Retaliation claim supported by timing of audit that led to manager’s firing, prior veiled threats about leave

Evidence that a collection manager’s superiors began auditing his paperwork right after he announced his need for leave to undergo back surgery, fired him five weeks later, and made veiled threats against him when he had previously attempted to take intermittent leave for medical reasons bolstered his FMLA retaliation claim, a federal court in Ohio ruled, partially denying the employer’s motion for summary judgment. His FMLA interference claim failed since he didn’t suffer any harm from the alleged attempts to interfere with his FMLA rights, however.

Hostile response to earlier request. In 2014, the manager requested FMLA leave to address a skin cancer issue. In response, the operations director told him that he had missed too much work over the issue and advised him to “think hard” about his priorities and whether he was making the right decisions to help his career at the company. Fearing loss of his job, he did not complete the FMLA paperwork process or go to his remaining medical appointment.

Rescinded warning. In May 2016, the collection manager was approved for FMLA intermittent leave for back pain, yet the operations director and an HR representative threatened that his hourly pay and bonuses would be prorated for “every hour, every minute” that he took of FMLA. As he began taking physician-recommended time off, his supervisor tried to write him up. He protested, explaining that the time was covered by FMLA, and the supervisor rescinded the warning.

Audited after surgery announcement. In February 2017, he informed his supervisor that he intended to get back surgery. The company then began auditing his work, and on February 17, the HR representative advised the director that he had changed a subordinate’s time cards on certain dates. He received a warning; the audit was expanded back to August 2016. Multiple discrepancies were found, and his inaccurate edits to the subordinate’s time cards resulted in both over- and under-payments, and also permitted her to avoid disciplinary “points.” When questioned, he insisted that he validated the time cards exactly as HR had instructed.

Discharged. Meanwhile, another subordinate allegedly complained about his management. At HR’s request, he provided a lengthy written statement detailing the manager’s inappropriate comments, including telling a female subordinate he had “12 inches” for her during discussions of a Valentine’s Day “love box,” and that he hoped the supervisor “got in a car wreck and died.” Though he tried defending himself during a subsequent meeting where he was read a list of the allegations against him, he was ultimately terminated later that month.

No FMLA interference. The employee was unable to advance his FMLA interference claim since he failed to show that he was harmed by the alleged attempts to interfere with his FMLA rights. Though he claimed that the director threatened his job security if he took FMLA leave 2014, prompting him to skip his skin cancer-related medical appointment, the statute of limitations prevented relief for that claim. As for his supervisor’s threat to write him up for taking proper FMLA leave for back pain, the record revealed that he was granted all the FMLA leave to which he was entitled, and the supervisor rescinded the disciplinary action.

Timing suggests retaliation. However, his FMLA retaliation claim would advance to trial despite the employer’s assertion that he failed to establish a causal connection between his protected activity and his termination. Notably, while his request for FMLA leave for back pain was approved in August 2016, it was not until February 2017 that he informed his supervisor that he finally intended to get back surgery and began trying to prepare other managers to help cover his workload while he was on medical leave. It was then that his employer began auditing his daily paperwork, which it had never done before.

Veiled threats also support causation. Indeed, the HR representative admitted that the company began auditing him in February 2017 for unspecified reasons. The company investigated and then terminated him less than five weeks after he announced his intention to take FMLA leave for surgery. This temporal proximity might have alone been enough to establish causation, but he also testified that the director previously made veiled threats regarding his continued employment and threatened to prorate his pay if he took FMLA leave. Additionally, coworkers warned him not to tell the director he was having surgery because he would be fired.

Pretext. The manager also cast sufficient doubt on the employer’s assertion that it terminated him because he failed to ensure the accuracy of a subordinate’s time cards and his alleged disparaging comments in the workplace. He offered evidence that HR instructed him to use the “double click” method of correcting time cards with missing information, that he had been following that procedure for the many months since he had been instructed to do so, and that both his superiors and HR had no problem with him using that method to reconcile missing time card information-until he requested FMLA time for back surgery. Moreover, the timing of both the employer’s investigation into his conduct and the subordinate who “came to” his superiors to complain about comments apparently made months earlier cast doubt on the employer’s explanation.

The manager also testified that the director had asked him to falsify and backdate documents so that the company could terminate a colleague who had been diagnosed with cancer before she could take FMLA leave for cancer treatment. While the company vehemently denied these allegations, there was enough evidence from which a jury could reasonably reject the employer’s explanation for the manager’s termination and infer pretext.

SOURCE: Kelly v. Account Control Technology, Inc. (S.D. Ohio), No. 1:17-cv-00320-SJD, August 22, 2018.
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