ERISA Lawyer Blog

What remedies and damages are available to an employee whose employment is terminated in violation of the Family and Medical Leave Act (the "FMLA")? This question was addressed by the Court in Traxler v. Multnomah County, No. 08-35641 (9th Cir. 2010).

Specifically, the case presented two issues concerning damages under the FMLA. The first issue is whether the court, rather than the jury, should determine the amount of the front pay awarded for a termination of employment in violation of the FMLA. Front pay is the amount awarded for lost compensation during the period between the Court's judgment and reinstatement at work (or in lieu of reinstatement). The Court noted that the FMLA does not explicitly grant plaintiffs the right to front pay, so that any award of front pay would be provided only under the section of the FMLA which grants prospective equitable relief (29 U.S.C. §2617(a)(1)(B), providing "for such equitable relief as may be appropriate, including employment, reinstatement and promotion"). The Court concluded that front pay is an equitable remedy to be determined by the court, both as to the availability of the remedy and the amount of the award.

The second issue is whether liquidated damages are available. The Court noted that 29 U.S.C. section 2617(a)(1)(A)(iii) subjects an employer, who violates the FMLA, to double damages, unless the employer can prove that the action in question was taken in good faith, and that the employer had reasonable grounds for believing that this action did not violate the FMLA. Here, the district court had denied the plaintiff's request for liquidated damages, without any explanation. The Court decided to remand the case back to the district court to reconsider the issue of whether liquidated damages are available and set forth the reasons for its decision.

In Domeny v. Commissioner of Internal Revenue, T.C. Memo. 2010-9, the taxpayer had entered into a severance and claims release agreement (the "settlement agreement") with her former employer, to settle her claim that she had been illegally terminated from employment because of her medical condition (multiple sclerosis). The taxpayer received, among other amounts, $16,033 from this settlement. The Tax Court was faced with the question of whether this $16,933 amount is excludable from her gross income under section 104(a)of the Internal Revenue Code.

Section 104(a) provides, in pertinent part, that gross income does not include the amount of any damages received on account of personal physical injuries or physical sickness. For section 104(a) to apply in the case of a settlement agreement: (1)the taxpayer's claim being settled must be based on tort or tort rights-a matter not in dispute here-and (2)the amount of damages must be paid to compensate the taxpayer for physical injuries or physical sickness. As to prong (2), the Tax Court said that when amounts are paid under a settlement agreement, the Court first examines the agreement to see if it expressly states that the amounts were paid as compensation for personal physical injuries or physical sickness. If-as in this case- the agreement is ambiguous or lacks express language on this point, the Court then examines the intent of the payor.

Here, the $16,933 amount was paid by the former employer to the taxpayer, and the payment was not reduced by any tax withholding. The employer also issued a Form 1099-MISC to the taxpayer, indicating that the $16,933 amount was "nonemployee compensation". The Tax Court felt that the manner of making and reporting this payment, coupled with certain other factors (including how other payments made to the taxpayer under the settlement agreement were reported (or not reported)), shows that the former employer was aware that the $16,933 amount was paid due to the taxpayer's physical illness. The Tax Court concluded that the $16,933 amount was paid to compensate the taxpayer for her physical illness, and was therefore not taxable under section 104(a).

Comment: Even though the taxpayer prevailed here, to help ensure that a payment under a settlement agreement can qualify for the tax exclusion under section 104(a), the settlement agreement should expressly state that the payment is being made as compensation for physical injury or physical illness, as the case may be.

On January 29, 2010, the Department of Labor (the "DOL") added to its website a new Fact Sheet, which provides information on the Mental Health Parity and Addiction Equity Act of 2008 (the "MHPAEA") . According to the Fact Sheet, the MHPAEA is generally effective for plan years beginning on or after October 3, 2009 (January 1, 2010 for calendar year plans). An interim final rule, which implements the provisions of the MHPAEA, will be published in the Federal Register on February 2, 2010. The regulation is effective on April 5, 2010, and applicable to plan years beginning on or after July 1, 2010. (A News Release of January 29, 2010 also announces that this regulation will be published.)

