No FMLA Relief When Employee Could Not Return to Work

​A city attorney could not go forward with his claim that the city of Tehlequah, Okla., interfered with his rights under the Family and Medical Leave Act (FMLA) by failing to reinstate him when his FMLA leave expired, the 10th U.S. Circuit Court of Appeals ruled.

Even though the city never explained the attorney's FMLA rights to him, he was clearly incapable of returning to work when his leave expired because on that date he was in a nursing home and under an order of legal guardianship, the court said. Even if there has been a violation of the FMLA, the law provides no relief unless the employee has been prejudiced by the violation, the court noted.

The attorney had worked for the city for many years before he became incapacitated on Sept. 8, 2015. He went to the emergency room for falls and confusion and was admitted to the hospital, where he experienced "confusion, cognitive deficits, altered mental status, and impaired judgment." He was diagnosed with alcohol use disorder, and later he developed a pulmonary embolism.

Medical staff were not optimistic about the attorney's chances of survival, advising his then-wife to prepare for him to die. In mid-to-late September, she sought and obtained from an Oklahoma court an order of legal guardianship over him. However, the attorney's health improved, and he was transferred to a nursing home on or about Oct. 9, 2015.

The city never notified the attorney of his FMLA rights. It did, however, continue paying the attorney his salary and benefits. Near the end of October, a city official informed the attorney's guardian that the city needed to replace the attorney. The mayor believed that a resignation would be a respectful way to handle the transition. He asked the attorney's guardian to provide a letter of resignation on the attorney's behalf. She did so, and the city council voted to accept the resignation and make it effective on Jan. 31, 2016, thus continuing the attorney's pay and benefits for three additional months.

The attorney remained confined to the nursing home until Jan. 4, 2016. When he was discharged, his physician recommended he should not practice law until he had been evaluated by a neuropsychologist. After examining the attorney on Jan. 30, 2016, the neuropsychologist found he had suffered declines in cognitive abilities. The medical professional stated that there was nothing to prohibit the attorney's return to legal work but recommended that he return gradually and under the supervision of another attorney until he demonstrated that his cognitive skills were intact.

The legal guardianship remained in place until Feb. 2, 2016. Neither the attorney nor his guardian ever contacted the city about his resuming his position until March 2016, when the attorney contacted the mayor, who refused to reinstate him.

The attorney sued the city for FMLA interference, and the trial court dismissed the claim before trial. The attorney appealed.

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

Did City Improperly Deny Reinstatement to Position?

Under the FMLA, eligible employees with a serious health condition that makes them unable to perform the functions of their position are entitled to take up to 12 workweeks of leave in a 12-month period. Such employees also are entitled, on return from FMLA leave, to be reinstated to their position or an equivalent job. The FMLA makes it "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise" any FMLA right.

Both parties agreed that the attorney was entitled to FMLA leave. And, the court said, the record is clear that the city extended to the attorney not only the full 12 weeks of leave mandated by the FMLA but even more: It paid him and continued his benefits for approximately 21 weeks, from Sept. 8, 2015, through Jan. 31, 2016.

The issue, then, the court said, is whether a reasonable jury could find that the city denied him reinstatement following his leave.

The court concluded that, even if the city interfered with the attorney's exercise of his FMLA rights, he was not harmed by the city's action because no reasonable jury could conclude that the attorney was capable of returning to work when his leave expired after 12 weeks, on Dec. 1, 2015.

The attorney claimed that he was well enough to have returned to work on Dec. 1, 2015, had he known that his leave was expiring on that date, and further claimed that the guardianship had been improperly obtained. The attorney, however, was confined to a nursing home until Jan. 4, 2016, and he was under the guardianship until Feb. 2, 2016.

Under these circumstances, the court said, no reasonable juror could conclude that as of Dec. 1, 2015, the attorney could have returned to work for the city. The court affirmed the lower court's decision that the attorney was not entitled to a trial on his FMLA interference claim.

Medearis v. City of Tahlequah, 10th Cir., No. 18-7009 (Dec. 21, 2018).

Professional Pointer: Although the city succeeded in having the attorney's lawsuit dismissed before trial, it might have avoided the expense and inconvenience inherent even in the early stages of litigation if it had informed the attorney of his rights under the FMLA and told him when his protected leave expired.

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

[Visit SHRM's resource page on the Family and Medical Leave Act.]