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DO YOU KNOW HOW MANY FMLA HOURS YOU’VE EXHAUSTED? ASK YOUR EMPLOYER!

On March 19, 2013, in Sylvestor Richards v. City of Atlanta, Georgia et al., Civil Action No. 1:10-cv-03928-CC, the United States District Court for the Northern District of Georgia (“Northern District”) denied the Defendants’ motion for summary judgment as to the Plaintiff’s FMLA interference claim while simultaneously granting the Defendant’s motion for summary judgment on the Plaintiff’s FMLA retaliation claim.  While the Court affirmed that an employer has a right to terminate an employee who takes medical leave in excess of the 12 weeks protected by the Family Medical Leave Act (“FMLA”), the Court found general language in the Plaintiff’s Complaint alleging a non-specific FMLA violation to constitute an interference claim which survived summary judgment.  This case highlights the importance of an employee’s right to receive notice of his FMLA protections from his employer and warrants a reminder to employees of their rights to such notice.

I.          Facts of the Case

The Plaintiff, Sylvester Richards (“Richards”), was a senior watershed director employed by the Defendant City of Atlanta, Department of Watershed Management (“DWM”) for more than 20 years.  In 2006, Richards was approved for and began taking intermittent leave pursuant to the Family Medical Leave Act (“FMLA”) due to arthritis in his hip.  Richards took 12 full weeks of FMLA protected leave from May 12, 2008, through July 28, 2008.

Defendant Robert Hunter (“Hunter”) was the Commissioner of the DWM, and Defendant David St. Pierre (“St. Pierre”) was the Deputy Commissioner.  When St. Pierre was hired in 2007, he became Richards’s direct supervisor.

Although St. Pierre had no authority to deny Richards’s leave requests, St. Pierre was unhappy about Richards’s absences due to such leave.  St. Pierre made disparaging, criticizing remarks about not being able to reach Richards while he was out on leave and Richards’s perceived inability to “work hard.”  St. Pierre stated that Richards was “never here,” and suggested that Richards “might want to step back” to lighter duty “at this point in his career.”  St. Pierre stated his hope was that Richards would retire or leave “through attrition.”  St. Pierre stripped Richards of his job duties, giving him only menial tasks such as filing and ultimately making Richards’ position superfluous.

In 2008, the City of Atlanta implemented a Reduction in Force (“RIF”) due to a significant budgetary shortfall.  Hunter, as Commissioner, set the policies governing the RIF, and St. Pierre selected the positions within his bureau that would be eliminated pursuant to the RIF.

After taking 12 weeks of medical leave in mid-2008, Richards requested and was approved to take additional leave from October 16, 2008, through April 30, 2009.  Shortly after receiving Richards’s request, St. Pierre decided that Richards’s position should be eliminated, Hunter “signed off” on that decision, and the two put together a plan to eliminate Richards’s position in November or December of 2008.  St. Pierre claimed that he did not factor Richards’s leave into the decision.

Richards’s employment was terminated on December 10, 2008.  Pursuant to the RIF, a total of 97 positions, including Richards’s, were eliminated.  St. Pierre claimed that neither Richards nor any of the other 96 employees were targeted by the RIF, and the decisions were based solely upon the budget issues.  Yet, in September 2009, Hunter and St. Pierre began seeking candidates for and ultimately hired a new senior director with duties similar to that of Richards’s position.

Richards complained about the termination to Mayor Shirley Franklin.  The Human Resources Director for the City responded to Richards’s complaint in a letter, dated July 2009, and explained that the Office of Diversity Management had investigated Richards’s complaint and concluded there was no evidence of wrongdoing.

In December 2010, Richards’s filed suit against Hunter, St. Pierre, and the City of Atlanta (collectively “Defendants”) alleging violation of the FMLA[1].  After responding to Richards’s complaint and engaging in discovery, the Defendants moved the Court for summary judgment as to each of Richards’s claims.

II.        FMLA Claims

In considering Richards’ FMLA claim, the Court reminded us that “[t]he FMLA’s most fundamental substantive guarantee gives an eligible employee the right to take up to 12 workweeks of unpaid leave annually.”  An employer may be held liable for interfering with an employee’s FMLA rights and/or retaliating against an employee who used his FMLA rights.  Richards’s complaint alleged the Defendants terminated his employment “while he was taking FMLA leave, and because he was taking FMLA leave.”  The Northern District found this language sufficient to state claims for both interference with and retaliation for Richards’ use of his FMLA rights, despite the fact that Richards’s complaint specifically alleged only retaliation, not interference.

