Doctor’s note plus knowledge of workplace incident may have been sufficient notice under FMLA

Disagreeing with a district court’s determination that a police officer failed to provide sufficient notice of a serious condition qualifying him for intermittent FMLA leave, the Sixth Circuit U.S. Court of Appeals, in an unpublished opinion, found that a doctor’s note limiting his workday to eight hours together with the employer’s knowledge of a serious health-related incident at work (chest pains) provided evidence that his superiors were aware of his potential FMLA-qualifying condition. Further, because he provided sufficient evidence of the elements for a constructive discharge, the Sixth Circuit found that he established a fact issue as to whether he was denied a benefit under the FMLA. The grant of summary judgment on his FMLA retaliation claim was reversed as well because a reasonable jury could conclude he was targeted in such a way as to compel him to resign. The case is Festerman v. County of Wayne.

Doctor’s note. The employee provided inmate security in the county employer’s jail facilities. Due to understaffing, involuntary overtime was common and deputies did not have the right to refuse overtime assignments. On March 3, 2012, he was taken to the hospital after experiencing chest pains and shortness of breath at work. Six days later, his doctor provided a written note limiting his working hours to eight per day. He also treated the employee for anxiety disorder.

New policy. Although the county initially accommodated his limited working hours, on March 29, the sheriff’s personnel announced that officers with doctor’s notes limiting their working hours would be assigned overtime shifts just as any officer and that refusal to work a mandatory shift would result in the issuance of a conduct incident report (CIR). Subsequently, the employee received CIRs on April 6 and April 8. On April 9, he met with two HR employees, who advised him to complete a leave of absence form in order to be approved for intermittent FMLA leave, which he completed and submitted on May 3.

Alleged retaliation. On May 7, the department recommended that leave be granted subject to final approval. The leave coordinator then requested further clarification on his doctor’s limitation of hours but the employee resigned before a response from his doctor was received. He alleged that his commander recommended he be referred for administrative review regarding his failure to follow a direct order as documented by the two CIRs and that the county modified his job description by making mandatory overtime an essential job function. He also complained when another officer wore a t-shirt to work that read “I refuse – I have a note from my mom.” He subsequently sued, asserting interference and retaliation claims in violation of the FMLA and the district court granted the county’s motion for summary judgment.

Interference. Observing that the county provided oral notice of FMLA eligibility to the employee during the April 9 discussion with HR and written notice of eligibility in the leave packet provided to him on April 13, and that the county did not require him to work overtime or issue CIRs subsequent to the April 9 discussion, the court noted that at issue was whether submission of his doctor’s note on March 12 satisfied the FMLA’s notice requirement. Whether a doctor’s note amounts to sufficient notice depends on whether, in context, it provides enough information for the employer to reasonably conclude that the employee’s prescribed leave is due to an FMLA-qualifying condition, said the court.

Circumstances surrounding leave. While the note here expressly disclosed a requirement of limiting the employee’s work hours, it failed to disclose the condition giving rise to this requirement or any additional prescribed treatment. Thus, in isolation it may not have provided sufficient notice. The circumstances surrounding the initial leave however, provided additional context to the doctor’s note and were evidence that the employee’s superiors were aware of his potential FMLA-qualifying condition, explained the court. Specifically, the incident of chest pain at work led the employee to seek treatment for anxiety disorder and this treatment was documented in part in the note he submitted. Thus, given the county’s knowledge of a serious health-related incident that occurred at work and the doctor’s note advising that the employee’s workday should be limited to eight hours per day, a reasonable jury could find that he provided sufficient notice of an FMLA-qualifying serious health condition.

And while the lower court found that the county’s usual notice procedure required submittal of a written leave of absence request, the court noted evidence that prior to at least March 28, the county’s unwritten practice was to grant leave based solely on the submittal of a doctor’s note. Further noting that the county initially accommodated the employee, the court found a reasonable jury could conclude that he complied with the county’s usual notice procedures if it in fact granted his requested leave in practice. Finally, there was evidence that the requirement of a written leave request was part of a policy change that occurred on or about March 28 and that that March 29 was the first time the county communicated this requirement to the employee. Thus, taken as a whole, there was sufficient evidence to support a conclusion that the employee complied with the county’s usual notice procedures as they existed on March 12, if any existed at all, said the court, finding that he raised a fact issue as to whether he satisfied the FMLA notice requirements on March 12.

Denial of FMLA benefits. As to the lower court’s finding that the employee’s interference claim failed for lack of evidence that he was denied a benefit under the FMLA, the court noted that his assertion that he was prejudiced by the alleged hostile environment that ensued after his meeting with HR on April 9 raised the novel question of whether a constructive discharge can suffice as harm resulting from an employer’s interference. Explaining that the FMLA must be construed broadly to extend coverage, and its exclusions or exceptions should be construed narrowly, the court found that “it would be inconsistent with the purpose of the Act to bar an employee who was forced to quit his position from seeking an interference claim on grounds that the employee’s forced resignation obviated any need by the employer to provide the employee benefits to which he would otherwise be entitled.” Thus, a fact issue existed as to whether he was denied a benefit under the FMLA.

Retaliation. As to the employee’s contention that he was constructively discharged for seeking FMLA leave, the appeals court found that the lower court discounted the significance of the t-shirt that read “I refuse – I have a note from my mom,” as the employee not only provided evidence of his own outrage at the county’s handling of the matter, he tendered evidence that several of his colleagues were offended by this incident as well. Moreover, observed the court, his evidence showed that instead of investigating whether the officer who wore the shirt violated jail policies by wearing it while on duty, the investigating sergeant focused her efforts on the motives of those who complained.

Trouble makers. Further, there was evidence indicating that during her interview of the employee, the sergeant repeatedly asked why he refused to work overtime even though she knew his leave requests were medically related. She also wanted to know who told him about the t-shirt (which he did not personally see) and whether he had mentioned any other names in his complaint. In addition, she purportedly instructed him not to discuss the investigation with anyone, but then dropped it soon thereafter without making official recommendations or findings. Finally, there was evidence showing that the employee later learned she had accused the officer who told him about the shirt—rather than the officer who wore it—of creating the problem and that another supervisor had also referred to the employee and the others who complained as “trouble makers.”

The court also found it significant that the lower court did not consider the effect that the modification of his job requirements—increasing the workweek hours from 40 per week to 40.5 hours per week and requiring mandatory overtime as part of the essential job functions—had on his working conditions. These modifications, which meant that he could no longer fulfill the requirements of the position without contravening his doctor’s advice, occurred just one day after the commander was notified that the employee and three other officers had been granted informal accommodations based on doctors’ notes and appeared to closely track the time limitations placed on him by his doctor. Consequently, a reasonable jury could find he was targeted in such a way as to compel him to resign his position, said the court, finding that because the changes were made in close proximity to the occasions when he submitted notice of his FMLA qualifying condition, a reasonable jury could also find that a causal connection existed between his leave request and these changes. Thus, given the totality of the evidence submitted by the employee, a reasonable jury could find that intolerable working conditions existed sufficient to compel a reasonable person to resign. Accordingly, the court reversed the lower court’s decision.

Visit our News Library to read more news stories.