Labor & Employment Law Daily Child-protection charges against HHS director prompted termination proceedings, not intervening leave request
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Thursday, May 7, 2020

Child-protection charges against HHS director prompted termination proceedings, not intervening leave request

By Marjorie Johnson, J.D.

While the county board’s decision to hold a previously delayed meeting to decide whether to terminate her was “perhaps insensitive in light of the recency of her surgery,” it did not amount to “intolerable working conditions” sufficient to constitute a constructive discharge.

A county health and human services director who requested FMLA leave for surgery while she was on involuntary PTO pending the results of a child-protection investigation prompted by her husband’s arrest for criminal sexual assault of their eldest daughter, and who then elected to retire a day before the county board convened to decide her fate after a determination was returned against her for “threatened sexual abuse” of her minor children, failed to convince the Eighth Circuit to revive her FMLA lawsuit. The evidence did not suggest that there was any interference with her FMLA rights, that she had been constructively discharged, or that her FMLA request was causally related to the board’s decision to proceed with the previously delayed meeting regarding her employment status, the court ruled in affirming summary judgment in favor of the county (Thompson v. Kanabec County, May 5, 2020, Erickson, R.).

Hired by the county in 1991, the employee had served as its director of public health for 25 years and its health and human services director for the last 10 years. Any decision about her employment required a majority vote of the five-person county board to which she reported. A county coordinator managed day-to-day personnel operations and advised the board on issues as they arose but lacked termination authority.

Child-protection investigation. On September 28, 2016, the employee’s husband was arrested in another county and charged with criminal sexual assault after the couple’s eldest daughter of eight children, who was estranged from the family, reported that her father had sexually abused her years earlier. That county also opened a child-protection investigation, which as to the employee pertained to “threatened sexual abuse” of her minor children who still lived at home.

Board delays termination decision. On October 4, her county employer learned about the investigation, placed the employee on paid administrative leave, and began its own internal investigation. During a closed meeting with the board on November 2, the county’s attorney recommended that she be terminated, but the board chose to delay its decision pending a determination in the child-protection investigation. The county coordinator communicated the decision to the employee and advised her that her paid administrative leave status was changed to paid time off (PTO).

Maltreatment finding day after FMLA request. On November 21, the employee notified the coordinator that she needed to undergo surgery “in the near future.” The next day, she received notification that a determination of maltreatment had been issued against her for “threatened sexual abuse” and that as a mandatory reporter, she had an obligation to report her eldest daughter’s previous allegations of sexual abuse to authorities.

On December 7, she notified the coordinator of that determination and her request for reconsideration. That evening, he told her that the board had scheduled a special session regarding her employment for December 16, and that it would allow her to resign in lieu of termination. She responded that she did not know why she would be terminated and informed him that her surgery was scheduled for December 12 and that she would require four weeks of leave thereafter.

Email accuses her of “playing games.” The board cancelled the December 16 special session due to her upcoming surgery. In an email to outside counsel, the coordinator accused her of “playing games” and expressed confidence that the board would grant him the authority to execute a “resignation/termination” resolution that he had previously asked counsel to draft.

Elects to retire. On December 16, the employee’s request for reconsideration of the maltreatment determination was denied. On December 19, she received a notice stating that the board would address her employment status during a closed meeting on December 21. She ultimately submitted a letter of retirement on December 20.

No FMLA interference. The Eighth Circuit declined to revive her FMLA interference claims, ruling that she failed to show she suffered prejudice resulting from the county’s delay in acting on her FMLA request or failure to give her notice of her FMLA rights since she was already on PTO when she requested FMLA and remained on PTO until she resigned. She also failed to support her claim that the county imposed work-related duties upon her that materially interfered with her medical leave. Rather, she was prohibited from performing such tasks when she was placed on leave pending the child-protection investigation. Moreover, the activities that she was asked to do related to that investigation, her FMLA request, and her employment status.

Email not direct evidence. Noting that her FMLA retaliation claim was “more properly characterized” as a discrimination claim, the court also found that the county coordinator’s email did not constitute direct evidence. Even if his comments in the email demonstrated a bias regarding her FMLA request, he did not have any decisionmaking authority since only a majority vote of the board could terminate her employment.

No constructive discharge. The employee also failed to demonstrate that she was constructively discharged. While the county’s actions were “perhaps insensitive in light of the recency of her surgery,” they did not amount to “intolerable working conditions” at the time she resigned. Rather, she had been on leave for over two months pending a determination in a child-protection investigation, during which time the board delayed a decision about her employment status. The coordinator also advised her as early as December 7 that the board would allow her to resign and when she asked if termination and resignation were her only options, he said they were not. The day before the board was to meet about her employment status, she elected to retire.

No causal connection. There was also no causal connection between her FMLA request and the board’s choice to move forward with its meeting. “An employee’s request for FMLA does not insulate her from employment decisions that are based on reasons other than FMLA usage” and if an employer shows that it would have terminated an employee despite the exercise of their FMLA rights, it will not face liability. Here, the employee was entitled to “no greater protection against termination for reasons unrelated to the FMLA than she did before taking the leave,” and the undisputed sequence of events did not demonstrate a causal link between the board’s actions and her FMLA request.

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