Co-Worker's Testimony Blunted FMLA Claims Employee Reported Depression, Sought Leave

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A worker at an Iowa meat processing plant could not show she was fired in violation of the Family and Medical Leave Act for missing work where a co-worker gave contradictory testimony about the information she relayed to the employer, the U.S. Court of Appeals for the Eighth Circuit held Feb. 5 (Bosley v. Cargill Meat Solutions Corp., 8th Cir., No. 12-1290, 2/5/13).

Writing for the court to affirm a trial court's summary judgment in favor of Cargill Meat Solutions Corp., Judge Lavenski R. Smith said a Labor Department regulation allowed Tanya Bosley to rely on a “spokesperson” or “responsible party” to inform her employer of an FMLA-covered absence and a need for leave. However, the court found, Bosley's co-worker could only recall telling Cargill that Bosley was “sick,” not that she was depressed and unable to work.

Finding Bosley inexplicably delayed reporting her own illness to the employer, the court said she could not rely on her co-worker's testimony to support her claims that her discharge for absenteeism violated the FMLA. 

Employee Didn't Report Absence

According to the decision and court records, Bosley began working at the Ottumwa, Iowa, plant in September 2003. Bosley carpooled to work and her co-worker, Christine Pilcher, sometimes informed supervisor William Crowell when Bosley took medical leaves of absence under the FMLA.

On Feb. 1, 2008, the court said, Pilcher arrived at Bosley's home for their drive to work, but Bosley said she could not get up due to depression. Bosley missed work that day, the court said, and Pilcher informed the supervisor Bosley was “sick.”

Cargill had an attendance policy and made an automated phone system available to receive employees' calls regarding illness, but Bosley never called Cargill on Feb. 1. “In fact,” the court said, “Bosley missed work the entire month of February 2008, and she never used the call-in procedure.”

Between Feb. 1 and Feb. 21, Bosley was able to get out of bed and communicate coherently. She visited two healthcare providers, and she admitted in deposition testimony that by about Feb. 15 her depression was no longer “incapacitating.” However, Bosley did not contact her employer until March 3, when she visited the plant in the hope of picking up FMLA paperwork for approval of leave covering the entire month of February.

Supervisor David Clark had replaced Crowell on Feb. 16. Clark was unaware of any report that Bosley had been ill. Cargill discharged Bosley on Feb. 27 for exceeding the maximum of three call-in violations. 

FMLA Lawsuit Relied on Regulation

Bosley filed a state court lawsuit under the FMLA alleging the company interfered with her right to leave under the act and retaliated against her for requesting leave. Cargill removed the lawsuit to the U.S. District Court for the Southern District of Iowa based on the federal claim, and filed a motion for summary judgment, which the trial court granted.

Smith said that under the FMLA, it was Bosley's burden to show that she gave Cargill notice of her need for leave, including notice that she had a serious medical condition that made her unable to perform the functions of her job.

Cargill had an attendance policy and made an automated phone system available to receive employees' calls regarding illness, but Bosley “missed work the entire month of February 2008, and she never used the call-in procedure,” the Eighth Circuit said. 

A DOL regulation, 29 C.F.R. § 825.303, provides that the employee should provide notice of a need for FMLA leave as soon as practicable, usually in one or two working days of learning that leave is needed.  

Bosley had clearly not contacted Cargill, but the court said she relied on a provision in the regulation that allowed her to give notice through an intermediary if she was incapable of reporting to the employer. 

Reliance on Co-Worker Testimony Failed

Bosley claimed that Pilcher reported to the company on Bosley's Feb. 1 depression.

But the Eighth Circuit quoted at length from Pilcher's deposition and found that it was internally contradictory and completely in conflict with an affidavit in which Pilcher said she had never informed Cargill that Bosley was unable to come to work “due to depression, anxiety, or any particular medical condition.”

In the affidavit, Pilcher said she only told supervisor Crowley that Bosley was “sick.”

The court said Pilcher's testimony would support nothing more than an inference that she could not recall whether she had reported Bosley's depression to Cargill. Such testimony was inadequate to create a triable issue of fact that Cargill was notified of the need for leave, the court said. 

No Justification for Employee's Own Reporting Delay

Bosley argued that her own failure to contact her employer before March 3 could be excused under the DOL regulation, which refers to notice being given no later than one or two days in “extraordinary circumstances where such notice is not feasible.”

The court said the argument was unpersuasive because Bosley waited to contact the company for more than a week after she described her depression as lifting. “As a matter of law,” the court said, “Bosley's notice requirement was not excused on the basis of 'extraordinary circumstances.' ”

Finding no basis for concluding Cargill was on notice of Bosley's need for leave, and agreeing with the trial court she produced no evidence that her discharge was unlawfully motivated, the appeals court affirmed summary judgment for the employer.

Judges William Jay Riley and Steven M. Colloton joined in the opinion.

Jill M. Zwagerman of Newkirk Law Firm argued the appeal for Bosley. Nathan J. Overberg of Ahlers & Cooney argued for Cargill. Both attorneys practice in Des Moines, Iowa.

By Lawrence E. Dub  

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