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Courts Consider Questions Concerning FMLA Coverage Of Stress, Depression

Date: February 9 2001

Federal, State Courts Consider Questions Concerning FMLA Coverage Of Stress, Depression

Four different courts have recently evaluated the relationship between stress or depression and the Family and Medical Leave Act (FMLA):  

  • A federal district court held that a lawyer who suffered from depression when his wife left him had raised issues that must be heard in court, specifically whether the law firm he worked for decided to discharge him before or after his medical leave.
  • A second federal district court, ruling in a similar case, found that a union business agent who fell into clinical depression when his wife left him had been fired legitimately by the union employer because he had not performed his job adequately.
  • A circuit court of appeals dismissed the case of a man stressed by his co-workers'' taunts because he had not given his employer enough information about either his eligibility or his medical condition to be covered by the FMLA.
  • And an Oregon state court ruled that a custodian with job-related depression should not have been denied medical leave and terminated.

Haffner v. Bryan Cave

A lawyer who took a leave of absence for emotional distress raised enough questions of fact to have his case tried, the U.S. District Court for Southern New York decided Aug. 15. The court refused to award the employer summary judgment on the lawyer''s claims under the Family and Medical Leave Act (FMLA) and various New York state laws.

Steven Haffner began working for Bryan Cave LLP, a law firm, in 1988. He received generally good evaluations by the firm, including statements that his potential for partnership was "excellent," but his evaluations also contained many negative comments about his timeliness and dependability.

In January 1994, Haffner began to suffer emotional distress in connection with marital problems and eventual divorce proceedings. He asked for a lighter workload at the time because of his "mental state and disability," claiming that the breakup of his marriage had "triggered the onset of a serious and debilitating depression." Haffner said his supervising attorneys, Robert Dwyer and Michael Biggers, had been aware of his problems from the beginning.

In April, Biggers and another partner informed Haffner that he would not be eligible for consideration as partner for another year, because he needed to increase the number of hours he billed. During the summer of 1994, Haffner asked the firm about disability insurance and leave policies, and visited therapists covered by the firm''s health insurance plan.

Biggers testified that he and Dwyer had decided to terminate Haffner in December 1994, before Haffner had taken disability leave. Dwyer did not recollect the meeting.

However, the court noted that Haffner was called while on vacation in late December to handle a client matter, indicating the firm still considered him an employee.

The firm testified that on Jan. 10, 1995, the entire partnership met and decided, without dissent, to discharge Haffner. At that time, Bryan Cave contended, Haffner had not yet asked for a leave of absence. The court said the record was unclear on both points ˜ when the firm decided to discharge

Haffner, and when the employee requested disability leave. Two weeks later, Dwyer and Biggers met with Haffner and told him he would not make partner, according to them. A contemporaneous memo affirmed that Haffner had been told the firm was about to terminate him. Haffner remembered the meeting differently; he recalled that he had been told his future at Bryan Cave was "bleak" but not that he had been told he would not make partner.

Haffner took disability leave for 12 weeks beginning Feb. 1, 1995, during which time he received his full salary. On April 24, Haffner told Biggers that he was ready to return to work, but three days later he was discharged. He received severance payments through September of that year.

In addition to his claims under the FMLA and New York Labor Law, which survive, Haffner sued for reimbursement of expenses, bonuses, breach of contract, and breach of the implied covenant of fair dealing. However, the court dismissed all these claims as being without foundation.

The court found that under the FMLA, Haffner raised issues that need to be examined in a trial, including the following:

  • whether the firm decided to discharge him before or after he took the medical leave of absence; and
  • whether the reasons the firm gave for discharging Haffner are pretextual.

Under the New York Labor Law, he also raised concerns about whether the firm believed that Haffner was disabled when it decided to discharge him, and whether it could have provided reasonable accommodation instead. The court said enough issues of fact are raised by the contentions of the parties that the case should be tried. (Haffner v. Bryan Cave LLP, S.D.N.Y., 98 Civ. 0552 (DC), Aug. 15, 2000)

Ogborn v. UFCW

A former employee of the United Food and Commercial Workers Local No. 881, AFL-CIO, (UFCW) allegedly discharged for poor performance, sued under the Family and Medical Leave Act (FMLA) on the basis that he had been denied 12 weeks of medical leave and reinstatement to his job as a union business representative. But in a Sept. 25, 2000, decision, the U.S. District Court for Northern Illinois held that "no reasonable trier of fact could find that the stated ground for plaintiff''s discharge" ˜ poor performance ˜ was not the actual reason for his discharge, rather than his taking medical leave.

