FMLA provides no damages for emotional distress

By Maria Greco Danaher Feb 3, 2006

The 8th U.S. Circuit Court of Appeals has joined a number of other federal appeals courts in determining that a violation of the Family and Medical Leave Act (FMLA) does not entitle the wronged employee to damages for emotional distress.

Under certain circumstances, including a serious health condition, a qualified employee may be entitled to 12 weeks of unpaid FMLA leave each year. An employer who interferes with an employees FMLA entitlement or retaliates against an employee for taking protected leave may be responsible for damages under the act.

Barbara Rodgers filed suit against the City of Des Moines and her supervisor, Police Chief Ronald Wakeham, for sexual harassment, sex discrimination, retaliation, hostile environment and violation of the FMLA. The lower court granted the citys motion for summary judgment on all the claims.

Rodgers subsequently appealed only her FMLA claim, arguing that the city violated the act and that she therefore was entitled to damages, including emotional distress damages and equitable relief.

Rodgers required periodic medical treatment and absences from work based on numerous medical conditions, including fibromyalgia and diabetes. She took much of her leave intermittently, often with last-minute notice. In 2001, for example, Rodgers was absent for all or part of 115 workdays out of 249 workdays that year.

In January 2002, Chief Wakeham informed Rodgers of her attendance numbers and asked her to take whatever steps are necessary to demonstrate significant and sustained improvement in attendance. Immediately following the chiefs notice, Rodgers applied for future FMLA leave.

Because Rodgers application for leave provided insufficient information about the type and frequency of the anticipated leave, the city denied the request and asked for additional information. Over the next two months, Rodgers continued to supply inadequate information about the type and duration of the leave she was requesting.

In March 2002, Chief Wakeham informed Rodgers that in light of the vagueness of her leave request, the department would handle her doctor visits like any other appointment. He asked her to schedule appointments at a time which will least interrupt business operations.

In addition, the city asked for a second medical opinion to review the medical necessity of Rodgers requested leave. After the results of the second opinion indicated that Rodgers medical condition was indeed unpredictable in terms of flare-ups and required treatment, the city approved Rodgers request for intermittent leave.

In 2003, due to a citywide reduction in force, the department eliminated Rodgers position and transferred her to a newly created job with identical pay and benefits. She sued Des Moines, claiming the city unlawfully made her feel that she should not have taken the FMLA leave. Rodgers continued her employment with the city with no loss in pay or benefits throughout the litigation.

In response to Rodgers appeal, the 8th Circuit held that she did not provide facts that would support her claim for damages under the FMLA. The law lists specific damages for which an employer may be liable, and that list includes only monetary losses actually sustained. Consequently, employees cannot collect emotional distress damages for an FMLA violation, the court decided.

Further, because the city took no adverse employment action against Rodgers, and the undisputed evidence showed that Rodgers actually received her requested leave, Rodgers suffered no prejudice and, therefore, no equitable relief would have been available to her, even if there had been an FMLA violation.

Rodgers v. City of Des Moines, 8th Cir., No. 05-1810 (Jan. 25, 2006).

Professional Pointer: In this case, the citys administration of the act was a textbook model of compliance: The city documented Rodgers ongoing attendance issues and its correspondence with Rodgers regarding them. It made use of its right to a second opinion, granted the leave appropriately upon receiving the information, and employed Rodgers at the same salary and benefits after it eliminated her job. (The latter is not required under the act, but it reinforced the citys position that it was not retaliating against Rodgers.) Finally, the city continued to employ her after she instituted the legal action. Unfortunately, while best practices can prevent employer liability, they cannot always prevent lawsuits.

Maria Greco Danaher is an attorney with the firm of Dickie, McCamey & Chilcote in Pittsburgh.

Related articles:

The Family and Medical Leave Act: 10 Years Later, SHRM Legal Report, July-August 2003.

FMLA and Other Leave Toolkit

Editors Note: This article should not be construed as legal advice.

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