Discovery Strategies and Challenges in Family and Medical Leave Cases
National Employment Lawyers Association Fall Convention
The federal Family and Medical Leave Act (FMLA) equalized the competitive playing field for employers who valued their employees’ balance of work, health, and family responsibilities prior to its enactment. It requires all employers of a certain size to provide their employees leave for the birth of a child, pregnancy- related complications, family obligations, and serious health conditions. However, it does not apply to all employers, employees, or illnesses. The FMLA applies only to employers which employ at least fifty (50) employees; employees who have worked for their employers for at least one year; and employees who suffer from serious health conditions. This paper describes the two causes of action under the FMLA, identifies what documents and information an employee’s lawyer should gather before filing a complaint, identifies what information an employee’s lawyer should seek during discovery and suggests how an employee’s lawyer might respond to the management lawyer’s request that the employee allow access to all of her
medical records, even those that do not relate to the condition that necessitated her medical leave-taking.
Causes of Action. The federal Family and Medical Leave Act (FMLA) provides for unpaid leave due to the birth of a child, placement of a child, or serious illness of the employee or a family member. Maternity and paternity leave start on the date of a child’s birth. Pregnancy-related complications qualify for leave under the Act’s serious medical condition provision. 29 C.F.R. § 825.120(a)(4). Furthermore, it is unlawful for an employer to interfere with leave that an employee is entitled to take or to retaliate against an employee who takes leave. It is the employer’s responsibility to determine if the FMLA applies to its employees. See § 825.302(c).
Thus, there are two distinct causes of action under the FMLA: 1) Retaliation; and 2) Interference. In an FMLA retaliation case, the employee must demonstrate that her employer intentionally retaliated against her.1 In an FMLA interference case, the employer’s motive is irrelevant. If her employer fails to reinstate her or otherwise interferes with her FMLA rights, the employer is strictly liable.2
Retaliation. Below is a sample FMLA Retaliation jury instruction given in the United States District Court for the District of Columbia in Breeden v. Novartis:
The Family and Medical Leave Act, FMLA, permits an employee to take leave for the birth of the employee’s son or daughter, or to care for the child after birth. Ms. Breeden claims that Novartis intentionally retaliated against her because she notified Novartis that she needed to take FMLA leave for the birth of her child. In order to prevail on her claim of intentional retaliation, Ms. Breeden must prove all of the following elements by a preponderance of the evidence, each of these four elements:
First, that Ms. Breeden notified Novartis of her need to take leave under the Family and Medical Leave Act for the birth of her child. This fact is stipulated to or agreed by the parties, so you should assume it.
Second, that Ms. Breeden was subjected to a materially adverse action at the time or after she notified Novartis of her need to take leave under the FMLA. A materially adverse action is one that might well have dissuaded a reasonable employee from requesting FMLA leave.
Third, that there was a causal connection between Novartis’ allegedly material adverse action and Ms. Breeden’s notice to Novartis of her need to take FMLA leave.
And fourth, that Ms. Breeden lost compensation or benefits by reason of Novartis’ alleged adverse action, or sustained other monetary losses as a direct result of the alleged adverse action.
Retaliation is intentional if it is done voluntarily, deliberately, and willfully. In making a determination as to whether there was intentional retaliation in this case, you may consider any statement made or act done or omitted by a person whose intent is in issue, and all other facts and circumstances that you believe indicate his or her state of mind. You may also infer that a person intends the natural and probable consequences of acts that are knowingly done or knowingly omitted.
To establish the required causal connection, Ms. Breeden must prove by a preponderance of the evidence that her exercise of her right to maternity leave was a motivating factor in Novartis’ decision to assign the Maryland area accounts to another sales representative. Ms. Breeden’s exercise of her FMLA rights was a motivating factor if it played a role in the decision, even though other factors may also have played a role in those realignment and reassignment decisions. Ms. Breeden is not required to prove that her exercise of her FMLA rights was the only reason for Novartis’ decision.
Novartis denies that its selection decision during the realignment were motivated by retaliation for Ms. Breeden’s exercise of her FMLA rights, and contends that they were motivated by legitimate business reasons. Ms. Breeden contends that those reasons are a pretext for unlawful retaliation. A pretext is an excuse or a false reason. Ms. Breeden can prove pretext by persuading you, again by a preponderance of the evidence, that her exercise of her FMLA rights was more likely the basis for the reassignment of sales territories than the reasons given by Novartis, or by persuading you that the reasons given by Novartis are not believable.