The Fact Sheet further indicates that, with respect to employers and their health plans:

• The MHPAEA requires group health plans to ensure that financial requirements (such as co-pays, deductibles) and treatment limitations (such as visit limits) applicable to mental health or substance use disorder ("MH/SUD") benefits are no more restrictive than the predominant requirements or limitations applied to substantially all medical/surgical benefits.
• The MHPAEA supplements prior provisions under the Mental Health Parity Act of 1996 (the "MHPA"), which required parity with respect to aggregate lifetime and annual dollar limits for mental health benefits (but not substance abuse benefits) . Regulations were issued under MHPA in 1997. The MHPAEA interim final rule amends and modifies certain provisions in the MHPA regulations.
• Although the MHPAEA provides significant new protections to participants in group health plans, it is important to note that MHPAEA does not mandate that a plan provide MH/SUD benefits. Rather, if a plan provides medical/surgical and MH/SUD benefits, it must comply with the MHPAEA's parity provisions.
• The MHPAEA applies to plans sponsored by private and public sector employers with more than 50 employees, including self-insured as well as fully insured arrangements.

The Fact Sheet notes that, under the new regulation:

• If a plan offers medical/surgical and MH/SUD benefits and imposes "financial requirements" (such as deductibles, copayments, coinsurance and out of pocket limitations), the financial requirements applicable to MH/SUD benefits can be no more restrictive than the "predominant" financial requirements applied to "substantially all" medical/surgical benefits.
• The "predominant/substantially all" test applies to six classifications of benefits on a classification-by-classification basis. The regulation also includes other rules and definitions that are necessary in order for plans to apply this general parity test.
• Similar protection is provided for treatment limitations. "Treatment limitations" mean limits on the frequency of treatment, number of visits, days of coverage, or other similar limits on the scope or duration of treatment.
• The regulation clarifies that there may be both quantitative and non-quantitative treatment limitations, and provides rules for each. Since they are similar to financial requirements, quantitative treatment limitations are subject to the same general test as the financial requirements discussed above.
• Because non-quantitative treatment limitations (such as medical management standards, formulary design, and determination of usual/customary/reasonable amounts) apply differently, the regulation includes a separate parity requirement for them.

In Pignataro v. Port Authority of New York and New Jersey, Nos. 08-3605 / 08-3825 (3rd Circuit 2010), the Court faced the issue of whether helicopter pilots of the New York and New Jersey Port Authority are exempt, as "professional employees", from the overtime pay requirements of the Fair Labor Standards Act (the "FLSA").

In analyzing this issue, the Court noted that, because the alleged FLSA violation-the classification of the pilots as exempt employees- occurred prior to the Department of Labor's revision of the FLSA regulations in 2004, the Court would apply the pre-2004 version of the regulations. However, the Court indicated that it would likely reach the same results under the current regulations.

As to whether the helicopter pilots are exempt "professional employees", and thus not entitled to overtime pay, the Court said that this exemption applies to an employee who is determined to be a member of the "learned professions", as defined by the FLSA regulations (at 29 C.F.R. §§ 541.3 and 541.301). Under those regulations, this determination is based on, among other things, on the employee's duties. The employee's primary duties must consist of work requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study. This is distinguished from knowledge obtained from a general academic education, an apprenticeship, or training in the performance of routine mental, manual, or physical processes.

The Court found that the qualifications needed to be a helicopter pilot, at least at the New York and New Jersey Port Authority, did not involve the type of knowledge or instruction and study required by the regulations. The instruction for the helicopter pilots took place mostly in the air, and involved passing certain practical and written tests, and otherwise consisted of experience and supervised training. This instruction did not include any specialized intellectual study in the classroom or result in the receipt of an academic degree. The Court concluded that the helicopter pilots did not qualify as "learned professionals" (or "professional employees'), and were therefore entitled to overtime pay under the FLSA.

