Articles Posted in Family and Medical Leave Act

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The United States Court of Appeals for the 3rd Circuit has affirmed a New Jersey District Court’s decision denying post-trial motion for judgment by Walmart after the jury entered a verdict against them in favor of a former employer.  The former employee, Barry Boles, claimed that he was unlawfully terminated by Walmart in retaliation for taking medical leave because of his disability.  The jury agreed, and found Walmart liable for back pay damages in the amount of $130,000, emotional distress damages in the amount of $10,000, punitive damages in the amount of $60,000 and attorney fees and costs in the amount of $200,000.  Walmart appealed the decision to the Court of Appeals.

In this case entitled, Barry Boles v. Wal-Mart Stores, Inc., the employee Mr. Boles had worked for Walmart for many years.  Mr. Boles first went out on a medical leave on May 8, 2011, after going to the emergency room for a large blister on his leg.  The large blister progressed into a five or six inch ulcer requiring Mr. Boles to take an extended medical leave of absence.  Walmart eventually placed Mr. Boles on medical leave pursuant to the Family and Medical Leave Act from June 22, 2011 through September 10, 2011.  During his FMLA leave, Mr. Boles’ treating doctor provided a certification that advised Walmart that Mr. Boles would not be able to return to work until October/November, 2011.

On October 23, 2011, Mr. Boles returned to work, but learned that he could not log onto his computer.  Mr. Boles attempted to reach out to the Market Human Resource Manager, Quawad McDonald, to find out his status, but his attempts were ignored by Mr. McDonald.  Finally, on or about October 29, 2011, Mr. Boles received a letter from Mr. McDonald advising him that he had been terminated as of October 25, 2011 for “failure to return” to work.

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The United States Court of Appeals for the Seventh Circuit reversed a District Court’s grant of summary judgment in an action alleging TIN Inc. (“TIN”) violated the Family Medical Leave Act (“FMLA”) by interfering with an employee’s right to take leave and retaliating against that employee. The Seventh Circuit reversed the District Court’s decision that TIN terminated Mr. Jeff Pagel’s employment due to his poor performance rather than for his taking of FMLA protected leave. The Court determined that there were still genuine issues of material fact as to why Mr. Pagel was terminated. Therefore, the grant of summary judgment in TIN’s favor was reversed and the case was remanded for further proceedings.

Jeff Pagel worked for TIN as an outside salesman from May 2000 until his termination in October 2006. Mr. Pagel produced at least $7 million dollars in sales for the company per year, earning a $180,000 annual salary. On January 1, 2006, TIN instituted a new policy that required outside salesmen to submit daily activity reports to their Regional Sales Manager. Salesmen then would be given a periodic evaluation that included an assessment of their compliance with this new reporting system.

In July 2006, Mr. Pagel experienced several health problems and disabilities including being diagnosed with septal wall ischemia (a blockage in a portion of his heart). Mr. Pagel’s health problems caused him to take a medical leave of absence from work. On August 29, 2006, Mr. Pagel underwent an angioplasty and stent replacement, spent one day in the hospital and was advised to rest for several days following the operation. The next week Mr. Pagel’s symptoms returned and he was admitted to the hospital for two nights. It was determined that Mr. Pagel also had an irregular mass in his left lung that was unrelated to his septal wall ischemia.

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The New Jersey Appellate Division recently reversed in part and affirmed in part a grant of summary judgment dismissing Plaintiff’s failure-to-accommodate under the New Jersey Law Against Discrimination and retaliation claims. The Court agreed with the prior determination that after Plaintiff had exhausted her Family and Medical Leave Act benefits and she could not provide a definite date of when she could return to work she was not entitled to an “indefinite leave of absence.” However, the Court disagreed with the prior determination that Plaintiff failed to establish a prima facie case of retaliation because there was only indirect evidence that Defendants had knowledge of her involvement in a co-worker’s discrimination lawsuit.

In Lozo-Weber v. State of New Jersey, the Plaintiff, Ms. Lozo-Weber, was employed by the Department of Human Services and worked as an occupational therapist at the New Lisbon Development Center from November 2003 through April 2009. Ms. Lozo-Weber, a Caucasian female, witnessed what she thought to be discriminatory actions being taken against her co-workers by direct supervisor Brian Kelly and Beth Cooper, who acted as a liaison between Kelly and the other workers. From August 2004 to the time Mrs. Lozo-Weber went on maternity leave and disability for lupus, she observed the firing and relocation of various staff members who were African American or Asian. In addition to her own belief that supervisors’ actions were racially motivated, Mrs. Lozo-Weber was told that she “needed to align herself with the right side” when she addressed her concerns about the relocation of certain minority employees.

