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The 11^th U.S. Circuit Court of Appeals reversed summary judgment in favor of an employer, holding that a plaintiff’s testimony and evidence related to her transfer to a position of less responsibility upon return from Family and Medical Leave Act (FMLA) leave created an issue of material fact that required a jury to determine whether the employer had interfered with the employee’s FMLA leave.  Rodriguez v. University of Miami Hospital, 11^th Cir., No. 11-15206, December 3, 2012.

Iliana Rodriguez requested and was granted FMLA leave from her administrative position at the University of Miami Hospital.  Upon her return from leave, Rodriguez met with a number of individuals, including her supervisor, Francetta Allen, and the Hospital’s Executive Director of Human Resources, Errol Douglas.  At that meeting, it was determined that Rodriguez would be transferred to a temporary position, based on her admitted inability to get along with Allen.  While the temporary position was at the same level of pay and benefits, the new position had significantly less responsibility and, in fact, consisted largely of copying documents.  Six weeks after being transferred to that position, Rodriguez was fired.  She then filed a lawsuit, alleging that the Hospital interfered with her right to reinstatement under the FMLA by failing to return her to her original position, and then fired her in retaliation for taking such leave.  The district court granted summary judgment in favor of the Hospital on both claims.

In an unpublished opinion, the Eleventh Circuit upheld the summary judgment on Rodriguez’s retaliation claim, holding that there no evidence that the Hospital’s reasons for the termination – that Rodriguez could not get along with her supervisor, and was unable to find another acceptable job within the Hospital – were false.  Rodriguez therefore could not show a causal nexus between her FMLA leave and her firing, and her retaliation claim was dismissed.

However, an FMLA interference claim is analyzed differently than a retaliation claim.  According to the Eleventh Circuit, if an employee is not reinstated to the same or an equivalent position, the employer bears the ultimate burden of proving that its action was taken for independent reasons that were unrelated to the employee’s leave.  Therefore, in this case, the Court had to determine whether there was any genuine issue of material fact regarding the Hospital’s defense that it had transferred Rodriguez to the temporary, lesser position for reasons unrelated to Rodriguez’s FMLA leave.

An employer is not liable for failing to reinstate an employee to her former position if the employer can show that the employee cannot perform the essential functions of her original position.  Further, in that instance, an employer is not obligated or required to restore the employee to any other position.  In this case, the Hospital argued that it transferred Rodriguez upon her return from leave because she was unable to perform the essential functions of her original position, which included being able to get along with her supervisor, Francetta Allen.  Had the record unquestionably established that Rodriguez and Allen could not work together, the Hospital would have met its burden that the transfer was “wholly unrelated” to Rodriguez’s FMLA leave, and the interference claim could have been dismissed.

However, based on deposition testimony and a lack of documentary evidence that Rodriguez and Allen had been unable to get along prior to the FMLA leave, the Court was able to find disputed issues of material fact that precluded summary judgment in favor of the Hospital.  Contrary to the Hospital’s assertion that Rodriguez was unable and unwilling to work with Allen, Rodriguez testified that she had asked for the meeting with Allen and Douglas upon her return from leave in order to “address whatever issue was there” and to move on, as she did not want to lose her job. 

In addition, in spite of the Hospital’s statement that Rodriguez’s issues with Allen pre-dated her return from FMLA leave, there was no documentary evidence of any performance deficiencies or difficulties between Rodriguez and Allen until the meeting held at the time of Rodriguez’s return.  Indeed, Allen first documented her issues with Rodriguez in an e-mail sent to Douglas one hour before that meeting.  Because there are disputed issues of material fact underlying the Hospital’s defenses against Rodriguez’s interference claim, the Court determined that it is for a jury to decide whether those defenses constitute an honest explanation of the reason that Rodriguez was not returned to her position upon returning from FMLA leave.  The Court remanded the case to the district court for further action on that issue.

This case is another in a series of recent federal court cases in which a court points out an important difference between the analysis of an FMLA retaliation claim and an FMLA interference claim for purposes of summary judgment.  In a retaliation claim, the ultimate burden of proof is on the employee – under the oft-cited McDonnell-Douglas 3-step shifting burden analysis - to show that an employer’s reason for its action is simply a pretext for retaliation.  However, in an interference claim, the ultimate burden is on the employer to prove its defense that its action was based on independent reasons that were unrelated to the employee’s FMLA leave, and to prove it without any question of material fact.  In this case, the Hospital was unable to carry that burden, and the matter will be returned to the lower court in order to allow a jury to decide the issue.

