Family Medical Leave Act

The Fifth Circuit reversed summary judgment in another case recently. In Caldwell v. KHOU-TV Company, Inc., No. 16-20408 (5th Cir. 3/6/2017), the court addressed ADA and FMLA issues. Gerald Caldwell worked at KHOU TV as a video editor. Due to a childhood disease, he needed the aid of crutches for walking. Mr. Caldwell notified his supervisor he would need time off for upcoming surgeries.

About that time the parent company, Gannett Company notified KHOU that the station needed to reduce their work force. One worker was chosen for lay-off based on documented poor work performance. That editor was given prior warning about his performance. Mr. Caldwell received no such warning. Mr. Caldwell was also chosen. The supervisors initially said he was chosen because he had expressed an unwillingness to work in EDR. Later, in its motion for summary judgment, the employer argued that Mr. Caldwell had not taken the initiative to spend as much time in EDR as the other editors.

Mr. Caldwell filed suit based on the ADA and the FMLA. The employer moved for summary judgment, which was granted. On appeal, the Fifth Circuit reversed the summary judgment. The court found there was substantial evidence of pretext. The employer provided different reasons for selecting Mr. Caldwell for the RIF. The employer first claimed Mr. Caldwell shirked his responsibilities by refusing to do the EDR work he had been assigned. The employer provided this expansion in answer to interrogatories and in a letter to Plaintiff’s attorney. But, in a letter to the EEOC, the employer said he was terminated not because he avoided work, but because of his inability and unwillingness to adjust to new technologies. And, before the district court, KHOU argued that Caldwell did not take the initiative to spend as much time in EDR as other editors. And, contrary to all this evidence, the direct supervisor, Philip Bruce, said “absolutely” there were no job performance issues with Mr. Caldwell. These statements, said the higher court, indicated inconsistent explanations, so as to show genuine issue of material fact.

The lower court had looked at the same evidence and discounted it. The district judge found that many of these statements were not made by Mr. Bruce, the direct supervisor. But, the court of appeals noted that no precedent required that all explanations emanate from the direct supervisor. On the contrary, many cases cite articulated reasons from the employer as a whole. The court cited Burrell v. Dr. Pepper/Seven Up Bottling Group, Inc., 482 F.3d 408 412-13 and n. 11 (5th Cir. 2007) for the proposition that simply stated, an employer’s inconsistent explanations for its employment decisions at different times are probative of whether those statements are pretextual and that cases do consider statements by the employer’s representatives before the EEOC, before the district court and the Fifth Circuit. And, that makes sense. The employer sues the “employer,” after all, not individual supervisors.

The higher court noted that the employer’s explanation had evolved from insubordination to a lack of initiative. Mr. Caldwell himself denied ever expressing a preference for or against EDR. The plaintiff’s supervisors also confirmed they did not recall the plaintiff ever expressing a preference against working in EDR. The employee also testified, and the supervisors confirmed, that it was ultimately the employer’s decision to limit his time in EDR, suggesting the employer was not truthful.

[Note: It is always unwise to try to mislead the court. Judges remember that. It will affect the rest of their decisions. That the supervisors apparently disagreed with the company’s  representative seriously undermines any case.]

The higher court also discussed the lack of opportunities for the disabled worker. The court compared not affording employment opportunities to black workers to not providing opportunities to Mr. Caldwell. The plaintiff had argued that the employer chose not to schedule him time in EDR. The lower court had found that he was not scheduled more time in EDR due to his disability. The Fifth Circuit found that lack of opportunity comparable to a case, Vaughn v. Edel, 918 F.2d 517 (5th Cir. 1990), in which an African-American woman was not given the chance to improve her work performance, because the employer did not counsel her about performance problems. In Caldwell, the court said this situation was similar because KHOU did not give Mr. Caldwell time to work in EDR and improve his technical abilities. This lack of time also indicated that the employer did not counsel Mr. Caldwell and warn him that he should spend more time in EDR.

