FMLA and Termination, Illness, Cause
by Gerard Panaro, BOL Guru
Mainor v. Bankfinancial FSB, 2005 WL 551878 (N.D. Ill.) raises three good issues: 1) a person who submitted a letter of resignation to take effect in two weeks, but whose employer dismissed her immediately is no longer an employee and cannot sue for denial of FMLA leave once she has resigned her position; the employer is not obliged to keep her on the payroll for the two week notice period; 2) a few visits to the doctor do not meet the FMLA criteria for a "serious health condition"; and 3) telling one's employer that she needs time off to visit her sick grandmother does not qualify as adequate notice of a request for FMLA-qualified leave.
The case began when the plaintiff requested leave under the FMLA so that she could accompany her mother on a visit to her sick grandmother. She didn't give any other reason for why she was requesting leave. She was told she could not take a leave of absence under the FMLA to visit her grandmother, but she could take a personal leave of absence. Later that day, the plaintiff submitted a resignation letter, effective two weeks later. The bank made the resignation effective immediately, although it did pay her for the two weeks. That night, the plaintiff went to the emergency room because she felt dizzy and nauseous. In previous months, she had visited a health care provider approximately every other month. She never received a formal diagnosis regarding her health during those visits: the doctor talked to her about stress and told her to exercise and eat more healthy foods.
The next day, the plaintiff called in to the bank to say she wouldn't be in, but was told she had already been terminated. She sued under the FMLA. Her first claim was that the bank violated the FMLA by denying the request she made after her resignation had been accepted. The court rejected this claim, stating that "the only request for leave that could possibly give raise to a valid claim occurred ... when Plaintiff was still employed by Defendant." The plaintiff was not entitled to any FMLA leave requested after her resignation became effective. "The FMLA applies to current employees, not former employees who have voluntarily chosen to resign", the court explained. Employers are not required to provide leave to employees who have voluntarily and with no undue interference decided to resign from employment. "The plain language" in the employee handbook stating that employees must tender their resignations two weeks prior to the final date of employment does mean, the court added, that the bank was required to wait two weeks to accept the plaintiff's resignation.
The second issue in the Mainor case was whether the plaintiff suffered from a "serious health condition" qualifying her for FMLA leave. The court said no. Beginning by noting that the FMLA does not "supplant employer-established sick leave and personal leave policies," but provides leave "for more uncommon and, presumably, time-consuming events" such as a "serious health condition", the court cited the definition of "serious health condition" as involving "continuing treatment by a health care provider" (the other part of the definition - inpatient care in a hospital, etc., didn't apply in this case because the plaintiff never received inpatient care).
"At best," the court found, in this case, the plaintiff "made a few visits to a physician for 'checkups' in the months prior to her resignation and subsequent emergency room admission. During those visits, she talked to her doctor about stress management. She was never formally diagnosed during those visits, nor does it appear that any doctor was in search of a diagnosis for [her] state of health. [She] was not prescribed any medication, and instead was advised that she should exercise and improve her eating habits." The plaintiff didn't submit any affidavits from medical personnel. This does not establish a chronic health condition covered by the FMLA, the court concluded.
In support of its ruling, the court cited a Seventh Circuit case (Illinois is covered by the U.S. Court of Appeals for the Seventh Circuit) in which the Seventh Circuit had to determine whether the plaintiff suffered from a serious health condition. The plaintiff in that case did not submit an affidavit from his own doctor or any other medical personnel demonstrating the necessity of the treatments he supposedly received and his own self-serving assertions regarding the severity of his medical condition and the treatment it required were insufficient to state a claim. The Seventh Circuit concluded that the "complete dearth of evidence submitted by [plaintiff] on this issue compels the conclusion that [plaintiff] is incapable of establishing that he suffered from a 'serious health condition'...".
Finally, on the third issue - sufficient notice under the FMLA - the court likewise ruled against the plaintiff. Again citing the Seventh Circuit, the Mainor court noted: "Although workers need not expressly assert rights under the FMLA ... employers are still entitled to the sort of notice that will inform them not only that the FMLA may apply but also when a given employee will return to work." For example, an employee can't simply tell her employer that she is "sick" in order to explain her absence without providing more evidence of a serious health condition. In this case (Mainor), the court emphasized that the plaintiff "submitted no evidence indicating that she told her employer that she was suffering from a serious health condition prior to her resignation; instead, she asked for leave to visit her grandmother." (Emphasis in original.) She did not present anyone at the bank with specific information regarding her medical status. She instead argued to the court, as the court expressed it, that the bank personnel, "based on personal observation, knew or should have known that Plaintiff suffered from a serious health condition." But the only "change" in the plaintiff that anyone at the bank observed was a change in her demeanor: she was "not as vibrant as she had been." A simple, insignificant change in demeanor, the court said, is not enough to put the employer on notice that the employee suffered from a serious health condition covered by the FMLA.
First published on BankersOnline.com 03/21/05
About the Author:
Gerard P. Panaro has more than 25 years' experience in employment law and is available to assist readers on an individual basis. You may reach him at 202-861-1314. Mr. Panaro is of counsel with Howe & Hutton, in the Washington, DC office.
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