Yesterday, the Sixth Circuit reversed an employer’s summary judgment on FMLA retaliation and interference claims. Render v. FCA US LLC, No. 21-2851 (6th Cir. 11-16-22). The plaintiff had been tentatively approved for intermittent FMLA leave for his depression and anxiety. However, when he called off on multiple days, he only once referred to the FMLA (when asked) and usually just said he was unwell or was having a “flare-up” (the term his physician used to describe his need for FMLA). The Court found that this otherwise vague reference to his FMLA Medical Certification was sufficient to put the employer on notice of the need to inquire further and that he did not need to specially refer to the FMLA or to his anxiety or depression. The Court also found sufficient evidence of retaliation in light of the temporal proximity of his protected activity of requesting FMLA leave and the termination decision. “It is the request that is protected activity,” not whether the leave is qualified or not. The Court rejected the employer’s honest believe defense because the decisionmaker was aware that he had requested FMLA leave, was seeking to use it on the days in question, and had disputed the mis-coding of his absences as non-FMLA (i.e., that she had been provided with mistaken information which she had the authority and power to correct herself). Finally, the Court agreed that the employee had sufficiently complied with the employer’s customary call off procedures when the information he had been provided was confusing and contradictory.
According to the Court’s opinion, the plaintiff had been
terminated for poor attendance, but was reinstated following a grievance and
subject to a conditional reinstatement letter that he would be fired again if
he had more than two attendance infractions in the next year’s probationary
period. Within six months, he missed or
was tardy at least four times and was fired.
Thing is, he applied for and was conditionally approved for four days
per month of intermittent FMLA leave for his depression and anxiety. The FMLA administrator sent him inconsistent
and contradictory information about how he was to report his FMLA absences and
the recordkeeping of the employer and FMLA Administrator was also inconsistent
and contradictory. Although he was
given confirmation numbers when he called, he generally failed to indicate that
he was using or had been approved for FMLA leave and would only refer vaguely
to “flare-ups” and not being well enough to work. The decisionmaking HR manager checked with other
HR and the FMLA Administrators, but was given incorrect and/or misinterpreted
the information. Because she could not confirm
that he had called in as required on all of the dates and the FMLA administrator
had failed to record them as FMLA absences, the HR manager decided to terminate
him even though he told her that he had attempted to use his approved FMLA
leave.
The Court’s majority found that there was sufficient evidence
to prove that the employer may have interfered with his right to take FMLA
leave. While employees who have been
approved for FMLA leave are required when calling off work to refer to the FMLA
or to their FMLA approved condition and say more than that they are “sick,” the
Court found that the employer is bound by the employee’s prior notice
requesting FMLA leave and the supporting medical statement describing his medical
condition.
Either way, an employee “[c]alling in ‘sick’ without providing more information will not be considered sufficient notice to trigger an employer’s obligations under the Act,” though an “employer will be expected to obtain any additional required information through informal means.”
In this case, the
plaintiff had requested and been approved for intermittent FMLA leave for “flare-ups”
of his chronic depression and anxiety.
So, when he called off due to “flare ups,” the employer was on notice to
inquire further if it questioned whether this was covered by the FMLA:
With less context, some of [the plaintiff’s] four call-ins could be viewed as providing insufficient notice. Although [he] referenced the FMLA during his December 7, 2017 call-in, he did not do so during his call-ins on December 6, 2017 and January 5, 2018, opting instead to say that he was suffering from “flare ups.” . . . . As the district court noted, a “flare up” just means “a sudden appearance or worsening of the symptoms of a disease or condition.” . . . .The term does not by itself indicate what these symptoms or the underlying disease or condition are. Standing alone, an employee reporting that they were having a “flare up” could be the equivalent of calling in “sick,” which 29 C.F.R. § 825.303(b) explicitly provides “will not be considered sufficient notice to trigger an employer’s obligations under the Act.” The same is true of [his] call from December 8, 2017, during which he merely reported having been “sick the last few days,” referencing his calls from December 6 and 7.
But there is more to this story. Nothing in 29 C.F.R. § 825.303(b) commands that we overlook pertinent background. . . . Given that employers are under a duty to inquire further about the nature of the leave requested, a previously submitted medical certification listing symptoms is relevant to evaluating what can be reasonably gleaned from an employee’s call-in. See 29 C.F.R. §§ 825.301(a), 825.303(b).
Before making any of his calls, [he] provided [the employer] with such a certificate. . . . This document informed the company that [he] would be unable to work when the symptoms of his depression and anxiety were acute. . . . . More importantly, the certificate alerted [the employer] that [he] would be unable to work when these symptoms “flare[d] up.” Id. It also noted that these flare ups could occur three-to-four times a month. Id. Therefore, when [he] called in on three consecutive days in December 2017 specifically referencing either his symptoms flaring up, or the FMLA, or, by the last day, his previous two days out and his subsequent need to be late to work, it would be reasonable to conclude that he put [the employer] on notice that he was referring to his FMLA-qualifying condition. . . . . The same is true for the January 5, 2018 call, during which [he] also identified a flare up of his symptoms as the reason for his tardiness. . . . .. At the very least, [the employer] knew that [he] had been requesting FMLA leave during the December call-ins by the day of the last leave request because he reinformed the company that he had been doing so. . . . . On this record, we hold that a reasonable jury could conclude that [he] provided adequate notice of his need for unforeseeable FMLA leave each time that he called in.
