The FMLA Blog

FMLA Leave Request Does Not Insulate Employee From Unrelated Discipline

Howard Gipson was employed as a plaint maintenance worker for Vought Aircraft Industries.  He also served as the local union president.  In late 2004, Gibson underwent triple-bypass heart surgery.  He ws granted FMLA leave for the surgery.  In October 2005, Gipson was removed as the local union president.  Incident to that removal, his successor removed Gipson's personal effects from the union office and placed them in an adjacent lobby with instructions for Gipson to collect them. He did not.  His shift supervisor subsequently asked Gipson to remove his effects from the lobby.  Gipson did nothing.  His supervisor asked him a third time to remove his effects. Gipson replied that it was a union-related matter and that he would not comply without a written directive.  His supervisor next gave him a verbal directive to remove his effects, and warned Gipson that failure to do so could result in discipline up to and including discharge.  Gipson walked away.  He went and saw the company nurse.  She told him his blood pressure was slightly elevated.  Gipson returned to his station, and told his supervisor he wanted to go home because he was in pain and needed his medicine.  Gipson was asked one final time by the HR manager to retrieve his effects. Gipson declined stating that he had a very bad headache.  The company terminated Gipson on the spot for insubordination.  Gipson sued alleging that his termination was in retaliation for exercising his FMLA rights.  The Sixth Circuit disagreed.

The Court found that there was no a casual connection between is exercise of FMLA rights and his termination.  The court opined:

As we have stated, an employee may not insulate himself from a pending dismissal by opportunistically invoking the FMLA.

Here, Gipson, the court found, could not demonstrate that his employer would not have dismissed him regardless of his alleged request for FMLA leave.  The Court noted Gipson's admission that he flatly disobeyed the direct order of his supervisors, which "is indisputably grounds for termination."  The Court also cited the finding of the arbitrator that, in violation of a known work rule, Gipson failed to comply with his supervisor's three requests to move his effects, all of which were issued before Gipson had voiced his medical concerns to anyone.  While he was not terminated until after Gipson asked for a medical pass to leave for the day, he had been warned prior to his request that failure to obey a direct order to move his effects would result in discipline, including discharge.  According to the Court, "the wheels of termination had already been put into motion before Gipson requested leave."  A reasonable jury "could not conclude that it was Gipson's request for a medical pass, rather than Gipson's continuing insubordination, that provoked his firing."

Comment:   Invoking FMLA leave does not protect an employee from unrelated discipline that is already in the pipeline.  Note that the court considered the discipline to be in the pipeline even though formal discipline had not been proposed or issued.  Rather, the court focused on whether the discipline would have occurred regardless of the employee's request for FMLA leave.  In practice, the employer can demonstrate that it would have issued discipline notwithstanding the exercise of FMLA rights based on conduct that pre-dated the employee's invoking the need for FMLA leave.  

Of course, by opportunistically invoking the FMLA, Gipson forced his employer to to go through the great time and expense of litigating the case before both an arbitrator and through the courts.  Many employers would look to settle such a case.  While that might not guarantee that Gipson would return to his job, a settlement to avoid the substantial expense of litigation might have allowed Gipson to resign with a neutral recommendation, and with a few dollars in his pocket.   

The Sixth Circuit covers Tennessee, Kentucky, Ohio, and Michigan. 

Adverse References to FMLA Leave Usage Sufficient to Defeat Employer's Claim that it Terminated Employee for Performance Deficiences, Not Exercise of FMLA Rights

Dorthy Goelzer was a long term employee of Sheboygan County, Wisconsin, serving as the administrative assistant to the County Administrative Coordinator, Adam Payne.  She consistently received good performance evaluations.  In 2002 Goelzer began to have significant health issues necessitating the use of FMLA leave, which was approved.  All told she used 312 hours of sick leave in 2002, the equivalent of nearly 39 days.  In her 2002 performance review Payne noted that Goelzer "had" an excellent attendance record in the past, but that she used 39 days of sick leave in 2002.  Goelzer's health problems continued in 2003.  She used 176 hours of approved FMLA leave for additional surgery and doctors appointments throughout the year, a fact noted by Payne in her 2003 performance review.  This time, however, he did not award her a merit increase. In response to Goelzer's challenge to the decision, Payne referenced her use of nearly 113 days of sick leave and vacation during the past two years.  In 2004 she used 94 hours of sick leave.  She took approved intermittent FMLA leave in 2004 and 2005 to care for her mother.  While she received merit increases in 2004 and 2005, she was told that the increases were not more because of her absences to care for her mother. 

In 2006, Goelzer requested two months of FMLA leave to undergo foot surgery.  Her request was approved.  In the meantime, Mr. Payne's position was changed to County Administrator.  In his new position, he had the authority to discharge Goelzer on his own accord.  Payne terminated Goelzer two weeks before she was scheduled to take FMLA leave.  He hired a replacement sometime thereafter.

