Despite letter referencing FMLA leave, employee was not eligible for leave under the Act

An administrative assistant who was not allowed to return to work after taking multiple leaves of absence related to her multiple sclerosis (MS) was not eligible for FMLA leave because she did not dispute that the defendants employed fewer than 50 employees within 75 miles of her worksite and, even though the employer referenced the exhaustion of her “FMLA” leave by letter, she did not show that she detrimentally relied on the misrepresentation so estoppel did not apply. The federal district court in New York therefore granted summary judgment against her FMLA claims. Her ADA and state law discrimination and non-accommodation claims failed because her frequent absences rendered her unable to perform essential job functions.

The employee began working as an administrative assistant in 2008 at a facility run by a subsidiary of Dow Chemical. Eighty percent of the employee’s duties required her to be physically present at the facility. In April 2011, she was diagnosed with MS. She alleged that, upon learning of her diagnosis her two supervisors sent her home and placed her on short-term disability because they were concerned she might pose a safety risk.

Multiple leaves.

The employee experienced exacerbations of her condition, which came without warning and could last for weeks, during which she could not work, and did not know for how long she would need to be out. When she suffered an exacerbation in April 2011, her supervisors sent her home, and she did not return until July. She missed more work due to an exacerbation in the spring of 2012, and a third exacerbation that summer, which caused her to be out for over a month. The employee also missed work for vacation and illnesses unrelated to her MS. By mid-September 2013, she had designated 213 hours of absences that year as being for medical leave.

Placed on short-term medical leave.

Some of the employee’s work could not wait in her absence, and was performed by outside contractors, and by other employees, who consequently had to work overtime and forgo vacations. In mid-September, the company convened a medical review board to assess her employment status, Because the employee had exhausted all her short-term medical leave, and her absences had a negative impact on the facility’s operations, the board, paradoxically, decided to place her on short-term medical leave, which allowed her to maintain her salary and benefits until February 2014, and to apply for long-term medical leave.


Ten days after the meeting, her supervisors and HR told the employee she was being placed on short-term medical leave, and that they were “letting [her] go that day” and “to get [her] belongings and not come back on the property.” Five days later, HR sent her a letter stating that she exhausted her 12 weeks of FMLA leave, and that if she could not return to work by February 7, 2014, then she would be placed on long-term disability if approved, or terminated if not approved. The letter appeared to contradict HR’s earlier statement that she could not return, and made no mention of her exhausting her short-term leave, which was the purported reason for the review board terminating her employment. Soon after, the company posted her position and hired a replacement.

On December 16, the employee applied for long-term disability, which was denied for insufficient evidence. She also filed suit alleging FMLA interference and retaliation, as well as disability discrimination and failure to accommodate under the ADA and state law.

FMLA interference and retaliation.

The court granted summary judgment against her FMLA interference claim, concluding that no reasonable jury could find she detrimentally relied on Dow’s misrepresentations regarding her FMLA eligibility. The employee had alleged that Dow interfered with her FMLA rights by not fully restoring her to her position upon her return to work from her final leave, and by preventing her from taking additional leaves of absence under the FMLA due to her termination. However, she could not show she was eligible to take FMLA leave because the company employed fewer than 50 workers at, or within 75 miles of, its facility.

The employee’s argument was unavailing that the company should be equitably estopped from disclaiming her eligibility because it treated her as an eligible employee. Although Dow may have misrepresented to her that she was eligible for FMLA leave, the employee could not show she relied on the misrepresentation, because she would have taken her final leave of absence in August 2013 even had Dow not misinformed her that she was eligible for FMLA leave. When she experienced an exacerbation, she was unable to work, and so would have had to take leave regardless of whether it was FMLA-protected.

Similarly, the employee could not succeed on her FMLA retaliation claim because she was not eligible for FMLA leave, and so she exercised rights not protected by the FMLA.

ADA, NYSHRL claims fail.

The court also dismissed the employee’s ADA and New York State Human Rights Law failure to accommodate claims, because there was undisputed evidence that the employee could not perform the essential functions of her job, with or without reasonable accommodation. Most of her duties required her to be physically present at the facility, and her disability prevented her from be physically present on a regular basis. The employee’s claims that Dow terminated her because of her disability also failed because she could not perform the essential functions of her job.

SOURCE: Schuler v. The Dow Chemical Co. (W.D.N.Y), No. 14-CV-1043-MJR, January 3, 2018.
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