Kentucky Employment Law Blog

"We close by noting our disappointment with Hospira's approach to summary judgment practice"

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.  

I have previously posted about this case, Retaliation & Temporal Proximity - "We reject the idea that the passage of a particular amount of time between protected activity and retaliation can bar the claim as a matter of law."  I also again thank Rick Seymour for bringing this case to my attention and others over the NELA listserve.

Robert L. Abell
www.RobertAbellLaw.com 

FMLA - Measuring the Temporal Proximity Between the Exercise of FMLA Rights and Retaliation

 The temporal proximity between an employee's protected activity -- taking FMLA leave -- and an employer's adverse action - firing - is strong evidence of causation and therefore of unlawful retaliation.  Generally, the shorter the period of time between the protected activity and the adverse employment action, the stronger the inference of causation, that is, a causative link between the protected activity and the adverse employment action.  The Sixth Circuit's recent decision in Wallner v. Hilliard Lyons, 13-6548 (October 31, 2014) considered how temporal proximity should be measured: should it be measured from when the employee first requests to take FMLA leave and her firing or should it be measured from when the employee returns from her FMLA leave and her firing.  Choosing rightly the latter the Sixth Circuit reversed a summary judgment granted Hilliard Lyons by the district court.

Jeanne Wallner was a 27 year employee of Hilliard Lyons.  In June 2009, she requested FMLA leave for knee replacement surgery; she submitted the appropriate documentation from her doctor that she would require leave for about two months, from August 11, 2009, to "approximately October 11, 2009."  Wallner, in fact, returned to work earlier, on October 6, 2009. She was fired 9 days later. Wallner filed suit claiming that her firing was unlawful retaliation for her exercise of her rights to take FMLA leave. The district court tossed her case on summary judgment reasoning, among other things, that the temporal proximity was weak because it should be measured from when Wallner first requested FMLA leave in June and her termination some 4 months later, although that was right after she returned to work from FMLA leave.

The Sixth Circuit rejected the notion that Wallner's protected activity occurred and then terminated immediately upon her mere request for FMLA leave, explaining:

After all, if merely asking for FMLA leave is a protected activity, then surely actually taking the time off is, as well. Skrjanc, 272 F.3d at 314. The temporal proximity that is relevant to Wallner’s FMLA retaliation claim, therefore, is the length of time between when she was absent from work on FMLA leave and when she was discharged. This was a total of nine days, not four months. Thus, the inference of causality generated by temporal proximity is stronger than recognized by the district court.

So the rule recognized by this decision is simple and sensible: in a FMLA retaliation case, the temporal proximity between the employee's protected activity -- taking FMLA leave -- and the adverse employment action is first measured by the amount of time passing between the employee's return to work from FMLA leave and the adverse employment action. 

The Sixth Circuit's opinion was authored by Circuit Judge Richard Griffin, who was jointed by District Judge Greg Van Tatenhove of the Eastern District of Kentucky; Circuit Judge John Rogers dissented. 

Robert L. Abell
www.RobertAbellLaw.com

FMLA: Equitable Relief Enough to Support Claim

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."

Robert L. Abell
www.RobertAbellLaw.com

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FMLA: A "Strong Presumption In Favor of Liquidated Damages" Says the Eighth Circuit

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 jury found for Jackson on his FMLA retaliation claim – that he was not rehired in retaliation for using his FMLA rights and taking leave allowed by the law – and awarded him $56,000 in damages covering his lost pay. But, paradoxically, the jury also answered affirmatively and interrogatory that the city had acted in good faith. The trial court judge adopted this finding; Jackson appealed.

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 Eighth Circuit's opinion was written by Circuit Judge Raymond Gruender joined by Circuit Judge Diana Murphy and Circuit Judge Roger Wollman.

Robert L. Abell
www.RobertAbellLaw.com

 

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Are Pretextual Reasons Made Up After the Fact Consistent With Good Faith?

Employer's Pretextual Reasons For Discharge Warranted Liquidated Damages for FMLA Violation, Sixth Circuit Rules

Family and Medical Leave Act 102: Casual Comments to Supervisors About Parents' Poor Health Is Not Adequate Notice Under FMLA

Eleventh Circuit Holds that Employee's Depression Does Not Qualify for FMLA Leave

Do "Temps" Have Rights Under the FMLA?

