The Family and Medical Leave Act (FMLA) prohibits more than just retaliation — it also prohibits interference. More specifically, the FMLA provides: “it shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided” by the FMLA and interference claims arise when an employer’s actions prevent or interfere with an eligible employee’s rights under the FMLA. 29 USC § 2615.
Two recent Ohio district court cases highlight just how important it is for employers to keep the interference provision in mind when navigating employee FMLA requests.
First up, in Metroka-Cantelli v. Postmaster Gen., No. 3:12-cv-00242 (N.D. Ohio Nov. 5, 2013) Bobbie Metroka-Cantelli alleged her former employer, the United States Postal Service (USPS), interfered with her FMLA rights when it terminated her prior to her taking FMLA leave.
Cantelli worked as a transitional employee for the USPS for several years. At USPS, transitional employees are non-career employees and are appointed yearly without a guarantee of continuing employment. USPS employed Cantelli by reappointing her yearly from 2004 until 2010. So what happened in mid-2010? Well, in mid-2010, Cantelli was pregnant and began to line up FMLA leave for when the baby was due. She spoke to her supervisor, Margaret Gliatta, who told her to apply for FMLA leave in anticipation of the baby’s arrival and Cantelli contacted the human resources department to inquire about FMLA leave. On April 8, 2010, Cantelli spoke to USPS’s FMLA coordinator who sent Cantelli the FMLA form packet. Cantelli had 15 days to return the certification forms under the FMLA, but did not.
On May 5, 2010 (so not even a month later) Cantelli was notified by USPS that her annual contract — the same one that had been renewed annually since 2004 — was not going to be renewed. Cantelli was terminated before her baby was born and before she could take FMLA leave. USPS claimed that Cantelli’s termination was part of a reduction in force — keep in mind she was the only transitional employee affected by the so-called reduction in force.
Cantelli sued, claiming USPS retaliated against her for trying to take FMLA leave and interfered with her ability to take FMLA leave by terminating her before she could exercise her upcoming leave request.
The court quickly threw out Cantelli’s retaliation claim finding: No FMLA leave taken (or even a proper request for that matter), no FMLA retaliation.
Things went a little different for Cantelli on her interference claim. A plaintiff bringing an FMLA interference claim in the Sixth Circuit must demonstrate: (1) she was an eligible employee; (2) the defendant was an employer as defined under the FMLA; (3) she was entitled to leave under the FMLA; (4) she gave her employer notice of her intention to take leave; and (5) her employer denied her FMLA benefits to which she was entitled. Contrasted with a retaliation claim, an employer’s intent is not directly relevant to the interference claim analysis. Rather, it is only indirectly relevant if an employer proffers a legitimate business reason for its action – one unrelated to interfering with FMLA rights – and the burden then shifts back to the employee to refute the proffered reason.
USPS argued that because Cantelli’s employment ended every year, she was not eligible for FMLA leave prior to her May 15, 2010 termination because she had not shown her pregnancy required time off, and she was not eligible for FMLA leave after her termination because she was just a former employee whose contract was not renewed. The court agreed with USPS’s first contention in that Cantelli could not show she was entitled to leave prior to her May 15, 2010 termination because she had no evidence suggesting she had a serious health condition (whether it was the pregnancy or something else) that rendered her unable to perform her job at any point before her termination.
The court, however, did not buy USPS’s other argument suggesting that Cantelli was not entitled to FMLA at the time of her child’s birth in July 2010 because it came after the USPS opted not to renew Cantelli’s yearly contract position. According to USPS, by the time Cantelli’s July due date arrived, at which time she would need FMLA leave, Cantelli was two months past her contract’s expiration date and not eligible for FMLA leave. As the court noted,
On one hand, “[a]n employee lawfully may be dismissed, preventing him from exercising his statutory rights to FMLA leave or reinstatement, but only if the dismissal would have occurred regardless of the employee’s request for or taking of FMLA leave.” On the other hand, if the plaintiff can point to some evidence that the pending FMLA leave prompted the dismissal, the USPS is not entitled to summary judgment.
The court noted the FMLA’s accompanying regulation broadens interference claims to include those in which an employee who has not made a formal request:
Interfering with the exercise of an employee’s rights would include, for example, not only refusing to authorize FMLA leave, but discouraging an employee from using such leave. It would also include manipulation by a covered employer to avoid responsibilities under FMLA, for example:
- Transferring employees from one worksite to another for the purpose of reducing worksites, or to keep worksites, below the 50-employee threshold for employee eligibility under the Act;
- Changing the essential functions of the job in order to preclude the taking of leave; and
- Reducing hours available to work in order to avoid employee eligibility.
29 C.F.R. § 825.220(b).
Because Cantelli was entitled to leave in a matter of weeks after USPS terminated her, the termination denied her the benefit to which she was otherwise due. This, the court noted, satisfied the “denial of benefit” element sending the case past the prima facie stage.
For its burden, USPS argued that Cantelli’s rights could not have been violated because she never submitted the FMLA certification forms. USPS argued that Cantelli’s position was eliminated as part of a reduction in force, although she was the only person separated. Although the reduction may have been a legitimate basis to separate her employment, Cantelli provided evidence, though some of it may not be admissible at trial as USPS argued, that USPS began advertising to fill her open transitional position immediately following her separation, creating a legitimate question as to whether Cantelli’s separation was related to her intent to take leave. With that, the court denied the employer’s bid for summary judgment and the case will proceed to trial. At trial, the issue will be whether Cantelli would have been terminated regardless of her notifying USPS that she intended to take FMLA leave.
