Sixth Circuit Finds Adult Sibling Could be "Child" Under In Loco Parentis FMLA Theory and False Unemployment Compensation Answers Could Be Retaliatory

Last month, the Sixth Circuit Court of Appeals reversed an employer’s summary judgment and remanded the case for the trial court to determine whether the plaintiff employee could qualify as in loco parentis for her adult sister and, thus, be eligible for FMLA leave. Chapman v.  Brentlinger Enterprises, No. 23-2582 (6^th Cir. 12/13/24).   It also remanded on the grounds to determine whether the employer retaliated against her for seeking FMLA leave and for being associated with an individual with a disability based on it, among other things, providing false information to dispute her unemployment compensation claim and telling her to choose between her job and her sister.   It affirmed that the employer did not retaliate for threatening to seek Rule 11 sanctions for pursuing a frivolous FMLA claim and for imposing $85/day fines for failing to send the mandatory COBRA notice.

According to the Court’s opinion, the plaintiff employee’s sister, who lived in Louisville, was dying from cancer and the plaintiff (who worked in Columbus) was helping her other sister (who apparently lived in another state) to care for her.  Her request for FMLA leave was denied because she was not the parent.  However, she was given paid and unpaid leave and her work schedule was reduced to permit her more time off.  That being said, she alleged that the HR Representative indicated that she should choose between her sister and her job.  When her healthy sister’s flight was delayed, she claimed to have attempted to contact her employer on Sunday night to let them know that she would be late on Monday.  However, the text was not received until mid-Monday morning, after the employer attempted to call her when she was late reporting to work, and she was terminated.  Her sister died two days later.  The employer apparently informed the unemployment office that she abandoned her job, disenrolled her from the medical plan the next month, but then failed to send her a COBRA notice.  When her lawyer threatened to file suit under the ADA, the employer’s lawyer threatened to see sanctions under Rule 11.

The trial court agreed that the FMLA does not allow for time off to care for a sibling and could not be “in loco parentis” unless that parental relationship or the serious illness began while the sibling was a minor. Otherwise, the list of enumerated relationships covered by the FMLA would be meaningless.  The court explained that “if merely caring for someone with a serious ailment could create an ‘in loco parentis’ relationship, then anyone who took time off to care for a seriously ill nephew, cousin, or friend would have an ‘in loco parentis’ relationship with that person.”

 However, the appellate court found that it was an issue of fact. In examining the FMLA, it concluded the statute and regulations to be ambiguous about when the parental relationship must have begun.  It found no requirement that it must begin before the onset of the serious illness.  It then looked at common law decisions (concerning mostly cases about survivorship benefits) and found that a cousin, sibling or aunt could qualify as a parent depending on the circumstances even though the relationship did not begin until adulthood. 

While the FMLA tells us what protections are available for in loco parentis parents and their children, this case hinges on whether [the plaintiff] was an in loco parentis parent at all. The FMLA neither defines “in loco parentis” nor specifies how or when these relationships form. We know that the FMLA contemplates in loco parentis relationships that involve children who are eighteen or older. After all, the FMLA states that an employee, including an in loco parentis parent, can take time off to care for a sick child over the age of eighteen if that child has a disability that renders them incapable to care for themselves. Id. § 2611(12)(B). But in that situation, the text does not say whether the in loco parentis relationship or the child’s disability must have started during the child’s minority. The text also does not specify whether the in loco parentis relationship must predate the child’s incapacity. Resolving this case requires us to answer those questions.

 . . .

we drew an analogy to legal adoption, which is not limited to minors. Id. The definition of an in loco parentis relationship from the Cyclopedia of Law and Procedure centered on adoption: “A person standing in loco parentis to a child is one who has put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation, without going through the formalities necessary to a legal adoption.” . . . .

 . . . [The employer] argues that Niewiadomski—which also surveyed the common law—weighs in its favor because there, we observed that an in loco parentis relationship “is essentially different from the relationship of brother and sister,” which does “not include the legal obligations existing between parent and child.”  . . .  But that observation just restates an obvious point: when a person acts in loco parentis to another, they take on duties of care and support that surpass what is typically shown toward a sibling. The observation does not rule out the possibility that a sibling could take on those duties. And Niewiadomski explicitly declined to rule on the question of whether a deceased cousin’s adulthood foreclosed the possibility that an in loco parentis relationship formed when his slightly older cousin took him in.

 . . . .

Therefore, reading the FMLA against the backdrop of the common law, we conclude that in loco parentis relationships can form between adults, including adults who also happen to be siblings. Contrary to the district court’s reading, the “child” in the in loco parentis relationship need not be a minor at the time the relationship forms, have developed a debilitating condition as a minor, or have developed that condition before the relationship formed. Indeed, under the common law, a debilitating condition was not a requirement at all.

It also concluded that she had alleged sufficient facts to warrant reconsideration, although it was still unclear whether she would qualify under the common law standard as a parent instead of as a sibling who shared care-giving duties with another sibling. “The district court’s concern assumes that ‘merely caring for someone with a serious ailment’ creates an in loco parentis relationship. As we describe later, that’s not so; it requires a more robust relationship.”    The court’s decision indicates that:

Between June 20 and 25, [the plaintiff] used her allotted paid time off to travel to Kentucky to take care of [her dying sister]. [She] alleges that she supported her sister financially by paying some portion of her bills and buying groceries and other essential household items. She also cooked her sister’s meals and hand fed her, helped her use the bathroom, cleaned her up when she was incontinent, brushed her hair and teeth, and took care of her apartment by cleaning, taking out the trash, and doing laundry. She managed some of her sister’s medical needs by administering over-the-counter medications, using massage tools and hot-and-cold packs, and shifting her around in bed to prevent bed sores. She also provided emotional support. [Her] other sister  . . . . provided similar care to [the dying sister] during the same period. On some days, [the plaintiff] or [her other sister] took care of [the dying sister] alone, and on others, the sisters divided the responsibilities. [The other sister] was [the dying sister’s] medical power of attorney. When [the plaintiff] ran out of paid days off, [the employer] allowed her to take unpaid leave at its discretion, but it was unclear for how long.

A number of factors remain to be explored.

The touchstone of this inquiry is intention. As Lord Cottenham observed in synthesizing Lord Eldon and Sir Grant’s definitions, “the principal value” in the definition of in loco parentis is “the intention, rather than . . . the act of the party.”  . . .  Accordingly, we ask not just whether a person has taken on the role of a parent by “assuming obligations” of a parental nature, but also whether they have done so “with the intention” of serving as a parent.  . . .  It’s not enough that a person has provided for another as a parent might, though that “raises a strong inference that the person had assumed the character of a parent.” Id. The person “must have intended to assume” that role.  . . . . Other circuits examining the common law agree, emphasizing that “the loco parentis relationship is such that it must reside in the minds and hearts of the parties involved.”

But how do we know adult parties intended to assume a parental relationship? In some cases, we have relied on direct evidence that the parties thought of themselves as parent and child, including their internal communications and statements to others that they perceived themselves as being akin to a “mother” or “son.” Mainly, however, courts have relied on indirect evidence to discern the parties’ intent. Courts look for “objective manifestations” of a parent-child relationship, including “the kind of service done and the kind of thing given.” Banks, 267 F.2d at 538–39.

