How Martin County HR professionals screwed up an FMLA request
An employee worked at an employer’s Indiantown, Florida jobsite for 14 years when she was informed she would be transferred to the employer’s Jensen Beach, Florida location. The employee immediately raised concerns that she would not be able to afford to make this transfer, for a variety of reasons, including financial difficulties, transportation obstacles, and injuries to her right foot, with which she would use to drive a car. One week after being informed she would be transferred, the employee did not appear for work and was terminated.
Based on these events, the employee filed a lawsuit in federal court for the Southern District of Florida , alleging among other things, violation of the Family Medical Leave Act (FMLA) for retaliation.
In general, the FMLA permits eligible employees with the right to take up to 12 workweeks of unpaid leave annually for any one or more of several reasons, including because of a serious health condition that makes the employee unable to perform the functions of the position of such employee. An FMLA retaliation claim asserts that an employer discriminated against an employee for engaging in FMLA protected activity. To establish a retaliation claim under the FMLA when there is no direct evidence of retaliatory intent, an employee must show that (1) she engaged in a statutorily protected activity; (2) she suffered an adverse employment decision; and (3) the decision was causally related to a protected activity. Regarding the third element, a causal connection, an employee must demonstrate that the relevant decisionmaker was aware of the protected conduct, and that the protected activity and the adverse actions were not wholly unrelated. Close temporal proximity between protected conduct and an adverse employment action is generally sufficient circumstantial evidence to create a genuine issue of material fact of a causal connection. However, in a retaliation case, when an employer contemplates an adverse employment action before an employee engages in protected activity, temporal proximity between the protected activity and the subsequent adverse employment action does not suffice to show causation.
Once the employee establishes a prima facie case for FMLA retaliation, the burden shifts to the employer to show a legitimate reason for the adverse employment action. The employer must put forth a “legitimate, non-retaliatory reason for terminating” the employee.
If the employer provides a legitimate reason for its actions, the burden shifts back to the employee to demonstrate that the proffered reason for the employment action was pretext for retaliation. To show pretext, an employee must show both that the employer’s explanation was false and that discrimination was the real reason for its decision.
In this case, the employer admitted the first two elements of the employee’s prima facie case, so the Court focused on whether the employer’s decision to terminate the employee was causally related to her exercise of her FMLA rights.
Let’s talk about causality.
In this case, the employer admitted that when it first communicated with the employee about her transfer, she immediately expressed concerns over the transfer and requested a meeting with her supervisors. The employer told the employee that she must report to her newly assigned work location on the following week and that failure to report to work as directed would be considered an unauthorized absence. The employee again told the employer that she would not agree to her transfer and that she had been diagnosed with an injury to her foot and presented a prescription for an MRI. The employer responded that it would provide FMLA certification forms at their scheduled meeting the following day. The employee presented a copy of the MRI prescription, and was given FMLA application and certification forms. When the employee did not appear for work the next day, she was immediately terminated.
To summarize, yes, the employee was told she was being transferred on a Wednesday. Notwithstanding her financial and transportation concerns, she communicated that she was experiencing health issues the following Monday, she was provided FMLA certification forms on Tuesday, and she was terminated on Wednesday.
To establish the causal connection element, an employee need only show that the protected activity and the adverse action were not wholly unrelated. In order to show the two things were not entirely unrelated, the employee must generally show that the decision maker was aware of the protected conduct at the time of the adverse employment action.
The general rule is that close temporal proximity between the employee’s protected conduct and the adverse employment action is sufficient circumstantial evidence to create a genuine issue of material fact of a causal connection and force the case to go to a jury trial.
In this case, the district court for the Southern District of Florida ruled that the extremely close temporal proximity between the employee’s communication with her employer that she was experiencing health problems (which prompted the employer to provide her with FMLA forms) and her termination was sufficient circumstantial evidence to demonstrate causality.
The employer argued that it contemplated adverse action against the employee before her need for FMLA leave arose. The court noted that this is not a case where the employee had been specifically warned for months that she faced potential demotion or termination.
In contrast, the three instances in which the employer directed the employee to appear for work at her new work location occurred just days, not months, before she communicated her health status to the employer. The court was not convinced that the employee’s termination was contemplated in advance of her FMLA request. Accordingly, the Court concluded that the employee established the prima facie case for FMLA retaliation, based in part on the employer’s concession on the first two elements of the prima facie case.
So, the employee established her prima facia case, so the burden therefore shifts to the employer to produce a legitimate, non-retaliatory reason for her termination. The employer argued that the employee was terminated for not appearing at work, i.e., job abandonment. Of course, the employee denied this was the reason for her termination. The employer also argued that she was insubordinate. This was a weak attempt by the employer to show it had a legitimate non-retaliatory reason for her termination.
But assuming that the employer properly made a legitimate, non-retaliatory reason for the employee’s termination, she must show both that the employer’s explanation was false and that discrimination was the real reason for his decision. The employee must then show that the employer’s stated reason was pretextual by presenting evidence sufficient to permit a reasonable factfinder to conclude that the reasons given by the employer were not the real reasons for the adverse employment decision.
Here, the court concluded that the employee raised sufficient doubt as to whether the employer’s explanations for the termination were false and pretextual. First, the close temporal proximity of the employee’s disclosure of her medical condition and her ultimate termination could lead a reasonable juror to conclude that she was terminated because she had engaged in statutorily protected activity. Second, the employee’s failure to appear for work would not have qualified as a resignation under the employer’s Human Resources Policy, which states that a period of three consecutive days of unauthorized absences will be considered a resignation. The Court believed that this could lead a reasonable juror to conclude that the employer’s job-abandonment rationale was pretext for FMLA retaliation. Third, the fact that the employee did call in to her employer to ask how to request a day off because her medical condition was worsening and she needed an MRI could lead a reasonable juror to conclude that she was terminated that day because she had engaged in statutorily protected activity. Finally, there was evidence that a disciplinary memorandum had been circulated by the employee’s supervisors before she failed to appear for work. The employee argued that this fact indicates that the adverse employment action resulted from her allegedly FMLA-qualifying condition, not from her non-appearance at work. The employer attempted to argue that the fact that it had not yet decided what disciplinary action would be taken in the memorandum indicates the opposite conclusion. The problem for the employer is that at summary judgment, if reasonable minds could differ on the inferences arising from undisputed facts, then a court must deny summary judgment.
In this case the employee cast sufficient doubt upon the legitimacy of the employer’s proffered explanations for terminating her such that a reasonable jury could conclude the employer’s stated explanations were pretextual. In reaching this conclusion, the Court noted that it does not sit as a super-personnel department, and it is not the Court’s role to second-guess the wisdom of an employer’s business decisions.
However, summary judgment is “a lethal weapon, and courts must be mindful of its aims and targets and beware of overkill in its use.” So, here, the Court found that there was sufficient doubt regarding the employer’s explanation for terminating the employee such that her FMLA retaliation claim survived the employer’s summary judgment motion.
A key message that Florida employers should take from this case is that timing of termination will impact causality. Firing an employee close in time after they bring up an FMLA-qualifying condition will not look good if a court is asked to dismiss a case.
This is another example where an employer could have saved a lot of money by consulting an experienced employment discrimination lawyer before firing the employee.
The Martin County case is Isaias v. Martin County and the order is available at the link.
This case demonstrates how complicated FMLA requests can be and how the timing of adverse employment action can hurt an employer if it is not properly handled.
If you need any assistance in handling FMLA matters, or discrimination issues concerning your Florida business or if you need guidance in any employment policies, please promptly email the Law Office of David Miklas, P.A. or call us at 1-772-465-5111.
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