Labor & Employment Law Daily Wrap Up, EMPLOYEE LEAVE—S.D. Ill.: Fired employee with vertigo advances FMLA interference claim, but retaliation claim tossed, (Feb 26, 2025)

By Marjorie Johnson, J.D.

His supervisor testified that he discharged him for violating work rules because the union had instructed him to “tighten up all restrictions and rules” with the water plant.

A city employee who periodically suffered from severe vertigo episodes and who was terminated from his job at a water plant ostensibly because he left work early due to an episode without notifying his supervisor or receiving approval, and also had initially refused to participate in OSHA-required SCBA mask testing, failed to defeat summary judgment on his FMLA retaliation claim since he did not present any evidence suggesting pretext. However, a federal court advanced his FMLA interference claim to trial since there was sufficient evidence that his vertigo constituted a chronic serious health condition and a triable issue existed as to whether the city had constructive knowledge of his need for intermittent FMLA leave (Hempen v. City of Nashville, No. 3:22-cv-03133-NJR (S.D. Ill. Feb. 24, 2025)).

Severe vertigo. The employee first began experiencing episodes of dizziness, nausea, and vertigo after he suffered a concussion in 2008. He saw multiple doctors for his symptoms and in 2010, went to the hospital. In 2013, a doctor diagnosed him with Benign Paroxysmal Positional Vertigo. Later that same year, a neurologist told him the only way to treat his vertigo was to stay in a dark room, cover his head, and remain motionless until the episode went away. His episodes lasted from a few hours up to a day and a half.

Episodes at work. On June 21, 2016, the city hired the employee as a utility worker at its water plant. Within six to eight months, he felt a vertigo episode coming on while at work. He called his supervisor and asked him to finish his shift so he could go home. His wife picked him up and apologized for his vomiting in the trash can and explained his vertigo diagnosis.

He also suffered a severe episode in 2019 while at a dinner event with his supervisor and the superintendent. He later explained to the superintendent that he had chronic positional vertigo and that after having seen many doctors, a neurosurgeon told him the vertigo would come and go and it was something he would have to deal with. The superintendent suggested that he see a doctor again.

In 2020, the employee left work at least three times because of vertigo. On November 19, he had a severe episode and sat in the break room for two hours before he felt he could go with his wife to their vehicle. The superintendent later told him he had heard about the incident and urged him to see a doctor. On November 25, his doctor referred him to a neurologist and otolaryngologist.

OSHA-mandated testing. On January 5, 2021, the employee and a coworker had a meeting with their supervisor (who had become superintendent) regarding OSHA-mandated testing of “SCBA” masks used in the event of a chlorine gas leak. The employee claimed he stated that he could not take the test because the mask would not fit around his glasses, and it would be ridiculous to even try. The coworker (the union steward) called the union and was told that the employee’s refusal to take the test would be insubordination, but he could not be terminated for failing it. The employee then said he would take the test but would fail it.

Unapproved absence. Two days later, on January 7, the employee woke up feeling woozy but went to work at 6:30 a.m. anyway. When his coworker arrived, he told him he was not feeling well and left work at 10:30 a.m. Shortly thereafter, the superintendent walked in and discovered he had left without notifying him or getting his approval.

Fired. On January 10, the city notified the employee he was being terminated because he left during his shift without notice to supervisory personnel, did not return that day, gave no reason for leaving, and never explained why he left. His termination letter also referenced his refusal to participate in the OSHA-required SCBA mask testing.

Serious medical condition. The court rejected the city’s contention that the employee’s FMLA interference claim failed since he could not show that he had a serious medical condition and thus was not entitled to covered leave. Though the city argued that there was no evidence that he was ever hospitalized for dizziness and vertigo or that he received continuing treatment by a healthcare provider, he presented sufficient evidence that his vertigo constituted a chronic serious health condition under the FMLA “[b]ased on the hundreds of pages of medical records submitted by [the employee] that span from 2010 to 2021 and his testimony regarding his periodic episodes of vertigo during which he is incapacitated.”

Constructive notice. The city also argued that his FMLA interference claim failed since he never provided notice of his intent to take leave. However, the court found that a triable issue existed as to whether it had constructive notice of his need for leave. The evidence showed the city knew about his medical condition within six to eight months after he started to work at the plant, when he had to leave work due to a severe episode, and that his supervisors were aware of future episodes that occurred. He also presented evidence that he and his wife discussed his medical condition with supervisors on several occasions, and that the supervisors responded by suggesting he see a doctor.

FMLA retaliation. However, the court tossed his FMLA retaliation claim since he failed to refute the city’s contention that he was fired because he expressed his refusal to participate in the SCBA testing and because he left work early without permission. Notably, the superintendent testified that, at the time, the union had instructed him to “tighten up all restrictions and rules” with the water plant, and that he therefore believed the employee’s termination was required based on his refusal to take the SCBA test and unapproved absence.

The record lacked any evidence that these reasons were pretextual, concluded the court. While the employee pointed to a coworker who had left work without permission and only received a warning, there was no union contract in place at that time. He also referenced a time when a coworker was allowed to use three sick days as vacation time even though he was not actually sick. But regardless of how the leave time was structured, the coworker received supervisor approval, and the employee did not.

The case is No. 3:22-cv-03133-NJR.

Judge: Rosenstengel, N.

Attorneys: Ferne P. Wolf (Sowers & Wolf) for Michael Hempen. Joseph A. Bleyer (Law Offices of Joseph A. Bleyer) for City of Nashville, Illinois.

Companies: City of Nashville, Illinois

Cases: EmployeeLeave Discrimination Discharge Retaliation PublicEmployees IllinoisNews