When the employee called in for leave due to flare-ups of depression and anxiety, this satisfied the Family and Medical Leave Act's (FMLA's) requirements because his doctor's FMLA certification stated he could not work during a flare-up, the 6th U.S. Circuit Court of Appeals determined.
The plaintiff started working for the car company FCA in January 2013 as an assembly-line worker at FCA's Trenton Engine Complex, then moved into a position cutting cranks for engines. FCA terminated him in September 2015 for attendance infractions but conditionally reinstated him in April 2017 for a one-year probationary period. Under the terms of the conditional reinstatement letter, FCA could terminate him if he incurred two unexcused tardies or one unexcused absence during his probationary period.
About six months after reinstatement, the plaintiff applied for intermittent FMLA leave. Sedgwick, FCA's third-party leave administrator, asked the plaintiff to provide medical documentation to support his request. His doctor submitted a medical certification form, stating that he had major recurrent depression and moderate/generalized anxiety disorder. The form noted that the plaintiff could not perform any or all job duties during a flare-up of symptoms.
The plaintiff thereafter requested up to three to four days of intermittent leave per month to manage his flare-ups. Sedgwick responded with a letter that conditionally approved the request and noted that he could take up to four FMLA leave days per month. However, the letter also noted that Sedgwick would determine if he met all eligibility requirements when he used the leave.
Sedgwick's letters gave conflicting instructions about how to call in to use intermittent FMLA leave days. The first letter gave a 1-800 number, followed by a 1-888 number to contact the FCA Service Center on the first day of absence. The second letter told him to call Sedgwick on his first day of FMLA-related absence or tardy, but then only repeated the 1-800 number from the first letter. FCA's own HR representative testified inconsistently as to the call-in procedure. She first stated that employees need only call FCA, then said they also needed to call Sedgwick, but did not know what number employees should use to call Sedgwick.
The plaintiff only called FCA when he was late three times and absent twice. He was absent on Dec. 6 and 7, calling in on Dec. 6 and stated he was "having a flare-up" and did not "feel good at all." He stated he had to go to the doctor. On Dec. 8, he called in tardy because he had "been sick the last few days." When asked if the reason was "personal" or "other," he first said "personal," and then said "other."
When the plaintiff returned to work on Dec. 8, one of his supervisors approached him and said that he noticed the plaintiff took FMLA leave. A few days later, another supervisor told him that he had missed some days, but she did not see the absences in the system. When the HR professional inquired with Sedgwick, Sedgwick told her the absences were not coded under FMLA, and thus FCA's timesheet system could not apply them to the claim.
The plaintiff called in tardy again on Jan. 5, 2018, stating he was "having a flare-up" and did not "feel good at all." The operator asked if he was sick, and he said yes. FCA marked each absence as a miscellaneous unexcused absence.
On Jan. 11, 2018, the FCA terminated the plaintiff for violating his conditional reinstatement letter. They gave him a notice of discharge and escorted him from the building.
The plaintiff sued FCA for FMLA interference and retaliation. FCA moved for summary judgment, which was granted. The plaintiff appealed to the 6th U.S. Circuit Court of Appeals.
On appeal, the 6th Circuit considered whether the plaintiff notified FCA that he was using intermittent FMLA leave on the dates in question. The judges split on whether the leave qualified as "foreseen" or "unforeseen" leave under FMLA regulations, as intermittent leave generally qualifies as "foreseen" but the individual instances were "unforeseen."
Either way, the judges agreed that the plaintiff gave sufficient notice that his absences related to his FMLA leave, although he never referenced the FMLA, depression or anxiety. Rather, his reference to "flare-ups" connected to his doctor's certification, and thus invoked the FMLA's protections.
As a result, the 6th Circuit reversed the district court and ordered the claim to proceed to trial.
Render v. FCA US LLC, 6th Cir., No. 21-2851 (Nov. 16, 2022), petition for rehearing en banc denied (Dec. 28, 2022).
Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.
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