Deputy Not Required To Say ‘FMLA’ To Request FMLA Leave

Randall Miller was a deputy sheriff with the Boyle County, Kentucky Sheriff’s Department. In 2007, Miller began having severe headaches which caused him to miss work occasionally. Over the course of 2007 and 2008, Miller’s condition worsened and he began to experience what he described as blackout spells. On August 29, 2008, Miller invited Chief Deputy Jimmy Wilcher to his home and discussed for the first time his condition, including his blackout spells. Miller told Wilcher that he needed to take time off to see a doctor. Wilcher approved this request for time off.

In the days that followed, Miller met with a neurologist to discuss his headaches and blackout spells. The doctor ordered Miller off work beginning September 2, 2008 and restricted his driving. After a neurological evaluation, Miller was told that he was not having seizures, but was having “psychogenic seizures” or “pseudoseizures,” which were stress-induced. As a result, Miller sought treatment from a psychiatrist and a psychologist in an effort to alleviate some of his stress and stress-induced symptoms. The doctors prescribed medications for Miller during this time as well.

On October 25, 2008, Miller and Sheriff Hardin had a meeting to discuss Miller’s condition. Miller told Hardin that he was not suffering from seizures but that he had “spells” and migraine headaches. Miller informed Hardin that although he had been under a driving restriction, his diagnosis after visiting the epilepsy center reflected that he was not having seizures. Miller explained that his “spells” caused him to lose focus to the point that he could not see or hear anything during the duration of the blackout spell and suffered memory loss after the blackout spell. At that meeting, Hardin asked Miller to fill out and turn in FMLA paperwork. Miller responded that he would be able to do so soon, because he was seeing one of his doctors for a follow-up appointment in a few days.

Six days later, the Sheriff met with Miller and explained that he thought Miller would be a liability to the County if Miller returned to his former position as a deputy sheriff, particularly because a large component of that position involved operating a police cruiser, which Hardin felt could not be done safely with Miller’s history of blackout spells. Hardin provided Miller the opportunity to resign but stated that, if he did not resign, Hardin would terminate him.

Miller did not immediately resign, nor was he terminated at the conclusion of that meeting. On November 6, 2008, Miller returned for appointments with his doctors. At these appointments, Miller asked both doctors if he could be cleared to return to work, “thinking if his doctors would clear him, maybe Sheriff Hardin would change his mind about firing him.” Both doctors stated they would clear him to return to work if the other concurred. Thus, Miller was cleared to return to work, without restrictions, on November 6, 2008, despite the fact that the same two doctors recommended, only a few days earlier, that Miller remain off work for an extended period of time. The following day, Miller provided the notes releasing him to work to Hardin. Hardin said he would think about the situation and call Miller later that evening.

In the interim, Hardin telephoned one of the doctors to inquire about the note the doctor had provided Miller. The doctor stated that he had released Miller to work without restrictions, but that he could not guarantee that Miller would not suffer another blackout spell or other symptom.

Hardin called Miller and stated that he felt that Miller had been dishonest with him regarding his condition because Miller did not disclose his blackout spells to him (which he felt were a danger to the public, due to Miller’s job responsibilities) until long after they began, and because Miller asked to be off work until sometime in December 2008 or January 2009 and provided doctors’ notes to that effect, but when threatened with loss of his job, provided doctors’ notes stating that he (Miller) could return to work immediately, in early November. As a result, Hardin informed Miller that he was terminated, effective immediately.

Miller subsequently filed a lawsuit for violation of the FMLA. The County asked a federal court to dismiss the lawsuit, arguing that Miller failed to provide it with sufficient notice of his serious health condition to invoke the protections of the FMLA.

The Court rejected the County’s arguments, and let Miller’s FMLA claim proceed. The Court held that “the employee does not have to explicitly mention the FMLA by name, the critical question is whether the information imparted to the employer is sufficient to reasonably apprise it of the employee’s request to take time off for a serious health condition. The County does not argue that Miller should have provided it with 30 days’ advance notice of his leave. Rather, they simply argue that the notice Miller did provide was insufficient to put them on notice that Miller was invoking the protections of the FMLA.

“During Miller’s conversation with Chief Deputy Wilcher (then acting Sheriff during Sheriff Hardin’s absence), Miller explained that he was having a variety of health problems which would require time away from work. Miller described his symptoms to Wilcher as headaches and blackout spells. Wilcher instructed Miller to take off as much time as he needed to take care of his health issues. This interaction was more than sufficient to reasonably apprise it of the employee’s request to take time off for a serious health condition.”

Miller v. Hardin, 2010 WL 1451352 (E.D. Ky. 2010).

This article appears in the July 2010 issue