Evidence employee was discouraged from taking intermittent leave, fired after doing so, support revival of FMLA claims

An employer’s email to an employee who had just returned from a four-day absence—while she had a pending FMLA leave request and prior not-yet-approved requests—stating that her “continued unpaid time away from the workplace” compromised the quality of care it could provide was “the clearest example” of discouraging her from taking FMLA leave, the Eleventh Circuit ruled in an unpublished opinion, vacating summary judgment on her FMLA interference claim. Her FMLA retaliation claim was also revived.

The Hospice social worker began taking intermittent FMLA leave in June 2013 to care for her elderly parents. Pursuant to Hospice policy, she also took earned personal time off hours concurrently with her FMLA leave. Upon her return from leave, she often received notices warning her that her PTO balance was low and that exhaustion of PTO, along with absences, could adversely affect her job and benefits.

In March 2014, the same day she learned her mother was seriously ill, she submitted a leave request for the following Friday and Monday, which was approved. When she returned, the CEO warned her that if she worked for any other company, she would be out of a job. Two days later, the new HR manager requested documentation in support of her leave, including travel receipts.

Proof of need. After her mother was hospitalized on March 28, the employee submitted additional leave requests. Returning from the first leave on April 8, she asked for clarification of requested documentation and was informed by the HR manager in an email that Hospice was requesting “proof of need,” which could include, among other things, food or lodging receipts from the city where her parents resided. She was also told that her continued unpaid time away was compromising the quality of care Hospice could provide.

Later that month, the HR manager, in response to the employee’s request, provided her with examples of “‘quality of care’ suffering due to repeated ‘emergent’ leaves of absence.” She was terminated five days later, purportedly for poor performance.

Discouragement. Vacating summary judgment on her FMLA interference claim, the Eleventh Circuit found sufficient evidence for a reasonable jury to conclude that Hospice interfered with the employee’s FMLA rights by discouraging her from taking FMLA leave. The clearest example was the April 8 email, which a reasonable jury could interpret as a warning that additional FMLA leave could put her job in jeopardy.

Rejecting Hospice’s assertion that the HR manager’s negative comments in the April emails were based on the belief the employee was a “no call, no show” for her March absences, the court noted that the April 8 email, by its terms, “sweeps more broadly than just the March absences.” It expressly asked for proof of need “for previous dates in which FMLA was requested without 30 days’ notice in March 2014 up to April 7, 2014,” which included some of her April absences.

There was also other evidence of discouragement, including Hospice’s requests for “proof of need” in the form of gas and travel receipts. Not only did Hospice ask for documentation in addition to the medical certification, the kinds of documents requested had no necessary relation to the employee’s need for leave but rather appeared to have been an attempt to verify whether she was being truthful about caring for her parents. But even assuming it could permissibly request additional documentation to verify her absences about which it had doubts, nothing in the record suggested that Hospice had reason to doubt her veracity, said the court, observing that by April 2014, she had been taking approved intermittent FMLA leave for nearly a year in order to take care of her parents.

Retaliation. As to her retaliation claim, her termination was sufficiently close in time to her FMLA leave to support an inference of causation. Further, there was evidence showing Hospice easily accommodated her FMLA leave until March 2014, when she took unforeseeable FMLA leave to care for her mother. From March 21 until April 21, she took around 13 days of leave, all on short notice. Noting that two weeks after that she was fired, the court found a jury could reasonably infer her use of intermittent, unforeseeable leave in March and April was causally related to her termination in May.

And while Hospice claimed it fired her for disregarding her supervisor’s orders to complete open care plans for hospice patients and for leaving the premises during a state survey without notifying the clinical director, a jury could reasonably conclude these were minor considerations that had little impact on the termination decision. Not only did they not appear in the lists of “offenses” in the termination memo that could be “cause for disciplinary action,” up to and including termination, she was never disciplined for either offense or for any of the other alleged disciplinary offenses.

Further, there was evidence showing the HR manager negatively commented on her use of unforeseeable FMLA leave and directly connected her leave use to deficiencies in the timeliness of her work documentation, which appeared to be the focus of the termination memo. Based on these comments, as well as the close proximity of her termination to her use of unforeseeable leave and Hospice’s dubious requests for documentation of that leave, the court found fact issues as to whether Hospice discriminated against her for taking FMLA-protected leave.

SOURCE: Diamond v. Hospice of Florida Keys, Inc. dba Visiting Nurse Association of The Florida Keys, (CA-11), No. 15-15716, January 27, 2017.

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