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Jury must determine FMLA notice issue

A U.S. District Court judge in Rhode Island has found that a company that terminated an employee for excessive absenteeism could not be awarded summary judgment, as the employee raised a jury question regarding whether he gave notice sufficient to invoke the Family and Medical Leave Act.

Judge John J. McConnell Jr. noted that the plaintiff employee had a burden under federal regulations to provide the defendant employer with notice “as soon as practicable” under the circumstances and to supply sufficient information for the employer to reasonably determine whether the FMLA “may apply” to the leave request.

“[The plaintiff] stated the serious nature of his condition, details known to him at the time about his condition, and the length — in excess of ten days — of his continued absence,” the judge wrote.

Accordingly, McConnell found that the plaintiff raised a genuine issue of material fact as to whether he satisfied the FMLA notice requirements.

The nine-page decision is Goss v. Umicore USA, Inc.

Appearing for the plaintiff were Providence attorneys Mark P. Gagliardi and Alicia M. Connor; and for the defendant employer were Steven M. Richard and Neal J. McNamara, also of Providence.

Absenteeism

Plaintiff Jonathan Goss worked for three years as an assistant mold maker and then incoming quality control inspector for defendant Umicore USA.

The defendant regularly warned the plaintiff about his absenteeism and tardiness, which, even taking the facts in the light most favorable to him, the judge found to be excessive.

The lawsuit involved two periods of absence due to illness beginning in December 2013.

The plaintiff was out of work from Wednesday, Dec. 11, 2013, through Friday, Dec. 13, due to bronchitis. He returned to work the following Monday and gave his supervisor a doctor’s note that stated he had had an “upper respiratory infection.”

The plaintiff was late to work the day after he returned from his three-day illness. That week, the defendant issued him a “final written discipline warning for over usage of [his] sick time.”

The second period of absence began on Friday, Dec. 27, 2013. On that day, the plaintiff sent his supervisor a text message indicating that he had the flu and that his temperature was 103 degrees.

The week starting on Monday, Jan. 6, the plaintiff sent his supervisor a series of text messages including one that read: “Just got out of doctors. They ordered a bunch of labs. Don’t want me going back until results are in.” Another stated: “Still waiting on results. Still really sick. I had to miss my court date this morning because of my stomach. Be back Monday. Can’t afford to miss any more time.”

The defendant terminated the plaintiff’s employment effective Jan. 6, 2014, for excessive absenteeism and unauthorized absences.

The plaintiff filed a two-count lawsuit alleging that the defendant violated the Family and Medical Leave Act and the Rhode Island Parental and Family Medical Leave Act.

“A reasonable jury could believe these notices contained ‘sufficient information for an employer to reasonably determine whether the FMLA may apply.’”

— Judge John J. McConnell Jr.

Jury question

McConnell said the question before him was how much notice an employee must give in order to invoke the Family and Medical Leave Act and the Rhode Island Parental and Family Medical Leave Act.

“The simple answer in this case is: a jury should decide,” he said.

The FMLA entitles an eligible employee to 12 workweeks of leave for “a serious health condition that makes the employee unable to perform. Federal regulations place the burden on the employee to notify the employer of the need for such leave.”

When need for leave is unforeseeable, 29 C.F.R. §825.303 requires an employee to “provide notice to the employer as soon as practicable under the facts and circumstances of the particular case.” In providing such notice, the employee must, under 29 C.F.R. §825.303(b), supply “sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request.”

McConnell found that the plaintiff could not establish that his December 2013 bronchitis satisfied the statutory definition of serious health condition.

The judge noted that the plaintiff did not receive inpatient treatment for his bronchitis and that he could not establish that the bronchitis involved “‘continuing treatment by a health care provider.’”

The note provided by the plaintiff’s doctor “establishes at most that Mr. Goss was incapacitated for three calendar days, not more than three full calendar days, as the definition of ‘continuing treatment by a healthcare provider’ requires,” the judge said.

McConnell turned to the second period of absence.

“Mr. Goss, on the first day of his sickness, told his employer of the seriousness of his illness (i.e., that he had a 103-degree fever and was ‘violently vomiting all night’),” the judge noted.

The plaintiff followed that up three days later by informing the employer that he was still experiencing “debilitating pain” in his stomach, and three days later, after the New Year’s holiday, texted his supervisor that his “stomach [was] still hurting bad. Just started eating yesterday. Lost about 15 lbs.”

Four days after that, the plaintiff informed his supervisor that his stomach was no better, he was in a lot of pain, and he was returning to the doctor that day.

Finally, on Jan. 7, 2014, he told the defendant that he had just been to the doctor, who ordered lab work, and that the doctor informed him that he should not return to work until the results were in.

“A reasonable jury could believe these notices contained ‘sufficient information for an employer to reasonably determine whether the FMLA may apply,’” McConnell said.

Because the judge found that the plaintiff raised a genuine issue of material fact as to whether he satisfied the FMLA notice requirements, he denied the defendant’s motion for summary judgment as to the claim for FMLA and RIPFMLA coverage during the period between Dec. 27, 2013, and Jan. 6, 2014, but granted the motion as to the period between Dec. 11 and Dec. 13, 2013.

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