Pension & Benefits News Supervisor forced to interview to keep her own job advances FMLA reprisal claim
Friday, April 19, 2019

Supervisor forced to interview to keep her own job advances FMLA reprisal claim

By Pension and Benefits Editorial Staff

A Duke Energy employee claimed that just weeks after returning from FMLA leave, she was required to interview, and then was rejected, for the job she already held. That rejection ultimately led to her termination. A federal court in Ohio denied the employer’s motion for summary judgment on her FMLA retaliation claim. However, the employer was entitled to summary judgment on her claims for FMLA interference, discrimination under the ADA and Ohio law, failure to accommodate, and retaliation. The court also denied the employee’s request for sanctions for spoliation of evidence.

Absences. The employee, a billing supervisor, suffered from sinus infections caused by mold in the office. She requested an air filter from her supervisor, but was denied. She also began to make notes of interactions with her supervisor when the supervisor threatened to either "discipline" her or place her "on FMLA" because of the work she missed due to illness and doctors’ visits. Indeed, the supervisor testified that she was concerned about the amount of time the employee spent out of the office. The supervisor was also concerned about the employee’s communication skills. Nevertheless, the supervisor told her administrative assistant to prioritize her own deadlines over the proofreading support that she was providing to the employee.

PIP. After she had been out on FMLA leave for two months, she was placed on a performance improvement plan. Noted areas in need of improvement included "availability" and communication. The PIP stated that she had an "excessive amount" of non-FMLA absences, late arrivals, and early departures in the first half of the year. The PIP also stated that the employee had an "unacceptable" amount of "misspelled words and grammatical errors" and that she needed to do a better job proofreading.

Let go in reorganization. Soon after she was placed on the PIP, the employer launched a reorganization. The number of billing supervisors in one office was reduced, without interviews being conducted, but the employee’s job was opened up for interviews. She was ranked fifth out of the six candidates and lost her position. She was given until the end of the following month to find another position within the company. When she was unable to do so, she was fired. She filed suit alleging numerous claims against her former employer.

FMLA retaliation survives. Only her FMLA retaliation survived the employer’s motion for summary judgment. She argued that she was placed on a PIP because she took FMLA leave and that the PIP ultimately led to her termination. Although the employer argued that it had decided to place her on a PIP before she requested FMLA leave, the court noted that being placed on the PIP was not the only adverse action she suffered. She also had been required to interview for her own position fewer than two weeks after her return and, just over a month after her return, was told that she was not selected. The temporal proximity of those events suggested a causal connection.

Moreover, although the employer contended that it opened up her position for interviews because of her poor performance, the court noted that the PIP placed an emphasis on attendance despite that no such concerns were raised prior to that point. The employee’s previous annual performance review, received just a few months before she went out on leave, did not mention attendance and rated her as "fully meets" in all but two of the eight areas identified. Also, the court noted, there was some discrepancy between how the employee’s position was treated and how the same positions in another office were treated. There was no interview for the other positions, and the one displaced supervisor was placed in another job at the company without an interview. Finally, there were some questions about the timing of the PIP and the reorganization.

No FMLA interference. The employee’s interference claim, based on the sick days, appointments, and other health-related absences that were noted on her PIP, did not survive. With regards to those absences, the employee failed to point to any evidence that a healthcare provider had determined that she was incapacitated during those periods of time or that she had provided notice to the employer that she required leave on those occasions.

Remaining claims also fail. Nor would the employee’s ADA discrimination and failure to accommodate claims move forward. She was partially deaf and suffered from allergies. But she failed to establish the employer would have hired her for the positions she applied for "but for" her hearing or allergy problems. Also, her communication issues were "broader than any difficulties" she might have had because of her hearing.

The court also awarded summary judgment in the employer’s favor on her Title VII retaliation claim. In 2011, after she complained that her previous supervisor had blocked her from disciplining a group of employees based on their race, her supervisor was transferred to a different position. The employee alleged that the employer retaliated against her for her complaint. But she could not proceed with this claim because of the lack of temporal proximity.

SOURCE: Brown v. Duke Energy Corp., (S.D. Ohio), No. 1:13cv869, March 31, 2019.

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