11-27-2019
A federal district court has ruled that an employee’s unusual behavior may be considered constructive notice, triggering the employer’s obligation to notify the employee of her Family and Medical Leave Act (FMLA) rights.Noemi Valdivia was a secretary at Elk Grove High School. She claimed that her co-workers “regularly made derogatory remarks about Hispanic students and their families” to her. The comments included stating Hispanic people come to America and want everything for free, and that she should not speak Spanish because she was in America. Valdivia is Hispanic and found the comments offensive. Valdivia complained to the school principal and assistant principal who told her that there was nothing that they could do because of the employees’ union. The working environment became too much for her, and she applied for a position at another school district. In this new school district, the associate principal made a negative comment about Mexicans after which Validiva became “extremely distraught and began crying regularly and uncontrollably at work.” She told the principal that she was overwhelmed, afraid, and unsure if she could work. She provided similar information to the school counselor and another employee. She was told that she had to decide whether to resign her employment. She went back and forth with the administration, crying “uncontrollably” to them, and they continued to press her to make a decision. Valdivia resigned.
Allegations that the school failed to provide with her notice that she had the right to take FMLA leave, instead choosing to pressure her to resign, were found to be a plausible violation of the statute by the court. While the school district tried to argue that she did not provide sufficient notice of her possible condition, the court rejected that assertion finding she may not even have known that she was suffering from a serious medical condition and “clear abnormalities in the employee’s behavior may constitute constructive notice of serious health condition” to the employer. The court noted that employees with mental health issues may be excused from giving direct notice because the medical condition may prevent communication about the nature of the illness.