Levoyer Wilson brought suit against his employer NHB Industries, Inc., for interfering with his rights under the Family and Medical Leave Act. To prove his claim at trial, Wilson had to prove that he suffered from a serious health condition within the meaning of the FMLA at the time of his absences from work, that he was an eligible employee, that he gave appropriate notice to NHB such that it should have made further inquiry to determine whether the absences were the result of a potentially qualifying FMLA reason, and that he was entitled to a benefit under the FMLA that NHB denied him.
In the closing argument, counsel for NHB argued that Wilson had failed to establish that he had a serious health condition because he failed to put on testimony from any medical provider, such as Dr. Hakim [plaintiff’s gastroenterologist] or any emergency room employee who could corroborate Wilson’s own testimony regarding his condition. NHB’s counsel again referenced Wilson’s failure to call any medical providers to testify when describing Wilson’s failure to meet his burden on the notice element, stating that Wilson was the only witness on his side of the ledger and that he could have potentially called a medical provider.
In rebuttal, Wilson’s counsel argued, “Mr. Romaniuk [counsel for NHB] tells you that we haven’t heard from any doctors. No doctors have been put on here. Ask yourself, what did NHB do to find out what was going on with his condition? The law doesn’t require Mr. Wilson to go in the first sign that he needs leave and carry his whole medical file with him. As the judge told you, he just has to give them enough notice based on all of the information previously available to them for them to wonder[,] does the absence relate to this health condition. And if it does, then the burden shifts to NHB. NHB never tried to call Dr. Hakim to see what was going on to see what they could do.
NHB’s counsel objected to this last statement. The judge summarily overruled the objection and Wilson’s counsel continued: And you even heard me ask [NHB] witnesses on the stand, what did you do to follow up with his doctor? Nothing.
The 11th Circuit court of appeals found that the district judge abused her discretion in failing to sustain NHB’s objection and give a curative instruction. Wilson’s counsel’s comments, offered during rebuttal when NHB had no further opportunity to speak to the jury, went directly to elements of Wilson’s claim that were at issue in this case and contended that NHB should have taken action that in fact would have been prohibited under the FMLA and other laws. (an employer may not request additional information from the employee’s health care provider to verify adequacy of medical certification).
Wilson v. NHB Industries, Inc. (CA 11 2007)
