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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sixth Circuit Blames Employee’s Physician For Year Delay In Reinstatement Following Stroke and Dismisses Disability Discrimination Claim

On Tuesday, the Sixth Circuit affirmed the summary judgment dismissal of an Ohio disability discrimination claim brought by a current employee who wanted to return to work following rehabilitation of a severe stroke before the company’s physician agreed.  Stanley v. BP Products North America, Inc., No. 18-3303 (6^th Cir. 12-4-18).   Although the plaintiff had been released to return to work without restrictions by his physician’s office in August 2011, the company’s physician disagreed after conducting his own medical assessment and the plaintiff’s physician provided a signed note in November 2011 agreeing with the company’s physician.  The plaintiff did not provide a contrary note from his personal physician releasing him without restrictions until July 2012 and he was returned to work the following month when the company’s physician conducted another assessment and agreed.  The Court rejected the plaintiff’s argument that the employer could be found to have discriminated against him without knowledge that his own physician’s November 2011 was flawed and not based on any medical assessment.  Employers are generally entitled to accept an employee's doctor’s restrictions at face value.

According to the Court’s opinion, the plaintiff suffered a severe stroke in November 2010 and collected short-term disability.  However, after his STD was exhausted and he completed his rehabilitation, his application for long term disability was denied after his personal physician – the villain in this story --  failed to submit some required documentation.  His physician told him that he would release him to return to work if he passed a driving assessment, which he did.  He was then examined by a Certified Nurse Practitioner which found him to be physically fit as of August 2011, but did not conduct a cognitive assessment.  At that point, the employer’s collective bargaining agreement provided that he had to pass a physical examination by the company’s physician.   The Company’s physician agreed with the CNP that the plaintiff had good strength and reflexes, but had issues with balance, fine motor skills, coordination and some cognitive skills.  For instance, he could not stand long on one leg, had difficulty with heel to toe walking and could not subtract 7 from 93.   Concerned, the company’s physician studied the plaintiff’s medical file and determined that his physician had failed to conduct certain necessary tests or to understand the requirements of the plaintiff’s job.  The company’s physician then restricted the plaintiff to office work, for which there were no open positions.

The bargaining agreement then required the two physicians to consult with each other about their disagreement and, if not resolved, select a specialist to resolve the dispute.   The company’s physician faxed information about the issue to the plaintiff’s physician and called him in October and November without success.   Apparently, the plaintiff’s physician never reviewed faxes, or returned calls and delegated these issues to his office staff.  The union then pursued the issue with HR, who called the plaintiff’s physician office to complain about the lack of response, pointing out that the plaintiff was about to have his utilities shut off when he was earning neither wages nor LTD. At that point, the plaintiff’s physician provided a signed note restricting plaintiff’s return to work and suggesting LTD.  The plaintiff was not provided with a copy.  However, he was awarded LTD, which he rejected because he contended that he was able to return to work in August.

In March 2012, the plaintiff’s physician signed a second note saying that he only signed the first note because of information about the plaintiff’s finances and indicated that the plaintiff could immediately return to work without restrictions.  However, this second note was not provided to the employer until July 2012.  There is no indication in the record whether the plaintiff’s physician conducted any medical assessment in either November 2011 or March 2012 and the physician denied recalling signing either note.  The plaintiff was evaluated again by the company’s physician in August (in the presence of an assistant and union representative) and passed all of the physical and cognitive tests.  He was immediately returned to work and remained there when the lawsuit was filed challenging the year delay in reinstating him to work.

The plaintiff argued that the employer should have realized that his physician’s November 2011 note was flawed and not based on any medical assessment or review of his medical file.  However, the Court found that employers are generally entitled to rely on a doctor’s restrictions at face value.  There was no evidence presented that the employer knew – or should have known -- that the plaintiff’s physician was simply providing a note as requested earlier in the day by HR affirming the restrictions so that the plaintiff could collect LTD.

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 Enters Judgment for Employee’s Reinstatement Claim Because USERRA Trumps Employer’s Regular Return-to-Work Procedures.

