Pension & Benefits News Failure to demonstrate compensable damages doomed employee’s ‘forced-return’ FMLA claim
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Thursday, February 6, 2020

Failure to demonstrate compensable damages doomed employee’s ‘forced-return’ FMLA claim

By Pension and Benefits Editorial Staff

An employee who claimed that he was forced to prematurely return to work in a light-duty role following a workplace injury failed to defeat summary judgment on his FMLA interference claim since he couldn’t establish that he suffered any FMLA-recoverable damages or any link to alleged damages and his claim. Though he asserted that the employer unlawfully "docked" his pay for 69 hours because it falsely believed that he should have been at work during the same time period that he was allowed to be on FMLA leave, there was no evidence that any of those hours related to time that he actually worked or for which he was otherwise entitled to compensation, a federal district court in Kentucky ruled.

Most of lawsuit already tossed. In a prior order, the court tossed most of the employee’s lawsuit, holding that he was fired a week after he returned from FMLA leave due to a lack of integrity in connection with his return. It also held that he failed to show his employer’s policies or conduct "chilled" his FMLA use or that he suffered unlawful retaliation. However, a triable issue remained as to whether the employer, relying on workers’ comp standards, forced him to return to work in a light-duty role, despite conflicting FMLA counter-options. Therefore, a sole claim remained on the forcible-return aspect of his FMLA interference claim.

FMLA damages. The employer now sought summary judgment on the grounds that he could not prove any recoverable damages. At the outset, the court squarely rejected the employee’s contention that summary judgment was not appropriate on that basis. The statute was clear that unless he could demonstrate FMLA-recoverable damages, the employer was entitled to judgment as a matter of law. Thus, he needed to create a triable issue as to (1) lost pay, benefits, or other monetary harm, and (2) a link between such damages and his FMLA interference claim.

Alleged damages. In an attempt to show damages, the employee contended that the employer "docked" his pay by $2554.33 for 69 hours because it falsely believed that he should have been at work during the same time period that he was allowed to be on FMLA leave. In support of this argument, he pointed to his final pay stub, his own deposition testimony, and an email describing the employer’s "general rule of thumb for appointments during work hours."

Pay stub. The pay stub covered the final two days of his employment and reflected no "Dock" time during that period. The document also showed that, as a bookkeeping matter, the company designated 69 hours in the year as "Dock" hours. Critically, the employee offered no evidence to show that any of those 69 hours related to time that he actually worked or for which he was otherwise entitled to compensation. In sum, the document did not suggest that "Dock" hours "represented FMLA-recoverable lost compensation or benefits."

Deposition testimony. The employee also offered his own deposition testimony that the employer withheld payments for a non-specific number of vacation hours for unspecified reasons. But his testimony "did not meaningfully advance his effort to prove lost compensation or benefits" since the court already rejected that claim in its previous order, relying in part on a leave specialist’s declaration that the employee was paid all "earned and accrued time off" (specifically, $13,570.14 for 366.57 earned vacation hours).

Email describing policy. The employee also relied upon a company email describing the employer’s "general rule of thumb for appointments during work hours." In pertinent part, the email stated that an employee who does not return to work following an appointment relating to a work-related injury, and is "unable to provide written medical documentation supporting the reason," then the time missed from work will be charged to "Earned Time Benefit (ETB) or DOCK time."

Nothing in the communication supported the employee’s claim that the company "docked" his pay by 69 hours because it falsely believed that he should have been at work during the same time period that he was allowed to be on FMLA. Rather, the email represented its "entirely defensible (and logical) position that an employee that fails to return to work after an appointment without a documented medical basis must either claim the time as vacation (ETB) hours or ‘DOCK time.’"

Allowed by FMLA. To the extent the employee relied on the email for his claim that the employer "forced" him to use sick time, the court noted that the FMLA specifically allows an employer to require an employee to substitute accrued paid leave for unpaid FMLA leave. Thus, any forcible ETB use was not an FMLA-compensable lost benefit.

Unpaid time off. The email supported the employer’s contention that "Dock" was merely "a timekeeping category that accounts for hours that are not worked and unpaid." Moreover, the employee failed to explain how proof that the employer did not pay employees for hours of missed work without a medical excuse (following a medical appointment) meaningfully contributed to his theory. In sum, he offered no evidence to show that "Dock" hours represented lost pay, benefits or other monetary harm. Rather, the employer used the "Dock" timekeeping category simply to reflect hours that are not worked and unpaid.

No nexus. The employee also failed to demonstrate a causal nexus between his damage and interference claims. He offered little explanation and no proof for his theory that, if the employer had not forced him to return to work, then it would not have docked his pay. Indeed, this was "simply illogical" since had the employer allowed him to stay on unpaid FMLA leave, he would have been paid less than what he actually earned. Moreover, he failed to explain how the employer’s "misguided belief" regarding his light-duty return obligation "retroactively impacted precedent pay decisions."

SOURCE: Jones v. Progressive Casualty Insurance Co., (E.D. Ky.), No. 6:18-cv-00021-REW-HAI, January 21, 2020.

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