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C ATEGO R Y AR C HIVE S : FMLA/LE AVE S O F AB S E NC E

8th Circuit Affirms $413k Plaintiffs Verdict in FMLA Retaliation Lawsuit

Posted on August 1, 2012 by Jason Rossiter Its rarely a good idea to discharge an employee less than 48 hours after the employee in question submits a request for FMLA leave. Sometimes extenuating circumstances might justify this perhaps some especially serious misconduct has occurred during those 48 hours, or perhaps the decision to discharge had already been made for entirely justifiable (and provable!) reasons before the leave request came in. But those sometimes are rare and even in those situations you can expect to be sued. Case in point: the 8th Circuits new decision in Marez v. Saint-Gobain Containers, Inc., where that Court has affirmed a $413,000 plaintiffs jury verdict in an FMLA retaliation lawsuit. Plus attorneys fees. Yikes. The employee in the Marez case needed FMLA leave to care for her husband after his surgery. She had taken FMLA leave for a medical condition of her own during the previous summer, and testified that her supervisor had complained about her absence. (She had actually been fired the previous summer for allegedly failing to return from the leave on time, but was reinstated after it was discovered to have been a paperwork snafu.) Less than 48 hours after submitting her leave request, Mrs. Marez was summoned to the plant, where the was confronted with three members of management and her employment was terminated, allegedly for various performance issues. Evidence at trial showed that the same manager to whom Marez had directed her leave request was the one who had marshaled all of the evidence to justify the discharge. Evidence also showed that other employees had engaged in similar performance infractions and had not been discharged, as Marez had been. The jury had no trouble finding a violation of the FMLAs prohibition on retaliation, and issued a back pay award of $206,500, which was then doubled to $413,000 under the FMLAs liquidated damages provisions. The 8th Circuit affirmed this decision in all respects. Marez relied heavily on the extremely close temporal proximity between her leave request and her discharge, and the 8th Circuit agreed that, on these facts, temporal proximity was powerful evidence of retaliation: Although we have recognized that it is difficult to find a principle neatly explaining why each of our cases held temporal connection was or was not sufficient to satisfy the causation requirement, it appears that the length of time between protected activity and adverse action is important. [Citation]. Cases in which we have determined that temporal proximity alone was

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sufficient to create an inference of the causal link have uniformly held that the temporal proximity must be very close. [Citation]. Here, where the termination occurred less than forty-eight hours after notice of the protected activity was given, the timing of the two events could support the jurys finding of discrimination. In considering whether temporal proximity alone can support an inference of causation, we have rarely been faced with two events so close in time. [Ed. note - emphasis is mine]. The 8th Circuit also noted that Mrs. Marez was not hanging her hat entirely on temporal proximity, given her evidence that other employees had engaged in similar performance shortcomings without having been shown the door. The rather obvious lesson from this case: haste makes waste. Its probably a good idea to get legal advice before firing an employee mere days after the employee submits a request for FMLA leave (or some other protected activity). Posted in 8th Circuit, FMLA/Leaves of Absence, Retaliation, Temporal Proximity

Employee Abandoned His Job And His Right to FMLA Leave

Posted on April 28, 2012 by Jason Rossiter The 8th Circuit today has affirmed the rejection of an FMLA interference claim brought by a disgruntled Comcast employee who failed to show up for three consecutive shifts, and was deemed by Comcast to have quit as a result.

This employee, named Ballato, had been on an approved leave, but had recently received a poor performance review. While on leave, Ballato sent emails that Comcasts HR department found to be threatening. So, Comcast disabled Ballatos email access and his facility badge. Before his email access had been cut off, Ballato had emailed his supervisor asking if he still had a job. The response: You are still employed by Comcast and we look forward to your return. Ballato was scheduled to work the following day. His supervisors tried calling Ballato twice, but he refused to answer (and later claimed that he was afraid that they were calling to fire him). Instead, Ballato called in to Comcasts Resource Center instead, saying that he wanted FMLA leave, but the person he spoke to could not find Ballato in his attendance system and suggested that Ballato call his supervisor, but Ballato did not do that. Instead, he drove to the facility itself, but when his badge wouldnt work, he gave up and went home. The next day (on which Ballato was also scheduled to work) he called an HR Manager at Comcast and left a voicemail message, stating that he had spoken with a lawyer, and told Comcast to cease and desist all