                   . . .

Juxtaposing two of our precedents provides helpful guidance. In both Niewiadomski and Thomas, an adult relative—who either had no immediate family or was estranged from immediate family—came to live with an older relative (though the cousin in Niewiadomski was only a few months older, while the aunt in Thomas was about two decades older).  . . . The cases have many similarities. We noted in both that the alleged in loco parentis parent took her cousin or nephew into her home and provided lodging, a seat at the table for meals, medical care, and clothing.  . . . The alleged in loco parentis children also accompanied the families on vacations, exchanged gifts on the holidays, and contributed to household chores.  . . .  And in both cases, the younger relatives later served in the military and designated their aunt or cousin as the beneficiary of their statutorily provided military life insurance, identifying the relationship as parental . . .  Both servicemen died while serving in the military, and the cousin in Niewiadomski and aunt in Thomas sought to collect as the in loco parentis parent.  . . .

Yet in Niewiadomski we held there was no in loco parentis relationship, while in Thomas, we held there was.  . . . This distinction rested on several key factors. Perhaps most significant, we focused on the direct evidence of how the relatives thought of one another. Recall that the “intention” to take on a parental role is critical, so in Niewiadomski, the older cousin’s own testimony that they referred to one another as “brother” and “sister” and that “she considered the insured as a brother, and not as a child” was the “most conclusive factor” in the case.  . . . . Contrast that with Thomas. While in the army, the nephew sent his aunt “intimate letters of affection,” including a “so-called ‘Mother-gram’” on Mother’s Day, concluding with: “You are a wonderful Mother.”

The Court also remanded to reconsider the retaliation claim.  The plaintiff alleged that co-workers with poor attendance were not terminated under similar circumstances and, if that she was not fired for being absent but in retaliation for having requested FMLA leave (even if she ultimately were not eligible for FMLA leave).   Also, the employer provided false information to oppose her unemployment compensation claim by claiming that she abandoned her job when it was admitted that she was fired and that she had not quit or abandoned her job.

A jury could find that making false statements to an unemployment authority is a “plainly adverse repercussion on [the plaintiff] and her family” because it can result in “the loss of income associated with unemployment benefits.”  . . .  The false statements, or threat thereof, may require a plaintiff to choose whether to “seek vindication” of her rights or “risk a former employer’s intentional efforts to . . . stymie her receipt of income.” Id. And they could reasonably dissuade her from choosing the former.

Interestingly, it did not find the threat of Rule 11 sanctions to be retaliatory because lawyers are supposed to send such a letter before filing a Rule 11 motion.

The Court also remanded the plaintiff’s ADA claim.  Although she was not entitled to leave under the ADA to care for her sister, it would violate the ADA to fire her because of her association with her dying sister.   She alleged that the HR Representative had told her that she should choose between her sister and her job and she was fired when she was late returning to work from caring for her sister.  She alleged that the employer made a discriminatory assumption that her sister was distracting her from her job duties. “The ADA thus prevents an employer from terminating an employee based on “unfounded fears that [the employee] would be distracted at work on account of” a loved one’s disability."

Finally, the Court affirmed the $85/day fine for failing to provide the plaintiff with the mandatory COBRA notice.  It maximum fine is $110/day. “ The district court reasoned that Chapman had not produced evidence that MAG violated COBRA in bad faith, but that she had shown she was “significantly prejudiced by the lack of notice.”  . . .  Because she did not receive notice of her coverage options under COBRA, Chapman did not acquire health insurance until May 2020. Without coverage, she delayed treatment for a condition she later discovered was malignant skin cancer.”

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.

Be Careful What You Ask For: Employees With Disabilities Lost Two Cases Last Week.

 In the vein of “be careful what you ask for,” two different courts last week ruled against employees with medical issues.  In the first case, an employee with a serious disability and who required a medical leave of absence admittedly asked to be laid off so that he could received enhanced unemployment compensation during COVID because the employer did not have a paid leave program.  Bair v. Crystal Glass, No. 24-1390 (6^th Cir. 12/3/24).    Although he had been told that he could not return to work without a medical release from his physician, he never provided one and, instead, sued under the ADA.  The court summarily ruled against him because he received the accommodation that he requested. 

In the second case, the employee’s FMLA approval and accommodation agreement for his sleep apnea and narcolepsy had expired years earlier and he had failed to update them with a medical statement from a practicing physician because his former physician had retired. Price v. Cellco Partnership, 2024-Ohio-5697.  When he requested July 2022 additional breaks to deal with stress and sleep deprivation, his request was denied because he could not support it with a physician’s statement.  He did not request any other accommodations or leave before resigning without notice in May 2023. “He also admitted that he did not take any other actions to avoid quitting on May 11, 2023.”  Indeed, he still had not found another physician as of the time of the unemployment hearing.   As a result, his claim for unemployment benefits was denied on the grounds that he quit his employment without a good reason.

The court rejected his argument that it would have been futile to ask for another reasonable accommodation:

[He] also asserts that asking whether alternative/comparable positions were available would have been futile because finding a position that could be performed while operating under only 30 minutes of nightly sleep would have been difficult or even impossible.  . . .  Nevertheless, the onus was on [him] to make the request. The record is clear—indeed, [he] concedes—that he did not. Thus, the Commission’s finding that [he] voluntarily quit his job without just cause is supported by competent, credible evidence, and he is not entitled to unemployment compensation benefits. . . .

In sum, as the trial court and the Commission found, an ordinarily intelligent person would have inquired whether comparable jobs that could accommodate his medical conditions were available (and then not being offered any such opportunities, if any) prior to quitting his position. In addition, an ordinarily intelligent person would have pursued a potential FMLA-related leave more diligently by taking additional steps to obtain the required medical documentation for such a leave (as [he] had done in the past). Competent, credible evidence shows that [he] did not do either—indeed, [his] own testimony readily shows this. Thus, competent, credible evidence shows Price voluntarily abandoned his job without just cause. Therefore, he is not entitled to unemployment compensation benefits.

 . . .

There is no evidence in the record that [the employer] was planning on discharging [him]. Indeed, [he] himself testified that no one from [the employer] told him he was going to be terminated; nor was he ever asked to resign in lieu of being discharged . . .

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.

FMLA Retaliation Claim Survives Dismissal Even if Employee Was Not FMLA Eligible at Time of FMLA Request

On Monday, the Lake County Court of Appeals reversed an employer’s judgment on a FMLA claim brought by a former employee who had been fired the day before she was to marry her seriously ill finance after she requested once again to leave work early.   Mahoney-Offi v. Great Expressions Dental Ctrs., 2024-Ohio-5160.   The court concluded that her complaint could state a valid claim for FMLA retaliation because she was not required to be eligible for FMLA at the time of the leave request.  If she “is ultimately able to prove that her termination was not the result of her request to leave early on December 9 but in retaliation for her prior inquiry about FMLA leave, then she has stated a viable claim for retaliation under the FMLA.”

