FMLA Claim Can Be Based On Inadequate Disciplinary Investigation

Robert Festerman was a police officer in the Wayne County, Michigan jail. Due to understaffing, involuntary overtime was a common occurrence, and deputies like Festerman did not have the right to refuse overtime assignments. If an officer refused a mandatory overtime assignment or failed to report for such assignment, that officer’s supervisor would issue a Conduct Incident Report (CIR), documenting the officer’s refusal to follow a direct order. It was common practice to refer an officer who received a CIR for administrative review.

On March 3, 2012, while at work, Festerman experienced chest pains and shortness of breath and was transported to a hospital. Festerman’s doctor wrote: “Patient is advised to limit working hours to 8 hrs/day.” Festerman’s doctor also prescribed medicine for treating anxiety disorder.

The County accommodated Festerman’s limited working hours for a period of time, which excused him from overtime work. Eventually, the Sheriff’s Personnel Office made the determination that officers with doctor’s notes limiting their working hours would be assigned overtime shifts, just as any other officer on duty, and would be issued CIRs if they refused to work a mandatory overtime shift.

Festerman continued to suffer from medical conditions, and his doctors continued to indicate that he should work no more than eight hours a day. Eventually, he received CIRs for refusing to work overtime, was the subject of treatment he considered harassment, and resigned from his job.

Festerman sued the County under the Family and Medical Leave Act. Two key issues faced the federal Sixth Circuit Court of Appeals: (1) Had Festerman properly provided the County with notice of his “serious health condition” as required by the FMLA; and (2) had Festerman brought forward enough facts to justify a jury trial on whether his resignation should be treated as a “constructive discharge.” The Court ruled for Festerman on both issues.

On the notice issue, the Court found that “to invoke the protection of the FMLA, an employee must provide notice and a qualifying reason for requesting the leave. In the present case, this Court is confronted with a doctor’s note that expressly discloses a requirement of limiting the employee’s work hours per day, but fails to disclose the condition that gives rise to this requirement or any additional prescribed treatment. Consequently, the doctor’s note submitted by Festerman, in isolation, may not have provided sufficient notice to Wayne County of a qualifying condition under the FMLA. The circumstances surrounding Festerman’s initial qualifying leave, however, provided additional context to the doctor’s note and are evidence that Festerman’s superiors were aware of his potential FMLA-qualifying condition.

“Festerman has provided evidence that the common unwritten practice of Wayne County was to grant leave based solely on the submittal of a doctor’s note. Festerman asserts that Disabilities Manager Shirley Prieskorn told Festerman that his doctor’s note fulfilled Wayne County’s notice requirement. Moreover, Festerman has produced deposition testimony by a commander, which indicates that Festerman’s superiors were aware of at least four employees who were informally granted intermittent leave based on doctor’s notes and that those employees were not issued CIRs for declining to work overtime. The evidence proffered by Festerman is sufficient for a reasonable jury to find that Festerman complied with the FMLA’s notice requirement when he allegedly submitted his doctor’s note to his superiors.”

Turning to the most serious claim in the case, the Court held that “to establish constructive discharge, a plaintiff must adduce evidence to show that (1) the employer deliberately created intolerable working conditions, as perceived by a reasonable person, (2) the employer did so with the intention of forcing the employee to quit, and (3) the employee actually quit. Festerman asserts that he was subjected to intolerable working conditions based in part on harassment from Wayne County’s supervisory staff.

“In particular, Festerman alleges that Wayne County implicitly authorized the harassment of Festerman by a coworker who wore a t-shirt mocking his medical condition, which read, ‘I refuse – I have a note from my mom.’ Festerman not only provided evidence of his own outrage at Wayne County’s handling of the matter, but also tendered evidence that several of his colleagues were offended by the incident.

“Moreover, Festerman’s evidence showed that a sergeant’s investigation into the t-shirt incident only added insult to injury. Instead of investigating whether the other deputy violated jail policies by, for example, wearing the shirt while on duty, the sergeant focused her efforts on the motives of those who complained. During her interview with Festerman, the sergeant repeatedly asked why Festerman refused to work overtime even though she knew Festerman’s leave requests were medically related.

“The sergeant instructed Festerman not to discuss the investigation with anyone, but then dropped the investigation soon thereafter without making official recommendations or findings. Finally, Festerman later learned that the sergeant had accused the officer who told Festerman about the shirt – rather than the officer who wore the shirt – of creating the problem. Festerman submitted evidence that another supervisor had also referred to Festerman and the others who complained as trouble makers.

“Although hurt feelings are not enough to show a constructive discharge, a reasonable jury could find that the combined hostility from the officers and supervisors to Festerman resulting from his leave requests and complaints of harassment contributed to objectively intolerable working conditions.”

Festerman v. County of Wayne, 2015 WL 2147026 (6th Cir. 2015).