In a refreshing decision, a federal district court in Minnesota recently rejected an FMLA lawsuit by an employee who said he needed to be absent because he was "feeling ill ... tired, lethargic, fatigue-ish," and "needed a few days to recuperate," but who then failed to follow his employer's absence reporting policy. To v US Bancorp.pdf

The Facts

Jordan To worked for U.S. Bank as a Senior Research Clerk. According to to the bank's attendance policy, To was required to report any absences directly to his manager or supervisor. Under the bank's job abandonment policy, employees who are absent for two consecutive work days and who fail to report their absences as required were subject to termination.

In October 2007, To enlisted in the Minnesota National Guard. In early 2008, he was ordered to attend National Guard training in Georgia. To's training was originally scheduled for April 20 to July 10. It was later extended to July 24 and then August 1. On July 29, To sent an e-mail to U.S. Bank stating that he was not sure when he would be released from his training. Later, on August 4, To participated in a conference call with U.S. Bank management. He stated that he "was feeling ill, [he] was feeling tired, lethargic, fatigue-ish, and [he] wouldn't be able to return to work that day, and [he] needed a few days to recuperate." To was advised that he would need to obtain a doctor's note to return to work.

From August 5 to August 8, To called in each day and left a voice message stating that he was not feeling well and would not be at work. On August 6, To visited a doctor, who provided him a "Return to Work Slip" stating that his absences were due to an "illness," and that he would be absent from August 4 to August 11. The slip was faxed to To's supervisor.

To did not return to work on August 11. His doctor faxed a second "Return to Work" slip to his supervisor stating that To's absence was due to "illness" and that To would return to work on Monday , August 18. On August 14, To advised Bancorp that he was "still feeling the same symptoms, getting better, trying to get better," and that he would "hopefully" return by August 18, but that he was not going to make it he would have his doctor send another notice.

To failed to return on August 18, 19, 20 or 21. He did not call or contact anyone at U.S. Bank. He testified that he contacted his doctor's office on August 15 to complain of the same symptoms, and was told that they would fax a new Return to Work slip requesting additional time off until Monday, August 25. Although the doctor did fill out a slip indicating that To required time off due to "pneumonia," U.S. Bank employees testified that they did not receive the note.

After To failed to report for work on August 20, U.S. Bank decided to terminate his employment under the job abandonment policy. On August 21, they sent To a letter notifying him that his employment was terminated due to job abandonment.

On August 25, To spoke by telephone with HR Generalist Karen Dahlstrom. He explained that his doctor had faxed a notice on August 15 excusing his absence for the following week. Dahlstrom told To that she had not received the fax, but that U.S. Bank would reevaluate the termination decision if he provided her a copy. To did not do so. Instead, he sent Dahlstrom a new Return to Work Slip dated August 26, estimating that he would return to work on September 15. Because To failed to provide the August 15 Return to Work Slip, Dahlstrom decided to allow his termination to stand.

The Lawsuit

To filed suit against U.S. Bank under the FMLA and the Uniformed Services Employment and Reemployment Rights Act ("USERRA"). The bank moved for summary judgment on both claims.

As to To's FMLA claim, the court first considered whether To presented sufficient evidence to establish that the August 15 Return to Work slip was faxed to U.S. Bank. The court noted that, generally, when evidence establishes that a fax has been sent, a jury can reasonably infer that the fact was received. However, it found that To failed to present sufficient evidence to show that the fact was in fact sent to U.S. Bank.

Looking to the merits of To's FMLA claim, the court noted that the only reason for his absences that To ever communicated to U.S. Bank was that he was "feeling ill ... tired, lethargic, fatigue-ish" and "needed a few days to recuperate." While his doctor provided the bank with notes stating that he was absent due to "illness," they did not specify the illness. However, despite this lack of specificity, the court found that testimony from a manager that she considered whether the FMLA applied to To's leave could be enough to allow a reasonable jury to find that To gave adequate notice of a serious health condition.

To's claim failed, however, because To violated U.S. Bank's absence reporting policies by failing to report his absences from August 18 forward to his manager or supervisor. To argued that his failure was excused by "extenuating circumstances," in that his managers knew he was returning from military leave, was ill, had expressed his desire to keep his job, and had provided two doctor's notes seeking time off. Those "extenuating circumstances," however, were not relevant, because they did not prevent To from complying with U.S. Bank's absence reporting policy. Consequently, U.S. Bank had a valid reason for terminating To's employment.

Insights for Employers

1.The court's ruling on the notice issue in this case may not be uniformly applied elsewhere. From the facts described, it seems that one could conclude that the bank was on notice that To had some type of medical condition for which he had seen a doctor at least twice within thirty days and that incapacitated him for more than three consecutive calendar days. Even if the condition was not specified, a different court (this one, for example,) could have found this information sufficient to trigger the company's obligation to seek further information in the form of a medical certification.

2.U.S. Bank won this case because it had a clear policy and procedure for reporting absences, which To violated. However, had the policy been less clear, or had To presented evidence of inconsistent enforcement, the result could have been very different. The lesson: make your attendance policies clear, and enforce them consistently.