If you find that Ms. Breeden has proven by a preponderance of the evidence that retaliation more probably than not motivated Novartis, then you must find for Ms. Breeden. If you find that Novartis’ explanation is unworthy of belief, then you may conclude, but you’re not required to conclude, that Novartis’ real motive was retaliation.
It is not enough for Ms. Breeden to show that Novartis’ actions were unjust or unfair or not sensible. It is not your function to second-guess the wisdom of Novartis’ decision in this case. Territories may be reassigned and employees may be terminated for any reason, whether good or bad, as long as unlawful retaliation is not a motivating factor. In other words, you may not return a verdict for Ms. Breeden just because you might disagree with Novartis’ decisions, or believe them to be unfair or unreasonable.
To reach a verdict for Ms. Breeden, you must find that she has shown by a preponderance of the evidence that she lost compensation or benefits by reason of Novartis’ alleged adverse action, or sustained monetary losses as a result of the alleged adverse action.
If you reach a verdict for Ms. Breeden, then you must award her the amount of damages Novartis’ actions have caused her. You must award her any wages, salary, and employment benefits she would have earned in her employment with Novartis had she not been discharged on January 28th, through the date of your verdict, minus the amount of earnings and benefits from other employment she received during that time. While Ms. Breeden has the burden of proving damages by a preponderance of the evidence, she need not prove them to you with mathematical precision.
You are also instructed Ms. Breeden has a duty under the law to mitigate her damages; that is, to exercise reasonable diligence under the circumstances to minimize her damages. It is Novartis’ burden to prove that Ms. Breeden failed to mitigate her damages. If Novartis persuades you by a preponderance of the evidence that she failed to obtain substantially equivalent job opportunities that were reasonably available to her, you must reduce her damages by the amount of wages that she reasonably would have earned if she had obtained those opportunities.
Source of Instruction: Breeden v. Novartis (U.S. District Court for the District of Columbia, March 5, 2010; J. Robertson).
Interference. The following is a sample list of interference jury instructions from the U.S. Court of Appeals for the Third Circuit:
Plaintiff claims that defendant interfered with her right to take unpaid leave from work under the Family and Medical Leave Act.
To prevail on this claim, plaintiff must prove all of the following by a preponderance of the evidence:
First, Plaintiff or a family member as defined by the Act had Lupus.
Second, this condition was a “serious health condition,” defined in the statute as an illness, injury, impairment or physical or mental condition that involves either 1) inpatient care in a hospital or other care facility, or 2) continuing treatment by a health care provider.
Third, plaintiff gave appropriate notice of her need to be absent from work. “Appropriate notice” was given where plaintiff could foresee the need for leave, she notified defendant at least 30 days before the leave was to begin. If plaintiff could not foresee the need for leave, plaintiff notified the defendant as soon as practicable after she learned of the need for leave.
Plaintiff was required to timely notify defendant of the need for leave, but plaintiff was not required to specify that the leave was sought under the Family and Medical Leave Act, nor was plaintiff required to mention that Act in the notice.
Fourth, defendant interfered with the exercise of plaintiff’s right to unpaid leave. Under the statute, “interference” can be found in a number of ways, including: 1) terminating employment; 2) refusing to allow an employee to return to his or her job, or to an equivalent position, upon return from leave; 3) ordering an employee not to take leave or discouraging an employee from taking leave; and 4) failing to provide an employee who gives notice of the need for a leave a written notice detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations.
I instruct you that you do not need to find that [defendant] intentionally interfered with [plaintiff’s] right to unpaid leave. The question is not whether [defendant] acted with bad intent, but rather whether [plaintiff] was entitled to a leave and [defendant] interfered with the exercise of that leave.
Source of Instruction: Model Jury Instructions (Civil) Third Circuit §10.1.1 (2008).
