Altered Paperwork Nullifies Employee’s Entitlement to FMLA

In response to a district court’s grant of summary judgment, Tanum Smith appealed her case against her former employer, The Hope School, to the Court of Appeals for the Seventh Circuit for denying her rights under the Family and Medical Leave Act (FMLA).  Smith maintained that the district court improperly held that her application for leave was fraudulent because she altered a health care provider’s certification form, arguing that the alteration was irrelevant because she was entitled to medical leave based on the authentic, unchanged information.  Finding that Smith was neither entitled to FMLA, because of her submission of false paperwork, nor fired in retaliation for asserting her rights under the act, the court of appeals affirmed the judgment of the district court.

The case is Tanum Smith vs. The Hope School

From May 5, 2005 until September 19, 2006, Tanum Smith worked for the Hope School, a residential facility for children with developmental disabilities.  During the course of 2006 Smith was injured in two separate physical altercations with students. The first incident occurred on April 3, 2006. A student pushed Smith to the ground, struck her, and kicked her.  The second incident followed shortly after the first, on June 9, 2006.  That time, a student struck Smith in the mouth, causing her to suffer a chipped tooth and neck pain.  Smith filed workers’ compensation claims in Illinois after each incident.

After the June 9 altercation, Smith visited a chiropractor, who advised her to stay home from work for two or three weeks.  Smith returned to work and, as requested by her doctor, was confined to light duty. After the two attacks, Smith was apprehensive about working with students, but had no contact with them in her new assignment.  Attendant to her workers’ compensation claims, Smith went to a selected physician for an independent medical examination. On August 10, the physician approved Smith’s return to work without any restrictions.  However, just four days later, Smith’s primary care physician gave her a note restricting her to light duty and assignments that would not require her to be around The Hope School residents.  Smith’s primary physician had previously treated her for mild anxiety, a condition that Smith claimed was triggered when she was around students.  He also referred her to a neurologist for neck pain.  Ultimately, the neurologist informed the Hope School that she did not require any work restrictions.  In response, Smith was transferred to the dietary department.  She reported to the school’s human resources department that a student had approached her in the kitchen and Smith complained that she had not been provided with a safe work environment.  Smith indicated that she was leaving work and that she would not return until she had a safe job assignment.  The Hope School claimed that a letter was sent to Smith the next day.  In it they addressed their resolution to her complaint and attendance expectations, advising that if she did not report for work on that Friday, August 25, it would be considered an unexcused absence.  Smith claimed that she never received this letter and saw it for the first time when she sat for her deposition.

On August 25, Smith showed up at work and clocked in, although she left within a few minutes without reporting to anyone that she was leaving.  Smith claims that she did report that she left work by leaving a voicemail message.  The following Monday, Smith met with the human resource employee responsible for FMLA claims at the Hope School.  Disputing what happened at the meeting, the human resource employee testified that Smith said she was only considering applying for FMLA leave.  Smith testified that she told the human resource employee that she was too stressed to work, and that she was going to see her doctor immediately and was not coming back.  Smith did not show up for the next scheduled work day and did not call her supervisor to report her absence.  In response, the Hope School sent Smith another letter telling her about security provisions at the school if she felt unsafe at work, and telling her once more that failing to show up at work would count as an unexcused absence.

On September 6, Smith picked up her FMLA paperwork from her physicians office, and later faxed it to the Hope School.  The Hope School’s human resource personnel suspected that the doctor’s description of Smith’s condition on the health care provider’s certification form had been altered.  Added below the narrative, were the words “plus previous depression.”  Smiths physician had never diagnosed her with depression, nor had any other doctor diagnosed or treated her for that condition.  Smith had also backdated her portion of the signature line of the FMLA form to August 25, despite the fact that she did not pick up the forms until August 28. Finally, she filled out a separate “Attending Physician’s Statement” in its entirety, listing diagnoses of muscle tension, chronic headaches, and depression.  The Hope School contacted Smith’s primary care physician’s office and confirmed the suspected alteration. 

On September 11, the Hope School denied Smith’s request for FMLA leave and mailed a formal notice of the denial, citing Smith’s altered paperwork and failure to provide timely notice.  They also began disciplinary proceedings against Smith because her absences exceeded three consecutive days, which violated the school’s employee attendance policy.  On September 6, the Hope School mailed Smith a letter telling her that they had scheduled her termination hearing for September 12.  The parties disputed whether this proceeding was scheduled before or after Smith turned in her FMLA paperwork to The Hope School.  Smith did not attend the September 12 meeting and it was rescheduled for September 14.  Smith attended that meeting, where she learned that her employer was contemplating terminating her because of her absences from work.  She also attended an additional disciplinary meeting on September 19.  At that meeting, Smith asked about the status of her request for FMLA leave and was advised that her request had been denied.  As a result of that meeting, Smith’s employment was terminated.

On October 24, 2006, Smith filed a two-count complaint against the Hope School.  Count one of her complaint claimed that the Hope School had denied her rights under the FMLA by denying her leave and terminating her in retaliation for requesting leave.  Count two alleged that she was terminated in retaliation for filing Illinois workers’ compensation suits.  The Hope School moved for summary judgment at the close of discovery, and the district court granted that motion.  Smith appealed.

This case presented the appeals court with a slightly different question from those that courts have previously addressed.  Smith presented the theory that an employee only fraudulently obtains leave if she alters a form that would not have otherwise entitled her to it. 

The court was convinced that Smith’s proposed theory would have the effect of encouraging applicants to dress up an application for leave by adding non-existent conditions.  The phony diagnosis was confirmed with a single, yet improper, phone call.  Until the regulations were changed, an employer following the rules could confirm that an employee had submitted a false diagnosis only by requesting an expensive and time-consuming second opinion from a different physician.  Since Smith’s complaint did not allege any injury from this breach, and the FMLA provides no remedy for such a violation unless it interfered with or restrained an employee’s rights under the act, the appeals court only noted that the applicable regulation was amended.  The appeals court agreed with the district court’s summary judgment opinion and found that Smith’s alteration of the form invalidated her application for leave under the FMLA, thus finding that, the Hope School did not interfere with her rights under the act or retaliate against her for asserting them.