In obvious contradiction to Sixth Circuit precedent, the district court improperly held that "a plaintiff cannot use a claim of constructive discharge to establish an adverse employment action." ...
this Court has repeatedly held to the contrary. See Talley v. Family Dollar Stores, Inc, 542 F3d 1099, 1109-10 (6th Cir 2008)(reversing summary judgment on plaintiff's ADA constructive discharge claim); Saroli v Automation & Modular Components, Inc, 405 F3d 446, 451 (6th Cir 2005)(recognizing plaintiff's claim of a constructive discharge as an adverse employment action); Smith v Henderson, 376 F3d 529, 533 (6th Cir 2004)(analyzing whether plaintiff suffered an adverse employment action via her claim of a constructive discharge); Logan v Denny's Inc, 259 F3d 558, 568 (6th Cir 2001)("Plaintiff may establish an adverse employment action by demonstrating that she was constructively discharged."). Thus, although already well established, we hold once more today that a plaintiff may use a constructive discharge claim to show that he or she was suffered an adverse employment action.
The Sixth Circuit reversed in Hurtt summary judgment on claims under the ADA, the FMLA and Michigan's Persons with Disabilities Civil Rights Act.
In Malin v Hospira Inc, 762 F3d 552 (7th Cir 2014), the Seventh Circuit reversed a summary judgment granted the defendant-employer, Hospira Inc, on the plaintiff's FMLA and Title VII retaliation claims. The court's analysis is unremarkable, even as it takes pains to emphasize that it has never erected a temporal proximity bar to a retaliation claim and address an evidence issues, but its conclusion highlights features of summary judgment practice that many will surely and dismayingly find all too familiar:
Both in the district court and in this appeal, Hospira has misrepresented the record and Malin's legal arguments.
Hospira repeatedly cherry-picked isolated phrases from Malin's deposition and claimed that these "admissions" doomed her case.
Hospira's presentation of the evidence amounted to nothing more than selectively quoting deposition language it likes and ignoring deposition language it does not like.
Hospira seems to have based its litigation strategy on the hope that neither the district court nor this panel would take the time to check the record.
While the court's condemnations are most unusual the practices that it cites are not; cherry-picking of evidence, misrepresenting the record and selectively quoting deposition language the defendant likes and ignoring deposition language it does not like is the norm, not the exception.
Tilley had worked for the county road department for 15 years when he had to take FMLA leave due to an apparent heart attack. He was provided with the required paperwork for FMLA leave. Then the county fired him. Tilley claimed, among other things, that his firing violated the FMLA.
Although the county had provided FMLA paperwork to Tilley and indicated that he was eligible for FMLA leave, it argued successfully to the district court, Judge Robert Holmes Bell, that Tilley was ineligible for FMLA leave. The Sixth Circuit reversed holding that the doctrine of equitable estoppel precluded the county's argument that Tilley was ineligible for FMLA leave.
An employee can invoke equitable estoppel against an employer's FMLA ineligibility argument where he can show (1) a definite misrepresentation as to a material fact; (2) A reasonable reliance on the misrepresentation; and, (3) a resulting detriment to the party reasonably relying on the misrepresentation. Dobrowski v Jay Dee Contractors, 571 F3d 551, 557 (6th Cir. 2009). Tilley presented this proof by unequivocal language in the county's personnel manual, his reasonable reliance on that representation illustrated by the county twice telling him he was eligible for FMLA leave and suffered the detriment of being fired.
Although the Sixth Circuit reversed and remanded, it invited the district court to consider other grounds for summary judgment against Tilley, declining to address the additional arguments raised by the county and directing the district court to do so. So Tilley has a good chance of a second appeal prior to a trial or, more likely, a settlement on terms that may well by then reflect the economic desperation that might have set in on a 59 year old man out of work for an extended period of time. But we'll see.
Tondalaya Evans' employer, Books-A-Million, unlawfully interfered with her rights under the Family Medical Leave Act (FMLA) by requiring Evans to work at home for two months following the birth of a child. But the employer paid Evans for this work. When Evans was later fired, she pleaded a claim under the FMLA, which the district court, (Hon. C. Lynwood Smith of the Northern District of Alabama) threw out on summary judgment, explaining "because the plaintiff cannot establish that she suffered any loss of income, she cannot state an FMLA claim." The Eleventh Circuit reversed this glaring and obvious error in Evans v. Books-A-Million, No 13-10054 (August 8, 2014).
