City manager fired while she was on leave—behind her back—not because she was on leave

By Joy Waltemath

By Joy P. Waltemath, J.D.

Even assuming that a city manager had notified the city council that she was going on FMLA leave when she told them she was having foot surgery and would be able to work from home while recovering, her employer could fire her without unlawfully interfering with the FMLA as long as the reason for her termination was not because she was on leave. This it did, said the Sixth Circuit in affirming summary judgment for the city, because the employer demonstrated a legitimate reason for terminating her—it cited her role in “causing political strife in the community.” Moreover, it was questionable that she had provided FMLA notice since there was evidence she refused to take and complete the city’s FMLA forms, and it was suggested that she was only going to take a few days off and work from home. She also had no evidence of pretext (Mullendore v. City of Belding, released August 23, 2017, redesignated as published September 15, 2017, Batchelder, A.).

Political difficulties. The city manager’s employment contract allowed her to be terminated at will subject to certain severance provisions; it had been renewed several times and was set to expire in April 2016. Several politically difficult issues punctuated her tenure, including when she, in conjunction with the police chief, fired a city police officer who was involved in a fight while off-duty and who punched a woman who was eight months pregnant. The officer was later reinstated, and the city manager endured the “extremely vocal” criticism of some citizens as a result. When a new council member was elected, he made it clear in an email to other council members and local citizens that he was “not in favor of our city manager” and would push for her termination as soon as the city charter allowed.

Notice of surgery, work at home. Two weeks before she was terminated, the city manager gave all city council members a memo detailing her need for surgery and a 12-week recovery period where she would be on crutches. Because city hall was not ADA compliant, the city’s insurance agent recommended she work from home. She also met with several council members and the mayor to discuss her plans. There was some evidence that the city manager stated that she would not seek medical leave and declined to complete the city’s FMLA paperwork “because she would just be taking off a few days and working from home.” At the next city council meeting following her surgery, while she was not present, the new council member moved to terminate the city manager’s employment although the motion was not on the agenda; the motion passed, and the city manager sued, alleging FMLA violations.

The district court granted summary judgment finding no reasonable jury could find that the employer was on notice of her intent to take medical leave. Although the district court acknowledged that her memo indicated she would be taking time off for medical reasons, it found the memo was only a notification of her medical situation and a statement that she would be working from home. This was an “accommodation,” said the lower court, “fundamentally different” from asking for FMLA leave. In addition, even if the memo could be characterized as sufficient FMLA notice, the proffered reason for firing her, which it said was “basically political controversy and distraction,” was a legitimate nondiscriminatory reason and she had no evidence of pretext.

Timing was to fire her behind her back. On appeal, the Sixth Circuit pointed out that the city manager seemed to erroneously equate a termination while she was absent with a termination because she was absent on FMLA-qualifying leave. That an adverse employment action occurred while she was on leave did not demonstrate that that action was based on the fact that she had taken FMLA-protected leave. Her evidence demonstrated at best that the council terminated her when she was not at the meeting “because it was personally or politically expedient to do so behind her back.” She lacked evidence that the reason for her termination—as opposed to the timing of the termination—was because she was on FMLA leave. “Had she been on vacation or attending a part-time class, the City Council likely could have taken this action with impunity,” mused the Sixth Circuit. Instead, the evidence clearly demonstrated that she was terminated because she was not at the meeting and the council could therefore fire her without having to face her—not because she was using FMLA leave.

Notice. Thus, the appeals court found it really didn’t matter whether her memo to the city council put it on notice that she would be taking an FMLA-qualifying leave (the employer claimed it was merely a notice of accommodations she would need to continue working while recovering from surgery.) Regardless of the adequacy of the notice, the city manager had not shown that she lost her job because she took FMLA-qualifying leave.

Pretext. Her challenge to the city’s proffered reason for her lost job questioned whether political strife actually motivated the termination, but it too failed. She offered no evidence in support of her claim that she was really terminated because she was on FMLA leave, even if the timing of the council member’s motion made it easier to get enough votes to get rid of her. At best, her theories raised “a mere scintilla of evidence” insufficient to defeat summary judgment in the face of the council’s evidence that it wanted to fire her even before she had her surgery because it was unhappy with her work and felt she was divisive. Summary judgment to the employer was accordingly affirmed.

Source:: City manager fired while she was on leave—behind her back—not because she was on leave