Tag Archives: FMLA

November 15, 2017

Faking Cancer Delivers Colorado Postal Worker A Criminal Record

By Steven T. Collis

A longtime Colorado postal worker faked a cancer diagnosis to get time off of work, and for nearly two years, she got away with it. Her charade was discovered, however, when she misspelled the name of her supposed physician in forged doctors’ notes she provided to her supervisor. An investigation by her employer revealed the extent of her ruse, and she was eventually indicted in federal court.

Although this case is an extreme example and not representative of most employees, it’s a good reminder that you should keep proper documentation and conduct a thorough investigation if you suspect an employee isn’t being honest about the need for medical leave.

Deception Begins

In 2015, Caroline Boyle of Highlands Ranch, Colorado informed her supervisor at the U.S. Postal Service (USPS) that she had recently been diagnosed with non-Hodgkins lymphoma and needed time off. Boyle, who had been employed at the USPS’s customer products and fulfillment category management center in Aurora for 25 years, had recently been denied a promotion.

Over the next 20 months, Boyle took 112 days of sick leave and was allowed to work part-time and attend frequent doctor visits. Her boss also permitted her to work from home and granted her paid administrative leave that did not count against her sick-leave balance.

Faked Doctors’ Notes Lead to Indictment

To support her need for time off and other accommodations for her claimed cancer, Boyle provided numerous doctors’ notes to her supervisor. One note stated that she was being treated for lymphoma at Anova Cancer Care in Lone Tree. That note included the purported signature of radiation oncologist Gregg Dickerson. She submitted another note purported to be from Rocky Mountain Cancer Centers in Lone Tree, signed by Dr. Ioana Hinshaw.

In June 2016, a supervisor became suspicious of Boyle’s cancer claim, prompting a USPS investigator to begin reviewing the doctors’ notes she had provided. The investigator found that Dickerson’s name was spelled incorrectly on the note.

The possible forgery caused the inspector to show the note to two Anova administrators, who stated that Boyle wasn’t a patient of the clinic or of Dickerson. They also said that the template of the note was wrong and didn’t include the doctor’s U.S. Drug Enforcement Agency (DEA) and medical license numbers. The inspector then checked with Rocky Mountain Cancer Centers and learned that Boyle wasn’t a patient of Hinshaw, either.

In March 2017, a federal grand jury indicted Boyle on felony counts of forged writings, wire fraud, and possession of false papers to defraud the United States.

Guilty Plea and Sentencing

In late April, Boyle pleaded guilty to the indictment as charged. According to the facts in her plea, after not being selected for a promotion, she decided to take some time off work by pretending to have cancer. She admitted she took substantial amounts of sick leave and received numerous other workplace accommodations despite not having non-Hodgkins lymphoma or any other type of cancer or serious illness. She also created the alleged doctors’ notes despite not being a patient of either doctor. She intended to keep up the cancer ruse until her scheduled retirement in April 2017, after which she planned to take a vacation to Hawaii. Based on the charges, she faced up to 10 years in prison and a fine of up to $250,000.

At the sentencing hearing, a former subordinate of Boyle’s, Lisa Roberts, testified that Boyle had essentially mimicked her cancer diagnosis and treatment. Roberts had worked at the Aurora postal center and reported to Boyle until 2012.

In 2010, Roberts began fighting non-Hodgkins lymphoma and needed time off for treatment. Boyle accused Roberts of faking cancer in order to take a long vacation, asking her why she didn’t lose her hair. Boyle demanded that she provide her confidential medical records, which she believed Boyle later used to fake a cancer diagnosis.

By the time Boyle claimed to have cancer, Roberts had lost her job in Aurora and moved to Texas. She returned to testify at Boyle’s sentencing hearing because she believed Boyle modeled her fake illness on her real cancer. She alleged that Boyle claimed to have the same type of cancer and to be receiving treatment at the same cancer centers, essentially using all of her medical information to create her fake illness. Roberts further stated that while Boyle was given wide-ranging accommodations for the fake cancer, she had denied similar accommodations to Roberts.

On August 22, 2017, federal judge Raymond Moore sentenced Boyle to five years’ probation with the first six months as in-home confinement wearing an electronic monitor. The judge also ordered her to pay a $10,000 fine and $20,798 in restitution. In perhaps the most fitting portion of the sentence, the judge ordered her to perform 652 hours of community service at a cancer treatment center, research facility, or hospice.

Lessons Learned

Most employees wouldn’t dream of fabricating a life-threatening illness in order to take advantage of sick leave and other employee benefits. But every once in a while, a dishonest manipulator may think he can get away with it.

If you become suspicious about an employee’s need for leave or question whether he or she really qualifies for an employee benefit, conduct an investigation. But be sure to do so within the confines of applicable law so that your investigation doesn’t result in unexpected liability – e.g., Family and Medical Leave Act (FMLA) interference, violation of privacy rights, or retaliation. In fact, if faced with a potential “fake” illness scenario, it’s best to consult with your employment counsel when you first suspect a problem.

April 19, 2017

Retroactive Leniency Is Not A Reasonable Accommodation

By Brad Cave

Is an employer required to excuse misconduct that was the result of the employee’s disability? The Tenth Circuit Court of Appeals recently looked at this issue and came to an interesting conclusion.

Janna DeWitt has Type I diabetes and is insulin dependent. Beginning in 1997, DeWitt worked for Southwestern Bell Telephone Company (SW Bell) as a customer service representative in its Wichita, Kansas call center. Recognizing that DeWitt had a disability covered by the Americans with Disabilities Act (ADA), SW Bell permitted her to take breaks as needed to eat or drink in order to raise her blood sugar level. SW Bell also granted DeWitt FMLA leave which she took intermittently for health issues related to her diabetes.

