Sixth Circuit: Absence Does Not Always Make the Heart Grow Fonder When Plaintiff’s Position is Eliminated During FMLA Leave

In early April, a divided panel of the Sixth Circuit Court of Appeals reversed a summary judgment which had been granted in favor of a non-profit employer on an FMLA interference claim on the grounds that the employee’s position would not have been eliminated in an agency-wide restructuring if the employer had not realized how well it could operate without the plaintiff during her FMLA leave.  Saulter v. Detroit Area Agency on Aging, No. 12-2203 (6^th Cir. 4-4-14).  In a common factual scenario, while the plaintiff was off work on FMLA leave, her duties were redistributed to vendors and independent contractors.   Upon realizing during her FMLA leave that the agency could perform well without her position, the agency decided to eliminate her position along with a number of other positions during an agency-wide reorganization.  She was notified of the position elimination during her leave of absence and encouraged to apply for an independent contractor position (performing some of her former duties) as well as other open positions.  She was not hired for any of the positions and filed suit.  The majority concluded that the agency was required by the FMLA to reinstate the plaintiff unless it could show that it would have eliminated her position even if she had not taken FMLA leave.  However, it was an issue of fact of whether it could meet that burden in light of admissions by management employees that it had not considered eliminating the plaintiff’s position until after her FMLA leave began and because of how well her duties were redistributed during her FMLA leave. 

Nonetheless, the judges agreed on the summary judgment dismissal of her retaliation and whistleblower claims. 

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: Still No Definitive Answer How To Terminate an Employee Who Is Abusing FMLA Leave

Last week, a per curiam Sixth Circuit again addressed the issue of how to legally terminate an employee who is caught abusing FMLA leave.   Tillman v. Ohio Bell Telephone Company, No. 11-3857 (6^th Cir. 10-8-13).   In that case, the plaintiff suffered from chronic back pain, which his physician indicated in his intermittent FMLA medical certification form would incapacitate him 2-3 days per month and could not be predicted in advance.  Nonetheless, the plaintiff often predicted days and even weeks in advance that he would be taking FMLA leave on weekends, particularly around holidays and scheduled days off.  His FMLA leave also happened to generally fall on weekends.  After tasking its loss prevention department with investigating his FMLA use and having an independent physician review the video to certify that his actions (in doing yard work and running errands) was inconsistent with his claimed back pain, he was terminated.  The Court had no difficulty in unanimously rejecting the plaintiff’s retaliation claim on the grounds that the employer held an honest belief that the plaintiff was abusing his FMLA leave.  However, the Court acknowledged that the Sixth Circuit has not articulated a legal basis for addressing the plaintiff’s FMLA interference claim in such situations because the Sixth Circuit’s standing rule is that the employer’s motivation is irrelevant in an FMLA interference claim.  The majority ultimately concluded that the plaintiff failed to sustain his burden of proving his entitlement to FMLA leave even though he had produced a medical re-certification only six weeks before he was accused of abusing FMLA leave and the employer never challenged that re-certification or followed the steps in the FMLA regulations for asking his own physician to address his suspicious and predictive use of FMLA leave or to view the video taken by the loss prevention department.  The dissenting-concurring judge concluded that the employer should have followed the FMLA regulations when seeking re-certification of suspicious FMLA use and that the honest belief rule should be applicable in FMLA abuse cases.

The employer in this case obtained surveillance video of the plaintiff engaging in activities which were inconsistent with his claimed back pain.  They also obtained an independent medical verification.  They also interviewed the plaintiff to obtain his version of events.  What they failed to do – presumably because they believe the plaintiff’s physician was complicit in his fraud – was challenge his medical certification, inform his physician of the suspicious timing of, and predications about, his use of FMLA leave, or to have her confirm or reject that his videotaped activities on the days in question were inconsistent with his claimed back pain.  If the employer had taken these actions – which are permitted under the FMLA regulations when the employer finds the employee’s use of FMLA leave to be suspicious -- the employer might have had a slam-dunk case.  Instead, it terminated him for fraud and brought on a lawsuit.  (To the credit of the plaintiff’s union, it did not seek to arbitrate his termination).

