by Barbara J. Koenig, Foster, Rieder & Jackson, P.C.
In a recent case, a federal district court judge excluded three pieces of evidence that a fired employee claimed helped prove his allegation that his employer, SAIA Motor Freight Line, LLC, interfered with his Family and Medical Leave Act (FMLA) leave by terminating him. The evidence was excluded, the jury found in favor of the employer, and the case was dismissed.
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The employee appealed the dismissal of his complaint to the U.S. 10th Circuit Court of Appeals (which covers Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming). The 10th Circuit ruled that the trial judge was right to exclude the evidence because it was too prejudicial to the employer—compared to its evidentiary value—to allow a jury to consider it.
Background
“Eric,” a longtime SAIA employee, worked at the company’s Oklahoma City, Oklahoma, terminal. On October 21, 2013, an anonymous caller left a tip on SAIA’s hotline saying Eric was using his company contacts to generate business for a side venture registered in his spouse’s name. If true, the action would have constituted a violation of SAIA’s conflict-of-interest policy. SAIA’s internal audit group began an investigation into the allegation but did not notify Eric’s supervisors.
On November 15, 2013, Eric broke his ankle while playing soccer. His supervisor insisted that he take FMLA leave. On December 12, 2013, SAIA approved Eric’s request for FMLA leave and backdated it to November 25.
Meanwhile, the internal investigation into the conflict-of-interest tip continued. SAIA learned that a small transportation company, Batak, LLC, had been registered in Eric’s wife’s name. SAIA determined that even though Batak was a local company, it still interfered with SAIA’s wider operations and created a conflict of interest for Eric. SAIA fired Eric on December 18, 2013, while he was still on FMLA leave, for violating company policy.
FMLA Interference Claim
Under the FMLA, a qualified employee may take up to 12 weeks of unpaid leave during a 12-month period because of a serious health condition that renders him unable to perform the essential functions of his position. The FMLA makes it unlawful for an employer to interfere with, restrain, or deny an employee’s attempt to exercise his right to take leave under the Act.
If an employer attempts to prevent or actually prevents an employee from taking FMLA leave to which he is entitled, he may have a claim for FMLA interference. To establish a claim of interference, the employee must show that (1) he was entitled to FMLA leave, (2) the employer took an adverse action against him that prevented him from taking FMLA leave, and (3) the adverse action was related to his attempt to take FMLA leave. Firing an employee while he is on FMLA leave is considered an adverse action that prevents him from taking leave.
Eric easily established the first two requirements of an FMLA interference claim. He was entitled to FMLA leave because his broken ankle made him unable to perform the essential functions of his job, and SAIA took an adverse action against him that prevented him from taking FMLA leave when it fired him.
Evidence to Support Eric’s Claim
The parties argued over whether Batak’s local operations really constituted a violation of SAIA’s conflict-of-interest policy. The crucial evidence offered to support Eric’s claim was that SAIA maintained an unwritten companywide policy of disciplining and ultimately firing employees for taking FMLA leave or claiming workers’ compensation benefits.
Eric offered testimony that another SAIA employee assigned to a location in a different district had been terminated after taking FMLA leave. That evidence was accepted by the court, but the trial judge excluded testimony and evidence concerning three other incidents or practices that Eric contended supported his position.
The judge found the prejudice SAIA would suffer if the three pieces of controversial evidence were admitted would outweigh any relevant evidence it might provide for a jury to consider. The judge ruled the evidence should be excluded.
Testimony Rejected
The first piece of rejected evidence was proposed testimony from former SAIA employee “Marvin,” who worked as a dock supervisor in Illinois. He claimed he was fired in 2011 after taking FMLA leave. SAIA claimed he was fired because of his work performance. Eric and Marvin had different jobs in different regions and had different supervisors.
Marvin was fired 2 years before Eric was terminated. The trial judge found the evidence may have had minimal relevance to prove that Marvin was fired under a companywide policy because he had exercised his right to take FMLA leave. However, the judge excluded the proffered testimony. According to the judge, “The inference of an anti-FMLA policy would have been illogical, but might have appeared (on the surface) powerful to the jury.”
The second piece of evidence involved a 12-year-old workers’ comp decision concerning former SAIA employee “Allen.” Allen alleged that he suffered retaliation after claiming workers’ comp benefits and that SAIA fabricated evidence in his case. The trial judge ruled Allen’s testimony was too remote in time, concerned workers’ comp benefits rather than FMLA leave, and involved different supervisors.
The judge concluded that the potential impact of the evidence was too prejudicial, saying, “I can easily see a jury going back and saying, ‘You know, these [SAIA] guys deserve to lose every single lawsuit [because] they fabricate evidence.'” The judge determined the prejudice to SAIA outweighed any evidentiary value the 12-year-old testimony might have had to Eric’s claim.
The third piece of evidence was testimony by “Paul,” a former SAIA employee who attended national and Chicago regional management meetings in which he heard two East Coast supervisors talk about employees who had taken FMLA leave. The supervisors advised attendees at both meetings to begin writing up employees who took FMLA leave so that they could eventually be terminated for cause. A critical issue was that it was not clear whether the two supervisors were talking about their own personal philosophies or whether they were talking about SAIA’s unwritten nationwide policy.
Paul had no evidence that the supervisors were talking about a companywide policy. Further, he did not know whether they advised supervisors in the Oklahoma region, where Eric was employed, to adopt such a policy. The trial judge decided the testimony was too prejudicial for the jury to consider and excluded it. Gaige v. SAIA Motor Freight Line, LLC, No. 15-1691 (10th Cir., Nov. 29, 2016).
Takeaway
This case demonstrates that a careful review of all supporting facts is an important factor in evaluating the probability of successfully defending against a claim of interference with protected rights or discrimination and whether to settle or proceed with litigation. A party may offer only facts and testimony that make the testimony of its witness and evidence more believable.
This case could have gone the other way with another judge. A different judge may have concluded the testimony was relevant and admitted it. This decision illustrates that it is crucial that legal counsel be included in discussions in the early stages of a claim to provide advice in evaluating evidence you wish to offer to support your position.
Barbara J. Koenig, a contributor to New Mexico Employment Law Letter, can be reached at barbara@frjlaw.com.