Monday, June 5, 2017

Plaintiff's "Uncontrollable Crying" Sufficient to Provide Notice to Employer of Need for FMLA Leave, Court Says

The Family and Medical Leave Act ("FMLA") is a very technical and difficult law for many employers to follow as the following case demonstrates as a former secretary at an Illinois high school sued and will be allowed to continue her FMLA interference and racial hostile work environment claim when her former employer asked her to either continue employment or resign despite the fact she was often found uncontrollably crying, needed a school transfer, and often complained of racially-motivated complaints in her ear-shot, which the employer allegedly did nothing to curtail.

Facts

The plaintiff, Noemi Valdivia, filed a 2-count First Amended Complaint against the defendant, Township High School District seeking damages and injunctive relief on the grounds that she was discriminated against on the basis of race in violation of Title VII and that her rights under the Family Medical Leave Act ("FMLA") were interfered with.  In response to this complaint the defendant filed a relatively rare motion to dismiss pursuant to FRCP Rule 12(b)(6) as to both counts.

Plaintiff worked for the defendant as a secretary from May 2010 through June 2016.  Plaintiff alleged in her complaint that during her employment, her co-workers "regularly made derogatory remarks about Hispanic students and their families," which increased in frequency beginning around September 2014.  Plaintiff alleges she complained about these comments to her principal but was told nothing could be done because the secretaries' union was too strong.  Plaintiff became "distraught" about her work environment and in March 2016 she applied for and was offered a position as a secretary at another school.  Plaintiff again was subject to racially-motivated comments about Hispanics and became "extremely distraught and began crying regularly and uncontrollably at work." At that point Plaintiff told her supervisor that she was overwhelmed and afraid she was unsure if she could continue working.  In July/August 2016, Plaintiff asked her supervisor to place her in a 10-month position to give her two months off each school year.  At that point, Defendant told Plaintiff that she had to decide between continuing or resigning her employment.

Plaintiff ultimately ended up resigning from her employment on August 4, 2016, to be effective August 11, 2016 but attempted to rescind her resignation on August 9th, but was told that her position had already been filled.  Less than two weeks later Plaintiff was hospitalized for four days and for the first time she was diagnosed with depression, anxiety disorder, panic disorder, and insomnia.  She was cleared for secretarial work by her physician after treatment.

Opinion and Order

Hostile Work Environment Based on Race

To state a hostile work environment claim under Title VII, a plaintiff must allege that: (1) she was subject to unwelcome harassment; (2) the harassment was based on her national origin or religion (or another reason forbidden by Title VII); (3) the harassment was severe or pervasive so as to alter the conditions of employment and create a hostile or abusive working environment; and (4) there is basis for employer liability.

The defendant argued that the plaintiff "failed to plead any facts which establish that District 214's employees' conduct was severe and pervasive."  The Court noted this is the wrong standard as this element of a hostile work environment is in the disjunctive and the conduct must be either severe or pervasive which means one extremely serious act of harassment (e.g., use of the "N" word) could rise to an actionable level as could a series of less severe acts.

In determining whether a defendant's alleged conduct is sufficiently severe or pervasive to state a claim of a hostile work environment, courts consider facts such as the nature (e.g., physical or verbal) and frequency of the conduct, whether it unreasonably interferes with an employee's work performance, and whether it was directed at the employee.  The defendant argued for dismissal of this count because the complaint does not plausibly allege that the co-workers' conduct was severe or pervasive because their comments were not offensive enough, the comments "were not directed to or even about Plaintiff" and plaintiff did not "establish the comments 'unreasonably' interfered with her work performance."

However, the defendant acknowledged that plaintiff had "alleged repeated, and arguably, derogatory comments mad about Hispanic families made by allegedly two District 214 employees."  Additionally, plaintiff alleged that her co-workers' comments so interfered with her work performance that she could no longer tolerate working at the first school and had to transfer to another school.  The Court found this to be sufficient to state a claim of a hostile work environment.

FMLA Interference

Plaintiff's FMLA interference claim was based on defendant allegedly failing to provide her with notice that she had a right to take job-protected leave pursuant to the FMLA because defendant knew or should have known that she was suffering from a medical condition that made her unable to perform her job.  Instead of informing her of her FMLA rights, plaintiff contends she was forced to resign.

Defendant argued that plaintiff did not provide sufficient notice that she had a serious health condition that entitled her to leave under the FMLA, and thus, that she cannot state a claim for FMLA interference.

The Court noted that the FMLA "notice requirement is not demanding:  The employee's duty is merely to place the employer on notice of a probable basis for FMLA leave."  An employee need not give direct notice of the seriousness of her health condition or even mention the FMLA or demand its benefits; indeed, direct notice may not be possible if the plaintiff "herself was unaware that she was suffering from a serious health condition" or if the employee was unable to communicate her illness to her employer.  In such cases, the notice requirement may be met indirectly; "clear abnormalities in the employee's behavior may constitute constructive notice of a serious health condition."

In her complaint, plaintiff alleged that one month after she transferred to her new school, she "became extremely distraught and began crying regularly and uncontrollably at work" and did this multiple times to her supervisor, whom she had known since 2012, and told her she was overwhelmed, afraid, not sleeping or eating, and unsure if she could continue to work.  Plaintiff also cried uncontrollably to two other co-workers.  Defendant's response was to tell plaintiff to decide to resign or not.

A combination of the length of time plaintiff and her supervisor known each other and plaintiff's rather dramatic behavior sufficed to survive the motion to dismiss.

The case is Noemi Valdivia v. Township High School District 214, No. 16C10333 (Northern Dist. Ill., May 15, 2017).


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