What Happens When You Mix FMLA (and ADA) and Retaliation?

I don’t encounter many employers that don’t have some type of issue with employee leave–especially when an employee may be eligible for more than one type of leave (e.g. FMLA, ADA, workers’ comp). Then there’s the possibility of retaliation claims. You may have thought that only applied to discrimination claims. Guess what? It also applies to employees who exercise rights under the FMLA and ADA. So how about our question for today: What Happens When You Mix FMLA (and/or ADA) and Retaliation? The short answer: nothing good.  Read on for the longer, more nuanced answer.

(image from hospitalityriskupdate.com)

Sometimes an employee uses all his/her FMLA leave and still can’t return to work, or may s/he isn’t eligible for FMLA leave at all. Even so, the employee may still be entitled to time off and job protection. S/he may be eligible for extended leave as a reasonable accommodation. If the (extended) leave does not pose an undue hardship and you refuse that employee more time off, you may be liable for discrimination and/or leave interference. What happens though, when you don’t deny the employee time off, but instead you fire that employee after s/he returns from leave? Maybe you feel that employee isn’t performing well. Can you terminate that employee now? Not necessarily. Did you document the performance problems? Did the performance problems suddenly arise only after the employee went out on leave? Could the issues be related to a disability and could that employee perform the essential job functions with a reasonable accommodation?  You’re probably starting to see that this is just not a straightforward inquiry, right? Let’s look at a real case with similar facts.

In Marshall v The Rawlings Company, No. 16-5614 6th Circuit, April 20, 2017,  Gloria Marshall, a workers’ compensation analyst, later promoted to Team Lead, suffered from depression, anxiety, and post-traumatic stress disorder. An unexpected flair-of these mental health issues, necessitated FMLA leave in February and March of 2012. The unforeseen leave meant she had work that she had not completed prior to her absence. She returned to find that backlog waiting for her. The parties disputed whether she received any assistance handling that backlog, and whether such backlogs were common.

In September 2012 the Rawlings Company demoted Ms. Marshall to her original analyst position. Some evidence shows she excelled as an analyst, while some suggests performance issues. While the division’s President made the demotion decision, but her boss, the division’s Vice President, recommended her demotion. He also allegedly made derogatory comments about her having taken FMLA leave. Ms. Marshall took another FMLA leave in March 2013 and intermittent FMLA leave from April through August. Things came to a head in September 2013. The division’s VP again complained about Marshall’s performance, and she alleged that the VP harassed her and was biased toward her for having taken FMLA leave due to her mental health issues. Ultimately, the division’s President decided to terminate her after concluding that the harassment allegations were unfounded and were an attempt to deflect complaints about her performance.

Ms. Marshall sued in May 2014, alleging FMLA interference, FMLA retaliation, ADA retaliation, intentional infliction of emotional distress under Kentucky law. The lower court dismissed all claims via a summary judgment motion. The Sixth Circuit Court of Appeals affirmed the dismissal of FMLA interference and the emotional distress claims, but reversed the dismissal of the FMLA and ADA retaliation complaints. Given the disputed facts as to the employer’s motivation for Ms. Marshall’s demotion and termination the court felt that those claims need a trial. In particular the court was concerned about the degree to which the division’s VP, who may have been biased against Ms. Marshall due to her FMLA leave and mental health issues, influenced the division President’s decisions.  If the division’s President was sufficiently influenced by the division’s VP, then the company is liable under the “cats-paw theory” of liability, which as the court explains:

“[r]efers to ‘one used by another to accomplish his purposes.’ In the employment discrimination context, ‘cat’s paw’ refers to a situation in which a biased subordinate, who lacks decision making power, uses the formal decisionmaker as a dupe in a deliberate scheme to trigger a discriminatory employment action.” EEOC v. BCI Coca-Cola Bottling Co. of Los Angeles, 450 F.3d 476, 484 (10th Cir. 2006) (citations omitted).”

We’ll come back to that case. Let’s briefly look at another one, Jones v Gulf Coast Health Care of Delaware, Inc. No. 16-11142 April 19, 2017. Rodney Jones, an Activities Director at a nursing home took FMLA leave to recover from rotator cuff surgery. His leave started September 26, 2014. He was originally supposed to return to work on December 19, 2014. There’s only one problem: Since his job did require certain physical activities, his doctor at that time would not clear him to return to work until February 1, 2014. Mr. Jones asked to return to work with some accommodations, (i.e. light duty) whereby his staff would assist with performance of the physical tasks. His employer denied his request and would not reinstate him until he could provide an unqualified fitness for duty certification. Mr. Jones then requested and received another 30 days of FMLA leave.

During those 30 days Mr. Jones took two trips to Busch Gardens and one trip to St. Martin. He texted some pictures to staff and posted others to his Facebook page. Upon return to work on January 19, 2015, Mr. Jones presented his employer with a fitness for duty certification, and his employer confronted him with his Facebook photos and suspended him pending investigation. While Mr. Jones had the opportunity to respond to the charges in a letter, he did not do so and the company terminated him. The lower court dismissed Mr. Jones’ FMLA interference and retaliation claim. The 11th Circuit Court of Appeals reversed the dismissal of his FMLA retaliation claim, finding conflicting evidence regarding the true motivation for terminating him, saying ““We have recognized that an employer’s failure to articulate clearly and consistently the reason for an employee’s discharge may serve as evidence of pretext.” , citing Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1298 (11th Cir. 2006).

Let’s tie it all together. The first case shows how the FMLA and the ADA will often overlap. Remember that a person on leave for a serious health condition is protected from discrimination and may also be entitled to reasonable accommodations under the ADA. In some cases, the leave itself may be a reasonable accommodation. (Had Ms. Marshall not been entitled to FMLA leave, she still would have been entitled to at least some time off under the ADA). Ms. Marshall was probably also entitled to some reasonable accommodations upon her return. Assistance in clearing the backlog caused by her unforeseen leave would likely be one such accommodation. Both cases show that even if an employer does not interfere with the employee taking leave (be it FMLA or ADA leave) its behavior toward the employee when s/he returns from leave can give rise to a retaliation claim. (Yes, this can be so even if the employee takes a trip to St Martin and makes the unfortunate mistake of posting the pictures on Facebook.) The retaliation claim will often remain even if or when an interference claim is dismissed–and often that claim can give rise to more damages than the interference claim!

As you can see, employee leave can get very complex, especially when you account for overlapping issues with FMLA and ADA to name just two laws. You can learn more about dealing with this overlap and other overlapping issues in my webinar, Employee Leave Under FMLA/ADA/Workers Comp (Understanding the Overlap) the live version of which is at 1 p.m. EST today, or download the recorded version.

OK, this is getting kinda long, so let’s stop for now. See you next week.

Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.

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