By Pension and Benefits Editorial Staff
A supervisor’s statement that "she did not know, and did not want to say" whether an employee’s absence for her hand injury would be covered under her approved intermittent FMLA leave to care for her ill father didn’t constitute unlawful interference; the employee knew HR was instead the proper contact, a federal court in West Virginia ruled, granting in part the employer’s summary judgment motion. However, her claim that she was discharged in retaliation for her FMLA activity advanced because she presented evidence that she was viewed negatively because of her leave, that the timing was suspicious, and that the HR manager was being untruthful in claiming she falsified documents. But her claim for intentional infliction of emotional distress was tossed since she failed to make the requisite showing of "outrageousness.”
FMLA process. In late October 2016, the long-tenured employee was approved for intermittent FMLA leave to care for her father while he battled lung cancer. Under the employer’s policies, a supervisor who receives an absence report from an employee on intermittent FMLA leave is not permitted to ask any question and writes the employee’s comments on a "leave request" form, including whether the reason for the leave is FMLA. The form is then provided to HR. The parties agreed that the employee inquired about an absence on December 22, but they hotly disputed the contents of her discussions.
Divergent recollections of events. The employee claimed that she called her supervisor and stated that she needed to see a doctor because her finger was bleeding and asked if her absence would be covered under FMLA since the injury occurred while caring for her father. The supervisor allegedly responded that that she did not know, so the employee then called the HR manager, who purportedly answered that "it was a different instance," but if she "could go to the doctor and get an excuse, then they would cover it." The employee called her supervisor back and told her she needed a doctor’s excuse but said she was told the leave form would still identify her absence as FMLA since that was what she had originally reported.
"Falsifying records." In contrast, the supervisor claimed that the employee explained about her injury in the first phone call but would "get back with her." During the second call, the employee purportedly said she was "going to have to take an FMLA day," prompting the supervisor to designate the leave as FMLA. The HR manager, however, claimed that the employee called and said she was "taking an FMLA day" and asked how this would affect her holiday pay. After learning that she would not receive pay unless she had vacation time to run concurrently with her FMLA day, she asked the HR manager to "correct her paperwork" to change the reason for her absence from FMLA, but the manager responded that would be "falsifying records." On December 29, the HR manager terminated her because she lied about her reason for an absence and attempted to falsify documents.
FMLA interference. The employee’s FMLA interference claim failed since no reasonable jury could conclude that the employer failed to "responsively answer" her questions. She first pointed to the supervisor’s statement that "she did not know, and did not want to say" whether her absence would be covered under the FMLA. But she did not dispute that she knew HR was the proper contact source for FMLA questions, so "as a matter of common sense" the court would not hold that her choice to knowingly ask the wrong employee her FMLA question constituted the company’s failure to answer her question. To hold otherwise "would require employers to train every one of its employees how to answer all FMLA questions."
The court also rejected her assertion that the HR manager’s statement that "she cannot tell employees what to do" insinuated unresponsiveness; the manager was merely differentiating between answering employees’ questions (which is required under the FMLA) and making employees’ decisions for them (which is not).
FMLA retaliation. However, her FMLA retaliation could advance since the employee sufficiently alleged a causal link between her prior use of FMLA leave and her termination. To demonstrate that she was viewed negatively because of her leave, she presented evidence that a prior supervisor stated that she was a "a dependable employee," while her supervisor during the time she was permitted to take intermittent FMLA leave stated that she was not the most "dependable" as "she did call in a lot, multiple times shall I say, multiple times."
The timing of her termination was also suspicious since she was fired less than two months after she received intermittent FMLA leave and only seven days after she called in to inquire about FMLA leave for her finger injury.
Dispute regarding HR manager’s honesty. The employee also presented sufficient evidence of pretext. While the version of events from the HR manager explained why the employer terminated her, the employee disputed the HR manager’s account entirely. Due to the significant differences between the two versions of the conversation, it could reasonably be inferred that the employee was not arguing the HR manager merely misremembered what happened but was instead untruthful.
No IIED. Tossing her emotional distress claim, the court found that she failed to demonstrate sufficiently outrageous conduct, despite her assertion that she was required to report to the workplace "days after Christmas" and accused of abusing the FMLA and falsifying documents, even though she was on approved medical leave to care for her dying father. Such conduct was "typical of the average termination," and telling an employee the reason for her firing cannot be considered "extreme and outrageous."
Additionally, while the court was sympathetic to the fact that the employee was terminated shortly after Christmas and while she was caring for her ill father, those circumstances did not result from the employer’s conduct, and to hold otherwise would "inappropriately allow for an IIED claim when the outrageous conduct merely stems from the discharge itself." The employer’s knowledge that she may have been "particularly susceptible to emotional distress" also did not require a finding of outrageousness due to the "rather routine facts" involved in her termination.
SOURCE: McCoy v. Diamond Electric Mfg. Corp., (S.D. W. V.), No. 3:17-cv-04329, February 19, 2019.
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