Employer Puts FMLA Interference and Retaliation Claims to Rest
Employers with 50 or more employees know the myriad compliance issues that arise out of federal law and regulations governing Family and Medical Leave Act (FMLA) leave. They include employee eligibility, employer coverage, notice issues, and when discipline for attendance deficiencies can—and cannot—be imposed.
In a recent case, the U.S. 7th Circuit Court of Appeals (whose decisions govern all Wisconsin employers) analyzed Brown County’s actions and concluded an employee’s FMLA interference and retaliation claims were properly dismissed by the trial court. The 7th Circuit provided helpful guidance to employers facing potential FMLA claims.
Employee’s Complaints and Employer’s Response
Caroline Guzman was diagnosed with sleep apnea in 2006 and used a CPAP machine for treatment. She had gastric bypass surgery in 2008. Following the surgery, she stopped using the CPAP machine, which she finally chose to throw away in 2014 because she wasn’t using it and she hadn’t been rediagnosed with sleep apnea following her surgery.
Guzman was employed as an operator at the Brown County 911 call center, where she worked third shift. In 2012, she transferred to day shift, and her direct supervisor was David Panure.
Throughout her employment, Guzman was subjected to a number of disciplinary actions concerning her use of time and not completing mandatory proficiency tests in a timely manner. Between 2007 and 2011, she took FMLA leave for issues other than her sleep apnea. Brown County also disciplined her several times in 2011 and 2012 for arriving late to work.
On February 9, 2013, Guzman didn’t report to work at the start of her shift and didn’t respond to calls checking on her whereabouts. Brown County gave her a three-day disciplinary suspension for the incident and informed her that the next occurrence would result in termination of her employment. She claimed she slept through her alarm but didn’t mention sleep apnea as a reason.
On March 8, Guzman again was late to work, and director of public safety Cullen Peltier decided to terminate her employment. The same day, she asked Panure—her direct supervisor—whether it might be helpful for her to get a doctor’s note explaining her tardiness. He told her that it would. She didn’t tell him that her tardiness was in any way tied to sleep apnea. She contacted her doctor, who wrote a note stating that she “most probably” had sleep apnea but needed to be retested.
Guzman’s former third-shift supervisor, Panure, and Peltier met with her on March 15 and informed her that she was being discharged. She provided her doctor’s note at the meeting, but it was disputed whether it was before or after she was told she had been fired.
Guzman filed a federal lawsuit claiming Brown County interfered with the exercise of her FMLA rights and retaliated against her for exercising her rights. The trial court ruled in favor of Brown County on all her claims and dismissed her lawsuit without a trial. She also raised claims of disability discrimination, including failure to accommodate a disability, which the federal trial court dismissed.
Guzman appealed the dismissal of her lawsuit. The 7th Circuit, in a well-reasoned decision, agreed with the trial court that all her claims should be dismissed.
The FMLA entitles eligible employees suffering from serious health conditions to take up to 12 weeks of unpaid leave during a 12-month period and to be reinstated to the same or a substantially similar position upon their return. It’s unlawful for an employer to attempt to interfere with an employee’s exercise of her FMLA rights.
To establish FMLA interference, an employee is required to show that:
- She was eligible for FMLA protection.
- Her employer was covered by the FMLA.
- She was entitled to leave under the FMLA.
- She provided sufficient notice of her intent to take leave.
- The employer denied her FMLA benefits to which she was entitled.
While there was no dispute about the first and second factors, the 7th Circuit disagreed that Guzman was entitled to leave under the FMLA. She was required to show that she was afflicted with a serious health condition that rendered her unable to perform the essential functions of her job. She claimed that her chronic sleep apnea was a serious health condition.
“Serious health condition” is defined under the FMLA as “an illness, injury, impairment, or physical or mental condition that involves—(A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a healthcare provider.” The 7th Circuit noted that it was unclear whether Guzman suffered from sleep apnea when she was terminated in 2013.
Although Guzman had been diagnosed with sleep apnea in 2006, she had no subsequent diagnosis. In fact, she had thrown away her CPAP machine, suggesting she was no longer suffering from the condition. The court further concluded that even if she was still suffering from sleep apnea, she had provided no information indicating she received inpatient treatment or continuing treatment by a healthcare provider for the condition.
The case could have been dismissed simply because Guzman couldn’t show that she was entitled to leave under the FMLA. However, the 7th Circuit went on to look at whether she provided adequate notice of an intent to take FMLA leave.
The general rule is that notice should be provided 30 days before leave is taken unless the reason for leave isn’t known in advance. In those cases, notice should be given as soon as practicable under the facts and circumstances. An employee’s notice doesn’t have to use specific magic words, but it needs to provide enough information so the employer understands that she believes she’s entitled to and wishes to take FMLA leave.
Guzman claimed that Brown County had “constructive notice” of her condition and need for leave. Courts have recognized that there can be situations in which an employee’s behavior starkly and abruptly changes and can put an employer on constructive notice of a serious health condition.
The 7th Circuit rejected Guzman’s contention that she normally was on time and her tardiness put Brown County on notice that she was suffering from sleep apnea. The court noted that she had previously blamed her tardiness on car and alarm problems, without making any reference to sleep apnea. If an employee doesn’t provide actual notice, courts likely will interpret constructive notice narrowly as a basis for excusing actual notice.
Guzman also claimed that she gave Brown County notice that she needed to take FMLA leave for sleep apnea during the March 15 termination meeting. The court concluded that was too late. Peltier made the termination decision on March 8, a week before having knowledge that Guzman had sleep apnea or was requesting FMLA leave.
The court of appeals also agreed that the trial court had properly dismissed Guzman’s FMLA retaliation claim. To establish a retaliation claim, an employee must show that she suffered an adverse employment action because she exercised an FMLA right, such as requesting or taking FMLA leave. That required Guzman to show that she was discharged because she requested FMLA leave. She couldn’t show that because Peltier made the discharge decision on March 8 without any knowledge that she still suffered from sleep apnea or was requesting FMLA leave.
Guzman claimed that Brown County subjected her to stricter discipline than similarly situated employees who hadn’t exercised their FMLA rights or didn’t have a disability. The court looked at the individuals with whom she sought to compare herself and concluded that they weren’t similarly situated to her for a number of reasons. Some had different supervisors. Some had different disciplinary records. Additionally, there was no evidence of how many times the other employees were late or how late they were. Without such evidence, the court couldn’t conclude that they were similarly situated to Guzman. Guzman v. Brown County, No. 16-3599 (7th Cir., Mar. 7, 2018).
Although the FMLA is one of the trickiest federal employment laws, the Guzman case is a helpful guide for how to approach a couple of primary elements of FMLA claims. It’s the employee’s burden to show that she suffers from a serious health condition. Using an FMLA certification form will generally allow you to determine what condition is being claimed. The certification form should also permit you to determine whether the condition meets the definition of a serious health condition— inpatient treatment or continuing treatment by a healthcare provider.
The Guzman case is also helpful in evaluating compliance with the FMLA’s notice requirements, including the occasional argument that an employer had constructive notice based on an abrupt, significant change in an employee’s behavior. Finally, this case demonstrates that when you make a job decision—such as termination—without knowledge of the employee’s medical condition and her desire to take FMLA leave, you don’t need to revisit the decision based on information learned after it was made.