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Family Medical Leave Act Court Cases

Supreme Court Lets Stand Court Ruling Of No FMLA Liability for Postal Supervisors

posted 8/6/04

QUESTIONS PRESENTED

1. Whether the Family Medical Leave Act of 1993, 29 U.S.C. 2601 et seq., imposes individual liability on supervisory employees of a public agency.

2. Whether dismissal of a plaintiff's lawsuit for failure to consult with an agency EEO counselor within 45 days of the alleged discrimination is "on the merits" for claim preclusion purposes.

Joey L. Mitchell, an employee of the United States Postal Service, brought this action against the Postal Service, the Postmaster General, and three individual postal employees. Mitchell claimed that the supervisors' refusal to give him a mail carrier position in which he could use a waist harness violatedthe Family and Medical Leave Act (FMLA) The district court dismissed the action, and the court of appeals affirmed.

In the face of a split among the federal courts, the U.S. Supreme Court June 28 declined to review the U.S. Court of Appeals for the Sixth Circuit's decision that public sector workers cannot sue their supervisors as individuals for violations of the Family and Medical Leave Act (Mitchell v. Chapman, U.S., No. 03-1359, cert. denied, 6/28/04).

Postal carrier Joey L. Mitchell had urged the justices to review the Sixth Circuit's ruling in favor of three of his U.S. Postal Service supervisors on his claims they violated his FMLA rights. The Sixth Circuit concluded that an analysis of the text of the FMLA reveals that while private-sector supervisors can be sued under the act, a supervisor in a public agency cannot be sued as an individual (343 F.3d 811, 8 WH Cases 2d 1817 (6th Cir. 2004)).

In so holding, the Sixth Circuit parted company with the U.S. Court of Appeals for the Eighth Circuit, which has held that the FMLA imposes individual liability on supervisory employees of public agencies (Darby v. Bratch, 287 F.3d 673 (8th Cir. 2002)).

Neck Pain Resulted in Transfer
Mitchell, who worked as a mail carrier at the Paris, Ky., post office, had a history of chronic neck pain. In February 1997, he submitted a formal request for a transfer to a clerk position. No action was taken immediately, the court said. However, he was transferred to a temporary clerk position in May, after he attributed an unexcused absence to a re-injury of his neck. He was told that he could be returned to the letter carrier position after he received a medical fitness-for-duty examination.

On May 15, Mitchell provided a letter from his doctor indicating he was medically cleared to perform his job as a letter carrier. The postmaster of the facility refused to return him to his position, however. After a few more medical evaluations concluding that Mitchell could perform the letter carrier position as long as he did not use a satchel to carry the mail, the employer still refused to transfer him back to his old job.

In the meantime, USPS also denied grievances filed by Mitchell's union, the National Association of Letter Carriers, alleging violations of the FMLA and the collective bargaining agreement and seeking back pay, annual and sick leave he was denied because of the transfer, and reinstatement to letter carrier duties.

Mitchell sued in May 2000, but a district court rejected his FMLA claim against three individual supervisors, finding they were not subject to liability under the act.

Appeals Court Looks to Text of FMLA

The Sixth Circuit affirmed, analyzing the text of the act to reach its conclusion.
The Sixth Circuit concluded that the law's "text and structure demonstrates that the individual liability provision and public agency provision are separate and distinct." Commingling the provisions would render "portions of the statutes superfluous and result in several oddities," it reasoned.

The court said that its interpretation of the law was consistent with Department of Labor regulations interpreting the FMLA.

In rejecting the position staked out by the Eighth Circuit, "the Court of Appeals for the Sixth Circuit disavowed the prevailing view throughout the country that federal supervisors, like all other supervisors, are individually liable for violations of the FMLA," Mitchell said in his brief to the court.

In its brief opposing Supreme Court review, the federal government said that other than the Sixth Circuit, only two other federal appeals courts have considered this issue: the Eighth Circuit in the Darby case, and the Eleventh Circuit, in a case concluding that the FMLA does not impose individual liability on public sector supervisors (Wascura v. Carver, 169 F.3d 683, 5 WH Cases 2d 265 (1999)).

"Both have given only limited consideration to the issue, and neither has addressed the textual points made by the court below," DOJ said.

