National Alliance Magazine

LABOR RELATIONS

Court Finds Caesarean Is FMLA-Covered,
But Sustains Discharge on Other Grounds

A Caesarean delivery qualifies as a "serious health condition" under the Family and Medical Leave Act, a federal judge in Indianapolis has ruled, addressing the claim of a former U.S. Postal Service letter carrier who alleged that she unlawfully was denied leave to care for her 19-year-old daughter and newborn grandchild following the operation (Blackburn v. Potter, S.D. Ind., No. IP01-1645-C-B/S, 3/31/03).

Although acknowledging the employer's position that "courts typically do not consider pregnancy alone to be a serious medical condition," Judge Sarah Evans Barker of the U.S. District Court for the Southern District of Indiana found that a Caesarean delivery was different. "The case before us does not deal with the standard discomforts associated with pregnancy, but instead involves the incapacity associated with and immediately following a delivery, specifically a surgically facilitated delivery," she wrote.

Despite her finding on the FMLA coverage, however, Barker found that former employee Jeanne Blackburn failed to rebut the Postal Service's subsequent, nondiscriminatory reason for her discharge- that she had falsified FMLA documentation. Blackburn, who had a four-year history of absenteeism, "offered legally insufficient evidence to rebut USPS's noninvidious justification" for the termination, the court said.

Pattern of Absences. Blackburn was a full-time letter carrier and intermittently served as acting postmaster in the Frankfort, IN post office. Beginning in May 1995 and over the course of the next three years, she was issued several warning letters regarding unsatisfactory attendance. Following the last letter, in August 1998, "Blackburn understood….that there were problems with her attendance and that she was expected to improve," the court recounted. Nonetheless, on Jan. 19, 1999, she was suspended for seven days, because of a continued pattern of unexcused absences.

The following October, Blackburn learned that her 19-year-old daughter would be delivering her second child by Caesarean section Nov. 9. On Nov. 2, the daughter's physician wrote to the post office, requesting two weeks of FMLA leave for Blackburn "to assist her daughter who is having a C-section… She will be helping her daughter at home to help care for the children." Blackburn also completed a generic request for 80 hours of FMLA leave.

The following day, when Blackburn was attending her daughter's surgery, a supervisor told her that the circumstances surrounding her absence did not qualify for FMLA leave and that her absence would be considered unauthorized. Blackburn returned to work the following day and submitted a certificate, signed by her daughter's physician, supporting the absence. The Postal Service denied the leave again and also investigated inconsistencies in the form- including a penciled signature by the physician. Although the physician denied signing the form, Blackburn maintained that she had not forged the signature, but instead had given it to a student nurse.

The Postal Service attempted to discharge her on the basis of unsatisfactory attendance, including two days of disputed FMLA leave, but an arbitrator reinstated her. After she subsequently was terminated for submitting a false document, however, the arbitrator sustained the termination. Blackburn filed an internal EEO complaint and then sued the Postal Service under the FMLA based on the denial of leave and the subsequent termination. The agency moved for summary judgment.

Caesareans Covered by FMLA. The court rejected the employer's argument that Caesarean deliveries were not a "serious medical condition" under the FMLA, but, nonetheless, found that Blackburn failed to rebut USPS's "noninvidious justification" for the discharge.

Under the FMLA, a serious medical condition is defined, in part, as one involving "continuing treatment by a health care provider," including treatment for "any period of incapacity due to pregnancy or for prenatal care."

The contention of USPA- that courts "typically do not consider pregnancy alone to be a serious medical condition"- had no impact on the "incapacity associated with and immediately following a delivery, specifically a surgically-facilitated delivery," the court said, in denying the employer's summary judgment motion on the FMLA entitlement claim.

However, the court rejected Blackburn's argument that USPS interfered with her entitlement to FMLA leave by terminating her for requesting the time off to assist with her daughter's recovery from surgery. Blackburn claimed that she was wrongfully terminated for requesting leave, "even though she was performing her duties in a satisfactory manner," while the employer maintained that she was terminated for legitimate, nondiscriminatory reasons- first for a history of unexcused absences, and later because of the falsification of documents.

The court found that Blackburn "offered legally insufficient evidence" to rebut those reasons. Blackburn "simply repeats" the reasons she gave during the course of the internal investigation, the court said, and "does not squarely contest or offer evidence from which a reasonable jury could conclude that the allegations of submitting false documents were merely a pretextual justification for her termination or that [USPS managers] did not honestly rely on the results" of the investigation in recommending her termination.

**Originally printed in the Government Employee Relations Report**

Editor: Jacquelyn C. Moore

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