Court upholds claim charging FMLA retaliation
Eunice Hunter was a custodian with Valley View Local Schools, when she was injured in a car accident. Between June of 2003 and June of 2005, she underwent a total of four surgeries on her arm, foot and knee, spaced several months apart and with brief recovery periods for rehabilitation . After each surgery--which she typically scheduled for summer months, her doctors ordered a reduced work schedule and placed restrictions on her activities. In August of 2005, her doctors placed permanent restrictions on Eunice, including a lifting limit of 10 pounds and prohibiting climbing of stairs or ladders. She was immediately placed on a one-year unpaid medical leave for her "inability to perform your job and excessive absenteeism for the past four (4) years." She filed suit for retaliation under the Family Medical Leave Act (FMLA), but the trial court dismissed her claim. The Sixth Circuit reversed.
The Court gave a thorough explanation of the FMLA and noted that historically it has been interpreted by analogy to Title VII actions. Under the FMLA, an "eligible employee" is entitled to up to 12 weeks of leave per year in response to a "serious health condition" that prevents the employee from working. He or she is entitled to be restored to the prior position or an equivalent position on return from leave and may not be punished for utilizing the leave. Nevertheless, if the employee is "unable to perform an essential function" of the job at the end of the FMLA leave, he or she is not entitled to be re-hired.
The school system cited the latter provision in explaining its action in terminating Eunice, and there was a basis for this claim in the doctors' permanent weight and activity restrictions. As Hunter's attorneys pointed out, however, the school expressly terminated Hunter for excessive absences--nearly all under the FMLA--and in her deposition testimony, the Superintendent confirmed that Hunter's attendance record was the primary basis for firing her. Thus, the Sixth Circuit was required to decide whether an employee may be fired in retaliation for FMLA leave if the employer may have had a different, legitimate basis for terminating her.
The Supreme Court has recently re-analyzed Title VII actions to eliminate "mixed-motive" cases. In Gross v. FBI Financial Services, the Court held that the Age Discrimination in Employment Act does not authorize an employee's claim for an adverse employment action if the decision was based on both permissible and impermissible (disriminatory) motives. The Sixth Circuit then looked to the legislative history of the FMLA to determine whether an employee should be entitled to sue where the employer has both an illegal and a legal motive for terminating an employee.
Relying on the clear language in the legislative history of the federal act, the court concluded that retaliating against an employee for exercising her rights under FMLA is explicitly prohibited. Since the school system acknowledged that its motive for terminating Hunter was an illegal retaliation for FMLA-protected activity, the burden shifted to the school to prove that "it would have made the same decision [to terminate her] absent the impermissible motive." Noting that the superintendent's testimony "completely undermines" the school's claim that it was not influenced by a motive to retaliate for FMLA-protected behavior, the Sixth Circuit returned the case to the lower court for a jury decision.
Hunter and her attorneys will still face the daunting obstacle of proving that her physician's restricitions did not preclude her from performing all of her material job duties, however, the school will have to prove to a jury that the termination was not motivated by FMLA retaliation. Neither side in this trial will have an easy go of it.