Today, the Sixth Circuit issued an important decision applying USERRA, reversed summary judgment in favor of the employer and entered summary judgment in favor of the plaintiff employee whose re-employment rights had been violated. Petty v. Metropolitan Government of Nashville-Davison County, No. 07-5649 (8/18/08). In that case, the Sixth Circuit faulted the employer for delaying the employee’s reinstatement to his former position beyond two weeks pending completion of the employer’s regular return-to-work process and pending completion of investigations about the plaintiff’s honesty in explaining the reasons for the termination of his military service.

While the plaintiff was serving in Kuwait, he was brought up on charges for violating the Code of Military Justice for conduct unbecoming an officer in having bootleg alcohol in his quarters and sharing the alcohol with an enlisted female soldier. He was eventually permitted to resign from the military in lieu of court martial, returned home on February 1 and sought reinstatement to his former job as a police sergeant on February 28, 2005. His discharge was identified by the military as “under honorable conditions.” Before the police department would reinstate him, however, they required him to undergo its standard return-to-work process to ensure that he was mentally, temperamentally and physically fit to serve as a police officer. This included “a personal history update questionnaire, a medical examination, a computer voice stress analysis, a drug screening, and a debriefing with a Police Department psychologist. In addition, the Police Department requests that returning officers execute a medical records authorization, and for individuals returning from military duty, an authorization to obtain military records.” After the plaintiff was required to explain in writing about any disciplinary charges during his military service, investigations arose as to whether he should be disqualified from police service because of the recommended court martial and because of concerns that the plaintiff had not honestly explained the situation during the return-to-work process.

Although the plaintiff was not rehired until March 21, 2005 – almost a month after he sought reinstatement – he was not reinstated into his former position as a sergeant. Rather, he was given a desk job accepting civilian complaints pending completion of the investigations into his former military service and his honesty during the return-to-work process. Ultimately, the employer determined that the military disciplinary action would not preclude his reinstatement, but it remained concerned about his honesty in disclosing the subject. Thereupon, it was discovered that plaintiff had not submitted a complete copy of his DD-214 form memorializing his honorable discharge. Rather, the copy he had submitted had been so enlarged that the last three sections of the form – one of which indicated that he had resigned in lieu of court martial – had been deleted from the form. As this situation continued, plaintiff requested authorization to resume his off-duty security work, but was denied in light of the investigations into his honesty.

Plaintiff then filed suit alleging that his USERRA rights had been violated. The district court granted summary judgment to the City on the grounds that Plaintiff had been treated the same as other police officers who took leaves of absence and could not prove any unlawful discrimination. The Sixth Circuit reversed and entered judgment in favor of the plaintiff employee:

“For the purposes of this case, USERRA performs four key functions. First, it guarantees returning veterans a right of reemployment after military service. 38 U.S.C. § 4312. Second, it prescribes the position to which such veterans are entitled upon their return. 38 U.S.C. § 4313. Third, it prevents employers from discriminating against returning veterans on account of their military service. 38 U.S.C. § 4311. Fourth, it prevents employers from firing without cause any returning veterans within one year of reemployment. 38 U.S.C. § 4316.”

The Court found that “upon his return, he was required to request reemployment from Metro within the time frame outlined in § 4312(e) and with the documentation specified by § 4312(f). [In addition], his separation from service must have been under “honorable conditions.” 38 U.S.C. § 4304(2).

The documents which satisfy the documentation requirements of 38 U.S.C. § 4312 are identified in 20 C.F.R. § 1002.123. Among those listed is a form DD-214, which the employee provided when he sought reinstatement. But the employer argued that the employee’s DD-214 was not sufficient under USERRA, because the copy which he submitted admittedly did not include three fields at the bottom of the form — most notably one including the statement “Narrative Reason for Separation: In lieu of trial by courtmartial.” The employer also argued that the DD-214 was “void” because the failure to include all fields constituted an alteration voiding the form.

The Court held that “it would be inconsistent with the goals of USERRA to prevent [the employee] from exercising his right to reemployment because he failed to provide forthrightly information that is statutorily unnecessary to his establishing the right in the first place. First, 20 C.F.R. § 1002.123(a)(2) expressly recognizes that the types of documentation necessary to establish eligibility for reemployment may vary from case to case. The focus of USERRA is on securing rights to returning veterans, not on ensuring that any particular documentation is produced. Second, in compliance with [the employer’s] return-to-work process, [the employee] signed an authorization granting [the employer] unfettered access to all of his medical and military records, including a complete DD-214. Accordingly, we find that [the plaintiff] satisfied USERRA’s documentation requirement, and, inasmuch as [the employer] does not dispute his having satisfied the other statutory prerequisites, it is apparent that he established his right to reemployment as guaranteed by §§ 4312 and 4313. [The employer], therefore, was not permitted to delay or otherwise limit [the plaintiff’s] reemployment rights in any way; in particular, [the employer] was not permitted to limit or delay [the employee’s] reemployment by requiring him to comply with its return-to-work process. Section 4302(b) expressly states that USERRA “supersedes any . . . contract, agreement, policy, plan, practice, or other matter that reduces, limits, or eliminates in any manner any right or benefit provided by this chapter, including the establishment of additional prerequisites to the exercise of any such right or the receipt of any such benefit.” By applying its return-to-work process to [the plaintiff], [the employer] not only delayed his reemployment, but as we shall explain, it also limited and withheld benefits to which [the employee] was entitled under USERRA.”

“It is of no consequence here that [the employer] believes it is obligated to “ensure that each and every individual entrusted with the responsibility of being a Metropolitan Police Officer is still physically, emotionally, and temperamentally qualified to be a police officer after having been absent from the Department.” In USERRA, Congress clearly expressed its view that a returning veteran’s reemployment rights take precedence over such concerns. [The employer] does not question [the employee’s] physical qualifications; instead, it questions only whether his conduct during his military service would disqualify him from returning to service in the police department. But [the plaintiff’s] separation from military service is classified as “under honorable conditions,” which Congress has made clear suffices to qualify him for USERRA benefits, 38 U.S.C. § 4304(2). To the extent that his military service may have in fact left [the employee] unfit to carry out his duties as a police officer but is not reflected in the classification of his separation from service, USERRA would allow, after his reemployment, a “for cause” termination of that employment. 38 U.S.C. § 4316. Furthermore, Congress recognized USERRA would limit the ability of employers to rescreen returning veterans, but still chose to make this the general rule under USERRA. This is evident because, in certain circumstances, Congress altered this general rule to allow vetting of returning veterans before full rehiring. Section 4315 allows the heads of agencies listed under 5 U.S.C. § 2302(a)(2)(C)(ii) – e.g., FBI, CIA, NSA – to “prescribe procedures for ensuring that the rights under [USERRA] apply to employees of such agency.” 38 U.S.C. § 4315(a). Congress did not grant similar discretion to local police departments; therefore, [the employer’s] return-to-work process as applied to [the plaintiff] was in violation of USERRA’s reemployment provisions.” (emphasis added).

The Court also found that the lower court had erred in endorsing the City’s return-to-work process because they did not discriminate against veterans under USERRA. “First, § 4302(b) does not limit its superseding effect only to “additional prerequisites.” It supersedes any “policy, plan, [or] practice” that “reduces, limits, or eliminates in any manner any right or benefit” provided by USERRA, “including,” but not necessarily limited to, “the establishment of additional prerequisites.” Second, [the employer’s] return-to-work procedures do constitute “additional prerequisites” for returning veterans, because the procedures are in addition to the requirements Congress specified for the exercise of USERRA’s reemployment rights. The district court apparently viewed the term “additional prerequisites” as meaning “additional to the employer’s existing prerequisites,” and concluded that [the employer’s] procedures are not discriminatory because they apply to all individuals returning to the department. But this analysis is not appropriate for a claim brought under § 4312, and the superseding effect of § 4302(b) is not so limited; [the employer’s] return-to-work procedures are indeed superseded by USERRA’s reemployment provisions.

