By:  Karen L. Piper

The Sixth Circuit Court of Appeals reinstated an employee’s FMLA claim, in part, because deficiencies in his employer’s FMLA paperwork created factual disputes over important events. Pearson v Cuyahoga County, Case No. 14-3197 (unpublished, 12/30/2014).

Pearson worked as a custodial employee for the Cuyahoga County from June 2006 to June 2012.  Pearson had multiple medical conditions, including osteoarthritis of the hip.  Pearson’s conditions resulted in him missing a lot of work.  In June 2008, Pearson was
issued a warning under the County’s Attendance Control Plan for excessive unapproved
leaves of absence.

In January 2009, Pearson was approved for intermittent FMLA leave, based on his primary care physician’s certification that he suffered from “severe degenerative joint disease of the hip.”  Pearson had hip surgery in April 2009.  A year later, in June 2010, Pearson had accrued several more unapproved leaves of absence and was suspended, as provided in the Attendance Plan.  Pearson then applied for intermittent FMLA leave due to “advanced osteoarthritis of the right hip.”  His surgeon certified his condition and he was approved for intermittent leave for a year.

In December 2011, Pearson was approved for intermittent FMLA leave for one year for multiple conditions.  The conditions included bilateral hip pain which Pearson’s primary care physician estimated could cause flare-ups as often as once per month for up to 3-4 days each.

Pearson missed 9 days’ work, from January 30 through February 9, 2012.  Pearson called in every day, as required for use of intermittent FMLA leave.  However, because Pearson was off for 9 days and his December 2011 medical certification estimated only 3-4 days per
flare-up, the County sent Pearson a letter 1) requiring him to provide a doctor’s note when he returned to work, and 2) asking him to recertify his need for intermittent leave.  The County’s letter did not state when the recertification was due.  The same day, the County sent Pearson an FMLA Notice of Rights and Responsibilities.  The Notice stated that Pearson was required to provide information to the County by February 24, but the County did not check any boxes to identify what information Pearson was required to provide.
Pearson’s primary care physician submitted the requested recertification on April 24.  The County approved Pearson’s 9-day absence as FMLA leave.

Pearson called in sick on February 21, 22, 23, and 24, 2012.  Pearson claimed he gave as the reason for his absence: “hip pain.”  The County claimed Pearson said he had “chest pain,” which was not one of the conditions for which Pearson had been approved for intermittent leave.  On Friday, February 24, the County designated this absence as an unapproved, non-FMLA absence.  Because Pearson had already been suspended for excessive unapproved leaves of absence, and this absence, if not approved, would warrant his termination, the County scheduled Pearson for a pre-disciplinary conference on April 26.

At the pre-disciplinary conference, Pearson insisted that he had claimed hip pain as the reason for this absence; he did not experience chest pain until February 24.  When he did, he called a cardiologist and made an appointment for Monday, February 27.  He also asked the County to send him an FMLA medical certification form for the cardiologist.

Pearson saw the cardiologist on February 27, as scheduled.  He was released to return to work that day and provided the County with a note from his cardiologist.  Also on February 27, the County sent Pearson a new medical certification form, along with another Notice of Rights and Responsibilities.  The Notice did not have any boxes checked.  The County claimed it did not receive the cardiologist’s medical certification until April 26, though the certification was dated February 29.

Following the pre-disciplinary conference, Pearson was discharged because his February 21–24 absence was unapproved and this absence put him over the number of unapproved leaves of absence permitted under the County’s Attendance Plan.  At the time of his
termination, Pearson had 376 hours of unused intermittent FMLA leave available.

Pearson sued the County, claiming his discharge interfered with his FMLA rights.  The district court dismissed the claim.  The Sixth Circuit reversed because there were several factual disputes over key events, which precluded dismissal, including:

  • Whether the County’s February 9 request for recertification invalidated the December 2011 medical certification, as the County claimed, so that even if the February 21–24 absence was due to hip pain, Pearson did not have a valid medical certification in effect at the time of this absence (this issue was not clear, in part, because the County had approved Pearson’s absence due to hip pain in March 2012, based on the December 2011 medical certification).
  • Whether Pearson had claimed chest pain when he called in sick from February 21–24, as the County claimed, so that this absence required a new FMLA medical certification.
  • Assuming the County was correct that Pearson had claimed this absence was due to chest pain, whether the lateness of the cardiologist’s certification was excusable because the County had failed to:
  1. Check
    the applicable boxes on the Notice of Rights and Responsibilities,
  2. Advise
    Pearson of the consequences of not timely submitting the cardiologist’s
    certification, as required by the FMLA, and
  3. Follow
    up with, or notify, Pearson when the County did not receive the cardiologist’s

All of these factual disputes were material to the issue whether Pearson was entitled to FMLA leave for the February 21-24 absence, or this absence was properly classified as unapproved, in which case he exceeded the number of unapproved leaves of absence allowed under the County’s Attendance Plan, and his termination was warranted.
As a result, Sixth Circuit reinstated Pearson’s FMLA claim.

There are several lessons for employers here: 1) check and double-check that required FMLA notices are properly filled out, 2) follow-up with employees when required responses are late, and 3) before terminating an employee with a complex employment history, review the history with experienced employment counsel, such as the author.

This article was written by Karen L. Piper who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and a Member of the law firm of Bodman PLC, located in its Troy MI office.  She can be reached at (248) 743-6025 or

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Executive Committee. January 2015.