Legal Issues and Recent Developments, Published by the Lurie Law Firm LLC

Employer May Have Duty to Re-Arrange Shifts for Employee Unable to Commute Due to Partial Blindness

April 12th, 2010

On April 8, 2010, the Court of Appeals for the Third Circuit ruled that an employer may have violated the Americans with Disabilities Act by failing to accommodate an employee’s request to change her shift, claiming that her partial blindness made it difficult for her to commute at night.  In Colwell v. Rite Aid Corporation, No. 08-4675 (3d Cir. Apr. 8, 2010), Jeanette Colwell, a cashier at Rite Aid, was diagnosed with retinal vein occlusion in her left eye, and eventually became blind in her eye.   In mid-September 2005, Colwell notified her supervisor that, while she was able to perform her work duties without a problem, she found it difficult to drive at night, and requested to work only during day shifts. 

Colwell’s supervisor told her that she could not grant that request, as it wouldn’t be fair to the other employees.  Further, according to the collective bargaining agreement, shifts were based on seniority.  A few weeks later, Colwell provided a doctor’s note, recommending that she refrain from night driving. Colwell’s supervisor again refused her request to work only day shifts, and Colwell responded that her grandson would pick her up when possible, but that she could not routinely depend on others.   

Colwell’s union representative was also unsuccessful in convincing the supervisor to re-arrange Colwell’s shifts.  Colwell and her union representative then scheduled a joint meeting with her supervisor, who didn’t show up, claiming that ”he got tied up,” and would arrange another meeting. Frustrated, Colwell resigned, and gave two weeks notice, claiming that  “I feel I have not been given fair treatment. There has been prejudice against me. I have been picked on and lies have been told about me. No one deserves that kind of treatment.” 

Rite Aid did not respond to Colwell’s resignation letter.  Colwell then filed a lawsuit, claiming that Rite Aid failed to accommodate her disability, constructively terminated her employment, and retaliated against her.  After discovery, the district court dismissed Colwell’s complaint in its entirety.

The Third Circuit affirmed the dismissal of Colwell’s retaliation and constructive discharge claims, but found that there was an issue of fact as to whether Rite Aid tried to accommodate Colwell’s disability.  First, the Court held that Colwell was disabled as a matter of law, as she had no vision at all in one eye, rejecting Rite Aid’s argument that she did not prove that her condition had a substantial impact on her daily life activities.

The Court further found that Rite Aid had an obligation to attempt to accommodate Colwell’s disability.  In doing so, the Court rejected Rite Aid’s argument that Colwell was requesting a non-workplace accommodation:

Rite Aid adopts the position of the District Court that employers are not “required to accommodate [the] inability to commute to work independently” because “commuting to and from work falls outside the work environment.”  [citation omitted] In other words, Rite Aid argues that it had no duty to even consider changing Colwell’s shift because Colwell’s difficulties amounted to a commuting problem unrelated to the workplace, and the ADA does not obligate employers to address such difficulties. We agree with the EEOC that the reach of the ADA is not so limited. Instead, we hold as a matter of law that changing Colwell’s working schedule to day shifts in order to alleviate her disability-related difficulties in getting to work is a type of accommodation that the ADA contemplates. The statute expressly so provides.

The Court concluded:

In sum, we hold that the ADA contemplates that employers may need to make reasonable shift changes in order to accommodate a disabled employee’s disability-related difficulties in getting to work. As Rite Aid makes no factual argument about the reasonableness of Colwell’s request, nor has it argued before us that scheduling Colwell for day shifts would have been an undue burden, those questions are ultimately for the jury.

 The Court held, however, that there was a factual dispute as to whether or  not Rite Aid attempted to accommodate Colwell’s disability.  Rite Aid argued that it had thought that it did not need to change Colwell’s shift after she informed them that her grandson could pick her up; Colwell claimed, however, that she advised that she could not always rely on her grandson.  There was also an issue of fact as to who had terminated the interactive process; a jury could find that, by quitting before re-scheduling a meeting, Colwell had not given Rite Aid a further opportunity to accommodate her.  On the other hand, as the Court noted, a reasonable jury could conclude that any further meetings might be futile, as Colwell’s supervisor had consistently refused her requests. The Court summarized, “Under the circumstances presented in this case, a reasonable jury could thus conclude that either party violated the duty to engage with good faith in the interactive process.”

Interestingly, while the Court found that there was an issue of fact regarding the interactive process, and required that issue to be decided by a jury, it affirmed the dismissal of Colwell’s claim of constructive discharge.  To prove a constructive discharge claim, the employee must show that the working conditions are so unpleasant or difficult that a reasonable employee would feel that he or she had no option but to resign.  The Court further noted:

Factors we have found relevant to this issue are whether the employer (1) “threatened [the employee] with discharge” or “urge[d] or suggest[ed] that she resign or retire,” (2) “demote[d] her,” (3) “reduce[d] her pay or benefits,” (4) “involuntarily transferred [her] to a less desirable position,” (5) altered her “job responsibilities,” or (6) gave “unsatisfactory job evaluations.” Clowes v. Allegheny Valley Hosp., 991 F.2d 1159, 1161 (3d Cir.1993).  None of those circumstances existed here. 

 More specifically, the Court found that Colwell’s alleged isolated from other employees, being called slow, and management’s failure to react to her complaints were no so unbearable that a reasonable person would feel compelled to resign. 

Colwell has implications for both employers and employees.  It is a good reminder to both parties that they have an obligation to engage in an interactive process, in good faith, regarding workplace accommodations.  Further, employees who quit often have a difficult time meeting the requirement for a constructive discharge; given the realities of the workplace, it can be a difficult hurdle for employees to prove that their working conditions were so intolerable that they felt that they had no option but to leave.

Federal Government Fines NJ Transit $569,000 for OSHA-Related Retaliation

April 8th, 2010

On Tuesday, April 6, 2010, the federal Occupational Safety and Health Administration (OSHA) imposed a $569,000 penalty on NJ Transit for retaliating against an employee who reported a work-related injury, according to the New Jersey Law Journal.

While the amount of the award is noteworthy -  it is the largest penalty imposed under the recent Federal Rail Safety Act, which prohibits discrimination against railroad whistleblowers — it is also groundbreaking in other ways.  While successful whistleblowers can recover back pay and front pay (the difference between the income that the employee could have earned, and what he or she actually did earn), OSHA awarded consequential damages for the injuries caused as a result of the loss of income.  More specifically, OSHA awarded the employee,  Anthony Araujo, $40,271 for lost wages, $50,000 for damage to his credit rating, $12,297 for loss of his car and $345,754 for loss of his home.  OSHA also imposed $75,000 in punitive damages, and $5,000 emotional pain and suffering, as well as various other fines and damages.

