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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In an unpublished opinion, the Eleventh Circuit upheld the summary judgment on Rodriguez’s retaliation claim, holding that there no evidence that the Hospital’s reasons for the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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In order to be granted a leave of absence under the Family and Medical Leave Act (FMLA), an employee first must fulfill certain eligibility requirements, including having worked for the employer for at least 12 months, and having worked for at least 1250 hours within the prior calendar year. Individuals who do not reach those initial thresholds typically do not qualify for FMLA leave. However, on July 17, 2012, the U.S. District Court for the Eastern District of Pennsylvania denied a motion to dismiss the claim of a county nursing assistant who was fired because she took FMLA leave to care for her son, finding that the employer was estopped from arguing that the FMLA discrimination claim should be dismissed based on ineligibility under the leave law, because county officials had led the plaintiff to believe that she was qualified to take such leave. Medley v. Montgomery County, EDPA, No. 2:12-cv-01995, July 17, 2012.

Amy Medley was employed by Montgomery County, Pennsylvania, as a nursing assistant. Medley’s son has serious health conditions, including Asperger’s Syndrome, developmental delay, and anxiety disorder. Although she had worked for less than 1250 hours during the prior 12 month period, Medley requested and was granted intermittent leave to care for her son. County officials told Medley that she qualified for FMLA leave, and asked her to fill out various County FMLA forms. She also was provided with documents that stated that she was eligible for “family care” leave after three continuous months of employment.

However, as Medley began to take intermittent leave, she was written up for her absences. When she raised the issue with a County “H.R. Official” on April 19, 2011, she was dissuaded from filing a grievance and was told not to worry, because “nothing was going to be done to her.” The next day, Medley’s employment was terminated, and she was told she was fired because of leave she exercised on April 17, 2011, once of the absences that Medley believed was covered by her “FMLA” leave.

Medley filed a lawsuit in federal court, including claims of interference with her FMLA rights and of retaliation under that Act. The County filed a Motion to Dismiss the complaint, arguing that Medley’s claims should be dismissed because it was undisputed that Medley did not satisfy this basic prerequisite for an FMLA claim. In response, Medley argued that because she was told that she was eligible for FMLA leave, the doctrine of equitable estoppel should now preclude the County from asserting that her FMLA claims fail because she was not eligible.

Upon review, the district court determined that Medley’s claim of interference with her FMLA rights failed, simply because Medley possessed no actual FMLA right with which the County could have interfered. However, in order to support her claim of retaliation, Medley simply had to show that she was treated adversely because she took FMLA leave. In reviewing that claim, the court determined that actual entitlement to FMLA leave was not an essential element of the claim. Instead, the court quoted a decision by the 5th U.S. Circuit Court of Appeals which held that “[A]n employer who without intent to deceive makes a definite but erroneous representation to his employee that she is . . . entitled to leave under the FMLA, and has reason to believe that the employee will rely upon it, may be estopped to assert a defense of non-coverage” if the employee reasonably relied on the misrepresentation to her detriment. While the district court refused to allow Medley’s interference claim, it allowed her retaliation claim to go forward under that analysis.

Although the difference between the district court’s analysis of Medley’s interference claim and its analysis of her retaliation claim is subtle, it is worth understanding. While the court refused to retroactively endow Medley with actual FMLA rights because of her employer’s misinformation about her eligibility, it also refused to allow that employer to take advantage of the mistake by firing Medley for what she believed to be FMLA-related absences.

Although this decision could be appealed to the Third Circuit, the district court’s message is clear: once an employer grants FMLA leave to an individual, even if that allowance is based upon a miscalculation of eligibility requirements, the employer cannot then take adverse action based upon an absence associated with the faux FMLA leave. To do so may create liability for under the FMLA for a claim of retaliation.
 

