"Pretextual reasons for discharge manufactured after the fact in order to justify an earlier wrong are not consistent with good faith" stated the Sixth Circuit in Thom v. American Standard, Inc., Nos. 09-3507/3508 (6th Cir., January 20, 2012). The Court reversed a district court judgment not awarding liquidated damages where the Family Medical Leave Act (FMLA) was violated.
Liquidated damages -- in an amount double the amount of any compensatory damages -- are a presumed remedy under the FMLA, as the Sixth Circuit explained: "There is a strong presumption in favor of awarding liquidated damages that are double the amount of any compensatory damages." The burden is on the employer to show, despite a proved FMLA violation, it acted in good faith to comply with the FMLA. Hite v. Vermeer Mfg. Co., 446 F3d 858, 868 (6th Cir. 2006).
In this case, as noted in an earlier post, FMLA Violated by Employee's Termination, Sixth Circuit Rules, American Standard claimed that it had long used a "rolling" method for calculating an employee's FMLA leave, a position that it first raised after it had fired Thom, a 36-year employee, and he had filed suit. The company got no further with this argument as proof of its good faith, as the Sixth Circuit pointedly rejected it and observed:
- Pretextual reasons for discharge manufactured after the fact in order to justify an earlier wrong are not consistent with good faith.
- Pretextual excuses are equivalent to reasons "not held in good faith." See, e.g., Thornley v. Penton Publishing, 104 F3d 26, 30 (2d Cir. 1997)("the jury is certainly entitled to reject the standards [for terminating employees] claimed by the employer on the grounds that these standards were pretextual -- i.e., they were not held in good faith.").
- American Standard cannot demonstrate good faith by pointing to its reliance on a policy that Thom did not know about and was not used in Thom's case.
- Furthermore, after Thom was fired, his doctor wrote American Standard explaining how matters had developed with Thom's shoulder and requesting that he be reinstated to employment, a request that the company ignored, a stonewalling that caused the Sixth Circuit to observe that its "obdurate refusal to correct an obvious mistake that constituted a wrongful discharge of this 36-year employee reinforces the case for liquidated damages.
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