5th Circuit Upholds Termination Based on Insufficient FMLA Notice

John GarnerLegislative Updates, Resources

On May 10, 2007, in the case of Sandra Greenwell v. State Farm Mutual Automobile Insurance Co., the 5th Circuit Court of Appeals upheld a district court ruling that termination of employment based on excessive absences was permitted because the alleged notice of the need for leave under the Family and Medical Leave Act (FMLA) was insufficient. This is an important precedent because notice of need for leave is a frequent area of conflict in employee lawsuits regarding termination and FMLA rights.

In June of 2002, Greenwell was given a formal written warning to document work performance issues relating to lack of availability and other issues. Over the next two months she received several written evaluation regarding her excessive unprotected absences, among other concerns. In September Greenwell received a reminder to give at least 24 hours of prior notice for scheduled time away from the job. Her pattern of absenteeism continued and in October State Farm suspended her “permission absences” except paid sick leave, paid vacation and paid personal time. In January 2003, State Farm once again wrote to Greenwell regarding excessive unprotected absences. In February 2003, State Farm sent a follow-up memo counseling her on unprotected absences and requesting immediate improvement.

On March 31, 2003, Greenwell unexpectedly missed work without giving State Farm 24 hours of prior notice. Greenwell contended that she called Sherry Griffin, one of her supervisors, that day to let her know that she needed to stay at home with her son due to an accident. Based on Greenwell’s account, her son injured himself while sliding down a tin barrel into the levee located near the family’s home. This accident temporarily aggravated his chronic asthma. In this conversation, Griffin allegedly mentioned FMLA but did not ask Greenwell to provide documentation of entitlement under the statute. Greenwell returned to work the next day and decided not to request FMLA protection for her absence. Within days, State Farm terminated Greenwell.

Greenwell sued, claiming violations of FMLA. State Farm moved for summary judgment, which was granted. The district court found that a factual dispute existed as to whether Greenwell’s son was suffering from a serious medical condition; however, Greenwell failed to provide State Farm with sufficient FMLA notice.

Greenwell argued that she provided State Farm sufficient FMLA notice of her intentions to seek protected leave. Although she refused to fill out an FMLA form because she had no doctor’s excuse, Greenwell argued that the form is not required under FMLA except when an employer needs additional medical information for entitlement to benefits. According to Greenwell, her two prior FMLA leaves, approved by State Farm, to care for her son’s asthma condition provided the information necessary to support the disputed absence.

The FMLA regulations state that employees need not “expressly assert rights under the FMLA or even mention the FMLA but may only state that leave is needed. The employer will be expected to obtain any additional required information through informal means.” In her affidavit,Greenwell made no mention of informing Griffin about an FMLA-qualifying medical condition or the need for FMLA leave.

On the day she returned to work, Greenwell sent an email to a human resources representative stating “Sunday [Rayne] and a bunch of boys were playing near a deep canal by our levy…. He was so skinned up, another boy jumped in to save him out of the muddy nasty water…. I was out yesterday with Rayne. Nancy I can plan to work hard on attendance and unpredictable things like this mess me up.”

The Circuit Court ruled that this communication does not sufficiently connect Greenwell’s absence to a medical condition rising to the level of seriousness protected under FMLA. The court said that an employee merely alleging sickness as the reason for her absence does not automatically provide sufficient FMLA notice.

The court went on to note that Greenwell’s decision not to fill out the FMLA form also deprived State Farm of the opportunity to determine that the leave qualified under FMLA. The court said that when Greenwell’s supervisor invited her to complete an FMLA form, that discharged State Farm’s duty to inquire based on the facts provided.

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