United States Court of Appeals for the Third Circuit Rules in Favor of Nursing Home on Judicial Estoppel Argument in FMLA case

In an opinion filed March 29, 2012 the Third Circuit found that judicial estoppel was invoked where the Plaintiff indicated to the disability carrier that he was unable to perform the essential functions of his job in an effort to collect benefits while at the same time arguing to the employer and subsequently to the Court that he was fit to return from FMLA leave.   The Plaintiff filed for disability insurance while on FMLA leave, attempted to return from FMLA leave “with restrictions” but continued to collect disability benefits for two months following the expiration of his leave.   He subsequently claimed that he was denied reinstatement to the same or a comparable position when he showed up still not able to perform his job.

When the Plaintiff failed to return to work after the expiration of his leave, the Nursing Facility terminated him in accordance with their internal policies.   The Plaintiff showed up at work with a note indicating that he could not return to his job in a full time capacity until two months later.  When the employer indicated that he would not be reinstated, he contacted his physician for a release.   A new note was submitted indicating that he was able to return to his job “with restrictions”.     Based upon the type of position that the Plaintiff held, Maintenance Director, it was decided that he could not return to his position with restrictions as his responsibilities included lifting, pushing and pulling.  He was terminated that day.

The court used past precedent to require that the two conflicting positions of the Plaintiff be reconciled. The Plaintiff may not simply disavow a prior claim of total disability, perform an about face and assert that he is qualified.  He is required to proceed from a premise that his previous assertion of an inability to work was true.  

The Plaintiff argued that it was the Nursing Home that informed him that he was unable to do his job or return to work, yet the evidence showed that a statement was submitted by his physicians monthly on his behalf to the insurance carrier indicating that during the months after his FMLA, he was in fact not able to perform the material duties of his regular occupation. 

The Nursing Home was successful in defending itself against this claim under the Family Medical Leave Act.   Prepare your facility to defend itself against FMLA claims by implementing the necessary policies and procedures in accordance with the regulation, documenting all employee communications, tracking FMLA leave, following up with employees on leave and informing them of the consequences of not returning from leave.