Are Pretextual Reasons Made Up After the Fact Consistent With Good Faith?

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.

Thom was also discussed in two earlier posts: Employer's Pretextual Reason for Discharge Warranted Liquidated Damages for FMLA Violation, Sixth Circuit Rules and FMLA Violated by Employee's Termination, Sixth Circuit Rules.

Robert L. Abell
www.RobertAbellLaw.com

 

 

Supreme Court Limits State Employees' Protections Under 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.”   

Robert L. Abell
www.RobertAbellLaw.com 

Employer's Pretextual Reasons For Discharge Warranted Liquidated Damages for FMLA Violation, Sixth Circuit Rules

"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.

Robert L. Abell
www.RobertAbellLaw.com 

 

Retroactive Termination of Medical Insurance Violates FMLA

The Family Medical Leave Act (FMLA) prohibits an employer from interfering with or retaliating against an employee who asserts or exercises her rights to take leave from work under the FMLA. Both these prohibitions were violated by the employer's retroactive termination of an employee's medical insurance the Seventh Circuit has ruled in Ryl-Kuchar v Care Centers, Inc., No. 08-2688 (May 11, 2009).

Kathleen Ryl-Kuchar had worked for Care Centers, Inc. for over 17 years when she became pregnant with triplets in late 2002. She worked all the way up to delivery on July 17, 2003, although during the later part of her pregnancy, she worked from home and in some weeks less than 35 hours per week. Ryl-Kuchar returned to work right after delivery but began FMLA leave a short time later. A few weeks later, she elected to terminate her employment effective October 1.

About six weeks after resigning, Ryl-Kuchar learned that her health insurance had been retroactively cancelled on June 15 -- just at the point where, as the court observed, she really began "piling up" the medical bills related to her pregnancy. The employer asserted that it had retroactively cancelled her medical insurance on the grounds that she had become ineligible for the coverage by having worked for less than 35 hours some weeks prior to delivery.

Ryl-Kuchar sued under the FMLA and claimed that the retroactive cancellation of her medical insurance was based on her decision to take FMLA leave. She presented evidence "that Care Centers was concerned with rising health care costs, as evidenced by an article in the company newsletter," and that the claim she had become a part-time employee was groundless, since she was a salaried employee and had kept, at all times, the same rate of pay. Only after she took FMLA leave, Ryl-Kuchar pointed out, was there an audit of her payroll records and a claim of "mistake" regarding her eligibility for medical insurance. This proof, the court ruled, was enough to show that Care Centers retaliated against Ryl-Kuchar for taking FMLA leave by retroactively cancelling her medical insurance.

The court also ruled that Ryl-Kuchar had easily show unlawful interference with her rights under the FMLA. The court explained that the FMLA requires that an employee on FMLA leave is "entitled to have health benefits maintained while on leave as if the employee had continued to work instead of taking the leave."

Robert L. Abell
www.RobertAbellLaw.com

Retaliation Against Employee Taking Family Medical Leave Held Unlawful

Retaliation against an employee for taking leave under the Family Medical Leave Act (FMLA) is unlawful, the Sixth Circuit has ruled in Bryant v. Dollar General Corp. (No. 07-5006 decided August 15, 2008).   The court affirmed a jury verdict for a fired employee.

The employer, Dollar General, argued that the "FMLA does not bar an employer from firing an employee because that employee took FMLA leave,"  a contention that was soundly rejected.  First, the "overwhelming consensus of the case law .. as well as the nature of the statutory scheme and the FMLA's legislative history" weighed "strongly in favor of rejecting" Dollar General's argument.  Second, "any 'right' to take unpaid leave would be utterly meaningless if the statute's bar against discrimination failed to prohibit employers from considering an employee's FMLA leave as a negative factor in employment decisions."  Third, adopting Dollar General's position would run counter to principles of statutory construction that caution against absurd results. 

Robert L. Abell
www.RobertAbellLaw.com