Most employers know they cannot retaliate against someone for requesting or using Family and Medical Leave Act (FMLA) leave. One way to defeat an FMLA retaliation claim is to provide evidence that the adverse employment decision was made, but not yet relayed to the employee, before she requested FMLA leave.
Usually, an employer must wait until a later phase in the litigation process to ask a court to dismiss a case on those grounds. However, the employee’s allegations in a recent case allowed the employer to seek and obtain dismissal early in the litigation.
Friendship Goes Awry
“Pam” worked at the Berkshire (Massachusetts) Middle District Registry of Deeds as the first assistant register. During her decade of employment, she developed a friendship with a coworker, “Angela.” In 2013, Angela was appointed register of deeds and became Pam’s supervisor. At that point, their friendship began to crumble, and Angela terminated Pam in 2015.
Pam claimed that approximately 1 year after Angela became the register of deeds, she began to experience stress, anxiety, fatigue, hair loss, aches, and gastrointestinal pain. She sought medical attention for those symptoms and kept Angela apprised of her condition. She alleged that a few months later, Angela repeatedly asked her to donate to the political campaign of the secretary of the Commonwealth of Massachusetts, who was running for reelection. She said that when she initially declined, she was excluded from meetings and decisions. Eventually, she made a contribution to the campaign, allegedly under pressure.
By October 2014, Pam had been diagnosed with an anxiety disorder. After she suffered a nervous breakdown at work, Angela drove her home. She was off work for approximately 2 weeks. When she attempted to return, Angela suggested that she take another week to rest, which she did.
Disciplinary Train Leaves the Station . . .
In early December 2014, Pam alleged that Angela asked her a question in front of others that was meant to embarrass her. She also claimed that after she received a pistol from her husband for Christmas, Angela called him in January 2015 to express her discomfort over the gift and ask if she carried the gun to work. According to the complaint, the day after the call, Angela accused Pam of having an affair. She then left Pam two voicemails directing her to report for work the following day, January 30.
When Pam attempted to enter the building on January 30, she was denied access by a security officer who had been told by Angela that she was a safety threat. On February 2, Angela told Pam not to report to work on February 3. Fearing that her employment was “in jeopardy,” Pam sent Angela an e-mail on February 3 indicating that she would be “out sick” for the week and she would be seeing her doctor. On February 6, she was notified of her termination.
Pam subsequently filed a lawsuit against Angela in her official capacity as register of deeds, alleging she was terminated in retaliation for requesting FMLA leave. Angela filed a motion asking the court to dismiss Pam’s lawsuit, asserting that even if all the facts alleged in her complaint were true, her claim must still fail. The motion to dismiss was granted by the trial court, and Pam filed an appeal with the U.S. 1st Circuit Court of Appeals—which covers Maine, Massachusetts, New Hampshire, and Rhode Island.
No Getting Back on After Train Leaves the Station
On appeal, the 1st Circuit agreed with the trial court. In making that determination, it reasoned that to have engaged in retaliation, the employer must have, at the very least, been aware that Pam was requesting FMLA leave before it made the decision to terminate her.
The court noted that Pam’s e-mail about being “sick” and seeing her doctor might not have provided Angela enough information from which she could have reasonably determined that Pam was asking for FMLA leave. However, even assuming that Pam’s e-mail was sufficient notice, the court found that the allegations in her complaint made it clear nothing connected her FMLA request to her termination.
The court noted that Pam’s own allegations showed that her firing was already in the works before she sent the e-mail on February 3; therefore, her request for FMLA leave came after the decision had been made. Notably, Pam’s complaint alleged that Angela had previously accommodated her by allowing her a leave of absence for a serious health condition, which Angela suggested she extend; that there had been more than 1 year of turmoil between Pam and Angela; that Pam had been told to stay home several days; and that she thought her job might be in jeopardy before she told Angela that she was sick and seeing a doctor.
Accordingly, the court found that even taking all of her allegations as true, Pam failed to establish a claim for FMLA retaliation. Germanowski v. Harris (1st Circuit Court of Appeals, 2017).
As the trial court appropriately noted and the 1st Circuit affirmed, the “FMLA is not a tool an employee can use to delay or avoid termination.” If you are about to fire an employee and she suddenly requests FMLA leave, you should consult with labor and employment counsel about how to move forward without increasing your risk of liability.
This article originally appeared in the December issue of Maine Employment Law Letter.