The 6th Circuit Court—which covers Kentucky, Michigan, Ohio, and Tennessee—recently heard an employee’s Family and Medical Leave Act (FMLA) “interference” claim. The employee allegedly threatened a supervisor who issued him a disciplinary write-up over an absence he thought was covered by the FMLA. Did the alleged misconduct halt the FMLA process?
Facts
“Tom” started working for Active Tool Manufacturing in 1997. Two years later, Tower Automotive bought Active Tool and retained its workforce, including Tom.
Tower maintains a policy against harassment that requires employees to treat each other with dignity and respect. Whether an employee’s conduct violates the policy is for Tower to determine “in its sole discretion,” and a breach of the policy can result in termination.
On multiple occasions over the years, Tom requested and received FMLA leave to care for his wife, who had a serious medical condition, and for his own work-related stress and anxiety. On July 29, 2014, Tom suffered an anxiety attack when he woke up. As a result, he arrived at work one or two minutes late.
When he arrived at work, Tom told the supervisor on duty that he “was late because of FMLA.” He didn’t explain that he was late because of his anxiety, and the supervisor didn’t advise Tom that any FMLA leave request had been approved. Tom wrote “FMLA” on his time card.
Two days later, a supervisor gave Tom a write-up for the July 29 late arrival. Tom became visibly upset and started shouting that his late arrival had been excused. He screamed at the supervisor, “I’m going to get you on this.” When the supervisor approached him, Tom again shouted, “I’m going to get you on this.” He also stated that he would file a complaint with the U.S. Department of Labor (DOL).
Tower suspended Tom and began an investigation of the incident. Eventually, the company determined that Tom had threatened the supervisor in violation of the company’s antiharassment policy. Consequently, Tower fired him. It never determined whether he should have been granted FMLA leave for his late arrival on July 29.
Tom brought a lawsuit asserting that Tower interfered with his rights under the FMLA when it disciplined him for his late arrival, suspended him for threatening the supervisor, and eventually fired him for the same incident. Tower asked the trial court to dismiss the case, and the district court agreed. An appeal to the 6th Circuit followed.
Court’s Ruling
Agreeing with the district court, the 6th Circuit explained that as an initial matter, Tom was required to show that he was entitled to FMLA leave for his late arrival. To be entitled to leave, an employee must notify his employer of his need to take leave and state a qualifying reason. If the employer lacks sufficient information to decide, the employee must help it gather more details. If the employee fails to do that and the employer cannot otherwise determine whether he qualifies for FMLA leave, it may deny the leave.
In this case, Tom believed he was entitled to FMLA leave, but Tower never officially approved the request. When he objected to his disciplinary write-up, his supervisor tried to gather more information, but Tom aborted the process by shouting at him and threatening him. Therefore, Tower could have properly denied his leave request, and Tom didn’t establish that he was entitled to leave.
Moreover, Tom couldn’t demonstrate that he was terminated in retaliation for his leave request. Tower presented a legitimate nondiscriminatory reason for the termination: his violation of the antiharassment policy. The mere fact that Tower terminated him shortly after he applied for leave wasn’t enough to demonstrate that his leave request was the “real” reason for his discharge and his misconduct was just a pretext, or excuse, for discrimination.
Any helpful inference based on the timing of his termination was negated by the fact that Tom threatened his supervisor at the same time the company was trying to investigate his leave request. Moreover, he acknowledged that Tower had previously fired other employees for threatening supervisors. Levaine v. Tower Auto. Operations USA I, LLC, No. 16-1782, 2017 WL 710468 (6th Cir., Feb. 22, 2017).
Bottom Line
Seeking FMLA leave—or engaging in any other “protected” conduct—doesn’t immunize an employee from discipline for unrelated reasons. An inappropriate reaction to discipline or an otherwise legitimate investigation may still be the basis for separate discipline.
Still, disciplining someone after he has engaged in protected activity can be risky, and you should be sure that your reason for taking an adverse action is legitimate and supported by documentation or your past practices when possible because it will be challenged.
Jennifer Bame, contributor to Kentucky Employment Law Letter, can be reached at jbame@fbtlaw.com.