Two-day Proximity Between FMLA Request and Firing Suggests Interference and Retaliation
August 14, 2017
The temporal proximity of two days between a nursing home employee’s request for Family and Medical Leave Act (FMLA) leave and his termination was "key" to a federal court in Pennsylvania’s conclusion that there were triable issues on his FMLA retaliation claim.
The court also denied the employer’s motion for summary judgment on the FMLA interference claim, noting that applicable Third Circuit precedent was unclear on whether an interference claim was duplicative of the FMLA reprisal claims. Summary judgment was granted against his Age Discrimination in Employment Act (ADEA) claim, though, because failed to show the reasons for his termination (performance problems and inappropriate behavior) were pretext for age discrimination.
The employee was hired by the nursing home in April 2011 to be its director of maintenance. In a January 2012 meeting, his immediate supervisor, the nursing home administrator, put him on a "performance action plan" setting forth goals and expectations and noting several performance deficiencies. These included: not providing adequate training and mentoring to a subordinate; not resolving "longstanding issues" with security staff; failing to respond to facility phone calls; and not taking a more active role in resolving the facility’s maintenance issues.
Monitored supervisor. Around this same time, the employee began an unauthorized endeavor of monitoring his supervisor’s attendance at work by reviewing camera footage and her timesheets; he also prepared his own logs of the supervisor’s absences from the facility.
Second performance plan. On May 9, 2012, the employee’s supervisor issued him a second action plan, and he also received a written warning for allegedly addressing an outside contractor in an "unprofessional manner" and an oral warning for allegedly not keeping "adequate stock" of the facility’s equipment, which resulted in it being "short one bed."
FMLA request. On May 24, he requested and received FMLA paperwork from the HR director. He was the primary caregiver to his disabled father, and planned to use the FMLA leave for that purpose. Soon thereafter, that HR director was replaced. On June 15, the plaintiff met with the new HR director to discuss his performance, his supervisor’s alleged "fraud" and absenteeism, and other issues. He testified that he was "afraid" to turn in his completed FMLA paperwork for fear of termination, and he told the director he expected to be terminated. On June 18, he went to turn in his FMLA paperwork; he claimed the director was meeting with the regional HR director at the time, so he just handed the paperwork to the regional director and she closed the door.
Termination. Later that day, the employee’s supervisor emailed the company’s regional director of operations stating she planned to terminate the employee in two weeks. She indicated the regional director, who was copied on the email, agreed. She also stated that she knew he had been monitoring her and he was "not the type of person" she wanted working for her, that he had been on a performance improvement plan since January 2012 due to "HR issues," that his statements that she "stole time" were "a lie" and she wanted him gone. She added: "I just wanted you all to know how inappropriate his behavior is." The next day, she issued the employee a final written warning for failure to meet his performance plans and put him on another plan set to expire July 3. He was terminated in a June 20 meeting with the regional director of operations and the regional HR director. His immediate supervisor was not present.
ADEA claim fails. With respect to the employee’s prima facie showing of age discrimination, the parties disputed whether he was replaced by a sufficiently younger employee. He was 47 years old and he offered evidence that the replacement was 41, but the employer argued he was 43. Even assuming a prima facie case, though, the employee lacked sufficient evidence that the reasons for his termination—performance problems and unprofessional behavior in launching an unauthorized investigation of his supervisor—was pretext for age discrimination. He did not dispute he was put on performance plans or that he investigated his supervisor’s attendance. While he claimed other managers involved in the termination lacked personal knowledge of his alleged deficiencies, the court found that was not probative of pretext. It explained that his supervisor who put him on the performance plans did have direct knowledge and there was no evidence other decisionmakers did not rely on these action plans in good faith.
The employee’s attempt to show inconsistent or shifting justifications for the termination also failed. Just because an employer relies on certain justifications for a termination does not mean that additional justifications undermine its position during litigation. Also, to the court, there were no shifting justifications and the reasons in the termination notice were the same ones the employer relied on in this litigation. Consequently, this claim failed.
FMLA reprisal. On the other hand, there were triable issues on his FMLA retaliation claim, concerning a causal connection between the employee’s request for leave and his termination. He was fired only two days after submitting FMLA paperwork—and his supervisor’s email recommending his termination was sent the same day he submitted his paperwork. This temporal proximity created a factual issue despite the employer’s explanations regarding his performance deficiencies and misconduct. The temporal proximity was the "key distinguishing factor in the retaliation analysis," the court wrote.
Moreover, the employer did not dispute that the employee reported the findings of his "investigation" to the previous HR director. This allowed for the reasonable factual conclusion that the employer knew about his conduct in monitoring his supervisor, but did not take disciplinary action against him until after he submitted his FMLA request.
FMLA interference. The employer argued that the FMLA interference claim, in which the employee claimed he was denied FMLA leave, must be dismissed as duplicative of his reprisal claim. But the court declined to make this determination as a matter of law. It noted that "the precise circumstances under which a plaintiff may advance both retaliation and interference claims is not entirely clear" under Third Circuit precedent. Further, because Third Circuit precedent provides that termination for making a valid FMLA request may constitute interference, summary judgment was not appropriate on this claim.