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Another Pro-Employee Fifth Circuit Decision: Employee’s FMLA Claim Survives Summary Judgment

Posted in Labor & Employment, Uncategorized

In another pro-employee decision, like its ruling in the Feist case that I analyzed last week, the Fifth Circuit overturned another district court’s grant of summary judgment that dismissed the plaintiff-employee’s FMLA claims. http://hr.cch.com/ELD/IonChevron.pdf  Here, the plaintiff-employee told his supervisor that he needed time off from work to be with his son who was having a difficult time following the plaintiff’s separation from his wife. A few days later, the company suspended the plaintiff for five days due to performance problems and taking long lunch breaks. The plaintiff claimed he was taking the long lunch breaks to spend time with his son.  He also claimed that he had previously informed his supervisors of the reason for them.

On the day he was scheduled to return to work from his five-day suspension, the plaintiff obtained a note from his doctor excusing him from work due to the stress from his separation from his wife.  He also called in sick for the next two days for the same reason.  At that time, his supervisor typed in an email that the employee “is playing games with us” and was looking for a corrupt doctor to disingenuously approve his FMLA leave. When the plaintiff visited the company’s nurses to execute his FMLA paperwork, the nurses felt threatened by the plaintiff, who was removed from the premises by the company fearing a violent outburst.  A report from a coworker also arose at that time claiming that the plaintiff told him that he had faked his supposed “overstressed” condition in order to obtain FMLA leave. After finally completing his FMLA paperwork, the plaintiff was terminated for several reasons including insubordination.

In overturning the district court’s ruling, the Fifth Circuit found a fact issue on the plaintiff’s FMLA retaliation claim.   The Fifth Circuit based its ruling on four primary reasons.  First, in the company’s termination letter to the plaintiff, it stated that  “[y]ou haven’t returned to work since your suspension.”  The court believed that this statement showed that the plaintiff’s absences could have been part of the reasons for the company’s decision to terminate his employment.  Second, the court determined that his supervisor’s email, quoted above, created a fact issue regarding whether the Company intended to prevent the plaintiff from taking FMLA leave and/or punish him for doing so.  Third, the Fifth Circuit also focused on the temporal proximity between the supervisor’s email, and the employee’s co-worker’s report that he faked his condition, and the timing of the company’s decision to terminate him.  Fourth, with respect to the faking allegation, the Fifth Circuit determined that the company should have conducted an investigation into the report or sought a second opinion from a medical professional into the true nature of his condition.

Here, the Fifth Circuit had ample evidence before it to uphold the district court’s grant of summary judgment: a violent employee, a good-faith belief the employee faked his condition and insubordination.  Nevertheless, the Court gave the plaintiff another day to fight for the reasons mentioned above. This decision provides two key takeaways for employers facing similar situations.  First, employers should pay particular attention to (i) arguably biased statements made in writing or emails and (ii) similar statements that may be objectively misconstrued by the trier-of-fact.  Judges and juries tend to place particular emphasis on them.  Second, when terminating an employee shortly after a request for leave, employers should carefully investigate and consider any potentially problematic documents, witnesses and facts that may exist and/or be discovered should the employee file a lawsuit. In the now infamous words of Walter White, in situations involving employee terminations shortly after they make requests for medical leave, employers should tread lightly. http://www.youtube.com/watch?v=x1iePhwzh30