Informal Fact Gathering
1) Medical Records
An employee must demonstrate that she suffers from a “serious health condition” to qualify for FMLA coverage – gather her medical records from her treating physician(s).3 The following is a sample release that complies with Health Insurance Portability and Accountability Act (HIPAA):
AUTHORIZATION FOR RELEASE OF CONFIDENTIAL INFORMATION
You are hereby authorized to release to ****, any and all confidential information of any nature in your custody, possession, or control, pertaining to the undersigned person and specifically including, though not limited to, all information set forth below:
A. AUTHORIZATION FOR RELEASE OF PROTECTED HEALTH INFORMATION (PHI) UNDER HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT (HIPAA)
1. The undersigned patient named below, hereby executes this authorization in compliance with the federal Health Insurance Portability Act, HIPPA,
45 CFR 164.104
2. PROTECTED HEALTH INFORMATION: All medical information of any nature whatsoever, from any source whatsoever, which is maintained by you in your records regarding the referenced patient and which is requested by my attorneys. If you are a physician or out-patient clinic, you are authorized to send your entire chart upon their request, including not only the records dictated or written up by you, but also insurance records, handwritten notes, telephone memoranda, outside records, correspondence, or any other tangible item maintained in my chart. If you are a hospital, you are authorized to release my complete records including x-rays or similar studies. PLEASE REFER TO THE ATTORNEY’S LETTER OF INSTRUCTION FOR FURTHER DETAILS. I recognize that there are laws protecting the confidentiality of such records, including eating disorders, alcohol, drug, psychological and psychiatric records, HIV testing, ARC and/or AID diagnosis. I
specifically direct you to include any such records of a sensitive nature among those sent to my attorneys. You are also authorized to provide my attorneys with an office conference and a medical report, if you are requested to do so by them.
REQUIRED DISCLOSURES- 45 CFR 164.508(c)
• This protected health information is to be used for the following purpose: attorney’ s use in administrative or civil action.
• This authorization may be revoked by a signed and properly dated written revocation, delivered to the healthcare provider named above, provided that this release cannot be revoked as
to protected health information that had been previously released in reliance on this document.
• This undersigned acknowledges that a refusal to sign this form will not result in a denial of health care by the hospital or any other health care provider and that this release has not been coerced by a health care entity or any of its business associates.
• The undersigned acknowledges that once the PHI is disclosed, it may be redisclosed to individuals or organizations that are not subject to the federal privacy regulations such as expert witnesses, litigants, insurance companies, and even may become public record if filed with a court of law.
• This authorization will expire twenty-four (24) months after the date executed, unless earlier revoked in writing.
B. AUTHORIZATION TO RELEASE CONFIDENTIAL MATERIALS, OTHER THAN PHI
1. INSURANCE INFORMATION: Any and all information in your custody, possession or control, relating in any way to any application for insurance, correspondence, or claim for payment of benefits to or on behalf of the above-named individual under any form of insurance or similar plan, including employee welfare benefit plans, and any other such information in your custody, possession, or control.
2. EDUCATION & EMPLOYMENT INFORMATION: All school and educational information, including transcripts and all information relating in any way to employment, past or present, of the above-named individual, including, but not limited to, information pertaining to wages and salary, hours worked, dated of disability from employment, disciplinary records, commendations, applications for employment, and any other such information in your custody, possession, or control.
3. MEDICAID/MEDICARE/SOCIAL SECURITY INFORMATION: Any and all information, including benefit payment and lien information, medical records, applications for Medicaid, Medicare, Social Security, or other such benefits, and any other information pertaining to application for or receipt of such benefits.
THIS AUTHORIZATION WILL EXPIRE TWENTY-FOUR (24) MONTHS AFTER THE DATE EXECUTED, UNLESS EARLIER REVOKED IN WRITING.
Note: A Copy of this Authorization Shall Be Treated as an Original
2) FMLA Leave Requests
An employee seeking coverage under the FMLA must demonstrate that she notified her employer timely of her need to take leave.4 Ask your client to provide you with a copy of the employer’s FMLA policy5 and for her written notice or certification6 to her employer of her need for leave-taking.
3) Copies of the employee’s job description and benefits before and after his FMLA leave-taking.
An employer must reinstate an employee to her same or equivalent position when she returns from FMLA leave.7 Therefore, ask your client to provide you a copy of her employer’s job descriptions for her positions before taking leave and after her return. Compare the job descriptions. If they are not “virtually identical” the employer likely interfered with your client’s FMLA reinstatement rights,8the determination of which is a question of fact for the jury.9
4) Communications between your client and her employer about any retaliation that her employer meted out as a result of her leave-taking.
In addition to her request for Family and Medical Leave, an employee can demonstrate that she engaged in protected activity by showing that she protested the way in which her employer treated her upon returning from FMLA leave.10
5) Employment Evaluations.
Your client’s own employment evaluations before and after her leave-taking can paint a powerful picture of an employer’s animus towards her leave- taking.11
6) Employer position statement submitted to the EEOC and state unemployment commissions.
Employer position statements to the EEOC and state unemployment commissions can provide a wealth of admissions. Both are generally admissible in a later trial as party admissions.12 Request them under the Privacy Act of 1974 in every case where your client has filed an EEOC charge under Title VII or where her employer has contested her eligibility for unemployment insurance compensation.
