September 21, 2014

Tenth Circuit: Employee’s Untruthfulness and Abuse of Sick Leave Justified Termination Despite Qualifying for FMLA Leave

The Tenth Circuit Court of Appeals issued its opinion in Dalpiaz v. Carbon County, Utah on Friday, July 25, 2014.

Bridget Dalpiaz worked as the benefits coordinator for Carbon County, Utah, from February 1995 until her termination in September 2009. As benefits coordinator, Dalpiaz scheduled doctor’s appointments for new county employees and was very familiar with the process for taking FMLA leave. She had favorable evaluations and no disciplinary history until she was in a car accident in April 2009.

After her motor vehicle accident, Dalpiaz missed work from April 3 through July 13, 2009, and she returned on a limited basis on July 13. Because of the extended absence, her supervisor requested that she submit a request for FMLA leave and mailed her a form in May 2009. Dalpiaz did not respond and did not submit the form. The supervisor emailed Dalpiaz on June 12, requesting that she return the FMLA form as soon as possible. Dalpiaz did not respond. The county attorney sent Dalpiaz a letter on June 30, advising her that she must return the form by July 10. Dalpiaz returned the form at 4:22 p.m. on July 10. On July 13, Dalpiaz returned to work for two hours a day, two days a week, per the restrictions set by a spine specialist she saw.

While she was gone from work, her supervisor received eight written statements from coworkers that Dalpiaz was engaging in physical activities that seemed inconsistent with her claims for injury. Because of these reports, the county requested that Dalpiaz submit to an IME and gave her three physicians from which to choose for this exam. Dalpiaz never responded. The county attorney then sent Dalpiaz a letter requesting her to schedule the exam by August 3, and advising her that failure to schedule the exam may result in disciplinary action. Dalpiaz attempted to set the exam but was told she needed a referral. Instead of obtaining the referral, she sent a letter to the county attorney regarding the referral and inquiring if it was now county policy to force employees to submit to IMEs. Eventually, Dalpiaz was terminated for five reasons – (1) failure to timely complete the FMLA forms; (2) failure to schedule an IME; (3) significant evidence of untruthfulness regarding her injuries; (4) abuse of sick leave; and (5) personal use of a camera belonging to the county. Dalpiaz filed a federal complaint on six grounds, the sixth alleging the county interfered with, restrained, and/or denied her right to FMLA leave. The district court granted summary judgment to the county on all counts.

Dalpiaz appealed only the grant of summary judgment related to the interference with FMLA leave. The Tenth Circuit first determined that the type of FMLA at issue in this case was retaliation, even though Dalpiaz only pled interference in her complaint. In response to the county’s claims that Dalpiaz waived the issue of retaliation by not pleading it in her complaint, Dalpiaz asserted that she did not need to specifically claim retaliation to preserve the issue. The Tenth Circuit disagreed with Dalpiaz, remarking that nothing in her complaint referenced retaliation, and instead she tracked the language pertaining to interference.

Examining her claims under the interference context, the Tenth Circuit found that Dalpiaz was entitled to FMLA leave and the county may have taken an adverse action which interfered with her right to FMLA leave. However, as to the third prong of the interference test, whether her termination was related to the exercise of her FMLA rights, the Tenth Circuit agreed that the county would have terminated Dalpiaz regardless of her FMLA status. The Tenth Circuit noted ample evidence in the record of the county’s sincere belief in Dalpiaz’s untruthfulness regarding the extent of her injuries and abuse of sick leave. The Tenth Circuit also noted that the county was justifiably concerned with Dalpiaz’s failure to return the FMLA forms “as soon as possible” as directed by her supervisor, instead choosing to return the forms at the last minute. Dalpiaz also failed to make an IME appointment as directed and did not put forth a good faith effort to make the appointment. The evidence, taken in the light most favorable to Dalpiaz, supported the county’s termination. The Tenth Circuit affirmed the district court’s grant of summary judgment.

