Medical Leave Act (FMLA),
however, as well as for retaliation against him for exercising his rights under
the FMLA. He intended to visit his mother when his shift ended because he had
been informed that she was not likely to survive the night. When his
replacement called in sick, his supervisor allegedly ordered him to remain at
work under threat of being fired, even though a co-worker voluntarily stated
that they would take over. The appeals court reasoned that not allowing the
officer to go be with his dying mother may have violated his rights under the
FMLA even though his sister was available to care for her. Under current
regulations covering leave requests, an employee need not be the only family
member available to care for a sick individual to qualify for leave. Roman v.
Michigan Department of Human Services, #10-2174, 2012 U.S. App. Lexis 3004;
2012 Fed. App. 0046P (6th Cir.).
The office manager for a county court's probation
office was fired on the recommendation of her supervisor who was dissatisfied
with her frequent absences from work because of her kidney problems, heart
disease, and diabetes. The supervisor can be held personally liable for her
termination in alleged violation of the Family and Medical Leave Act (FMLA), 29
U.S.C. § 2611. on the basis of its provision imposing liability on "any
person who acts, directly or indirectly, in the interest of an employer."
The court found that the supervisor acted as an agent for the employer. The
appeals court, therefore, overturned summary judgment for the supervisor.
Haybarger v. Lawrence County Adult Probation and Parole, #10–3916, 2012 U.S.
App. Lexis 1776 (3rd Cir.).
A county employee made accusations that a county
commissioner sexually harassed her and subsequently took time off from her job,
stating that she was depressed and anxious and believed that she was
experiencing hostility at work after pressing her harassment claim. When
informed that her available leave under the federal Family and Medical Leave
Act (FMLA) was expired, she submitted her resignation, and sued the county for
allegedly interference with her FMLA rights, constructive discharge, and
unlawful retaliation. An appeals court upheld the rejection of all these
claims. It noted that the plaintiff had been granted a full twelve weeks of
leave under the FMLA during each year that she requested it, that no actions
taken by the employer would have intimidated a reasonable employee into failing
to report sexual harassment claims, and that there was no evidence concerning
the employer's intent and actions that supported the constructive discharge
claim. Quinn v. St. Louis County, #10-3332, 653 F.3d 745
(8th Cir. 2011).
A former firefighter won a judgment against a
city in excess of $1 million under the Family and Medical Leave Act (FMLA). He
later filed a Chapter 7 bankruptcy petition, but did not list the judgment as
an asset of the bankruptcy estate. After his bankruptcy discharge was granted,
the judgment was discovered, the discharge revoked, and the bankruptcy case
reopened, with the bankruptcy trustee seeking to collect the judgment from the
city for the benefit of the firefighter's creditors. A federal appeals court,
ruling en banc, rejected the argument that the firefighter's fraudulent
concealment of the judgment judicially estopped the trustee's claim. Reed v.
City of Arlington, #08-11098, 2011 U.S. App. Lexis 16652 (5th Cir.). Editor's
note: The fact that the majority of the funds paid would go to the lawyer who
represented the firefighter in the prior FMLA case did not alter the result, as
the attorney had no knowledge of the filing of the bankruptcy petition.
Changes to FMLA for federal workers. Revised
rules would allow up to 12 weeks of unpaid leave if a family member is on
active duty in the Armed Forces or has been notified of an impending call.
Qualifying Exigency Leave, 75 (223) Federal Register 70845-70850 (Nov. 19,
2010).
U.S. Dept. of Labor clarifies the definition of
"son or daughter" under Sec. 101(12) of the Family and Medical Leave
Act (FMLA). DoL Wage & Hour Div. Administrator, Interpretation #2010-3.
Under the FMLA, front pay is an equitable remedy
that must be determined by the court rather than by the jury, both as to the
availability of the remedy and the amount of any award. Traxler v. Multnomah
County, #08-35641, 596 F.3d 1007, 2010 U.S. App. Lexis 4050 (9th Cir.).
OPM issues final sick and funeral leave
regulations modifying the definitions of family member and immediate relative.
