Pension & Benefits News Employer’s extra hurdles to granting FMLA leave wasn’t unlawful interference
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Friday, June 14, 2019

Employer’s extra hurdles to granting FMLA leave wasn’t unlawful interference

By Pension and Benefits Editorial Staff

By Pension and Benefits Editorial Staff

Because an employee did not suffer any actual prejudice when her employer made it more difficult for her to apply for FMLA leave before finally granting her request, and her allegations surrounding her subsequent termination stated a claim for FMLA retaliation, her duplicative FMLA interference claim should be dismissed, a federal magistrate judge in Texas concluded in her report and recommendation denying in part the employer’s motion to dismiss. The employee, who also claimed that she was sexually harassed by two male supervisors because of her romantic relationship with a female coworker and cornered in the parking garage by armed security guards on the day of her termination, failed to plausibly allege a claim for intentional infliction of emotional distress, but her claim for false imprisonment advanced.

Sexual harassment. The employee developed a friendship with a female coworker who ultimately requested a change in departments based on the employer’s policy of permitting romantic relationships among staff as long as they did not report to the same supervisor. After the transfer, the relationship between the two women became romantic. However, two male supervisors began repeatedly harassing the employee as a result of this relationship, which exacerbated her anxiety and depression.

Termination follows FMLA leave. On August 16, 2017, she applied for FMLA leave due to her emotional distress and mental symptoms, providing documentation from her primary care physician. However, the employer made her application more difficult by twice asking her to "recertify" her leave request through their third-party administrator. During this time, she also purportedly became the subject of "a multitude of trivial complaints" regarding her performance, resulting in a number of written disciplinary reports that she claimed were groundless. On February 16, 2018, she was told she was "unreliable" because she was on FMLA leave and was fired.

Armed guards block access to car. On the day of her termination, the two male managers instructed her to meet them in a coaching room, where they asked for her badge and fired her in front of three departments and at least 60 employees. The managers then had the unarmed head of security and two armed and uniformed security guards escort her to the parking garage. When she tried to get into her vehicle, she was blocked from doing so at the direction of the head of security, was cornered in the garage, and was told to "shut the f*ck up." She was ultimately able to escape and walked home.

No FMLA interference based on application process. The employee’s interference claim asserting the employer violated the FMLA by making it more difficult for her to apply for leave failed as a matter of law. Significantly, she did not assert any facts suggesting that she suffered any prejudice due to the delay in processing her FMLA application. Because she received the leave she requested, she could not state a claim for FMLA interference.

Duplicative of retaliation claim. Nor could she advance an FMLA interference claim based on her termination since it was duplicative of her FMLA retaliation claim. Though an employee can technically pursue both an interference and a retaliation claim, where the "essence" of the two claims is identical, the court may dismiss the duplicative claim. A court looks to the substance of the claim to determine whether it arises from the deprivation of an FMLA entitlement (interference) or from punishment for the exercise of an FMLA right (retaliation). Here, the crux of the employee’s complaint was that she was terminated for exercising FMLA leave, not that she was denied the right to take leave. "This is a claim for FMLA retaliation, not FMLA interference," concluded the magistrate.

Plausibly alleged false imprisonment. However, she plausibly alleged a claim of false imprisonment, which required her to demonstrate a "willful detention" that was without consent or authority of law. The employer contended that the employee failed to allege she was actually detained since she ultimately managed to escape and to walk home on foot, but the magistrate disagreed. While she did not allege how long she was detained, she sufficiently alleged that she was actually detained as opposed to a mere "threat of detention." She claimed three men, two of whom were armed, cornered her in a parking garage, prevented her from accessing her vehicle to leave the parking garage, and threatened her with expletives. This met the definition of a detention, which "can be effected by intentional use of any means to terminate a person’s freedom of movement, including actual physical restraint, or by explicit or implicit threats of force." While an individual is not detained when she is free to leave, that was not what the employee alleged. Rather, she claimed that she "managed to escape a detention."

IIED claim tossed. But the magistrate recommended dismissal of her IIED claim, which the Texas Supreme Court had described as "gap-filler" tort "judicially created for the limited purpose of allowing recovery in those rare instances in which a defendant intentionally inflicts severe emotional distress in a manner so unusual that the victim has no other recognized theory of redress." The state’s high court also cautioned against extending this tort "to circumvent the limitations placed on the recovery of mental anguish damages under more established tort doctrines." The magistrate explained that this caution was "particularly applicable" to cases where a plaintiff combines a statutory sexual harassment claim with an IIED claim.

To sustain her IIED claim, the employee needed to allege additional egregious conduct independent of the discrimination and harassment giving rise to her Title VII or other common-law claim, which she failed to do. Though she argued that the claim should be permitted because it was possible that mental-anguish damages were not available under the FMLA, the statutory limitations on damages—and the ability to circumvent them through pursuing an IIED claim—was "precisely the reason the Texas Supreme Court limited the use of the tort as a gap filler."

SOURCE: Garcia v. Randolph-Brooks Federal Credit Union (W.D. Tex.), No. 5:18-cv-00978-OLG-ESC, April 16, 2019.

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