The business agent, Jerry Ogborn, worked for the local or a predecessor union from about 1980 until he was discharged Oct. 3, 1997. The parties agreed that Ogborn''s most important duty was filing grievances against store-employers on behalf of food and commercial workers represented by the union. The local claimed that Ogborn failed to properly file and process grievances, and he admitted that he filed fewer than other business representatives did, explaining that he preferred to visit the stores where members worked to resolve grievances informally. Ogborn also had problems filing grievances timely, and the local received complaints from union members about his failure to follow up on grievances.

Ogborn was counseled for poor performance on a number of occasions, and warned that he would be terminated if his work did not improve, but he also received pay increases tied to job performance on at least four occasions. He had been suspended on several occasions, the last time in August 1997. On Aug. 20, 1997, union vice president Steven Powell met with Ogborn and criticized him for the limited number of grievances he had filed during the preceding year, telling the employee he should look for a new job.

After Ogborn visited a doctor and stopped going to work five days later, other union employees had to pick up and complete at least seven grievances that had been assigned to Ogborn.

On July 4, 1996, Ogborn had learned that his wife was having extramarital affairs. Later in July, she filed for divorce, and received custody of the couple''s daughter. Ogborn moved into his parents'' home with his son. Although it was not clear when Ogborn''s severe emotional problems began, he did not seek medical help until over a year later, when he visited Dr. Dan Clark on Aug. 25, 1997, the last day of his three-day suspension. The doctor diagnosed clinical depression and prescribed Prozac and sleeping pills, among other medications. Ogborn did not return to work after that. While he was on leave, he faxed to the local three pages of medical records indicating Dr.

Clark''s diagnosis and informing the employer that he would be off work until further notice. The employer asked for more documentation, and received a form signed by Dr. Clark, stating that Ogborn should be off work until further notice because of his depression.

Local 881 put Ogborn on medical leave for about six weeks, and then discharged him Oct. 3, 1997. Ogborn was unable to show that his depression prevented him from working after early October. Ogborn later sued, contending he had been denied the 12 weeks of leave provided by the FMLA, and further denied the right to reinstatement.

Ogborn''s discharge was heard by the union''s executive board, standard procedure at UFCW. At the board meeting, union vice president Powell told board members that he had received no "written narrative" explaining why Ogborn was off work, neglecting to mention that he had received faxed medical records and a form signed by Ogborn''s

doctor. Powell also told the board something he knew to be untrue, the court noted ˜ namely, that a store Ogborn represented had closed, and that the union had to reopen the store in its records and revisit it after a nine-month absence by business representatives. Not only had the store not been closed, but it had been visited regularly by union representatives during the nine-month period in question, the court said.

The court noted that the FMLA does not accord an employee any right, benefit or position greater than he or she would have been entitled to had he or she not taken medical leave, citing Rice v. Sunrise Express Inc., 209 F.3d 1008 (7th Cir. 2000) (see App. III, Case

No. 210). The employer''s burden in such a case is only to produce an alternative reason for the discharge, and "[t]he Local has proffered a legitimate, nondiscriminatory reason for plaintiff''s discharge," the court held. To outweigh that assertion, Ogborn had to present either direct evidence that he was discharged for an illegitimate reason, or that the employer''s reason was less than sincere. There is no genuine dispute that Ogborn''s processing of grievances was deficient, the court said, nor that grievance processing was his most important duty. Against that, Ogborn presented only the assertion that the union vice president added false reasons to the legitimate grounds for discharge. There is no evidence that this false assertion determined the executive board''s decision to uphold Ogborn''s discharge, the court said, granting the union summary judgment. (Ogborn v. United Food and Commercial Workers Local No. 881, N.D. Ill., No. 98 C 4623, Sept. 25, 2000)

Bulmer v. Yellow Freight

The 2nd U.S. Circuit Court of Appeals affirmed a lower court decision that a truck driver who was discharged while he was recovering from stress caused by co-workers'' taunts had not given his employer enough information about his condition to alert it to his need for medical leave. Further, he failed to mount a challenge to the employer''s contention that he had not worked 1,250 hours in the year preceding his medical leave and hence was ineligible for FMLA coverage.

John Bulmer worked for Yellow Freight Systems Inc. as a truck driver. In August 1993, Bulmer struck his head on a hanging flower pot in the lobby of a motel where he was staying during a layover. He took a leave of absence and filed for worker''s compensation benefits. After he returned to work in September, Bulmer was "mocked and ridiculed about his accident," in the words of the court, and was called "Flower Pot King," a nickname that was logged next to his name in the company''s national computer network.

