HR Management & Compliance, Learning & Development

Was Termination Due to Dishonesty or Retaliation for Taking Medical Leave?

A warehouse maintenance worker who suffers from migraine headaches filed a suit against his former employer saying, among other things, that his supervisor retaliated against him for taking medical leave. The alleged retaliation included being denied certain refresher safety training.stress

What Happened

In 2007, “Hunter” started working as a maintenance worker for OK Grocery Company, Inc., a division of Giant Eagle, Inc. He had been suffering from migraine headaches for 17 years by 2010, when he applied for and was granted intermittent leave under the Family and Medical Leave Act (FMLA).

However, he felt that his employer—and, in particular, his direct supervisor—retaliated against him for taking leave. For example, Hunter found a warning about FMLA abuse at his toolbox when returning to work after taking FMLA leave. On one of those days, his supervisor said to him, “[O]h,
another migraine Monday.”

A coworker told Hunter that he had heard the supervisor make similar comments and that the supervisor believed Hunter was taking FMLA leave to work on his house.

Despite Hunter’s seniority in the department, the supervisor apparently caused Hunter not to be invited to hazardous materials refresher training. In addition, even though other maintenance workers had a master key, and Hunter had twice asked for the key, the supervisor would not give it to him. Hunter also believed his employer was unfairly scrutinizing his leave requests.

Hunter was discharged after taking a day off to grieve the death of his “aunt,” who actually was his “step dad’s new companion.” It is unclear whether his termination was due to the fact that they were not related or because he did not request a bereavement day.

The company rehired Hunter after entering into a last chance agreement (LCA) with him on July 7, 2011. The LCA stated that if Hunter “committed any dishonest act, or falsified any Company document or information provided to the Company, at any time during the remainder of his employment with OK Grocery Company, the Company will have the right to discharge … [Hunter] for cause and no prior warning will be required.”

The LCA also specified that if Hunter was discharged under the terms of the agreement, he and his union agreed not to file a grievance or initiate other legal proceedings regarding the termination. In addition, the LCA indicated that Hunter was giving up his right “to file any NLRB [National Labor Relations Board] charge, lawsuit or any other legal or administrative proceeding against the Union in connection with such discharge.”

More than 2 years later, on October 11, 2013, Hunter clocked in for the night shift before 11 p.m. However, a severe migraine prevented him from doing any work except changing two batteries. Instead, he spent much time lying down in the locker room or break room.

At approximately 4:30 a.m., he notified the night shift supervisor about his migraine. He took FMLA leave but neglected to punch out.

When his supervisor reviewed records to generate payroll the next day, the payroll system indicated that Hunter had not clocked out the day before. After reviewing surveillance tapes at a high speed, the supervisor determined when Hunter left. However, his review of the tapes seemed to indicate that Hunter had not been working during his shift, so the supervisor reviewed the tapes again at normal speed.

The supervisor prepared a handwritten summary documenting Hunter’s failure to work. During an interview with HR, Hunter admitted that he had only been able to change two batteries during his shift and that he had not initially notified a supervisor about his inability to work.

On October 31, Hunter’s employment was terminated “for the separate and independent reason of violation of the Last Chance Agreement,” as well as company policies on “Theft, Dishonesty, Sleeping, Starting, Quitting, Break Times, and Due Care.”

Hunter filed suit, alleging that his former employer had breached his union’s collective bargaining agreement (CBA), the union had breached its duty of fair representation because it did not pursue a grievance related to his termination, and the company had retaliated against him under the FMLA and had interfered with his rights under the FMLA.

A district court dismissed the first two claims and later ruled in favor of Giant Eagle on the FMLA claims. Hunter appealed to the U.S. Court of Appeals for the Third Circuit, which covers Delaware, New Jersey, Pennsylvania, New Jersey, Delaware, and the Virgin Islands.

What the Court Said

The appeals court affirmed, agreeing with the district court that the LCA—not the CBA—governed Hunter’s termination and that the company exercised its discretion under the LCA to fire him without giving him a right to grieve or arbitrate claims related to that termination.

The court said his claim against his union and the FMLA claims also failed—the latter because Hunter did not show that his former employer’s reason for terminating him was pretextual. Sterrett v. Giant Eagle, Inc., et al. (No. 16-2888) (U.S. Court of Appeals, 3rd Cir., 3/7/17)

When training managers and supervisors on the FMLA, be sure to explain that they should not retaliate against employees who take such leave. That includes not denying training to employees who are eligible for it.