It appears that OSHA intended to send a strong message, particularly in light of its finding that NJ Transit showed ”reckless disregard for the law and complete indifference for complainant’s rights.”  More specifically, Araujo’s responsibilities included protecting a contractor’s crew from passing trains.  During one of Araujo’s shifts, a contractor’s employee came in contract with an electric line above the tracks, causing an explosion. 

The case stems from a fatal explosion on Feb. 25, 2008, at a job site along a railroad right-of-way in Newark where Araujo had been assigned to protect a contractor’s crew from passing trains. The employee’s clothes caught on fire and, although Araujo radioed for help, the employee died the following day from burns suffered from the explosion. 

Following an initial investigation shortly after the accident, Araujo’s supervisor informed him that he had done nothing wrong.  The next day Araujo told his supervisor that he was distraught and unable to sleep.  He also requested help from NJ Transit’s Employee Assistance Program, was  diagnosed with post-traumatic stress disorder, and began counseling.  On February 27, Araujo was then put on paid EAP leave, Araujo’s supervisor called his EAP counselor, complaining that Araujo was malingering.

On March 5, 2008, NJ Transit notified Araujo that he was under investigation for violating agency policies in connection with the accident, and it suspended without pay.  NJ Transit held a disciplinary hearing more than six months later, and finally notified Araujo on February 11, 2009 that his discipline was over, and that he could return to work.   During his suspension, Araujo had no income from NJ Transit, and tried to live on credit cards, but ultimately lost his house and car, and his credit rating suffered dramatically.

In announcing its findings, OSHA’s Regional Administrator Robert Kulick said, “A preponderance of the available evidence indicates that Complainant’s reporting of his work related illness was a contributing factor in the adverse actions taken against him. Accordingly, OSHA finds that there is reasonable cause to believe that Respondent violated FRSA.”  OSHA also noted that NJ Transit did not cooperate in its investigation, did not make employees available for questioning and, although it requested an extention of time to file an answer to the charge, it never did so. 

This case underscores the need for employers to take employee complaints seriously, to investigate fully and promptly, and to cooperate in governmental investigations.

Employee Not Entitled to Unemployment for Gross Misconduct, Even If Following Orders

April 5th, 2010

According to a recent unpublished Appellate Division decision, an employee is not entitled to unemployment benefits where she engaged in gross misconduct, even if she did so at the direction of her employer. 

In Fore v. Board of Review, Docket No. A-0830-08T2 (App. Div. Apr. 5, 2010), the employee-nurse was terminated by Robert Wood Johnson University Hospital (the “Hospital”) after she admitted that she had made various notations and assessments on a patient’s chart, even though she had not actually seen that patient.   The employee acknowledged that standard nursing practices prohibited making notations without seeing a patient, that she recorded verbatim the doctor’s assessment of the patient, and that she simply did what she was instructed to do.  In this regard, she claimed that her actions were consistent with the procedure that was in place in the department.  She further testified that she had complained about this procedure to various supervisors, but that she was criticized if she did not complete the report as directed.

Despite this testimony, both the Board of Review and the Appellate Division held that the employee was not entitled to unemployment benefits.  Initially, the court noted that employees are not eligible for unemployment if they are terminated for “‘gross misconduct.”   Here, the employee created records which falsely indicated that the employee and Hospital had provided certain benefits; the Appellate Division held that this constituted gross misconduct, and possible criminal violations.

Thus, the primary issue before the court was whether the employee should be excused because she was following orders.  The Appellate Division found that there was ample evidence to support the Board of Review’s decision to deny the employee unemployment benefits: 

There is substantial evidence in the record to support the findings of the Appeal Tribunal and, in turn, of the Board of Review. The Tribunal added that claimant had her professional obligations not to follow improper or inappropriate instructions from people (including the chief radiation technician Foley) who were not nurses. The Appeal Tribunal also expressly added it did not “doubt that the claimant was told to complete the charts as she had been” or that her “workload was possibly too much for one person to handle.” It stated that “[n]one of that[,] however, relieves the claimant of the obligation to act in a manner consistent with her licensure,” or excuses the indication on medical records “that she had performed the assessments” which she had not.

Therefore, the record also includes sufficient evidence that claimant misrepresented that she performed professional assessments that she had not and, that by doing so, she violated a section of the New Jersey Code of Criminal Justice, N.J.S.A. 2C:21-4.1. There is no requirement or policy requiring a conviction to preclude unemployment benefits, cf. In Re Election Law Enforcement Comm’n, __ N.J. __ (2010) (use of campaign funds not proper to defend indictment for crime), and even if Robert Wood Johnson or its staff was not deceived or mislead, we can take notice that pain assessment reports can be reviewed to evaluate regulatory compliance and insurance recoveries.  Accordingly, the record supported the denial of benefits under N.J.S.A. 43:21-5(b) for “gross misconduct.”

After finding that there was substantial evidence of misconduct, the Appellate Division rejected the employee’s “Nuremberg Defense” that she was simply following improper — and potentially illegal — orders.

Were we to accept claimant’s argument that she should receive unemployment benefits when discharged for falsifying a report, or because she did not “deceive or mislead any person as to information . . . concerning the patient,” we would be permitting wrongdoing and suppressing the truth about misconduct by encouraging employers to retain wrongdoers who follow their supervisors’ unlawful commands——and would be acting inconsistent with public policy established in legislation such as the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -8, and our common law jurisprudence. See, e.g., Tartaglia, supra, House v. Carter-Wallace, Inc., 232 N.J. Super. 42 (App. Div.), certif. denied, 117 N.J. 154 (1989). Stated differently, if we took the position advanced by appellant we would encourage employers to retain wrong doers as a means of avoiding unemployment compensation losses.

Finally, the court noted  that, while the employee was not entitled to unemployment benefits, she might be entitled to recover against the Hospital for alleged violations of the New Jersey Conscientious Employee Protection Act (“CEPA”), which prohibits employers from taking retaliatory action against employees who complain about violations of law or public policy.  See here for more information regarding CEPA.