By November 1993, Bulmer had begun to experience stress and paranoia from the humiliation occasioned by his co-workers'' taunts, he testified. Almost a year later, on Sept. 8, 1994, Bulmer burst into tears while telling his operations manager, John Sexton, about the "Flower Pot King" nickname in the computer network. Bulmer threatened that "he wanted to kill somebody and then take somebody''s head off at the same time." The employee then used accrued time off for two weeks'' absence between Sept. 10 and Sept. 23, 1994. During that period, on Sept. 19, Sexton scheduled a meeting with Bulmer and his union representative, Robert Uhrig, to apologize for the computer nickname. Bulmer drove to Yellow Freight that day, but turned around and drove off before the meeting could be held after telling another co-worker he could not face Sexton and Uhrig. He did not go back to work.

While he was absent, Bulmer did not provide the employer with any kind of medical certification or documentation about his condition, or even a verbal excuse, refusing to come to the phone when Yellow Freight called his home. His wife told the employer''s dispatcher, who called to say that if Bulmer didn''t go back to work he''d be terminated,

that Bulmer was "too sick to come to the telephone." On Oct. 1, 1994, Yellow Freight mailed a seven-day warning, telling Bulmer his employment would be terminated unless he could immediately prove illness or injury. Bulmer signed for the letter on Oct. 4. On Oct. 7, Bulmer was voluntarily admitted to a psychiatric hospital, where he stayed until he was released on Oct. 24. At the end of October, he met with his attorney who issued a letter to Yellow Freight requesting FMLA leave. However, Yellow Freight terminated Bulmer because of his failure to respond to the seven-day warning.

Bulmer sued in February 1995, claiming that his rights under the FMLA had been abridged. The district court ruled that Yellow Freight had not been given enough information to establish either Bulmer''s eligibility or his need for leave to take care of a serious health condition.

The appeals court found that although Bulmer had had plenty of notice that Yellow Freight challenged his eligibility for FMLA coverage, he failed to document that he had worked at least 1,250 hours between Sept. 23, 1993, and Sept. 22, 1994. However, even assuming for the sake of argument that Bulmer had not been required to establish his eligibility, the

circuit court found that he had not given his employer enough information to "reasonably apprise" it that he was asking for time off for a serious health condition. A doctor testified that Bulmer had been capable of giving notice of his medical condition after receiving the seven-day letter on Oct. 4, yet he did not do so. Simply having one''s wife tell one''s employer over the phone that one is sick and will not be going to work was judged to be inadequate notice of a serious health condition in Manuel v. Westlake Polymers Corp., 66 F.3d 758 (5th Cir. 1995) (see App. III, Case No. 8). The appeals court affirmed the district court''s grant of summary judgment to the employer. (Bulmer v. Yellow Freight Systems Inc., 2d Cir., No. 99-9252, May 16, 2000)

Centennial School Dist. v. Oregon BOLI

A custodian driven to depression when required to work at a particular school had a serious health condition making him eligible for leave under the Oregon Family Leave Act (OFLA), the Oregon Court of Appeals ruled Aug. 30. Even though custodian Dennis W. Frederick''s symptoms were tied to a workplace rather than a specific duty, because the school district had defined his job as working at the school that made him sick, he was eligible for leave.

Frederick had worked as a custodian for the school district since 1993 when, in July 1996, his assignment was changed from full-time at a middle school to two four-hour shifts at two different elementary schools, Pleasant Valley and Lynch Meadows. Frederick found the "team-oriented" atmosphere at Pleasant Valley agreeable, but he was unhappy at Lynch Meadows because of what he saw as a lack of cooperation among the custodians there, and his supervisor''s failure to remedy the situation. The court noted that "because complainant took his work seriously, this greatly upset him." His conflicts with other workers at Lynch Meadows drove Frederick to a state of depression and contemplation of suicide, inability to sleep, anxiety attacks, chest pains, shortness of breath and vomiting. "Complainant sometimes cried when he called his wife during his breaks at work," the court said.

On Oct. 8, 1996, Frederick saw a clinical psychologist, Eric Mueller, who began counseling him on a weekly basis, in addition to prescribing antidepressants. A week later, Charlene Harris, the district''s director of human resources, sent Frederick a letter informing him that he was eligible for both federal Family and Medical Leave Act (FMLA) leave and leave under the OFLA due to his serious health condition. In connection with certifying Frederick''s need for leave, Mueller returned a medical form to the school district stating that Frederick''s major depressive symptoms could take four to six months to resolve with counseling, medication and relief of stress at work. He said Frederick should work part-time in a low-stress setting.

