An employer that took issue with an employee’s FMLA paperwork and refused to allow her to return to work until she provided new documentation, and ultimately fired her for job abandonment after a breakdown in communication, will face a jury on her FMLA interference and retaliation claims, the Second Circuit ruled in reversing summary judgment against the employee. The court also reinstated her FMLA claims against the HR director since she could be liable as her “employer” under the FLSA’s economic realities test, but refused to revive the employee’s ADA associational bias claim (Graziadio v Culinary Institute of America, 2d Cir.).
The employee, who worked for the Culinary Institute of America (CIA), took two weeks of FMLA leave in early June to care for her son after he was hospitalized for Type I diabetes. She returned on June 18, 2012 and submitted a medical certification on June 27. That same day, her other son fractured his leg and underwent surgery. She gave notice of her new need for leave, stating that she expected to return by July 9. When that date arrived, she requested a three-day week schedule for the next few weeks and asked if she needed to submit further documentation.
Despite her numerous inquiries as to when she could return, she heard nothing until the HR director sent her a letter on July 17 stating that her FMLA paperwork did not justify her absences. After she sent several emails attempting to determine what “paperwork” was needed, the HR director provided her with a Department of Labor brochure and refused to allow her to return to work until she provided proper documentation. As communication broke down, counsel for the parties became involved and the employee was fired on September 11 for job abandonment.
Individual liability. There was sufficient evidence for the employee to advance her FMLA claims against the HR director individually as her “employer.” Applying the economic-reality test used in FLSA cases, the Second Circuit found that triable issues existed as to the director’s authority since she appeared to have played an important role in the decision to fire the employee and also controlled her rights under the FMLA. Notably, the director specifically instructed her supervisor not to communicate with the employee and that she alone would handle her leave dispute.
FMLA interference. A jury could also find that the employee was denied leave to which she was entitled. First, it appeared that she may have taken intermittent leave to care for her diabetic son which was not approved by CIA. For example, the HR director’s July 17 letter stated that her documentation was insufficient and after she submitted a new certification, the director never responded (suggesting that she continued to withhold approval). Moreover, her updated certification arguably met the statutory requirements.
Good faith compliance.” Regarding her injured son, a jury could conclude that the employee attempted in good faith to comply with CIA’s certification requests and that its conduct excused any residual failure in compliance. The HR director’s vague request for “paperwork” hardly sufficed to give adequate notice that CIA was requesting a medical certification, especially given the employee’s repeated requests for clarification. Although the HR director then sent her a Department of Labor brochure, she failed to respond to any of her continued pleas for clarification. Such unresponsiveness might itself run afoul of the FMLA.
After the employee submitted a doctor’s note, the HR director quickly rejected it and cut off communication by refusing to discuss the matter further until she appeared for an in-person meeting. The employee could thus have believed that she could not submit new medical information until the meeting. The director’s concurrent failure to acknowledge receipt of her updated certification for her diabetic son might also have signaled that further submissions would be futile. The meeting never occurred and the HR director never reopened the lines of communication until August 30, when CIA’s attorney demanded a new medical certification.
On this record, a jury could reasonably conclude that the employee made sufficient good faith efforts to comply with her employer’s requests and that defendants’ conduct—their imprecision in requesting certification, their failure to answer her questions responsively, and their failure to communicate with her after deeming her doctor’s note deficient—relieved her of any unsatisfied obligation to provide a medical certification to support her leave. Freed of this obligation, she may have been denied leave to which she was entitled.
FMLA retaliation. The employee also sufficiently demonstrated that CIA’s proffered reasons for firing her were pretextual since the record suggested that CIA’s assertion that it fired her because she abandoned her job was unworthy of credence. Although the August 30 email from CIA’s attorney instructed her to contact her supervisor to return to work, it also contained two paragraphs reiterating that if she wanted to return, she must submit FMLA medical certifications. The weakness of the evidence supporting CIA’s explanation, in conjunction with the very close temporal proximity between the employee’s leave and termination, suggested that the real reason for her discharge was her much-contested attempt to take FMLA leave.
ADA claim. However, the Second Circuit refused to revive the employee’s associational disability bias claim because she failed to show that she was fired because CIA feared that her concern for her diabetic son would cause her to perform inadequately. Rather, she presented evidence that she was terminated because CIA felt she had taken too much leave to care for her sons. Thus, it did not fear that she would be “inattentive at work,” but rather that she would not be at work at all.
We'll have to wait and see how this case turns out. In the meantime, be sure to contact our Advice & Resolution team if you have any questions about denying an FMLA leave for an employee.
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