Employment Law Daily Close proximity between employee’s military leave notice and firing shows retaliation
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Wednesday, January 10, 2018

Close proximity between employee’s military leave notice and firing shows retaliation

By Ronald Miller, J.D.

In view of the fact that an employee notified his supervisor of his need for leave for military training, and he was terminated before he could return from his annual leave, a federal district court in Florida concluded that a reasonable jury could find that the employer engaged in retaliatory conduct by terminating the employee. The court observed that the employee was in the process of exercising his rights under § 4312 of USERRA when he was terminated. The close temporal proximity between providing notice of his leave and his termination provided the requisite discriminatory motive for a USERRA retaliation claim. The employee also survived the employer’s motion for summary judgment on his FMLA retaliation claim. However, the motion was granted against his USERRA discrimination, FMLA interference and race discrimination claims (Washington v. Blue Grace Logistics, LLC, January 3, 2018, Whittemore, J.).

The employee was a Navy reservist who worked for the employer as a sales representative. To take off work, he was required to obtain permission from supervisor. On March 7, 2016, he provided written notice of annual military leave for March 14 through March 25, 2016. On the last business day before his military training, the employee was placed on a performance plan. That same day he notified his supervisor that he had a personal emergency and would need the remainder of the day off. On March 18, while the employee was on military leave, he filed a charge of discrimination with EEOC. On March 23, he submitted a request for FMLA leave for June 13 through July 29. On March 25, he was terminated. This action followed.

The employee sued his employer for violation of USERRA, the FMLA, Title VII, and the Florida Civil Rights Act. In response, the employer moved for summary judgment.

USERRA violations. As an initial matter, the employee brought claims for discrimination and retaliation in violation of USERRA. First, he alleged a failure to promote and failure to return him to his previously held position. To establish a prima facie case of discrimination, the employee had to show by a preponderance of the evidence that his status as a reservist was a substantial or motivating factor in the employment action. In this instance, because the employee failed to respond to the employer’s motion for summary judgment with respect to those allegations, those claims were deemed abandoned.

USERRA retaliation. An employer who takes adverse action against an employee who exercises a right under USERRA has engaged in retaliatory conduct unless the employer shows it would have taken the action in the absence of the employee’s protected activity. The “but-for” test utilized in USERRA discrimination cases is utilized in USERRA retaliation cases. The requisite discriminatory motive for a USERRA retaliation claim can be inferred from a variety of circumstances.

Here, the employee contended that his participation in his annual military training was a motivating factor in his termination, pointing to the close temporal proximity between providing notice of his leave and his termination just two weeks later. On March 7, the employee notified his supervisor that he was required to attend two weeks of annual training. He took his training, but before he could return, he was terminated. The employee was in the process of exercising his rights under § 4312 of USERRA when he was terminated. Moreover, the temporal proximity between his exercise of those rights and the adverse employment action was “very close.” Thus, a reasonable jury could find that the employer engaged in retaliatory conduct by terminating the employee 18 days after he notified his supervisor of his annual training and while he was completing that training.

FMLA retaliation. The employee also asserted that the employer retaliated against him by terminating his employment two days after he requested FMLA leave for a surgical procedure. Under the FMLA, a plaintiff must show that (1) he engaged in activity protected by the FMLA; (2) he suffered an adverse employment action; and (3) the employer’s decision was causally related to the protected activity. Protected activity under the FMLA includes a pre-eligible request for post-eligible leave. Here, the employer contended that the employee did not engage in statutorily protected activity. The evidence showed that the employee submitted a “pre-eligible request for post-eligible leave.” He therefore engaged in protected activity. It was also undisputed that he was terminated two days after requesting FMLA leave. Consequently, court found that the close temporary proximity between the request for FMLA leave and termination was more than sufficient to create a genuine issue of material fact of causal connection.

To prevail on summary judgment, the employer had to present legitimate, non-retaliatory reasons for terminating the employee. Here, the employer contended that the employee was terminated for poor job performance and job abandonment. However, the court concluded that a reasonable jury could find that those reasons were pretextual, considering work related text messages exchanged between the employee and his supervisor after the purported job abandonment and that he was place on a PIP, which presumably would have begun when he returned from his annual military training. Accordingly, summary judgment was denied on the employee’s FMLA retaliation claim.

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