Tag Archives: FMLA

Pennsylvania Employees Can Prove FMLA Retaliation Claims When Leave is a Negative Factor in Terminating Employment

When a Pennsylvania employee is terminated shortly after commencing leave under the Family and Medical Leave Act (FMLA), an obvious question arises as to whether the employee’s use of FMLA protected leave was the reason, or a factor in the decision to terminate employment. In evaluating FMLA claims the nature of the evidence and degree of proof required is critical. Employers have argued that an employee must prove that the employer’s proffered reason for termination was false or the use of FMLA leave was the sole reason for termination. In Egan v. Delaware River Port Authority (3rd Cir. no. 16-1471) (March 21, 2017), the Third Circuit Court of Appeals considered the question of what level of evidence is required to prove a violation of the FMLA; and concluded that an employee is not required to show direct evidence of discrimination to prove that FMLA leave was a negative factor in the termination, finding that it is sufficient to only offer indirect evidence of discrimination to obtain such an instruction.

In Egan, the employee filed a lawsuit against his former employer asserting several violations of federal employment law, including the FMLA. The employee, who was originally hired to manage fleet assets, had a history of migraine headaches; the frequency of his migraines increased almost instantaneously with his transfer to the Engineering Department. The employee applied for and was granted intermittent FMLA leave. Three months after the FMLA was granted an issue arose as the employee was only reporting the approximate number of hours he had worked, rather than the actual number of hours he had worked and took FMLA leave. While the employee was on FMLA leave, he was advised that all economic development functions were being eliminated, his temporary reassignment to the Engineering Department was deemed completed and his employment was terminated.

The case proceeded to a jury trial and the jury found that the employer did not retaliate against the employee for exercising his right to take FMLA leave. The employee filed an appeal arguing that the trial court erred in the jury instructions by not providing the jury with a mixed-motive jury instruction concerning the FMLA claim. A mixed motive instruction advises the jury that the employee can prevail by proving that the termination was based on both legitimate and illegitimate reasons. Instead, the trial court’s instructions required a much higher level of proof requiring the employee to prove that the stated reason for terminating employment was pretext (i.e. false). The Third Circuit found that the District Court erred in requiring the employee to provide direct evidence of retaliation to obtain a mixed motive instruction.

In Egan, the Third Circuit held that to allow an employer to take an adverse employment action against an employee who takes FMLA leave undoubtedly runs contrary to Congress’s purpose in passing the FMLA, and prohibiting retaliation for exercising FMLA rights is illegal because it is consistent with Congress’s goal of enabling workers to address serious health issues without repercussion. Therefore, the court held that employers are barred from considering an employee’s FMLA leave as a negative factor in employment decisions and an employee does not need to prove that invoking FMLA rights was the sole or most important factor upon which the employer acted. Thus, the court held that an employee who claims retaliation may seek to proceed under a mixed-motive approach and show that his or her use of FMLA leave was a negative factor in the employer’s adverse employment action.

In Egan, the Third Circuit also held that the trial court erred in denying a request for a mixed-motive instruction, explaining that it is not necessary to offer direct evidence to obtain a mixed-motive instruction. Thus, the Third Circuit vacated the FMLA judgment and remanded the case for a new trial, so that it could be determined whether there was evidence from which a reasonable jury could conclude that the employer had legitimate and illegitimate reasons for its employment decision and that the employee’s use of FMLA leave was a negative factor in the decision to terminate employment.

Andrew Abramson represents Pennsylvania employees whose FMLA rights are violated. For more information on the FMLA and Abramson Employment Law see http://www.job-discrimination.com/lawyer-attorney-1126523

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Employee Terminated After Requesting Extended Leave Has Retaliation, Pregnancy, Sex & Disability Discrimination Claims

Employees who experience complications during pregnancy that require leave from work prior to the birth of a child may confront a situation where the employee has exhausted her right to Family and Medical Leave (FMLA), which is limited to 12 weeks furring any rolling 52-week period before the employee is medically cleared to return to work following the birth of a child. Depending on the facts, there may still be protection for employees who are terminated prior to their return to work under the Pregnancy Discrimination Act which is part of Title VII and the Pennsylvania Human Relations Act which forbid sex discrimination, and the Americans with Disabilities Act (ADA), as these laws may protect an employee’s right to be granted extended leave from work.

In Oliver v. Scranton Materials, Inc., M. D. Pa. no. 14-cv-00549 (June 14, 2016. Mariani, J.), the Court denied the employer’s motion for summary judgment and allowed the case to proceed to trial in a situation where the employee was notified following a period of maternity/disability leave that she would be permanently laid off. The employee alleged that she was discriminated on the basis of gender, pregnancy, and disability and that she suffered retaliation at the workplace. In Oliver, the employee claimed that she was subjected to a hostile and discriminatory work environment on the basis of sex and pregnancy, the employer retaliated against her by cutting her out of meetings, complaining of her need for pregnancy related leave, and asking her to accept a salary reduction due to her pregnancy and need for leave; retaliated against her based on her disability (complications with her pregnancy); and failed to accommodate her need for disability leave arising from the complications of pregnancy; and refused to allow her to return to work.

In Oliver, the employee worked in a sales capacity for the employer, a company that produced and sold decorative landscape stone and building stone for wholesale delivery. The employee became pregnant with triplets and experienced complications that required her to begin working half-days. Shortly thereafter, the employee began having problems with a part owner of the company who was her supervisor, who at one point said, “you’re not going to be able to work with those three f-ing babies at home.” The employee continued to receive her full salary for working half days until she went out on maternity disability leave. Six days after the employee had the triplets, her FMLA expired as she had used FMLA leave prior to the birth of her children as a consequence of her ability to work only half-days. The employee intended to return to work 8 weeks after the birth of her children but then requested an additional four weeks leave due to complications related to her pregnancy and associated surgery. Two days after her request, the employee was advised that her employment would be terminated. According to the employer, the employee was terminated in anticipation of the finalization of the sale of its business as well as the overall lack of business during the winter months, however, the employee disputed that there was a sale of the business and claimed the evidence showed that the business continued and did not cease operations.

Title VII provides that it shall be an unlawful employment practice for an employer… to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s… sex which includes discrimination on the basis of pregnancy, childbirth, or related medical conditions. To establish a prima facie case of pregnancy discrimination, an employee must establish that: (1) the employer knew of her pregnancy; (2) she was qualified for the position; (3) she suffered an adverse employment action; and (4) there is a causal nexus between her pregnancy and the adverse employment action. Once the employee presents sufficient evidence to establish a prima facie case, the burden shifts to the employer to articulate some “legitimate, nondiscriminatory reason” for the adverse employment action. Then the burden shifts back to the employee to set forth facts tending to show that the employers proffered legitimate non-discriminatory reason was merely a pretext for discrimination by pointing to some evidence from which a fact-finder could reasonably (1) disbelieve the employer’s articulated reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action.

In Oliver, the court found that the employee established a prima facie case because the supervisor made repeated comments to her concerning her pregnancy, prior to her pregnancy after the need to reduce her workload to half days and that the employer’s negative statements constitute sufficient evidence of discriminatory animus sufficient to established prima facie case of pregnancy discrimination. The court also found that the employer offered a legitimate nondiscriminatory reason, the sale of the business, however, the Court found that there was sufficient evidence of pretext by showing that according to the Pennsylvania Secretary of State’s Website, the employer did not in fact cease operations through a sale of the company’s business, rather, the employer merely changed its name and it continued to operate at the same location with the same telephone and fax numbers and website; and that there were jobs that the employee could have performed. The court also held that the conduct at issue could be found to be sufficiently severe and pervasive to constitute a hostile work environment relying on statements regarding the employee’s inability to work with three small babies at home and by looking at the totality of the circumstances.

Under the ADA, an employer may not discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. To state a prima facie claim of disability discrimination under the ADA, a plaintiff must establish that she: (1) has a disability, (2) is a qualified individual, and (3) has suffered an adverse employment action because of that disability. The ADA also provides for a retaliation action as an employer cannot discriminate against any individual because such individual has opposed any act or practice made unlawful by the ADA and it shall be unlawful to coerce, intimidate, threaten, or interfere with an individual in the exercise or enjoyment… of any right granted or protected” by the ADA. To establish a prima facie case of ADA retaliation… a plaintiff must show that: (1) she undertook some protected activity, (2) that she suffered an adverse employment action, and (3) that there exists a causal connection between the two.

In Oliver, the Court found that, drawing all reasonable inferences in the light most favorable to the employee, a jury could conclude that the employee was disabled within the meaning of the ADA due to complications related to her pregnancy and that there was sufficient evidence from which a rationale factfinder could conclude that there was a causal connection between Plaintiff’s disability and her termination.

For more information on pregnancy discrimination, the Americans with Disabilities Act, the Pennsylvania Human Relations Act, Disability Discrimination, and Abramson Employment Law, see http://www.job-discrimination.com/lawyer-attorney-1126517.html, http://www.job-discrimination.com/lawyer-attorney-1126511.htm.

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Filed under Americans with Disabilities Act - Disability Discrimination, FMLA, Hostile Work Environment, Retaliation, Sex / Gender Discrimination

Terminated Employee Eligible for FMLA Leave Wins $200,166 Judgment Against Employer

When an employer terminates an employee shortly after an employee requests a leave from work due to a medical condition, several possible causes of action may exist. One of those causes of action is under the Family and Medical Leave Act (FMLA), which entitles qualifying employees to take reasonable leave for medical reasons and upon return to work within a 12-week period, the employee must be to be restored to the same or similar job at the same pay. Causes of action available to an employee under the FMLA may arise under two different theories as employers are prohibited from: (1) interfering with an employee’s exercise of the right to take reasonable leave for medical reasons; and (2) discriminating or retaliating against an employee who exercises this right. FMLA interference claims concern the denial of a benefit or protection afforded by the FMLA, whereas FMLA retaliation claims pertain to whether an employer used an employee’s FMLA leave as a negative factor in its decision to terminate employment.

In Poff v. Prime Care Medical, Inc. (M. D. Pa. no. 13-cv-03066) (June 14, 2016) (Schwab, M. J.), the Court found in favor of the employee, a licensed practical nurse on her claim that her former employer, violated the FMLA by terminating her employment after she requested medical leave for a serious health condition. The employee claimed that the employer violated the FMLA in two ways: (1) by failing to notify her of her FMLA eligibility and (2) by terminating her because of absences from work due to her serious health condition. In Poff, the employee advised her supervisor, that she was ill and had to leave work and the supervisor called the on-call administrator, to inform him that the employee had left work early and on the same day the employee sent an email requesting FMLA forms. The court found that the request for FMLA forms coupled with the fact that the employee left early after informing the charge nurse that she was ill, was sufficient to place the employer on notice that the FMLA may apply and thereafter there was evidence that the employee had forwarded the FMLA certification form before her termination. The Court found that the employee left work early due to a serious health condition, that she provided the employer with adequate notice of her need to take FMLA leave on the same date and that the employer violated the FMLA by terminating her employment. The Court also found that the employer did not meet its burden of showing that it acted in good faith and that it had reasonable grounds for terminating the employee despite her request for FMLA leave.

In order to prevail in a FMLA interference claim, an employee must establish: (1) the employee was an eligible employee under the FMLA; (2) the employer was subject to the FMLA’s requirements; (3) the employee was entitled to FMLA leave; (4) the employee provided notice to the employer of the intention to take FMLA leave; and (5) the employee was denied benefits to which the employee was entitled under the FMLA. While an employee seeking FMLA leave must state a qualifying reason for the needed leave, the employee does not need to expressly assert FMLA rights or even mention the FMLA or ask for FMLA forms. Where the employer does not have sufficient information about the reason for an employee’s use of leave, the employer is required to inquire further to ascertain whether the employee’s leave is potentially FMLA-qualifying.

An employer who violates the FMLA is liable to the employee for damages equal any wages, salary, employment benefits, or other compensation denied or lost by reason of the FMLA violation, interest and an additional amount as liquidated damages, except that if an employer proves to the satisfaction of the court that the act or omission was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a the court may, in the discretion of the court, reduce the amount of the liability. In addition, the employee mat be awarded equitable relief such employment, reinstatement, and promotion.

In Poff, the court denied the Defendant employer’s motion to amend the Court’s findings following a nonjury trial and entered a judgment totaling $200.166 which included out of pocket wage related damages, liquidated damages and interest in the amount of $103,606 plus attorneys’ fees and costs in the amount of $96,599.

For more information on the Family and Medical Leave Act (FMLA) and Abramson Employment Law see http://www.job-discrimination.com/lawyer-attorney-1126523.html.

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Employer Violates FMLA By Terminating Employee Who Takes Leave to Care for Parents

The right to leave under the Family and Medical Leave (FMLA) not only applies to an employee who has a medical reason to take leave from work but can also extend to immediate family members. In Raimondi v. Wyoming County (no. 14-cv-1918) (M. D. Pa. May 24, 2016), the Plaintiff employee filed an FMLA action asserting that she was entitled to FMLA leave due to the serious health conditions experienced by her parents and that the employer failed to restore the employee to her position following her leave and instead terminated her employment.

In Raimondi, two months before the employee was terminated, her father fell and fractured his femur, which required the surgical insertion of a rod and thereafter he entered a nursing home to recover. At the same time, the employee’s mother could not care for herself alone and the employee had to take a leave from work to care for her mother. The employee’s mother suffered from active muscle spasms, Alzheimer’s Disease and heart disease. The employee informed the employer of her need for leave prior to traveling to her parents’ home in Indiana to care for her parents. The Court found that the undisputed evidence demonstrated that the employer failed to restore the employee to her pre-leave position and granted the employee’s motion for partial summary judgment.

The FMLA entitles employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition. Eligible employees are entitled to 12 work weeks of leave during any twelve-month period. For family member FMLA leave, an eligible employee may take leave to care for a family member’s physical and psychological needs, which may include providing psychological comfort and reassurance which would be beneficial to a child, spouse or parent with a serious health condition who is receiving inpatient or home care. The “needed to care for” term also embraces situations where the employee may be needed to substitute for others who normally care for the family member or to make arrangements for changes in care, such as transfer to a nursing home. The family member to be cared for must have a “serious health condition ” defined as a physical or mental condition involving either inpatient care or continuing treatment involving a period of incapacity or treatment for incapacity. A serious health condition involving continuing treatment by a health care provider includes any period of incapacity or treatment for such incapacity due to a chronic serious health condition which is defined as one which: (1) requires periodic visits for treatment by a health care provider, or by a nurse under direct supervision of a health care provider; (2) continues over an extended period of time (including recurring episodes of a single underlying condition); and (3) may cause episodic rather than a continuing period of incapacity such as asthma, diabetes or epilepsy.

While an employee seeking FMLA leave must state a qualifying reason for the needed leave, the employee does not need to expressly assert FMLA rights or even mention the FMLA or ask for FMLA forms. In any circumstance where the employer does not have sufficient information about the reason for an employee’s use of leave, the employer is required to inquire further to ascertain whether the employee’s leave is potentially FMLA-qualifying.

Generally, FMLA leave is unpaid. The FMLA, however permits an eligible employee to substitute accrued paid leave for FMLA leave. If an employee does not choose to substitute accrued paid leave, the employer may require the employee to substitute accrued paid leave for unpaid FMLA leave and the regulations provide that the paid leave provided by the employer, and accrued pursuant to established policies of the employer, will run concurrently with the unpaid FMLA leave.

The FMLA contains two relatively distinct provisions prohibiting employers from: (1) interfering with an employee’s exercise of their right to take reasonable leave for medical reasons; and (2) discriminating or retaliating against an employee who exercises this right. An interference claim derives from the denial of some benefit or protection afforded by the FMLA, whereas retaliation actions pertain to whether an employer used an employee’s FMLA leave as a negative factor in its decision to terminate her employment.

To state a FMLA interference claim, an employee must establish: (1) the employee was an eligible employee under the FMLA; (2) the employer was subject to the FMLA’s requirements; (3) the employee was entitled to FMLA leave; (4) the employee provided notice to the employer of the intention to take FMLA leave; and (5) the employee was denied benefits to which the employee was entitled under the FMLA. In Raimondi, the Court found that the employee fulfilled each of these requirements; thus, the employer committed a FMLA interference violation and the court ordered the case should proceed to trial only on the issue of damages.

For more information on the Family and Medical Leave Act (FMLA) and Abramson Employment Law see http://www.job-discrimination.com/lawyer-attorney-1126523.html.

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$484,000 Disability Retaliation Judgment is Affirmed

Recently there has been an increase of reported cases involving employees who require an extended leave of absence as a reasonable accommodation request and suffer repercussions at the workplace. The Family and Medical Leave Act (FMLA) provides qualified employees of qualified employers to take up to 12 weeks of time off from work during a specified 12-month period if the employee has a serious health condition that makes the employee unable to perform the functions of a job. The FMLA provides that a qualifying employer must hold an employee’s job open for the period of FMLA leave. When the 12 weeks FMLA leave expire, an employee may still be entitled to additional medical leave from work as a reasonable accommodation under the Americans with Disabilities Act (ADA), the Pennsylvania Human Relations Act (PHRA) and/or the New Jersey Law Against Discrimination (NJLAD). In Boles v. Wal-Mart Stores, Inc. (3rd Cir no. 15-3127) (May 24, 2016), a former Wal-Mart employee filed a lawsuit after he was terminated following a medical leave of absence. The case proceeded to a jury trial which resulted in the entry of a verdict in favor of the employee, including $130,000 in back pay, $10,000 in emotional distress damages, $60,000 in punitive damages and $284,251.86 in attorneys’ fees and costs.

In Boles, the employee was terminated from his position as an assistant store manager after taking medical leave prompted by a leg ulcer. The employee required an extended medical leave which went beyond the 12-week period of leave permitted by the FMLA. When the employee returned to the store on the date his treating physician cleared him for work, he discovered that he could not log onto his computer. A few days later the employee received a termination letter, notifying him that he had been terminated as of one day after he attempted to return to work, for “failure to return” to work. The employee filed a Complaint alleging disability discrimination, retaliation and failure to provide a reasonable accommodation in the form of a request to take extended medical leave, in violation of NJLAD and interference with his rights under the federal FMLA. After disposition of pretrial motions, two claims were presented to the jury; disability retaliation and failure to accommodate a request to grant extended leave. Evidence at the trial included the store manager’s email to a Human Resources Manager asking, “why we are not terminating the employee which resulted in the response that the termination would be a violation of company policy.”

The Third Circuit affirmed that the District Court’s denial of a post-trial motion and held that there was sufficient evidence in the record for a reasonable jury to find in favor of the employee on his disability retaliation claim under the NJLAD which requires that an employee establish that (1) the employee was in a protected class; (2) the employee engaged in protected activity known to the employer; (3) the employee was thereafter subjected to an adverse employment consequence; and (4) there is a causal link between the protected activity and the adverse employment consequence. The court rejected the employer’s argument that the employee had requested indefinite leave and thus had not engaged in a protected activity, noting that taking a disability/medical leave is protected by the NJLAD and the evidence supports the premise that the employee was retaliated against, as he was terminated, for engaging in that activity. The court cited to the fact that internal Wal-Mart emails discussed whether the employee could be terminated for taking leave, and his termination date for alleged “job abandonment” was after the employee attempted to return to work.

In Boles, the Court also rejected the employer’s challenge to the jury’s punitive damages award as the NJLAD permits punitive damages where there is evidence that (1) upper management’s actual participation in, or willful indifference to, the wrongful conduct; and (2) evidence that the wrongful conduct is especially egregious. The Court concluded that second-tier upper managers who were involved in their termination met these requirements because they were responsible for implementing policies and the employee attempted to contact his supervisors and others at Wal-Mart to no avail; Wal-Mart never told the employee that if he did not return by a certain date that he would be fired; and when the employee actually returned to work he was sent home and fired the next day for “job abandonment” with the termination decision being made by a supervisor to whom the employee had spoken about his expected return just weeks earlier.

Requests for accommodations for leave from work can present complex issues. For more information on workplace accommodations and disability discrimination under the Americans with Disabilities Act, the Pennsylvania Human Relations Act, and the New Jersey Law Against Discrimination see the Abramson Employment Law website at http://www.job-discrimination.com/lawyer-attorney-1126511.htm.

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Terminated Employee “Associated” with Disabled Person Proceeds with ADA Claim

There are occasions when an employee has a need to take a leave from work to assist in the care of a disabled spouse. In certain circumstances where the employer subsequently terminates the employee, the employee may have a claim for “association discrimination” under the Americans with Disabilities Act.

In Pollere v. USIG Pennsylvania, Inc. (E.D. Pa.) (December 18, 2015, McHugh, J.), the employee’s wife began suffering from spinal meningitis which impaired her ability to walk, eat, sleep, and care for herself. As a result of her condition, the wife was hospitalized and the husband took time off from work pursuant to the Family and Medical Leave Act (“FMLA”) to care for his ailing wife. Upon his return to work the employee had a flare up of an unrelated illness, he was hospitalized for two days and when he returned to work, he received an “Employee Performance Notice” that stated that he had used up all of his medical leave and that he left work early on several days. Thereafter, the employee was only able to work sparingly for a period of time and he was readmitted to the hospital. During the absence, the employee and his wife kept the employer informed about his condition. Then the employee received a letter from the employer’s head of human resources, informing him that he needed to provide a doctor’s note explaining his situation and his job would be considered abandoned if he did not promptly respond by a certain date. The employee contacted HR by that date but did not provide a doctor’s note until three days later. In the interim the employee received a letter stating that his frequent absences were being treated as a resignation and his employment status was being changed to “inactive.”

The ADA prohibits employers from discriminating against “a qualified individual on the basis of a disability”, which is defined as an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the job. ADA protections are not limited to disabled employees and includes adverse employment actions against qualified individuals because of their association with a disabled individual. Thus, under the ADA, employers are prohibited from terminating the employment of an employee because of the known disability of an individual with whom the employee is known to have a relationship or association.

In Pollere, the court noted that discrimination by association provision draws a material distinction between firing an employee because of a relative’s disability and firing an employee because of the need to take time off to care for the relative. An employee is protected under the discrimination by association provision if the employee suffers an adverse employment action because of the known disability of an individual with whom the qualified individual has an association or the employer fears or assumes that the employee may have to miss work to care for a disabled relative. Thus, for an employee to prevail on a disability discrimination by association claim, an employee must prove that: (1) he was qualified at the time of the adverse employment action; (2) he was subject to an adverse employment action; (3) at the time of the adverse employment action, the employee was known by his employer to have a relative or an associate with a disability; and (4) the adverse employment action occurred under circumstances raising a reasonable inference that the disability of the relative or associate was a determining factor in the termination decision.

In Pollere, the court held that the employee could proceed with his claim under the discrimination by association provision of the ADA as there was no dispute that the employee was qualified for his job, that he was subject to an adverse employment action, that the employer knew of the employee’s wife’s disability, and at the early stage of the litigation the employee alleged facts that would permit an inference that his wife’s disability was a determinative factor in the employer’s termination decision as the employer referenced the employee’s use of 12 weeks of FMLA leave to care for his wife and the time the employee missed from work was a combination of time spent caring for his wife, and additional time because of his own medical challenges.

Disability claims often present complex issues. For more information on the Americans with Disabilities Act, the Pennsylvania Human Relations Act, Disability Discrimination, and Abramson Employment Law, see http://www.job-discrimination.com/lawyer-attorney-1126511.htm.

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FMLA: Employee Terminated After FMLA Leave Has Retaliation Claim

Employers cannot terminate employees for exercising an employee’s right to leave from work under the Family and Medical Leave Act (FMLA). Employees are often able to demonstrate that FMLA leave was a factor in terminating an employee when the termination occurs just after an employee takes FMLA leave and there is no a lack of documented performance deficiencies prior to the leave. In Montone v. Schuylkill Health System, 2014 U.S. Dist. LEXIS 91050(M. D. Pa July 3, 2014 (Mariani, J.), the court found that the Plaintiff employee could proceed to trial with a FMLA retaliation claim under such circumstances where the Plaintiff worked for the Defendant employer and predecessors for 31 years, most recently as a Director of Patient Accounts, overseeing patient registration and accounting.

Less than one year prior to being terminated, the employee was diagnosed with multiple sclerosis (MS) and hospitalized. The employee was initially released with restrictions working part-time until returning to full-time employment. The MS caused the employee significant discomfort at work such as leg pains, vision, headaches, memory and energy level problems. When the employee returned to full-time employment, the employer was experiencing cash flow issues caused at least in part by the employer’s conversion to a new billing software system. The employee received numerous inquiries into whether she was managing her department properly, threats that the Patient Accounting Department would “be outsourced”, and her supervisor’s comment that the CEO was watching her, that she should be careful and that she was going to be fired due to Defendant’s poor finances.

Due to the employer’s financial situation and the pressure placed upon her, the employee testified that she was reticent to take days off despite experiencing symptoms related to her MS and she testified that her supervisor prohibited her from taking time off except for a FMLA absence. As a result, the employee filed for FMLA leave in order to take time off for her MS. During a four-month period the employee took intermittent FMLA leave on many occasions including the immediate two work days before she was terminated for alleged failure to manage the bill/collection of patient accounts causing a significant revenue shortfall.

The FMLA provides up to twelve work weeks of unpaid leave during a twelve-month period for a serious health condition that makes the employee unable to perform the functions of his position, and in some circumstances, certain family reasons. When an employee invokes FMLA rights, an employer may not discharge or in any other manner discriminate against the employee. To prevail on a retaliation claim under the FMLA, a plaintiff employee must prove that (1) the employee invoked the right to FMLA-qualifying leave, (2) suffered an adverse employment decision, and (3) the adverse action was causally related to invocation of FMLA rights. An employee does not need to prove that invoking FMLA rights was the sole or most important factor upon which the employer acted.

FMLA retaliation claims based on circumstantial evidence are assessed under the burden-shifting framework first established in McDonnell Douglas where the employee has the initial burden of establishing a prima facie case by showing (a) invocation of a FMLA right, (b) an adverse action such as termination, and (c) causation. Then, the burden of production shifts to the employer to articulate some legitimate, nondiscriminatory reason for its decision. If the employer meets this burden, the employee must point to some evidence, direct or circumstantial, from which a fact finder could reasonably disbelieve the employer’s articulated legitimate reason.

In Montone, the court noted that Plaintiff took FMLA days on consecutive business days and was fired the following day. As a result, the temporal proximity between the employee’s use of intermittent FMLA and termination is “unduly suggestive” and under applicable law, is sufficient standing alone to create an inference of causality. While the employer argued that temporal proximity alone does not establish causal linkage when the proximity of the termination is the result of documented performance deficiencies occurring before leave, the court noted the employer offered no evidence that prior thereto, the Plaintiff’s alleged inadequacies resulted in disciplinary action or poor performance reviews. Since the employer offered a legitimate, non-discriminatory reason for discharge, the employee’s work performance was allegedly poor; the burden of production shifted back to the employee to demonstrate pretext, defined as some evidence, direct or circumstantial, from which a fact finder could reasonably disbelieve the employer’s articulated legitimate reason.

In Montone, the court ultimately found that the issue of fact that precludes summary judgment is the degree to which the employer’s poor finances can be attributed to the employee’s work performance, or factors beyond her control primarily attributable to the implementation of a new computerized billing/accounting system. The court found that the degree to which billing system failures can be attributed to Plaintiff is a material issue of fact for a jury to resolve and if the jury concludes that the stated reason for discharge has no basis in fact, then a reasonable jury could conclude that the employer’s proffered rationale is pretextual, and instead conclude that the employee was micro managed and eventually scapegoated for the employer’s financial issues and that her use of FMLA played a role in her termination based on four factors: temporal proximity between Plaintiff’s FMLA leave and the termination which supports an inference of pretext; the employer blaming the employee for factors beyond her control; the employee’s assertion that her supervisor prohibited her from taking time off absent a request for FMLA; and the employee’s allegation that the supervisor grilled her about her use of FMLA leave. The Court found that these four factors create the sort of weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find unworthy of credence, and instead infer that the employee was retaliated against for taking FMLA leave.

For more information on the Family and Medical Leave Act (FMLA) and Abramson Employment Law see http://www.job-discrimination.com/lawyer-attorney-1126523.html.

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