An employee who was terminated during their probationary period because they failed to report to work on time due to car failure did not violate the FMLA. "Car failure is not a serious health condition under the FMLA." Phillips v. Matthews, et. al., No. 4:06CV00925-WRS, 2007 U.S. Dist. LEXIS 91122 (E.D. Ark. Dec. 10, 2007).
In Sharer v. State of Oregon, No. 04-CV-1690-BR, 2007 U.S. Dist. LEXIS 24925 (D.Or. March 30, 2007), Sharer took leave due to stress caused by the arrest of her son. The employer repeatedly send her FMLA forms explaining that the reason for leave might be covered by the FMLA. Each time she received the FMLA forms Sharer responded that she was not requesting FMLA leave and that she would not be providing medical documentation. Sharer was terminated after she refused to return to work as directed. She sued, alleging that her discharge was in retaliation for asserting her rights under the FMLA. The Court disagreed.
The Defendant employer moved to dismiss the case, arguing that Sharer never availed herself of any protected rights under the FMLA and, in fact, explicitly refused to exercise her right to FMLA leave. The Court agreed, finding:
On this record, it is conclusively established that Sharer did not seek to enforce her rights under FMLA, and, in fact, she repeatedly refused to do so. As in Baily (v. Southwest Gas Co., 275 F.3d 1181 (9th Cir. 2002)), therefore, Sharer "may not argue [Defendants] interfered with the exercise of her rights by suggesting the FMLA might apply, providing however with information on it, and seeking a medical certification of her condition."
Comment: In Sharer and Baily, the employee refused to exercise their FMLA rights. Such refusal may allow an employee to save or stack FMLA leave on top of available paid or unpaid leave. However, the refusal to apply the FMLA to a given absence also exposes the employee to discipline for that absence. The mere fact that the employer was, in accordance with their FMLA responsibilities, alerting the employee of the potential availability of the protections of the FMLA will not be considered as evidence of FMLA interference or retaliation where the employee has unequivocally rejected application of the FMLA.
In Lewis v. School District #70, No. 05-CV-776-WDS, 2006 U.S. Dist. LEXIS 86032 (S.D.Ill. Nov. 28, 2006), Ms. Lewis alleged that the defendants discriminated against her by transferring her in retaliation for requesting and taking FMLA leave. The Court defined the issue as whether plaintiff's transfer from the bookkeeper position to the teacher's assistant position was motivated by an impermissible retaliatory or discriminatory animus. Absent direct evidence of discrimination, the court applied the burden shifting framework of McDonnell Douglas. Under that scheme to survive a motion for summary judgment, Plaintiff must establish that: (1) she engaged in protected conduct; (2) the defendant's took adverse action; and (3) there is a casual connection between plaintiff's exercising her FMLA rights and her transfer.
Here, the court found that Lewis met the first two elements of the prima facie case: she engaged in protected activity by taking intermittent FMLA leave and suffered an adverse action, her transfer to a lower paid position. The Court found that Lewis was unable to establish a casual connection between her exercise of FMLA rights and her transfer. The Court observed that a connection can "only be shown by a demonstration that defendants would not have transferred plaintiff to the teacher's assistance position but for her engaging in protected activity under the FMLA."
The Court noted that Lewis originally started taking intermittent FMLA leave in her position as bookkeeper. It was only when the superintendent and board of education determined that plaintiff was no longer performing her bookkeeping duties satisfactorily that it was decided she needed to be reassigned to another position. The record showed that plaintiff made the following errors before she was transferred:
The Court noted that the above-identified problems were not related to absenteeism. Plaintiff simply was no performing the bookkeeping function adequately even when she was at work. Because plaintiff could not demonstrate that defendants would not have transferred her to the teachers' assistant position but for her engaging in protected activity under the FMLA, the Court awarded summary judgment to the School dismissing the complaint.
Comment: The use of intermittent FMLA leave does not protected an employee from the consequences of their performance while working. If an employee fails to adequately perform their job they may be subject to adverse action just as if the employee had not taken FMLA leave. Note that the FMLA does not require an employer to reduce an employee's workload while the employee takes intermittent FMLA leave.
The decision is relevant to the anti-retaliaton provisions of all federal sector variants of the FMLA.
