Employee’s reporting feeling “tired, lethargic, fatigue-ish and ill” insufficient notice to trigger the protections of the FMLA

Employee’s reporting feeling “tired, lethargic, fatigue-ish and ill” insufficient notice to trigger the protections of the FMLA
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/
Copyright © 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

Jordan To was employed by US Bank as a Senior Research Clerk.

While employed, To joined the Minnesota National Guard. As ordered, To attended Guard training at Fort Benning for approximately three months. He kept his employer informed of his expected return to work.

When his return date came, To called his supervisor and informed him that because he was feeling tired, lethargic fatigue-ish he needed a few days off to recuperate and would not be back to work as previously planned. To was told that, to be excused, he would need a doctor's note, which To provided. To provided a doctor's note, which excused his continuing absence from work citing only "illness."

As his revised return days approached, To would call his supervisor requesting additional leave because "he was still not feeling well." A second doctor's sought to excuse his continuing absence due to "illness." The pattern continued of more calls to work asking for additional leave because he "was still feeling the same symptoms."

Eventually, To remained absent from work but stopped calling his supervisor as required by US Bank policy. US Bank fired To.

To sued, alleging violation of the FMLA. US Bank moved for summary judgment.
In awarding summary judgment to US Bank, the court found that To had failed to provide adequate notice of his need for FMLA leave.

In the Sixth Circuit, whether an employee provided adequate notice of the need for leave is based on whether the information imparted to the employer is sufficient to reasonably apprise the employer that the need for leave is due to a serious health condition. An employee must explain their need for leave in a way that makes it reasonably plaint that the employee's health condition is serious and that this is why the employee needs to be absent.

By informing his employer that he "was felling ill, tired, lethargic, fatigue-ish... and that he needed a few days to recuperate," To failed to reasonably apprise US Bank that his need for leave was due to an FMLA-covered serious health condition. As additional evidence of To's failure to provide adequate notice, the Court also cited the doctor's slips, which simply referenced "illness" as the reason he needed to be absent from work.

The Court also found that US Bank had the right to terminate To for violating company policy requiring him to notify his supervisor, not someone else, of his need for leave. Under US Bank policy, an employee who is absent for two consecutive work days and who fails to report those absences to their immediate supervisor is considered to have abandoned their job. That, the Court found, is what happened in this case.

Absent unusual circumstances, the FMLA allows an employer to enforce their usual and customary leave policies and procedures. 29 CFR 825.302(d). The Court found not "unusual circumstances" that prevented To from complying with US Bank's direct reporting requirement.

Mr. Bosland Comments: To perfect the right to job-protected FMLA leave, employees do not have to invoke the FMLA by name (although they may). Employee's must, however, articulate facts that arguably fit one or more FMLA-covered serious health conditions. Claiming that you are "ill," or "sick," or "fatigued" simply fails that test. Courts have uniformly held that such generic language fails to reasonably alert the employer that the need for leave is due to a "serious" health condition that might be FMLA-qualifying.

Even if To had provided adequate notice of the need for leave, US Bank would have been within its right to deny FMLA leave coverage and terminate him for violating the company's leave reporting policies and procedures. To perfect the right to FMLA leave, employees must provide adequate notice of the need for leave, and abide by their company's leave reporting policies. An employee might be excused both from providing adequate notice and complying with the employer's leave reporting policies if they were unable to do so. That was not the case with To.

To v. US Bancorp, No. 08-5979 (JRT/JJK), (D. Minn. Sept. 7, 2010)
http://www.leagle.com/unsecure/page.htm?shortname=infdco20100907a83

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Why lay people are sometimes confused by administrative law

Why lay people are sometimes confused by administrative law
Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2010, All rights reserved http://lawprofessors.typepad.com/adminlaw/

Heck, why lawyers are sometimes confused by administrative law. The following is from Byrum v. Office of Personnel Management, No. 2009-3264 (Fed. Cir. Sept. 9, 2010) (available here), slip op. at 2:

"Those uninitiated in the ways of government might suppose a conclusion regarding whether a daughter was or was not also her mother’s spouse,* even on these scant facts, to be somewhat strange, and might even suppose that a correct conclusion regarding that proposition is sufficiently self-evident not to have required two years of administrative consideration. One might even think there must have been something else at issue. In fact, there was. It falls to us to explain to the Justice Department, the MSPB, and OPM why it is now necessary, after all the administrative proceedings that preceded, for this court to vacate and remand the matter so OPM can start over, addressing the issues Ms. Byrum’s claim actually presented."

