Articles Posted in FMLA

By Edgar M. Rivera, Esq.

On May 15, 2017, the District Court for the Northern District of Illinois denied the Township High School District 214’s motion to dismiss in Valdivia v. Township High School District 214, where Noemi Valdivia, a Hispanic high school secretary, claimed that co-workers’ derogatory comments about Hispanic students and their families forced her to resign.  She brings a hostile work environment claim based on race under Title VII of the Civil Rights Act of 1964 (Title VII) and an interference claim for defendant’s failure to inform her that she was eligible for 12 weeks of leave under the Family and Medical Leave Act (FMLA).

Ms. Valdivia began working at District 214’s Elk Grove High School in 2010. Although she claims that her coworkers had always made derogatory remarks about Hispanic students and their families, in September 2014, these remarks became more frequent. For example, one of her peers allegedly said that Hispanic people “came to America” and “want everything for free even though they have new cell phones and their nails done.” Another told Ms. Valdivia not to speak Spanish at work because they were in “America.” Ms. Valdivia claims that she complained to both the school principal and the assistant principal, but both told her there was nothing they could do since “the secretaries’ union was too strong.”

Lev Craig

Currently, there is no U.S. federal statute requiring employers to provide their employees paid family or medical leave. This year, with less than two weeks until the 2016 election, both candidates have set forth plans for paid family leave for the first time in a U.S. presidential election. Paid family leave is an issue which affects millions of voters, but has received comparatively little attention in the media and, until now, hasn’t been supported by a Republican presidential candidate.

The Family and Medical Leave Act of 1993 (FMLA) is a federal statute which entitles eligible employees to take 12 weeks of unpaid, job-protected leave within a 12-month period due to the employee’s own serious health condition, to care for a family member with a serious health condition, or to care for a new child. According to the Department of Labor, the FMLA is “designed to help employees balance their work and family responsibilities by allowing them to take reasonable unpaid leave for certain family and medical reasons.”

Yarelyn Mena

In David Brady v. Bath Iron Works Corporation, Bath Iron Works Corporation (“Bath Iron Works”) terminated David Brady, a long time employee, for drinking a beer with a co-worker while on FMLA leave. Mr. Brady alleged that Bath Iron Work’s termination of his employment violated the Family Medical Leave Act (“FMLA”).

In 2014, Mr. Brady began to suffer from mental health issues, including depression and anxiety, and took intermittent FMLA leave. On June 23, 2015, Mr. Brady again took intermittent FMLA to undergo treatment related to his mental health issues.

Yarelyn Mena and Edgar M. Rivera, Esq.

On April 27, 2016, the Second Circuit decided Legg et al. v. Ulster County et al., in which it reversed the Northern District of New York’s decision at summary judgment dismissing a pregnancy discrimination claim under Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act.  Legg arose after Ann Marie Legg, a corrections officer at the Ulster County Jail (“Ulster Jail”), requested an accommodation under Ulster Jail’s “light duty” policy.  Ulster Jail’s light duty policy allows employees suffering from medical conditions resulting from a line-of-duty injury to be reassigned to deskwork, i.e., to positions that do not include inmate contact.  Under the policy, pregnant women are not eligible for light duty; they must either continue to work “full duty,” use accrued sick or vacation time, or take leave under the Family and Medical Leave Act.

In 2008, Ms. Legg became pregnant.  Her doctor told her that her pregnancy was “high risk” and recommended that she “shouldn’t have direct contact with inmates.”  In accordance with her doctors’ recommendation, she requested that Ulster Jail allow her to work light duty and submitted a doctors’ note in support.  Although at first Ms. Legg received a denial letter in July 2008 stating that “[e]mployees are afforded light duty assignments at the Sheriff’s discretion for work-related injuries/illnesses only,” she was later informed that Ulster Jail would grant her request once she submitted a revised doctors’ note indicating that she was in fact able to work without restriction.  Ms. Legg complied and submitted the letter. For a time, Ulster Jail assigned Ms. Legg to light work; however, around August 2008, they forced her to work with inmates again.  In November 2008, Ms. Legg, now seven months pregnant, was caught in the middle of a physical fight between two inmates during which one inmate bumped into her as he ran past her.  After this incident, Ms. Legg did not return to work until after she gave birth.  Upon returning to work, Ms. Legg brought a lawsuit against Ulster Jail alleging pregnancy discrimination for denying her request for light duty.  Ulster Jail moved for summary judgment, arguing that light duty was only available for employees injured in line of duty and that all employees regardless of their gender or pregnancy status, were treated the same under that policy. The district court granted Ulster Jails’s motion and dismissed the case.

