Employment Law Matters : Employment Lawyer & Attorney : Ogletree Deakins Law Firm : Labor Law, Human Resources

In order to support a valid claim of retaliation under the Family and Medical Leave Act (FMLA), an employee must demonstrate that the reason given for an adverse employment action was pretextual, and that the employee’s request for or use of FMLA leave was the actual basis of the action. The 6th U.S. Circuit Court of Appeals has held that an employer’s rejection of an invalid FMLA certification was a valid reason for termination, and that the employee’s inability to proffer evidence of an alternate explanation for the company’s actions led to the dismissal of her lawsuit. Coffman v. Ford Motor Company, 6th Cir., No. 10-3842, unpublished opinion, 11/22/11.

The FMLA entitles eligible employees to twelve weeks of unpaid leave each year for, among other things, a “serious health condition” that precludes the employee from performing his or her job. Employers are prohibited from discriminating or retaliating against an employee who exercises her FMLA rights. In order to succeed on a claim of retaliation under the FMLA, an employee must first present a prima facie case that includes her eligibility for FMLA leave, the fact that she took the leave, and the fact that an adverse action was taken against her. The burden then shifts to the employer to provide a legitimate business reason for its action. Once that is done, the employee cannot succeed on a retaliation claim unless she can prove that the proffered reason is actually a pretext. To establish pretext, the employee must either show that the proffered reason had no factual basis, that the given reason did not actually motivate the action, or that such reason was insufficient to warrant the action.

Jami Coffman began working for Ford Motor Company in July 1999. In 2004, she had frequent absences, which she attributed to health issues. Although she provided medical documentation for many of those absences, she failed to provide valid and timely information for ten periods of absence within an eight moth period. Those ten occurrences led Coffman into the company’s disciplinary process, established under a collective bargaining agreement, resulting in her termination. That termination occurred shortly after Coffman had been diagnosed with sleep apnea. Coffman then sued Ford, claiming that her termination was the result of her request for FMLA leave. The district court granted summary judgment in favor of the company, and the Sixth Circuit upheld that decision, holding that Coffman fell short of demonstrating that Ford’s reason for the termination was pretext for FMLA retaliation.

Under the company’s written policies, employees requesting FMLA leave would receive documents to be completed by a physician within 15 days. The policy specifically pointed out that incomplete certification could cause absences to be viewed as “absence without leave,” which could lead to discipline up to termination.

Coffman submitted paperwork that consisted of two forms that provided two divergent diagnoses for the absences, and neither included supporting information. Further, the signatures on the documents differed markedly from signatures of the same doctors on medical documentation previously submitted by Coffman. Faced with the contradictory, questionable certifications, Ford sought clarification by asking Coffman to request medical records to support the certifications. In response, Coffman’s doctor provided a single document that included only a list of medications. Rather than supporting the initial certification, this information simply created new contradictions. Ford took no further action, and viewed the absences as unexcused, which ultimately led to Coffman’s termination and her subsequent law suit.

In spite of Coffmans’ argument that Ford improperly classified her as AWOL, the Sixth Circuit found that although FMLA certifications that contain all required information are presumptively valid, an employer can rebut that presumption by demonstrating that the certification is invalid, contradictory, or of an otherwise suspicious nature. Here, the certifications submitted were medically contradictory and the inconsistent signatures created suspicion. To its credit, the company took the additional step of asking for further information in an attempt to clarify the contradictory nature of those certifications. However, that supplemental information actually increased the confusion, supporting the company’s decision to deny FMLA leave for the absences.

Employers cannot avoid liability under the FMLA simply by arbitrarily labeling an employee’s certification as “invalid.” Incomplete FMLA certifications are distinguishable from invalid ones. When a certification is incomplete – that is, it does not provide sufficient information to justify FMLA leave - an employee must be provided with a reasonable opportunity to cure any alleged deficiency. The regulations that support the FMLA make it clear that employers must work to clarify certifications offered by employees, and can do so by asking for a second opinion from a different provider (at the employer’s expense), or get permission from the employee to clarify or authenticate questionable certification with the healthcare provider. It is in the best interest of both employers and employees to use these discretionary measures to avoid disputes that could lead to disruptive and expensive lawsuits.
 

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In an unpublished opinion, the 5th U.S. Circuit Court of Appeals has held that an individual who requests FMLA leave to care for a seriously ill family member must have some role in providing the “care” required by the relative’s illness. According to the Fifth Circuit, a father who left his seriously injured daughter in the care of his wife while he readied the family’s home for their return was unable to support a claim for FMLA retaliation after he was fired from his job at the conclusion of his FMLA leave. Baham v. McLane Foodservice Inc., 5th Cir., No. 10-10944, unpub’d, 7/1/11.
Girard Baham was hired by McLane Foodservices, a Texas company, in 2006. During a family vacation in Honduras during March 2008, Baham’s daughter fell and suffered serious head trauma. She was airlifted to Miami, where she underwent emergency surgery. At that point, Baham called his supervisor and asked for FMLA leave related to his daughter’s injury. In response, the supervisor told Baham to “take all of the time he needed,” and forwarded FMLA leave forms to him for completion.