Plaintiff Jose Varela worked as one of three supervisors for Rock-Tenn in its Aurora paperboard manufacturing plant. He had been employed by the company since 1978. In early 2004, Rock-Tenn lost its two biggest customers as a result of a price increase for its laminated paperboard products. The losses caused a reduction of more than 50% in the volume of laminated products manufactured at the Aurora plant. Due to reduced production, the company elected to reduce the number of shifts at Aurora from three to two. The General Manager tasked the Human Resource Manager to determine which of the three supervisors he would recommend for retention. At about this time, the Aurora hourly bargaining unit employees went on strike. The supervisors, including the plaintiff, began performing bargaining unit work. During this time Varela notified his supervisors that he was feeling sick, but declined to take go home.
On June 15, 2004, Rock-Tenn announced that it was shutting down its Aurora laminating operations and leaving that business permanently. As a result, it reduced from two shifts to one shift. The General Manager asked that his Superintendent recommend one of the three supervisors to retain. The GM elected to retain a supervisor other than Varela on June 25, 2004. The strike continued until July 2, 2004. Most of the plant was closed through July 5, 2004. Varela entered the hospital on July 5, 2004, where he was diagnosed with pneumonia. He was told not to return to work until July 14, 2004. On his return he was notified that he had been laid off.
Plaintiff sued alleging that his layoff constituted illegal retaliation for his taking FMLA leave on July 5, 2004. The court disagreed. The record evidence, the court found, established that the decision to lay off Valera was made on July 25, 2004, two weeks before the Plaintiff's FMLA leave. The court referenced the Plaintiff's name on a dated excel spreadsheet listing employees who would be laid off. Because the layoff decision was made before Plaintiff's use of FMLA leave, the decision could not be in retaliation for that leave. Varela v. Rick-Tenn Co., No. 05 C 7067, 2006 U.S. Dist. LEXIS 80732 (N.D.Ill. Nov. 2, 2006).
Comment: The employer defeated the retaliation claim because the employee was unable to establish that his layoff was casually related to his exercise of FMLA rights. The date of the adverse decision, not when the employee first learned of the consequences of that decision, is controlling. Here, because the layoff decision was made before Varela took FMLA leave, the fact that he first learned that he was laid off several weeks later on his return from FMLA leave does not establish the requisite causation for purposes of proving retaliation. An employer cannot retaliate against the exercise of FMLA rights that has not yet happened.
In Anders v. Waste Management of Wisconsin, Inc., No. 05-3862, 2006 U.S.App. LEXIS 23184 (7th Cir. Sept. 12, 2006), plaintiff was a “roll-off” waste hauler employed at Waste Management’s Franklin, Wisconsin facility. As a roll-off driver, Anders had no pre-determined route. Each day when he reported to work to work he was handed a route slip that detailed his itinerary for the day. On November 12, 2002, he received a route slip when he reported to work. A co-worker told him that the stops on his route had been serviced the day before. If that were the case, Anders believed that his assigned route would not need to be serviced. Waste Management policy, however, stated that a driver should attend to his route even if it were serviced the day before. Believing that his route would not need to be serviced again, Anders decided to leave work. Claiming that he was feeling sick, i.e., sleepy, shaky, and experiencing headaches, he told a supervisor he was going home. After Anders left the facility a co-worker informed management that Anders had discussed “going to get” Regional Manager Drephal and Manager Koch, who worked at a different facility 30 miles away. The mangers were called and forewarned. Anders did not go home but drove the thirty miles to the other facility. While at the other facility Anders became violent in the company of other managers, punching his car with his fists, smashing his cellular phone, and charging at a supervisor. He was subsequently fired for this conduct. Anders sued alleging that Waste Management violated the FMLA by denying him leave on November 6. He claimed that he suffered from a panic anxiety, depression disorder. The court disagreed. The court found that Anders failed to notify Waste Management that he was applying for FMLA leave by merely indicating that he was “not feeling well.” The court also found that Anders behavior on November 12 did not demonstrated that his inability to perform the duties of his job was the result of a serious health condition. The court found that his termination was the result of his deliberate and aggressive act of driving 30 miles to confront his supervisor, not his request for leave or panic disorder that yielded his termination. The FMLA, the court concluded, was not intended to excuse violence in the workplace.
