Court Report

Odd Behavior May Constitute FMLA Notice; Disability Claim Goes to Trial; Criminal Convictions Upheld.

Jan 1, 2008
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HR Magazine, January 2008Odd Behavior May Constitute FMLA Notice

Stevenson v. Hyre Electric Co., 7th Cir., No. 06-3501 (Oct. 16, 2007).

Even though an employee failed to give verbal or written notice that she needed leave for a serious health condition, the 7th U.S. Circuit Court of Appeals held that unusual behavior by an employee might effectively notify the employer of her need for Family and Medical Leave Act (FMLA) leave.

During her employment at Hyre Electric Co., Beverly Stevenson had no documented history of misconduct or health problems. However, when a stray dog climbed through the window of the warehouse where Stevenson worked, she experienced physical symptoms, including a headache, a rush of blood to her head, and a tightening of her neck and back. After encountering the dog, Stevenson became very agitated, started spraying room deodorizer around the office area, and began yelling and cursing about animals in the workplace.

Two hours after her encounter with the dog, Stevenson told a manager that she was ill and needed to go home. The next day, Stevenson left a voice mail for her supervisor saying that she “wasn’t feeling well” and wouldn’t be in. The day after that, Stevenson went to the workplace to meet with the company president.

She burst into the president’s office, yelling and saying that it was “wrong” for her to be subjected “to this kind of thing in the office.” She cursed about “dogs running by her desk and threatening her” and pressed management “to do something about this.”

After her confrontation with the company president, Stevenson left, telling her supervisor that she “could not work.” She then called in sick the next three workdays.

More than a week after the stray-dog incident, Stevenson came back to work, but she stayed only a few hours. While she was there, she was agitated, completed little work and called the police because she believed she was being harassed.

When she left, she told her supervisor that she was not feeling well and she also left behind a hospital’s report of her visit to an emergency room after she had the earlier confrontation with the company president. The company then changed the locks on the doors of its facility and sent Stevenson a letter telling her that she had exhausted her accrued vacation and sick leave.

In that letter, Hyre Electric also told Stevenson that if she wanted to request leave under the FMLA, she would have to obtain a medical certification and submit that to the company by a specified deadline. When Stevenson failed to provide the requested certification by the deadline, the company terminated her.

The district court granted summary judgment for Hyre Electric on Stevenson’s FMLA claim, finding that it was undisputed that Stevenson failed to give the company notice that she had a serious health condition. However, the 7th Circuit reversed.

The 7th Circuit agreed with the district court that Stevenson had an obligation to inform her employer that she needed FMLA leave, and the 7th Circuit also agreed with the district court that Stevenson had not given Hyre Electric timely verbal or written notice.

But the court further reasoned that verbal or written notice by the employee is not always necessary because “clear abnormalities in the employee’s behavior” may provide the company with constructive notice of a serious health condition. In Stevenson’s case, the court held, summary judgment was inappropriate because a trier of fact could conclude that her behavior was so unusual that the company effectively had been put on notice that she might be suffering from a serious health condition.

By Michael E. Wilbur, an attorney in the firm of Cook Roos Wilbur Thompson LLP, a Worklaw® Network firm in San Francisco.


Disability Claim Goes to Trial

Washburn v. Harvey, 5th Cir., No. 06-41232 (Oct. 10, 2007).

The 5th U.S. Circuit Court of Appeals let a Rehabilitation Act claim go forward in a case involving the discharge of an uncertified appraiser and a dispute over whether certification was a job qualification.

In 2001, Richard Washburn, an appraiser with the U.S. Army Corps of Engineers (ACE), filed a gender discrimination claim under Title VII against his employer. While the gender discrimination suit was pending, ACE appointed Washburn to serve as a supervisory appraiser from June 2002 until October 2002. In January 2003, ACE appointed Washburn to a supervisory appraiser position that was posted as a temporary promotion not to exceed one year.

In 2002 or 2003, Washburn underwent surgery for jaw cancer and received permission to work from home. He received excellent performance evaluations as he continued to work from home as a temporary supervisory appraiser. However, when Washburn’s temporary promotion ended in January 2004, ACE appointed another individual, Randy Richardson, to the position of acting supervisory appraiser. Prior to the appointment, Richardson was a planner, not an appraiser. Neither Washburn nor Richardson was certified as a general appraiser.

Washburn alleged that his jaw cancer left him with a disability and that ACE discriminated against him in violation of the Americans with Disabilities Act (ADA), Title VII and the Rehabilitation Act of 1973 by not promoting him to the permanent position of supervisory appraiser.

The Rehabilitation Act is a federal statute prohibiting disability discrimination by federal agencies, contractors and grant recipients.

The district court granted summary judgment in favor of ACE on all of Washburn’s claims. The 5th Circuit affirmed summary judgment as to Washburn’s ADA and Title VII claims. The ADA specifically exempts federal government employers, and Title VII does not cover disability discrimination.

But the appeals court found a genuine dispute of material fact regarding whether Washburn was qualified. To establish the certification qualification, ACE relied on testimony of the ACE chief of real estate that the permanent position of supervisory appraiser required appraiser certification. Washburn countered that the job posting for temporary supervisory appraiser, awarded to him in January 2003, did not include a certification requirement.

Washburn performed all the duties of a supervisory appraiser and received excellent performance evaluations during his temporary assignment. Moreover, Richardson, appointed acting supervisory appraiser in 2004, also was not certified.

The court noted that neither party explained whether the requirements for the temporary or acting positions were different from those for the permanent position.

By Chris Arbery, an attorney on the Labor & Employment Team at the firm Hunton & Williams LLP in Atlanta.


Criminal Convictions Upheld

United States v. Khanani, 11th Cir., No. 05-11689 & 05-15014 (Oct. 2, 2007).

Employing individuals known to be illegal immigrants may expose a business owner or a manager to criminal conviction on the basis that he or she encouraged or induced the illegal immigrants to reside in the United States or concealed or harbored them— felonies that attract significant terms of imprisonment.

Saleem Khanani was part owner of a group of retail stores in Florida. David Portlock was an accountant who worked as a comptroller for Khanani and his companies. Both were charged with offenses relating to the employment of persons not authorized to work in the United States, the establishment and use of fraudulent “front” companies to launder money to pay the illegal immigrants, and the related failures to pay state and federal taxes.

After a trial, both defendants were convicted on charges of:

  • Knowingly encouraging and inducing illegal immigrants to reside in the United States.
  • Participating in a conspiracy to conceal, harbor and shield these workers from detection.
  • Mailing and e-mailing fraudulent state and federal tax forms.
  • Participating in a conspiracy to launder the proceeds of crimes.
  • Evading federal employment and income taxes.

On appeal, the defendants argued that the first two convictions ought to be overturned because the jury should have been instructed that the employment of illegal immigrants in and of itself does not constitute encouragement or harboring.

The court rejected the defendants’ argument, holding that the trial judge had correctly instructed the jury that it must find the defendants to have acted “knowingly” or “with reckless disregard” to convict them of the offenses.

On all counts, the defendants’ convictions were upheld. Khanani was sentenced to 70 months of imprisonment and Portlock to 48 months of imprisonment.

By Michael G. Sherrard, an attorney in the firm of Sherrard Kuzz LLP, a Worklaw ® Network firm in Toronto.

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