An employee’s strange behavior can provide constructive notice that she needs FMLA, October 29, 2007
According to the United States Court of Appeals for the Seventh Circuit, an employee’s odd behavior can provide constructive notice that she needs FMLA leave. Stevenson v. Hyre Electric Co., - F.3d - (7th Cir. October 16, 2007). This case demonstrates how difficult it can be for employers to deal with FMLA situations, even when they do everything right.
On February 9, 2004, Beverly Stevenson had an extreme reaction to a stray dog that entered the warehouse where she worked. After the dog approached her, Stevenson was found in an agitated state spraying her workspace with deodorizer. Stevenson began yelling and cursing at her supervisor about how animals should not be in the workplace. Stevenson then went home sick.
On February 10th, Stevenson called in sick and went to the hospital for medical tests unrelated to the dog incident. On February 11th Stevenson went to the office to speak to Hyre’s president, Charles Guest. Stevenson started yelling and cursing, complaining that it was wrong for her to be subjected to threatening dogs running by her desk. Stevenson continued to yell and scream for 8 to 10 minutes despite attempts to calm her down. After her tirade, Stevenson said she could not work and left. Stevenson later filed an OSHA complaint about stray animals in the workplace. Stevenson called in sick on February 12th, 13th, and 16th. On February 17th, Stevenson reported to work, but she stayed only a few hours and eventually called the police because she felt she was being harassed.
Because Stevenson was “out sick” and did not have paid leave available, Hyre notified her that to obtain FMLA leave, she had 15 days to provide medical certification of a serious health condition. Stevenson was notified that if she failed to provide the certification, her absences would be considered unexcused and her employment would be terminated. Undoubtedly, Hyre believed it was doing what is required by and permitted under the FMLA regulations. Stevenson continued to be “out sick.” She did not provide any detail of her illness or the requested medical certification. Consequently, Stevenson’s employment with Hyre was terminated. The District Court hearing the case granted summary judgment in favor of Hyre.
One of the issues on appeal was whether Stevenson gave Hyre notice that she needed FMLA leave. If an employee does not give notice, then the employer is under no obligation to provide FMLA leave. An employee does not have to say the magic letters “FMLA,” but calling in “sick” typically does not satisfy the notice requirement. Everyone agreed that Stevenson did not did not give actual notice of her need for FMLA leave. All she did was keep saying she was sick. She provided no specific information that would have alerted Hyre she had a serious health condition, and she failed to return the medical certification. Nonetheless, the Court of Appeals cited its own precedent finding that an employee can provide “constructive notice” that he or she needs FMLA leave.
According to the Seventh Circuit, “constructive notice” can come in two forms: (a) an employee’s inability to communicate; and (b) an employee’s clearly abnormal behavior. In this case, when viewed in light of her previously unblemished record, Stevenson’s strange behavior after the dog incident created a jury question as to whether Hyre had constructive notice that Stevenson needed FMLA because of a serious health condition. Therefore, Stevenson was permitted to pursue her FMLA claim, even though all she ever told her employer was that she was out sick.
CSI Indianapolis, October 19, 2007
Las Vegas, Miami, and New York have nothing on Indianapolis when it comes to bizarre stories involving crime scene investigators. The case of Coolidge v. Consolidated City of Indianapolis and Marion County, - F.3d - (7th Cir. October 16, 2007) provides the evidence.
Kelly Coolidge twice sued her employer, the Indianapolis-Marion County Forensic Services Agency (the “Crime Lab”), for sexual harassment. Coolidge won her first lawsuit, in which a jury found the Crime Lab “stood by while her supervisor, David Willoughby, harassed her with coarse propositions and unwelcome fondling.” Apparently, Gil Grissom is a much better boss. The second lawsuit was based on happenings after Willoughby retired. Coolidge claimed that Willoughby, on his way out the door, left behind two pornographic videotapes hoping that Coolidge would discover them.
While reorganizing the Crime Lab video cabinet about a year after Willoughby retired, Coolidge came across several tapes that were not marked with a case name and number. She played the tapes to see what was on them. Some of the tapes clearly were evidence that had not been labeled. However, two of the tapes, one marked “special” and a second marked “X” were something different. They were pornography, and at least one of them depicted necrophilia and other ghastly stuff. Coolidge said she became nauseous and turned off the video as soon as she saw what was on it.
