Employer Failed To Show It Would Have Fired Employee For Work Issues And Faking Need For FMLA Leave

Reversing a district court’s grant of summary judgment in favor of Chevron, the Fifth Circuit U.S. Court of Appeals found the company failed to show that, despite its retaliatory motive, it would have fired an employee who was seeking Family and Medical Leave Act (FMLA) leave based on his history of attendance and performance-related deficiencies, his alleged statements to a coworker about faking a nervous breakdown in order to take leave, and his abusive conduct toward coworkers in Ion v Chevron USA, Inc.

Leave request. The employee, a laboratory chemist, began working at a Chevron refinery in 2006. In late 2008, after he and his wife separated and she moved out of state with their five-year-old son, he allegedly asked the lead chemist about the company’s leave policy. On Feb. 5, 2009, he told another supervisor, the chief chemist, that he had been granted sole custody of his son for six months, that the child was not adjusting well, and that he would be spending more time with him during lunch. He allegedly asked to meet with the supervisor on February 9 about taking a leave of absence. This meeting, however, never took place.

Suspension. On March 16, the employee’s supervisors told him that he was being suspended for five days due to performance deficiencies and excessively long lunch breaks. He was then placed on a performance agreement and attendance improvement plan (PIP/AIP). While on suspension, he contacted an EAP counselor, who told him that FMLA leave might be available and referred him to a doctor. On the day he was scheduled to return to work, the doctor certified that the employee was incapacitated by stress. He called in sick that day and the next, as he’d been told to do by the EAP counselor. On March 24, his supervisor emailed the refinery’s general manager, who responded that the employee “is playing games with us after his suspension,” and he “is looking for a doctor to give him some FMLA-qualified time off. What are our options as we move forward?”

Clinic visit. The next day, the employee went to the company’s clinic to sign FMLA paperwork. A nurse asked him to sign a form releasing his medical information. Because the EAP counselor told him that would be confidential, he refused to sign. When clinic workers reported that the employee made them feel uncomfortable, he was banned from the premises by a security officer based on concerns of workplace violence. That same day, a coworker told the supervisor that, after the employee had been questioned about the length of his lunch breaks, he became angry, talked about quitting, then mentioned faking a nervous breakdown related to his divorce so he could take a leave of absence with FMLA and EAP benefits. On March 26, when the employee again called in sick, he told his supervisor that his FMLA paperwork was ready. He was terminated several days later for “abuse of management constituting insubordination.” He then sued, asserting interference and retaliation claims under the FMLA.

Lower court. Granting summary judgment to Chevron, the district court held that while the employee established a fact dispute regarding Chevron’s motivation, the company established as a matter of law that it would have terminated him despite any retaliatory motive. The employee appealed summary judgment as to the retaliation claim. Reversing the lower court’s decision, the Fifth Circuit found that a material fact issue existed under both the mixed-motive rubric, which the court applied here, and the but-for causation approach.

Motivating factor. Because both parties assumed the employee established a prima facie case and that Chevron articulated a nondiscriminatory reason for the termination—the employee’s unexcused absences, poor performance, statements to his coworker about faking a nervous breakdown, and his behavior toward clinic employees—the court looked to whether the employee established that the exercise of his FMLA rights was a motivating factor in his discharge. While the employee first contended that the use of the word “insubordination” in his termination letter could only refer to his refusal to sign the release form, the Fifth Circuit found that this allegation was unsupported speculation.

The employee next contended that his supervisor’s statement in the termination letter that “[y]ou haven’t returned to work since your suspension,” indicated that his FMLA-related absence was a reason for his termination. Here, the court found that the inclusion of this statement in the same paragraph listing the reasons for his discharge could indicate that his absence was also a reason. In addition, the court found that the GM’s email, in which he suggested that the employee was looking for a doctor to give him FMLA-qualified time off, was sufficient to allow a jury to conclude that the GM was attempting to stop the employee from taking FMLA leave or punish him for taking it. Thus, the evidence was sufficient to create a fact issue as to whether the employee’s leave was a motivating factor in his termination.

Affirmative defense. In its attempt to prove it would have fired the employee despite retaliatory animus, Chevron again relied on his absences from work, poor performance, statements about faking a nervous breakdown, and behavior toward clinic employees. Although the lower court found it persuasive that Chevron had begun the disciplinary process before the employee applied for FMLA leave, the Fifth Circuit found the company’s claim that it would have fired him based on his absences and poor performance “disingenuous and contradicted by the evidence.” Chevron had already elected to suspend the employee and place him on the PIP/AIP and there was no indication it was considering further discipline for his prior absences and performance. Rather, it gave him a final warning, implying he had another chance to keep his job. Moreover, his supervisor testified that had he returned to work following his suspension, he would have been reinstated. Thus, this evidence did not show that Chevron would have fired him despite its retaliatory motive.

As for the coworker’s statements and the clinic incident, the court first noted that the temporal proximity between when the GM’s email was sent, when the coworker came forward with the employee’s alleged statements, when he was asked to come to the clinic to sign a medical records release, and when he was fired raised serious questions about Chevron’s motives. Moreover, based on the coworker’s statements, the company concluded the employee was faking a medical condition without investigating, despite its own EAP counselor referring the employee to a licensed professional and that professional certifying that he suffered from a serious health condition. “Chevron’s failure to conduct even the most cursory investigation, confront [the employee] about [his coworker’s]statements, or seek a second opinion under the FMLA calls into doubt Chevron’s reasonable reliance and good faith reliance on [the coworker’s] statements, and, at the very least, creates a fact issue as to whether it would have terminated [the employee] despite its retaliatory motive.”

Turning to Chevron’s contention that it fired the employee because of his behavior at the clinic, not because he refused to sign the form, the court found this argument to be without merit. Here, the court found it significant that the termination letter did not even mention the clinic incident. The omission of this incident from the letter “calls into question whether Chevron truly relied on the clinic incident as a reason for terminating” the employee, the court observed. In addition, Chevron’s accounts of the incident were vague and did not describe foul language, physical manifestations of anger, or descriptions of the employee’s behavior other than asking questions about the form. “The failure to bring forth any evidence about [the employee’s] actual behavior” called into doubt Chevron’s reasonable belief and good-faith reliance on the clinic employees’ report. Finding that Chevron failed to show that it would have fired the employee despite its retaliatory motive, the court reversed the judgment in favor of Chevron and remanded for further proceedings.

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