Last Chance Agreement

In 2010, DeWitt made an error by failing to shut down service on a customer’s account after the customer cancelled service. Failure to remove a service plan after cancellation was known as a cramming violation under SW Bell’s Code of Business Conduct and was a terminable offense. DeWitt was suspended following her cramming incident until she could address the issue with her supervisors in what the company called a “Day in Court.” Her Second and Third Line Supervisors decided to place DeWitt on a Last Chance Agreement under which any additional failure to perform satisfactorily could lead to further discipline, up to and including termination.

Terminated For Hanging Up On Customers

Two months after the cramming incident, DeWitt suffered a severe drop in blood sugar at work which she stated caused her to experience disorientation, confusion, and lethargy, making her unable to communicate with anyone. After DeWitt found that she was locked out of her computer, she contacted her First Line Supervisor, Tom Heumann, for assistance. Heumann did not address her locked computer but instead told the Center Support Manager, Beth Kloxin, that  he had been monitoring De Witt’s calls and found that she had hung up on at least two customers. Kloxin responded by saying “I finally got that bitch” and did a little dance.

Later that day, Heumann and Kloxin met with DeWitt for a suspension meeting because of her two customer hang-ups. A union steward also attended the meeting. DeWitt explained that she did not remember taking the dropped calls and that she had been experiencing very low blood sugar levels at the time. Although they reviewed recordings of the dropped calls, DeWitt still did not remember them and asked if they were sure that the calls were hers. Heumann then told DeWitt that she was suspended and that a “Day in Court” would be held at a later date. In response to a request from Kloxin and the union steward, DeWitt provided her blood sugar levels for that afternoon.

About a week later, SW Bell held DeWitt’s “Day in Court.” DeWitt again explained that she did not remember taking the calls due to a severe drop in her blood sugar. Five days later, SW Bell terminated DeWitt for hanging up on two customers in violation of the company’s Code of Business Conduct and her Last Chance Agreement.

ADA and FMLA Claims

DeWitt filed discrimination charges with the Equal Employment Opportunity Commission (EEOC) and after receiving her notice of right to sue, filed a lawsuit against SW Bell in federal court. She alleged that the company failed to accommodate her disability and terminated her because of her disability in violation of the ADA, and retaliated against her for taking FMLA leave. After the district court ruled in favor of SW Bell on all of her claims on summary judgment, DeWitt appealed to the Tenth Circuit Court of Appeals (whose decisions apply to Colorado, Utah, Wyoming, Oklahoma, Kansas, and New Mexico).

Employer Need Not Excuse Or Overlook Misconduct 

DeWitt asserted that SW Bell failed to accommodate her disability by not excusing her dropped calls which she says were caused by her disability. The Court disagreed, stating that the ADA does not require employers to reasonably accommodate an employee’s disability by overlooking past misconduct, even when the misconduct is caused by the disability. Instead, the Court cited the EEOC’s ADA Enforcement Guidance which states that reasonable accommodations are “always prospective.”

The Court found that DeWitt had not requested a reasonable accommodation to address concerns that her diabetes could cause her to drop calls. Using a disability as an “after-the-fact excuse” for workplace misconduct is unreasonable and employers need not ignore or overlook past misconduct. Therefore, because asking for retroactive leniency is not a reasonable ADA accommodation, DeWitt’s accommodation claim failed.

Decision-Maker’s Honest Belief In Termination Reasons

On DeWitt’s ADA termination claim, the Court assumed (without deciding) that DeWitt had established that she was a disabled person under the ADA, and was qualified to perform the essential functions of her job. The Court also accepted that SW Bell had provided a legitimate, non-discriminatory reason for terminating DeWitt, namely that she had hung up on at least two customers while on a Last Chance Agreement. To prevail, DeWitt needed to show that SW Bell’s stated reasons for her termination were pretext for discriminating against her.

DeWitt argued that dropping the calls was not intentional but instead, was a result of her disability – her severely low blood sugar at the time. The Court said that didn’t matter. Instead what mattered was whether the decision-maker, Kimberly Baskett-McEnany, who was DeWitt’s Third Line Supervisor, honestly believed that the hang-ups were intentional and acted on that belief in good faith. Finding no evidence to undercut Baskett-McEnany’s belief, the Court ruled that DeWitt’s ADA discrimination claim failed.

FMLA Retaliation Claim Also Fails

DeWitt also argued that SW Bell terminated her in retaliation for her use of FMLA leave. She offered evidence from a former manager at the call center who stated that employees who used FMLA leave were targeted as employees that should be terminated and that the company would look for other reasons to terminate such employees. DeWitt also pointed to Kloxin’s response to Heumann’s revelation that DeWitt had hung up on customers, saying “I finally got that bitch,” as evidence that SW Bell terminated her for using FMLA leave.

Again, the Court rejected DeWitt’s arguments and her FMLA retaliation claim. The Court stated that the former manager’s comments about the company targeting employees who used FMLA leave was no more than speculation, as that person had no knowledge of and was not involved in the company’s decision to terminate DeWitt. In addition, the Court determined that Kloxin’s subjective beliefs were irrelevant as she was not the person who decided to terminate DeWitt. Finding no evidence to send DeWitt’s claims to a jury, the Court upheld the grant of summary judgment in favor of SW Bell on all claims.

