Sixth Circuit: No COBRA Notice Required Without Loss of Coverage Caused by Qualifying Event

On Friday, the Sixth Circuit Court of Appeals reversed an employee’s summary judgment finding that  COBRA had been violated because the employer failed to send a COBRA continuation notice when the employee began a medical/workers’ compensation leave of absence or when it stopped paying her premiums even though her medical insurance premiums began to be paid from her workers’ compensation payments upon the commencement of the leave.  Morehouse v. Steak N Shake, No. 18-4186 (6^th Cir. 2019). In reversing, the Court concluded that the change in payment method and continuation of her medical insurance rendered her reduction in hours (i.e., medical leave) irrelevant and that the later loss of coverage was caused by the employee’s failure to pay her insurance premiums when she was notified that the employer stopped paying them a few months later.  “[A]ltering the contribution method alone, as [the employer] did here when it began deducting premiums from [the employee’s] workers’ compensation checks, does not inherently change the ‘terms and conditions’ of coverage and therefore does not produce a ‘loss in coverage.’”  Accordingly, “no qualifying event occurred that would have triggered a mandatory COBRA notification” even though the employee ceased reporting to work because she did not “’cease to be covered under the same terms and conditions’ when [her] contribution method was altered” by deducting the premium from her workers compensation benefits instead of her paycheck.


According to the Court’s opinion, the employee injured her knee at work on May 25, submitted a workers compensation claim and requested a leave of absence.  The employer began paying workers compensation, began deducting her share of the insurance premiums from the workers compensation (instead of her paycheck) and also sent her an FMLA eligibility notice and request for medical certification, which was timely returned.  The employer failed, however, to ever designate her leave as covered by the FMLA.  Instead, the employer notified her on September 20 that she had exhausted her FMLA a month earlier, when it also stopped paying workers compensation and ceased paying her medical insurance.  She was notified on September 9 that if she failed to pay the entire premium, her medical insurance would be terminated.  She was also notified on September 20 that she should seek a reasonable accommodation and that if her employment was terminated, she could then seek COBRA continuation coverage.  When she failed to pay her insurance premium, her coverage was terminated on October 3, retroactive to August 14 for non-payment. She obtained replacement coverage in January.   Her employment was terminated on February 11 the following year.  


The employee challenged the termination of workers compensation in state court and filed a federal lawsuit for failure to send her notice of her rights of COBRA continuation.  There is no indication that she ever challenged the denial of FMLA leave due to the employer’s failure to ever properly designate FMLA leave. The trial court denied the employer’s motion for summary judgment and granted the employee’s motion, awarding her $2500 in dental bills, plus $50/day statutory damages (from when it stopped paying her premiums and when she obtained replacement coverage) and attorney’s fees.


On appeal, the Court noted that employers are required to send a COBRA notice upon a qualifying event, which includes termination of employment and reduction in working hours, if, but for the continuation coverage required under this part, the qualifying event would result in the loss of coverage.


COBRA provides that taking FMLA leave does not by itself constitute a qualifying event.  The parties argued whether the employee was properly placed on FMLA leave because that could impact whether there had been a qualifying event.  However, the Court decided that this argument was irrelevant because “the terms and conditions of [her] insurance have not changed and therefore there was no “loss of coverage” under the statute . . .”  Without loss of coverage, whether there has been an event is irrelevant.  In particular, the Court stated that “[a] ‘reduction in hours’ alone is not necessarily a qualifying event; it must also lead to a loss in insurance coverage.”  

Under 26 C.F.R. § 54.4980B-4, A-4(c), a loss of coverage “means to cease to be covered under the same terms and conditions as in effect immediately before the qualifying event.”  The regulation further clarifies that the “loss of coverage need not occur immediately after the [qualifying] event, so long as the loss of coverage occurs before the end of the maximum coverage period.”

Relying on an unreported 2007 opinion in Jordan v.  Tyson Foods¸ the Court found that it was the plaintiff’s failure to pay her health insurance premium in September which resulted in her loss of coverage, not her reduction in working hours following her injury or the change in payment method of the premiums.  In Jordan, that plaintiff had taken FMLA leave and then failed to pay his premium contribution as required by the employer’s policy and his coverage was terminated.  By the time he failed to return to work following his FMLA leave, his coverage had been terminated and he was not then provided with a COBRA notice.  The Court rejected that a qualifying event had occurred with his FMLA leave (because only the payment method had changed) or his termination (by which time his coverage had been terminated due to his non-payment of premium contributions).  Similarly, in this case, only the payment method changed upon the commencement of her leave of absence and her coverage was terminated on October 3 due to non-payment of premiums.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

The Importance of Being Prompt Under the FMLA

Last month, there were two developments with the Family and Medical Leave Act highlighting the strictness of deadlines.  In the first, the Department of Labor issued an opinion letter on March 14 which confirmed that employers must ordinarily provide written notice designating FMLA leave within five days of learning enough information that the leave qualifies under the FMLA even if the employee would prefer to delay the designation or is utilizing a paid leave policy.  Employers may also not designate more than twelve weeks of leave as covered by the FMLA even if the employer provides more generous paid leave policies.  Second, the Sixth Circuit affirmed an employer’s summary judgment after terminating the plaintiff for poor attendance when he called off late even on days when he was requesting intermittent FMLA leave.  Njaim v. FCA US LLC., No. 18-3831 (3-19-19).  


According to the Court’s opinion, the employer’s call off policy required employees to call off work at least 30 minutes before their shift.  The plaintiff was suffering from mental health and substance abuse issues.  Prior to requesting FMLA leave to obtain inpatient treatment, he had incurred several attendance points for failing to call off at least 30 minutes in advance.  Upon and after returning from treatment, he again failed to show up or call of work at least 30 minutes in advance (even when taking time off because of FMLA covered mental health conditions).  Accordingly, he has assessed with more points and ultimately terminated.


The Court found that the employee could not show that his absences on those days were covered by the FMLA because he failed to comply with the employer’s attendance policy. On one day, he failed to report to work on time and on the other he only called off ten minutes prior to his shift, in violation of company policy. “[A]n employee cannot “satisfy the first element of a prima facie FMLA case” when he does not follow the employer’s leave policies.  Alexander v. Kellogg USA, Inc., 674 F. App’x 496, 501 (6th  Cir. 2017).


NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Dismisses Claim When Plaintiff Was Fired Six Weeks After Returning from FMLA Leave

On Monday, the Sixth Circuit Court of Appeals affirmed an employer’s summary judgment on an FMLA retaliation claim when the plaintiff had been terminated after nineteen years of employment only six weeks after he returned from FMLA leave.    Nieves v. Envoy Air, Inc., No. 18-1127 (6^th Cir. 1-14-19). The Court found that the plaintiff failed to show that his termination – for permitting his mother’s boyfriend to use his free flying privileges many years earlier in violation of policy – was causally related to his use of FMLA leave.  The plaintiff had admitted that he should not have identified the flier as his father.  Accordingly, the plaintiff could not prove his prima facie case of showing that his termination was causally related to his recent use of FMLA leave.   Interestingly, there was no discussion of temporal proximity satisfying the plaintiff’s burden of showing causation even though his termination on March 30 was merely six weeks after he returned to work on February 19.

According to the Court’s opinion, the plaintiff had worked in at the counter for nineteen years.  His relatively new supervisor did not like him and blamed him unfairly for a number of issues.  In April 2015, the plaintiff (along with several other employees) was selected by the corporate office for a random audit of his flying privileges to investigate potential abuse.  He was required to send proof of eligibility (i.e., familial or legal relationship) of the individuals listed on his travel log.  He only sent documentation of two people (his wife and one daughter) who were actively using his privileges instead of all of the individual who had used his privileges over the past 19 years (and included other children as well as a half-brother, a friend’s son who stayed with them on an extended basis and his mother’s 20-year boyfriend that he had once listed as father/step-father).   The audit stalled until January 2016 when the plaintiff was hospitalized for approximately a month for kidney failure and took FMLA leave.  Three weeks after he returned to work on February 19, he was interviewed on March 9 by telephone without prior notice about the individuals he failed to document and answered all of the questions truthfully. He was given nine days to produce documentation substantiating the legal/familial relationship with all of the individuals, which he later explained was impossible when some of the documentation had to be obtained from the Dominican Republic.  The corporate office – which was never told about the plaintiff’s FMLA leave -- determined quickly that the plaintiff should be terminated on March 30 because that was the recommended penalty for violation of the travel policy.  On appeal, the decision was upheld because the plaintiff admitted that his mother’s boyfriend should never have been listed as his father on the travel log.

The Court concluded that the plaintiff could not show that his termination was related to his FMLA leave.  It rejected the plaintiff’s argument that the investigator’s note in her files about the plaintiff’s FMLA leave was proof of retaliation because she explained that it was merely a reminder of why she had not yet interviewed him when she got to his file in January 2016.  The note explained his unavailability when she attempted to schedule his interview.  There was nothing in the investigator’s report to corporate about the plaintiff taking FMLA leave.

The Court also dismissed stray comments by his supervisor about him and suggesting that he retire.  Some comments were made more than a year before he took FMLA leave.  The supervisor was not the decisionmaker.  One comment followed the explanation of the plaintiff’s wife that his physician wanted him to do less lifting (which was a big part of his job).

The Court also rejected the allegation that his travel log was given more scrutiny following his FMLA leave because the employer documented each step of the investigation process and explained each of its steps and delays.

There is no discussion in the Court’s decision of the temporal proximity -- six weeks between the end of his FMLA leave in February and his termination on March 30 – being sufficient to infer a causal relation. Because there was no evidence linking the termination for a clear violation of the travel policy to his use of FMLA leave, the Court found that he could not prove his prima facie case and there is no discussion of pretext or honest belief defenses.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit: Employee Lawfully Terminated During FMLA Leave for Giving Doctor Inaccurate Information

On Tuesday, the Sixth Circuit affirmed an employer’s summary judgment on an FMLA claim where the employee was fired while on medical leave.  Hodnett v. Chardam Gear Co., Inc., No 18-1100 (6^th Cir. 9-11-18).   The employee’s doctor’s note indicated that he should be off work because he required light duty and the employer had refused to provide such work.  In fact, however, the employee had never spoken with anyone at the Company about whether he could have light duty work and just assumed that it would be denied.  When the employer received the note, it fired him because he had never formally requested medical leave and because he had never been denied light duty as indicated by his physician.   While the court found that his medical leave was protected under the FMLA, it also concluded that the employer was lawfully entitled to terminate the employee for misrepresenting his work status.

According to the Court’s opinion, the plaintiff was sent home early on August 21 because he claimed that he could not lift a part weighing four pounds.  On his way home, he was in a car accident.  Although medical tests found nothing broken, he was sent home with pain pills and told to take the next day off work.   However, he never returned to work.  He called off the following week for a variety of reasons.  On August 29, he requested a vacation day after Labor Day.  Claiming that he was suffering from pain, he sought additional medical treatment and lost wage compensation from his automobile insurance policy.    He informed the personnel clerk on October 3 and December 5 that he was off for a disability that started on August 22.

By mid-October, the plaintiff was examined by a physician who determined that he should not lift over 15 pounds.    The physician faxed a report to the employer indicating that the plaintiff should stay off work until November 18 and that the plaintiff had reported that he was not allowed to work with restrictions,  light/sedentary work.   The plaintiff’s doctor told the insurance company that he could return to work on October 18 with lifting restrictions which the employer would not provide.   Problem is, the plaintiff never spoke with anyone at the employer about whether he could work light duty and had not spoken with a supervisor at all since August 29.  He was fired on November 9.  When he protested being fired while on protected leave, the employer pointed out that he had never applied for leave and had given incorrect information to his physician about his working conditions because he had never spoken with anyone about light duty and had not even spoken with any supervisors since August 29. 

The Court found that the plaintiff’s medical leave was protected and the employer had failed to produce evidence of any policies showing otherwise.   Nonetheless, the employer had a legitimate reason for firing the plaintiff that was unrelated to his medical leave.

Chardam offered a legitimate reason for firing Hodnett, unrelated to the exercise of his FMLA rights.  Hodnett responded to Chardam’s November 7, 2014 termination letter by asserting that he had been on protected medical leave since August 22, 2014.  Chardam responded by letter, explaining that Hodnett’s employment relationship with Chardam had been terminated.  Chardam said:  “You provided incorrect information to your doctor about having restrictions, when you never discussed with anyone at the company about whether you could work with any restrictions.  You had no discussions with any supervisor at the company since your last day of work on August 29, 2014.”  This justification for firing Hodnett—that Hodnett had given false information to the doctor about his ability to return to work—satisfies Chardam’s burden to provide a legitimate reason, unrelated to the exercise of his FMLA rights, for terminating Hodnett’s employment.

