A federal appeals court based in Atlanta recently issued an important opinion dealing with how claims for retaliation under the Family Medical Leave Act (FMLA) are analyzed. The court considered how to determine the relevant dates when an employee relies on temporal proximity to show that the adverse employment action suffered was caused by the exercise of FMLA rights. The opinion also deals with an employee’s use of social media and the employer’s subsequent reliance on the employee’s social media activity to support the adverse action taken.
The employee worked as an activities director for a long-term-care nursing facility. The employee was hired in 2004. In addition to “desk work,” the employee’s position included regular physical tasks such as unloading vehicles, shopping for supplies, and traveling around the community for outreach programs.
In 2014, the employee learned he needed shoulder surgery to repair a torn rotator cuff. The employer granted the employee FMLA leave from September 26, 2014 through December 18, 2014 so that he could have the surgery and then fully recover. Although the leave was granted, the employee apparently received some indications that his superiors were not pleased with the timing of the leave because the employee would not be present for an important work task during the period the employee was out on FMLA leave. On December 18, 2014, the employee’s doctor reported to the employer that the employee could not return to work and resume physical activity until February 1, 2015.
Despite the doctor’s report, the employee wanted to return to work on December 19, 2014, albeit on light duty status only performing the non-physical aspects of his job such as desk duty and computer work. The employee’s supervisor refused to reinstate the employee until he could submit an unqualified fitness-for-duty certification. The employee’s doctor did not issue such certification prior to the end of the employee’s FMLA leave.
The employee requested an additional 30 days of leave. This additional leave was non-FMLA medical leave. During this 30 days of additional leave, the employee twice visited a theme park in Tampa Bay, and also took a trip to St. Martin. The employee posted pictures from these trips on his Facebook page. In these pictures, the employee could be seen on the beach, posing by a boat wreck, and in the ocean.
The employee returned to work after the expiration of the 30 days of leave. The morning of his return, the employee gave his supervisor a fitness-for-duty certification confirming that he could resume his job as activities director. In response, the supervisor showed the employee the pictures from the employee’s Facebook page taken during the employee’s recent travels. When the employee asked how the supervisor had obtained the pictures, the supervisor replied that the employee’s “wonderful staff” had “ratted” on the employee. The supervisor then stated that “corporate” believed that the Facebook pictures were evidence that the employee was well enough to have returned to work earlier than he did. The employee was suspended pending an investigation into the matter and then terminated. At the time he was actually terminated, the stated reason for his termination was violation of the employer’s social media policy.
The employee filed a lawsuit against the employer. The employee claimed the employer interfered with the employee’s exercise of his FMLA rights and also retaliated against the employee for the exercise of those FMLA rights. (This article will focus on the employee’s retaliation claim.) The employer prevailed against the employee on both his FMLA interference and retaliation claims at the trial court level. The employee then filed an appeal.
On appeal, after agreeing with the trial court’s decision with regard to the employee’s interference claim, the appeals court analyzed the employee’s retaliation claim. At the outset of the analysis, the court found that in order to succeed on his retaliation claim, the employee had to demonstrate that his employer “intentionally discriminated against him in the form of an adverse employment action for having exercised an FMLA right.” To prove the termination was caused by his taking the FMLA leave the employee pointed to the temporal proximity between his FMLA leave and subsequent termination.
An interesting legal question arose during this case regarding the temporal proximity issue. The question was: when considering the temporal proximity between the exercise of FMLA rights and a subsequent adverse employment action, should the court use the date the FMLA leave began or the date the FMLA leave ended? This is important because courts have held that if the gap between the exercise of FMLA rights and the adverse employment action exceeds four months, that temporal proximity standing alone is insufficient to prove that the adverse employment action was caused by the exercise of FMLA rights. (Proving that the adverse action was caused by the exercise of the FMLA rights is a necessary component of a FMLA retaliation claim.) The issue was critical to the case because if the court here used the date the employee began his FMLA leave, the time between that date and his termination exceeded four months. On the other hand, if the court used the date the employee’s FMLA leave ended, then it would be within the four-month period. The court ultimately decided that the later date should be used in cases like this because otherwise employees who take the full 12 weeks of FMLA leave would be disadvantaged in pursing retaliation claims.
Turning back the merits of the case, the appeals court ultimately found that there was sufficient evidence to support the employee’s argument that the employer’s stated reason for terminating him (violation of the employer’s social media policy) was pretext for discrimination. Primarily, the court found that there was evidence of pretext because during the period in which the employee was suspended, the social media policy was not mentioned to him.
This case delivers an important lesson to employers: employers should very carefully consider adverse employment actions against employees returning from FMLA leave—especially for at least four months following the employee’s return. While such adverse action may of course be necessary, be sure the adverse action is justified, in accordance with company policies and procedures (not just as written, but also as currently applied), and fully documented.