Labor & Employment Law Daily Text message that bartender should ‘stop pulling FMLA’ supports interference, reprisal claims
Wednesday, October 2, 2019

Text message that bartender should ‘stop pulling FMLA’ supports interference, reprisal claims

By Robert Margolis, J.D.

The court rejects the employer’s argument that it should not consider temporal proximity between FMLA leave and his discharge where the plaintiff took multiple intermittent leaves.

A Bally’s Atlantic City bartender terminated shortly after taking intermittent FMLA leave provided sufficient evidence of a causal link between her leave and her discharge, a federal district court in New Jersey held, denying her employer’s summary judgment motion on her claims for FMLA interference and retaliation. However, the court granted the employer’s motion under the New Jersey Family Leave Act (NJFLA), holding that the statute only applies to leave taken due to a family member’s illness (Caruso v. Bally’s Atlantic City, September 27, 2019, Hillman, N.).

FMLA leave. The employee, who was hired in 2010, suffered from migraines. In 2016, her headaches got so bad that she needed to take FMLA leave, which the employer permitted. In the month she began taking leave, her supervisor issued her three separate disciplinary actions. When the employee returned to work one day, the supervisor told her, “You just can’t up and leave any time you want because of FMLA.” Later that day, according to the employee, she noticed that the sour mix had gone bad, and she took a sip of a drink to be sure. However, another bartender, who may have been asked to cover the employee’s shifts while on leave, and who did not get along with the employee, notified the supervisor that the employee had been “drinking behind the bar.” This led to her suspension and ultimately termination, but after filing a grievance, the employee returned to work.

In May 2017, the employee comped drinks to a party of six, which she claims she was instructed to do by the beverage manager. She took intermittent leave the next day and claims, on that same day, the beverage manager sent her a text message stating, “Stop pulling FMLA on the new girl!!!!!!” She subsequently was terminated, which the employer claims was for “various” policy violations. She filed suit alleging FMLA interference and retaliation claims, as well as a claim under the NJFMLA.

Retaliation claim: a causal link. The employee had sufficient evidence to meet her prima facie burden on the first two elements of her claim: (1) she availed herself of a protected right under the FMLA, and (2) she suffered an adverse employment action. The employer disputed, however, that there was a causal link between the two. The employee countered that the requisite causal link was established—first, through temporal proximity between her taking intermittent leave and both adverse actions (her first termination in 2016 and her second in 2017), and second, based on the beverage manager’s text.

In 2016, she was suspended just three days after returning from FMLA leave, and then terminated seven days after returning from leave. In 2017, she was suspended five days after utilizing her intermittent FMLA leave and terminated nine days after her leave. While there is no bright-line rule, courts in the Third Circuit have upheld claims with similar temporal proximity, the court pointed out.

The employer argued that because the employee’s intermittent leaves were so frequent, she could conceivably establish temporal proximity at any time during the period, such that this should be negated as a factor. However, the court noted that she had taken a particularly extended leave immediately prior to her first suspension. This, coupled with how quickly her discipline followed her taking of leave, sufficed to establish causation on summary judgment. As the court noted, the repeated taking of intermittent leave may in fact be what prompts an employer to retaliate, so the standard should not be lowered in such cases. The court also found the “Stop pulling FMLA” text to be probative, given the short proximity of that text expressing disapproval of the employee taking leave and her termination.

Retaliation claim: pretext. The employer had articulated legitimate, nondiscriminatory reasons for the two terminations: policy violations for drinking behind the bar and improperly comping customers. However, the employee provided sufficient facts to show that the proffered reasons were pretext. In addition to temporal proximity, expressions of animus by her supervisor and, in the subsequent incident, the beverage manager were sufficient, even though neither was the sole decisionmaker. A reasonable jury could also find that the employee was justified in taking a sip from a drink to determine if the sour mix had gone bad and had comped the party because the beverage manager instructed her to do so.

The employer argued that the “Stop pulling FMLA” text should be disregarded as a mere “stray comment” because the beverage manager was not involved in the termination decision. However, the court disagreed, noting that it was enough that he played a role in her discharge. If the employee’s version of facts is believed, with the animus expressed in his text, the beverage manager told the employee to comp the party and that he would “take care of it,” while knowing that it was a violation of policy, and then denied having done so when the employer investigated the incident.

FMLA interference. These facts led the court to reach the same conclusion as to her FMLA interference claim. The employer argued that she could not state an interference claim because no FMLA benefits were denied to her, but the court pointed out that terminating an employee for exercising FMLA rights, as the employee had shown, can suffice to support an interference claim.

State-law claim. The court granted summary judgment to the employer as to the claim under New Jersey’s statute, which applies when an employee takes leave to attend to a family member’s serious health condition. Because the employee’s leave was caused by her own migraines, the statute does not apply.

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