Terminating employees shortly after FMLA leave may spur legal troubles
In Jones v. Gulf Coast Health Care of Delaware, LLC, Rodney Jones brought suit against his former employer, Accentia Health and Rehabilitation Center of Tampa Bay, a long-term-care nursing facility, in Florida state court. Jones alleged that in suspending and later terminating him, Accentia interfered with the exercise of his rights under the Family and Medical Leave Act and retaliated against him for asserting those rights. Accentia removed the action to the United States District Court for the Middle District of Florida, and moved for summary judgment on both of Jones’s claims.
Jones, who was activities director for Accentia until he was fired in 2015, initially was approved for 12 weeks of FMLA leave for shoulder surgery. The day before Jones was scheduled to return to work, his doctor reported that he would not be able to return to work and resume regular physical activity for an additional seven weeks. The doctor’s report also stated that Jones needed to continue physical therapy.
Jones wished to return to his job and asked his supervisor to allow him to return on light duty. His supervisor, however, refused to reinstate Jones until he submitted an unqualified fitness-for-duty certification. Thus, Jones did not ask his doctor for a light-duty certification and instead requested additional time off from Accentia. He was granted another 30 days of non-FMLA medical leave in order to complete his physical therapy.
While on non-FMLA medical leave, Jones twice visited Busch Gardens and went on a trip to St. Martin. Jones sent pictures of the trip to colleagues at Accentia and posted some on Facebook, including pictures of him on the beach and in the ocean.
Jones returned to work two weeks before the date estimated by his doctor and met with his supervisor at the beginning of the day. During the meeting, Jones presented his supervisor with a fitness-for-duty certification confirming that he could immediately resume his job. His supervisor responded by showing Jones the photos from his Facebook page.
Jones was subsequently suspended and given an opportunity to respond in a letter, but he failed to do so and his employment was terminated.
Court actions and causation
Jones brought suit against Accentia, claiming that Accentia interfered with the exercise of his FMLA rights and retaliated against him for asserting those rights. In February 2016, the district court granted Accentia’s motion for summary judgment, holding that Jones had failed to establish a prima facie case of either interference or retaliation under the FMLA. Jones appealed.
The 11th Circuit affirmed the judgment of the district court with respect to Jones’s interference claim, but reversed the judgment with respect to his retaliation claim.
The 11th Circuit concluded there was no interference because Jones “likely” waived his FMLA right to reinstatement by taking an additional 30 days of leave, he should have submitted a fitness-for-duty certification by the end of his FMLA leave and there was no evidence that Accentia did not implement its FMLA certification policy in a uniform fashion.
As to retaliation, the 11th Circuit reversed, ruling that the short amount of time between Jones’ return from leave and his termination created a genuine issue of fact as to causation. The court also concluded there was a factual issue concerning pretext because Accentia offered shifting reasons for the termination.
Jones was told that he was being fired because he engaged in activities that demonstrated he could have returned to work earlier. However, during litigation, Accentia offered additional and inconsistent reasons for the termination.
Retaliation claims continue to permeate employment litigation, and often are difficult to defeat with a pretrial motion. When employees go out on medical leave, employers often uncover inefficiencies and performance issues that were not obvious before the leave. Employers facing such circumstances may want to consider:
- Waiting a period of time after the employee’s return in order to avoid an inference of causation
- Placing an employee on a performance improvement plan or other interim step before termination
- When providing reasons for a termination, using broad terms that encompass various issues
- Documenting the reasons for a termination in an internal document that is not shared with the employee. If you are working with counsel, mark this document as privileged.
- Training managers, HR individuals and other employees who handle leave issues not to make any comments about the timing of a leave or whether a leave will be difficult for the employer to manage.
Employers must remember that even a well-planned and justified termination could raise issues that would prevent quick resolution in court.