What does the phrase mean “to care for” someone with a serious health condition and can an 18-year-old person be considered incapable of self-care for a temporary period of time under the FMLA? These issues as well as the impact of the ADAAA on the FMLA are covered in an important decision entitled Patton v. Ecardio Diagnostics LLC, 793 F.Supp. 2d 964 (S.D. Texas, June 9, 2011).
Deborah Patton worked for eCardio Diagnostics LLC as a staff accountant. She was advised that her daughter, Brittany Patton, had been involved in a very serious car accident on December 17, 2009. The driver of the vehicle was killed and Brittany broke both femurs and had a small hole in her lung and bladder. Plaintiff rushed to the hospital where Brittany was undergoing surgery. Plaintiff’s husband informed the plaintiff’s supervisor early on the day of the accident that plaintiff went to the hospital and would not be at work.
At 2:29 p.m. on December 17, 2009, the supervisor sent an email to Angela Hawkins offering her a full-time position in the accounting department at eCardio. Ms. Hawkins was invited to come for an interview on December 18, 2009. She interviewed for the job on Monday, December 21, 2009.
On December 18, 2009 plaintiff telephoned her supervisor and was advised that she had been placed on “FMLA.” She called her supervisor on Tuesday, December 22, 2009 advising that she was taking her daughter to the funeral of the friend who was killed in the car accident. That very day, Hawkins accepted the job with eCardio.
On Wednesday, December 23, 2009, six days after the accident, plaintiff returned to work. She found out that accounting employees had learned how to use a new accounting software program during her absence and she asked to self-train on the new program. Her request was denied.
On January 8, 2010, plaintiff’s employment was terminated with eCardio. She was advised that her skill level was inadequate and accounts payable was no longer a full-time position. Hawkins came to work as plaintiff’s replacement. Plaintiff sued under the FMLA and eCardio moved for summary judgment.
The court first considered the “to care for” requirement in the FMLA. Plaintiff argued that she helped Brittany use the bed pan and gave her sponge baths while in the hospital. Plaintiff admitted that hospital staff were also caring for Brittany, but the court noted that the FMLA allows sharing of responsibility for care. Plaintiff also pointed out that once Brittany was home, she helped her get into the car, drove her to the funeral, washed her hair, helped her bathe and brought her meals.
The next issue dealt with the definition of a child who is under 18 or is “18 years of age or older and incapable of self-care because of a mental or physical disability.” 26 U.S.C. 2611(12). Brittany was over 18 so the court focused on whether she was incapable of self-care because of a physical disability. First, the court rejected defendant’s argument that the child must be incapable of self-care before he or she turns 18. It next observed that Brittany required active assistance or supervision in three or more major life activities: grooming, hygiene, dressing, bathing and eating.
The most interesting aspect of the decision had to do with the court’s analysis of the term “physical disability.” The FMLA references the ADA in defining a physical disability as an “impairment that substantially limits one or more of the major life activities of an individual.” The court noted that the ADAAA (Americans with Disabilities Act Amendments Act) greatly expanded the definition of disability. The defendant focused on the short-term nature of Brittany’s injury, arguing that short-term conditions are not covered under the ADA. However, the court cited a First Circuit case that said “the duration of an impairment is one of several factors that should be considered in determining the existence of a disability under the FMLA.” It said:
Plaintiff in this case has presented evidence that, during the December 17-22, 2009 time period, Brittany was substantially limited in her major life activity of walking. The impairment was severe — she suffered two broken femurs. She could not walk unassisted and needed to use a wheelchair for several weeks, if not months, after which she could walk only with a walker. At this time, approximately a year and a half later, Brittany continues to experience pain and walks with a limp.
One of eCardio’s central arguments was that it had made the decision to terminate plaintiff well before the car accident due to inadequate performance by plaintiff. However, the court noted several factors in rejecting this argument:
1) Defendant offered no documentary evidence to show that it decided to terminate plaintiff prior to the accident;
2) Defendant first contacted Hawkins, (plaintiff’s replacement), on the day of the accident regarding full-time employment; (it should be noted that Hawkins had worked previously in eCardio’s accounting department on a temporary basis).
3) Defendant had scheduled plaintiff for an intense, multi-day training on the new accounting software program, which seemed to counter the argument that the company planned to terminate plaintiff prior to the car accident and her leave.
4) Defendant had no documentary evidence that anyone at eCardio had expressed dissatisfaction with plaintiff’s performance before she was terminated. Plaintiff had received no disciplinary actions, admonishments, or write-ups of any kind.
For these reasons, summary judgment was denied. The case is significant because it deals with a number of important FMLA issues and shows how the ADAAA is having an impact not only in the area of the ADA and workers’ compensation but also in FMLA cases as it applies to the definition of physical or mental disability. Moreover, the case underscores the point that employers who make termination decisions needed to have documentary and file evidence showing poor performance and prior disciplinary actions. This absence of such information in the personnel file time and again comes back to haunt employers.