Short Clips: Recent FMLA, FLSA, and ADA Cases


In Breneisen v. Motorola, Inc. __F3rd__, 18 WH2d 113 (7th Cir. 2011) the plaintiff had asserted that his supervisor’s inappropriate conduct exacerbated his condition, making him unable to return to work.  He had alleged that this conduct was interference, but also a cause of his aggravated gastroesophogeal reflux condition.  The court disagreed, holding that the cause of an FMLA plaintiff’s condition is irrelevant.

 In Holder v Illinois Dept. of Corrections, __FSupp2nd__, 09 c 1082 (S.D. Ill. 2011), the court held that the employer was estopped from denying in court that the plaintiff had a serious health condition (and not eligible for FMLA leave) because it had granted his request for FMLA leave. 

 In Johnson v HIS Wrecker Service, Inc.__F3rd__, 17 WH2d__1623 (7th Cir 2011), the court reversed summary judgment for the employer, a towing company, which had asserted the motor carrier exemption in an overtime case.  This exemption requires a showing that the carrier had engaged in interstate commerce over-the-road for a “reasonable period of time”, and the court found that the corporate secretary had given a faulty affidavit in support of the motion.  There was insufficient evidence that the company had been running interstate trips for its drivers.  Minor involvement by the plaintiff in interstate trips failed to meet the burden imposed on the employer.  A driver under the exemption must be subject at any time to such hauls, and the affidavit’s averment that the driver “routinely” provided such services was ambiguous.

  Although one would think commuting is not a work activity embraced by the ADA, a federal court of appeals recently held that a New York City department might have a duty to accommodate an employee in her commute.  Nixon-Tinkelman v. N.Y. City Dep’t of Health and Mental Hygiene, __F3rd__, No. 10 c 3317 (2nd Cir. 2011).  The plaintiff, who was hearing impaired, had had cancer, and also had heart and asthma problems, had been reassigned from Queens to Manhattan for nine months.  The Second Circuit Court of Appeals held that the lower court erred in throwing out her case, overlooking various considerations, e.g., whether she could have been transferred her back to Queens, whether she could have been permitted to work at home, and whether she could have been provided a car or parking permit.

 Arguing that isolated bouts of depression did not bring the plaintiff within the protection of the disability laws, the employer in Kinney v. Century Services Corporation, __FSupp2d__, 10 C 787 (S.D. Ind. 2011).  The court denied this motion, reasoning that although before the ADAAA was signed into law sporadic instances of depression were not ADA-protected,  the amendments were being interpreted by other courts to include intermittent or episodic conditions, including for depression.   The court noted: “….although there is no dispute that Ms. Kinney's depression did not impact her work performance following her return to work,…. there is also no dispute that, before she was hospitalized, Ms. Kinney advised Ms. Ruckman that Ms. Kinney's doctor recommended hospitalization because the depression was severe enough that Ms. Kinney was suicidal. Regardless whether her depression impacted her work when inactive, there is no question that, by its very nature, inpatient treatment substantially impacts (in fact, precludes) work performance and limits major life activities. Given Ms. Kinney's debilitating symptoms when her depression was active, the Court finds that Ms. Kinney's depression at least raises a genuine issue of fact as to whether she is a qualified individual under the ADA.”