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Excluding evidence of an employer's past treatment of employees who had taken leave under the Family and Medical Leave Act (FMLA) was not an abuse of discretion because the past practices were not sufficiently similar to a plaintiff's FMLA interference claim, according to the 10th U.S. Circuit Court of Appeals.
In 2013, an anonymous caller contacted SAIA Motor Freight Line LLC, a national freight transporter, with information that one of its employees, William Gaige, had an undisclosed conflict of interest. SAIA proceeded to investigate the matter. While the investigation was ongoing, Gaige suffered an injury and requested FMLA leave. The company approved his request but continued to investigate the reported conflict of interest. Ultimately, SAIA concluded that a side business registered to Gaige's wife was a conflict of interest that violated company policy, and which warranted termination. While he was still on FMLA leave, SAIA terminated Gaige's employment.
[SHRM members-only toolkit: Coordinating Leaves of Absence]
Gaige brought suit, alleging interference with his FMLA rights. At trial Gaige demonstrated that he was entitled to FMLA leave and suffered an adverse employment action, which shifted the burden to SAIA to demonstrate that Gaige's termination was unrelated to his leave.
After the company asserted that he was terminated for his conflict of interest, Gaige attempted to argue that the policy violation was pretextual grounds for interfering with his FMLA rights. To support his argument, Gaige tried to offer the testimony of three former SAIA employees who were prepared to testify about SAIA's treatment of other employees who took FMLA leave in the past. However, after applying Federal Rule of Evidence 403, the district court precluded the testimony, finding that the probative value of the evidence, even if relevant, was substantially outweighed by unfair prejudice. Ruling that the district court acted within its discretion, the 10th Circuit affirmed.
The circuit court stated that there must be a "logical nexus" between the past practices and Gaige's claim in order to be able to offer those past practices as evidence. The appeals court named three important factors to consider when comparing a prior incident to a present claim:
The circuit court reviewed the testimony of the three witnesses and determined that none of their situations had been sufficiently similar to Gaige's when he was terminated. Two of the three incidents involved employees with different supervisors and in different regions than Gaige. The third witness, also employed in a different regional office, intended to testify that it was SAIA's policy to terminate employees on FMLA leave. Making no factual finding on that assertion, the circuit court stated that it would be unfair to permit such testimony because Gaige was not employed by those regional offices.
Gaige v. SAIA Motor Freight Line LLC, 10th Cir., No. 15-6191 (Nov. 29, 2016).
Professional Pointer: While the company prevailed in this case, employers must remain vigilant to ensure that enforcement of their leave and disciplinary policies and practices remains consistent or else run the risk that damaging and arguably prejudicial evidence may be admitted in court if a worker files a lawsuit.
Steven F. Ritardi and Philip A. Portantino are attorneys with Carmagnola & Ritardi LLC, the Worklaw® Network member firm in Morristown, N.J.
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