At issue in this case is how the Sixth Circuit addresses FMLA claims.  In interference or entitlement claims, “the employer violates the act if it interferes with an FMLA-created right to medical leave or reinstatement after a qualified leave.”  In FMLA discrimination or retaliation claims, the employer violates the Act if takes adverse action against an employee who exercised his or her rights under the FMLA.  The honest belief rule generally shields the employer from a FMLA retaliation/discrimination claim if it conducted an investigation into the plaintiff’s wrongdoing before terminating him or her.   However, the Sixth Circuit frequently avoids ruling on the companion FMLA interference claim whenever it can do so because it has previously held that an employer’s intent irrelevant to such claims, which are, as a practical matter, akin to strict liability.    In the Seeger v. Cincinnati Bell Telephone and Jaszczyszyn v. Advantage Health Plan Network, cases, for instance, the Court avoided addressing the issue by noting that the plaintiff had already taken all of the FMLA leave s/he had requested before s/he was terminated for fraudulent leave abuse based on information discovered on their Facebook pages.  In other words, an employer can still be held liable for interfering with an employee’s FMLA leave even though it had an honest belief that s/he was not entitled to the FMLA leave because it questioned whether s/he had a serious medical condition, etc.    Yet, in other case, the Court has indicated that an employer can avoid liability if the employee was terminated for a reason unrelated to the use of FMLA leave.

This being said, the majority concluded that the plaintiff failed to meet his burden of proof on summary judgment.  The employer had indicated in its briefing that the plaintiff could not satisfy his burden of proving entitlement to FMLA leave on the days in questions in March 2009 based on its videotaped evidence.  In response, the plaintiff relied only on his February 2009 medical certification form, which the Court found was insufficient affirmative evidence for summary judgment.   

We may not presume from Tillman’s chronic condition and intermittent leave requests that he actually suffered from a serious condition on these specific days.   This is especially so with cases concerned with countering, impugning evidence. Otherwise, the medical certification attesting to an intermittent condition could be used as a license to take unnecessary medical leave, eliminating the employee’s burden of showing entitlement.

The concurring-dissenting judge concurred in the result, but not the theory because he felt the honest belief rule should be applied to both the retaliation and interference claims. This judge (I think correctly) believed that the plaintiff satisfied his prima facie case of FMLA entitlement by producing his medical certification, which had never been challenged by his employer.  This would be a very different case if the employer had challenged the medical certification by, as mentioned above, informing the plaintiff’s doctor of the suspicious timing and predictions about his FMLA leave.  “The medical certification provided by the employee is presumptively valid if it contains the required information and is signed by the health care provider.” Novak v. MetroHealth Medical Ctr., 503 F.3d 572, 578 (6th Cir. 2007).” Prior Sixth Circuit cases have limited when an employer may question the validity of an FMLA medical certification.  Hyldahl v. Michigan Bell, No. 09-2087 (6^th Cir. 10/31/12). 

The very nature of “intermittent leave” under the FMLA is that separate blocks of leave time taken within the intermittent leave period will be “due to a single qualifying reason.” See Roberts v. Ground Handling, Inc., 499 F. Supp. 2d 340, 352 (S.D.N.Y. 2007) (quoting 29 C.F.R. § 825.203(a) (2009)). The Act does not require that a plaintiff who has been granted intermittent leave provide additional proof that he had a serious health condition rendering him unable to work every time he takes a day of leave during the covered period. Indeed, to impose on Tillman the additional requirement that he separately establish that he suffered from a serious health condition on two specific dates -- March 15 and 20, 2009 -- as the majority’s decision requires, would contravene the statute. See Harcourt v. Cincinnati Bell Tel. Co., 383 F. Supp. 2d at 953 (holding that an employer’s recertification requirement more restrictive than the requirements of the FMLA is not enforceable against the employee).