Comment: Apparently, sophisticated technical skills acquired through rigorous experience-such as the skills needed by a helicopter pilot -is not a substitute for classroom study when it comes to being treated as a member of the "learned professions" for purposes of the FLSA.

In two consolidated cases, Robinson-Smith v. Government Employees Insurance Company, No. 08-7146 (Cir. Court D.C. 2010), and Lindsay v. Government Employees Insurance Company, No. 08-7147 (Cir. Court D.C. 2010), the plaintiffs had worked for the Government Employees Insurance Company ("GEICO") as auto damage adjusters-employees who review, negotiate and settle a customer's claim for insurance to cover damage to the customer's automobile. They sued GEICO for overtime pay under the Fair Labor Standards Act (the "FLSA"). GEICO had treated the plaintiffs as being exempt "administrative" employees and therefore not entitled to overtime under the FLSA. The district court ruled against GEICO, and GEICO appealed that decision.

In analyzing the case, the Court noted that certain employees, including those who work in a "bona fide executive, administrative, or professional capacity," are exempt from the overtime requirements of the FLSA. Under DOL regulations in effect at the time the suit was filed, whether an employee works in a "bona fide administrative capacity" can be determined using a "short test" when the employee makes more than $250 per week. Once the earnings requirement is met-which it is as to the plaintiffs in this case-the short test has two prongs: first, the employee's primary duty must be administrative in nature, and second, his or her primary duty must include work requiring the exercise of discretion and independent judgment. The Court said that the first prong is met in this case, since the plaintiffs' primary duty is administrative, that is, it consists of the performance of office or non-manual work directly related to GEICO's management policies and business operations.

The Court further said that, to establish the second prong of the short test, GEICO must show that the plaintiffs' primary duty includes work requiring the exercise of discretion and independent judgment (as distinguished from the mere use of skill in applying well established techniques) and that the discretion is exercised free from immediate supervision and with respect to matters of significance. The Court concluded that this prong was met as to the plaintiffs. The record shows that the primary duty of a GEICO auto damage adjuster, which-again- consists of the assessment, negotiation and settlement of automobile damage claims, includes the exercise of discretion and independent judgment. The auto damage adjuster exercises at least some discretion, in that he or she engages in negotiations with customers over the total amount of the customer's losses as often as 60 times per year, and that is frequently enough to meet the "primary duty" requirement (even 20 times would be enough). Further, the auto damage adjuster has the power to make independent choices free from immediate direction or supervision. This is the case, even though the adjusters had to follow GEICO's procedures and guidelines, and despite review at a higher level, since the adjusters usually worked without immediately supervision and made decisions that were reviewed only after their estimate of the loss was written and the customer's claim paid. Finally, the auto damage adjusters made choices with respect to matters of significance, as they were empowered to negotiate with claimants and body shops and settle claims up to $10,000 or $15,000--all actions that bind GEICO financially.

As such, the Court found that the plaintiffs/auto damage adjusters were employed in a "bona fide administrative capacity", and were therefore exempt from the FLSA's overtime requirements. It therefore reversed the district court's ruling against GEICO. The Court noted that the regulations in effect at the time the plaintiffs' claims were filed were subsequently revised, but indicated that the same result-exemption from FLSA overtime requirements-would obtain under the revised regulations.

And yes, in a footnote the Court said "The district court had no occasion to decide whether the job of a GEICO auto damage adjuster is so easy a caveman could do it". You knew that had to come in somewhere.

In Young v. Cooper Cameron Corp., No. 08-5847 (Second Circuit 2009), the Court faced the issue of whether a product design specialist fell outside the "professional exemption" from the overtime requirements of the Fair Labor Standards Act (the "FLSA") . In this case, the plaintiff, Andrew Young ("Young"), had worked for the defendant, Cooper Cameron Corp. ("Cooper"), for three years as a product design specialist. When hired, Young had approximately 20 years of engineering-type experience, and his work at Cooper had involved complicated technical expertise and responsibility. However, Young lacked any formal education beyond a high school diploma.