New and expanded definitions now cover grandparents and grandchildren, same-sex
and opposite-sex domestic partners, stepparents, stepchildren, foster,
guardianship, and similar relationships. They do not cover statutory FMLA
absences. Absence and Leave; Definitions of Family Member, Immediate Relative,
and Related Terms, 5 CFR Part 630, 75 (113) Federal Register 33491 (Jun. 14,
2010).
Arbitrator finds that management unfairly denied an
officer the right to work secondary employment while he was on FMLA leave due
to the birth of a child. The city had no policy against moonlighting while
taking family leave. City of Warrensville Heights and Ohio PBA, 126 LA (BNA)
1313, FMCS Case #09/54968 (Lalka, 2009).
Enlarging the scope of the Family and Medical Leave
Act, the Third Circuit holds that the anti-retaliation provision protects
employees who claim they were fired for merely asking permission to take a
leave, and is not limited to those who actually exercise the right. “It would
be patently absurd if an employer who wished to punish an employee for taking
FMLA leave could avoid liability simply by firing the employee before the leave
begins.” Erdman v. Nationwide Insur., #07-3796, 2009 U.S. App. Lexis 20979 (3rd
Cir.).
Federal court upholds a FMLA claim, after a
public employee was fired following her return from medical leave for chemical
sensitivity to paper toxins. Additionally, if a FMLA claim is based on the same
facts as the state law claim, the result can differ. Sanders v. City of
Newport, #07-0776, 2009 U.S. Dist. Lexis 19101 (D. Ore.).
Federal court rejects a FMLA claim brought by a
city worker who was fired for excessive absenteeism. She had told her
supervisor she did not want to take FMLA leave. Knox v. City of Monroe,
#07-606, 2009 U.S. Dist. Lexis 1014 (W.D. La.).
U.S. Dept. of Labor, Wage & Hour Division
publishes new Family Medical Leave Act regulations, effective Jan. 16, 2009.
They cover military leave and HIPAA. Revised Final Regulations Under the Family
and Medical Leave Act, RIN 1215-AB35.
Office of Personnel Management revises rules
pertaining to emergency leave for General Schedule employees. Changes in Pay
Administration Rules, 73 (217) Federal Register 66143 (11/7/2008).
Fifth Circuit holds that the anti-retaliation
provisions of the FMLA do not automatically protect a coworker or spouse of an
employee from retaliation. Elsensohn v. St. Tammany Parish Sheriff's Office,
#07-30693, 530 F.3d 368 (5th Cir. 2008).
Arbitrator holds that management did not violate
the bargaining agreement by denying a correctional officer leave without pay to
attend an eight-week certification program for employment as municipal police
officer. Although the CBA provided that "employees who request leave for
correctional-related educational purposes shall be granted leave without pay
for such purposes," the curriculum would not have advanced his knowledge
of corrections and the grievant intended to pursue employment as police
officer. County of Erie, Penna. and SEIU L-668, 124 LA (BNA) 1733 (Dean, 2008).
Even if a police employee's leave was protected
under the FMLA, her case would still fail because there was no evidence of a
connection between her leave in 1999 and her termination in May 2003. Ney v. City
of Hoisington, #07-3086, 2008 U.S. App. Lexis 2882 (10th Cir.).
Involuntary placement of a detention officer with
lupus on unpaid FMLA leave during a chicken pox outbreak did not violate ADA,
since her physician cautioned her against an exposure to chicken pox. Andrews
v. Geo Group Inc., #06-cv-00844, 2007 U.S. Dist. Lexis 77474, 20 AD Cases (BNA)
171 (D.Colo).
Federal appeals court affirms a jury verdict
against a Louisiana sheriff for a FMLA violation, including $16,400 in back pay
and $13,128 in front pay. Management failed to provide her with an
individualized notice that leave would be counted against her FMLA allowance,
as required under 29 C.F.R. §825.208(a)-(b)(1). Downey v. Strain, #06-30613,
2007 U.S. App. Lexis 28796 (5th Cir.).
Federal court denies a FMLA claim that a police
officer was compelled to use her vacation time for a two-day absence caused by
a psychological impairment. The condition did not require continuing treatment,
was not a serious health condition within the meaning of 29 U.S. Code
§2612(a)(1)(D) and an inability to attend training is not a disability. Lundy
v. Town of Brighton, #06-CV-6280L, 2007 U.S. Dist. Lexis 83132 (W.D.N.Y.).
