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Rescinding leave for ‘chronic’ back pain, firing for excessive absences was FMLA interference

By Marjorie Johnson, J.D.

Affirming a bench trial decision that found FMLA interference when an employee was denied intermittent leave for back pain and fired for too many absences, the Eighth Circuit agreed that he suffered a chronic condition based on two visits to urgent care and that liquidated damages were warranted. The appeals court also rejected the employer’s numerous arguments against the attorneys’ fee award, but it reversed and remanded that part of the court’s decision limiting damages under the after-acquired evidence doctrine. Clearly erroneous factual findings were made as to when the employee would have been released from jail and able to return to work before accumulating too many absences following an arrest that he disclosed during a deposition after he was fired (Smith v. AS America, Inc., dba American Standard Brands, July 14, 2016, Kelly, J.).

January FMLA intermittent leave. The employee worked at an American Standard Brands (ASB) plant in a job that required regular heavy lifting. In January 2011, he missed three days of work due to sinusitis and lower back pain. He went to an urgent care clinic, was prescribed muscle relaxants, and was advised to get physical therapy. After he applied for FMLA leave and submitted a certification form completed by a nurse practitioner at the clinic, his absences were recorded as FMLA leave by the HR generalist at his plant.

February request for leave under existing certification. About a month later, he hurt his back plowing snow before his shift started on a Friday in early February 2011. He reported to work but left early due to back pain. He called to report he could not work on Saturday and Sunday but that his absence should be covered by the intermittent FMLA leave granted in January. He also went to the urgent care clinic on Monday, February 7, and received a note from the nurse practitioner documenting his visit and that he should be excused. He called ASB before his next shift started to report that he would be absent and that his absence should be covered by the intermittent FMLA leave approved in January.

Fired after leave rescinded. But when he submitted the note on Tuesday, February 8, a different HR rep gave him documents assessing three points against him for leaving his Friday shift early and missing his February 7 and 8 shifts. She also gave him a document that purportedly denied his January request for FMLA leave. He was then fired for having eight absences under the company’s no-fault attendance policy, which provided for termination for eight absences in a 12-month period. Although he submitted a new FMLA application and medical certification on February 11, ASB did not request any additional information, did not grant him FMLA leave, and did not reinstate him.

Disclosure of arrest. He sued, and during deposition, he disclosed that he had been arrested and jailed on July 13, 2011. The parties disputed when he was released from jail and how many absences he would have accrued for purposes of determining damages. Following his trial, the court found that he had not been released until July 20, when he would have reached eight absences and then been discharged, so it awarded $13,865 in lost pay (up to July 20, 2011), $13,865 in liquidated damages, and $159,944 in attorneys’ fees and costs.

Chronic condition. The Eighth Circuit first rejected ASB’s contention that the employee did not suffer a “serious health condition” based solely on his two visits to the urgent care clinic. However, the fact that he did not seek medical treatment for lower back pain before January 2011 or after being fired was not conclusive of whether his lower back pain qualified as a chronic condition in February 2011. Thus, the district court did not clearly err in its factual determination that the employee’s back condition met the objective criteria of a chronic condition at the time of his discharge.

Liquidated damages. The district court also did not abuse its discretion in awarding liquidated damages because, as ABS argued, the employee did not show that it willfully violated the statute. He was not required to show willfulness; rather, liquidated damages were mandatory unless ABS showed the good faith exception applied, and here it did not, said the court, pointing to ABS’ attempt to rescind the FMLA leave it had granted in January. The court found ASB knew he was attempting to take FMLA leave, but it fired him before it even received (let alone reviewed) his FMLA application.

Attorneys’ fees. ASB’s numerous challenges to the award of attorney’s fees also failed. First, the Eighth Circuit flatly rejected its contention that no fees should have been awarded since the employee’s wife (who was substituted after the employee died in a car accident before trial) did not disclose the amount requested in her discovery responses. It also rejected the contention that she should have been judicially estopped from claiming more than about $13K in fees based on her lower valuation of the lawsuit in probate court. Finally, the court rejected ASB’s additional contention that the district court should have limited the award of fees incurred after the employee’s death since the wife’s attorney did not file a creditor’s claim in the probate proceeding.

After-acquired evidence. However, the district court’s factual determination that the employee was not released from jail until July 20 (when he would have accumulated 8 absences) was clearly erroneous. Admissible evidence from the employee’s wife placed his release date as being July 19. Therefore, the court’s decision limiting damages under the after-acquired evidence doctrine was reversed and remanded.