1) Employer Payroll and Leave Records
Request for all records kept by the employer pursuant to its obligation under Department of Labor Regulations. Every employer subject to the FMLA must preserve records showing that it complies with the FMLA.13 As with the FLSA, which serves as the model for the Department of Labor’s FMLA recordkeeping requirement, an employer must preserve records for at least three years. The records required by the FMLA must disclose:
(1) Basic payroll and identifying employee data, including name, address, and occupation; rate or basis of pay and terms of compensation; daily and weekly hours worked per pay period; additions to or deductions from wages; and total compensation paid; However, for employees not subject to FLSA recordkeeping regulations for purposes of minimum wage or overtime compliance, an employer need not keep a record of actual hours worked, provided that eligibility for FMLA leave is presumed for any employee who has been employed for at least 12 NOTEHERE months and, with respect to employees who take FMLA leave intermittently or on a reduced leave schedule, the employer and employee agree on the employee’s normal schedule or average hours worked each week and reduce their agreement to a written record that is maintained.
(2) Dates for FMLA leave taken by employees (e.g., available from time records, requests for leave, if so designated). Leave must be designated in records as FMLA leave.
(3) If FMLA leave is taken in increments of less than one full day, the hours of the leave.
(4) Copies of employee notices of leave furnished to the employer under FMLA, if in writing, and copies of all required general and specific notices given to employees (e.g., copies may be maintained in employee personnel files).
(5) Any documents (including written and electronic records) describing employee benefits or employer policies and practices regarding the taking of paid and unpaid leaves.
(6) Premium payments of employee benefits.
(7) Records of any dispute between the employer and an employee regarding designation of leave as FMLA leave, including any written statement from the employer or employee of the reasons for the designation and for the disagreement.14
2) Employer general FMLA policy notices.
Request all of the employer’s notices to its employees in which it identifies employee FMLA guidance. Under the Department of Labor regulations that took effect on January 16, 2009,15 the Department of Labor (DOL) issued final regulations that require all FMLA-covered employers to provide its employees notice in employee handbooks or other written guidance about the employee benefits or leave rights to which its employees are entitled.16
3) Employer “Rights and Responsibilities” notice.
Request a copy of the employer’s “Rights and Responsibilities” notice that it issued to your client. Notwithstanding its written policies, when an employee requests FMLA leave, her employer must notify the employee what of her specific expectations and obligations; the notice must also explain any consequences of her failure to meet these obligations. The notice must include, were appropriate, the following:
• that the leave will be counted against their annual FMLA leave entitlement;
• any requirements for the employee to furnish medical certification of a serious health condition and the consequences of failing to do so;
• the employee’s right to substitute paid leave and whether the employer will require substitution and the conditions related to it;
• any requirement to maintain health premiums;
• any requirement to present a fitness-for-duty certificate upon returning to work;
• their status as “key employee” and potential for not being restored to work after a leave;
• right to restoration; and
• potential liability for employer’s share of health premiums if one does not return to work.17
4) Employer Eligibility Notice
Request a copy of the employer’s “Eligibility Notice” that it issued to your client. When an employee requests FMLA leave, or when the employer knows that an employee’s leave may be for an FMLA-qualifying reason, the employer must notify the employee of the employee’s eligibility to take FMLA leave within five business days, absent extenuating circumstances. This notice is called the “Eligibility Notice.”18
5) Employer Designation Notice
Request a copy of the employer’s “Designation Notice” that it issued to your client. If an employee fails to return a doctor’s certification of her serious health condition, an employer has no obligation to designate the leave as FMLA leave. If, however, the employee does return her physician’s certification of the serious nature of her medical condition, the employer must issue a “Designation Notice.” Once the employer has sufficient information to make a determination about whether FMLA will apply to the leave, it must notify the employee of its designation via the “Designation Notice.”19 If the employer chooses not to designate the leave as FMLA, the employer must notify the employee why it has determined that her leave-taking is not covered by the FMLA. If the employer qualifies the employee’s leave as FMLA leave, the employer must notify the employee how many hours, days, or weeks that the employer considers the leave to be covered by the FMLA. The regulations also require an employer to notify the employee promptly if the employee exhausts her FMLA leave entitlement.20
6) Employer Fitness-For-Duty Requests or Certifications
Request a copy of the employer’s “Fitness-For-Duty” Requests or Certifications. An employer must notify its employee at the time that the employee requests leave (or immediately after she begins leave) if it will require the employee to undergo a fitness-for-duty examination upon her return from FMLA leave. The employer must provide additional specific notice to any employee from whom fitness-for-duty certification will be required.21
7) Determine if managers had access to employee confidential medical records.