Plaintiff admitted that he had not spoken with any supervisors since August 29, so he was unable to show that the employer’s reason was false, and thus, pretextual.   The Court rejected the plaintiff’s unsupported argument that he had been truthful – and accurate – that the employer would not have accommodated his lifting restrictions.  The plaintiff could not prove the accuracy of his belief because he had not confirmed it with the employer.  While the Court did not call it speculation, it could have.  Even under the ADA, the plaintiff employee is required to request an accommodation before an employer is liable for denying one.  The physician’s note provided to the employer did not indicate what restrictions the plaintiff required and so it could not constitute a request for an accommodation.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney. 

What’s New with the FMLA

I was speaking at the Columbus Bar Association’s Labor & Employment Committee last week about complex medical leave issues (i.e., when the FMLA, ADA, Workers compensation and/or disability pay overlap).  In preparation, I learned that the DOL had issued two new Opinion Letters discussing the FMLA.  In addition, the DOL updated the FMLA medical certification forms, meaning that the current forms (which did not change at all, including keeping the last revised date as May 2015) will not expire until August 31, 2021.  To be sure that you are using the most current Medical Certification forms, download the forms from the DOL’s website and confirm that the August 31, 2021 date is in the upper right hand corner.

As for the Opinion Letters, the DOL WHD Acting Administrator confirmed that medical leave to have surgery to donate an organ is considered to be a serious health condition:

An organ donation can qualify as an impairment or physical condition that is a serious health condition under the FMLA when it involves either “inpatient care” under § 825.114 or “continuing treatment” under § 825.115.  Thus, as relevant to your letter, an organ donation would qualify as a serious medical condition whenever it results in an overnight stay in a hospital.  Of course, that is not the only means for organ donation to involve “inpatient care” or “continuing treatment.”  Organ-donation surgery, however, commonly requires overnight hospitalization, as you note in your letter, and that alone suffices for the surgery and the postsurgery recovery to qualify as a serious health condition.

In the other Opinion Letter,  the Acting Administrator agreed that an employer could suspend the no-fault attendance policy during an employee’s FMLA leave as long as it did not discriminate against the use of FMLA leave by permitting it to expire during other types of medical leaves.   In the employer’s question, the employer’s no fault attendance policy imposes points for non-FMLA absences and tardiness and automatically terminates employees who accrue 18 points within twelve months.  The points are frozen during FMLA leave and do not drop off while the employee is on FMLA leave.  The twelve month period is also extended by the duration of the FMLA leave.

The Acting Administrator noted that “‘[N]o-fault’ attendance policies [] do not necessarily violate the FMLA as long as points are not assessed for employees who are absent due to any FMLA qualifying reason.”  WHD Opinion Letter FMLA2003-4, 2003 WL 25739620, at *1.”  Moreover, FMLA leave does not entitle an employee to a superior position than employees who miss work for non-FMLA reasons.

An employee “may, but is not entitled to, accrue any additional benefits or seniority during unpaid FMLA leave.”  29 C.F.R. § 825.215(d)(2); see also WHD Opinion Letter FMLA-100, 1999 WL 1002428, at *2 (Jan. 12, 1999).  An employee is also not entitled to additional benefits or payments that are contingent on achieving a specified goal that the employee was unable to achieve because he or she took FMLA leave.  29 C.F.R. § 825.215(d)(5); see also Preamble to the Final Rule, 73 Fed. Reg. 67934, 67985 (Nov. 17, 2008).

The Opinion Letter interpreted the policy as rewarding employees for working by removing points, and therefore, missing work for FMLA leave meant that the employer was not required to reward the employee by removing non-protected attendance points.

Removal of absenteeism points is a reward for working and therefore an employment benefit under the FMLA.  Bailey v. Pregis Innovative Packaging, Inc., 600 F.3d 748, 750-51 (7th Cir. 2010); WHD Opinion Letter FMLA-100, 1999 WL 1002428, at *2 (Jan. 12, 1999).  As you describe in your letter, the number of accrued points remains effectively frozen during FMLA leave under your employer’s attendance policy.  An employee neither loses a benefit that accrued prior to taking the leave nor accrues any additional benefit to which he or she would not otherwise be entitled.  WHD’s longstanding position is that such practices do not violate the FMLA, as long as employees on equivalent types of leave receive the same treatment.  WHD Opinion Letter FMLA-100, 1999 WL 1002428, at *2 (Jan. 12, 1999) (stating that the FMLA would permit an employer to “neither count the FMLA leave period towards an attendance control policy for potential termination, nor credit the unpaid FMLA leave towards the recordable time for dropping such points,” as long as the employer treated other equivalent types of leave in the same manner).

If the employer, however, counts equivalent types of leave as “active service” under the no-fault attendance policy—meaning the employer counts such leave toward the twelve months necessary to remove points—then the employer may be unlawfully discriminating against employees who take FMLA leave.  29 C.F.R. § 825.220(c) (requiring that employees who take FMLA leave accrue the same benefits as employees who take equivalent non-FMLA leave). 

Because the employer treated workers compensation leaves the same as FMLA leave – i.e., employees do not accrue points and the points are frozen while the employee is absent on leave – there was no evidence of unlawful retaliation.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney. 

Sixth Circuit Rejects Full-Time Work Schedule as Presumptive Essential Job Requirement Under the ADA

Last month, the Sixth Circuit reversed an employer’s summary judgment on a claim brought under the ADA, FMLA, and Pregnancy Discrimination Act on the grounds that the employer failed to prove that full time employment was an essential function of the position that precluded the plaintiff from working half-time for six more weeks while she recovered from post-partum depression.   Hostettler v. College of Wooster, No. 17-3406 ((6^th  Cir. 7-17-18).  The employer made a few hair-brained decisions:  denying a temporary extension of a requested medical leave (i.e., part-time schedule) right after giving the plaintiff a glowing performance evaluation.   It also failed to engage in the interactive process once it realized that her modified work schedule was more trouble than it was worth and that it questioned her need for leave.   Accordingly, as with another recent Sixth Circuit decision, the Court concluded that an employer’s rescission of a reasonable accommodation constitutes direct evidence of disability discrimination, making the McDonald-Douglas burden shifting analysis inappropriate.  “An employer cannot deny a modified work schedule as unreasonable unless the employer can show why the employee is needed on a full-time schedule; merely stating that anything less than full-time employment is per se unreasonable will not relieve an employer of its ADA responsibilities.” 