Key Lessons

This case highlights some significant management practices that can help defeat discrimination and retaliation claims. First, hold all employees accountable to your standards of conduct. SW Bell terminated DeWitt for violating its code of conduct, providing the necessary legitimate, non-discriminatory reason for actions. In addition, because DeWitt could not provide evidence that other employees who similarly violated the conduct rules were treated more favorably than she was treated, she was unable to show pretext. Second, if a supervisor has a potentially unlawful animus or bias against an employee, take that person out of the decision-making process. Although Kloxin appeared to express animosity against DeWitt (although it is not clear that her animosity was driven by an unlawful motive), she was not involved in the decision to terminate DeWitt and that distinction drove the Court to reject DeWitt’s claims. Finally, remember that a reasonable accommodation applies prospectively. You need not excuse poor performance or misconduct for which no accommodation was requested. That said, when dealing with an employee with a known disability, weigh all employment decisions very carefully and make sure your actions are well supported by your policies and past practices.

April 19, 2016

Employee Reveals Medical Condition At Disciplinary Meeting – Now What?

Collis_SBy Steve Collis

You’re all set to fire an underperforming employee. You sit down for the disciplinary meeting and just as you start discussing her performance problems, she reveals she has back and neck pain due to work-related stress. What do you do? Here are practical steps you can take to handle this all-to-often workplace scenario.

Setting the Stage

Let’s look at the facts from a Tenth Circuit Court of Appeals case that dealt with this situation. Susan Bennett had worked as a Fiber Optic Tech for Paetec Communications, Inc. (Paetec) for twelve years. She was responsible for locating, repairing, testing and maintaining fiber optic cable in a service area covering parts of Oklahoma and Arkansas.

After Paetec was acquired by another company, Windstream Communications, Inc. (Windstream), Todd Moore became Bennett’s supervisor. Moore instituted a new policy requiring all technicians to check in at an assigned office each morning at 8 a.m. to allow for cross-training and to pick up company vehicles stored on the secured company premises.

Bennett was assigned to report to the Tulsa office each morning which required her to commute a total of almost four hours each day. She often arrived at the Tulsa office more than two hours late, or left several hours early to commute home. On a number of occasions, she failed to report to the office at all. Her time and attendance issues resulted in her being unable to complete a cross-training program that other technicians received.

A month or so after instituting the check-in policy, Moore and the company’s human resources specialist provided Bennett with a “final coaching” session which was the first step in the company’s progressive discipline policy. That same day, Bennett called to report that she was experiencing chest and shoulder pain due to work-related stress and had a doctor’s appointment the next day. The company directed Bennett to complete a workers’ compensation claim. She did and after she failed to return from her leave of absence, the company deemed her to have abandoned her job. She sued her employer, alleging her termination was due to gender and age discrimination. Bennett v. Windstream Comm., Inc., 792 F.3d 1261 (10th Cir. 2015).

Practical Steps To Avoid Liability

Disciplinary meetings do not always go as planned. As in Windstream’s case, employees sometimes disclose new information that raises a legal concern. When faced with an employee’s previously unknown medical condition, a new complaint about workplace harassment, or some other new issue, you should consider the following practical steps to help reduce the risk of liability for your organization.

Step #1 – Weigh Severity of Misconduct Versus Risk of Potential Liability

If an employee has engaged in severe misconduct, such as workplace violence, it may still be in your organization’s best interests to go forward with imposing the planned discipline or termination. As long as you are treating this person the same as any other employee who has engaged in this sort of severe misconduct, the risk of liability for a discrimination or failure to accommodate claim is likely low. In such cases, ensure that you have confirmed the facts supporting your discipline/termination decision and that they are properly documented before taking action against the employee.

For less severe infractions, such as attendance issues or failing to meet performance goals, however, moving forward with the planned discipline may be risky in light of the new issue(s) raised by the employee. You likely need more information about the person’s medical condition or newly asserted complaint before you can make an informed decision about your next steps.

In addition, you need to know whether the employee’s supervisor or anyone else in a decision-making capability had prior knowledge of the employee’s asserted medical condition or complaint. In these circumstances, your best practice is to inform the employee of his or her performance problems or misconduct at the meeting and explain the consequences of such conduct, but postpone imposing the discipline until you have had an opportunity to confirm the facts related to new information. If appropriate, you can place the employee on a paid administrative leave while you investigate the new issue.

Step #2: Have Written Policies and Follow Them

Good employment policies will provide you with a road map for how to handle most employee concerns. For example, if the employee asserts that she has been sexually harassed by her supervisor, follow your harassment policy and initiate an internal workplace investigation to determine whether harassment is indeed occurring at your facility. If so, take appropriate steps to remedy it. In the case of a newly revealed medical condition, determine whether it may qualify as a serious health condition under the Family and Medical Leave Act (FMLA) and then follow your FMLA policy, providing necessary notices and forms. As in Bennett’s case, if the employee alleges that the medical condition is work-related, handle it as a workers’ compensation claim and follow your workers’ comp procedures.

Step #3 – Provide Leave and Benefits to Which The Employee is Entitled

Once the employee has informed you of a medical condition, disability or other concern, your best bet is to provide them with the leave, reasonable accommodation or other benefits to which the employee is entitled. As frustrating as it may be that the employee waited until a disciplinary meeting to inform you of his or her condition, you now have knowledge of that information and you can’t put the genie back in the bottle. Sure, you can try to defend any potential claims by proving that you didn’t have knowledge of the condition when the actual discipline decision was made, but that sort of defense is fact specific and will be difficult to get resolved early in the case. If you want to avoid potential liability, it is best to offer any leave and benefits for which the employee is eligible.

Step #4 – Be Patient

It’s tough to back off on your planned discipline and “be nice” to a poor performing employee while he or she is out on leave or is getting medical treatment. It’s especially difficult in cases where you suspect that the employee may be manipulating the laws in order to avoid getting fired or being placed on a performance improvement plan. But be patient.

