The FMLA Blog

Termination Did Not Violate FMLA Where Employee Failed to Return to Work After Being Released by Doctor

The Fifth Circuit in Hart v. Comcast of Houston, LLC, No. 09-20238, 2009 U.S. App. LEXIS 22720 (5th Cir. Oct. 15, 2009) recently found that an employee who fails to return to work from FMLA as requested by his employer subsequent to being released by his physician to return to work fails to state an FMLA retaliation claim.  The post-release failure to return to work as requested by the employer, the court found, was a legitimate, non-discriminatory reason justifying the employee's removal independent of the taking of FMLA leave.   

Comment:  The FMLA does not grant employee's the absolute right to return to work from FMLA leave.  Rather, the right to return to work may be superceded where, as in Hart, the employee engages in unrelated conduct that is grounds for termination.  Employees who fail to return to work after their doctor has released them no longer have the FMLA right to return to work.  As such, they may be disciplined or terminated for failing to return to work as requested by the employer, subject, of course, to the anti-discrimination/retaliation protections of the FMLA.  An employee will not be able to demonstrate discriminatory animus where, as in Hart, the employer has a legitimate reason for terminating the employee.  

Threatening Termination for Any Leave After Expiration of FMLA Leave Interfered With Employee FMLA Rights

In response an employee's request for additional FMLA leave, the employer allegedly asked "Does this mean you're going to take another three months off?"  Plaintiff had a history of FMLA leave usage, including taking 3 months off in the preceding year following foot surgery.  The following day, the supervisor sent a letter to the employee stating:

Upon calculation of lost time due to FMLA, it has been determined that until September 28, 2006, you have five weeks of FMLA time left available to you per federal law guidelines.  Please be advised that any time taken beyond the five weeks of remaining leave between now and September 28, 2006 will result in the loss of benefits and termination of employment under the law.

The employee was terminated four days later, before she took any FMLA leave.  The employee sued alleging retaliation and interference with FMLA rights.  The employer moved for summary judgment arguing that the employee was terminated for a reason independent of the FMLA (bad attitude).

In denying summary judgment to the employer, the court noted the the supervisor's statement was susceptible to various interpretations depending on the tone it ws given, "from solicitous of Plaintiff's well-being, to merely information-seeking, to annoyed or resentful." Similarly, the court noted that the letter could be reasonably construed as simply informing Plaintiff of her remaining FMLA leave time, or as an expression of displeasure of her intent to request more FMLA leave.  For purposes of summary judgment, where all inferences favor the non-moving party, the court went with the latter interpretation.

The court opined that the combination of the supervisor's statement, the threatening letter, and the fact that the employee was terminated four days later before she could take any FMLA leave, suggested that the employer was displeased with the employee's request for additional FMLA leave.  The court noted that the FMLA prohibits an employer from interfering with or retaliating for an employee's attempt to exercise FMLA rights.

Almeida v. Althena Health Care Associates, Inc., No. 3:07cv517 (PCD), 2009 U.S. Dist. LEXIS 15103 (D. Conn. Feb. 26, 2009).

Comment:   A common misconception by employers is that FMLA protections end once the employee  uses up their 12-week entitlement.  The Almeida cases illustrates that this is simply not the case.  How an employer treats an employee's use of unprotected, non-FMLA leave may, in some circumstances, violate the FMLA.  This is particularly true where, as in Almeida, the employer threatens the employee with termination for the first absence after FMLA leave is exhausted, followed a few days later by terminating the employee anyway before any FMLA leave is used.

The denial of summary judgment does not mean that the employer will ultimately be found liable for violating the FMLA.  It does, however, make resolution of the claim, whether by settlement or trial, exponentially more expensive and time consuming.  This expense, moreover, may have been avoided had supervisors been properly trained about employee FMLA rights and protections.  As a free practice tip, putting your illegal threats in writing is something to be avoided.         

FMLA Does Not Support Retaliation Claim Based on Association with Employee Who Opposed Unlawful Practices

The Fifth Circuit in Elsensohn v. St. Tammany Parish Sheriff's Office, No. 07-30693, 2008 U.S. App. LEXIS 12209 (5th Cir. June 6, 2008) recently addressed whether an employee may sue his employer for retaliation in violation of the FMLA because of his association with his wife, who filed a lawsuit against the same employer alleging violations of the FMLA. 

