A former receptionist for a Chicago electrical contractor who was
fired for missing work after she had an extreme emotional and physical
response to a stray dog entering her workplace may proceed with her
claim under the Family and Medical Leave Act, the U.S. Court of
Appeals for the Seventh Circuit ruled Oct. 16 in a 2-1 decision
(Stevenson v. Hyre Elec. Co.,
7th Cir.,
No. 06-3501,
10/16/07).
Reversing a lower court's grant of summary judgment to Hyre
Electric Co., the appeals court found that Beverly Stevenson raised
genuine issues of material fact as to whether her unusual behavior on
several days--including yelling and swearing at her superiors and
calling the police--gave Hyre Electric Co. constructive notice of her
need for FMLA leave for a serious health condition. Writing for the
panel majority, Judge Diane P. Wood cited evidence that Hyre was so
concerned about Stevenson's conduct that it changed the locks on the
office doors.
When a stray dog climbed through a window of
the warehouse and approached Stevenson in the office area, she said
she immediately felt a headache, a rush of blood to her head, and a
tightening of her neck and back.
Judge Kenneth F. Ripple joined in the majority opinion. Dissenting,
Judge Terence T. Evans said Stevenson's behavior was not unusual
enough to excuse her from notifying her employer of her need for FMLA
leave. Evans also asserted that Stevenson failed to provide enough
evidence of a qualifying health condition to survive summary
judgment.
Stevenson Had Clean Record Prior to Incident.
Stevenson was a receptionist and a clerical assistant in Hyre's
purchasing department for eight years and had a clean disciplinary
record prior to the incident. On Feb. 9, 2004, a stray dog climbed
through a window of the warehouse where Stevenson worked and
approached her in the office area. She said she immediately felt a
headache, a rush of blood to her head, and a tightening of her neck
and back. Her supervisor, Mary Cicchetti, entered the office area and
observed that Stevenson was very agitated and was spraying a
deodorizer. She began yelling and cursing at Cicchetti, screamed that
“fucking animals shouldn't be in the workplace,” and
remained agitated for several minutes. Two hours later, Stevenson told
the accounting manager that she was ill and needed to go home.
The following morning, Stevenson called in sick and went to the
hospital for an unrelated medical test. On Feb. 11 at 7 a.m., she went
to the office to speak to Hyre's president, Charles Guest. Stevenson
started yelling at her boss, complaining that it was wrong for her to
be subjected to “fucking dogs” running by her desk and
threatening her. She continued to yell and scream for eight to 10
minutes despite Guest's attempts to calm her down. Stevenson then told
the accounting manager that she could not work and left the
warehouse.
Employee Files OSHA Complaint About Dog.
Later that day, Stevenson filed a complaint with the Occupational
Safety and Health Administration regarding the stray dog. She then
went to a hospital emergency room, complaining that she had
experienced a headache, insomnia, anxiety, and loss of appetite for
three days following what she described as an “emotionally
stressful incident at work.” She also had long-term problems
with anemia and hypertension. After her EKG test and CAT scan showed
no physical problem, she was diagnosed with “anxiety and
stress” and prescribed a medium dose of Ativan.
Stevenson called in sick on Feb. 12 and met with a representative
from her union, the International Brotherhood of Electrical Workers to
discuss the dog incident. She then called in sick on Friday, Feb. 13,
and Monday, Feb. 16. When she went to work at 7 a.m. on Feb. 17, she
discovered that Cicchetti had moved the contents of Stevenson's desk
to another room. Stevenson became agitated, was unable to complete
much work, and then called the police, saying she was being harassed.
She placed a report about her emergency room visit on the accounting
manager's desk and then left work about 10 a.m., telling Cicchetti
that she was not feeling well.
That same day, Guest gave Cicchetti permission to change the locks
on the office doors. Guest also sent Stevenson a letter by overnight
mail stating that she had used up her paid leave and that she would
need to provide a medical certification from her doctor by Feb. 24 in
order to qualify for FMLA leave. Guest warned Stevenson that she would
be fired for unexcused absences if she did not submit a
certification.