Tenth Circuit: Summary Judgment for Employer Reversed on FMLA and ADA Claims

The Tenth Circuit Court of Appeals published its opinion in Smothers v. Solvay Chemicals, Inc. on Tuesday, January 21, 2014.

Steven Smothers worked for Solvay Chemical, Inc. (“Solvay”) for 18 years until Solvay fired him, ostensibly because of a first-time safety violation and a dispute with a coworker. He sued Solvay, claiming the company’s true motivations were retaliation for taking medical leave from work, in violation of the Family Medical Leave Act (“FMLA”), and discrimination on the basis of his medical disability, in violation of the Americans with Disabilities Act (“ADA”). He also brought a state law claim for breach of implied contract. The district court granted summary judgment for Solvay on his FMLA and ADA claims and on his state law claim for breach of implied contract.

Smothers sought and was granted FMLA leave from Solvay for intermittent absences caused by severe neck and back pain. Solvay considered him an excellent, reliable mechanic with strong job knowledge, but managers and coworkers complained about his FMLA-protected absences.

The Tenth Circuit held that Smothers met his prima facie burden on his FMLA and ADA claims and presented a genuine dispute of material fact as to whether Solvay’s stated purpose for firing him was pretextual. After viewing the evidence in Smothers’ favor, it showed that: (1) Solvay treated Smothers differently from similarly situated employees who committed comparable safety violations; (2) Solvay’s investigation into Smothers’ quarrel with Mahaffey was inadequate; and (3) Solvay managers previously took negative action against Smothers because of his FMLA-protected absences. Together these grounds create a triable issue of fact as to whether Mr. Smothers’ FMLA leave was a substantial motivation in Solvay’s decision to fire him.

The court rejected Solvay’s argument that the group of decision makers who fired Smothers was different from groups that disciplined other employees. The court held that requiring absolute congruence of decision maker members “would too easily enable employers to evade liability for violation of federal employment laws. The district court erroneously rejected Mr. Smothers’ pretext argument by insisting that the composition of the decision maker groups be precisely the same in every relevant disciplinary decision. We disagree because there is more than enough overlap to conclude the employees identified here were similarly situated to Mr. Smothers.”

The court also rejected Solvay’s argument that evidence of previous negative comments and actions about Smother’s FMLA leave were irrelevant to support his FMLA claims as they did not qualify as adverse employment actions. These incidents were relevant to a pretext inquiry, even if they could not be used to directly support a retaliation claim.

The court reversed the grant of summary judgment to Solvay on the FMLA and ADA claims, and affirmed on the state law claim of breach of contract as Smothers failed to show how the decision to discharge him violated the terms of Solvay’s handbook.

Bills Regarding Job Protection, Authorization for Foreign Investments, Electric Vehicle Charging Stations, and More Signed by Governor Hickenlooper

As the 2013 legislative session winds down, bills continue to reach Governor Hickenlooper’s desk for review and signature. Since January 31, 2013, the governor has signed 169 bills.

Governor Hickenlooper signed the “Job Protection and Civil Rights Enforcement Act,” HB 13-1136, on Monday, May 6, 2013. HB 13-1136 – Concerning the Creation of Remedies in Employment Discrimination Cases Brought Under State Law, by Reps. Claire Levy and Joe Salazar and Sens. Morgan Carroll and Lucia Guzman, establishes provisions for complaining parties who have exhausted administrative remedies to bring actions in state court. It also allows claims to be brought by employees of companies with fewer than 15 employees, which are exempt under Federal anti-discrimination provisions.

On May 5, the governor signed one bill, SB 13-176 – Concerning Authorization for the State Treasurer to Invest State Moneys in Debt Obligations Backed By the Full Faith and Credit of the State of Israel. This bill was sponsored by Sens. Mark Scheffel and Morgan Carroll and Reps. Justin Everett and Angela Williams, and it authorizes the state treasurer to invest state moneys in Israeli bonds.

