Motive for firing employee shortly after she took time off to care for husband was questionable

An employee who was terminated seven days after telling her supervisor she would be submitting FMLA paperwork for leave to care for her husband, who had been diagnosed with brain tumors, raised genuine issues of fact sufficient to survive summary judgment on her FMLA interference and retaliation claims, held a federal court in Maryland. Temporal proximity could support a finding of causation on her retaliation claim. Also, although the employer claimed she was discharged for misconduct, it had not acted on the misconduct at the time it was supposed to have occurred and, in the interim, it had informed the employee that she was not being terminated. Therefore, the employee also established a question of fact as to the employer’s stated motives for terminating her.

Employee leave and termination.

The employee worked for a security consulting company, which had a policy that its offices at apartment complexes were to be staffed from 8:30 am to 5:00 pm Monday through Friday. Any teleworking or flex schedules had to be approved by a manager. In January 2016, the employee contacted her supervisor to inform him that her husband had been diagnosed with brain tumors and she would need to take a week off to take care of him. The employee took a week of paid leave and during the leave her supervisor informed her that her sick time expired at the end of that week and that any additional time off would need to be vacation or unpaid leave.
The following Monday, the employee informed the supervisor that she would need an additional day or two off, as her husband was scheduled to have surgery. The supervisor wrote back, saying that her sick time would “be accounted for either as used vacation time, or, if you need an unpaid leave with your job waiting for you, you’re free to take what time you need.” Until mid-February, the employee continued working from the apartment complex worksite from 7:30 am to 12:00 pm and from home in the afternoons. On March 2, her supervisor told her that she would either need to return to work or state that she was using FMLA leave. When she did not respond within a few hours, the supervisor said “we are left to assume that you’re in need of additional time” and, although “this is not a termination notice,” mandated that she return all company keys and equipment by Friday, March 4.
The employee did not return the equipment by Friday and emailed the supervisor on Monday, March 7, to say that she was not in a position to return to work, but would update him after her husband’s upcoming appointment. The supervisor responded that he needed a timeline on when she would return all company equipment and submit FMLA paperwork. The next day, the employer sent employees and police officers to the employee’s house to retrieve the company equipment. On March 9, the employer terminated her employment, citing poor performance. Also on that day, an assistant manager told the employee that an HR manager had stated that the employee “had stolen time and had been terminated.”

FMLA interference claim.

The employee claimed that the employer interfered with her FMLA rights by demanding she return to work and terminating her because she required leave to care for her husband. The court found that the supervisor’s emails clearly showed that he was not demanding that she return to work, but merely telling her that she needed to cite the FMLA if she needed more time off. However, the court did find a genuine issue of material fact as to whether the employer would have fired the employee regardless of the FMLA leave. The employer alleged that it discovered instances of misconduct by the employee during or prior to her leave, but it had not provided detail for the supposed instances of misconduct; it only made general allegations of misconduct concerning “clients” or “subordinates” without naming individuals. In addition, the employee provided an affidavit from her apartment complex client, testifying that it had not experienced any problems and that the employee was frequently on-site and was always available by phone or email.

FMLA retaliation claim.

Temporal proximity alone could establish the employee’s prima facie case of causation on her retaliation claim. She had notified her supervisor that she would be submitting FMLA paperwork just seven days before she was terminated. The employer presented an explanation of why the employee was fired (the alleged misconduct); however, there was a question of fact as to whether those reasons were legitimate. For example, some of the alleged misconduct took place in December 2015, but the employee was not terminated at that time. She was only discharged months later—after taking intermittent leave and informing the employer that she would be submitting FMLA paperwork. As to alleged misconduct in January and February 2016, the employee was told on March 2 that she was not being terminated, which raised at least a question of fact as to whether the employer’s proffered reason for her discharge was the true reason for the action.

Defamation claim.

The employee claimed that the employer defamed her by reporting to the police that she was in wrongful possession of the employer’s work equipment and by accusing her of “stealing time.” However, the employee did not allege who made the statement to the officers, or what the of ficers were told. Also, the statement about stealing time was conditionally privileged, as it was made in response to an inquiry and was not made with malice. Therefore, summary judgment was entered for the employer on the defamation claim.

SOURCE: Whitt v. R&G Strategic Enterprises, LLC, (D. Md.), No. 1:16-cv-02492-RDB, January 11, 2018.
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