A registered nurse for Bio-Medical Applications of Louisiana (BMA) who took time off under the Family and Medical Leave Act (FMLA) to care for her son can proceed with her FMLA retaliation claim based on her firing for unspecified absences and not meeting allegedly arbitrary deadlines, the 5th U.S. Circuit Court of Appeals ruled.
The plaintiff began working for BMA in January 1999 as a staff registered nurse and rose through the ranks over the next 17 years. She became clinic manager in 2008, a position she held until she was fired in August 2017. Her supervisor described her as a good manager, and she received satisfactory or commendable ratings on every evaluation through 2015.
A series of personal tragedies forced the plaintiff to take FMLA leave in 2016. She experienced a fire in her home and took one week of leave. Then her son was hospitalized, prompting her to extend her leave for a month.
The plaintiff voluntarily continued to perform some job responsibilities while on leave, and she told her team that she would still be available by text message or phone call if needed. She communicated at regular intervals with her supervisor and other colleagues regarding various work-related issues.
After she returned, her supervisor prepared a corrective action form, claiming that he had received reports from co-workers that the plaintiff was not at work before she took leave, several months earlier. He issued her the disciplinary form that week. It did not list specific dates or times for her purported absences, and the supervisor was unable to recall them later.
A few weeks later, the supervisor indicated that the plaintiff's attendance was improving. But after several months, he issued her a final written warning describing three specific incidents of absenteeism. One was an instance in which she left her phone on her desk while in a different part of the facility. Another was a day she called in sick but did not speak to her supervisor. A third occurred when some employees texted her but could not locate her.
The plaintiff refused to sign the disciplinary forms and stated that she believed she was being written up as part of her return from the leave of absence. In March 2017, BMA gave her a performance evaluation with an overall rating of "needs improvement." It described her alleged attendance issues and stated that she had made improvements in 2017.
In early 2017, a government contractor named Network 13 consulted with BMA about participating in a "catheter tracking" project. The plaintiff was asked to submit a monthly tracking report to Network 13's quality improvement director by the fifth day of each month. The plaintiff understood the deadline to be merely a suggested date and regularly submitted her report after that date. The director sent her e-mail reminders after the fifth day of March, May, June and July. On July 13, BMA's vice president of quality and the plaintiff's supervisor tried to reach her but were unsuccessful. The plaintiff claimed that she was at a manager training meeting.
The plaintiff's supervisor met with his supervisor and an HR professional and decided to fire the plaintiff. The termination form referenced the prior warnings for work attendance, the inability to reach her on July 13 and the late catheter tracking reports.
The plaintiff sued BMA for interference and retaliation under the FMLA, along with other claims. BMA moved for summary judgment on all of the claims, which was granted by the district court.
The plaintiff appealed. She asserted that her FMLA leave was interfered with because BMA required her to work while on leave. The 5th Circuit, however, determined that the plaintiff had voluntarily agreed to do certain tasks, which did not constitute interference.
Concerning her FMLA retaliation claim, the district court noted that, while the poor attendance rationale might have been pretextual, the late reports supported dismissal of the claim. The 5th Circuit, however, reasoned that BMA relied more heavily on the poor attendance rationale in its disciplinary memoranda and did not give the plaintiff a warning about the late reports before firing her. BMA had not shown that the lateness of the reports had any actual consequence.
The court thus reversed the dismissal of the FMLA retaliation claim and ordered it set for trial.
Lindsey v. Bio-Medical Applications of Louisiana LLC, 5th Cir., No. 20-30289 (Aug. 16, 2021).
Professional Pointer: Employers must take pains to document alleged absences and demonstrate the significance of other performance issues. Without evidence that a performance issue had an actual impact on the workplace, an employee may be able to show the issue was pretextual.
Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.
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