The governor signed 10 bills on Friday, May 3, 2013. Three of the ten bills signed are summarized here.

  • SB 13-126 Concerning the Removal of Unreasonable Restrictions on the Ability of the Owner of an Electric Vehicle to Access Charging Facilities, by Sen. Lucia Guzman and Rep. Crisanta Duran. The bill requires landlords and common interest communities to allow unit owners to install electric vehicle charging stations on their own property.
  • HB 13-1167 Concerning the Collection of Business Information by the Secretary of State, by Reps. Brittany Pettersen and Crisanta Duran and Sen. Larry Crowder. The bill requires the Secretary of State to request certain demographic information from business owners, which will be available to the public on the Secretary of State website. The demographic information includes gender, race, veteran status, disability status, and NAICS code, and submission of the information is voluntary.
  • HB 13-1222 Concerning the Expansion of the Group of Family Members for whom Colorado Employees are Entitled to Take Leave from Work under the “Family and Medical Leave Act of 1993″, by Rep. Cherylin Peniston and Sen. Jessie Ulibarri. The bill allows employees to take leave under FMLA to care for their partners in civil unions.

On April 29, 2013, the governor signed six bills. These included the long appropriations bill, three Joint Budget Committee bills regarding the General Fund, and a bill to allow students who complete high school in Colorado to qualify for in-state tuition classification (SB 13-033Concerning In-State Classification at Institutions of Higher Education for Students who Complete High School in Colorado, by Sens. Angela Giron and Mike Johnston and Reps. Crisanta Duran and Angela Williams.) Governor Hickenlooper also signed the budget bill, SB 13-230, on April 29.

On April 26, 2013, Governor Hickenlooper signed 16 bills. Five of these are summarized here.

  • HB 13-1025 - Concerning an Increase in the Amount of the Authorized Deductible for Workers’ Compensation Insurance Policies, by Rep. Spencer Swalm and Sen. Cheri Jahn. The bill increases the allowable deductible for employers’ workers’ compensation insurance policies.
  • HB 13-1123 Concerning the Right of a Person to Waive Confidentiality Requirements Protecting Personal Work Information Obtained by the Department of Labor and Employment for Unemployment Benefit Claims to Permit the Department to Forward Certain Information to Potential Employers, by Rep. Tony Exum and Sen. Jim Kerr. The bill allows the Department of Labor and Employment to offer job seekers the opportunity to waive confidentiality so that their personal information may be made available to bona fide employers seeking employees.
  • HB 13-1258 – Concerning Local Government Involvement with Federal Immigration Issues, by Rep. Joe Salazar and Sens. Irene Aguilar and Morgan Carroll. The bill repeals C.R.S. Title 29, Article 29, which required local law enforcement officers to report any suspected illegal immigrants to federal immigration officials.
  • SB 13-048 Concerning the Use of Highway User Tax Fund Moneys Allocated to Local Governments for Multimodal Transportation Infrastructure, by Sen. Nancy Todd and Reps. Max Tyler and Jeanne Labuda. The bill allows counties and municipalities to spend moneys received from the Highway User Tax Fund on transit-related projects.
  • SB 13-070 – Concerning the Purchase of Vehicles that Operate on Alternative Fuels for the State Motor Vehicle Fleet System, by Sen. Gail Schwartz and Reps. Ray Scott and Max Tyler. The bill requires the Department of Personnel and Administration to report on the number of alternative fuel vehicles purchased, the use of alternative fuel, and a plan to develop the infrastructure necessary to utilize more alternative fuel vehicles.

For a complete list of legislation signed into law by the governor in 2013, click here.

U.S. Department of Labor Expands Family and Medical Leave Act

On Tuesday, February 5, 2013, the U.S. Department of Labor issued a final rule expanding two provisions of the Family and Medical Leave Act (FMLA). The final rule was issued on the 20th anniversary of the original signing of FMLA in order to commemorate the Act. The FMLA’s first expansion implements congressional amendments regarding leave for families of service members, and the second expansion modifies existing rules to allow more coverage to airline personnel.

