By Marjorie Johnson, J.D.
After the employee was approved for reduced hours under the FMLA pursuant to a doctor’s note, her supervisor allegedly scheduled her for shifts that exceeded 8 hours, warned that non-compliance would lead to a performance review, and ordered her to stay late for training.
A Democratic deputy clerk at a county board of voter registration, who claimed that she was constructively discharged after her supervisor gave her a schedule that violated her approved FMLA leave restrictions and threatened negative employment consequences if she didn’t abide by it, survived a motion for summary judgment on her FMLA interference claim. A federal district court in Indiana held that a reasonable juror could conclude from the record that she was discouraged from taking FMLA leave. However, she failed to advance her First Amendment claim asserting that the supervisor denied her FMLA leave in retaliation for her support of a certain candidate for sheriff since the record did not support a finding that her speech was a motivating factor in the supervisor’s decision (Hudak v. Brandy, October 27, 2020, Miller, R.).
Quarrel over candidates. In January 2018, the employee was hired to serve as a deputy clerk for a voter registration board’s Democratic member. She and her supervisor supported different candidates for sheriff in the Democratic primary election held in May, which the supervisor’s favored candidate won. After the primary, the supervisor purportedly expressed her disapproval of the employee’s support for the other candidate, including asking her how she could support a racist candidate.
FMLA leave granted. The employee suffered from primary biliary cirrhosis, which causes chronic fatigue. On October 15, 2018, she submitted a certification from her doctor that said she could only work 40 hours and 5 days per week. She subsequently also submitted an amended certification that additionally limited her no more than 8 hours per day. The county approved the revised request for FMLA leave and provided the employee with written notice of its approval.
Schedule exceeds restrictions. The employee’s supervisor subsequently provided her with a “modified schedule” for October 18 through November 9, which stated that it “will be met with a minimum of 40 hours met, 8 hours a day, at 5 days a week minimum per your FMLA request.” It also stated that any violations “will be subject to a job performance review” and listed time ranges on some dates that exceeded 8 hours for the day, such as from 7:00 a.m. to 5:00 p.m. on a Friday.
The parties disagreed as to what happened next. The supervisor claimed that she told the employee that she had the option to choose when to come into work during the time frames on her new schedule, as long as she met the 8-hour time limit. In contrast, the employee claimed the supervisor told her that that she was required to work the hours on the schedule and would be subject to a performance review if she didn’t. She also claimed that when she asked about being scheduled for too many hours under her FMLA limitations, the supervisor took her to the HR director’s office, who also said that she must work the hours listed or face potential discipline.
The employee tried to work the hours as assigned, but after having arrived to work on October 25 at 8:00 a.m., told her supervisor at 4:30 p.m. that she needed to leave. She claimed that her supervisor told her she couldn’t leave and needed to stay into the evening for training. The employee responded that she wouldn’t stay and left. She didn’t report to work on October 26 and resigned on October 27.
Interference with FMLA rights. Because triable issues existed as to whether the employer interfered with the employee’s FMLA rights, summary judgment was not warranted as to that claim. The employer argued that she failed to show that she was denied FMLA benefits, but FMLA interference isn’t limited to denial of leave; it also encompasses using the taking of FMLA leave “as a negative factor in employment actions” and “discouraging an employee from using such leave.” The issue was whether the employer’s actions “would discourage a reasonable employee from taking FMLA leave.”
Here, the employee’s modified schedule listed shifts that exceeded 8 hours and stated that failure to comply would result in a performance review. She also asserted that both her supervisor and the HR director told her she had to work the hours assigned or she would face disciplinary action and that after she had already worked eight hours on October 25, her supervisor ordered her to stay longer for an evening training. From this evidence, a reasonable juror could conclude that her employer discouraged her from taking leave and therefore interfered with her FMLA rights.
No First Amendment violation. However, the court tossed the employee’s First Amendment claim asserting that her supervisor retaliated against her for supporting a different candidate in the 2018 primary by denying her FMLA leave. She couldn’t defeat summary judgment on this claim since no reasonable juror could conclude that her support of the opponent of her supervisor’s favored political candidate was at least a motivating factor in any of her supervisor’s decisions about her FMLA leave.
Suspicious timing alone is rarely enough on its own to raise an inference of causation, and to survive the summary judgment, the employee needed to show that the FMLA leave denial took place “close on the heels” of her protected speech. While this analysis is context-dependent, a court will typically allow “no more than a few days to elapse between the protected activity and the adverse action.” Here, the employee’s allegation that her supervisor made negative or disapproving comments about her support for the opponent of the supervisor’s favored political candidate at some point after the May 2018 primary wasn’t enough to meet this standard.
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