Legal Briefings

In Hannah P. v. Coats, the Office of the Director of National Intelligence allowed an analyst to take four weeks of paid sick and personal leave for her depression without notifying her that she was entitled to up to 12 weeks of FMLA leave. The employee returned to work after four weeks and was found not qualified for a permanent position. The court found if the employee could convince a jury she would have structured her leave differently had she received an FMLA notice, then she could prevail at trial on her FMLA claim. The onus is on employers to notify employees when a leave of absence qualifies under FMLA. If an employer fails to notify the employee of FMLA designation, the employee can obtain relief under FMLA if they were prejudiced by the failure to designate. The Wage and Hour Division of the Department of Labor recently issued an opinion letter stating its view that employers may not delay designating paid leave as FMLA leave merely because they provide family and medical leave that is more generous than the FMLA. Hannah P. v. Coats, 916 F.3d 327 (4th Cir. 2019); FMLA2019-1-A.

IMPACT: To minimize liability, employers should notify their employees of their FMLA rights whenever an employee takes paid leave for an FMLA-qualifying purpose.

Dawn Suppo was a Costco Wholesale Corp. employee. A customer approached Suppo and asked her personal questions, including where she lived. A few days later, the same customer asked Suppo more questions. In another instance, Suppo noticed that the customer was in a disguise, and watching her from behind an aisle. Suppo complained to her supervisors, but to no avail. Suppo also asked for a closer parking spot in the Costco parking lot, which was denied. The customer encountered Suppo at least 20 more times over the next 13 months, in some instances attempting to touch Suppo, bumping his cart into her, and, in one instance, videotaping her. Suppo was forced to obtain a “no contact order” to restrain the customer. The stalking forced Suppo to take family medical leave to avoid continued encounters with the customer. Eventually, Costco terminated Suppo because her unpaid medical leave had expired. Suppo filed a hostile work environment charge with the EEOC under Title VII. After an investigation, the EEOC filed a lawsuit against Costco on behalf of Suppo. The case proceeded to a jury trial, and the jury ruled in favor of Suppo. On appeal, the U.S. Court of Appeals for the 7th Circuit held that the harassment Suppo faced was “severe and pervasive” under the law, given the significant amount of stalking that took place. The court affirmed the jury’s conclusion that there was a basis for employer liability because the employer’s response to Suppo’s predicament was “unreasonably weak.” EEOC v. Costco Wholesale Corp., 903 F.3d 618 (7th Cir. 2018).

IMPACT: Employers should be aware that a hostile work environment can be created by unreasonable behavior on the part of a company’s customers. In the case of stalking, employers should attempt to provide solutions to employees to avoid the stalking and cooperate with police where necessary.

Rachel L. Schaller and Daniel Saeedi are attorneys at Taft Stettinius & Hollister LLP. To comment, email