Wednesday, August 27, 2014

7th Circuit Rules Plaintiff Does Not Need Expert Testimony to Show Incapacitation in FMLA Claim

In a case originating out of Wisconsin, the Court of Appeals for the Seventh Circuit reversed a district court's grant of summary judgment holding that the law does not require a plaintiff to present expert testimony as to show that his serious health condition rendered him unable to work, which is one of the elements of a claim under the Family and Medical Leave Act ("FMLA").

FMLA

The FMLA provides that an eligible employee may take up to 12 weeks of leave during any 12-month period if he is unable to perform the functions of his position because of a serious health condition.  29 U.S.C. sec. 2612(a)(1)(D).

An employee is entitled to leave under the FMLA if (1) she is inflicted with a "serious health condition," and (2) that condition renders her unable to perform the functions of her job.  Ames v. Home Depot U.S.A., Inc., 629 F.3d 665, 669 (7th Cir. 2011) (quoting Caskey v. Colgate-Palmolive Co., 535 F.3d 585, 590 (7th Cir. 2008)).  A "serious health condition" is defined in part as "an illness, ... impairment, or ... mental condition that involves ... continuing treatment by a health care provider," 29 U.S.C. sec. 2611(11)(B), and a "period of incapacity," 29 C.F.R. 825.115 (2009).  "Incapacity" means the "inability to work ... or perform other regular daily activities due to the serious health condition."  29 C.F.R. sec. 825.113(b).  Because "incapacity" means the employee is unable to work "due to the serious health condition," a finding of incapacitation goes toward the second prong of the court's analysis as to when an employee is entitled to leave.  See Ames, 629 F.3d at 669.  Note, "incapacity" and "serious health condition" are interrelated, but are not interchangeable terms.

Facts

The plaintiff in this case, James Hansen, suffered from depression and sought regular medical attention for his condition.  The defendant-employer, Fincantieri Marine Group, LLC ("FMG"), has an attendance policy whereby an employee is terminated if they accumulate 10 or more points in a year for absences.  When Hansen reached 9 points and his job was in jeopardy, he requested FMLA leave for his serious health condition.  Hansen's physician then provided FMG with certification saying that his condition would cause episodic flare-ups that would prevent him from performing his job functions and that the frequency was four (4) episodes every six (6) months with a duration of the related incapacity of two to five days.

Apparently there was some confusion and mix-ups with Hansen's FMLA leave requests and he ended up incurring 13 points, which led to his termination for violation of FMG's attendance policy.  Hansen then sued FMG for FMLA interference and retaliation.  FMG moved for summary judgment, arguing that Hansen was not entitled to FMLA leave for his July 2011 absences because he significantly exceeded the estimated frequency of his physician's medical certification.  The district court denied FMG's motion, noting that it appeared Hansen was taking off more time than was medically necessary, but it was not so clear as to justify summary judgment.  However, shortly before trial, FMG sought reconsideration, arguing Hansen needed expert medical testimony to establish that he was incapacitated due to his serious health condition during the July 2011 absences and that he had none.  The district court agreed, concluding that expert medical testimony was required to prove that Hansen's serious health condition rendered him unable to perform the functions of his position during the absences for which he sought FMLA leave, and, therefore, granted summary judgment in favor of FMG on all claims.

7th Circuit's Discussion

For Hansen to prevail on his FMLA interference claim, the 7th Circuit held that he must show, inter alia, that he was entitled to take leave under the FMLA for his July 2011 absences, which was the focus of the appeal.  Parting of showing that he was entitled to leave meant showing a "serious health condition," which, as part of its definition, means showing incapacitation.

Hanse's physician was not used as an expert witness and was only used as a fact witness.  Hansen had no expert witness for trial.  FMG attempted to use prior 7th Circuit precedent for their position that Hansen needed expert witness testimony to show incapacitation but the 7th Circuit held the cases cited do not support such an argument.  (Those cases were Caskey v. Colgate-Palmolive Co., 535 F.3d 585, 591 (7th Cir. 1999) and Haefling v. United Parcel Serv., Inc., 169 F.3d 494 (7th Cir. 1999)).  The court found that these cases merely stood for the proposition that a plaintiff needs "some medical evidence to establish a serious health condition."  The Court further found that Haefling supports Hansen's argument that he doesn't need expert testimony to establish incapacity and other circuits have held that lay testimony combined with medical testimony raises a genuine issue of material fact as to incapacity while two other circuits have held that lay testimony alone is sufficient to create a genuine issue as to incapacity.

Delving even further, the Court noted that the regulations addressing "continuing treatment" and "intermittent leave or reduced leave schedules" anticipate that the determination whether an employee is unable to work due to a serious health condition would not necessarily be made by a medical professional.  For example, an employee with asthma may be unable to report to work due to the onset of an asthma attack but may not necessarily seek treatment from a health care provider which means a health care provider would not have any personal knowledge about an employee's claimed incapacity for a particular day, as FMG wanted the Court to require Hansen to do for his absences in July 2011.

The Court held that Hansen presented medical documentation--his certification from his doctor--on the question of incapacity. 

The Court also discussion, in detail, the fact medical certifications only ask for "estimates" of an employee's incapacitation.  Hansen was denied FMLA leave when he exceeded the estimated number of frequencies of his incapacitation and the Court held that it is merely an estimate and that there are issues of material fact as to whether his July 2011 absences should have been covered by FMLA leave (though the court stated Hansen does not seem to have "an abundance of evidence" toward this end, but enough to raise a material issue of fact). 

The case is James G. Hansen v. Fincantieri Marine Group, LLC, et al., No. 13-3391 (7th Cir. August 18, 2014) and has been reversed and remanded to the district court.



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