Confusion as to counting absences avoids dismissal of FMLA interference and retaliation claims but discharge claim fails

On dueling motions for summary judgment, a federal district court in Virginia found that a welder’s FMLA interference and retaliation claims survived because it was unclear whether his employer, Volvo, had properly counted absences that qualified under the FMLA before putting the worker on probation for excessive unexcused absences. However, the court granted summary judgment against the welder’s claim that his ultimate discharge, lack of back pay, and demotion on rehire were retaliation under the FMLA.

Welder obtains FMLA leave for anxiety. The welder at a Volvo plant in Virginia, had a medical condition that caused anxiety and panic attacks. He had applied for and had been granted intermittent FMLA leave rights for two years but he was late in renewing his application for intermittent leave when his certification expired at the end of the second year, although Volvo did grant the recertification—but there was a gap period. In additional, the welder’s need for leave work apparently increased to levels of leave above his certification.

Within a few months, Volvo said it asked the welder to obtain a recertification reflecting the increased need to be off work or to “change his rate of usage.” Nevertheless, the welder failed to recertify his FMLA leave to reflect these changes and Volvo began charging him for unexcused absences for those hours that exceeded his certification. He quickly was placed on probation for absenteeism under Volvo’s absenteeism program, under which any additional absences or tardies may be grounds for termination. He eventually provided a recertification that accounted for his increased need for leave.

However, prior to his recertification, the welder took two days of FMLA leave due to an arrest for driving while intoxicated. Volvo did not learn of this until after the welder had been placed on probation. Later, when the welder arrived for a shift three minutes late during his probation, he was fired. His union filed a grievance for reinstatement and back pay. Ultimately after a year, the welder agreed to sign a last chance agreement, forego back pay, and he returned to work as an assembler, which was a demotion. He later was placed back into his position as a welder.

Interference and retaliation. Two of the welder’s FMLA claims had to do with his placement on probation for excessive absenteeism. He claimed that Volvo interfered with his statutory rights by mischaracterizing some of his FMLA leave as uncovered personal time, leading to his probation, and the probation was in retaliation for his taking FMLA leave. Denying summary judgment on each of these claims, the court cited multiple conflicting statements by representatives of Volvo about whether the worker’s hours of absence were categorized correctly, and there also was confusion over how many unexecused absence hours would result in a worker being placed on probation under Volvo’s absence policy.

How many hours of unexcused absence? As to the number of unexcused hours the worker had accumulated, even the company’s own representatives provided conflicting accounts. Before the litigation, the labor relations representative and HR director were of the opinion that the number was around 44 hours; they later changed this number to 84 hours after litigation began. This discrepancy seemed to stem largely from whether the worker’s absences during the FMLA recertification “gap” counted as unexcused time or as covered FMLA leave. Accordingly, this was a question of fact for the jury as to whether the characterization of the time off was correct, or whether it interfered with the worker’s FMLA rights and demonstrated that his probation was a result of retaliation for taking FMLA leave.

Vague policy on probation. Volvo representatives appeared equally unsure how many hours of unexcused absence had to be accrued before an individual was placed on probation: While they agreed that 44 hours would have been low for probation, they insinuated that it was a matter of discretion. Whether the worker should have been on probation under Volvo policy also depended on whether 44 hours was sufficient. In denying summary judgment, the court stressed that the resolution of these questions of fact is for the jury to determine.

Retaliatory discharge claim fails. The worker also contended that his firing was in retaliation for his FMLA leave and his rehire violated the FMLA because he was not returned to an equivalent position. But the court credited Volvo’s legitimate, nondiscriminatory reasons for his termination. It claimed the welder was fired because he showed up late to work while on probation. No record evidence suggested that the persons responsible for firing him knew that there was a question as to the number of unexcused absences he had to support the legitimacy of the worker’s probation.

Refusal to award back pay on rehire. Similarly, the court found that the company’s reason for not awarding back pay after rehiring the worker was legitimate and non-discriminatory: There was ample evidence that it was based on the worker’s mischaracterization of two days of FMLA leave that he actually used it to deal with his drunk driving arrest. Volvo had strict rules against “misrepresenting yourself with information provided to the Company,” had previously fired employees for similar violations, and the worker could not establish pretext.

Different position after rehire. Finally, the worker’s demotion on rehire did not violate the FMLA because the statute only required a worker return to a same or similar position if “the employee returns from eligible leave, not when he is rehired following a violation of company attendance policies or shop rules.”

SOURCE: Felts v. Volvo Group North America, LLC, (W.D. Va.), No. 7:17-cv-00297-EKD-RSB, May 15, 2018.
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