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): Â
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:
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)
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)
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)
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:
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.