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FedEx failed to tell employee the consequences of no FMLA form; jury award upheld

By Cynthia L. Hackerott, J.D.

Finding that FedEx was at fault for failing to provide an employee with written notice of the consequences of not returning a completed medical certification form, the Sixth Circuit has affirmed a jury’s verdict in favor of the employee on her FMLA interference claim. In addition, the appeals court found the magistrate impermissibly re-weighed the evidence when she reduced to $90,788 the jury’s award of $173,000 in compensatory damages; thus, the appeals court reinstated the full amount of the award (Wallace v FedEx Corp, August 22, 2014, Moore, K).

The long-time FedEx employee had worked in a variety of positions over the years. By the summer of 2007, she was a senior paralegal. She also had a variety of health problems, including temporomandibular joint disorder (TMJ) and various mental health issues, which required her to take leave. FedEx offered FMLA leave and its management verbally asked her to complete a medical-certification form. Yet, the company never explained the consequences of not returning a completed form. The employee failed to provide FedEx with the medical certification, and following her absence for two consecutive days after the form was due, FedEx discharged her.

Jury award. She filed an FMLA interference action, and a jury found in her favor on the issues of liability and back pay, awarding damages in the amount of $173,000. Both parties filed post-judgment motions, and the magistrate judge handling the case denied all of them, except for FedEx’s request for a remittance of the compensatory damages award under Fed. R. Civ. P. 59. On that issue the magistrate determined that a reasonable jury could not find that the employee was able to work more than 16 months between her termination and the trial. Accordingly, she reduced the employee’s compensatory damages award to $90,788.

FMLA liability. The Sixth Circuit affirmed the magistrate’s ruling as to the employer’s cross-appeal of the magistrate’s decision denying judgment as a matter of law on liability. The company first argued that the employee failed to present any evidence showing that she provided FedEx notice of an intention to take FMLA leave because she failed to return the medical certification form or to indicate that she desired FMLA leave. But the appellate court found that the jury’s ruling in favor of the employee was reasonable because she provided her manager with a note from her physician indicating she had a serious medical condition that required her to take leave from work. Moreover, her manager understood that the employee needed FMLA leave as evidenced by the fact that he discussed the FMLA with in-house counsel and then provided the employee with FMLA paperwork. Plus, the employee provided the employer with a note from her psychiatrist which indicated that medical professionals would need to clear her to return to work before her leave would end.

FedEx also asserted that no reasonable jury could find that its termination of the employee interfered with her rights under the FMLA because her failure to return the certification form meant she was not eligible for leave under the Act. Yet, the Sixth Circuit disagreed. First, it found that FedEx failed to comply with the applicable regulation at 29 C.F.R. Sec. 825.305, which requires employers to provide with sufficient notice as to the consequences of failing to return a medical certification form. Both sides agreed that management verbally told the employee she needed to return a medical certification form within 15 days. However, the regulation requires written notice. Also, neither the forms, nor the memorandum the manager gave the employee along with the forms, mentioned the need for medical certification or the consequences of failing to produce it.

Second, the Sixth Circuit rejected the employer’s argument that the applicable regulation was arbitrary or capricious, finding that the regulation was reasonable and did not conflict with the Act. Third, the appeals court was not convinced by the employer’s assertion that the employee’s failure to report for work was somehow independent from the FMLA leave at issue in this case. Rather, the employee’s failure to report for work — and her subsequent termination — was a direct result of the failure to perfect her FMLA leave, which was a consequence of FedEx failing to meet its responsibilities under the applicable regulation.

Finally, the court rejected the employer’s arguments that the jury’s findings were unreasonable because (1) there was no evidence that FedEx fired the employee for failing to return her medical certification form; and (2) the employee admitted that her emotional state, rather than lack of notice, caused her not to turn in the form. As to the first argument, the court found FedEx’s failure to provide notice was the proximate cause of the employee’s termination, meaning that its failure to comply with the regulations prejudiced the employee. Regarding the second assertion, the court found that the employer disregarded the regulation’s equitable-tolling provision, thus elevating its attendance policy over the protections of the FMLA. In addition, the employer oversimplified mental illness, the court stated, pointing out that if the employee had known that returning the certification was necessary to keep her job, she may have rearranged her priorities in dealing with her mental illness to comply with FedEx’s request.

Compensatory damages. The Sixth Circuit reversed as to the employee’s damages award for two reasons. First, it found that the magistrate committed a procedural error by granting remittitur and not offering the employee the option of a new trial on the issue of back pay damages. Second, the magistrate judge abused her discretion by impermissibility re-weighing the evidence when she reduced the damages award based on her determination that the employee was able to work as a paralegal during the period of over sixteen months between her termination and the trial. The appeals court found that the magistrate failed to credit testimony which showed that the employee was capable of working during the period at issue, and that it a reasonable jury would have done so. Thus, the Sixth Circuit ordered the magistrate to enter judgment in favor of the employee in the amount of $173,000.