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The Family and Medical Leave Act (FMLA) continues to create administrative challenges for employers. One particular issue of concern is the discipline and or termination of an employee who has requested or is on FMLA leave. The 10th U.S. Circuit Court of Appeals recently upheld the dismissal of an individual’s interference and retaliation claims in an unpublished opinion that serves as an outline for analyzing FMLA claims under such circumstances. Brown v. ScriptPro, LLC, 10th Cir, No. 11-3293, November 27, 2012.

Frank Brown worked as a Customer Service Operations analyst for ScriptPro, a company which develops, manufactures, markets, and sells automated prescription drug dispensing systems and related software. Brown began that employment in March 2007. In mid-2008, Brown’s immediate supervisor prepared a written performance review which included both positive and negative comments. Among the negative feedback were observations related to Brown’s interaction with co-workers and customers, including his tendency to be “argumentative and abrasive,” and his lack of respect for “personal boundaries.” Although these issues were discussed with Brown, no specific goals or corrective plans were put in place. Following that performance review, several other issues developed, including complaints by Brown’s co-workers about his “belligerence” toward customers and his failure to complete a work project.

At the end of October in 2008, Brown was out of the office, ostensibly on Paid Time Off (PTO) for two weeks. However, upon his return, he asserted that he had worked from home during the second week, and on November 19, requested to use some of that work time to leave early on the following day to take his wife to a medical appointment. When Brown’s supervisor informed him that his request was denied, Brown raised his voice and allegedly banged his first on the table. He later apologized for his conduct.

On November 21, 2008, ScriptPro terminated Brown’s employment for performance issues. Brown filed a lawsuit claiming, among other things, that ScriptPro interfered with the exercise of his rights under the FMLA, and terminated his employment in retaliation for his exercise of those rights. The district court dismissed Brown’s claims, granting summary judgment to ScriptPro. The Tenth Circuit upheld that decision.

In its analysis of Brown’s interference claim, the Tenth Circuit makes a number of noteworthy points. First, it sets forth the elements of a successful interference claim, in which an employee must show that he was entitled to FMLA leave, that an adverse action taken by the employer interfered with right to take FMLA leave, and that the adverse action was related to the attempted exercise of those rights. Second, the Tenth Circuit reminds employers that the deprivation of FMLA rights is a violation of that law, regardless of the employer’s intent and that, therefore, the oft-cited McDonnell Douglas burden-shifting analysis does not apply. Third, the Court points out that in spite of the near strict-liability approach, an employer can defend against such a claim by showing that the employee would have been terminated regardless of the request or need for FMLA leave.

In Brown’s case, the Court decided that while Brown had provided sufficient evidence by which a reasonable jury could find that he was entitled to FMLA leave and that ScriptPro interfered with that leave, the company was able to assert undisputed evidence that Brown would have been fired regardless of the request for time off for his wife’s medical appointment. That undisputed evidence included unfavorable feedback in his performance review, and uncontroverted evidence of continued problems, including documented complaints by his co-workers and his supervisor’s concern related to an incomplete project. The Court noted that its role was not to “judge the wisdom of management’s responses,” but simply to determine whether ScriptPro had come forward with evidence to support the assertion that it would have fired Brown regardless of any FMLA activities. The Tenth Circuit affirmed the dismissal of the case, holding that ScriptPro carried that burden.

The Court analyzed the retaliation claim similarly, but pointing out that such claims are subject to the burden-shifting analysis of McDonnell Douglas. First, the employee must set forth a prima facie case of retaliation, showing that he engaged in a protected activity, was subject to a materially adverse action, and there is a “causal connection” between the two. Once the prima facie case is established, the employer must come forward with a legitimate, non-discriminatory reason for its action. Finally, in order to avoid summary judgment, the employee must show that there is a disputed issue of material fact as to whether the employer’s reason for its action is pretextual.

In Brown’s case, the Tenth Circuit proceeded directly to the third step of the analysis, and found that although Brown argues that the temporal proximity between his November 19 request for leave and his November 21 firing showed that ScriptPro’s reasons for the termination were actually based on protected activity, he failed to proffer any additional circumstantial evidence of retaliatory motive. Without that, Brown failed to carry his burden of proving that the legitimate reason given for his firing was simply a pretext for retaliation.