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communication with me but did not give the HR Manager any contact information for this lawyer. Ballato then blew off his next two shifts, and Comcast determined that he had abandoned his job as a result. The 8th Circuit agreed with Comcast, rejecting the employees claim that Comcast had interfered with his FMLA rights: Even assuming Comcast interfered with Ballatos FMLA rights on June 5 [the day he called Comcast's "Resource Center"], Ballato still had the responsibility to attempt to request his intermittent FMLA leave, show up for his shift, or contact Comcast in some fashion to resolve any confusion as to his status before the shift started. Comcast could still consider Ballato to have voluntarily resigned for any other series of three consecutive shifts, not including June 5, where Ballato did not call in or show up for work. By not showing up or contacting Comcast for his shifts on June 8, 9, and 10, Ballatos failure to act served as a resignation of his employment under Comcasts attendance policy. Finally, Phan noted the attendance system of the Resource Center is completely separate from the human resources system and no evidence exists in the record that the decision makers involved with Ballatos termination had knowledge of Ballatos wish to take FMLA leave on June 5. Seems simple enough. The lesson: if you want FMLA leave, and you are confused about whether or not your employer knows of your wish, dont just assume that they did. The case is Ballato v. Comcast Corp. Posted in 8th Circuit, FMLA/Leaves of Absence

6th Circuit Affirms FMLA Judgment Against Ohio Company

Posted on January 20, 2012 by Jason Rossiter The Sixth Circuit has affirmed a key part of a rather large FMLA judgment against an Ohio company for interfering with an employees FMLA rights. In the course of its opinion, the 6th Circuit held that an employer who fails to give an employee actual notice that the company will use the rolling 12-month method to count FMLA leave eligibility cannot use that method, and must use the calendar year method, or else it is potentially interfering with the employees FMLA leave rights. Not only that, but the Sixth Circuit held that the District Court erred by refusing to double the plaintiffs damages, since the company failed to produce sufficient evidence that it qualified for the FMLAs good faith exception to

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liquidated damages. Ouch!

The facts are a bit complex, but the long and short of it is that the company in question claimed to have switched to the rolling 12-month FMLA method internally, but never notified employees of this (though the company claimed that the union was aware of this change in its practice). The company then mistakenly approved Mr. Thoms FMLA leave through June 27, even though under a rolling 12-month calculation, that was two weeks too long. Mr. Thom initially claimed to be able to come back for light duty in May and full duty by June 13, but the company wouldnt let him return for light duty, so Mr. Thom remained home and his condition worsened. When he didnt return on June 13 which is when, on a rolling basis, his FMLA eligiblity would have expired the company started counting each following day as an unexcused absence, and eventually fired him on June 18. Had the company used the calendar year method of counting FMLA leave eligibility, Mr. Thoms eligiblity would not have expired until mid-July. The District Court held that this company violated the FMLA by interfering with the plaintiffs leave rights, awarding more than $100,000 in back wages, $99,000 in attorneys fees, and a modification of the Plaintiffs last day of employment to render him eligible for a full pension. As to the underlying FMLA violation, the Sixth Circuit affirmed in full. The Sixth Circuit found it significant and, ultimately, dispositive that the company never gave actual notice to Mr. Thom that the company used the rolling method of counting FMLA leave eligibility, and this omission, coupled with the companys failure to retract its earlier approval of the leave through June 27, were sufficient to hold it liable. The Sixth Circuit shot down the companys argument that Mr. Thom should have known that the company used the rolling method of tracking FMLA leave eligibility: American Standard now claims that it has always used the rolling method for calculating FMLA leave and that Thom [the plaintiff] should have known this fact. It further contends that because two key officers in Thoms union provided affidavits during the lawsuit stating that