The FMLA provides explicity for two (distinct) categories of remedies: (1) "damages" including compensation, benefits and other monetary losses; and, (2) such equitable relief as may be appropriate including employment, reinstatement and promotion. Equitable relief being a specific remedy and Evans having pleaded it as a remedy, the Eleventh Circuit easily concluded:
It is clear to us that, in order to prove that she was "prejudiced" by an FMLA violation, a plaintiff such as Evans need only demonstrate some harm remediable by either "damages" or "equitable relief."
Under the Family Medical Leave Act (FMLA) a violation can leave a defendant-employer liable to the employee for a sum of liquidated damages equal to the amount of other damages (lost pay and benefits) awarded. An employer can avoid this liability by showing that it acted in good faith and had "reasonable grounds for believing" it was not violating the FMLA. But there is a "strong presumption in favor of liquidated damages" as the Eighth Circuit explained recently in Jackson v. Hot Springs, Nos 13-1772, 1875 (May 12, 2014).
Wayne Jackson worked for the city as a welder/machinist. In January 2010, he underwent surgery and used his accrued paid sick leave while he recovered. When he ran out of accrued leave, Jackson requested FMLA leave, which the city granted. Jackson then ran out of FMLA leave, but requested and was granted an additional 30 days leave under city policy. But Jackson was not ready to return to work when the 30 days lapsed so he was fired.
Two months later, Jackson applied for his former job. He and two other candidates were interviewed, and Jackson was recommended for hiring. But Jackson's former and would-be supervisor, a Merriman, who had previously expressed skepticism about the legitimacy of Jackson's FMLA leave, fabricated a reason to scuttle the hiring. The position remained open, another application process was gone through four months later, but this time Jackson was not interviewed. The city's explanation for not interviewing Jackson – that it interviewed only two far better qualified candidates – fell flat, when it was forced to admit at trial that those two interviewees could not operate some of the job's basic machinery.
So, the city made up what the jury could find fairly was a lie as to why it did not initially rehire Jackson, and it could find fairly that it made up another lie for not interviewing him during the second hiring process.
The Eighth Circuit ruled that "the district court abused its discretion when it denied liquidated damages." First, the court observed that there is a "strong presumption in favor of liquidated damages" under the FMLA. This presumption follows logically since "showing good faith when a jury has determined intentional retaliation is a very high bar to clear." Second, the city did not offer any evidence of its good faith beyond its explanation for not rehiring Jackson. But this could not suffice, since "a good faith finding based on Hot Springs' alleged reasons for its decision not to rehire Jackson would be an abuse of discretion because such a finding would disregard the jury's non-advisory finding of intentional retaliation." Accordingly, the Eighth Circuit reversed the denial of liquidated damages and remanded the case.
The Family Medical Leave Act (FMLA) prohibits retaliation against an employee that takes FMLA leave. The elements of a retaliation claim under the FMLA are as follows: (1) that the employee engaged in activity protected by the FMLA; (2) the employer knew of the employee's exercise of her protected rights; (3) the employer therafter took an adverse employment action against the employee; and, (4) there was a causal connection between the protected activity and the adverse employment action. Arban v. West Publishing Corp., 345 F.3d 390, 404 (6th Cir. 2003).
A plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.
The Sixth Circuit, in reversing a summary judgment granted by the district court, ruled that Crawford had presented a fact issue as to an adverse employment action based on the following: (1) the position she was placed in following her return from FMLA leave "included more clerical duties, did not require the same level of expertise, and she was required to report to a former peer." The court further asserted that "the change in job responsibilities support an inference of an adverse employment action."
The Family Medical Leave Act (FMLA) requires that an employee that takes FMLA leave be returned to an equivalent position when they return to work. But what determines whether a position is equivalent or not? There is guidance in the Code of Federal Regulations that states as follows:
An equivalent position is one that is virtually identical to the emloyee's former position in terms of pay, benefits, and working conditions, including privileges, perquisites and status. 29 CFR 825.215(a).
An equivalent position "must involve the same or substantially similar duties and responsibilities, which must entail substantially skill, effort, responsibility and authority." Id.
