Finding that the circumstances surrounding the plaintiff’s initial absence from work and his doctor’s note were enough for a reasonable jury to find that his employer was on notice of a request for FMLA protections, the Sixth Circuit Court of Appeals reversed the district court’s decision granting summary judgment to the employer in Festerman v. County of Wayne, 14-1950 (6th Cir. 2015). The court also found that there was sufficient evidence to permit a reasonable jury to find that the plaintiff was constructively discharged in retaliation for seeking FMLA leave. As a result, the case was remanded back to the district court for trial.
Robert Festerman was employed with Wayne County as a deputy in the Wayne County jail, which was managed by the Wayne County Sheriff’s Office, for about five years. The deputies were regularly scheduled for mandatory overtime, which they were not permitted to refuse. Any deputy who failed to report for overtime assignments would receive a Conduct Incident Report (“CIR”). On March 3, 2012, Festerman began having chest pains and shortness of breath during his shift. He was transported to the hospital by ambulance and his sergeant filed an incident report regarding Festerman’s medical issue the same day.
Festerman returned to work several days later with an injury report and a doctor’s note which stated he was to limit working hours to 8 hours per day. Festerman’s doctor also prescribed medicine for his anxiety disorder. Wayne County accommodated Festerman’s medical request of no overtime for several weeks; however, on March 29, 2012, the Sheriff’s office began denying all medical requests for no overtime work, and began issuing CIRs to all deputies who refused to work overtime shifts.
The next week, Festerman received three CIRs for refusing overtime work. Commander Gatti recommended Festerman be referred for administrative review for failing to follow a direct order. Wayne County also modified Festerman’s job description—increasing the minimum number of hours in a workweek from 40 hours to 40.5 hours and making mandatory overtime an essential function of the position.
In mid-April, Festerman spoke with two human resources employees regarding the CIRs. Festerman alleges he was advised to complete all necessary paperwork for FMLA intermittent leave. Festerman inquired about whether the medical note submitted in March was sufficient, and alleges he was told it was. Festerman received the leave of absence packet, and submitted the completed forms to Wayne County within a couple of weeks. Several days after submitting the FMLA paperwork, the HR representative sought clarification from Festerman’s doctor regarding his work schedule and workday shifts.
Alleging that he and other deputies with medical issues were being harassed, Festerman resigned his employment on June 20, 2012, before the HR representative received a response from his doctor.
Festerman filed suit in the District Court on April 25, 2013, alleging FMLA interference and retaliation. Wayne County filed a motion for summary judgment, asking the court to dismiss the case, which the court granted in June of 2014.
Festerman appealed to the Sixth Circuit Court of Appeals. Focusing on the FMLA interference claim, the court examined whether the district court erred when it granted the motion regarding the FMLA interference claim. The court examined whether the medical note from Festerman’s doctor was sufficient notice to trigger FMLA protections, and found that a reasonable jury could conclude that it was.
Although the court found Festerman’s doctor’s note did not reveal the condition that gave rise to the overtime limitation or any additional prescribed treatment, it disclosed a requirement of limiting the number of hours Festerman could work in a day. The note coupled with the circumstances surrounding the initial qualifying leave—the serious health-related incident at work which required he be transported to the hospital, were enough to provide the employer with notice that a potential FMLA-qualifying condition might exist.
The court found Festerman had raised genuine issues of material fact as to whether he satisfied the FMLA notice requirements on March 12, 2012.
Even when employees have not explicitly asked for FMLA leave, employers should err on the side of providing FMLA benefits when the circumstances suggest that the employee might be eligible. Employers should also train human resources representatives and supervisors how to recognize and respond to issues that might suggest that FMLA leave is being sought.