Retaliation Claims over Need for Future FMLA Leave Sent to Jury

By Rosemarie Lally, J.D. April 7, 2021
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Judge's Gavel

Retaliation claims brought by an employee who alleged she was fired after telling her employer of her need for future leave under the Family and Medical Leave Act (FMLA) and for refusing to sign a performance memo she believed precluded her from asking for FMLA leave present questions of fact that must be heard by a jury, the 11th U.S. Circuit Court of Appeals ruled.

The plaintiff worked as an executive leasing assistant at a real estate management company from 2005 to 2013, providing assistance to two vice presidents. She was disciplined for tardiness in January 2010. In 2011, the plaintiff began experiencing chronic health issues.

From 2011 to 2013, she sent a number of e-mails to her two bosses asking for permission to be late or absent due to illness and medical appointments. The plaintiff claimed she informed them that she might have uterine fibroids and asked to be accommodated for intermittent lateness or absences. Her bosses denied that she had notified them of her suspected condition or the need for accommodation.

She was diagnosed with endometriosis and uterine fibroids in 2013. She claimed to have told her employer of the diagnosis in April 2013, but both supervisors testified that they were never told of her diagnosis or treatment. The company never provided the plaintiff with FMLA certification paperwork or advised her of her right to request accommodations.

The two supervisors stated that the plaintiff's work performance suffered around the same time that her health issues developed. She allegedly was late for work 72 days in 2009, 53 days in 2010, 23 days in 2011, 75 days in 2012 and 32 days through May 2013.

In May 2013, the supervisors presented her with a performance memo outlining concerns about her attitude, excessive tardiness, failure to give adequate notice when taking extended paid time off and causing a difficult work environment. The memo stated that "failure to make the necessary changes will lead to further discipline, up to and including termination of employment."

The plaintiff told them she couldn't sign the memo because she knew her endometriosis would still occasionally cause her to miss or be late for work. She was fired shortly after. Both supervisors claimed she didn't offer a health reason or bring up her endometriosis when declining to sign.

The plaintiff filed a discrimination charge with the Equal Employment Opportunity Commission and later filed suit in federal court. She alleged that her employer discriminated against her under the Americans with Disabilities Act (ADA) by failing to accommodate her disability and firing her because she had a disability; interfered with her FMLA rights by failing to notify her of her rights; and fired her for intending to use leave allowed by the FMLA, thus retaliating against her. A federal district court granted summary judgment to the employer, and the plaintiff appealed.

Turning first to the plaintiff's ADA claims, the appeals court found that the plaintiff had not introduced sufficient evidence that she had a disability under the ADA. The court noted that the ADA considers an employee to have a disability if he or she has an impairment that substantially limits a major life activity.

Although the plaintiff claimed that her conditions substantially limited her ability to sleep, work and reproduce, the record didn't contain evidence of the timing, frequency and duration of her ailments, the court said, leaving it unable to assess whether she met the ADA's definition of disabled. Further, there was no evidence that the plaintiff was substantially limited in her ability to procreate because of these impairments during the time she worked for the employer. The court, finding that it could not say whether she had a disability under the ADA, upheld summary judgment for the employer on her ADA claims.

Examining the FMLA claims, the court noted that all parties agreed the plaintiff was eligible for FMLA leave and that her health conditions qualified her for such leave. The plaintiff claimed that her employer interfered with her rights under the statute by failing to notify her of her eligibility. The court found that because the plaintiff was not denied requested leave, she wasn't harmed by her employer's failure to notify her of her rights and there was no support for an FMLA interference claim.

Nonetheless, the court held that the plaintiff's FMLA retaliation claims—that her employer fired her in retaliation for her expressed need for future FMLA leave and refusal to sign the performance memo—should be heard by a jury.

The plaintiff presented an initial, or prima-facie, case that her employer retaliated against her for needing FMLA leave: She suffered an adverse employment action when she was terminated, she was engaged in statutorily protected conduct in stating that she would have an unforeseeable need for FMLA leave, and she showed a causal connection between her need for future FMLA leave and her termination.

Although her employer responded that she was fired due to "insubordination, ineffectiveness and her tendency to handle personal projects while at work," the plaintiff introduced evidence that would allow a fact-finder to conclude that these reasons were pretextual. Her supervisors' alleged statements when discussing the performance memo focused on her absences and tardiness, not her attitude or work habits, the court said. The proximity between disclosing her diagnosis and asking for future leave and her firing—37 days—was evidence of pretext, according to the court. Finally, the supervisors' alleged repeated comments about the length of the plaintiff's illness suggest that they believed she was misusing sick leave or faking sickness, which could be viewed as further evidence of pretext.

In response, the employer urged the court to accept the truth of testimony given by the two supervisors as to what they said, although the plaintiff refuted each point in her testimony. "This we cannot do," the court concluded. "A reasonable jury might well adopt [the employer's] account of these material facts, but this court cannot resolve these disputes of fact on summary judgment."

Turning to the second FMLA retaliation theory, that the plaintiff was terminated for refusing to sign the performance memo, the court held that the plaintiff had introduced evidence that she reasonably believed her employer was engaged in unlawful practices by eliminating her right to FMLA leave. Her testimony that the supervisors said when she signed the memo she would not be able to be late or take leave and that they had threatened termination if she refused to sign indicated she "could have reasonably believed that signing the performance memo would cause her to lose her right to FMLA leave," the court said.

Concluding that a jury could find that the plaintiff reasonably believed she was opposing practices made unlawful by the FMLA by refusing to sign the memo, the court reversed summary judgment on the retaliation claims and sent them back to the district court for further consideration.

Munoz v. Selig Enterprises Inc., 11th Cir., No. 18-14606 (Dec. 4, 2020), petition for rehearing denied (Feb. 9, 2021).

Professional Pointer: In situations when an employer covered by the FMLA is told directly or has reason to believe that an employee has the need for accommodations related to a health condition, it should notify the employee of his or her rights to leave under the statute.

Rosemarie Lally, J.D., is a freelance legal writer based in Washington, D.C.

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