Goelzer filed suit alleging that her termination and failure to reinstate her from leave violated the FMLA. The County argued that Payne simply exercised his legal authority to replace Goelzer with someone of his own choosing who had a grater skill set, and that it had nothing to do with her exercise of FMLA rights.  

In reversing the award of summary judgment for the County, the Seventh Circuit initially conceded that this was one possible explanation for the termination decision a jury might choose to believe.  However, the Court went on to find that a jury might also choose to believe that the decision to terminate Goelzer was due to her protected FMLA activity.  As evidence, the Court noted:

• Comments made by Payne expressing frustration with Goelzer's use of FMLA leave in her past performance evaluations
• References in her performance evaluations contrasting her past "excellent" attendance with her her current heavy FMLA leave usage
• Payne's explanation that Goelzer did not receive a larger merit increase because she took off too much time to care for her mother- on FMLA leave
• The absence of evidence in performance reviews evidencing Payne's alleged concern with her deficient skill set and consistent satisfactory performance ratings
• The absence of evidence that Payne had taken action to remove Goezler for performance deficiencies before he received his promotion 
• The absence of evidence that Payne was restructuring Goezler's job to include a greater skill set; and
• The fact that he terminated Goezler shortly after her request for two months of FMLA leave.

Comment:  The FMLA prohibits an employer from interfering with or discriminating against an epmloyee for exercising FMLA rights.  It is also well established that an employee's exercise of FMLA rights does insulate the employee from performance-based adverse actions, including removal.  However, in order to effectively establish that the adverse action is due to performance deficiencies and not the exercise of FMLA rights, the facts must be consistent with the employer's non-discriminatory explanation.  That was not the case in Goelzer.  The references to leave usage, including FMLA leave, in annual performance evaluations, the  denial of merit benefits based on leave usage, including FMLA leave, and the absence of evidence supporting the employer's assertion of deficient performance, led the Court to conclude that there was sufficient material facts at issue to defeat summary judgment.  While the County may ultimately convince a jury that it did not violate the FMLA, the cost to litigate or settle this matter rose dramatically as a result of the Seventh Circuit's decision.

Employer's would be well-advised not to include references to FMLA usage in performance reviews, however benign the intention.  If the employee does not receive perfect performance marks and the highest monetary bump, it is relatively easy for the employee to point to the reference to FMLA usage as the real reason for their less than stellar performance review.  As demonstrated in Goelzer, that could be an expensive mistake.  

The case also reaffirms that managers who have problems with an employee's performance need to address that problems.  You might think that by giving an employee a satisfactory performance review you have really given them a bad review.  In Goezler, that strategy back-fired.  The satisfactory review undermined the County's argument that the employee was unsatisfactory, at least for purposes of summary judgment.     

The Seventh Circuit covers Wisconsin, Illinois, and Indiana.  

Goelzer v. Sheboygan County, Wisconsin, No. 09-2283 (7th Cir. May 12, 2010)   

FMLA Right to Commence Leave is Not Absolute, 11th Circuit Holds

Betsy Krutzig was employed by Pulte Homes. At the time of the events at issue she was on a performance improvement plan.  On August 17, she requested FMLA leave for surgery.  On the same day, a disgruntled customer filed a complaint with a Pulte Vice President.  The VP decided the next day to terminate Lrutzig for failure to improve, and due to the customer complaint.  Krutzig sued alleging that her termination a day after requesting FMLA leave interfered with her right to take FMLA leave.   The Eleventh Circuit disagreed.  Joining the Sixth, Eighth, and Tenth Circuit, the Eleventh Circuit held that an employee does not have the absolute right to commence FMLA leave.  An employee may be dismissed, preventing her from exercising her right to commence FMLA leave, without thereby violating the FMLA, if the employee would have been dismissed regardless of any request for FMLA leave. The Court reasoned that an employee who requests FMLA leave has no greater protections against her employment being terminated for reasons unrelated to an FMLA request than she did before submitted her request.  The Court found that to be the case, and affirmed the district court's award of summary judgment in favor of Pulte. 

Krutzig v. Pulte Home Corp., No. 09-12512 (11th Cir. April 5, 2010)

Comment:  The decision is not a complete surprise as the Eleventh Circuit had previously found that an employer could deny reinstatement to an employee for reasons unrelated to the exercise of FMLA rights without violating the FMLA.  The case presented the Court with the opportunity to apply the same rationale to discipline an employee after they have requested FMLA leave, thereby preventing the employee taking FMLA.  Again, the employer may only do so where the action taken was for reasons unrelated to the exercise of FMLA rights.  As in this case, legitimate reasons may involve removal.  Non-disciplinary reasons, such as a layoff or business shutdown, may also prevent an employee from exercising FMLA rights post-request.       

The Eleventh Circuit covers Atlanta, Georgia, and Florida. 