The modifications to FMLA for families of service members now allow families to take up to 26 weeks of leave to care for a family member who is a current service member and has a serious injury or illness. It also created qualified exigency leave, which allows service members or their families to take up to 12 weeks of leave when exigent circumstances arise, such as the departure of a spouse for active duty or the welcome home from active duty.

The second expansion of FMLA regards flight crews and airline personnel. Because of the unique way their hours are calculated, airline personnel and flight crews are frequently unable to take advantage of FMLA leave. The new legislation allows the Department of Labor to tailor regulations to these uniquely situated employees.

The amendments to FMLA are expected to be extremely beneficial to employees, service members, and their families. For more information on FMLA, click here. For the DOL press release on the changes, click here.

Expect More FMLA Requests for Leave to Care for an Adult Child as a Result of New DOL Guidance

Wiletsky_MarkBy Mark B. Wiletsky

Employers will likely face additional requests by employees seeking leave under the Family and Medical Leave Act (FMLA) to care for an adult child who is unable to care for themselves. The Department of Labor (DOL) recently issued an Administrator’s Interpretation (AI), No. 2013-1, clarifying the definition of “son or daughter” under the FMLA as it relates to covered leave for an adult child with a serious health condition. The AI also clarified FMLA leave to care for an adult child injured during military service. Let’s take a look at what employers need to know.

FMLA Leave for Care of a Son or Daughter

The FMLA provides an eligible employee with up to 12 weeks of unpaid, job-protected leave during a 12-month period to care for a son or daughter with a serious health condition. If the child is age 17 or younger, the employee requesting leave need only show that the child has a serious health condition and the employee is needed to care for the child. However, if the child is age 18 or older, leave is available only if the child has a mental or physical disability and is incapable of self-care because of that disability.

Four-part Test to Determine FMLA Leave for an Adult Child with a Disability

To determine whether a parent is entitled to take FMLA leave to care for their adult (age 18 or older) child, four criteria must be met. The adult son or daughter must:

1)     have a disability as defined by the Americans with Disabilities Act (ADA);

2)     be incapable of self-care due to that disability;

3)     have a serious health condition; and

4)     be in need of care due to the serious health condition.

Disability Determination. Because the FMLA regulations rely on the definition of disability found in the ADA, the first criteria will be met if the adult child has a physical or mental impairment that substantially limits one or more of their major life activities. Because the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) expanded the definition of major life activities that lead to a disability determination, the issue of disability is not likely to require an extensive analysis.

Incapable of Self-Care. The second criteria specifies that the adult child must require active assistance or supervision to provide daily self-care in three or more of the “activities of daily living” or “instrumental activities of daily living.” In essence, this means that the individual needs help with daily activities such as bathing, grooming, dressing, eating, cooking, cleaning, shopping, maintaining their home, using a telephone, etc. Determining whether an adult child is incapable of self-care due to their disability is a fact-specific analysis that must be made based on their condition at the time of the requested leave.

FMLA Serious Health Condition. If the adult child meets the first two criteria in the test, the analysis turns to whether the child has a serious health condition, as defined by the FMLA. This means the individual has an illness, injury, impairment or physical or mental condition that involves inpatient care or continuing treatment by a health care provider. In many cases, the impairments that meet the definition of disability under the ADAAA will also meet the definition of serious health condition under the FMLA. However, it is important to note that the serious health condition does not have to be associated with the individual’s disability (e.g., a broken leg may be the serious health condition for an individual whose disability is cancer).

Care Needed. Finally, the parent requesting leave must be needed to care for the adult child with a serious health condition. This threshold is relatively low as the term “needed to care” can include providing transportation for doctor appointments, preparing food and offering psychological comfort and reassurance.

Age at Onset of Disability Doesn’t Matter

An important clarification made by the DOL is that the disability of the child does not have to have occurred or been diagnosed before the child turned 18 years old. For purposes of FMLA leave, it does not matter when the disability commenced. The DOL believes this interpretation is consistent with the legislative history and purpose of the FMLA.

