Taking Leave Under FMLA Leads to Retaliatory Firing

Jeanne Wallner worked as an options trader for the financial brokerage firm Hilliard Lyons for 27 years.  Sometime between 2003-2007, Wallner began frequently arriving late to work.  Her boss spoke to her about this, but never documented it in her performance appraisals. In 2008, the boss discussed Wallner’s tardiness with his supervisor, who instructed the boss that if it continued, he should proceed in accordance with Hilliard’s disciplinary policy.  

The boss did not take any disciplinary action against Wallner until 2009, when he gave her a written warning for “chronic tardiness and abuse of unscheduled absences.” The “unscheduled absence” to which he referred happened earlier that month in connection with Wallner’s plan to go on vacation. Wallner had planned for a 7 pm flight, but the night before her planned departure, the airline rescheduled her departure for 7 am. So she called her boss and requested the next day off, and he granted her request.  

According to the boss, however, since Wallner called him after 5 pm to ask to take the next day off, that was an unscheduled same day request. 

Six months later, in June 2009, Wallner requested leave under the Family and Medical Leave Act in order to have knee-replacement surgery. She submitted her doctor’s letter, stating that Wallner would be unable to work for two months, with a date of return to work of Oct. 11, 2009.  Hilliard approved this two month period of leave. 

During Wallner’s FMLA leave, there was confusion at Hilliard regarding when Wallner was planning on returning to work. While on FMLA, the employer placed Wallner on short-term disability through the policy it had in place with its insurance carrier.  The carrier erroneously calculated Wallner’s return to work date as Sept. 22 rather than Oct. 11. The Hilliard human resources manager mistakenly believed that Wallner would be required to return to work on that date. 

As a result, on Sept. 15, the HR manager called Wallner and ordered her back to work on Sept. 22. Wallner, who was still convalescing from surgery, tried to explain to the HR manager the difference between short-term disability and FMLA leave and that she could not return to work until her doctor cleared her to do so. The HR manager nevertheless insisted that Wallner needed to return on September 22. Courtesies degenerated, and Wallner’s husband, who had been listening to the exchange in the background, began shouting profanities that the HR manager could hear over the phone.  

The disability carrier then changed the end of Wallner’s short-term disability to Oct. 1, which was still not the Oct. 11 date specified by Wallner’s doctor.  So the human resources manager again called Wallner and notified her that she must return to work on Oct. 2. But Wallner wanted to await her doctor’s instructions at her next appointment, scheduled for Oct. 5, so she did not return to work on Oct. 2.   On Oct. 5, when her doctor cleared her to return to work, she contacted Hilliard Lyons with the news that she would be back at work the next day.

Upon her return to work on Oct. 6, Wallner received what was styled a “final” written warning  for her behavior during the September 15 phone call with the human resources manager and for purportedly failing to stay in contact with Hilliard Lyons afterwards. Although the warning was called “final,” Wallner had not received any intermediate warning for her behavior, as was required by company policy. Among other things, the warning stated that “[a]ny further unscheduled absences or tardiness will be subject to further disciplinary action up to and including termination.”

Nine days later, Hilliard Lyons fired Wallner for tardiness and absenteeism.  Unbeknownst to Wallner, starting on the day she had returned to work, the boss had been keeping records on the time of her arrival each day. Arrival was required at 8 am, and the records showed that on five days following her return to work, she arrived a few minutes late: specifically, at 8:05, 8:02, 8:06, 8:09, and 8:05 a.m.  For one of the 8:05 days, it later was proven with video footage that Wallner had actually arrived at 8:02:52 on that day.  

The boss later testified that “to be five minutes late is not necessarily a swing factor,” but that “five to 15 minutes late consistently when it affects other employees is a major problem.”  He  compiled a “document of deficiencies” that he indicated “were basically the reasons” for Wallner’s termination. It stated that Wallner was “persistently late (5-15 minutes) even in view of repeated warnings,” which “ created a morale problem within the department.”  It also stated:

She would occasionally call in the morning before work to inform us that she would be absent from work that day. Unscheduled absences were not permit[t]ed… She had a hip replacement. I believe there was a standard allotment for recuperation of four (4) weeks. However, in case it was required an additional two (2) weeks could be allowed in case it was necessary. There was never any communication from her, to my knowledge, as to when she would return to work…An accumulation of deficiencies became intolerable.

The boss later indicated that the “accumulation of deficiencies” referenced at the document’s conclusion referred to “the ones that are listed in [the] document.”

Wallner filed suit under the FMLA, alleging that Hilliard interfered with her entitlement to FMLA leave, and retaliated against her for having taken that leave.  29 U.S.C. § 2615(a)(1) and (2). FMLA regulations provide that “employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions . . .,” 29 C.F.R. § 825.220(c).