Request a complete copy of your client’s human resources file and her employer-maintained medical file. Determine whether any of your client’s managers accessed her medical file in violation of DOL regulations. An employer must maintain documents relating to medical certifications, recertifications, or medical histories of employees or employees’ family members in files that are separate from the employee’s human resources file.22 An employer must not allow all supervisors and managers to access the employee’s FMLA-related medical file.23
8) Issue pattern interrogatories
1. Has the defendant had any policy relative to leave-taking (during the relevant time period)?
2. If your answer to the preceding interrogatory is in the affirmative, please describe such policy and state the dates during which such policy has been in effect.
3. If the defendant has identified any policy relative to leave-taking, please state with reference to each individual responsible for setting such policies (during the relevant time period):
a. Name, address, sex, age, race, religion and national origin;
b. The dates during which each was responsible for setting such policy;
c. The individual’s job title and employment history with the defendant.
4. Does any policy relating to leave-taking, apply only to particular job categories?
5. If your answer to the preceding interrogatory is in the affirmative, please identify the job categories in which such policies apply.
6. Please state whether applicants for jobs at any facility maintained by the defendant have been asked questions (during the relevant time period) regarding any plans to take leave under the FMLA.
7. If your answer to any part of the preceding interrogatory is in the affirmative, please specify:
a. The job categories for which such questions were asked as part of the application process,
b. Whether such questions appear on a written application form,
c. The dates during which such questions may have been asked of applicants.
8. Please state the defendant’s policy concerning the continued employment of individuals who either took FMLA leave or planned to take FMLA leave, including:
a. How much paid personal leave the employee may take;
b. How much unpaid personal leave the employee may take;
c. How much vacation time the employee may take;
d. How much sick leave the employee may take;
e. How much paid disability leave the employee may take;
f. How much unpaid disability leave the employee may take;
g. How much total leave the employee may take and still return to her same job;
h. How much total leave the employee may take and still return to the company;
i. Accrual or loss of seniority while on leave;
j. Susceptibility to layoff while on leave;
k. Whether leave-taking under the FMLA is ever grounds for discharge;
l. Whether leave-taking under the FMLA will ever result in reassignment to another job;
m. Whether an employee who takes an extended leave, while not guaranteed a job, is subject to rehire.
9. Please state whether an employee who took FMLA leave or planned to take FMLA leave
(during the relevant time period) has been:
a. Forced to take leave immediately,
b. Forced to take leave on a particular date.
10. If the defendant has required an employee planning to take FMLA leave to take leave on a particular date, please state the business justification for such policy, and the dates during which such policy has been in effect.
11. Has taking FMLA leave by an employee been considered a temporary leave or has the employee been forced to resign (during the relevant time period)?
12. Please describe (for the relevant time period) the means by which seniority accrues for an employee while taking FMLA leave.
13. Please state (for the relevant time period) whether seniority accrues differently for purposes of promotion or other benefits during FMLA leave than during any other leave.
14. If your answer to the preceding interrogatory is in the affirmative, please describe the difference.
15. Please state whether FMLA leave has ever resulted in a loss of seniority (during the relevant time period).
16. If your answer to the preceding interrogatory is in the affirmative, please state with reference to each employee who suffered a loss in seniority due to taking FMLA leave:
a. Name and address,
b. The individual’s job title and employment history with the defendant,
c. The dates of the FMLA leave,
d. The amount of seniority lost.
17. Please state whether FMLA leave-taking has ever resulted in a loss of wages or other benefits of employment (during the relevant time period)?
18. If your answer to the preceding interrogatory is in the affirmative, please state with reference to each individual who has lost wages or other benefits of employment as a result of taking FMLA leave (during the relevant time period):
a. Name and address,
b. The individual’s job title and employment history with the defendant,
c. The dates of FMLA leave-taking,
d. Whether the employee was forced to take such leave due to the defendant’s policy,
e. The type of benefits lost.
19. Please state whether a FMLA leave request or FMLA leave-taking has ever resulted in the layoff of the individual taking such leave (during the relevant time period).
20. If your answer to the preceding interrogatory is in the affirmative, please state with reference to each individual who has been laid off as a result of taking FMLA leave:
a. Name and address,
b. The individual’s job title and employment history with the defendant,
c. The date of the layoff,
d. Whether recalled.
21. Does the defendant allege or contend that any policy relative to FMLA leave-taking has been governed by a collective bargaining agreement (during the relevant time period)?
