Dispute over injured employee’s ‘resignation’ advances his FMLA claims

Reasoning that it was clearly disputed whether an employee voluntarily resigned while he was restricted from working due to an injured knee, a federal district court in Michigan refused to dismiss his FMLA interference and retaliation claims on summary judgment. The employee’s request for time off work, coupled with a doctor’s note from an occupational health physician to whom he was sent, he claimed, by his employer were enough to create an issue of fact as to adequate notice of his request for FMLA leave. However, his disability discrimination claims were dismissed because even under the more lenient ADAAA standard, his nine-day work restrictions due to a knee injury, without more, did not qualify as a disability.

On-the-job knee injury.

It was apparently undisputed that the employee injured his knee at work on August 10 and visited a physician who excused him from work until the following Monday, August 15. What happened next was in dispute: Because he was still in pain, the employee alleged his employer sent him for a follow-up appointment with an occupational health physician, who gave him permission to return to work with some restrictions (no climbing, limited walking, and working only in a seated position), and with a follow-up appointment on the 19th. He said he gave the note to his supervisor, who told him the company could not accommodate the restrictions so he could not work. He said he asked for leave until the 19th, when the restrictions were up, and that his supervisor granted it. He also alleged that his supervisor volunteered that his employer “does not like when employees get injured at work and they usually find a way to terminate [them].”

Voluntary resignation?

Claiming the employee never returned to work after the 15th, the employer denied that the employee ever provided the second physician’s note to his supervisor or that the supervisor granted leave and made any comments. Instead, while both parties agreed that the employee called in “sick” on August 16-19, the employer contended that the employee quit on August 17 in a conversation with its HR representative, saying he didn’t want to work there and didn’t want to do “this type of work any longer.” He said he told her he was calling in sick because his supervisor told him there was no work for him with the restrictions. As for his calls on the next two days, he said he was continuing to call in sick; HR said he was asking for his job back.

Contending primarily that there could be no FMLA interference or retaliation, or discrimination claims, because the employee voluntarily quit, the employer moved to dismiss or for summary judgment. Treating the motion as one for summary judgment, the court found that whether or not the employee had resigned was a material fact dispute. The employer’s evidence was its HR rep’s notes; its claim that a union rep had tried to negotiate the terms of the employee’s resignation (as reflected in the HR notes), and that the EEOC dismissed his charges. But there was no affidavit or testimony from the union rep, the court pointed out. In addition to the employee’s affidavit, he also pointed to circumstantial evidence tending to show he had not resigned: first, that the HR notes also reflected he had called in “sick” on the 18th and 19th; the occupational physician’s note from August 19th clearing him to return to work; and the fact that he received unemployment benefits (which are not available under Michigan law if an employee voluntarily quits). Because the employee’s affidavit alleged “the who, what, where, when, and how of the FMLA and ADA violations,” including specific conversations he had with HR and his supervisor, and he also cited the circumstantial evidence, the court found a triable issue of fact as to whether he resigned.

FMLA notice.

Although the employer argued that the employee could not show he provided notice of his need for FMLA leave and that he refused to provide certification of his injury, that too was in dispute, said the court. The employee clearly provided the first physician’s note on August 10; a jury could find that his request for time off work coupled with that doctor’s note was enough for his employer to realize that “an FMLA event” had occurred. And the employer provided no evidence that it ever requested certification from the employee or explained the consequences if he did not provide the certification.

No disability.

But what amounted to a nine-day work restriction for the employee did not qualify as a disability, concluded the court, even under the more lenient post-ADAAA regulations, under which the ADA may cover impairments lasting “fewer than six months”-but only if they are “sufficiently severe.” While the employee submitted two doctor’s notes, there was no diagnosis except “knee injury,” it was undisputed he was restricted from working for only nine days, and he submitted no documentation of surgery, medication, or therapy. Accordingly his disability-related claims all failed.

SOURCE: Morrow v. AI-Cares, LLC (E.D. Mich), No. 2:17-cv-10057, July 28, 2017.
Visit our News Library to read more news stories.