Employee must be in close physical proximity to ill family member to satisfy FMLA "To Care For" requirement

Employee must be in close physical proximity to ill family member to satisfy FMLA "To Care For" requirement
Copyright © 2011. 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.

Girard Baham requested and was granted FMLA leave to care for his daughter, who fell and suffered a serious head injury while the family was on vacation. The daughter was airlifted from Honduras to Miami, where the family remained in the hospital while their daughter recovered.

Baham was on provisionally approved FMLA leave from March 20 through May 5, 2008.  From April 12 through April 29, however, Baham returned to their home in Texas in response to neighborhood association letters complaining of an untended yard.  He also cleaned up the house, and added padding to sharp edges in the home to protect his daughter upon her return.  Baham's wife remained in Florida while caring for their daughter.  Baham talked with his wife by telephone every day.  Baham did not, however, inform his employer of his returned to Texas.

On his return, Baham was informed that his FMLA paperwork was incomplete, and he was asked to provide the missing information.  Baham let work later that day, leaving his keys and ID card with the security guard. The employer interpreted this act as a resignation, and sent a letter confirming his termination a few days later.  Baham sued, alleging that his termination violated the FMLA.  The federal trial court dismissed the suit, finding that Baham failed to establish that he "cared" for his daughter within the meaning of the FMLA while he was in Texas.  Baham appealed the case to the Fifth Circuit.

To be entitled to FMLA leave, an employee must show that he is needed "to care for" a family member with a serious health condition.  29 USC 2612(a)(1)(C).  In addition to providing physical care, the employee is entitled to leave in order to provide psychological comfort and reassurance which would be beneficial to his or her child or to make arrangements for changes in care such as transfer to a nursing home.  29 CFR 825.116(a).

Baham argued that he was entitled to FMLA leave while he was in Texas away from his daughter based on frequent telephone contact wit his wife, who was caring for their daughter.  The Fifth Circuit disagreed.  Following the lead of the Ninth Circuit in Telllis v. Alaska Airlines, Inc., 414 F.3d 1045, 1047 (9th Cir. 2005), the Fifth Circuit found that the "to care for" requirement required the employee to provide "some actual care" while in "close and continuing proximity to the ill family member."  While Baham was in Texas he was not in close continuing proximity to his daughter.

The Court also opined that cutting the lawn, cleaning the house, and preparing the house by padding furniture, did not qualify as "care" under the FMLA.  The Court noted that it found no authority holding that merely remaining in frequent telephone contact with a relative while in another state for weeks constitutes providing care for purposes of the FMLA.

 The Fifth Circuit afformed the judgment of the district court dismissing Bagahms FMLA claim.
Comment:  The Fifth Circuit joined the Ninth Circuit in imposing a requirement that "caring for" an ill family member requires the provision of some actual care in close and continuing proximity to the ill family member.  With respect to the "actual care" requirement, the decision is not surprising in that Baham's telephone contacts were with his wife, not his daughter or his daughter's physicians.  The situation would doubtless have been different had he been consulting with his wife and doctors about treatment options for his daughter. That activity would likely be viewed as providing "some actual care."  Cutting the lawn, and cleaning and preparing the house for the daughter's return home was apparently too attenuated from "physical or psychological care" to fall within the protections of the FMLA, at least for the Fifth Circuit.

Interestingly, neither the Statute nor the DOL FMLA regulations specifically impose a "close and continuing proximity" requirement for an employee to "care for" an ill family member.  Query whether in a world of real-time internet video/audio access to the daughter's hospital room whether an employee could not provide psychological care remotely.  With the right facts, I believe the court-manufactured "close and continuing proximity" care requirement will fall as a relic of a past age in light of the new technological reality.          
 Baham v. McLane Foodservice, Inc., No. 10-10944 (5th Cir. July 1, 2011)  http://www.ca5.uscourts.gov/opinions/unpub/10/10-10944.0.wpd.pdf

Extraordinary salary increases excluded in determining the individual’s final average salary for retirement purposes.

Extraordinary salary increases excluded in determining the individual’s final average salary for retirement purposes.

Matter of Palandra v New York State Teachers' Retirement Sys., 011 NY Slip Op 04357, Appellate Division, Third Department
 

Maria Palandra was employed by the Elmont Union Free School District and eventually became its superintendent of schools. In 2000, Palandra and the school district entered into a contract setting her salary and providing that she would receive payment for her accumulated vacation and sick leave upon her retirement.

Subsequently the parties entered into a new agreement that eliminated the career increment provision and barred Palandra from receiving payment for unused leave time upon her retirement. Instead, Palandra’s was retroactively raised to $224,268, with increases in following years capped at 5%.

Ultimately the New York State Teachers’ Retirement System [TRS] excluded those increases from the calculation of Palandra's final average salary and reduced her retirement benefits accordingly. Palandra sued but Supreme Court dismissed her petition.

The Appellate Division affirmed the lower court’s ruling, noting that “In order to calculate [Palandra’s] retirement benefits, [TRS] must rely upon her final average salary, defined as "the average regular compensation earned . . . during the three years of actual service immediately preceding [her] date of retirement" as mandated by Education Law §501[11] [b]. Accordingly, the Retirement System will act to prevent the artificial inflation of that figure by excluding "any form of termination pay or compensation otherwise paid in anticipation of retirement."