FMLA claim rejected; corrections officer exceeded
the 504 hours of excused leave and was lawfully terminated for his absences.
Coker v. McFaul, #06-3587, 2007 U.S. App. Lexis 16565 (Unpub. 6th Cir.).
Public employees have individual liability under
the FMLA, but the defendant was entitled to qualified immunity because it was not
clearly established that public employees are subject to individual liability
under the FMLA when the defendant terminated plaintiff's employment. Modica v.
Taylor, #05-50075, 2006 U.S. App. Lexis 23372 (5th Cir. 2006). {N/R}
State corrections dept. was entitled to sovereign
immunity under 11th Amendment to U.S. Constitution from an employee's lawsuit
seeking monetary damages for interfering with his FMLA rights. Toeller v. Wis.
Corrections Dept., #05-4064. 2006 U.S. App. Lexis 21690, 11 WH Cases2d (BNA)
1380 (7th Cir. 2006). {N/R}
Fourth Circuit holds that the Family and Medical
Leave Act does not provide an employee with an absolute right to be restored to
his or her previous job on return from approved leave. Yashenko v. Harrah's NC
Casino, #05-1256, 2006 U.S. App. Lexis 10469 (4th Cir. 2006).{N/R}
Seventh Circuit holds that management can impose
stricter return-to-work provisions than those in FMLA -- and the employee was
aware of the employer's return-to-work expectations. Harrell v. U.S. Postal
Service, #03-4204, 2006 U.S. App. Lexis 11072 (7th Cir. 2006).{N/R}
Eighth Circuit holds it was not unlawful for a
city to run accrued sick leave and FMLA leave concurrently and to limit a
police officer's total leave to 12 weeks. Slentz v. City of Republic, #05-1663,
2006 U.S. App. Lexis 11746, 11 WH Cases2d (BNA) 769 (8th Cir. 2006).{N/R}
Federal appeals court rejects a claim that the
FMLA covers unlimited break time to use toilet facilities because of diarrhea
induced by diabetes medication. "We are unable to locate a case where
temporary FMLA leave was awarded... [for] periodic time away from a desk
throughout the work day. Mauder v. Metro. Transit Auth., 2006 U.S. App. Lexis
9306 (5th Cir. 2006). {N/R}
Arbitrator holds that a county violated the law
when it denied FMLA leave to employee to care for her grandmother with
Alzheimer's disease; the employee was required to show that grandmother served
as her parent when she was child and employee stood in loco parentis. County of
Allegheny and A.C. Prison Employees, 122 LA (BNA) 155, Pa. Bur. of Mediation
Grievance #5720 (Miles, 2005). {N/R}
Arbitrator overturns the termination of a public
employee for engaging in other employment without permission while on FMLA
leave for depression; she received no wages or benefits from her husband's
business. Chippewa Valley Schools and Mich. AFSCME L-1884, #A9504-1884-04, 121
LA (BNA) 890 (Daniel, 2005). {N/R}
Massachusetts becomes 22nd state to allow public
workers to take paid leave for organ donation. Mass. Gen Laws. Ch. 149, §33D
(2005). {N/R}
Federal appeals court upholds management's
decision to deny a public employee bonus annual leave after he took FMLA leave.
Chubb v. City of Omaha, #05-1172, 424 F.3d 831, 2005 U.S. App. Lexis 20913, 10
WH Cases2d (BNA) 1601 (8th Cir. 2005). {N/R}
Seventh Circuit holds that an employer may not
impose return-to-work standards that are more burdensome than the provisions of
the Family Medical Leave Act, even if those requirements are embodied in a
collective bargaining agreement. Harrell v. U.S. Postal Serv., #03-4204, 415
F.3d 700, 2005 U.S. App. Lexis 14550 (7th Cir. 2005). [2005 FP Oct]
Fourth Circuit upholds a Dept. of Labor
regulation that bars the waiver or release of a worker's FMLA rights, 29 C.F.R.
§825.220(d). Taylor v. Progress Energy, #04-1525, 415 F.3d 364, 2005 U.S. App.
