Last month, we reported on a Seventh Circuit case demonstrating the broad scope of the EEOC’s investigative and supervisory powers. In that case, EEOC v. Konica Minolta Business Solutions U.S.A., Inc., the court upheld an EEOC subpoena seeking to obtain the production of hiring data from the employer in response to a charge alleging racial discrimination with respect to terms and conditions of employment and eventually discharge. Today, we report on a case that demonstrates that the EEOC’s investigative and subpoena powers are not limitless.

In EEOC v. UPMC, Carol Gailey, the charging party, was terminated by The Heritage Shadyside on June 22, 2008, for exceeding her maximum available leave of absence. Heritage Shadyside is a wholly-owned subsidiary of UPMC Senior Communities, Inc., which in turn is a wholly-owned subsidiary of UPMC. Heritage Place employs 170 people while UPMC employs over 48,000 people. Ms. Gailey filed a charge with the EEOC alleging disability discrimination. In response, Heritage Shadyside filed a position statement and attached several UPMC policies, including the leave of absence policy, which provided the basis for termination. The EEOC then sent a request for information to UPMC – not Heritage Shadyside – requesting the identities of employees at "all facilities in the Pittsburgh region" who had been terminated pursuant to the UPMC leave and disability policies for the period July 1, 2008 "to the present." UPMC objected to the scope of the EEOC’s request and the EEOC issued a subpoena for this information.


Continue Reading Federal Court Reels In EEOC’s Fishing Expedition

As the Seventh Circuit in Righi v. SMC Corporation of America noted, it generally does not take much for an employee to preserve his rights under the FMLA; he must simply provide enough information "to place the employer on notice of a probable basis for FMLA leave."

When Robert Righi abruptly left a mandatory training seminar to care for his ill mother, however, he only sent an e-mail that said that he needed "the next couple days off" to arrange for his mother’s care and that he had vacation time available or "could apply for the family care act, which I do not want to do at this time." Mr. Righi’s manager attempted to call him on his cell phone several times over the next week or so to clarify his request for leave, but Mr. Righi had turned off his phone. His manager also left two messages with his roommate. It wasn’t until the ninth day after taking his leave that Mr. Righi called in. At that point, however, his manager called him into the office and fired him the next day.

When an employee fails to give his employer proper notice of the need for FMLA leave, the employer has no duty to provide it. Stated otherwise, an employee’s failure to comply with the FMLA’s notice requirements precludes a claim that the employer interfered with his rights under the FMLA because he failed to fulfill his obligations in order to be protected. While not sufficiently clear to trigger SMC’s obligation to provide written FMLA materials and certification forms to Righi, his email did trigger SMC’s obligation to make further inquiry as to whether he intended to designate his leave as FMLA. The Seventh Circuit held that SMC met that obligation by making multiple phone calls to him and that Righi’s failure to respond "doom[ed] his FMLA claim because he not only failed to designate his leave as FMLA, but he also failed to give SMC any indication as to when he would be returning to work." 


Continue Reading Seventh Circuit Upholds Denial of FMLA Leave To Employee Who Ignored Employer’s Telephone Calls