In recent years, employers have been bombarded by increasing numbers of lawsuits by employees with mental disabilities alleging discrimination and retaliation. These lawsuits are based on a variety of theories including alleging being denied federal and/or state protected medical leave. In a small blow to this growing trend, however, the Eleventh Circuit recently vacated a $1 million plaintiff’s judgment holding that depression and anxiety is not a “serious health condition” for FMLA purposes where the employee cannot show he or she was also incapacitated by the condition.
In Hurley v. Kent of Naples, Inc., Case No. 13-10298 (11th Cir. March 20, 2014), plaintiff, who suffers from depression, alleged he was wrongfully denied unpaid FMLA leave and terminated. Although the jury did not find that plaintiff had been wrongfully terminated, the jury did decide that the employer improperly denied FMLA leave. The jury found that the plaintiff successfully showed he suffered from a serious health condition and gave proper notice under FMLA. The jury made its finding despite the fact that the plaintiff’s doctor testified that although plaintiff’s condition was chronic, plaintiff was not incapacitated or unable to work. The doctor added that there was no way to predict future periods of incapacity. Based on this testimony, the employer moved for a judgment as a matter of law on grounds that plaintiff failed to prove his burden that he qualified for protection under FMLA. Despite the weight of this evidence, the district court denied the motion.
However, the Eleventh Circuit’s three judge panel overturned what it deemed a “puzzling” verdict. The Eleventh Circuit sided with the employer. Plaintiff tried to argue that under the FMLA, it was only necessary for an employee to show he “potentially” qualifies for protection. The Eleventh Circuit said no. It found nothing in the FMLA or case law supporting plaintiff’s interpretation. The Eleventh Circuit held that an employee must “actually” qualify for FMLA, requiring the employee to show that he or she is unable to work as a result of the employee’s serious health condition.
It is not yet known whether plaintiff will appeal this decision and whether other circuits may come up with similar decisions. However, given that here in California we look to federal cases for much of our guidance on ADA issues, this is an issue we will continue to monitor.