22. If your answer to the preceding interrogatory is in the affirmative, please state:
a. The name and address of all parties to the agreement, b. The effective dates of the agreement,
c. The job categories or bargaining units affected by such agreement.
23. Does the defendant allege or contend that the failure to hire the plaintiff was due to the plaintiff’s lack of qualifications?
24. If your answer to the preceding interrogatory is in the affirmative, please specify the qualifications that the plaintiff lacked, and the reason that the defendant considers such qualifications necessary to efficient job performance.
25. Please state whether the plaintiff’s qualifications would satisfy requirements for any position other than the one for which the plaintiff held or applied.
26. If your answer to the preceding interrogatory is in the affirmative, please describe all positions for which plaintiff might have been considered and state whether the plaintiff was informed of the availability of such positions.
27. Does the defendant allege or contend that the plaintiff was unqualified for any promotion sought?
28. If your answer to the preceding interrogatory is in the affirmative, please specify those qualifications which the plaintiff allegedly lacked.
29. Please state with reference to each individual who was hired or promoted to the position which the plaintiff sought subsequent to the plaintiff’s application:
a. Name, address, sex, age, race, religion and national origin;
b. The individual’s prior employment with the defendant;
c. The date hired or promoted;
d. The position to which hired or promoted;
e. The individual’s qualifications.
30. Please state with reference to each individual who interviewed or evaluated the plaintiff for purposes of hire or promotion:
a. Name, address, sex, age, race, religion and national origin;
b. The individual’s job title and employment history with the defendant;
c. The date of the interview or evaluation;
d. A summary of the questions asked and the recommendation.
31. Does the defendant allege or contend a business justification for forced retirement of the plaintiff as a result of the plaintiff taking FMLA leave?
32. If your answer to the preceding interrogatory is in the affirmative, please state all facts on which you base your allegations or contentions.
33. Does the defendant allege or contend a business justification for any loss of wages, seniority or other benefits of employment during the plaintiff’s FMLA leave?
34. If your answer to the preceding interrogatory is in the affirmative, please state all facts on which you base your allegations or contentions.
35. Does the defendant allege or contend that the layoff of the plaintiff is unrelated to the employee taking FMLA leave?
36. If your answer to the preceding interrogatory is in the affirmative, please state all facts on which you base your allegations or contentions and state with reference to each individual laid off at the same time as the plaintiff:
a. Name, address, sex, age, race, religion and national origin;
b. The individual’s job title and employment history with the defendant;
c. The amount of seniority accrued;
d. The date of layoff;
e. Whether recalled.
Fighting employer discovery requests for all medical records. An employee does not open all of her medical records to review when she files suit under the FMLA unless the employer has some evidence that the employee’s FMLA leave request was in
bad faith or that she fabricated her medical certification.24 Therefore, file a motion for a protective order under Rule 26 asking that the court limit the employer’s record request to the one doctor that certified her serious health condition.
Furthermore, ask the court to order the physician to provide you with your client’s
records so that you may conduct relevance and privilege review.
1) Honing case selection
a. Employees who have potential claims that you can couple with a cause of action under the FMLA (e.g., Americans with Disabilities Act, Title VII of the Civil Right Act, and common law wrongful discharge in violation of public policy claims).
b. Employees who have established good performance records before their leave-taking.
c. Employees who did not leave anything “undone” before taking leave, especially if the employee had ample notice of her need to take FMLA leave.
d. Employees who have maintained good relations with their co-workers such that their co-workers will testify that they did not feel overburdened by the employee’s leave-taking.
e. Employees who have mitigated their damages quickly but have meaningful economic damages.
2) Facts that make a compelling case of liability
a. FMLA claims by long-term (10 year or longer) employees
b. An employer who fails to reinstate the employee into the same position and duties which the employee was performing when she took family and medical leave.
c. An employer that uses non-FMLA-covered absences occurring during the same period that an employee uses FMLA leave as a basis for an adverse employment action.
d. An employer that insists on contacting an employee’s treating physician to substantiate the serious nature of an employee’s health condition.
e. An employer that permits its management employees, rather than human resources professionals, to determine whether the employee qualified for FMLA leave.
f. An employer that terminates the employee while the employee is on FMLA- approved leave.
g. An employer that invokes the “key employee” FMLA exemption on employees other than those at the very highest level in the employer’s hierarchy.
h. An employer that allows its managers to inquire about the employee’s future family planning.
i. An employer that allows its managers to comment about the implications of the employee’s leave-taking; for example, stating “you’re probably not coming back [after leave-taking].”