Lawrence and Wendelle Elsensohn, husband and wife, were both employed by the defendant Sheriff's Office.  Wendelle sued the Sheriff's Office alleging violations of the FMLA.  Lawrence testified that at all times he attempted not to involve himself in his wife's claim except to provide moral support.  If the matter went to trial, however, Lawrence would testify as a witness, a fact known by his superiors in the Sheriff's Office.  

Mrs. Elsensohn settled her lawsuit in October 2004, and subsequently left the Sheriff's Office.  Lawrence remained, where he received excellent job reviews.  Beginning in January 2006, Lawrence applied for several promotions.  He was denied every promotion for which he applied.  He was subsequently told by his supervisor that he would not receive a promotion of any kind.  Lawrence sued after being transferred to a less desirable night shift.  He alleged FMLA interference and retaliation for association with his wife who had opposed Defendant's unlawful practices related to the FMLA.

The Fifth Circuit affirmed the determination of the district court that the FMLA does not permit a spouse to  bring a derivative FMLA claim based solely on the protected activity of the other spouse.  In so finding, the Fifth Circuit noted a split in the courts on this issue involving Title VII, the ADEA, and the ADA.  The Court elected to follow precedent in an ADEA case, where it declined to broaden the anti-retaliation provisions of that statute to permit an employee who has not engaged in protected activity to maintain a retaliation claim based solely on their association with an employee who has engaged in protected activity.  In so finding, the Fifth Circuit noted that the anti-retaliation protections of the ADEA are greater than the protections afforded under the FMLA.  The Court also noted that the plain language of the FMLA does not recognize derivative retaliation claims. 

Comment:  To maintian an FMLA retaliation claim in the Fifth Circuit an employee must actually engage in protected activity.  Protected activity covers any individual who was about to give or has given any information or testimony in any inquiry or proceeding relating to FMLA rights.  Absent engagement in protected activity, a familial or other relationship with another employee who has engaged in protected activity is not enough.    

Given the split in the circuits on this issue, whether an employee will be able to maintain a derivative FMLA retaliation claim may depend on the precedent in that circuit regarding the anti-retaliation provisions of other anti-discrimination statutes. 

Note that the Fifth Circuit also rejected the Elsensohn's claim that he engaged in protected activity because (1) he "was about to give information" in connection with an inquiry on his wife's FMLA case; and (2) but for the fact that his wife's claim settled, he was about to testify hin support of her claim.  The Court found that Mr. Elsensohn did not engage in protected activity, noting that he was never questioned by his employer regarding his wife's claim, he testified that at all times he kept his distance from his wife's claim, and that the alleged retaliatory conduct (the denial of promotions) occurred well after his wife's case had settled.    

The Fifth Circuit covers Texas, Lousiana, and Mississippi.   

Grant of Leave Was Illusory Where Employee Was Required to Perform Full Duties While on Intermittent FMLA Leave

In reversing the award of summary judgment to the employer, the Seventh Circuit in Lewis v. School District #70, No. 06-4435, 2008 U.S. App. LEXIS 8248 (7th Cir. April 17, 2008) cited as evidence of retaliation the School's expectation that Lewis complete all of the duties of her full-time bookkeeping position while she was working on a part-time basis while she used intermittent FMLA leave.  Because she did not meet that expectation, the School permanently removed her from her position.

The court found that a reasonable jury could find that the FMLA leave granted to Ms. Lewis was illusory. 

The School, the court noted, had numerous options consistent with the mandates of the FMLA that did not require Lewis to perform her full-time duties while working part-time.  The School could have: (1) shifted the work to other employees during the time Lewis was taking intermittent FMLA leave; (2) hired part-time help; or (3) transferred her to another position temporarily. 

By holding Lewis to the unrealistic expectation that she should accomplish satisfactorily all of her duties of the bookkeeper position during her period of FMLA-protected intermittent leave, a jury, the court concluded, could find that the School violated the FMLA when it decided to permanently remove her to another position.   

