Was University Diversity Investigator ‘Operating on Fumes’ FMLA-Eligible?

What Do You Think?

It’s probably not much fun investigating sexual harassment at a university, or anywhere else, for that matter. The stress might even trigger mental health challenges -- as it apparently did in the case of an investigator for a university’s office of institutional equity. The question in that case was whether those challenges rendered the employee eligible for medical leave under the FMLA.

The employee investigated harassment, sexual misconduct, and retaliation claims on campus. On Feb. 16, 2023, she told her supervisor she was having mental health issues and planned on seeing her therapist. The next day, she said, she “broke down” during her therapy session. Her doctor later explained that the investigator was "operating on fumes" and was "not healthy.” The doctor wrote the following to the company:

"Please excuse [the investigator] during the time from 2/17/23 until further notice. She is currently in my care undergoing mental health evaluation."

On Feb. 21, 2023, the plaintiff requested FMLA leave, although she later said she had enough sick and vacation time to take the leave if it was denied. The university, however, granted her FMLA leave.

During leave, the investigator didn’t receive inpatient case. She continued with her daily activities, such as driving, caring for herself, leaving her house, socializing, and going on walks. She also acknowledged that before she went on leave, despite her mental health, she was still able to do her job.

The investigator returned from leave on May 2 and was terminated. She sued the university for FMLA interference. The university asked the court to dismiss the case, contending that the investigator was not entitled to leave.

The FMLA grants an eligible employee up to twelve weeks of annual unpaid leave for a serious health condition that prevents her from performing the functions of her job.

In the 5th Circuit (Texas, Louisiana, and Mississippi), a “serious health condition” means an illness, injury, impairment or physical condition that involves:

1. Inpatient care; or 
2. Continuing treatment by a health care provider.

Continuing treatment by a healthcare provider encompasses:

1. A period of incapacity of more than three consecutive days; 
2. Any period of incapacity due to pregnancy or prenatal care; or 
3. Any period of incapacity or treatment for such incapacity due to a chronic serious health condition.

Did the university interfere with investigator’s FMLA rights?

A. No. She was still able to work and engage in her daily routine

B. Yes. The university treated her as if she was eligible for FMLA by granting her leave request and she detrimentally relied on that behavior.

If you selected A, you agreed with the court in Holland v. Texas Christian Univ., No. 4:24-CV-00289-O (N.D. Tex. 04/03/25).

First, the court noted that the investigator did not have inpatient care for her mental health condition. 

Second, she could not establish that she was incapacitated. To do so, she would have to show that she was unable to work or perform regular daily activities due to a serious health condition or recovery from the condition. The investigator, to the contrary, said she was capable of working and continued to go about her usual daily activities.

The investigator merely pointed to the doctor’s statement that she was "operating on fumes" and was "not healthy.” She did not explain how either of those circumstances led to inpatient care or incapacity.

“Nor does Plaintiff identify caselaw demonstrating that ‘operating on fumes’ amounts to a serious health condition triggering protection under the FMLA,” the court wrote.

The court also rejected the investigator’s claim that she relied to her detriment on the university’s representations about her FMLA coverage. It pointed to her acknowledgement that even if the leave was denied, she had enough time off stored up to take leave.

Because the investigator was not entitled to FMLA leave, the university could not have interfered with her FMLA rights. The court dismissed the case.

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