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American Standard historically maintained a policy of applying the rolling method, their knowledge is imputed to Thom through simple agency law. In rejecting American Standards constructive notice arguments, the district court concluded that an employer is required to take affirmative steps to inform employees of its selected method for calculating leave. [Citations]. We agree that employers should inform their employees in writing of which method they will use to calculate the FMLA leave year. This standard is consistent with the principles of fairness and general clarity, and applying it, American Standards notice to Thom fell decidedly short. Although American Standard did internally amend its FMLA leave policy in March 2005 to indicate that it would now calculate employee leave according to the rolling method, it did not give Thom actual notice of this changed policy or in any way tell him that his official leave date would expire earlier than June 27, the date the company had [previously, but erroneously] approved. Consequently, Thom was entitled to rely on the calendar method and the date of June 27 that the company had given in writing. Neither [the HR] nor anyone else from her department or elsewhere advised him of any change. [Ed. note - emphasis has been added] Even worse for this company, the Sixth Circuit also held that the District Court messed up by not doubling the plaintiffs damages. The doubling of damages is the rule in FMLA cases unless the employer proves that it acted in good faith with a reasonable believe that it was complying with a law. The Sixth Circuit concluded that there was no basis to believe that this particular company qualified for this type of exception: The June 27 date agreed to in writing by American Standard is completely inconsistent with the rolling method and with counsels present reliance on the rolling method as a justification for discharge. Pretextual reasons for discharge manufactured after the fact in order to justify an earlier wrong are not consistent with good faith. The rolling calendar pretext is an ostensible motive given after-the-fact as a cover for the real reason for firing this 36-year employee whatever those economic motives may have been. In this case, after-the-fact reliance on the rolling method of calculation should not grant American Standard immunity from liquidated damages, and the companys obdurate refusal to correct an obvious mistake that constituted a wrongful discharge of this 36-year employee reinforces the case for liquidated damages. [Ed. note - emphasis has been added]. Yikes! The case is Thom v. American Standard, Inc. Happy reading! Image: koratmember / freedigitalphotos.net Posted in 6th Circuit, FMLA/Leaves of Absence

6th Circuit: McDonnell Douglas Applies to FMLA Interference Cases [Huh?]

Posted on January 18, 2012 by Jason Rossiter

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If an employee claims that her employer retaliated against her for exercising protected rights under the FMLA, it is fairly well-established that courts must use the tripartite McDonnell Douglas test to decide the claim. In other words, the employee must prove a preliminary (prima facie) case of illegal activity, then employer raises its hand and offers a legitimate explanation for its action, and then the employee tries to shoot down that explanation as a contrivance.

I am oversimplifying a bit, since there are circumstances where the McDonnell Douglas test doesnt apply: such as, for example, the employee has the employment-law equivalent of a smoking gun so-called direct evidence of the employers unlawful behavior. But in most instances, McDonnell Douglas is the rule. But what if the employee claims that her employer interfered with her rights under the FMLA. For example, an employee might claim that her employer fired her in order to stop her from taking protected medical leave. Does the McDonnell Douglas test apply to that type of claim? Does the employers motivation matter at all, if the only real question is whether the employee got leave to which she was entitled?

The Sixth Circuit has answered those questions today in Donald v. Sybra, Inc. and, rather surprisingly, has held that yes, the employers motive does matter, even in an interference claim, and yes, you are supposed to use the McDonnell Douglas test to resolve that type of claim. But the Sixth Circuit did not sound very enthusiastic when reciting this conclusion: In Grace v. USCAR, 521 F.3d 655, 670 (6th Cir. 2008), this Court stated that, in an FMLA interference claim, an employer may prove it had a legitimate reason unrelated to the exercise of FMLA rights for terminating the employee. The Court went on to say that the plaintiff could rebut the employers reason by showing that the proffered reason had no basis in fact, did not motivate the termination, or was insufficient to warrant the termination. Id. The Court effectively adopted the McDonnell Douglas tripartite test without saying as much. Because [r]eported panel opinions are binding on subsequent panels, 6 Cir. R. 206(c), Grace requires the conclusion that the district court correctly applied McDonnell Douglas to both Donalds interference and retaliation claims. This does not appear to be a very ringing endorsement of the older Grace decision, and one wonders how the