Let the workers’ compensation claim or FMLA leave run its course. At that point, the employee either comes back to work and is expected to perform up to your standards, or is unable to return to work. If the employee’s condition does not allow for a return to work, consider whether the employee’s condition is a disability covered by the Americans with Disabilities Act (ADA). If so, engage in an interactive process to determine if a reasonable accommodation would permit the individual to perform the essential functions of his or her job. A reasonable accommodation may include providing additional time off to complete medical treatments or recover, but you are not required to provide an indefinite period of leave. If you are patient and provide all required benefits until they are exhausted, you often are presented with clear, low-risk options for resolving the employment situation.

Step #5 – With Proper Documentation, Proceed With Discipline/Termination

An employee who engages in misconduct or performs poorly does not become “untouchable” simply by asserting a medical condition or harassment complaint. You may still hold them to your performance and conduct standards. First, be sure you have communicated your standards to the employee through an employee handbook, training and/or performance reviews. Second, ensure that the employee’s infractions or poor performance issues are properly documented in an objective, fact-based manner. And third, be certain to treat this employee the same as any other employee who has engaged in similar misconduct or poor performance. If you’ve met these criteria, you will minimize the risk that the discipline or termination you impose will result in liability.

Conclusion

Taking action to discipline or fire an employee is rarely risk-free. Taking such action after an employee reveals a medical condition, disability or other concern raises the stakes even higher. But you can minimize the risk of a lawsuit if you stay calm, follow your policies, and provide any rights and benefits to which the employee is entitled. Take each new development step-by-step and you will reduce the chance that you will need to defend your decisions in court.

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June 22, 2015

New FMLA Certification Forms Include GINA Safe Harbor Notice

Biggs_JBy Jude Biggs 

The U.S. Department of Labor (DOL) unceremoniously published new FMLA forms with an expiration date of May 2018. The only significant revision is the addition of a notice to employees and health care providers on the medical certification forms informing them not to reveal genetic information in violation of the Genetic Information Nondiscrimination Act (GINA). 

Genetic Information Off-Limits to Employers 

GINA, which went into effect in late 2009, applies to employers with 15 or more employees. It not only makes it unlawful for employers to discriminate or retaliate against employees and applicants because of their genetic information, but it also prohibits employers from requesting, requiring, purchasing or disclosing genetic information. 

Genetic information is defined to include information about an individual’s genetic tests and the genetic tests of an individual’s family members, genetic services and an individual’s family medical history. Family medical history is included because it often reveals whether someone has an increased risk of getting a disease, disorder or condition in the future. 

FMLA and GINA Intersect 

Under the FMLA, employers may require that an employee requesting leave for his or her own serious health condition or to care for a family member with a serious health condition provide a medical certification form completed by a health care provider. Through the medical certification form, health care providers provide medical facts about the condition, such as the expected duration, the nature of treatments, and whether the employee is unable to perform his or her job functions as well as information about the amount of leave needed. In some circumstances, responses by health care providers may reveal genetic information that is protected by GINA. 

Because of this intersection of the FMLA and GINA, the regulations implementing GINA offer suggested language that covered employers may use to specify that no genetic information should be provided when medical information is offered to support a request for FMLA leave. By utilizing this safe harbor language and advising the employee and the health care provider not to provide genetic information when completing the FMLA medical certification form, the inadvertent receipt of genetic information by the employer will not be deemed a violation of GINA. 

In the past, the DOL’s model FMLA certification forms lacked this GINA safe harbor language. Consequently, employers had to offer it separately or utilize their own FMLA forms in order to take advantage of GINA’s safe harbor provision. Now, the DOL has included the following language in its model FMLA certification forms: 

Do not provide information about genetic tests, as defined in 29 C.F.R. § 1635.3(f), or genetic services, as defined in 29 C.F.R. § 1635.3(e). 

The certification form for an employee’s own serious health condition includes a statement that no information about the manifestation of disease or disorder in the employee’s family members, 29 C.F.R. § 1635.3(b), should be provided. 

Use New FMLA Forms Or Update Your Own Forms 

The new FMLA model forms, with fillable form fields, are linked here: 

Take steps now to update your FMLA practices to use the new DOL forms, or if you use your own FMLA forms, update them to reflect the added recommended language.

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March 23, 2015

FMLA and FLSA Lawsuits Are Increasing

Wiletsky_MBy Mark Wiletsky 

The U.S. federal courts saw a whopping 26.3 percent increase in the number of Family and Medical Leave Act (FMLA) lawsuits filed last year over the prior fiscal year, according to statistics recently released by the Administrative Office of the U.S. Courts. Wage and hour lawsuits alleging a violation of the Fair Labor Standards Act (FLSA) were up a significant 8.8 percent. These filings are the highest they’ve been in the past 20 years of annual statistics reported by the courts. 

The increasing numbers of lawsuits brought under those two employment laws may reflect how difficult it is to understand and administer wage and hour and leave laws. The increase also may be due to the heightened awareness by workers of their rights and benefits under these laws. Regardless of the cause of the increase, the numbers suggest that it is worthwhile for employers to focus their compliance efforts in these two areas. 

Self-Audit Your Pay and Leave Practices 

Before you find yourself defending a lawsuit, take the time to review your payroll and FMLA policies and practices, including these often tricky issues: 

  • Classifying workers as exempt versus non-exempt from minimum wage and overtime pay requirements
  • Calculating each non-exempt employee’s regular rate of pay and overtime rate
  • Rounding time at the beginning and end of shifts
  • Automatic deductions for meal periods
  • Treating workers as independent contractors rather than employees
  • Tracking time worked remotely or “off-the-clock”
  • Providing FMLA notices within required time period
  • Calculating FMLA leave for workers with irregular schedules
  • Administering intermittent FMLA leave
  • Not penalizing employees who have taken FMLA leave 

If your self-audit reveals any irregularities, take steps to revise your policies and practices to bring them into compliance with the applicable laws. Don’t forget state and local laws that may impose additional requirements related to pay and leave administration. If in doubt, don’t hesitate to consult with your legal counsel so that you don’t become one of next year’s statistics.