Although the Appellate Division’s insistence on personal responsibility may be laudable, in practice it may put an employee in an untenable Catch-22.  An employee has the option of objecting to perceived illegal conduct but, if the complaint falls on deaf ears, the employee’s options are limited, and unpleasant.  1.  Continue to follow orders, with the understanding that the employee may be personally liable for illegal activity and, if then fired, not be able to receive unemployment benefits; 2. refuse to follow orders, and suffer potential retaliation, including ostracism and termination for insubordination; 3.  quit and try to find another job (which may be difficult in the current economic situation).  An employee who is facing potential retaliation or dismissal for raising concerns of illegal activity should therefore seriously consider consulting an attorney before the situation devolves into the one at issue in Fore.  

The employer in Fore may have also won a Pyrrhic victory.  Although it prevailed on the unemployment compensation dispute, it has received a judicial ruling that one of its employee engaged in potentially illegal conduct,  and it appears that it is facing a fairly substantial CEPA claim, with the employee claiming that the Hospital routinely directed her to routinely engage in this misconduct.  Further, the opinion indicates that the Hospital may have routinely and falsely billed insurance companies, and the government, for work that was not performed (possibly in violation of the False Claims Act, as well as other statutes).  In this regard, it is unclear exactly what happened to the employee’s complaints, and whether they were ever elevated and/or whether the Hospital ever investigated these issues.  As a result, the Hospital may have also put itself into a Catch-22: if they didn’t terminate the employee for improper activity, it may have looked like they endorsed the conduct; by terminating her, however, they may have bought a CEPA claim, as well as a judicial opinion publicizing potential illegal systemic activity.  This is  a strong reminder to employers to take complaints seriously, and to act on them promptly, in the hope of avoiding precisely this type of situation.

A copy of the Fore decision is available from the author, upon request.

Employer Loses Disability Discrimination Claim Due to Medical Opinion Based on Failure to Investigate

April 1st, 2010

In an unpublished decision by the New Jersey Appellate Division today, the court affirmed a finding that a school district unlawfully failed to reinstate a teacher who took a psychological disability leave after he was accused of improper comments and behavior.  Ponsi v. Cliffside Park Board of Education, Docket No. A-5902-07T2 (Apr. 1, 2010).  On May 23, 2003, John Ponsi, a teacher at Cliffside Park High School, was unexpectedly called into the principal’s office for a meeting with two students, who accused him of making racial and lewd remarks earlier that week.  Another teacher was also at that meeting, who accused Ponsi of pushing her that same week.  Four days later, the Board of Education notified Ponsi that he was suspended with pay, pending the outcome of an investigation and psychological examination.

Contrary to the notice, the Board did not conduct an investigation.  Ponsi did, however, see his physician, who referred him to a psychiatrist due to depression and anxiety resulting from the accusations and suspension. In September 2003, Ponsi was also evaluated by Dr. Meyerhoff, a psychiatrist appointed by the Board, who concluded that Ponsi was unable to teach for the foreseeable future.  As a result of that examination, the Board notified Ponsi that he was ineligible to teach until he provided proof of recovery and that, if his absence exceeded two years, his employment would be terminated.

On January 31, 2005, Ponsi’s psychiatrist provided a written report, finding that Ponsi’s depression and anxiety had sufficiently abated and that that he could return to teaching.  The Board then had their initial psychiatrist  re-examine Ponsi.  The psychiatrist agreed that Ponsi’s depression and anxiety had abated, but found that Ponsi should not return to work, because he showed no repentance or remorse over the alleged lewd and racial remarks, or the pushing incident.  Dr. Meyerhoff wrote:

Though Mr. Ponsi is ready to return to work and, in theory is less overtly troubled and distraught than previously, he is not repentant about the previous school problem, offers no additional information which would logically explain why a teacher and two students, in effect, conspired against him, and conveys an astonishingly comfortable, serene and tolerant attitude as he, veritably, would accept reinstatement in school, without care or concern. Probably, with the aforementioned sense of self righteousness he could stand before  a classroom for days or even weeks, but it is likely he would unravel, at some point. If the Cliffside Park Board of Education seriously wishes to reinstate him, it is not unreasonable that he be re-interviewed, as a “returning” employee, by the same administrators he suggests have been incompetent.

Although the Board had conducted no investigation, its psychiatrist accepted all allegations against Ponsi as if they were true and, based on this assumption, decided that the Board should not reinstate Ponsi.  The Board, knowing that it had conducted no investigation, and that the allegations had not been proven, agreed with its psychiatrist’’s evaluation, and decided not to reinstate Ponsi.

Ponsi then retained a second psychiatrist.  This psychiatrist disagreed with Dr. Meyerhoff, who

diagnosed a delusional disorder, because Mr. Ponsi was not repentant, offering no additional information to logically explain why a teacher and two students would have conspired against him . . . Mr. Ponsi does not use the term, “conspiracy,” with me. I do not discern any paranoid delusions. His account of the accusations made against him is plausible and does not appear to be delusional. He raises reasonable doubts as to the validity of such allegations for which he cannot honestly express remorse or logically explain. In my view, this cannot be held against him. Since he is not delusional, I cannot agree with Dr. Meyerhoff that he will “unravel” at some point when teaching in a classroom.

The Board nevertheless decided not to reinstate Ponsi, and still did not investigate the underlying accusations against him.

After an evidentiary hearing, the Division on Civil Rights found that the Board violated that Law Against Discrimination by failing to offer a reasonable accommodation for Ponsi’s disability.  The Appellate Division affirmed this ruling.  The court noted that it was clear that Ponsi had a disability.  Further, as the Division on Civil Rights found that Ponsi’s experts were more credible than Dr. Meyerhoff, the court found that Ponsi established that he was qualified to return to work.  The court also reasoned that, once Ponsi claimed that he was entitled to reinstatement, the Board was obligated to engage in an interactive process, to determine whether Ponsi could return and, if so, whether Ponsi needed any reasonable accommodation.  As the court observed, the Board did not even bother investigating the allegations, even though itknew that its psychiatrist’s opinion was based entirely on the assumption that the allegations were true.  The court summarized, “If Dr. Meyerhoff’s assumption that the allegations against Ponsi were true is discounted, his diagnosis supports Ponsi’s reinstatement. Furthermore, the Board did not even follow Dr. Meyerhoff’s recommendation that Ponsi be interviewed, a clear signal that they had no intention to reinstate him.”

