Employer may have violated FMLA by firing employee on leave because he failed to complete a disciplinary performance plan.
A public school employee who was fired while on FMLA leave for failing to complete a probationary period may move forward on his lawsuit claiming interference with his FMLA rights, the Eleventh Circuit recently held. It is up to a jury to decide whether the plaintiff was lawfully terminated for performance issues or unlawfully, because of his FMLA leave.
The employee cared for his daughter, a single parent in the Army Reserves, and her infant daughter, providing shelter, monetary support and childcare. As a result of slipping performance, his employer placed him on a six-week performance plan, explaining that his contract would not be renewed if he did not show marked improvement. At the same time, he learned that his daughter was scheduled to be deployed overseas. He requested FMLA leave to care for his granddaughter while she was gone. The school district granted leave only through the end of his contract term (seven weeks away), and informed him that his contract would not be renewed if he did not complete his performance plan because he was on leave.
Although it turned out that his daughter was not actually deployed, the plaintiff continued to care for his granddaughter when her mother was at weekend training. After he was terminated, he sued, arguing that his employer interfered with his rights under the FMLA.
The court agreed that the plaintiff raised a question of fact regarding FMLA interference. A reasonable jury could find that the reason for the plaintiff’s termination -- his failure to complete his improvement plan -- as specifically tied to his FMLA leave. The school district did not show that it would have fired the plaintiff even if he was not on leave; there was just as much a chance that, if not for his leave, he would have completed the plan and retained his job. It was up to a jury to decide whether to believe the school district when it argued that the FMLA leave had nothing to do with the plaintiff’s termination.
This case gives a good example of what it means to “interfere” with an employee’s FMLA rights. Although the employer may have had a legitimate reason to terminate the plaintiff for failing to complete his performance plan, the fact that the failure was caused by his leave created the possibility of interference with his rights.
-- Tracy Billows, Esq., Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see Martin v. Brevard County Pub. Schs., 2008 U.S. App. LEXIS 20580 (11th Cir., September 30, 2008)].
-----------------------------------------------
Male employee’s superior credentials and experience doom female worker’s claim under the Equal Pay Act.
A federal court in New York held that a female accountant could not move forward on her Equal Pay Act claim because the male controller to whom she compared herself had markedly superior credentials and experience. The plaintiff had complained about her salary and paltry pay raises for a number of months, finally refusing to perform some of her duties in protest. She never specifically complained that she was paid less than her male counterpart, but after she was fired, she sued under the Equal Pay Act, arguing that she and the controller had performed “substantially similar” job duties, even though his salary was $20,000 more than hers. She disputed the company’s argument that the differential was based on the man’s superior credentials – he had an MBA and was a certified public accountant, while she had only a GED and a few college courses in addition to her work experience – because the male employee had actually been terminated for poor performance.
The court held that even assuming the plaintiff and the male controller performed substantially similar job duties, the defendant succeeded in proving the affirmative defense that the difference in pay was based on a factor other than gender. Choosing to pay one employee more than another based on credentials or experience is a legitimate decision. The fact that the more experienced male actually failed to perform well only showed that reliance on academic credentials may have been a mistake; it did not demonstrate discrimination.
This case describes the affirmative defense under the Equal Pay Act. Here, the court agreed that the two employees had “substantially similar” job duties, and that they were paid different amounts. However, relying on academic credentials, a legitimate, non-discriminatory basis to support a difference in pay, is not unlawful, even when, as here, those credentials do not end up resulting in superior work performance.
-- Tracy Billows, Esq., Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see (Virgona v. Tufenkian Import-Export Ventures Inc., 2008 U.S. Dist. LEXIS 72139 (S.D.N.Y., September 23, 2008)].
-----------------------------------------------
Americans with Disabilities Act Restoration Act passes Congress; signed by President.
On September 25, 2008, President Bush signed the ADA Amendments Act of 2008. The amendment broadens the definition of “disability” under the law and effectively overturns four Supreme Court decisions that some believed had eroded Congress’ original purpose in enacting the law. Specifically, under the amendment, employers must now consider whether a person has a disability without considering any “mitigating measures” (such as medications) other than ordinary eyeglasses or contacts.
To meet the definition of disability, a physical or mental impairment, whether actual, perceived or recorded, must substantially limit a major life activity. “Substantially limits” means either the inability to perform a major life activity that the average person in the general population can perform; or a significant restriction as to the condition, manner or duration under which an individual can perform a particular major life activity compared to the average person. Temporary, non-chronic impairments that do not last for a long time and that have little or no long-term impact are generally not disabilities because they are not substantially limiting to a major life activity. However, episodic impairments, or those in remission, are considered disabilities if they substantially limit a major life activity when they are active.
The law also expanded the list of examples of major life activities to include: caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, working, lifting, bending, reading, concentrating, thinking and communicating. Major life activities have been generally defined in the EEOC interpretative guidance as “those basic activities that the average person in the population can perform with little or no difficulty.”
Employers will be faced with more employees claiming that they are disabled under the amended law; therefore, employers need to be aware of the requirements for determining whether and how to provide a reasonable accommodation to those workers who need one.
-- Tracy Billows, Esq., Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see Daily Labor Report No. 187, September 26, 2008, pg. A-10)].
-----------------------------------------------
New FMLA period required employee to obtain new approval for her intermittent leave.
An employee who was taking intermittent FMLA leave for chronic depression was required to submit a new request for leave at the beginning of a new 12-month leave year, the 6th Circuit recently held. Her failure to request additional leave meant that her employer was justified in terminating her for unauthorized absences.
The employer used a calendar year as its FMLA leave year. The plaintiff had obtained approval for intermittent leave in the Fall of 2004; she was absent from work on and off during the next several months. In December 2004, she began a period of absence that continued into the new year; she failed to seek additional FMLA leave until after she was terminated for unexcused absences. At that time, her employer informed her that she was not eligible for FMLA leave in 2005 because she had not worked at least 1,250 hours in 2004.
The court found that the employer was justified in terminating the plaintiff. The FMLA leave for which she had been approved ended with the calendar year; the new year commenced a new leave period. By failing to request more leave, her absences were unapproved. Moreover, as the court noted, the plaintiff could not meet the eligibility requirements for leave in 2005 because she did not work enough hours in the previous 12-month period – the 2004 calendar year.
This case is interesting because of the employer’s decision to use a calendar year for its FMLA calculations. Most employers use a rolling 12 month period. Even if the plaintiff had not used her full 12 weeks of leave in 2004, she was not entitled to carry over any time into 2005, because under the employer’s leave policy, the new calendar year also constituted a new leave year.
-- Tracy Billows, Esq., Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see Davis v. Michigan Bell Tel. Co. 2008 U.S. App. LEXIS 20438 (6th Cir. September 29, 2008)].
More from Seyfarth Shaw LLP