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September 23, 2014

Cheyenne Jury Awards $1,481,000+ On FMLA Retaliation Claim

Cave_BBy Brad Cave

The series of large verdicts for Wyoming employees seems to be marching forward.  The most recent example occurred recently when a Cheyenne jury awarded over $740,000 to a trona miner after deciding that he was fired because he took FMLA leave.  With liquidated damages available in an FMLA case, the Wyoming court entered judgment in an amount in excess of $1.48 million in favor of the employee. This case stands as yet another example about the importance of supervisor training and careful, well-documented and consistent decision making. 

Long Term Employee With A Pain in the Neck.  We first told you about this case in March of this year, when the Tenth Circuit Court of Appeals sent the case back to Wyoming for trial after reversing the trial court’s dismissal of the case.  (Safety Violation or Too Much Intermittent FMLA Leave?). Here is a short recap of the facts. 

Steven Smothers had been employed by Solvay Chemical for 18 years when his employment was terminated.  Smothers had experienced back problems since 1994 resulting in three surgeries on his neck and other medical procedures, and an extended course of medical treatment by specialists.  Over the years, Smothers took intermittent FMLA leave for his medical appointments and when he was unable to work due to the pain.  The amount of FMLA leave he took did not go unnoticed.  He was pressured by the production superintendent to change shifts to lessen the additional overtime cost caused by his absences, but such a change would have cost him about $7,000 per year in shift differential pay.   Solvay also gave Smothers a negative rating on his performance evaluation because of his absences, and he was told that he was rejected for a promotion because of the leave. 

Smothers’ Safety Rule Violation.    In August 2008, Smothers and his coworkers were performing an acid wash, which Solvay did every six months to clean residual trona out of the equipment.   When Smothers noticed that a damaged spool piece had caused a leak, he began to fix it without obtaining a line break permit which was required by Solvay safety rules.  Smothers and a co-worker, Mahaffey, argued about whether the permit was necessary, and after Smothers removed the spool piece without first getting the permit, Mahaffey immediately reported Smothers’ actions to a supervisor. 

Solvay terminated Smothers’ employment on August 28, 2008, based on a joint decision of six Solvay managers.   Five of the six decision makers testified that the argument between Smothers and Mahaffey weighed heavily in the group’s decision to fire Smothers. Although the trial court originally dismissed the case, the Tenth Circuit believed that Smothers had presented enough evidence to create doubt about the real reasons for Smothers’ termination.   So, the case was sent back to the trial court for trial. 

What’s the Real Reason for Smothers’ termination? Like all retaliation cases, the jury in this trial was asked to decide whether Smothers was fired for a safety rule violation, as the employer contended, or because his employer retaliated against him for using intermittent FMLA leave or discriminated against him because of his disability.   We don’t have a transcript of the trial, so we cannot tell you what evidence the jury heard or what facts persuaded the jury.  We do know that the Tenth Circuit reasoned that the jury could disbelieve Solvay’s reasons because: 

  • Supervisors criticized Smothers informally and in his performance evaluation for taking FMLA-protected leave, and rejected him for a promotion because of his time off;
  • Solvay did not give Smothers an opportunity to describe or explain his side of the argument with Mahaffey, even though the argument was a central reason for the decision to terminate Smothers’ employment;
  • Other Solvay employees who committed safety rule violations were not terminated. 

And the Jury Returns.The jury found in favor of Smothers on his FMLA claim, and awarded Smothers the amount of $740,535 for his lost wages and benefits from the date of his termination, August 27, 2008, through the date of trial.  But the potential damages don’t stop with the lost wages.  Under the FMLA, the successful employee may be entitled to an additional amount equivalent to the jury’s award for liquidated damages – in other words, a penalty against the employer for the violation.  As a result, the court has entered judgment against Solvay in the total amount of $1,481,070, twice the amount of the jury’s verdict, plus interest since the date of termination.  The trial court declined to award Smothers any future lost wages.  However, Smothers is entitled to an additional judgment for his reasonable attorneys’ fees and costs, which could add hundreds of thousands of dollars to the total. 

Bottom Line.  Regardless of the final number after adding prejudgment interest and attorneys’ fees, this is one of the largest judgments ever entered against a Wyoming employer.  We cannot speculate about what evidence led the jury to its verdict, but we can share some lessons, with the benefit of twenty-twenty hindsight, that will help any employer avoid this kind of result: 

  • Managers and supervisors must be trained and committed to the fact that taking FMLA leave is protected by federal law, and must not be the reason for formal criticism, denied opportunities, or informal complaining.  FMLA-protected leave cannot be held against an employee for any reason whatsoever.  Any comment or suggestion to the contrary can be used as evidence of pretext.
  • Investigations must be thorough and even-handed.  While we don’t know all the evidence in this case, the jury may have heard that Solvay spent much more time asking Mahaffey about the argument with Smothers, while never asking Smothers for his side of the argument.  Everybody should get the same opportunity to tell their side of the story.   An inadequate investigation can be used as evidence of pretext.
  • Employees must be treated consistently.  Smothers had evidence that other Solvay employees intentionally violated safety rules without being terminated.  Employers need to mete out comparable discipline for comparable violations, or have a compelling reason why an employee gets tougher punishment.
  • Employers must respect long years of service.  Of course, keeping a job for eighteen years does nothing to technically change the legal relationship or create any new rights or protection for the employee.  But, after that length of time with a good performance record, it becomes difficult for a jury to believe that termination is an appropriate response for one incident. 

