|August 25, 2014|
Previously published on August 12, 2014
Generally, the FMLA entitles eligible employees to take up to 12 work weeks of family or medical leave in a 12-month period, and strictly prohibits an employer from attempting to or actually interfering with, restraining, or denying an employee’s exercise of his or her FMLA rights. An employer may not retaliate or discriminate against an employee for exercising or attempting to exercise FMLA rights, or complaining about any unlawful practice under the FMLA.
Although the statute and case law provide strong protections for employees, the Tenth Circuit held that an employee must still comply with his or her employer’s legitimate requests and employment policies during FMLA leave. Dalpiaz v. Carbon County, et al. 2014 U.S. App. LEXIS 14165 (10th Cir. July 25, 2014).
Plaintiff was the Carbon County Benefits Administrator from 1995 until her termination, in 2009. Injuries resulting from an April 3, 2009 car accident required Plaintiff to be away from work entirely until July 13, 2009. Due to her extended absence, the county asked Plaintiff to submit a request for FMLA leave. About seven weeks after her injury, Plaintiff’s supervisor sent her an FMLA form and requested that she complete and return it as soon as possible. After three weeks passed and Plaintiff had not responded, Plaintiff’s supervisor sent her an email stating that her FMLA time would begin to run as of the date the form was mailed to her and made another request for the return of the completed form. Following Plaintiff’s continued failure to return the FMLA form, the county’s attorney sent Plaintiff a letter requiring that she return the form by July 10, 2009. Plaintiff returned the form at 4:22pm on July 10, 2009.
On July 13th, Plaintiff returned to work but only on a limited basis - two days a week and for two hours each day - in accordance with work restrictions prescribed by her spine specialist. She continued this work schedule until August 24, 2009, the date of her suspension.
Co-workers provided eight written reports to Plaintiff’s supervisor regarding the observance of Plaintiff engaging in physical activities inconsistent with her claimed injuries. Based on the reports, the supervisor requested Plaintiff to submit to an independent medical examination (IME) to confirm that she was, indeed, entitled to FMLA leave. The county attorney’s letter of July 15, 2009 instructed Plaintiff to make an appointment with one of three doctors listed, to inform the attorney of the date of the appointment, and to call with questions or concerns. A second letter, sent July 27, 2009, followed as Plaintiff had neither scheduled an IME nor contacted the county attorney. The second letter again instructed plaintiff to schedule an IME and informed Plaintiff that failure to provide information as to the date of the exam might subject her to formal disciplinary proceedings. Plaintiff then attempted to schedule an IME, but was unable to do so because she was told that she needed a referral. Plaintiff did not attempt to obtain a referral from her primary care physician or her spine specialist. Rather, she sent an email to the county attorney informing the attorney of her two attempts to schedule an exam and requesting a copy and effective date of the policy requiring employees taking FMLA leave to go to additional doctors. The county attorney did not respond to this email and Plaintiff never submitted to an IME.
Plaintiff was discharged on August 24, 2009, on several grounds: (1) failure to timely comply the employer’s request for FMLA forms; (2) failure to schedule an IME; (3) significant evidence of untruthfulness regarding the extent of her injuries and ability to work; (4) abuse of sick leave; and (5) personal use of a camera belonging to the county.
Plaintiff’s action in district court raised six causes of action relating to her termination, but the County was granted summary judgment in its favor on all of Plaintiff’s claims. On appeal, only Plaintiff’s fifth cause of action, alleging interference with her FMLA rights, was taken up.
To establish a claim of FMLA interference under § 2615(a)(1), an employee must show:
1) That he or she was entitled to FMLA leave,
2) That some adverse action by the employer interfered with the right to take FMLA leave, and
3) That the employer’s action was related to the exercise or attempted exercise of the FMLA rights.
Although Plaintiff argued that the County’s reasons for termination related to her taking FMLA leave, the Dalpiaz court rejected this argument. The County successfully established that Plaintiff would have been terminated regardless of her request for leave, and that the termination resulted from Plaintiff’s failure to comply with her supervisor’s direction to submit paperwork, not the fact that the paperwork included a request for FMLA leave. The County could have reached the same decision in a context entirely separate from FMLA.
The facts in Dalpiaz were rather egregious: Plaintiff was a Benefits Administrator for the County, and as such, should have known well that employees should cooperate with their employer in submitting leave requests, and that requests for FMLA leave may require substantiation. And there was substantial evidence from multiple employees that Plaintiff may have been misrepresenting her claimed injuries, which properly led to the employer’s request for an IME.
But the Dalpiaz case does stand for the more general proposition that an employee is required to comply with legitimate directions and requests of supervisors with respect to FMLA leave requests, and that the FMLA does not shelter an employee who is given every opportunity to comply and fails to do so.