On Monday, the Sixth Circuit Court of Appeals affirmed an
employer’s summary judgment on an FMLA retaliation claim when the plaintiff had
been terminated after nineteen years of employment only six weeks after he
returned from FMLA leave. Nieves v.
Envoy Air, Inc., No. 18-1127 (6th
Cir. 1-14-19). The Court found that the plaintiff failed to show that his
termination – for permitting his mother’s boyfriend to use his free flying
privileges many years earlier in violation of policy – was causally related to
his use of FMLA leave. The plaintiff had
admitted that he should not have identified the flier as his father. Accordingly, the plaintiff could not prove
his prima facie case of showing that his termination was causally related to
his recent use of FMLA leave. Interestingly, there was no discussion of
temporal proximity satisfying the plaintiff’s burden of showing causation
even though his termination on March 30 was merely six weeks after he returned
to work on February 19.
According to the Court’s opinion, the plaintiff had worked
in at the counter for nineteen years.
His relatively new supervisor did not like him and blamed him unfairly
for a number of issues. In April 2015,
the plaintiff (along with several other employees) was selected by the
corporate office for a random audit of his flying privileges to investigate
potential abuse. He was required to send
proof of eligibility (i.e., familial or legal relationship) of the individuals
listed on his travel log. He only sent
documentation of two people (his wife and one daughter) who were actively using
his privileges instead of all of the individual who had used his privileges
over the past 19 years (and included other children as well as a half-brother,
a friend’s son who stayed with them on an extended basis and his mother’s
20-year boyfriend that he had once listed as father/step-father). The audit stalled until January 2016 when
the plaintiff was hospitalized for approximately a month for kidney failure and
took FMLA leave. Three weeks after he
returned to work on February 19, he was interviewed on March 9 by telephone
without prior notice about the individuals he failed to document and answered
all of the questions truthfully. He was given nine days to produce
documentation substantiating the legal/familial relationship with all of the
individuals, which he later explained was impossible when some of the
documentation had to be obtained from the Dominican Republic. The corporate office – which was never told
about the plaintiff’s FMLA leave -- determined quickly that the plaintiff
should be terminated on March 30 because that was the recommended penalty for
violation of the travel policy. On
appeal, the decision was upheld because the plaintiff admitted that his mother’s
boyfriend should never have been listed as his father on the travel log.
The Court concluded that the plaintiff could not show that
his termination was related to his FMLA leave.
It rejected the plaintiff’s argument that the investigator’s note in her
files about the plaintiff’s FMLA leave was proof of retaliation because she
explained that it was merely a reminder of why she had not yet interviewed him
when she got to his file in January 2016.
The note explained his unavailability when she attempted to schedule his
interview. There was nothing in the
investigator’s report to corporate about the plaintiff taking FMLA leave.
The Court also dismissed stray comments by his supervisor
about him and suggesting that he retire.
Some comments were made more than a year before he took FMLA leave. The supervisor was not the decisionmaker. One comment followed the explanation of the
plaintiff’s wife that his physician wanted him to do less lifting (which was a
big part of his job).
The Court also rejected the allegation that his travel log
was given more scrutiny following his FMLA leave because the employer
documented each step of the investigation process and explained each of its
steps and delays.
There is no discussion in the Court’s decision of the
temporal proximity -- six weeks between the end of his FMLA leave in February and
his termination on March 30 – being sufficient to infer a causal relation. Because
there was no evidence linking the termination for a clear violation of the travel
policy to his use of FMLA leave, the Court found that he could not prove his
prima facie case and there is no discussion of pretext or honest belief
defenses.
NOTICE: This
summary is designed merely to inform and alert you of recent legal
developments. It does not constitute legal advice and does not apply to any particular
situation because different facts could lead to different results. Information
here can be changed or amended without notice. Readers should not act upon
this information without legal advice. If you have any questions about anything
you have read, you should consult with or retain an employment attorney.
