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A railroad employee with carpal tunnel syndrome who reinjured his hands at work could pursue his wrongful discharge claim even though he chose not to return to work when instructed, the U.S. District Court for the District of Kansas ruled.
Millennium Rail Inc. employed Danny Smith in February 2012 as a repairman/welder to fix rail cars at its Neodesha, Kan., facility. According to Millennium Rail, Smith was an inefficient worker. The company wrote him up for being 38.8 percent efficient on a repair in January 2013. The next month, Smith took approved leave under the Family and Medical Leave Act (FMLA) to have carpal tunnel surgery. He returned from leave with the same pay, title and responsibilities as before.
On March 26, 2013, shortly after returning from leave, Smith fell at work and reinjured his hands. Millennium Rail reported the injury to its workers' compensation carrier. In December 2013, Smith was written up for being 41 percent efficient. In February 2014, he was written up for being 38 percent efficient and was suspended for three days.
On March 6, 2014, Smith's workers' compensation attorney sent Millennium Rail a letter seeking coverage for surgery related to the March 2013 fall. In an internal e-mail sent on March 10, Smith's supervisor wrote that the company was working toward terminating him.
On March 14, Smith's doctor sent Millennium Rail a note stating that until Smith had surgery, he would be unable to use the tools essential to performing his duties. At the same time, Smith and another employee, Lee Davis, applied for a switchman position with the company. Under the collective bargaining agreement that governed employment at Millennium Rail, promotions and transfers were based on seniority, ability and fitness. Millennium Rail selected Davis for the position on March 20.
Because Smith lost the switchman position, he was stuck in a job that he could not perform. On March 24, Smith submitted FMLA paperwork to take leave to have surgery but did not confirm that the paperwork was approved. The following day, Millennium Rail had Smith evaluated by another physician. While Smith would not release his complete medical history to her, the second physician opined that she could not detect any indication of pain or weakness in his hands and that Smith could work without any restrictions. No third medical opinion was sought.
Smith attempted to take FMLA leave on April 1, 2014, moving to Oklahoma to stay with his brother because he could not afford housing while not working. Smith's FMLA paperwork was never processed, although it was apparently discussed internally at Millennium Rail. The company's compliance and claims specialist wrote that Millennium Rail's doctor believed Smith could return to work and that the company either needed to bring Smith back to work or terminate him.
On April 10, Millennium Rail sent Smith a letter instructing him to return to work on April 16 or he would voluntarily resign. Smith did not receive the letter until April 15 and, realizing that he could not return to work, did not respond on April 16. He was deemed to have resigned.
Smith filed claims against Millennium Rail under the Americans with Disabilities Act (ADA) and the FMLA and under Kansas law for workers' compensation retaliation and violations of the Occupational Safety and Health Act (OSHA). Smith also sued his supervisor under the FMLA. Millennium Rail sought summary judgment against Smith's claims and to bar Smith from receiving damages.
[SHRM members-only toolkit: Coordinating Leaves of Absence]
The court granted summary judgment against Smith's ADA claim for failure to accommodate him by promoting him to the switchman position, finding that Millennium Rail legitimately believed Davis to be more qualified. The court also dismissed Smith's OSHA retaliation claim, finding that Smith had not submitted an OSHA claim before his termination.
The court denied summary judgment as to the remaining claims, finding that Smith could establish that he was constructively discharged by Millennium Rail. While Smith did not return by the company's April 16 deadline, the court found that Millennium Rail's requirement that Smith return or quit was not clearly supported by medical evidence and supported a potential claim of constructive discharge.
Smith v. Millennium Rail, Inc., D. Kan., Case No. 15-1304-EFM-GLR (March 15, 2017).
Professional Pointer: Most employers have policies that deem employees to have resigned if they do not report to work within a certain time frame after an excused absence. When an employee has submitted evidence of medical inability to return, however, an employer should suspend application of the policy to determine whether the employee is entitled to more time under the FMLA or the ADA.
Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.
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