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The Family and Medical Leave Act (FMLA) makes it unlawful for an employer to "interfere with, restrain, or deny the exercise of or the attempt to exercise" an individual's rights under the FMLA. However, according to at least one federal appellate court, an employee's use of the FMLA to avoid an anticipated firing is not a valid exercise of those rights.
The 1st U.S. Circuit Court of Appeals held that a termination decision made after numerous attempts to accommodate an employee's health issues but prior to that employee's formal request for FMLA leave was sufficient to support dismissal of the individual's FMLA retaliation claim.
Heidi Germanowski, an employee of the Berkshire Middle District Registry of Deeds in Pittsfield, Mass., for more than 10 years, claimed that her supervisor fired her because she requested leave protected by the FMLA. A federal district court dismissed her claim, and she appealed to the 1st Circuit, which upheld the dismissal.
During the initial years of her employment, Germanowski worked with another employee, Patricia Harris. In 2013, Harris became her supervisor. The relationship between the two began to deteriorate, with Germanowski claiming to experience "stress and anxiety accompanied by fatigue, hair loss, aches and gastrointestinal pain" that left her unable to work at times.
Harris allowed Germanowski to take time off, with pay, when Germanowski requested it.
In October 2014, Germanowski suffered a nervous breakdown at work. Subsequently, she made claims of mistreatment by Harris.
For Christmas that year, Germanowski received a sport pistol from her husband as a gift.
She informed Harris of the gift, as Harris knew of Germanowski's sport shooting hobby.
Harris expressed her discomfort with the gift, wondering whether Germanowski would carry the gun to work, though there was no evidence that she ever did or that she would have.
On Feb. 2, 2015, Harris left a message for Germanowski, directing her not to come to work on the following day, Feb. 3.
Fearful that her job was "in jeopardy," Germanowski sent an e-mail to Harris on Feb. 3, stating that she would be "out sick for the week" and that she was scheduled to visit her doctor.
[SHRM members-only toolkit: Coordinating Leaves of Absence]
On Feb. 5, Germanowski's doctor provided a letter advising her to take a medical leave of absence to pursue treatment. There is no evidence that the letter was provided to Harris or the employer.
The next day, Germanowski received a voice mail message from the chief court officer in which she was told that her employment was being terminated, effective immediately.
She sued Harris and the Commonwealth of Massachusetts, including a claim of FMLA violation.
The lower court dismissed all claims, including the FMLA claim, finding that Harris had no knowledge of Germanowski's intent to take FMLA leave and, therefore, could not have interfered in that right or retaliated because of it.
Germanowski appealed the dismissal to the 1st Circuit, which upheld the lower court's decision to dismiss the claims.
To support its dismissal of the claims, the 1st Circuit listed the actions that the employer had taken in the year prior to the firing, including those showing that Harris consistently accommodated Germanowski when she felt unable to work and that the absences allowed by Harris were not unpaid, nor were they counted against any available leave time.
While Germanowski argued that the proximity between her e-mail informing Harris she would be out sick for a week and her firing was sufficient basis for her retaliation claim, the court disagreed. Instead, it pointed out the "emotionally fraught and long-standing dispute" between Harris and Germanowski, the fear expressed by Harris about the possibility of Germanowski bringing a gun into the workplace, and the subsequent "lock out" of Germanowski based upon that fear. According to the court: "To think that an employer in such a case fired Germanowski because she asked for some time off while she was already locked out is to suggest that common sense borne of real-world experience has no role to play in the plausibility analysis."
Going further, the court quoted the lower court's view of the case that the "FMLA is not a tool an employee can use to delay or avoid a termination." Therefore, while there was evidence that Harris and Germanowski had a troubled working relationship and that Germanowski believed that Harris was "out to get" her, such evidence did not support a causal connection between the exercise of rights under the FMLA and a subsequent termination. In fact, according to the 1st Circuit, those facts mitigate against FMLA liability.
Germanowski v. Harris, 1st Cir., No. 16-1306 (April 12, 2017).
Professional Pointer: The salient issue for the court was that the FMLA does not protect an employee for every reason while she is on that leave or requesting it; the law protects her only from firing because she requests or takes the leave. Here, while there was evidence of an "emotionally fraught and long-standing dispute" between Harris and Germanowski, there was, according to the court, no evidence that Germanowski was terminated in retaliation for asserting her rights under the FMLA.
Maria Greco Danaher is an attorney with Ogletree Deakins in Pittsburgh.
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