An employer’s defense to a lawsuit brought under the Family Medical and Leave Act (FMLA) was derailed after a judge agreed there was enough evidence for a jury to find that the employer investigated an employee’s work performance to find a “legitimate” reason to fire him after that employee requested leave.
The case, Lankford v. Reladyne, LLC (11/19/2015 ), involved a sales representative who worked for Reladyne and its affiliated companies beginning in 2008 until he was fired in February 2014.
On January 28, 2014, Lankford requested a 35-day leave to attend an alcohol treatment program. Before the requested FMLA leave, the plaintiff had received positive performance reviews and denied using alcohol during work or having any performance issues related to intoxication.
While plaintiff was on leave, Reladyne investigated a January 14, 2014, complaint made by a delivery driver that plaintiff had provided free supplies to a customer. Reladyne ultimately concluded that plaintiff had misappropriated products by providing free oil changes to some of his family members.
Reladyne made the decision to fire plaintiff while he was on leave but waited until he returned to work to discharge him. Plaintiff filed a lawsuit contending, among other things, that Reladyne interfered with his right to take FMLA leave and fired him because he took the leave.
Overview of FMLA Interference and Retaliation Claims
Under the FMLA, employers are prohibited from interfering with an employee’s right to take leave or discriminating against an employee for taking leave. An employee may allege violations of the FMLA under two theories:
- The entitlement theory, also known as the interference theory, arises from the provision that it is “unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided” by the FMLA. 29 U.S.C. § 2615(a)(1); and
- The retaliation theory, sometimes referred to as the discrimination theory, is premised on Section 2615(a)(2) , which makes it “unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful” by the FMLA.
Evidence Could Support Retaliation and Bias
The federal District Court denied the employer’s summary judgment motion to dismiss the FMLA lawsuit. In reaching this decision, the court focused in on the following:
First, Plaintiff produced evidence that the decision to investigate his employment may have been at least partially because he took FMLA leave. Under applicable federal law, the U.S. Court of Appeals for the Sixth Circuit has found that such decisions constitute the denial of a benefit to which an employee is entitled. Accordingly, the court rejected Reladyne’s argument that plaintiff’s interference claim failed because he wasn’t “entitled” to continued employment after the alleged misconduct was discovered.
Second, Reladyne’s upper managers made the decision to terminate him two days after they were informed of his leave. While the company offered a legitimate, nondiscriminatory reason for firing him (misappropriated company products), the court concluded that this reason may have been a pretext for discrimination. In reaching this decision, the court noted:
- In response to an e-mail about plaintiff’s leave, a manager said, “[w]e have too many signs to ignore and not proactively address.” These e-mails about plaintiff’s FMLA leave were forwarded to the loss prevention director who investigated his alleged misappropriation. Thus, it could be inferred that the investigator “was tasked with proactively addressing [plaintiff’s] situation by providing a justification to fire him.”
- Six weeks before this email was sent, Plaintiff received a positive employment review, which noted that he exceeded expectations in every category. And his manager further noted that plaintiff was “dependable and reliable.”
- Furthermore, in a follow-up e-mail after the investigation, a manager wrote that they had “a nice Plan B.” And plaintiff’s supervisor stated that he wasn’t eligible for rehire because his personal life was “in ruins” and he appeared to be “high” in a meeting.
In sum, the court concluded that this evidence could allow a jury could conclude that the investigation and a related report “were part of a cover-up to make [plaintiff’s] termination appear legitimate.”
In light of this case, employers should zero-in on two points. First, FMLA leave issues are perhaps one the most challenging compliance issues employers face as this case illustrates. But the starting point for successfully managing such issues – as well as any employment related issues – is ensuring the integrity of an investigation. Here, however, too many “red flags” signaled that the employer’s investigation was only to support a decision to terminate the employee, as opposed to an independent, fact gathering endeavor.
Second, this case illustrates an issue we covered about employment reviews. See Rethinking Employee Performance Reviews. In that article, we noted that such reviews can be invaluable for showing an adverse employment decision was for legitimate reasons.
But failing to conduct meaningful employee evaluations can be used against an employer defending against a discrimination claim. That is what happened here – the employee went from being a “dependable” and “reliable” employee that exceeded expectations to being fired within a six-week period. Such circumstances, as they did here, can create questions of facts that allow a discrimination claim to go to trial.
For more information about the FMLA, including addressing leave issues or disciplining employees who have requested FMLA leave, contact Michigan attorney Jason Shinn.