5/29/2015 The Interplay of ADA, FMLA, and Workers Compensation - PDF document

5/29/2015 The Interplay of ADA, FMLA, and Workers’ Compensation Presented by Geoffrey A Lindley James V. Thompson Rainey, Kizer, Reviere & Bell, PLC July 2015 • Federal and State Statutes = The Foundation and Framework of your “House” • Regulations, Court Opinions = Your Roofing and Walls • Your Policies and Procedures = Your Flooring, Walls & Furnishings • How your policies, procedures, and business actions line up with the authority is similar to how your furnishings are lined up with your house. • So … is your house in the right order? 1

5/29/2015 • Employee (African-American male) was a warehouse supervisor for Employer. In March 2010, Employee applied for FMLA leave for eye problems; Employer approved the application. On July 6, 2010, Employee requested FMLA leave for irritable bowel syndrome. Employee’s Manager (either Caucasian or Portuguese) received the second FMLA notice, but the notice did not include the medical diagnosis or the reason for leave. On July 9, 2010, Employer placed Employee on a Performance Improvement Plan (PIP) because Employee was not meeting his performance expectations. Employee was told then of the areas he needed to improve and the consequences of not improving (including discharge). In October, Employee submitted a third FMLA request for sleep apnea, but withdrew it before Employer made a decision. • At the 90-day PIP review, Employee’s Direct Supervisor (either African- American or Asian) concluded he failed to meet expectations and recommended termination. Employee was not terminated, but his PIP was extended for an uncertain time. • On December 9, 2010, Employee hit his head on a machine at work and submitted a workers’ comp claim. On December 13, 2010, Employee emailed his Direct Supervisor and Manager to advise them of his injury and his safety concerns on the work premises. On December 14, 2010, the Direct Supervisor conducted another PIP review and told Employee his PIP would continue until HR came to a decision. Employee returned to work with medical restrictions. In February 2011, Employee and Direct Supervisor met for another PIP review but Employee had been unable to perform many of his duties due to the injury and the Direct Supervisor couldn’t conduct a comprehensive review on the original PIP criteria. • Employee was fired on March 23, 2011. Employee’s superiors said the termination was based solely upon poor work performance and failure to improve. Employee claimed a successful completion of his PIP was “unattainable” and he was fired for discriminatory reasons. 2

5/29/2015 Elements of a prima facie FMLA Interference claim: 1. Claimant was an eligible employee; 2. Defendant was an employer covered under FMLA; 3. Employee was entitled to FMLA leave; 4. Employee gave employer notice of intent to take FMLA leave; and 5. Employer denied FMLA benefits to which employee was entitled. Did the Employer interfere with Employee’s FMLA claims? • Employer “discouraged” him from taking FMLA leave in October 2010. • After the March 2010 FMLA request, Employee was denied an annual raise. • After the July 2010 FMLA request, Employee was placed on the PIP. • Employee reconsidered and withdrew his October FMLA request. Sixth Circuit: FMLA is not a strict-liability statute; the mere occurrence of interference with FMLA rights is not a per se FMLA violation. If an employer shows a legitimate reason unrelated to Employee exercising FMLA rights, then the employee must rebut, showing the proffered reason: • Had no basis in fact; • Did not motivate the adverse employment action; or • Was insufficient to warrant the adverse employment action. In this case, the Middle Tennessee District Court found insufficient proof of Employer’s “discouragement”: • Denial of an annual raise after the March 2010 FMLA request. • Instigation of the PIP after the July 2010 FMLA request. 3

5/29/2015 Elements of a prima facie FMLA Retaliation claim: 1. Employee availed himself of a protected right under FMLA; 2. Employee was adversely affected by an employment decision; and 3. A causal connection between the exercise of the right and the adverse employment decision. Any causal connection between Employee’s FMLA leave and discharge? • PIP initiated 3 days after the July FMLA request. • Manager and Direct Supervisor knew Employee had taken FMLA leave. • Employee claims he had no disciplinary or improvement plans before his 2010 FMLA requests. • When Employee spoke to Direct Supervisor about his medical issues, the Direct Supervisor allegedly said “you need to commit yourself more to your job.” 4

5/29/2015 BUT WAIT … • Employee had a documented shaky performance record before and during his PIP. • Employee’s performance issues were confirmed by other employees. Sixth Circuit: • Close time periods between FMLA requests and adverse employment actions cannot be the sole basis for finding the employer’s reason is pretext. • However “suspicious timing, when accompanied by other independent evidence, is a strong indicator of pretext.” Was Employee treated the same as other similarly situated employees? If a claimant can show he was not treated the same as similarly situated and similarly skilled employees engaged in identical performance, then claimant can raise a reasonable inference he was treated differently because he invoked FMLA rights. “Similarly situated”: all relevant aspects of claimant’s employment situation are “nearly identical” to those of a non-minority’s employment situation. 5

5/29/2015 Here, the Court found Employee’s examples of similarly situated non- minority employees did not show Employer’s reason to terminate was pretext: • Worker #1: the same race as Employee. • Workers #2 and 3: the record was too limited on how they were treated. • Workers #4 and 5: a different race but same work position as Employee. BUT… • Worker #4: disciplinary write-ups but improved and never on a PIP. • Worker #5: only one time card error in a quarterly review. The Middle District Court: Summary judgment for Employer granted. • Insufficient proof Employee was treated differently because of his FMLA request. Did Employer retaliate because Employee filed a workers’ comp claim? Elements of prima facie retaliatory discharge claim: 1. Claimant was an employee at the time of injury; 2. Claimant made a claim against employer for workers’ comp benefits; 3. Employer terminated claimant; and 4. The workers’ comp claim was a substantial factor in Employer’s termination decision. Employee must show direct or “compelling circumstantial evidence” of a causal connection between the claim and the termination, not just the injury and the termination. 6

5/29/2015 Temporal proximity between the claim and the termination is not sufficient by itself. But, temporal proximity may prove causation if the prior job performance was otherwise satisfactory. A variety of factors, plus temporal proximity, could be sufficient circumstantial proof: • Expression of a negative attitude by employer toward employee’s injury; • Employer’s failure to adhere to established company policy; • Discriminatory treatment when compared to similarly situated employees; or • Sudden and marked changes in an employee’s performance evaluations after a workers’ comp claim. The Middle District found no causal connection between the workers’ comp claim and the termination. • Time between December 2010 workers’ comp filing and March termination was not sufficient. • Performance issues were already established 5 months before the work injury. • Statements from District Supervisor and Manager that the injury was “a bump on the head” did not rise to a level of harassment. • Extension of PIP after the injury suggested Employer attempted to continue the employment and termination was a last resort when performance didn’t improve. 7

5/29/2015 An individual is considered disabled under the ADA if: • He has a physical or mental impairment that substantially limits one or more of the major life activities of such individual; • He has a record of such impairment; or • He is regarded by his employer as having such an impairment. An employee may fall into the “regarded as disabled” status if: • Employer mistakenly believes a person has a physical impairment that substantially limits one or more major life activities; or • Employer mistakenly believes that an actual non-limiting impairment substantially limits one or more major life activities. Elements of a prima facie employment discrimination claim under ADA: 1. Employee was “disabled” within the meaning of the ADA; 2. Employee was qualified to perform the job requirements with or without reasonable accommodation; and 3. Employee was discriminated against because* of the disability. *The Sixth Circuit revised this standard in 2012. An Employee no longer has to show that he was discriminated against solely because of the disability. 8