Firefighter Wins Significant FMLA Lawsuit

Kim Lubke was a battalion chief for the City of Arlington, Texas Fire Department, and was in charge of eight fire stations and 40 to 50 employees. In preparation for the year 2000 (Y2K), the City’s critical departments, including the Fire Department, developed contingency plans in the event widespread electronic problems should arise. The Y2K plan was in effect from 6 p.m. December 31, 1999, through 7 a.m. January 2, 2000.

To ensure full staffing during that weekend, the City required all Fire Department employees to report to a designated battalion chief by dawn each day before reporting for duty. During the pendency of the Y2K plan, they were not permitted to call the unmanned answering machines to report unscheduled leave. Additionally, the City restricted its normal, more informal sick leave policies, and instead required a doctor’s written substantiation of any absence.

Lubke was scheduled to work from December 31, 1999, through January 1, 2000. On December 30, 1999, at 8:11 p.m., Lubke telephoned a call box and left a message stating that he would not be at work during the Y2K weekend because he needed to stay home to care for his sick wife, who also was employed by the City. Throughout December, Lubke’s wife was ill with flu symptoms and back pain. Lubke’s wife’s back pain had been a chronic, periodically-occurring condition, and she was incapacitated from December 30, 1999, through the morning of January 3, 2000.

The Lubkes both returned to work on January 3. Lubke submitted a standard leave form, on which he wrote: “Wife was ill with severe bronchitis/possible pneumonia. During coughing spells had strained back muscles and could not get out of bed. Needed my assistance.” He attached to the leave form an examination form from a doctor dated December 22, 1999, as well as receipts for three prescriptions for Mrs. Lubke, one of which was filled December 22, and the other two of which were filled on December 29. Lubke’s paid leave was disapproved for insufficient substantiation. Lubke’s wife, however, submitted identical documentation to the City, and her leave was approved.

Even before Lubke submitted his leave form, Assistant Fire Chief Larry Brawner lodged a personnel complaint against Lubke for his unscheduled Y2K leave. Lubke repeatedly asked Brawner what type of substantiation would be sufficient, but Brawner refused to answer. On January 15, Lubke asked Human Resources for clarification on the substantiation issue, but was referred back to Brawner, who again refused to answer.

On April 14, 2000, Brawner notified Lubke of his impending discharge for dereliction of duty, unauthorized absence, and insubordination. To no avail, Lubke asked for two additional days to obtain a report from his wife’s doctors. He was discharged effective April 19, and subsequently sued the City under the Family and Medical Leave Act (FMLA).

A ten-day jury trial resulted in a verdict for Lubke on his FMLA claim against the City. The judgment awarded Lubke damages for lost wages and benefits ($395,394), liquidated damages ($300,000), attorney fees ($305,292), and court costs ($9,576).

On appeal, the City argued that Lubke failed to show that his wife suffered from a “serious health condition” as required by the FMLA. The FMLA defines a “serious health condition” as “an illness, injury, impairment, or physical or mental condition that involves…continuing treatment by a health care provider.”

The Court found that “Lubke presented extensive evidence at trial regarding his wife’s serious health condition. Both he and his wife testified about her chronic back problems, as did Mrs. Lubke’s coworker and supervisor. Mrs. Lubke’s physician testified that she experienced chronic but episodic back problems for which he prescribed medications. Medical records introduced at trial corroborated that the doctor examined and treated Mrs. Lubke’s back condition for nearly a decade, during which he prescribed 40 medications, including muscle relaxers, anti-inflammatories, sleep medication, and narcotic pain medications. This evidence was legally sufficient for a jury to find a chronic condition under the FMLA.”

The City also argued that it should have been allowed to introduce into evidence Lubke’s past disciplinary problems. The Court disagreed, citing the fact that the City “unequivocally admitted” that Lubke was discharged for the Y2K absence events only. As phrased by the Court, “given the City’s admission, and the consequent irrelevance of Lubke’s disciplinary history to the decision to terminate, the District Court did not abuse its discretion in excluding the evidence.”

While it generally affirmed the jury’s award, the Court remanded the case to the trial court for a recalculation of the amounts owed Lubke for lost insurance coverage, and to determine the amount of an offset for damages for the retirement system payout Lubke received upon his termination.

Lubke v. City of Arlington, 2006 WL 1793268 (5th Cir. 2006).

This article appears in the August 2006 issue