An employee who was reassigned to a new position after taking medical leave and then quickly laid off was not the victim of an “elaborate sham,” as he alleged, a federal appeals court has determined.
Because other members of his new department were laid off—and because he likely would have been laid off in his original position, too—the employee could not show that the employer violated the Family and Medical Leave Act’s (FMLA) job protection requirements (Waag v. Sotera Def. Solutions, Inc., No. No. 15-2521 (4th Cir. May 16, 2017)).
Facts of the Case
“Luke” worked for Sotera Defense Solutions, Inc., as a program manager for a federal contract. When Luke fell off the roof of his house, he severely injured his hand and required leave for hospitalization and physical therapy.
Sotera had another employee cover Luke’s work and, while he was on leave, his contract was subject to budget cuts. Eventually, there was little work to be done and Luke’s replacement reported that he only spent about 10% to 20% of his time managing the project.
When Luke returned, Sotera assigned him to a different position. He had a new manager but the same salary and same work location. A few weeks later, Luke and other employees in his department—including, eventually, the vice president—were laid off. The employee performing Luke’s original tasks, however, was not laid off.
Luke sued, alleging FMLA violations, but a district court dismissed his claims.
Appeals Court Weighs In
Luke appealed, making three arguments: (1) he should have been returned to his original position; (2) the new position wasn’t “equivalent” to his old one; and (3) the reassignment was an elaborate sham to retaliate against him for taking leave.
Original position. Luke alleged that he should have been restored to his original position because it was still available when he returned from leave, regardless of how little work remained.
But the FMLA does not require that the employer first attempt to place the employee in his original position, the 4th U.S. Circuit Court of Appeals said; “[T]he restoration provision does not indicate a preference for restoring covered employees to their pre-leave positions over ‘equivalent’ positions.”
Equivalent position. Luke then argued that his new position wasn’t “equivalent,” which federal regulations define as one virtually identical in pay, benefits, working conditions, privileges, perquisites, and status.
The new position included most of those features, but Luke argued that his duties changed so much that the positions were not equivalent. The appeals court, however, disagreed. His primary focus—business development—was the same in both positions. Luke presented a list of other duties that he might have to perform if the company won a contract it was seeking, but the court was not persuaded.
“We cannot agree that Luke’s personal to-do list creates a question of fact as to whether or not Luke, [in his new position], was tasked in large part with business development,” the court said. “In our view, no reasonable factfinder could conclude that Sotera failed to place Luke in ‘an equivalent position’ or that the differences between the two jobs were more than merely de minimis.”
An elaborate sham? Luke also alleged that Sotera assigned him to a sham position, creating a job specifically intended for elimination. The lower court, however, found that Luke would have been laid off in his original position, regardless of whether he took medical leave. Luke’s termination was inevitable in light of the employer’s dire financial circumstances and the lack of available contracts, it said.
In fact, the employer had bid on a new contract, the district court said. “[I]f it was a sham, it was an elaborate one that affected other people—[a vice president] also lost his job following the failed bid.”
On appeal, the 4th Circuit agreed. It’s true that restoring an employee to a position slated for layoff (when his or her original positon is not slated for elimination) would not fulfill the law’s requirement, the court said. “We conclude, however, that no reasonable juror would believe, based on this record, that Luke was put in a short-term sham job to cover Sotera’s decision to fire Luke when he returned from leave.”
Employer Takeaway
The 4th Circuit was very clear that neither the FMLA nor its regulations indicate a preference for restoring covered employees to their preleave positions over equivalent positions. “[Luke] would have us rewrite the FMLA by adopting his preferred reading of the text,” it said, addressing the employee’s arguments. “Although Congress is free to revise the statute so that an employer can restore an employee to an equivalent position only if the employee’s original job no longer exists, this court is not empowered to do so.”
Employers should note, however, that the Americans with Disabilities Act (ADA) does include such a provision. In its Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, the U.S. Equal Employment Opportunity Commission (EEOC) addresses reinstatement rights of employees who are eligible for both laws’ protections.
The ADA requires that the employer hold open an employee’s position while he or she is on leave unless it can show that doing so causes undue hardship, the EEOC says. “If it is an undue hardship under the ADA to hold open an employee’s position during a period of leave, or an employee is no longer qualified to return to his/her original position, then the employer must reassign the employee (absent undue hardship) to a vacant position for which s/he is qualified.”
 Kate McGovern Tornone is an editor at BLR. She has almost 10 years’ experience covering a variety of employment law topics and currently writes for HR Daily Advisor and HR.BLR.com. Before coming to BLR, she served as editor of Thompson Information Services’ ADA and FLSA publications, co-authored the Guide to the ADA Amendments Act, and published several special reports. She graduated from The Catholic University of America in Washington, D.C., with a B.A. in media studies. |