In analyzing the case, the Court said that the overtime requirements of the FLSA are subject to an exemption (found at 29 U.S.C. § 213(a)(1)) for persons employed in a bona fide professional capacity. Under the regulations (at 29 C.F.R. § 541.3(a)(1) and 541.301) a bona fide professional capacity is defined as work requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study, as distinguished from a general academic education, an apprenticeship, or training in the performance of routine mental, manual, or physical processes. This type of instruction cannot be obtained at the high school level.

The Court concluded that, based on the foregoing, to qualify for the professional exemption, the job in question must require knowledge customarily acquired by a prolonged course of advanced intellectual study. The plaintiff's job-product design specialist-did not require such knowledge or study. The professional exemption does not apply to employees who have acquired their skill by experience rather than by advanced intellectual study. Therefore, the professional exemption does not apply to the plaintiff, and he is entitled to overtime under the FLSA.

In a News Release dated 11/30/09, the U.S. Department of Labor (the "DOL") announced the availability of an updated version of its popular Employment Law Guide, an online publication which describes the major employment laws administered by the DOL. According to the News Release, the Guide helps the public -- workers and employers -- understand many of the laws affecting the workplace.

Following a topical format and written in plain language, the Employment Law Guide is especially helpful for employers without a dedicated legal or human resources staff. The updated version addresses recent and important changes in employment laws, including the increase in the federal minimum wage and an expansion of the Family and Medical Leave Act that grants qualified relatives of veterans leave to care for ill or injured uniformed service members or to fulfill obligations that arise when a relative is called to active duty in the military.

The Employment Law Guide is a companion to the DOL's FirstStep overview advisor, an online system that allows employers to quickly and easily determine which federal employment laws apply to them by answering a few simple questions about relevant variables. Each chapter in the Employment Law Guide corresponds to the laws addressed in the FirstStep advisor, outlining coverage under the law, its basic requirements, employee rights, recordkeeping, reporting, notice and poster requirements, penalties and sanctions for non-compliance, the relation to state, local and other federal laws, and contact information for further assistance.

The updated Employment Law Guide and FirstStep overview advisor are available at http://www.dol.gov/elaws/ or http://www.dol.gov/compliance/.

In Davis v. J.P. Morgan Chase & Co., No. 08-4092 (2nd Cir. 2009), the Court faced the issue of whether the plaintiff-underwriter, who was employed by J.P. Morgan Chase ("Chase") and whose job at Chase was to approve loans to individuals in accordance with detailed guidelines provided by Chase, is an administrative employee and therefore exempt from the overtime requirements of the Fair Labor Standards Act ("FLSA").

In analyzing the case, the Court said that the FLSA (at 29 U.S.C. § 213(a)(1)) states that employees who work in bona fide executive, administrative, or professional capacities are exempt from the FLSA overtime pay requirements. The regulations (at 29 C.F.R. § 541.2(a)) add that a worker is employed in a bona fide administrative capacity if he or she performs work directly related to management policies or general business operations and customarily and regularly exercises discretion and independent judgment. The regulations further explain (at 29 C.F.R. §541.205(a)) that work directly related to management policies or general business operations consists of those types of activities relating to the administrative operations of a business, as distinguished from production or sales work. As such, employment may be classified as belonging in the administrative category, which falls squarely within the administrative exception, or as production/sales work, which does not. In this particular case, the question comes down to whether the plaintiff-underwriters performed day-to-day sales activities or more substantial advisory duties.

As to this question, the Court said that the primary duty of the plaintiff-underwriter was to sell loan products under the detailed directions of the guidelines provided by his employer, Chase. There is no indication that the underwriter was expected to advise customers as to what loan products best met their needs and abilities. Underwriters were given a loan application and followed procedures specified in the employer's guidelines in order to produce a yes or no decision as to the approval of the application. This work is not related either to setting "management policies" or to "general business operations", but concerns the "production" of loans- the fundamental service provided by the bank. As such, the Court held that the plaintiff-underwriter was not employed in a bona fide administrative capacity, and therefore was not exempt from the FLSA overtime requirements.