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Donald panel would have ruled had Grace not been laying around as a controlling earlier panel decision. (One also wonders whether an en banc Sixth Circuit might feel differently.) The Donald panel also noted that its decision creates a circuit rift with both the First and Seventh Circuits. Sigh. (Cant we all just get along?) The actual facts in the Donald case involve a fast food cashier who was terminated while on a medical leave after she was allegedly caught stealing from the till. The Sixth Circuit ultimately held that the District Court had correctly granted summary judgment on her FMLA claims. Image: Roland Darby, freedigitalphotos.net Posted in 6th Circuit, FMLA/Leaves of Absence

11th Circuit: FMLA Protects "Pre-Eligibility" Requests for Leave

Posted on January 11, 2012 by Jason Rossiter If someone is not eligible for FMLA leave, but they expect to be eligible soon say, because by the time their baby is due, they will have hit their one-year anniversary are they protected from retaliation if they announce their intention to take FMLA leave once they are eligible?

Yes, according to a new opinion from the 11th circuit. The court concluded that, if this type of situation was not protected, then a loophole might be created, where an employer foreseeing a need for FMLA leave down the road could take action against the employee in question before their protection kicked in. This, according to the Court, was unacceptable: Here, it is undisputed that Pereda, at the time she requested leave, was not eligible for FMLA protection because she had not worked the requisite hours and had not yet experienced a triggering event, the birth of her child. It is also undisputed that she would have been entitled to FMLA protection by the time she gave birth and began her requested leave.

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*** Without protecting against preeligibility interference, a loophole is created whereby an employer has total freedom to terminate an employee before she can ever become eligible. Such a situation is contrary to the basic concept of the FMLA. Thus, this Court disagrees with the district court and finds that Pereda stated sufficient facts to establish prima facie claims for both FMLA interference and retaliation. The case is Pereda v. Brookdale Senior Living Communities, Inc. Image credit: Clare Bloomfield, freedigitalphotos.net Posted in 11th Circuit, FMLA/Leaves of Absence

Mandatory Leave for Employee-Victims of Domestic Violence and Sexual Assault?

Posted on October 17, 2011 by Jason Rossiter An excellent post this morning at The Employer Handbook about a proposed amendment to the FMLA that would mandate leave for employees who are victims of domestic violence, sexual assault, and other similar traumatic incidents. This is already the law in a few places, such as California, where Labor Code 230(c) already provides: An employer may not discharge or in any manner discriminate or retaliate against an employee who is a victim of domestic violence or a victim of sexual assault for taking time off from work to obtain or attempt to obtain any relief , including, but not limited to, a temporary restraining order, restraining order, or other injunctive relief, to help ensure the health, safety, or welfare of the victim or his or her child (emphasis added) The any relief language apparently includes the seeking of medical treatment, given that one of the items that the employer may request by way of certification is Documentation from a medical professional, domestic violence advocate or advocate for victims of sexual assault, health care provider, or counselor that the employee was undergoing treatment for physical or mental injuries or abuse resulting in victimization from an act of domestic violence or sexual assault (Id., 230(d)(2)(C)). The proposed amendments to the FMLA appear to be of similar effectand, as Eric notes at The Employer Handbook, are being championed by a California Congressman. In a similar vein, the new Seattle paid sick leave law (which I blogged about last week) would also mandate leaves of absence for domestic violence victimsbut Seattles leave must be paid leave.

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Posted in Domestic violence, FMLA/Leaves of Absence, Sick leave

Seattle to Require Employers to Offer Paid Sick Leave

Posted on October 13, 2011 by Jason Rossiter Beginning in September 2012, employers in Seattle who employ five or more employees will be required to offer paid sick leave to their employees. The amount of paid sick leave that must be offered varies depending upon the size of the employer: small employers (5-49 employees) must offer at least one hour of sick leave per 40 hours worked, while the largest employers (250+ employees) must confer sick leave at a rate of one hour per 30 hours worked. Employers will be allowed to impose a six month waiting period on the use of sick leave by newly hired employees, and fledgling business open for two years or less are exempt from the entire law. More details are available here. Posted in FMLA/Leaves of Absence, Sick leave

