Often-absent employee raised triable issue on whether termination constituted FMLA retaliation

A shift supervisor, whose employment record was replete with absences due to ailments and injuries to himself and his wife and daughter, advanced his claim that his termination was in retaliation for taking FMLA leave for a wrist injury, ruled a federal district court in Kentucky. While the employer had evidence that he was terminated for excessive absenteeism after being repeatedly warned, the employee raised a genuine dispute of material fact that his absences were covered by the employer’s policies on FMLA leave, sick/personal days and shift-trading. Accordingly, summary judgment was denied as to the employee’s FMLA retaliation claim; but granted as to his FMLA interference, disability discrimination, failure to accommodate, and state law claims.

The employee worked as a shift supervisor at a chemical plant. He was hired for the supervisor position after the employer acquired the plant from a predecessor. He worked a 12-hour rotating schedule, meaning that he worked between 13 or 14 days each month and many of the shifts were at night.

Injuries and ailments.

The record contained a litany of ailments and injuries suffered by the employee and his family that precipitated his absences. On October 26, 2013, he sprained his ankle at work and was on workers’ compensation leave until December 23, 2013. In January 2014, he reinjured his ankle at home and was off work for approximately six weeks. For 2014, he exhausted his five sick days for the year by October, but called in sick at least two more times. Moreover, his wife suffered from lupus and his daughter suffered from multiple sclerosis, which necessitated taking them to medical appointments.

In December 2014, the employee was granted short-term medical leave and missed several days of work because of a non-work-related knee injury. In January 2015, he injured his wrist at home and required surgery. He was granted FMLA leave for the surgery and recovery. This surgery kept him off work for 13 weeks. After he returned to work, he missed an additional day because of wrist pain and a second day due to a doctor’s appointment. Ultimately, the employee was terminated for excessive absenteeism on July 2, 2015.

The employee claimed that his termination was retaliation for taking FMLA leave due to the wrist injury. After he was terminated, he filed suit claiming FMLA interference and retaliation, disability discrimination and failure to accommodate under the ADA, as well as state law violations. For its part, the employer countered that the employee had struggled with attendance from time he was hired, and his termination was due to excessive absenteeism. The employer moved for summary judgment.

The employee asserted that his absences were covered by the employer’s leave and absence policies. According to the employee, his absences were due to illness, medical appointments, and funeral leave, and were covered by a combination of his personal days, sick days, vacation days, FMLA leave, “comp” days, and shift-trading.

FMLA retaliation.

In this instance, there was no dispute that the employee met his burden of demonstrating a prima facie claim of FMLA retaliation. He took leave for his wrist injury, and the employer knew that he was taking FMLA leave. Because the termination took place less than two months after his FMLA leave, the employee established a prima facie causal connection. Therefore, the burden shifted to the employer to establish a legitimate, nondiscriminatory reason for terminating his employment. The employer claimed that it fired the employee for “excessive absenteeism.” It asserted that it warned him about his absences prior to his FMLA leave, “and that it followed through on those warnings” when he continued to call off work.

As an initial matter, the court concluded that the record contradicted the employee’s contention that he tried to return to work from FMLA leave as early as February 19, 2015. He acknowledged the employer had a policy that he could not return to work with a hard cast on his wrist. He was in either a case or splint until April 21, when he was scheduled for a second surgery on his wrist.

Absence policy.

However, there was a genuine dispute over the employee’s second argument that his absences were covered by the employer’s leave and absence policies. The employer provided employees with five or six days each year. In 2015, he missed only two days other than the 13 weeks of FMLA leave. Therefore, the employee’s absences were arguably covered by the employer’s sick leave policy. Further, there was testimony indicating that shift-trading was common practice and also could have covered his missed days. Accordingly, the court concluded that determining whether the employee would have been terminated because of his absences had he not taken FMLA leave would require it to weigh the evidence and make credibility determinations. Thus, the employee’s FMLA retaliation claim survived the employer’s summary judgment motion.

FMLA interference.

However, the employee did not fare as well on his remaining claims for FMLA interference, disability discrimination, failure to accommodate, and state law violations. With regard to FMLA interference, the employee claimed that the employer interfered with his rights by punishing him for going to a doctor’s appointment on June 18, 2015. Here, there was no evidence that the employee requested FMLA leave for the doctor’s appointment. Moreover, he admitted that he was granted 13 weeks of FMLA leave and returned to his position as a production shift supervisor following his return from FMLA leave. Thus, the employer’s motion for summary judgment was granted because the employee had not shown that the employer failed to provide him with FMLA leave or interfered with his FMLA leave.

ADA claims.

Next, the employee claimed that the employer violated the ADA by discriminating against him because of his disability and failing to accommodate him at work. Because the parties did not dispute that the employee failed to exhaust his administrative remedies, the employer’s motion for summary judgment was granted.

SOURCE: Keys v. Monument Chemical Kentucky, LLC (W.D. KY), No. 3:15-cv-645-DJH, May 17, 2017.
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