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Here are some of the more interesting developments on the Family and Medical Leave Act front.

Pay Reduction Following Return From Leave. In Harris v. Metropolitan Gov’t of Nashville, the U.S. Court of Appeals for the Sixth Circuit reversed a judgment entered in favor of an employee who claimed that his FMLA rights had been violated when a portion of his compensation was reduced following his return from FMLA leave. Harris was a teacher who received a supplement to his teaching salary for coaching basketball. He took FMLA leave due to various health issues, and the basketball team was coached by others in his absence. Roughly half of the basketball season was over when Harris returned. Although he was reinstated as head coach, the school took the position that his coaching supplement would not be paid for the period he was not coaching due to his leave. The trial court found that this reduction violated his FMLA rights. The appeals court disagreed, finding that there was a legitimate reason unrelated to his exercise of FMLA rights: Harris was under a coaching contract for the entire school year, which provided that he would have to complete the season to receive the full supplement, and that he would be required to pay back any supplement not earned.

Faulty Documentation Undermines Defense. In Cutcher v. K-Mart Corp., the U.S. Court of Appeals for the Sixth Circuit reversed summary judgment in favor of the employer where Cutcher claimed her reduction-in-force termination violated her FMLA rights. Cutcher was selected for termination, as part of a nationwide RIF, while she was on FMLA leave. Individuals were selected based on a score that was determined by using the same performance indicator categories as the employer’s annual performance evaluations. Cutcher’s RIF score, however, was significantly lower than her most recent “exceeds expectations” performance evaluation. In addition, the form on which her RIF score had been calculated included a notation in the comments section that read: “Poor customer and associate relations. LOA.” Management denied that Cutcher’s leave status was considered, and claimed that the “LOA” notation only meant that she would be terminated at a different time than the other impacted employees (i.e., after her return from leave). The Sixth Circuit held that an issue of fact existed, precluding summary judgment for the employer, because a jury could reject the employer’s explanation of the “LOA” notation as well as its rationalization of her lower RIF score since there had been no prior documented performance complaints.

Count Hours Carefully For FMLA Eligibility. In Pirant v. U.S. Postal Service, the U.S. Court of Appeals for the Seventh Circuit confirmed that the statutorily required 1,250 hours during the 12-month period preceding leave is an absolute requirement for eligibility. Pirant’s uncontested payroll records confirmed that she was 1.2 hours shy of the required 1,250 hours. Although the Postal Service had initially conceded that Pirant was eligible for FMLA leave, it later obtained leave to file an amended answer denying eligibility. The appeals court found that she fell short, and also held that Pirant could not claim she had wrongfully been given a two-hour suspension during the year, because she had not timely pursued her right to challenge the suspension and was consequently unable to have those hours restored for FMLA eligibility purposes.

Timing Of Termination In Relation To FMLA Leave Can Be Dicey. In DeFreitas v. Horizon Investment Management Corp., the U.S. Court of Appeals for the Tenth Circuit reversed summary judgment in favor of the employer in a case in which the employer had discovered and terminated the employee for various performance deficiencies while she was on FMLA leave recovering from a hysterectomy. The appellate court found there was sufficient evidence to raise a jury question whether the employer terminated her as a result of her FMLA leave because: (1) the termination occurred just one day after she told her employer that she would need to take six weeks off; (2) the employer told a prospective employer that the reason the employee left was due to “illness”; and (3) the performance deficiencies were identified only after she began her leave. (Of course, some genuine deficiencies and defalcations can be caught only when an employee is gone.)

In contrast, in Long v. Teachers’ Retirement System, the U.S. Court of Appeals for the Seventh Circuit affirmed summary judgment for an employer who had terminated an employee for poor performance and absenteeism occurring prior to the request for FMLA leave, even though the termination occurred during the leave. The facts that defeated Long’s retaliation claim included the employer’s documentation of the performance issues three months prior to Long’s request for leave. Consequently, the performance evaluations did not provide circumstantial evidence of retaliatory intent.

Shannon V. Loverich