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FMLA notice’s failure to include job restoration rights might be interference if employee prejudiced

By Kathleen Kapusta, J.D.

The FMLA notice a federal reserve bank sent to an employee failed to inform him of his right to job restoration, the Fourth Circuit found. And because there was sufficient evidence to show he would have structured his leave differently had he known his job was protected, the court vacated the grant of summary judgment against his FMLA interference claim. The court affirmed, however, the grant of summary judgment against his FMLA retaliation and ADA claims (Vannoy v. The Federal Reserve Bank of Richmond, June 28, 2016, Agee, G.).

When the employee’s supervisor noticed that he was having problems with his work and attendance, he told the bank’s medical director that the employee might be depressed. The medical director had previously treated him for depression and knew he had taken antidepressant medications “for a long time.”

Diagnosis. Not long after that, a counselor diagnosed the employee with “major depression.” Several weeks later, he was admitted to a hospital for psychiatric treatment and his physicians recommended that he enter a 30-day rehabilitation program for treatment of depression and alcohol dependency. Concerned that taking time off would result in his termination, he refused.

Around that time, he submitted an application for short-term disability, which also functioned as a request for FMLA leave. Attached to the application was his physician’s statement taking him out of work for a month. Fearful of losing his job, the employee reported to work but was sent home because he didn’t have a doctor’s note. He returned the next day with a doctor’s note and was sent on a three-day work assignment in another city. While he drove a company vehicle and stayed in a hotel at the company’s expense, he did not report to work.

Upon his return to the office, he was placed on a performance improvement plan and was ultimately terminated for failure to properly communicate unscheduled time off and insubordinate behavior for leaving work despite instructions to complete the PIP. He then sued, alleging that the bank violated his rights under the FMLA and the ADA and the district court granted the bank’s summary judgment motion as to all claims.

FMLA interference. On appeal, the employee argued the bank failed to provide him individualized notice of his job protection rights as required by the FMLA, which affected his ability to take the medical leave he needed. Pointing out that under the FMLA regulations, a statement of the employee’s right to job reinstatement must be included in the rights and responsibilities notice an employer must send to an employee who may be entitled to FMLA leave, the court observed that the bank did not contest that the only relevant document in the record failed to show notice of the employee’s job restoration rights. Therefore, said the court, the employee established for purposes of the bank’s summary judgment motion that its notice did not comply with the regulatory requirement.

Prejudice. And while the FMLA does not provide relief unless the employee has been prejudiced by the violation, the court found sufficient evidence to show that the employee, who returned to work prior to the expiration of the medical leave he initially requested, would have structured his leave differently had he known his job was protected. He initially requested medical leave from November 10 to December 10 in accordance with his physician’s note but instead of taking the leave, he returned to work early. He claimed that had he known of his right to reinstatement, he would have taken the full 30-day leave of absence set out in his initial FMLA application to obtain the inpatient treatment.

Further, the employee’s testimony that “I think [a notice of job protection rights] would have made a huge difference because I wouldn’t have been so fearful of losing my job and I would have known I could have gotten help and that I had the support of the bank and that they wanted me to get well. And I could have gone to treatment” was supported by the testimony of his family. Indeed, said the court, after his termination, he completed an inpatient treatment program. Assessment of the credibility of these statements, and any countervailing evidence, rests squarely within the purview of the trier of fact, said the court, vacating the grant of summary judgment as to this claim.

FMLA retaliation. Summary judgment was appropriate as to his FMLA retaliation claim, however, as the bank proffered overwhelming evidence that it terminated the employee because of his misconduct and there was no evidence remotely suggestive of pretext.

ADA claims. As with his FMLA retaliation claim, the court noted that the ADA does not require an employer to simply ignore an employee’s blatant and persistent misconduct, even where that behavior is potentially tied to a medical condition. Accordingly, his ADA discriminatory termination claim failed for the same reasons as his FMLA retaliation claim. Turning to his ADA failure-to-accommodate claim, the appeals court, quoting the district court, observed that “[i]t is difficult to imagine an employer trying harder to help an employee to succeed.”