Employee fired for violating terms of optional short-term disability program can proceed with FMLA claims

An employee who was terminated for failing to comply with the requirements of an optional disability program in which he did not want to participate could proceed with his FMLA interference and retaliation claims, a federal district court in Tennessee ruled. The court denied his former employer’s summary judgment motion, finding evidence that it never approved his request for FMLA leave and instead placed him on the disability program, then fired him because he allegedly violated some of the terms of the program.

FMLA leave request.

When the employee became ill in June 2013, he emailed his supervisor that he intended to take 36 hours of FMLA leave and would complete the requisite paperwork. His supervisor responded, “OK.” Three days later, a nurse practitioner diagnosed him with a viral infection and filled out an FMLA certification, in which she verified he was ill and could not perform his job because of his illness. The employee continued to be paid through the company’s short-term disability plan, which provided for situations when employees could not work because of illness. The plan stipulated that if an illness lasted more than 36 hours, employees must provide medical evidence confirming their disability and submit certain paperwork within two days of the employer requesting it.

Not cleared to return.

On June 17, the employee attempted to return to work. However, a nurse in the company’s work reentry department examined him and sent him home, informing his supervisor that the employee’s medical condition required not only his absence from work, but medical clearance to return. A few days later, he returned to his physician’s office, where a nurse practitioner again documented his illness as a viral infection. The employee asked his physician to complete a second FMLA form and send it to his employer. In early July, a nurse practitioner prepared another FMLA certification, which stated that he was unable to work through July 11. The employee heard rumors that the employer planned to fire him, but his supervisors expressed no issues with his FMLA leave, so he believed he was on FMLA-protected leave.

Paperwork required.

Later in the month, a company nurse told the employee she had not received necessary paperwork from his medical providers concerning his short-term disability. Based on that conversation, the employee believed the issue was documentation of disability leave, not FMLA paperwork. So he twice obtained new disability and FMLA paperwork, and personally delivered them to the company’s medical department. In August, however, the medical department nurse insisted she had not received his disability paperwork. The employee claimed she told him she only needed his disability, but not his FMLA paperwork. The nurse obtained his medical records, which contained neither the disability paperwork nor evidence of medical restrictions. The employee then obtained new FMLA and disability forms detailing his medical restrictions, stating the restrictions would be in effect for another one or two weeks, and explaining that he had a mandatory follow-up appointment in three days. Again, the employee personally delivered the forms to the company nurse.

Before his follow-up appointment, the employer terminated the employee, stating he did not comply with the process of providing evidence of disability, so his extended absence was not in compliance with the short-term disability plan. The employer asserted that after firing the employee, it discovered he had held side jobs with other employers, which constituted additional grounds for termination under the plan. The employee filed suit, alleging FMLA interference and retaliation.

FMLA interference.

The court denied the employer’s motion for summary judgement on the FMLA interference claim, rejecting its argument that it never denied the employee’s request for FMLA leave, so it could not have interfered with his FMLA rights. That the employer did not expressly deny his FMLA request did not establish that it did not interfere with his FMLA rights, though. The evidence showed that the employer did not permit him to take the 12 weeks of FMLA leave to which he was legally entitled. He had not yet exhausted his FMLA leave, and he gave the company’s medical department a new medical certification which entitled him to additional FMLA leave. Yet, the employer fired him just two days later.

The employer contended that it fired the employee for failure to show a disability under the short-term disability plan, unrelated to his FMLA rights. However, the court found evidence from which a reasonable jury could find he did not violate the plan. He submitted the disability paperwork within two days of the employer requesting it, which was within the timeframe required by the plan, and the paperwork contained work-related restrictions. It was factually disputed whether the employee properly complied with the employer’s previous requests for documentation, which required a jury’s assessment.

After-acquired evidence.

The court also rejected the employer’s argument that after-acquired evidence of the employee’s side jobs which violated the company’s short-term disability plan, entitled it to summary judgment on the FMLA interference claim. The employer claimed the employee had operated a newspaper while he was receiving disability benefits, and that it would have fired the employee had it known at the time. However, the employee operated the newspaper-he was not an employee of the newspaper, and the disability plan only prohibited working as an employee of another employer while on the plan.

The employer also contended that the employee helped his father with cattle-ranching while on disability, but the employee denied it. Although the employee stated that ranching activity was year-round, the evidence did not clearly establish that he engaged in ranching specifically during the time he was on disability.

FMLA retaliation.

The court also refused to dismiss the employee’s FMLA retaliation claim. The employer argued there was no causal connection between his FMLA-protected activity and his termination because it fired him for failing to comply with the requirements of the disability plan. However, the employee presented evidence not only of close temporal proximity between his FMLA leave and his discharge, but also that he did not initially apply for disability benefits, and the plan did not require him to do so while on medical leave. The employer could not force him to accept a paid leave program in lieu of FMLA leave when the employee indisputably requested FMLA leave.

There was no evidence the employer placed the employee on FMLA leave even though he requested it. Rather, the employer forcibly placed him on its short-term disability plan for which he did not originally apply, and for which he filled out paperwork only at the employer’s request. A jury could find the employer’s stated reasons for discharging him were pretextual given that it fired him for not honoring the terms of an optional disability plan in which he did not voluntarily participate.

SOURCE: McMurray v. Eastman Chemical Co. (E.D. Tenn.), No. 2:16-CV-270, April 16, 2018.
Visit our News Library to read more news stories.