Jury will say if city disclosed basis for FMLA leave and was liable for resulting harassment

Disposing of cross motions for summary judgment by a city and its former firefighter/paramedic who claimed FMLA retaliation based on the city’s alleged release of personal information about his leave, adverse work assignments, and constructive discharge, as well as failure to rehire him, a federal district court in Florida denied summary judgment in part, allowing some of his FMLA retaliation claims to proceed. But his failure to rehire claims based both on his FMLA leave and alleged associational discrimination due to the disability of his infant son could not survive, given evidence that the former employee failed to timely apply for the position he sought, making only two phone calls to the city in a five-month period.

Intermittent FMLA.

Addressing the parties’ cross motions for summary judgment, the court found it was undisputed that after working about five years as a firefighter and paramedic, the employee was granted intermittent FMLA leave when he and his wife underwent in vitro fertilization treatments. He testified that it appeared to be “common knowledge” why he was taking leave and that he had not disclosed it to his coworkers: “I would take my FMLA leave and then, I’m quoting what they would say, go home to f*** my wife and/or, well, why don’t you just bring her here and we’ll f*** her for you and get her pregnant. That was their belief of my FMLA.” He also testified that he reported this to his superior officers, but they took no action and “it just became more of a joke for them.”

Less desirable assignments.

There was also evidence that after his FMLA leave days, the city would assign him to busier and less desirable stations as “punishment.” He claimed coworkers told him that supervisors would brag about “punishing” him by moving him to the busier fire trucks; the city’s evidence showed that he had taken 16 FMLA days and was assigned to the two busiest trucks on a shift immediately subsequent to his FMLA leave five times. The employee did not file any written complaints regarding the harassment, keep notes of the incidents of harassment, or notify human resources, his union representatives, or any federal or state agency about the harassment while still employed.

Re-employment.

Despite his internal complaints, the comments continued until he resigned, in good standing, in November 2014. His resignation letter did not reference any of the alleged harassment or the alleged retaliatory assignments, but did note he planned to relocate. However, after his son was born with a disability, he decided to move back and contacted the city in September 2015 to ask about his former job. The parties disagreed significantly as to what was discussed, although they agreed his family’s health, including his son’s, was discussed on the call. The parties disputed whether the chief expressed concern about the employee’s ability to return to work, informed the employee about the status of the next hiring class (which was in January), and whether the employee was told to contact the city in January or wait for the chief to “get back to him.” Still, there was no contact between the parties until the end of February 2016, when the employee called again. Again the contents of the discussion were disputed, but during a March phone call, the city told the former employee there were no positions available.

After exhausting administrative remedies, the employee sued, and both parties moved for summary judgment. Narrowing the issues, the court addressed the employee’s motion for summary judgment on his FMLA retaliation claim based on release of personal information that caused harassment, adverse work assignments, and constructive discharge, and the city’s motion for summary judgment on his failure to rehire claims.

Failure to rehire.

The court first found the employee could not sustain a failure to rehire claim under either the FMLA or the ADA. It expressed “serious doubts” that he could even demonstrate an adverse action based on failure to rehire for a job he never applied to. Even if he had, the city had raised legitimate non-discriminatory reasons for not rehiring him. Here, the employee only made two phone calls over a five-month period inquiring about rehiring; he never applied for a position with the city, never tried to join an incoming “class” of new hires, and never underwent any medical or physical testing. Even though he was eligible for rehire under the union contract (which did not guarantee rehire), he needed to take some action to advance his application. Nor did he have any evidence to show pretext—based on his own testimony, after he waited more than five months to follow up, he was told that all positions were filled.

Timeliness of harassment claim.

According to the former employee, he did not know how details of his private medical information were released to his coworkers, but they and his supervisors made lewd, profane, and harassing comments about his FMLA leave, and he had verbally complained to three supervisors. Although the city claimed to know nothing about the alleged harassment and made much of the fact he had made no written complaints, the court found genuine issues of material fact as to whether the city knew or participated in the complained of harassment to the extent that a jury could find the city’s conduct was willful and thus, the statute of limitations was extended to three years. As such, the court denied summary judgment on the basis of the statute of limitations.

Personal medical information.

The parties disputed whether the city inappropriately revealed the employee’s personal medical information, including the reasons for his FMLA leave, to his coworkers, or whether he actually revealed this information. Noting that the city had not refuted that the medical information was released nor produced evidence of what confidentiality procedures, if any, were followed, the court found a reasonable employee might be dissuaded from seeking FMLA leave if his employer might reveal details of the medical reasons for the leave to other coworkers. Summary judgment was inappropriate here as well.

Adverse work assignments, constructive discharge.

Because the record contained conflicting testimony regarding the desirability of the employee’s post-intermittent leave assignments and whether those assignments were considered a form of “punishment,” the court denied summary judgment on whether these work assignments were retaliatory. As for the employee’s constructive discharge claim based on the alleged harassment, the court found the parties disagreed on nearly every material fact, including what statements, if any, were made; how pervasive the harassment was, if it existed at all; and what steps the employee took, if any, to notify his supervisors. As a result, summary judgment was denied on these claims as well.

SOURCE: Sanchez v. City of Pembroke Pines, S.D. Fla.: No. 6-cv-62958-BLOOM/Valle, November 3, 2017.
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