Comment:  An employee on intermittent FMLA leave is required to meet the reasonable expectations of his or her position while at work.  Unrealistic expectations of what an employee can accomplish during the intermittent or reduced leave schedule may be evidence of retaliation for exercising FMLA leave rights sufficient, at least, to defeat an employer's s motion for summary judgment.  Even if a jury ultimately decides in favor of the employer, the inability to secure summary judgment makes the case much more expensive for an employer. 

To ensure FMLA compliance, employers should set realistic performance expectations during an employee's use of FMLA leave on an intermittent or reduced leave schedule. 

   

"Cat's Paw" Exception Applies to FMLA Retaliation Claims

In Marzella v. Embarq Florida, Inc., No. 2:05-cv-591-FtM-29SPC. 2007 U.S. Dist. LEXIS 66652 (M.D. Fla. Sept. 10, 2007), the court applied the "cats paw" or "rubber stamp" exception to an FMLA retaliation case.  Generally, to prove retaliation an employee must establish a casual connection between the adverse action and the exercise of FMLA rights.  Courts have held that a casual relationship is not established where the decision maker lacked knowledge of the employee's protected activity.  The "cats paw" or "rubber stamp" exception allows an employee to establish a causal connection even though the decision maker was unaware of the employee's FMLA protected activity. 

Under the cat's paw" theory, causation may be established if the employee shows that the decision maker followed the biased recommendation of another without independently investigating the matter before agreeing to the adverse action.  In that case, the recommender is using the decision maker as a mere conduit, or "cat's paw" to give effect to the recommender's discriminatory animus.

The court sent on to find that the "cat's paw" theory of causation did not apply.  The court noted that the ultimate decision maker (1) was unaware of the employee's FMLA activity; (2) he reviewed the employee's entire disciplinary history; and (3) consulted with the legal department prior to making the decision to terminate Marzella.   

Comment: The applicability of the "cat's paw" theory to FMLA retaliation cases reinforces the need for decision makers to conduct an independent investigation of the facts and evaluation of the propriety of the penalty before imposing discipline recommended by others, particularly those who are directly involved with the dispute with the employee.  Ignorance of the employee's FMLA activity may not be a defense to a decision maker who simply rubber stamps the adverse action of others where those others had discriminatory motives.

Labor and employee advocates will want to closely scrutinize the independence and reasonableness of the investigation conducted by the purportedly unaware and neutral decision maker.  Factors for consideration include the source of the information relied on, the amount of time devoted to the independent investigation, whether witnesses were re-interviewed, and whether the decision maker consulted with counsel or other experts prior to making the adverse action decision at issue.

No Right to Recover Under Title VII, the ADA, or the ADEA for Adverse Actions Taken Against an Employee for Exercising FMLA Rights

In Reed v. Southwestern Bell, No. 4:07CV00525 RWS, 2007 U.S. Dist. LEXIS 33429 (E.D.Mo. May 7, 2007), the court dismissed the pro se plaintiff's Title VII, ADEA, and ADA retaliation claims because the were based on violation of the FMLA.  The employee did not assert violation of the FMLA as a cause of action.  The Court opined:

There is not right to recover under Title VII, the ADEA, or the ADA for adverse actions taken against an employee for exercising rights under the FMLA. Title VII only protects claimants who have suffered adverse employment action as a result of exercising their rights under Title VII, not the FMLA. ... The ADA similarly only protects claimants who have suffered adverse employment action as a result of exercising rights under the ADEA, not the FMLA. 

Comment:  Violation of the FMLA will not always support a claim under another federal anti-discrimination statute.  Of course, if an employer denies FMLA leave based on sex, age, race, national origin, or disability, the employee may be faced with a Title VII, ADEA, and/or ADA claim based on violation of the FMLA.  Retaliation claims are a bit different.  Generally, as suggested by the Court in Reed, retaliation claims are based on the exercise of rights guaranteed only by the particular statute being asserted, and not violations of some other statute.  The lesson is: plead your cases well.  

Employer Counterclaim Can Be Basis of FMLA Retaliation Claim

An FMLA retaliation claim can be based on an employer's counter-claim to an employee's FMLA lawsuit.  In McLaughlin v. Innovative Logistics Group, Inc., No. 05-72305, 2007 U.S. Dist. Lexis 22756 (E.D.Mich. March 29, 2007), the employee initially filed suit alleging interference with her FMLA rights.  In response, ILG filed a counter-claim against McLaughlin alleging breach of contract and fraud.  ILG subsequently dismissed the counterclaim.  McLaughlin moved for summary judgment alleging that ILG's filing of the counterclaim constituted retaliation in violation of the FMLA.   

