Labor & Employment Law Daily Focus on FMLA leave in draft of non-reappointment letter keeps new father’s case on track for trial
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Friday, February 28, 2020

Focus on FMLA leave in draft of non-reappointment letter keeps new father’s case on track for trial

By Brandi O. Brown, J.D.

Alongside a Title VII retaliation claim based on other events, the employee’s FMLA claims moved ahead unscathed, due in large part to the letter draft and discouraging comments made by one of his supervisors.

Citing evidence by which a jury could find a university employer violated multiple civil rights laws—including Title VII, New York state and city human rights laws, and the FMLA—when it decided not to reappoint a tenure-track professor, a federal district court in New York denied the employer’s motion for summary judgment in its entirety, Evidence that the professor’s use of leave after the birth of his child had played a role in the decision not to reappointment him and that he had been discouraged from using leave, alongside evidence that his participation in a coworker’s discrimination complaint was known to the decisionmakers, led the court to conclude the claims should move ahead to trial (Patel v. Long Island University, February 20, 2020, Garaufis, N.).

In 2012, the employee began working for Long Island University as a tenure-track assistant professor in its College of Pharmacy’s Division of Pharmaceutical Sciences. He was required to apply for reappointment annually until he went up for tenure in his sixth year. Each reappointment file went first to the director of his division for a recommendation, after which it would be reviewed by a committee and the college’s dean. The final decision would then be made by the Vice President of Academic Affairs. The professor’s first and second reappointments were granted.

Nobody takes this kind of leave. In late 2014, the employee requested leave related to the impending birth of his child. Although he was told that the employer would comply with the rules and regulations applicable to paternity leave, he was subsequently admonished by the Division’s Director that “nobody takes this kind of leave” and that it “could affect your reappointment and tenure.” He testified that he felt forced to return after that because he was concerned about his job. While the Director denied making that particular statement, he testified that he had expressed concerns about the professor’s use of leave during an Executive Committee meeting that was held while the employee was on leave.

Not reappointed. Just before the employee began his FMLA leave, he authored an affidavit in support of a former faculty member who had sued the university for race, national origin, and gender discrimination. His averred in his affidavit that he had also been discriminated against based on his race and national origin. In March, one week after the employee returned from leave, he filed for his third reappointment. He was the only faculty member in the College of Pharmacy who was not reappointed. The employer contended that the recommendation was based on the employee’s performance, which it deemed substandard in several areas. The employee filed suit, alleging violations of the FMLA, Title VII, and state and city human rights laws.

Leave was a negative factor. With regard to his FMLA retaliation claim, the employee could, and did, satisfy his burden of showing pretext, the court concluded, “by proffering evidence that the employer’s retaliatory intent was a negative factor in the adverse employment action.” (There was no dispute over whether the employer had proffered a legitimate, nondiscriminatory reason for its actions.) “Indeed,” the court explained, “a rational fact finder could infer as much from the explicit references to Plaintiff’s FMLA leave in Dave’s draft recommendations.” In his first draft, the Division Director had written that “a major concern was the approach [Plaintiff] took of securing the FMLA [sic].” In fact, the Vice President of Academic Affairs, who usually just rubber-stamped the Dean’s recommendation but who also reviewed the drafts in this case, testified that the employee’s leave was “a matter of considerable focus” in the director’s original draft and that focus did not “belong in the recommendation.”

Inferences of retaliatory intent also could be drawn from the division director’s complaints to the executive committee about the employee’s use of leave and his remark to the employee that it could affect his reappointment. Moreover, there was evidence that involvement of senior staff in drafting the letter was atypical and that there were inconsistencies between the employer’s given reasons for not appointing the employee and its evaluation of the reappointment applications of other faculty members.

Interference. The employee could also proceed with his claim of FMLA interference, the court concluded, based primarily on the statement by his division director that “nobody takes” FMLA leave and that doing so “could affect [his] reappointment and tenure.” With regard to that statement, the court explained, “Even an employee of extraordinary resolve would think twice about continuing his leave in the face of such a direct threat.” The court found it hard to imagine a statement that would be “more discouraging than” that “direct threat” to the employee’s “long-term job security.”

Protected activity. Finally, the court found the employee presented sufficient evidence to move ahead with retaliation claims under Title VII, the NYSHRL, and the NYCHRL. While the employer contended there was no evidence any of the decisionmakers were aware of the affidavit the employee had provided in regard to the other lawsuit, its own discovery responses belied that statement. In response to an interrogatory, the employer had indicated that the Vice President of Academic Affairs, who was responsible for the final reappointment decision, was aware of the affidavit. And the Division Director testified that he was made aware of the employee’s participation in a meeting that was also attended by the Dean.

“At the very least,” the court explained, “this evidence creates a question of material fact as to whether the decisionmakers were aware of Plaintiff’s protected activity.” And there was evidence of temporal proximity to support a causal connection.

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