October/November 2006 FMLA News

• Discharge of Employee for Violation of Employer's Attendance Policy Was Not Pretext for Retaliation Under FMLA


• Employer Not Entitled to Summary Judgment on Terminated Account Executive's FMLA Retaliation Claim

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Discharge of Employee for Violation of Employer's Attendance Policy Was Not Pretext for Retaliation Under FMLA (9/28/06) - US Dist Ct., E.D.Mich
A former employee brought an action alleging that her employer violated the Family and Medical Leave Act ("FMLA") by terminating her for allegedly failing to comply with the company's attendance policy. In response to the defendant's motion for summary judgment, the district court held that: (1) a fact issue existed as to whether the employer interfered with the employee's exercise of her right to intermittent medical leave by imposing requirements in excess of those set forth in the FMLA and its implementing regulations and then terminating her employment when she failed to meet these additional requirements; and (2) the discharge of the employee for her purported violation of obligations in excess of those mandated under the FMLA and its implementing regulations was not a pretext for retaliation for her exercise of her right to leave under FMLA; the policy relied upon by the employer was applied equally and across-the-board to all employees without regard for whether the employee had been approved for FMLA leave or was absent from work for some other reason:

The net effect of [the employer's attendance] policies, at least as applied in this case, was to impose obligations in excess of those mandated under the FMLA and its implementing regulations, thereby constituting unlawful interference with the exercise of FMLA rights. Yet, it is one thing to conclude that an employer's policy violates the substantive provisions of the FMLA, and another to say that the employer has applied this policy for an impermissible retaliatory purpose. As the courts have recognized in analyzing motive-based claims of discrimination or retaliation, an "employer's reason for discharge does not have to be a good reason," so long as this reason is "based on grounds not proscribed by the statute."

Here, while Defendant might have unlawfully denied FMLA leave to Plaintiff based on impermissibly stringent requirements, it cannot be said that Defendant then discharged Plaintiff because of her exercise of FMLA-protected rights. To the contrary, Defendant states without contradiction that it discharged Plaintiff because it concluded, however mistakenly or unlawfully, that her absences were not protected by the FMLA. For all that appears in the record, the policies relied upon by Defendant in making this determination are applied equally and across-the-board to all of the company's employees, without regard for whether an employee has been approved for FMLA leave or is absent from work for some other reason.

While Defendant's stated reason for discharging Plaintiff might not be a particularly good one, when viewed in light of the substantive terms of the FMLA and its implementing regulations, there is no evidence of Defendant's intent to retaliate against Plaintiff for her exercise of rights under the FMLA. Consequently, Defendant is entitled to summary judgment in its favor on Plaintiff's FMLA claim of retaliatory discharge. [Note: The court denied the defendant's motion for summary judgment on the FMLA interference claim."]

McClain v. Detroit Entertainment, L.L.C.

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Employer Not Entitled to Summary Judgment on Terminated Account Executive's FMLA Retaliation Claim (9/13/06) - US Dist Ct., S.D.N.Y.
A New York company that sold advertisements for local cable television stations was not entitled to summary judgment on a terminated account executive's Family and Medical Leave Act (FMLA) retaliation claim.

Genuine issues of material fact existed as to whether the account executive's termination, purportedly for his breach of security at a rock concert through the use of his employee identification to obtain access to restricted areas and his lack of candor during the investigation thereof, occurred under circumstances giving rise to inference of retaliatory intent.

The terminated employee claimed the employer demonstrated a retaliatory animus toward him for taking twelve weeks of FMLA leave for carpal tunnel surgery on his wrists, and that it failed to investigate the allegations against him as thoroughly as it would have in other instances. It was for the jury to decide whether a company Vice President was in fact irritated during his meeting with the employee and whether that irritation indicated such animus.

Esser v. Rainbow Advertising Sales Corp.

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