Sixth Circuit: School Violated FMLA By Placing Employee on Involuntary, Unpaid Leave in Part Because FMLA Leave

On Wednesday, the Sixth Circuit reversed summary judgment entered in favor of an Ohio school district employer on an employee’s FMLA claim. In Hunter v. Valley View Local Schools, No. 08-4109 (6th Cir. 8/26/09), the School District placed the employee on an involuntary and unpaid leave of absence for two years when she attempted to return to work with significant medical restrictions following an FMLA medical leave of absence. In doing so, the School’s superintendant testified that the decision was motivated both by the plaintiff’s excessive absenteeism (which consisted almost entirely of her FMLA medical leave of absence) and medical restrictions placed by the employee’s physician. The plaintiff brought suit in state court alleging violations of the FMLA and Ohio’s disability discrimination statute. The district court in Dayton found that the employer would have treated the plaintiff the same regardless of her FMLA leave, granted summary judgment to the school on the FMLA claim and refused to exercise pendent jurisdiction over the state law disability discrimination claims. The Sixth Circuit reversed on the grounds that that the school employer illegally discriminated against the plaintiff in violation of the FMLA by placing her on involuntary and unpaid leave in part because of her protected use of the FMLA.

As noted by the Sixth Circuit: “An employer may not discriminate or retaliate against an employee for taking FMLA leave. 29 U.S.C. § 2615(a)(2). In particular, an employer is prohibited from “us[ing] the taking of FMLA leave as a negative factor in employment actions.” 29 C.F.R. § 825.220(c) . . . . Employers who violate the FMLA are liable to the employee for damages. 29 U.S.C. § 2617(a)(1) . . . There are two theories of recovery under the FMLA: an interference (or entitlement) theory and a retaliation (or discrimination) theory.” Notwithstanding the Supreme Court’s recent decision in Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2348-49 (2009), the Court determined that Title VII’s burden-shifting approached remained applicable to mixed-motive FMLA retaliation claims.

Further, the Court recognized that FMLA regulations prohibit employers from taking FMLA leave into account when making adverse employment decisions: “employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under “no fault” attendance policies.29 C.F.R. § 825.220(c) (emphasis added). . . . . The phrase ‘a negative factor’ envisions that the challenged employment decision might also rest on other, permissible factors.”

The school superintendent’s testimony that she considered the plaintiff’s FMLA absences as a negative factor in placing her on an involuntary and unpaid leave of absence was found to constitute direct evidence of impermissible motive because employers are not permitted under FMLA regulations to use FMLA leave as a negative factor in employment decisions. Further, when the superintendent denied that she would have placed the plaintiff on unpaid leave solely because of her medical restrictions – which might have created an issue of disability discrimination and unlawful failure to accommodate -- the court had no difficulty in finding the illegal consideration of FMLA leave was a motivating factor.

Insomniacs may read the full opinion at http://www.ca6.uscourts.gov/opinions.pdf/09a0311p-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.

Lactation Discrimination in Ohio: Toto: We’re Not In Kansas Anymore.

This morning, the Ohio Supreme Court issued a decision which had initially promised to decide whether Ohio law prohibited an employer from discriminating against an employee who was lactating. However, the per curiam decision (i.e., non-binding authority) remarkably avoided that issue altogether and, instead, affirmed an employer’s right to fire an employee for insubordination when the employee admittedly took unauthorized breaks without the employer’s knowledge or consent. Allen v. Totes/Isotoner Corp., Slip Opinion No. 2009-Ohio-4231. The Court’s action might not have raised an eyebrow if it were not for the facts of the case and that many people in Ohio have watched the oral argument previously broadcast on the Ohio Channel (which is part of PBS).

By way of background, after returning to work following her maternity leave, the plaintiff requested her supervisor for breaks to pump her breast milk to feed her five-month old infant. The employer apparently told her that she could do so during her regular lunch break. Employees were otherwise forbidden to take breaks unless they needed to urinate, etc. The plaintiff decided that her breasts needed pumped more often or later in the morning than her regular break schedule permitted and so, without her supervisor’s knowledge or consent, she began taking an extra break later in the morning to use the breast pump. The supervisor found out and fired her for failing to follow directions. There was some factual dispute about whether the plaintiff ever notified the employer that its prior arrangement was unsuitable before she added or rescheduled her own rest break.

When the plaintiff brought claims for wrongful discharge under the Ohio Pregnancy Discrimination Act, the trial court granted summary judgment to the employer on the grounds that lactation five months after child birth is not related to pregnancy because lactation would have stopped in the natural course of events if the employee had decided not to breast feed her baby. (In his mind, the fact that she was lactating five months later was related to her decision to breast feed and not to her pregnancy). This was important because pregnancy is covered by statute and breastfeeding is not. The Court of Appeals affirmed, but only on the grounds that she did not satisfy her prima facie case and an employer may legitimately fire an employee for taking an unauthorized rest break.

