Alaska Court Finds Domestic Violence Victim Incapacitated Enough for Leave Eligibility

An Anchorage, Alaska, police officer who fled the state after allegedly experiencing domestic violence put the department on notice that she wanted Family and Medical Leave Act leave by saying she wanted to "get her life back together" and cope with her pregnancy and emotional abuse related to the domestic violence, the Alaska Supreme Court ruled Nov. 12 (Anchorage v. Gregg, Alaska, No. S-10722, 11/12/04 ).

Upholding a jury verdict in favor of Theresa Gregg, Alaska's highest court ruled the city was aware that Gregg qualified for FMLA leave and therefore its failure to provide the necessary leave after Gregg fled the state to deal with injuries from a car accident, post-traumatic stress related to the domestic violence, and her pregnancy was an FMLA violation.

In affirming the lower court, the state supreme court found that a diagnosis of post-traumatic stress disorder combined with Gregg's pregnancy was the type of incapacitating health condition anticipated by the FMLA and therefore the city's insistence on a contemporaneous diagnosis was misplaced.

"When an employee is actually incapacitated by illness, the failure to get a correct diagnosis cannot disqualify an employee from the Act's protection," Justice Alexander O. Bryner wrote for the unanimous court. "To hold that a doctor must agree, contemporaneously and at all times, that the employee is unable to work, places a burden on the employee that we find nowhere in the plain text of the Act, and ignores the reality of debilitating illness."

While it may be preferable to have a diagnosis at the moment the leave is requested, the court said Gregg's employer was already aware of her car accident, the pregnancy, and the alleged abuse and therefore should have known that she was eligible for FMLA coverage. Failing to offer that protection, the court said, justified a trial court's verdict.

The court added that while the FMLA permits employers to demand a contemporaneous diagnosis at the time it grants FMLA leave, the city in this case never granted the leave and therefore should not have expected Gregg to provide a diagnosis in order to reject her.

Viewed Herself as Hostage

Gregg joined the police department in 1995 and had an excellent employment record until she was involved in a car accident in 1997. The accident, which occurred in January, came as Gregg was two-and-a-half months pregnant with the child of another Anchorage police officer, who is now Gregg's husband. At the time of the accident, she was married to Michael Wimer--an Army officer--but the child was not his.

While Gregg was on sick leave because of the accident, Wimer was arrested for threatening to kill Gregg's future husband. Gregg told the police that she felt she was in a hostage situation with Wimer and that he had been mentally abusive and extremely controlling. Gregg was released to go back to work, but she remained on sick leave.

While still on sick leave, Gregg chose to travel to Florida to "work things out" and spend time with her mother. This request was approved by department officials. Wimer soon followed her to Florida and then, after they agreed to attempt reconciliation, they moved to Virginia. In Virginia, Wimer again was involved in a confrontation with Gregg's future husband, who unsuccessfully attempted to convince Gregg to move back to Alaska.

In early March 1997, Gregg's leave status was changed from sick leave to annual leave because her supervisor learned she was medically released to go back to work. Gregg requested that she be placed on leave without pay status so she could focus on "her personal issues" but that she intended to return to work, but the department rejected that request.

The denial of leave without pay appeared to be in contrast with department policy, which required such requests to be in writing. Gregg was not told that the request needed to be in writing or that she may be qualified for state and federal family leave, even though her supervisor knew the reason for her leave.

While still in Florida, her supervisor informed her that she needed to return to work in three days or she would be terminated for abandoning her position. Gregg asked for more time to "get her life together" and "deal with her pregnancy" and "deal with her injuries," but the request was again denied. Wimer ultimately faxed a copy of Gregg's signed resignation to the department, but when Gregg attempted to cancel her resignation, the request was refused.

Upon termination, she was informed she could be rehired but attempts to rejoin the force were thwarted because of a negative recommendation in her file. At a bench trial in 2001, Gregg--now divorced from Wimer--was awarded $628,706 for economic losses, but the court found liquidated damages unwarranted.

Supervisor Should Have Seen Incapacity

In affirming the decision--but remanding the calculation of interest and liquidated damages after a finding of lack of good faith--the court said that the fact Gregg was "retroactively" diagnosed with post-traumatic stress after her termination was no reason to reject the diagnosis.

"While courts have rejected retroactive diagnoses, it is generally for other evidentiary reasons, such as when the diagnosis was also speculative or given without actually examining the patient," Bryner said, adding that the city failed to identify cases showing retroactive medical diagnoses were a complete bar to establishing an FMLA claim.

In addition to the diagnosis, the court said Gregg's supervisor was aware of her condition and the multiple problems she was experiencing since the supervisor talked to her every week. The supervisor believed Gregg was so emotionally distraught that he even suggested that she may need a psychological evaluation before returning to work early in 1997.

"A reasonable person could conclude that Gregg was effectively unable to work because she fled the state to leave an abusive husband who followed her, and that she was unable to perform daily activities because she was held in a 'hostage situation,' where her behavior was dictated by the combination of fear for her children, a high level of emotional stress, her accident injuries, and her pregnancy," Bryner said.

In a footnote, the court said a victim of domestic violence is not automatically entitled to FMLA protection, but that a victim who meets the test for a serious health condition--as Gregg did--has the right to statutory leave.

Justices Warren W. Matthews, Robert L. Eastaugh, Dana Fabe, and Walter L. Carpeneti joined in the decision. Linda J. Johnson of the municipal attorney's office in Anchorage, Alaska, represented the city. Kenneth W. Legacki in Anchorage represented Gregg.