‘Top performer’ demoted week after requesting leave to care for sick husband advances FMLA claim
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Friday, July 27, 2018

‘Top performer’ demoted week after requesting leave to care for sick husband advances FMLA claim

By Kathleen Kapusta, J.D.

Demoted after a long and positive tenure with her town employer, and months after being rated a top performer and a “joy to work with,” but only one week after requesting intermittent FMLA leave to care for her cancer-ridden husband, an employee who ultimately resigned in lieu of termination can take her FMLA retaliation claim to trial. A federal district court in Massachusetts, however, granted summary judgment against her due process claims, finding she waived her right to a pre-termination hearing in a last chance agreement and the evidence fell short of showing a broad conspiracy-minded scheme that shocked the conscience and deprived her of a protected interest (Higgins v. Town of Concord, July 23, 2018, Cabell, D.).

Hired in 1989, the employee was appointed in January 2015 to serve as co-director of the recreation department. In June, the assistant town manager rated her a “top performer,” an excellent employee, and a joy to work with. In July, after the resignation of the other co-director, the employee became acting director on a temporary basis.

Health issues. Around the same time she was named co-director, the employee’s husband suffered a heart attack. Not long after that, he was diagnosed with lung cancer and the employee informed the assistant manager that she needed to attend doctor’s appointments with him.

Turn for the worse. In September, the employee failed to complete a capital plan for the recreation department and in November, the assistant manager, concerned the employee was missing scheduled meetings, asked for her attendance record. She also learned that the employee was playing tennis two mornings a week during business hours (she worked over 44 hours a week despite playing tennis and purportedly did not have a set schedule) and that another worker was conducting personal training lessons during the week with the employee’s knowledge.

Investigation. In January 2016, the town initiated an investigation into the worker conducting personal training sessions. Although the assistant manager told the employee and others not to discuss the investigation, the employee acknowledged it when another individual asked her about the investigation and also discussed it with a coworker. That same month, the employee submitted a formal request for intermittent FMLA leave and told the assistant manager her husband would soon begin radiation treatment.

Demoted. A week later, the employee was demoted to her prior role of assistant director of the recreation department, purportedly because the assistant manager could no longer trust her. Eight days later, she was required to sign a last chance agreement and she no longer had any authority regarding the recreation department. Despite this, the employee twice spoke over a coworker at meetings regarding the recreation department. She was then notified that this violated the LCA and she could resign or be fired. She resigned and then sued the town asserting violations of the FMLA and her due process rights.

LCA. Addressing first the validity of the LCA, the court found the employee knowingly and voluntarily executed the agreement. Not only did her background adequately equip her to make an informed and rational decision to accept or reject the LCA, it was relatively clear and easy to understand, and she had time to study it and consult with an attorney if she wished before signing. In addition, she received compensation—the agreement to forego discharging her—for entering into it. Thus the agreement was valid and enforceable.

Due process claims. Granting summary judgment against her procedural due process claim, the court explained that the employee explicitly waived her right to a pre-termination hearing in executing the LCA. As to her substantive due process claim, she did not waive her claim that the town fabricated instances of misconduct in order to induce her to sign the LCA and set the stage for her subsequent ouster. Still, there was no evidence of such a grand scheme, said the court, noting it was undisputed she did miss some meetings, did play tennis during working hours, did fail to complete timely certain key tasks such as the capital plan, and did fail to abide by explicit instructions not to disclose information relating to the investigation. Even assuming the town acted in bad faith, however, no reasonable juror could conclude it engaged in egregious, conscience-shocking behavior in presenting her with the LCA or in determining that she had breached it.

FMLA retaliation. Turning to the employee’s FMLA claim, the court first found it was not barred by the LCA because the FMLA prohibits an employer from inducing an employee to waive her prospective rights under the Act. As to the merits of her claim, she availed herself of a protected right when she began taking time in or around the middle of 2015 to assist her husband with his medical needs and then formally requested FMLA paperwork in January 2016. She also suffered adverse employment actions where she was demoted, allegedly forced to sign the LCA, and ultimately forced from her position.

Further, observed the court, she was demoted just one week after formally requesting FMLA paperwork. Viewing the facts in a light most favorable to the employee, this allowed for an inference that the town took actions against her because she took protected leave.

Cat’s paw. Although the town argued the employee could not show the town manager, who was the ultimate decisionmaker, was aware of her leave, there was evidence that the assistant manager told him the employee was dealing with a family illness in 2015 and informed him in January 2016 that she needed to take FMLA leave. And evening assuming he did not have actual knowledge, the assistant manager’s knowledge could be imputed to him under a cat’s paw theory. While not overwhelming, there was just enough evidence, said the court, to raise a triable question as to whether the assistant manager acted as a biased supervisor and facilitated the employee’s demotion and termination by recommending the same to the manager as he admitted his perception of the employee’s performance was based in part on what the assistant manager told him.

Pretext. The court also found evidence of pretext as the employee had worked for the town for over two decades, apparently without incident, and had been rated a “top performer” and “joy to work with” as recently as June 2015. Further, things began to change around the time she informed the assistant manager of her husband’s diagnosis and her need to take leave. Not only was there evidence the assistant manager became frustrated and discussed the employee missing meetings with the HR director, she purportedly disciplined only the employee for speaking to others about the internal investigation despite evidence that others had had done the same. Perhaps mostly notably, said the court, there was evidence that the assistant manager told another worker the employee was demoted because she was taking so much time from work to care for her husband.

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