From: Tennessee Employment Law Letter | 04/01/2018

Employees who have taken or who are currently taking leave under the federal Family and Medical Leave Act (FMLA) aren’t necessarily protected from being selected for termination as part of a reduction in force (RIF). However, an employee may file a claim for wrongful termination if he is selected for a RIF because he has exercised protected rights. As the following case shows, employers should exercise caution to make sure a planned RIF doesn’t improperly target employees in protected categories.

Facts

Kim Tillotson was a sales manager whose job required some interstate travel. After many years of employment, he developed a health issue that caused him to have to use the restroom several times each day. When he experienced flare-ups related to his condition, he approached HR about possibly filing an FMLA or short-term disability leave request, and he eventually did submit an FMLA leave request.

However, the paperwork provided by Tillotson’s doctor simply indicated that he needed to be in a “controlled work environment with ready access to a bathroom.” The doctor didn’t state that Tillotson’s medical issues prevented him from performing his job duties, nor did the paperwork indicate that he needed time off work. Because Tillotson’s request for time off wasn’t supported by the medical certification his doctor provided, his employer denied his FMLA leave request.

HR met with Tillotson and his supervisor to discuss the situation. During the meeting, it was determined that he was already working within the confines of his medical restrictions because his job duties and travel schedule gave him ready access to restrooms. The company acknowledged that although the issue might need to be discussed again in the future if sales territories were realigned to place greater travel requirements on him, no changes needed to be made at that time.

During those conversations one of Tillotson’s bosses supposedly expressed frustration, saying “You can’t have a sales guy who can’t travel.” Regardless, no changes were needed in the end, and Tillotson continued to travel and perform his sales manager job without modification.

A few months later, Tillotson’s employer carried out a companywide RIF, laying off eight of its 27 sales managers, including Tillotson. In making the RIF selections, the company used something called the “9-Box,” an evaluation methodology or rubric ranking performance based on multiple objective and subjective criteria. The 9-Box methodology was in place at the company before the RIF. Tillotson was ranked the lowest of all the sales managers according to the 9-Box, so he was among the employees who were laid off.

Tillotson sued the company, alleging interference with his protected rights and retaliation in violation of the FMLA. He claimed the company’s stated reasons for letting him go were pretextual (not true) and the real reason was that he had exercised his rights under the FMLA. The trial court disagreed and entered summary judgment in favor of the employer, dismissing the case without a trial. Tillotson appealed to the U.S. Court of Appeals for the 6th Circuit (whose rulings apply to all Tennessee employers).

Court’s holding

The 6th Circuit held that Tillotson couldn’t show that the employer’s legitimate nondiscriminatory reasons for letting him go were pretextual. In other words, he couldn’t present evidence from which a reasonable jury could conclude that the company’s true motives were retaliatory or discriminatory. In stating the basis for its decision, the court held that Tillotson failed to discredit the 9-Box rubric, specifically noting that the methodology was in place before the RIF decisions were carried out. Tillotson offered no evidence that the company altered its RIF methodology in any way after he exercised his FMLA rights or that the 9-Box rubric was misused or erroneously or unfairly applied to him.

Tillotson argued that his employer shouldn’t be able to rely on the 9-Box in its defense because the rubric included some subjective criteria, such as an employee’s “future potential.” The court agreed that a subjective evaluation process can be suspect since a system based on purely subjective criteria may permit unlawful motivations to come into play more readily. However, in this case, the court noted, several objective criteria (such as monthly sales figures and recorded feedback from customers) were also used, thus reducing the possibility that the 9-Box rubric could have been unfairly manipulated to target Tillotson for dismissal.

Tillotson pointed to his supervisor’s comment that “you can’t have a sales guy who can’t travel” as evidence that the company wanted him out and used the RIF as cover for that purpose. However, in light of the fact that he never actually took any leave and his medical condition never prevented him from traveling, the “stray remark” by his boss, while ill-advised, didn’t create an issue for the court with respect to assessing the company’s motivation.

Rejecting every argument offered up by Tillotson, the 6th Circuit found there was nothing for a jury to decide and affirmed summary judgment for the employer. Tillotson v. Manitowoc Company, Inc. (6th Cir., April 4, 2018).

Practical guidance

You can’t always prevent a lawsuit, but you can set yourself up to defend one effectively, and the employer in this case did many things right in that regard. First, it properly handled Tillotson’s FMLA leave request, including carefully examining the medical paperwork, which didn’t match his request. Employers have the right to seek clarification or deny a request for FMLA leave.

However, you should bear in mind that even if time off work isn’t warranted (thus taking your FMLA obligations out of the picture), an employee may be entitled to on-the-job accommodations under the Americans with Disabilities Act (ADA) or state disability laws. In this case, the employer properly met with the employee to determine what, if any, accommodations he needed. It turns out that none was necessary, at least not at that time, but the fact that the employer engaged in the interactive process—facing its legal obligations head-on—likely enhanced its credibility in the eyes of the court.

But probably the most important thing the employer did right in this case has nothing to do with the employee’s medical issues or the FMLA. Rather, it has to do with how the employer carried out its RIF. Instead of making wholly subjective decisions regarding the individuals under consideration for layoff, it utilized a set of preestablished criteria, which it applied across the board to its sales managers. At the end of the day, the 9-Box rubric likely saved the employer from having to take the case to trial.

It may be tempting to use a RIF as a way to get rid of problematic employees or folks you just don’t like, but such free-wheeling decision making may come back to bite you. A RIF process, while generally not as risky as a performance-based termination decision, doesn’t insulate employers from claims of discrimination. Rather, even if you can prove that a certain number of positions needed to be eliminated for financial or other legitimate business reasons, you can still lose a wrongful termination lawsuit if the employees who were let go can show they were selected on the basis of protected criteria (e.g., gender, race, age, or disability) or, as in this case, for engaging in protected activity (e.g., requesting FMLA leave).

The safest way to conduct a RIF is to establish your selection criteria before you undertake the RIF or even discuss which employees will or won’t survive the cuts. And while it’s fine to include some subjective criteria in your RIF selection process, to put yourself in the best possible position to defend your decisions, you should include objective, documented criteria as well.