As mentioned, a majority of the Supreme Court could not agree on a basis to affirm or reverse the judgment. While a majority could agree on affirming the judgment, they could not agree why. Most of the majority apparently agreed that it was non-discriminatory to fire an employee for taking unauthorized rest breaks. However, they could not agree whether the act of using a breast pump put the plaintiff into a protected status under the Pregnancy Discrimination Act and refused to address the issue at all on the disingenuous rationale that it would constitute an advisory opinion.

Surprisingly, both Chief Justice Moyer and Justice O’Connor agreed that lactation should be a covered activity under the Pregnancy Discrimination Act. As Justice O’Connor noted in her opinion, the relevant Ohio statute includes as sex discrimination any action taken “because of or on the basis of pregnancy, any illness arising out of and occurring during the course of a pregnancy, childbirth, or related medical conditions. Women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes * * *.” R.C. 4112.01(B).” The oral argument in this case spent most of the debate focusing on this language. Finding no legal support for her position in any federal court decision on the issue (even though she acknowledged that the Ohio statutory language quotes the federal Pregnancy Discrimination Act verbatim) and even though a number of states have passed specific breastfeeding protection statutes to address the lapse, she decided it was beyond dispute that Ohio’s statute covered breastfeeding.

However, both Moyer and O’Conner felt that the plaintiff was asking for preferential treatment by taking an extra break to pump breast milk, and thus, could be fired like any other employee for taking an unauthorized rest break. They do not believe that Ohio law requires employers to give breastfeeding/breastpump breaks to employees. Unlike the ADA, the federal PDA does not require preferential treatment or reasonable accommodation for pregnant women. (Ohio law, on the other hand, mandates a reasonable maternity leave even when an employer does not provide any medial leave). On a strict comparative basis analysis, the plaintiff did not show that she was fired for engaging in the same conduct as others because no one else was taking an extra fifteen-minute break each day to pump breast mile (or any other reason). While I agree that an employee who takes surreptitious breaks or violates her supervisor’s direct order has been insubordinate, I am not certain that this issue is so simple since there seemed to be a factual dispute about whether the employee was treated differently on account of her breastfeeding break or whether Ohio law requires some sort of reasonable accommodation (assuming, of course, that lactating is covered by the PDA, which I do not think it is).

Justice Pfeifer agreed that the plaintiff’s lactating was covered by the Pregnancy Discrimination Act, but felt that the plaintiff was discriminated against because she was fired for taking a rest break for the purpose of pumping breast milk, but admittedly would not have been fired if she had taken the same rest break in order to urinate. While this rationale has its benefits, is an employer required to treat breastfeeding the same as urination? If so, would employers then have an incentive to ban urination breaks? Is that a world in which we want to live? Are there time limits on either (how long you have to urinate vs pump breast milk)? Is it relevant that she may never have told the employer that its prior arrangement was insufficient? Does the employee get to decide for herself when she gets to take a break and how often or does she have to work that out first with her employer?

In any event, Isotoner now finds itself in the unenviable position of manufacturing a product (i.e., fashion gloves, slippers and umbrellas) to women who it will not permit to take a daily fifteen minute break to pump breast milk for suckling infants. Ohio employers are left unsure whether a future court decision will address this question or whether the Ohio legislature will eventually take it up. For now, there is no law in Ohio giving women the right to take breaks to pump breast milk for their infants.

Insomniacs can read the full opinion at http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-4231.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.

EEOC Obtains $90K Consent Judgment in Federal Court In Columbus Over ADA Violations When Employer Required Employees to be 100% Fit.

Last week, the EEOC announced that “AVI Foodsystems, Inc. (AVI) will pay more than $90,000 and offer jobs to discrimination victims to settle a class disability discrimination suit brought” by the EEOC in federal court in Columbus, Ohio. “The EEOC charged in its suit (Case no. 2:09-cv-00656-JDH-MRA . . . . that AVI violated federal law by failing to allow employees with disabilities to return to work without a full-duty, no-restriction doctor’s release. The EEOC asserted that this policy violated the Americans With Disabilities Act (ADA). The agency said disabled employees who had been on leave and are able to return to work with some physical restrictions, but are still able to perform their jobs, should be allowed to do so. The policy adversely affected more than 80 AVI employees in several states, including Ohio, New York, Pennsylvania, Michigan, Illinois, Kentucky, and West Virginia.”