Baham completed and returned the forms, asking for leave from March 20 through May 5, 2008. He subsequently was notified that his paperwork was incomplete, because it did not include information indicating the expected duration of his daughter’s treatment. However, at no point during his leave did Baham provide the requested information.

On April 12, 2008, Baham returned to the family’s home in Texas, leaving his wife and daughter in Miami. Baham testified in his deposition that he returned to Texas to clean up the house and prepare for his daughter’s return by padding sharp edges to protect her from further injury, but stated that he was in constant telephone contact with his wife and daughter at that time. Baham’s wife and daughter returned to Texas on April 29, and Baham returned to work on May 5. Upon his return, Baham was informed that his FMLA paperwork still was incomplete, and again was asked to provide the required information. Later that day, Baham left the work premises, leaving his keys and ID with a security guard. The company interpreted his abrupt departure as a resignation, and sent a letter two days later, terminating Baham’s employment.

Baham then filed a lawsuit, claiming that he was fired in retaliation for requesting/taking FMLA leave. The lower court granted summary judgment to the employer, holding that Baham failed to establish that he was entitled to FMLA leave for the period in which he was in Texas and his injured daughter was in Florida. Because Baham could not prove that he was entitled to leave under the FMLA, he could not support a retaliation claim under that statute.

The Fifth Circuit upheld the lower court’s decision, stating that because Baham was not “taking care” of his daughter after he returned to Texas (those are the Fifth Circuit’s quotation marks), Baham was not entitled to FMLA leave and therefore could not set forth a cognizable claim of retaliation. The Court specifically held that in order to be entitled to FMLA leave, an employee must show that he is needed “to care for” a family member with a serious health condition, and cited the fact that various courts have affirmed the use of FMLA leave only where the employee is in physical proximity for the cared-for person. Here, it is undisputed that Baham was not with his daughter during the two weeks that he was in Texas, but was simply in regular telephone contact with her. The activities in which he was engaged – although undeniably preparation for his daughter’s return – were not “care” in the sense required by the FMLA, which involves some level of participation in the ongoing treatment of the family member’s medical condition.

Employers should not interpret this case to mean that the employee/caregiver must be the sole provider of care, or that the care must be medical in nature. One federal court specifically held that an employee who cared for his three healthy children while his spouse cared for a sick child supported his FMLA claim; another determined that an individual’s need for a nap did not disqualify her from FMLA leave from her evening job when she had spent the entire day caring for a seriously ill child. It is clear that FMLA cases are administratively complex and often factually dissimilar, and cannot be decided in general or blanket terms. The facts of the particular situation must be reviewed carefully before a decision is made that would adversely affect the employment of the person requesting or participating in FMLA leave.
 

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In an unpublished opinion, the U.S. Circuit Court of Appeals for the 10th Circuit reminds us that whether a case is based on allegations of discrimination or on allegations of retaliation, the individual bringing the lawsuit carries the ultimate burden of proof in the case. Sunderman v. Westar Energy, Inc., 10th Cir., No. 08-3059, Jan. 14, 2009.

To establish retaliation under Title VII, an individual’s evidence must withstand the three-part analysis established by the U.S. Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that test, the plaintiff first bears the burden of establishing a prima facie case: (1) that he engaged in a protected activity; (2) that he suffered a materially adverse employment action; and (3) that a causal connection existed between the protected activity and that action. Once the individual meets that burden, the employer must offer a legitimate, non-retaliatory reason for its employment action. Should the employer satisfy this burden, the plaintiff then bears the ultimate burden of demonstrating that the employer’s reason is “unworthy of credence” so that a fact-finder could infer that the employer did not act for those reasons but instead, for some retaliatory reason.

Derek Sunderman was employed as a manager by Westar Energy, Inc., a public utility company. In March 2002, Sunderman made a complaint to Westar’s HR department regarding certain allegedly offensive sexual comments made by a supervisor, and followed up in October of that year with a written complaint to his own supervisor (Olsen). He then filed a claim with the KHRC and the EEOC, alleging that Westar retaliated against him - by reducing his compensation and suspending him in late October - for making the complaints.

During a 2002-2003 reorganization which was in process prior to Sunderman’s complaints, Westar eliminated a number of positions, including Sunderman’s, and transferred the responsibilities of those positions to the company’s Customer Support Group. Sunderman was referred to the company’s Career Placement Center, and his employment was terminated in August 2003. He then brought a lawsuit against Westar, alleging that his employment there was terminated in retaliation for filing a complaint to the Kansas Human Rights Commission (KHRC) and the EEOC in November 2002. Westar countered that Sunderman’s discharge was based upon the reorganization and was strictly a business decision. The lower court granted summary judgment in favor of Westar. That decision was upheld on appeal to the Tenth Circuit.