Caring for Adult Children Injured During Military Service

Under the FMLA military caregiver provision, the parent of a covered servicemember who incurred a serious injury or illness during military service may take up to 26 weeks of FMLA leave in a single 12-month period. Recognizing that the impact of the injury may extend beyond a single 12-month period, the DOL clarified that the servicemember’s parent may take FMLA leave to care for a son or daughter in subsequent years due to the adult child’s serious health condition, provided all other FMLA requirements are met.

What Do I Do Now?

With the potential influx of new FMLA leave requests related to the care of an adult child, review your FMLA policies and procedures now to ensure that they are consistent with the new DOL guidance. Train your human resource professionals and any supervisors who handle leave requests to recognize the issues associated with leave for the care of an adult child. And finally, given the complexities involved in this four-part test, consult with your legal counsel when faced with a leave request to care for an adult child.

Mark B. Wiletsky is Of Counsel at Holland & Hart. He has experience representing public and private entities in all aspects of employment law, including defense of claims at the administrative, trial, and appellate levels under Title VII, the Americans with Disabilities Act, the Fair Labor Standards Act, the Family and Medical Leave Act, the Age Discrimination in Employment Act, the Employee Retirement Income Security Act, Section 1981 and 1983, and First Amendment retaliation claims. He also has experience with a variety of state law claims, including wrongful discharge in violation of public policy, Colorado’s Wage Claim Act and defamation, and he has handled traditional labor issues and arbitrations as well. Mr. Wiletsky blogs at www.coloradoemploymentlawblog.com, where this post originally appeared.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Tenth Circuit: Summary Judgment for Employer Affirmed on FMLA and FLSA Claims

The Tenth Circuit issued its opinion in Brown v. ScriptPro, LLC on Tuesday, November 27, 2012.

The plaintiff, Frank Brown, brought Fair Labor Standards Act (FLSA) and Family Medical Leave Act claims against his former employer, ScriptPro, who had terminated him. The district court granted summary judgment to ScriptPro.

Brown brought both FMLA interference and FMLA retaliation claims. Brown was fired only two days after his emails and meeting with supervisors about taking time off to care for his wife and new baby. While the court agreed that timing can be particularly suggestive in determining whether termination relates to the exercise of FMLA rights, it found that Brown would have been terminated regardless of his FMLA request. The court based this determination on a partially unfavorable performance evaluation and strong evidence of continuing performance issues after the evaluation. Because an employer’s intent is not necessary to FMLA interference claims and there is no burden-shifting McDonnell Douglas analysis, the court analyzed Brown’s arguments regarding ScriptPro’s proffered reason for firing him not as pretext, but rather as attempting to show a genuine dispute regarding its affirmative defense.

Regarding Brown’s FMLA retaliation claim, the court did use a burden-shifting McDonnell Douglas analysis. The court held that “‘[t]o raise a fact issue of pretext,’ Mr. Brown must ‘present evidence of temporal proximity plus circumstantial evidence of retaliatory motive.’” The court held that Brown had not raised a triable issue of fact on this claim either.

The Tenth Circuit also affirmed summary judgment on Brown’s FLSA claim. While he had shown he actually worked overtime, he failed to prove the amount of overtime he worked. The burden would have been on ScriptPro to show the amount of overtime worked only if it failed to keep accurate records. Because Brown failed to enter his time in ScriptPro’s timekeeping system as required, the failure to pay him overtime was not an FLSA violation.

Tenth Circuit: Leave of Absence as ADA Reasonable Accommodation Has Limits

The Tenth Circuit published its opinion in Robert v. Board of County Commissioners on August 29, 2012.

Catherine Robert was terminated from her offender supervision officer position after being out on FMLA leave for surgery. She sued the county, its commissioners, and her supervisor for FMLA leave retaliation, ADA discrimination, breach of contract, and violation of due process rights. Summary judgment was granted on all claims in favor of all defendants and the Tenth Circuit affirmed.