While the analysis of the two claims differed slightly, the employer’s success in each rested on the objective documentation of the performance issues on which Brown’s termination was based. That documentary evidence was the key to the success of ScriptPro’s ability to show that it would have terminated Brown regardless of any FMLA request or rights (the interference claim), as well as to the company’s ability to overcome Brown’s allegation that the reasons proffered for his termination were pretextual (the retaliation claim). This case serves as a reminder to employers of the importance of objective documentation of the business reasons for employer’s decisions, especially when faced with a possible FMLA-related situation.
 

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The Family and Medical Leave Act (FMLA) prohibits employers from interfering with an employee’s right to take leave for which that employee is eligible under the Act. Recently, the 7th U.S. Circuit Court of Appeals overturned the dismissal of an employee’s FMLA lawsuit, and sent the case back to the lower court for further proceedings. A jury will now decide the issue of whether the individual’s employment termination was based upon his announcement that he was going to take four to six weeks of leave time for knee replacement surgery. A supervisor’s e-mail that references an upcoming medical leave will be a primary element of the employee’s claim. Shaffer v. American Medical Association, 7th Cir., No. 10-2117, October 18, 2011.

William Shaffer first worked for the American Medical Association (AMA) in 1999. Although he resigned a year later, the AMA rehired him in 2004 as a contract employee. In 2005, he was hired as a full-time employee, and advanced to become the AMA’s Director of Leadership Communications, reporting to supervisor Michael Lynch. In August 2008, the AMA began cost-saving measures, including a request to all departments to reduce budgets and, ultimately, to eliminate positions. In October 2008, Lynch was contacted by the Chief Marketing Officer, Marietta Parenti, who requested a recommendation regarding the elimination of one position in Lynch’s group. It was Lynch’s plan to eliminate the Communication Manager position held by Peter Friedman, based on certain business-related reasons. On October 28, Parenti asked Lynch whether it made sense to eliminate Shaffer’s position, as well. Lynch responded that further eliminations would not be in the AMA’s best interest at that time.

On November 20, 2008, Shaffer informed Lynch that he was planning to take 4 to 6 weeks off in January in order to undergo and recover from knee replacement surgery. On November 30, Lynch sent an e-mail to Parenti, explaining that he had re-thought his recommendation, and now believed that the AMA should eliminate Shaffer’s position and retain Friedman. The e-mail apologized for his “11th hour change of heart,” and specifically stated that the team already was “preparing for [Shaffer’s] short-term leave in January, so his departure should not have any immediate negative impact.” On December 4, Shaffer was notified by Lynch and Harvey Daniels, an AMA HR representative, that his position was being eliminated and that his employment would end on January 4, 2009.

Less than a month later, an after receiving a letter from Shaffer’s attorney, the AMA’s in-house lawyer met with Daniels to let him know that litigation was possible on the matter. The next day, Daniels typed up handwritten notes that he had taken regarding his earlier discussions with Lynch, back-dating them to November 25, 2008. The typed notes stated that Shaffer’s position was eliminated because Lynch could have the speech writing staff report directly to him, making Shaffer’s position redundant. He then shredded the original notes.

Shaffer filed a lawsuit in federal court. The lower court granted summary judgment in favor of the AMA, and dismissed his claim. Shafer then appealed to the Seventh Circuit, which analyzed the case to determine whether or not there was a genuine factual issue for trial. The Court found that Shaffer was eligible for FMLA leave, and that he had provided notice to Lynch of his intention to take that leave. Prior to that notice, there was no mention of elimination of Shaffer’s position; after that notice, he was targeted for termination. Based upon those facts, coupled with Lynch’s e-mail to Parenti in which the proposed leave was mentioned, the Seventh Circuit determined that a reasonable jury could conclude that Shaffer’s exercise of his right to take leave under the FMLA was a motivating factor in the decision to eliminate his position. It then reversed the lower court’s dismissal of the case.

While the Court also pointed to the different explanations given at different times for Shaffer’s termination, it clearly was Lynch’s e-mail to Parenti – which specifically mentioned Shaffer’s request for leave – that created the impetus for the lawsuit, and the foundation on which Shaffer’s FMLA claim rests. While it is possible that Shaffer’s proposed leave had no actual impact on his termination, the e-mail allows Shaffer to argue that Lynch was considering that leave when the decision was made to eliminate Shaffer’s position. This situation is a clear example of the need for supervisor training on the FMLA. Supervisors and managers should be informed that a claim of interference with FMLA rights does not require proof of actual “intent” to interfere, but requires only that plaintiffs prove that the employer somehow denied an exercise of rights under the Act. If an individual can produce evidence that he was fired to prevent his exercise of FMLA rights, he can succeed on an interference theory under that Act.

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