Pretext found in bank’s use of sales figures from FMLA leave period to support firing employee

A bank’s reasons for terminating an employee three months after he returned from FMLA leave for a work-related injury could be evidence of pretext, a federal district court in New York found, denying the bank summary judgment on the employee’s FMLA and disability claims. On the issue of causation, the employee also had temporal proximity on his side as well as evidence his former supervisor lied about the reasons for his termination; discussed demoting him while he was on leave; offered his position to someone else while he was on leave; and questioned whether he was “actually injured” and made other derogatory comments. Although the bank contended it fired him for a well-documented history of performance problems, including bad numbers and a lack of leadership, the court found the bank’s use of his sales numbers for the period in which he had been on leave could well establish pretext.
A branch manager at one of the employer’s bank branches since July 2012, the employee was involved in a car accident on June 12, 2014, suffered injuries, took workers compensation, and was granted FMLA leave the next day. He returned to work on July 30, 2014, but was terminated on October 29, 2014. He sued the bank under the FMLA and New York state law alleging retaliation for his taking leave. He also brought claims for disability discrimination, though he alleged them under Title VII, not the ADA. The bank moved for summary judgment, and a magistrate recommended denying the motion as to the FMLA and New York law retaliation claims. The employee also sought leave to amend his complaint to assert his disability discrimination claim under the ADA, which the magistrate recommended he be allowed to do. The employer objected to the magistrate’s recommendations.

FMLA retaliation prima facie case.

The employer contended that the employee failed to “establish causation between his leave or alleged disability and termination,” and that the magistrate erred in finding such a causal link. It cited evidence of the employee’s “long history of documented performance issues pre-leave.” According to the employer, this impacted two elements of the prima facie case-that he was qualified for his position within the meaning of the FMLA and that his termination did not take place under circumstances from which retaliation could be inferred. The court rejected these arguments, analyzing the evidentiary record and agreeing with the magistrate’s conclusion that the employee established all elements of his prima facie case.

Was he “qualified?”

Under Second Circuit law, an employee’s burden to show qualification for the position is “minimal,” according to the court, requiring only that he possess the basic skills necessary to perform it. The employer raised a series of performance issues relating to “leadership,” “failure to implement… [various] policies, procedures, and programs,” and poor sales. These, however, did not undermine the employee’s showing of qualification. Indeed, as the court pointed out, the employer retained him for more than two years after these issues surfaced.

Causation.

As for the inference of causation, the employee relied on the temporal proximity between his leave and his termination, which was three months, as well as the statements and actions of his former supervisor, including that he: (1) lied about the reasons for his termination; (2) discussed demoting him while he was on leave; (3) offered his position to someone else while he was on leave; and (4) questioned whether he was “actually injured” and made other derogatory comments. The court agreed with the employee that these were sufficient to support the causation element. The court highlighted the supervisor’s statements critical of the employee’s taking leave, though it noted that those statements were made three months before termination, which is at “the outer limits of what courts in this Circuit consider probative of retaliatory animus.” Combined with the other evidence noted above, these statements and their timing sufficed for the employee to meet the “minimal” burden.

Pretext.

The court also agreed with the magistrate that the employee had proffered sufficient evidence for a jury to find that the stated reasons for termination were pretextual. The employer contended that its reasons for terminating the employee were legitimate-including his poor sales numbers and lack of leadership. The court rejected the employee’s attempt to use the same evidence supporting his prima facie case causation element, temporal proximity and the supervisor’s statement, to establish pretext, as the remarks were directed generally at performance issues, not the taking of leave, the court noted. But even when the remarks critical of the employee’s taking leave are considered, the court characterized those as, at most, “isolated remarks” insufficient to withstand a motion for summary judgment on the pretext element.
The court also noted that evidence the employer considered terminating the employee during leave does not demonstrate pretext. Even if the employer had terminated the employee while on leave, that alone would not be actionable without evidence that FMLA leave was the cause, the court added. Instead, the employee needed evidence of retaliatory animus. The court found such evidence, however, in the employer’s inconsistent explanations for the termination.

Retaliation.

The employee also argued that the employer’s use of sales figures during the time he was on leave as grounds for termination constitutes direct evidence both of retaliation and pretext. While the court disagreed with the employee that consideration of figures during time periods when an employee is on leave necessarily means that the leave was a “negative factor,” in this case the record was sufficient to make that determination. The employer argued that, in fact, in terms of percentage, the two quarters when the employee was on leave were two of his best, even though they still fell below goal. Adding those quarters to the consideration improperly added two more sub-par quarters, and the cumulative effect of adding those, even though the employee was on leave, could not be ignored. A reasonable juror could conclude that the leave played a role in the termination, under these facts, the court held.

ADA claim.

The employee had brought disability discrimination claims under Title VII and New York law. While the New York law claims were brought under the proper statutory law, the employee sought leave to amend his federal claims to allege violation of the ADA after acknowledging that Title VII does not allow for such claims. Because the employee has always asserted disability discrimination claims under state law and under the incorrect federal statute, it held that the employer would suffer no prejudice if the employee were granted leave to amend to allege the proper federal statute.

SOURCE: Philippe v. Santander Bank, (E.D.N.Y.), No. 1:15-cv-02918-MKB-CLP, March 31, 2018.
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