Nonetheless, the dissent argued that the honest belief rule should be applied to interference claims, but only when there is a question about the plaintiff’s honesty:

First, and foremost, the FMLA does not provide an employee with carte blanche to obtain proper leave and then abuse that leave. Weimer v. Honda of America Mfg., Inc., 2008 WL 2421648, at * 4 (S.D. Ohio 2008) (citing Kariotis v. Navistar Int’l Transp. Corp., 131 F.3d 672, 681 (7^th Cir.1997)). This is made clear in the statutory scheme’s conditioning of an employee’s right to reinstatement following FMLA leave on the “eligible employee . . . [having] tak[en] leave . . . for the intended purpose of the leave.” 29 U.S.C. § 2614(a)(1) (emphasis added). Therefore, an employee who initially obtains valid leave for a qualifying reason and whose doctor supports continued leave -- and, thereby, as explained above, meets the qualification prong of the prima facie case -- can nonetheless lose the protections of the FMLA when he or she does not use the leave  for its intended purpose. Weimer, 2008 WL 2421648, at *4. “‘Nothing in the FMLA prevents employers from ensuring that employees who are on leave from work do not abuse their leave.’”  . . . .

                . . .

It is true that in “absolute entitlement” cases where the only issue is whether the employer affirmatively interfered with the employee’s use or attempted use of leave to which he or she was unquestionably entitled as a matter of law, the employer’s intent is not relevant and the employer’s honest belief that it acted in compliance with the law provides no defense. See e.g., Arban v. West Publ’g Corp., 345 F.3d 390, 401 (6rth Cir. 2001) (“Because the issue is the right to an entitlement, the employee is due the benefit if the statutory requirements are satisfied, regardless of the intent of the employer.” (citation omitted)); Edgar v. JAC Products, Inc., 443 F.3d 501, 508 (6th Cir. 2006) (“The employer’s intent is not a relevant part of the [interference] inquiry under [the FMLA].”). However, as the majority acknowledges, neither Arban nor Edgar address claims of FMLA abuse. In interference cases in which the employer honestly believes that the employee is abusing his leave -- by, for example, misrepresenting his medical condition --  no circuit precedent precludes the employer from asserting this honest belief in its defense.

                . . .

Viewed in this context, our precedents reflect that the “absolute entitlement” case law is of limited application in cases such as this one, where the issue is not simply the employee’s use of leave to which he is entitled under the FMLA, but rather his abuse of his FMLA leave rights. In interference cases arising under these circumstances, the honest belief rule may be applied.

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.

Divided Sixth Circuit Reverses Summary Judgment for a Central Ohio Bank in FMLA Interference and Retaliation Case

The Sixth Circuit addressed two FMLA cases this week.  In one case, a unanimous Court affirmed the employer’s summary judgment over the employee’s claim that the employer interfered with his FMLA leave when it fired him for failing to call off every day in accordance with the employer’s policy even though the employer admittedly knew he was medically unable to work and was scheduled for surgery two days later.   White v. Dana Light Axel Mfg, Inc., No. 12-5835 (6^th Cir. 8-7-13).  In the other, a divided Court reversed the employer’s summary judgment where the Central Ohio employee alleged that she had been demoted in retaliation for exercising her FMLA rights because internal emails raised questions about the employer’s business justification for transferring her position and whether it was done to compel her to resign.  Crawford v. JP Morgan Chase& Co., No. 12-3698 (6^th Cir. 8-6-13).