Lexis 14650, 10 WH Cases2d (BNA) 1281 (4th Cir. 2005). {N/R}
Dept. of Labor clarifies that ERISA and the FMLA
do not preempt more generous state leave laws. Employee Benefits Security
Admin. Advisory Opin. #2005-13A (2005). {N/R}
Third Circuit upholds a police dept. requirement
that persons on sick leave notify the city if they leave their homes during
normal working hours. A call-in policy does not violate worker rights under the
FMLA. Callison v. City of Philadelphia, #04-2941, 2005 U.S. App. Lexis 9043
(3rd Cir. 2005). [2005 FP Aug]
Federal court in Pennsylvania holds that the
12-month requirement for being an "eligible employee" under the
Family and Medical Leave Act should be based on the day leave commences. An
employee who had worked less than 12 months, when she gave notice that she was
pregnant, was protected because the start of her planned leave was after her
one-year anniversary. Beffert v. Penn. Dept. of Public Welfare, #05-43, 2005
U.S. Dist. Lexis 6681 (E.D. Pa. 2005). {N/R}
Arbitrator holds that management did not violate
the bargaining agreement when it stopped paying for health insurance for a
pregnant police officer who was on FMLA leave, and ineligible for group
coverage. Vil. of Huntley, IL and Metrop. Alliance of Police C-207, 120 LA
(BNA) 949, FMCS #040218/03758-A (Cox, 2004). {N/R}
Sixth Circuit holds that for purposes of the
hours-of-service eligibility requirement under the FMLA, an arbitrator's
restoration award may include the time that an employee would have worked, but
for the employer's wrongful termination. Ricco v. Potter, #03-3294, 377 F.3d
599, 9 WH Cases2d (BNA) 1455, 2004 U.S. App. Lexis 15425, 2004 FED App. 0242P
(6th Cir. 2004). {N/R}
A California law took effect in July that
provides workers with as much as 55% of their pay while they take family leave.
Maximum weekly payments are $728 in 2004 and $840 in 2005 and lasts up to six weeks.
Another six weeks of unpaid leave is available. The program is financed by a
0.08% payroll tax that costs workers a maximum of $55 a year in family leave
tax. California Family Temporary Disability Insurance program, S.B. 1661
(enacted 2002; effective 7/7/2004). {N/R}
Supreme Court declines review of an appellate
holding that management did not violate the FMLA or Title VII when it fired a
city employee upon his return from leave, after concluding that his work
product was poor. Phelan v. City of Chicago, #03-1209, cert. den. 2004 Lexis
2782 (2004); ruling below at 347 F.3d 679, 92 FEP Cases (BNA) 1389, 9 WH
Cases2d (BNA) 7 (7th Cir. 2003). {N/R}
Arbitrator holds that a pregnant employee who was
absent from work for six days due to abnormal pain and bleeding, was entitled
to leave without pay under FMLA, where she submitted doctor's letter
substantiating her condition on the first day she returned. Her need for leave
was a medical emergency. Dept. of Homeland Security and AFGE L-1917, 119 LA
(BNA) 833 (Lang, 2004). [2004 FP Aug]
A North Carolina at-will city employee who was
fired for absence from work, while recuperating from gunshot wounds inflicted
by his wife, had no legal basis to sue the city for wrongful discharge. In the
2-to-1 decision, an appellate court was unwilling to find that domestic
violence laws create a public policy requiring employers to hold a job open
while a worker recovers from those injuries. Imes v. City of Asheville,
#COA03-218, 594 S.E.2d 397, 21 IER Cases (BNA) 359, 2004 N.C. App. Lexis 583
(2004). {N/R}
Federal appeals court flatly rejects a claim that
a worker cannot be fired for inefficiency or other valid reason because he is
on FMLA leave. Phelan v. City of Chicago, #02-3862, 347 F.3d 679, 92 FEP Cases
(BNA) 1389,2003 U.S. App. Lexis 21344, 9 WH Cases2d (BNA) 7 (7th Cir. 2003).