Car Failure is Not an FMLA-Covered Serious Health Condition

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).

Employee Who Repeatedly Refused FMLA Coverage Cannot Maintain FMLA Claim

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.   

Decision to Terminate Employee Does Not Negate The Employee's Right to FMLA Leave

An employee's right to take FMLA leave does not end when an employer decides to terminate the empoyee's employment, rather than when an employer actually terminates the employee. 

In Norton v. City of San Antionio, No. SA-05-CV-1186 FB, 2007 U.S. Dist. LEXIS 19443 (W.D.Tex. March 19, 2007) the employer argued that Norton could not establish her interference claim because she could not establish that she was entilted to leave under the FMLA.  The City argued that Norton could not prove that she was entitled to FMLA leave because the City had already decided to terminate her employment a few days before she requested FMLA leave.  The City decided to terminate Norton on July 1, and Norton did not request FMLA leave until July 11--the day that the City notified Norton that she was terminated.  The Court disagreed with the City's reasoning.

The Court found that an eligible employee retains the right to take FMLA leave until the employee is actually terminated.  An eligible employee does not lose the right to take FMLA leave simply because the employer has decided to terminate the employee, but the termination has not yet been put into effect. 

Comment:  An employer's decision to terminate an employee does not preclude the employee from exercising FMLA rights until the termination becomes effective.  The timing of an employee's decision to terminate an employee in relation to the employee's exercise of FMLA rights is, however, important in an FMLA discrimination case.  To establish FMLA discrimination, the employee must prove the employer's intent to violate the FMLA as a consequence of the employee's exercise of FMLA rights, such as by requesting leave.  As a defense, an employer can show that it did not intend to discriminate against the employee because the decision to take the adverse action (for a legitimate, non-discriinatory purpose) was made before the employee had requested FMLA leave.      

 

Employee's Use of Intermittent Leave Did Not Protect Her from Discipline for Peformance Problems During the Times She Was at Work

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 school principal was underpaid
• Federal and local grant money received by the school district was delayed because plaintiff failed to prepare the requisite reports;
• Plaintiff failed to prepare the financial report for the October 2004 board meeting;
• Plaintiff repeatedly failed to pay bills on time;
• Plaintiff failed to properly handle a dispute regarding an employee's s retirement benefits;
• Plaintiff failed to correct a known discrepancy regarding an employee's sick leave benefits;
• Plaintiff erred in preparing employees' paychecks;
• Plaintiff failed to timely deliver employees' 2004 W-2 forms;
• The School District received notice from the IRS that it was imposing a $163,000 fine for failure to file the employees' W-2 statements on time;and
• Plaintiff improperly withheld Medicare payments from the paychecks of three employees even those employees had elected not to participate in Medicare.

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. 

FMLA Retaliation Not Established Where Layoff Decision Occurred Two Weeks Prior to Request for FMLA Leave

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. 

FMLA Designed to Help Working Men and Women Balance the Conflicting Demands of Work and Personal Life; It was Not Intended to Excuse Violence in the Workplace

In Anders v. Waste Management of Wisconsin, Inc., No. 05-3862, 2006 U.S.App. LEXIS 23184 (7^th 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 predetermined 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. 

Termination for Violation of Employer Leave Notice Policy Did Not Violate the FMLA Even Where Leave Is Covered by the FMLA

In Thorton v. Frontier Refining & Marketing, Inc., No. 05-1241-JTM (D. Kan.Sept. 15, 2006), the employer terminated Thorton after his repeated failure to follow established policy to call and let the company know if the employee is not going to be able to start their shift on time.  It was undisputed that the last incident prior to his termination Thorton did not report to work or call in his absence.  He did not ask for leave nor did he informally request any such leave.  He was not at any time under any restrictions on his ability to perform his job.  The court observed:

Thorton’s termination does not implicate the FMLA because the termination was unrelated to any request for FMLA leave, but is instead the result of the application of standard company notice of absence policies to an employee with long-standing attendance problems…This is true even if one assumes, as Thorton argues at length, that his absences in March and July 2003 should be considered FMLA.  The fact remains that Thorton knew of the company’s notice policy, and failed to comply with it on two separate occasions after the earlier absences.  The FMLA does not prevent an employer form enforcing attendance policies such as those governing giving notice, eve if the underlying absence might otherwise be FMLA-qualified leave…  

Comment:  The FMLA requires that an employee request leave in order to invoke their FMLA rights.  An employee who does not request leave, directly or indirectly, is not entitled to the protections of the FMLA.  Employers may also require an employee to comply with the employer’s usual and customary notice and procedural requirements.  Employees who fail to abide by the employer’s “usual and customary” leave procedures may be subject to discipline even if the leave being requested is covered by the FMLA.  This reminds us that an employee who exercises FMLA rights is not immune to discipline for violation of employer policies, including leave policies, any more than if the leave was not covered by the FMLA.