The higher court also reversed summary judgment regarding Plaintiff’s FMLA claim. See the decision here.

This is the last in a series of cases dating back some three years in which the Fifth Circuit has reversed summary judgment. The most common problem in that line of cases is the failure of the district court to construe facts in favor of the plaintiff. We hope district judges will make more of an effort to construe facts in favor of the non-movant, as they should.

Lamar Austin spent six months in Iraq in 2006 as an Ammunition Specialist. At the end of 2016, the Army veteran was working for Salerno Protective Services in Concord, New Hampshire. He had worked previously at a series of jobs, Target, Pitco, a New Hampshire based company that makes fryers for fast food businesses. He was still in his 90 day probation period at Salerno when his wife went into labor on Dec. 30. He called in to work telling them about his wife’s labor. The labor went a second day. The boss warned him that he had to come to work by 8:00 a.m. the next day, or else. When Mr. Austin did not appear for work on New Year’s Day, he was fired. They texted him that he was terminated.

His story appeared in the Concord, New Hampshire newspaper. See Concord Monitor news report. In the story, he mentioned that he would hope to find work in the electrical trades. He had had bouts of unemployment in the past. The International Brotherhood of Electrical Workers saw the story and offered him a job. See Task and Purpose report here about Mr. Austin. It worked out for the young Army veteran, this time. But, I wonder if the Family Medical Leave Act applied to him. if Salerno had over 50 employees, he would have been protected. But, otherwise, yes, they could have fired him for trying to take care of his wife.

The point of summary judgment is to dismiss cases that have no genuine chance of winning in front of a jury, or cases that a jury should not even hear. Summary judgment should result in dismissal of  cases that lack any real issue of fact. Why have a trial if there is no genuine issue? “Summary” means quick. So, if there is no real issue of fact, then it makes sense for the judge to decide the case quickly. But, at some point, some judges have hijacked the summary judgment motion to serve as a vehicle for judicial fact-finding. We see such an example in Wheat v. Florida Parish Juvenile Justice Commission, No. 14-30788 (5th Cir. 1/5/2016).

Lillie Wheat worked as a detention officer at a juvenile detention facility operated by the Florida Parish Juvenile Justice Commission. She rose through the ranks to Assistant Director of Female Services in 2008. In 2009, she took time off under the Family Medical Leave Act for surgery. She was terminated after her leave ran out. She filed suit for FMLA retaliation. She settled her claim and was reinstated to her old job in 2011. The Assistant Director position was filled, so she returned as regular officer but at her old, higher salary. After a couple of issues with juvenile inmates, Ms. Wheat was fired in 2012. She filed suit saying she was fired due to her gender – regarding an issues with a female juvenile inmate – and for FMLA retaliation.

Ms. Wheat advanced several claims for retaliation, a missed raise, the assignment of janitorial duties upon her return, and her request to be transferred away from a difficult juvenile inmate. The majority opinion actually refused to consider many of the retaliation incidents, but did address these three identified acts of retaliation. The majority opinion rejected the janitorial duties claim. Said the court, an “unsupported,” “bare bones” claim that janitorial duties is materially adverse to her career is not enough. The court was saying that her own claim that being assigned janitorial duties was harmful to her career was not enough. The claim lacks “contextual” detail to make that an adverse claim. That finding is counter-intuitive. If a relatively long-term employee like Lillie Wheat cannot testify to what is harmful to her career, who can?

Responding to the dissent, the majority added that there was no evidence that being assigned janitorial duties after being an Assistant Director constituted treating her differently than other detention officers. “Properly read, the record does not exclude the possibility that some ‘janitorial duties’ were expected of JDS officers generally – but especially those, like Wheat, who had just recently been hired or reinstated.” And, in that sentence, the court finds there is no way Ms. Wheat can allege the assignment was adverse.

