Employee who was ‘locked out’ over supervisor’s concerns about her gun failed to revive FMLA claim

An employee with a known anxiety disorder failed to plausibly allege that her termination was triggered by an email to her supervisor stating she’d be “out sick,” the First Circuit U.S. Court of Appeals ruled in affirming dismissal of her FMLA retaliation claim. Her pleadings had painted a picture of a longstanding and emotionally fraught dispute with her supervisor, who had encouraged her to take medical leave in the past and had recently expressed fear that she might bring a gun to work. She had also been denied entry to a work building just days before she sent the “out sick” email, causing her to fear imminent termination.

Stressed out by coworker-turned-supervisor.

The employee had worked at a county district registry of deeds for more than a decade, most recently as first assistant register. In January 2013, a colleague with whom she had worked for many years became the register and her direct supervisor. Their previously friendly relationship began to deteriorate, and the employee began experiencing stress and anxiety. She sought medical treatment and told the register about her symptoms and doctor’s visits.
In June 2014, the register began pressuring the employee to financially support a certain state official. The employee initially refused, but eventually made a donation after the register reassigned some of her tasks and left her out of meetings. A few months later, the employee was diagnosed with an anxiety disorder.

Nervous breakdown.

Weeks later, she suffered a nervous breakdown at work, at which time the register drove her home despite the employee’s blaming her for her condition. The next week, the register accused her of disloyalty and inappropriately informing staff about her condition. When the employee tried to return to work on October 20, the register suggested she take another week off to rest. She returned on October 28 and worked for several weeks without incident.

‘Locked out’ after expressed concern about gun.

After the employee told the register that her husband had given her a sport pistol for Christmas, the register called the husband to express her discomfort and asked if the employee was bringing the gun to work (he said she wasn’t). The next day, the employee became upset after the register accused her of having an affair. Later on, the register left her two voicemails directing her not to come to work the following day, January 30. When she tried to drop off keys to a storage room that day, she was denied building access.

Termination.

On Monday, February 2, the register left word that the employee should not come to work the next day. Fearing for her job, the employee sent an email to her on February 3 stating that “she would be out sick for the week, and that she was scheduled to see her doctor.” Two days later, on February 5, she saw her psychiatrist, who gave her a letter advising her to take medical leave for treatment. She was fired the next day, before providing the letter to anyone.
She filed suit against the register and her state employer, alleging FMLA violations and several common law and statutory state law claims. The district court dismissed all of her FMLA claims and declined supplemental jurisdiction over her state law claims. She appealed as to the FMLA retaliation claim against the register that was not barred by the Eleventh Amendment.

Notice may have been sufficient.

The First Circuit agreed that the employee failed to plausibly allege a causal connection between her termination and attempt to exercise her FMLA rights, but not because her employer didn’t have notice of her protected activity. While the district court tossed her claim based on its determination that her February 3 did not give notice that she was asserting FMLA rights, the appeals court declined to rely on this reasoning to dismiss the claim.
Rather, it found that while her email could have more clearly communicated the reason why she was missing work, her other allegations depicted the register as already knowing that she was suffering from a chronic and significant health condition. Thus, notice that she would be out for a week and would be seeing her doctor could arguably be read as giving notice that she would be absent due to a serious health condition.

Email didn’t trigger firing.

Her claim still failed because regardless of how the email was interpreted, it didn’t plausibly trigger her termination. Rather, her own allegations made it “almost certain” that the decision to fire her was already in the works and had nothing to do with the email. For instance, she claimed that during the year preceding her termination, the register consistently accommodated her when she felt unable to work and there was no indication that she required the absences to be unpaid or even reduced the employee’s available FMLA leave. She also apparently urged her to stay out longer during her leave in October.
The appeals court rejected her attempt to establish causation through close temporal proximity between the email and her discharge. While such an inference might be made if she was fired without explanation or a history of employment issues, her complaint painted the picture of “a history of an emotionally fraught and longstanding dispute” between her and the register, the register’s fear that she may have brought a gun to work, and the employee’s subsequent lock out.
Indeed, this context caused the employee to suspect her imminent termination before she sent the email saying she would “be out sick.” To think that the register fired her because she asked for some time off while she was already locked out would be “to suggest that common sense born of real world experience has no role to play in the plausibility analysis.”
SOURCE: Germanowski v. Harris (CA-1), No. 16-1306, April 12, 2017.
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