The Case of the Stray Dog

December 3, 2007

In a recent case, Stevenson v. Hyre Electric Co., No. 06-3501 (7th Cir. Oct. 16, 2007), the Seventh Circuit Court of Appeals (whose jurisdiction encompasses Wisconsin) ruled that an employer may have had “constructive notice” of an employee’s need for leave under the federal Family and Medical Leave Act (FMLA) and should have extended an offer of that leave. This decision is of vital importance for Wisconsin employers as it will have a significant impact on when an employer should affirmatively inquire if an employee needs FMLA leave and advise that FMLA leave is available.
The following is a summary of this case. The summary is lengthy because the facts must be set forth in detail for a full understanding of the case and the Court’s ruling.
Prior to February 9, 2004, Beverly Stevenson (“Stevenson”) had no documented history of misconduct or health problems. On February 9, 2004, Stevenson had an extreme emotional and physical response to a stray dog entering her workplace at the Hyre Electric Company (“Company”). Stevenson immediately felt physical symptoms, including a headache, a rush of blood to her head, and tightening of her neck and back. Stevenson’s supervisor testified that after the dog had entered the office area, she found Stevenson very agitated and “spraying Glade, a room deodorizer over everything.” Upon seeing her supervisor, Stevenson began yelling and cursing, screaming that “f..king animals shouldn’t be in the workplace.” The supervisor said that Stevenson was very intimidating, and her belligerent behavior lasted three to four minutes.
Two hours after the dog incident, Stevenson informed the accounting manager that she was ill and needed to go home. She left and went home immediately. She did not go to the doctor’s office or the hospital that day. The next morning Stevenson left a voicemail for her supervisor in which she said that she “wasn’t feeling well. . . and wouldn’t be in today.” At that point, she went to a hospital for an unrelated medical test.
On February 11, 2004, Stevenson went to work and spoke with the President of the Company. This became an explosive encounter in which Stevenson charged into the President’s office yelling in a very aggressive manner. The President said that Stevenson yelled that it was wrong for her to be subjected to this kind of thing in the office, to have “f..king dogs running by her desk and threatening her,” and that management needed to do something about it. The President said that he tried unsuccessfully to calm her down, but she continued to scream and rant at him. The conversation lasted eight to ten minutes. The President said that after the incident occurred, other employees came up to him and made statements such as, “What was that all about?” and “Boy, that was something.” After the incident, Stevenson told her supervisor that she could not work and left the workplace.
Later that day, Stevenson filed a complaint with the Occupational Safety and Health Administration regarding stray animals in the workplace (there was only the one dog). Stevenson also went to the emergency room. She was examined by a doctor after complaining of three days of headaches, insomnia, anxiety, and loss of appetite following an “emotionally stressful incident at work.” An EKG test and CAT scan both came back normal. Stevenson was diagnosed with “anxiety and stress” and was prescribed Ativan.
The next day Stevenson left a message for her supervisor stating that she was ill and would not be coming to work. Stevenson called into work for the next two work days, but gave no additional details about her condition. Stevenson went to work on the fourth day and found that her supervisor had boxed up the contents of her desk and moved them to another room. The supervisor claimed that she did so to accommodate Stevenson’s fear of stray animals.
Stevenson stayed at work for a few hours, but she was still agitated, completed little or no work, and ultimately called the police because she believed she was somehow being harassed. At about 10:00 a.m., she told her supervisor that she was not feeling well and left work. Before leaving, she left the report of her emergency room visit on the accounting manager’s desk. After Stevenson left, the President gave the supervisor permission to change the locks on the doors of the workplace. The President then sent a letter to Stevenson, stating in part:
You no longer have any accrued vacation or sick leave available. Therefore, any additional leave must be governed by Hyre’s Family and Medical Leave Policy. Under the provisions of Hyre’s Employment Manual, you are required to obtain a medical certification from your physician or other health care provider for a serious health condition for FMLA leave. If you do not do so within fifteen (15) days from the commencement of your leave or by Tuesday, February 24, 2004, your absences will be deemed unexcused and you will be terminated from Hyre’s employment.
(Emphasis added.)
The next day Stevenson called in sick. She went to a doctor’s appointment that she had previously scheduled and told her doctor about her medical concerns. Her doctor prescribed a sleep aid and scheduled a follow up visit for two days later. Stevenson was absent from work until her next scheduled appointment. At that appointment, she was given a note excusing her from work for the time she had been absent from work.
On the following Monday, Stevenson did not report to work. She claimed that her Union representative told her not to return to work.
The next morning, Stevenson reported to work at approximately 10:00 a.m. She discovered that the locks had been changed on the doors so she knocked on a door. The President answered it. The President refused to accept her note from her doctor excusing her from work. Instead, the President gave Stevenson a box containing her personal belongings because, as he said, she “wasn’t coming back into the office.”
Later, a Union representative called the President. The President told him them that the note from Stevenson’s doctor was not sufficient. This information was relayed to Stevenson. Stevenson then returned to her doctor and asked for another note certifying that she could not return to work during the time she was absent. She did not, however, mention FMLA. Her doctor obliged with a second note excusing her from work through her most recent absences. Stevenson faxed this note to the Union representative with a cover letter explaining that her doctor was willing to answer questions and complete additional forms if needed. The Union representative then asked the President to put in writing his reasons for rejecting the first doctor’s note and what needed to be done to return Stevenson to work. The President never responded.
On February 25, 2004, the Union representative faxed the second doctor’s note to the Company. From that point until March 9, Stevenson heard nothing from the Company. She did not attempt to contact anyone at the Company. On March 9, 2004, the Company sent a letter to her stating that she had been terminated effective February 25.
Stevenson filed a lawsuit claiming that the Company had notice that she was suffering from a serious health condition and thus violated her rights under the federal FMLA when it fired her rather than provide her with leave. The Company argued that it was unaware that Stevenson might have been suffering from a serious health condition entitling her to FMLA leave. The District Court agreed with the Company and granted its motion for summary judgment. Stevenson appealed to the Seventh Circuit Court of Appeals.
On appeal, the Court of Appeals began its inquiry with the question of whether Stevenson had given the Company notice of her need for FMLA leave. The Court noted that if Stevenson had not done so, the Company had no duty to provide her with leave, as typically an employee must provide notice to the employer 30 days in advance of the need for FMLA leave or, if the need for leave is not known in advance, an employee is to give notice to the employer of the need for leave as soon as practicable under the facts and circumstances of the particular case.
The Court noted further, however, that the employee’s duty to provide notice is to place the employer on notice of a probable basis for FMLA leave. The Court stated that the employee does not have to write a brief demonstrating a legal entitlement to leave but, rather, the employee has to only give the employer enough information to establish probable cause, as it were, to believe that the employee is entitled to FMLA leave. The Court stated that once that is done, it becomes the employer’s duty to request such additional information from the employee’s doctor or some other reputable source as may be necessary to confirm the employee’s entitlement.
The Court noted that it is not sufficient notice if an employee simply advises the employer that the employee needs leave because, for example, the employee’s wife is pregnant. The Court stated that this notice would be sufficient if the employee provided notice that the employee’s wife was pregnant and was having “complications.” The Court further stated that an employee’s mere reference to being “sick” would be insufficient to provide notice to the employer that the employee may need FMLA leave.
The Court recognized that Stevenson had never given any explicit and direct notice to the Company that she needed or wanted FMLA leave. The Court pointed out, however, that Stevenson had been acting in an abnormal manner and, in fact, her behavior was “so bizarre that it amounted to constructive notice of the need for leave.” Stevenson had been a model employee prior to February 9, 2004, and after the dog incident on February 9, her behavior dramatically changed. Also, the President had considered Stevenson’s problems to be so severe that he had the locks changed on the doors because, as he put it, “we were concerned about Beverly coming into the workplace.” Based upon Stevenson’s actions and the Company’s reaction to those actions, the Court concluded that a trier of fact could conclude that Stevenson’s behavior was so unusual that it gave the Company constructive notice of her need for FMLA leave. The Court stated:

