Employee Fired for Investigating Supervisor Has Triable FMLA Claims

By Jeffrey Rhodes September 14, 2017
Employee Fired for Investigating Supervisor Has Triable FMLA Claims

A maintenance director at a nursing care facility could pursue his Family and Medical Leave Act (FMLA) claims to trial despite being fired for monitoring his supervisor's work attendance, the U.S. District Court for the Eastern District of Pennsylvania ruled.

Mid-Atlantic Healthcare LLC hired Louis DeCicco as the director of maintenance for Maplewood Nursing and Rehabilitation Center, which provides long-term nursing care and rehabilitation services. In January 2012, DeCicco's supervisor, Nursing Home Administrator Sarah Balmer, met with DeCicco and issued him a performance improvement plan. The plan stated that DeCicco was under review for not providing adequate training and mentoring to a subordinate, not resolving long-standing issues with security staff, failing to respond to facility phone calls, and not taking a more active role in resolving the facility's maintenance issues.

Around this time, DeCicco began monitoring Balmer's attendance at work. DeCicco reviewed Maplewood's camera footage and Balmer's timesheets and prepared his own logs of Balmer's absences from the facility. DeCicco was not authorized to investigate Balmer's attendance.

On May 9, 2012, Balmer issued a second performance improvement plan to DeCicco. That same day, DeCicco received a written warning for addressing an outside contractor in an unprofessional manner. He also received a verbal warning that same day for allegedly not keeping adequate stock of Maplewood's equipment, which resulted in the facility being short one bed.

On May 24, DeCicco requested FMLA paperwork from Maplewood Human Resources Director Stephanie Massey. DeCicco was the primary caregiver for his disabled father and intended to use FMLA leave to care for him. Massey provided the paperwork to DeCicco that same day. Massey's employment ended shortly after this interaction.

[SHRM members-only toolkit: Coordinating Leaves of Absence]

On June 15, DeCicco met with the newly hired human resources director, Caroline Eldridge, to discuss several issues. These issues included DeCicco's performance improvement plans, the "fraud" constituted by Balmer's alleged absenteeism and DeCicco's perceived lack of support from Mid-Atlantic. DeCicco advised Eldridge that he expected to be terminated. On June 18, DeCicco returned his FMLA certification of health care provider form to Mid-Atlantic's human resources department.

Later that evening, Balmer e-mailed John Fredericks, regional director of operations, stating that she intended to terminate DeCicco in two weeks. Balmer said three other Mid-Atlantic employees were in agreement with this decision. She wrote that she became aware that DeCicco was monitoring her attendance and her hours logged in at work and had been reviewing Maplewood's security camera footage. She stated that DeCicco was not the type of person she wanted working for her, that he had been on a performance improvement plan since January 2012 and that his statements that she "stole time" were "a lie."

On June 19, Balmer issued a final written warning to DeCicco regarding his failure to meet the requirements of the performance improvement plans and placed him on another performance improvement plan, which was set to expire on July 3. On June 20, DeCicco was terminated during a meeting conducted by Fredericks and the regional HR director. Balmer was not present during this meeting. DeCicco was 47 years old at that time. He was replaced by a man Mid-Atlantic claimed was 43 years old at the time of his hiring.

On May 22, 2014, DeCicco filed a lawsuit claiming age discrimination under the Age Discrimination in Employment Act and the Pennsylvania Human Rights Act, and claiming interference with his rights and retaliation under the FMLA. Mid-Atlantic moved for summary judgment on DeCicco's claims.

The court found that DeCicco was placed on various written performance improvement plans and given several warnings during his employment. He did not contest that he reviewed camera footage and Balmer's timesheets to conduct an independent investigation of her attendance record. DeCicco did so only after he was placed on a performance improvement plan. Based on this evidence, the court found that DeCicco failed to show that any of Mid-Atlantic's reasons for firing him were pretextual. Therefore, the court dismissed his age discrimination claims.

However, regarding DeCicco's FMLA claims, the court found that his FMLA request and completed application were so close in time to his final warning and dismissal that it was unusually suggestive of retaliation. Thus, the court denied Mid-Atlantic summary judgment on DeCicco's FMLA claims and allowed them to proceed to trial.

DeCicco v. Mid-Atlantic Healthcare LLC, E.D. Pa, No. 14-2933 (July 27, 2017).

Professional Pointer: Retaliation claims are now more prevalent than discrimination claims. Even if an employer has strong evidence of poor performance and misconduct, the employer may be held liable for retaliation if it takes adverse action soon after protected conduct occurs.

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


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