According to the Court’s opinion, the plaintiff was hired when she was four months pregnant and worked full time until she delivered.  She requested and was given more than twelve weeks of maternity leave, even though she did not qualify under the FMLA.  When her separation anxiety and post-partum depression precluded her from returning to work full-time, she was granted a reasonable accommodation of returning to a half-time schedule for approximately ten weeks.   She received a glowing performance evaluation in June.  In July, she submitted another certification indicating that she required approximately another six weeks of half-time work before she could return full-time. The next day, she offered to stay a couple hours later each day.  The day after that she was fired.   Although there was evidence that she had timely completed all of her assignments and had even been working a little from home, her boss was very stressed from picking up the slack and was concerned about work that was not getting done at all, like recruiting, lunch trainings, etc.  The plaintiff was not the only employee on medical leave and her boss was often the only person remaining in their small office.  The department was also starting a new online benefits enrollment system that month, which was taking the supervisor’s time as well.  However, a replacement was not hired until October – a month after the plaintiff likely would have returned to full-time work.

The employer argued that the employee only wanted to work part-time for the summer and that the only limitations she experienced with transitory and brief panic attacks.  However, the Court noted that she had been prescribed anti-depressants and had witnesses describe symptoms that went beyond the occasional brief panic attacks.

The “crux” of the case was whether the plaintiff was qualified for her position with or without a reasonable accommodation.

A job function is essential if its removal would fundamentally alter the position. . . . Put another way, essential functions are the core job duties, not the marginal ones . . . .

This analysis does not lend itself to categorical rules—it is “highly fact specific. . . . Although this court has stated that “[r]egular, in-person attendance is an essential function” of most jobs, EEOC v. Ford Motor Co., 782 F.3d 753, 762–63 (6th Cir. 2015) (en banc), it is not unconditionally so; courts must perform a fact-intensive analysis.  In determining what functions are essential, courts may consider as evidence—among other things—the amount of time spent on a particular function; the employer’s judgment; “written job descriptions prepared before advertising or interviewing” for the position; and the consequences of not requiring the employee to perform the particular function.  29 C.F.R. § 1630.2(n)(3).  Although the employer’s judgment receives some weight in this analysis, see Williams v. AT&T Mobility Servs., 847 F.3d 384, 391–92 (6th Cir. 2017), it is not the end-all—especially when an employee puts forth competing evidence.

The Court found that the plaintiff had created a factual dispute about whether full-time work was an essential function of her position.  A co-worker supplied an affidavit that there was no work within the department which was not being accomplished.  The plaintiff had just weeks earlier received a positive performance evaluation which confirmed that she was performing her job. Indeed, the plaintiff had never been criticized about her work.   (The Court seemed oblivious to the fact that no rational employer is going to criticize an employee for not performing work while on medical leave).  When asked, her boss could not identify a particular task which was not getting performed.

On its own, however, full-time presence at work is not an essential function.  An employer must tie time-and-presence requirements to some other job requirement.  To be sure, [the employer] cites language from this court’s cases that, when viewed independently from the facts of the cases, supports the college’s position.  But those cases nevertheless carried out a fact intensive analysis of actual job requirements.

The Court continued:

In sum, full-time presence at work is not an essential function of a job simply because an employer says that it is.  If it were otherwise, employers could refuse any accommodation that left an employee at work for fewer than 40 hours per week.  That could mean denying leave for doctor’s appointments, dialysis, therapy, or anything else that requires time away from work.  Aside from being antithetical to the purpose of the ADA, it also would allow employers to negate the regulation that reasonable accommodations include leave or telework.  29 C.F.R. § 1630.2(o)(2)(ii).   

[The employer] may have preferred that [the plaintiff] be in the office 40 hours a week.  And it may have been more efficient and easier on the department if she were.  But those are not the concerns of the ADA:  Congress decided that the benefits of gainful employment for individuals with disabilities—dignity, financial independence, and self-sufficiency, among others—outweigh simple calculations of ease or efficiency.  To that end, the ADA requires that employers  reasonably accommodate employees with disabilities, including allowing modified work schedules.  An employer cannot deny a modified work schedule as unreasonable unless the employer can show why the employee is needed on a full-time schedule; merely stating that anything less than full-time employment is per se unreasonable will not relieve an employer of its ADA responsibilities.  

The Court put limits on his holding:

[The plaintiff] never claimed, nor do we hold, that she had a right to perform her job on a part-time basis indefinitely.  If she had, we might be reviewing a closer case; one in which Wooster at least would have had the opportunity to show that such an accommodation was unreasonable.   . . . But that is not the case here.  Here, [the plaintiff] introduced sufficient evidence to create a dispute of fact over whether her moderate, time-limited accommodation allowed her to perform the essential functions of her position.

The Court also found a disputed issue of fact as to whether the employer had properly engaged in the interactive process. The trial court found it had by having four separate conversations with the plaintiff about the need for her to return to a full-time schedule, but the plaintiff asserted that it had only been discussed once and the employer never responded to her offer to work 6 hours/day.

The Court also reversed summary judgment on the plaintiff’s PDA claim because the trial court had concluded that the plaintiff’s refusal to work full-time was a legitimate and nondiscriminatory reason to discharge her that was not disproven as pretext.  However, the Court had already rejected the full-time work argument and found that the plaintiff had produced sufficient evidence of pretext by questioning whether that was the actual reason for her termination and showing disparate treatment by the longer medical leaves taken by two other employees for non-pregnancy reasons.

Notwithstanding the fact that no reasonable human resources employee could have believe that she was covered by the FMLA, the Court resurrected her FMLA claim by permitting her to pursue an equitable estoppel theory on the grounds that that the employer treated her leave as through she was covered by the FMLA even though she had only worked four months before she began her leave and had been given well more than 12 weeks off work before returning on a part-time basis.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney. 