"The court held that claim preclusion barred the claims against the Postal Service and the postal officials in their official capacities.  The court reasoned that claim preclusion applies when a dismissal is "on the merits" and that a dismissal for failure to consult within the 45-day period, like a dismissal on statute of limitations grounds, is a judgment "on the merits."

"The court next held that petitioner's individual capacity claims failed as a matter of law because the FMLA does not authorize individual capacity suits against supervisory employees of public agencies.  The court noted that the FMLA creates a private right of action entitling "eligible employees" to seek monetary and injunctive relief "against any employer (including a public agency),"

Review at this point would be premature, the government argued, because "future opinions are likely to take into account the extensive textual analysis of the court below in a way that helps to promote a more well-developed understanding of the issue."
 

Hours Awarded to Fired Employee Credited as FMLA 'Hours of Service'

posted 8/1/04

 Judge: This appeal from the dismissal of a claim under the Family and Medical Leave Act of 1993 (“FMLA”) raises an important issue of statutory construction. Specifically, this appeal requires us to interpret the phrase “hours of service” as it is used in the FMLA. We hold that make-whole relief awarded to an unlawfully terminated employee may include credit towards the hours-of-service requirement contained in the FMLA’s definition of “eligible employee.” The Postal Service discharged plaintiff wrongfully, preventing her continued work, according to a now-final, arbitration award, and thereby prevented her from qualifying for benefits under the Family Medical Leave Act.

     Postal Employee appealed  the district court’s dismissal of her claim pursuant to the FMLA against her former employer, John E. Potter, Postmaster General (“Postmaster”). On appeal, Ricco argues that the district court erred by adopting the reasoning of Plumley v. Southern Container, Inc., 303 F.3d 364, 367 (1st Cir. 2002), in which the First Circuit held that the hours-of-service requirement contained in the FMLA’s definition of “eligible employee” includes only hours during which an employee performed actual work, not hours for which an employee was compensated pursuant to an arbitration award. Ricco further argues on appeal that the district court did not adequately balance the competing interests of employers and employees and created an incentive for employers unlawfully to terminate employees to prevent employees from satisfying the hours-of-service requirement.

Background

     In July 1993, the United States Postal Service (“Postal Service”) hired Ricco to work at its general mail facility in  Ohio. In December 1997, the Postal Service issued Ricco “a notice of removal, effectively terminating her employment.” Ricco timely grieved her December 1997 termination and ultimately proceeded to an arbitration hearing on January 19, 1999. In a February 8, 1999 award, the arbitrator ordered that Ricco’s termination be converted to a thirty-work-day suspension and that Ricco “be reinstated subject to passing a fitness-for-duty examination and be made whole.” . Subsequently, Ricco “passed the fitness-for[-]duty examination and was returned to work with full credit for years of service for seniority and pension purposes.”.

     After Ricco returned to work, from May through July 1999, she suffered from depression and migraines after the death of her husband, and consequently she required intermittent leaves of absence. Due to this serious health condition, Ricco requested FMLA leave in early May 1999. According to Ricco, the Postal Service denied her request for FMLA leave because it concluded that she had not met the hours-of-service requirement. Ricco alleges that she “had not ‘worked’ 1250 hours in the preceding 12 months solely because she had been unlawfully terminated in December 1997 and in violation of the Collective Bargaining Agreement.” Ricco further alleges that the Postal Service has previously recognized “that ‘[w]hen an[] employee is awarded back pay, accompanied by equitable remedies (i.e. full back pay with seniority and benefits, or a ‘make whole’ remedy), the hours the employee would have worked if not for the action which resulted in the back pay period, are counted as work hours for the 1250 work hour eligibility requirement under the Family Medical Leave Act (FMLA).’” .

     On October 15, 1999, the Postal Service issued Ricco another notice of removal “due to a failure to maintain a regular work schedule.” Ricco timely grieved her October 1999 termination and proceeded to another arbitration hearing. In a November 19, 2001 award, the arbitrator affirmed Ricco’s dismissal “on the basis that [Ricco] was absent from work [and further] stated that ‘this is not the proper forum to litigate any alleged violations of the FMLA’ and therefore refused to consider whether the FMLA had been violated.” Thereafter, Ricco commenced this action in federal court.

