Worker Fired for Being One Minute Late Advances FMLA Claim

​A tax clerk for Orange County, Fla., who had taken family and medical leave and was fired for being one minute late returning from a break could proceed to trial on her claims under the Family and Medical Leave Act (FMLA), a federal district court ruled.

On Jan. 7, 2008, the plaintiff began her employment with Orange County Tax Collector (OCTC). She helped customers obtain driver's licenses and vehicle registrations and pay property taxes.

While employed by OCTC, the plaintiff was subject to a point-based tardiness policy. Employees are assessed a point each time they are late from lunch, late to work or late from a break. On receipt of the seventh point, the employee is suspended for a day without pay; after the eighth, the employee is subject to termination. Before being terminated, an employee with eight points is entitled to a predetermination hearing. According to OCTC, employees with medical problems that cause them to earn points are given leeway and may have points forgiven.

During her employment, the plaintiff suffered from ulcerative colitis, bronchitis and asthma, and she experienced severe vomiting, diarrhea and stomach pain. In November 2015, the plaintiff sought FMLA leave to care for her mother after knee surgery. OCTC granted the plaintiff's leave request, with the plaintiff using a combination of personal and FMLA leave.

By December 2015, the plaintiff had been assessed seven points for unexcused absences and/or tardies. On Dec. 21, 2015, the plaintiff received her eighth point for returning to her desk seconds late from a break. Because she had reached eight points, a predetermination hearing was scheduled. The next day, the plaintiff woke feeling ill but, fearing termination, nonetheless reported for work. The plaintiff asked her manager multiple times to be excused so that she could get medical attention, but her manager refused. Weak from working all day while sick, the plaintiff passed out in the parking lot upon leaving and was admitted to a hospital.

In January 2016, the plaintiff requested FMLA leave while she recovered. An HR administrator called the plaintiff at home while she was on leave, told her that she would be terminated upon returning to work, and encouraged her to "resign and try to collect Medicaid or food stamps." The plaintiff refused to resign and complained that she felt she was being harassed. As the plaintiff's FMLA leave period was running out, she experienced a bout of bronchitis and applied for additional leave pursuant to the Americans with Disabilities Act through April 15, 2016.

While the plaintiff was out on leave, OCTC excused points for all employees accrued in April 2015, leaving the plaintiff with only seven points upon her return. But on June 3, 2016, she again received an eighth point—this time for being one minute late from a break. The eighth point necessitated a June 8, 2016, predetermination hearing where a panel of OCTC managers and supervisors decided to terminate the plaintiff. This was done despite the fact that another employee with eight points who was more than 15 minutes late to work was not fired.

The plaintiff filed a lawsuit alleging disability discrimination, retaliation, and interference under the FMLA and Florida law against OCTC. The employer moved for summary judgment on all claims.

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

The court found that OCTC was entitled to summary judgment on the plaintiff's disability discrimination claim because she failed to show that OCTC did not reasonably accommodate her. However, the court refused to dismiss the plaintiff's retaliation and FMLA interference claims because she complained to the HR administrator that she was being harassed for taking medical leave, which was a protected complaint.

The court found that the plaintiff's firing six months after her complaint was close enough in time to support retaliation. This, coupled with the evidence that OCTC fired her while deciding not to fire another employee who was more than 15 minutes late in the morning, could show that the reason for firing was a pretext for FMLA interference and retaliation.

Perez-Davis v. Randolph, M.D. Fla., No. 6:17-cv-1641-Orl-40KRS (Dec. 7, 2018).

Professional Pointer: Employers can apply strict absence and tardiness policies, with appropriate exceptions for protected leave. When the punishments far exceed the seriousness of violations, however, a court may infer that the employer has a discriminatory or retaliatory motive.

Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.

[Visit SHRM's resource page on the Family and Medical Leave Act.]