‘Catch 22’ in FMLA Case

No Way Worker Could Win?

Remember Catch 22, the problem with no solution due to obtuse and cyclical reasoning?

A three-judge panel of the U.S. District Court of Appeals for the Eastern District of Missouri has issued a “Catch 22” opinion in denying legal relief to a welder who was fired after her employer forced her to take leave under the Family and Medical Leave Act (FMLA) even though she was healthy.

Trinity Marine Products, Inc. forced the welder, Tracy Walker, to take FMLA leave to get a doctor’s opinion about whether she had a serious medical condition. The doctor said she did not have a serious medical condition and was fit to work. Then Trinity required Walker to get a second opinion from a another doctor, who agreed with the first doctor and said Walker was fit for work . Then Trinity instructed Walker to consult a physician at Vanderbilt University Medical Center.

The Vanderbilt physician sent Walker a letter in which he agreed that Walker had no serious medical condition and was able to return to work without restrictions. Walker presented the letter to Trinity on Sept. 8, 2009 whereupon Trinity fired Walker on the grounds that she had exhausted her FMLA leave in August 2009.

Walker sued, alleging that Trinity interfered with her rights under the FMLA by placing her on involuntary FMLA leave even though she was healthy and then refusing to permit her to return to work. Trinity responded that Walker could not seek relief under the FMLA because “she never suffered a serious health condition that entitled her to take FMLA leave in the first place.”

The appeals court agreed with Trinity’s cyclical logic. The court said the FMLA prohibits an employer from interfering with, restraining or denying an employee’s exercise or or attempt to exercise rights under the statute. However, the Court states:

“… Walker admits that she never suffered a serious health condition within the meaning of the Act, [so] we conclude that she has no right to the benefits provided by the FMLA.”

Walker also raised the issue of  fairness, claiming that Trinity treated her as having a serious health condition and it is only fair that Trinity should be bound by that designation.

The appeal scourt denied the equitable claim, finding that Walker did not demonstrate she suffered monetary losses as a result of Trinity’s alleged interference with her FMLA rights. The court rejected Walker’s argument that she was required to travel to go to numerous medical examinations at Trinity’s insistence.  According to the court: 

“Trinity’s mistaken belief that Walker suffered a serious health condition could not entitle Walker to the benefits of the FMLA.” 

So Walker’s case has been thrown out of court, without ever reaching a jury.

The term Catch 22 is derived from  a 1961book  about the insanity of war by author Joseph Heller.  Here’s the passage:

“There was only one catch and that was Catch-22, which specified that a concern for one’s own safety in the face of dangers that were real and immediate was the process of a rational mind. Orr was crazy and could be grounded. All he had to do was ask; and as soon as he did, he would no longer be crazy and would have to fly more missions. Orr would be crazy to fly more missions and sane if he didn’t, but if he was sane, he had to fly them. If he flew them, he was crazy and didn’t have to; but if he didn’t want to, he was sane and had to. Yossarian was moved very deeply by the absolute simplicity of this clause of Catch-22 and let out a respectful whistle..”

Maybe someone should fire his ass?

Workplace bullying is not always confined to the office in the age of technology.

A worker for the state of Nevada believes she was the victim of bullying by a supervisor writing on his Facebook page because she took time off under the Family and Medical Leave Act.

According to the Las Vegas Sun:

Steven Zuelke, a unit manager for the state’s unemployment benefits anti-fraud unit, used his personal Facebook page to complain about an unidentified employee he thinks uses too much sick time.

 “Why is it that for some people FMLA stands for Family Medical Leave Act and for others, it should stand for Fire My Lazy Ass?” Zuelke wrote on his Facebook page last month, hours after one of his employees left work early because she said she was sick.

Zuelke engaged in a lengthy back-and-forth with a group of his Facebook friends — including another state staffer who works in the same division — in which he initially mocks his employee and then rants about how difficult it is for the state bureaucracy to deal with problem workers.

The rant was specific enough that one of the two employees Zuelke has had on FMLA status thinks Zuelke was talking about her.

“I had to read it a few times because I was shocked and confused,” said Sherry Truell, a claims examiner who works in Zuelke’s unit and has used FMLA time extensively this year. “I was being referred to as lazy, an anchor, that other people have to do my work, stuff that related to my personal business … I was extremely embarrassed. My co-workers can see this information.”

 Truell said she used FMLA heavily last month because of what she described as a stress-related medical condition and because her son needed surgery. She added that she usually takes two or three days off a month.

Truell has sought the help of her union representative to address the issue and is considering filing a grievance.

“He’s discussing his employees, his work environment, he has friended multiple other employees in the same office. … There are so many problems with this,” said Priscilla Maloney, labor representative for Truell’s American Federation of State, County and Municipal Employees local.

Instead of offering an apology, Zuelke alludes to his First Amendment’s right to free speech.  He says he did not post during working hours or using a state computer.

Nevada doesn’t have a specific written policy on Facebook use, which could end up costing the state.

If an employee takes legally appropriate medical leave, it is not acceptable for a manager to penalize, demean or harass her. In fact, it is never acceptable for a supervisor to publicly demean and harass an employee.  Most importantly for his employer, however, Zuelke’s actions subject the state of Nevada to potential legal liability.

The FMLA provides that eligible employees of covered employers have a right to take job-protected leave for qualifying events without interference or restraint from their employers. The FMLA also gives employees the right to file a complaint with the U.S. Department of Labor’s Wage and Hour Division, file a private lawsuit under the Act (or cause a complaint or lawsuit to be filed), and to testify or cooperate in other ways with an investigation or lawsuit without being fired or discriminated against in any other manner.

If  Zuelke”s  subordinate at the Nevada Employment, Training and Rehabilitation Department actually did take FMLA time, the state may find itself defending a retaliation lawsuit. Also, Zuelke inferred that an employee, who apparently was easily identifiable, engaged in fraudulent behavior by taking sick leave under the FMLA when she was not sick. He published his remarks on a Facebook page for all the world to see.   Hello … defamation, slander, libel.

Research shows that between a quarter and  third of workers are the victims of health endangering bullying, most by a supervisor.  This problem costs American employers billions every year in unnecessary turnover, absenteeism, higher health care costs, and needless litigation.