There are several lessons to be learned from Ponsi.  First, depression and anxiety may be considered protected disabilities, even if they are caused by job-related stressors.  Second, while it is understandable that the Board might have been reluctant to call Ponsi in for an investigation while he was on leave suffering from depression — and may have had difficulty conducting an investigation into a few remarks two years later, when Ponsi was able to return — employers that do not investigation allegations, and who rush to judgment, do so at their own peril.  Third, employers that retain their own doctors to examine employees should take care to ensure that accurate and objective information is being provided.  Fourth, if there are clear factual errors, or internal inconsistences, in an examination, the employers should not blindly accept the report and its recommendations. 

A copy of the decision is on file with the author, and is available on request.

Employees Have Reasonable Expectation of Privacy in Personal Attorney-Client E-Mails From Company Computers

March 30th, 2010

On March 30, 2010, the New Jersey Supreme Court held that employees have a reasonable expectation of privacy in e-mails sent to their attorneys from their company computers.  In Stengart v. Loving Care Agency, plaintiff, Marina Stengart, communicated several times with an attorney about a potential lawsuit against her employer, Loving Care Agency.  While she communicated with him through her personal Yahoo account, she did so using her company provided computer.  Shortly thereafter, she resigned from Loving Care, claiming constructive discharge, and filed a lawsuit, alleging that she was subjected to harassment, discrimination and retaliation.  At the time of her separation, she returned her company computer.

In anticipation of litigation, Loving Care retained a forensic expert to retrieve all of plaintiff’s e-mails and web-based activity.  Unbeknownst to plaintiff, the company had the ability to obtain all communications that were sent from her personal account on the company computer, including the communications with her lawyer.

The company claimed that plaintiff had no expectation of privacy and had waived the attorney-client privilege, and that the company had a right to look at these e-mails, based on its Electronics Communication policy.  That policy stated:

 The company reserves and will exercise the right to review, audit, intercept, access, and disclose all matters on the company’s media systems and services at anytime, with or without notice.

 . . . .

E-mail and voice mail messages, internet use and communication and computer files are considered part of the company’s business and client records. Such communications are not to be considered private or personal to any individual employee.

 The principal purpose of electronic mail (e-mail) is for company business communications. Occasional personal use is permitted; however, the system should not be used to solicit for outside business ventures, charitable organizations, or for any political or religious purpose, unless authorized by the Director of Human Resources.

The Court held that this policy did not provide adequate notice to employees that their e-mails, sent from their private accounts, could be accessed by their employer.  In this regard, the court noted that the term “company’s media systems” was vague; employees might reasonably expect that this applies to company e-mails, and not to e-mails from personal accounts that happened to be sent from the company computer.  Further, according to the Court, the policy gives no notice to employees that their personal e-mails are somehow stored on their hard drive, and therefore accessible to their employer.  The Court further observed that the policy is entirely silent on whether e-mails on private web-based accounts even fall within this policy.  Finally, the court noted that the policy allows employees to use e-mail for occasional personal use, creating further ambiguity as to whether personal e-mail is considered company property.

In contrast to the ambiguity of the electronic communications policy, the Court found there was no ambiguity in the strong public policy protecting attorney-client communications.   In this regard, the Court noted that other cases have have found no reasonable expectation of privacy when employees view or save inappropriate material on their company computers.   Further, employers might have a legitimate interest in monitoring communications that might have a detrimental effect on their business.

The Stengart Court noted that a different analysis might apply to attorney-client communications.  The Court noted that other courts have recognized that individuals do expect that their communications with their lawyers are private, particularly where the employee took reasonable steps to protect their confidentiality, e.g., using their personal accounts rather than company accounts, sending messages from their company laptop at home rather than through the company’s server, and whether they saved their log in information on their company computer.   Further, the e-mails, on their face, noted that they were to and from and attorney, and that they were subject to the attorney-client privilege.  Accordingly, the Court found that the documents were privileged, and that the company’s attorneys may have violated rules of professional conduct by reviewing them and by not returning these e-mails as soon as they discovered their existence.

The Stengert decision provides some valuable lessons.  First, employers should review their electronic communications policies to make sure that they are not overly vague and ambiguous.  Given the strong public policy protecting attorney-client communications, it is unlikely, however, that a Court would hold that there is no right to privacy in e-mails from a private web-based account using the employer’s equipment, even if the policy somehow specifically included these within the definition of employer electronic media.  Employees should also be careful not to send confidential information from their employer’s e-mail accounts; if they want information to remain confidential, they should use their private e-mail accounts for this purpose, and preferably not do so using their company computers.  It is also prudent to include the legend “ATTORNEY-CLIENT COMMUNICATION” at the top of such communications.  Further, attorneys should immediately return these documents as soon as they are aware that they have them.  As noted in an earlier post, employers may have a legitimate interest in their confidential documents, and should accord the same deference to confidential documents of their employees.   Finally, this decision should not be interpreted to imply that employers do not have a legitimate right to monitor improper use of electronic media by employees.

New Jersey Court Reaffirms that Internal Investigations May Be Discoverable

March 30th, 2010

A few weeks ago, I posted tips for conducting an effective investigation, noting that a good investigation can be an employer’s best friend, but that an improperly conducted investigation — and lack of follow up — can be a nightmare for an organization.   See here for more information.  A recent New Jersey trial court decision, Shanahan v. New Jersey Transit Corporation, reaffirms that such investigations are discoverable, such that employee litigants, and possibly juries, may have the opportunity to review and criticize the employer’s investigation and follow up.

In Shanahan, the plaintiff alleged that her employer, New Jersey Transit Corporation (NJT), subjected her to a hostile work environment based on her sexual orientation, and then retaliated against her when she complained about the harassment.  To support her claims, the plaintiff demanded that NJT turn over four documents that contained a discussion, analysis and recommendations regarding the rise in discrimination complaints under the tenure of plaintiff’s supervisor, as well as data comparing disciplinary actions against white males and minority members, and data regarding trends in hiring of female officers.  The court held that that these documents were clearly relevant, as the documents may have a tendency to prove or disprove that plaintiff’s supervisor had discriminatory motives, as well as to disprove the employer’s reasons for its actions against plaintiff.

