Utah Employment Law Letter - April 2012: Disabilities: Down for the count: Court rejects cancer victim’s ADA and FMLA claims by Lance Rich


Ever wonder why in the Rocky movies, the referee never calls the fight, even though one or both of the boxers are so beaten up that they can hardly go on? There comes a point when despite the first aid received, a fighter simply has endured too much to perform effectively. In the following case, a courageous warehouse supervisor (also named Rocky) battled cancer while trying to maintain his job. However, at what point is an employer justified in stepping in and letting a chronically sick employee know that he is no longer capable of performing his job? Read on to find out.

Rocky’s fight

Doyle “Rocky” Brown was a warehouse supervisor for Mueller Supply Company, which manufactures metal building products. In April 2005, he advised his supervisor, Brent McGill, that he had cancer and would need surgery. Mueller wasn’t subject to the requirements of the Family and Medical Leave Act (FMLA) because it employed too few people. Nevertheless, it approved Rocky’s request for FMLA leave and informed him that he had a right under the FMLA to take up to 12 weeks of unpaid leave in a 12-month period. He returned to work in May 2005 following his surgery.

Rocky took intermittent FMLA leave in 2006 and again in 2007. On January 24, 2007, he presented a doctor’s note indicating that he was being treated for colon cancer, bronchitis, and fatigue and wouldn’t be able to return to work until February 8. On February 7, Mueller sent him a letter explaining that he had exhausted his 12 weeks of FMLA leave. That same day, Rocky obtained another doctor’s note indicating he would need three more weeks of leave. The following day, Mueller terminated his employment, citing poor work performance and excessive absences. Rocky offered to come to work against doctor’s orders, but Mueller refused.

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