State News : New Jersey

Terrence Preddie was employed from 2010-20This 11 as a fifth-grade teacher at Columbus Signature-Codrea Elementary School in Indiana.  Dr. Diane Clancy assessed Preddie’s job performance in the first school term as effective in some areas and needing improvement in others.  One specific area where improvement was needed was in leaving organized lesson plans for substitute teachers.  Another concern was Preddie’s missing time from school in part to care for his son, who had Sickle Cell Disease. Preddie claimed that Clancy told him that he was missing too much time and asked whether there was anyone else who could pick up his son from the hospital or care for his son.

During the 2010-2011 school year, Preddie recorded 23 days of absence, five of which were for “family illness,” and seven of which were for “sick days.”  Two days were missed for his own problems with diabetes and six were missed for his own hypertension and kidney failure.  The Board recorded three of the absences as “personal days” and the other three as “leave without pay” because Preddie had already exhausted his allotment of paid sick days.

After Peddie used all his sick days, he spoke with Clancy who said that he could apply for leave under the FMLA but he would need to make a written application for that leave.  Preddie never requested leave under the FMLA.

At the time of Preddie’s second semester review, Preddie said that Clancy advised he could not take any more time off for his son because it was affecting his classroom.  On one occasion, Preddie called his wife to come down from Indianapolis to pick up their son since he was worried about his job. Preddie’s second semester review received lower grades as “needing improvement” in all categories.  Clancy recommended non-renewal of Preddie’s contract, and the Board followed that recommendation.

Preddie sued under the ADA and FMLA.  First he argued that the non-renewal violated his rights under the ADA.  The federal court and the Court of Appeals rejected this argument for two reasons.  The Court pointed out that attendance is an essential job function, and the ADA does not protect persons with erratic attendance.  Additionally, Preddie was not entitled to reasonable accommodation because his sporadic attendance rendered him not a qualified individual under the law.

On the FMLA issue, Preddie argued that the Board interfered with his rights. The Court of Appeals disagreed with the federal court, which had ruled for the Board.  The Court said that an individual need not mention rights under the FMLA or specifically ask for FMLA leave.  The burden is on the employer to provide information about the FMLA once the employee provides enough information that he or she needs FMLA qualifying leave.  The Court found sufficient evidence that Preddie had provided detailed information to the Board about his son’s Sickle Cell Disease and his need to care for him.  That information should have caused the Board to provide Preddie with FMLA paperwork.

Of extreme importance was the Court’s comment that the Board may have used protected leave under the FMLA as a negative factor in evaluating Preddie’s performance.  The conversation about Preddie’s need to spend less time caring for his son, if believed by a jury, could be sufficient for Preddie to establish interference with his rights under the FMLA.  An employer cannot discourage an employee from using federally protected FMLA rights.  The Court therefore permitted Preddie to bring his case before a jury on the FMLA interference issue.

Most employers know that they must provide information about the FMLA when an employee provides information that should lead the employer to realize FMLA rights have been triggered.  However, some employers continue to misunderstand the difference between the ADA and FMLA.  Under the ADA, the burden is on the employee to request an accommodation, but the employee under the FMLA does not have to specifically reference the FMLA.  If an employee has provided sufficient information to the employer that a leave may be needed for FMLA reasons, the employer must provide FMLA information.  This case can be found atPreddie v. Bartholomew Consol. Sch. Corp. 31 AD Cases 1761 (7^th Cir. 2015).

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.