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A
maintenance director at a nursing care facility could pursue his Family and
Medical Leave Act (FMLA) claims to trial despite being fired for monitoring his
supervisor’s work attendance, the U.S. District Court for the Eastern District
of Pennsylvania ruled.

Mid-Atlantic
Healthcare LLC hired Louis DeCicco as the director of maintenance for Maplewood
Nursing and Rehabilitation Center, which provides long-term nursing care and
rehabilitation services. In January 2012, DeCicco’s supervisor, Nursing Home
Administrator Sarah Balmer, met with DeCicco and issued him a performance
improvement plan. The plan stated that DeCicco was under review for not
providing adequate training and mentoring to a subordinate, not resolving
long-standing issues with security staff, failing to respond to facility phone
calls, and not taking a more active role in resolving the facility’s
maintenance issues.

Around
this time, DeCicco began monitoring Balmer’s attendance at work. DeCicco
reviewed Maplewood’s camera footage and Balmer’s timesheets and prepared his
own logs of Balmer’s absences from the facility. DeCicco was not authorized to
investigate Balmer’s attendance.

On May
9, 2012, Balmer issued a second performance improvement plan to DeCicco. That
same day, DeCicco received a written warning for addressing an outside
contractor in an unprofessional manner. He also received a verbal warning that
same day for allegedly not keeping adequate stock of Maplewood’s equipment,
which resulted in the facility being short one bed.

On May
24, DeCicco requested FMLA paperwork from Maplewood Human Resources Director
Stephanie Massey. DeCicco was the primary caregiver for his disabled father and
intended to use FMLA leave to care for him. Massey provided the paperwork to
DeCicco that same day. Massey’s employment ended shortly after this
interaction.

On June
15, DeCicco met with the newly hired human resources director, Caroline
Eldridge, to discuss several issues. These issues included DeCicco’s
performance improvement plans, the “fraud” constituted by Balmer’s
alleged absenteeism and DeCicco’s perceived lack of support from Mid-Atlantic.
DeCicco advised Eldridge that he expected to be terminated. On June 18, DeCicco
returned his FMLA certification of health care provider form to Mid-Atlantic’s
human resources department.

Later
that evening, Balmer e-mailed John Fredericks, regional director of operations,
stating that she intended to terminate DeCicco in two weeks. Balmer said three
other Mid-Atlantic employees were in agreement with this decision. She wrote
that she became aware that DeCicco was monitoring her attendance and her hours
logged in at work and had been reviewing Maplewood’s security camera footage.
She stated that DeCicco was not the type of person she wanted working for her,
that he had been on a performance improvement plan since January 2012 and that
his statements that she “stole time” were “a lie.”

On June
19, Balmer issued a final written warning to DeCicco regarding his failure to
meet the requirements of the performance improvement plans and placed him on
another performance improvement plan, which was set to expire on July 3. On
June 20, DeCicco was terminated during a meeting conducted by Fredericks and
the regional HR director. Balmer was not present during this meeting. DeCicco
was 47 years old at that time. He was replaced by a man Mid-Atlantic claimed
was 43 years old at the time of his hiring.

On May
22, 2014, DeCicco filed a lawsuit claiming age discrimination under the Age
Discrimination in Employment Act and the Pennsylvania Human Rights Act, and
claiming interference with his rights and retaliation under the FMLA.
Mid-Atlantic moved for summary judgment on DeCicco’s claims.

The
court found that DeCicco was placed on various written performance improvement
plans and given several warnings during his employment. He did not contest that
he reviewed camera footage and Balmer’s timesheets to conduct an independent
investigation of her attendance record. DeCicco did so only after he was placed
on a performance improvement plan. Based on this evidence, the court found that
DeCicco failed to show that any of Mid-Atlantic’s reasons for firing him were pretextual.
Therefore, the court dismissed his age discrimination claims.

However,
regarding DeCicco’s FMLA claims, the court found that his FMLA request and
completed application were so close in time to his final warning and dismissal
that it was unusually suggestive of retaliation. Thus, the court denied
Mid-Atlantic summary judgment on DeCicco’s FMLA claims and allowed them to
proceed to trial.

Professional Pointer:
Retaliation claims are now more prevalent than discrimination claims. Even if
an employer has strong evidence of poor performance and misconduct, the
employer may be held liable for retaliation if it takes adverse action soon
after protected conduct occurs.

The Family Medical Leave Act has been a
difficult policy to handle in the workforce for years. At Converge HR
Solutions, we can assist in developing an employee handbook that is tailored to
your company and its policies, as well as keeping it up to date from a legal
standpoint. For more information, visit our website at https://convergehrsolutions.com/ or directly at info@convergehrsolutions.com or 610-296-8550.