Court Report

Aug 1, 2003
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HR Magazine, August 2003Behavior change serves as notice; waiver of FMLA claim upheld; no right to display Confederate stickers.

Dramatic Behavior Change May Qualify as FMLA Notice

[Byrne v. Avon Products, Inc., 7th Cir., No. 02-2629, May 9, 2003.]

A sudden change in a model employee’s behavior may itself be notice of his mental illness under the Family and Medical Leave Act (FMLA), the 7th U.S. Circuit Court of Appeals recently held. Moreover, the FMLA’s notice requirement may be excused if the employee is unable, because of his or her serious medical condition, to provide notice.

The FMLA affords up to 12 weeks of unpaid leave for individuals who are unable to work because of a serious medical condition. The employee’s notice to the employer of such a condition triggers the employee’s right to leave.

John Byrne had worked for Avon Products Inc. for four years as a highly regarded stationary engineer on the night shift. Over a period of two weeks late in 1998, Byrne began to sleep on the job and to frequent the break room for extended periods of time. Managers attempted to discuss the issue with Byrne, but were unable to do so because he left work on that day, telling a co-worker that he would be gone for the rest of the week.

The employer telephoned Byrne at the home of his sister, who told the employer that Byrne was very sick. The facilities manager spoke to Byrne, who “mumbled several odd phrases” and agreed to meet at the company that afternoon. When Byrne did not appear, Avon fired him for failing to appear and for sleeping on the job.

Byrne later was hospitalized after a suicide attempt and ultimately was diagnosed with severe depression. After two months of treatment, Byrne recovered sufficiently to return to work. When Avon refused to reinstate him to his position, Byrne filed suit under the Americans with Disabilities Act (ADA) and the FMLA.

The trial court ruled without a trial in favor of Avon, holding that neither the ADA nor the FMLA excuses misconduct on the job, and that Byrne’s behavior in sleeping on the job and taking extended breaks were rule violations.

On appeal, the 7th Circuit upheld the dismissal of the ADA claim, stating that Byrne’s inability to work at all for an extended period of time removed him from the ADA’s protection. An individual who cannot do the job under any circumstances is not a “qualified” individual for purposes of that act.

The ADA contemplates accommodations that will allow the person to perform the essential functions of the job. “Not working is not a means to perform the job’s essential functions,” the court said. “An inability to do the job’s essential tasks means that one is not ‘qualified,’ it does not mean that the employer must excuse the inability.”

The court found that Byrne might have been entitled to FMLA leave, however, based on his severe depression. In the case of a medical emergency, or in extraordinary circumstances where notice is not feasible, notice may be excused. Byrne’s severe depression may have kept him from informing Avon about his problem and from requesting leave.

“Medical information in the record would permit (though not compel) a jury to conclude that by early November 1998 Byrne not only was unable to regulate his sleep cycles but also had become suspicious of other people and was powerless to communicate his condition effectively,” said the court. “A person unable to give notice is excused from doing so.”

In addition, the court determined that the unusual behavior of an until-then excellent employee in itself might have been sufficient notice that something was medically wrong. It is “not beyond the bounds of reasonableness to treat a dramatic change in behavior as notice of a medical problem,” the court ruled. “That’s clear enough if a worker collapses: an employer might suspect a stroke, or a heart attack, or insulin deficiency, or some other serious condition. It would be silly to require the unconscious worker to inform the employer verbally or in writing.”

An employer’s knowledge of a serious condition is sufficient to trigger FMLA applicability; the employee does not have to mention the statute or demand its benefits.

The court sent the case back for trial on the basis of these two different possibilities. A finding that either one was the case would entitle Byrne to reinstatement.

By Maria Greco Danaher, an attorney with the law firm of Dickey, McCamey & Chilcote in Pittsburgh.

Workplace Display of Confederate Flag Not Constitutionally Protected

[Dixon v. Coburg Dairy, Inc., 4th Cir., No. 02-1266, May 30, 2003.]

A white worker’s display of two Confederate flag stickers on his toolbox at a South Carolina dairy was not protected by the U.S. Constitution, and the employee’s termination for refusing to remove the stickers was upheld by the 4th U.S. Circuit Court of Appeals.

For years prior to his firing from the Coburg Dairy, Matthew Dixon had been a member of an organization of descendants of Confederate veterans. At a certain point, display of the Confederate flag became an issue of heated public debate in the state of South Carolina. In that context, Dixon began to display two Confederate flag stickers on the toolbox he used in performing his mechanic duties at the dairy. A black co-worker at the dairy complained that the stickers were offensive.

The company interceded by offering to buy Dixon a new toolbox to use at work so he could keep the adorned one at home. Responding that his heritage was “not for sale,” Dixon refused the company’s offer and was fired for violating the company’s broad anti-harassment policy.

Dixon sued the dairy under a variety of legal theories, including a South Carolina law that prohibited employers from firing an employee merely for exercising his Constitutional right to free speech. The viability of this claim centered on whether Dixon’s display of the Confederate flag stickers on his toolbox amounted to speech protected by the First Amendment.

The 4th Circuit concluded that Dixon’s display of the Confederate flag stickers was not protected by the Constitution. In upholding the trial court’s judgment, the court noted that the employer never sought to interfere with Dixon’s right to fly the Confederate flag or to otherwise associate with that cause in his personal life. But as a private employer, Coburg Dairy had no obligation to indulge Dixon’s political affiliations in the workplace, especially when his actions resulted in co-workers’ claims of racial harassment.

Accordingly, the 4th Circuit struck down Dixon’s challenge to his termination.

By Declan C. Leonard of the law firm of Albo & Oblon in Arlington, Va.

Release Covering All Claims Bars FMLA Suit, Despite Regulation Prohibiting Waivers

[Faris v. Nextira LLC, 5th Cir., No. 02-50446, May 27, 2003.]

An employer could enforce a release that waived Family and Medical Leave Act (FMLA) claims even though a regulation prohibits the waiver of rights under that statute, according to the 5th U.S. Circuit Court of Appeals.

One regulation under the act states that “Employees cannot waive, nor may employers induce employees to waive, their rights under FMLA.”

Carol Faris was employed as an occupational health specialist for Nextira LLC from 1997 until her termination in 1999. On the termination day, the company offered Faris a severance payment in return for her waiver of “all other claims arising under any other federal, state or local law or regulation.” The release did not specifically refer to the FMLA.

Faris signed the release and accepted the severance payment. She later sued Nextira, alleging that she had been fired in retaliation for exercising her rights under the FMLA.

Nextira moved for judgment as a matter of law, based on the expansive wording of the release. Faris responded by asserting that the federal regulation precluded a waiver of her FMLA rights, including her retaliation claim.

The trial court agreed with Faris, holding that the plain language of the regulation states that FMLA claims are not waivable. On appeal, the 5th Circuit reversed, holding that while the regulation prohibits the prospective waiver of substantive rights—such as the right to leave or reinstatement—under the FMLA, it does not preclude waiver of claims for damages entered into as part of a post-dispute settlement.

Further, the court specifically found that a cause of action for retaliation is a “protection for” FMLA rights and is not a substantive right in itself protected by the act.

The appellate court’s decision was supported, in part, by the fact that Faris had not returned the severance payment that she received when she signed the release and waiver. Faris’ failure to return the funds ratified her acceptance of the terms of the release, including the waiver of her retaliation claim, the court said.

By Maria Greco Danaher of the law firm of Dickie, McCamey & Chilcote in Pittsburgh.

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