Assignment to a Lesser Position Upon Return From Leave May Support FMLA Interference Claim

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
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The Eleventh Circuit Court of Appeals reversed summary judgment in favor of an employer, holding that a plaintiff’s testimony and evidence related to her transfer to a position of less responsibility upon return from leave under the Family and Medical Leave Act (FMLA) created an issue of material fact that required a jury to determine whether the employer had interfered with the employee’s FMLA leave. Rodriguez v. University of Miami Hospital, No. 11-15206, December 3, 2012.

Iliana Rodriguez requested and was granted FMLA leave from her administrative position at the University of Miami Hospital (the Hospital). Upon her return from leave, Rodriguez met with a number of individuals, including her supervisor, Francetta Allen, and the Hospital’s Executive Director of Human Resources, Errol Douglas. At that meeting, it was determined that Rodriguez would be transferred to a temporary position, based on her admitted inability to get along with Allen. While the temporary position was at the same level of pay and benefits, the new position had significantly less responsibility and, in fact, consisted largely of copying documents. Six weeks after being transferred to that position, Rodriguez was fired. She then filed a lawsuit, alleging that the Hospital had interfered with her right to reinstatement by failing to return her to her original position, and then fired her in retaliation for taking FMLA leave. The district court granted summary judgment in favor of the Hospital on both claims.

In an unpublished opinion, the Eleventh Circuit Court of Appeals upheld the summary judgment on Rodriguez’s retaliation claim, holding that there was no evidence that the Hospital’s reason for the termination—that Rodriguez could not get along with her supervisor, and was unable to find another acceptable job within the Hospital—was false. Rodriguez therefore could not show a causal nexus between her FMLA leave and her firing, and her retaliation claim was dismissed.

However, an FMLA interference claim is analyzed differently than a retaliation claim.  According to the Eleventh Circuit, if an employee is not reinstated to the same or an equivalent position, the employer bears the ultimate burden of proving that its action was taken for independent reasons that were unrelated to the employee’s leave. Therefore, in this case, the court had to determine whether there was any genuine issue of material fact regarding the Hospital’s defense that it had transferred Rodriguez to the temporary, lesser position for reasons unrelated to Rodriguez’s FMLA leave.

An employer is not liable for failing to reinstate an employee to her former position if the employer can show that the employee cannot perform the essential functions of her original position. Further, in that instance, an employer is not obligated or required to restore the employee to any other position. In this case, the Hospital argued that it transferred Rodriguez upon her return from leave because she was unable to perform the essential functions of her original position, which included being able to get along with her supervisor, Francetta Allen.  Had the record unquestionably established that Rodriguez and Allen could not work together, the Hospital would have met its burden that the transfer was “wholly unrelated” to Rodriguez’s FMLA leave, and the interference claim could have been dismissed.

However, based on deposition testimony and a lack of documentary evidence that Rodriguez and Allen had been unable to get along prior to the FMLA leave, the court was able to find disputed issues of material fact that precluded summary judgment in favor of the Hospital. Contrary to the Hospital’s assertion that Rodriguez was unable and unwilling to work with Allen, Rodriguez testified that she had asked for the meeting with Allen and Douglas upon her return from leave in order to “address whatever issue was there” and to move on, as she did not want to lose her job.

In addition, in spite of the Hospital’s statement that Rodriguez’s issues with Allen pre-dated her return from FMLA leave, there was no documentary evidence of any performance deficiencies or difficulties between Rodriguez and Allen until the meeting held at the time of Rodriguez’s return. Indeed, Allen first documented her issues with Rodriguez in an e-mail sent to Douglas one hour before that meeting. Because there were disputed issues of material fact underlying the Hospital’s defenses against Rodriguez’s interference claim, the court determined that it was for a jury to decide whether those defenses constituted an honest explanation of the reason that Rodriguez was not returned to her position upon returning from FMLA leave. The court remanded the case to the district court for further action on that issue.

This case is another in a series of recent federal court cases in which a court points out an important difference between the analysis of an FMLA retaliation claim and an FMLA interference claim for purposes of summary judgment. In a retaliation claim, the ultimate burden of proof is on the employee—under the oft-cited McDonnell-Douglas 3-step burden shifting analysis—to show that an employer’s reason for its action is simply a pretext for retaliation.  However, in an interference claim, the ultimate burden is on the employer to prove that its defense that its action was based on independent reasons that were unrelated to the employee’s FMLA leave and to prove it without any question of material fact. In this case, the Hospital was unable to carry that burden, and the matter will be returned to the lower court in order to allow a jury to decide the issue.

Maria Greco Danaher is a shareholder in the Pittsburgh office of Ogletree Deakins.

 

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