Sometimes It’s a Mistake to Leave the Office

Earlier this month, the Sixth Circuit Court of Appeals affirmed summary judgments for two employers against employees who requested or took a medical leave of absence.   Both cases also rejected "stray remarks" as evidence of discrimination.   In Bailey v. Oakwood Healthcare, Inc., No. 17-2158 (6^th Cir. 4-23-18), the Court found that resume fraud by a relatively new senior human resources professional justified her immediate termination on her first day back to work from maternity leave.  The fraud had been discovered when her manager discovered a number of significant performance errors during her leave which caused her to examine her resume more closely.  The court rejected arguments that events seven months earlier could have motivated the employer over more recent events.  Also, it was irrelevant if the employer had determined to discharge her before meeting with her and confronting her in the termination meeting.  In Tillotson v. Manitowoc Co., No. 17-1640 (6^th Cir. 4-4-18), the plaintiff objected to the employer’s reliance on a nine-factor rubric in selecting him for termination during a RIF because several of the factors were based on subjective criteria, such as his future potential.  The Court found that there is nothing inherently unlawful in utilizing some subjective criteria and the plaintiff failed to conduct any discovery so as to introduce any substantive evidence showing that the criteria were inaccurate or rigged against him.   Further, because the plaintiff had not actually required medical leave or even a reduced work schedule or reasonable accommodation and had not asserted an ADA claim, evidence about negative remarks made about his medical condition were essentially irrelevant to show his termination in a RIF was a pretext for unlawful discrimination or retaliation.

In Bailey, the plaintiff human resources employee had been fired eight months after being hired on her first day back from maternity leave.   While her duties were being handled by her supervisor during her maternity leave, her supervisor discovered several material mistakes, and this caused her to question the plaintiff’s basic competence and re-examine her resume and job application.   In doing so, the manager discovered that the plaintiff had applied for a similar job with the employer a few years earlier and that the dates of employment, among other things, on her resumes did not match.  Instead, the plaintiff had falsified and exaggerated her experience and qualifications on her latter resume.  When confronted, the plaintiff could not deny the falsifications, but preferred to describe them as “embellishments.”   Although she argued that these “embellishments” were insufficient to justify immediate termination of her employment, the trial court found that they would be a sufficient reason to terminate a senior human resources professional.   It also rejected her argument that she should have received progressive counseling before being hired for resume fraud.

As for the performance deficiencies, the manager had assembled 28 pages of email messages and a list of 12 other mistakes, in addition to problems with chronic tardiness.  The Court rejected the plaintiff’s over-reliance on her positive probationary period performance evaluation because it had noted her need to pay more attention to details, it gave her an overall rating of just “competent” and she had conceded some of her performance mistakes.   While it tended to agree that many of the issues should have been handled with progressive discipline, it could not ignore that the resume fraud, by itself, was sufficient grounds for immediate termination of a senior HR professional.

The Court also rejected the plaintiff’s argument that the decision to terminate her employment had been made before she was informed of the issues and given a chance to respond. “Speculation as to when, precisely, Oakwood, through its decision makers, formulated the resolve to terminate Bailey’s employment is of little consequence.”

Regardless of the wisdom of the criticism of her job performance, the court concluded that the plaintiff could not show that age or race were the actual reason for her termination because the termination decision had been made by the same people who hired her just 8 months earlier when she was the same age and race.

While the plaintiff’s pregnancy discrimination claims were stronger, they were still rejected.  She argued that she suffered pregnancy discrimination because she had been fired seven months after revealing her pregnancy, had been required to report to work a half-hour earlier after she announced her pregnancy, her supervisor had questioned the wisdom of her having a baby at her age, she had been given more work to do after her pregnancy announcement and she was assigned more work than her peers.  The Court rejected each of these arguments.  If an adverse action taken two months or even two weeks after a pregnancy announcement were found to be too remote to create, by itself, an inference of discrimination, then a delay of seven months (and three months after the pregnancy itself) were too long to support a causation argument. “It is well established that temporal proximity alone is insufficient to support an inference of retaliation.”  While her work time had changed and she was criticized for chronic tardiness,  the same criticism existed when she was chronically tardy with a latter starting time.   Her statistics concerning workloads was not supported by credible evidence and her extra work assignments followed her own invitation to take on more work.  Lastly, her manager’s comment was found to be merely insensitive instead of reflecting an unlawful bias.

Finally, her retaliation claim was ultimately rejected because she could not show that the reasons for her termination were pretextual.  She alleged that she had a verbal disagreement with her African-American manager about the hiring of African-American applicants before her maternity leave.   In her deposition, she admitted that some of these applicants had flaws (such as recent criminal records) that disqualified them from employment.  Her subjective belief that her manager was biased was insufficient to overcome her lack of evidence to show that the reasons for her termination – poor work performance and resume fraud – more than seven months after the verbal disagreement were the actual reasons for her termination. “Such an intervening legitimate reason for discipline tends to defeat any inference of retaliation based on the proximity of the discipline to an earlier event.”

In Tillotson, the plaintiff challenged his termination during a reduction in force as retaliatory under the FMLA and state age discrimination laws.   He suffered from what his physician described as IBS and could not travel more than two consecutive hours.  While he had requested time off work, his physician did not certify that this was necessary.  Further, his job did not need to be restructured at that time because all of his sales territory was already within two hours.    When the VP of Sales, however, heard about the restriction, he stated that the company could not have a “sales guy” who could not travel.  Later, that VP was responsible for selecting which of his four salespeople would be terminated in the reduction in force.  Relaying on a nine-factor “rubric” that had been assembled during an earlier annual performance evaluation process, the VP selected the plaintiff for termination because he was the lowest rated of the four.

The plaintiff objected to the company’s reliance on the rubric because some of the factors were subjective, such as who was rated higher for future potential.  However, the plaintiff conducted no discovery on the issue and did not submit any evidence that the rubric or subjective evaluations were inaccurate or even unfair.

The company needed some criteria to determine which of the four product sales managers at Delfield would be terminated, and Tillotson presents no basis for a juror to conclude that the 9-Box was altered, misused, or erroneously or unfairly filled in after the company became aware of Tillotson’s FMLA leave request.

