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.