The court explained that Palandra had received extraordinary salary increases in the 2001-2002 and 2002-2003 school years and, indeed, had altered the terms of prior agreements to do so. Moreover, the latter increase was accompanied by the elimination of her contractual rights to obtain payments for accumulated leave time upon her retirement and an optional one-time only increment, "items that were facially excludable from her final average salary.”

The Appellate Division, conceding that “material in the record that could support a different result,” held that the Retirement System could “rationally concluded from the above evidence that the 2001-2002 and 2002-2003 salary increases were made in anticipation of [Palandra’s] retirement and excluded them from her final average salary."

The court also rejected Palandra’s claim that the System's “otherwise rational determination” was rendered arbitrary and capricious by the delay in issuing it.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_04357.htm

Employee must be in close physical proximity to ill family member to satisfy FMLA “to care for” requirement

Employee must be in close physical proximity to ill family member to satisfy FMLA “to care for” requirement

Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/

Copyright © 2011. 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.

Girard Baham requested and was granted FMLA leave to care for his daughter, who fell and suffered a serious head injury while the family was on vacation. The daughter was airlifted from Honduras to Miami, where the family remained in the hospital while their daughter recovered.  

Baham was on provisionally approved FMLA leave from March 20 through May 5, 2008.  From April 12 through April 29, however, Baham returned to their home in Texas in response to neighborhood association letters complaining of an untended yard.  He also cleaned up the house, and added padding to sharp edges in the home to protect his daughter upon her return.  Baham's wife remained in Florida while caring for their daughter.  Baham talked with his wife by telephone every day.  Baham did not, however, inform his employer of his returned to Texas. 

On his return, Baham was informed that his FMLA paperwork was incomplete, and he was asked to provide the missing information.  Baham let work later that day, leaving his keys and ID card with the security guard. The employer interpreted this act as a resignation, and sent a letter confirming his termination a few days later.  Baham sued, alleging that his termination violated the FMLA.  The federal trial court dismissed the suit, finding that Baham failed to establish that he "cared" for his daughter within the meaning of the FMLA while he was in Texas.  Baham appealed the case to the Fifth Circuit.

To be entitled to FMLA leave, an employee must show that he is needed "to care for" a family member with a serious health condition.  29 USC 2612(a)(1)(C).  In addition to providing physical care, the employee is entitled to leave in order to provide psychological comfort and reassurance which would be beneficial to his or her child or to make arrangements for changes in care such as transfer to a nursing home.  29 CFR 825.116(a). 

Baham argued that he was entitled to FMLA leave while he was in Texas away from his daughter based on frequent telephone contact wit his wife, who was caring for their daughter.  The Fifth Circuit disagreed.  Following the lead of the Ninth Circuit in Telllis v. Alaska Airlines, Inc., 414 F.3d 1045, 1047 (9th Cir. 2005), the Fifth Circuit found that the "to care for" requirement required the employee to provide "some actual care" while in "close and continuing proximity to the ill family member."  While Baham was in Texas he was not in close continuing proximity to his daughter.  

The Court also opined that cutting the lawn, cleaning the house, and preparing the house by padding furniture, did not qualify as "care" under the FMLA.  The Court noted that it found no authority holding that merely remaining in frequent telephone contact with a relative while in another state for weeks constitutes providing care for purposes of the FMLA. 

The Fifth Circuit affirmed the judgment of the district court dismissing Bagahm’s FMLA claim.

Mr. Bosland Comments:  The Fifth Circuit joined the Ninth Circuit in imposing a requirement that "caring for" an ill family member requires the provision of some actual care in close and continuing proximity to the ill family member.  With respect to the "actual care" requirement, the decision is not surprising in that Baham's telephone contacts were with his wife, not his daughter or his daughter's physicians.  The situation would doubtless have been different had he been consulting with his wife and doctors about treatment options for his daughter. That activity would likely be viewed as providing "some actual care."  Cutting the lawn, and cleaning and preparing the house for the daughter's return home was apparently too attenuated from "physical or psychological care" to fall within the protections of the FMLA, at least for the Fifth Circuit.

Interestingly, neither the Statute nor the DOL FMLA regulations specifically impose a "close and continuing proximity" requirement for an employee to "care for" an ill family member.  Query whether in a world of real-time Internet video/audio access to the daughter's hospital room whether an employee could not provide psychological care remotely.  With the right facts, I believe the court-manufactured "close and continuing proximity" care requirement will fall as a relic of a past age in light of the new technological reality.   

        

Baham v. McLane Foodservice, Inc., No. 10-10944 (5th Cir. July 1, 2011)  http://www.ca5.uscourts.gov/opinions/unpub/10/10-10944.0.wpd.pdf

Eleventh Amendment immunity of a public entity

Eleventh Amendment immunity of a public entity

Aguilar v. The New York Convention Center Operating Corp., USDC SDNY, Judge Motley, 2001 WL 1360229

The basic issue in the Aguilar case concerned a claim of immunity under the Eleventh Amendment.

