This past week was a busy one for the release of opinions by the 11th Circuit in employment related cases. Two are of particular interest, addressing the FMLA. In both cases, the court affirmed the dismissal of claims filed by employees who claimed they were adversely effected as the result of their claims to leave under the FMLA.
In Schaaf v. Smithkline Beecham Corporation, d.b.a. GlaxoSmithKline (GSK), Schaaf was a regional vice president for GSK when she became pregnant with her 4th child. In July, 2002, the same month she reported to her supervisor that she was pregnant and was going to take FMLA leave in early 2003, 3 district sales managers (DSM) lodged complaints against Schaaf alleging unprofessional management style. This included "antagonistic and inflexible management style, chronic inaccessibility, poor communication skills, harsh and demanding demeanor, and tendency to play favorites, as well about her failure to provide written feedback on performance appraisals, her practice of sharing some DSMs' confidential performance-evaluation information with other employees, her unwillingness to respond to voice-mail messages for weeks at a time, and her failure to acknowledge the contributions of her subordinates." GSK issued a verbal warning to Schaaf, and instructed her to complete a Performance Improvement Plan, requiring her to issue uncompleted written performance reviews, attend management-training programs and to complete team-building exercises with her subordinates. Schaaf expressed concern about completing the PIP prior to the commencement of her leave. The court found that Schaaf "ignored several PIP deadlines, including deadlines to register for the required management courses and to complete the written performance evaluations. Schaaf even failed to meet the deadline for simply returning a signed copy of the plan to her superiors." The deadlines were first extended from December, 2002 to January, 2003, and then to after her return from maternity leave. While on leave, an interim RVP took her position, and the region functioned significantly better while she was gone. Numerous deficiencies in Schaaf's work were also discovered, productivity had increased, communications had improved and morale was higher. Immediately upon her return, Schaaf was given the choice of a demotion to DSM or leave GSK. She accepted the demotion and sued alleging a violation of the FMLA. The Court found that reinstatement under the FMLA is not an absolute right: rather, "an employer can deny reinstatement if it can demonstrate that it would have discharged the employee had she not been on FMLA leave". GSK met it's burden of showing that the reasons she was not reinstated were unrelated to the FMLA leave. The Court further found that
"Schaaf was demoted because of managerial ineffectiveness that revealed itself in full only in her absence; she was not demoted because (i.e. for the reason that) she took FMLA leave."
In Krutzig v. Pulte Home Corporation, Krutzig was hired in January 2005 as a sales associate selling homes in Pulte housing developments in Sarasota, Florida. In June, 2007, she fell and injured her foot, and did not initially request any leave. In July, 2007, Krutzig received 2 written warnings from her supervisor and was placed on a 30 day performance improvement plan. On August 17, 2007, Krutzig contacted a Pulte HR representative and requested FMLA leave during the time she was scheduled to have surgery on her foot. Krutzig attempted to get her immediate supervisor to sign off on the forms, but was not able to locate her. On the same day, Krutzig met with a disgruntled customer, who called the "home office" to complain about Krutzig. On Saturday, August 18th, Cooper, Director of Sales for Pulte, made the decision to terminate Krutzig. She was informed of this decision when she returned to work on Monday, August 20th. Cooper made the decision to terminate Krutzig based on her failure to address the issues in her PIP as well as the problem with the customer he spoke with. Cooper testified that he was not aware of her request for FMLA leave at the time he made the decision to terminate her. Krutzig filed a complaint, alleging she was terminated as the result of FMLA retaliation and FMLA interference. The 11th Circuit affirmed the granting of summary judgment in favor of Pulte's favor, finding that "Temporal proximity alone, however, is not sufficient to establish a causal connection when there is unrebutted evidence that the decision maker was not aware of the protected activity. Further more, knowledge on the part of persons other than a decision maker cannot be imputed from other supervisors to the decision maker for purposes of an FMLA retaliation claim." Concerning the FMLA interference claim, the court found that to establish such a claim, "an employee need only demonstrate by a preponderance of the evidence that he was entitled to the benefit denied....if an employer can show that it refused to reinstate an employee for a reason unrelated to the FMLA leave, the employer is not liable for failing to reinstate the employee after the employee has taken FMLA leave." For the first time, the Court addressed the issue of whether the FMLA right to commence leave is absolute, finding that "the right to commence FMLA leave is not absolute, and that an employee can be dismissed, preventing her from exercising her right to commence FMLA leave, without thereby violating the FMLA, if the employee would have been dismissed regardless of any request for FMLA leave."
Practice pointer. I have often said that the mere fact that an employee is a member of a protected class, such as eligible for FMLA leave, does not mean that disciplinary action cannot be taken against him/her so long as it is not based on the protected activity. In both of these cases, the facts were very clear that disciplinary action would have been taken notwithstanding the exercise, or attempt to exercise, FMLA rights. Employers must approach these cases with caution, as each case is fact specific, and the decision to discipline employees who are attempting to exercise, or who have exercised their FMLA rights, can lead to time consuming and costly litigation.