The fraud counterclaim arose out of a wage garnishment action against McLaughlin that ILG paid on to the tune of $ 717.77.  As it turns out, the garnishment was fraudulent.  McLaughlin was an unwitting victim of an attorney's scheme to file multiple suits for garnishment for legal services that were never performed.  At the time, McLaughlin told ILG she did not owe the money and they should not pay.  ILG paid anyway.  The breach of contract counterclaim was base on poor work habits and excessive absences which alleged caused ILG to incur unspecified monetary damages.

McLaughlin argued that the filing of a frivolous or bad faith counter-claim to her FMLA lawsuit constitutes actionable retaliation in violation of the FMLA.  The Court agreed.  Relying on Rosania v. Taco Bell of America, Inc., 303 F.Supp. 2d 878 (N.D.Ohio 2004), the Court found that the anti-discrimination provisions are not limited to adverse employment actions.

Comment: The anti-retaliation provisions of the FMLA prohibit an employer from discriminating against an individual because that individual has "filed any charge, or has instituted or caused to be instituted any proceeding, under or related to" the FMLA. 

Employers sometimes file counter-claims against employees who have sued them.  Mainly this is done to gain leverage for purposes of settlement.  The lesson of McLaughlin is that the decision to take an aggressive posture with an employee who has filed suit by filing a counterclaim is not without considerable risk. 

Retalation Claim Not Available for Employee Who Creats a Fictional Reason for Taking Leave

Ashley McClain worked for McDonald's as a a first assistant manager of one of their restaurants.  In July 2004 she requested leave after discovering that her father hand cancer.  She was granted two weeks of unpaid FMLA leave.  On October 18 she informed her manager that her father was scheduled to undergo surgery for a stent operation in 11 days.  She asked for and took an indefinite period of leave.  From October 18 to October 29 McClain was out on leave.  She did not contact her employer during this time.  McClain failed to report to work for her next scheduled shift on October 29.  McDonald's initiated an investigation of her failure to report to work. During her investigatory interview McClain claimed that she did not report to work as she was caring for her father after surgery.  She refused, however, to put her explanation in writing.  She was told to go home and wait for further instructions.  Plaintiff subsequently showed up to work and refused to leave when asked.  McDonald's called the police.  McClain left the premises only when the police arrived.  After a second similar confrontation McClain was fired.

McClain sued alleging that she was terminated for her use of FMLA leave.  The court disagreed. 

To establish a prima facie case of retaliation under the FMLA a plaintiff must show that: (1) she engaged in a statutorily protected activity; (2) she suffered an adverse employment action; and (3) a casual connection exists between he adverse employment action and plaintiff's exercise of FMLA rights.  If plaintiff establishes a prima facie case for retaliation the burden shifts, and defendants must state a legitimate non-retaliatory reason for the adverse action.  Once defendants state a legitimate non-retaliatory reason for the adverse action, the burden sifts again, and plaintiff must demonstrate that defendants' proffered reason is a pretext for FMLA retaliation.  To show pretext, the plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherences, or contradictions in the employer's proffered legitimate reasons for its actions that a reasonable fact finder could rationally find them unworthy of credence. 

McDonald's moved for summary judgment on plaintiff's FMLA retaliation claim on two grounds: (1) plaintiff was not engaged in a statutorily protected activity; and (2) plaintiff could not show that defendants' non-retaliatory reason for the adverse employment action was pretextual.

McDonald's alleged that plaintiff cannot establish that she engaged in statutorily protected activity and, therefore, she could not establish a prima facie case of FMLA retaliation because the FMLA does not protected employees who create fictional reasons for taking leave.  McClain testified at her deposition that she was with her father on October 29 while he underwent a stent operation.  At trial McClain admitted that her father did not undergo a stent operation at any tine in October 2004, a fact confirmed by the testimony of her father.  McClain claimed that when she requested leave on October 18 she honestly believed that her father was to undergo surgery.  Significantly for the Court, McClain had no explanation why she did not call her manager at any time during her 10 day absence and tell him that her father had not undergone surgery.  In fact, on her return to work and at her subsequent deposition McClain lied and stated that she cared for her father after surgery.

