Employee's Deceit Voids FMLA Protection

by Gerard Panaro, BOL Guru

An employee's failure to provide adequate information to enable the employer to determine whether his leave was for an FMLA purpose or not, and his deliberate evasiveness on the subject, defeated his claim for dismissal in violation of the FMLA, the Fourth Circuit ruled in Peeples v. Coastal Office Products, Inc., 2003 WL 21019353 (4th Cir. (Md.), 2003) (Unpublished opinion).

The plaintiff alleged that he was fired in violation of the Family Medical Leave Act (FMLA) when he took more then three weeks off of work to deal with feelings of depression and anxiety. However, the court found that he failed to work within the FMLA framework and to meet his burden of providing sufficient information to his employer and therefore affirmed the judgment of the district court and dismissed the claim.

The plaintiff had a psychiatric consultation. He got a note specifying that he was not to return to work for a week. He faxed this note to his boss. A couple of days later, he saw his primary care physician, who faxed his boss a "Sick Slip" stating that the plaintiff needed follow up appointments and medication and was not yet ready to resume work. The plaintiff also called his boss to tell him he still needed time off, but he did not specify why.

Later that week, the supervisor called the plaintiff and inquired as to how he was doing. The plaintiff said that he would have no further information until he saw a thyroid doctor. He didn't say that he would be seeing a psychologist the next day and gave no information as to what, if any, medical condition he might be suffering from. During this time, the supervisor was performing both his own job and the plaintiff's.

A week or so later, the supervisor e-mailed the plaintiff to see if he might be able to perform some of his job functions from home. The plaintiff initially failed to respond to this inquiry at all, and when the supervisor followed up, responded that he would be unable to do any work from home. He also said that he had upcoming appointments with a sleep specialist and a thyroid specialist, and reiterated that he did not know when he might return to work. He did not tell his boss that he was suffering from anxiety due to the stress of his new job.

The supervisor then contacted the company HR director, who talked to the plaintiff on the phone to determine the extent of his restrictions and whether there was any sort of work that he could do. The plaintiff told her that he did not know when he would be able to return to work, that he could do nothing related to his job, and that he was "leaning toward" not returning as a manager. At the end of the conversation, the HR director asked the plaintiff to keep her informed as to his condition and status. At no time during their conversation did the plaintiff tell the HR director that he was suffering from depression.

A couple of weeks after this, the company's COO sent an e-mail to the plaintiff, again trying to assess whether he planned or would be able to return to work. In the e-mail, the executive requested a conference call with the plaintiff and his doctor. The plaintiff refused to be involved in the call, but gave permission for the COO to talk to the doctor, which the COO did. The doctor told the COO that she had been seeing the plaintiff for "agitation, insomnia, anxiety and some [symptoms] of depression." The COO asked the doctor if there were any general or specific restrictions on the plaintiff's ability to work, and the doctor said no, but that her patient could not work at the company. Based on this conversation, the company determined that the plaintiff had abandoned his job and that there was no likelihood of his returning to work at the company. The COO therefore informed the plaintiff of his termination by e-mail and letter.

A few weeks later, the plaintiff filed a charge of disability discrimination with the EEOC and a complaint with the U.S. Department of Labor alleging that the company failed to provide him with FMLA leave. He then sued in federal court, alleging that the company discharged him in violation of the FMLA and ADA (Americans With Disabilities Act). The district court ruled in favor of the company and the plaintiff appealed.

Before an employer's duty to provide FMlA leave is triggered, the court of appeals explained, an employee must provide "adequate" and "timely" notice of the need for covered leave. Although the employee does not necessarily have to mention the FMLA specifically in requesting leave, employers are entitled to the sort of notice that will inform them not only that the FMLA may apply but also when a given employee will return to work, the court said. Because the FMLA was designed to "balance the demands of the workplace with the needs of families," the court explained, employers and employees are encouraged to communicate with each other in an interactive process that helps each party fulfill its needs. Thus, the FMLA presupposes that employers and employees will cooperate and exchange information.

To this end, the court went on, the FMLA regulations encourage employers to gain the information they need to make an assessment of whether or not leave qualifies for FMLA status through both informal and formal means. The company in this case acted in accord with those regulations, the court decided. It tried repeatedly to solicit information from the plaintiff to assess his needs, but he refused to provide any information that might have triggered Coastal's duties under the FMLA. "Indeed,' the court went on, "Peeples [the plaintiff] was deliberately evasive and misled his employer as to his true condition." Each time he was contacted, he gave only the vaguest statements about his diagnosis and possible return date. In his conversations with both his boss and the HR director, he falsely indicated that his medical condition was related to a thyroid disorder. At no time did either the plaintiff or his physician advise the supervisor or anyone else at the company that he was suffering from a psychiatric condition. "Therefore," the Fourth Circuit concluded, "Peeples termination did not violate the FMLA."

First published [date] in Fair Employment Practices Guidelines, a semimonthly publication by Aspen Publishers, 1185 Avenue of the Americas. New York, NY.

About the Author:
Gerard P. Panaro has more than 25 years' experience in employment law and is available to assist readers on an individual basis. You may reach him at 202-861-1314. Mr. Panaro is of counsel with Howe & Hutton, in the Washington, DC office.

First published on BankersOnline.com 9/22/03