Fifty individual plaintiffs, each of whom is either female or a member of a racial or ethnic minority, currently or formerly employed by the Jacob K. Javits Convention Center, sued the Center alleging that it is managed by a group of “white Irish males” who have engaged in widespread race and gender discrimination. The Javits Center asked the District Court Justice to dismiss the case, claiming it had Eleventh Amendment Immunity from such litigation.

The District Court said that “It is well settled that the Eleventh Amendment bars suits against a state in federal court unless Congress has abrogated or the state has waived its sovereign immunity,” citing Pennhurst State School and Hospital, 465 U.S. 89.

However, here the fifty complainants did not sue the State of New York but rather an entity created by the State -- the New York Convention Center Operating Corporation [NYCCOC] that operates the Javits Center. Accordingly, the initial for the court to resolve:

Is NYCCOC more like an “arm of the state,” in which case the Eleventh Amendment applies, or more like “a municipal corporation or other political subdivision,” in which case the Eleventh Amendment does not apply.

In Mancuso v New York State Thruway Authority, 86 F.3d 289, the Second Circuit affirmed its six-factor inquiry for determining whether a state-created entity enjoys Eleventh Amendment immunity under the “arm of the state” doctrine:

(1) how the entity is referred to in the documents that created it;

(2) how its governing members are appointed;

(3) how it is funded;

(4) whether its function is traditionally one of local or state government;

(5) whether the state has veto power over its actions; and

(6) whether the entity's financial obligations are binding upon the state.

The decision notes that if these factors point in different directions, the tension must be resolved mindful of the Eleventh Amendment's twin rationales -- protecting states' treasuries and protecting their dignity.

The first factor -- how the entity is referred to in the documents that created it -- did not support or defeat a finding of immunity. NYCCOC was created as a “body corporate and politic” constituting a “public benefit corporation.” On one hand, the statute creating the NYCCOC characterize its function as an “essential government function” while it then enumerates ways in which the state may “cooperat[e]” and “assist” the NYCCOC in the performance of its duties, suggesting that the legislature considered the NYCCOC and the state to be distinct entities.

The Court concluded that here the first Mancuso factor is neutral.

In contrast, the court found that the second factor -- how NYCCOC's governing members are appointed -- weighs squarely in favor of immunity as they were appointed by the governor and by leaders of the legislature.

The third factor -- how the NYCCOC is funded -- was also viewed a neutral by the court as NYCCOC could both issue bonds and collect rents and fees for the use of its facilities.

Was NYCCOC performing a role that “is traditionally one of state or local government?” No, said the court, the operation of a convention center cannot be considered a traditional state function.

As to the fifth factor, the absence of any power of the state to veto any NYCCOC weighed against a finding of immunity. Although the chair of the NYCCOC's board of directors serves at the pleasure of the governor, he or she does so only in his or her capacity as chair. No member of the board, including the chair with respect to his or her status as a “member of the board, may be removed from his or her office except for cause.

The sixth factor -- whether the entity's obligations are binding on the state -- weighs heavily against immunity. Here the court noted that because the “[t]he obligations of the corporation shall not be debts of the state,” that “the state shall not be liable thereon,” and that “such obligations shall not be payable out of any funds other than those of the corporation.”

The court's conclusion: NYCCOC should not be deemed an “arm of the state” for Eleventh Amendment purposes, i.e., it is more like a municipality or a political subdivision of a state than an entity acting as an alter ego of a state.

Filing a timely notice for disability retirement benefits critical to eligibility for such benefits

Filing a timely notice for disability retirement benefits critical to eligibility for such benefits

Wilson v NYSERS, 288 AD2d 602

Theodore J. Wilson neglected to file the written notice required by Retirement and Social Security Law [RSSL] Section 363-c (e) (a) in order to claim accidental disability retirement benefits. As a result, the Retirement System rejected his application for such benefits.

Wilson appealed, arguing that he had provided the required notice because he had filed Workers' Compensation claims, which was an option available to him, citing RSSL Section 363-c [e] [b] [1].

Unfortunately, this did not offer a solution to Wilson’s problem because Wilson had not filed his written claim for workers' compensation benefits within the 30-day period provided by Workers' Compensation Law Section 18.

While Wilson had apparently gave oral notice of the occurrence and thereby provided the employer with actual knowledge of the occurrence within the 30-day period, which would be sufficient to permit the Workers' Compensation Board to excuse the lack of timely written notice, the Appellate Division, citing Spahn v Regan, 163 AD2d 642, said:

This court has repeatedly stated that a decision of the Workers' Compensation Board to excuse a petitioner's failure to comply with the provisions of Workers' Compensation Law Section 18 is not binding upon respondent [Comptroller] for accidental disability retirement purposes and does not alter the fact that timely notice of the compensation claim was not given.

 

The Appellate Division said that it found no reason to deviate from this holding notwithstanding the fact that Wilson's application was for performance of duty disability retirement benefits.

The lesson here: It is essential that the individual file the required Section 363-c (e) (a) notice with the Retirement System in a timely fashion.