According to the court’s opinion, the plaintiff had been requesting to take time off to care for her seriously ill boyfriend.  She had requested and been denied FMLA on the grounds that they were not married.  However, it was suggested to her by management that she would be eligible for FMLA if she married him.  Shortly thereafter, they became engaged and were scheduled to be married on December 10.  On December 9, she requested to leave work early.  Initially, it was to prepare for her wedding, but later she said it was because he had become sicker and she needed to care for him.  Knowing that she planned to marry the next day, the employer then fired her on December 9.  She filed suit under the FMLA, which was initially dismissed on the grounds that she was not eligible for leave on December 9 and had already been denied leave.

The Court of Appeals reversed on the grounds that a plaintiff may pursue a FMLA retaliation claim if she was terminated for merely requesting leave (which is a protected activity) even if she was not eligible for leave at the time of the FMLA request.   However, a jury could still rule in favor of the employer if it found that she was fired for requesting to leave early on December 9, instead of the leave which the employer knew she intended to take after she was married on December 10. 

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.

What's New with Unions, Non-Competes and FMLA?

 I’m running a bit behind in my blogging, so I will cover more ground and be a bit more abbreviated than usual. The Supreme Court held that unions can be held liable for intentionally damaging employer’s property during a strike under state law because such claims are not pre-empted by the NLRA.  The NLRB’s General Counsel has officially declared war on most non-compete agreements, although employees can be prohibited from accepting an ownership or management interest in a competitor.   The DOL also explained how to calculate FMLA leave during a holiday week and when the employee’s doctor says that they cannot work more than 8 hours/day. 

The Supreme Court ruled that an employer’s intentional tort claims against a union were not preempted by the National Labor Relations Act when the union started a strike after the employer had filled its cement trucks, which caused the employer to lose all of the cement and risk losing many of the trucks if they were not immediately unloaded in a safe location before the cement hardened in them.  Glacier Northwest, Inc. v. Int’l Bhd of Teamsters, Local 174, No. 21-1449 (U.S. 6/1/23).  The state supreme court had held that the damage was incidental to the lawful strike and, therefore that the tort claim was preempted.  However, the Court’s 8-1 majority found that the NRLB had long required employees to take “reasonable precautions” to protect an employer’s property from foreseeable, aggravated and imminent danger.  Because the union had failed to take “reasonable precautions,” and actually sought the obtained result, its strike activity was not even arguably protected and could not pre-empt state tort laws.  By reporting for duty and prompting the employer create a perishable product, they created an imminent risk of harm to the trucks and destroyed the concrete by then walking off the job after it was poured.

 . . . the Union’s decision to initiate the strike during the workday and failure to give [the employer] specific notice do not themselves render its conduct unprotected. Still, they are relevant considerations in evaluating whether strikers took reasonable precautions, whether harm to property was imminent, and whether that danger was foreseeable. In this instance, the Union’s choice to call a strike after its drivers had loaded a large amount of wet concrete into [the employer’s] delivery trucks strongly suggests that it failed to take reasonable precautions to avoid foreseeable, aggravated, and imminent harm to [the employer’s] property.

                . . .

[The employer] alleges that the drivers’ conduct created an emergency in which it had to devise a way to offload concrete “in a timely manner to avoid costly damage to [its] mixer trucks.” App. 72. The Union’s actions not only resulted in the destruction of all the concrete [the employer] had prepared that day; they also posed a risk of foreseeable, aggravated, and imminent harm to [its] trucks. Because the Union took affirmative steps to endanger [the employer’s] property rather than reasonable precautions to mitigate that risk, the NLRA does not arguably protect its conduct.

A day earlier, the DOL issued a rare opinion letter FMLA2023-2-A about the FMLA.  In it, it explained that when holidays fall during a week in which the employee takes FMLA leave, whether the holiday counts towards the FMLA 12 week entitlement depends on whether the employee took off the full week (meaning the holiday counts) or whether the employee took off less than a full week (meaning the holiday would not count towards the 12 weeks).  The reason being that if the employee typically works 5 days a week and only took one day off for FMLA during a holiday week, the employer may only count 20% of the week against the 12-week entitlement and not 25% (as though it were a four-day work week). 

When a holiday falls during a week that an employee is taking a full workweek of FMLA leave, the entire week is counted as FMLA leave. 29 C.F.R. § 825.200(h). Thus, for example, an employee who works Monday through Friday and takes leave for a week that includes the Fourth of July on Thursday would use one week of leave and not 4/5 of a week. However, when a holiday falls during a week when an employee is taking less than a full workweek of FMLA leave, the holiday is not counted as FMLA leave unless the employee was scheduled and expected to work on the holiday and used FMLA leave for that day. Id. The Department has taken a consistent approach to the treatment of holidays since the first publication of its FMLA regulations in 1995. See 60 Fed. Reg. at 2200; see also Final Rule: The Family and Medical Leave Act of 1993, 73 Fed. Reg. 67934, 67972-73 (Nov. 17, 2008).

Also on May 30, the NLRB’s General Counsel issued an enforcement Memorandum indicating that she intends to litigate the enforceability  of most non-management non-compete agreements on the grounds that they prevent employees from quitting their jobs and finding new ones and on the belief that most are overly broad.  In other words, she finds most non-compete agreements issued to non-management employees to violated the National Labor Relations Act whether issued during, before or after (in a severance agreement) employment and regardless of the motivation (i.e., confidential information or training investments).  She had conceded that it would not violate the NLRA to prevent employees from engaging in an ownership, management or independent contractor relationship with a competitor following employment. 

Earlier this year, the DOL also issued an FMLA opinion letter No. FMLA2023-1-A reminding employers that employees can essentially take unlimited FMLA leave.  In the employer’s request, the employee’s physician instructed him to not work more than 8 hours/day, even though the employer frequently needs employees to work more than 8 hours/day and operates a 24-hour-day business.  The DOL indicated that the employee remains entitled to 12-weeks of FMLA leave, not just an ADA reasonable accommodation.  If the employee typically works 50 hours/week, then employee would be entitled to 600 hours of leave, not just 480 like a typical 40-hour/week employee. 

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.

Sixth Circuit Rejects EFMLEA Claim Where Employer's Final Offer of Reinstatement Was Not Shown to Be a Violation and Revocation of Flexible Class Schedule Affected More Than Just the Plaintiff.

On Friday, the Sixth Circuit Court of Appeals affirmed an employer’s summary judgment on claims by a medical assistant that it interfered with her EFMLEA leave by refusing to reinstate her to her former position or on the same terms and conditions by changing her job duties during the COVID pandemic and revoking her prior flexible work schedule.  Clement v. The Surgical Clinic, PLLC, No. 22-5801 (6^th Cir. 4-21-23).  The Court found that reassignment claim lacked merit because, after she objected to the change in job duties, she was offered a suitable transfer which she had accepted and which was willing to accommodate her job schedule.   While the revocation of her flexible schedule (to attend classes) constituted a prima facie violation of the statute, the employer was able to show that it revoked all prior authorizations of flexible schedules to attend classes – regardless of whether the employee had utilized EFMLEA or FMLA – because of the emergency situation created by the pandemic.  This was not only a legitimate and non-discriminatory reason, it applied regardless of whether the employee took EFMLEA or not.  Employees taking EFMLEA are not entitled to greater rights than employees who do not take such leave. 

