National Litigation Hotline

Plaintiff informed his employer in Spring 1998 that he suffered from gender dysphoria, and that he intended to undergo gender reassignment surgery in June. For 4 to 6 weeks before the surgery, plaintiff intended to live as a woman. Plaintiff resigned before the surgery, even after the employer expressed concern over his resignation, given that he had worked there for 13 years. The employer informed plaintiff that he was not entitled to severance pay. Because the departure was voluntary, but that he might be able to qualify for FMLA leave. However, to do so, the plaintiff would have to submit medical certification of the need for leave. Plaintiff declined to submit this certification, citing confidentiality concerns. The employer instead permitted the plaintiff to take 13 weeks of personal leave. Under this policy, the employer was not obligated to hold plaintiff's position open. After undergoing the surgery, the now-female plaintiff sought her previous job, which the employer had not held open. The employer rehired the plaintiff as a senior financial analyst, but terminated her in April 1999 for poor performance.

Plaintiff brought suit under the FMLA, and a jury found in favor of the employer. On appeal, the Eighth Circuit rejected plaintiff's argument that the employer violated the FMLA by awarding her personal leave. The court found that the facts of the case were clear that plaintiff did not pursue FMLA leave because of her confidentiality concerns. The fact that the employer suggested FMLA leave as a possible option for plaintiff did not vitiate plaintiff's express dismissal of that option, and did not obligate the employer to ignore her resignation. Further, the court stated that the grant of personal leave was not inconsistent with plaintiff's resignation. Finally, the court held that the employer had satisfied its notice obligations to the employee, given that it informed plaintiff of her rights, posted a notice of FMLA rights in its human resources offices, and had sent plaintiff a memorandum describing the FMLA's protections and her rights. Notably, the court did not address whether sexual reassignment surgery qualified as a serious health condition under the FMLA, as it was never raised as an issue.

Statute of Limitations Affects ERISA Claim

The Third Circuit has determined that current and former newspaper haulers are barred by the statute of limitations from claiming that Gannett Co. breached ERISA by improperly classifying them as independent contractors. Tinley v. Gannett Co., 2003 WL 68076 (3^rd Cir. Jan. 9).

In 1975, Gannett Co. established a retirement plan for its workers. He plan did not expressly include or exclude independent contractors. A year later, the plan was amended to specifically exclude independent contractors. In 1988, certain of Gannett Co.'s newspaper haulers issued a letter to Gannett claiming that they should be treated as employees rather than independent contractors, and cited as the basis for this argument a Third Circuit decision from 1971 holding that they were 'common law employees' under the NLRA. Gannett Co. responded by informing the newspaper haulers that it considered them to be independent contractors. In 1999, the newspaper haulers sued Gannett Co, claiming that it had breached its fiduciary duties under ERISA by considering them to be independent contractors. The district court dismissed the lawsuit as barred by the 3-year statute of limitations of ERISA ' 413.