Comment: The FMLA does not protect employees who engage in conduct that would otherwise warrant disciplinary action absent the invocation of FMLA rights. Note that the court found that advising an employer that an employee is “not feeling well failed to provide adequate notice of the need for FMLA leave.
In McConnell v. Swifty Transportation, Inc., No. 05-4297, 2006 U.S.App. LEXIS 21900 (6th Cir. Aug. 23, 2006, McConnell worked as a gasoline truck driver for Swifty for sixteen years until her termination. In 2003, McConnell was diagnosed with acute stress disorder and major depression. He was prescribed an anti-depressant and placed on two weeks medical leave, which was subsequently extended for two months. McConnell applied for short-term disability benefits. His application was sent to Swifty’s disability benefits, provider, which partially denied the request based on insufficient medical documentation. During a conversation with a representative of Swifty’s disability benefits provider regarding the partial denial of benefits and the need for more medical documentation McConnell allegedly got mean and alleged stated that he wished his doctor would return him to work so that he could “personally come pay” the representative a visit. The representative took the comment as a threat and reported it to Swifty. Swifty terminated McConnell the next day. McConnell denied making the comment. McConnell sued alleging that Swifty retaliated against him for exercising his rights under the FMLA by terminating his employment. The court disagreed. The court found that Swifty had an “honest belief” that McConnell made the threatening comments for which he was fired. McConnell had argued that the short time frame in which Swifty determined to discharge him rendered its claimed “honest belief” unreasonable. To determine whether the employer had an honest belief in the proffered basis for the adverse action, the court considers whether the employer can establish its “reasonable relieance” on the particularized facts that were before it at the time the decision was made: The court continued:
In deciding whether an employer reasonably relied on the particularized facts then before it, we do not require that the decisional process used by the employer be optimal or that it left no stone unturned. Rather, the key inquiry is whether the employer made a reasonably informed and considered decision before taking an adverse action
Importantly, we must not second guess the business judgment of the employer, but simply evaluate whether the employer gave an honest explanation of its behavior.
Here, the court found that Swift honestly believed that McConnell threatened the disability benefits representative and that the decision to terminate him was reasonably informed and considered. The court found that the two-minute time line between the threat and termination decision did not render the decision invalid, particularly where Swifty had a supervisor call McConnell and confirm the threat before making the final decision.
Comment: The “honest belief” defense is frequently invoked by employers to justify the adverse action decision at issue. As demonstrated in McConnell, the standard for establishing the employer’s “honest belief” is quite low. The decision also demonstrates that the FMLA does not protect employees from the consequences of their conduct independent of their request for leave. As all federal sector FMLA variants prohibit retaliation, the honest belief defense should be available to all federal employers.
In Newton v. Suntrust Bank, No. 6:05-cv-604-Orl-18JGG, 2006 U.S. Dist. LEXIS 37051 (M.D.Fla. June 7, 2006), the court awarded summary judgment to the Bank dismissing the employee’s FMLA retaliation claim. In that case, the employee provided a medical certification from her physician covering certain dates. The employer told the employee that the certification was not sufficient and that she needed to submit a new certification. The employee claimed that she contacted her physician’s office whereupon someone told her that could change the Form herself and that the doctor would sign off on the changes. The employee made the changes by using whiteout over the original dates. She then submitted the altered from to the Bank without the doctor’s initials indicating his approval of the changes. Suspecting that the medical Form had been altered, the Bank met with the employee to discuss the form. The employee stated that her doctor’s office had made the changes to the Form. Prior to the meeting, the Bank had contacted the doctor’s office and was told that the office had not made the changes. The Bank terminated the employee because she failed to be honest in her responses to the Banks questions regarding the Form. The employee alleged that the Bank terminated her for exercising her rights under the FMLA. Even though the court found that the employee had engaged in protected activity (use of FMLA leave), it nevertheless concluded that the Bank did not fire her for exercising those rights, but because she failed to be honest with her supervisors regarding the alteration of the medical Form. The court dismissed as “mere speculation” the employee’s belief that she was discriminated against because she had requested FMLA leave.
Comment: The case serves as reminder that the exercise of FMLA rights does not insulate employees from unrelated discipline.
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