Pension & Benefits News ‘Guilting’ comments about absences not enough to support employee’s FMLA claims
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Friday, November 9, 2018

‘Guilting’ comments about absences not enough to support employee’s FMLA claims

By Pension and Benefits Editorial Staff

Despite negative comments from supervisors about her absences, the FMLA claims of an employee who took leave after her husband’s suicide failed on summary judgment. Her employer approved all of her requests for medical leave and she failed to show she suffered any damages or that her employer’s nondiscriminatory rationale for taking adverse actions were pretextual. Her ADA claim also failed as there was no evidence she was disabled. And while she painted a picture of an unpleasant work environment, there was no evidence her working conditions were intolerable, said a federal court in Florida, granting summary judgment against this claim as well.

Not quite eight months after she was hired as a branch manager for PNC Bank, the employee’s husband committed suicide. After taking five days of bereavement leave, she briefly returned to work before taking approved leave under PNC’s Family Medical Leave Policy. Upon her return to work almost three months later, her supervisor told her the branch was underperforming.

Meets some expectations. The following month, she began reporting to another supervisor, who rated her performance as "Meets Some Expectations" and identified areas where she was expected to improve, including overall leadership skills. According to the employee, her performance rated "for the first half of the year when she was on leave lower than her performance in the second half of the year."

I hope you’re getting past that. Three months later, she took an additional six weeks of leave. When she told her supervisor the circumstances surrounding her leave, he purportedly responded "I hope that you’re getting past that, you know, and that we’re going to be able to really get this branch up and running." While she was on leave, he sent her a text message stating "I was expecting you back at work today." He also told her that other branches were "having to help out" while she was out. Not long after her return, one of the highest performing bankers was transferred to another branch even though he was ineligible for transfer. His transfer left the branch understaffed for several months.

New manager. Shortly after that, the employee began reporting to yet another manager, who allegedly informed her that they would not "have a very good working relationship" unless her production improved. After she took several days of leave, he advised her that her "absences were going to [pose] a problem" and that the branch needed to improve its performance. That same day, she requested intermittent FMLA leave and the following day she received a verbal warning for missing performance goals. The next month, she was placed on a performance improvement plan and not long after that, she received a written warning documenting persistent problems with her performance.

Resigns. She again applied for and was granted leave and upon her return was transferred to a different branch under the same manager. She ultimately resigned, claiming that branch had much lower traffic and her performance goals were unachievable.

Constructive discharge. In arguing that she was constructively discharged, the employee relied on several negative performance reviews leading to a verbal and written warning and a PIP; negative feedback from supervisors; the abrasive, rude, and demanding interactions with her last supervisor; the bank’s failure to fill the open banker position for a five-month period, impairing her ability to meet performance objectives; numerous insensitive comments about her medical leave; the aggressive goals imposed by the written warning; and the transfer to another branch. While her work environment may have been unpleasant, there was no evidence it was intolerable said the court, finding also that her assertion she was given unachievable performance goals by her supervisor to ensure her termination down the road was too speculative to support a constructive discharge claim. She simply did not experience the level of harassment and intimidation aimed at forcing her to resign, the court concluded.

FMLA interference. As to her FMLA interference claim, she did not dispute that PNC approved all of her leave requests and her argument that her FMLA rights were chilled was contradicted by the record, which, said the court, was bereft of evidence of a single instance in which she was dissuaded from taking medical leave because of the PNC’s actions. To the contrary, she fully exhausted her FMLA rights irrespective of her supervisors’ "guilting comments," the court observed, finding she failed to demonstrate some harm remediable by either damages or equitable relief.

FMLA retaliation. Her FMLA retaliation claim fared no better. She exercised her rights to their limit, was never denied a medical leave request, and was not constructively discharged. Even assuming she proved a prima facie case of FMLA retaliation, there was no evidence that any adverse action taken against her was pretextual. Not only was each alleged adverse action backed up by a documentary record supporting PNC’s actions, her claims that each negative encounter she faced at PNC was part of a campaign to curtail her FMLA rights and retaliate against her for past leave were consistently refuted by the record.

ADA claims. While the employee argued that she told each of her supervisors about her psychological conditions including depression and anxiety disorders, and that these conditions substantially limited her ability to work, she failed to produce sufficient evidence for a reasonable jury to conclude she was disabled. She relied entirely on her own deposition testimony, which was inconclusive on the matter, and the record was bereft of evidence that her mental condition prevented or severely restricted her in her ability to work. Although she took significant leave, she returned from each leave of absence full-time with no restrictions and never sought an accommodation based on a mental condition she was experiencing, said the court, finding that the absence of a disability, her ADA claims failed.

SOURCE: Gonzalez v. PNC Bank, N.A. (M.D. Fla.), No. 6:17-cv-543-Orl-40DCI, October 10, 2018.

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