Edgar M. Rivera, Esq.

On March 17, 2016, in Graziadio v. Culinary Institute of America, the Second Circuit articulated the test for an employee-employer relationship with respect to Family and Medical Leave Act (“FMLA”) claims and clarified the standards for establishing prima facie cases in FMLA interference claims, FMLA retaliation claims, and association-disability claims under the Americans with Disabilities Act (“ADA”).

Cathleen Graziadio worked as a Payroll Administrator at the Culinary Institute of America (the “Institute”). On June 6, 2012, she took a leave under the FMLA to care for one of her sons who suffers from diabetes and took additional leave on June 27 when her other son broke his leg. The Institute took issue with the paperwork supporting her second FMLA leave and refused to allow her to return to work until she provided new documentation. Soon after, communication between Ms. Graziadio, Shaynan Garrioch—the Institure’s Director of HR—and Loreen Gardella—Ms. Graziadio’s supervisor—broke down, resulting in the Institute terminating Ms. Graziadio’s employment for abandoning her job.

Yarelyn Mena and Edgar M. Rivera, Esq.

Technology has changed how we communicate with one another: writing emails has replaced writing letters, and sending text messages, in large part, has replaced making calls. However, employees must be aware that their employers’ communication policies may not reflect these sociological changes, and failing to follow the letter of such policies can lead to warnings, termination, or, in some cases, complicate an employee’s sustainable discrimination claim. Delbert Hudson, a former employee of Tyson Fresh Meats Inc. (Tyson), learned this lesson the hard way.

Tyson’s attendance policy requires employees to “call their direct supervisor personally to report an unplanned absence or to report that they will be late.” On December 28, 2011, Hudson sent his supervisor, Hamdija Beganovic, a text message before the start of his shift, stating that he would not be at work that day and the following several days because he needed to see his doctor. Hudson was absent from work from December 28 until December 31, and received a doctor’s note on January 2 excusing him for the missed days in December and informing his employer that he would be absent from January 1 until January 7. On January 3, Hudson submitted the doctor’s note to Tyson’s Health Services Department and filled out a Leave of Absence Application pursuant to the Family Medical Leave Act (FMLA).

Yarelyn Mena and Edgar Rivera, Esq.

Imagine that you, your wife, or your partner becomes pregnant. Perhaps you will change your habits—quit smoking, quit drinking, maybe even quit seafood. But will you quit your job? That is a tougher decision. What is important to remember is that it is your decision to make, and not your employer’s. Employers often fail to recognize that a woman has the right to choose to seek time off before, during, and after a pregnancy, and to be able to return to work.

In Hemmerlein v. Bloomberg, L.P., plaintiff Megan Hemmerlein, a political on-air-correspondent for Bloomberg Television (“BT”), alleged that BT violated the Washington D.C. Family and Medical Leave Act (“DCFMLA”) by terminating her employment after she requested DCFMLA leave. After Ms. Hemmerlein informed Bloomberg Media Group’s chief executive officer, Ellen Uchimiya, that she was pregnant, BT pulled her from stories, uninvited her from important networking events, and gave her the first negative performance review she had ever received at BT. A few days into Ms. Hemmerlein’s DCFMLA leave, BT terminated her as part of “ongoing layoffs” and informed her that she could look for another position within the company. However, the other two on-air-correspondents, who were male, were not terminated and, when Ms. Hemmerlein inquired to management regarding the availability of other positions, she did not receive a response. Ms. Hemmerlein claims that her DCFMLA leave was a “motivating factor” in BT’s termination decision.

On November 10, 2014, the United States Court of Appeals for the 11th Circuit reversed a decision by the U.S. District Court from Northern Georgia, which had granted summary judgment to Defendant Henry County School District in Lightfoot v. Henry County School District(“the District”). Plaintiff Zaneta Lightfoot suffers from Sickle Cell Anemia, which causes her to experience sporadic “pain crises” and difficulty standing or walking. In March 2010 she applied for intermittent FMLA leave, which she took during the 2010-2011 school year. She then applied for an additional period of intermittent FMLA leave.

