The Family and
Medical Leave Act (FMLA) makes it unlawful for an employer to “interfere
with, restrain, or deny the exercise of or the attempt to exercise” an
individual’s rights under the FMLA. However, according to at least one federal
appellate court, an employee’s use of the FMLA to avoid an anticipated firing
is not a valid exercise of those rights.
The 1st U.S. Circuit
Court of Appeals held that a termination decision made after numerous attempts
to accommodate an employee’s health issues but prior to that employee’s formal
request for FMLA leave was sufficient to support dismissal of the individual’s
FMLA retaliation claim.
Heidi Germanowski, an
employee of the Berkshire Middle District Registry of Deeds in Pittsfield,
Mass., for more than 10 years, claimed that her supervisor fired her because
she requested leave protected by the FMLA. A federal district court dismissed
her claim, and she appealed to the 1st Circuit, which upheld the dismissal.
During the initial
years of her employment, Germanowski worked with another employee, Patricia
Harris. In 2013, Harris became her supervisor. The relationship between the two
began to deteriorate, with Germanowski claiming to experience “stress and
anxiety accompanied by fatigue, hair loss, aches and gastrointestinal
pain” that left her unable to work at times.
Germanowski to take time off, with pay, when Germanowski requested it.
In October 2014,
Germanowski suffered a nervous breakdown at work. Subsequently, she made claims
of mistreatment by Harris.
For Christmas that
year, Germanowski received a sport pistol from her husband as a gift.
She informed Harris
of the gift, as Harris knew of Germanowski’s sport shooting hobby.
Harris expressed her
discomfort with the gift, wondering whether Germanowski would carry the gun to
work, though there was no evidence that she ever did or that she would have.
On Feb. 2, 2015,
Harris left a message for Germanowski, directing her not to come to work on the
following day, Feb. 3.
Fearful that her job
was “in jeopardy,” Germanowski sent an e-mail to Harris on Feb. 3,
stating that she would be “out sick for the week” and that she was
scheduled to visit her doctor.
On Feb. 5,
Germanowski’s doctor provided a letter advising her to take a medical leave of
absence to pursue treatment. There is no evidence that the letter was provided
to Harris or the employer.
The next day,
Germanowski received a voice mail message from the chief court officer in which
she was told that her employment was being terminated, effective immediately.
She sued Harris and
the Commonwealth of Massachusetts, including a claim of FMLA violation.
The lower court
dismissed all claims, including the FMLA claim, finding that Harris had no
knowledge of Germanowski’s intent to take FMLA leave and, therefore, could not
have interfered in that right or retaliated because of it.
the dismissal to the 1st Circuit, which upheld the lower court’s decision to
dismiss the claims.
To support its
dismissal of the claims, the 1st Circuit listed the actions that the employer
had taken in the year prior to the firing, including those showing that Harris
consistently accommodated Germanowski when she felt unable to work and that the
absences allowed by Harris were not unpaid, nor were they counted against any
available leave time.
argued that the proximity between her e-mail informing Harris she would be out
sick for a week and her firing was sufficient basis for her retaliation claim,
the court disagreed. Instead, it pointed out the “emotionally fraught and
long-standing dispute” between Harris and Germanowski, the fear expressed
by Harris about the possibility of Germanowski bringing a gun into the
workplace, and the subsequent “lock out” of Germanowski based upon
that fear. According to the court: “To think that an employer in such a
case fired Germanowski because she asked for some time off while she was
already locked out is to suggest that common sense borne of real-world
experience has no role to play in the plausibility analysis.”
Going further, the
court quoted the lower court’s view of the case that the “FMLA is not a
tool an employee can use to delay or avoid a termination.” Therefore,
while there was evidence that Harris and Germanowski had a troubled working
relationship and that Germanowski believed that Harris was “out to
get” her, such evidence did not support a causal connection between the
exercise of rights under the FMLA and a subsequent termination. In fact,
according to the 1st Circuit, those facts mitigate against FMLA liability.
The salient issue for
the court was that the FMLA does not protect an employee for every reason while
she is on that leave or requesting it; the law protects her only from firing
because she requests or takes the leave. Here, while there was evidence of an
“emotionally fraught and long-standing dispute” between Harris and
Germanowski, there was, according to the court, no evidence that Germanowski
was terminated in retaliation for asserting her rights under the FMLA.
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