Wyoming juries have delivered substantial employee verdicts over the last few years.  Employers should pay attention. 

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March 10, 2014

Safety Violation Or Too Much Intermittent FMLA Leave? Tenth Circuit Says Jury Must Decide Wyoming Employee’s FMLA and ADA Case

By Brad Cave 

Did Solvay Chemicals fire long-time employee Steven Smothers because of a first-time safety violation or because the company was tired of his frequent absences due to an ongoing medical disability?  The Tenth Circuit Court of Appeals recently ruled that Smothers provided sufficient evidence to suggest that Solvay’s stated reason for his termination was pretextual, allowing his claims for unlawful retaliation under the Family and Medical Leave Act (FMLA) and discrimination under the Americans with Disabilities Act (ADA) to proceed.  Smothers v. Solvay Chem., Inc., No. 12-8013 (Jan. 21, 2014).  The Court affirmed the grant of summary judgment on his state law claim for breach of an implied employment contract. 

Medical Treatments and Severe Pain Lead to Frequent FMLA-Protected Absences 

For eighteen years, Smothers worked as a surface maintenance mechanic in Solvay’s trona mine in Sweetwater County, Wyoming. The company considered him to be an excellent mechanic who did great work and got along with everyone.  In 1994, Smothers injured his neck and developed degenerative disc disease in his spine.  Over the next five years, Smothers had three surgeries to his neck as well as numerous other medical procedures.  Despite treatment by a specialist, Smothers continued to have severe ongoing neck pain, severe migraine headaches and lower back problems.  At times, Smothers was unable to work without pain treatments and he often was able to sleep only a few hours each night due to the pain. 

Smothers asked for and was granted FMLA leave for intermittent absences caused by his condition.  Managers and co-workers began to complain about his absenteeism, especially because he worked on the graveyard shift where there were fewer workers to absorb his absences resulting in increased overtime costs.  Solvay’s production superintendent Melvin Wallendorf pressured Smothers to change to the day shift, but Smothers refused as the shift change would have cost him about $7,000 a year.  Solvay’s human resources department advised Wallendorf that urging Smothers to switch shifts would violate the FMLA so Wallendorf stopped pressuring Smothers but did not stop complaining about his absences. 

At one point, Wallendorf and Rick Wehrle, Smothers’ direct supervisor, gave Smothers a poor performance rating on his evaluation due to his absenteeism.  In 2005 or 2006, Smothers applied for a promotion but was told that he was rejected because of his absences. 

Safety Issue Explodes into Argument 

In 2008, the graveyard crew conducted a routine maintenance acid wash to remove build up in its equipment.  After a line ruptured, Smothers saw that a damaged “spool piece” had caused the problem and prepared to remove it.  Another mechanic, Dan Mahaffey, suggested that Smothers wait for a line break permit, which is a form that certifies that employees have completed a checklist of precautions before a line can be safely disconnected.  Smothers said that a permit wasn’t required because the line was already broken.  Mahaffey and Smothers then argued.  Mahaffey offered help on the repair which Smothers refused.  Mahaffey took offense and accused Smothers of hypocrisy since Smothers had previously reported others for safety violations.  Smothers made an offensive comment to Mahaffey and told him he did not want his kind of help.  Smothers removed the broken piece and began the repair.  

Mahaffey immediately reported the argument and Smothers’ removal of the spool piece without a line break permit to the area supervisor.  Later that same day, three managers called Smothers in to discuss the safety violation.  Although completing the line break permit may not have been absolutely necessary, Smothers later conceded that he should have locked out the pump valve before removing the part according to Solvay’s safety policies. Smothers apologized for not locking the pump valve before removing the piece and promised it wouldn’t happen again.  Smothers was sent home pending an investigation.  

Six managers were involved in deciding what to do about the argument and the safety violation.  Three of the managers personally talked with Mahaffey about the argument but no one spoke to Smothers about it.  About eight days later, Solvay fired Smothers.  Smothers sued in Wyoming federal court, alleging, among other claims, unlawful FMLA retaliation, ADA discrimination and breach of an implied employment contract based on Solvay’s employee handbook. 

FMLA Claim Bolstered By Disparate Treatment and Previous Retaliatory Acts 

The trial court granted summary judgment to Solvay on Smothers’ FMLA and ADA claims.  On appeal, the Tenth Circuit decided that Smothers presented enough evidence for a trial about whether Solvay’s real reason for his termination was his use of FMLA leave or his disability.  Smothers provided evidence that other employees who committed similar safety violations were not fired.  Five of the six decision-makers who fired Smothers were also involved in at least one decision in which a similarly situated employee was treated more favorably after violating the same or comparable safety rules.  Smothers also pointed to the negative comments, negative performance rating, failure to promote and pressure to change shifts because of his FMLA-protected absences as evidence that the safety violation was a pretext for firing him for his FMLA leave.  Moreover, Smothers showed that the decision-makers had failed to sufficiently investigate the argument he had with Mahaffey, basing their decision almost entirely on Mahaffey’s version of events.  The Court decided that a reasonable jury could find that Solvay’s investigation into the quarrel was not fair or adequate.  Based on this evidence, the Court found that there were issues of fact on whether Solvay’s termination reasons were pretextual and reversed the dismissal of Smothers’ FMLA retaliation claim. 

Smothers Was Disabled Under ADA 

Smothers also asserted that his firing was in violation of the ADA.  He presented evidence that his medical condition was an impairment that substantially limited a major life activity, specifically his ability to sleep.  Because the facts would allow a reasonable jury to conclude that Smothers’ sleep was substantially limited, Smothers satisfied his burden of establishing a prima facie case of disability discrimination.  As with the FMLA claim, the Court found sufficient evidence that Solvay’s stated termination reasons may have been a pretext for disability discrimination. Therefore, the Court reversed the dismissal of Smothers’ ADA claim as well. 

