By Pension and Benefits Editorial Staff
An HR assistant who was terminated 13 days after taking FMLA leave to undergo carpal tunnel surgery, and two days after requesting additional intermittent leave to care for her cancer-stricken mother, defeated summary judgment on her ADA and state-law claims of disability and associational disability discrimination and retaliation, as well as her claims of FMLA retaliation and interference. The "unusually suggestive temporal proximity" supported her prima facie showings of a causal connection and, along with other evidence, allowed a reasonable inference that her supervisor’s proffered reason for her discharge was pretextual, a federal district court in Pennsylvania ruled.
The HR assistant worked for a home health care provider and her job duties included hiring and onboarding caregivers, coordinating schedules, and administering tuberculosis (TB) tests when the company’s LPN was not available. After the employer was acquired in 2018, numerous workers left, which resulted in a staffing shortage. In response, the new operations director held daily meetings where he sought to slow down attrition and emphasized the need for everyone to come into work.
FMLA leave. On September 28, 2018, the employee took FMLA leave to undergo hand surgery for carpal tunnel syndrome. During her leave, the director purportedly expressed his annoyance with another HR assistant over the understaffing. This included his tone and body language, as well as comments like "you’re killing me!"
Request for intermittent leave. Four days after her surgery, the employee’s doctor provided a note placing restrictions on her use of her right hand, which she provided to the employer. On October 9, she submitted another doctor’s note which cleared her to return without restrictions and also picked up paperwork to request FMLA leave to care for her mother, who was suffering from lung cancer. She returned to work the next day and gave the general counsel her completed FMLA paperwork. The general counsel then met with the director and HR manager the next day.
TB test incident. On the employee’s second day back from leave, which was a Thursday, she was asked to administer a TB test to a caregiver. Because the employer generally did not usually administer TB tests on Thursdays due to logistical issues, the employee questioned whether to give the test and purportedly responded, "What? This is crazy." As a result, someone else administered the test.
Termination. The HR manager advised the director about the incident later that day. The director called the employee into his office to discuss the situation and ultimately terminated her. Though he claimed that he had spontaneously decided to fire her, the HR manager testified that he told her before the meeting that he planned to terminate her.
Knowledge of disabilities. In seeking dismissal of the employee’s claims of discrimination based on disability and associational disability, the employer claimed that she failed to make her prima facie showing of causation since the director was unaware of her or her mother’s condition when he terminated her. Triable issues existed in both regards, however. First, because he knew that the employee had taken leave to undergo a surgical procedure when he decided to terminate her, a jury could reasonably infer that he was aware that she suffered from a disability. It was also questionable whether he was aware of her mother’s condition since he could have learned about her request for intermittent FMLA leave to care for her from the general counsel.
Suspicious timing. A causal connection also could be inferred from the "unusually suggestive temporal proximity" between when the director became aware of her and her mother’s disabilities and when he discharged her. The suggestiveness of the 13-day gap between the beginning of her leave for surgery and her termination was heightened by the fact that he terminated her the day after she returned from leave. Similarly, only two days lapsed between when she informed the employer of her mother’s condition and her termination.
ADA retaliation. The employer contended that her ADA retaliation claim failed because she did not require any accommodations at the time of her firing. The court squarely rejected this contention. She only needed to demonstrate a causal connection between her protected activity and her termination, and the close temporal proximity was enough to do so.
FMLA retaliation. The court similarly rejected the employer’s challenge to the causal element of her FMLA retaliation claim. The 13-day gap between her leave and her dismissal, and the two-day gap between her request for intermittent leave and her dismissal, would allow a finding that she was discharged as a result of her taking or requesting FMLA leave.
Pretext. The employee also provided ample evidence of pretext to support her discrimination and retaliation claims. In addition to the suspicious timing, inconsistent testimony about when the director made the decision to terminate her and his alleged displeasure with her taking of FMLA leave could allow a jury to question whether he was actually motivated by her failure to immediately administer a TB test. Moreover, his concerns about staffing in the aftermath of the acquisition provided reason to doubt whether he would fire an experienced employee merely for questioning whether a TB should be administered, especially on a day in which such tests were typically not administered.
FMLA interference. Finally, the court rejected out of hand the employer’s contention that the employee’s FMLA interference claim must be dismissed as duplicative since it was based on the same facts as her FMLA retaliation claim. Summary judgment also was not warranted because triable issues existed as to whether she was dismissed "for a reason other than interference with rights under the FMLA."
SOURCE: Speights v. Arsens Home Care, Inc., E.D. Pa., No. 2:19-cv-02343-MMB, July 22, 2020.
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