The court found the pornographic videos did not create a sexually hostile work environment, because “Coolidge’s encounter [with the pornography] was brief and not particularly severe.” In determining the severity of the encounter, the court took into account the nature of the workplace, noting that “Crime Lab employees frequently worked with corpses, so pornography depicting necrophilia might not have the same shocking overtones there as it would in another setting.”
The court also found that even if videotapes were severe enough to create a hostile environment, the Crime Lab would not be liable for sexual harassment. The court wrote that an employer is not required to search its premises “to make sure a retiring employee did not leave anything nasty behind.” In addition, the court found Coolidge’s evidence lacking. There was not enough evidence that the videos were Willoughby’s personal property, rather than Crime Lab evidence or reference material. Apparently there was testimony in the first case that “in his job as a forensic scientist, Willoughby manipulated corpses in sexually suggestive ways.” Finally, even if the videos were Willoughby’s, there was no evidence that he intentionally left them behind hoping Coolidge would discover them.
The court affirmed summary judgment in favor of the Crime Lab.
Who Does The Government Send Into Your Home? October 19, 2007
The Borough of West View, Pennsylvania, decided that the senior bidder for a meter reader position was not the best choice. The job called for the employee to enter private homes once a year, and the senior bidder had been arrested two years earlier for being intoxicated, violently destroying property, carrying a handgun and threatening to "put a bullet in the head of the police officer" who arrested him. He also threatened his ex-wife and engaged in enough violent acts to have a peace order placed against him. That made the employer decide that he was not a good risk for entering private homes. His union dutifully grieved, and arbitrator Christopher Miles ordered that the employee be placed in the job. Sure the employer has cause for concern about public safety, Miles reasoned, but the contract said the most senior gets the job. A contract is a contract.
House Passes Bill To Extend FMLA Leave To Care For Veterans, October 10, 2007
by Pat Stewart
Earlier this week, the U.S. House of Representatives passed a bill to amend the Family and Medical Leave Act so as to allow family members to take up to six months of leave to care for wounded veterans. Current law provides for 12 weeks of leave and does not carry any exceptions as to the reason for need for such leave so long as it is to care for a family member who has a serious health condition. The legislation stems from a recommendation from the Commission on Care for America’s Returning Wounded Warriors. The Senate is expected to take action on the legislation in the near future.
Drunk Fan Gets Employee Fired, October 9, 2007
by Pat Stewart
Anyone who has been to a professional sporting event likely has run across a fan that had too much to drink. Recently, an intoxicated patron at a baseball game at U.S. Cellular Field in Chicago provoked an argument with a concession worker who was subsequently discharged for arguing with the customer. When the case went to arbitration, the arbitrator upheld the termination, finding that the concession company had just cause to discharge the worker.
The case arose when an intoxicated fan approached a concession stand at the stadium and claimed that she had purchased two garden burgers but had not received them. When she could not produce a receipt, she started directing profanity towards the concession workers. All concession workers were specifically trained not to engage in an argument with a customer but to call for a supervisor if there is any trouble with a fan. One concession worker, who acknowledged that her supervisor was in the area, did not call for assistance but rather took it upon herself to challenge the fan, and became consumed in a heated and profanity laced argument with the fan while other customers were in the area. She was subsequently fired when she admitted the she used profanity towards the customer but claimed that she only did so after the customer used the “n” word several times.
At the arbitration hearing, the union contended that the concession company did not have just cause to terminate the worker who had worked all baseball games for the previous six years. The company responded that it had the right to fire the worker because she violated its rules which specifically stated the use of profanity is strictly prohibited and could result in discipline up to and including termination. The arbitrator sided with the company and upheld the termination.
The case is Illinois Sportservice, 124 LA 21 (Cohen 2007).