According to the Court’s opinion, the plaintiff was hired for the clinic’s downtown (and busiest) clinic in 2018 where she would assist one physician and sometimes engage in patient triage.  She was allowed to shift her schedule by 30 minutes each day because of childcare responsibilities and to start two hours later when she had class (which required the employer to find replacement coverage for those hours).  When the pandemic began, the plaintiff utilized two months of leave under the Emergency Family and Medical Expansion Act.  When she sought to return to work, she was informed that she would be assigned to engage in triage on a full-time basis and that she could no longer report to work later than the rest of the staff.  When she objected, the employer found that one of its other offices was willing to give her a non-triage position and permit her to start work 30 minutes later each day.  However, around the same time, the employer notified all of its clinics that employees could no longer miss work in order to attend class because of the staffing shortage caused by the pandemic.  The plaintiff and at least one of the employee resigned because of the new policy of no longer accommodating class schedules and the plaintiff filed suit, claiming that these changes violated her rights under the EMFLEA.

The EFMLEA entitles qualified employees to reinstatement to the same position they held prior to taking leave—or, at least, to an “equivalent position.”  . . . An equivalent position is “one that is virtually identical to the employee’s former position in terms of pay, benefits and working conditions, including privileges, perquisites and status” and which “involve[s] the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.” 29 C.F.R. § 825.215(a). Among other things, employees are generally entitled to work the same or an equivalent work schedule upon their return from leave. Id. § 825.215(e)(2). That said, “[t]he requirement that an employee be restored to the same or equivalent job with the same or equivalent pay, benefits, and terms and conditions of employment does not extend to de minimis, intangible, or unmeasurable aspects of the job.” Id. § 825.215(f).

The Court refused to find any interference with the plaintiff’s EFMLEA right to reinstatement based on its initial condition of assigning her to full-time triage work and revoking her authorization to start and end work 30 minutes after the rest of the staff because it was not the employer’s final offer.

But we are aware of no authority suggesting that an employer’s offer that it later revises is binding for purposes of establishing interference. On the other hand, it is well-established that plaintiffs must prove they suffered harm from an employer’s interference with their statutory rights. . . . To assess harm, we must evaluate the employer’s action that prompted the employment outcome, and it would seem that early offers would be superseded by the final offer on which the plaintiff was required to act. Notably, we have also consistently held that “the FMLA is not a strict-liability statute.” . . . approach tends toward strict liability in that it would deprive even the most well-meaning employers the opportunity to course-correct from potential EFMLEA violations—for example, by returning to the table with their employees to work out acceptable terms of employment.

 . .. To be considered equivalent, an employee’s new role must be identical in pay, benefits, and working conditions. 29 C.F.R. § 825.215(a). There is no dispute that [her] compensation and benefits would have gone unchanged following a transfer to The Vein Centre. What’s more, [she] would have continued working as a medical assistant at The Vein Centre, which is located a short distance away from TSC. And although she argues that TSC’s first reinstatement offer entailed substantially altered job duties (in that TSC would have assigned her to triage full-time, for example), she makes no effort to establish how or why TSC’s final offer suffered from the same shortcomings. Nor has she developed any argument on appeal that working at The Vein Centre, in and of itself, would deprive her of an equivalent position. Thus, even viewing the facts in the light most favorable to Clement, nothing suggests that the position at The Vein Centre would have involved anything less than “the same or substantially similar duties and responsibilities” as Clement’s previous role. And TSC agreed to accommodate her preferred 8:00 a.m. start time at The Vein Centre—a fact which Clement concedes. Thus, no reasonable factfinder could determine that her pre- and post-leave positions were inequivalent in this regard.

However, the revocation of her two-hour schedule delays when she previously would have attended class presented a different issue and outcome. 

The district court held that this series of events raised a question of fact as to whether TSC restored Clement to the same or an equivalent position at the company. We agree. 29 C.F.R. § 825.215(e)(2) provides that employees are generally entitled to “the same or an equivalent work schedule” following leave. There is no dispute that TSC did not allow Clement to work the same schedule she had before her EFMLEA leave. And TSC’s proposed altered schedule, excluding time away during the workday to attend classes, made it impossible for her to balance her school and work obligations—ultimately leading to her resignation from TSC. We thus cannot say that this schedule change was de minimis as a matter of law. See id. § 825.215(f).

Nonetheless, “interference with an employee’s FMLA rights does not constitute a violation if the employer has a legitimate reason unrelated to the exercise of FMLA rights for engaging in the challenged conduct.”

The FMLA relatedly provides that it “shall [not] be construed to entitle any restored employee to . . . any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave.”  . . .  Thus, employees who request FMLA or EFMLEA leave “have no greater protection against [their] employment being terminated for reasons not related to [their EFMLEA] request than [they] did before submitting that request.” . . . This means a plaintiff has no actionable interference claim if her employer can show that it would have made the same decision at issue even had the employee not exercised her EFMLEA rights.

The employer had no difficulty proving that it would have the same scheduling decision even if the plaintiff had not taken EFMLA leave:

 . . . employees testified that accommodating [her] school schedule “put a hardship on [it]” even before the pandemic. Then, after the COVID-19 outbreak in March 2020, [its] staff had to balance increased demand at their clinics with staffing shortages. Under these circumstances, [it] concluded it could no longer permit staff to leave the office during working hours for school. It therefore enacted a company-wide policy prohibiting flexible school and work schedules. This pandemic-related change was not specific to [her] and would have occurred regardless of her EFMLEA leave. Therefore, [it] proffered a legitimate justification for its decision.

The plaintiff attempted to prove that the policy change was related only to her reinstatement.  However, when the employer initially revoked her authorization to attend class during work hours, it did so in connection with the pandemic scheduling challenges – the same justification for the company-wide policy.  This was not inconsistent with the employer’s explanation for the policy.  While the pandemic cannot be a magic bullet justification for every employment decision, in this case, even the plaintiff acknowledged the challenges facing the medical profession.    It was also undisputed that the employer’s decisions affected (and motivated the resignations) of individuals besides the plaintiff.

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.

Sixth Circuit Rejects ADA Claim Based on Self-Diagnosis and Belated Request to Transfer to Avoid Supervisor Even Though Employee Later Discovered Brain Tumor

A unanimous Sixth Circuit yesterday affirmed an employer’s summary judgment on claims brought by an employee terminated for repeated poor attendance which she later blamed on persistent depression and a brain tumor that were not discovered or diagnosed until after her termination.   Hrdlicka v. General Motors LLC, No. 22-1328 (6^th Cir. 2/7/23), reissued (6th Cir. 3-23-23).  The Court found that her time off requests were not specific enough to prevail on disability discrimination, failure to accommodate or denial of FMLA claims and the employer was justified in acting based on the information that it had at the time and was apparently not required to inquire further.   Merely mentioning possible depression is insufficient to put an employer on notice of the ADA because depression is not always a disability and the employer reasonably attributed the issues to a personality conflict.  The Court also found that the employer was not required to engage in the interactive process when her unreasonable request to transfer was plausibly based on her dislike of her job, co-worker and supervisor rather than self-diagnosed depression.   It also found her request to transfer was too little too late when it came after her Final Written Warning, after she had been late two more times and two days before she was ultimately fired.