After finding that the documents were relevant, the court then held that the documents were not privileged.  More specifically, NJT argued that the documents were protected by the “deliberative process privilege,” which allows governmental agencies to withold documents that reflect advisory opinions, recommendations, and deliberations to help the agency formulate policies and decisions.  The court rejected this argument, ruling that the deliberative privilege does not apply in employment discrimination cases.  In reaching this result, the court cited Payton v. New Jersey Turnpike Authority, 148 N.J. 524 (1997), in which the New Jersey Supreme Court specifically held that investigations of  discrimination complaints are not privileged, noting that “we particularly disfavor privileges in the employment-discrimination context.”  Id.at 545.  The Shanahan court further noted that, for the deliberative privilege to apply, the documents must contain opinions, recommendations or advice to help make decisions, and not just facts.  Here, the court observed that the disputed documents contained only high level and general recommendation (e.g., “we do need to remain diligent in … insuring that their HR practices minimize the filing of complaints”) or recommended further review and analysis.

Finally, the court noted that at least one of the documents was never used in any deliberations.  According to the court: 

Ms. Illescas [the author of one of the reports] testified at her deposition that no action/no decision was ever made by Defendants in response to the T&J Associates report or her report. In fact the testimony of Ms. Illescas demonstrates that Defendants were dismissing these reports and findings and took no action whatsoever on them. Ms. Illescas testimony reveals that at least one of these reports (Ms. Illescas’ report) may have been used in a retaliatory fashion by Defendants.

In other words, not only was the document not protected by the deliberative process, the court found that it may support the plaintiff’s allegation of retaliation.

It would be a mistake for an employer to assume from this case that it should not investigate and/or document any potential areas for improvement.  It is axiomatic that ann organization should not put its head in the sand, in the hopes that everything is fine, or that no one will find out that there are any issues if they do not document them.  Rather, I have found that issues go to litigation precisely because they fester under an employer’s neglectful or unrealistic watch.  Moreover, while juries may understand that no organization is perfect, they tend not to be sympathetic to employers that turn a blind eye to potentially unjust treatment, or that engage in “blame the victim and shoot the messenger” when issues are raised.  Rather, a prudent employer should learn from this case that any investigation or issue may be discoverable, and that they should act as though all of their decisions and actions will see the light of day, and do the right thing.

This case is also a good reminder that there are numerous “investigative” records, besides formal investigations, that may document potential issues and recommendations, and which may be discoverable.  Many companies have HR issue software, which track investigations and issues, and may include the ability to run various analyses.  Following Sarbanes-Oxley, many companies routinely report audits and other issues to the  Board of Directors and/or Audit Committee.  The Federal Sentencing Guidelines recommends that organizations adopt compliance programs, which includes issue tracking asd part of risk assessments, as well as regular reports to compliance committees and senior management of issues and trends.  Many companies have also implemented hotline reporting systems, from which different analytics can be run regarding trends and statistics, including rise or decline or various issues, as well as statistics regarding the company’s response, which may or may not demonstrate that the company took these complaints seriously, as well as whether employees felt comfortable raising concerns.  Prudent employers would be wise to periodically review all of these documents to determine whether there are issues that need to be addressed.  Depending on the specific facts, plaintiffs might also be wise to consider including these documents in their discovery requests.

A copy of the Shanahan decision is on file with the author, and can be provided on request.

 

Overview of New Jersey’s Conscientious Employee Protection Act

March 28th, 2010

A few weeks ago, I commented on a recent New Jersey case concerning New Jersey’ Conscientious Employee Protection Act (CEPA), and the need to allege that the employee was either terminated or “constructively terminated,” that is, that the employer made the employee’s working conditions so intolerable that the employee feel that he or she had no recourse but to quit.

A few readers have asked for more information regarding CEPA. 

Brief Overview

It is often difficult for employees to put the public good ahead of their own interest and to complain about their employer’s potentially illegal activity. Recognizing this difficulty, and the importance of ensuring lawful business conduct, New Jersey enacted the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 et seq., which has been described as one of the most far reaching whistle-blower protection laws in the county. It protects employees from retaliation for disclosing illegal conduct, testifying before a public body and for refusing to participate in an unlawful activity

Disclosure of Illegal Activity

CEPA prohibits employers from retaliating against an employee because the employee discloses, or threatens to disclose, an activity, policy or practice of the employer that the employee reasonably believes is in violation of a law, or a rule or regulation. CEPA protects disclosures made to either a supervisor and to a public agency or official.  An employer also cannot retaliate against an employee who raises concerns about potential illegal activity by a company with whom the employer has a business relationship.  Licensed or certified health care professional are also protected under CEPA for raising concerns about improper quality of patient care.

Not all complaints are protected, however. The complainant must reasonably believe that the conduct is in violation of law. CEPA also protects employees who disclose, or threaten to disclose, fraudulent or criminal activity, including potential fraud against shareholders, investors, clients, patients, customers, employees and other persons. Mere disagreement with management, however, is not protected by CEPA.  Unreasonable complaints are also not protected.  While the complainant is not required to be correct, he or she must demonstrate a reasonable belief that the conduct at issue was illegal or fraudulent.

Testimony Before a Public Agency

CEPA also prohibits an employer from retaliating against an employee who provides information to, or testifies before, any public body conducting an investigation or hearing into a potential violation of law by the employer or its business associates. Protected activity also includes investigations and hearings into potential deception or misrepresentation by the organization to shareholders, investors, clients, patients, customers and other individuals. CEPA also protects licensed or certified healthcare professionals who provide information to, or testify before, a public body investigating the quality of patient care.

Objection and Refusal to Participate

CEPA also prohibits employers from retaliating against employees who object to, or refuse to participate in any activity, policy or practice which the employee reasonably believes:

(1) is in violation of a law, or a rule or regulation promulgated pursuant to law or, if the employee is a licensed or certified health care professional, constitutes improper quality of patient care;

(2) is fraudulent or criminal; or

(3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.

Mere disagreements with management decisions are not protected; the whistle-blowing activity in question must serve a public interest, and should be able to point to some law or public policy that is being violated. The employee must also have a reasonable basis for his or her allegations.

Retaliatory Action

CEPA protects employees from discharge, suspension, demotion or other adverse employment action affected the employee’s terms and conditions of employment. Courts have found that a series of abusive conduct by supervisors, veiled death threats, multiple disciplinary investigations and job transfers can constitute retaliatory action.

Civil Proceedings

Complainants must file civil actions within one year, and have the right to a jury trial.  Damages may include reinstatement, back pay, front pay, emotional distress, punitive damages and attorneys fees.

Other Statutes Prohibiting Retaliation

There are, of course, other statutes that also prohibit retaliation.  For example, under both federal and New Jersey discrimination laws, employers cannot retaliate against employees who complain about unlawful discrimination or harassment.  Other laws also have anti-retaliation and whistleblower provisions, including Sarbanes-Oxley (“SOX”) and the recently enacted Patient Protection and Affordable Care Act of 2009.

