Justices Deny Review of Ruling on FMLA Notice Standard

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The U.S. Supreme Court Feb. 22 declined to review a federal appeals court ruling that a Joplin, Mo., service technician could not show that he was discharged for absenteeism in violation of the Family and Medical Leave Act because he failed to give Kansas City Freightliner Sales Inc. enough information to differentiate his missed time from “ordinary sick days, or even malingering” (Brown v. Kansas City Freightliner Sales Inc., U.S., No. 10-665, cert. denied 2/22/11).

Former employee Donald Brown argued that the U.S. Court of Appeals for the Eighth Circuit required him to satisfy a “rigorous notice” requirement that is not applied by other courts, and he asked the high court to “declare a nationwide standard for what an employee must do to notify an employer of the need for unforeseeable FMLA leave,” but the justices denied his petition.

Brown's former employer argued that a single telephone call announcing that Brown was “sick” did not provide enough information to fulfill the service technician's obligation under the act, and contended that an amended Labor Department regulation supports that view.

Appeals Court Found Inadequate Notice of Need.

According to the Eighth Circuit decision ( 617 F.3d 995, 15 WH Cases2d 801 (8th Cir. 2010)), Brown had worked for KCF for about seven years when he injured his back at work in June 2007 and again in August of that year. Brown was treated by a physician for a lumbar sprain, but on Sept. 21, 2007, he was released without restrictions for a return to work “as tolerated.”

On Sept. 26, 2007, Brown told his supervisor that he had hurt his back again and that he wanted to go home. Brown did not fill out an injury report and refused medical attention. He went home and then missed his next four scheduled workdays. Brown did not seek medical attention during the four-day period, relying on pain medication that was left over from his earlier injuries.

Brown or his wife placed calls to the company each day reporting that he was sick, but they provided no other information to KCF. Brown had exhausted his sick leave under a company policy, and when he returned to work Oct. 3, 2007, KCF discharged him.

Brown sued KCF in the U.S. District Court for the Western District of Missouri, alleging that his discharge violated the FMLA. The trial court ruled in favor of the employer, finding that Brown did not establish that he had a serious health condition covered by the act. The Eighth Circuit affirmed on the basis that “Brown's FMLA notice was inadequate, KCF's FMLA duties were not triggered, and the district court's grant of summary judgment was appropriate.”

By Lawrence E. Dubé