No Breach of Implied Contract Based on Employee Handbook 

Smothers also alleged that Solvay violated the terms of its employee handbook, giving rise to a claim for breach of implied contract under Wyoming law.  The Court disagreed.  Wyoming recognizes a claim for breach of implied contract if an employer fails to follow its own required procedures, such as the procedures laid out in an employee handbook.  Solvay’s handbook contained a four-step progressive disciplinary process, with termination as the last step.  But it also contained a provision that allowed Solvay to terminate an employee immediately for a serious offense, including a safety violation.  Because the discipline policy unambiguously gave Solvay the discretion to fire employees who violate safety rules, the Court found that Solvay’s decision to terminate Smothers for violating a safety rule did not violate the terms of the employee handbook.  Therefore, the appeals court upheld the trial court’s dismissal of Smothers’ breach of implied contract claim. 

Back To Court They Go 

We don’t know whether Smothers or Solvay will prevail if this case goes to trial but we do know that the appellate court thought that some of the evidence about the actions of Solvay managers could demonstrate that Solvay acted with a discriminatory motive:   

  • Supervisors and co-workers gave Smothers a hard time about taking FMLA-protected leave.
  • Solvay failed to properly investigate all sides in the quarrel, accepting one employee’s version of events as fact.
  • The decision-makers treated Smothers more harshly than other similarly-situated employees who had violated similar safety rules.
  • Managers and supervisors considered Smothers’ FMLA absences when providing his performance evaluation and rejecting him for a promotion.  

Evidence of these actions prevented Solvay from obtaining a grant of summary judgment on appeal. While Solvay may dispute Smothers’ evidence when the case actually goes to trial,  this case stands as a lesson about the kinds of supervisory comments and actions that can feed into a discrimination claim, and a good reminder of how carefully employers must manage employees with injuries or disabilities.

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December 17, 2013

Colorado Raises Minimum Wage for 2014: Checklist for Complying with New Employment Developments

New YearBy Jude Biggs 

A new year is just around the corner.  Along with champagne toasts and resolutions to lose weight, January 1 typically brings new laws and regulations in Colorado.  2014 is no different.  Colorado employers should plan now for the changes going into effect in 2014. It is also a good time to make sure you are in compliance with the new laws that took effect in 2013.  Here is a checklist to help you stay on the right side of the law. 

  • Colorado Minimum Wage Goes Up to $8.00 per Hour on January 1.  The Colorado Division of Labor has adopted Minimum Wage Order 30 which raises the state minimum wage from $7.78 (2013) to $8.00 per hour, effective January 1, 2014.  The state minimum wage for tipped employees increases to $4.98 per hour, also effective January 1, 2014.  Colorado’s minimum wage is adjusted annually for inflation pursuant to the Colorado Constitution.  If this applies to any of your workforce, update your payroll practices to comply with the new rate on the first of the year.
  • Marijuana may be Legally Purchased and Possessed on January 1.  Adults may legally buy, use and possess small amounts of marijuana in Colorado beginning January 1st.  Because marijuana is still illegal under federal law, Colorado employers may continue to have workplace policies banning its use by employees and prohibiting possession of marijuana on company premises.  Review and if necessary, update your policies to reflect that use of controlled substances and drugs that are illegal under either state or federal law are not permitted.  The new year is a good time to communicate this to your employees.
  • Rules Implementing Employment Opportunity Act (Credit History Law) Effective January 1.  Colorado’s Employment Opportunity Act, section 8-2-126, C.R.S., was enacted last spring and went into effect on July 1, 2013, restricting an employer’s use of credit history information on employees and applicants.  (See our post on that new law.) The Division of Labor has adopted new rules, 7 CCR 1103-4, that go into effect on January 1 to implement the provisions of the act.  The new rules include a couple of new definitions and clarifications not found in the act itself, including that “consumer credit information” does not include income or work history verification and that “prevailing party” means the employee who successfully brings, or the employer who successfully defends, the complaint.  The new rules also describe the enforcement mechanism for violations, including how complaints must be filed, the investigation process, initial decisions and appeals.
  • Rules Implementing Social Media and the Workplace Law Effective January 1.  Last spring, Colorado enacted a law, found at section 8-2-127, C.R.S., that restricts an employer’s access to personal online and social media sites of employees and applicants.  (We previously wrote on that law here.)  The law went into effect on May 11, 2013 but new rules implementing the law go into effect on January 1, 2014.  In large part, the rules, 7 CCR 1103-5, mirror the act itself but add that it is OK for an employer to access information about employees and applicants that is publicly available online.  The new rules also detail the complaint, investigation, decision, appeals and hearing process.
  • 2013 Family Care Act Extends FMLA Coverage to Care for Civil Union and Domestic Partners.  Effective August 7, 2013, Colorado’s Family Care Act, section 8-13.3-201 et seq., C.R.S., extends leave benefits under the federal Family and Medical Leave Act (FMLA) to eligible employees to care for their civil union and domestic partners with a serious health condition.  If you are a covered employer under the FMLA, ensure that your FMLA forms, policies and practices provide that eligible employees may take leave to care for a seriously ill or injured civil union or domestic partner.  Also, for multi-state employers subject to the FMLA, remember that if you have employees in states that recognize same-sex marriages, the FMLA definition of “spouse” will include employees’ same-sex spouses due to the U.S. Supreme Court’s decision in United States v. Windsor (further discussed here).
  • Age 70 Cap on Colorado Age Discrimination Claims Eliminated in 2013.  Colorado’s legislature enacted changes to the Colorado Anti-Discrimination Act (CADA).  Effective August 7, 2013, there is no longer an upper age limit of 70 years old for age discrimination claims under CADA, section 24-34-301, et seq..C.R.S.  This brings Colorado’s age discrimination law in line with the federal Age Discrimination in Employment Act which makes it unlawful to discriminate against employees and applicants on the basis of age 40 or older with no upper age limit.
  • Prepare for Changes in Remedies Available for Colorado Discrimination Claims Beginning January 1, 2015.  Colorado added new remedies, including punitive damages, that may be recovered for violations of CADA for claims alleging discrimination or unfair employment practices that accrue on or after January 1, 2015, section 24-34-405. C.R.S.  With a year to prepare, now is the time to get policies in place to address reasonable accommodations, complaint procedures and other good faith measures to resolve workplace discrimination issues. 

