Parking September 2010 - 8

Legal Matters Michael Stevens
Employee Discharged for Excessive Absenteeism May Not Sue for Interference with FMLA Rights after Disclaiming Need for FMLA Leave
The U.S. Court of Appeals for the Eighth Circuit recently held that an employee suffering from depression who was forced to resign for excessive absenteeism after disclaiming a need for leave under the Family and Medical Leave Act (the “FMLA”) could not sue for interference with his FMLA rights or for violations of the Americans with Disabilities Act (the “ADA”) or the Minnesota Human Rights Act (the “MHRA”). Kobus v. The College of Scholastica, Inc., 608 F.3d 1583 (2010). Michael Kobus worked as a painter from August 1997 to January 2007, supervised by Tim Orlowski, the College’s maintenance manager. In mid-2005, due to a series of personal and family misfortunes, Kobus was diagnosed with depression and prescribed the antidepressant Paxil. Kobus told Orlowski he was suffering from stress and anxiety but did not disclose the depression diagnosis or that he was taking medication. In a November 2006 meeting, Kobus told Orlowski that he may need time off from work to deal with his stress and anxiety because, he testified, everything “was piling up, and I was asking him about different leaves.” Once again, Kobus did not mention depression or his antidepressant medication. After the meeting, Orlowski put the College’s form entitled, “Request for Family Medical Leave,” in Kobus’s mailbox and told him he could apply for FMLA leave if he had a serious medical condition. Kobus put the form in his drawer without reading it. Kobus testified that he told Orlowski, “I didn’t need any leave. Not just FMLA; any leave. I did not need a leave at that time” because “I thought I could handle it.” In late November 2006, Orlowski issued Kobus a written warning for excessive absenteeism. Kobus again was absent from Jan. 15–18, 2007. Each day, he left a message informing Orlowski that he was experiencing headaches and neck pain. Kobus had no vacation or sick leave time available; his time card recorded that he was “out sick.” On Jan. 18, Kobus called Orlowski to ask for a “mental health leave” because family problems were causing “these knots in my neck and the pains in my head.” After the phone conversation, Orlowski explained Kobus’s request to the College’s Associate Director of Human Resources. The two determined that a leave of absence would not be granted. The Associate Director asked Orlowski to verify that Kobus “was just asking for a leave of absence from the College without FMLA,” and to ask “whether or not a physician could sign off or certify him to be on leave.” Later that afternoon, Orlowski called Kobus. According to Kobus, Orlowski “told me he was working on a deal where I would get paid two weeks’ severance pay, and I wouldn’t have to work for it, and they would accept my resignation because there was nothing available for me.” Kobus submitted a letter of resignation the next day. He did not mention depression or his medication during either phone conversation with Orlowski, nor did he refer to this condition or FMLA leave during an exit interview with the Associate Director on Jan.19. Kobus sued the College for interference with his FMLA rights and for

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“Kobus alleged that the College violated the ADA and the MHRA when it denied a leave of absence to reasonably accommodate his depression disability. ”
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