State News : New Jersey

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New Jersey



Intermittent leave can be extremely difficult for employers.  One important point for employers to realize is that an employee on intermittent leave who comes to work in between flare-ups may be held to all customary performance standards.  The case ofParks v. UPS Supply Chain Solutions, Inc. 2014 U.S. DIST LEXIS 13538 (E.D. Kentucky 2014) illustrates this concept.

Gene Parks worked for UPS since 1999 as a material handler.  He drove a forklift, moved boxes, picked products and controlled inventory.  He began taking leave for medical reasons in 2003, and he conceded that UPS never interfered with his leave during his early years with the company.

In 2009, Parks was transferred to a new account.  Parks began experiencing severe neck pain and applied for up to 12 weeks of intermittent leave.  The company granted this request.  In May 2010 the company issued a verbal warning to Parks for failure to meet standard productivity goals in either replenishment or picking.  The company noted that Parks had a record of poor quality in receiving, but Parks attributed his errors to a medical condition that affected his ability to concentrate.  The HR Director advised Parks that his current FMLA paperwork only authorized intermittent leave and indicated that he could perform all essential job functions between flare-ups.  She also spoke to him about additional training opportunities which Parks declined.  Parks countered that he himself had asked his doctor not to label him as disabled because he feared losing his job.  The HR Director suggested that Parks should update his FMLA paperwork; otherwise he would be held accountable for production expectations.

A few days later Parks received a first written warning for poor quality in picking.  By late 2010 the write ups became more frequent.  Parks was written up numerous times for errors.  He would put cartons away but record an incorrect location in the computer system or fail to enter their location in the computer system, or put boxes away upside down.  Parks told his supervisors that his medical condition was impacting his performance.  His supervisors advised him again that FMLA only covers missed time, not performance at work.  They recommended again that if he could not do his job for medical reasons, he should update his FMLA paperwork.

Parks next was issued warnings for conduct and behavior violations.  Around this period of time, Parks began a course of physical therapy and cortisone injections, but this treatment was also ineffective.  His doctor told him that he would need surgery some time in the future. He submitted an new FMLA certification in January 2011 stating that he would need continuous leave for neck surgery in the near future.  No specific date was given until a medical appointment in May when Parks’s doctor advised that the surgery date would be June 16, 2011.  Parks claimed he told his supervisors about the scheduled surgery at the beginning of his shift the following week.  The company denied being told any specific surgery date. Rather, they knew only that surgery would take place in the future.

On the same date that Parks says he told the company about his need for surgery on June 16, 2011, his supervisor discovered that Parks had logged an incorrect location in the computer system for a container.  Under the company’s progressive discipline system, Parks was already on a final written warning status for performance and conduct.  The company met with Parks at the end of his shift and terminated his employment.  They offered him COBRA information but Parks threw away the COBRA packet because he felt COBRA was too expensive. Parks then sued under the FMLA for interference and retaliation.  

The court noted the timing issue in this case between Parks’ alleged discussion about his upcoming surgery and his termination.  It said that the close timing between Parks’s request for leave and his termination established a prima facie case of FMLA retaliation, shifting the burden to UPS to explain a non-discriminatory reason for its actions.  UPS produced detailed information regarding the poor performance of Parks in the months leading up to his discharge.  The Court was impressed with the company’s detailed documentation:

Defendant has produced thorough documentation of Plaintiff’s performance issues at UPS.  Plaintiff received multiple written warnings for his sub-par performance, all of which indicated that he could face termination if his work did not improve.  Despite this admonition, Plaintiff declined additional training opportunities.  Although Plaintiff’s errors became more frequent as his neck condition worsened, Lovelace, Valdez and Welch repeatedly told him that, while his FMLA paperwork authorized time off to cope with his condition, it did not excuse poor performance.  As long as Plaintiff chose to work, he would have to meet the standards expected of all employees.  If Plaintiff felt that he could not do so, then he needed to update his paperwork again.  Defendant has not only demonstrated that Plaintiff had consistent performance issues, it has shown that Plaintiff failed to heed warnings or take advantage of opportunities for improvement, knowing full well that termination could result from continued errors.  Therefore, the Court finds that Defendant has articulated a legitimate, non-discriminatory reason for terminating Plaintiff, thus shifting the burden back to Plaintiff.

The court granted summary judgment to UPS and dismissed Parks’s law suit.  One important concept which this case demonstrates is that the FMLA provides only for leave. It does not insulate an employee or an exempt an employee from meeting performance standards while at work.  The employer has a right to assume that if an employee on intermittent leave comes to work, he or she will be able to meet work requirements.  In this case, UPS did an extraordinary job in documenting each and every performance issue, and this excellent documentation was the chief reason that the company prevailed.



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