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Most employers understand that Title VII of the Civil Rights Act precludes a discriminatory “hostile work environment,” in which acts of discrimination against an employee are so severe and pervasive that those acts have an adverse impact on the employee’s ability to do his or her job. What is less fully understood is the fact that an employee also can bring an action under Title VII based upon severe and pervasive retaliatory acts that follow a “protected action” taken by the employee. The 11th U.S. Circuit Court of Appeals -- the last appellate circuit to formally recognize such a cause of action -- recently joined its sister circuits, recognizing a retaliatory hostile environment claim brought by two physicians who had filed EEOC claims against the VA hospital and medical center by which they were employed. Gowski, et al v. Peake, et al, 11th Cir., No. 09-16371, June 4, 2012.

Doctors Diane Gowski and Sally Zachariah were employed at Bay Pines Veteran’s Affairs (VA) hospital and medical center in Florida. In August 2007, Gowski and Zachariah, along with two other individuals, filed a complaint in federal court against the Secretary of the Department of Veteran’s Affairs, alleging that the hospital’s administration retaliated against them after they each had filed internal complaints of discrimination in 2005 and 2006. At trial, the doctors alleged that the managers and administrators at Bay Pines made a “concerted effort” to retaliate against employees who “opposed their discriminatory or retaliatory actions.” To support that claim, the doctors provided evidence that administrators targeted such individuals by spreading rumors about them, soliciting adverse reports about them from other employees, and warning others that the VA “would not settle frivolous complaints and lawyers would not run the hospital.”

The list of alleged adverse actions against Gowski and Zachariah was extensive, including loss/limitation of practice privileges, misleading/mistaken reports of disciplinary action in personnel files, unwarranted verbal counseling, decrease in salary, and removal from committee positions. The case proceeded to trial, after which the Secretary moved for judgment as a matter of law. That motion was denied, and the jury determined that Gowski and Zachariah had experienced a retaliatory hostile work environment, awarding to Gowski $250,000 in emotional damages and $16,000 in lost wages, and to Zachariah, $1,000,000 in emotional distress and $90,000 in list wages. The Secretary filed post-trial motions including an argument that discrete acts of retaliation could not form the basis of a claim for retaliatory hostile work environment. The trial court denied that motion, and an appeal to the Eleventh Circuit followed.

Upon review, the Eleven Circuit for the first time recognized a cause of action for retaliatory hostile work environment. It based that determination on the language of Title VII, and the EEOC’s own interpretation of the statute. Further, it found that prohibition of a retaliatory hostile environment is consistent with Title VII’s remedial goal of preventing supervisors from deterring protected conduct. (During trial of the matter, there was testimony that certain doctors left the hospital rather than report discrimination and then continue to work in fear of retaliation.)

Employers generally understand that discrete acts cannot, by themselves, cannot form the basis of a claim of discriminatory hostile work environment. Therefore, an employee’s termination, her denial of transfer, or a refusal to hire does not typically support such a claim. Instead, such claims are based upon acts whose very nature involves repeated conduct: intimidation, ridicule, or repeated insult. The Eleventh Circuit analyzed the claims made by Gowski and Zachariah under that same framework, and found that repeated acts of intimidation and ridicule that followed the doctors’ protected claims of discrimination in 2005 and 2006, and that were severe and pervasive enough to alter the doctors’ working conditions, could support claims of "retaliatory hostile work environment."

The message in this case is not a new one, but is important nonetheless. Individuals who take actions protected by Title VII, specifically including an internal report of workplace discrimination, cannot be retaliated against for that report. In addition, subjecting such an employee to a “thousand small cuts” in the hope that he or she will decide to leave employment can lead to liability for a retaliatory hostile work environment.
 

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It is generally understood that employees can bring Title VII claims – and be awarded damages - for hostile environment, wrongful termination, and retaliation. What is less clearly understood is the extent of the economic damages for which a former employer may be liable in the situation in which a litigant claims to have lost a job opportunity because of a retaliatory action on the part of that former employer. The 5th U.S. Circuit Court of Appeals recently answered that question by quoting the wording of Title VII, and holding that the law “does not require that the employer liable for back pay be the same entity for whom the plaintiff would have worked had he not suffered unlawful retaliation.” Nassar v. Univ. of Texas Southwestern Medical Center at Dallas, 5th Cir., No. 11-10338, 3/8/12.