The next case comes out of the Southern District of Ohio on the defendant-employer’s motion to dismiss. In Nelson v. Clermont Cnty, Veterans Serv. Comm’n, No. 11-00335 (S.D. Ohio Nov. 1, 2013), Kris Nelson had been experiencing performance problems. According to her employer, the Veterans Service Commission (VSC), Nelson’s work performance declined in 2009. Nelson claimed unauthorized overtime, was not completing her work, and had been using her work computer during working hours for non-work activities. In April 2009, Nelson was even counseled about her work performance issues, including her “lack of proper time management….lack of initiative, detail, and follow through.”
In August 2009, Nelson informed her employer that her teenage daughter had been sexually assaulted in June 2009 and that she would need time to care for her daughter and to deal with her own issues, which her doctor later reported included crying spells, lack of energy and inability to concentrate. Nelson requested, and was granted, time off to care for her daughter and she also began bringing her daughter to work with her every day for several weeks. Nelson requested five weeks of leave from September 28, 2009 through November 8, 2009 to care for her daughter, who was suffering from PTSD and a back injury as a result of the attack. Nelson’s doctor also submitted a form indicating Nelson needed six weeks of leave for her own “crying spells” and because she had “no energy, can’t concentrate, [and] cannot focus.”
While on leave, the employer discovered what it believed to be evidence that Nelson had submitted inaccurate timesheets and concealed unauthorized overtime. After five weeks of leave, Nelson returned to work and began bringing her daughter with her every day. Her supervisor instructed Nelson “to choose between caring for her daughter or keeping her job by November 18, 2009” prompting Nelson to inquire how she could file a grievance against her supervisor.
At the end of the day on November 17, 2009, Nelson submitted a proposed 35-hour work week schedule to her supervisor. On November 18, 2009, board members held an executive session to discuss Nelson’s work performance and decided that a pre-disciplinary hearing was warranted for Nelson’s alleged misconduct. Nelson was suspended; her requested modified schedule was never discussed. At the formal disciplinary hearing Nelson was allowed to provide rebuttal evidence, but chose not to do so. Nevertheless, the day after the hearing, Nelson provided a written “rebuttal” to the disciplinary charges, which the hearing officer refused to consider. Nelson was terminated and sued, alleging FMLA interference and retaliation, among other claims.
The court noted that an employer may not discriminate against employees who have used FMLA leave, nor “use the taking of FMLA leave as a negative factor in employment actions,…nothing in the FMLA prohibits an employer from investigating allegations of dishonesty or from terminating an employee who violates company policies.” Nelson alleged that upon her return from FMLA leave, her supervisor “overloaded” her with work, which the court found sufficient to get Nelson through the prima facie stage of her case.
In turn, the court found that the employer articulated legitimate business reasons for terminating Nelson’s employment, including her declining job performance and manipulation of time records. An employer has an honest belief in its rationale when it reasonably relied on the particularized facts that were before it at the time the decision was made. “The key inquiry in assessing whether an employer holds such an honest belief is whether the employer made a reasonably informed and considered decision before taking the complained of action.”
Nelson argued the employer’s explanation was pretextual because her employer did not make a “reasonably informed and considered decision” because the hearing officer admittedly did not consider her rebuttal letter and her employer did not follow its own disciplinary procedures. The court noted that Nelson made a sufficient showing of pretext and denied the employer’s bid for summary judgment.
- Employers, focus your radar to catch potential interference claims. These two FMLA interference cases, particularly the Nelson case, are tough losses for the employers. While the plaintiffs are certainly sympathetic, these cases highlight that retaliation claims are not the only FMLA lawsuit employers face. Interference claims can arise if an employer refuses to authorize FMLA leave, discourages an employee from using FMLA leave or manipulates an employee’s position, hours or job location in an effort to avoid employee eligibility. This means that an employee may interpret an employer’s subtle actions as discouraging and pursue a claim.
- Have a heart. When it comes to employee leave, employers may want to be more sympathetic. Do I think this is the law? No. But, if these two recent cases are indicative of what is to come, employers cannot be so quick to terminate an employee who requests and/or takes FMLA leave. This is not to say that an employee suffering from a personal tragedy should have carte blanche to do whatever he or she wants at work without facing repercussions, but in some cases, it is important for employers to demonstrate an appropriate level of empathy, compassion and patience with employees.
- Train. Train. Train. Nelson’s supervisor basically told her that she had to choose between her job or her child. Had the court been otherwise inclined to find for the employer, this statement probably would be enough to turn it in the other direction. While the court did not say this, its analysis on the pretext element was conclusory and lends itself to interpretation, including this interpretation. In fact, on this point, the court merely said that the fact that the hearing officer refused to review the employee’s “rebuttal” evidence submitted “after” the full hearing on the matter and failure to follow its own procedures was enough to show pretext. Without more, this just does not seem like enough, leading me to think that the court was inclined to find for the employee based on some of the other facts that played out in the case, e.g., the sexual assault of a teen, a mother’s response, and a supervisor’s comment telling the mother she had to pick between her job and her child.