The Second Circuit, in reviving plaintiff Cathleen Graziadio's Family and Medical Leave Act (FMLA) interference and retaliation claims, reminds employers that they share responsibility with employees to comply with FMLA requirements, and cannot place the burden entirely on the employee or, as the panel here admonished, fail to cooperate with the employee altogether.
The panel also explicitly adopts two important standards for family responsibilities-related claims. First, the panel formally adopts the five-part framework long used in the Second Circuit for proving interference claims. The panel also adopts a framework for analyzing associational discrimination claims under the Americans with Disabilities Act (ADA), and in doing so, adopts the Seventh Circuit's narrow view on what constitutes actionable conduct.
Graziadio took a three-week leave under the FMLA to care for her son suffering from diabetes, followed immediately by a second leave to care for her other son, who had broken his leg. When the plaintiff attempted to return to work, the Culinary Institute challenged the validity of the leaves, and requested "addition al paperwork" to justify her absence, while refusing to return her to work or provide specific detail about what paperwork it required. The Culinary Institute took the position that it is not the employer's obligation to explain to the employee deficiencies in FMLA documentation. Graziadio made efforts to comply with the Culinary Institute's requests and stated on several occasions her desire to return to work. The Culinary Institute nevertheless fired Graziadio, claiming that she had abandoned her job and failed to comply with FMLA requirements.
At summary judgment, the district court dismissed Graziadio's FMLA interference claim, holding that, among other grounds, the Culinary Institute had not interfered with Graziadio's right to FMLA leave because she, having failed to submit adequate FMLA paperwork, was not entitled to leave in the first instance.
In reviving Graziadio's FMLA interference claim, the panel formally acknowledged the elements of proof required for a claim of FMLA interference already applied by district courts in this Circuit. Namely, to prevail, a plaintiff must establish:
(1) that she is an eligible employee under the FMLA; (2) that the defendant is an employer as defined by the FMLA; (3) that she was entitled to take leave under the FMLA; (4) that she gave notice to the defendant of her intention to take leave; and (5) that she was denied benefits to which she was entitled under the FMLA.
As to the merits of Graziadio's appeal, the panel found evidence that the Culinary Institute failed to specify the paperwork required, provided Graziadio with incorrect deadlines, was unresponsive to Graziadio's inquiries, and created obstacles to her compliance with its requests. The panel accepted that this evidence could persuade a jury to excuse any failure on the plaintiff's part to comply with FMLA documentation requirements, and created a question of fact as to whether the Culinary Institute had interfered with Graziadio's FMLA rights.
The panel held that the employer's "unresponsiveness may itself run afoul of the FMLA's explicit requirement that employers 'responsively answer questions from employees concerning their rights and responsibilities under the FMLA,' including, inter alia, their obligations regarding medical certification, 29 C.F.R. § 825.300(c)(5)."
Citing again to the Code of Federal Regulations, the panel also observed that an employee need not submit a medical certification supporting a leave "unless and until" the employer specifically requests one. See 29 C.F.R. § 825.305(a). In addition, the employer must give "notice of a requirement for certification each time a certification is required." Id. (emphasis added). Here, the Court held that the Culinary Institute's "vague request for 'paperwork'" was insufficient to trigger Graziadio's obligations to respond.
The panel also reinstated Graziadio's dismissed FMLA retaliation claim, holding that the same evidence supporting FMLA interference would support a finding of pretext under the third element of the McDonnell Douglas framework:
In the case before us, the weakness of the evidence supporting defendants' claim of abandonment permits a jury to disbelieve and to disregard their proffered explanation. In particular, Graziadio may be able to show that it would have been unreasonable for defendants to believe she had abandoned her position and, thus, that such a belief could not have motivated her termination. . . . There is no question but that defendants refused to reinstate Graziadio because she took leave that they declined to approve under the FMLA. It requires little imagination to infer that they fired her for the same reason.
Finally, the panel affirmed dismissal of Graziadio's claims under the often-overlooked provision of the ADA which prohibits "excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association." 42 U.S.C. § 12112(b)(4). To analyze Graziadio's claim on appeal, the panel adopted the four-part standard of proof employed in other circuits:
(1) that she was qualified for the job at the time of an adverse employment action; (2) that she was subjected to adverse employment action; (3) that she was known at the time to have a relative or associate with a disability; and (4) that the adverse employment action occurred under circumstances raising a reasonable inference that the disability of the relative or associate was a determining factor in the employer's decision.
However, the panel, citing Larimer v. International Business Machines Corp., 370 F.3d 698 (7th Cir. 2004), identified only three theories for this claim:
(1) "expense," in which an employee suffers adverse action because of his association with a disabled individual covered by the employer's insurance, which the employer believes (rightly or wrongly) will be costly; (2) "disability by association," in which the employer fears that the employee may contract or is genetically predisposed to develop the disability of the person with whom he is associated; and (3) "distraction," in which the employer fears that the employee will be inattentive at work due to the disability of the disabled person.
The panel concluded that Graziadio's argument that she was fired because her employer felt she had taken too much leave from work was inconsistent with a finding of "distraction," the only theory the panel recognized as applicable. The panel did not explain why "too much leave from work" to care for a disabled family member would not itself rise to the level of associational discrimination, or could not satisfy the "expense" theory of liability.