Naiel Nassar, a U.S. citizen since 1990, was born in Egypt and attended medical school there. He subsequently did a medical residency and a fellowship in infectious diseases at the University of California, Davis. In 2001, Nassar was hired by the University of Texas Southwestern Medical Center (UTSW) as an Assistant Professor of infectious disease medicine. Part of Nassar’s duties required that he provide patient care at Parkland Hospital’s Amelia Court clinic, an outpatient HIV/AIDS clinic affiliated with UTSW.

In 2004, UTSW hired Dr. Beth Levine as the chief of its infectious disease program. In that role, Levine directed that Nassar begin billing for the services he provided to the HIV clinic. Nassar objected to the directive, arguing that his salary for clinical services was fully funded by a federal grant, and stating that billing the patients therefore would be “double dipping.” Nassar claimed that Levine then began to “harass” him, making derogatory statement about his race and his Muslim religion, including one comment that “middle easterners were lazy.” His allegations were supported by a clinical supervisor, whose affidavit described a “disconnect between Dr. Levine’s [derogatory] statements and the reality of Dr. Nassar’s work.” Based on his concerns about Levine, Nassar ultimately applied for direct employment by Parkland Health & Hospital System in 2006. Parkland made preparations to hire Nassar, drafting a letter offering a staff physician job to Nassar. However, the offer was later withdrawn. Nassar contended - and testimony supported the claim - that UTSW retaliated against him by blocking the offer from Parkland because Nassar stated in his resignation letter that his primary reason for leaving UTSW was Levine’s harassment and discriminatory comments. Nassar ultimately accepted a job in a smaller clinic in Fresno, California, and filed a lawsuit against UTSW in federal court alleging discrimination/constructive discharge and retaliation.

At trial, the jury was presented with only two questions: (1) Whether Nassar was constructively discharged because of his race, national origin, or religious preference; and (2) Whether UTSW retaliated against Nassar by blocking or objecting to his employment by Parkland after Nassar complained about his treatment at UTSW. After one hour of deliberations, the jury answered “Yes” to both questions. Two days after the May 24, 2010 verdict, the same jury awarded $3.2 Million in compensatory damages and $438,000 in lost back pay to Nassar. The trial court reduced the compensatory damage award to $300,000 under the Title VII damage cap, but added nearly $500,000 in attorney fees and costs to Nassar’s award. Both sides appealed the awards.

Upon review, the Fifth Circuit reversed the verdict against UTSW on Nassar’s constructive discharge claim, holding that while the evidence that Nassar provided to the jury may have supported a claim of hostile environment, that evidence did not rise to the level of egregious conduct necessary to support a claim of constructive discharge. However, the Court upheld the jury’s verdict on the retaliation claim, and further upheld the method used by the jury to calculate Nassar's lost income.

While UTSW argued that Nassar’s lost income should have been the difference between that which he was earning at UTSW ($166,395 as an Assistant Professor) and his subsequent compensation in California (which varied from $165,000 to $180,000 a year, including benefits), the district court allowed the jury to calculate the lost pay by comparing Nassar’s prospective income from Parkland ($240,500 a year, including benefits) to the amount that he was earning in California. Using that method, the jury awarded Nassar $436,167.66 in lost back pay. The Fifth Circuit upheld that award because it made Nassar whole by placing him in the position that he would have been in “but for” the retaliation.

This case is a strong reminder that unlawful retaliation can take the form of a former employer preventing an individual from getting a job with another employer. Under Title VII, lost income is payable by the employer responsible for the unlawful employment practice, and may be calculated as the difference between the individual’s former pay, and that which he would have earned had the retaliation not occurred.  If, as in this case, evidence indicates that the retaliation kept the individual from moving to a more highly lucrative position, the former employer risks being liable for the loss of a substantially higher wage.

In addition, employers – especially hospital and healthcare entities that are contemplating direct hiring of physicians - should understand that an employee, or former employee, can successfully prove retaliation without having successfully proven discrimination or a constructive discharge claim, and that damages for lost pay and benefits for highly compensated individuals can be substantial.
 

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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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