By Pension and Benefits Editorial Staff
The FMLA retaliation claim of a die-shop laborer, who alleged he was fired while on leave and while receiving treatment for a substance abuse problem—and after he had revealed an old dream about harming coworkers—survived his employer’s motion to dismiss. Noting that the pro se employee "forays beyond the pleadings making a factually-based claim that Hydro’s reason for terminating him was a pretext for retaliation," a federal district court in Pennsylvania denied the motion "without prejudice to the filing of a properly documented motion for summary judgment." The court, however, dismissed his ADA claim, also without prejudice, as there was no indication he had exhausted his administrative remedies. And because he failed to plead sufficient facts to support his FMLA claim against an HR rep in her individual capacity, that claim was also dismissed without prejudice.
Hired in 2010, the employee claimed that despite his complaints to management, he was subjected to repeated harassment and racial epithets from his colleagues, which caused him "extreme anxiety and anger." To cope with the negative environment, he alleged, he turned to drugs. In February 2019, he self-reported his drug usage to an HR representative. Not long thereafter, he was approved for FMLA leave through April 2. When he subsequently began experiencing withdrawal symptoms, he checked himself into a detoxification program.
Violent dream. The next day, he told his health care providers that seven years earlier, he had a violent dream about harming two of his coworkers. Throughout much of March, the employee claimed, he received numerous calls from the HR rep asking about his leave, including one inquiry about a conversation he had with social workers during his in-patient treatment.
Released and fired. At the end of March, the employee told the HR rep he had been released to return to work. A day or two later, during a telephone conference with an HR manager from another facility, a union steward, and the HR rep, the employee was informed he was being suspended pending an internal investigation related to "information received," which he believed related to his disclosure about his dream. Nine days after that, he was terminated based on the company’s concerns for the safety of its employees after learning about the dream. He subsequently sued the company and the HR rep alleging he was wrongfully terminated and retaliated against under the ADA and for taking leave under the FMLA.
FMLA claim against HR rep. An individual, the court observed, may be liable under the FMLA only if she can be considered an "employer" within the meaning of the Act. Noting that the definition of employer includes "any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer," the court pointed out that the Third Circuit held that "an individual is subject to FMLA liability when he or she exercises ‘supervisory authority over the complaining employee and was responsible in whole or part for the alleged violation’ while acting in the employer’s interest."
Further, when analyzing a supervisor’s control over an employee under the FMLA, courts use an "economic reality" multi-factor, totality-of-the-circumstances test. Under that framework, the court found the employee failed to plead any facts indicating whether the HR rep had the power to hire or fire employees, controlled his work schedule, determined his rate and method of pay, or maintained employment records. Moreover, the court observed, he alleged that the HR director from another facility participated in the calls in which the termination decision was made and there was no indication the HR rep had the authority to terminate him or played any role in the termination decision. Thus, this claim was dismissed without prejudice.
FMLA claim against employer. Turning to the employee’s FMLA retaliation claim against his employer, the court first noted that the facts relied upon by the employee were "hotly disputed." It was undisputed, however, that the employee took approved FMLA leave from late February 2019 through early April. Further, he was suspended on April 1 while still out on leave and was subsequently terminated from his employment nine days later. In addition, said the court, he pleaded enough facts to infer his termination was causally related to his FMLA leave. Specifically, he alleged was suspended while on leave just days before he was supposed to return to work and was subsequently terminated after being told he was not permitted to return to work. Thus, said the court, the temporal proximity was sufficiently suggestive to support an inference of causation in this case.
While his employer argued he was fired due to the concern he "was a physical threat to other employees," the employee alleged that while he was out on FMLA leave, and while he was receiving treatment, the HR rep contacted him numerous times regarding the specifics and status of his leave; during his leave, she asked him to "write her a letter requesting time off," and asked how much time off he was taking; and she asked about his substance abuse and "became irate when [he] refused to answer her." In addition, he alleged, she again called him asking about a specific conversation he had while at the detox program, why he needed so much time off, and stated that he "could return to work without being fully detoxed." Finding that "the resolution of [his] FMLA retaliation claim against Hydro takes us beyond the pleadings to an assessment of the evidence, a task which must await another day, and another motion in the nature of a motion for summary judgment," the court denied the motion to dismiss "without prejudice to the filing of a properly documented motion for summary judgment."
SOURCE: Still v. Hydro Extruders, LLC (M.D. Pa.), No. 3:19-CV-2089, May 4, 2020.
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