FMLA retaliation charge allowed to go to jury says Fifth Circuit
Ion v. Chevron USA, Incorporated, No. 12-60682 (5th Circ. September 26, 2013).
This is a FMLA retaliation case where the U.S. Court of Appeals for the Fifth Circuit reversed the trial court’s grant of summary judgment for the employer and remanded for trial. This is a long opinion, so the summary is a little longer than normal. (Sorry about that).
The employ (“Ion”) was a Chevron chemist who requested various leaves under the FMLA. A month later, Ion was suspended for five days for performance deficiencies and excessive lunch breaks. Ion admitted to taking excessive lunch breaks but that he utilized that time to go to daycare. Later Ion was diagnosed as having a serious psychological health condition due to his life changing divorce. Ion reportedly emotionally “exploded” during one clinic incident which caused clinic staff to complain. Later, a co-worker reported that Ion boasted about faking a nervous breakdown in order to get FMLA leave and benefits. After receiving this information Ion was terminated. The trial court granted Chevron’s MSJ which the Fifth Circuit now reversed.
The court went through a step-by-step analysis of the entire burden shifting standard in this case. For an explanation of the process, this is a good case to read, although a little painfully long. The Fifth Circuit first reiterated that in a mixed-motive FMLA retaliation claim, the claimant must show his leave request was a motivating factor in his termination. To escape liability, the employer must show the retaliation was not the but-for cause of its actions. The court noted the U.S. Supreme Court’s holding in University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013), limited the applicability of mixed-motive frameworks in Title VII cases, but neither party asked for an extension of Nassar to FMLA or disputed the mixed-motive framework in this case. The court expressly reserved the right to address that question in a future case. However, the court emphasized that genuine issues of material fact exist under either standard in this case.
Ion established his prima facie case of retaliation. Chevron then met its burden to establish a non-discriminatory reason for the termination. In which case, Ion must then establish his FMLA request was a motivating factor in his termination. Ion provided emails to support the motivating factor element. Viewing the emails in the light most favorable to the non-movant, they established a jury could infer the FMLA leave requests were motivating factors in his termination. Finally, the burden again shifts to the employer to prove that it would have taken the same action despite its discriminatory animus. In that regard the court wrote “While it is true that Chevron disciplined Ion for his absences and poor performance prior to his application for FMLA leave, it is also true that Chevron’s disciplinary response for these actions had already been determined. Chevron’s claim that it would have fired him based on his absences and poor performance is disingenuous and contradicted by the evidence. Chevron had the opportunity to fire Ion based on these deficiencies and chose not to do so. As discipline, Chevron elected to suspend Ion for five days and place him on a PIP/AIP. Significantly, Chevron did not indicate to Ion that it was considering further discipline for his prior absences and performance.” Further, Chevron took at face value an employee’s statement Ion was “faking” even though Chevron’s own process had referred him to a licensed professional who declared he suffered from a serious health condition. At the very least, this creates a fact issue for the jury. Further, while the clinic incident was significant, the termination letter was devoid of any reference to it as a grounds for termination. The accounts of the incident were also lacking in any detail and without reference to “specific or objective description of Ion’s behavior. The accounts do not describe foul language, physical manifestations of anger, or any other description of Ion’s behavior outside of Ion asking questions.” The FMLA does not “permit an employer to draw any arbitrary distinction between firing an employee for exercising his FMLA rights and for firing an employee for how he exercised his FMLA rights.” In summation, Chevron has failed to meet its burden that it would have fired Ion regardless of retaliatory motive as a matter of law. It still has the opportunity to establish its defense, but that must be determined by a jury. MSJ reversed and case remanded for trial.
If you would like to read this opinion click here.