On these facts, the court concluded that McClain had not engaged in a statutorily protected activity (attending her father's stent implementation and caring for him thereafter). 

The Court also concluded that, even if plaintiff engaged in statutorily protected activity, McDonald's was nevertheless entitled to summary judgment on plaintiff's FMLA retaliation claim because McClain had failed to establish that McDonald's reason for terminating her was pretextual.  McDonald's fired McClain for failing to report to work for several days, insubordination, repeated use of foul language, and destruction of company property as a result of two confrontations she had during the company's investigation of her absences. 

Comment:  FMLA leave secured by fraud is not protected.  Moreover, employee's have no greater employment rights because they use FMLA leave than if they did not exercise FMLA rights. Employees who lose their cool during a company investigation of the bona fides of their leave can be disciplined just as if the employee had never gone on FMLA leave and lost their cool.  Of course, employers must be careful not to subject employee's who have exercised FMLA rights to disparate treatment in terms of discipline for conduct compared to the discipline for similar conduct issued to employees who have not exercised FMLA rights.      

The decision is reported at McClain v. McDonald's Corp., No. 05-1117, 2007 U.S. Dist. LEXIS 5461 (E.D.Pa. Jan. 25, 2007).

History of Granting FMLA Leave Negated Finding of FMLA Retaliation

In Daughtery v. Mikart, Inc., No. 06-13016, 2006 U.S. App. LEXIS 31472 (11th Cir. Dec. 19, 2006), the employee alleged that he was terminated in retaliation for his use of FMLA leave. The employer alleged that it terminated Daugherty for submitted a falsified medical certification.

Absent direct evidence, to establish a prima facie case of retaliation, a plaintiff must show that: (1) he engaged in statutorily protected activity; (2) he experienced an adverse employment action; and (3) there is a casual connection between the protected activity and the adverse action. 

If the plaintiff makes out a prima facie case, then the burden shifts to the defendant to put forth a legitimate, non-retaliatory, reason for the challenged action. If the defendant puts forth such a reason, the plaintiff must show that he will be able to demonstrate at trial that the defendant's stated reason for the action is pretextual.  Pretext is only proven if it is shown both that the reason was false, and that discrimination was the real reason behind the challenged action.  The evidence must reveal such weaknesses, implausibilities, inconsistencies, incoherences or contradictions in the employer's proffered legitimate reason for its actions that a reasonable fact finder could find them unworthy of credence.

Here, the Court found that Daughtery failed to demonstrate that Mikart's stated reason for terminating him was pretextual.  Mikart's claimed that it terminated Daughtery for submitting a fraudulent medical certification in support of FMLA leave.  Daughtery pointed to the close temporal proximity to his exercise of FMLA rights and his termination.  Daughtery was terminated the day after he returned from FMLA leave.  He also pointed to hostility directed at him by Mikart management, who, Daugherty claimed, did not believe he was really suffering from a medical condition.  The Court disagreed.

The Court found that while close temporal proximity between Daughter's termination and his use of FMLA leave may be sufficient to show pretext, it did not in this case. The Court observed:

This is particularly true where, as here, the employer has a history of granting FMLA leave without penalizing its employees, including Daughtery.  Therefore, Daughtery needed to present other evidence supporting his claim that Mikart's stated reason for terminating him was pretextual.

The Court dismissed Daughter's proffer of the doctor's verification that it was his signature on the form noting that the issue was not whether it was the doctor's signature but whether the doctor's signed the particular form.  The Court observed that the "[t]he lines on the form did not match up and gave an appearance of having been altered.  The first two pages of the submitted form were original, but the last page, the page that contained the doctor's signature, was a copy."

The Court noted that Daughter was terminated after he returned to work from leave so that he could be afforded the opportunity to answer questions regarding the authenticity of the medical certificate.  This, the Court observed, supported Mikart's reason for terminating Daughtery.  The Court further observed that the hostility he experienced could have been caused by management's belief that Daughtery submitted a falsified form. 

