The FMLA Blog

Evidence of Employer's Pre-Leave Discussions of Job Elimination Defeats FMLA Retaliation Claim Based on Post-Leave Job Elimination

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).  

 

Employee Not Requried to Take FMLA Leave to Establish FMLA Retaliation Claim, Third Circuit Finds

The Third Circuit in Erdman v. Nationwide Ins. Co., No. 07-3796, 2009 U.S. App. LEXIS 20979 (3d Cir. Sept. 23, 2009) clarified its standard of proof for establishing an FMLA retaliation claim.  Specifically, the requirement that an employee have "taken" FMLA leave.  See Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 146 (3d Cir. 2004).  

Nationwide fired Erdman a month after she requested FMLA leave, but before her leave was set to begin.  Erdman requested seven weeks of FMLA leave in April to begin in July. She was terminated in May.  Erdman sued alleging that her termination was in retaliation for requesting FMLA leave. Nationwide argued that the retaliation claim must fail because Erdman had not taken any FMLA leave, as required by a plain reading of then 29 CFR 825.220(c) and Conoshenti.  The Third Circuit disagreed.  According to the Court:

Simply put, this Court has never held that an employee fired after requesting FMLA leave but before the leave begins cannot recover for retaliation, and Nationwide cites none of our precedents other than Conoshenti to support this proposition. REading Conoshenti as Nationwide urges would perversely allow a employer to limit an FMLA plaintiff's theories of recovery by preemptively firing her. Accordingly, we interpret the requirement that an employee "take" FMLA leave to connote invocation of FMLA rights, not actual commencement of leave. We therefore hold that firing an employee for a valid request for FMLA leave may constitute interference with the employee's FMLA rights as well as retaliation against the employee.

The Court vacated the lower court's award of summary judgment on Erdman's FMLA claim, and remanded the case back fo the District Court.

Comment:  The Circuits are divided whether claims that an employee was disciplined or discharged for "taking" FMLA leave should be analyzed as interference claims or discrimination claims.  The distinction is important because of the difference proof schemes that apply.  Interference claims do not require proof of discriminatory intent, whereas discrimination claims do. In Erdman, the Third Circuit expanded the reach of retaliation claims by broadly interpreting the "taking leave" requirement to cover a request for leave. 

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).