 . . . . We have recognized the need to scrutinize evaluations that utilize subjective criteria because of “the problems inherent in selection procedures which rely solely upon . . . subjective evaluations,”  . . . but “a plaintiff can not ultimately prove discrimination merely because his/her employer relied upon highly subjective qualities (i.e. ‘drive’ or ‘enthusiasm’) in making an employment decision,”  . . .  First, the company did not rely solely on subjective criteria.  Willoughby testified that objective metrics such as “monthly sales targets and feedback from customers and reps” were employed to evaluate a product sales manager’s “performance rating” in the 9-Box rubric, and Wilczak testified that performance scores were based largely on objective sales reports.  More importantly, however, to the extent the 9-Box utilized subjective criteria to evaluate product sales managers’ “future potential,” Tillotson has offered no evidence from which a reasonable juror could infer that the company manipulated, abused, or misapplied that criteria to affect Tillotson’s ranking.

The plaintiff had incorrectly argued that the rubric had been created for the RIF decision (and, thus, had been impliedly rigged against him), but the uncontested evidence was that the rubric was completed well before the RIF had even been contemplated, and thus, could not have been “rigged” to cause his termination.  There was no evidence introduced that the rubric had been created or completed after he exercised his FMLA rights, so no speculative inference could be implied against the employer on that count.

Further, the employer was not required to prove at the pretext stage the basis for its ratings, such as the plaintiff’s “medium” rating for potential. “’The defendant need not persuade the court that it was actually motivated by the proffered reasons.  It is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff.’” Instead, it is the plaintiff’s burden to prove discrimination.    The plaintiff could have conducted discovery on these issues, but he failed to do so.

As for the comments by the VP and an HR employee about his medical restrictions on travel, the Court concluded that they were not evidence of FMLA retaliation because the plaintiff never required a leave of absence, or even a reduced work schedule, under the FMLA.  He did not even request an ADA accommodation or initiate an ADA claim in this litigation.  His travel schedule never required any modification either. That both the ADA and FMLA related to employee medical conditions does not make comments about medical restrictions probative of both types of claims:

Tillotson’s request for travel accommodations is not protected conduct under the FMLA because “the FMLA does not appear to have a freestanding reasonable-accommodations provision,”  . . . .and “the leave provisions of the [FMLA] are wholly distinct from the reasonable accommodations obligations of employers covered under the [ADA],”

Because the negative comments about his medical restrictions were not related to any FMLA leave that he took and he failed to purse an ADA claim, those comments were insufficient to prove that he was retaliated against under the FMLA so as to prevent summary judgment.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Divided Sixth Circuit Affirms Dismissal of FMLA Claims But Finds Possible ERISA Claims Based on Same Evidence

Yesterday, a divided Sixth Circuit affirmed summary judgment on FMLA interference and retaliation claims where the plaintiff employee, like 55 employees before him, had been fired under the common company policy for failing to call off for three consecutive days, but on the same facts the Court reversed dismissal of his ERISA interference and retaliation claims on the grounds that the employer’s failure to call him to check on him (like some other employees who had similarly failed to show or call off) prior to terminating his employment could constitute evidence of pretext.   Stein v. Atlas Industries, Inc., No. 17-3737 (6^th Cir. 4-9-18).  The Court found that the employee could not show unlawful interference with his right to take FMLA leave because the FMLA regulations permit employers to enforce call-off policies, which the plaintiff admittedly had failed to observe due to his own confusion about when he had been released to return to work.  His confusion about what his physician had written did not excuse his failure.  The Court also concluded that he could not show unlawful retaliation based only on the passage of 10 weeks between the start of his FMLA leave and his termination because temporal proximity alone is insufficient evidence when the span of time is more than 8 weeks.  Unlike his FMLA claim, however, the employee was able to produce evidence that his self-insured employer was very concerned about the medical bills incurred by his son.   Therefore, the passage of 7 months did not destroy his evidence of causation because he was not relying on temporal proximity alone and it was known that his son would likely require another hospitalization.   This “extra” evidence of employer motivation also apparently made relevant evidence of  pretext that the Court had previously rejected as evidence of pretext in his FMLA claims.

According to the Court’s opinion, the plaintiff had worked for the defendant company for 20 years and even had a year of perfect attendance when his son required hospitalization for a severe, chronic and rare neurological condition that apparently caused the employer’s insurance rates to rise and had been blamed by some employees for the employer’s inability to raise wages.  The employee then required surgery for a work-related injury and was off work on FMLA leave for 10 weeks.   Near the end of July, his doctor told him that he could return to unrestricted duty on  August 10.  However, the employee did not understand or realize that his physician had immediately released him to return to work on light duty on July 20 and had so informed the employer.   Although employees are entitled under the FMLA to reject light duty work, they are still required to adhere to the employer’s attendance policy, which in this case required employees to call off every day that they did not intend to return to work after they have been released to light duty.  When the employer received the physician’s release for light duty, it called the physician to confirm the release because the employee had not called off work.  When the employee did not report to work for three consecutive days or call off, it terminated his employment like it had 55 employees before him.   The employee produce some evidence that the employer had called some other employees before terminating them under the same policy, thereby showing selective enforcement.

First, the Court rejected the FMLA interference claim.  The Court found that the employee’s confusion about his medical release and its ramifications did not constitute “unusual circumstances” to excuse his failure to call off work under the employer’s policy.  The type of “unusual circumstances” that would have justified him not complying with the policy would be a malfunctioning voicemail or telephone system.   While the Court was sympathetic that the doctor told the employee one thing, but wrote something else, the Court also found that the employee should have read the form which his physician gave him.  The Court also rejected the FMLA interference claim because FMLA regulations require employees to comply with their employer’s call off procedures even if they are entitled to be on FMLA leave. 

Here, [the employer’s] policy required employees on medical leave to either return to work or call in once their doctor released them with light-duty restrictions.  And the company’s employee handbook provided that “any associate who is absent three (3) consecutive days without permission or without calling in [would] be automatically discharged.”  . . . So, when [the plaintiff] failed to report for work or call in for three consecutive days after his release, [the employer] was within its rights to terminate him.   

It was irrelevant that the employee was legally entitled to reject light duty work under the FMLA. 

Had [the employee] contacted [the employer] to say that he was using his remaining two weeks of FMLA leave and the company subsequently fired him under the attendance policy, [he] would have a claim.  But that is not what happened.  [Its] policy required [him] either to return to work or call in and report his intentions, and [he] did neither.  So the light-duty regulations do not protect him.

