This one is no laughing matter.  Actually, it’s downright sad.

A few years ago, I reported on an employee at an Illinois school who was able to raise an FMLA claim when her supervisor ignored her many pleas for help as she struggled with mental health issues.

Fast forward a few years: a jury recently awarded this employee back pay and other damages as well as attorney’s fees. When all is said and done, the employer’s failure to act within the law will cost half-a-million dollars of taxpayer money.

Here is the story and my suggestions to avoid this kind of madness in your workplace.

Let Me Remind You of the Facts

Noemi Valdivia worked as a longtime executive assistant for Township High School District 214, a suburban high school district northwest of Chicago.  During six years of work, Noemi received excellent performance evaluations. Her supervisors described her as “extremely dependable” and an “invaluable resource,” and commented that her work was “immaculate” and “free from error.” The District later promoted Noemi to a similar position at a different high school within the District, reporting to Principal Angela Sisi.

Shortly thereafter, Noemi’s mental state began to deteriorate—she experienced insomnia, weight loss, uncontrollable crying, an inability to concentrate and exhaustion. On several occasions, she arrived late to work because she lacked energy, and left early because she could not control her crying. Noemi met with Sisi to discuss her emotional state, at which time she indicated that she felt overwhelmed and was having difficulty accepting new assignments because of her current state.  She described in detail what was happening to her, telling Sisi:

I’m so confused. I’m not eating. I’m not sleeping. I’ve been losing weight. I’m so overwhelmed. I don’t understand what’s happening to me.

Noemi had multiple conversations with Sisi describing in detail what she was experiencing. In one of these meetings, Noemi asked Sisi for a 10-month position as opposed to her current 12-month position, thinking that some time away from work might help. She also made clear that she was contemplating quitting her job for medical reasons and taking an offer of employment elsewhere.

Noemi testified that, in response to her pleas, Sisi told her that she needed to decide whether she was “staying or leaving.” For reasons not entirely clear, Sisi denied Noemi’s request to change positions, and she offered no help to Noemi, ultimately prompting Noemi to resign and accept employment elsewhere. Noemi later sought to rescind her resignation and pled for her job back, but Sisi denied the request.

Ugh.

At trial, the jury awarded Noemi $12,000 in back pay and a similar amount in liquidated damages. The real blow to the school district, however, is its obligation to pay Noemi’s attorney fees totaling nearly $200,000. All in, this mess will cost the district more than $500,000 after it pays its own attorney’s fees and costs of an appeal. Valdivia v. Sch. Dist. 214 (pdf)

What an expensive lesson, huh?

Insights for Employers

At the end of every year, my friend and fellow employment blogger, Jon Hyman, solicits feedback on the “worst employer of the year,” and after a reader vote, he announces the winner.  For 2020, I might encourage Jon to add this employer to the list.

Think about everything that went wrong here. If you were the boss:

• Wouldn’t you have offered Noemi a leave of absence or an accommodation when she described her deteriorating mental health and told you she was so overwhelmed by work that she felt that she could not even accept any new assignments?
• If not, wouldn’t you have asked Noemi how you could help when she told you “I’m so confused. I’m not eating. I’m not sleeping. I’ve been losing weight. I’m so overwhelmed. I don’t understand what’s happening to me”?
• If not, wouldn’t you have tried to identify a 10-month position (which is awfully common at a public school) when it was clear Noemi was struggling with a full-time position?
• If not, wouldn’t you have asked “How can we modify your job duties in some manner to help you succeed?” instead of telling her that she needed to decide whether she was “staying or leaving”?
• If not, then wouldn’t you have tried to help in some way when Noemi cried uncontrollably on multiple occasions at work?

A “yes” to any one of these questions likely would have avoided a costly lawsuit.  Instead of providing (and documenting!) an accommodation — even a leave of absence — to help Noemi perform her job, the school district accepted her resignation instead.

What are the lessons here?

1. Train . . . train . . . and train some more. When you read a fact pattern like this one, you’re left with the conclusion that the employer has not trained its managers about their obligations under the FMLA and ADA. In ADA Training 101, you train a supervisor in this situation to engage the employee in a discussion about how we can help the employee perform her job. The school district would have been wise to spend a modest amount of money on FMLA and ADA training; instead, it found itself dealing out $500,000 in (presumably) taxpayer money to pay a judgment and attorney’s fees in an FMLA case.
2. At that training, be sure your managers understand the the importance of empathy when an employee is dealing with a mental health condition.  The far, far majority of our employees utilize FMLA leave appropriately and for real medical needs. This should be our frame of reference when we are faced with an employee’s request for medical leave or workplace accommodation. When you approach the situation with a level of sincerity rather than cynicism, you are more likely to be met with sincerity in return. To that end, let’s not assume without any basis in fact that our employee is trying to misuse their leave of absence. This is particularly true with an employee like Noemi, who had an excellent six-year track record leading up to the situation outlined above.
3. Where is HR? I suppose we again chalk this up to more FMLA/ADA training, but in scouring the court’s decision, I don’t find any hint of Human Resources’ involvement. When a supervisor faces a difficult situation like this one, it is critical that management partner with HR to ensure everyone is on the same page in terms of a response. Presumably, though not sure it worked here, HR would counsel a far more appropriate response to the employee. Managers, engage with your HR colleagues when you’re faced with this kind of situation.
4. FMLA Notice Doesn’t Always Come in Words. There are an increasing number of cases in which courts have found that changes in employees’ behavior might suggest that the employee is suffering from a serious health condition, and that the employer is obligated to treat the behavior as a request for FMLA leave. This case is a reminder that an employee is not required to use the letters F-M-L-A to request leave, and it underscores that the courts often expect an employer to give the employee the benefit of the doubt when it comes to a potential leave of absence under the FMLA. As a result, it is critical that employers identify all situations in which the employee may be suffering from a medical condition and proactively engage the employee in a discussion about what we can do to help.
5. Let Empathy be your guide. Where there are clear abnormalities in the employee’s behavior (particularly when the employee cries uncontrollably at work or resigns for medical reasons), it is critical that the employer explore whether it can provide assistance to the employee before hitting the termination button. When you communicate with an employee, use words that show that you’re on the same side as the employee. If leave is the only option, it’s far better to help them take the time they need to get better and then return to work. Let your communications reflect this sincerity and empathy. Instead of forcing the employee to choose between employment and resignation, an employer is best served by simply asking, “How can I help you?” These five simple, yet powerful words go a long way in ensuring the employee has the assistance they need. If they refuse this assistance after notice and fair warning, then and only then do we consider more drastic options.