Lengthy encounters of yelling and swearing at one’s supervisor so severe that a company locks out an employee with a previously unblemished record for safety concerns, coupled with that employee’s calling the police because her belongings have been moved to another desk, are undeniably unusual and could be viewed by a trier of fact as unusual enough to give Hyre (the Company) notice of a serious mental health condition. Of course, the factfinder could find that Stevenson just had a bad temper that erupted in the period in question. The point here is that this is not a decision a court can make as a matter of law.

The Court then remanded the matter to the District Court for further proceedings and, more than likely, a trial and a jury’s determination as to whether Stevenson had provided sufficient “constructive” notice of the need for FMLA leave.
The Court’s ruling creates a new “constructive notice” standard as to when an employer is put on notice that an employee may need FMLA leave. In accord with the Court’s ruling, an employee need not specifically request leave at all and need not mention “FMLA” to demonstrate a need for FMLA leave. Rather, an employee can put an employer on notice that the employee needs leave by the employee’s unusual behavior in the workplace. This is a fluid concept and not one subject to any bright line test. For example, at what point must an employee’s behavior become so changed or bizarre that the employer has constructive notice that the employee needs FMLA leave? If an employee only acts differently every other week, is that constructive notice of FMLA leave?
Hopefully, court rulings in the future will further clarify the standard. In the meantime, employers should exercise extreme caution when an employee’s behavior suddenly changes due to what could be physical or mental reasons or an employee is absent from work for illness reasons on an unusually frequent basis. In such situations, it would be best for the employer to affirmatively ask the employee if the employee is experiencing a problem and suggest possible FMLA leave. If the employee rejects that offer, the employer should so document. Doing so may protect the employer from a claim of FMLA violation.
If you have questions regarding the above, please contact any of the attorneys in the Employment, Benefits & Labor Relations Practice Group of Ruder Ware.

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