3) Case Prosecution/Defense Top Ten Tips.
a. Prosecution tips
i. Seek discovery that would show an employer’s pattern of hostility to FMLA leave-taking
• For instance where an employer asks its employees routinely to undergo employer-mandated medical examinations
ii. Seek discovery, especially from third parties, to show that the employer uses leave-taking, especially for the birth of a child, as a factor in its decision-making about employee promotion and advancement.
• This is especially potent if the employer tends to promote single women or women without children
iii. Seek discovery that would substantiate that the employer knew that the employee was suffering from pregnancy-related complications during her pregnancy
iv. If coupled with an accommodation request under the ADA, seek evidence in discovery that the employer failed to participate adequately in the interactive process.
4) Breeden v. Novartis Pharmaceuticals Corp. In Breeden, a pharmaceutical sales representative who worked for the transplant business unit of Novartis was retaliated against for taking FMLA leave for the birth of her child. The case was tried in March 2010 and resulted in a $579,338 judgment for the plaintiff. Below are the facts of the case.
a. Facts. Breeden worked for Novartis for over seven years selling highly specialized pharmaceuticals for patients experiencing organ transplants. Soon after announcing that she was pregnant in November 2004 and expecting her first child to be born in April 2005, Novartis realigned Breeden’s sales territory in such a way as to drastically reduce her workload and the skill and level of effort that was required to service her reduced territory. This change lessened
her authority and responsibilities, reduced her status – her prestige, her importance, and her opportunity for visibility and advancement.
The sales volume of Breeden’s new territory was effectively cut in half, going from a territory with a total of 1,260 transplants to one with 635. After the realignment, her old territory posted 1,060 transplants while her new one experienced 435.
After the realignment was announced, Breeden objected that her territory was slashed so profoundly and the general manager of the Novartis transplant business unit said on a conference call in response: “Well, you’re not coming back from maternity leave anyway right?” Breeden confirmed that she intended to return to work. Thereafter, Breeden’s supervisor said that he would make Breeden “whole,” that the changes were not permanent, and he promised that her territory would be revisited after she came back from leave.
Breeden qualified for and took FMLA qualifying leave beginning in late March 2005. Her daughter was born in April 2005 and she returned after some short-term disability and some accrued vacation on July 13, 2005. Soon thereafter, Breeden again raised the fact that her territory had been reduced so substantially and that she did not have enough work to fill the day. Novartis then informed Breeden that the change to her territory was permanent. Breeden went from having a high visibility with important customer relationships at stake to a low visibility job with relatively unimportant customer relationships. In January 2008, when Novartis was looking to reduce its sales staff by one, it naturally terminated Breeden’s position since her territory was the least important and had the least potential. In its defense, Novartis argued that an outside consulting firm organized the realignment and did not take Breeden’s maternity leave into account. However, Breeden’s leave was mentioned in a PowerPoint presentation given by the consulting firm.
b. Procedural posture. Breeden filed suit in April 2008 in the U.S.
District Court for the District of Columbia, alleging claims under Title VII, as well as breaches of the entitlement and anti-retaliation provisions of the FMLA. Breeden voluntarily dismissed her Title VII claims in June 2008 in order to join a certified class action pending in the U.S. District Court for the Southern District of New York. In February 2010, the court granted Novartis summary judgment on Breeden’s interference claim but denied it as to the retaliation claim. The case went to trial on March 2, 2010. The jury returned a verdict in her favor on March 5, 2010 on the retaliation claim. The court entered a judgment in Ms. Breeden’s favor in the amount of $579,388.
1 See Parker v. Hahnemann University Hosp. 234 F. Supp. 2d 478, 488 (D.N.J. 2002) (holding that the employer’s motive is relevant when employee brings a retaliation claim, and the employer can defend its action by proving there was a legitimate nondiscriminatory reason for the action).
2 See Snelling v. Clarian Health Partners, Inc., 184 F. Supp. 2d 838, 845-46 (S.D. Ind. 2002) (holding that the intent of the employer is immaterial when an employee alleges a deprivation of substantive rights to reinstatement after taking FMLA leave, and the employee must demonstrate by a preponderance of evidence only the eligible employee’s entitlement to the disputed leave).
3 A “serious health condition” is an “illness, injury, impairment, or physical or mental condition that involves (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider.” 29 U.S.C. § 2611(11). “A serious health condition involving continuing treatment by a health care provider includes…: (i) A period of incapacity (i.e., inability to work…) of more than three consecutive calendar days… that also involves: (A) treatment two or more times by a health care provider…; or (B) treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider.” Miller v. AT & T Corp., 250 F.3d 820, 825 (4th Cir. 2001) (finding the flu a possible “serious medical condition” if the aforementioned requirements are met (quoting 29 C.F.R. §
825.114(a)(2) (emphasis in original))).
