Pension & Benefits News Employee’s FMLA claims based on reduction in hours revived
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Friday, November 2, 2018

Employee’s FMLA claims based on reduction in hours revived

By Pension and Benefits Editorial Staff

Reversing the grant of summary judgment against an employee’s FMLA retaliation claim, the Eleventh Circuit U.S. Court of Appeals in an unpublished opinion found a fact dispute as to whether the employer’s proffered non-retaliatory reason for reducing her hours upon her return from leave—she requested it—was true. For similar reasons, the court also reversed the grant of summary judgment against her FMLA interference claim; the court rejected the employer’s argument that the employee had no "entitlement" to a 40-hour work week and that it eventually paid her for the hours she would have worked had her hours not been reduced. The court, however, affirmed the grant of summary judgment against her ADA claims, finding that she failed to show the stated reason for her termination (her insubordination towards her manager) was pretextual.

The customer service representative took leave in 2013 for a back injury and after she returned, she was placed on light duty per her doctor’s medical restrictions. The employer also (against the employee’s wishes) placed her on reduced hours. After she complained, she was increased back to full time. Later that year, a new manager arrived and did not honor her medical restrictions. She complained to the employer and the manager explained that he was unaware of her medical restrictions and began to honor them.

Terminated. The employee and manager, however, continued to have issues. On one occasion, the employee felt he insulted her after she asked to take a break immediately after arriving at work, and she left for the day just after her shift began. Upper level management and HR met with the employee and told her that her behavior was unacceptable and that she could not walk out on her shift simply because she disagreed with her manager’s response to her break request. They urged her to respect the manager’s authority and decisions. The next day, the employee asked the manager for a day off for a doctor’s appointment. He told her to bring in a doctor’s note so he could approve the time off. The two then got in a confrontation and after consulting with upper management, the decision was made to terminate the employee. She was fired the following day.

Lower court proceedings. The employee subsequently sued, asserting ADA discrimination and retaliation claims and FMLA retaliation and interference claims. A magistrate judge recommended that the employer’s motion for summary judgment be granted. The district court adopted the recommendation and granted summary judgment to the employer. The employee appealed.

ADA claims. On appeal, the court considered whether the employee demonstrated that the employer’s stated reason for her termination (her insubordination towards her manager) was pretextual and concluded that she failed to do so. She did not dispute her unprofessional and insubordinate actions, which included leaving the store in the middle of her shift, telling upper management that she did not respect the manager, engaging in personal business with a customer during her shift, and repeatedly challenging the manager’s management style and operational decisions in front of other employees and customers. She also failed to show that her disability was the real reason for her termination. The employer fully complied with the employee’s medical restrictions and the one instance where her manager failed to do so was before he was made aware of the restrictions. Although the manager made a few comments about the employee’s disability, they were isolated comments and therefore were insufficient to show pretext. As to her ADA retaliation claim, she failed to show the stated reason for the termination was a pretext. Not only did she fail to rebut her employer’s explanation that it fired her for repeated acts of unprofessionalism and insubordination, she failed to show that the real reason for her termination was her complaints about her manager’s failure to adhere to her medical restrictions.

FMLA claims. To the extent that the employee’s FMLA retaliation claim was based on her termination, the district court was correct. But she had also premised her retaliation claim on the fact that her hours were reduced for two weeks after she returned from FMLA leave. The reduction in hours was a materially adverse employment action and given the temporal proximity, she satisfied the causal connection element for purposes of making a prima facie case. The employer failed to show a legitimate, nondiscriminatory reason for the reduction. Although it cited evidence of internal emails in which the employee had asked for reduced hours, it could not produce an email from the employee, and there was evidence that she did not request part-time work. Given the fact dispute, summary judgment was inappropriate.

Her FMLA interference claim was also revived. She had the right to be restored to the same or an equivalent position and there was no evidence that the employer would have reduced her hours regardless of her use of FMLA leave. The court rejected the employer’s arguments that it did not interfere with the employee’s FMLA rights because she had no "entitlement" to a 40-hour work week and that it eventually paid her for the hours she would have worked had her hours not been reduced. Prior to her FMLA leave, she worked a 40-hour week and she was entitled to be restored to a position with a 40-hour work week. And the fact that the employer eventually paid her (three years later) for the missed hours was irrelevant; an employer cannot escape liability for an illegal adverse employment decision by making a retroactive payment to an aggrieved employee.

SOURCE: Jones v. Aaron’s Inc., (CA-11), No. 17-14298, September 4, 2018, per curiam, unpublished.

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