Erdman v. Nationwide Ins. Co., No. 07-3796 (3d Cir. Sept. 23, 2009); Risch v. Royal Oak Police Dept., No. 08-1883 (6th Cir. Sept. 23, 2009)

| Sep 22, 2009 | Daily Developments in EEO Law |

The Third Circuit reverses summary judgment in an FMLA retaliation case — rejecting a dubious defense that the FMLA retaliation section does not prevent an employer firing someone before they take FMLA leave — though, in the same decision, the panel rejects a parallel claim under the “association” section of the ADA. In the Sixth Circuit, the panel majority reverses summary judgment on a claim of Title VII gender discrimination for failure to promote an arguably better-credentialed woman over two male applicants.

Erdman v. Nationwide Ins. Co., No. 07-3796 (3d Cir. Sept. 23, 2009): A year ago in Bryant v. Dollar General Corp., 538 F.3d 394 (6th Cir 2008) an employer tried arguing (unsuccessfully) that the plain language of the FMLA does not bar firing an employee for taking FMLA leave. In this case, the employer tries another tack, arguing that the FMLA retaliation section by its plain language does not bar firing someone before they take leave.  This argument fares no better, I am happy to report.

The employee, who had been working part time while caring for a daughter with Down Syndrome, was forced to return to full-time status.  She was denied vacation time during August (time that she used to prepare her daughter’s return to school), so she applied for FMLA leave.  According to the opinion:

“On April 14, 2003, Erdman began working full-time and a week later she submitted paperwork requesting FMLA leave from July 7 to August 29. A human resources employee responded to this request by telling Erdman that ‘as far as the FMLA, I probably don’t see any problems with this.’

“Nationwide fired Erdman on May 9, 2003, citing her purported behavioral problems which culminated on May 8 when Erdman used profanity during a phone conversation that was monitored for quality control purposes. Company policy states that personal calls are not monitored, and Erdman prefaced a personal call with a profane disclaimer: ‘This is a
personal call and should not be reviewed for quality purposes, assholes.'”

Reviewing summary judgment, the Third Circuit reverses in part, finding that the plaintiff was entitled to a jury trial on her FMLA retaliation claim.  It first decides that the employee presented a genuine issue of material fact about whether the employer had notice that she worked at least 1,250 hours (making her eligible under the FMLA).

It then turns to the defendant’s argument that the FMLA retaliation section does not apply because Erdman had not yet taken FMLA leave when she was fired. The argument was based on language in a prior decision, Conshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 146 (3d Cir. 2004), that it is an element of an FMLA retaliation claim that the employee “took an FMLA leave,” and 29 C.F.R. § 825.220(c) (“employees who have used FMLA leave”).  Holds the court:

“Simply put, this Court has never held that an employee fired after requesting FMLA leave but before the leave begins cannot recover for retaliation, and Nationwide cites none of our precedents other than Conshenti to support this proposition. Reading Conshenti as Nationwide urges would perversely allow a employer to limit an FMLA plaintiff’s theories of
recovery by preemptively firing her. Accordingly, we interpret the requirement that an employee ‘take’ FMLA leave to connote invocation of FMLA rights, not actual commencement of leave. We therefore hold that firing an employee for a valid request for FMLA leave may constitute interference with the employee’s FMLA rights as well as retaliation against the employee.”

The case is not a complete success for the plaintiff, though.  The panel affirms summary judgment on an addition al claim that Erdman’s termination violated the ADA section prohibiting discrimination against employees who “associate” with disabled persons, 42 U.S.C. § 12112(b)(4).  The panel holds that the ADA did not protect an employee against a company’s wish to avoid accommodating a request for time-off to take care of a disabled child:

“[T]he record is devoid of evidence indicating that Nationwide’s decision to fire Erdman was motivated by Amber’s disability. Indeed, Nationwide was aware of Amber’s disability for many years before Erdman was fired. The most Erdman can hope to show is that she was fired for requesting time off to care for Amber (the basis for her FMLA claim), not because of unfounded stereotypes or assumptions on Nationwide’s part about care required by disabled persons.”

Though Erdman gets a trial on her first claim, therefore, she is limited under the FMLA to make-whole relief (and possible liquidated damages), but no compensatory or punitive damages under the ADA.

Risch v. Royal Oak Police Dep’t, No. 08-1883 (6th Cir. Sept. 23, 2009):  The panel majority summarizes the claim in this Title VII case:

“On several occasions between 2001 and 2005, Risch applied for a promotion within the Department and was passed over by Police Chief Theodore Quisenberry (“Quisenberry”) in favor of male candidates who had received lower scores under the civil-service-promotion system used by the Department. Under that system, a candidate for promotion in the Department must first score 70% or higher on a written examination. Candidates who meet that minimum  requirement are then given an overall numerical score based upon a weighted scale: 70% for written examinations, 20% for performance reviews conducted by the Department, and 10% for seniority. Once each candidate is given a numerical score, the City of Royal Oaks Civil Service Board creates a ranked list of candidates that is presented to the Police Chief. Pursuant to the city’s civil-service ordinance, the Police Chief must fill each vacancy by choosing one of the top three scorers on the promotion list.”

Each year Risch, a female officer, was the second or third-ranked for promotion, but always passed over, often by men ranked below her.  The department offered, as its non-discriminatory reasons, that it promoted by “service and performance as demonstrated by [candidates’] performance evaluations, test scores, initiative and leadership qualities” and that Risch was not among those he promoted “because the other officers in the eligibility list had better test scores, better performance evaluations and demonstrated more initiative and leadership qualities than [Risch].” (Only the final year failure to promote, in 2005, was the subject of the suit; the other claims were time-barred.)

The panel majority reverses summary judgment, holding that in addition to the pattern of promoting men whom Risch had bested or equalled in score, the record suggested that there was something rotten in the department:

“The record indicates that male officers frequently made degrading comments regarding the capabilities of female officers, expressed the view that female officers would never be promoted to command positions, and made generally degrading remarks about women. Among the remarks alleged to have been made by male officers are the following: (1) ‘[T]he chief [will] never have a female on the command staff.’ ROA at 96 (Risch Dep. Tr. at 75). (2) ‘None of you [female officers] will ever go anywhere . . . .’ Id. (3) A ‘majority’ of male officers told Risch that women do not belong in the police force. Id. . . . .”

The dissent (by Judge Griffin) lays out, by contrast, that the commanding officer promoted several women, that Risch’s score kept dropping each year and that the avowed circumstantial evidence was mostly inadmissible. 

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