4 29 U.S.C. § 2612(e)(2)(B) (The employee must give the employer at least 30 days’ notice before the date that the leave is to begin when the need for leave is based on the serious health condition of a spouse, child, or parent, or of the employee, and the need for leave is foreseeable based on planned medical treatment).
5 29 C.F.R. § 825.300(a)(1) (Each employer covered by the FMLA is required to post and keep posted on its premises, in conspicuous places where employees are employed, a notice explaining the FMLA’s provisions and providing information concerning the procedures for filing complaints of violations of the FMLA with the Wage and Hour Division. The notice must be posted prominently where it can be readily seen by employees and applicants for employment. The poster and the text must be large enough to be easily read and contain fully legible text. Electronic posting is sufficient to meet this posting requirement as long as it otherwise meets the requirements of the provision).
6 29 C.F.R. § 825.305(a) (An employer may require that an employee’s leave… due to the employee’s own serious health condition that makes the employee unable to perform one or more of the essential functions of the employee’s position, be supported by a certification issued by the health care provider of the employee).
7 29 C.F.R. § 825.215 (Upon return from family or medical leave taken pursuant to § 32-502 or § 32- 503, the employee shall be: (1) Restored by the employer to the position of employment held by the employee when the family or medical leave commenced; or (2) Restored to a position of employment equivalent to the position held by the employee when the family or medical leave commenced that includes equivalent employment benefits, pay, seniority, and other terms and conditions of employment).
8 29 C.F.R. § 825.215(a) (An equivalent position is one that is virtually identical to the employee’s former position in terms of pay, benefits and working conditions, including privileges, prerequisites and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority).
10 Kubicko v. Ogden Logistics Services, 181 F.3d 544 (4th Cir. 1999) (“Opposition activity encompasses utilizing informal grievance procedures as well as staging informal protests and voicing one’s opinions in order to bring attention to an employer’s discriminatory activities”).
11 Curl v. Reavis 1983 WL 509 (1983, WDNC) (The jury was entitled to believe an employer’s proffered reason for terminating the employee was a pretext for discrimination where the employer’s stated reason for terminating the employee (i.e. attitude, alleged disloyalty, and disruptiveness) diverged from how the employer had rated her in these areas before her protected activity).
12 Mugavero v. Arms Acres, Inc., 2009 WL 1904548 (S.D.N.Y. 2009) (Defendants’ position statements – if offered by Plaintiff – are not hearsay because they are admissions. Defendants also argue, however, that the position statements should nonetheless be excluded under Rule 403, asserting that they are “highly prejudicial” because they were prepared prior to discovery. The only cases Defendants cite in this regard, however, relate to the admissibility of EEOC determinations, not documents submitted to the EEOC by a party and now offered against that party. Defendants have not identified any specific prejudice they would suffer if their own statements to the EEOC concerning Plaintiff’s charges were admitted into evidence. Accordingly, Defendants’ motion to exclude their position statements is denied) (citing Fed. R. Evid. 801(2)(D)); Bradshaw v. Golden
Road Motor Inn, 885 F. Supp. 1370 (D. Nev. 1995) (evidence including employer statements introduced at an unemployment benefits hearing should, presumably, be admitted in a later lawsuit, subject to the normal rules governing admissibility).
24 Smith v. Univ. of Chicago Hospitals, 02 C 0221, 2003 WL 22757754 (N.D. Ill. Nov. 20, 2003) “Defendants admit that UCH obtained medical certification of Smith’s health condition pursuant to the procedures specified in the FMLA, 29 U.S.C. § 2613(a), and officially designated Smith’s leave of absence as FMLA leave for a serious health condition. Defendants also admit that they have no knowledge that Smith’s leave of absence was wrongful. Based on these admissions, on September 26, 2002, Smith moved for aprotective order to prevent discovery of her confidential communications with her licensed psychotherapists, physicians, counselors, social workers, and other licensed health care practitioners. Smith argued that any further inquiry into her confidential medical records would be improper under section 2613 of the FMLA, which provides the procedures for an employer to contest the validity of an employee’s claim to a serious health condition. Smith also argued that discovery of her confidential communications with health care providers would violate her physician- patient privilege. On October 22, 2002, this court granted Smith’s motion for a protective order.”