Dentons Digest
On May 14, 2024, in Perez v. Barrick Goldstrike Mines, a unanimous three-judge panel for the United States Court of Appeals for the Ninth Circuit affirmed the United States District Court of Nevada’s judgment in favor of the Defendant on the Plaintiff’s claim for violation of the Family Medical Leave Act (“FMLA”). As a matter of first impression, the Ninth Circuit held that the FMLA does not require an employer to present competing medical evidence before contesting the validity of an employee’s FMLA certification in subsequent litigation. The Ninth Circuit’s rationale joins the Second, Fourth, Sixth, and Eighth Circuits.
Case Background
Tomas Perez (“Perez”), a haul truck driver, sued his employer Barrick Goldstrike Mines, Inc., (“Barrick Goldstrike”) for, among other things, wrongful interference with his rights in violation of the FMLA. Id. at 2. Perez alleged that, while working, his truck collided with the wall of a mine resulting in serious injuries. Id. at 4. After the collision, an onsite medical technician examined Perez and found no internal or external injuries. Id. Perez’ physician also examined Perez and, based on Perez’ complaints, certified that Perez was to remain off work for five days. At a follow-up appointment, Perez claimed that he was still in pain and Perez’ physician certified that Perez should remain off work for eleven additional days. Id. Perez’ physician approved him to return to work eighteen days after the incident with no restrictions. Id. at 4-5.
While Perez was on leave, Barrick Goldstrike investigated the incident and found no physical evidence that Perez’ truck had collided with the side of the mine. Id. at 5. In addition, a Barrick Goldstrike employee reported that Perez was faking his injuries so that he could attend to his personal business. Id. In response, Barrick Goldstrike hired a private investigator to follow Perez and confirm whether he was fraudulently taking FMLA leave. Id. Over the course of three days, the investigator found that Perez was engaging in various activities without visible signs of difficulty or discomfort, including driving through town, gambling at a casino, and performing repair work on his rental property. Id. When Perez returned from leave, Barrick Goldstrike confronted Perez with the investigator’s findings and Perez had nothing to say in response. Id. Barrick Goldstrike concluded that Perez faked his injury and terminated his employment. Id.
Perez then filed suit and claimed, among other things, that Barrick Goldstrike interfered with his rights under the FMLA. Id. Barrick Goldstrike argued that it terminated Perez for failing to properly report his injury and lying about the existence and/or extent of his injury or accident. Id. at 5-6.
The case proceeded to a jury trial. Id. at 6. The district court instructed the jury to rely on the non-medical evidence, including the employee’s report that Perez faked his injuries and the private investigator’s findings. Id. The jury found that Perez failed to show by a preponderance of the evidence that he suffered a serious health condition that prevented him from performing his job or that he was terminated for seeking protected leave. Id.
Perez appealed to the United States Court of Appeals for the Ninth Circuit, and argued that the district court erred in its jury instructions and that the jury’s findings were unsupported. Id. at 7. Specifically, Perez argued that the district court should have instructed the jury that the only proper way for Barrick Goldstrike to challenge his physician’s certification would have been to obtain recertifications or subsequent opinions from additional medical experts. Id.
The Court of Appeals Ruling
The Ninth Circuit affirmed the district court’s judgment and found that the plain language of the FMLA provides an employer the option of requiring a second or third opinion and seeking recertification. Id. at 9. The Ninth Circuit joined the Second, Fourth, Sixth, and Eighth Circuits in holding that the FMLA does not require an employer to seek recertification or a second or third medical opinion before contesting the validity of an FMLA certification in subsequent litigation. Id. Therefore, the Ninth Circuit found that there was no prejudicial error in the district court’s jury instructions and the jury was permitted to consider the non-medical evidence that Goldmine Strikes designated at trial in support of its argument that Perez did not have a serious health condition within the meaning of the FMLA. Id.
Implications for Employers
The Ninth Circuit is the latest Circuit to specifically hold that employers are not required to recertify or present competing medical opinions when contesting an employee’s certification in subsequent litigation. Rather, as demonstrated in this case, the employer may rely on non-medical evidence (investigations and reports) to show that the employee did not suffer a serious health condition that prevented him/her from performing his/her job. The remaining circuits will likely follow suit and agree with this ruling.
