Pension & Benefits News Temporal proximity between employee’s return from leave and termination establishes pretext for FMLA claims
Friday, January 15, 2021

Temporal proximity between employee’s return from leave and termination establishes pretext for FMLA claims

By Pension and Benefits Editorial Staff

A federal district court in Pennsylvania denied an employer’s motion for summary judgment on an employee’s claims that it terminated him in retaliation for exercising his leave rights under the FMLA, finding that the temporal proximity between his return from leave and his termination created genuine material factual issues. However, the court did grant the employer summary judgment on the employee’s Title VII race discrimination and retaliation claims, as well as his ADA discrimination and accommodation claims, because he did not establish that his depression was a substantial impairment.

Leave and termination. The employee, an African-American male, worked for approximately eight years at various locations of the employer, primarily as a meat manager. In February 2017, he saw a photograph of an African-American male juxtaposed with a photograph of a baboon or gorilla in the lunch room of one of the employer’s locations. After an investigation, the employee who posted that photograph was identified and fired.

In July 2017, the employee took leave under the FMLA, which had been recommended by his store manager. After he returned to work at the expected time, he sought FMLA leave again in August. Shortly after his return in September, he was terminated, as the employer told him he had left work early on September 2, 2017, and had not worked the required hours that week. The employee testified at his deposition that he believed at the time that he had worked the required hours, but acknowledged that he did not and that he left work about five hours early on September 2.

Discrimination, retaliation. The employee brought claims under Title VII, Section 1981, and Pennsylvania law for discrimination and retaliation. The court applied the same analysis to the claims under each of these laws, the McDonnell Douglas burden-shifting framework. The court found that even if the employee could establish all the requisites of his prima facie case for discrimination and retaliation, he failed to establish that the proffered grounds for his termination were pretext.

The claim was premised on the employee’s complaint of the racially offensive photograph. He contended that after that incident, the employer began a campaign to retaliate and terminate him from his position. The court held that he provided insufficient evidence to establish that the reason given for his termination—failing to work required hours and leaving work early—were pretext for discrimination. For example, the employee claimed there was confusion over the operative schedule for the week in September that he worked insufficient hours, but he conceded that he in fact worked insufficient hours. And he also conceded that he left work early on September 2, which the court characterized as a concession that he knew he was supposed to work more hours than he did. Nor could the employee point to any exceptions to the employer’s hours requirement that applied to him. Finally, the only support for the employee’s assertion that he had his manager’s permission to leave work early on September 2 was his own "self-serving" deposition testimony. More than such testimony is required to survive summary judgment, the court held.

FMLA retaliation. While the employee brought claims for both retaliation and interference with his exercise of FMLA rights, based on his termination, to the court it "seem[ed]" as if the gravamen of his claim was for retaliation. Here, the court denied the employer’s summary judgment motion as to these claims, based on the temporal proximity between the employee’s return from leave and his termination.

Temporal proximity. There was no dispute that the employee provided notice of his intent to take FMLA leave and that his termination constituted an adverse employment action. The employer did dispute, however, that there was a causal connection between the two. The employee argued that the temporal proximity between the two was enough to create a genuine issue of material fact on the causation issue, and the court agreed. Under Third Circuit law, the temporal proximity of the protected activity (FMLA leave) and the adverse action (the employee’s termination) can suffice standing alone to infer causation and defeat summary judgment. A ten-day interval has been held to be close enough to infer causation, Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 189 (CA-3. 2003). Here, the employee was fired eight days after returning from leave. Thus, the employee satisfied his prima facie case.

Because the employer stated a legitimate non-discriminatory reason for termination—working insufficient hours and leaving work early—the employee had to proffer evidence that the reason was pretext. He relied on the same temporal proximity to establish pretext, which is permissible, the court noted.

Disability claims. The employee also contended that he suffered from depression. There was a factual dispute over whether there had been a diagnosis. But even if there had been, more than simply having a disability is required for a claim, the court pointed out. The employee had to show that the disability "substantially limits" one or more major life activities, or that the employer regarded him as disabled. There was no evidence in the record of how depression substantially limited the employee in his ability to perform major life activities. And certain "vague comments" by others who expressed concern and suggested he see a doctor do not suffice to show that the employer regarded the employee as disabled.

For the same reason, the employee’s failure-to-accommodate claim failed. If there was no evidence that the employee was disabled, or that employer regarded the employee as disabled, then the employee could not make a threshold showing for this claim.

Disability retaliation. In the retaliation context, an employee need not show an actual disability, only that the employee requested an accommodation in good faith. The employer did not contest that. And for the same reason as stated above in the FMLA claim—temporal proximity—the employee raised a genuine issue of material fact over pretext, sufficient for this claim to survive summary judgment.

SOURCE: McClellan, v. Redner’s Markets, Inc. (M.D. Pa.), No. 3:18-cv-02162-MWB, December 10, 2020.

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