After Mrs. Lozo-Weber returned from maternity leave, she acted as a witness in a co-worker’s lawsuit against the Department of Human Services, New Lisbon Development Center and supervisors Kelly and Cooper. She then began to receive negative comments about her performance when prior to her involvement as a witness; she had received consistently stellar performance evaluations. Despite the negative comments, Mrs. Lozo-Weber continued to receive positive performance evaluations until January 9, 2008. On that date, New Lisbon Development Center issued a preliminary notice of disciplinary action against Mrs. Lozo-Weber that charged her with neglect of duty, falsification and actual or attempted theft of State property. After a hearing, all the charges were dismissed and Mrs. Lozo-Weber was awarded back pay.

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The United States Court of Appeals for the Third Circuit recently held that an individual supervisor may be liable for violating the Family and Medical Leave Act if he or she has sufficient control over the conditions and terms of employment of the employee claiming the FMLA violation. In the matter of Haybarger v. Lawrence County Adult Probation and Parole, County of Lawrence and William Mancino, the Third Circuit found that a supervisor is an “employer” under the FMLA despite the fact that the supervisor did not have the authority to terminate the employee.

In this case, the plaintiff, Debra Hayberger, worked as an office manager for the Lawrence County Adult Probation and Parole which is an agency of the Lawrence County Court of Common Pleas. Ms. Haybarger suffered from Type II diabetes, heart disease and kidney problems, which frequently required her to take medical leave from work. Ms. Haybarger’s supervisor, William Mancino often criticized Ms. Haybarger for taking the medical leave, including writing that she needed “[t]o improve her overall health and cut down on the days that she misses due to illness” in her annual performance evaluations.

In 2004, Mr. Mancino placed Ms. Haybarger on a six-month probationary period because of Ms. Haybarger’s conduct, work ethic, behavior, lack of leadership and supervisory skills. After the six months, Mr. Mancino stated that Ms. Haybarger’s employment did not improve and he made a recommendation to Judge Motto that Ms. Haybarger be terminated. Judge Motto agreed with Mr. Mancino’s recommendation and terminated Mr. Haybarger’s employment.

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The New Jersey Appellate Division recently affirmed a Board of Review and Appeal Tribunal decision denying a claimant from receiving unemployment benefits. In an unpublished decision, the Appellate Division held that the claimant, Rolando Montero, left his work voluntarily because of illness and did not keep in touch with his employer or provide them medical documentation. As a result, the claimant was disqualified from receiving unemployment benefits.

Mr. Montero had been employed with the Institute of Nutrition and Natural Health from February 1, 2005 until January 23, 2009. Mr. Montero worked primarily in the company’s New York store, but also worked temporarily in the New Jersey store. In November, 2008, Mr. Montero was unable to work as a result of illness, which caused him to travel to Cuba to receive medical treatment. It is unknown from the opinion exactly what the illness was that Mr. Montero was suffering. In January, 2009, the Institute of Nutrition and Natural Health closed its New York location, which Mr. Montero took as his termination. Mr. Montero testified that he did not speak with his employer and found out of the store closing from his wife who had also worked for the Institute of Nutrition and Natural Health.

The President and Owner of the Institute of Nutrition and Natural Health testified that she asked Mr. Montero for documentation regarding his illness several times and he failed to provide same. She also testified that she was aware that he gone to Cuba and that although she fired Mr. Montero’s wife, she never terminated Mr. Montero’s job and that it remained open to him.

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Congresswoman Lynn Woolsey recently introduced the Domestic Violence Leave Act, which if passed, would expand the federal Family and Medical Leave Act (“FMLA”) to provide eligible employees the right to take unpaid leave from work if he or she or a family member fall victim to domestic abuse, sexual assault or stalking.

The FMLA requires that certain employers provide up to 12 weeks of job protection with continued group health covered to eligible employees. In order to be subjected to the FMLA, a private employer must have 50 employees during 20 or more calendar workweeks in the current or proceeding year. Public employers are subjected to the FMLA regardless of the number of employees. In order for an employee to be eligible for FMLA protection, he or she must have been employed for at least 12 months and must have worked at least 1,250 hours for the preceding 12 months for the employer. If the employee meets the eligible requirements, he or she is entitled to take unpaid leave from work for the birth or adoption of a child or a serious health condition. The FMLA also permits an employee to take unpaid leave from work to care for a family member who is suffering from a serious health condition. At the end of a FMLA protected leave, the employer must restore the employee to the same or equivalent position with equivalent benefits, pay and job status. The FMLA prohibits the employee from interfering with or retaliating against the employee for needing or taking FMLA leave.

The Domestic Violence Act seeks to expand FMLA to permit eligible employees the right to take unpaid leave as a result of domestic abuse, sexual assault or stalking. The bill would also permit an employee to take unpaid leave from work so that they can care for a family member who is a victim of domestic violence, sexual assault or stalking. The employee would be able to use the leave for a variety of reasons relating to the domestic violence such as to seek medical attention for sustained injuries, seek legal assistance or remedies, participate in legal proceedings, attend support groups, obtain counseling and participate in safety planning.