At the time of her termination, the plaintiff was unable to perform an essential function of her job: offender site visits. A few weeks after her FMLA leave expired, she was still unable to walk unassisted. The Tenth Circuit stated that a leave of absence can be a reasonable accommodation under the ADA, but an open-ended leave may not be reasonable. “The employee must provide the employer an estimated date when she can resume her essential duties.” A second limitation on leaves is duration. “A leave request must assure an employer that an employee can perform the essential functions of her position in the ‘near future.’” The court did not define a reasonable duration , but did reference an Eighth Circuit case that held six months to be unreasonable. The court mentioned the small size of the plaintiff’s department and the strain her inability to perform site visits and other duties put on her co-workers.

The Tenth Circuit held Robert’s prima facie FMLA retaliation claim had been overcome by the employer’s legitimate reason for her termination: she failed to return to work with a required release at the end of her FMLA leave. Robert’s other claims failed because public employees in Kansas are at-will.

Family Responsibilities Discrimination: The New Tool in the Employment Litigator’s Toolbox

Ellen Buckley is an editor at CBA-CLE and is Managing Editor of the Practitioner’s Guide to Colorado Employment Law.

Also known as caregiver discrimination, Family Responsibilities Discrimination (FRD) is discrimination against employees or job applicants because of their real or perceived obligations as caregivers.

For example, an FRD claim based on sex-based stereotyping could include assumptions that males do not require parental leave, women with children or elderly parents are unfit for management because they are not as dedicated to their jobs as men, and pregnant women will have poor attendance once their children are born.

FRD claims may also occur because of an employee’s or applicant’s relationship with a person with a disability. The Equal Employment Opportunity Commission’s May 2007 enforcement guidance, “Unlawful Disparate treatment of Workers with Caregiving Responsibilities,” gives an example of a supervisor who began treating an employee differently after discovering the man’s wife had severe multiple sclerosis. The supervisor made frequent comments about the employee’s inability to perform his job because of his need to care for his wife, although the employee was still performing his job as well as before the supervisor learned of the wife’s disability. The supervisor also applied work place policies differently to the employee than to others not associated with a person with a disability. Such actions created a hostile work environment.

Although not explicitly prohibited by federal law, FRD claims are being brought successfully under Title VII, the Americans with Disabilities Act, and the Family and Medical Leave Act. State and local laws may also apply. Given the prevalence of women in the work force and our aging population, FRD claims will likely continue to increase.

To learn more about the legal theories and statutes used as the basis of these important claims, register today for a one and a half hour program on September 20th at noon, presented by Charlotte Sweeney and Michelle Ferguson. The program is also available via live webcast.

Definition of “Son and Daughter” Now Clarified by FMLA

The U.S.Department of Labor has clarified the definition of “son and daughter” for purposes of interpreting the Family and Medical Leave Act (FMLA). Neither a legal nor biological relationship is required under the FMLA to demonstrate “parental rights” for a person to take work leave to care for a child.

The FMLA grants workers up to 12 weeks of unpaid leave during a 12-month period to care for themselves or a “loved one,” now expanded to include members of non-traditional families.

Of the more inclusive definition of “son and daughter,” Labor Secretary Hilda L. Solis remarked:

No one who loves and nurtures a child day-in and day-out should be unable to care for that child when he or she falls ill. No one who steps in to parent a child when that child’s biological parents are absent or incapacitated should be denied leave by an employer because he or she is not the legal guardian. No one who intends to raise a child should be denied the opportunity to be present when that child is born simply because the state or an employer fails to recognize his or her relationship with the biological parent. These are just a few of many possible scenarios. The Labor Department’s action today sends a clear message to workers and employers alike: All families, including LGBT [lesbian, gay, bisexual, and transgender] families, are protected by the FMLA.

(image source: U.S. Department of Labor)