A nursing facility’s activities director got good news from the 11th Circuit Court of Appeals when that court revived his Family and Medical Leave Act lawsuit, concluding that his retaliation claim was sufficient to escape summary judgment. Of larger significance, the 11th Circuit declared for the first time what the proper method was for measuring temporal proximity in circumstantial FMLA retaliation claims, establishing that the proper measure was the gap between the last day of FMLA leave and the date of the adverse employment action.
The employer in this case was a long-term care nursing facility in Tampa. The plaintiff was the employer’s activities director, who needed surgery to repair a torn rotator cuff. The employer concluded that the director was entitled to FMLA leave and gave him 12 weeks off to have the surgery and recover.
On the day before the director’s scheduled return-to-work date, the man’s doctor concluded that he was not ready to return and needed another six weeks off work. Despite the doctor’s advice, the director asked the employer to allow him to return to work doing light-duty tasks, such as desk work and computer tasks, with others carrying out the physical tasks the director would have normally handled. The employer rejected this idea, stating that, until the director was able to return with no restrictions, he would not be reinstated.
The employer allowed the director to take another 30 days of leave. During that time, the director twice went to the Busch Gardens theme park in Tampa and also spent three days in St. Martin. The director posted pictures of his St. Martin trip onto his Facebook page.
This Caribbean trip (and the Facebook images) proved to be problematic. When the director returned to work at the end of the 30 days, armed with a fitness-for-duty certification, he was immediately suspended. Shortly thereafter, the employer terminated him, asserting that he could have returned to work sooner and, by failing to do so, had abused his FMLA leave.
The director sued the employer for FMLA retaliation. The trial court ruled in favor of the employer after the employer asked for summary judgment, but, on appeal, the director succeeded in reinstating his retaliation claim.
The appellate ruling reviving the director’s retaliation claim contains some very instructive information on the issue of causation in an FMLA retaliation case. In any circumstantial FMLA retaliation case, the employee must prove that he engaged in a protected activity, he incurred an adverse employment action, and the protected activity caused the adverse action. In this case, the appeals court rejected the trial judge’s conclusion that the director lacked evidence of causation.
An employee can establish circumstantial proof of causation by various means, one of which is timing. The 11th Circuit has clear precedent that “[c]lose temporal proximity between protected conduct and an adverse employment action is generally ‘sufficient circumstantial evidence to create a genuine issue of material fact of a causal connection.’”
One of the disagreements between these two sides’ arguments focused on how to measure this temporal proximity. The employer argued that the measure was the gap between the start of the director’s FMLA leave and the suspension and termination. The employee argued that the proper starting date for measuring this proximity was the end of his FMLA leave, rather than the start. The 11th Circuit announced, for the first time, what the proper standard was for this measure of temporal proximity, and it stated it was the gap from “the last day of an employee’s FMLA leave until the adverse employment action at issue occurs.” Here, that gap was only 31 days, which was small enough to raise at least a triable claim of retaliation.
With FMLA law, as with any legal area, the law is often evolving, whether new cases alter the law or simply clarify it. The knowledgeable Georgia FMLA attorneys at Parks, Chesin & Walbert are highly experienced and up to date on the newest developments in the law and how they can affect your situation. With each new change may come new opportunities or new challenges, about which our team can advise you in clear language that you can understand.
To speak with one of our lawyers about your case, call 404-873-8048.
More blog posts:
Employer’s Extra Demands of Worker Seeking FMLA Leave Allow Interference Case to Proceed, Atlanta Employment Attorneys Blog, March 8, 2017
The Options Tennessee Employers Have When They Detect Perceived FMLA Leave Misuse, Atlanta Employment Attorneys Blog, Nov. 2, 2016