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Defending FMLA Retaliation Claims: Employers, Follow Your Normal Practice
Posted 04.15.14
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Linda Hollinshead
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Employers are well aware of the increased risk of implementing an adverse action (e.g., suspension, termination of employment) in the face of an employee’s claim for FMLA leave. Defending against such claims depends upon being able to demonstrate the legitimate, nondiscriminatory basis for the adverse action. At times, however, the close proximity of the adverse action to the employee’s FMLA request is difficult to overcome. In a number of recent FMLA retaliation cases, courts have analyzed the legitimacy of an employer’s non-discriminatory reason and the impact of the timing of the employer’ adverse action on such claims, with varying outcomes for employers.

Allen v. Nutrisystem, Inc., 21 WH Cases2d 1030 (3d Cir., 2013).

In this case, a customer service representative, brought an FMLA retaliation claim after she was terminated for poor work performance (e.g., failure to follow the call-out procedure and several instances of poor treatment of customers in handling customer calls). She claimed that the termination of her employment was in retaliation for her use of FMLA leave on three occasions during an eight month period and further, upon return from her most recent FMLA leave, she received three write-ups, including a final written warning due to her treatment of customers. In response to the final written warning, she claimed that there were mechanical problems with the phone used by her. Her assertions were investigated by the company’s human resources department, which determined that there was no evidence to suggest that mechanical issues contributed to her poor performance.

As there was no direct evidence of retaliation, the court considered the employee’s claims under the McDonnell Douglas burden-shifting framework. Thus, to bring a claim, the employee was first required to establish that she took FMLA leave, she suffered an adverse employment action and that there was a causal connection between the adverse employment action and the FMLA leave. Upon demonstrating her prima facie case, the employer would then be required to establish a legitimate, nondiscriminatory reason for the adverse action, at which point, the burden falls back on the employee to show that the employer’s legitimate, nondiscriminatory reason was pretextual.

In Allen, there was no dispute that the customer service representative completed school work and handled other personal matters during work hours. Further, the customer service representative failed to present evidence to dispute the employer’s assertions of numerous policy violations in the manner in which she failed to properly handle customer calls. In fact, the employer provided evidence that shortly after her last FMLA leave, the customer service representative sent numerous drafts of school projects back and forth between her work and personal e-mail account, thus supporting the employer’s assertion that the employee was handling personal matters during work-time. Notwithstanding the temporal proximity between the most recent FMLA leave and the disciplinary actions, the court found that the customer service representative failed to rebut the employer’s legitimate, nondiscriminatory reason for the termination of her employment and granted the employer’s motion for summary judgment.

Murphy v. The Ohio State University, 21 WH Cases 2d 914 (6th Cir., 2013).

In this case, a part time dispatcher worked for Ohio State University (OSU). Prior to her position with OSU, she worked as a part-time dispatcher for the Ohio cities of Grandview Heights and Upper Arlington.

In September, 2011, the dispatcher received a citation for disobeying a police officer’s commands. Shortly thereafter, on September 30, 2011, the dispatcher began an unrelated period of FMLA leave, returning to work on December 21, 2011. While she was on FMLA leave, her employer, OSU, learned she had applied for a full-time dispatcher position at her prior employer, the City of Grandview Heights and also learned that she worked part-time for Grandview Heights while she was on FMLA leave from her position at OSU. When she returned to work, the dispatcher was informed that OSU was investigating the police citation as well as her potential misuse of FMLA leave. After the investigation was completed, the dispatcher received a 3-day unpaid suspension. Shortly thereafter, the dispatcher filed an FMLA retaliation claim.

Utilizing the McDonnell Douglas burden-shifting framework, the court concluded that the dispatcher established a prima facie case of FMLA retaliation.

OSU argued, however, that it legitimately investigated and suspended the dispatcher upon her return from FMLA leave because she demonstrated poor judgment in her exchange with the police officer and because she worked for another employer while she was on FMLA leave from OSU, despite having provided to OSU an FMLA certification indicating that she could not work at all during her leave of absence.

In response, the dispatcher claimed that OSU’s basis for its decision to issue the 3-day suspension was pretextual because OSU did not follow the requirements of the applicable collective bargaining agreement related to investigations, OSU delayed its investigation to prejudice her, the charges against her were baseless and OSU failed to exercise due diligence in conducting its investigation.

