The Family and Medical Leave Act (FMLA) makes it unlawful for an employer to “interfere with, restrain, or deny the exercise of or the attempt to exercise” an individual’s rights under the FMLA, or to retaliate against an employee for the exercise of rights under the FMLA. However, according to at least one federal appellate court, an employee’s use of FMLA to avoid an anticipated firing is not a valid exercise of those rights.
The 1st U.S. Circuit Court of Appeals recently held that a termination decision made after numerous attempts to accommodate an employee’s health issues, but prior to that employee’s formal request for FMLA leave was sufficient to support dismissal of the individual’s FMLA retaliation claim. Germinowski v. Patricia Harris, et al, 1st Circ., No. 16-1306 (April 12, 2017).
In that case, Heidi Germanowski – an employee of the Berkshire Middle District Registry of Deeds for over 10 years – claimed that her supervisor fired her because she requested leave protected by the FMLA. A federal district court dismissed Germanowski’s claims, and she appealed to the First Circuit, which upheld the dismissal. The facts are:
- During the initial years of her employment, Germanowski initially worked with another employee, Patricia Harris;
- In 2013, Harris became Germanowski’s supervisor;
- The relationship between the two began to deteriorate, with Germanowski claiming to experience “stress and anxiety accompanied by fatigue, hair loss, aches, and gastrointestinal pain” that left her unable to work at times;
- Harris allowed Germanowski to take time off when needed, with pay, when Germanowski requested it;
- In October 2014, Germanowski suffered a nervous breakdown at work;
- Subsequently, Germanowski made specific claims of mistreatment by Harris, including that Harris was “out to get her”;
- Germanowski received a sport pistol from her husband as a gift;
- She informed Harris of the gift, as Harris knew of Germanowski’s sport shooting hobby;
- Harris expressed her discomfort with the gift, wondering whether Germanowski would carry the gun to work (there is no specific evidence that she did or would have);
- On Friday, January 30, when Germanowski attempted to enter the workplace, she was denied access to the building;
- On Monday, February 2, 2015, Harris left a message for Germanowski, directing her not to return to the workplace;
- Fearful that her job was “in jeopardy,” Germanowski sent an e-mail to Harris on February 3, stating that she would be “out sick for the week” and was scheduled to visit her doctor;
- On February 5, Germanowski’s doctor provided a letter to her, advising her to take a medical leave of absence to pursue treatment;
- There is no evidence that the letter was provided to Harris or the employer;
- On February 6, Germanowski received a voicemail message from the chief court officer in which she was told that her employment was being terminated effective immediately;
- Germanowski sued Harris and the Commonwealth of Massachusetts, including a claim of FMLA retaliation;
- The lower court dismissed all claims, including the FMLA claim, finding that Harris had no knowledge of Germanowski’s intent to take FMLA leave and therefore, could not have interfered in that right or retaliated because of it;
- Germanowski appealed the dismissal to the First Circuit, which upheld the lower court’s decision to dismiss the claims.
To support its decision, the First Circuit listed the actions that the employer had taken in the year prior to the firing, including the facts that Harris consistently accommodated Germanowski when Germanowski felt unable to work; that absences allowed by Harris were fully paid; and those absences were not counted against any available leave time.
While Germanowski argued that the temporal proximity between her February 3 e-mail informing Harris she would be “out sick” for a week and her firing on February 5 was sufficient basis for her retaliation claim, the Court disagreed. Instead, it pointed out the “emotionally fraught and longstanding dispute” between Harris and Germanowski, the fear expressed by Harris about the possibility of Germanowski bringing a gun into the workplace, and the subsequent “lock out” of Germanowski based upon that fear. According to the Court:
To think that an employer in such a case fired Germanowski because she asked for some time off while she was already locked out is to suggest that common sense borne of real world experience has no role to play in the plausibility analysis.
Going further, the Court quoted the lower court’s statement that the “FMLA is not a tool an employee can use to delay or avoid a termination.” Therefore, while there was evidence that Harris and Germanowski had a troubled working relationship and that Germanowski believed that Harris was “out to get” her, such evidence does not support a causal connection between the exercise of rights under the FMLA and a subsequent termination – in fact, according to the First Circuit, those facts mitigate against FMLA liability.
This decision is interesting because it does not focus on the issue typically dealt with by courts: whether notice of serious illness provided by an employee automatically requires FMLA protections. Here, Germanowski’s e-mail that she needed to be out for a week – in light of her past medical issues – could arguably have been read as notice of a serious health condition, triggering FMLA protection. However, the First Circuit decided the case on an alternate ground: that the e-mail did not trigger the firing, which already had been in the works prior to the February 3 notice.
The salient issue for the Court was that the FMLA does not protect an employee for every reason while she is on that leave (or requesting it); it protects her only from firing because she requests or takes the leave. Here, while there was evidence of an “emotionally fraught and longstanding dispute” between Harris and Germanowski, there was, according to the Court, no evidence that Germanowski was terminated in retaliation for asserting rights under the FMLA.
Photo from Rachel Simmon’s Website (“Fiona’s Blog, How to Fight with your Best Friend.”)