Both the Third and Sixth Circuit Courts of Appeal issued decisions last month reminding employers that providing proper notices to employees is a key to administering the FMLA. In Wallace v. FedEx Corporation, the Sixth Circuit upheld the district court’s ruling that the employer interfered with its employee’s FMLA rights when it failed to

In Shoun v. Best Formed Plastics, Inc., a federal judge held that an employer may be liable for an employee’s snarky Facebook comments about another employee’s medical condition. This case serves as a good reminder to employers and employees alike of the importance of preserving the confidentiality of employee medical information.

Factual background

George Shoun, an employee at Best Formed Plastics, suffered a workplace injury and took a few weeks off work to recover. Jane Stewart, another employee, processed his worker’s compensation claim and monitored his medical treatment for the company. In doing so, she learned the nature and extent of his injury.

For whatever reason, Stewart took to her personal Facebook page and posted: “Isn’t [it] amazing how Jimmy experienced a 5 way heart bypass just one month ago and is back to work, especially when you consider George Shoun’s shoulder injury kept him away from work for 11 months and now he is trying to sue us.” The post stayed up for 76 days and, according to Shoun, was viewable by surrounding business communities.

Shoun sued the company claiming it, through its employee, violated the ADA by “deliberate[ly] disclos[ing] [his] medical condition to another person.” He also claimed Stewart “acted with the intent to expose him to public scorn and ridicule and to blacklist him among prospective employers within her broad network” that resulted in a loss of employment, impaired his earning capacity, and caused him emotional distress and mental pain and suffering.

The employer moved to throw out the case with a motion to dismiss and made two arguments: (1) it could not be liable for violating the Americans with Disabilities Act’s (ADA) confidentiality provisions because Shoun voluntarily disclosed his medical condition to the public before Stewart’s Facebook post; and, (2) Shoun failed to allege a tangible injury that resulted from the alleged ADA violations.

The decision

Medical information is confidential, and here is why: Section 102 of the ADA provides that any information relating to a medical condition of an employee obtained by an employer during “voluntary medical examinations, including voluntary work histories, which are part of an employee health program available to employees at that work site,” must be “collected and maintained on separate forms and in separate medical files and [be] treated as a confidential medical record.”

To state a viable claim under the ADA’s confidentiality provisions, a plaintiff has to allege (1) his employer obtained the medical information through employment-related medical examinations and inquiries; (2) the information was disclosed by the employer and not treated confidentially; and (3) the employee suffered a tangible injury as a result of the disclosure.

On the voluntary disclosure issue, it turns out Shoun did disclose his medical condition in a complaint he filed in a state court lawsuit before Stewart’s Facebook disclosure. The employer alleged it could not be liable because Stewart’s disclosure was just her reciting facts that Shoun had already voluntarily and publicly disclosed.

Neither side alleged Shoun voluntarily disclosed the information to Stewart or the employer, so the employer could not rely on the fact that the information had been publicly disclosed to get out of the suit. The court did not take up the issue of whether Stewart obtained the information from a public source. The issue was whether Shoun pleaded that Stewart obtained the information through an employment-related medical inquiry and then wrongfully disclosed it. According to the court, Shoun had.

Continue Reading Federal court finds employer may be liable under the ADA for employee’s snarky Facebook comments about another employee’s medical condition

Employers who have been concerned about the EEOC’s stance on inflexible maximum leave policies can find some comfort in the Tenth Circuit’s decision in Hwang v. Kansas State University, wherein the court held a six month leave of absence was a reasonable accommodation, and the University’s denial of additional time was not a violation of the Rehabilitation Act.


Grace Hwang was employed as a professor at Kansas State University from 1994 until February 2012, on a year-to-year contract. Ms. Hwang served as an assistant professor in KSU’s School of Leadership Studies. In 2005, Hwang was diagnosed with breast cancer. She underwent surgery, chemotherapy and radiation and missed about three weeks of work. Hwang returned to her full load of classes for four years until she was diagnosed with leukemia. Hwang was encouraged to participate in an aggressive course of chemotherapy and to have a bone marrow transplant, which would keep her away from work for about six months. At that time, Hwang had only two months of paid leave time, so she applied for and received additional paid leave through KSU’s Shared Leave Program.

Hwang was released from the inpatient care facility in November 2009. However, at the time of her release, KSU was dealing with a severe outbreak of the H1N1 virus. Hwang’s physicians advised she stay away from campus due to her compromised immune system. Hwang contacted Dr. Mary Tolar, her supervisor, to let her know that she would need to take additional leave through the spring semester. Hwang stated, however, that she planned to teach her online course during the summer.

Continue Reading University gets it right when it says, “enough is enough”: Tenth Circuit upholds inflexible leave policy under Rehabilitation Act

Courts in the past, including in the Sixth Circuit (which includes Ohio), have held that telecommuting is not required as a reasonable accommodation because regular attendance at work on a predictable schedule is an essential function of almost all jobs (excepting those that are regularly done by all employees from a remote location). On April

The Sixth Circuit Court of Appeals has reversed a district court finding of summary judgment in the employer’s favor in Demyanovich v. Cadon Plating & Coatings et al., concluding that Cadon Plating may be a covered employer under the FMLA based on its relationship with an affiliated company and that its termination of an employee almost immediately after he requested FMLA leave may have violated both the FMLA and ADA.


