Pension & Benefits News FMLA retaliation claims of executive assistant fired shortly after revealing endometriosis diagnosis revived
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Friday, December 18, 2020

FMLA retaliation claims of executive assistant fired shortly after revealing endometriosis diagnosis revived

By Pension and Benefits Editorial Staff

Although the court below correctly granted summary judgment against the ADA and FMLA interference claims of an executive leasing assistant who suffered from chronic health issues, including endometriosis, which caused her to frequently miss or be late for work, her FMLA retaliation claims should have gone to a jury, the Eleventh Circuit ruled, reversing the lower court in part. Citing evidence of retaliatory animus in the record, including comments by a supervisor that she’d been sick for over a year and "Who’s sick for that long," the appeals court found a reasonable jury could reject the employer’s stated reason for terminating her. The court also reversed the grant of summary judgment on her claim that she was terminated for refusing to sign a performance memo which she believed violated her FMLA rights. Judge Carnes concurred in part and dissented in part.

Health issues. As an executive leasing assistant, the employee provided administrative assistance to two vice presidents of the real estate management company. Disciplined for tardiness in January 2010, she signed a performance memorandum in which she agreed to become more of a team player and arrive to work on time. The following year, however, she began experiencing chronic health issues that caused attendance issues.

Look what the cat drug in. She claimed that in 2012, she told the VPs she might have uterine fibroids and asked to be accommodated for intermittent lateness, early departures, or full-day absences. In February 2013, she was granted time off for exploratory surgery and in April, she purportedly told the VPs she had been diagnosed with endometriosis and needed to immediately begin treatment. According to the employee, the company was less than accepting of her need for medical leave and one day when she was late due to health reasons, one of the VPs remarked “Oh, look what the cat drug in,” when she arrived at the office.

Work performance. The VPs, however, claimed her work performance had deteriorated and they lost patience with her when, in April, she responded in an insubordinate way to an email. They also downloaded a computer program so they could view computer activities because she was working on personal tasks during working hours.

Performance memo. As a result of her tardies—32 days between January and May 2013—the VPs and the CFO, who oversaw HR matters, prepared a performance memo in May, which listed various work-related concerns including the employee’s defensiveness, excessive tardiness, failure to seek consent before changing her work hours, failure to adequately give notice when taking extended paid time off, excessive amount of the days working on personal affairs, and causing a difficult work environment.

Fired. At a meeting with the employee in early June regarding the memo, the VPs allegedly told her, “You’re going to have to square this up. You’re not going to be able to be late. You’re not going to be able to be out.” The employee refused to sign the memo and was fired shortly thereafter. She sued, asserting claims under the ADA and the FMLA, and the lower court, adopting the recommendations of a magistrate judge, granted summary judgment to the company.

ADA claims. Turning first to the employee’s ADA claims, the Eleventh Circuit found she failed to show she was disabled within the meaning of the statute. She argued that she was ill from 2011 to 2017 with ovarian cysts, uterine fibroids, and endometriosis, which caused “extreme pain, exhaustion, sleep interruption, and lack of bodily function control.” These ailments, she asserted, substantially limited her ability to sleep, work, and reproduce. There was no evidence, however, regarding the timing, frequency, and duration of her impairments, said the court, and thus it could not assess whether her impairments substantially limited her ability to work or sleep as compared to most people in the general population.

And although endometriosis is a disorder of the reproductive system and by definition, so are uterine fibroids and ovarian cysts, the court found the employee introduced no evidence that she was substantially limited in her ability to procreate because of these impairments during the time she worked for the company. Although she had a hysterectomy in 2017, it was over three years after she was fired. Thus, the court affirmed summary judgment against her ADA claims.

FMLA interference. Nor could she convince the appeals court to revive her FMLA interference claim alleging the employer never notified her of her right to take leave as she did not show she was harmed by this failure. Indeed, she admitted that the employer did not deny her any leave time. Her contention that she suffered damages because she was fired rather than being allowed to continue to use intermittent leave was also rejected as there was no evidence she was terminated as a result of the employer’s failure to give her notice of her FMLA rights.

Need for future FMLA leave. As to her claim she was fired because she expressed the need for future FMLA leave, the appeals court found she engaged in protected activity when she purportedly notified the employer that she would need future FMLA-qualifying leave for tardiness or absence because of her uterine fibroids, ovarian cysts, and endometriosis. The court rejected the employer’s contention she did not give proper notice of her need for leave, including the “anticipated timing or duration” of leave. Because she suffered from a chronic health condition causing flareups, her need for leave was unforeseeable and she was not required to notify the employer of the timing or duration of her leave. There was also evidence she emailed the VPs on specific days when she would be absent or late due to her health conditions.

Further, there was evidence of a causal connection between the employee’s need for future leave and her termination. Just five days after she purportedly told the VPs of her endometriosis diagnosis and need for future leave, one downloaded software onto her computer to monitor the time she spent off-task. Three weeks after she began treatment, the VPs prepared the performance memo to discipline her for attendance issues. Moreover, she testified that she was terminated shortly after she objected to being disciplined for sick leave. She also claimed that one of the VPs told her just before firing her that that “nobody’s sick that long.”

