This week, two Eleventh Circuit decisions affirmed the district courts’ entry of summary judgment in favor of employers in Family and Medical Leave Act cases. In Krutzrig v. Pulte Home Corporation, No. 09-12512 (11th Cir. April 5, 2010), the Plaintiff requested FMLA leave to have foot surgery. The next day, she was terminated. The supervisors deciding to terminate her employment said they were not aware of Krutzrig’s leave request when they made the decision. The employer said the decision was based on Krutzrig’s unsatisfactory job performance; she had been placed on a 30-day performance improvement plan. Despite the temporal proximity of the events, the court found no evidence contrary to the employer’s claim that both decision makers were unaware of Krutzrig’s leave request. The court adopted other circuits’ reasoning that like the FMLA right to reinstatement, the FMLA right to non-interference with the commencement of leave is not absolute. The Court ruled that “an employee can be dismissed, preventing her from exercising her right to commence FMLA leave, without thereby violating the FMLA, if the employee would have been dismissed regardless of any request for FMLA leave.” Krutzrig demonstrates the difficulty an employee has in even getting to a trial in federal court because the court requires the employee to have actual proof that the actual decisionmakers actually took her FMLA request into consideration. The actual summary judgment standard requires a plaintiff to present evidence that she “could” win at trial, but the summary judgment standard that is being applied in practice is that the plaintiff must present evidence that she “will” win at trial. The blog is afraid that this decision will encourage employers to isolate decisionmakers and to avoid a paper trail of communication between and among supervisors and decisionmakers at all levels in an effort to escape liability for an illegal termination. This allows employers to get a free pass if the plaintiff cannot show that the employer’s “we know nothing” defense is a fiction.
A second case, Schaaf v. Smithkline Beecham Corporation, dba Glaxosmithkline, No. 09-10806 (11th Cir. April 6, 2010), also addressed an FMLA interference claim. The decision affirmed the trial court’s granting of summary judgment in favor of the employer. The plaintiff, Schaaf, was demoted upon returning from maternity leave. As in the above-discussed case, the employer claimed that their decision to demote or terminate Schaaf was based on the numerous complaints form her subordinates, failure to comply with a performance improvement plan, and several problems found by her interim replacement. Again, the court was persuaded by the employer’s evidence that Plaintiff was demoted because of ineffective performance, and not for taking FMLA leave. The court rejected Schaaf’s argument that the employer’s finding of deficiencies while she was on leave constituted interference in violation of the FMLA. The court ruled, however, that the statute’s purpose was not frustrated if the employee’s absence allows the employer to discover previous problems that result in an adverse employment action. Such a situation would not be interference because “the employer is motivated not by the taking of the leave itself, but rather by prior deficiencies that, whenever they were discovered, would have prompted demotion or discharge whether or not the employee took FMLA leave.”
These cases demonstrate the importance of retaining a seasoned FMLA attorney before requesting leave.
