Pension & Benefits News Retroactively denying FMLA leave and firing employee soon thereafter supports retaliation claim
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Friday, February 15, 2019

Retroactively denying FMLA leave and firing employee soon thereafter supports retaliation claim

By Pension and Benefits Editorial Staff

Denying cross-motions for summary judgment with respect to FMLA claims by an employee who was first approved for FMLA leave and then, after she took it, determined ineligible and fired for excessive absences, a federal district court in Texas found triable issues on whether she reasonably relied on an FMLA coordinator’s misrepresentation that she was eligible, considering a handbook policy that detailed FMLA requirements. There were also triable issues on whether the reason for her termination (excessive unexcused absences months before her leave) was pretextual.

Hired as a 911 telecommunicator in May 2017, the employee was still probationary in February 2018. Under the 911 center’s attendance policy, which the employee had received when hired, rules on absences define "scheduled" time off to mean an approved absence based on a request made more than 24 hours in advance of a scheduled shift. An "unscheduled" occurrence involves a request made less than 24 hours in advance. The policy prohibits employees from scheduling themselves for time off that exceeds the number of hours in their time bank.

FMLA leave for 11 days. When the employee’s daughter was hospitalized, she asked for FMLA leave starting on February 1, 2018. The center’s FMLA coordinator sent her an FMLA packet that day. The coordinator signed the FMLA packet, and on February 9, she signed a notice of eligibility, checking the box stating that the employee was eligible for FMLA leave. The employee took FMLA leave from February 1 to 11 and returned to work on February 12.

Coordinator denies FMLA eligibility. On February 13, the day after the employee returned but before she submitted the doctor’s certification (which was not due until the 21st), the coordinator signed an FMLA disapproval notification, stating that because the employee had not worked 1,250 hours or one year with the city, she was in fact ineligible for the FMLA leave she had already taken. The notice, which was emailed to the employee, also stated that the "KRONOS system was in error" (that’s the software the city used to determine eligibility).

Termination. The center’s director terminated the employee on February 22 in a letter stating that she had 88 hours of unscheduled absences. She had received no probationary counseling for excessive unscheduled absences before her termination.

Dueling summary judgment motions. Suing for FMLA interference and retaliation, the employee claimed that her absences from February 1 to 11 were protected leave under the FMLA. She conceded that she was ineligible but argued that the city’s representation otherwise estopped it from denying her eligibility. She moved for partial summary judgment on liability and liquidated damages. The city cross-moved for summary judgment, arguing that her reliance on the FMLA coordinator’s representation of eligibility was unreasonable because its written policy stated FMLA requirements.

Unscheduled absences. Before the merits, the court addressed what evidence it would consider as to the "unscheduled" absences (before the employee’s FMLA leave) the city relied on as the basis for its termination decision. Center records showed that, as of November 2017, she had 16 hours of unscheduled time for the year. Her timesheets showed 40 hours of sick leave, 24 hours of vacation sick time, and 8 hours of unscheduled vacation time in November 2017. However, the timesheets did not specify if the sick time was "scheduled" or "unscheduled," and it was disputed whether probationary employees could accrue leave as "scheduled" time. On the employee’s side, it was relevant that another probationary employee accrued similar hours as "scheduled" time. But the court refused to consider a memo from the employer that was created months after the termination and purported to list the dates used in firing the employee.

Equitable estoppel might apply. On the merits, the court found triable issues on the employee’s estoppel argument. First, the city made a definite statement misrepresenting that she was eligible to take FMLA leave through the coordinator’s words and the FMLA form. Second, it was undisputed that the employee relied on those assurances to take leave and, in the court’s view, there was a genuine factual dispute on whether she reasonably relied on the representations. Neither party cited case law on when it is reasonable for an employee to rely on representations by an FMLA coordinator over the employer’s written policy statements. For these reasons, summary judgment was denied on whether equitable estoppel applied here.

Triable issues on reason for termination. The city argued that the FMLA claims failed because the employee was fired for "unsatisfactory attendance during the period of probation." It cited 88 hours of unscheduled absences between July and November 2017 as the only factor in the decision and asserted the February leave was not considered. But the court found triable issues. The employee’s timesheets showed she accrued 40 hours of sick leave in mid-November, but as to some of those hours, did not specify if they were "unscheduled," so it was not clear that those could support the city’s position. Nor did they explain how Thanksgiving Day was counted.

In addition, the employee presented evidence suggesting that the city’s reason for firing her was pretextual, including another employee’s pay statements indicating that she accrued "scheduled" leave hours while probationary. There was also contradictory evince in the employee’s monthly review, which listed only 16 hours of unscheduled absences for November. The timing of the employee’s termination, and its proximity to her FMLA leave also suggested a causal link.

Based on all of this, summary judgment could not be granted for either party on liability. Nor was summary judgment appropriate on the issue of liquidated damages, given evidence calling into question whether the city acted in good faith and with a reasonable belief that it was not violating the FMLA.

SOURCE: Byrd v. City of Houston, (S.D. Tex.), No. H-18-778, January 29, 2019.

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