According to a News Release dated 11/09/09, the Occupational Safety and Health Administration of the U.S. Department of Labor ("OSHA") has issued commonsense fact sheets that employers and workers can use to promote safety during the current H1N1 influenza outbreak. The fact sheets inform employers and workers about ways to reduce the risk of exposure to the 2009 H1N1 virus at work. Separate fact sheets for health care workers, who carry out tasks and activities that require close contact with 2009 H1N1 patients, contain additional precautions.

These facts sheets are available on OSHA's "Workplace Safety and H1N1" web site. The News Release says that, as new information about the 2009 H1N1 virus becomes available, the fact sheets will be updated, and invites employers and workers to visit the web site often to ensure that they have the most up-to-date information.

Section 195.1 of New York State Labor Law requires that a New York employer must provide any employee, who is hired on or after October 26, 2009, with information as to the employee's:
1) regular rate of pay;
2) rate of pay for overtime (if he/she is eligible for overtime); and
3) pay date.

This information must be furnished in writing before the employee starts work. Further, the employer must obtain from the employee a written acknowledgement that the employee has received this information, and must keep each acknowledgement for six years. The New York State Department of Labor has issued a form, called "Notice and Acknowledgement of Wage Rate and Designated Payday Hourly Rate Plus Overtime", which the employer must use to provide this information and obtain the acknowldegement. The Department has also issued a form entitled "Notice of Pay Rate and Payday for New Hires", which an employer may give to an employee to explain why the information about pay is being provided. These forms are available here.

The EEOC has revised its "Equal Employment Opportunity is the Law" poster. This new version reflects current federal employment discrimination law (including the Americans with Disabilities Act Amendments Act of 2008). It was revised to add information about the Genetic Information Nondiscrimination Act of 2008, which is effective November 21, 2009. The revised poster also includes updates from the Department of Labor.The new poster is available in English, Arabic, Chinese and Spanish.

The law requires an employer to post in the workplace a notice describing the Federal laws prohibiting job discrimination-so the notice the employer is currently using must now be replaced or supplemented. The EEOC's new poster (or a supplement to the current poster) may be found here.

In a letter dated August 10, 2009, the Equal Employment Opportunity Commission (the "EEOC") dealt with the issue of whether the Americans with Disabilities Act (the "ADA") allows an employer to require its employees to complete a health risk assessment, in order to receive reimbursement from an employer-funded health reimbursement arrangement (an "HRA"). This health risk assessment asks the employee to answer more than one hundred questions in the following categories: family health history, self care, personal health, women's health, older adult health, and various health choices. Specific disability-questions in this health risk assessment include how often the employee feels depressed, whether the employee has ever been told that he or she has certain conditions, such as asthma, cancer, heart disease, or diabetes, and how many different prescription medications the employee currently takes or how much alcohol the employee drinks.

In dealing with this issue, the EEOC noted that the ADA strictly limits when an employer may obtain medical information from employees. Once employment has begun, an employer generally may make disability-related inquiries and require medical examinations:
--if they are job-related and consistent with business necessity (i.e., the employer has a reasonable belief, based on objective evidence, that an employee's ability to perform essential job functions will be impaired by a medical condition or an employee will pose a direct threat due to a medical condition);
--when they follow up on a request for reasonable accommodation, or where the examination or other monitoring is conducted under specific circumstances (e.g., such as where periodic medical examinations are required of employees in positions affecting public safety); or
--as part of a voluntary wellness program (with voluntary meaning that employees are neither required to participate nor penalized for non-participation).

The EEOC said that requiring employees to complete a health risk assessment which includes many disability-related inquiries, such as those included in the health risk assessment at issue, as a prerequisite to obtaining reimbursement from the HRA does not appear to be job-related and consistent with business necessity. Since all employees are required to complete the health risk assessment to receive such reimbursements, there is no indication that the employer has any concern that a particular employee will be unable to do his or her job or will pose a direct threat because of a medical condition. Also, it appears that the employer is not obtaining medical information in response to a request for reasonable accommodation or because it is monitoring employees in positions affecting public safety. Finally, even if the health risk assessment could be considered part of a wellness program, it is not voluntary, because it penalizes any employee who does not complete the questionnaire by making him or her ineligible to receive reimbursement from the HRA. The EEOC concluded that the ADA prohibits this employer from requiring the employees to complete the health risk assessment under these circumstances.