The minority opinion also concluded that he had complied
with the employer’s customary call-off policies and the majority opinion
agreed: “For the reasons stated in the lead opinion, a reasonable jury could
find that [the plaintiff] provided sufficient notice of his intent to take FMLA
leave under [the employer’s] internal leave policies.”
In general, employers can establish call-in procedures, and they may deny FMLA leave if an employee fails to follow those instructions. . . . Accordingly, [the employer] could adopt a policy requiring employees to call both Sedgwick and the [the employer’s] call-in line to report an FMLA absence. But an employee cannot be faulted for failing to comply with company policy if the policy was unclear or the employee lacked notice of the policy.
In this case, Sedgwick’s letter was so confusing that even Mitchell, who worked in FCA’s human resources department, could not decipher what it was asking employees to do. . . .
Understandably, [the plaintiff] did not follow these confusing instructions to a tee. He believed that he simply had to call the 1-800 number and report his absence. He “didn’t realize there was a second number.” . . . .We cannot fault him for failing to call both [the employer] and Sedgwick when (1) the list of instructions only gave one phone number (the one he called), and (2) the letter did not clearly list a phone number for Sedgwick. Moreover, Render took other steps to ensure that he properly reported his FMLA days. In the days immediately following his absences, he told two different supervisors that his absences were FMLA days, and he followed up with [the HR Manager] to ensure that his absences were properly coded.
As for his retaliation claim, the Court had no trouble
finding that the plaintiff had engaged in protected activity in requesting
FMLA leave and that the employer knew about his requests before terminating him. It was irrelevant whether the absences were
in fact protected by the FMLA for purposes of deciding whether he had engaged
in protected activities.
Employers are charged with knowing about FMLA protected activity as soon as an employee requests leave, even if it turns out the employee was not entitled to benefits. It is the request that is protected activity. . . . . Even if [the employer] did not know that [the plaintiff] was using his intermittent FMLA leave at the time of his absences, the issue is whether it knew about his protected activity before it terminated him. In this case, even if [the manager] was unaware that [the plaintiff] asked to use his leave on December 6, she admitted that she knew he was claiming FMLA protection by December 8, over a month before she terminated him.
The Court’s majority also found that the plaintiff could
satisfy his burden of showing that his protected activity motivated his
termination because of the temporal proximity between his initial FMLA request
in October, his first attempt to use it in December and his termination in
January. While the employer may rely on
the violation of his probation terms as its legitimate and non-discriminatory
reason, the prima facia causation element was satisfied by the temporal
proximity of the events.
The Court also found that the plaintiff could show pretext
on the ground that the employer’s explanation had no basis in fact because his
absences had been miscoded by the FMLA administrator as miscellaneous instead of
as intermittent FMLA as he had been conditionally approved. When the plaintiff discovered the mistake, he
was told that he would have to request HR to re-code his absences as protected
by the FMLA. However, when he went to
the HR manager about the problem, she admitted that she could re-code his absences,
but terminated him instead.
The Court rejected the employer’s argument that it could
rely on the honest belief rule based on incorrect information given to it by
the FMLA administrator and other HR employees because the HR Manager was aware
that the plaintiff had been conditionally approved for FMLA leave, that he had
attempted to use that FMLA leave on all but one of the absences in question and
that she had the authority to re-code the absences as covered by the FMLA
leave.
Viewing the facts in the light most favorable to [the plaintiff], [the HR Manager] failed to catch the many errors that were made in the process of marking [his] absences as “MISU.” Even though she had the power to fix those errors, [she] did not recode [his] absences. Instead, she terminated him. A jury could find that [her] errors were the only thing giving her a reason to terminate [him], given that his absences would have otherwise been excused. Indeed, the record shows that [she] terminated [him] even though she knew that he was trying to use his FMLA days and that he was already conditionally approved for intermittent FMLA leave. Still, she refused to recode the absences as FMLA. A jury could thus find that the proffered reason had no basis in fact.
. . . .At this point, [he] has provided ample evidence indicating that [the employer] wrongfully designated his absences as unexcused when they should have been coded as FMLA. And [she] admitted that she terminated [him] even knowing that he qualified for FMLA leave and that he was trying to use his approved leave to cover his absences and tardies in December and January. [He] thus raised sufficient facts showing that FCA’s nondiscriminatory reason was pretextual.
In short, the honest belief rule will not protect a manager
from her own error when she was on notice that she may have been given incorrect
information during her investigation.
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 change or be 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.
