When Employers Retaliate

Was a county employee fired because she took FMLA leave?

By Christina Lumbreras

A county employee who worked as a supervisor of released adult convicted offenders developed sacroiliac joint dysfunction. She began to experience severe pain in her back and hips, and she scheduled surgery for her condition. In the meantime, walking became difficult, and she used crutches and a wheelchair to get around. She continued to work from the office but made adjustments such as participating in hearings by telephone.

In the weeks leading up to her surgery and during her recovery, she worked from home by auditing case files. She was unable to visit offenders at their homes or in jail, and she could not supervise drug and alcohol screenings. Therefore, other employees picked up those aspects of her workload. She returned to work, but her health challenges persisted. She had to undergo a second surgery after falling down the stairs at work, and she took Family and Medical Leave Act leave.

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At the end of her leave time, her doctor told her she could work on a computer at home and that she would be able to walk with a cane in three to four weeks. However, it was unclear whether the county received this information, and she was terminated because she could not return to work at full capacity after her leave ended. She claimed that her supervisor gave different reasons for her termination when she spoke with her than from what she wrote in her termination letter.

She sued under the FMLA, alleging retaliation. The District Court granted summary judgment to the county. The employee appealed.

Could the employee show that she was terminated for her use of protected leave?

A. Yes. The differing reasons the supervisor gave in the conversation and in the letter is sufficient evidence of pretext for the employee's claims to survive summary judgment.

B. No. The evidence did not undermine the county's legitimate reason for the employee's termination: that she failed to return to work with the required release after she exhausted her FMLA leave.

C. Yes. Because the employee submitted information from her doctor, the county should have known that she was released to work from home at the end of her leave.

How the court ruled: B. The 10th U.S. Circuit Court of Appeals affirmed a grant of summary judgment to the county. Robert v. Board of County Commissioners of Brown County, Kansas, No. 11-3092 (10th Cir. 08/29/12).

The court concluded that the employee could not return to work with or without reasonable accommodations when she was terminated or when her leave expired several weeks earlier. The employee admitted that she needed near-full mobility to ensure her safety as she visited felony offenders. The only potential accommodation was an indefinite reprieve from the essential functions of her job -- an accommodation that the court said was unreasonable.

A is incorrect. The 10th Circuit explained that despite different phrasing, the underlying message was consistent: the employee was let go because she was unable to perform her job functions.

C is incorrect. The court said that no individual testified that he or she delivered the release to the employee's supervisor. Even if the county received the information, it was not required to allow her to work from home after her FMLA leave expired.

Editor's note: This feature is not intended as instructional material or to replace legal advice.

November 29, 2012

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