Pension & Benefits News Employee who sang in rock band on days he had taken FMLA leave can’t advance retaliation claim
Friday, October 18, 2019

Employee who sang in rock band on days he had taken FMLA leave can’t advance retaliation claim

By Pension and Benefits Editorial Staff

Though he may have just been a singer in a rock and roll band, a county maintenance worker who was terminated after his employer found that he had performed on nights he had taken FMLA leave for a throat condition, could not establish a triable issue of fact on his claim that his termination was in retaliation for exercising his FLMA rights, a federal district court in Pennsylvania held. The court granted summary judgment to the county, dismissing the employee’s claims under the FMLA, ADA, and Pennsylvania law.

The employee worked for Bucks County, first as a custodian in a nursing home, and then as a groundskeeper at a local park. Seven years before he was hired, he was diagnosed with esophageal achalasia, which causes the esophageal valve to relax while swallowing. According to the employee, this causes him swallowing problems, vomiting, aspiration during sleep causing chest pain, and retention of food particles in the esophagus, which on at least one occasion caused food poisoning. The third-party administrator for the county’s FMLA program approved FMLA leave for the employee for several different time periods—both continuous and intermittent leave periods—over the course of several years between 2014 and 2017. In 2016, he was disciplined for taking more leave than allowed, which he contended was an innocent mistake.

Facebook posts. Sometime in 2017, when the employee was absent on leave, one or more of his coworkers told the county’s operations manager that the employee played in a rock band and that they had seen Facebook posts about band performances taking place on days when he was out on leave. In addition, he was accused of taking leave on or around days that the Philadelphia Phillies or Philadelphia Eagles were playing. The operations manager asked the operations director to investigate the claims.

Terminated. The operations director produced a report comparing the dates of band performances with the dates the employee was on leave. At a meeting where the employee was confronted with evidence that he had performed in the band on days he had taken leave, he stated that on those days he "felt better in the afternoon," and the condition could flare up at any time." He contended that playing in the band was totally unrelated to taking leave, and that most of the nights he had performed he had worked earlier that day. The employee was subsequently terminated for abusing his FMLA leave.

Related to the employee’s ADA claims, the county had a policy in winter of relocating Grounds Department workers, such as the employee, from county parks to indoor locations, where there was more work. The employee sought not to be relocated. In 2014, he filed an ADA accommodation request, stating his "achalasia" as his impairment, and noting that the change in location would affect his sleep patterns and could exacerbate his condition. At a meeting over that request, the employee also cited "family issues" based on problems his wife was having. The employee ultimately decided to drop the accommodation request but testified that he subsequently was given harder work assignments and felt "targeted." In 2016, when workers again were relocated, the employee again requested not to move, citing his wife’s problems, not his own health.

FMLA prima facie case. The court held that while there was no dispute the employee invoked his FMLA rights and subsequently suffered an adverse employment action (termination), he could not raise a triable issue of fact as to the third element of his prima facie case—that the termination was causally related to his exercising FMLA rights. Instead, according to the court, the "overwhelming trend of the evidence" is that the county fired the employee not because he took FMLA leave, but because it "believed he abused it."

The court rejected the employee’s contentions that "contradictions, inconsistencies, and implausibilities" riddled the county’s explanation. For example, while the ostensible evidence of FMLA leave abuse was his band performances on days he took leave, in fact the band played on only two of the 94 days he took leave, and there were extenuating circumstances on those two days. According to the court, however, this at most "pokes holes" in the county’s methodology but does not refute that the county honestly believed he abused the leave.

Honest belief. The county relied on the report by the operations director showing three such dates. The report also showed leave was taken on a day before a concert and another instance when the band performed while he was on unexcused leave. According to the court, the employee did not show that the report’s findings were "so implausible and/or incoherent that they were clearly a pretext for discrimination." Instead, the evidence indicates that his employers "honestly believed—rightly or wrongly—that an individual who was capable of screaming rock lyrics into a microphone in a bar until the small hours of the morning was capable of coming to work that day or the day before." Thus, even if the employee could establish the prima facie case, he could not establish that the reason given for his termination was pretextual.

ADA discrimination. Because the evidence could only show that the county terminated the employee based on the honest belief that he was abusing his FMLA leave, the employee’s ADA claim failed as well, the court held. The employee would not be able to show that his termination was motivated by his disability. There was no evidence that the operations director, who recommended the employee’s termination, had any resentment of the employee’s illness. Instead, the evidence showed that he was concerned about the employee’s abuse of his leave, not the fact that he was ill and needed leave. The county’s rejection of the employee’s requests not to be relocated did not evidence antagonism to his illness, since the primary reason he cited for not being relocated were family problems, not his health, the court held.

ADA retaliation claim. A request for FMLA leave may qualify as a request for a reasonable accommodation under the ADA, and a prior judge found that the employee’s request not to be relocated for health reasons was protected activity under the ADA. The employee also suffered an adverse employment action subsequent to those requests for leave. His ADA retaliation claim failed, however, for the same reason as FMLA retaliation—the absence of a causal connection between protected activity and the adverse action. The fact that only three months passed between the final request not to be relocated and the employee’s termination was not sufficient to infer the causal link, the court held. Additional evidence was required, and for the same reasons as described above, such evidence was lacking.

SOURCE: Beishl v. County of Bucks, (E.D. Pa.), No. 2:18-cv-02835-JPH, September 18, 2019.

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