There’s been a dry spell in the circuits in the EEO field the past couple of weeks. This FMLA case impressed, though, as presenting a nice legal issue of whether “indifference” to an employee’s use of leave time constitutes a legitimate reason for termination — resulting in a rare win for an employee in the Eleventh Circuit.
Martin v. Brevard County Public schools, No. 07-11196 (11th Cir. Sept. 30, 2008): The employee Anthony Martin, a payroll supervisor, had been placed on an “improvement plan” by his school district on April 19, 2004, due (apparently) to slipping ratings on his performance review. Martin had until June 1, 2004 to demonstrate “significant progress.” Ten days later, Martin applied for an FMLA leave for twelve weeks to care for his grand daughter in loco parentis while his daughter (an Army reservist) prepared to report to duty overseas, although the deployment ultimately never occurred. The leave was granted, but Martin was later informed that the “improvement plan” would not be suspended during the leave. Thus, while Martin was out, his contract was not renewed owing to his supposed failure to make “significant progress” on the plan
The Eleventh Circuit reversed summary judgment. First, the panel (in a per curiam, majority opinion) reversed the district court on its finding that Martin was not eligible for FMLA leave. It held that there was a genuine issue of material fact about whether he was acting in loco parentis within the meaning of the term in 29 U.S.C. § 2611(12) and the governing DOL regulation, 29 C.F.R. § 825.113(c)(3):
“We cannot agree with the district court that no reasonable jury could find that Martin stood in loco parentis to Hannah while he was on FMLA leave. During that period, Martin provided Brittany and Hannah substantial financial support, including a home, food, and health insurance. Martin also played a significant role in caring for Hannah even though Brittany was never deployed overseas: he helped with Hannah when Brittany was at home; and he assumed sole responsibility for Hannah when Brittany was at school or Army Reserve drills. We cannot say as a matter of law that Martin stood in loco parentis to Hannah; nor can we say that he did not. Martin has presented sufficient evidence to create a genuine issue of material fact, and the district court erred in concluding otherwise.”
The more vexing problem was the merits of the interference and discrimination claims. Martin claimed that the school district’s failure to reinstate him to his job and decision to terminate him violated both provisions. The school district rejoined that it had a legitimate and unrelated reason for its actions: that Martin did not comply with the terms of the performance improvement plan while he was absent from the job. The panel held that this reason presented a genuine issue of material fact about interference and discrimination:
“The school District contends that Martin was terminated because he failed to fulfill his improvement plan, not because he took FMLA leave. The school District says, in effect, that it was not hostile to FMLA-leave taking but rather indifferent to it: a subtle distinction, yet a legitimate, non-retaliatory explanation. Intent is at issue. And the record contains evidence on which reasonable minds could find pretext, including the school District’s warning to Martin about the ramifications of his taking FMLA leave and the close temporal proximity between Martin’s FMLA leave and termination. Although the school District’s explanation may ultimately prove true, a genuine dispute of material fact nonetheless remains. Summary judgment was not appropriate.”
Judge Kravitch provided addition al thoughts in a special concurrence, which argues (citing a DOL regulation, 29 C.F.R. § 825.215(b)) that the school district’s explanation may not be a valid defense to the interference claim: “Martin’s superior . . . approved Martin’s leave request, but then informed him that taking the leave would prevent him from completing the improvement plan and directly result in the non-renewal of his contract. Thus, the FMLA leave prevented Martin from completing a program required for contract renewal. The school District, therefore, interfered with Martin’s rights under FMLA to take approved leave by not re-hiring him on account of his inability to complete the improvement plan.”