Second, the Court rejected the FMLA retaliation claim.   The employee apparently admitted that his only evidence of retaliation was the temporal proximity of the termination – 10 weeks after he began FMLA leave.   There were apparently no stray or other remarks which would show that the employer was motivated to retaliate for his taking FMLA leave.  However, temporal proximity alone cannot constitute sufficient evidence of causation when the lapse of time is greater than 8 weeks.   Accordingly, the Court affirmed dismissal of the FMLA claims. 

Finally, the Court found that there was sufficient evidence for a jury to consider whether the employee was fired in retaliation for, and to prevent him from, using his ERISA benefits to obtain employer-covered medical treatment for his son.  The employer was self-insured for medical coverage and had stop-loss coverage for extraordinary claims.   The company had apparently spent $500K on his son’s care in the prior year (part of which was covered by the stop-loss coverage) and had been publicly lamenting “skyrocketing” health care costs in employee bulletins.  The HR Director was alleged to have complained about this to another employee and attributed the rising employee premiums to his son’s $1M in medical bills.  While the employee’s supervisor made the decision to terminate his employment, he did not act alone because the HR Director and the VP of Operations also participated in the decision, decided to not reconsider or excuse his confusion about his medical release, and were well aware of the cost of his son’s medical expenses.   Further, the passage of seven months between his son’s hospitalization and the termination decision did not destroy the temporal proximity inference because, as just discussed, the employee was not relying on temporal proximity alone (as he did in his FMLA claim).   This was particularly true when it was known and likely that his son would have to return to the hospital again in the future.

The employer again explained that it had fired the employee under its policy of automatically firing employees who fail to show up or call off for three consecutive days and pointed out that it had similarly fired 55 other employees under this policy.  

Thus it is [the employee’s] turn once more.  [The employee] “need not show that the employer’s sole purpose was to interfere with [his] entitlement to benefits” or to retaliate, but instead that a reasonable jury could find that unlawful considerations were a “motivating factor” in its actions.  

The Court then remarkably concluded that while the employer’s rationale was justified under the FMLA, it could constitute pretext under ERISA.   Although the Court rejected the employee’s argument that the employer’s failure to call him to schedule a return-to-work drug test after he had been released to return to light duty was evidence of pretext for his FMLA retaliation claim, it found that evidence relevant for his ERISA retaliation claim.  Finally, it found that the employee’s “suggestion” that the employer had called some workers to find out why they had not returned to work or called off (instead of automatically terminating them) constituted evidence of selective enforcement and ERISA retaliation, but was apparently irrelevant to his FMLA retaliation claim. 

[The plaintiff] had worked at [the defendant company] for nearly twenty years, had won at least one perfect attendance award, and had worked overtime when asked.  He seems to have been a satisfactory employee.  But as the three days after his release to light duty rolled by, [the defendant company] reached out only to [his] doctor and [its]third-party administrator for workers’ compensation claims—just to double-check that [he] had really been released.  And even though [its] employee handbook indicates that [he] had to “complete a return to work fitness exam and drug screen prior to returning to work” that “[would] be scheduled by the Human Resource department,”  . . . the company did not schedule [his] drug screen before it fired him.   . . .   Although [the defendant employer] was not required to reach out to [him, for reasons set out in the FMLA-interference discussion above, the fact that it did not do so could still raise a juror’s suspicions about [its] motives.  And while [the employer] claims that this was all just standard practice—pointing to a list of fifty-five employees that the company terminated under its no-call, no-show policy in the past twenty or so years—[its] list only includes names and dates.  It does not indicate whether these fifty-five terminations are otherwise similar to [the plaintiff’s] in the relevant respects.  And [the plaintiff], for his part, has pointed to evidence suggesting that his superiors selectively enforced the absenteeism policy by calling some employees to “ask what’s up” when they failed to show up for work, but not others.  

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Court Rejects FMLA Objection to Demotion During Probation Because of Temporary Injury

Earlier this month, the Montgomery County Court of Appeals denied the FMLA objection of a firefighter recruit who was unable to complete his training during his six-month probationary period because of a work-related injury during that training. Geisel v. Dayton, 2018-Ohio-512.  The Court found that the firefighter never requested or sought a FMLA leave of absence; opting instead to take restricted duty with pay.  It also rejected a workers compensation retaliate claim.  Rather, the Court found that the Civil Service Commission was entitled to demote the firefighter to his EMT position even though he was unable to physically perform those duties because of the same injury. 

According to the Court’s opinion, the firefighter took and passed the civil service examination for the firefighter eligibility list.  Thereafter, he was hired as an EMT and presumably passed the probationary period for the EMT position.  About two months after starting his firefighter training, he injured his knee during training and was unable to complete the training before his class graduated in June (following the expiration of the eligibility list).   The decision does not indicate how long he was incapacitated.  He apparently was placed on restricted (i.e., light) duty.  A month after the firefighter had been injured, the Director recommended that he be demoted back to his EMT position (even though he was temporarily unable to perform those duties because of the same injury) and that decision took affect a few weeks later.  Concerned that he would not be rehired as a firefighters before he was age-restricted even if he took and passed the next firefighter examination, he appealed the civil service decision.

As mentions, the Court rejected his argument that the demotion violated the FMLA because he never sought nor took FMLA leave.  Instead, he took restricted (light) duty.  Second, the Court rejected his workers compensation retaliation claim.  Not only did he fail to allege a retaliatory motive, he never sought nor obtained temporary total disability nor was demoted because of absenteeism under Coolidge v. Riverdale Local School District.   Finally, the civil service rules permitted the demotion of an employee who is unable to successfully complete a probationary period due to injury.