Start the year off right by making sure you comply with these new developments in Colorado employment laws. We wish you a happy, healthy, prosperous and compliant 2014! 

For more information, contact Jude at 303-473-2707 or jbiggs@hollandhart.com.


Disclaimer: This article is designed to provide general information on pertinent legal topics. The statements made are provided for educational purposes only. They do not constitute legal advice and are not intended to create an attorney-client relationship between you and Holland & Hart LLP. If you have specific questions as to the application of the law to your activities, you should seek the advice of your legal counsel.


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August 14, 2013

DOL Updating FMLA Guidance to Reflect DOMA Decision

By Brad Cave 

New Labor Secretary, Tom Perez, indicated that the Department of Labor (DOL) has updated departmental guidance regarding spousal leave provisions of the Family and Medical Leave Act (FMLA) to reflect the Supreme Court’s recent decision that struck down certain provisions of the Defense of Marriage Act (DOMA).   As the DOL updates its policies, employers too need to examine and update their FMLA policies.  Here is what you need to know. 

Unconstitutionality of DOMA Means FMLA Spousal Leave Applies to Legally Married Same-Sex Couples 

The Supreme Court’s decision in United States v. Windsor focused on Section 3 of DOMA which defined “spouse” as a husband or wife of the opposite sex for purposes of federal laws or regulations.  Because of that definition, legally married same-sex couples were not entitled to federal benefits or rights.  As a result, FMLA leave benefits did not extend to employees needing time off to care for a same-sex spouse with a serious health condition.   

In finding Section 3 of DOMA unconstitutional, the Court stated that the regulation of marriage traditionally rests exclusively with the states and the federal government violates equal protection principles by denying rights and benefits to same-sex couples who are legally married under state law.  The result is that federal rights and benefits, including FMLA spousal leave benefits, now apply equally to state-sanctioned same-sex couples and heterosexual couples.  

DOL Implementing Court’s Decision 

Secretary Perez affirmed the availability of spousal leave under the FMLA based on same-sex marriages.  He indicated that the DOL has removed references to DOMA from some of its guidance documents and will continue to take steps to implement the Court’s Windsor decision. 

When Do Employers Need to Recognize Same-Sex Marriages for FMLA Purposes? 

With some states legally recognizing same-sex marriages and others not, a key question for employers is which state’s law applies for FMLA spousal leave purposes?  According to the DOL’s 2009 FMLA regulations, “spouse” means a husband or wife as recognized by the state where the employee resides.  This means that the employer must determine if same-sex marriages are lawful in the state where the employee requesting FMLA leave lives, not where the employer is located or where the employee actually works.  At present, 13 states plus the District of Columbia recognize same-sex marriages as lawful:  California, Connecticut, Delaware, Iowa, Massachusetts, New Hampshire, Maine, Maryland, Minnesota, New York, Rhode Island, Vermont and Washington.  

Some groups are urging the DOL to adopt a rule that would recognize FMLA rights based on the state where the marriage was celebrated, not the state of residency.  Although the DOL has not yet proposed any rule changes on this issue, we will keep an eye on it and will let you know if any changes to the marriage recognition rules are proposed. 

Update Your FMLA Policy for Same-Sex Spousal Leave 

If you have employees living in one or more states that recognize same-sex marriages (or in the District of Columbia), update your FMLA policy, forms and practices to incorporate spousal leave benefits for recognized same-sex marriages.  This includes FMLA leave for an employee who needs to care for a same-sex spouse with a serious health condition, leave because of a qualifying exigency due to the employee’s same-sex spouse being on “covered active duty” and FMLA military caregiver leave for an employee who needs to care for a same-sex spouse who is a “covered servicemember” or “covered veteran.”  Be sure to look at the state where the employee resides when determining whether same-sex marriage is deemed lawful and recognized for FMLA purposes.  If you use an FMLA tracking mechanism, make sure the system properly tracks for same-sex spousal leave.  As always, train your managers, supervisors and human resource professionals on this change in FMLA benefit coverage.


Disclaimer: This article is designed to provide general information on pertinent legal topics. The statements made are provided for educational purposes only. They do not constitute legal advice and are not intended to create an attorney-client relationship between you and Holland & Hart LLP. If you have specific questions as to the application of the law to your activities, you should seek the advice of your legal counsel.


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March 19, 2013

Checklist for Complying with the New FMLA Regulations

FMLA_posterHave you updated your Family and Medical Leave Act (FMLA) policy and poster?  You should have.  New regulations that implement changes to the FMLA went into effect on March 8, 2013.  Covered employers need to take action now to ensure compliance with the new rules. 

A summary of the changes to the FMLA as well as a checklist for complying with the new regulations is available here.  Be sure to update your FMLA policies, poster, certification forms and notice of rights immediately.  In addition, ensure that your leave administrators, supervisors and human resources personnel are trained on the new rules.  FMLA compliance isn't hard, but it does take work!