Your Employer Just Gave You a Pink Slip and a Severance Agreement. Now What??

March 20th, 2010

In our current age of downsizing and cost-cutting, many good employees are finding themselves without a job through no fault of their own.  With money scarce, employers may be less generous with severance payments.  And with jobs scarce, employees may feel that they need the severance to help tide them over until they can find suitable alternative employment.

Generally, employers are not obligated by law to provide any severance to any employee.  Some employers, however, have decided to voluntarily adopt severance policies, with criteria and formulae for determining such payments.  Other employers might decide, on a case-by-case basis, to offer severance as a reward for service, to obtain finality and/or  to avoid potential litigation.

Assuming that your employer has given you a severance agreement, you should not feel pressured to sign it on the spot.  In fact, under the federal Older Workers Benefit Protection Act (and some state laws), you must be provided a certain amount of time to review the agreement if you are asked to waive age discrimination or certain other claims, as detailed in 12 below.  Additionally, some provisions may be a bit confusing or seem to be “legalese,” and you should make sure that you understand what rights you may be giving up or what obligations you may now be taking on.  Nor should you assume that all terms are non-negotiable;  there may be leeway for certain provisions.

Following are some of the more common provisions contained in severance or separation agreements (I use these terms interchangeably in this post).

1.  “Wherefore” clauses.  Separation agreements frequently contain a few introductory paragraphs, setting out the employee’s title and/or responsibilities, and the reason that the parties are entering into the agreement, e.g., “as a result of a reorganization,” “due to mutual dissatisfaction,”  “desire to amicably resolve and settle in full any and all obligations and/or claims that Employee has,” etc.  While these may not have any legally enforceable significance, employees should make sure that these clauses are accurate.  For example, if you were fired, it should not say that you voluntarily resigned.

2.  Termination Date.  The separation agreement almost always specifies the last day of employment, to ensure that there are no misunderstandings, and to make sure that the employee is paid all amounts due as salary.   In addition, all vested and unused vacation days and other paid time off must be paid to the employee within a certain amount of time after the last day of employment.  Employees should be aware that, under law, these amounts must be paid whether or not the employee signs a severance agreement.

3.  Consideration.  “Consideration” is what the employee gets in exchange for the release of claims (discussed in 4,  below).  This is obviously one of the key provisions of the separation agreement.  Any amounts specified in this provision must be in addition to anything that the employee would otherwise be entitled to receive.  For example, if the employee is otherwise entitled to vacation pay, bonuses or commission, or would be entitled to severance under an employment agreement or enforceable policy, these would generally not be “consideration” for signing the agreement.  While payment of money is the most common form of consideration, it may also include the employer’s agreement to continue COBRA payments, outplacement services or other things of value to the employee.  The payments may be either in a single lump sum or over time; employees should carefully consider these alternatives, as there may be tax issues, as well as legal consequences (payments over time may be considered an employee benefit plan under the federal Employee Retirement Income Security Act of 1974 (ERISA), which may have impact which is too complex to discuss at length here).  Depending on the way that the payments are characterized, this may also have an impact on the employee’s right to receive unemployment insurance in certain states.  Further, while rare, payments over time might also raise issues under a subsequent employer’s conflict of interest policy.

4.  Release.  This provision specifies what the employee is giving up in exchange for the employer’s consideration: the right to sue and possibly get additional money.  This provision usually contains a laundry list of various federal and state statutes, as well as common law claims (e.g., breach of contract, mispresentation, infliction of emotional distress, slander, etc.)  Employees should make sure that the agreement specifies that they are not giving up (i) claims that might arise after they sign the agreement, (ii) the right to enforce the agreement, (iii) any workers compensation claims that they might have filed, (iv) any claims to vested benefits under any retirement or pension plan or (v) any claims that cannot be waived by law.  It is also common for the agreement to provide that the employee has not, and will not, file any claims against the employer; employees should be aware, however, that the Equal Employment Opportunity Commission (EEOC) has stated that, while employees can waive the right to collect additional money, they cannot waive the right to participate in an EEOC investigation.  Again, this provision should be reviewed carefully, to ensure that the employee knows what he or she is giving up, and that the release is legally enforceable.

5.  Non-Admission of Liability.  Many agreements specifically state that the employer is not admitting that it is liable, and that it does not believe that it owes any money to the employee, but that it is doing so simply to resolve any claims that were, or could have been, raised.

6.  Confidentiality and Non-Disparagement.  Severance agreements frequently contain explicit provisions that the employee cannot divulge the terms of the agreement to anyone (other than family, legal advisor and accountants) without the company’s permission.  The agreement will also frequently prohibit the employer from making any disparaging or derogatory remarks about the employer, its officers, directors and employees.  Employees should consider requesting mutual non-disparagement clauses (including a provision that, in response to reference requests, the employer will provide only dates and titles). 

7Confidential Information and Non-Competion.  Employees are frequently required to sign confidentiality and/or non-competition agreements upon their hire.  Any similar provisions in the severance agreement should not be more restrictive than they originally signed; employees may also consider asking for reductions in the length or scope of their existing non-competition agreements (it should also be noted that  some courts are less likely to enforce these agreements as written if the employer fires the employee).

8.  Return of Company Property.  It is reasonable for employers to expect employees to return all keys, credit cards, laptops, security passes and confidential documents.  Employees may want to check whether they can keep certain non-confidential or non-proprietary information as part of their portfolio or to demonstrate to prospective employers the type and quality of the work that they produced.

9.  Cooperation.  Depending on the employee’s position, the employer may want to ensure that the employee will be available for consultuation or cooperation with current or future investigations, litigations or other matters.  The employee should consider asking for reimbursement for expenses associated with this cooperation.

10.  Unemployment Compensation.  Separation agreements may explicitly provide that the employer will not contest unemployment benefits.  Again, if this provision is not contained in the agreement, the employee may consider requesting its inclusion.

11.  Liquidated Damages.  Some separation agreements provide that, if the employee violates the confidentiality, non-disparagement, non-competition or other provisions, the employee has to give back a portion of the severance payments, and/or that the employee could be liable for other damages, including attorneys’  fees, as well as injunctive relief from the courts.  Clearly, the employee should carefully review this provision before signing the agreement, and may want to consider negotiating changes, as appropriate.