For the next three months, Frederick worked half-day shifts at Pleasant Valley, refusing to work at Lynch Meadows. In January 1997, Harris told Frederick that his FMLA leave had expired, although the OFLA ˜ like the FMLA ˜ allows 12 weeks or 480 hours of leave, and he had used only half that. Harris told Frederick that in the future he had to either work four hours a day at Lynch Meadows if his doctor did not release him to full-time work, or return to his former assignment of four hours at each school, if he was released to work full-time. Mueller wrote to Harris that Frederick could work no more than six hours a day, four at Pleasant Valley and two at Lynch Meadows. He did not release Frederick for full-time work and Frederick did not report to Lynch Meadows for duty as ordered. The school district then terminated his employment. The Oregon Bureau of Labor and Industries (BOLI) reviewed the dispute and found for Frederick. The crux of the discussion in the appeals court was:

  • whether depression is a serious health condition, requiring the school district to grant Frederick the full 480 hours of medical leave;
  • whether the FMLA''s stipulation that a serious health condition require "continuing treatment" is analogous to OFLA''s requirement for "constant care"; and
  • whether inability to work at a specific job location is the same as being unable to perform a job function.

First, the court pointed out that the OFLA is patterned on the FMLA, and provides eligible employees with leave for a serious health condition. When enacting the OFLA, the Oregon legislature "expressly provided that the OFLA provisions ''shall be construed to the extent possible in a manner that is consistent with any similar provisions of the [FMLA],''" the court noted, citing ORS 659.494(2). The OFLA describes a "serious health condition" as "an illness, injury, impairment, or physical or mental condition that requires constant care. ... Constant care means care wherever performed." The FMLA defines "serious health condition" as "an illness, injury, impairment, or physical or mental condition that involves ... continuing treatment by a health care provider."

In order to determine if the two laws refer to the same thing, the court turned to Webster''s Third New Int''l Dictionary to find that "constant" and "continuing" have similar if not identical meanings. While "treatment" may be a more specific term than "care," the court explained that both refer to a course of conduct prescribed to medically or surgically treat a patient. The court concluded that "constant care" under the OFLA is similar to the FMLA''s "continuing treatment."

Therefore, since he had a serious health condition, Frederick was entitled to the full 480 hours of leave, and his termination was an unlawful employment practice violating the OFLA.

Next the court looked at the issue of whether Frederick''s inability to work at Lynch Meadows meant that he was unable to perform a job function. The school district contended that because Frederick could sweep, clean, repair, lift, move and perform any other duty that might be assigned to a custodian, he could perform the "essential functions" of his job, despite his inability to do so at Lynch Meadows.

The court noted that courts that have considered this question under the Americans with Disabilities Act (ADA) "have held that, except in the unusual situation where an employee can perform all the job functions at home, the ability to work at the specific job site is an essential job function," citing Waggoner v. Olin Corp., 169 F.3d 481 (7th Cir. 1999) among other cases. "In sum," the court said, "nothing in the ADA decisional law compels the conclusion that, in the circumstances presented here, working at Lynch Meadows was not an ''essential function'' of complainant''s employment." Rather, the court agreed with the brief presented by the BOLI that, because the employer insisted that Frederick work at least four hours a day at Lynch Meadows, that was an essential function of the job. Since both he and his psychologist agreed he could not perform that essential function, Frederick was eligible for leave for his condition. The district further contended that there was no nexus between Frederick''s depression and his inability to work at Lynch Meadows. However, Frederick''s psychologist said "location, not number of hours of work, have resulted in job stress for [complainant]. The work environment at Lynch Meadows created the stress that led to the depression. ... [I]t is my opinion that [complainant] would not be able to continue to recover if he was forced to return to work there full-time."

Finally, the district said the BOLI''s award of $25,000 to Frederick for mental suffering was not supported by evidence. However, the court pointed to findings by the BOLI that after Frederick''s employment was terminated, he sank further into depression, at one point staying in his room for about a week. Because Frederick''s wages had been his family''s major source of income, and he did not receive unemployment benefits for several months, his family home went into foreclosure, his credit ratings were ruined, and the family had to rely on food stamps. Frederick''s personality changed, BOLI said; he is now "gun-shy, tentative, and irritable around people and avoids dealing with them," weakening his relationship with his three young children.

The court rejected the district''s argument that Frederick''s mental distress predated the denial of leave, and ordered Centennial School District No. 28J to award Frederick almost $33,000 ˜ $7,682 in lost wages and $25,000 in damages. (Centennial Sch. Dist. No. 28J v. Oregon Bureau of Labor and Indus. Ore. Ct. App., CA A 106193, Aug. 30, 2000).

By Family and Medical Leave Guide, ©Thompson Publishing Group, Inc.


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