According to the EEOC, “[t]he consent decree settling the suit provides that AVI will offer jobs to discrimination victims named in the decree, make payments to individuals who are not provided jobs, comply with the ADA, and train managers on the provisions of the ADA. According to company information, Warren, Ohio-based AVI, the largest independently owned and operated food service in the United States, maintains vending and dining services in commercial locations such as factories, universities, and health-care facilities.”

Insomniacs can read the full EEOC press release at http://

Sixth Circuit: Employer’s Resentment of Work Employee Missed Due to Military Service Supported Imposing Wrongful Discharge Liability Under USERRA.

Earlier this month, the Sixth Circuit affirmed a bench trial verdict in a wrongful discharge case brought under USERRA by an employee who had been fired in part because of insubordination, but which the trial court found was motivated mostly by the employee’s missing work because of his national guard service. The Court, however, remanded the case for reconsideration of the $352,846 of damages imposed by the trial judge. Hance v. Norfolk Southern Railway Co., No. 07-5475 (6th Cir. 7/1/09). Although the employee’s alleged insubordination had been independently investigated and substantiated in a union arbitration, the Court believed there was sufficient evidence that the employer would not have terminated the employee for the alleged insubordination if his supervisor and manager had not both expressed resentment of the amount of work he missed because of his national guard service.

As stated by the Court:

On appeal, [the employer] argues that the district court erred in attributing antimilitary animus to [the employer]and in concluding that [the employer] failed to prove that a nondiscriminatory reason actually motivated the discharge. Regarding the attribution of anti-military animus to the company, [the employer] argues that [the plaintiff’s] immediate supervisor, lacked the authority to investigate or terminate [the plaintiff] and, therefore, that [the supervisor’s] anti-military animus cannot be imputed to the company. But in addition to evidence of [the supervisor’s] hostile attitude, testimony by union representative . . . indicated that Assistant Superintendent Bryson had also expressed concern about [the plaintiff’s] taking “too much time off for the military.” Significantly, Bryson was responsible for the decision to dismiss [the plaintiff]. This evidence of anti-military animus from a decisionmaker, combined with the close temporal relationship between [the plaintiff’s] two-week leave for military service and his discharge was legally sufficient to support the district court’s finding that [the plaintiff] was discharged in violation of USERRA.

The Court also refused to accord res judicata status to the labor arbitration which upheld the plaintiff’s discharge for insubordination. Although courts “accord broad deference” to arbitration decisions, the Court has

previously recognized as an exception to this rule that district courts are not bound by arbitration decisions in employment discrimination cases under Title VII or 42 U.S.C. § 1981. . . . “a federal court may, in the course of trying a Title VII or section 1981 action, reconsider evidence rejected by an arbitrator in previous proceedings.” Id. at 142. In the context of an employment discrimination case, deference is due to an arbitrator’s interpretation of provisions in a collective bargaining agreement or other employment contract, but Becton cautions that an arbitrator’s decision regarding “just cause” for termination is not equivalent to the inquiry and burden-shifting framework mandated by Congress in an employment discrimination case. See id. Hence, a federal court should not consider an arbitrator’s decision binding in a discrimination suit, because to do so would “unnecessarily limit[] the plaintiff’s opportunity to vindicate his statutory and constitutional rights.” Id.

In this case, the district court considered the arbitrator’s decision, the factual dispute over whether Hance’s reporting instructions were clear, and the evidence of anti-military animus by Hance’s superiors. Because the district court was not required to consider the arbitrator’s determination as conclusive, that determination could not prevent the court from holding – correctly, we conclude – that Norfolk Southern had failed to demonstrate a valid, nondiscriminatory basis for Hance’s dismissal, as measured by the standard required under section 4311(c)(1).

Insomniacs may read the decision in full at http://www.ca6.uscourts.gov/opinions.pdf/09a0224p-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.

Sixth Circuit: Employer Can Be Estopped From Denying FMLA Leave to Ineligible Employee, but Only If Employee Can Show Actual Reliance on Employer

Yesterday, the Sixth Circuit Court of Appeals again addressed the issue of whether an employer can be equitably estopped from denying FMLA to an ineligible employee (because the employer had fewer than 50 employees within 75 miles of the employee’s worksite). Dobrowski v. Jay Dee Contractors, Inc., No. 08-1806 (6th Cir. 7/8/09). Although the Court ultimately adopted a loose standard for applying the doctrine of equitable estoppel against an employer, it ultimately held that an employee -- who had been told in writing by his employer that he was eligible for FMLA leave and that his application for FMLA leave had been approved before he underwent an elective surgery -- could not benefit from the estoppel doctrine because he could not show that he actually relied upon the employer’s misrepresentations about his FMLA eligibility in that he had scheduled his surgery before his FMLA application had been approved.