The court then addressed her positive but late performance evaluations. Although it was positive, it stated that she would not receive a 4% pay raise. Noted the majority opinion, Ms. Wheat checked the box saying she reviewed and agreed with this rating. Ms. Wheat did not appeal this rating at the time. Again in responding to the dissent, the majority argued that the raise “may” have been affected by the lateness of the evaluation. So, that means the dissent agrees she might not meet her burden at trial regarding that factual issue. This possibility is not enough to create a dispute fact, said the majority.

The majority did agree that the termination itself is materially adverse. So, yes, that act does constitute actionable retaliation. Ms. Wheat did show she was treated differently regarding her prior issues with juvenile inmates. Some detention officers were discharged for mis-treating inmates, while others were not. So, the court reversed summary judgment regarding the termination itself.

In dissent, Judge Reeves of the Southern District of Mississippi noted that the majority opinion essentially draws available factual issues against the Plaintiff. For example, regarding the assignment of janitorial duties, Judge Reeves points out that her “bare bones” assertion should be enough. This is summary judgment, not trial. Ms. Wheat is a witness like any other. She also has a relatively long period of working at the detention facility. She is in a position to identify what is harmful to her career. Judge Reeves suggests that simple “common sense” suggests that being assigned janitorial duties when she is senior to many other workers is retaliatory. Or, as the judge explains, whether the janitorial duties were adverse to her is a strong enough issue that a jury should decide it. The dissent pointed to some decisions which explicitly found that a senior person being assigned janitorial duties constitutes negative treatment of that worker.

[Indeed, the majority opinion, seems to countenance that some persons would perceive this assignment as materially adverse when it acknowledges the “possibility.” The court’s use of the word “possibility” suggests a new standard for summary judgment, one that disregards “possible” factual issues. If “possible” facts are now excluded from summary judgment consideration, few cases will pass muster. Too, the disregard of her “unsupported” allegation ignores several cases that find plaintiffs are indeed competent to testify to their own observations. See, e.g. Tolan v. Cotton, 572 U.S. ___, 134 S.Ct. 1861, 1863 (2014); Jacobs v. N.C. Administrative Office of the Courts, 780 F.3d 562, 569 (4th Cir. 2015); Burton v. Freescale Semiconductor, LP, No. 14-50944 (5th Cir. 8/10/2015).]

The dissent pointed out that the Fifth Circuit in Wilson v. Monarch Paper Co., 939 F.2d 1138, 1145 (5th Cir. 1991), found the assignment of a white collar executive to janitorial duties to be retaliatory. But, now, when  this same issue concerns a blue collar executive, the same court finds that no, this treatment was not retaliatory. In a judicial version of a snit, the dissent described the majority’s view as “we-don’t-know-what-janitorial-duties-really” means.

I have to say that phrase is accurate. What sort of evidence is needed to address what janitorial duties mean? Some judges appear to lack experience with real jobs, with real consequences. I am also concerned that the Fifth Circuit seemed to fault the employee in some way for not objecting to her performance evaluation or for not appealing it. Workers who have returned to work as she returned are under a magnifying glass as it is. The majority opinion seems to expect her to disregard the scrutiny and pretend she is a normal worker. That is asking too much from someone who must bring the bread home everyday. All workers tolerate difficult issues from their bosses. Workers who return to work after a lawsuit may have to tolerate even more abuse. It flies in the face of economic reality to expect Ms. Wheat to object to every possible issue. This is a poorly reasoned opinion. See decision here.

Under the Family Medical Leave Act, a mother or father can take 12 weeks of unpaid leave to care for a sick child. But, the FMLA does not apply to employers with less than 50 workers and it does not apply to part-time workers. The FMLA has limits. It does not apply to many workers. Actual paid parental leave is even more rare. Only some 12% of American employees work for a company that offers paid parental leave.

Unfortunately, when compared to other countries, the USA is way behind. Huffington Post has produced a handy chart that shows the disparity. See the Huffington Post here. In fact, just looking at maternity leave, the USA rates as the worst in the world, tied with Lesotho and Swaziland. Wow.

