Employee Received All Leave To Which He Was Entitled, FMLA Claims Properly Dismissed: Third Circuit

Because an employee received all the leave to which he was due under the Family Medical Leave Act (FMLA) and suffered no adverse employment consequences for doing so, the Third Circuit U.S. Court of Appeals affirmed a district court’s grant of summary judgment in favor of an employer on his FMLA interference and retaliation claims in Ross v. Gilhuly (No. 13-2437). The employee failed to allege that his employer withheld any entitlement guaranteed by the FMLA, thus he failed to state a claim for interference. With respect to his retaliation claim, the fact that the employee was placed on a performance improvement plan based on documented performance problems well before the employer knew he was sick defeated any retaliatory inference based on timing.

The plaintiff was a business development manager for Continental Tire, reporting to a regional manager. Because much of his work put him on the road, he began working from his home, independently setting his travel schedule and work priorities. The employee’s contact with his regional manager consisted of biweekly sales conference calls during which the regional director would review his schedule and recommend changes as needed. There also was regular email contact and phone contact, “a minimum of two to three interactions a week.”

Performance improvement plan. Shortly after he started in his position, the regional manager began receiving negative comments from a large customer regarding his performance. Ultimately, the customer asked that the employee be taken off its account. After confirming the employee’s performance deficiencies, the regional manager began reporting his findings to HR. A formal meeting was held with the employee discussing his poor performance. Later, the regional director spoke with HR regarding the development of a performance improvement plan (PIP) for the employee. Thereafter, the employee met with the regional director to discuss the PIP and conduct his annual review. The employee was given specific areas for improvement.

Less than a month after the PIP was implemented, the employee forwarded a letter to the regional manager and HR from his physician informing them he had been diagnosed with prostate cancer. Despite his illness, the employee wanted to move forward with the PIP. The employer sent an email of support to the employee regarding his illness, and there was a suggestion that “the PIP timetable may need to be adjusted.” After receiving notice that the employee’s treatment plan called for surgery, the PIP timetable was extended by at least 30 days. However, because the employee did not want the PIP to “hang over his head” during his recovery, he requested the PIP be completed before his surgery.

FMLA leave. It was undisputed that the employee requested and was granted FMLA leave that began on the date of his surgery, and ended when he returned to work. It was also undisputed that he continued to receive his regular compensation and insurance benefits while on leave. During the time he was on leave, his PIP remained “pending.” When he returned to work, the status of his PIP was yet “to be determined,” but he did return to the same job from which he left.

Approximately a month after the employee returned to work, he received a memorandum from the regional manager informing him that his performance was still not satisfactory in all the identified areas in the PIP.

Grant of summary judgment. The employee filed this lawsuit alleging interference with his FMLA rights and retaliation. While the suit was pending, Continental terminated the employee. He amended his complaint to add a wrongful discharge claim. Ultimately, all claims were resolved in favor of the employer. This appeal was timely filed. The only issue on appeal was whether the district court erred in granting summary judgment against the employee on his FMLA claims.

In this instance, the employee argued that there were genuine issues of material fact that barred the district court’s grant of summary judgment. Specifically, he asserted that his rights were violated when the regional manager failed to conclude the PIP before he was expected to start his FMLA leave and then adding an addendum to the PIP upon his return to work. Accordingly, the employee argued that he established a prima facie case of interference and that there exists a causal link that could have led a reasonable fact-finder to conclude that he was retaliated against for taking FMLA leave.

Interference claim. To establish a claim of interference under the FMLA, an employee must establish: (1) he or she was an eligible employee under the FMLA; (2) the defendant was an employer subject to the FMLA’s requirements; (3) the plaintiff was entitled to FMLA leave; (4) the plaintiff gave notice to the defendant of his or her intention to take FMLA leave; and (5) the plaintiff was denied benefits to which he or she was entitled under the Act. Here, there was no dispute that the employee met the first, third, and fourth prongs. The parties only disputed whether the regional manager was liable as an “employer” under the FMLA (the third prong) and whether the employee showed that he had been denied benefits to which he was entitled (the fifth prong).

The Third Circuit concluded that because the employee had received all the benefits to which he was entitled by taking leave and then being reinstated to the same position from which he left, he could not satisfy the fifth prong of the interference analysis. Because he failed to make a prima facie showing of interference, the Third Circuit determined that it need not address whether the regional manager was an “employer” under the FMLA.

Further, the court rejected the employee’s contention that his termination and the addendum to his PIP amounted to a denial of FMLA benefits. For an interference claim to be viable, the employee must show that FMLA benefits were actually withheld. Because the employee did not allege that the regional manager withheld any entitlement guaranteed by the Act, he failed to state a claim for interference.

Retaliation claim. To succeed on an FMLA retaliation claim, the employee had to show that: (1) he invoked his right to FMLA-qualifying leave, (2) he suffered an adverse employment decision, and (3) the adverse action was causally related to his invocation of his FMLA rights. Here, the defendants conceded that the employee satisfied the first two elements, but they argued that he failed to submit sufficient evidence to raise a genuine dispute of material fact as to whether the addendum to his PIP and his subsequent termination were causally related to his invocation of his FMLA rights. The only question, therefore, was whether the employee was able to meet the shifting burdens of McDonnell Douglas.

The Third Circuit answered that question in the negative. Even assuming that the employee established a prima facie case, the defendants submitted a legitimate, nondiscriminatory reason for his termination—his poor job performance—and the employee did not adduce any meaningful evidence to allow a reasonable fact-finder to find pretext. A finding that the PIP was originally justified only on the basis of the customer’s concerns did not help the employee because customer feedback, particularly from an important customer that accounts for millions of dollars of revenue, was an obviously valid factor in evaluating performance. At any rate, the customer’s complaint was not the sole justification for implementing the PIP or the later addendum, and they were not the sole reason for his ultimate discharge. The employee admitted to his sub-par performance in a memorandum to the regional manager, and his other deficiencies were documented in detail in the final memorandum.

Temporal proximity. The Third Circuit also rejected the employee’s contention that pretext was apparent because of the temporal proximity between his asking for FMLA leave and the employer’s decision to extend the PIP. Under Third Circuit precedent, “the timing of the alleged retaliatory action must be unusually suggestive of retaliatory motive before a causal link will be inferred.” Here, there was nothing unusually suggestive about the timing of the addendum or the employee’s termination. It was perfectly sensible for the employer to delay the timeline of the PIP to accommodate the employee’s FMLA leave, the Third Circuit pointed out.

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