Comment:  Close temporal proximity between an employee's exercise of FMLA rights and receipt of an adverse action can demonstrate pretext.  Where, however, there is other evidence that supports the employer's contention that it did not discriminate against the employee, courts want to see something more than close temporal proximity alone.  Here, one of the factors cited by the Court was evidence that the employer has a history of granting FMLA leave without penalizing employee's, including the plaintiff.  Employer's would be well advised to consider offering evidence that it has a history of granting FMLA leave to the aggrieved employees and others as part of its defense to a claim of FMLA retaliation.

The Eleventh Circuit covers Alabama, Georgia, and Florida.

Unprotected Leave Not A Basis for FMLA Retaliation Claim

In Sheville v. American West Airlines, Inc., No. CV05-02790-PHX-NVW, 2006 U.S. Dist. LEXIS 88058 (D.Az. Dec. 4, 2006), Sheville alleged that he was terminated for exercising his statutory right to take FMLA leave for personal medical reasons.  Sheville claimed that he took three months of FMLA-protected leave in the summer of 2000, shortly after being diagnosed with multiple sclerosis.  He was terminated four years later on December 1, 2004.  He took no FMLA leave for his medical condition between July 2000 and his termination.  Instead, Sheville used his annual allotment of paid sick days to schedule medical appointments. 

Generally, courts require a short period of time between an employee's exercise of FMLA rights and an adverse action to draw the inference that the adverse action was casually related to the exercise of FMLA rights.  The four year period normally is too long to establish the requisite casual connection.

To overcome the four-year argument, Sheville relied on a much shorter temporal gap of only four months.  He argued that he informed management of his deteriorating medical condition after returning from five days of paid, non-FMLA sick leave in August 2004.  He points to this as evidence that his termination four months later was due to his exercise of FMLA rights.  The Court disagreed.

The FMLA, the Court opined:

[R]equires Plaintiff to establish a casual connection between the taking of leave under the FMLA and the termination of employment. Yet Plaintiff's theory of causation is addressed to Plaintiff's unprotected activity- five paid non-FMLA sick days-- and his subsequent termination.  Plaintiff may not elide his burden production under the Family Medical Leave Act by focusing on irrelevant leave.

Comment:  To establish a wrongful discharge claim based on the use of FMLA leave an employee must initially establish that s/he took FMLA leave, they suffered an adverse action, and the adverse action was casually related to the use of FMLA leave.  Where the only evidence of casual connection is the time between the exercise of FMLA rights and the adverse action, the shorter the period of time the better.  anything more than six months will likely fail to establish the casual connection based on temporal proximity alone.

Here, the court is saying that the employee failed to establish that the adverse action was casually connected to the employee's exercise of FMLA rights because the employee was on non-FMLA leave.  Clearly, to have a viable FMLA retaliation claim the employee must have exercised some FMLA right.  That did not occur on Sheville.

Although the record is unclear, the court might not have adequately considered what Mr. Sheville was arguing.  it is well established that an employee may take FMLA leave concurrently with paid leave.  Therefore, the mere fact that Sheville was on paid sick leave is not necessarily dispositive of his claim that he attempted to asserted his FMLA rights on his return from five days of sick leave.  If his five days of sick leave were caused by his multiple sclerosis, either for treatment or due to incapacity, that condition could be a chronic or permanent serious health condition for which he would be entitled to leave.

Employees may also request FMLA leave after they have returned to work. Remember, employees are supposed to give notice of the need for leave in advance, if they have advance notice, for medical treatment.  If not,or if the leave was not foreseeable, an employee must provide notice of the need for leave as soon as practicable, which generally means within one or two business days of when the employee first learned of the need for leave.  Such notice might be after the fact (although waiting five days is generally too long before giving notice, absent unusual circumstances).  The employee also does not have to specifically identify the leave as FMLA qualifying.  In this case, where the employer knows that the employee has a qualifying serious health condition, the employee could satisfy the notice requirement by simply stating that he used leave due to his multiple sclerosis, which he apparently did.

My point (and I do have one) is that the Court may have been a bit too hard on Mr. Sheville.  The Court should have analyzed all of the facts to see if he was requesting FMLA leave on his return to work, and whether such a request was timely and adequate.  Employers should not simply conclude that because an employee was on paid leave that was not designated as FMLA leave beforehand that the employee cannot effectively assert a claim for FMLA leave on their return to work.