In that case, the epileptic employee elected to have surgery that would decrease his chance to have seizures. He notified his employer months in advance and sought authorization for a medical leave of absence at a particular time. Although everyone seemed to assume that he would be granted a medical leave of absence, he sought definite clarification and specifically mentioned the FMLA. The employer ultimately asked him to complete an application for FMLA leave and confirmed in writing that he would be receiving FMLA leave for up to twelve weeks, his position would be held open for that period of time, that he was eligible for FMLA leave and that his FMLA application had been granted. However, when he was ready to return to work, the employer notified him that it had eliminated his position as the construction project winded down.

When the employee sued, the employer defended on the grounds that his position had been eliminated in the normal course of events (as it would have done even if he had not taken FMLA leave) and that he was not eligible for FMLA leave after all because the employer had not employed more than 50 employees within 75 miles of the employee’s worksite. The trial court granted summary judgment to the employer and the Court of Appeals affirmed.

The Court has followed two different equitable estoppel doctrines in FMLA cases. In one – taken from ERISA cases – the plaintiff must show that the employer essentially committed fraud or bad faith by making false statements of facts with knowledge of the true state of affairs and with an intent for the employee to rely on the false statements. In the more common description of the doctrine found in the Restatement of Torts:

If one person makes a definite misrepresentation of fact to another person having reason to believe that the other person will rely upon it and the other in reasonable reliance upon it does an act . . . the first person is not entitled
. . .
(b) to regain property or its value that the other acquired by the act, if the other in reliance upon the misrepresentation and before discovery of the truth has so changed his position that it would be unjust to deprive him of that which he thus acquired.

The Supreme Court has previously noted that, “the party claiming the estoppel must have relied on its adversary’s conduct in such a manner as to change his position for the worse, and that reliance must have been reasonable in that the party claiming the estoppel did not know nor should it have known that its adversary’s conduct was misleading.” Heckler v. Community Health Services of Crawford County, Inc., 467 U.S. 51, 59 (1986). The Sixth Circuit found this to be the most appropriate standard since the employer is in the best position to evaluate the employee’s eligibility and “is the cheaper cost avoider.”

Nonetheless, in what can be described as a hypertechnical reading of the employee’s affidavit, the Court concluded that the employee could not show that he actually or detrimentally relied on the employer’s misstatement about his eligibility for FMLA leave because he scheduled the surgery before submitting his FMLA application and failed to include any statement in his affidavit that he would have canceled or rescheduled his surgery if his FMLA leave had been denied. As summarized by the Court:

There is no evidence in the record to show that he “change[d] his position” in reliance on the belief that his leave would be FMLA-protected. . . . Had he relied on the erroneous representations, one would expect [the employee] to be able to point to some action or statement that indicated that his decision to have the surgery was contingent on his understanding of his FMLA status; or perhaps evidence that raises an inference of such contingency – for example, a record that he made an inquiry as to his rights, asked for written confirmation of his leave arrangement, or changed his behavior after being told he was eligible. . . . At the very least, [the employee] could have placed an affidavit in the record stating that he would have forgone the surgery but for his belief that his job status was protected by the FMLA. See FED. R. CIV. P. 56(e). But none of this is present in the record.

If anything, the record shows that [the employee] had already decided on and scheduled the surgery by the time he was informed of his eligibility. There is no evidence of a discussion of the FMLA eligibility prior to the application for leave filed with [the employer] on September 27 – about three weeks prior to his October 15 surgery, and well after he informed the company of his planned absence. In deposition, [the employee] indicated that he knew that he would undergo the surgery about six months in advance, and told [his employer] as soon as he knew the date, “maybe three months before . . . the actual surgery.” ROA 291-92. At that time, he said “I got the okay so I will be having surgery on [October 15].” ROA 292. After his superiors asked questions about how long he planned to take off work, [the employee] organized a meeting to discuss his absence. His email preceding the meeting references his “operation coming up” and does not ask for permission to take leave, discuss his rights under the FMLA, or indicate a willingness to delay or reschedule depending on his legal status.

Although the employee argued “that because the surgery was elective, he could have rescheduled it had he known that he was not FMLA eligible. It is true in the abstract that he could have rescheduled it; but it is his burden on summary judgment to produce evidence supporting his estoppel claim, and the record must contain evidence permitting a finding that he would have.”

Insomniacs can read the full decision at http://www.ca6.uscourts.gov/opinions.pdf/09a0239p-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.