By Pension and Benefits Editorial Staff
Because a county employee who had taken FMLA leave three times to care for his wife was discovered to have falsified documents in his last two leave requests, these leaves could not form the basis of his FMLA interference claim, ruled a federal district court in Hawaii, granting in part the employer’s motion for summary judgment. His first period of leave was too remote from his termination, the court reasoned. A fact issue remained, however, as to whether he was terminated because of his wife’s disability: The employer’s stated reasons for terminating him were all subjective and he was terminated four days after returning from FMLA leave.
Multiple FMLA leave requests. The employee took three periods of FMLA leave to care for his wife. First, he applied for and was approved to take FMLA leave from November 2 - 13, 2015. As part of the FMLA approval process, he submitted a certification form signed by a physician stating that his wife had become partially blind due to M.S. disease and needed assistance with doctor’s appointments and emotional needs.
Next, the employee applied for and was approved to take FMLA leave from June 22 - July 8, 2016. In support of this request, the employee submitted a certification that was digitally signed by another physician. The employee wrote on the certification form that he needed leave due to his wife’s blindness and follow-up appointments. In the physician section of the form, it indicated that the employee’s wife had Parkinson’s Disease.
Finally, the employee applied for and was approved to take FMLA leave from January 3 - 20, 2017. As part of the FMLA approval process, he submitted an application for leave dated October 24, 2016, and a certification that was digitally signed by a physician. The employee described the reason for leave as continuous follow-up for Parkinson’s Disease.
Layoff. When the employee was laid off, on January 27, 2017, he was 71 years old and he was replaced by an employee who was 66. The employee filed a charge with the EEOC and the Hawaiian Civil Rights Commission. Later he filed a complaint alleging FMLA interference and retaliation based on his termination; FMLA interference and retaliation because the employer stopped purchasing shirts from the employee’s t-shirt business; disability discrimination under the ADA; and age discrimination under the ADEA. The employer moved for summary judgment.
Falsified requests can’t support interference. Contending that the employee was not protected by the FMLA because he falsified the second and third requests, the employer cited a declaration by the physician who purportedly signed the certifications for those requests, in which the doctor stated that he neither completed, authorized, or signed any FMLA paperwork, nor did ne communicate with the employee over email. Even the employee’s wife testified that she had no appointments with the doctor during the FMLA leave periods her husband took in 2016 and 2017. Concluding that the 2016 certifications were falsified, the court held that the employee was not protected from termination arising from those FMLA leave periods and that he cannot rely on the 2016 certifications to support his interference claim.
As a result, the employee could only rely on his 2015 leave to support his FMLA claims, but there was no temporal proximity between his leave in November 2015 and his discharge in January 2017. As a result, the court granted summary judgment on his interference claim arising from his termination.
Falsified requests can’t support retaliation. Nor could the employee rely on the 2016 certifications to support his FMLA retaliation claims, the court stated. Because he falsified those records, the employee did not "objectively or subjectively" believe that he would be protected under the FMLA.
Post-charge retaliation. But the employee was able to advance his retaliation claim based on the county’s decision to stop purchasing t-shirts from his business—which it had done for six years—just three months after he filed a charge with the EEOC and state agency. The Ninth Circuit has not decided whether the McDonnell Douglas framework applies to FMLA retaliation claims, but the court reasoned that the employee’s claim would survive either way.
Under McDonnell Douglas, the temporal proximity between the filing of the charge and the county discontinuing its purchases suggested that the asserted reason it did so—it had found a better, cheaper supplier—was pretext. Even without applying McDonnell Douglas, a genuine issue of fact existed as to why the employer stopped purchasing t-shirts three months after the employee filed his charge.
ADA associational discrimination. The county provided several legitimate, nondiscriminatory reasons for terminating the employee, but he raised a genuine issue of fact as to whether those reasons were pretextual and avoided summary judgment. The employee allegedly was difficult to work with, had a poor attitude, and was rude to vendors, and at the time it laid off the employee, the employer was facing budget cuts. Another employee was not selected for layoff because he had positive attitude.
However, the court found that the temporal proximity between the employee’s return from leave and his termination (four days) and the subjective nature of the employer’s criticisms suggested that the county’s stated rationale was pretextual. The budget explanation was also unpersuasive, because the employer alternately could have laid off the retained employee to reduce its budget.
After-acquired doctrine. Invoking the after-acquired evidence doctrine, the employer argued that it would have terminated the employee because he used the employer’s equipment and time to run his t-shirt business and because the employee falsified his FMLA paperwork. The court denied summary judgment based on the affirmative defense, however, because the only evidence that the employer provided was the testimony of the employee’s supervisor who said that she would have terminated the employee for his actions. Without more, such as policy or past practice, a fact issue remained as to whether the employer truly would have fired the employee.
Unclean hands. Finally, the employer argued that the doctrine of unclean hands prohibited the employee from profiting from his misconduct. That doctrine was moot as to the FMLA claim since the court already had ruled that the employee wasn’t protected by the FMLA. Summary judgment based on unclean hands was inappropriate as to the retaliation claim because of factual disputes regarding the use of employer equipment to run the employee’s business.
Age discrimination. The five-year age difference between the employee and his replacement was insignificant with respect to his ADEA and state law age discrimination claims, so the court tossed those claims.
SOURCE: Straub v. County of Maui (D. Haw.), No. 17-00516, September 24, 2019.
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