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October 2015

Gordon & Rees Denver Team Wins Tenth Circuit Appeal in FMLA Case

On October 13, 2015, Gordon & Rees Denver partner Laurie J. Rust and of counsel John R. Mann prevailed at the United States Court of Appeals for the Tenth Circuit in an FMLA case on behalf of their clients, a doctor’s office and its chief executive officer.

The plaintiff, a medical assistant at the doctor’s office, also worked a second job as a paramedic for an ambulance company. She often reported to work after working all night at her second job. In the fall of 2013, the plaintiff began to suffer from significant mental health issues and had several breakdowns at work after her shifts at the ambulance company. The doctor’s office required her to take time off work, but classified it as FMLA leave. She was told that the doctor’s office would determine if she could return to work at the end of leave and that she had to stop working all-nighters at the ambulance company prior to reporting to work. At the end of her FMLA leave, she presented a fitness for duty certificate, but refused to stop working at the ambulance company. The doctor’s office terminated her employment. She filed suit in federal court in Colorado, originally claiming FMLA interference in connection with forced FMLA leave, improper second opinion, failure to reinstate, and tortious interference with her at-will employment contract.

At the close of discovery, the only claim remaining was failure to reinstate under the FMLA. Gordon & Rees moved for summary judgment. The district court initially denied the motion, but on reconsideration granted summary judgment for the clients. The plaintiff appealed to the Tenth Circuit, arguing that the employer’s failure to restore her to her prior position in spite of her psychiatrist’s fitness-for-duty certification violated the FMLA. She also claimed that because the doctor’s office knew about her job-performance problems before she went on FMLA leave, it was foreclosed from claiming her discharge was not related to taking leave.

In affirming the district court’s summary judgment, the Tenth Circuit held that the issue was not whether the plaintiff was mentally fit for work, but whether the decision to terminate her employment was based on her taking FMLA leave. In light of the substantial evidence of performance issues, and lack of evidence of a link to her FMLA leave, the Tenth Circuit held that no reasonable juror could find a causal connection between her FMLA leave and her termination. It further held that the fact that the employer was aware of the employee’s performance problems before the leave was not dispositive.

John R. Mann
Laurie J. Rust



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