Measuring temporal proximity from last (not first) day of FMLA leave revives employee’s FMLA retaliation claim

An employee who was given extended medical leave when he was unable to return without medical restrictions at the expiration of his 12-week FMLA leave, and then fired upon his return after management discovered he had posted Facebook photos of himself on the beach and at a theme park while he was out, revived his FMLA retaliation claim. Reversing summary judgment, the Eleventh Circuit U.S. Court of Appeals announced that the temporal proximity analysis begins on the last day of the employee’s leave, and that the one-month period here suggested a retaliatory motive. However, dismissal of his interference claim was affirmed since he lost his right to be reinstated after failing to comply with his employer’s uniformly applied fitness-for-duty certification policy.

Denied light duty.

The employee, an activities director at a nursing facility, took 12 weeks of FMLA leave to undergo rotator-cuff surgery on his shoulder. The day before his leave expired, his doctor reported that he needed more physical therapy and couldn’t resume physical activity for at least another month. His supervisor denied his request for light duty and required him to submit a full fitness-for-duty certification pursuant to company policy. When he failed to do so, he was granted an additional 30 days of non-FMLA medical leave.
During the extra leave, he twice visited Busch Gardens and took a three-day trip to St. Marten. He posted photos of these events on his Facebook page and also texted some photos to coworkers. Having found out about the posts, management suspended him when he returned with his fitness-for-duty certificate, and fired him a few days later. While the employer claimed that he used poor judgment as a supervisor and violated the employer’s social media policy, he claimed that he was only told that he was fired for abusing his FMLA leave.

Waived right to reinstatement.

The Eleventh Circuit refused to revive his FMLA interference claim, rejecting his contention that the employer unlawfully refused to allow him to return to “light duty” work at the expiration of his FMLA leave. First, he likely waived his right to reinstatement by taking an additional 30-day medical leave, which was not an extension of his FMLA leave. He wasn’t “forced” to request the additional leave; he requested it because he was physically unable to resume his job duties.

Uniform fitness-for-duty policy.

Moreover, he failed to refute the employer’s contention that its fitness-for-duty certification policy was implemented in a uniform fashion, and thus lost the right to be reinstated after failing to comply with it. Though he argued that he was dissuaded from submitting a light-duty certification and that two coworkers had been allowed to return to work, they were not similarly situated since unlike him, they had turned in fitness-for-duty certifications. Additionally, both had less physically demanding jobs and their foot maladies were significantly less physically limiting than his shoulder injury.

Causation clock starts when leave ends.

However, the employee was entitled to a trial on his FMLA retaliation claim, which the district court had tossed based on its conclusion that the four-month lapse between the start of his leave and termination was too long. But this was the wrong standard, the Eleventh Circuit ruled. Addressing the issue for the first time in a published opinion (while noting that its unpublished opinions went both ways), the court announced that temporal proximity-for the purpose of establishing the causation prong of a prima facie case of FMLA retaliation-should be measured from the last day of an employee’s FMLA leave.
While the law on this issue was murky, the Eleventh Circuit concluded that its ruling since to hold otherwise would undermine the statute’s remedial purposes. Indeed, using the date that an employee first began FMLA leave to determine temporal proximity would disadvantage employees who need to take their full 12 weeks of FMLA leave. Because a period of three to four months is considered too remote to create in inference of causation, they would never be able to establish a prima facie case for FMLA retaliation based on temporal proximity.

Supervisor’s comments.

Additionally, while the supervisor’s comment that the employee was being suspended for abusing and misusing FMLA leave didn’t necessarily help show causation, his alleged comment that “corporate was not going to like the fact that [he] was taking FMLA leave during the ‘survey window,'” while not direct evidence, supported a finding of a causal connection.

Inconsistencies suggest pretext.

Finally, inconsistencies with respect to the employer’s proffered reasons for terminating the employee-along with the supervisor’s comment about the timing of his FMLA leave and the close temporal proximity-created a triable issue as to pretext. The company argued it fired him because he posted photos in violation of the company’s social-media policies and also because he displayed poor judgment as a supervisor in posting these photos. However, his termination letter stated only that he was being fired because he failed to respond to charges that he was well enough to return to work at an earlier point.
Moreover, the supervisor cited a myriad of additional reasons at his deposition that purportedly influenced his decision to terminate him, including his view that the employee unnecessarily prolonged his recovery and went on vacation when he should have been recuperating. He also could not point to any company policy requiring employees to refrain from traveling while on medical leave. And while he remarked that the posted photos indicated that he did not receive therapy for a week, he also acknowledged that he had never missed any therapy sessions.

Debatable if violated policy.

The company also argued that his Facebook postings violated its social-media policy, which stated that employees can be terminated if their social-media posts have an adverse effect on coworkers, since his photos were created a morale issue among employees. However, the employee was never informed that he had violated the policy and the record suggested that its purpose was to prevent employees from posting harmful or negative comments about the company’s staff or facilities (which the employee certainly did not do).
SOURCE: Jones v. Gulf Coast Health Care of Delaware, LLC (CA-11), No. 16-11142, April 19, 2017.
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