Employment-Fifth Circuit Rules That Employee On FMLA Leave Who Failed To Provide Medical Certification Can Be Discharged Without Violating The FMLA

In Milton v. Texas Department of Criminal Justice, No. 12-20034 (5th Cir. 2013), the plaintiff, Tina Milton (“Milton”), had brought suit against her former employer, the Texas Department of Criminal Justice (the “TDCJ”), claiming violations of the Americans with Disabilities Act (the “ADA”) and the Family and Medical Leave Act (the “FMLA”). The district court granted summary judgment in favor of TDCJ, and Milton appealed.

In this case, Milton was a clerical employee with TDCJ from November 1990 until April 19, 2007. She was employed at the Wynne Unit in Huntsville, Texas, where she was responsible for looking for coded gang messages in inmate mail. She was terminated, administratively, in April 2007 after failing to provide medical documentation verifying her FMLA leave. Milton’s allergic reaction to the use of scented candles and wall plug-ins around her work area is the basis of her ADA claim. Exposure to those items causes her asthma attacks, headaches, nausea, chest tightness, coughing, rhinitis, and sinusitis. Due to her condition, Milton took FMLA leave, effective January 3, 2007. A condition of Milton’s leave, however, was that she submit medical certification of her continued illness, as provided by the FMLA. Milton provided this certification in January 2007, and continued to do so until March 2007. TDCJ never received Milton’s March 2007 certification. Milton was not informed of the missing March certification until April 19, after she had been administratively terminated. This suit ensued.

As to the FMLA claim, the Fifth Circuit Court of Appeals (the “Court”) noted that, when an employee takes an FMLA leave, the employer can require periodic medical certification for the leave. The governing regulations do not require employers to advise employees of missing certifications. Rather, if the employee fails to provide certification, the employer may deny the taking of FMLA leave. Here, there is no dispute that the medical certification due in March, 2007 was never received by TDCJ. Since the medical certification was not provided, TDCJ could terminate Milton without violating the FMLA. As such, the Court affirmed the district court’s summary judgment in favor of TDCJ.

Note: The Court also determined that Milton was not disabled within the meaning of the ADA. However, the Court noted that it was not applying the amendments to the ADA made in 2008. Those amendments substantially expanded the conditions that are considered to be a disability.