8th CIRCUIT SAYS EMPLOYEE FAILED TO PROVIDE FMLA NOTICE

The United States Court of Appeals for the Eighth Circuit says that an employee who had often followed a company’s call-in procedure in the past, but instead relied on a coworker to notify her employer of her need for Family and Medical Leave Act (FMLA) leave failed to provide sufficient notice of her need for FMLA leave. The employee’s retaliation claim was also rejected because the employee did not provide notice on a timely basis.

8TH CIRCUIT RULES ANXIETY MAY PUT AN EMPLOYER ON NOTICE

The United States Court of Appeals, Eighth Circuit, has ruled that an employee who is in obvious distress has put an employer on notice of a possible need for leave under the Family and Medical Leave Act (FMLA).  When Ruby Clinkscale appealed a district court’s grant of summary judgment in favor of her former employer, St. Therese of New Hope, on her interference claim brought under the FMLA, the 8^th Circuit reversed the decision.

The case is Clinkscale v. St. Therese of New Hope.

St. Therese is a long-term care facility located in New Hope, Minnesota.  From 2005 to 2010, Clinkscale worked as a nurse in St. Therese’s rehabilitation unit.  Despite an understanding among employees that St. Therese’s nursing staff may be floated to different units within the facility, Clinkscale received training only for the rehabilitation unit and worked there exclusively until October 11, 2010, when she was reassigned to St. Therese’s long-term care unit.

Clinkscale, who began experiencing symptoms of an undiagnosed anxiety disorder earlier in 2010, expressed apprehension about working in a unit for which she was not trained.  Emphasizing that she was not refusing to work, Clinkscale merely reiterated an earlier request for unit-specific training prior to reassignment.  Clinkscale’s supervisors informed her that she had “no choice.  You either work or you don’t have a job and that’s called patient abandonment and you can lose your license.”  Clinkscale immediately went to St. Therese’s human resources (HR) office to speak with the HR Director, Rand Brugger.  During their conversation, Clinkscale exhibited signs of a panic attack: crying and shaking so severely that, at one point, she requested an ambulance.  In light of Clinkscale’s obvious distress, Brugger instructed her to go home and said they would work something out the next day.

Once home, Clinkscale made an appointment with her doctor for the following morning, October 12.  Her doctor suggested the anxiety attack had been situationally triggered, advised therapy, and prescribed two medications.  In a note addressed to St. Therese, Clinkscale’s doctor recommended she take the remainder of the week off from work. At 9:30 the same morning, Clinkscale delivered her doctor’s note to St. Therese’s HR department.  In return, the HR department provided Clinkscale with FMLA forms, which she gave to her doctor to complete.  Later on October 12, however, a member of St. Therese’s HR staff called Clinkscale at home to inform her that she had been terminated the previous day for walking off the job.  Clinkscale’s doctor returned the FMLA forms two days later, on October 14, 2012, describing Clinkscale as suffering from anxiety and panic attacks and requesting she be excused from work for one week due to the severity of her condition.  On October 22, 2010, St. Therese registered a complaint regarding Clinkscale with the Minnesota Board of Nursing, alleging that Clinkscale had refused work assignment & walked out.

Clinkscale filed suit against St. Therese in the District of Minnesota.  Among other claims, she alleged St. Therese impermissibly interfered with her right to take reasonable leave for medical reasons in violation of the FMLA. St. Therese moved for summary judgment, arguing Clinkscale was not entitled to FMLA rights because she had no longer been an employee at the time she asserted them and, in any case, Clinkscale had been terminated for reasons wholly unrelated to the FMLA. The district court granted summary judgment in St. Therese’s favor on all claims.  With respect to Clinkscale’s interference claim, the court concluded St. Therese did not have notice of Clinkscale’s need for medical leave prior to her termination and, alternatively, Clinkscale had been terminated for patient abandonment and not for asserting her FMLA rights.  Clinkscale appealed the district court’s grant of summary judgment in favor of St. Therese on her FMLA interference claim.

To state a claim for interference under the FMLA, Clinkscale must have given notice to St. Therese of her need for FMLA leave.  Whether an employee gave sufficient information to put his or her employer on notice that an absence may be covered by the FMLA is a question of fact for the jury.  The district court concluded a reasonable jury could find the October 12 doctor’s note was sufficient to put St. Therese on notice that Clinkscale may have had a serious health condition.  It further concluded, however, the notice had been provided too late, as Clinkscale had already been terminated when it was provided.  The FMLA establishes that when leave is needed for an unforeseeable event, notice is required as soon as practicable.  This ordinarily means at least verbal notification to the employer within one or two business days of when the need for leave becomes known to the employee.

On October 11, Clinkscale exhibited signs of severe distress and visible manifestations of anxiety as a result of her work reassignment.  St. Therese’s HR Director instructed Clinkscale to go home and attend to her health.  By 9:30 the next morning, Clinkscale had provided St. Therese with a doctor’s note alerting St. Therese of Clinkscale’s condition and need for medical leave.  As Clinkscale argued, this notice fell well within the two-day window, and a jury could reasonably conclude it had been provided as soon as practicable under the circumstances.

St. Therese emphasized, and the district court relied upon, the argument that Clinkscale was no longer an eligible employee when she put St. Therese on notice of her health condition because her supervisors construed Clinkscale’s leaving as quitting.  Clinkscale only left the premises, however, upon the instruction of St. Therese’s own HR Director.  In addition, St. Therese admited Clinkscale’s supervisors and the HR staff did not discuss her allegedly voluntary termination until the morning of October 12 — the same morning Clinkscale provided St. Therese with her doctor’s note by 9:30 a.m.  Indeed, St. Therese’s response to Clinkscale’s submission of her doctor’s note that morning was not to inform her that she was no longer employed, but to provide her with FMLA forms.  Accordingly, the 8^th Circuit believed a question of material fact remained as to whether St. Therese was on notice of Clinkscale’s potentially FMLA-qualifying condition prior to its determination that her employment had ended.

Assuming that Clinkscale did not voluntarily quit, St. Therese argued that Clinkscale was terminated for patient abandonment.  Clinkscale’s supposed abandonment, however, was precipitated by a panic attack — a symptom of her anxiety disorder and the reason she required medical leave.  Furthermore, Clinkscale’s doctor characterized her anxiety from October 11 as situationally triggered.  Combined with the fact that Clinkscale left the premises almost immediately thereafter at Brugger’s direction, St. Therese cannot reasonably claim her termination bore no relation to her FMLA-qualifying condition and leave.  Given the evidence suggesting a causal connection between Clinkscale’s condition and her patient abandonment, the 8^th Circuit said the district court erred in concluding as a matter of law that Clinkscale’s refusal to work due to a perceived lack of training is not related to a medical diagnosis of anxiety.

For these reasons, the 8^th Circuit said the district court erred in concluding as a matter of law that Clinkscale could not establish an interference claim under the FMLA.

Employers need to be aware that when an employee shows signs of severe distress and anxiety, they should consider that notice of possible FMLA leave has been given.  Employers should also use common sense: if an HR manager tells an employee to go home, don’t fire the employee for taking that advice!