SEVENTH CIRCUIT COURT OF APPEALS REVISITS EMPLOYEE NOTICE REQUIREMENTS FOR UNFORESEEABLE FMLA LEAVE
January 14, 2020
The 7th Circuit Court of Appeals recently upheld a jury verdict that a school district violated the federal Family and Medical Leave Act (FMLA) by interfering with an employee’s right to take job-protected leave. Valdivia v. Twp. High Sch. Dist. 214, 942 F.3d 395 (7th Cir. 2019).
A critical issue in the case was whether the plaintiff had provided sufficient notice to take FMLA leave to her employer. The Court held that it was reasonable for the jury to conclude that the plaintiff provided actual notice to her employer of her need for leave based on certain conversations she had with her supervisor. Id. at 400. The Court also found that the jury could have reasonably concluded that the school district was placed on notice of the plaintiff’s need for leave based on drastic changes in the plaintiff’s conduct. Id.
This case can be contrasted with the Court’s decision in Guzman v. Brown Cty., 884 F.3d 633 (7th Cir. 2018), discussed in a previous Legal Update, in which the Court held that the employee did not exhibit sufficiently “stark behavioral changes” to give an employer constructive notice of her need for FMLA leave.
Facts of the Case
The plaintiff was employed as an administrative assistant by a school district located in Arlington Heights, Illinois. Valdivia, 942 F.3d at 396. For a six-year period, she received excellent performance reviews. In addition, she never received any discipline and was rarely absent from work for sick days. Id.
Shortly after receiving a promotion to the position of assistant to the principal, however, the plaintiff began experiencing mental health problems, including problems with sleeping, eating, and lack of energy. Id. at 397. In the next month, her symptoms worsened into “insomnia, weight loss, uncontrollable crying, racing thoughts, an inability to concentrate, and exhaustion.” Id. The plaintiff also started coming to work late and leaving early. Id.
The plaintiff approached her supervisor, the principal, to discuss her symptoms. Id. She told her supervisor that she was overwhelmed, had lost weight, and was not able to sleep. Id. She told her supervisor that she had a pending job offer for a different job, but would probably stay. Id. The plaintiff also told her supervisor that she was unable to take on a new work assignment. Id.
The plaintiff discussed her symptoms with her supervisor in a second conversation a few days later. Id. She also asked to switch to a ten-month position, but her supervisor declined. Id. The plaintiff then responded that she might accept her pending job offer. Id.
After this, the plaintiff and her supervisor had approximately five (5) more discussions regarding whether the plaintiff was accepting her pending job offer. Id. The plaintiff cried uncontrollably several times during these meetings, said she was considering leaving for “medical reasons,” and again asked for a ten-month position. Id.
The plaintiff eventually resigned, and the school district refused to grant her subsequent request to rescind her resignation. Id. Shortly after her employment with the District ended, the plaintiff sought and obtained treatment for anxiety and severe major depressive disorder. Id.
The plaintiff filed suit against the school district alleging that it interfered with her rights under the FMLA by failing to provide her with notice or information regarding her right to take leave. Id. at 396. A jury found in favor of the plaintiff and awarded her $12,000.00. Id.
The school district subsequently moved the lower court for a finding that the plaintiff could not prove her case as a matter of law. Id. The lower court denied the motion, after which the school district appealed to the 7th Circuit Court of Appeals. Id.
The Court of Appeals upheld the lower court’s decision and declined to set aside the jury verdict. Id.
The Court’s Decision
The Court explained that in order to prevail on an FMLA-interference claim, the plaintiff must prove the following elements: “1) she was eligible for the FMLA’s protections, (2) her employer was covered by the FMLA, (3) she was entitled to leave under the FMLA, (4) she provided sufficient notice of her intent to take leave, and (5) her employer denied her FMLA benefits to which she was entitled.” Id. at 398. The school district argued that no reasonable juror could find that the plaintiff met the third and fourth elements. Id.
The Court found that there was sufficient evidence that the plaintiff had a serious health condition which prevented her from performing the functions of her job. Id. at 389-99. The Court reasoned that “an employee does not need to be diagnosed during her employment, as long as the condition existed then.” Id. at 399. Consequently, the Court concluded that the plaintiff satisfied the third element that was needed to prove interference with FMLA rights.
As to the fourth element, whether the plaintiff provided sufficient notice of her intent to take FMLA leave, it was reasonable for the jury to conclude that the plaintiff’s notice was adequate. The Court first acknowledged that 29 C.F.R. § 825.303(a), the regulation regarding notice requirements for unforeseeable leave, changed in 2009, thereby causing another court to question whether “constructive notice” of the need for FMLA leave was still sufficient. Id. at 399. However, the Court reasoned that the regulation “in both of its forms, addresses only the timing of notice, not whether it must be oral, in writing, direct, or inferable from the circumstances.” Id. The Court also stated that the school district waived any argument based on the 2009 amendment to the regulation by failing to raise it before the lower court. Id. at 400. As a result, the Court concluded that the plaintiff at least could provide the required notice to the employer for FMLA leave, even if more conventional advance notice had not been given.
The Court then described previous cases in which it held that “clear abnormalities” or “unusual behavior” may constitute constructive notice regarding an employee’s need for FMLA leave. Id. The Court reasoned that the evidence in this case “included more than these danger-signs from the employee’s behavior,” and the plaintiff’s conversations with her supervisor “take her case out of the pure constructive-notice model.” Id. Consequently, it was reasonable for the jury to find that the school district had actual notice based on the employee’s conversations with her supervisor. Id. The Court further reasoned that the plaintiff’s supervisor had actual knowledge that the plaintiff’s behavior “contrasted sharply” with her previous employment history. Id. Therefore, based on the evidence, the jury’s finding regarding adequate notice was reasonable. Id.
This case demonstrates that an employer must consider unusual changes in an employee’s behavior and should affirmatively address concerns raised by an employee to determine whether he or she may be entitled to leave under the FMLA.
Although it was not discussed in this case, employers should have policies in place regarding notice and procedural requirements applicable to unforeseeable leave. As provided in 25 C.F.R. § 825.303, “[i]t generally should be practicable for the employee to provide notice of leave that is unforeseeable within the time prescribed by the employer’s usual and customary notice requirements applicable to such leave.” In addition, [w]hen the need for leave is not foreseeable, an employee must comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.” Id.
For questions regarding this article, please contact the author, Attorney Jenna E. Rousseau (email: firstname.lastname@example.org; telephone: 844-833-0828), or your Strang, Patteson, Renning, Lewis & Lacy, s.c., attorney.