Former Employee’s Claim That Application Was Rejected Due To Prior FMLA Leave Revived

 

Explaining that FMLA retaliation provisions apply to former employees who are rejected for rehire based on past FMLA leave, and finding triable issues on whether a former hospital employee’s application was rejected because of a purportedly profane message or because she took FMLA leave while working for a sister hospital, the Eleventh Circuit U.S. Court of Appeals, in an unpublished opinion, reversed summary judgment on her FMLA claim. The Eleventh Circuit noted that the rejected nurse’s evidence of pretext included the recruiter’s notes on her prior use of leave, the absence of evidence that she left an unprofessional voicemail, and the fact that her application was rejected the same day the recruiter learned of her prior leave. The case is Coleman v. Redmond Park Hospital, LLC (No. 14-10570).

The registered nurse worked in the intensive care unit (ICU) at Redmond from 2004 until 2010, when she voluntarily transferred to another hospital in the same corporate family. In 2012, she was terminated while on FMLA leave. Thereafter she applied for several ICU nurse positions at Redmond. A recruiter for Redmond spoke to her over the phone about her application, prior employment at the sister hospital, and termination. He claimed that soon after that conversation, the employee left him a voicemail in which she used profanity, was upset, and raised her voice. No record of the message was kept. As a result, he rejected her candidacy.

Filing suit under the FMLA, the nurse contended that she never left a profanity-laced or otherwise unprofessional voicemail; rather, she only requested a status update on her application. She claimed that her candidacy was actually rejected because the recruiter had learned that she took FMLA leave while working at the sister hospital. Granting summary judgment for Redmond, the district court ruled that the employee waived the argument that she had established a question of fact on the contents of the voicemail at issue because she failed to present the argument to the magistrate judge. It also concluded that she failed to show that the rejection of her application due to the purported profane message was pretextual.

FMLA applies to former employees. On appeal, the Eleventh Circuit first rejected Redmond’s argument that the district court applied the wrong standard for a prima facie case of FMLA retaliation. Department of Labor regulations extend FMLA protection from retaliation to individuals, not merely employees, who oppose any practice which is unlawful under the FMLA. Moreover, in Smith v. BellSouth Telecomms., Inc., the appeals court ruled that a former employee who alleged his former employer refused to hire him based on his past use of FMLA leave qualified as an “employee” under the FMLA’s enforcement provision. In reversing summary judgment, the court in Smith did not require the plaintiff to demonstrate that he opposed unlawful conduct by the employer before filing his FMLA complaint. Thus, the district court did not err in finding that the nurse made out a prima facie case.

Pretext question goes to jury. Ultimately, the Eleventh Circuit reversed summary judgment. It noted first that the nurse did not, as found by the district court, waive any factual dispute over the contents of the disputed voicemail because the magistrate’s report and recommendation clearly acknowledged that factual dispute. The appeals court also concluded that, while a profane voicemail is a legitimate nonretaliatory reason to reject an application, the nurse presented sufficient evidence of pretext to reach a jury.

Specifically, the nurse pointed out that the recruiter’s notes from their phone conversation had two notations on her use of FMLA leave; that there was no mention of any unprofessional voicemail in Redmond’s computer system; and that she had been rejected the same day the recruiter learned about her FMLA leave. Moreover, the nurse’s testimony concerning the content of the voicemail she left directly contradicted the recruiter’s account. Her version was consistent with a follow-up call requesting a status update while his version was consistent with a call from a frustrated, upset, and unprofessional applicant. Without the actual recording of the disputed voicemail, the FMLA claim depended on which version a jury would believe. Given that the nurse presented sufficient evidence to undermine Redmond’s proffered reason for rejecting her candidacy for employment, the district court erred in granting summary judgment.

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