Tucker v. Legacy Health Services, No. 07-4393 (6th Cir. Sept. 1, 2008)

By Paul Mollica

This case shows the turn that things have taken in federal court since the advent of Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007). Lesson:  Pure notice-pleading alone may not protect a plaintiff from being knocked off the tracks right from the start.

Tucker v. Legacy Health Services, No. 07-4393 (6th Cir. Sept. 1, 2008):  This issue in this FMLA case was whether the employer fired the employee despite her compliance with the employer’s written procedures for taking family leave.  According to the DOL regulations under this act, the employer has the burden of notifying employees of “any requirement for the employee to present a fitness-for-duty certificate to be restored to employment.” 29 C.F.R. § 825.301(b)(1)(v). “If an employer fails to provide notice in accordance with the provisions of this section, the employer may not take action against an employee for failure to comply with any provision required to be set forth in the notice.” 29 C.F.R. § 825.301(f).

The employee was fired — according to her complant — for job-abandonment, supposedly for not returning to work on January 17, 2007 with a witness-for-duty certificate. ” Her central allegation was that “[i]n accordance with defendant’s policies and procedures, and as plaintiff understood them, plaintiff was required to obtain a fitness-for-duty certificate prior to returning to work from her medical leave demonstrating that she was physically able to perform the essential functions of her position” [emphasis added].  But in its answer, the employer attached its published employee policies, which (according to the opinion) nowhere required that the employee furnish such a certificate.  Her failure to return to work on her designated date, with or without a certificate, was deemed a job-abandonment. 

[Even without the benefit of a full record, my experience tells me that there must have been some bad history between the parties before January 17, 2007, as it is either pointlessly cruel or retaliatory for an employer to carve a skilled employee â€” here, a state-tested nursing aide — off the payroll solely over such a simple misunderstanding.]

The district court held, and the Sixth Circuit affirmed, that the employee’s unspecific averment of a “policy or practice” could not survive a judgment on the pleadings in the face of the employer’s specific written policies, which were directly contrary: 

“Tucker’s Amended Complaint does not allege adequately the existence of a policy requiring Parkside employees to present a fitness-for-duty certificate before returning from FMLA leave, so as to trigger the protection of 29 C.F.R. § 825.301(f). She neither alleges that defendants actually required her to present such a certificate nor that defendants’ policies and procedures included such a requirement. Plaintiff only vaguely refers to defendant’s ‘policies and procedures’ in her Amended Complaint, without further identification of a policy or its source. While she avers, in Paragraph 10 of the Amended Complaint, a subjective understanding that Parkside had a fitness-for-duty certification requirement, the district court correctly observed that under 29 C.F.R. § 825.301(b), the notice requirement is founded upon an actual policy requiring a fitness-for-duty certificate, not a policy that was merely understood to have such a requirement. Moreover, Tucker fails to allege that she was terminated for failing to present such a certificate. Plaintiff’s obtuse allegations indicate, at most, that she failed to show up for work on her scheduled return date and was therefore ‘unlawfully terminated . . . from her employment for alleged job abandonment.’ (Amended Complaint, ¶ 12). Accepting as true these inconsistent and confusing allegations contained in the Amended Complaint, the district court properly determined that Tucker had not adequately pleaded a violation of the FMLA notice requirements, as set forth in § 825.301, that deprived her of entitlement to job reinstatement following her FMLA leave.”

The plaintiff’s counsel also did not take steps — in the face of clear warnings of imminent dismissal — to amend the complaint to correct this deficiency:  “Here, Tucker never sought leave to amend or submitted proposed new allegations, despite being on clear notice that the sufficiency of her pleadings were being challenged by the filing of defendants’ Rule 12(c) motion. Even after the magistrate judge rendered his Report and Recommendation advising that defendants’ motion should be granted and suggesting that amendment of the complaint be allowed – thereby providing Tucker with an explicit prompt to do so – Tucker still failed to proffer a motion or proposed amendments.”  Now perhaps there was nothing left to say after the defendant filed its answer. But if the plaintiff had any facts showing that the consistent, if unwritten policy at the workplace was to require a fitness-for-duty certificate, we now know (in hindsight) that it had to be in the complaint.