According to the Court’s opinion, the plaintiff had worked for GM for over 30 years when she was terminated for excessive absenteeism.  She had previously taken a few medical and other leaves of absence, showing that she knew how to request such leaves.   She was transferred to a new department in May 2018, but did not like a co-worker, her new supervisor or the work environment.   She requested by August to be returned to her former department, but her position had been eliminated, she was not qualified for any other positions and someone would have to backfill her current position.   Within a year, she began frequently missing, and being hours late for, work.  She gave a variety of reasons for her attendance, when she explained it at all, including child care issues, traffic, not feeling well, headache, bad cough, family situations, being tired, etc.  The only time she mentioned going to see a doctor was a fabrication.  Her attendance was criticized in her June 2019 performance evaluation and, finally, she was given a final written warning on August 14, 2019 after she had missed the summer intern presentations over which she had primary responsibility.  She was encouraged to utilize a medical leave of absence or seek a reasonable accommodation if necessary and provided with information to contact the EAP.  She was late the next two days and then on August 19 requested against to transfer back to her former department.  To support this request, she mentioned that she was unhappy with her work environment and supervisor and it was disputed whether she also mentioned that she had been suffering from [self-diagnosed] depression.  She was late again the next day and her employment was terminated.    

She immediately appealed her termination and claimed that she had informed HR before her termination that she suffered from depression caused by her supervisor.   In October, she was diagnosed with persistent depressive disorder.  A brain tumor was discovered in November and removed.  The employer was so informed.   Her appeal – which was limited to facts which existed at the time the August termination decision was made – was denied because there was no evidence submitted prior to her termination to substantiate her depression.  She then filed suit, alleging violations of the ADA, FMLA, state law, ERISA,  and Title VII.  The employer was granted summary judgment on all claims and the Court of Appeals affirmed. 

The Court agreed that she could not prevail on a disability discrimination or failure to accommodate claim based on an impairment which was not even diagnosed until after her termination, particularly when she never sought medical help until after she had been fired.  The Court was not influenced by her self-diagnoses:

Although an employee is not required to use the word “disabled” to put his or her employer on notice, the employer still must “know enough information about the employee’s condition to conclude that he is disabled. Relevant information could include, among other things, a diagnosis, a treatment plan, apparent severe symptoms, and physician-imposed work restrictions.”  . . . “The employer is not required to speculate as to the extent of the employee’s disability or the employee’s need or desire for an accommodation.”

[Plaintiff’s] text messages required [her supervisor] to speculate as to the existence of a disability. Many of the text messages reference only generalized ailments, such as [her] “head . . . really hurting,” having a “fever and other symptoms,” or simply being “sick.” Such symptoms are consistent with many short-term, nondisabling ailments, including a common cold. Other text messages make even more general references to “having a tough time” or dealing with “a mental thing.” Although these messages might have given [the supervisor] a general awareness of a health issue, that is not enough. . . . .. At bottom, these text messages were not sufficient to apprise [the supervisor] of a disability, especially when [the plaintiff] herself was unaware of any disability.

The closer question is whether [the plaintiff] put General Motors on notice of a disability when she met with [HR] shortly before she was terminated. In that meeting, [she] told them that she had felt depressed since transitioning to the Design Academy. In explaining her tardiness, however, [she] stated that “it was all related to [her] current work environment created by [her supervisor,] . . . includ[ing] a lack of leadership, direction, a lack of trust within the group, favoritism,” etc. . . .

In sum, [the plaintiff] made only a single, unsubstantiated statement that she was depressed without any corroborating medical evidence and without ever having sought medical help, and she consistently presented the issue as a workplace conflict, not a disability. Although a diagnosis is not necessary for an ADA claim to succeed,  . . .  [she] failed to present any of the “[r]elevant information” that this court has found pertinent to determining if an employer was placed on notice of a disability. . . .

The mention of depression alone is insufficient to constitute a “severe symptom” for two reasons. First, depression does not always render an employee “disabled.” . . . Second, [she] consistently and specifically attributed both her attendance issues and depression to a dislike of [her supervisor] and the work environment, leaving General Motors to “speculate” as to the existence of a disability as opposed to [her] concern about her interpersonal work conflict.

The Court also concluded that even if she suffered from a disability, the employer had a legitimate reason to terminate her for her repeated poor attendance and prior warnings: “The chronic tardiness and repeated absences, coupled with [her] immediate failure to abide by her Attendance Letter, were clearly legitimate, nondiscriminatory reasons to terminate her.”

The Court also rejected her failure to accommodate claim based on her request to transfer back to her former department days after her Final Written Warning and two days before she was terminated (after she had again been late to work without a valid medical excuse).   She had never linked this request with any purported disability.  Unlike the Sixth Circuit panel just days earlier, it found her request to transfer to avoid her supervisor was unreasonable:

Based on the facts in the record, however, this request was not “reasonable.” A transfer request is not reasonable if it was made to avoid working with certain people. . . . . A court is not in a position to “act as a super-bureau of Human Resources” and determine who should work with whom.

[She] herself conceded during her deposition that, when meeting with [HR], she “complained about [her co-worker] and [her supervisor’s] lack of leadership at this meeting” and that her tardiness was “related to [her] current work environment created by [her supervisor].” In other words, she attributed her attendance issues to the work environment and to her supervisor. She explicitly noted that her depression began once she was transferred to the Design Academy, and that this “precipitated her request for a transfer back to Sculpting.”

These facts compel the conclusion that her transfer request was specifically linked to her distaste for her current work environment. Basically, it was a desire to “force [the defendant] to transfer [her] so that [she] will not be required to work with certain people.” . . .

Even assuming that [she] adequately attributed her request to a disability and not just to a desire to escape the Design Academy, her request was untimely. “When an employee requests an accommodation for the first time only after it becomes clear that an adverse employment action is imminent, such a request can be ‘too little, too late.’” . . .

Similarly, [her] request came after a long history of attendance issues and a warning that her “job was in jeopardy” if she did not improve. After [she] arrived late for three successive days immediately following the issuance of her Attendance Letter, she was terminated. Her last-minute request for a transfer back to the Sculpting Department was not reasonable under the circumstances.

The Court also rejected her argument that her employer failed to engage in the interactive process:

General Motors did not violate a duty to engage in an interactive process because the duty is an independent violation of the ADA only “if the plaintiff establishes a prima facie showing that he proposed a reasonable accommodation.” Id. at 1041. As discussed above, [she] did not request a reasonable accommodation and, therefore, General Motors did not fail to engage in an interactive process.

The Court also rejected her FMLA claim on the ground that she failed to provide sufficient notice of the need for such leave.  Her “general references to her head “really hurting,” feeling “sick,” or having a “fever and other symptoms” are simply generalized descriptions of ailments that do not rise to the level of “serious health conditions” within the meaning of the FMLA.”

