By Marjorie Johnson, J.D.

A hospital interfered with a nurse’s FMLA rights as a matter of law by failing to notify him that he wouldn’t be restored to his position without a doctor’s return-to-work release, and triable issues existed as to when he was entitled to restoration and if his subsequent discharge for purported performance issues was pretextual, a divided Sixth Circuit panel ruled in an unpublished opinion, reviving his FMLA interference and retaliation claims, which had been dismissed on summary judgment. Dissenting in part, Circuit Judge Rogers agreed with the dismissal of his retaliation claim and believed he wasn’t entitled to judgment as a matter of law on the interference issue (Casagrande v. OhioHealth Corp., December 20, 2016, Daughtrey, M.).

Delayed restoration. The employee, a hospital nurse who was hired in December 2011, took a two-week medical leave in early August 2012 that was not covered by the FMLA since he hadn’t been employed long enough. He took another medical beginning in late November. While on leave, he became entitled to FMLA leave in December, but the hospital mistakenly believed he still didn’t qualify.

He announced he was able to return to work on January 18, 2013, but was not restored to his position at that time. He provided a return-to-work release from his doctor on February 23, but was not reinstated until March 12. Two days later he filed the instant action. The hospital subsequently sent him a check it claimed covered his back wages, but he did not cash it.

Multiple reprimands lead to discharge. Though the employee was previously counseled for performance issues, new allegations of deficiencies quickly followed his return. After receiving three verbal reprimands in April, he sent an email indicating he might add a retaliation claim to his lawsuit. He received several more reprimands followed by a written warning regarding four patient-safety issues in September. He was suspended and terminated a month later.

Interference prior to medical release? The employee claimed that the hospital interfered with his FMLA rights by failing to restore him after he provided notice in January that he was prepared to return. Granting summary judgment, the district court held that there was no interference since he failed to provide a return-to-work release until February 27. Therefore, at issue was whether the hospital had a uniform policy or practice of requiring medical certification before returning employees to work and informed the employee of the policy. The Sixth Circuit found these issues to be disputed.

Though it previously indicated that he would need to “provide the proper return to work documentation,” including a doctor’s release, the employer also had allowed him to return to work after his medical leave in August without providing such a release, indicating the lack of a uniform policy. Moreover, it discouraged him from providing a return-to-work release in January until he had secured a new job, even though he reported that he was ready to return to work.

More significantly, because the hospital undisputedly failed to advise him that his failure to provide a release would result in denial of job restoration, it interfered with his FMLA rights as a matter of law. It was irrelevant whether this failure was due to its mistaken belief that his leave was not covered by the FMLA since it had a duty to make a correct FMLA-eligibility determination and to notify him of its requirements and consequences for failing to meet them.

Interference after the release. Though the employee submitted a return-to-work release on February 27 but was not restored to his job until March 18, the district court found he suffered no harm by the delay since the hospital offered to pay him back wages. However, this was clearly erroneous as these matters were disputed. For instance, he only received 70 percent of pay when he was on disability and he was arguably harmed by the 90-day delay in receiving the back wages.

Coworker testimony supports retaliation claim. The district court also erred in ruling that the employee failed present sufficient evidence suggesting that the purported reasons for his discharge—concerns about patient safety and his failure to follow nursing policy—were pretextual since evidence indicated that his termination may have been motivated by the exercise of his FMLA rights. For instance, certain coworker testimony, which the district court erroneously failed to consider, suggested that he had been treated unfairly and disciplined unnecessarily in the period immediately after he returned from leave. One of the coworkers also testified that a supervisor warned her to call security if she saw the employee doing anything inappropriate.

Increased scrutiny. In addition, the temporal proximity of the increased scrutiny the employee received following his return to work suggested pretext. In the five months between the end of his initial orientation and the beginning of his first medical leave, he had only one documented performance issue. After he returned from his first, non-FMLA leave, he received two written reprimands and his supervisor expressed her belief that he would not make it in the unit. However, when he returned from his second, partially FMLA-covered leave, the criticisms came in quick succession. Many were based on anonymous “unusual occurrence” reports, which it appeared would not normally warrant formal discipline or termination.

This pattern continued with the employee receiving several more reprimands before he was ultimately terminated. Whether this situation was justified because his supervisor thought his performance had suffered from his four-month absence, or whether it was retaliatory because his two periods of leave and his reliance on the FMLA made him “expendable in her eyes,” presented a jury question.