Pretext. And while the company claimed it fired the employee because of her “insubordination, ineffectiveness, and her tendency to handle personal projects while at work,” she presented sufficient evidence of pretext. She testified that at the June meeting about her job performance, the VPs mostly reprimanded her for being “out” and “late” and not for working on personal matters or being insubordinate. Further, when they discussed the performance memo, they told her “You’re going to have to square this up. You’re not going to be able to be late. You’re not going to be able to be out.” These comments, said the court, suggested that the company was more concerned with her absences and tardiness than with her working on personal matters at work or with her attitude.

She also claimed the VPs began monitoring her computer for signs she was off-task just five days after she told them about her endometriosis diagnosis and need for continued sick leave and fired her 37 days later. Such close temporal proximity between her leave request and her termination was evidence of pretext as was evidence the VP commented "look what the cat drug in" when she arrived late to work and remarked just before firing her "Oh nobody’s sick that long. You’ve been sick for over a year. Who’s sick that long; over a year you’ve been sick?"

As to the employer’s contention that it decided to fire the employee for her defensiveness in an email exchange with one of the VPs and a client, which occurred before she revealed her diagnosis, based on the evidence of retaliatory animus, a reasonable jury could reject its stated reasons for terminating her, said the court, noting that if it were to accept the company’s argument, "any misstep an employee makes before engaging in protected activity would allow her employer to evade liability for retaliation under the FMLA, regardless of the evidence of retaliatory animus." Thus, the court reversed the grant of summary judgment on this theory of FMLA retaliation.

Refusing to sign the memo. The court also reversed summary judgment on her claim she was terminated for refusing to sign the memo at the June meeting because she believed it violated her FMLA rights. There was evidence she reasonably believed the employer was engaged in unlawful practices by eliminating her right to FMLA leave including that the memo listed as concerns her "excessive tardiness" and failure to seek the VPs’ consent before changing her working hours. She also testified that when the VPs discussed the memo with her, they instructed, "You’re not going to be able to be late. You’re not going to be able to be out" and told her "You know you need to sign this [Memo] or you will be terminated."

When she purportedly responded that her tardiness and absences were caused by her illness, and she did not believe she could sign the memo because she knew she would have future treatment days, one of the VPs allegedly said "Oh nobody’s sick that long," just before firing her. Due to these alleged remarks, the employee could have reasonably believed that signing the memo would cause her to lose her right to FMLA leave, observed the court, noting that the memo addressed her work attendance and cautioned that she could be terminated if she failed to make necessary changes.

While the employer argued her belief was unreasonable because the memo did not indicate or imply that the employee was agreeing that any further absences or tardies would result in her termination, and she had signed a similar memo in 2010, accepting her account of the meeting, the court found she reasonably believed that signing the memo would waive her FMLA rights, because she understood the VPs to communicate as much and they did nothing to correct this belief.

Partial concurrence and dissent. Judge Carnes, in a lengthy opinion concurring in part and dissenting in part, agreed with the majority on the employee’s claim that she was fired because she had informed her employer she would continue to need to take some time off to address a medical issue. She disagreed, however, that a jury should decide whether the employee also engaged in protected conduct under the FMLA when she refused to sign the memo acknowledging that she had received a performance memorandum from her employer expressing concern with various aspects of her attitude and job performance. "Not surprisingly," Judge Carnes argued, "the FMLA nowhere prohibits an employer from giving its employee a memorandum setting out the employer’s concerns about the employee’s job performance, nor does the statute prohibit the employer from requiring the employee to acknowledge her receipt of such a memorandum."

The majority, she pointed out, agreed that the employee’s refusal to acknowledge receipt of the document was not prohibited by the FMLA. "Yet, the majority concludes that it might have been objectively reasonable for Munoz to conclude that Defendant was engaging in unlawful conduct when it directed her to acknowledge receipt of the document. And rather than decide—as our court has typically done—whether an employee’s belief that particular conduct is protected by statute is an objectively reasonable belief, the majority laterals this novel question to a jury to decide."

In so ruling, Carnes argued, "the majority has largely jettisoned the objectively-reasonable-belief test that we have long used to gauge whether an employee’s conduct should be deemed to be protected against an adverse action by the employer—the majority’s lip-service to that test notwithstanding." Further, she asserted that based on the facts of the case, "and even with the generous assumption that Munoz actually believed that her refusal to acknowledge receipt of the document constituted protected conduct under the statute—I find it impossible to conclude that any such belief by Munoz was objectively reasonable.

"And it is our responsibility, when the record prompts such a conclusion, not to abandon our duty to say so. Finally, in fashioning a jury question on this novel proposition, the majority has greatly shifted—and arguably mooted—what is the proper focus of a jury inquiry: whether Munoz proved that but for her notification of continuing medical leave, Defendant would not have fired her."

SOURCE: Munoz v. Selig Enterprises, Inc. (CA-11), No. 18-14606, December 4, 2020.

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