The better argument is when [she] more explicitly referenced having “depression” in her meeting with [HR] shortly before she was terminated. But this conversation was not accompanied by any request for FMLA leave despite the fact that [she] was familiar with the process because she herself had already taken FMLA and maternity leave when she had had her two children. Moreover, the possibility of taking FMLA leave was directly stated in her Attendance Letter, which was both read and emailed to [her].

                 . . .

             . . . In sum, [she] made only a single statement that she was depressed, which was not made in the context of requesting time off, but as a justification for her desire to transfer back to the sculpting Department (and to continue working, not stop working as FMLA leave would entail).

The remaining claims were denied based on the employer’s legitimate and non-discriminatory reason to terminate her on account of her poor attendance, after several warnings, based on the information that the employer had at the time of the decision. 

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.

FMLA Bars Retaliation Against Employee for Requesting FMLA Leave Even if Unqualified or Ineligible

On Wednesday, a unanimous Sixth Circuit reversed an employer’s 12(b)(6) judgment on an FMLA retaliation claim where the employee was terminated shortly after requesting an unpaid leave due to her infant son’s health even though she had not alleged that she was eligible for FMLA leave or that her son suffered from a serious health condition.  Millman v. Fieger and Fieger, PC¸ No. 21-2685 (6^th Cir. 1/25/23).  The Court ultimately determined that “the FMLA protects the right of an employee to inquire about and request leave even if it turns out that she is not entitled to such leave.”

According to the Court’s opinion, shortly after the commencement of the COVID pandemic on March 13, the employer law firm directed its staff to work from home one day each week.  The plaintiff lawyer’s two-year old son recently been hospitalized with RSV, a respiratory illness, was still using a nebulizer and his day care remained closed.  The plaintiff had five vacation and 3 PTO days left in her time off bank.  The firm owner denied her March 14 request to work from home on March 16 and 17, but HR approved her request to use her PTO.  When her direct supervisor asked if she planned to return on March 19, she indicated that she planned to return, but was concerned that her son’s day care was still closed and he had developed COVID symptoms.  On  Thursday, her son’s condition worsened and she contacted HR and offered to take unpaid leave to avoid returning to the office.  HR did not respond to her offer to take unpaid leave or send her an eligibility notice or request for a medical statement and instead authorized her to work from home for the remainder of the week.  She forwarded the email to her supervisor and worked with him from home for the rest of the day.  At the end of the day, HR sent her a letter signed by the firm’s owner terminating her employment after she reported that her son had a cold and she had not returned to work as promised.  A week later, she requested her personnel file and was sent another letter indicating that her actions showed that she had no intention of returning to work, that she refused to work because her son had a cold and they believed that she had quit.  When she filed suit in August, the court granted the employer’s motion to dismiss on the grounds that she had not alleged that she was eligible for FMLA leave or that her son suffered from a serious health condition.

The Court first concluded that FMLA retaliation claims may be brought both under the interfere, restrain and deny statutory section and the retaliation statutory section, but that the burden of proof for retaliation claims did not change depending on which statutory section was cited.  (The concurring opinion clarified that only the interfere, restrain and deny section should support this type of retaliation claim).   

The plaintiff’s “core claim is that she was fired for inquiring about and making a request to take FMLA leave, which she argues is protected activity under the FMLA.”  For purposes of ruling on a motion to dismiss (when all factual allegations are deemed to be valid), the Court presumed that she had alleged sufficient causation and an adverse action.  The only question was whether she had engaged in a protected activity and that her employer knew she had engaged in a protected activity when there were no factual allegations indicating that she was entitled to or qualified for FMLA leave.

It makes sense that entitlement is a prerequisite to an FMLA retaliation claim in certain circumstances. In the more common circumstance, if an employee actually takes leave without being entitled to the leave, her action is beyond the scope of FMLA protection. Simply put, the FMLA protects leave that is taken only if it falls within the scope of entitlement; taking leave to which the employee was not entitled unambiguously falls outside the FMLA’s protections. . . .

This case presents an entirely different circumstance. [Plaintiff] never actually took leave; she only made a request for leave. . . . the question is whether the FMLA protects the right of an employee to inquire about and request leave even if it turns out that she is not entitled to such leave. . . .

 . . . the steps of the process created by the FMLA—including the first step, i.e., the employee’s initial request for leave—must be protected activity under the Act. FMLA rights and the statute’s purpose would be significantly diminished if employers could fire an employee who simply took the required initial steps to access FMLA leave.

                . . .

Suppose that an employee, intending to exercise her FMLA rights, meets with her employer and asks questions concerning her FMLA rights, then is fired for doing so. Concluding that no FMLA violation could occur if it turns out that the employee is not entitled to leave would render the employee unprotected during the step required to initiate the FMLA’s process. Without protection, employees would be discouraged from taking authorized initial steps—including preparing or formulating a request—to access FMLA benefits. We are not to impose nonsensical readings of a statute “if alternative interpretations consistent with the legislative purpose are available.”

                . . .

                . . . Starting with the regulation implementing § 2615(a), “[t]he FMLA prohibits interference with an employee’s rights under the law, and with . . . inquiries relating to an employee’s rights.”

                . . . .

Thus, the scope of protected activity under the FMLA starts with the first step contemplated under the Act’s procedures: a request made to the employer. That request, moreover, need not lead to entitlement in order to be protected. In this case, when her son began exhibiting symptoms associated with COVID-19, [Plaintiff] made a request to her employer for unpaid leave—following the first step of the FMLA’s process. The Firm, through Human Resources, then offered, and [she] accepted, a work-from-home arrangement for those two days and never responded to her request. [Her] action was grounded in a legitimate exercise of the FMLA’s procedural framework and was therefore protected under the FMLA.

Although the employer argued that the plaintiff had failed to provide notice that she was exercising her rights under the FMLA, the Court pointed out that the FMLA regulations make clear that employees do not need to use the words, FMLA, to request leave under the FMLA.   Rather, “the employee must provide enough information for the employer to know that the leave she has requested reasonably might fall under the FMLA. In addition, where leave is needed to care for a family member, the employee must so indicate.”

“In any circumstance where the employer does not have sufficient information about the reason for an employee’s use of leave, the employer should inquire further of the employee or the spokesperson to ascertain whether leave is potentially FMLA-qualifying.” 29 C.F.R. § 825.301(a). Once an employer is put on notice that an employee seeks to use her FMLA leave, moreover, “the employer bears the obligation to collect any additional information necessary to make the leave comply with the requirements of the FMLA.”

In addition, the employer was clearly on notice because it initially permitted her to work from home and its subsequent documentation cited her request to not return to the office.

