Pension & Benefits News FMLA reprisal claim bolstered by supervisor’s emails suggesting resentment over employee’s leave
Wednesday, October 16, 2019

FMLA reprisal claim bolstered by supervisor’s emails suggesting resentment over employee’s leave

By Pension and Benefits Editorial Staff

Because an employee who was ostensibly terminated for not working the proper hours presented sufficient evidence of suspicious timing and her manager’s unhappiness about her taking of FMLA leave, she defeated summary judgment on her FMLA retaliation claim, ruled the Eastern District Court in New York.

FMLA leave. The employee worked as a physical therapy aide, rotating her time between the employer’s Clove Road (CR) and Annadale facilities. In the summer of 2015, she took approved FMLA following a work-related injury at the CR facility. She claimed that after she returned, the facility’s manager began to treat her differently and became less responsive.

Placed on PIP. In January 2017, she began taking PTO to care for her sick child. That March, the CR manager placed her on a 90-day Performance Improvement Plan (PIP) for taking several PTO days without adequate notice. The manager met with her twice a week during the PIP, which the employee successfully completed. The employee then applied for FMLA leave in May.

Additional leave. On June 6, while her FMLA application was pending, the CR manager emailed her and two coworkers to tell them that "many employees have been interrupting our physicians to consult on their children’s health, to be seen, and or have friends or family members seen in this office. This is not acceptable." The employee was then approved for FMLA on June 8. She took four days of leave over the next three months, including August 4.

Work schedule. A primary dispute between the parties concerned the employee’s correct work schedule on "late patient" Thursdays at the Annadale facility. The employer claimed that she was supposed to work from 11 a.m. until 8 p.m. on those days while the employee claimed that she was only supposed to work from 9 a.m. until 5 p.m., unless a supervisor told her otherwise.

Fired. On August 4, a physical therapist complained to the Annadale manager that the employee was not working until 8 p.m. on "late patient" Thursdays, including August 3. That same day, the Clove manager sent out an email urging staff to "really think about dissolving" her role because of "her limited scope of practice and her chronic issues with time and attendance." On August 7, HR advised the employee she was being terminated due to her failure to work the proper hours.

FMLA retaliation. Allowing the employee’s FMLA retaliation claim to advance, the court found sufficient evidence to infer retaliatory intent since she was fired three days after her latest FMLA leave and the CR manager had made comments that could be interpreted as disapproval. The manager’s repeatedly expressed frustrations about her leave could also lead a reasonable jury could find that her FMLA leave was a motivating factor in her termination.

First, on June 6—a month after she applied for FMLA leave—the manager advised the employee and two others that it was "not acceptable" for employees to "interrupt" the facility’s "physicians to consult on their children’s health." Then, on August 4—when the employee took FMLA leave—she sent an email indicating that the employer should "really think about dissolving" the employee’s role" because of "chronic issues with time and attendance." While this could have related solely to her failure to work late on Thursdays, a reasonable jury could also find they included her FMLA leave.

A jury could thus reasonably find that these emails—in conjunction with the employee’s claim that the manager began to treat her differently after she first took FMLA leave—suggested that FMLA leave was a motivating factor in the employer’s decision to terminate her based upon the manager’s recommendation. Notably, the employer did not dispute that she properly recorded her hours and that it was never brought up during her PIP meetings. Thus, it either knew of her hours or did not monitor her schedule, which would allow a reasonable jury to doubt whether it was as concerned about it as it purported to be when it fired her.

SOURCE: Chauca v. AdvantageCare Physicians, P.C., (E.D.N.Y.), No. 1:18-cv-02516-BMC, September 5, 2019.

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