In a footnote, the EEOC pointed out that, as of November 21, 2009, the Genetic Information Nondiscrimination Act ("GINA") will prohibit employers from obtaining any genetic information (which includes family medical history) from job applicants or employees, except under certain very limited circumstances. Therefore, it will generally be unlawful for an employer to ask an applicant or employee any questions about the health of a family member, for example, whether a relative has or ever had certain medical conditions, such as cancer, diabetes, or heart disease. Thus, the employer in this case will likely violate GINA, if it continues to ask questions about an employee's family medical history after GINA becomes effective.

In Berube v. Great Atlantic & Pacific Tea Company, Inc., No. 08-1229-cv (2nd Cir. 2009), the plaintiff, Paul Berube, had worked for the defendant, Great Atlantic & Pacific Tea Company, Inc. (A&P), as a liquor store manager. In 2003, A&P changed its invoicing procedures. The plaintiff initially failed to comply with the new procedures and was eventually transferred to a different store. After an audit at the new store revealed that the plaintiff was still using the old inventory method, A&P verbally ordered him to use the new method. The plaintiff complied with this request. However, A&P suspended the plaintiff approximately two weeks after making the request and terminated his employment shortly thereafter. The plaintiff brought this suit against A&P, on the grounds that his termination violated both the Age Discrimination in Employment Act (the "ADEA") and ERISA. The district court granted summary judgment against the plaintiff on both the ADEA and ERISA claim. The plaintiff appealed.

As to the plaintiff's ADEA claim, the Second Circuit faced the question of whether the plaintiff had established a prima facie case of an ADEA violation. In answering this question, the Court said that, to establish this case, the plaintiff must show that: (1) at the relevant time, the plaintiff was a member of the protected class; (2) the plaintiff was qualified for the job; (3) the plaintiff suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of discrimination. In this case, the plaintiff had established elements (1), (2) and (3). As to element (4), the Court found that the plaintiff had offered sufficient evidence to make out a prima facie claim of discriminatory intent by demonstrating that younger, similarly-situated employees received progressive discipline-as opposed to immediate termination-for transgressions of comparable seriousness while he did not. Thus, the Court ruled that the plaintiff had established element (4), and therefore had made out a prima facie case of age discrimination. The Court reversed the district court's summary judgment on the plaintiff's ADEA claim, and remanded the case back to the district court for further proceedings on that claim.

The Second Circuit upheld the district court's grant of summary judgment on plaintiff's ERISA claim. It noted that Section 510 of ERISA makes it unlawful for any person to discharge or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan. To succeed on a Section 510 claim, a plaintiff must demonstrate that the employer specifically intended to interfere with benefits. Moreover, to defeat summary judgment a plaintiff must adduce some evidence from which a reasonable jury could conclude that an employer intended to reduce benefits under ERISA. The Court found that the plaintiff failed to do so here, merely speculating that the cost of his skin cancer treatments was the cause of his termination. It ruled that no reasonable jury could conclude, based on the record in this case, that A&P intended to deprive Berube of his medical benefits. x

A few weeks ago, I blogged about the Third Circuit's decision in Erdman v.Nationwide Insurance Company, 07-3796 (3rd Cir. 2009) (see my blog of September 25). This case has two other aspects worth noting.

First, the Court faced the question of whether the plaintiff had stated a claim that her termination violated the Americans With Disabilities Act (the "ADA"), since the employer denied her leave to care for her disabled daughter. In answering this question, the Court noted that the ADA's "association provision" prohibits excluding or otherwise denying equal jobs or benefits to an employee, because of the known disability of an individual with whom the employee is known to have a relationship or association. Also, under the ADA, an employer's refusal to provide a reasonable accommodation, such as a leave of absence, to a disabled employee may violate the ADA. However, the Court ruled that the ADA's association provision does not obligate an employer to provide a leave to or otherwise accommodate the schedule of an employee with a disabled relative. Thus, the plaintiff has not stated an ADA claim. The Court noted that, if the employer had fired the plaintiff because she had a disabled daughter, the plaintiff would have an ADA claim. However, the Court concluded that the plaintiff had not been fired for that reason.