A.        Retaliation

To support his FMLA retaliation claim, Richards had the burden to establish he (1) engaged in a statutorily protected activity; (2) he suffered an adverse employment decision; and (3) the decision was causally related to the protected activity.  The Court found that Richards’ FMLA protection had expired in July 2008 after he took 12 full weeks of medical leave between May and July 2008.  Therefore, although his employer approved Richards to take additional leave between October 16, 2008 and April 30, 2009, this leave was not protected by the FMLA.  Because the leave Richards’ was taking at the time of his termination in December 2008 was not protected by the FMLA, Richards was not engaged in a statutorily protected activity, and Richards’ could not establish the first element of an FMLA retaliation claim.  Thus, the Northern District awarded summary judgment to the Defendants on that claim.

B.        Interference

Although the Defendants sought summary judgment as to Richards’ FMLA claims, the Court determined that the Defendants failed to articulate grounds to warrant summary judgment on Richards’ interference claim.  Since the entry of this summary judgment opinion, the Defendants filed with the Court a Motion to Reconsider the determination that Richards had in fact stated a claim for FMLA interference.  In this Motion, the Defendants confirm they did not read the language in Richards’ complaint to state an interference claim, so the Defendants only addressed the retaliation claim in their Motion for Summary Judgment.  The Defendants argue that the allegations from which the Court found an FMLA interference claim are the exact same allegations from which the Court determined that Richards could not support his retaliation.  Therefore, according to the Defendants, to the extent an interference claim existed, it should follow that these same allegations cannot support the survival of an interference claim at summary judgment.

While the Court has yet to rule on Defendants’ Motion to Reconsider, it seems the Defendants’ position fails to account for the fact that the burden to establish a retaliation claim is distinct from that which establishes an interference claim.  To establish an interference claim, an employee need only demonstrate by a preponderance of the evidence that he was entitled to a benefit which the employer denied.  The plaintiff’s burden on an interference claim is much lighter than on a retaliation claim.  Thus, even though the Court may have found an interference claim and a retaliation claim from the same allegations it does not necessarily follow that the interference claim will fail where the retaliation claim has failed.

Moreover, the facts the Court found to be true in its Opinion on the summary judgment would appear to support an interference claim on at least a couple theories.  First, the FMLA entitles employees to be returned to the same position the employee held when leave commenced, or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment.  29 CFR §825.214.  The FMLA defines an “equivalent position” as one that is virtually identical to the employee’s former position in terms of pay, benefits and working conditions, including privileges, perquisites and status.  It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.”  29 CFR §825.215.  The facts state that, after Richards’ return from protected medical leave, St. Pierre stripped him of his job duties as a senior watershed director with more than 20 years of experience.  Instead, Richards was given only menial tasks such as filing.  Such menial tasks cannot reasonably be considered equivalent to the responsibilities of a senior director.  Therefore, Richards’ can likely satisfy his burden on an interference claim by showing that he was not reinstated to an equivalent position.

Secondly, as a part of the employer’s designation notice requirements, an employer is obligated to notify the employee if it determines that the leave the employee requested will not be designated as FMLA-qualifying.  29 CFR § 825.300(d).  It is clear from the allegations Richards raised that he was not aware his FMLA entitlement was exhausted prior to taking the additional leave in October 2008.  Richards made this request using FMLA paperwork, and the City ultimately approved the request.  If the City had determined Richards’ leave request was outside his FMLA rights, even if the City ultimately decided to allow Richard to take the additional leave, the City was still obligated to notify Richards that the leave was not protected by the FMLA.  An employer’s failure to provide the designation notice required by the FMLA may constitute an interference with an employee’s FMLA rights.  29 CFR § 825.300(e).  Accordingly, Richards may also be able to sustain an interference claim by showing that he didn’t receive the designation notice to which he was entitled.  For now, this matter remains pending before the Northern District.

III.       What Have We Learned

This opinion reiterates the position among Eleventh Circuit Courts that where the plaintiff alleges a non-specific violation of the FMLA, the court should consider whether both an interference claim and a retaliation claim are supported.  See also O’Connor v. PCA Family Health Plan, Inc., 200 F.3d 1349, 1353 (11th Cir. 2000); Carrasco v. GA Telesis Component Repair Grp. Se., LLC, No. 09-23339-CIV, 2010 WL 5248446, at *5 (N.D. Ga. Dec. 16, 2010); Newman v. Crom Corp., No. 1:12CV126-SPM/GRJ, 2012 WL 3536548, at *1 (N.D. Fla. Aug. 15, 2012).

Moreover, this case implicates the ways in which employees benefit from employers’ notice obligations under the FMLA.  In addition to the employer’s obligations discussed supra, an employee may request, and the employer is required to provide, an accounting of the amount of leave that has been counted against the employee’s FMLA entitlement once in any 30-period during which leave is taken.  Id.  Had the City properly provided notice to Richards, this litigation may not have been avoided completely, but the scope, at least, may have been narrowed saving some costs to each party.

Author: Amelia A. Ragan, Esq.


[1] Richards also alleged, pursuant to 42 U.S.C. § 1983, age, race, and national origin discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment.  These claims are not addressed herein.

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