Expert Testimony Not Necessary to Support FMLA Claim
In order to be entitled to FMLA leave, an employee must be able to show that he or she is afflicted with a serious health condition and that the condition renders him or her unable to perform the essential functions of her job. But is a plaintiff who has brought a claim under the FMLA required to present expert testimony verifying that a serious health condition rendered him or her unable to work? Recently, the Seventh Circuit Court of Appeals reversed the district court’s award of summary judgment to an employer on this issue, finding that expert testimony is not necessary in order to make this showing. Hansen v. Fincantieri Marine Group, LLC, et al., No. 13-3391 (7th Cir. August 18, 2014).
James Hansen was an employee of Fincantieri Marine Group (“FMG”). FMG had a point-based attendance system—where employees incurred one point for missing more than four hours of a workday and faced termination upon accumulation of ten or more points in a year. Hansen had already incurred nine points as of May 2, 2011. On May 3, 2011, he requested FMLA leave based upon his depression. He submitted a medical certification from his doctor on May 11, 2011 that stated that he had a condition that would cause episodic flare-ups periodically preventing him from performing his job functions. The doctor stated that the condition started in October 2010 and was exacerbated in May 2011. The doctor said that the probable duration of the condition was months and estimated the frequency of the flare-ups as four episodes every six months and the duration of the incapacity as two to five days. Based upon this certification, Hansen’s absences earlier in the month of May were approved as FMLA leave and he did not receive any attendance points because of them.
Hansen subsequently granted FMLA leave for several more days in May and June. Hansen then requested FMLA leave for July 1, 2011. FMG’s third party administrator sent Hansen’s doctor a fax, indicating that the July 1 absence was “out of his frequency and duration,” and presumably seeking more information about this issue, but mistakenly instead asked the doctor to confirm the item on the medical certification issue dealing with the employee’s need to attend follow-up appointments or work part-time or on a reduced schedule. The doctor sent the confirmation requested. The third party administrator then denied Hansen’s request for leave, finding that his “frequency was exceeded.” When Hansen asked for FMLA leave on two subsequent occasions, he was again denied on the grounds that his frequency was exceeded. Hansen thus incurred more than ten attendance points and was terminated. After Hansen’s termination, his doctor sent FMG and the third party administrator a letter indicating that he was increasing the period of incapacity to cover the entire year of 2011 and also amending his answer regarding frequency of the episodes to once a month for a duration of 2-5 days per episode. Despite this effort, FMG did not retract Hansen’s termination.
Hansen filed suit, asserting claims of interference and retaliation in violation of the FMLA. The district court granted FMG’s motion for summary judgment on the grounds that expert medical testimony was required to prove that Hansen’s serious health condition rendered him unable to perform the functions of his job. Hansen appealed and sought the Seventh’s Circuit’s ruling on two issues: (1) whether an employee is allowed to deny intermittent FMLA leave when an eligible employee exceeds the estimated length or duration provided in his medical certification form and (2) whether a plaintiff has to present expert testimony at trial to prove that he was incapacitated on days for which he requested FMLA leave.
The Seventh Circuit first addressed the question of whether expert testimony is required. Hansen had only identified his doctor as a fact witness and not as an expert. The court pointed out that some of the cases relied upon by FMG in support of its argument that expert testimony is required in fact just stand for the “unsurprising proposition that a plaintiff needs some medical evidence to establish a serious health condition.” Hansen, p. 11. Further, the Seventh Circuit pointed out, the Third and Eighth Circuits have held that lay testimony combined with medical testimony raises a genuine issue of material fact as to incapacity. Id. at 12. (citing to Schaar v. Lehigh Valley Health Servs., Inc., 598 F.3d 156, 161 (3d Cir. 2010) and Rankin v. Seagate Techs., Inc., 246 F.3d 1145, 1148-49 (8th Cir. 2001)). Also, in fact, the Fifth and Ninth Circuits have held that lay testimony alone is enough to create a genuine issue as to incapacity. Id. (citing to Lubke v. City of Arlington, 455 F.3d 489, 495-96 (5th Cir. 2006) and Marchisheck v. San Mateo Cnty., 199 F.3d 1068, 1074 (9th Cir. 1999)).
Additionally, pointed out the Court, “the regulations addressing ‘continuing treatment’ and ‘intermittent leave or reduced leave schedules’ anticipate that the determination of whether an employee is unable to work due to a serious health condition would not necessarily be made by a medical professional.” Id., p. 13. (citing to 29 C.F.R § 825.115(f)). “If the employee does not visit a health care provider during the flare-up of the chronic condition such as depression, the health care provider would not have any personal knowledge about the employee’s claimed incapacity that day.” Id., pp. 13-14. Thus, the regulations support the conclusion that expert medical testimony is not necessary to prove incapacity. Id., p. 14. Based on all of this, the Court concluded that the district court had erred in finding that Hansen had to present expert testimony to support his claim of incapacity on the days he was denied leave. Id.
The Seventh Circuit further found that an estimate is just an estimate, explaining that “we reject the argument that the estimates in the certification act as limitations on the frequency and duration of episodes for which an employee may be entitled to intermittent leave under the FMLA.” Id., p. 20. “[I]f the frequency and duration stated in the certification set a limit to the employee’s entitlement to FML A leave, there would be no need for the regulation that authorizes an employer to request recertification where the ‘[c]ircumstances described by the previous certification have changed significantly (e.g. the duration or frequency of the absence . . .).’” Id., p. 19 (citing to 29 C.F.R. § 825.308(c)(2)).
Here, concluded the Seventh Circuit, the evidence presented by Hansen raised a material issue of fact as to whether he was unable to perform the functions of his job because of a serious health condition. Even though the doctor’s certification did not explicitly cover the later absences, the certified need for intermittent need could support Hansen’s requests. Moreover, the Seventh Circuit explained, the evidence would not just be Hansen’s “own say-so,” but that he would present the evidence of his doctor’s certification and presumably testimony from the doctor about this certification. Id., p. 25.