Whether sergeant protested FMLA policy in manner warranting denial of promotion was jury question

A police sergeant who was initially denied his request to use his accrued sick leave to care for his wife following childbirth complications due to the employer’s erroneous belief that he sought “paternity” leave, and also was denied his request not to have the leave designated as FMLA leave, avoided summary judgment on his FMLA interference claim. The federal court in Nevada also allowed him to advance his retaliation claim, which alleged that he was passed over for promotion based on his opposition to the city’s FMLA policy, because whether his protected activity was carried out in such a manner that it became a legitimate reason for the decision should be decided by a jury.

Sick leave questioned. The sergeant took the lieutenant exam in early 2015 and obtained the top score of all examinees. After his second child was born on April 7, his supervisors scheduled him for several weeks of paid sick since he had told them that he would need time off to care for his newborn child, his toddler, and his wife, who had pregnancy-related medical issues. The next day, a payroll clerk requested clarification since he could not use sick leave for “bonding with your new baby,” but would be required to use vacation time.

Medical documentation. He responded that the request was an invasion of his privacy and violated the collective bargaining agreement (CBA) and also confirmed that he was not taking “paternity leave.” On April 20, he told his supervisor that his wife was suffering a life-threatening complication and subsequently submitted medical documentation noting that the time was not “bonding time” but was essential for the health and well-being of the mother and child.

Designated as FMLA leave. On May 6, he was notified that the city had designated his leave as FMLA leave and would not allow him to use his accrued sick leave. On May 11, he advised HR that the city incorrectly assumed that the leave was for “bonding” with his baby and explained his wife’s medical condition. He also asked not to have it designated as FMLA leave since he may need it later. He was advised the next day that was approved for sick leave but that it would run concurrently with FMLA leave.

Promotion denials. On June 2, he interviewed for a promotion to lieutenant, at which time he was questioned about his use of FMLA leave and criticized about how the situation was handled. On June 11, he was informed that he was not being promoted even though he was ranked highest, and his FMLA leave was noted as the reason. He was interviewed again on July 20 and his FMLA leave was again discussed. The next day, he was again advised he was being denied the promotion. He interviewed a third time and was again rejected.

CBA doesn’t show interference. As an initial matter, the sergeant failed to show that the CBA mandated that accrued sick leave not be counted concurrently with FMLA leave since it was silent on that issue. As a result, the city’s choice to run sick leave concurrently with FMLA leave was not a FMLA violation under the CBA. However, the court noted that he also argued that it was police department practice not to count sick leave against FMLA.

Sick leave denied despite notice. Moreover, the city arguably violated the FMLA by initially denying his request to use accrued sick leave to care for his wife. Though he did not appear to make her condition clear to HR until May 11, and was granted use of sick leave the next day, he told HR as early as April 10 that his leave was not “paternity” leave. He also told his two supervisors on April 20 and May 5 that his leave was needed in part to care for his wife, who had a life-threatening condition. Since this knowledge should be imputed to the city, the city’s refusal to allow him to use sick leave until May 12 “very likely” violated the FMLA.

FMLA retaliation. The sergeant also presented sufficient evidence indicating he was denied promotion because of his opposition to the city’s FMLA policy. He claimed that a deputy chief specifically addressed “the inflammatory email you sent to HR regarding your FMLA” at his June 2 interview and told him on June 11, “I know I told you if you fought the FMLA issue with the City you would suffer no ill will within [the police department]. It wasn’t the fight, but the way you went about it that has caused problems.” A retired superior also averred that he was present at a lieutenants’ meeting where the deputy chief used the sergeant’s FMLA complaints as a basis for concluding that the sergeant was argumentative and disrespectful, despite other participants’ favorable reviews.

Did protected activity warrant non-promotion? The sergeant’s emails to HR over the FMLA issue were not particularly “inflammatory,” but at worst could be described as “stubborn.” Thus, since there was no extreme action beyond protest directed through appropriate channels, his protected activity itself couldn’t be a legitimate reason for failing to promote him simply because his protest resulted in a conflict, explained the court. Whether his opposition to perceived unlawful FMLA “went beyond the bounds of decency” such that his protected activity itself became a legitimate reason for his promotion denial must be left to a jury.

SOURCE: Browett v. City of Reno, (D. Nev.), No. 3:16-cv-00181-RCJ-WGC, February 17, 2017.

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