Stevenson called in sick on Feb. 18 and visited her regular doctor,
who prescribed a sleep aid and scheduled a follow-up visit for Feb.
20. Stevenson did not work the next two days. She met with union
representatives on Feb. 20 and gave them documentation about her
emergency room visit. She again visited her doctor, reported that her
symptoms had improved, and requested a note saying it was OK for her
to return to work. The doctor wrote a note excusing her work absences
from Feb. 9 through Feb. 20. Stevenson faxed the note to the union.
Two union representatives met with Guest on Monday, Feb. 23, and gave
him the doctor's note.
Stevenson came to work about 10 a.m. on Feb. 24 and discovered that
the locks had been changed. Guest told her he would not accept the
doctor's note as an FMLA certification and gave her a box containing
her personal belongings. Stevenson asked her doctor for a note
allowing her to return to work but did not mention the FMLA. The
doctor provided a second note excusing Stevenson's work absences
through Feb. 24. The union asked Guest what documentation he needed to
allow Stevenson to return to work but did not receive a response. The
union faxed the second doctor's note to Hyre on Feb. 25. In a March 9
letter, the company told Stevenson she was terminated effective Feb.
25.
Employee Generally Must Provide Notice of Need.
FMLA regulations require employees to provide their employer with
30 days of notice if the need is foreseeable or, if the need is
unforeseeable, to give notice within one or two working days after
learning of the need, except in extraordinary circumstances when
notice is not feasible, Wood said. She found “it is possible
that [Stevenson] herself was unaware that she was suffering from a
serious medical condition until she went to the emergency room”
on Feb. 11 and was diagnosed with anxiety and prescribed
medication.
Although Stevenson failed to notify Hyre within one or two working
days after the emergency room visit, she argued that Guest's Feb. 17
letter shows that he was aware of need for FMLA leave. Wood found that
the letter does not constitute timely notice from Stevenson but said
direct notice from the employee is not always necessary.
In Byrne v. Avon Products,
328 F.3d 379, 14 AD Cases 580; 8 WH Cases 2d 1249 (7th Cir. 2003), the
appeals court “held that either an employee's inability to
communicate his illness to his employer or clear abnormalities in the
employee's behavior may constitute constructive notice of a serious
health condition,” Wood said. She found that the U.S. District
Court for the Northern District of Illinois mistakenly “merged
the two allowable means of constructive notice” and
“thought that Stevenson had to satisfy both.”
Viewing the evidence in Stevenson's favor, “a trier of fact
could find that her behavior was so bizarre that it amounted to
constructive notice of the need for leave,” Wood said. She cited
the deposition testimony of Guest, Cicchetti, and the accounting
manager about Stevenson's behavior and pointed out that Guest
acknowledged that he authorized changing the locks because he was
afraid of what Stevenson might do.
“Lengthy encounters of yelling and swearing at one's
superiors 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 notice of a serious mental
health condition,” Wood said.
Existence of Serious Health Condition Unresolved.
Turning to the issue of whether Stevenson had a serious health
condition, Wood said Stevenson had to show that she was incapacitated
for more than three consecutive calendar days, meaning that she either
could not work or could not perform regular daily activities, and that
she received ongoing treatment by a medical professional through
doctors' visits and continuing medication.
Stevenson satisfied the treatment requirement by visiting the
emergency room and her doctor and by being prescribed ongoing
medication, Wood said. She found that Stevenson engaged in a variety
of activities other than work during the relevant time period. The
doctor testified in her deposition that Stevenson had a serious
medical condition and that the doctor did not say so in her two notes
because she was not asked to fill out an FMLA form, Wood said. She
found that the doctor also testified that she signed the notes
excusing Stevenson from work because of her anxiety, insomnia, anemia,
and hypertension. Wood concluded that there is an unresolved issue of
material fact regarding whether Stevenson had a serious health
condition.
Joanne Kinoy of Kinoy, Taren & Geraghty represented Stevenson.
Scott H. Gingold of Winston & Strawn and Scott B. Greene of
Perkins Coie represented Hyre. All three attorneys are located in
Chicago.
By Susan J. McGolrick
Copyright 2007, The Bureau of National Affairs, Inc., Washington, D.C.