Is a Broken Little Toe a FMLA Serious Health Condition? Ask the Jury.

Darrell VanDeusen
Darrell VanDeusen
05/07/2021

An employer that fired a worker who broke his little toe and then did not come to work because, he claimed, he couldn’t get his work boots on will have to let a jury decide whether he had a serious health condition under the FMLA and whether, as a result, his termination was illegal interference with his FMLA rights.  Scholl v. Miami Valley Polishing, LLC, 2021 U.S. Dist. LEXIS 82946 (S.D. Ohio 2021).

The company, MVP, supplies polished aluminum components to the truck, automotive and travel trailer industries.  Scholl was a “polisher” there; his job required him to stand for significant periods of time and walk around the production floor to obtain materials and supplies.

MVP uses a point based attendance policy.  An employee who fails to call in or come to work in violation of the policy receives attendance points for each “no-call show and no-show.”  Too many points and employment is terminated.

On a Friday, while at home, Scholl hit his foot on a case of water bottles and fractured his fifth toe.  He was scheduled to work the 5:00 am shift the next day, so he called MVP’s main line at 4:30 a.m. and left a message that he thought he broke his toe and could not work. On his next scheduled workday – Monday – he was unable to get his work boot on his foot due to swelling. He called out again, stating his “toe was still messed up, swelling, bruised up.”  On Tuesday he called out again, stating that he could not work that day due to his broken toe.  He also made an  appointment with his health care provider (HCP) that day.

In deposition the HCP testified that she did not know what Scholl’s job was at MVP, but she did know that he said he could not get his work boot on his foot.  She gave Scholl a note excusing him from work for eight days, stating that he could return to work without restrictions at that time.  But Scholl claimed that even after eight days he could still not get his work boot on and took another two weeks off from work.  When he finally did get back to work, Scholl was told he was fired for collecting too many points under the attendance policy.

Scholl sued, claiming that MVP interfered with his FMLA rights.  MVP moved for summary judgment, arguing (in the court’s words) “that ‘a broken little toe’ is not a ‘serious health condition’ because (1) there ‘is no credible evidence’ that Scholl was incapacitated ‘for more than three consecutive calendar days;’ (2) the FMLA regulations for ‘continuing treatment’ are not met; and (3) there is no medical assessment that Scholl’s broken toe prevented him from working.” MVP also claimed Scholl did not give it sufficient notice that he might need FMLA leave and that it had an “honest belief” he should be fired.

The court denied MVP’s motion.  Considering the facts in the light most favorable to Scholl, the court found that there was indeed a question about whether Scholl’s broken toe was a serious health condition. He’d seen his HCP, gotten x-rays, and done other things consistent with the FMLA’s definition of serious health condition.  Moreover, given Scholl’s repeated calling out due to his toe pain, a question of fact existed as to whether he had indeed provided sufficient notice to implicate the FMLA. 

Finally, and perhaps most important here from a legal point of view, the court stressed that “the honest belief rule is not applicable to claims where the employer’s frame of mind is not at issue, FMLA interference claims for example.” (quoting Banks v. Bosch Rexroth Corp., 610 Fed. Appx. 519, 533 (6th Cir. 2015)).  Accordingly, said the court, “whether MVP had an honest belief that Plaintiff’s termination was proper is irrelevant in this case.”

And so, the case goes to the jury.  At trial, one can only hope no one raises a “wee, wee, wee, all the way home” argument.

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