Pension & Benefits News Fired railroad employee’s FMLA claims derailed where Amtrak reasonably believed she gave passenger free upgrade
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Friday, December 11, 2020

Fired railroad employee’s FMLA claims derailed where Amtrak reasonably believed she gave passenger free upgrade

By Pension and Benefits Editorial Staff

A customer service representative who was fired for giving a passenger a free upgrade, but denied doing so, failed to show the reason for her termination was pretext where Amtrak reasonably believed she did, a federal district court in the District of Columbia ruled, granting summary judgment to Amtrak on both her FMLA retaliation and interference claims. A district manager she alleged was treated more favorably was not a proper comparator and temporal proximity alone could not show pretext.

Leave approved. The employee started working at Amtrak in 1997 as an auto train attendant and later became a customer service representative (CSR). In October 2017, she requested intermittent leave to care for her daughter based on medical documentation that her child’s condition could cause flare-ups three times per year for three to five days per episode. Amtrak granted the request through a one-year period. Before the one-year period expired, Amtrak requested her to recertify her request because it believed her absences went beyond the amount of approved leave. In November 2018, she again requested intermittent leave, estimating her absences would increase to accommodate appointments and additional flare-ups. Amtrak approved this request, which allowed her to take leave for a one-year period.

Policies violated. Over the course of her employment, the CSR was subject to discipline several times for unauthorized absences and tardiness. Amtrak issued at least five notices of intent to impose discipline for the alleged violations. Amtrak later withdrew one of them because she had obtained approval for the absence. For at least three of the remaining four, she waived her right to an investigation, opting instead to accept the discipline imposed. In January 2019, the lead service attendant noticed the employee gave a passenger a free upgrade in violation of Amtrak’s policies. After an investigation and hearing, Amtrak terminated her.

The employee filed suit against Amtrak, alleging it unlawfully fired her for requesting FMLA leave. She brought both retaliation and interference claims. Amtrak filed this motion for summary judgment.

Belief was reasonable. Granting Amtrak’s motion for summary judgment on the employee’s FMLA retaliation claim, the court found she failed to show Amtrak’s stated reason for her termination was pretext. Amtrak’s legitimate, non-discriminatory reason for her termination was that she upgraded a customer without charge in violation of its policies. Although she denied she issued the upgrade, whether she in fact did was beside the point. Amtrak’s belief that she did so was reasonable. After conducting an internal investigation and a hearing at which the employee presented evidence and witnesses, Amtrak concluded she issued the upgrade. The court rejected her argument that the hearing was unfair because the agent she alleged directed her to issue the upgrade was on vacation at the time of the hearing. Her union did not request the hearing be postponed because of his absence and she did not try to summon him to participate in the hearing. She did not show that Amtrak prompted the employee to take vacation leave on the day of her hearing to prevent him from testifying.

Timing. The court also rejected the employee’s argument regarding the timing between her termination and her FMLA requests. Temporal proximity alone cannot constitute a showing of pretext.

Manager not similarly situated. In addition, there was insufficient evidence from which a jury could reasonably conclude a district manager was similarly situated to the employee. The employee argued the manager, who also gave a passenger an upgrade, was treated more favorably than she was. He was issued a counseling letter and had to take training courses. However, the court found the manager was not an appropriate comparator. He and the employee did not share the same job or job duties. The manager had the authority to provide complimentary upgrades while the employee did not. The circumstances surrounding the offense also were dissimilar. The manager was candid about his conduct, which was based on the practice of prior managers giving an upgrade. In contrast, the hearing officer did not credit the employee’s explanation that another employee directed her to issue the upgrade and instead concluded she acted of her own accord.

Failed to show interference. The court also granted summary judgment to Amtrak on the employee’s FMLA interference claim. She failed to produce evidence she was prejudiced by the alleged improper recording of her FMLA leave as sick time or unexcused absences. In fact, Amtrak cancelled one discipline notice when it confirmed her absences were FMLA-approved. That showed employees would not receive discipline if mistakes were made in recording leave.

In addition, the employee did not show that Amtrak interfered with her ability to take leave by requesting that she recertify her leave. The FMLA regulations authorized Amtrak to request recertification where the circumstances described by the previous certification had changed. In fact, Amtrak approved her for an even greater amount of FMLA leave after it requested recertification.

Finally, the court rejected the employee’s argument that a colleague’s informing coworkers that she took leave constituted interference. The employee herself let coworkers know about her leave. Moreover, she failed to explain how sharing this information interfered with the exercise of her rights. The employee did not dispute that she returned to the same position with the same rate of pay and benefits each time she returned from FMLA leave.

SOURCE: Hamilton v. National Railroad Passenger Corporation, D.D.C., No. 1:19-cv-01986 (TNM), November 18, 2020.

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