Employment Law Daily ‘Neutral’ assessment of FMLA-leave-taking employee during RIF may have been pretextual
Wednesday, September 7, 2016

‘Neutral’ assessment of FMLA-leave-taking employee during RIF may have been pretextual

By Marjorie Johnson, J.D. A decisionmaker’s ostensibly neutral assessment of an employee during a company-wide RIF that led to his termination may have been pretext for retaliating against him for using an abundance of intermittent FMLA leave to care for his ailing parents, and his employer may have also interfered with his rights by using his leave as a negative factor. Partially denying summary judgment against the employee on his FMLA retaliation and interference claims, a federal district court in Connecticut also held that his temporary transfer to a non-supervisory position was not an adverse action since, at the HR manager’s recommendation, he was swiftly put back in a supervisory role and received no loss in compensation (Gaydos v. Sikorsky Aircraft, Inc., August 31, 2016, Bolden, V.). Since 2008, the employee worked as a line supervisor at his employer’s helicopter plant. In October 2011, he requested and was granted FMLA leave to care for his ailing parents. He received 80 days of FMLA intermittent leave each year, taking an average of two days of leave per week. At one point his superiors transferred him to a non-supervisory coordinator position purportedly due to their unhappiness about his leave. However, at the HR manager’s recommendation, he was placed back in a supervisory role within two weeks. He was later terminated during a large-scale RIF after a manager gave him a low assessment. Temporary job transfer. Though the record suggested that the employee was transferred to the coordinator job because of his FMLA leave, he was unable to show that he suffered an adverse employment action. Rather, his superiors quickly placed hourly employees back under his supervision after being advised to do so during a meeting with the HR manager. Thus, he did not lose any income or ultimately, any supervisory responsibilities. Differential treatment not retaliation. The employee also failed to show that he was treated less favorably in retaliation for taking FMLA leave. Though he argued that he received unfavorable reviews as a result of his taking leave, the record revealed that he received a critical review the year before he applied for leave. Moreover, though he received lower scores during the year that he began taking leave, he received improved ratings the following year. The low ratings on his RIF assessment were also arguably consistent with his performance reviews from both before and after he began taking FMLA leave, and the record did not support his assertion that he received lower raises and bonuses because of his leave. Direct supervisor’s criticisms. The court also rejected the employee’s assertion that certain negative comments from his direct supervisor about his taking leave supported an inference of discrimination. He claimed for instance that the supervisor told him that the situation with his FMLA leave was "unacceptable" and that "we can’t do business like this," that he became "very belligerent" upon hearing that he could not stay late, and ended a conversation by "mumbling and storming off." However, these comments were too far removed from the decision to terminate him as they were all made two years before the RIF. Moreover, the supervisor did not play any role in assessing him during the RIF, and was himself also laid off. The court also rejected the employee’s attempt to invoke the "cat’s paw" theory since there was no evidence that the supervisor directly influenced his manager’s assessments of the employee’s job performance. Retaliatory discharge. On the other hand, the employee presented sufficient evidence to show that the assessment scores he received from the manager during the purportedly non-discriminatory RIF were a pretext for retaliating against him for his use of FMLA leave. The court noted that there was ample evidence establishing that the RIF process relied on non-discriminatory guidelines and was justified by business concerns. Moreover, the employee was one of 250 terminated employees and a coworker under the same chain of command was also discharged after having received the same low score. The record also showed that the performance issues that contributed to his low ratings in the RIF assessment (which led to his termination) were ones that recurred throughout his tenure. Discisionmaker’s disapproval of leave. However, other evidence created a triable issue regarding whether the manager’s ostensibly neutral evaluation for the RIF was actually influenced by retaliatory animus against the employee’s use of FMLA leave. First, he claimed that the manager expressed disapproval of his FMLA leave when he was silent, shook his head, and walked off after hearing that the employee could not work late. While this reaction was arguably ambiguous, it could also support an inference that he was unhappy with the employee’s FMLA leave. The manager also testified that one of his general criticisms of the employee’s insufficient engagement with the workplace as being an issue of his inability to "get in there every day, understand what’s going on and help us to meet our business goals." In addition, the employee presented evidence of the manager’s need for the HR manager’s counseling regarding his FMLA rights, as well as the manager’s participation in transferring him to the coordinator position against the HR manager’s recommendation. Accordingly, a jury would decide whether the manager’s conduct showed that his assessments of the employee for the RIF were pretext for retaliation. Termination as interference. The employee’s FMLA interference claim similarly advanced to trial since, even if he was given all of the FMLA leave that he requested, a triable issue existed as to whether that leave was a "negative factor" in the manager’s assessment of him during the RIF, and therefore a negative factor in the decision to terminate him.

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