By Brandi O. Brown, J.D. A law firm processing clerk who was told she had been selected for layoff in the days before she was set to return from surgery-related FMLA leave will not be able to take her FMLA and state law disability claims to a jury, a federal district court in Ohio ruled. The employee was selected as part of a successive wave of lay-offs over the course of 2013 and employees laid off from her department in previous waves had not taken FMLA leave. The employer's motion for summary judgment was granted (Partin v. Weltman Weinberg & Reis Co., LPA, January 5, 2016, Litkovitz, K.). RIFs begin. For many years prior to her termination in early 2014, the employee worked as a processing clerk in an Ohio office of a multi-state law firm. During her tenure she took several periods of FMLA leave for surgery, including two periods in 2013 and early 2014. Meanwhile, in late 2012, the firm concluded that it needed to reduce its force due to business conditions. It used five criteria to rank employees within departments, the most important of which was the employee's work, functionality, and ability to absorb responsibilities. The least important was seniority. Also considered were each employee's overall performance, current write-ups, and ability to adapt to change. Out of a list of eight processing clerks ranked using those criteria, the employee fell at number five. In the first wave the lowest ranking clerk was selected. Employee named in third wave, selected in fourth. In March 2013 another clerk who was below the employee on the list was laid off in a second wave of reductions. A third wave of reductions was planned for August and, according to the employer, the employee and the next employee below her on the list were selected. However, the layoff was postponed when other employees voluntarily left the department. In October, the employee was approved for FMLA leave for knee replacement surgery. While she was out, another round of layoffs occurred and, according to the employer, she and the next person on the list were selected again. All selected employees, except for the employee, were told of the elimination on December 18. The employer claimed that it postponed telling the employee of in hopes that a voluntary departure from the department might obviate the need for it. In early January, though, the employee's physician faxed a medical certification to the employer indicating she needed to extend her leave to February. An employee relations specialist informed her that her extension was approved, but the firm could not promise to hold her job open. The employee asked if she would still have a job if she returned sooner. Although she testified that she was told she would still have a job if she were to return on January 13, the specialist testified otherwise. The employee spoke with her physician who released her to return on January 13. However, after receiving the new certification, the employer informed her that her position had been eliminated. The employee filed suit and the employer moved for summary judgment. FMLA claims fail. According to the employee, the employer's actions constituted FMLA interference and FMLA retaliation. The court quickly disposed of the interference claim, noting that it was "undisputed" the employee received the full amount of leave to which she was entitled. As for her FMLA retaliation claim, the employee pointed to the proximity between her use of leave and her termination to show a causal connection. She also argued that she and the other clerk selected for the December reduction had both used FMLA leave. Moreover, she argued that performance could not have driven the selection because the other selectee from her office had a much higher performance rating than someone who was retained. She also pointed to her own superior experience. Although the employee established a prima facie case using temporal proximity, she could not show pretext. The court agreed with the employer that she was cherry-picking by focusing on the December layoff exclusively and failing to consider the earlier phases of the reduction. The employer produced evidence that she was eliminated as part of a firm-wide reduction that occurred in three offices in Ohio and in five states overall. Moreover, the reduction occurred in waves throughout 2013 and, during those reductions, the employer eliminated the positions of employees in the department never took FMLA leave. In fact, those employees were in the first two waves of reductions. The court further noted that the employee had actually been selected for an earlier reduction, but that her job had been saved by the voluntary departure of other employees. That selection occurred months before the employee requested leave for knee surgery, the court explained, and, therefore, the reduction in force could not have been a pretextual reason for her termination. As for the employee's other contentions regarding performance, the court explained that she failed to establish a genuine issue. Disability discrimination claim out too. The court also granted the employer's motion on the employee's state law disability discrimination claim. She did not establish a prima facie case because she was not replaced and her position was not held open after her termination. Furthermore, she did not produce evidence that she was singled out for discharge for reasons that were impermissible—the undisputed evidence showed that she was initially selected in August 2013 and again in December, prior to the employer having any knowledge that she would have to use a walker upon her return to the office.
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