Labor and Employment Law
| Jurisdiction | United States,Federal |
| Publication year | 2018 |
| Citation | Vol. 69 No. 4 |
Labor and Employment Law
W. Jonathan Martin II
Patricia-Anne Upson
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This Article surveys the United States Court of Appeals for the Eleventh Circuit precedent from January 1, 2017 to December 31, 2017. This Article focuses on case law concerning laws enforced by the United States Department of Labor and the National Labor Relations Board.1 The following is a discussion of those opinions.2
The Supreme Court of the United States did not issue any decisions affecting labor and employment laws enforced by the Department of Labor and the National Labor Relations Board. However, the Court heard oral arguments on October 2, 2017, for Ernst & Young LLP v. Morris,3 NLRB v. Murphy Oil USA, Inc.,4 and Epic Systems Corp. v.
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Lewis5 (consolidated on January 13, 2017) that could alter the landscape of employee-employer arbitration agreements.6 The National Labor Relations Board took issue with arbitration agreements that mandate that employees waive their right to bring claims collectively; rather, the employees must bring those claims on an individual basis.7 It remains to be seen how the Supreme Court Justices will side on this pivotal labor and employment issue.
The Family Medical Leave Act (FMLA)8 prohibits employers from interfering with, restraining, or denying the exercise of or the attempt to exercise any right provided under the FMLA.9 The courts have recognized two claims from aggrieved employees, retaliation and interference claims.10 Under the FMLA, employees are entitled to take twelve weeks of leave for their own serious health conditions or the serious health conditions of family members and be reinstated upon their return from leave.11 For interference claims, employees must prove they were denied one of these benefits.12 However, the denial of a benefit is not the only way employers can interfere with the right of an employee; an employer may also be responsible for interference where it discourages its employees from using the leave to which they are entitled.13 In addition to proving there was interference, an employee must "demonstrate some harm remediable by either 'damages' or 'equitable relief.'"14
As for retaliation, an employee must prove that the employer "intentionally discriminated against her for having exercised an FMLA right."15 This can be shown either through direct or circumstantial
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evidence.16 The courts will apply the three-part burden shifting analysis outlined in McDonnell Douglas Corp. v. Green,17 where there is only circumstantial evidence.18 First, the plaintiff must show the three elements of a prima facie case: "(1) [H]e engaged in statutorily protected activity; (2) he suffered an adverse employment decision; and (3) the decision was causally related to the protected activity."19 If the plaintiff can make out a prima facie case, then it is up to the defendant-employer to articulate a legitimate, non-retaliatory reason for the adverse action.20 If the employer can do that, then the burden shifts back to the plaintiff to show pretext or that the proffered reason is not true.21
In Holton v. First Coast Service Options, Inc.,22 the Eleventh Circuit affirmed that the plaintiff's FMLA rights were neither interfered with, nor was she retaliated against for asserting those rights.23 The plaintiff requested and was approved for FMLA leave to treat back pain. After two months of FLMA leave, the plaintiff returned to work and informed First Coast that her chiropractor advised that she should only work for four hours per day for two weeks. Human resources informed the plaintiff she needed a letter from a physician to return on a reduced schedule, and if she returned on a full schedule, she would be expected to fulfill all of her job duties. Otherwise, the plaintiff was free to apply for other positions.24
The next day, the plaintiff contacted the Department of Labor (DOL), and as a result, the DOL contacted First Coast to inform them that the note from the chiropractor should be sufficient for the plaintiff to return to work on a reduced schedule. First Coast attempted to contact the plaintiff to inform her she could return to work, but they were unable to reach her, and she never returned to work. As a result, she was terminated. The plaintiff filed a claim for FMLA interference and retaliation along with a claim under the Americans with Disabilities Act25 for failure to provide a reasonable accommodation. The United States District Court for the Middle District of Florida granted summary judgment on all claims. The plaintiff appealed.26