The Firm indicated that it was aware of  [her] request based on its response: it offered an alternative accommodation to work from home for two days. The Firm had notice that [she] sought leave to care for her son who had recently been hospitalized with RSV, suffered continuing symptoms from that condition and, potentially, had contracted COVID-19. This knowledge gave rise to a duty for the Firm to, at minimum, engage in the communication required by the statute. The Firm neither sought to clarify [her] request nor did it attempt to obtain “a certification issued by a healthcare provider of . . . [her] son” to determine whether her request fell outside the scope of the Act. 29 U.S.C. § 2612(a). Instead, the Firm offered a work-from-home arrangement—which [she] accepted—and then terminated her after the first day for failing to “come into work,” indicating that her “child had a minor cold.” The Firm, thus, failed to exhaust any of its obligations in responding to [her] request. On these allegations, [she] provided proper notice to her employer that she sought FMLA leave and was acting pursuant to the FMLA’s prescribed procedures. The Firm was on notice of her protected activity.

Therefore, the dismissal was reversed and the case was remanded to the trial court to proceed with discovery.

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.

Sixth Circuit Rejects FMLA Interference Claim When Employee Was Fired for Missing Work Due to Isolation Order During 2020 Pandemic

Last month, the Sixth Circuit Court of Appeals affirmed the dismissal of an employee’s FMLA interference claim when she was fired after missing work for three weeks because of an upper respiratory infection during the COVID pandemic after her physician had advised her to stay home for 10 days and the Health Board advised her to self-quarantine because she had been exposed to COVID. Nuttal v. Progressive Parma Care Center LLC, No. 21-4199 (6^th Cir. 7/26/22).   The Court excused the employer’s failure to provide her with new FMLA eligibility or designation notices and concluded that she could not show interference with FMLA leave because she had not given her employer notice that she suffered from a serious health condition that incapacitated her or required continuing care from a physician by simply referring to her physician’s direction or the isolation order.   She had never been incapacitated and did not require continued medical care.  She had already been provided with eligibility notices with prior FMLA requests within the year and her eligibility had not changed.  A designation notice was not required until she provided a medical certification, which was never received.  Because she had already been on notice of her FMLA rights and obligations, she could not show that she had been prejudiced by the lack of a designation notice.  Interestingly, the Court never addresses the Families First Cornavirus Relief Act and how notice of an isolation order could trigger the FMLA.    

According to the Court’s opinion, in March 2020, the plaintiff developed an upper respiratory infection after being exposed to COVID.  Her physician advised her to remain home for 10 days and the Board of Health directed her to remain home until she had been symptom free for 72 hours and 1 week after symptoms first appeared.  She immediately notified her supervisor that she needed time off work.  She advised HR a few days later and was directed to use her accrued vacation and then apply for unemployment.  In early April, she asked her physician to send HR a letter about needing to remain home, but it was apparently never sent.  She continued to keep her employer informed and expressed concern about contracting COVID and her hesitancy to return to work.  On April 17, she was released to return to work and immediately informed her employer, which had already posted her job and told her that she was no longer needed.   

The plaintiff filed suit on the grounds that the employer never provided with her the required FMLA notices and interfered with her FMLA leave.  The trial court found that the plaintiff had not given adequate notice of her intent to take FMLA leave, that the employer provided required notice and she could not show the failure to provide an additional notice interfered with her FMLA leave.

The Sixth Circuit focused exclusively on the regular FMLA regulations and never cited to the Families First Cornavirus Relief Act, which was enacted by March 19, 2020:

A “serious health condition” is an illness that involves “continuing treatment by a health care provider.” 29 U.S.C. § 2611(11)(B). Illnesses like the common cold and the flu, which can be treated with bed rest, fluids, and over-the-counter medication, generally do not qualify as serious health conditions. 29 C.F.R. § 825.113(c)–(d). “Calling in ‘sick’ without providing more information will also not be considered sufficient notice to trigger an employer’s obligations under the Act.” Id. § 825.303(b).

The plaintiff alleged that she had been her employer on notice when she texted her supervisor that she had been directed by her physician to quarantine for two weeks, sent a copy of the Health Board’s isolation order and provided her physician’s contact information in case HR required more information. 

But she told them nothing about the severity of her illness—which in fact did not require continuing treatment by her doctor. See id. § 825.115(a)(1). . . . . . In short, Nuttall gave no indication that she sought time off because she had a serious health condition that incapacitated her. She thus cannot make out a prima facie case that Parma Care Center interfered with her rights under the FMLA.

As for the lack of eligibility notice, she had already been sent two such notices within the prior 12 months and her eligibility had not changed.  “When ‘an employee provides notice of a subsequent need for FMLA leave’ within 12 months ‘due to a different FMLA-qualifying reason, and the employee’s eligibility status has not changed, no additional eligibility notice is required.’ Id. § 825.300(b)(3).”    However, the employer apparently never notified her with 12-month period it was using – meaning that she was entitled to rely on the 12-month period most advantageous to her under 29 C.F.R. § 825.200(e).  Since a new calendar year had started since her last FMLA request, she asserted that a new eligibility notice was required because she would have provided the medical certification form if it had ever been requested.

The Court was unimpressed.  It concluded that the prior FMLA notices had adequately informed her  of her rights and obligations:

[She] has not presented evidence that a FMLA notice in 2020 would have made a difference. Her choice in 2019 to fill out the FMLA paperwork—even though she states she did not ultimately take FMLA leave—is evidence that she knew her FMLA rights and the FMLA process. And without taking FMLA leave in 2019, no 12-month period could start, so the calculation method chosen by Parma Care Center is irrelevant. Simply put, [her] failure to provide evidence that Parma Care Center’s lack of notice in the 2020 calendar year precluded her from completing the same paperwork again for her respiratory illness is fatal to her claim.  Her knowledge of her FMLA eligibility in 2019 precludes the possibility of harm, even if the center had to provide notice.

Because Nuttall cannot prove that Parma Care Center’s alleged lack of notice actually caused her harm, she cannot prove yet another one of the elements needed for a prima facie case of FMLA interference, and her claim fails. We need not address the other elements.

The Court never indicates why the FFCRA did not apply in this case and it seems likely that the employer was a large employer with over 500 employees.

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.

Sixth Circuit Refuses Employee Claim for Age Discrimination and to Award Attorneys Fees to Prevailing FMLA Plaintiff

This morning, the Sixth Circuit issued a few employment decisions that may be of interest to employers and employees.  In the first case, the Court rejected the plaintiff’s age discrimination claim where she had been fired for insubordination.   Pelcha v. MW Bancorp, Inc.,  No. 20-3511 (6^th Cir. 1-12-21, amended 2-19-21).  The Court reiterated that the Supreme Court has held the ADEA does not permit mixed-motive cases, unlike Title VII.  Further, her evidence of stray remarks by the Bank’s president about an employee who was 40 years older than her were too vague and unrelated to her situation to constitute direct evidence that she had been fired because of her age.    In the second case, the plaintiff physician was denied prevailing party attorney fees in his FMLA claim by the arbitrator because he had failed to educate the arbitrator that the statute prevailed over contrary language in the arbitration clause and because he failed to submit any definitive evidence of the fees he was claiming.

In the first case, the plaintiff teller was fired by her long time banking employer for insubordination for refusing to submit a written request for time off until the day before her day off even though such requests were due a month in advance.  She argued that this was pretext for age discrimination.  The district court granted summary judgment to the employer and she appealed.

