In addition to requiring employers to accommodate employees requesting covered family or medical leaves, the federal Family Medical Leave Act (FMLA) prohibits retaliating against an employee for exercising FMLA rights.
The United States Court of Appeals for the Fifth Circuit recently issued two decisions, Lindsey v. Bio-Medical Applications of Louisiana, L.L.C., and Campos v. Steves & Sons, Incorporated, which highlight the robustness of the FMLA’s anti-retaliation provision, simultaneously emphasizing to employers the importance of avoiding retaliatory conduct under the FMLA.
Factual Background of Lindsey v. Bio-Medical Applications of Louisiana, L.L.C.
In the Lindsey case, the employee worked as a staff registered nurse for 17 years. She received promotions over that time, including elevation to the position of Clinic Manager, a position she held for nine years. Her performance reviews during her tenure were uniformly laudatory for 15 of those years.
As described in the Court’s opinion, “things changed after a series of personal tragedies forced (the employee) to take FMLA leave in 2016.” In response to her FMLA request, the employer approved leave for eight weeks. Even while on leave, the employee continued to perform some of her work responsibilities by email and text messages.
When the employee returned from her leave, she participated in a meeting with her supervisor and a coworker, where the coworker suggested “distribut[ing] medication that came in for deceased patients to other patients.” The employee formally objected to that suggestion as “illegal and unethical.” On that same day, the employee’s supervisor issued to her a Corrective Action Form about her work attendance, the first disciplinary action ever taken against her in her 17-year tenure. The notice contained certain general criticisms, but did not provide specific dates or times about any alleged attendance failures.
Four months later, the supervisor issued a second Corrective Action Form, characterizing this action as a Final Written Warning. This form identified three specific incidents of absenteeism. The employee objected to this action and refused to sign the Form. She later complained to a manager that she believed she was “being written up as part of returning from a leave of absence.”
Two months after that, the employee received a performance evaluation that rated her as “needs improvement,” the lowest rating she had ever received in her entire tenure. Her employment was terminated shortly thereafter, following a claim by the employer that she was absent from work without a legitimate excuse. In response, she sued under the FMLA, claiming (in part) unlawful retaliation for taking FMLA leave.
Factual Background of Campos v. Steves & Sons, Incorporated
The employee in the Campos case was hired as a welder in 2008. He was later promoted to a more physically demanding job requiring standing, walking, sitting, and lifting objects of up to 50 pounds. In 2015, the employee learned that he needed open-heart surgery. In contrast to the factual background of the Lindsey case, in this case there was a dispute over whether the employee properly notified the employer of the need for a medical leave, as to which the employer did not complete an FMLA Designation Notice as required by its procedures. There was also a dispute as to whether the employee properly notified the employer of his ability to return to work after a 12-week recuperation.
The employee ultimately returned to work in late October, but was determined by the employer not to be qualified to return to his former position; the employer likewise determined that there was no alternate position available for the employee. There was also evidence to indicate that the employer had expressed concern over the employee’s repeated FMLA leave requests, following a prior extended FMLA leave. The employer terminated the employee’s employment within one month after his return.
Applicable Legal Standard
In each case, the Court identified the applicable legal standard for evaluating FMLA retaliation claims, which includes a three-part test concerning:
- Whether the employee engaged in a protected activity;
- Whether the employer discharged the employee, and
- Whether a causal link existed between protected activity and discharge.
Results of Each Case
In each of these cases, the lower court granted judgment in favor of the employer as to the FMLA retaliation claim. In each case, the Court of Appeals reversed that judgment.
Result in Lindsey v. Bio-Medical Applications of Louisiana, L.L.C.
In the Lindsey case, the Court proceeded immediately to consider the “pretext” factor, given the lower court’s determination that each side had satisfied her or its burden as to steps 1 and 2 of the three-part test. The Court determined that judgment for the employer was improper because of genuine issues of fact as to whether the employer’s stated reasons were pretextual.
The Court particularly noted that the employer’s stated reasons for termination were “unworthy of credence,” including the facts:
- That the employee received the first “write-up” of her 17 year career within three weeks of returning from FMLA leave,
- That the first Corrective Action Form given to her failed to identify a single date that she was alleged to have been absent (coupled with the fact that her supervisor could not identify any days or hours she did not report for work);
- That the second Corrective Action Form given to her listed only three incidents (one of which supposedly occurred when her attendance was improving, and another of which occurred while she was ill); and
- That her termination notice listed only a single date when management was unable to reach her.
In finding a sufficient basis for the lower court to conduct a full trial on the merits, the Court concluded by noting that Ms. Lindsey’s employer had failed to follow its own progressive discipline policy.
Result in Campos v. Steves & Sons, Incorporated
In the Campos case, the Court determined that the reasons stated by the employer for terminating the employee’s employment were sufficiently challenged by the employee to demonstrate that the employer’s stated reasons for termination were “pretextual.” In doing so, the Court specifically noted:
- That the employee had arguably submitted a “compliant” release to work document;
- That the 30-day time period between expiration of the employee’s FMLA leave and the termination of his employment had occurred close enough in time potentially to qualify as retaliatory when combined with evidence identifying concerns expressed by Company management about the risk of the employee’s using excessive FMLA leave; and
- That the Company had failed to present sufficient information to demonstrate that it had actually offered an alternative position which the employee had refused.
In addition to reversing the employee’s adverse FMLA retaliation judgment, the Court noted in passing that the employee had also submitted evidence of inconsistencies in the employer’s submissions to the Equal Employment Opportunity Commission about its reasons for termination during the administrative phase of this case.
These two recent FMLA retaliation decisions highlight several hazards for employers in properly administering their FMLA leave plans, including lack of proper documentation and failure to follow established progressive discipline policies. These and other components of an FMLA leave regime must be established and enforced consistently to be effective. Jackson Walker’s employment lawyers can provide assistance with both creating and administering such leave policies to assist employers when addressing FMLA administrative obligations.
Lionel M. Schooler is a management-side employment lawyer and recognized authority on employment law, federal appellate practice, and arbitration. Lonnie’s employment practice focuses on counseling clients and litigating, on a nationwide basis, claims under all employment laws, workers’ compensation coverage issues, wage and hour claims, and investigations by the Equal Employment Opportunity Commission, the U.S. Department of Labor, and the Texas Workforce Commission. Lonnie is also experienced as an arbitrator on the Commercial and Employment Panels of the American Arbitration Association and as an advocate.
The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice.