Leave Management, Policy, and Compliance

No FMLA Bias in Termination of Letter Carrier, 1st Circuit Rules

The U.S. Court of Appeals for the 1st Circuit—which covers Maine, Massachusetts, New Hampshire, and Rhode Island—recently ruled in favor of the U.S. Postal Service (USPS) after it terminated an injured letter carrier who was out on leave. Although the employer escaped liability in this case, the facts clearly reveal that it wasn’t for lack of trying. Read on for a textbook explanation of what not to do when an employee is on leave—regardless of the specific type of leave he is taking.

Massachusetts

Asleep at the Wheel = Rotator Cuff Injury

“Paul” worked as a letter carrier at the U.S. post office in Brookline, Massachusetts, for nearly 14 years. During his tenure, he never received a negative performance review, nor was he subjected to any disciplinary action.

On July 21, 2010, an elderly woman fell asleep at the wheel of her car and struck Paul’s parked vehicle while he was sitting in it during his lunch break. Paul was taken to the hospital and treated for a serious shoulder injury, including damage to his rotator cuff. He applied for workers’ compensation, despite being discouraged from doing so by his supervisor, “Jason.” His claim was approved.

Employee Takes Concurrent Workers’ Comp and FMLA Leave

Paul also applied for and was granted leave under the Family and Medical Leave Act (FMLA). The USPS sent both Paul and Jason notice of the FMLA designation, but Jason claimed he never received it. (Lost in the mail, perhaps?) He believed Paul was out on workers’ comp leave only.

Pursuant to USPS policy, Paul opted for a continuation of pay and was fully compensated for the first 45 days of his leave, after which he received workers’ comp benefits that covered two-thirds of his salary, tax-free, plus health insurance. His concurrent FMLA leave lasted from July 21, 2010, to October 12, 2010, but he remained on medical leave until September 30, 2011, when he was terminated.

Manager Publicly Mocks Injured Employee

On several occasions, both before and after Paul’s shoulder injury, Jason publicly mocked him and accused him of faking injuries. For example, Paul injured his knee on the job in September 2006 and subsequently missed a week of work. Jason’s response was to announce over the loudspeaker: “Will Paul, the injury fraud specialist, please report to the office?”

In August 2010, while Paul was still out on leave following his shoulder injury, Jason posted a job opening on the office bulletin board advertising for an “injury compensation specialist.” He also made several announcements mocking Paul, such as, “Can I have the carrier on Route 92 who is faking an injury come to the office, please?”

Employee Hit with Drug Charges While Out on Leave

On September 18, 2010, while he was still on FMLA leave, Paul and his brother were arrested and charged with possession of cocaine with intent to distribute and conspiracy to violate drug laws. The arrests were publicized in a local newspaper. (Eventually, the conspiracy charge was dismissed, and the intent-to-distribute charge was reduced to simple possession.The possession charge was ultimately dismissed after the successful completion of pretrial probation.)

Following Paul’s arrest, Jason began to threaten him with a workers’ comp fraud investigation if he didn’t return to work. On January 18, 2011, Jason conducted a predisciplinary interview with Paul over the phone, and they discussed how Paul’s arrest and criminal charges might affect his job. (Possession of a Class B illegal drug violates USPS policy.) They ceased communicating after Paul phoned Jason to ask for help with resolving an issue related to his medical leave and Jason responded, “Go [expletive] yourself.”

After a lengthy grievance process, Paul was terminated on September 30, 2011, for “Failure to Perform Duties in a Satisfactory Manner.” He then filed a federal lawsuit in which he claimed that Jason and the USPS violated the FMLA by firing him while he was out on protected leave. The district court entered judgment in favor of the USPS and Jason, reasoning that they couldn’t have acted with retaliatory animus because Jason lacked the requisite knowledge that Paul was protected under the FMLA.

Manager Had No Knowledge of FMLA Leave

On appeal, the 1st Circuit affirmed the decision, stating: “Because the employer’s intent in FMLA retaliation claims is highly relevant, an employer cannot be found to have retaliated against an employee for invoking his rights under the FMLA or taking FMLA leave unless the [decision maker] knew or should have known that the employee had invoked those rights.”

In this case, it appeared that Jason relied on a computer program that listed Paul as either “injured on duty” or “out on workers’ compensation.” He also testified that he neither received nor saw the FMLA notice that was allegedly mailed to both him and Paul. Moreover, the 1st Circuit said it was reasonable for Jason to have concluded that “Paul had not availed himself of FMLA protection, because it would not have made sense for him to do so while he was already receiving a more beneficial package under the workers’ compensation regime.”

Paul contended that even if Jason didn’t know about his FMLA leave, the USPS had general corporate knowledge that he was taking such leave. However, the court of appeals noted, “Precedent does not support [the] basic proposition that corporate or managerial knowledge can override a [decision maker’s] lack of knowledge in FMLA retaliation cases.” Chase v. United States Postal Service et al., 1st Cir. No. 16-1351, 12/14/16.

What Not to Do

They say that ignorance of the law is no excuse, but in this case, the supervisor’s apparently justifiable ignorance of the specific type of leave the employee was on proved to be a saving grace for the employer.

Still, it should go without saying that employees on leave should never be mocked or threatened, regardless of the type they’re taking. And you should always approach and document the termination of an employee on leave carefully, even when you have a clear nondiscriminatory reason for firing him.