The Family and Medical Leave Act (FMLA) continues to create administrative challenges for employers. One particular issue of concern is the discipline and/or termination of an employee who has requested or is on FMLA leave. The Tenth Circuit Court of Appeals recently upheld the dismissal of an individual’s interference and retaliation claims in an unpublished opinion that serves as an outline for analyzing FMLA claims under such circumstances. Brown v. ScriptPro, LLC, No. 11-3293, (10th Cir. Nov. 27, 2012). (The Tenth Circuit is the federal appellate court that entertains appeals from federal cases originating in Colorado, Kansas, Oklahoma, New Mexico, Utah, and Wyoming.)
Frank Brown worked as a customer service operations analyst for ScriptPro, LLC (ScriptPro) a company that develops, manufactures, markets, and sells automated prescription drug dispensing systems and related software. Brown began that employment in March 2007. In mid-2008, Brown’s immediate supervisor prepared a written performance review that included both positive and negative comments. Among the negative feedback were observations related to Brown’s interaction with co-workers and customers, including his tendency to be “argumentative and abrasive,” and his lack of respect for “personal boundaries.” Although these issues were discussed with Brown, no specific goals or corrective plans were put in place. Following that performance review, several other issues developed, including complaints by Brown’s co-workers about his “belligerence” toward customers and his failure to complete a work project.
At the end of October 2008, Brown was out of the office, ostensibly on paid time off (PTO) for two weeks. However, upon his return, he asserted that he had worked from home during the second week, and on November 19, he requested to use some of that work time to leave early on the following day to take his wife to a medical appointment. When Brown’s supervisor informed him that his request was denied, Brown raised his voice and allegedly banged his fist on the table. He later apologized for his conduct.
On November 21, 2008, ScriptPro terminated Brown’s employment for performance issues. Brown filed a lawsuit claiming, among other things, that ScriptPro interfered with the exercise of his rights under the FMLA and terminated his employment in retaliation for his exercise of those rights. The district court dismissed Brown’s claims, granting summary judgment to ScriptPro. The Tenth Circuit upheld that decision.
In its analysis of Brown’s interference claim, the Tenth Circuit makes a number of noteworthy points. First, it sets forth the elements of a successful interference claim, in which an employee must show that he was entitled to FMLA leave, that an adverse action taken by the employer interfered with his right to take FMLA leave, and that the adverse action was related to the attempted exercise of those rights. Second, the Tenth Circuit reminds employers that the deprivation of FMLA rights is a violation of that law, regardless of the employer’s intent and that, therefore, the oft-cited McDonnell Douglas burden-shifting analysis does not apply. Third, the court points out that in spite of the near strict-liability approach, an employer can defend against such a claim by showing that the employee would have been fired regardless of the request or need for FMLA leave.
In Brown’s case, the court decided that while Brown had provided sufficient evidence by which a reasonable jury could find that he was entitled to FMLA leave, and that ScriptPro interfered with that leave, the company was able to assert undisputed evidence that Brown would have been fired regardless of the request for time off for his wife’s medical appointment. That undisputed evidence included unfavorable feedback in his performance review and uncontroverted evidence of continued problems, including documented complaints by his co-workers and his supervisor’s concern related to an incomplete project. The court noted that its role was not to “judge the wisdom of management’s responses,” but simply to determine whether ScriptPro had come forward with evidence to support the assertion that it would have fired Brown regardless of any FMLA activities. The Tenth Circuit affirmed the dismissal of the case, holding that ScriptPro carried that burden.
The court analyzed the retaliation claim similarly but pointed out that such claims are subject to the burden-shifting analysis of McDonnell Douglas. First, the employee must set forth a prima facie case of retaliation, showing that he engaged in a protected activity, was subject to a materially adverse action, and that there is a “causal connection” between the two. Once the prima facie case is established, the employer must come forward with a legitimate, non-discriminatory reason for its action. Finally, in order to avoid summary judgment, the employee must show that there is a disputed issue of material fact as to whether the employer’s reason for its action is pretextual.
In Brown’s case, the Tenth Circuit proceeded directly to the third step of the analysis, and found that although Brown argued that the temporal proximity between his November 19 request for leave and his November 21 firing showed that ScriptPro’s reasons for the termination were actually based on protected activity, he failed to proffer any additional circumstantial evidence of retaliatory motive. Without that, Brown failed to carry his burden of proving that the legitimate reason given for his firing was simply a pretext for retaliation.
While the analysis of the two claims differed slightly, the employer’s success in each rested on the objective documentation of the performance issues on which the termination of Brown’s employment was based. Documentary evidence was the key to the success of ScriptPro’s ability to show that it would have terminated Brown’s employment regardless of any FMLA request or rights (the interference claim), as well as to the company’s ability to overcome Brown’s allegation that the reasons proffered for his termination were pretextual (the retaliation claim). This case serves as a reminder to employers of the importance of objective documentation of the business reasons for employer’s decisions, especially when faced with a possible FMLA-related situation.
Maria Greco Danaher is a shareholder in the Pittsburgh office of Ogletree Deakins.