Employment Law Daily Employee with disabled son advances FMLA interference, associational discrimination claims
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Monday, September 17, 2018

Employee with disabled son advances FMLA interference, associational discrimination claims

By Ronald Miller, J.D.

Finding  genuine issues of fact on a fired employee’s FMLA interference and NYCHRL associational discrimination claims, a federal district court in New York denied an employer’s motion for summary judgment. Because an assistant director rejected the employee’s FMLA leave requests outright, a reasonable jury could find that the employee was relieved of any duties to provide further information. Further, because one of the reasons for the recommendation that the employee be terminated was her absences to care for her “disabled son who tends to have frequent medical issues,” the court concluded that a reasonable jury could find that the employer discriminated against the employee because of her association with her son. However, the employee’s FMLA retaliation claim failed where there was no evidence linking the decision to terminate her employment to her exercise of FMLA rights (Ladepo v. United Cerebral Palsy of New York City, Inc., September 12, 2018, Broderick, V.).

Leave requests to care for son. Prior to the alleged requests at issue in this litigation, the employee had requested and was approved for FMLA leave on two occasions in 2008 and 2013. Thereafter, she allegedly requested FMLA leave again on multiple occasions in 2014 to take care of her son, who suffered from seizures. During the first week of February 2014, the employee allegedly called the assistant director to request time off to take her son to the hospital after he suffered a seizure. In response, the assistant director angrily told the employee to “get someone else to care for son.” However, the employee’s request was granted after several minutes of pleading.

The employee’s son had another seizure during the third week of February, which caused him to suffer a fracture in his face requiring surgery the next week. Again the employee asked the assistant director for three days of FMLA leave and asked him to provide paperwork for the request. The assistant director stated that he would not approve any leave because there was not enough staff to cover for the employee.

In March 2014, the employee requested leave for two days for her son’s medical testing. The assistant director told her that she needed to find another person to take care of her son and denied her leave request due to lack of staff to cover for her. The employee again requested FMLA leave in June 2014 after her son had another seizure, but she was again denied and was forced to miss several days of work to care for her son. Finally, on July 4, 2014, the employee’s son had a seizure that required the employee to stay with him in the hospital for three days. When the employee returned to work, she provided the assistant director with her son’s medical documentation. The assistant director allegedly refused to look at the medical documentation, told the employee to find someone else to care for son, and denied her request for FMLA leave.

However, the employer disputed whether the employee made these requests. According to the assistant director, the employee never made a request for FMLA leave to him in 2014, never provided him with any completed FMLA leave request forms or medical documentation, and never complained to him about any denial of FMLA leave. Moreover, the son’s medical records did not reflect that the employee requested any providers to complete any FMLA paperwork or medical certification forms.

Disciplinary action. On the other hand, the employer submitted a list of 16 purported occasions that the employee was disciplined and/or counseled during her tenure. The parties agreed that on one occasion, the employee was reprimanded for failing to administer medication to residents. On three occasions, she was counseled or reprimanded for other misconduct, including refusing to be interviewed by an investigator, failing to complete a written record tracking patient care, and leaving a medication key unattended. On four other occasions she was counseled or reprimanded for yelling about coworkers in front of residents, yelling about a job assignment in front of residents, and failing to chart a resident’s care. The employee was also reprimanded for insubordination. Additionally, the employee was purportedly counseled on various occasions for attendance issues.

On May 13, 2014, it was recommended that the employee be terminated based on insubordination and “inability to manage her emotions and remain professional in from of residents.” On June 30, 2014, the same day management met with the employee about her absences, an email was sent recommending termination of the employee. On July 10, three days after the employee returned from her absence due to her son’s seizure and resulting hospital stay, the employee was terminated, allegedly for poor job performance and insubordination.

Following of an internal grievance through her union, the employee filed suit alleging FMLA interference and retaliation, as well as associational discrimination under the NYCHRL. In response, the employer filed a motion for summary judgment.

FMLA retaliation. With respect to the employee’s FMLA retaliation claim, the employer argued that she failed to establish a prima facie case. Although the employee’s unexcused absences were alleged caused by the assistant director’s denials of her FMLA requests, the court found that her FMLA retaliation claim failed where there was no evidence linking the decision to terminate her employment to her exercise of FMLA rights. First, the June 30 email specifically referenced the employee’s “unexpected call outs,” as well as her “history of poor work performances” as the basis for the desire to terminate her employment. Similarly, the May 13 email recommending her termination did not reference her requests for FMLA leave. Rather, it cited her “unruly behavior” and “inability to manager her emotions and remain professional.” In addition, the employee did not dispute that she was counseled and/or disciplined on numerous occasions throughout her employment. Accordingly, the court found that she failed to introduce sufficient evidence to create a genuine issue of fact with respect to whether the employer terminated her under circumstances creating an inference of retaliatory intent.

FMLA interference. The employer did not contest that the employee met the first and second prongs of the standard to establish FMLA interference. Rather, it argued that the employee’s interference claim failed because: (1) she did not provide the employer with notice of her intention to take FMLA leave; (2) the employer did not deny her benefits to which she was entitled because she never submitted FMLA forms or medical certification; and (3) the employee’s termination was motivated only by legitimate reasons.

Here, the court observed that the critical question was whether information imparted by the employee was sufficient to apprise the employer of her request to take time off for a serious health condition. Given evidence that the assistant director rejected the employee’s FMLA leave requests outright when she initially made them, thus preventing her the opportunity to provide medical documentation or comply with employer’s customary notice procedures, the court concluded that a reasonable jury could find that the employee was relieved of any duties to provide further information. Additionally, a reasonable jury could find that the employer’s purported denial of the employee’s FMLA requests constituted a denial of benefits under the FMLA.

Associational discrimination. Further, the court disagreed with the employer’s contention that the employee failed to establish a link between her son’s medical condition and her termination sufficient to show that there was any discriminatory motivation. The June 30 email clearly indicated that one of the reasons for the recommendation that the employee be terminated was her absences to care for her “disabled son who tends to have frequent medical issues.” Thus, the email established a link between the employee’s termination and her absences, which the employer knew were at least partially a result of her need to care for her son. Accordingly, a reasonable jury could conclude that the employer discriminated against the employee because of her association with her son.

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