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The Eleventh Circuit affirmed.27 As to the plaintiff's FMLA claims, the court held that there was no interference because the plaintiff sought to return to work "on a modified basis, which is not a right protected by the FMLA."28 The FMLA only requires that employers allow an employee to return to their original position or to an equivalent position held by the employee when the leave commenced.29 Since First Coast made this opportunity available for the plaintiff, it did not interfere with her rights under the FMLA.30 Likewise, there was no retaliation by First Coast because it presented a legitimate, non-discriminatory reason for why it terminated the plaintiff—she did not report for work.31 To overcome this legitimate, non-discriminatory reason, the plaintiff would need to present evidence of pretext, which tended to show that the reasons presented by the employer were not the truth.32 Here, the plaintiff failed to present any such evidence, and the "[c]ourts will not second-guess an employer's proffered reason, so long as it is one that might motivate a reasonable employer."33 Therefore, the defendant was entitled to summary judgment on all claims.34
Conversely, in Diamond v. Hospice of Florida Keys, Inc.,35 the Eleventh Circuit held that summary judgment was inappropriate as to the claims of FMLA interference and retaliation because there was evidence that the employer discouraged the plaintiff from using FMLA and evidence of pretext as related to the plaintiff's termination.36 The plaintiff, Jill Diamond, worked as a clinical social worker for Hospice of Florida Keys. During her employment, she would periodically take FMLA leave to care for her elderly parents. In March and April of 2014, the plaintiff had to take unforeseeable FMLA leave to care for her mother. The plaintiff submitted the necessary paperwork from her mother's physician related to the FMLA approved leave. Hospice informed the plaintiff that since the leave was unforeseeable, she would also need to submit travel receipts or similar documentation. The plaintiff questioned why she needed to provide this additional information. After approving more FMLA days for the plaintiff, Hospice
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told her she might want to conserve her remaining leave because it was running low, which caused the plaintiff to cancel two of the days she planned to use to take care of her mother. Five days after the plaintiff questioned the need for additional documentation, she was terminated. Hospice cited poor job performance as the reason for termination, which included not updating her plan notes before leaving for the day and leaving the building without permission during a state survey without authorization. The plaintiff filed a claim for FMLA interference and retaliation, and the United States District Court for the Southern District of Florida granted summary judgment for the defendant on both claims.37
The Eleventh Circuit overturned the district court's grant of summary judgment and remanded the case for trial on the merits.38 As to the plaintiff's interference claim, the court said that retaliation encompasses more than just the failure to allow an employee to take the leave and return to their position when the leave concludes; rather, the employer also may not discourage an employee from using the leave.39 This is important because a plaintiff need not show that they were denied leave or lost wages to prove interference but rather may rely on the fact leave was discouraged. The court held that there was sufficient evidence for a jury to conclude that Hospice may have discouraged the plaintiff from taking her leave, including them telling her that her continued absences were impacting the care of patients, requiring her to provide more documentation than necessary under the regulations, or encouraging her to save her leave.40
As to the retaliation claim, the court held that the plaintiff presented ample evidence of pretext.41 The plaintiff pointed to a number of negative comments about the plaintiff's use of leave, which included comments claiming the amount of leave the plaintiff took was affecting the quality of patient care.42 Therefore, a reasonable jury could conclude that Hospice both interfered with the plaintiff's leave and retaliated against her for using that leave.43
The "causation" element of a prima facie case of FMLA retaliation may be inferred by temporal proximity between the protected act and the
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adverse action.44 In this regard, the Eleventh Circuit held in Jones v. Gulf Coast Healthcare of Delaware, LLC,45 that the temporal proximity between protected activity and adverse employment action for FMLA retaliation should be determined using the last day of the employee's FMLA leave, not the first.46 The plaintiff, Rodney Jones, was the Activities Director at a long-term health care facility where he was required to perform both desk and active work. The plaintiff went out on FMLA leave to treat a torn rotator cuff, and on the last day of his FMLA leave, he presented his employer with a doctor's note stating he was restricted to light duty for approximately six weeks. However, he was not allowed to return on light duty and was told by his supervisor he needed an unqualified fitness...
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