In Crawford, the plaintiff suffered from PTSD after being held hostage at gun-point by a co-worker while working a second job at Safe Auto in 2005.  She was promoted by the defendant employer shortly thereafter and reported to a supervisor in Michigan and one in Phoenix.  While she took FMLA leave, the decision was made to transfer her position to Phoenix and she was allegedly demoted a month after her return to work to a less important position (but at the same pay, hours and bonus potential). In a series of prior emails among management, questions were raised about whether a business justification existed for the change in her position.  Managers were told that they could not eliminate her position and give her severance because the team had actually expanded.  Upper management requested to review her personnel files, and suggested making her part-time or re-deploying her.   Upper management also suggested putting her in a new role and then treating her as having resigned (without severance pay) if she resisted.  She filed suit instead and alleged that she was re-instated to a non-equivalent position upon returning from FMLA leave and was retaliated against for exercising FMLA leave.

The Court’s majority concluded that whether her new job was an “equivalent position” to which she was statutorily entitled upon returning from FMLA leave was a question for the jury.  While the employer contended that it was an “equivalent position” and that the transfer did not take place until a month after she completed her FMLA leave, the plaintiff raised questions about whether her reporting to a former peer and a reduction in her level of responsibility and career advancement potential made it less desirable.  “Even if both positions carried equal pay and benefits, if the Quality Analyst II position did not require a similar level of training and education, then it was not equivalent in terms of status and thus the positions would not be equivalent under the FMLA.”

The Court also found that the plaintiff raised a question for a jury about whether the restructuring of her position was done in retaliation for her exercising FMLA leave.  The Court noted that Supreme Court’s retaliation from Burlington Northern and Santa Fe Railway v. White applied to FMLA retaliation claims: “[A] plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” 

Here, Crawford has presented evidence that, upon returning from FMLA leave, she was transferred to a lesser position from Project Manager I to Quality Analyst II. Crawford argues that her new position constituted a demotion because the position included more clerical duties, did not require the same level of expertise, and she was required to report to a former peer. There is evidence in the record that suggests that Chase wanted to eliminate Crawford’s position, but there was no business reason to justify doing so. Even if we were to assume, arguendo, that Crawford was transferred to a seemingly lateral position, the change in job responsibilities support an inference of an adverse employment action. See Fisher v. Wellington Exempted Village Schs. Bd. of Educ., 223 F. Supp. 2d 833, 843 (N.D. Ohio 2001) (explaining that a lateral transfer is actionable as an adverse employment action if the conditions of the transfer would have been objectively intolerable to a reasonable person and changes in job responsibilities should be considered in this analysis). An email exchange among high-level supervisors demonstrates that there was a change in Crawford’s responsibilities in the new role and that these changes might cause Crawford to decline the new position and resign. As such, the change in positions shortly after Crawford’s return from FMLA leave, under these circumstances, could deter a reasonable employee in Crawford’s position from exercising her FMLA rights. We find that there is a genuine issue as to whether Crawford suffered an adverse employment action when Chase transferred her to a lesser position after she returned from FMLA leave.

Moreover, the fact that the transfer/demotion took place only a month after her return to work also raised  a question about the temporal proximity. “Such temporal proximity is ‘unduly suggestive’ and satisfies the causation element of plaintiff’s prima facie case at the summary judgment stage.” 

Regardless of its prior discussion, the Court found that the bank identified a business justification: the desire to transfer plaintiff’s job without adding another employee.   However, it also found that the plaintiff was able to show that the bank’s explanation might be pretextual:  

Here, Crawford raises an issue of fact regarding whether Chase’s proffered explanation was pretextual by presenting emails from high-level supervisors in her former department. Crawford relies on emails from Nicks, stating that Chase could not justify eliminating Crawford’s position, but the position could be moved to the Phoenix office so long as the transfer did not require hiring a new person. (Page ID 359.) These emails also suggest that the transfer of Crawford’s position involved at least some ulterior motive to push Crawford out of the company by offering her a lesser position with the hope that she would resign. (Page ID 359-62.) Therefore, Crawford has put forth evidence to show that Chase’s legitimate non-retaliatory reason for eliminating her position was potentially pretextual.

