The U.S. Family and Medical Leave Act (FMLA) entitles an eligible employee to take an unpaid leave of absence of up to 12 weeks in any given 12-month period due to the employee’s own serious health condition or to care for a parent, child or spouse with a serious health condition. Employers are required to reinstate the employee to his or her former position upon the employee’s return from FMLA leave and may not retaliate or discriminate against an employee for exercising the right to FMLA leave.  The FMLA generally applies to all employers who employ 50 or more employees within a 75-mile radius.

The 7th U.S. Circuit Court of Appeals recently held that a terminated employee had enough evidence to proceed to trial on claims that her former employer interfered with her right to reinstatement following leave taken under FMLA and retaliated against her for exercising her right to take FMLA leave.

In [Goelzer v. Sheboygan County,] WL 187567, (7th Cir. 2010) 2, Dorothy Goelzer was an administrative assistant for Sheboygan County. Her supervisor for the last seven years of her 20-year employment was Adam Payne.  In 2000 and 2001, Payne rated Goelzer well on her performance evaluations, noting that she was “rarely absent.” Goelzer also received merit pay increases for those two years. In 2002, Goelzer began to have health problems and took one month of FMLA leave.  In 2003, Goelzer took another month of FMLA leave. That year, Payne gave Goelzer a lower rating for her attendance and denied her a merit pay increase. When Goelzer disagreed, Payne wrote a memorandum commenting, “As you mentioned, you were out of the office having eye surgery in 2002 and 2003. In fact, the past two years, use of sick leave and vacation combined, you were out of the office 113 days. As the only support person in the office, this has presented challenges…”

In 2004, Goelzer took FMLA leave to care for the serious health conditions of her mother and husband. She did the same in 2005. Goelzer received a merit pay increase in 2005, but it was not as high as expected. When she inquired why the increase was not as high, Payne responded that she missed a lot of work time due to appointments with her mother.

In 2006, Goelzer learned she would need two months of FMLA for an upcoming surgery in the fall.  Four months prior to the surgery, Goezler presented a certified statement from her doctor for the time off.  Thereafter, the county converted Payne’s position to county administrator.  Under county rules, Payne could now hire and terminate certain employees, including Goelzer, without the approval of the county board of supervisors.  Two weeks before Goelzer was to commence FMLA leave for her surgery, Payne discharged her with an effective date at the end of her scheduled leave. Payne placed Goelzer on paid leave until that date so that she would receive the FMLA leave that was previously approved.  At the time, Goelzer used 67 hours of FMLA leave in 2006 and was scheduled to take an additional 328 hours related to her surgery.

Goelzer filed a lawsuit against the county alleging that it interfered with her right to reinstatement following an FMLA protected leave and retaliated against her for exercising her FMLA leave rights. The county filed a motion for summary judgment and the district court ruled in favor of the county.  The court of appeals reversed the district court’s ruling and held that Goelzer had sufficient evidence to proceed to trial before a jury.

To establish a claim for interference under FMLA, an employee must show that: she was eligible for FMLA’s protections;  her employer was covered by FMLA;  she was entitled to take leave under FMLA;  she provided sufficient notice of her intent to take leave; and her employer denied her FMLA benefits to which she was entitled.  There was no dispute that Goelzer satisfied the first four elements. The only issue was whether the county fired her to prevent her from exercising her right to reinstatement to her position. 

To establish a claim for retaliation under FMLA, the employee need not prove that retaliation was the only reason for her termination, but only that the protected conduct (i.e. requesting and taking FMLA leave) was simply a substantial or motivating factor in the employer’s decision.  Thus, Goelzer had to present evidence that her employer took a materially adverse action against her because of her protected activity.  Although the facts supporting a claim for interference with the exercise of FMLA rights may often be the same facts to supporting a claim for retaliation for exercising FMLA rights, the difference between retaliation and interference is that retaliation requires proof of discriminatory or retaliatory intent while interference requires only proof that the employer denied the employee FMLA entitlements.

The county argued that Goelzer would have been fired regardless of whether she took the leave. In support of this argument, Payne claimed that Goelzer’s skills were lacking and that he was looking for an assistant with a larger skill set.  The court, however, found that a jury could be swayed by comments Payne made that suggested frustration with Goelzer’s use of FMLA leave, including comments in her performance evaluation regarding the number of sick leave days she utilized, denying her merit increases, and scoring her lower on attendance in those years where she utilized FMLA leave.

The court also found persuasive the 2004 memorandum issued by Payne in response to Goelzer’s objections to her sub-par performance evaluation in which Payne stated that her absences were presenting challenges in the office. Also, in Goelzer’s January 2006 performance evaluation, Payne stated, “On occasion, I have been concerned with office and phone coverage. Dorothy had numerous appointments the past year and needs to be more cognitive of the time she is away from her desk or corresponding with others on non-related work activities.” The court held that a jury could view these comments and actions as evidence that Goelzer lost her job because she exercised her right to take FMLA leave.

Although the county maintained that Payne had concerns about Goelzer’s poor skill set, he had consistently given her favorable performance evaluations in this area.  A fact finder could find that, if Payne had serious problems with Goelzer’s performance, he could have asked the county board of supervisors to terminate her employment before he received the promotion. Although he claimed he wanted an assistant with a larger skill set, there was no documentation before Goelzer’s termination evidencing a plan to restructure her position.  Also suspicious was the timing of her termination, just two weeks before the start of her FMLA leave.

All of these facts combined raised triable issues of fact for Goelzer to proceed to trial before a jury to determine whether the county interfered with her right to reinstatement after taking an FMLA leave and whether the county retaliated against her for taking or requesting FMLA leave.

There are several things employers can learn from this case in order to protect themselves from claims of interference or retaliation under FMLA. First, be truthful in performance evaluations.   In this case, the employer gave the employee good performance evaluations in the area of skills and performance, and it was only after the employee filed suit that the employer claimed the employee was terminated because of her lack of skills.  Had the employer properly documented any actual lack of skills or poor performance, it would have been easier to show that the reasons for her termination were legitimate.

Second, employers should [not] mark an employee down in performance evaluations because of FMLA leave or make comments that the employee’s job performance is poor due to FMLA absences.  FMLA absences should also not count towards an employer’s excessive absenteeism policy.

Lastly, supervisors should not complain about an employee’s FMLA absences. In this case, the employee’s absences were frustrating to her supervisor, but the verbal comments about how the employee’s absences were annoying or that she needed to be at work more when the employer knew the employee’s absences were for FMLA protected reasons only helped to support the employee’s claims of interference and retaliation.

Frances Rogers is an attorney with Liebert Cassidy Whitmore providing representation to California public and private employers in all aspects of employment law. She also practices education law for various schools and community colleges throughout the State.