[2004 FP Jan]
Federal appeals court affirms a jury verdict that
a city employee was not fired for requesting FMLA leave. Gibson v. City of
Louisville, #02-5473, 2003 U.S. App. Lexis 14329, 2003 FED App. 0233P (6th
Cir.). {N/R}
Arbitrator holds that a grievant was eligible for
"assault leave," even if she did not file the proper form. She also
was being treated for "post-traumatic stress disorder/panic attacks with agoraphobia,"
and the filing of a wrong form did not prejudice the employer. Chicago Bd. of
Educ. and Chicago Teachers Union, 118 LA (BNA) 349 (Goldstein, 2002).{N/R}
Constitutionality: Supreme Court rules that the
Congress clearly abrogated the Eleventh Amendment immunity of state governments
when it enacted the FMLA. Nevada Dept. of Human Resources v. Hibbs, #01-1368,
123 S.Ct. 1972, 2003 U.S. Lexis 4272 (2003).
An employer could fire a worker who took FMLA
leave to care for his wife and newborn child, and was actually managing his
wife's restaurant. The employer had a rule prohibiting "unauthorized work
for personal gain" while on leave. Pharakhone v. Nissan, #01-5955, 324
F.3d 405, 2003 U.S. App. Lexis 6289, 2003 FED App. 0098P, 8 WH Cases2d (BNA)
1006 (6th Cir. 2003). {N/R}
Unlike the ADA, under the FMLA an employer did not
have to reassign or otherwise accommodate an investigator with fibromyalgia and
chronic fatigue syndrome. Alifano v. Merck & Co., 175 F.Supp.2d 792
(E.D.Pa. 2001). {N/R}
California enacts the country's first paid family
leave law. S.B. 1661,codified as Deering's California Unemployment Insurance
Code Sections 984, 2601 2613, 2708, 3254, and 3300-3305 (2002). [2002 FP Dec]
State trooper wins $40,000 in damages and
$626,000 in attorney's fees and costs for rejection of his leave request to
care for a newborn infant. Knussman v. Maryland, #B-95-1255, 40 (1975) G.E.R.R.
(BNA) 894 (D.Md. 2002) -- on remand from 272 F.3d 625, 2001 U.S. App. Lexis
24037 (4th Cir. 2001). [2002 FP Nov]
Arbitrator finds that management did not violate
the bargaining agreement when it limited firefighters' annual, sick leave, or
injury leave so that only one per shift would be allowed; the CBA gave the city
an unqualified right to determine staffing levels. City of Del City and IAFF
L-2171, FMCS Case #01/14531, 117 LA (BNA) 393 (McReynolds, 2002). {N/R}
Federal appeals court upholds an $84,000 jury
award under the Family and Medical Leave Act for a private sector worker who
was fired while convalescing after a suicide attempt. Chandler v. Specialty
Tires, #0-5395/5593, 283 F.3d 818, 12 AD Cases (BNA) 1659, 2002 U.S. App. Lexis
4743, 2002 FED App. 0100P, 7 WH Cases 2d (BNA) 1217 (6th Cir. 2002). [N/R]
Police dept. violated the FMLA by denying
promotional opportunities to a worker who took unpaid leave because of Graves'
disease -- an autoimmune disorder associated with hyperthyroidism, burning eye
sensations, nervousness, emotional swings, muscle weakness and palpitations. Darby
v. Bratch, #01-2006, 287 F.3d 673, 7 WH Cases2d 1252, 2002 U.S. App. Lexis 6679
(8th Cir. 2002). [N/R]
Divided Supreme Court strikes down a DoL
regulation requiring employers to inform workers that authorized leave counts
against their FMLA 12 week entitlement. Ragsdale v. Wolverine World Wide,
#006029, 2002 U.S. Lexis 1936. [2002 FP May]
Evidence that the plaintiff's father suffered
from severe depression, which prompted the plaintiff to take time off, was
sufficient to create triable issues of fact under the FMLA. Scamihorn v.
General Truck Dr. Un., #00-55722, 2002 U.S. App. Lexis 3369 (9th Cir.2002).
[N/R]
A telephone message from an employee who said she
was suffering from "depression again" may have given the employer
sufficient notice to trigger FMLA leave. Spangler v. Fed. Home Loan Bank,
#01-2476, 278 F.3d 847, 7 WH Cases 2d (BNA) 1036, 2002 U.S. App. Lexis 1249
(8th Cir. 2002). [N/R]
Appellate court sustains the judgment against a
state police employee who improperly rejected a post-pregnancy sick leave
request by a male trooper, but concludes that the $375,000 jury verdict for
emotional distress was excessive. Knussman v. Maryland, #99-2349, 2001 U.S.
