Third Circuit Court Offers Employers Insight into FMLA and ADA

The Third Circuit Court of Appeals recently waded into the waters of the Family Medical Leave Act of 1993 (FMLA) and the Americans with Disabilities Act (ADA), finding that an employer did not violate the FMLA or ADA where it legitimately believed an employee was misusing FMLA leave, and terminated the employee as a result.

In this case, Capps v. Mondelez Global, LLC, the employee had a medical condition that caused arthritis in his hips. The employee had hip replacement surgery and afterwards he was approved for intermittent FMLA leave to address residual pain and occasional flare-ups.  After the employee returned from one of his intermittent leaves, the employer discovered through an anonymous source that the employee had been convicted for DUI on one of the days that he had been out on leave. The employer terminated the employee for violating its dishonesty policy after he failed to provide sufficient documentation supporting his FMLA leave.

The employee sued claiming violations of the FMLA and ADA. As for the employee’s FMLA retaliation claim, the court found that the claim failed because the employer was able to establish that it terminated the employee for misusing his FMLA leave and for being dishonest about it, and because the employee could offer no evidence to suggest that the employer did not honestly hold that belief.  The court also noted that there was no evidence showing that the employee had ever been denied intermittent FMLA prior to the employer’s discovery of his DUI conviction, nor was there any evidence of discriminatory animus on the part of the employer prior to that time. As for the employee’s FMLA interference claim, the court found that claim failed as well where there was no evidence showing that FMLA benefits had actually been withheld from the employee.

Turning to the ADA, the employee argued that his request for intermittent FMLA leave was protected by the ADA and that his employer failed to accommodate his disability.  The court acknowledged that, under some circumstances, a request for FMLA leave may also qualify as a request for a reasonable accommodation. However, in this case, the court found that even if the employee’s request for intermittent FMLA leave could be construed as a request for a reasonable accommodation, there was still no evidence to suggest that he was denied requested leave at any point.

So what insights does this case offer to employers?  

First, it highlights the importance of distinguishing between an employee’s request and utilization of FMLA leave, and an employee’s conduct or activities while on leave.  An employee clearly may not be disciplined for the former, but this case confirms that the FMLA does not provide an absolute shield for the latter, particularly where misuse of FMLA leave is concerned. Second, the decision highlights the interplay between the FMLA and the ADA and underscores the importance of evaluating leave requests individually and in context.

When Timing Isn't Everything: Court Finds that Timing of Termination Alone Fails to Establish Pretext for Retaliation

In many retaliation cases, the timing between a protected activity and an adverse employment action is an important factual issue.  To a large degree, this is a matter of common sense.  After all, when we think of cause and effect, we often think in terms of time and tend to assume that contemporaneous events are more likely to be related to each other than events occurring at more distant intervals.  It is no surprise, then, that employees often use (and courts often accept) evidence of close timing between a protected activity and an adverse employment action to satisfy the basic elements of a retaliation claim.

Yet evidence of temporal proximity only goes so far, as a recent decision from the U.S. District Court for the District of Massachusetts illustrates.  In Wagner v. Baystate Health, Inc., a hospital lab assistant claimed her employer retaliated against her for taking FMLA leave by reprimanding her six weeks after returning from leave and then terminating her two weeks later.  The court found that the timing between the lab assistant’s leave and her discipline was sufficient to make out a “threshold” claim for retaliation and that a reasonable jury, looking just at the chronology without any other explanation, could conclude that the hospital retaliated against the lab assistant for taking FMLA leave.  However, the court found that the timing alone was insufficient to establish retaliation once the hospital provided a reasonable explanation for its actions.  In this case, the hospital explained its actions by pointing to a history of increasingly negative performance evaluations and the lab assistant’s failure to improve her behavior even after being put on a performance improvement plan.  Given the hospital’s explanation for the sequence of events, the court found the lab assistant needed to provide some additional evidence, other than timing, to show how the hospital’s explanation was invalid.
 
Wagner provides additional support for the proposition that an employee must show more than temporal proximity to overcome an employer’s legitimate non-retaliatory explanation for an adverse employment action.  At the same time, the decision serves as an important reminder for employers to document employee performance and any resulting disciplinary issues.  In the absence of this documentation, a disgruntled employee may have a better shot at convincing a judge that, in fact, “timing is everything.”