During the time of her eligibility for leave, the Principal and two Vice Principals of the school met with Ms. Lightfoot to give her a “letter of redirection,” a disciplinary document in which she was accused of “fail[ing] to work cooperatively with co-workers” and “fail[ing] to provide five days of substitute lesson plans.” Lightfoot claims that during this meeting her three managers revealed that their true reason for issuing the letter was her use of FMLA leave, stating that her medical absences had caused many of the problems described in the letter. Then Lightfoot received an overall evaluation of “unsatisfactory” in her next performance evaluation, was placed on a Performance Development Plan (“PDP”), and removed from her (paid) position as the school’s cheerleading coach. One of her classes was moved to a distant classroom, which required her to take several painful walks across the school each day and, when she requested accommodation, which Principal Cook denied because she “did not appear to be in pain.”

She next received a second letter of redirection, on which she was accused of falsifying a student’s grades–a charge for which no evidence was ever provided to the Court–and then informed in March 2013 that her employment was terminated. She then initiated her lawsuit, until on September 17, 2013 the district court found that the School District was an “arm of the state” and thus entitled to Eleventh Amendment immunity from actions within federal courts.

On September 30, 2014, the Equal Employment Opportunity Commission sued AmerisourceBergen Drug Corporation (“Amerisource”) for terminating Meron Debru, and failing to provide reasonable accommodation for her pregnancy-related disability, and ultimately terminating her employment, in violation of both the http://www.dol.gov/dol/topic/disability/ada.htm (ADA) and the Civil Rights Act of 1991.

The Commission claims in its complaint that Ms. Debru, a Reimbursement Case Advocate in the company’s Rockville, Maryland facility, was granted leave for the birth of her child, from April 25 through June 6, 2012. However, on June 6 her doctor did not release her to return to work, citing concerns about possible post-partum depression. She was referred her to a Professional Counselor, who confirmed the doctor’s suspicion by diagnosing Debru with post-partum depression. She then informed the company that she could not return to work, and would take additional unpaid leave.

When she did not return to work on July 15, 2012, the company filled Debru’s position. Then on August 1, 2012 they sent a letter informing her that she was terminated, effective August 1, 2012, because she had exhausted her six months of leave under the FMLA. She then informed them that they had been incorrect, since she had not actually taken more than six months of leave, and that she had post-partum depression.

On August 18, 2014, the Seventh Circuit Court of Appeals reversed a decision by the U.S. District Court for the Eastern District of Wisonsin to grant summary judgment to the defendant in Hansen v. Fincantieri Marine Group LLC. The plaintiff in this case alleged that his employer, Fincantieri Marine Group (“FMG”) interfered with his rights under the Family and Medical Leave Act and then terminated him in retaliation for exercising the same rights.

The key question for the Appeals Court in this case was whether the employer had the right to make Mr. Hansen’s FMLA leave conditional on his providing an expert opinion supporting his claim that his condition–depression–was serious and rendered him unable to perform his job. The Wisconsin District Court had accepted the Defendant’s argument that they were legally permitted to deny Mr. Hansen’s request for leave because i) the notification they received from Mr. Hansen’s doctor estimated that he would need intermittent leave when his depression flared up, about four times every six months for 2-5 days each time, but he took leave exceeding that predicted amount of time; and iii) the evidence Mr. Hansen provided to the company substantiating his FMLA claims did not include an expert medical opinion. The Appeals Court rejected this conclusion and remanded the case back to District Court.

FMG has an attendance policy, under which employees accumulate points for missed work time. An employee gets one point for each time they miss more than four hours of a scheduled work day, and is subject to termination if they have ten points. Plaintiff Hansen had nine points, then requested FMLA leave for two additional episodes of depression. If he had been granted FMLA leave, these two absences would not have counted toward his attendance points. However, FMG denied his requests, because he had “exceeded his frequency” as outlined in his doctor’s notice to the company and his certification for additional FMLA leave was incomplete or insufficient. He received additional points and was terminated.