Failure to Supply Documentation Sinks FMLA Claim

​A former U.S. Postal Service (USPS) employee could not proceed with her claims of interference with her rights under the Family and Medical Leave Act (FMLA) and retaliation for taking FMLA leave, the 10th U.S. Circuit Court of Appeals ruled, affirming a trial court order dismissing the claims before trial. The interference claim failed because the plaintiff never submitted the documentation the employer required for FMLA leave. The plaintiff could not show retaliation because the employer had legitimate, work-related reasons for disciplining her.

The plaintiff was a longtime USPS employee who worked at USPS' plant in Tulsa, Okla. In 2014, she took FMLA leave to care for her elderly mother. She also had health concerns of her own and was diagnosed in 2015 with anxiety disorder and attention deficit disorder, leading her to take FMLA leave on an intermittent basis.

At the same time, the plaintiff experienced work-related problems unrelated to FMLA leave. She sometimes missed work, arrived late or left early. As a result, USPS issued her three warning letters.

After receiving these letters, she notified USPS that she would miss most of December 2015 because of "acute stress response."

She neither requested FMLA leave nor responded to USPS' requests for additional information, which resulted in a fourth warning letter and designation of absent without official leave. This designation required the plaintiff to return the pay that she had collected during her absence.

In early 2016, the plaintiff was transferred to a different area of the plant and obtained a new schedule that she considered less desirable. Six months later, she resigned. She subsequently filed suit against USPS, alleging both FMLA interference and retaliation, but the trial court dismissed the claims before trial. She appealed.

Interference Claim

Under the FMLA, employees can take unpaid leave for 12 weeks a year for specified reasons, including caring for a parent with a serious health condition and inability to work because of a serious health condition. If a specified reason is invoked, the employer cannot interfere with the employee's request for leave.

The plaintiff claimed that the employer interfered with her FMLA rights by failing to consider her December 2015 absence as FMLA leave. To prevail on this claim, the plaintiff was required to first show an entitlement to FMLA leave. She failed to make this showing, the court said.

On Dec. 3, 2015, the plaintiff notified USPS that she would be out for three weeks. She submitted a "request for or notification of absence" form that listed the type of absence as "sick" and a counselor's recommendation of release from work based on her acute stress response.

USPS replied on Dec. 11, reminding the plaintiff of her obligation to comply with USPS requirements. If she could not work, she needed to provide a current medical certification to explain her absence. USPS included a description of employee rights and responsibilities under the FMLA and the required certification forms, adding that failure to comply with the instructions would result in discipline and designation as absent without official leave. The plaintiff never responded or submitted any of the necessary documents to USPS.

When the plaintiff returned to work on Jan. 6, 2016, she provided a letter from a psychologist that stated that she was absent "due to her intermittent FMLA-specified reasons."

However, the court concluded that this letter did not provide the requested documentation because her absence had not fallen within her previously approved FMLA leave, which was limited to intermittent leave of one or two days per month and two or three days per episode. The plaintiff, the court said, had not requested FMLA leave for her December absence.

The court affirmed the trial court's dismissal of the interference claim.

[SHRM members-only toolkit: Managing Family and Medical Leave]

Retaliation Claim

The appeals court also agreed with the lower court that the plaintiff was not entitled to a trial on her claim that USPS retaliated against her for taking FMLA leave by issuing the warning letters.

Retaliation claims under the FMLA are subject to the burden-shifting analysis of the U.S. Supreme Court's decision in McDonnell Douglas Corp. v. Green, the court noted.

Under McDonnell Douglas, if the plaintiff presents evidence of retaliation for the exercise of FMLA rights, the employer must identify a legitimate, nonretaliatory reason for the employment action.

If the employer does so, the plaintiff must show that the employer's stated reason was not the real reason for the action but was actually a pretext for impermissible retaliation.

The appellate court concluded that, even if the plaintiff showed some evidence of retaliation, USPS identified a nonretaliatory reason and the plaintiff failed to demonstrate pretext. In fact, the court identified four nonretaliatory reasons for USPS' actions:

• The plaintiff disregarded instructions to work on particular dates.
  
• She arrived late or left early on 17 occasions.
  
• She failed to report to work on a particular date.
  
• She failed to respond to the inquiry regarding her December absence.
  

Although the plaintiff claimed that the temporal proximity between her use of FMLA leave and USPS' adverse actions showed that those reasons were pretextual, the court noted that temporal proximity alone is not enough to show pretext. In any event, the court said, the plaintiff did not deny that she violated the cited policies.

Dulany v. Brennan, 10th Cir., No. 17-5083 (June 7, 2018).

Professional Pointer: As this case illustrates, an employer is entitled to ask for additional information in support of an FMLA leave request, and FMLA leave may be denied if the employee fails to respond.

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.