In opposition to Hilliard’s Motion for Summary Judgment, Wallner argued that the reasons given by Hilliard for terminating her were not the real reasons, and that if they were, they were insufficient to warrant her termination. Pointing to the boss’s statement that the reasons set forth in his memorandum were “basically the reasons” that Wallner was terminated, she contended that because the memorandum mentioned Wallner’s surgery and consequent leave of absence, she was terminated in retaliation for having taken FMLA leave.   She noted that she had been tardy numerous times in the past without being terminated, her tardiness had never been documented in her Performance Appraisals, and her tardiness did not affect the operation of her department.

However, the District Court disagreed, and granted Hilliard’s Motion for Summary Judgment.    Wallner v. Hilliard Lyons, No. 3:11-CV-00359-CRSUnited States District Court, W.D. Kentucky, Louisville (November 4, 2013).

In an unpublished decision, the US Court of Appeals for the 6th Circuit reversed. Wallner v. Hilliard LyonsNo. 13-6548 (6th Cir. Oct. 31, 2014).  

The Court analyzed the case under a “mixed-motive” theory.  In other words, the FMLA prohibits an employer from using an employee’s exercise of FMLA rights as “a negative factor” against the employee when making an employment decision. 29 C.F.R. § 825.220(c)).   The FMLA, like Title VII, authorizes claims in which an employer bases an employment decision on both permissible and impermissible factors.”   If the plaintiff has presented evidence to establish that her exercise of her FMLA rights “played a motivating part in an employment decision,” then the defendant may avoid liability “only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken [the plaintiff’s exercise of her rights] into account.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 173-74 (2009).

The Court found that Wallner presented sufficient circumstantial evidence of retaliation to forestall summary judgment on her claim.  It noted that a reasonable jury could find that the decision to terminate Wallner did not depend upon her tardiness alone. The factors it considered persuasive were the short nine-day period between the date Wallner returned to work and the date Hilliard fired her, the boss’s memo mentioning her taking FMLA in the “document of deficiencies,” the boss’s testimony that he was irritated by Wallner’s constantly changing return-to-work date, which prompted him to be “suspicious” that she would not return from leave when she allegedly was required to.  

The court also noted that this suspicion was engendered by Hilliard Lyons’s own conduct, when the HR manager gave the boss several erroneous return-to-work dates without ever notifying him that these changing dates were the result of her error, not Wallner’s. Further, Hilliard falsely accused Wallner of failing to inform them of her return to work date.  She was in fact only required to report her “status and intention to return to work,” and there is no dispute that Wallner informed Hilliard Lyons as soon as her status changed—i.e., when her doctor cleared her for a return to work.

In sum:

…the document could reasonably be interpreted by a jury as an admission by (the boss) that Wallner was terminated partially because of the fact that she took FMLA leave, not merely because she failed to communicate her return date to him. On its face, the document is easily susceptible to the interpretation that Wallner’s FMLA-related absence was one of four or five reasons motivating her discharge, and it certainly does not support Hilliard Lyons’s argument that tardiness was the sole factor contemplated by (the boss) when he decided to fire Wallner. The document is, on its own, fairly significant evidence that more went into Hilliard Lyons’s decision to terminate Wallner than solely her continuance of a years-long trend of tardiness.

Slip Opinion.  Further, with regard to Hilliard’s contention that Wallner’s lateness in the mornings when she returned from leave justified her termination, the Court noted that the boss himself testified that “to be five minutes late is not necessarily a swing factor; five to 15 minutes late consistently when it affects other employees is a major problem.” Accordingly, “a jury weighing these facts could well be suspicious of the argument that Wallner’s tardiness was the only reason that she was fired.”

Finally, the Court was influenced by the fact that despite Hilliard Lyons’s assertion that Wallner was “chronically” late for work, the evidence consisted mainly of the boss’s assertion that he had verbally warned Wallner about it for years. It was significant to the Court that Wallner’s recent performance evaluations made no mention of chronic tardiness. 

The Court explained:

But even assuming that Wallner’s tardiness did contribute to the ultimate decision, the timing is suspicious. If she had been chronically late for twenty-seven years, why fire her only now? Why did her co-worker begin chronicling Wallner’s arrival times only on the very morning that she returned to work from FMLA leave? Why did Wallner receive a “final” written warning on the day she returned from FMLA leave for conduct indisputably associated with her assertion of FMLA rights when the reprimand was not consistent with protocol, which required an intermediate written warning prior to a “final” written warning? Of the possible competing explanations, it would not be unreasonable for a jury to select the one that Wallner urges: that, particularly in light of (the boss’s) “document of deficiencies,” Hilliard Lyons’s conduct was at least partially responsive to her decision to take FMLA leave and the significant conflict over her correct return-to-work date that erupted while she was exercising her statutorily protected rights.

The Court concluded that a reasonable jury could find that Wallner’s exercise of her FMLA rights may have been a motivating factor in Hilliard Lyons’s decision to terminate her, and that the district court erred in concluding otherwise.  Now the case goes back to the District Court for a jury trial.  

The experienced lawyers at Kalijarvi, Chuzi, Newman & Fitch are ready to advise you if you have an issue regarding absenteeism, leave, and disciplinary actions.

– This blog post was prepared by Elizabeth L. Newman.  You may reach her at enewman@kcnlaw.com