While the Court implied that the age restriction might not apply since he had been hired once as a firefighter and noted that he was not restricted from reapplying for a firefighter position, it observed that he:

had six months from the date of his appointment to Firefighter Recruit in which to “qualify,” or in other words, to complete his recruit training.  The rule does not invest an employee who fails to qualify during this six month period with the right to make subsequent attempts without interruption, meaning that Geisel’s appointment to Firefighter Recruit was, in plain language, a one-shot opportunity.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Rejects Plaintiff’s FMLA Jury Verdict Which Rested Solely on Temporal Proximity

On Tuesday, the Sixth Circuit reversed a jury verdict entered in favor of a plaintiff who claimed that she had been terminated for falsifying her time sheets in retaliation for taking FMLA leave.  Hartman v. Dow Chemical Co., No. 15-2318 (6^th Cir. 8-16-16).   However, the Court found that there was insufficient evidence to prove that the employer’s honest belief in her fraud was pretext for retaliation even if the findings had been potentially exaggerated because there was no evidence that the employer had known about and tolerated the fraud before her FMLA leave, the investigation which commenced after her leave produced clear evidence of fraud, there was no direct evidence based on co-worker pleas to terminate her employment during her FMLA leave, and the employer could not be faulted for considering the legal ramifications of her FMLA rights. “[W]here a plaintiff’s evidence of retaliatory animus ultimately rests solely on temporal proximity, a jury’s verdict in favor of the plaintiff cannot stand.”

According to the Court’s opinion, shortly after the plaintiff requested FMLA leave, the plaintiff’s co-workers reported their suspicions and concerns that the plaintiff had not been working all of her assigned hours, had engaged in personal matters during work time and had failed to perform assignments.   In particular, one co-worker produced a log of the plaintiff’s arrival and departure times to demonstrate that she had not been working her assigned hours.  Another discovered that the plaintiff had not even commenced a number of long-term assignments before she left for FMLA leave and also heard during her FMLA leave that she had been observed engaging in activities and comments which belied her need for FMLA leave.   However, her supervisor refused to confront her about these issues during her leave and was satisfied when she produced an updated FMLA medical certification form to support her FMLA request.  Nonetheless, he apparently informed Human Resources that she seemed to be exaggerating her illness when he met with her.

Following her return to work, her co-workers again monitored her comings and goings and personal activities on work time and requested that action be taken so that the intern who filled in could be hired instead.  Her supervisor finally obtained objective evidence of her arrivals and departures from the front gate and her computer log-ins. He confronted her several months after she returned from FMLA leave with the fact that she claimed to be working for 60 more hours than she had been physically present on company property.  When she claimed to be working from home for 2.5 hours nightly, he pointed out that she had only logged into the computer remotely twice in the past month and one of those had been on a day when she called off sick.  She was then terminated for timecard fraud.  A jury awarded her over $50,000 in back pay and over $122,000 for future damages.

The Sixth Circuit reversed on appeal.  Although the plaintiff argued that the defendant employer had been motivated by her FMLA leave, the employer’s explanation for her termination was supported by the honest belief rule.   While the plaintiff contended that the employer had exaggerated the discrepancy between her time sheet and gate records, she could not dispute that there remained a significant discrepancy and her mere disagreement with the result was legally insufficient to disprove her employer’s honest belief.  “This requires a specific showing that the employer’s decision-making process was not ‘reasonably informed and considered’ and is thus not worthy  of belief” or was based on nothing more than personal opinion.  Even a mistake by an employer does not trump its previous honest belief.  “As this court has previously explained, it does not matter whether the employee actually committed fraud—what matters is if the employer honestly believed that the employee did.”

Unable to show that the employer’s explanation was unworthy of belief (and thus pretextual or a cover-up), the plaintiff attempted to show that it did not actually motivate the employer’s decision.  In this case, the plaintiff pointed to the temporal proximity between her request for FMLA leave and when the employer began to scrutinize her attendance.  The employer argued that it did not matter what or who triggered the investigation into the plaintiff’s attendance because employers are permitted to enforce their rules regardless of who uses FMLA leave.   The Court agreed that “temporal proximity between the start of an investigation into an employee’s misconduct and the use of FMLA generally does not itself provide sufficient evidence of animus.”  Nonetheless, “where an employer treats an employee differently after she asserts her rights . . . than before she had done so, a retaliatory motive may be inferred.” But, in those cases where retaliatory motive was inferred from increased scrutiny, there had been evidence of uneven application of the rule or tolerance of the plaintiff’s poor attendance before taking FMLA leave and intolerance for it after the FMLA leave.   In this case, there was no evidence that the employer had been aware of the extent of the plaintiff’s malfeasance before she requested FMLA leave and only disciplined her for it after engaging in protected conduct.  In other words, there was no evidence that the employer had been aware of the plaintiff’s fraud before her leave and had ignored it, only to terminate her for fraud after her FMLA leave.

The plaintiff also argued that the timing of her termination – just a few months after she returned from FMLA leave – was suspicious.  However, for temporal proximity to substitute for causation, there must be other “independent evidence.”  The plaintiff tried to argue that a co-worker’s emailed plea to her supervisor after she returned from FMLA leave was such evidence.  However, that email focused on the plaintiff’s fraud and not on her FMLA leave.  It was too ambiguous to constitute direct evidence of retaliation.

The Court also rejected the Plaintiff’s argument that her co-workers’ attempt to have her fired for timecard fraud during her FMLA leave was evidence of retaliation, even if her supervisor refused to do so while she was on FMLA leave because of a fear of litigation.

To permit an inference of retaliatory animus based on a company’s honest assessment of the potential risk of terminating an employee would unduly hinder frank employment decisions.  Moreover, there must be a clear line for the purpose of liability between an employer considering whether an employee may file suit—even though the employer has a legitimate basis to take an adverse employment action—and an employer terminating a plaintiff based on the employee’s protected status or engagement in a protected activity:  the latter results in liability for the employer while the former does not.  For that reason, it is legally insufficient for a jury to reasonably rely on Ingold’s alleged statement that Dow was concerned that if an ERM was held concerning Hartman, she might file suit.

Finally, the Court rejected the plaintiff’s argument that her supervisor’s skepticism of her need for FMLA leave was sufficient evidence of pretext.

First, statements and actions by a decisionmaker “outside of the decisionmaking process” cannot be the sole basis for proving pretext.   . . .  Second, even assuming that [her supervisor] was skeptical of [the plaintiff’s] use of FMLA leave, “[n]othing in the FMLA prevents employers from ensuring that employees who are on leave from work do not abuse their leave.”   . . .  In fact, just prior to meeting with [the plaintiff, her supervisor] had received a report from [HR] that [the plaintiff] was engaging in activity inconsistent with her medical restrictions.  Regardless of [his] skepticism, once [she] provided a note from her doctor that indicated she needed more rehabilitation, [he] was satisfied. Therefore, this incident fails to provide any evidence that retaliatory animus motivated [the employer’s] termination of [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 be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.