In response, the Postmaster argued that together the FMLA and the FLSA adequately define the term “hours of service.” The Postmaster asserts that the legislative history of the FMLA, the pertinent provisions of the FLSA, and Supreme Court precedent interpreting the FLSA all indicate that the hours-of-service requirement does not include time for which an employee was paid but did not work or time spent on unpaid leave. The Postmaster further asserts that interpreting the term “hours of service” to include those hours that an employee is deemed to have worked pursuant to a make-whole award issued by an arbitrator would undermine the FMLA’s purpose of allowing “employees to take reasonable leave . . . in a manner that accommodates the legitimate interests of the employer.”

The court's conclusion: "We conclude that time that an employee would have worked but for her unlawful termination is not an “other similar cause” within the meaning of § 207. Such hours are different from occasional hours of absence due to vacation, holiday, illness, and the employer’s failure to provide work, etc., in that they are hours that the employee wanted to work but was unlawfully prevented by the employer from working. Section 207 does not clearly prevent such hours from counting, and the purpose of the FMLA’s hours-of-service requirement is properly served by including these hours. In such cases, the employer’s unlawful conduct has prevented the employee from satisfying the hours-of-service requirement. Moreover, denying employees credit towards the hours-of-service requirement for hours that they would have worked, but for their unlawful termination, rewards employers for their unlawful conduct. We conclude that neither the FMLA nor the FLSA addresses directly the situation in this case involving hours that an employee would have worked but for her unlawful prior termination by her employer.

Ricco vs John E. Potter, Postmaster General, et al.,

 Employee Awarded Nearly 1/2 million Dollars Due to FMLA Violations

Summary: Former United States Postal Service (USPS) employee with alcoholism and depression brought action against the USPS, alleging violations of the Family and Medical Leave Act (FMLA). Following bench trial, the District Court, McKinney, J., held that: (1) employee was not required to specifically ask for FMLA leave, in order for his sick leave to qualify as protected FMLA leave; (2) supervisor restrained and interfered with employee's exercise of FMLA-protected rights, and retaliated against him for such exercise, as required for employee's claim of retaliatory discharge; (3) supervisor's negative attitude towards employee was causally connected to supervisor's inability to objectively evaluate information he received about employee and to medical officer's decision that employee was not fit for duty; (4) ability to work seven days per week was an essential function of part-time flexible clerk position; (5) employee was able to perform essential function of position; and (6) USPS did not have the right to condition employee's return to work on a fitness for duty examination.

Determining whether an employee's condition qualifies as a serious health condition within meaning of the FMLA is a legal question, and the employee must demonstrate the seriousness of his or her condition by a preponderance of the evidence. Family and Medical Leave Act of 1993,

Employer may not defend claim of interference with FMLA's substantive rights on grounds that it treats all employees that way without discriminating. Family and Medical Leave Act of 1993, § 105(a)(2), 29 U.S.C.A. § 2615(a)(2).

The FMLA contains two categories of broad protections for employees: (1) prescriptive protections that are expressed as substantive statutory rights, the violation of which need only be proven by showing that the employee was entitled to a specific right and the employer failed to provide it, and (2) protection from discrimination or other adverse employment action because they have exercised, or are attempting to exercise, any of the substantive rights, which is considered essentially proscriptive in nature. Family and Medical Leave Act of 1993, § 105(a, b), 29 U.S.C.A. § 2615(a, b).

When the employee claims the employer has discriminated or retaliated against him or her for exercising rights granted by the FMLA, the question of intent or motivation is relevant to whether employer has violated proscriptive provisions of FMLA. Family and Medical Leave Act of 1993, § 105, 29 U.S.C.A. § 2615.

To prove a case of retaliatory discharge under the FMLA, an employee must show that: (1) employee availed himself of a protected right under the FMLA; (2) employee was adversely affected by an employment decision; and (3) there is a causal connection between the protected activity and the adverse employment action. Family and Medical Leave Act of 1993, § 105, 29 U.S.C.A. § 2615.

To prove a case of retaliatory discharge under the FMLA, an employee must show that: (1) employee availed himself of a protected right under the FMLA; (2) employee was adversely affected by an employment decision; and (3) there is a causal connection between the protected activity and the adverse employment action. Family and Medical Leave Act of 1993, § 105, 29 U.S.C.A. § 2615.