It is important to note that [the plaintiff] was not required to make any showing of discrimination in order to sustain either of his reemployment claims. The district court incorrectly characterized part of [the plaintiff’s] reemployment claim — that part dealing with the position to which he was reinstated — as being part of his discrimination claims and therefore held that it required a showing of discrimination. . . . the Department of Labor specified that “[t]he employee is not required to prove that the employer discriminated against him or her because of the employee’s uniformed service in order to be eligible for reemployment.” 20 C.F.R. § 1002.33 . . . , the imposition of § 4311’s discrimination requirement on a reemployment claim is not consistent with the plain language of §§ 4312 and 4313. Section 4313 states that any “person entitled to reemployment under section 4312” — which we have found [the employee] to be — “shall be promptly reemployed in a position of employment in accordance with the” order of priority outlined in § 4313(a)(2). Thus, the express terms of § 4313 make its application contingent only on the prerequisites of § 4312, none of which include a showing of discrimination.”

“At the point at which [the employee] was entitled to reemployment under §§ 4312 and 4313, [the employer] had no basis on which to question his qualifications. [the employee] had satisfied the only prerequisites to § 4313 — those specified in § 4312 — and [the employer’s] attempt to impose additional prerequisites through its return-to-work process was, as we have already explained, wholly impermissible.” The employer’s return-to-work process (and the questions about the plaintiff’s honesty which arose during that process) “cannot serve as a basis for delaying or otherwise limiting [the employee’s] right to reemployment.”

The Court found that not only did the employer fail to properly rehire the plaintiff, but it also failed to reinstate him to his former position: “Because of its return-to-work process, [the employer] took three weeks to “rehire” [the employee], and even then it did not place [the employee] in the correct position as outlined in § 4313.” The employer “cannot defeat the “prompt reemployment” guarantee of § 4313 by engaging in never-ending investigations into [the employee’s] qualifications. Indeed, courts have recognized that: It is presumed under the law that a veteran, who was qualified for his employment status upon its termination by his entry into the active military service of the United States, remains qualified to claim reemployment upon his discharge from such active military service. . . . An employer who refuses to reemploy a discharged veteran who has timely applied for reemployment has the burden of proving the veteran's disqualification for reemployment.” Because the employer failed to meet that burden, the Court ordered the trial court to enter judgment in favor of the employee on his claims that the City failed to properly reinstate him to his former position as a police sergeant within two weeks of his seeking reinstatement.

Finally, the Court held that the plaintiff’s complaint about not being authorized for off-duty security work could not be brought as a reinstatement claim, but rather should be analyzed as a discrimination claim. At that point, the court analyzed whether the plaintiff’s military service was a motivating factor for the denial of his request to perform off-duty security work. Because the trial court failed to conduct the proper analysis, the Court remanded that claim to the court for reconsideration.

Insomniacs can read the full decision at http://www.ca6.uscourts.gov/opinions.pdf/08a0302p-06.pdf.

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.

When Misconduct Does Not Pay: NLRB Denies Reinstatement and Back Pay to Discharged Employees Despite Employer's ULP

As most union employers are aware, they must advise and possibly negotiate with the incumbent union before monitoring union employees in the workplace (through video surveillance or otherwise). See .e.g., Colgate-Palmolive, 323 N.L.R.B. No. 82 (1997) (where use of surveillance cameras was found to be a mandatory subject of bargaining). However, the NLRB recently determined that employees discharged or disciplined for workplace misconduct uncovered by improper video surveillance are not entitled to back pay or reinstatement. Anheuser-Busch, Inc., 351 NLRB No. 40 (9/29/07).

In that case, the employer installed hidden surveillance video cameras without bargaining with the incumbent union. Through use of the cameras, the employer learned that certain employees engaged in misconduct, and the employer disciplined or discharged sixteen of them. Even though the employer committed an unfair labor practice by failing to bargain over a mandatory subject (i.e., surveillance cameras) and was ordered to cease and desist and to bargain with the union, the majority of the NLRB determined that the disciplined and discharged employees should not benefit from their misconduct through a windfall award of reinstatement and backpay. In denying a make-whole remedy, the NLRB overruled prior NLRB cases as inconsistent with its new holding. The NLRB noted that it had similarly denied backpay and reinstatement to employees discharged for misconduct following a violation of their Weingarten rights.

Insomniacs can read the NLRB’s full decision at http://www.nlrb.gov/research/decisions/board_decisions/template_html.aspx?file=http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35140.htm&size=170.