Thanks to How Appealing for the pointer.

Edward M. “Ted” McClure

* NYPPL notes that the court described the genesis of this case as follows: "This case involves determining the rightful claimant to certain death benefits attributable to the service of a deceased federal employee. The employee’s spouse, who ordinarily would be entitled to the benefits, has been held civilly responsible for the employee’s death. Ordered in the civil action to assign the benefits to Stephanie Byrum, daughter of the deceased employee and petitioner in this appeal, the employee’s spouse subsequently executed the ordered assignment. Petitioner Byrum made claim to the death benefits." As subsequently noted by the court in its 20 page ruling, "Ms. Byrum is claiming the death benefits at issue based not on Ms. Byrum’s relationship to her mother, but on her status as the court-designated assignee of her mother’s spouse...."
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Through investigation of allegations of misconduct prior to initiating disciplinary action critical

Through investigation of allegations of misconduct prior to initiating disciplinary action critical
Michaelis v State, New York State Supreme Court, [Not selected for publication in the Official Reports, affd., 258 A.D.2d 693]

The Michaelis case illustrates the importance of an employer thoroughly investigating allegations before serving disciplinary charges against an employee.

A jury awarded back salary and damages to Kenneth Michaelis for “emotional suffering” because it decided that the employer had not “thoroughly investigated” before disciplining him.

Michaelis was one of two white deputy superintendents employed at a New York State Department of Corrections facility who were demoted for allegedly subjecting an African-American deputy superintendent to “ridicule or racially insensitive comments.”

Michaelis was charged with placing a “jail bird” figure on the door of an African-American co-worker Frank Irvin. Irvin viewed Michaelis’ action “racist” and submitted a complaint to the Department.

The Appellate Division had allowed Michaelis’ lawsuit against the New York State Department of Correctional Services to heard by a jury when it sustained a lower court’s refusal to dismiss his complaint [see 244 A.D.2d 636]. Michaelis’ suit alleged that the Department had imposed a more severe disciplinary penalty on him than it had on others who committed similar acts or omissions.

Michaels contended this harsher treatment was because of his race, and that this violated the State’s Human Rights Law. He maintained that he had been subjected to “reverse discrimination” when he was disciplined because of what he contended was “harmless prank.”

The jury decided that Michaelis had been disciplined by the Department without it first having “thoroughly investigated allegations of racism” directed against him. The award: $238,000 as back wages plus $90,000 for “emotional suffering” was sustained by the Appellate Division.

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If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
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Retiree health insurance benefits

Retiree health insurance benefits
Aeneas McDonald PBA v City of Geneva, App. Div., 245 A.D.2d 1042, Affirmed, 92 N.Y.2d 326

The elimination or modification of a public retiree’s health insurance coverage by a former employer has been the subject of a number of recent litigations. The latest rulings suggest that the resolution of the issue will turn on whether or not the retirees have a contractual right to such benefits.

For instance, in the Della Rocco v. City of Schenectady and Andriano v. City of Schenectady cases, decided August 28, 1997, New York State Supreme Court Justice Robert E. Lynch wrote that City of Schenectady police and fire department retirees were entitled to fully paid health insurance comparable to that in effect at the time of each retiree’s retirement because the benefits had been negotiated and set out in a Taylor Law agreement. Justice Lynch ruled that it was not relevant that the particular Taylor Law agreement under which the individual retired was no longer operative.

The Appellate Division recently applied the same reasoning in a suit filed by the Aeneas McDonald Police Benevolent Association, Inc., whose members include all current and retired members of the Geneva Police Department. The PBA sued to annul the City’s decision to unilaterally change the health insurance plan it provided for its retired police officers.

In a split decision, the Appellate Division ruled that the City of Geneva could change the health insurance it provided its retired police officers because the retirees’ health insurance coverage benefits were not protected by the terms of a collective bargaining agreement, either currently operative or expired.

The background: In 1972 the City adopted a resolution, Resolution 33, providing for the payment of health insurance benefits to retired City employees. The City simultaneously discontinued its membership in the State’s Employees’ Health Plan, electing to provide coverage through the Genesee Valley Medical Health Care Plan. Later the City replaced the Genesee Plan with the Blue Million Health Plan.

