Summary judgment affirmed for employer in FMLA case

By Thomas Franz
BridgeTower Media Newswires

DETROIT-A 6th U.S. Circuit Court of Appeals panel affirmed a Western District of Michigan ruling that granted summary judgment to a mining company that fired an employee for abusing the Family and Medical Leave Act.

In LaBelle v. Cleveland Cliffs, the court affirmed that the terminated employee abused leave days by golfing and pairing his leave days with other scheduled days off.

Judge John B. Nalbandian wrote the opinion, joined by Senior Judge John M. Rogers and Judge Richard Allen Griffin.

Background

Plaintiff Kevin LaBelle was fired after working for a decade as a quality control lab technician at Cleveland Cliffs Inc.'s mining operation.

LaBelle's job required him to pour and weigh mined materials, which meant he made repetitious motions while standing with his arms stretched in front of him up to 12 hours per day.

The court noted that LaBelle has avascular necrosis, or disruption of blood flow to the bones, and that leads to severe wearing and deformation of joints. That caused him to have both hips replaced in 2012, and the pain reached his shoulders a few years later.

In 2016, after receiving two correction notices for missing work, Cliffs' management advised him to get FMLA days, which he applied for starting in May 2016.

Cliffs denied the request by asserting that the information LaBelle provided did not show he was incapacitated for more than three consecutive days or that it was a chronic condition requiring treatment at least twice per year.

In August 2016, LaBelle's doctor provided documentation that it was necessary for LaBelle to miss work during shoulder flare-ups which would occur about once a month for three-day periods.

Cliffs approved that request and notified LaBelle he was entitled to FMLA leave for four medical appointments per year and for the monthly flare-ups. Cliffs also noted that improper use of the leave days could result in termination of employment.

In 2017, Cliffs began noticing LaBelle's use of FMLA days was just prior to vacation days or sick days.

Cliffs hired a private investigator to follow LaBelle when he took FMLA days on two summer Tuesdays, when LaBelle's golf league played. LaBelle was found golfing both times, and a Cliffs manager determined that LaBelle golfed without any signs of distress or discomfort.

Cliffs notified LaBelle that it suspected he was abusing FMLA and allowed LaBelle to request a hearing to explain his behavior and potentially avoid discipline. LaBelle was placed on paid leave until the hearing.

On Aug. 3, 2017, LaBelle attended the hearing and explained that his shoulders hurt every day, and that by combining FMLA days with other days off, he could maximize his relief time.

As for golf, LaBelle said the activity was less aggravating than his repetitious work and that 80 percent of the golf swing is from the legs and core rather than shoulders.

Cliffs' management determined that if LaBelle could golf, he could also work, and on Aug. 15, 2017, LaBelle was fired for FMLA fraud and abuse. Cliffs also noted that it was unable to conclude if LaBelle's absences from work on June 19-21 and July 11-12 were medically necessary due to a lack of evidence that LaBelle was having a shoulder flare-up.

LaBelle filed a grievance the next day after being fired and argued he was discharged without just cause.

On Nov. 8, 2017, an arbitrator found that Cliffs did have just cause and denied LaBelle's grievance. LaBelle disagreed and took the matter to court.

Legal action

LaBelle filed a three-count complaint in the U.S. District Court for the Western District of Michigan and argued that Cliffs interfered with his right to take leave, retaliated against him for using FMLA, and violated the Michigan Persons with Disabilities Civil Rights Act by terminating him for using FMLA.

LaBelle used a May 2017 email chain from Cliffs management to show they had been monitoring employees and their absences.

The court wrote that one of the emails showed that a manager would "dearly love to get at least of these slackers."

Cliffs filed a motion for summary judgment in May 2018, and that motion was granted in full. The district court merged LaBelle's claims under retaliation and dismissed the remaining claims.

Analysis

LaBelle appealed and asserted that the district court erred in merging the interference and retaliation claims in addition to wrongly granting summary judgment.

The court wrote that the district court justified merging the claims by stating that the essence of LaBelle's claims was retaliation, not interference with FMLA rights.

LaBelle argued for the interference claim by stating that Cliffs was hostile toward him when he would take his FMLA leave and made it very clear that it did not approve of the intermittent leave.

The Sixth Circuit determined that despite the alleged hostility, the interference claim was not valid because LaBelle did receive all of the FMLA days he requested.

"So even if the emails suggest frustration with LaBelle's absences, they do not show any interference with, or denial of, LaBelle's entitled leave," the court wrote.

On the retaliation claim, the court cited the arbitrator's writings to state that LaBelle did not take his FMLA leave for flare-ups, but instead took them because he was in constant pain and would take the days around other days off to maximize rest.

"But occasional rest to alleviate low-level background pain is not what his FMLA leave was for," the court wrote. "If LaBelle had constant pain that required occasional long weekends to mitigate, he should have requested FMLA leave for that purpose."

Attorney's comments

Plaintiff's attorney Sandra Hanshaw Burink of Hanshaw Burink PLC in Marquette said her client's doctor's testimony in a deposition was a key turning point that went against her side.

"The doctor believed in his patient, but he was shown the video of my client golfing. His testimony when he said that he shouldn't be doing that with his arms sunk us," Burink said.

Burink said LaBelle was a union member and because he went through arbitration prior to the lawsuit being filed, much of the discovery had already been done. However, she wanted to do her own discovery for the case.

"From my perspective, I wanted to do discovery because I believe that this guy was terminated because they didn't like him using the FMLA, and the company as a whole doesn't like it," Burink said.

When Cliffs filed for summary judgment, Burink said her side was still in the middle of the discovery process.

"It was probably within a few months of the case. We managed to do a little bit of discovery. I wanted to get the doctor and get his opinion on what my client was doing and whether that was outside of his restrictions," Burink said. "My strategy was to do as much discovery as possible so I could talk to other people who had been on FMLA."

Burink added that the company's emails shed light on its opinion of what they thought of LaBelle taking FMLA days, and thought the questions in the case should've been left to a jury.

"The company was angry and it showed their animosity towards him. I disagreed with the court in that just because my client didn't know about those emails while he was employed, it still goes to show what their whole animus was towards him," Burink said.

Defense attorney Wendy Marcotte could not comment on this case due to client policy.

Published: Tue, Dec 17, 2019