Statements by a supervisor that reveal animus against the employee for exercising a protected right under the FMLA suffice to show discrimination under the FMLA. Family and Medical Leave Act of 1993, § 2 et seq., 29 U.S.C.A. § 2601 et seq.

CONCLUSION
The Court has found that by ordering Routes to undergo an evaluation of his fitness for duty, the USPS violated his rights under the provisions of the FMLA. Routes has succeeded in proving by a preponderance of the evidence a violation of the FMLA under both of his legal theories. First he has shown that his supervisor, reacted negatively to his exercise of his right to take a medical leave in December of 1994 that qualified for protection under the FMLA. G...'s negative reaction then affected and influenced subsequent employment decisions he made that adversely affected Routes. Because those decisions led to Routes being subjected to an unjustified FFDE, and because G... provided information about Routes to those performing the FFDE that was exaggerated and inaccurate, Routes succeeded in proving that he was retaliated against for having exercised his FMLA rights. Second, Routes' claim that his substantive right to be restored to his former position, or an equivalent one, succeeds because Routes was released to return to work without being restricted in a way that prevented him from performing the essential functions of his job.

Although Routes has proven a violation of the FMLA under two theories, he is only entitled to one recovery. The elements of damages to which he is entitled include any wages, salary, employment benefits, or other compensation denied or lost by reason of the violation; any actual monetary losses sustained as a direct result of the violation; interest on the amount awarded for lost wages and for monetary losses; and an additional amount as liquidated damages, unless the employer proves that the act that constituted a violation of the FMLA was in good faith and the employer had reasonable grounds for believing it was not a violation. 29 U.S.C. § 2617. The Court may also order equitable relief if it is appropriate, including employment, reinstatement, and promotion.

The proper scope and measure of the damages to which Routes may be entitled has not been briefed, and the parties are hereby ordered to submit briefing on these issues as follows: the plaintiff is to file a brief within thirty (30) days of the date of this order; the defendant will have thirty (30) days after that to file a response; and the plaintiff shall have fifteen (15) days from the date of the defendant's response to file a reply. Given the Court's finding that G... retaliated and discriminated against Routes for having taken a leave that would have qualified as FMLA leave in December of 1994, the issue of liquidated damages need not be briefed. The Court finds that Routes is entitled to liquidated damages as a matter of law under these circumstances. In addition, because Routes admitted at trial that he lied on an official USPS form, this Court will not provide any equitable relief in the form of reinstatement. All other issues relating to damages may be briefed by the parties. Given the uncertainty of the interrelationship between the FMLA and postal regulations and the FMLA and the ADA, the Court orders each side to bear its own costs. S.D.Ind.,1999.

Judgment - The Court has rendered its decision and made its order in the above-captioned matter. It has found in favor of the Plaintiff, and against the Defendant, William Henderson, Postmaster of the USPS, in the amount of $313,244.28. The Court also awarded attorney's fees and costs in the amount of $104,783.83 and $2,550.21 respectively, making a total of $107,334.04 in fees and costs, in addition to the damages award. Final judgment is entered accordingly. Routes vs Henderson

"They fired me just because I wanted my rights under family leave," complained Marlene Whately, a former postal letter carrier. "My daughter was only 19 and needed me badly right after her C-Section. "I bet they were trying to punish me just because they think I took too many days off a long while back."

FACTS: A letter carrier working for the U.S. Postal Service in Indiana sued the USPS for allegedly violating the Family Medical Leave Act. She had been denied a request for family medical leave and was subsequently terminated. The termination was based both on irregularities in her leave application and a history of unsatisfactory attendance. An arbitrator upheld the termination and the employee then filed this suit in the U.S. District Court. The Postal Service moved for dismissal of the case, claiming that the employee could not establish essential elements of her claim.

DECISION: The U.S. District Court observed that summary judgment dismissals are inappropriate if real doubts remain and if a reasonable jury could rule in favor of the employee here. The court noted that the employee’s daughter had been told by her doctor to remain in bed for the two week recovery period requested by the employee. The daughter testified that her doctor had said she would need regular help in caring for her basic needs, and her mother had assisted in these tasks. This reasonably could define the daughter’s condition as "incapable of self care" under the Family Medical Leave Act.

