Alaska Employment Law

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 Introduction

The District of Alaska recently issued order granting an employer summary judgment in another FMLA case. The case is Kinney v. Holiday Companies, et al., No. 3:07-cv-00147 RRB. This summary briefly reviews the decision and its significance.

Facts

The facts set forth here are from the district court’s ruling, which was an unpublished disposition. Not all facts are discussed in an unpublished disposition.

Sally Kinney worked as a cashier for a Holiday gas station. She has been treated for kidney cancer since 1997. The previously took unpaid FMLA leave in 2005 and again in 2006. In February 2007, she began taking medication related to her chemotherapy treatment. The side effects left her dizzy, light-headed, and nauseous. On March 13, 2007, Kinney reported for work. However, she felt sick as a result of the medication. She told her supervisor that she did not feel well, and asked to see if the supervisor could find someone to come in and take her shift. Her supervisor advised that she would try to find someone to fill in for her. Later that same day, Kinney sold cigarettes to a secret shopper without asking for identification. This violated Holiday’s policy of requiring ID checks for tobacco sales. This was apparently the second such violation in a few months, the prior violation allegedly occurring in November 2006. Holiday therefore terminated Kinney’s employment.

District Court

Kinney filed suit alleging that Holiday violated FMLA by denying her request for medical leave and by interfering with her right to seek leave. The second theory was based on the premise that Holiday forced Kinney to work while she was ill. Holiday moved for summary judgment. The district court granted Holiday’s motion. The district court found that Kinney never made an express request for FMLA leave. The district court observed that “[i]f a request for time off such as Kinney’s could qualify as a valid FMLA request, that would put [the supervisor] in the absurd position of deciding on her own, mid-shift, whether Kinney’s request for leave was a valid one.” The district court concluded:

Kinney has no cognizable claim under the FMLA. The statute cannot possibly require what Kinney says it does, which is that an employer must decide within hours or minutes whether an employee qualifies for leave under the FMLA. Because Kinney’s request for leave was deficient as a matter of law, her FMLA claims cannot withstand a motion for summary judgment.

Kinney moved for reconsideration. She argued that she had a chronic serious health condition that was known to the employer. Holiday countered that Kinney never showed that she was incapable of work and did not give it adequate notice of any need to take FMLA leave. The district court denied Kinney’s reconsideration motion on April 7, 2009. It is not currently known whether or not Kinney intends to appeal.

Significance

Although one might interpret the district court’s ruling as implying a degree of artificial formality (no magic words are required to trigger FMLA leave), the district court’s analysis and conclusion are supported by the regulations. See 29 C.F.R. § 825.303(b). If an employee is seeking FMLA leave for a condition for which FMLA leave was previously taken, the employee is supposed to “specifically reference either the qualifying reason for leave or the need for FMLA leave. Calling in ‘sick’ without providing more information will not be considered sufficient notice to trigger an employer’s obligations under the Act.” Id. Another relevant point not specifically developed by the district court (although it is briefly mentioned) is that FMLA does not insulate an employee from discipline for violating workplace policies. An employee on FMLA leave or eligible for FMLA leave is supposed to be treated no better or worse than any other employee.

Kinney only filed a claim under FMLA. She later sought leave to amend a breach of contract and implied covenant claim. The additional contract theories were based on allegations that another employee sold products to minors in violation of state law, yet was not terminated, and that Holiday’s policy required it to provide Kinney with written notice of an intent to discipline her (something Holiday failed to do). Kinney also alleged that she had not sold tobacco products to an under-age minor in November 2006 as alleged by Holiday. The district court denied leave to amend concluding that Kinney failed to show good cause and diligence in seeking the amendment. Consequently, the only claim analyzed was the FMLA claim.

Although the district court denied Kinney leave to amend to add the contract-based claim, the allegations underlying that claim might possibly support an inference that Kinney was treated differently if there were facts to show that Holiday knew Kinney’s cancer was recurring or was suffering from a chronic serious health condition. There are not enough facts to evaluate this consideration, but we note it here as a point employers may wish to consider in proactively approaching disciplinary issues of this sort.

If it had arisen at a later date, it is possible that Kinney’s claim may have survived under the ADA as amended (the amendment took effect on January 1, 2009). This is because the ADA amendments have shifted the focus from status (whether one is a qualified individual with a disability, whether one is substantially limited in a major life activity, and whether mitigating measures are available) to decision (what was the motive or reasoning underlying the challenged decision). There are not sufficient facts in the district court’s ruling to evaluate these considerations. The Ninth Circuit recently interpreted the ADA as being consistent with the ADAA, suggesting that even if Kinney had filed a claim under the old version of the ADA, her claim would have been analyzed by reference to the principles underlying the ADAA. See Rohr v. Salt River Project, ___ F.3d ___ (9th Cir. 2009).

Recommendations

Although Kinney lost her case, employers should not draw the wrong lessons from the result. Here are some basic recommendations:

· If an employer has notice of circumstances potentially implicating FMLA or the ADA, the employer should proactively develop information in an appropriate and confidential manner. This should primarily involve engaging in an interactive dialogue with the employee in question. If the circumstances support designation of FMLA leave, the employer should make sure that an appropriate designation is made.· Never assume that “magic words” are required to invoke rights under the law.· An employee on FMLA leave is not insulated from discipline, even termination. However, employers should be careful to make sure that any decision affecting an employee who is out on FMLA leave is fair in form and function, and is supported by competent evidence.· Consistency is important. Employers should develop policies to help foster consistent decision-making.

Holiday won the war, but it is fair to question whether it was a Pyrrhic victory. The district court awarded no one attorneys’ fees or costs. Suit was filed in August 2007. The case was actively litigated.

Kinney, represented by Anchorage attorney Ken Legacki, appealed to the 9th Circuit on April 17th.