I try to warn clients all the time that juries are fickle. A party can have the best evidence and still lose. One recent case illustrates that reality. In Alexander v. Servisair, LLC, No. H-12-817 (S.D. Tex. 2013), the plaintiff alleged that she had been terminated for pursuing her rights to sick leave under the Family Medical Leave Act. Darlene Alexander was out on extended FMLA leave when the employer fired her. The employer claimed she had failed to return to work and had abandoned her job. Yet, she had submitted the proper FMLA paper work and had been approved for leave. The case ought to be "open and shut." The employer fired her for a clearly false reason while she was still out on FMLA leave. 

After a two day trial, the jury found that the employer did indeed interfere with the employee’s attempt to take leave. It found the employer did not act in good faith in dealing with the employee’s request for sick leave. Yet, the jury awarded a mere $1 in damages. 

The employee presented undisputed evidence that she had lost $37,000 in income due to the employer’s termination. The jury found the employer did not act in good faith in terminating Ms. Alexander. So, it should have awarded liquidated damages equal to the amount of the lost pay. So, the jury should have awarded $37,000 twice, once for lost pay and once for liquidated damages. And, the employer presented no evidence suggesting the plaintiff did not mitigate her damages. Yet, the jury only awarded $1 in damages. It is a crazy verdict that makes little sense. 

Responding to a motion by the plaintiff, the judge later awarded $37,000 in lost pay and another $37,000 in liquidated damages. The judge also awarded some $92,000 in attorney’s fees. The judge, in effect, rectified the jury’s error. But, the employer has appealed. 

We like to think that juries consider carefully each case that comes before it. But, in reality, many jury members do not wish to be in court. They have many other obligations. Perhaps, some jurors traded a vote of "Yes" on a couple of questions, so they could all go home more quickly. That is so unfortunate. Jury duty is one of our hallmarks as citizens of a great Republic. We need to give jury duty the respect it deserves. 

Alan Demyanovich worked for 20 years for Cadon Plating & Coating, which applies coatings in the automobile industry. Mr. Demyanovich developed heart problems in 1999, but returned to work and worked another ten years. In 2009, his heart condition worsened. He took substantial time off. In February, 2010, he again asked for FMLA leave. His boss believed they did not have enough employees to qualify for FMLA coverage, so he denied the request. He told Mr. Demyanovich that he was a "liability." Later that evening on Feb. 23, the boss told the worker that he was terminated.

One would think that based on timing alone there would be sufficient evidence to deny summary judgment. But, the district court granted summary judgment. The plaintiff appealed and won. The Sixth Circuit found that the stated reasons for the termination, 1) that Mr. Demyanovich was permanently disabled and 2) he was subject to termination because he had he’d been absent beyond the limit allowed by the employer, were not true. 

Regarding the ADA claim, the court found that the only evidence that Cadon could accommodate the worker was Mr. Demyanovich’s own testimony. The lower court apparently believed that the plaintiff needed something more than his own testimony. 

But, said the Sixth Circuit, the employer could not have known on Feb. 23 that Mr. Demyanovich might be permanently disabled. Indeed, said the court, the court should look at his disability at the time of the termination, not at the time of the plaintiff’s deposition. And, in actuality, the evidence suggested that the worker could perform various light-duty positions at Cadon. And, said the court of appeals, the Plaintiff has not actually dropped to a zero point attendance level, as provided in the employer’s own rules. Looking at the evidence from the non-movant’s point of view, as the court must, Mr. Demyanovich still had between one and two points left on the attendance point system. So, he was not actually subject to termination, yet. 

And, added the court, the term "liability" may well constitute direct evidence of intent to interfere with his FMLA eligibility. The Sixth Circuit ignored the lower court’s suggestion that Mr. Demyanovich needed something more than his own testimony regarding ADA accommodation. The higher court simply found there was sufficient evidence from which a reasonable jury could conclude that Cadon could have accommodated the plaintiff’s disability. The plaintiff was performing his duties satisfactorily at the time of the termination. 