App. Lexis 24037 (4th Cir.). [2002 FP Jan]
Federal court in Philadelphia allows a local
governmental employer to order a confirming exam for a worker returning from
FMLA leave. There was a history of requiring such exams, and the bargaining
agreement perpetuated recognized past practices. Conroy v. Township of Lower
Merion, #00-CV-3528, 2001 U.S. Dist. Lexis 11460, 7 WH Cases 2d (BNA) 365
(Unpub. E.D. Pa.). [2001 FP 135-6]
Management improperly denied a firefighter leave
because it would result in overtime, and would not adversely affect safety.
Centralia (City of) and Centralia Fire Fighters L-618, FMCS #00/14143, 115 LA
(BNA) 1185 (Marino, 2001). {N/R}
Plaintiff's FMLA claim against her state employer
was barred by 11th Amendment immunity. Townsel v. Missouri, 99-3873, 233 F.3d
1094, 2000 U.S. App. Lexis 30716, 6 WH Cases2d (BNA) 1025 (8th Cir. 2000).
{N/R}
Arbitrator holds that a state agency did not have
just cause to discharge a worker whose driver's license was suspended, even
though its policy was to do so, where he suffered from major depression, and
should have been placed on FMLA leave before his license was suspended and
agency took disciplinary action. Ohio Dept. of Transp. and Ohio Civ. Serv. Emp.
Assn., #31-01-00309-08-01-06, 115 LA (BNA) 563 (Smith, 2001). {N/R}
Summary judgment is inappropriate on a FMLA claim
brought by a transsexual employee who was fired after undergoing sexual
reassignment surgery. Gender dysphoria can be a "serious health
condition" under the statute. Sander v. May Dept. Stores, #4:00CV576-DJS,
2001 U.S. Dist. Lexis 11495, 69 L.W. 1752, 6 WH Cases2d (BNA) 1729 (Unpub. E.D.
Mo., 2001). (N/R}
Firefighter was not entitled to sick leave to
care for a live-in woman who was pregnant with his child. Neither the FMLA or
the CBA defines a her as a domestic relative. McAlestar, City of and IAFF L-
2284, FMCS Case #00124-04902-8, 114 LA (BNA) 1180 (Crow, 2000). [2000 FP
169-70]
Arbitrator rules that the city violated the
bargaining agreement when it limited a police officer's sick leave to 12 weeks,
which is the maximum under the FMLA. The CBA did not contain language that
equates sick leave to FMLA leave. Englewood, Ohio and Ohio PBA, AAA Case No.