The plaintiff attempted to argue that she had proved age discrimination with direct evidence based on a few inflammatory statements that the Bank’s president made about another employee who was 40 years older than the plaintiff and that he wanted to hire younger tellers.  The Court disagreed.  “In reviewing direct evidence, we look for “evidence from the lips of the defendant proclaiming his or her . . . animus.”  . . .Inferences are not permitted.”

“Direct evidence is evidence that proves the existence of a fact without requiring any inferences” to be drawn.  . . . In other words, direct evidence is “smoking gun” evidence that “explains itself.”

                . . .

In determining the materiality of allegedly discriminatory statements, we consider four factors, none of which are dispositive: “(1) whether the statements were made by a decisionmaker . . . ; (2) whether the statements were related to the decision-making process; (3) whether the statements were more than merely vague, ambiguous or isolated remarks; and (4) whether they were made proximate in time to the act of termination.”

             . . . None of the statements were related to [the plaintiff]’s termination. In fact, they were not made in relation to any termination decision and were about an entirely different employee. Additionally, nothing in the record suggests that the statements were more than isolated remarks. Here, it appears as though these statements were only made once or twice to certain higher-level management employees.

                . . . Hiring younger tellers does not require the termination of older employees.

 . . ., in terms of timing, the comments in question come from late 2015 or early 2016, more than six months before her termination. We have previously suggested that time spans of six or seven months can be temporally distant.

That being said, such statements could be considered as circumstantial evidence to argue pretext if the plaintiff attempted to prove her case through burden shifting and to raise a “plausible inference of discrimination.”     Nonetheless, the Court found that the plaintiff failed to prove that the employer’s explanation for her termination – that she was insubordinate – was pretext for age discrimination.

First, the plaintiff could not prove that the explanation had no basis in fact.  She argued that she was not insubordinate because she had submitted a written request one day in advance and had obtained verbal approval a month in advance.  However, the Court pointed out that she had been required by her manager’s policy to submit the written request a month in advance and she had admittedly told her manager that she refused to do so because she disagreed with the policy.  She did not ultimately submit her written request until the day before her took time off.  Her “late completion of the form could not cure her original refusal to follow Sonderman’s directive.”

She also could not prove pretext with the isolated and sparse comments that the Bank president had made about another situation. Those comments “were not directed towards Pelcha, not directed towards anyone near Pelcha’s age, and not made in connection with any termination decision at all.”

She also could not show that her employer changed its explanation for her termination by also later documenting issues with her negative attitude and contribution to a negative work environment.  Prior decisions have held that “providing “additional, non-discriminatory reasons that do not conflict with the one stated at the time of discharge does not constitute shifting justifications”.

In addition, she could not show pretext by arguing that the employer failed to comply with its own progressive disciplinary policy.   The policy was clear of the typical steps in the process and clarified that some offenses would justify skipping some or all of the steps.  In conclusion, “an ‘employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason.’”

Ultimately, she also could not satisfy the prima facie case because she could not prove that she was treated more harshly than another, younger employee because the fact that a younger co-worker may have neglected to turn in the form is not the same as insubordination in refusing to turn in the form. “Neglecting to complete a time off form and defiantly refusing to do so upon being asked by a superior are significantly different actions.”

In the second case, the Court denied the appeal of a physician who was denied in arbitration attorney’s fees as the prevailing party on his FMLA claim.  Gunasekera v. War Memorial Hospital, No. 20-1340 (6^th Cir. 1-12-21).   The physician asserted (correctly) that attorneys’ fees are awarded under the FMLA statute to prevailing plaintiffs.  However, the arbitrator reasoned that the arbitration agreement provided that each party would pay its own fees and, in any event, his attorney had failed to submit evidence of the attorneys’ fees accrued to that point during the hearing.    The Sixth Circuit found that a mere error of law by the arbitrator does not constitute the necessary manifest disregard of the law (if that standard even still applied) as required to overturn an arbitration award.  This was particularly true when the arbitration briefs failed to argue that the FMLA provision overrode the terms of the parties’ agreement.    More importantly, the physician failed to submit any evidence to the arbitrator of the amount of his fees. “In that brief, Dr. Gunasekera merely asserted that he was entitled to receive ‘all of his legal fees,’ which exceeded $35,000.”  Without concrete evidence upon which to base an award of a specific sum, the arbitration could not have erred in failing to award fees to a prevailing party under the FMLA.  

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. 

DOL Issues new FAQ on paid FFCRA leave for hybrid school re-opening

Last week, the DOL released some new FFCRA FAQ about employees’ entitlement to paid leave because their child’s school is closed.  Essentially, when the school has adopted a hybrid model and the child is only permitted to attend school a few days/week, then the employee is entitled to paid FFCRA leave on the days when the child must be kept home.  On the other hand, when the parent had the option to send the child to school, but chose to keep the child home to learn remotely out of fear of COVID, the employee is NOT entitled to paid FFCRA leave because it was not the school’s decision; it was the parent’s.

·  My child’s school is operating on an alternate day (or other hybrid-attendance) basis. The school is open each day, but students alternate between days attending school in person and days participating in remote learning. They are permitted to attend school only on their allotted in-person attendance days. May I take paid leave under the FFCRA in these circumstances? (added 08/27/2020)

Yes, you are eligible to take paid leave under the FFCRA on days when your child is not permitted to attend school in person and must instead engage in remote learning, as long as you need the leave to actually care for your child during that time and only if no other suitable person is available to do so. For purposes of the FFCRA and its implementing regulations, the school is effectively “closed” to your child on days that he or she cannot attend in person. You may take paid leave under the FFCRA on each of your child’s remote-learning days.

·  My child’s school is giving me a choice between having my child attend in person or participate in a remote learning program for the fall. I signed up for the remote learning alternative because, for example, I worry that my child might contract COVID-19 and bring it home to the family. Since my child will be at home, may I take paid leave under the FFCRA in these circumstances? (added 08/27/2020)

No, you are not eligible to take paid leave under the FFCRA because your child’s school is not “closed” due to COVID–19 related reasons; it is open for your child to attend. FFCRA leave is not available to take care of a child whose school is open for in-person attendance. If your child is home not because his or her school is closed, but because you have chosen for the child to remain home, you are not entitled to FFCRA paid leave. However, if, because of COVID-19, your child is under a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine, you may be eligible to take paid leave to care for him or her. See FAQ 63.

Also, as explained more fully in FAQ 98, if your child’s school is operating on an alternate day (or other hybrid-attendance) basis, you may be eligible to take paid leave under the FFCRA on each of your child’s remote-learning days because the school is effectively “closed” to your child on those days.

·  My child’s school is beginning the school year under a remote learning program out of concern for COVID-19, but has announced it will continue to evaluate local circumstances and make a decision about reopening for in-person attendance later in the school year. May I take paid leave under the FFCRA in these circumstances? (added 08/27/2020)

Yes, you are eligible to take paid leave under the FFCRA while your child’s school remains closed. If your child's school reopens, the availability of paid leave under the FFCRA will depend on the particulars of the school’s operations. See FAQ 98 and 99.

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.