Employee with Lyme Disease May Bring FMLA Retaliation Claim to Trial

A utility company employee who had a history of performance issues and was terminated a day after she took intermittent leave available to her under the Family and Medical Leave Act (FMLA), following a diagnosis of Lyme disease, could proceed to trial on her FMLA retaliation claim, the U.S. District Court for the District of Connecticut ruled.

Although the plaintiff's performance problems might have been a legitimate reason to fire her, the timing of her termination, comments made by her immediate supervisor about the potential impact of the disease on her job performance and the company's failure to follow its own progressive discipline policy raised questions that could not be answered without a trial, the court said.

The plaintiff worked as an HR consultant for Eversource Energy Service Co. Her duties included paying benefits-related bills. In March 2013, the plaintiff's supervisor discovered 12 bills that had not been paid, dating back to the beginning of January. 

The plaintiff met with the supervisor and another high-level HR employee and was instructed on how to ensure that all bills were paid, but in April 2013, the plaintiff's supervisor discovered additional unpaid bills.

On April 26, 2013, a doctor diagnosed the plaintiff with Lyme disease. The plaintiff received treatment on May 20, 2013, and the doctor submitted an FMLA certification form for intermittent medical leave on May 21, 2013. He prescribed treatment one day a week between May 2013 and December 2013, and he predicted that flare-ups might occur twice a month.

Problems with unpaid bills continued. In addition, the plaintiff failed to complete other assignments on time and her supervisors said she did not respond to their complaints about her performance.

The plaintiff's FMLA leave was approved on June 4, 2013, and she took leave that day. She was fired on June 5 and subsequently filed a lawsuit alleging FMLA retaliation. The employer filed a motion for summary judgment, asking that the claim be dismissed before trial, but the court denied the motion.

[SHRM members-only toolkit: Managing Family and Medical Leave]

Analyzing an FMLA Retaliation Claim

The FMLA allows an eligible employee to take 12 weeks of unpaid leave for a serious health condition and prohibits an employer from retaliating against an employee who asserts this right. The 12 weeks may be taken either in one block of time or in multiple shorter segments as intermittent leave. FMLA retaliation claims are analyzed under the three-part McDonnell Douglas test. For her claim to proceed to trial, the plaintiff was first required to show that:

• She exercised rights protected under the FMLA.
  
• She suffered an adverse employment action.
  
• The plaintiff's discharge was motivated by the employer's intent to retaliate for the plaintiff's exercise of her protected rights.
  

The plaintiff was fired within one day of taking her first day of FMLA leave. As a general matter, the court said, a plaintiff may rely on closeness between the exercise of FMLA rights and the alleged retaliation to establish retaliatory intent. The plaintiff therefore met her initial burden, the court concluded.

Once a plaintiff meets this first test, the employer then may show it had a legitimate nondiscriminatory reason to end employment. In this case, the company claimed that the plaintiff was fired for her poor performance, which included her bad attitude. Poor performance and insubordination are legitimate nondiscriminatory reasons to end employment, said the court, which concluded that the company met its burden at the second stage of the McDonnell Douglas test.

Given that there was a legitimate, nondiscriminatory reason for firing the plaintiff, the plaintiff then had to show that the employer's explanation for firing her was pretextual—the third step of the McDonnell Douglas test. Pretext can be shown by evidence demonstrating weaknesses, implausibilities, inconsistencies or contradictions in the employer's reasons for nonretaliatory firing, the court said.

The court then found that there was evidence that the employer's explanation was pretextual, based on the following points:

• The plaintiff's supervisor had expressed concern about the effect Lyme disease would have on the plaintiff's ability and availability to perform her job. Specifically, he expressed concern about her need to repeatedly see doctors and about her potential inability to quickly recover.
  
• The plaintiff's supervisor began to notice her poor performance as far back as 2012 but did not fire her until immediately after she took FMLA leave in June 2013. 
  
• The company did not offer the plaintiff job-performance counseling or put her on a discipline program, despite a written policy requiring that these steps be taken in cases of performance problems.
  
• Although the company claimed that the person who ultimately decided to fire the plaintiff was not aware that she had Lyme disease, there was evidence that the decision was made jointly by three people, two of whom did know about the plaintiff's health issues.
  

A trial was therefore necessary to decide the plaintiff's claim, the court concluded.

Majocha v. Eversource Energy Service Co., D. Conn. No. 3:16-CV-00742 (Feb. 21, 2018).

Professional Pointer: The court did not rule that the plaintiff established that her discharge was in retaliation for her exercise of her FMLA rights, only that there was enough evidence to justify a trial. The employer now has the opportunity at trial to show that it was motivated by legitimate business considerations. However, given the timing of the plaintiff's discharge—a day after her first day of intermittent leave—this might be a hard sell.

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.

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