Employers must not impose probation on employees for excessive absences that include leave under the Family and Medical Leave Act. To do so is akin to using a disciplinary measure to penalize employees for taking qualified FMLA leave.
So ruled the U.S. District Court for the District of New Jersey as it permitted the FMLA interference and retaliation claims of a former county board of elections clerk to proceed to jury trial. The case is Bravo v. Union County, 2013 WL 2285780 (D. N.J., May 23, 2013).
Facts of the Case
Union County Board of Elections employed Rose Bravo as a computer terminal operator and elections clerk for 12 years. During her tenure she suffered from multiple serious health conditions, including post-traumatic stress disorder, which made it difficult for her to perform her work and required certain accommodations and leaves of absence.
In December 2006, Bravo discovered her supervisor’s dead body at work on the second floor of the BOE building. The traumatic experience resulted in a PTSD diagnosis and an approved leave of absence.
In 2010, Bravo was entitled to 26 paid sick days —15 for that year and 11 carried over from 2009. In the first half of 2010, she took 12.5 sick days. She then took 32 days of leave from June 30 through Aug. 27 to care for her ailing mother. Attendance records show that 30.5 of those days counted against her allotted sick and vacation days. Once she exhausted her paid time off, she took the remaining days (1.5) as FMLA leave.
According to BOE, Bravo then took an additional five unpaid sick days after returning from FMLA leave. BOE administrator Dennis Kobitz complained to the Union County human resources officer that Bravo had “used up all of her sick time.” He noted that she had previously been warned about her use of sick time and therefore wanted to discipline her.
Consequently, Bravo was placed on probation in 2011 because of “inadequate attendance.”
Sometime in 2011 Bravo asked Kobitz if she could purchase vacation time because she had used her vacation days to take FMLA leave in 2010. Kobitz refused her request and told her that no one was allowed to purchase vacation time in 2011.
When Bravo informed Kobitz that she required emergent FMLA leave in October 2011, he reminded her that she was on probation and warned her: “Do what you have to do, but I’m just telling you that you are in jeopardy [of not being reappointed].”
Shortly thereafter, BOE approved Bravo’s FMLA leave which she took from Oct. 31 through Dec. 5. Upon her scheduled return Bravo learned that the BOE commissioners, acting on Kobitz’s recommendation, voted to not reappoint her for 2012 based on her attendance and poor work performance.
Bravo promptly filed an amended complaint against Union County, BEO and Kobitz alleging FMLA interference and retaliation.
Court Weighs in
BOE’s decision to place Bravo on probation — and, by extension, Kobitz’s denial of Bravo’s request to purchase vacation time — was based, at least in part, on her FMLA leave, the federal district court in New Jersey ruled. Moreover, the court denied Union County’s motion for summary judgment because a reasonable jury could consider Kobitz’s response and inaction to Bravo’s request for emergent FMLA leave as an attempt to inhibit her from exercising her FMLA rights in the future.
Employer Takeaways
Employers may not consider FMLA leave, paid or unpaid, as a basis on which to discipline their employees. Because Bravo would not have exceeded her 26 days of sick leave without taking FMLA leave, it could stand to reason that BOE put her on probation, in part, because of her FMLA leave.
As the Bravo court concluded, receiving probation for taking excessive sick leave, including FMLA leave, would dissuade most employees from taking FMLA leave in the future. This is in direct violation of FMLA. See 29 C.F.R. §825.220(c).
For the complete article, see “FMLA Leave Not a Reason for Discipline or Dismissal” on hr.complianceexpert.com.