The dismissal of Sunderman’s claims was based primarily on the fact that he had provided insufficient evidence showing a causal connection between (1) his complaint to Olsen and/or the filing of his complaint with the KHRC/EEOC, and (2) his termination. The facts showed that Olsen was not a decision-maker in the reorganization or with respect to Sunderman’s ultimate termination. While some cases of retaliation rest upon a “cat’s paw” theory, where a biased individual who lacks decision-making power uses a formal decision-maker as a “dupe” in a deliberate scheme to trigger a discriminatory employment action, Sunderman presented no evidence that Olsen suggested either the reorganization or the subsequent discharge. While the Tenth Circuit determined that the employment actions taken against Sunderman in 2002 (reduction in compensation and a suspension) could be raised by Sunderman as background evidence for the retaliation claim, it also determined that Westar had provided sufficient evidence of its business-related decision regarding Sunderman, and that those two incidents were “insufficient . . . to raise a jury question on the causation and pretext issues that are associated with plaintiff’s [August 2003] termination.”

It is clear that in this case, the company’s documentation of the business reasons for its actions were a primary focus of the court’s analysis and review. Although Sunderman had the ultimate burden of proof in this case, the company’s ability to support its own defense with evidence and testimony was sufficient to refute Sunderman’s claims. Once again, objective and complete documentation of a company’s business decision is integral to a favorable result in a claim related to that decision.
 

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The 1st U.S. Circuit Court of Appeals has upheld summary judgment in favor of an employer who asserted that it had terminated the employment of a human resource manager because of his poor performance and a reduction-in-force, and not because of his prior testimony in a sexual harassment claim filed against the company. Dennis v. Osram Sylvania, Inc., No. 07-2670 (1st Cir. Dec. 10, 2008).

In order to set forth a case of retaliation under Title VII, an employee must show that he engaged in a statutorily protected activity, that he suffered an adverse employment action, and that the protected activity and the adverse action were causally connected. Once that prima facie case has been proven, the employer has the burden of offering a legitimate business reason for the adverse action. Once that legitimate reason has been asserted, the employee must prove that the proffered reason was simply a “pretext” for the alleged retaliation.

Richard Dennis was employed with Osram Sylvania from August 1995 until March 2004, when his employment was terminated. At the time of his discharge, Dennis held a position in Osram’s human resources department, representing the company at recruiting fairs and assisting with its internship program. On February 5, 2004, Dennis gave deposition testimony in a case in which a female employee filed a sexual harassment complaint against a co-worker at Osram. The following day, in an instance of unfortunate timing, an investigation was undertaken into a complaint against Dennis which had been received by the company on January 28. In that complaint, an unsuccessful applicant for employment at Osram (Molina) claimed that Dennis had subjected him to “inappropriate and unprofessional” conduct, including references to the applicant’s personal problems, and then sharing details of those problems with a company supervisor.

After a meeting between an Osram in-house counsel and Dennis’ supervisors, it was decided that a written warning would be placed in Dennis’ file. When Dennis was requested to sign a statement to that effect, he refused, and told his supervisor (Franz) that he viewed the Molina investigation as retaliation for his prior testimony in the sexual harassment case. Franz had no knowledge of that deposition at the time that he disciplined Dennis.

Dennis was terminated on March 24, 2004. Franz recommended the termination as part of a reduction-in-force (RIF), stating that Dennis’ performance was “severely weakened” by the Molina investigation, and that the RIF required him to choose between Dennis and another employees, who Franz considered to be a “high achieving human resources manager.” Dennis then filed a complaint under the New Hampshire state anti-discrimination law. The case ultimately was removed to federal court, where summary judgment was granted in favor of Osram. Dennis appealed that dismissal.

The First Circuit upheld the lower court’s decision, stating that Dennis had not set forth the third prong of his prima facie case, since he was unable to connect his protected deposition testimony to his subsequent termination. The court based that conclusion on the fact that the individuals responsible for Dennis’ termination “knew nothing about the [prior] deposition.” The court alternatively concluded that even if Dennis had successfully established a prima facie case of retaliation, Osram had set forth legitimate reasons (prior poor performance and the RIF) for the termination, and that Dennis was unable to show that those reasons were simply pretext for retaliation.

Although this case was decided on the specific facts and testimony in the matter, the court’s decision provides some direction in the analysis of a retaliation claim, and once again underscores the importance of full and objective documentation. The court found that much of Dennis’ argument regarding the company’s actions was based upon unsupported speculation and inference. Dennis offered no evidence that the individuals who were involved in the decision to terminate his employment consulted with anyone who attended the deposition which Dennis viewed as his “protected activity.” Further, because the company was able to support Dennis’ poor performance with documentation, it was able to support its decision in the RIF, and Dennis was unable to carry his burden to prove that the rationale for his termination was pretextual.

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