12.  Time to Consider and Revocation Period.  The Older Workers Benefit Protection Act provides that employees who are over 40 must be given at least 21 days to review the agreement; if they are not given this length of time, any waiver of federal age discrimination claims may be voided.  If the employee is let go as part of a reduction in force, the employer must provide the employee at least 45 days, and must provide information regarding ages of employees who were not subject to the reduction in force.  Employees should note, however, that they are not required to wait this length of time to sign the separation agreement; they can sign as soon as they feel comfortable.  In addition, the employee has seven days to revoke the agreement after signing it.  As a result, however, employees should be aware employers generally will not make severance payments until at least 8 days after the agreement is signed.

THE FOREGOING IS GENERAL INFORMATION ONLY, AND DOES NOT, AND SHOULD NOT BE CONSIDERED, LEGAL ADVICE.  YOU SHOULD CONSULT AN ATTORNEY IF YOU SEEK ADDITIONAL INFORMATION OR NEED LEGAL REPRESENTATION.

Tips for Conducting an Effective Investigation

March 15th, 2010

In my experience representing both employers and employees, as well as having conducted numerous investigation, I have found that litigation often arises when employees feel that their employer does not — or will not — take their complaints seriously, and that a court of law is their only recourse.  In addition, our courts have held that employers may avoid liability for sexual harassment and other complaints if they conduct a good faith, prompt and thorough investigation. Put simply, a prompt and thorough investigation is good business and good law.

While the need for conducting an investigation is clear, a poorly executed investigation can be disastrous.  Rather than address the problem, it may exacerbate it if the employee feels that his or her concerns was not taken seriously.  If the complainant feels that they have somehow been punished for raising these concerns, this may also lead to a claim of retaliation.  Moreover, an inadequate investigation may chill other employees from complaining, resulting in long-festering problems and additional lawsuits.  Finally, a jury might regard an inadequate investigation as a “whitewash,” leading to potential significant liability.

Here are some tips in how to conduct an effective investigation.

  1. Plan for an Investigation Before a Complaint is Raised.  Make sure that your employees know that they can complain and how to do so.  Make sure that your anti-harassment and discrimination policies provide contacts for complaints; for organization of any significant size, there should be multiple individuals, and not just supervisors, who can receive complaints.  Employers should also make sure that this information is covered in training.  If you have a hotline or helpline, this information should also be conspicuously posted.  (It should also be noted that New Jersey employers are also required to post, and annually distribute, information about employee’s rights under the Conscientious Employee Protection Act.)   Employers may also want to consider developing an investigation policy and procedure, including types of issues to be investigations, sources of complaints, identification of investigation leads, the conduct and method of an investigation, when to notify management of the investigation, responsibilities for corrective action, and other issues.
  2. Determine Whether to Conduct an Investigation.  Employees may raise issues, and then ask that you do nothing.  Or you may believe that an employee is simply venting, rather than asking for assistance.  Other times, you may believe that the employee is simply disgruntled, and that they are just trying to raise issues to salvage their job.  You might also think “I’ve heard all of this before, and I’m not going to waste my time on investigating this.”   In each case, you should carefully consider — and re-consider — any decision not to investigate.  It is usually more prudent to investigation than to try to explain why an investigation was not conducted.  Further, as noted above, a prudent employer might want to consider adopting policies identifying who should ultimately make the decision as to whether or not to investigate. 
  3. Decide Whether Any Action is Necessary While the Investigation Proceeds.  Depending on the nature of the allegation, and the anticipated time to complete the investigation, you might want, or need, to take some interim action.  For example, an employer may need to immediately address an allegation of unsafe working conditions, embezzlement or employee violence.  Similarly, a prudent employer might want to take some immediate (albeit temporary) action if there are egregious claims of sexual harassment by an employee against his or her supervisor.   
  4. Decide who Should Conduct the Investigation.  Clearly, an investigator should be impartial; targets of the investigation, and witnesses, should not be involved in conducting or overseeing the investigation.  Employers might also consider hiring an outside investigator, particularly where the allegations concern senior management or are politically sensitive.  In any event, in addition to being impartial, the investigator should have an open demeanor and be able to put the complainant and witnesses at ease; investigations should rarely be conducted as cross-examinations, and should certainly never signal that the investigator has already reached a conclusion, and is merely trying to uncover evidence to support that conclusion.  In addition, the investigator may be called as a witness, and employers may want to ensure that the investigator is articulate and credible.  It is also often a good idea to have two people present during the investigation, as this will allow one person to focus on the questions and answers, while the other documents the conversation.  It is also often helpful to have a second set of eyes and ears, both to observe the credibility of witnesses and to make sure that all appropriate ground is covered, as well as to corroborate what was said in the event of a later dispute.
  5. Consider Conducting the Investigation under Attorney-Client Privilege. The complaint should be reviewed carefully to determine if there are any potential legal issues or liability lurking.  If so, employers may want to consider having the investigation, at the outset, conducted at the request of an attorney, to try to protect the investigation to the fullest extent possible, as it may be difficult to assert the privilege later.  Regardless of whether or not it is conducted under privilege, however, I have found that every investigation should be conducted with the understanding that it might see the light of day, and the investigator should feel comfortable defending the investigation and its conduct.  
  6. Plan the Investigation.  Sloppy, haphazard investigations should be avoided.  The investigator should have a relatively clear grasp of the allegations, and should plan the investigation accordingly.  It is usually wise to start with the complainant, and delve further into the facts, including identification of documents and witnesses.  Witnesses should be prioritized, based on their level of involvement and claimed knowledge of the facts.   
  7. Obtain, Review and Preserve  all Relevant Documents. Investigators should make sure that they ask for, and obtain, any relevant or supporting documents, including handwritten notes, diaries, calendars, e-mails, expense reports, tape recordings and personnel documents.  It is always better to discover all facts during an investigation than to be surprised by additional evidence at litigation. It is also critical to preserve all documents and information, in the event of a litigation or the results of the investigation are questioned.
  8. Remind the Complainant and all Witnesses of the Non-Retaliation Policy.  The law generally prohibits retaliation against employees who complain of discrimination or harassment, or who participate in such complaints.  Prudent employers will likewise have a strong non-retaliation policy, stating that there will be no retaliation against anyone for raising a complaint in good faith.  At the beginning of the interview, complainants and witnesses should be re-assured that the company takes the non-retaliation policy seriously, and they should be encouraged at the end to let the investigator know if they believe, at any time, that they have suffered any retaliation.  Supervisors should likewise be reminded that the company will not tolerate any retaliation against the complainant or witness.
  9. Remind Employees of Confidentiality, and do not Promise Anonymity.  Complainants and witnesses should be reminded that, in order for the investigation to be conducted appropriately, everything must remain confidential; neither the complainant nor any witness (particularly the subject of the investigation) should tell anyone else what was said during the investigation, and they should certainly not ask anyone to corroborate or support them.  Complainants and witnesses should also be informed that, while the company will try to keep their identity anonymous (if they so choose), this cannot be guaranteed, as this information may be discernible or may need to be divulged in order for the investigation to proceed.
  10. Follow the Investigation Where It Leads, But Beware of Scope Creep.  During the course of an investigation, new facts and allegations may be discovered.  Employers ignore these at their peril.  Once an employer is put on notice of potential claims, it may not simply ignore them because they were not part of the initial complaint or investigation.  On the other hand, too often investigations are never completed because of investigation of tangential or unrelated issues.  If new, but unrelated issues need to be investigated, employers may want to consider instituting a second investigation. 
  11. Prepare a Written Investigation Report.  At the conclusion of the investigation, the investigator should prepare a written report, summarizing the allegations (including the date the complaint was raised), how the investigation was conducted, relevant policies and procedures, key factual findings, and a notation of inconsistent or conflicting information.  Employers should bear in mind that the written report, as well as all documents collected or created during the investigation, may be subject to discovery in the event of a lawsuit.  Accordingly, all documents and drafts should be maintained in accordance with the employer’s record retention policies.
  12. Keep the Complainant Informed.  The complainant should be kept informed of the progress during the course of the investigation, should be notified shortly before the investigation is concluded (and asked if there are any additional facts that they wish to bring forward) and then again at its conclusion to let him or her know that the investigation is concluded and that appropriate action will be taken.  Depending on the specific facts, the company may want to give the complainant more or less details about the corrective action.
  13. Take Appropriate Corrective Action. Corrective action needed should be tailored to the specific situation, including a root cause analysis of the problem. Appropriate action can range from no action, to training, discipline (up to and including termination), and creation or revision of policies.
  14. Touch Base with the Complainant.  Depending on the situation and resolution, the employer might consider touching back periodically with the complainant, to make sure that there has been no retaliation and that the corrective action has been effective. 
  15. Track for Trends.  Companies should periodically track for trends, including trends concerning a department, a geographic location or type of issue.  If trends emerge, the employer should consider further corrective action, including additional training, monitoring or policy creation.