In considering the dispatcher’s assertions, the court found that the fact that OSU was investigating the dispatcher for possible misuse of leave is not evidence of pretext, noting that an employer is entitled to inquire into whether an employee has abused his/her leave. The court further concluded that the temporal proximity of her leave and the disciplinary proceeding alone did not establish that OSU’s reasons were pretextual. The court reasoned that even if some aspects of the investigation were flawed, there was no evidence that these flaws undermined OSU’s investigation given that the dispatcher was provided the due process to which she was entitled under the applicable collective bargaining agreement. As a result, the court ruled that the employer was entitled to summary judgment, dismissing the employee’s FMLA retaliation claim.

Nelson v. Clermont County Veterans Service Commission, 21 WH Cases2d 965 (S.D. Ohio, November 1, 2013).

Unlike the prior two cases, in Nelson, the court refused to dismiss the employee’s FMLA retaliation claim, this time relying in part on the temporal proximity of the adverse action to the employee’s FMLA leave of absence.

Kristan Nelson was an administrative assistant for a county veteran’s commission. Over a period of two years (March, 2007 through April 2009), she was counseled for a variety of performance issues, including claiming unauthorized overtime and/or compensatory time, using her work computer for personal matters and not timely completing work assignments. A few months later, at the end of September, 2009, Ms. Nelson took FMLA to care for her daughter who had been sexually assaulted and later, took FMLA for her own stress-related condition stemming from her daughter’s attack.

While Ms. Nelson was on leave, additional mistakes were found with respect to time sheets submitted by her prior to her leave. Ms. Nelson did not dispute that her time sheets were inaccurate as submitted. Ms. Nelson returned from her leave in November, 2009. However, she brought her daughter to work on a regular basis and her supervisor advised her that she had to choose between her job and caring for her daughter. Ms. Nelson inquired about filing an internal grievance related to this exchange with her supervisor and also submitted a proposed, slightly reduced work schedule for her employer to consider. Later that same week, Ms. Nelson was informed that she was subject to a pre-disciplinary hearing for misconduct. Shortly thereafter, a hearing was conducted. Ms. Nelson declined to provide evidence or testimony at the hearing, but later submitted a rebuttal letter that was not considered by the hearing officer. Ms. Nelson’s employment was ultimately terminated on several grounds, including incompetency, dishonesty and neglect of duty. Ms. Nelson filed a claim alleging that she was terminated for taking FMLA and for seeking information about filing an internal grievance.

Given the absence of direct evidence, the court considered Ms. Nelson’s claim utilizing the McDonnell Douglas burden-shifting framework. The court noted that Ms. Nelson’s employment was terminated only nine days after returning from FMLA leave and while temporal proximity is generally “not enough,” the court pointed to evidence presented by Ms. Nelson that her supervisor had overloaded her with work upon her return from leave. The court acknowledged that the employer had articulated a legitimate business reason for terminating her employment. However, the court found that Ms. Nelson demonstrated sufficient evidence of pretext in challenging the reasonableness of the employer’s decision, given that the hearing officer did not consider Ms. Nelson’s rebuttal letter and the employer did not follow its own disciplinary procedures. Thus, the employer’s motion for summary judgment was denied and Ms. Nelson was permitted to pursue her claim.

The determination of whether an employer has a legitimate, nondiscriminatory basis for its adverse action is fact specific. Courts are influenced, to varying degrees, on the extent to which the temporal proximity between the FMLA leave and the adverse action gives rise to an inference of retaliation. Further, in two of these cases, the court considered whether pretext could be established based on the employer’s failure to follow its own internal disciplinary procedure, reaching different results.

The lesson for employers? Where an adverse action comes in close proximity to an employee’s use of FMLA leave, it is even more critical to demonstrate that the employee was treated consistently with the employer’s policies, irrespective of the leave. The employer’s failure to follow the employer’s normal disciplinary process creates the possibility that a court will consider that the employer did not act reasonably or in good faith and, therefore, will allow the employee’s claim to proceed to trial.

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About Linda Hollinshead
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Linda B. Hollinshead practices in the area of employment law. Ms. Hollinshead provides training and counseling to employers throughout the country on a variety of subjects, including monitoring employee attendance, FMLA compliance, medical and religious accommodations, leaves of absence policies, harassment and discrimination prevention, responding to harassment and discrimination claims, FLSA and wage and hour compliance, including employee misclassification, business diversity, termination of employees, hiring practices, performance appraisals and performance management. Ms. Hollinshead also advises public accommodations as well as recipients of federal financial assistance on program accessibility and other compliance obligations. Ms. Hollinshead advises clients in numerous industries, including colleges and universities, manufacturing and retail companies, hospitals and other healthcare organizations, technology companies, financial services organizations, energy companies and not-for-profit entities.