See the decision in Demyanovich v. Cadon Plating and Coatings, LLC, No. 13-1015, 2014 WL 1259603 (6th Cir. 3/28/14) here

 The Family Medical Leave Act was passed twenty years ago this week.  To learn a little more about the FMLA, see this overview.  Or, you can see the Department of Labor’s summary of what the FMLA has done for American workers.  Its hard to believe now, but there was a time when workers could be fired for too many absences. 

The Family Medical Leave Act provides that an employee can take time off from work to care for a family member.  But, "caring" for a family member means the employee must be in close and continuing proximity to the family member.  So, the Fifth Circuit denied an appeal by a father who argued that frequent telephone calls to his daughter and wife regarding his daughter sufficed as "caring" for the daughter.  

The father was in Texas, while his wife was in Florida caring for their ill daughter.  The father had argued on appeal that frequent telephone contact over two weeks with his daughter satisfied the requirements of the FMLA.  Telephone contact, said te Fifth Circuit, does not satisfiy the proximity requirement.  See Baham v. McClane Foodservice, Inc., 011 US App. Lexis 13620 (5th Cir. 2011). 

Not that telephone "caring’ does not have some value, but really? 

Russ Cawyer posts about the coming demise of the so-called "no fault" leave policy, better described as fixed leave policies.  He notes that the EEOC has been aggressively pursuing companies who implement such policies.  Under these policies, once an employee has been out on leave for a certain length of time, the employee is terminated no matter the cause of the leave.  The problem with such policies is that they violate the requirement of the Americans with Disabilities Act for an individualized assessment of an employee’s need for leave.  I discussed these automatic leave policies previously here.  An employer maintains such policies at considerable risk.  They might work for Family Medical Leave Act or worker’s compensation reprisal cases, but they will not work for ADA claims.  

The EEOC held hearings on leave as an accommodation, a couple of weeks ago.  Public comments regarding leave as an accommodation may be sent to:  I typically only hear about the issue when some employee faces an issue with his/her employer.  But, sure, many employees are getting short shrift from too many employers when the employee is out on prottracted leave.  There is strong caselaw saying that too many absences render an employee unable to perform a key function of every job: attendance.  This is a misleading characterization, but the point remains, employees need to attend work in some way to perform the job.  

There is a middle ground, somewhere before the employee is out for a year or two but not before the employee has had an opportunity to recover from an ADA type illness.  The EEOC will attempt to find that middle ground when they issue new regulations regarding leave as an accommodation. 

Most cases currently find that absences of 1 year, 1,5 years are too long.  Once an employee has been out that long, many judges have found that he/she is not capable of performing a key function of every job, attendance.  If the employee cannot perform the function of attendance, then that employee is not entitled to accommodation.  But, how long is too long for an employee to be out?  Send your comments to:  The EEOC is working on regulations to provide needed guidance.  Government regs always work better when they have some grounding in real life. 

 A Detroit law firm requires secretaries to wear heels.  Until just a few years ago, they used teacups and saucers for coffee.  This is a traditional law firm.  One woman injured herself wearing heels.  Her heel caught on the carpet.  She hurt her back.  She had to take medical four times as part of her treatement. So, her employer, Honigman, Schwatrz, and Cohn refused to let her come back to work after her fourth medical leave.  See ABA Journal report.  They fired her. 

Denise Fitzhenry injured her back.  Now, she has sued for violations of the Americans with Disabilities act and the Family Medical Leave Act.  99% of the secretaries at Honigman are female.  She also alleges a hostile and degrading work environment for secretaries.  Her lawyer, Deborah Gordon, describes the law firm as very traditional.  They are like the "Mad Men," the television show, the lawyer explains.  Yes, I am sure…..