The FMLA Blog

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)   

Violation of the FMLA Does Not Support Claim of Intentional Infliction of Emotional Distress

The denial of FMLA leave or the discharge of an employee for requesting leave is "not egregious enough conduct to be considered extreme and outrageous" to support an employee's claim of intentional infliction of emotional distress, at least not in the Seventh Circuit.  The court granted the employer's motion and dismissed the claim.   

Alcazar-Anselmo v. City of Chicago, No. 07 C 5246, 2008 U.S. Dist. LEXIS 32042 (N.D. Ill. April 18, 2008)

Comment:  Even though the tort claim was dismissed, the employee may still seek money damages permitted by the FMLA's own remedial scheme.  The Seventh Circuit covers Illinois, Indiana, and Wisconsin. 

FMLA Does Not Permit Recovery for Physical Injuries Resulting from Placement in a Non-Equivalent Job

In Bordeau v. Saginaw Control & Engineering, Inc., No. 04-10312-BC, 2006 U.S.Dist. LEXIS 59774 (E.D.Mich. Aug. 24, 2006), the issue presented was whether an employee may recover under the FMLA damages for physical injuries sustained when the employee returned to work following an approved medical leave but was placed in a job that required manual labor and therefore was not comparable to the job he left.  Mr. Bordeau was employed as a purchasing manager when he took approved FMLA leave to care for his elderly mother.  On his return Mr. Bordeau was given a manual labor job on the plant floor and not his previous purchasing manager job.  While performing his labor job Mr. Bordeau sustained a disabling back injury and has not been able to return two work.  Mr. Bordeau’s employment was terminated shortly after sustaining the injury.   Mr. Bordeau sued alleging violation of the FMLA. Specifically, he sought damages for physical injuries he suffered as a result of the employer’s failure to return him to his same or an equivalent position.  The employer moved for summary judgment alleging that the FMLA does not permit recovery of the damages sought by Mr. Bordeau.  The court agreed with the employer, but with a twist.

The remedy section of the FMLA states that an employer who violates the Act must pay the employee “damages equal to … any wages, salary, employment benefits, or other compensation denied or lost to such employee by reason of the violation; or … any actual monetary losses sustained by the employee as a direct result of the violation.”  The employer argued that Mr. Bordeau’s inability to work and earn money because of his back injury does not amount to wage loss or actual monetary loss “by reason of” or “as a direct result of” Saginaw Control’s FMLA violation.  The court agreed.  Relying on precedent in other courts, the court in Bordeau determined that the controlling language of the FMLA limits damages to actual, direct losses that ensue because of interference with or denial of rights under the Act.  To be compensable, actual direct losses must arise out of a quid pro quo relationship between the employer and an employee.  Here, the court found that Mr. Bordeau’s inability to work because of injury to his back was not a direct result of the employer’s FMLA violation. At most, the court found that disabling back injury was a consequences of the employer’ FMLA violation, but consequential damages were not available under the FMLA.  The court went on, however to find that the FMLA permits equitable relief, including front pay where, as here, reinstatement is not appropriate. 

    

Comment:  Monetary damages are available for violation of the FMLA.  The FMLA does, however, permit recovery for all damages suffered as a consequence of a violation.  Damages that do not arise directly out of the employer-employee relationship are generally not available.  Note, however, that the availability of front pay as an equitable remedy may go a long way in compensating an employee for loss of future income due to injuries suffered as a result of an employer’s FMLA violation.  The remedies available to employees for violation of the FMLA are addressed in Chapter 15 of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation (Dewey Publications, Inc. 2003 & 2005 Supplement).