By Kathleen Kapusta, J.D. Reversing the denial of Dow Chemical’s motion for judgment as a matter of law after a jury awarded a discharged employee more than $172,000 on her FMLA retaliation claim, the Sixth Circuit, in an unpublished opinion, explained that where a plaintiff’s evidence of retaliatory animus ultimately rests solely on temporal proximity, a jury’s verdict in favor of the plaintiff cannot stand. The court remanded for an entry of judgment in favor of Dow (Hartman v. Dow Chemical Co., August 16, 2016, Siler, E.). Three years after she was hired to perform administrative support for an attorney and a paralegal, the employee took FMLA leave for surgery. Although her leave was extended by four weeks, she ultimately returned to work part-time and resumed a full-time schedule several weeks later. Enough to take action? Around the same time she requested the leave extension, the attorney told the employee’s supervisor that she had been seen "displaying a good range of motion" and questioned her need for additional recovery time. And at the time she requested FMLA leave, the paralegal began monitoring the employee’s arrival and departure times. When the employee returned to work, her coworkers continued to monitor her. A month later, the attorney emailed the employee’s supervisor, stating that she did not seem to be working the required hours and asking, "Do we have enough now to take action? Please?" Concerned, her supervisor gathered the employee’s gate records. Upon discovering a 60-hour discrepancy between her timecards and her gate records, he scheduled an employee review meeting (ERM) where the participants considered the employee’s gate records, her timecard records, her time logged in from home on the employer’s VPN, and her claim that she worked at home every night for at least two hours, even when not logged into the VPN. The participants in the meeting determined that she had committed timecard fraud and terminated her. Lower court proceedings. The employee then sued under the FMLA and state law. After trial on her FMLA retaliation claim, a jury awarded her $50,310 in lost wages and $122,297 in future damages. Finding that the employee presented sufficient evidence that Dow terminated her for her use of FMLA leave, the district court denied Dow’s motion for judgment as a matter of law. Honest belief. On appeal, Dow argued that the district court erred in finding that timecard fraud did not actually motivate its decision to terminate the employee. Observing that Dow cited specific evidence in support of its belief that she was committing timecard fraud—the timecard records, gate records, VPN records, and her explanation—the court found that Dow made a reasonable decision that was based on the available facts. The fact that the reported 60-hour discrepancy may have been an overstatement did not automatically transform this belief into pretext for purposes of the employee’s retaliation claim, said the court, finding that she failed to show Dow’s stated reason for terminating her had no basis in fact. Temporal proximity. Dow next argued that the district court’s two bases for finding evidence of pretext—temporal proximity and the attorney’s email and testimony, were inadequate to prove that timecard fraud did not actually motivate the termination decision. Noting that the temporal proximity primarily centered on when the employee used FMLA leave, when her coworkers started monitoring her time, and when Dow decided to terminate her, the court observed that it was the employee’s coworkers, not her supervisor, who started monitoring her. Moreover, even if the supervisor had started to investigate timecard fraud issues after the employee gave notice of her need for FMLA leave, there was no indication that he was aware of any problems before she took leave. Thus, he didn’t initially ignore it and then take action after she took leave. As to Dow’s contention that retaliatory animus could not be inferred solely from the fact that it terminated the employee shortly after she returned from leave, the court pointed out that while temporal proximity cannot be the sole basis for finding pretext, suspicious timing is a strong indicator of pretext when accompanied by some other, independent evidence. Attorney’s email. Although the lower court found that the attorney’s email to the employee’s supervisor evidenced discriminatory animus, the appeals court found that on its face, the attorney’s pleas at the end of his email could not constitute direct evidence of FMLA animus. There was no mention of FMLA leave in the email when he asked, "Do we have enough now to take action? Please?" Rather, the email focused on his belief that the employee was defrauding Dow and his desire to retain another worker in the employee’s place. As to the district court’s reliance on the attorney’s testimony that while the employee was on leave, he recommended that the supervisor hold an ERM meeting concerning her, but the supervisor told him the "decision had been made" that if an ERM had been held for alleged timecard fraud while she was on leave, she might later sue for FMLA retaliation, the supervisor denied that the conversation occurred. And even if it did occur, the court found that to permit an inference of retaliatory animus based on a company’s honest assessment of the potential risk of terminating an employee would unduly hinder frank employment decisions. Moreover, said the court, "there must be a clear line for the purpose of liability between an employer considering whether an employee may file suit—even though the employer has a legitimate basis to take an adverse employment action—and an employer terminating a plaintiff based on the employee’s protected status or engagement in a protected activity: the latter results in liability for the employer while the former does not."
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