But this does not mean every little last thing must be the same: "The requirement that an employee be restored to the same or equivalent job does not extend to de minimis, intangible, or unmeasurable aspects of the job." 29 CFR 825.215(f).
Paula Crawford claimed that she had not been restored to an equivalent position with JP Morgan Chase bank when she returned from FMLA leave. Crawford's previous position was as Program Manager I, a job that called upon legal training that she had. When she returned from FMLA leave, Crawford was placed in the position of Quality Analyst II, which had equal pay and benefits. She claimed her opportunities for advancement were reduced.
The Sixth Circuit, in reversing a summary judgment granted the employer by the district court, ruled that Crawford had presented a fact issue for a jury as to equivalency. The court explained as follows:
Even if both positions carried equal pay and benefits, if the Quality Analyst II position did not require a similar level of training and education, then it was not equivalent in terms of status and thus the positions would not be equivalent under the FMLA. See Donahoo v. Master Data Center, 282 F.Supp. 2d 540, 552 (ED Mich 2003)(finding that an employer did not reinstate the employee to equivalent position when the pay and benefits were equivalent, but the new position was not as sophisticated and did not require the same level of training and education.). Because status and duties are a part of the equivalence inquiry, a reasonable fact-finder could determine that the positions were not equivalent. Parker v. Hanhemann University Hospital, 234 F.Supp.2d 478, 491 (D. NJ 2002).
The Sixth Circuit found this an easy question and ruled that a state's sovereign immunity under the Eleventh Amendment does not bar a claim under the FMLA for an equitable remedy of reinstatement.
When an
employer unlawfully discharges an employee it almost always makes up some type
of purported or pretextual reason for the discharge. An adverse finding
regarding the lawfulness of the discharge usually do not deter employers from
nevertheless arguing that they acted in good faith. The Sixth Circuit got
enough of this in its recent decision Thom v. American Standard, Inc., Nos
09-3507/3508 where it remarked as follows:
Pretextual
reasons for discharge manufactured after the fact in order to justify an
earlier wrong are not consistent with good faith. ... Pretextual reasons are
equivalent to reasons "not held in good faith."
And so in Thom the Sixth Circuit directed that liquidated
damages be assessed against the employer for its violation of the FMLA.
The Supreme Court has limited state employees' protections under the Family Medical Leave Act (FMLA) in its recent decision, Coleman v. Court of Appeals, No. 10-1016 (March 20, 2012). The Court was predictably divided 5-4 with all five Republican appointees (Roberts, Scalia, Thomas, Kennedy & Alito) voting against the employee, whil all four Democratic appointees (Ginsburg, Breyer, Kagan & Sotomayor) voting in favor of the employee.
The Court ruled in 2003 in Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 1, that states did not have sovereign immunity against damages suits under the FMLA premised on a violation of 29 U.S.C. 2612(a)(1)(C), which regards care for a family member suffering from a "serious health condition." The ruling was premised on the reality that women by far most often took leave from work to care for ailing family members; thus, the Court ruled that Congress had properly abrogated the states' sovereign immunity from damages suits.
The Coleman case involved what the Court majority called the "self-care" provision under 29 USC 2612(a)(1)(D), which allows for unpaid leave for an employee to take care of themself, i.e., recover from their own illness or injury. The Court majority was utterly unmoved by the acknowledged reality that the FMLA's "self care" provision allowed single parents, who are disproportionately women, to retain their jobs:
The petitioner’s last defense of the self-care provision is that the provision helps single parents retain their jobs when they become ill. This, however, does not explain how the provision remedies or prevents constitutional violations. The fact that most single parents happen to be women demonstrates, at most, that the self-care provision was directed at remedying employers’ neutral leave restrictions which have a disparate effect on women. “Although disparate impactmay be relevant evidence of . . . discrimination . . . such evidence alone is insufficient [to prove a constitutional violation] even where the Fourteenth Amendment subjects state action to strict scrutiny.” To the extent, then, that the self-care provision addresses neutral leave policies with a disparate impact on women, it is not directed at a pattern of constitutional violations. Because, moreover, it is “unlikely that many of the [neutral leave policies] . . . affected by” the self-care provision are unconstitutional, “the scope of the[self-care provision is] out of proportion to its supposed remedial or preventive objectives.”
