Karen Leal worked for BFT, Limited as a Call Center Trainer. Beginning in July 2008, BFT's President repeatedly questioned the newly appointed Call Center Manager of the necessity of the Trainer position. In August 2008, Leal notified the Call Center Manager that she was pregnant and would need FMLA leave sometime in the future. In January 2009, BFT laid off nine full-time employees due to the economic downturn. BFT notified the remaining employees that additional layoffs were not planned. Leave began her FMLA leave in February 2009, with a planned return date in April. In March 2009, BFT's President and the Call Center Manager determined that the Trainer position was no longer needed based on a decrease in the Call Center employees from 40 to 22. On March 27, 2009, BFT informed Leal of the decision, and offered her an 8-week severance package- the same package as had been offered to other employees whose jobs had been eliminated. Lead declined the severance package, and sued BFT alleging FMLA retaliation.
The Court applied the McDonnell Douglas burden-shifting scheme for retaliation claims. To establish a prima facie case, Leal had to show that: (1) she was protected under the FMLA; (2) she suffered an adverse employment action; and (3) the adverse decision was made because she took leave to which she was entitled under the FMLA. Leal and BFT agreed that Lead satisfied the first two elements. With respect to the third, the Court determined that Leal's termination during FMLA leave satisfied the causal "temporal proximity" requirement and her protected activity to establish a prima facie cse.
The burden shifted to BFT to articulate a nonretaliatory reason for its employment decision. BFT asserted that it eliminated the Trainer position because: (1) the decreased need for training due to the halving of the Call Center staff; (2) the absence of evidence establishing that training increased sales; and (3) that discussions had been in the works for some time questioning the continuing need for the position. The Court determined that BFT established a legitimate non-discriminatory reason for its decision.
The burden of proof shifted back to Lead to proffer evidence that would permit a reasonable trier of fact to find that BFT's proffered reason was a pretext for retaliation for her exercise of FMLA leave. To accomplish that, Leal "must reveal a conflict in substantial evidence on the ultimate issue of retaliation in order to withstand a motion for summary judgment." Sherrod v. Am. Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998).
To satisfy her burden, Leal argued that the temporal proximity between her FMLA leave and BFT's adverse employment action demonstrates its discriminatory intent. The Court found Leal's argument insufficient to create a genuine issue of material fact regarding whether or not BFT's asserted reason for eliminating the Trainer position was a pretext for retaliation for exercising her right to take FMLA leave. With respect to temporal proximity, the Court noted that BFT's president and the Call Center Manager had already been discussing BFT's continued need for a Trainer. The fact that BFT was considering the elimination of the job prior to Leal's exercise of FMLA rights, the Court found, undermines Leal's temporal proximity argument.
Comment: Courts have regularly found in favor of employers where the alleged retaliatory adverse action was in the pipeline prior to the exercise of FMLA rights. What attracted me about the Leal case is the weakness of the pre-leave pipeline evidence. The evidence that the Company was discussing the elimination of the position consists of an indeterminate number of unanswered queries by the BFT president to the new Call Center Manager. The Court noted that no firm recommendation or decision had been made on the issue before Leal requested and took FMLA leave.
The Court, in my opinion, appears to set the pretext bar pretty darn high for an employee to defeat an employer's proffered non-discriminatory reason. To defeat temporal proximity, all the employer need show is that the issue was raised by a member of management at some point prior to the exerrcise of FMLA rights (in Leal, six months prior). The query need not have resulted in a recommended course of action, or final decision.
In the more typical case, the employer at least suspects that an employee has committed misconduct so that discipline is at least on the horizon prior to employee's request for or taking of FMLA leave. By comparison, Leal appears to suggest that the mere possibility that some action may be taken prior to an employee's exercise of FMLA rights is enough to negate the temporal proximity of the protected activity (e.g., taking FMLA leave) and the adverse action (severance).
Leal v. BFT, Limited Partnership, No. 10-20411 (5th Cir. April 28, 2011).