The Court also faced the question of whether the plaintiff had accumulated sufficient hours-1250 hours are needed- to qualify for leave under the Family and Medical Leave Act (the "FMLA"). This question stemmed from the problem that the plaintiff had not accumulated enough hours, unless the hours which the plaintiff earned by working at home are taken into account. Citing the FMLA regulations and a Second Circuit case (29 C.F.R. § 785.11 and 12; Holzapfel v. Town of Newburgh, 145 F.3d 516, 524 (2d Cir. 1998)), the Court said that, for purposes of determining the number of an employee's hours for FMLA purposes, all work that the employer knows or has reason to believe is being performed is taken into account. Hours worked off-site or beyond an employee's regular schedule count if the employer knows or has reason to believe that an employee is continuing to work the extra hours. The employer need not have actual knowledge of such off-site work; constructive knowledge will suffice. The Court ruled that, in this case, the plaintiff had introduced enough evidence of the employer's constructive knowledge of the plaintiff's work at home to avoid summary judgment against her for not having enough hours for FMLA leave.

In Ekstrand v. School District of Somerset, No. 09-1853, the plaintiff, Renae Ekstrand, sued her former employer, the Somerset School District, in part on the grounds that her employer had failed to accommodate her seasonal affective disorder, in violation of the Americans with Disabilities Act (the "ADA"). The District Court had granted summary judgment to the employer on this claim, and the plaintiff appealed the decision.

The plaintiff had taught successfully at Somerset Elementary School from 2000 to 2005. For the 2005-2006 school year, the school assigned her to a classroom lacking exterior windows. The plaintiff told the principal that she had seasonal affective disorder, a form of depression, and would have difficulty functioning in a room without the natural light coming through a window. There were two alternate rooms available that had windows, but the school refused to transfer the plaintiff to one of those rooms despite her repeated requests. On October 17, 2005, the plaintiff sought medical attention for her condition. Her doctors placed her on medication and advised her to take a leave of absence for the remainder of the semester, about three months. The plaintiff took the leave and never returned to the school. She filed this suit in February 28, 2008.

In analyzing the plaintiff's claim, the Court said that, to survive the school district's request for summary judgment, the plaintiff had to present evidence that, if believed by a trier of fact, would show that: (1) she was a qualified individual with a disability, (2) the school district was aware of her disability and (3) the school district failed to reasonably accommodate that disability. The Court found that the plaintiff had presented, from her doctors and others, the evidence required to establish elements (1) and (2).

The Court said that, to establish element (3), the plaintiff had to present evidence showing not only her attempt to engage in an interactive communication process with the school district to determine a reasonable accommodation, but also that the school district was responsible for any breakdown that occurred in that process. To be treated as having attempted to engage in such process, a disabled employee must make his or her employer aware of any nonobvious, medically necessary accommodations with corroborating evidence such as a doctor's note or at least orally relaying a statement from a doctor. Here, in the middle of November, the plaintiff told the school district that she was willing and able to return to work in a classroom with a natural light coming through a window. Then, on November 28, 2005, the plaintiff informed the school district through her psychologist that natural light was the key to her improvement. At that point, the school district was obligated to provide the plaintiff's specifically requested, medically necessary accommodation-that is, a room with a window- unless it would impose an undue hardship on the school district. The Court found that there would not have been any such undue hardship in meeting the plaintiff's request. There were two rooms available. Each of those rooms had a window, and could have made ready for the plaintiff's use at little cost . The Court concluded that the plaintiff had established element (3), as well as elements (1) and (2), and overturned the district court's summary judgment against the plaintiff on her ADA claim of failure to provide a reasonable accommodation.