7th Circuit: No Cause of Action under FMLA for "Exacerbating" a Medical Condition
Posted on September 6, 2011 by Jason Rossiter The 7th Circuit has held that there is no cause of action under the FMLA against an employer who harasses an employee returning from FMLA leave and thereby exacerbates his or her underlying medical condition. A plaintiff attempted such a claim in Breneisen v. Motorola, Inc., 7th Cir No 10-1982: Breneisen claims that Motorola harassed him when he returned from an approved leave of absence that because of that [harassment], his medical condition became exacerbated, and that because of that [exacerbation] he could no longer work. The 6th Circuit, in Edgar v. JAC Products, Inc., 443 F.3d 501 (6th Cir. 2006), had rejected the exacerbation theory of liability under the FMLA, and the 7th Circuit held in Breneisens case that the 6th Circuits analysis was entirely accurate:

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We share the Sixth Circuits concerns about permitting recovery to an FMLA plaintiff on exacerbation grounds and adopt its holding that exacerbation is not a valid theory of liability under the FMLA. See Edgar, 443 F.3d at 516. Since stress can adversely affect many common ailments from which physically infirm employees suffer, granting relief on this basis would contravene the straightforward premise of the FMLAto protect employees from adverse actions by their employers during finite periods when short-term personal or family medical needs require it. When serious medical issues render an employee unable to work for longer than the twelve-week period contemplated under the statute, the FMLA no longer applies. This is true regardless of the cause of the infirmity Posted in 7th Circuit, fmla, FMLA/Leaves of Absence

6th Cir.: How Not to Handle an Employees Medical Restrictions

Posted on August 19, 2011 by Jason Rossiter What should an employer do when a state court orders that workers compensation benefits be paid due to a work-related injury? As the Sixth Circuit has clarified today in Jones v. Nissan North America, Inc., 6th Cir. No. 09-5786, one thing that the employer should definitely not do is assume blithely that the employee has ongoing medical restrictions (when neither the courts order nor any physician has ever said that), ban him from his current job because of these supposed restrictions, place him on a forced medical leave, conclude that there are no available positions that meet those restrictions, then fire him. The Sixth Circuit held that the plaintiff in this case was actually entitled to judgment as a matter of law in his favor, and remanded for a new trial on damages. The employer sought to defend its actions by stating that it was only complying with the courts order, but as the Sixth Circuit noted, the only thing that the court had ordered was the payment of benefits. The employer also attempted to invoke the honest belief doctrine, professing that it honestly believed the restrictions to have been necessary in light of the language of the courts order. This argument went nowhere, since the employer did not have the employee examined by an actual physician, and since the supervisor who first listed the new restrictions on the employees duties had never even read the courts order (whoops). The case arose under older ADA law, prior to the ADA Amendments Act. Posted in 6th Circuit, ADA (older), Disability Discrimination, FMLA/Leaves of Absence

8th Circuit Reinstates First Amendment,

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FMLA Retaliation Claims

Posted on August 18, 2011 by Jason Rossiter The 8th Circuit has reversed a grant of summary judgment to various Arkansas county officials in a First Amedment and FMLA retaliation case, Rynders v. Williams, 8th Cir. No. 10-3466. The plaintiff in Rynders had written a letter to the editor of a local newspaper, complaining (according to the 8th Circuit) that the Garland County Quorum Court, the legislative body for Garland County, was unjustifiably refusing to raise the wages of County employees. A few months later, the plaintiff was accused of being excessively tardy, and responded that his lateness was caused by a medical condition and requested FMLA paperwork. The plaintiff argued that his superiors refused to give him the paperwork, and that the head of his particular unit fired him shortly thereafter, supposedly telling him at the time, I am firing you because of that letter you wrote about my finance committee. The 8th Circuit held that this evidence was enough to create an issue of fact on both the First Amendment and FMLA retaliation claims that the plaintiff had brought, and reversed the District Courts grant of summary judgment. Posted in 1st Amendment, 8th Circuit, First Amendment, fmla, FMLA/Leaves of Absence, Retaliation

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