The dissenting judge objected to the weight given to the plaintiff’s view that she had been demoted instead of laterally transferred.  He found her objections to the changes in her job were de minimis. Moreover, the dissent found that the transfer did not constitute unlawful interference if the Bank could show that it would have taken the action even in the absence of the plaintiff’s FMLA leave.  The dissent believed that the bank had carried its burden of justifying the transfer and showing it was unrelated to her FMLA leave.   Similarly, the dissent found that the Bank had likewise disproved any unlawful retaliation.  Her former peer had been promoted and was supervising several employees, not just her.  Moreover,

there was no evidence that this transfer was designed to silence Plaintiff or scare her away from future FMLA requests. The record shows that she was always given leave under the FMLA when she requested it. After her most recent leave she was given raises and eventually promoted, and she was later given permission to work from home. This also eliminates Plaintiff’s  ability to show a causal connection between her FMLA leave and any adverse consequences. There is no basis upon which this Court can infer that her transfer had anything to do with her FMLA leave, as she had taken leaves repeatedly before and not faced any adverse consequences. To the extent that she can show any adverse consequences, her evidence proves at best that Van Dam bore her some animus, but that animus seems to have been based on personal dislike, rather than retaliation cognizable 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.

Sixth Circuit Upholds Employer’s Call-Off Policy in FMLA Case

The Sixth Circuit addressed two FMLA cases this week.  In one case, a unanimous Court affirmed the employer’s summary judgment over the employee’s claim that the employer interfered with his FMLA leave when it fired him for failing to call off every day in accordance with the employer’s policy even though the employer arguably knew he was medically unable to work and was scheduled for surgery two days later.   White v. Dana Light Axel Mfg, Inc., No. 12-5835 (6^th Cir. 8-7-13).  In the other, a divided Court reversed the employer’s summary judgment where the Central Ohio employee alleged that she had been demoted in retaliation for exercising her FMLA rights because internal emails raised questions about the employer’s business justification for transferring her position and whether it was done to compel her to resign.  Crawford v. JP Morgan Chase& Co., No. 12-3698 (6^th Cir. 8-6-13).

In White, the employer had a policy requiring employees to call off every day that they were absent from work:

Under the policy, each employee was responsible to personally call in his own absences. Moreover, the policy expressly provided, “All absences must be phoned into [the number provided] on a daily basis. Calls to other numbers will not be acceptable.” Employees were clearly instructed, “Your [sic] must call in each and every day [sic] of an absence before the start of your shift.” Importantly, the policy explicitly stated, “If an individual fails to report to work for two days and has not called in, that person is considered to have voluntarily quit.”

Even though the plaintiff was absent from work every day in October (and even though he dropped off at work his updated FMLA medical certifications on his way to the hospital for his hernia surgery on October 7), he did not call off work any day before October 9.  He assumed that calling was unnecessary because he had already informed his supervisor and HR about his medical restrictions, hernia problems and upcoming surgery.  On October 1, the employer notified him that his most recent FMLA medical certification form was incomplete and he had until October 7 to cure the deficiency.  On October 6, the employer notified him he was being terminated for failing to call off every day for his absence that week and his record would reflect a voluntary resignation.  It offered to reconsider if there were extenuating circumstances.

After receiving the termination letter, the plaintiff began calling off every day and submitted information and an STD application about his hernia surgery and his need to be off work for six weeks.  The employer did not reconsider his termination. 

The Court noted that the FMLA regulations provide that an employer may enforce its customary call-off procedures against employees taking FMLA leave:  

An employer may require an employee to comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. . . . An employee . . . may be required by an employer’s policy to contact a specific individual. Unusual circumstances would include situations such as when an employee is unable to comply with the employer’s policy that requests for leave should be made by contacting a specific number because on the day the employee needs to provide notice of his or her need for FMLA leave there is no one to answer the call-in number and the voice mail box is full. Where an employee does not comply with the employer’s usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied. . . . 29 C.F.R. § 825.302(d) (emphasis added).