52-390-00269-99, 113 LA (BNA) 624 (Kohler, 1999). {N/R}
Two federal appeal circuits hold that the
Congress did not have the authority to abrogate the sovereign immunity of
states, under the 11th Amendment, for claims arising under the FMLA. Chittister
v. Dept. of Comm. and Econ. Dev., 226 F.3d 223, 2000 U.S. App. Lexis 22229, 6
WH Cases2d (BNA) 545 (3rd Cir. 2000); Kazmier v. Widmann, #99-30242, 225 F.3d
519, 2000 U.S. App. Lexis 21524, 6 WH Cases2d (BNA) 481 (5th Cir. 2000). {N/R}
Two federal courts hold, that under the FMLA, an
employer cannot require a “fitness for duty” exam of an employee who has been
certified by a physician or psychologist that he/she is able to return to work,
unless the employee's post-leave behavior justifies it. Routes v. Henderson,
1999 U.S. Dist. Lexis 9835, 5 WH Cases2d (BNA) 768 (S.D. Ind.); Underhill v.
Willamina, 1999 U.S. Dist. Lexis 9722 (D.Or.). [1999 FP 174]
Management should order a FFDE before a worker
seeks medical leave. At least one court has held that under the FMLA, an
employer cannot require a FFDE of an employee who has been certified by a
physician or psychologist that he/she is able to return to work, unless the
employee's post-leave behavior justifies it. Albert v. Runyon, 6 F.Supp.2d 57,
1998 U.S. Dist. Lexis 7505 (D.Mass.). [1998 FP 122]
Two more federal courts hold, that under the
FMLA, an employer cannot require a "fitness for duty'' exam of an employee
who has been certified by a physician or psychologist that he/she is able to
return to work, unless the employee's post-leave behavior justifies it, citing
Albert v. Runyon: Routes v. Henderson, 1999 U.S. Dist. Lexis 9835, 5 WH Cases2d
(BNA)768 (S.D. Ind.) and Underhill v. Willamina, 1999 U.S. Dist. Lexis 9722
(D.Or.). {N/R}
Federal jury awards a state trooper $375,000
after management denied him FMLA parental leave to help care for a new baby.
Knussman v. Md. St. Police, 935 F.Supp. 659 (prior ruling, D.Md. 1996). [1999
FP 86]
11th Amendment exempts state agencies, officials
and supervisors from monetary liability under the FMLA, including back pay
claims. Reinstatement and other injunctive relief is available. McGregor v.
Goord, 1998 WL 549544, 1998 U.S. Dist Lexis 13453 (N.D.N.Y.). [1998 FP 165]
Sixth Circuit concludes that the FMLA provides a
right to a jury trial. Frizzell v. Southw. Mtr. Frt., #97-5846, 1998 U.S. App.
Lexis 22015, 1998 FED App. 0285P (6th Cir.). [1998 FP 165]
A laid-off worker can sue under the FMLA for an
employer's failure to rehire because of his prior use of protected medical
leave. Duckworth v. Pratt, #97-2224, 1998 U.S. App. Lexis 16270, 4 WH Cases2d
(BNA) 1281 (1st Cir. 1998). {N/R}
Federal court applies the FMLA to the MD state
police, after it denied parental leave to a male trooper. 11th Amendment bars
Sec. 1983 damages, but not actions under the FMLA. Knussman v. Md. St. Police,
1996 U.S.Dist. Lexis 11356, 935 F.Supp. 659 (D.Md.). [1997 FP 86-7] Note: The
plaintiff was awarded $375,000 by a jury in 1999.
Rectal bleeding is a not a “serious medical
condition” under the FMLA. Bauer v. Varity Dayton-Walther Corp., 118 F.3d 109,
1997 U.S. App. Lexis 16601 (6th Cir.). {N/R}
1986 contract clause requiring arbitration of
"any claim or controversy" did not waive the rights of employees to
sue for federal handicap discrimination or FML violations. Hoffman v. Aaron
Kamhi Inc., 3 W&H Cas.2d (BNA) 445, 1996 U.S.Dist. Lexis 3600, 927 F.Supp.
640 (S.D.N.Y.). [1996 FP 115]
Appeals court upholds city's refusal to allow a
police officer leave to care for her police officer husband who was injured in
the line of duty. Crystal v. City of N.Y., 634 N.Y.S.2d 67 (A.D. 1995). [1996
FP 73]
Supervisors may be individually liable for
violations of the F&MLA. Freemon v. Foley, 1996 U.S. Dist. Lexis 3695; see
also 911 F.Supp. 326 (N.D.Ill.1995). {N/R}
Dept. of Labor issues final rule interpreting the
Family and Medical Leave Act of 1993. 60 (4) Federal Register 2180-2279
(1/6/95), 66 (764) FEP Manual (BNA) 403:7101-7166. [1995 FP 71]
Arbitrator rules a city could prevent a woman
police officer from using paid sick leave to care for an adopted newborn girl,
although leave is allowed birth mothers. Columbus (City of) and FOP L-9, 102 LA
(BNA) 477 (1994). [1994 FP 150]
Colo. appellate court finds that Denver did not
engage in sexual orientation discrimination by disallowing an employee's family
leave request to care for her domestic partner. Ross v. Denver Dept. of Health
and Hospitals, 1994 Colo.App. Lexis 97 (Colo.App. 1994). [1994 FP 120]
U.S. Dept. of Labor issues Interim Guidelines to
implement the Family and Medical Leave Act of 1993. June 4, 1993 Federal Register
31794. [1993 FP 119]
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