February 21, 2003 (Govexec.com)
Invasion of privacy

By Amelia Gruber
agruber@govexec.com


A Postal Service supervisor violated an employee’s privacy rights by telling his co-workers that the employee was HIV-positive, according to a decision by the U.S. Court of Appeals for the District of Columbia.


The employee, a maintenance worker at the Postal Service’s Brentwood facility in Washington, D.C., missed several weeks of work in March and April 1998 because of an AIDS-related illness. The employee’s supervisor asked him to submit an administrative form and a medical certificate explaining why he was sick.


The supervisor told the employee, identified as John Doe, that he had five days to submit the form or he would face disciplinary action for his unexplained absence. She also told Doe that he might be eligible for the 1993 Family and Medical Leave Act (FMLA), which allows eligible federal employees to take up to12 weeks of unpaid annual leave for health reasons.


Doe then applied for FMLA benefits. His doctor filled out a section of the form stating he was HIV-positive. Doe submitted the form to an administrative assistant at the Postal Service so that his direct supervisor would not know he was HIV-positive.


But when he returned to work from his sick leave, he discovered that his HIV status was “common knowledge among his co-workers.” Several co-workers traced the leak to Doe’s supervisor.


Doe filed suit in U.S. District Court for the District of Columbia, alleging Postal Service officials had disclosed information in medical records, violating the 1974 Privacy Act, which prohibits federal agencies from sharing information in workers’ records without obtaining written consent, and the 1973 Rehabilitation Act, which also prevents agencies from making medical information public, unless the information comes from a voluntary health exam.


The court granted the Postal Service’s motion to dismiss the case because there was not enough evidence in Doe’s favor, ruling that Doe could not prove a Postal Service employee had improperly disclosed information. The court also noted that he had voluntarily asked his doctor to fill out the FMLA form, making the information on the form exempt from the Rehabilitation Act.


But in a Feb. 7 ruling, the Court of Appeals for the District of Columbia reversed the lower court’s decision on the basis that Doe had sufficient evidence to prove that his managing supervisor had improperly revealed information after looking at the FMLA application. The Court of Appeals also said that Doe did not voluntarily ask his doctor to fill out the FMLA form, since his direct supervisor had threatened him with disciplinary action if he did not explain his absence from work.


“Even if Doe can be said to have submitted the FMLA request voluntarily, as the district court found and the Postal Service now insists, that hardly means he volunteered his medical diagnosis,” the opinion said.


John Doe v. U.S. Postal Service, U.S. Court of Appeals for the D.C. Circuit (01-5395), Feb. 7, 2003

 Text of Opinion

The Court recognizes its holding conflicts with the holdings of other district courts in the Sixth Circuit. See e.g. Johnson v. Runyon, 1999 WL 893841 at *4-*5 (W.D. Mich. Apr. 22, 1999); Anderson v. Henderson, No. 3:99-cv-115 (E.D.Ky. Filed Oct. 15, 1999); Mitchel v. Chapman, No. 00-179 (E.D.Ky. Filed apr. 6, 2001). The Court respectfully disagrees with these decisions. Since the FMLA’s definition of "employer" is clear on its face, a court should not rely on analogies with Title VII to interpret the FMLA, particularly where the language of the two statutes is different.
The Court will enter an order consistent with this Memorandum Opinion.


___________________________________
JOHN G. HEYBURN II
JUDGE, U.S. DISTRICT COURT
cc: Counsel of Record
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE

CIVIL ACTION NO. 3:99CV-4-H

CHARLES E. CARTER PLAINTIFF

v.

UNITED STATES POSTAL SERVICE
WILLIAM J. HENDERSON, Postmaster
General and BRYAN K. SMITH DEFENDANTS

ORDER
Having carefully considered the parties pleadings and being otherwise sufficiently advised, IT IS HEREBY ORDERED that Defendants’ motion to dismiss William J. Henderson and Bryan K. Smith in their individual capacities is DENIED.
This _____ day of July, 2001.


___________________________________
JOHN G. HEYBURN II
JUDGE, U.S. DISTRICT COURT
cc: Counsel of Record