Court Puts FMLA Claim For Sleep Apnea To Rest

An employee dreamed of saving her job by seeking a Family and Medical Leave Act (FMLA) leave for sleep apnea.  Too bad her employer had already decided to terminate her due to her nightmarish attendance.

Caroline Guzman worked as a Dispatcher for the County‘s 911 Call Center.  She was diagnosed in 2006 with sleep apnea and used a Continuous Positive Airway Pressure (CPAP) machine to help her sleep. Two years later, she had gastric bypass surgery and lost a substantial amount of weight, prompting her to stop using the CPAP because she felt she no longer needed it.  She never sought a subsequent diagnosis to determine if her sleep apnea had been resolved and was unsure whether she ever told her employer about it.

Employee Gets a Wake-up Call

After a few years, Guzman began having attendance issues.  She was cited for four occasions of tardiness in a little over a year, with the last occasion requiring a sheriff’s deputy to be dispatched to check on her.  Guzman received a disciplinary suspension for that absence and was warned that she would be fired if she was late for work again.  She explained that she slept through her alarm but did not mention the sleep apnea.

Just a couple of weeks later, Guzman was late again.  Her supervisor informed the manager who determined that Guzman should be terminated.  In the meantime, Guzman finally arrived for work and asked her supervisor if it might be helpful if she got a doctor’s note regarding the absence.  The supervisor suggested that this would be a good idea.  Guzman then obtained a note from her health care provider stating that she “most probably” had sleep apnea, and that she needed to be tested and treated again for it.

Guzman met a week later with her supervisor and manager and was informed that her employment was terminated.  Guzman gave them the doctor’s note (recollections differed as to whether she did this before or after being informed of her termination) and asked for a FMLA leave to address her condition (again, it was unclear when exactly this issue came up).  Nevertheless, the termination stood.

Court Provides No Rest For the Weary

Guzman sued for FMLA interference and disability discrimination under the Americans with Disabilities Act.  The lower court granted the county early dismissal and Guzman appealed to the Seventh Circuit Court of Appeals.

The Seventh Circuit affirmed the dismissal, noting first that Guzman did not actually suffer from a serious health condition under FMLA.  After all, she had not sought diagnosis or treatment for her sleep apnea for many years and was not undergoing continuing treatment for it at the time of termination.  Even the doctor’s note was inconclusive since it suggested only that she “probably” had a medical condition but verified that she had neither been tested nor treated for it.  Thus, Guzman would not have been eligible for a FMLA leave at the time she sought it.

The Court also determined that Guzman failed to provide adequate notice to her employer of her need for FMLA leave.  Under FMLA, an employee must provide notice of the need for a leave at least 30 days in advance if the need for leave is foreseeable, and as soon as practicable if the need is not foreseeable.  Here, the leave was not requested until the time of the termination meeting, which is not sufficient under FMLA’s regulations.

Moreover, regardless of whether Guzman asked for the leave before being informed of the termination, it was clear that the termination decision had been reached before the meeting.  As such, the County was not aware of the medical condition or the FMLA request at the time the termination decision was made and they therefore could not have intentionally and illegally interfered with the request for protected leave.

Employee’s Constructive Notice Argument is Retired

Guzman argued, however, that the County had constructive notice of her condition by virtue of her recent absenteeism, which was uncharacteristic with her previous performance.  Thus, they should have known that something was amiss.  The Court disagreed, noting that her record of absenteeism did not rise to the level of the “stark and abrupt change” required to prove constructive notice.  Moreover, Guzman herself acknowledged that a few of the absences had non-medical causes (e.g. her car did not start).

Guzman fared no better in her disability discrimination claim.  Again, the court found that the manager who made the decision to terminate had no knowledge of the disability and therefore could not have engaged in intentional discrimination when coming to the decision to terminate.

Bottom Line

While this was a Seventh Circuit decision that does not technically apply to Minnesota employers, it nevertheless is instructive on how our federal circuit (the Eighth) may evaluate similar circumstances.  In that regard, this decision gives assurance that employers will not be held to an unreasonable standard of constructively knowing that a medical condition exists just because an employee has some attendance issues.

In addition, the decision supports  the notion that an employee cannot fend off a termination decision that has already been made simply by claiming to have a disability – that information should be provided before termination is in the picture.  Of course, it is critically important for the employer to document the decision as soon as it is made so that if a challenge is filed, there is proof that the decision was made at a time when the disability had not been made known.