Dive Brief:
- A former CSX employee who told a company representative that he planned to use Family and Medical Leave Act leave because his kids were attending a new school will nonetheless have the opportunity to show a jury that his termination constituted unlawful retaliation under the FMLA, a federal judge ruled Wednesday.
- The plaintiff in Pack v. CSX Transportation, Inc. applied for intermittent leave to care for chronic kidney stones. In 2017, he called CSX to request a personal day, but the company told him no such a day was available, per a transcript included in court documents. He then informed the representative that “I guess you’ll have to lay me off FMLA then” and proceeded to take four days of medical leave.
- CSX fired the plaintiff after an internal hearing, citing the call as evidence that he took FMLA for an unapproved reason. However, he testified that he needed leave both for his kids and for his condition, which flared up on the day of the call. He showed CSX a doctor’s note at his hearing confirming that he sought care for his flare up. The judge held that a reasonable jury could conclude that his firing was pretextual.
Dive Insight:
Employer-side counsel have long recognized FMLA leave as an administrative headache in part because of the difficulties employers face in determining when employees require leave. The fact pattern in Pack shows just how thoroughly a court may scrutinize an employer’s actions in this area, even where the employer believes it has uncovered clear evidence of abuse.
Specifically, the court noted that CSX’s FMLA manager marked off the employee’s absence as unapproved because it was “clear,” based on the phone call, that the leave was misused. In fact, the court added, the FMLA manager said there was no need for CSX to determine whether the leave was “actually used for FMLA protection or for purposes of the FMLA.”
The judge was unconvinced that the call alone was sufficient grounds to fire the plaintiff.
“This call does not conclusively establish that [the plaintiff] engaged in misconduct, especially given [plaintiff’s] testimony that he needed to attend to both medical needs and family obligations,” the judge wrote. “Also, [plaintiff’s] doctor’s note provided evidence that his request for leave was legitimate.”
Ultimately, the judge held that a reasonable jury could find that CSX’s decision was not reasonably informed and considered in line with circuit precedent. The judge thus allowed the plaintiff’s retaliation claim to move forward but did partly side with CSX in granting dismissal of his FMLA interference claim.
Attorneys previously told HR Dive that employers have a variety of tools to defend themselves against intermittent FMLA discrimination claims. These can include use of medical certifications, clear call-in procedures that spell out the manner in which an employee is expected to report absences and managerial training to prevent missteps on the employer’s part.
If an employer suspects misuse, it still must address those suspicions in a manner that minimizes the risk of unlawful retaliation, one attorney told HR Dive last year. That may mean taking into account the nature of the employee’s leave and whether it could be consistent with what the employer already knows about the employee’s condition. The same attorney cautioned employers against overreacting to suspected misuse or immediately terminating employees.