By Dave Strausfeld, J.D. A licensed professional counselor was not precluded from claiming she was fired in retaliation for taking FMLA leave, even though a state unemployment commission had ruled she was fired for misconduct, held the Eleventh Circuit in an unpublished decision reversing a summary judgment ruling for her employer. Issue preclusion did not apply because the reason for the counselor’s termination was not "actually litigated" in the unemployment hearing, given that the only evidence in the administrative record consisted of unsworn statements, and unsworn statements are not competent evidence. On a separate issue, her receipt of a limited number of work-related phone calls while on FMLA leave did not support an FMLA interference claim, so the trial court’s decision on this question after a bench trial was not clearly erroneous (Simmons v. Indian Rivers Mental Health Center, June 13, 2016, per curiam). Fired the day she returned from leave. The day the licensed professional counselor returned to her job after FMLA leave for surgery, she was fired for deficiencies in her paperwork that were allegedly discovered during her absence. She had previously been reprimanded for deficiencies relating to overseeing and certifying patient treatment plans, which was one of her main responsibilities because she served in a management role as Adult Outpatient Program Manager. Unemployment hearing. When she then applied for unemployment compensation, the mental health center submitted a brief, hand-written, and unsworn explanation of the reason why she was fired. Based on this unsworn response, the claims examiner disqualified her from receiving benefits. She appealed and requested a hearing, but she soon secured new employment and did not attend the hearing. The mental health center appeared at the hearing by telephone but presented no testimony or other evidence. Even though there was no evidence in the record other than unsworn statements, the hearing officer upheld the claims examiner’s determination. The counselor never appealed administratively or sought judicial review in state court. But she subsequently filed an FMLA suit alleging she was terminated for retaliatory reasons, not for misconduct. Issue preclusion governed by Alabama law. In Univ. of Tenn. v. Elliott, the U.S. Supreme Court stated that when a state agency acts in a judicial capacity, federal courts give the agency’s factfinding "the same preclusive effect to which it would be entitled in the State’s courts." Thus the issue preclusion question here was governed by Alabama law. In past cases, Alabama courts have given preclusive effect to decisions by Alabama’s unemployment commission that an employee was discharged for misconduct. But here, the Eleventh Circuit concluded, "Alabama law compels a different result." Issue was not actually litigated. Even though the parties and issues were the same in both proceedings, issue preclusion did not apply because the reason for the counselor’s termination was not "actually litigated" at the unemployment hearing, the appeals court explained. Under the Supreme Court’s Elliott decision, a federal court gives a state agency determination preclusive effect only when the agency is "acting in a judicial capacity." As the hearing officer acknowledged, the administrative record contained only unsworn statements. Because the record contained only unsworn statements, there was no competent "evidence" from which the hearing officer or claims examiner could make a merits determination in a judicial capacity, and thus the issue was not "actually litigated." Additionally, the counselor never appeared at the hearing and had no incentive to litigate the issue, given that she had found a new job less than a month after being fired and prior to the hearing. Because the hearing officer could have declared a default, it could not be said that a decision on the merits was "necessary," especially when the mental health center presented no evidence. Accordingly, for this reason as well, the district court erred in applying issue preclusion, and its summary judgment ruling on the preclusion issue needed to be reversed, the appeals court held. Telephone calls not FMLA interference. A separate issue in the case was whether the employer interfered with the counselor’s FMLA leave by making telephone calls to her while she was on leave. After a bench trial, the district court found that the telephone contacts were brief and limited to reasonable inquiries about the location of files or passing along institutional status or knowledge to those who would cover her responsibilities and duties during her absence, and thus found no unlawful interference with her FMLA rights. There was no clear error in the ruling, the appeals court found. Although an employer violates the FMLA "by requiring an employee to perform work during FMLA leave," asking an employee to engage in some telephone conversations does not violate the statute. There was conflicting testimony here regarding the number and frequency of the phone calls from staff, and the district court was entitled to credit the testimony indicating the phone calls were brief and limited.
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