Rescinding two-day-a-week telecommuting FMLA leave was retaliatory

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By Joy Waltemath

By Dave Strausfeld, J.D.

An employee proved she suffered retaliation for seeking FMLA leave to care for her autistic child, held the Seventh Circuit, upholding a jury verdict. A reasonable jury could find that the company orchestrated her firing because she asked to telecommute two days per week so she could spend some non-work hours taking care of her child, who had been expelled from day care. The FMLA entitled her to take leave necessary “to take care of a very difficult (at times violent) sick child,” and evidence at trial supported the jury’s verdict that she was retaliated against for exercising her FMLA rights. On a separate issue, the district court erred in reducing her attorneys’ fee award 20 percent (Wink v. Miller Compressing Co., January 9, 2017, Posner, R.).

Trouble finding childcare. In February 2012, an order-processing employee for a company that sells products such as recycled scrap metal was granted permission to work from home two days a week. Human resources instructed her to keep a record of her time and told her she would be granted unpaid FMLA leave to the extent she worked less than a full eight-hour day. In other words, she was given permission to work from home on those two days and also was granted flexibility in how many hours she worked. (Her mother was able to watch the toddler the remaining three workdays.)

However, the following summer the financially strapped company decided to no longer permit telecommuting. On a Friday in July the employee was given an ultimatum: Show up on the coming Monday and begin working in the office full-time or else lose her job. When told this, she started to cry, she said, because she “knew that it was going to be nearly impossible” to find day care by Monday. On Monday morning she returned to the office to explain to HR that she had been unable to find day care for her son and needed to return home. HR fulfilled its threat by processing her termination that same day, according to evidence at trial.

FMLA retaliation. The Seventh Circuit held there was enough evidence to support the jury verdict in the employee’s favor on her FMLA retaliation claim. The FMLA entitled her to take leave necessary “to take care of a very difficult (at times violent) sick child.” She “proved, and the jury determined,” that the company retaliated against her for asserting her FMLA rights.

The jury was entitled to credit the employee’s version of the events leading up to her firing. “The best inference, or at least an inference that a reasonable jury could draw,” wrote Judge Posner for the appellate panel, was that the employee’s superiors “were angry with her” for requesting to be allowed to work two days a week from home. “Hence the phony line” from an HR official who allegedly told the employee falsely that the FMLA covers leave from work only for doctors’ appointments and therapy, not for caring for a sick child.

Liquidated damages. While the company maintained that it acted in good faith and therefore should not have to pay double damages, “the district court correctly rejected that argument.” The HR department’s reaction to the employee’s “plight could reasonably be found to be retaliation against her for asking for FMLA leave for anything other than a doctor’s appointment or therapy.” In short, the evidence was sufficient to uphold the jury’s verdict that the employee suffered retaliation for seeking FMLA leave to care for her ill child.

Attorneys’ fees. One issue remained for the appeals court to consider, and it concerned the employee’s cross-appeal regarding the amount of attorneys’ fees. After calculating the lodestar, the district judge had reduced her award of attorneys’ fees by 20 percent because she failed to persuade the jury the company interfered with her FMLA rights, which is a separate violation from retaliation.

The appeals court agreed with the employee that there was no legitimate basis to reduce her fee award 20 percent. “The two FMLA breaches”—i.e., FMLA retaliation and FMLA interference—”are very similar, so it was prudent for the lawyers to press both in order to reduce the likelihood of a total defeat.” And because the claims were so similar and based largely on the same facts, “the marginal cost of presenting the interference claim to the jury was slight.”

Accordingly, the appeals court reversed the fee award and remanded with directions to rescind it “and award the plaintiff her full attorneys’ fees.”

Source:: Employment Law Daily Newsfeed


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