Alan Demyanovich worked for Cadon Plating & Coatings for over 20 years as a helper, operator, and an area leader. In late 1998, Demyanovich experienced health problems.  His doctor diagnosed him with congestive heart failure. Demyanovich took 2-1/2 months of FMLA leave due in early 1999 and was cleared to return to work with two restrictions. Demyanovich was not to lift more than 50 lbs. and was not to work more than 40 hours per week.

Over the next 10 years, Demyanovich took FMLA leave several times for his heart and other medical reasons. In November of 2009, Demyanovich’s heart condition worsened, so he again requested FMLA leave. Demyanovich returned in mid-December with the same two restrictions. His physician also stated he was not to work overtime indefinitely. Around that same time, Demyanovich requested he be given lighter duty assignments, including switching to a sorting position, which would allow him to sit while working, or assigning him to a position at the end of the plant line, where he would not need to move as quickly. Cadon denied these requests and continued to schedule Demyanovich to work overtime.

Demyanovich went to his doctor again in February of 2010, during which time his doctor allegedly told him he should quit work and apply for social security disability benefits. In spite of that advice, Demyanovich returned to Cadon and requested FMLA leave. Al Ensign, Cadon’s Vice President, denied Demyanovich’s leave request, stating he believed Cadon did not have enough employees to be subject to the FMLA. Mr. Demyanovich also alleges Mr. Ensign informed him he no longer had enough points under Cadon’s attendance policy to take additional absences and called him a liability. Mr. Ensign terminated Mr. Demyanovich from employment in or around February 23 or 24th.

Demyanovich Files Suit

Demyanovich sued Cadon and Ensign in federal district court in December of 2010.  His amended complaint included allegations of  FMLA interference, FMLA retaliation, disability discrimination, and ADA retaliation.  Cadon moved for summary judgment, which the district court granted.

The district court provided the following reasoning:

  • Demyanovich was not an eligible employee under the Act, because he did not show he would have been able  to work after the end of his 12-week FMLA leave.
  • Cadon did not have to accommodate him by modifying his work schedule or permitting him to take leave;
  • Demyanovich could not work in any capacity; and
  • Demyanovich failed to create a genuine issue of fact as to his FMLA retaliation claim,
  • Demyanovich could not prove his ADA discrimination or retaliation claims because he was not a “qualified individual;” and
  • The evidence unquestionably showed that Demyanovich was incapable of performing any job.

The court did, however, recognize a question of material fact remained whether Cadon was a covered employer under the FMLA.

The Sixth Circuit Disagrees

Demyanovich appealed to the Sixth Circuit Court of Appeals. The court ultimately reversed the district court’s ruling regarding the FMLA interference claim, FMLA retaliation, and the ADA claim.

Continue Reading You must watch the company you keep to ensure FMLA compliance!

In Russell v. Citigroup, Inc. the Sixth Circuit held that an agreement to arbitrate “all employment-related disputes” with the company does not include cases already pending in court when the employee signed the arbitration agreement.


From 2004 to 2009, Keith Russell worked at Citicorp’s call center in Florence, Kentucky. As a condition of employment,

Two centuries ago, the Justices of the Ohio Supreme Court “rode the circuit” on horseback across the State, holding court in Ohio’s many county courthouses. A bit of that tradition survives today under the Court’s Off-Site Court Program, which is held twice a year outside of Columbus in order to educate high school students and other Ohio citizens about Ohio’s judicial system. As the Court’s website explains,

“When the Supreme Court holds court off-site, public, private and home-schooled high school students from throughout the host county are invited to participate. The students and their teachers are provided with curriculum material to study before the session, including summaries of the specific cases to be argued. Local attorneys team with educators at each participating school to explain Ohio’s judicial system and review case materials. On the morning of the court session, selected students attend a question and answer session with the justices of the Court. Then, students from each participating school attend one of the four oral arguments. After their assigned case has been argued, each group of students meets with the case attorneys for a debriefing.”

On April 9, at an off-site session to be held at the University of Toledo College of Law, the Ohio Supreme Court will be hearing oral arguments in an interesting employment dispute, Cedar Fair, L.P. v. Falfas, Ohio Supreme Court Case No. 2013-0890. The case concerns Jacob “Jack” Falfas, a longtime employee of Cedar Fair, which is the publicly-traded entity that owns Cedar Point and several other amusement parks across the country. Falfas worked his way up the corporate ladder to become Chief Operating Officer, and he was employed pursuant to a 2007 Amended and Restated Employment Agreement, with an automatic three-year renewal commencing on December 1, 2009 (and on every subsequent three-year anniversary) unless one of the parties provided advance notice of intent to terminate.

In June 2010, after a short telephone call with Cedar Fair’s CEO, Falfas’s employment ceased. Cedar Fair took the position that Falfas had resigned, while Falfas contended that he was terminated. In a 2-1 decision, an Arbitration Panel determined that Falfas was terminated for reasons other than cause, and that the facts failed to establish resignation. Most notably for purposes of this appeal, the arbitrators found that “equitable relief was needed to restore the parties to the positions they held prior to the breach of the Employment Agreement.” The Arbitrators thus directed that Falfas be restored to his former position as COO, with back pay.
Continue Reading Ohio Supreme Court to hear notable employment dispute at special off-site session in Toledo