The Court also noted that the employee could not show “unusual circumstances” that would justify his failure to call off every day because he was physically able during his absence to visit his physician and drop off his updated medical certification forms.

Earlier in the case, the Court spent a lot of time discussing certain FMLA issues that had very little to do with the eventual outcome of the case. The employee had perpetual attendance infractions related to his failure, among other things, to submit complete medical certification forms from his physicians to support his requests for FMLA leave.  He suffered from a number of medical issues that arose from a car accident many years earlier.  While he was being counseled about incomplete medical certification forms from a prior absence (and given the opportunity to cure the flaws) in September, he informed the HR Department and his supervisor that he might have developed another hernia and was being evaluated for surgery.  Despite being given one opportunity to cure the flawed medical certifications, his resubmitted certification form was still incomplete and he was sent home.  When he returned to work on September 30, the employer intended to terminate his employment, but reconsidered after learning about the new hernia problem and planned surgery. (The employer denied that he had been that clear, but it had provided him with the STD application and received his doctor’s notes, etc.) He submitted new FMLA certification forms for his hernia problem (including a reference to upcoming surgery), a doctor’s note explaining his lifting restrictions and was also given an STD application because he could not perform any work with his lifting restriction.

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 Affirms Dismissal of FMLA Claim After Employee Posts Party Pictures on Facebook While on FMLA Leave

This morning, the Sixth Circuit affirmed summary judgment in favor of an employer who fired an employee for fraudulent use of FMLA leave based on pictures she posted on her Facebook page. Jaszczyszyn v. Advantage Health Plan Network, No. 11-1697 (6^th Cir. 11-7-12).  The plaintiff employee brought claims for FMLA interference and retaliation.   In affirming summary judgment, the Court relied heavily on its prior Seeger decision where similar claims had been brought after an employee was fired for attending Oktoberfest while on FMLA leave.  

According to the Court’s opinion, the plaintiff had sought intermittent FMLA leave from her CSR job based on lower back pain, but failed to return to work for any period even after her physician indicated that she would only need to be off work sporadically and only had flare-ups about four times per month. She also failed to communicate regularly or appropriately with the employer about her continuing need for leave or these “flare-ups.” Her doctor then indicated that she was completely incapacitated and needed to be off work for about another month.  About five weeks into her medical leave, while the plaintiff was supposed to be completely incapacitated and unable to work, her co-workers noticed pictures that she had posted on her Facebook page enjoying herself at a local Polish heritage festival.   Her co-workers then notified the supervisor and an investigation was commenced, which included an interview with the plaintiff about her partying while she was in too much pain to come to work.  The plaintiff could not explain her actions and claimed that the pictures did not reflect the pain she was feeling.   She also claimed that she did not realize that part-time work was an option during her FMLA leave.  Based on her silence in responding to some questions and her inability to provide a justification for taking almost two months off work when she was physically able to dance and party, she was fired.  The corrective action memorandum indicated that she had been terminated for fraudulent use of leave, but the personnel form indicated that she was fired for absenteeism.

The Court rejected the plaintiff’s interference claim because she had been granted all of the leave she had requested under her first medical certification for only intermittent leave. It implies that her interference claim did not encompass her request and medical certification to extend that leave of absence based on her complete incapacity. In any event, it also finds that an employee may be fired during FMLA leave "if the employer has a legitimate reason unrelated to the exercise of FMLA rights" for terminating the employee.    As for her retaliation claim, the employer had an honest belief that she was fraudulently taking FMLA leave based on her Facebook pictures and the subsequent interview with her about them. The court rejected the plaintiff’s attempt to create an issue of fact from a personnel form which indicated that she had been fired for poor attendance instead of fraud.

Another factor that both this and the Seeger case have in common is that both of the plaintiff-employees were turned into management for abusing FMLA leave by their co-workers.

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.