The City told its retirees that they would be covered by the Blue Million Health Plan until December 31, 1996, and that effective January 1, 1997 their coverage would be changed to the Blue Choice Extended Plan. The union sued. What proved to be critical in determining the rights of Geneva’s retired police officers was the fact that the City’s retirees’ benefits were being provided pursuant to a resolution adopted by the City rather than under the terms of a collective bargaining agreement.

Although New York State Supreme Court Justice Harvey held that Geneva’s decision to change the health insurance benefits of retirees violated the parties’ past practice of providing a certain level of benefits to retirees, the Appellate Division ruled that this was incorrect.

The Appellate Division pointed out that none of the previous collective bargaining agreements between the City and the bargaining units that represent active police officers addressed the issue of health insurance benefits for retired police officers. Consequently, said the Court, the union’s retired members “are not now nor have they at any time in the past been beneficiaries of a negotiated labor agreement that provides health insurance benefits during the period of their retirement.”

In contrast to the situation in the Schenectady case, the Court concluded in the Geneva case that (1) the retired union members never had any contractual rights with respect to health insurance benefits during retirement and (2) Resolution No. 33 did not give the retirees any vested rights to any particular health insurance benefits during retirement. In other words, unless the provision is deemed a “contractual” obligation, a legislative body may amend, or repeal, a law, rule, regulation, ordinance or resolution changing health insurance benefits for retirees. In addition, the Appellate Division said that the City was not required to negotiate its unilateral change in the health insurance benefits it provided its retirees and dismissed the union’s petition.

What about the State Constitution’s prohibition against “diminishing or impairing” a retirement benefit? The simple answer is that health insurance benefits are not “retirement benefits” within the meaning of the State’s Constitution. Unless there is some “contractual right” to health insurance benefits in retirement, the employer may unilaterally change the plan, contribution rates or other elements of a retiree’s health insurance.

The leading case involving this issue is Lippman v Sewanhaka Central High School District, 66 NY2d 313. The Court of Appeals said that a school board could change the rates of its employer contributions for retiree health insurance premiums that had been adopted pursuant to an earlier school board resolution where “the retirees had no contractual right” to the continuation of those contributions.

Those involved in the public schools or BOCES should note that school retirees have special rights. Under temporary legislation, state law requires school districts and BOCES to provide their respective retirees with the same health insurance benefits that they provide for their active employees [Chapter 80 of the Laws of 1997 extended Chapter 729 of the Laws of 1994 for one additional year]. Retirees of other municipal employers are seeking similar legislative protection against changes in their health insurance coverage by their former employers.

The text of the decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2007/10/retiree-health-insurance-benefits.html
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Retaliating against employees for political activity

Retaliating against employees for political activity
Richardson v Saratoga Springs, App Div, 246 A.D.2d 900

Scott Richardson, one of two “city electricians” employed by the Saratoga Springs Department of Public Works, supported his brother-in-law in a political race against the City’s incumbent Commissioner of Public Works. After the incumbent won, Richardson sued, alleging that the City had retaliated against him for his political activities by:

1. Transferring some of his duties to a co-worker, Vincent Arpey; and

2. Discontinuing his de facto status as supervisor of the entire electrical crew.

He cited Section 107 of the Civil Service Law, which provides, in pertinent part, that political opinions or affiliations may not be a consideration in the “appointment or selection to or removal from an office or employment” (or in the discharge or promotion or reduction, or in any manner change in the official rank or compensation) of an individual whose position is subject to the Civil Service Law.”

The Appellate Division agreed, holding a jury trial was needed to determine whether Saratoga Springs violated this section of the law when it made a personnel decision that was “affected or influenced by” an employee’s political opinion or affiliation. “[A] reasonable factfinder could conclude that [Richardson] was discriminated against because of his political activities outside of working hours.”

The Court said discrimination could explain why Richardson’s was denied “a promotion and concomitant salary increase -- ‘for constitutionally impermissible reasons,’ namely, because of his off-duty political activities.” The fact that an independent consultant actually recommended the reclassification was, according to the ruling, of little significance “where, as here, it can be inferred that those actions were the direct consequence of the changes in the electricians’ work duties “affected or influenced by” the Commissioner.”
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