For FMLA Retaliation Claims, It’s the End-of-Leave Date that Counts

The Eleventh Circuit has held that the end of FMLA leave, not the beginning, is the relevant date for determining “close temporal proximity” between protected activity and an adverse employment action when evaluating an FMLA retaliation claim. Jones v. Gulf Coast Health Care of Delaware, LLC, 2017 WL 1396165 (11th Cir. Apr. 19, 2017).

Rodney Jones’s job as Activities Director at a long-term care facility included both desk work and more active work, such as assisting with wheelchairs, loading vans, and setting up for events. In 2014, Jones had surgery for a torn rotator cuff, and was granted FMLA leave from September 26 to December 18.  On the last day of the approved leave, Jones’s doctor reported that Jones could not return to work and resume physical activity until February 1, 2015.  Jones asked his supervisor to allow him to return to work on light duty, but the supervisor refused, telling Jones he needed an unqualified fitness-for-duty certification before he could return to work.  Jones was given another 30 days of non-FMLA leave.

During the additional 30 days’ leave, Jones visited Busch Gardens and St. Martin. He posted trip photos to Facebook and texted photos to his co-workers.  When Jones returned from leave, his supervisor confronted him with the photos, said that “corporate” now believed that Jones had been well enough to return to work after the initial FMLA leave, and suspended him.  Shortly thereafter, Jones’s employment was terminated.  Jones sued the employer, alleging that it had interfered with his FMLA rights and retaliated against him for exercising those rights.  The district court granted the employer’s motion for summary judgment.  The Eleventh Circuit, in an opinion written by Judge Gilman visiting from the Sixth Circuit, affirmed summary judgment as to the interference claim but reversed as to retaliation.

The basis for the interference claim was the employer’s refusal to allow Jones to return to work on “light duty” at the end of his FMLA leave. Jones did not dispute that the employer required employees returning from FMLA leave to submit fitness-for-duty certifications, but argued that the employer had dissuaded him from submitting a “light duty” certification despite having allowed two other employees to return from FMLA for “light duty.”  The Eleventh Circuit found that those two employees were not proper comparators—they had different jobs from Jones (requiring different levels of physical activity) and different health conditions from Jones.  “In sum, Jones has not shown that any similarly situated Accentia employee was permitted to return from FMLA leave without submitting the required fitness-for-duty certifications.”

But the Eleventh Circuit reversed summary judgment on the retaliation claim. Jones offered circumstantial evidence of retaliation, triggering the McDonnell Douglas burden-shifting framework.  The Eleventh Circuit disagreed with the district court’s conclusion as to the first part of that analysis—the question whether Jones had established a prima facie case of retaliation, in particular as to the requirement of a “causal connection” between the protected FMLA leave and the adverse employment action.  In that connection, the Eleventh Circuit cited its earlier opinions to the effect that “temporal proximity,” meaning “very close” timing, “is generally ‘sufficient circumstantial evidence to create a genuine issue of material fact of a causal connection.’”

The parties disputed whether “very close” timing existed in the case at hand. The employer measured the timing from the date Jones began his FMLA leave, in September 2014, while Jones measured it from the end of his FMLA leave, in December 2014—just a month before his suspension and termination.  Noting that its prior unpublished opinions “go both ways,” and “[t]he time is therefore ripe to clarify the law on this issue,” the Eleventh Circuit held that “temporal proximity, for the purpose of establishing the causation prong of a prima facie case of FMLA retaliation, should be measured from the last day of an employee’s FMLA leave until the adverse employment action at issue occurs.”  To hold otherwise, the court noted, would make it virtually impossible for an employee taking a full 90 days of FMLA leave to establish “temporal proximity” to an event happening after his or her return to work.

The court went on to find that the record “clearly demonstrates that there is a genuine issue of material fact” as to pretext; the employer claimed that Jones was fired for violations of the company’s social media policy, but could point to no such policy and had not cited that as the reason for the termination at the time termination occurred. Accordingly, the court reversed the judgment in the employer’s favor rather than remand for application of the “pretext” prong of the burden-shifting analysis.

Posted by Valerie Sanders.

Back to top