Employees Must Present Medical Evidence to Qualify for FMLA Leave

March 12th, 2010
Employers are frequently confronted with employees who call in sick immediately before a vacation or long weekend.    A recent Third Circuit Court of Appeals case provides some caution to both employers and employees in this situation when deciding whether the absence is protected by the federal Family and Medical Leave Act (FMLA).  Employees cannot simply claim, without a doctor’s note or other medical evidence, that they needed to miss work due to their illness or the illness of a family member.   An employer, on the other hand, should proceed with caution if an employee presents a doctor’s note, but claims that the illness lasted longer than the doctor anticipated. 
 
On March 11, 2010, the Third Circuit (which includes New Jersey) held that, if an employee misses work due to a claimed illness, he or she must present some credible medical evidence of incapacitation in order to qualify for FMLA protected leave.   More specifically, in Schaar v. Lehigh Valley Health Services, No. 09-1635 (3d Cir. Mar. 11, 2010), the employee received a doctor’s note, stating that she was unable to work for two days, Wednesday, September 21, and Thursday, September 22, 2005.  Plaintiff claimed that her illness continued over the next few days, and that she remained sick in bed over the weekend, and finally felt well enough to return to work on Tuesday, September 27.  Coincidentally, plaintiff has previously scheduled vacation on Friday, September 23 and Monday, September 26.  Upon her return to work, plaintiff told her supervisor that she had been sick all weekend, and couldn’t work on Monday due to her illness.  She did not, however, request FMLA leave, nor did she ask Lehigh Valley to convert her two paid vacation days into paid sick days.  Citing plaintiff’s failure to call in sick, and in light of previous progressive discipline for performance issues, Lehigh Valley terminated plaintiff’s employment.

Plaintiff then sued under the federal Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601 et seq.,which permits employees to take up to twelve weeks of leave every twelve months for, among other reasons, their own “serious health condition.”    The FMLA defines “serious health condition” as “an illness, injury, impairment, or physical or mental condition that involves . . . continuing treatment by a health care provider.” Id. § 2611(11).  Department of Labor regulations further define continuing treatment by a health care provider as a “period of incapacity . . . of more than three consecutive calendar days . . . that also involves . . . [t]reatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider.” 29 C.F.R. § 825.114(a) (2005).

The district court dismissed the complaint, holding that an employee must present a doctor’s note or other medical evidence of inability to work for at least three days, and the note in this case stated that she was ill for only two days. According to the lower, court, plaintiff’s lay opinion that she was unable to work did not create a genuine issue of material fact to prove that she was, in fact, entitled to FMLA’s protection.
 
 On appeal, the Third Circuit noted that some courts require medical opinion to establish that an employee had a serious health condition lasting more than three days, while other courts have allowed FMLA claims based solely on lay testimony by the employee.  The Third Circuit rejected both approaches, holding that some medical opinion is necessary:
 
 we do not find lay testimony, by itself, sufficient to create a genuine issue of material fact.  Some medical evidence is still necessary to show that the incapacitation was “due to” the serious health condition. 29 C.F.R. § 825.114. This does not place an undue burden on employees because they must present some medical evidence anyway to establish the inability to perform the functions of the position.  Id.  § 825.115. In contrast, allowing unsupported lay testimony would place too heavy a burden on employers to inquire into an employee’s eligibility for FMLA leave based solely on the employee’s self-diagnosed illness. For these reasons, we hold that an employee may satisfy her burden of proving three days of incapacitation through a combination of expert medical and lay testimony.
 
In other words, so long as there was some medical evidence that she was unable to work, plaintiff could supplement this opinion with her own testimony that the illness lasted longer than the doctor initially stated.
 
The Third Circuit further commented that it was not evaluating plaintiff’s credibility, implying that the plaintiff may have an uphill battle proving that she just happened to be too sick to work on those days that she had previously scheduled vacation.  Rather, the court simply noted that, accepting plaintiff’s testimony as true, there was a genuine issue of material fact as to whether she was too ill to work for three days.