Anthropologists Or Union Activists? October 7, 2007
The American Anthropological Association just released a policy paper in support of efforts to increase union organization in the U.S. The AAA reports to have evidence of management intimidation of workers in the union organizing process, with such heavy-handed conduct as the bombardment of workers with "anti-union letters." The group also criticized the "multi-million dollar industry of anti-union management consultants" used by businesses facing an organizing campaign. While the policy paper mentions undefined employer efforts to harass and intimidate workers thinking of joining a union, it fails to include any reference to any harassment or intimidation of workers, or their supervisors or their families, by union officials. Evidently, the investigation of any neanderthal-like conduct by union organizers was not part of the AAA's so- called field studies.
It should come as no surprise that this association supports the Employee Free Choice Act, introduced in Congress last year, which would expedite union organization by allowing union representation based on authorization cards signed by employees, rather than by secret elections. Fortunately for employers, that bill failed in the Senate this year. As union supporters prepare to introduce the bill again in the next session of Congress, however, expect to see more of this type of "evidence" of management misdeeds.
A Union for Maryland Home Based Child Care Providers? October 1, 2007
By mail-in ballot election, the State of Maryland has announced that the Service Employees International Union (SEIU) has organized Maryland’s nearly 6,000 home-based child care providers. Despite the fact that the SEIU failed to get legislation passed in the General Assembly for the past three years to enable this sort of "unionization," Governor O’Malley quietly signed an executive order a month ago to permit this election. It is indeed unclear what the SEIU thinks it can do for the providers in addition to collect dues. It is not a union in the traditional sense here, but more of a lobbying PAC - the idea being that, in return for dues, the SEIU will lobby the legislature for more money.
Meanwhile, the Cecil County Circuit Court issued a TRO stopping the Governor’s executive order from becoming effective. The state immediately appealed, and requested a stay on the TRO. Arguments on the preliminary injunction are set for October 4. Stay tuned.
The Supreme Court’s Employment Docket for the 2007-08 Term, October 1, 2007
Sprint/United Mgmt. Co. v. Mendelsohn:
Is evidence that an employer allegedly discriminated against non-parties admissible in a claim of employment discrimination? Or, does the possible prejudicial effect of such information outweigh any probative value.
Federal Express Corp. v. Holowecki:
Does the date of the "intake questionnaire" from a charging party stop the limitations clock because it satisfies the requirement of filing a "charge of discrimination" with the EEOC under the Age Discrimination in Employment Act. Argument is set for November 6, 2007.
Hall Street Assoc. v. Mattel, Inc.:
Does the federal Arbitration Act permit parties to expand judicial review of an arbitration award by contract? The Court’s decision here could have significant implications for the use of Alternative Dispute Resolution in employment cases. Argument is set for November 7, 2007.
Kentucky Retirement Sys. v. EEOC:
The Sixth Circuit held, en banc, that the Kentucky retirement plan was facially discriminatory because it disqualified employees from receiving disability retirement benefits if they became disabled after reaching age 55 if they held hazardous jobs, and at age 65 if they held nonhazardous jobs. The court also found that the plan calculated disability retirement benefits in a manner that resulted in an older employee receiving lower payments than a younger employee who was similar in every relevant factor other than age.
Gomez-Perez v. Potter:
Does the ADEA as applied to Federal employees prohibit retaliation? The First Circuit said no, creating a Circuit split with the District of Columbia Circuit, which held in 2001 that the ADEA does prohibit retaliation against federal employees.
CBOCS West Inc. v. Humphries:
Does Section 1981 permit claims for retaliation? The Court will review a Seventh Circuit decision that such claims are cognizable. In the Cert. petition, attorneys for Cracker Barrel argued that lower federal courts have been in a state of "vacillation and confusion" over this issue. Humphries’s lawyers responded that the confusion "exists only in Cracker Barrel's imagination" and that Congress clearly intended Section 1981 plaintiffs to have a cause of action for retaliation.
Veteran Care Leave under the FMLA? October 1, 2007
Congress has passed a bill in the House (H.R. 976) that would extend the rights of family members of wounded veterans under the Family and Medical Leave Act to take up to six months' leave without pay to care for the veteran. The proposed changes in the State Children's Health Insurance Program Reauthorization Act includes the leave language, supported by Senators Chris Dodd and Hillary Clinton adopted in the Senate’s consideration of the bill. The extension of the FMLA in this way is one of the six recommendations of the president's Commission on Care for America's Returning Wounded Warriors. President Bush has threatened to veto the measure, citing its high cost.
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