Retaliation Archives - Employing Alabama

Think Twice Before Firing an Injured Employee

May 13, 2021May 13, 2021Robert C. Lockwood

doctor injured fmla ada workers compensation employee alabama employment law — If your employee has been going to the doctor, think twice before you decide to fire them.

Most businesses are well-oiled-machines that rely upon their employees to keep the machine running. And, managers can get frustrated when employees aren’t available to work. But, businesses need to be very cautious when dealing with employees who miss work because of injury or illness. Employees with physical impairments can have rights under federal laws like the Americans with Disabilities Act and the Family and Medical Leave. Additionally, Alabama law prohibits employers from firing employees because they have filed a worker’s compensation claim.

In a recent case, a manager’s impatience with the workers’ compensation process was a key factor in the Alabama Supreme Court’s decision to send a retaliation case to trial. See Register v. Outdoor Aluminum, Inc., No. 1200181, 2021 WL 1826991 (Ala. May 7, 2021). Laura Register was injured on-the-job working for Outdoor Aluminum, Inc. on October 20, 2016. Register immediately began treatment with the company’s worker’s compensation physician and she was assigned a nurse case manager to facilitate her treatment. She was initially cleared to return to work light duty in March 2017, but was soon placed off-work after complaining about continuing symptoms. The workers’ compensation physician referred her to an orthopedic surgeon for neck pain and headaches.

This is where managerial frustration comes into play. On June 6, 2017, the nurse case manager told Register’s supervisor that she had been referred by the orthopedic for a Functional Capacities Evaluation, and she would need a follow-up appointment to review the results of that FCE. The supervisor responded with e-mails expressing a “negative attitude” toward the workers’ compensation treatment:

“Just when will this happen? This is dragging out way past its time.”

“We seem to be just going from one place to another TRYING to find a place that will say she’s disabled. She has no trouble going to yard sales and such. It seems light duty is easier than that.”

Register underwent the FCE on June 20, 2017. On July 18, 2017, she visited the regular workers’ compensation doctor, who referred her to a pain management doctor and placed her off-work until July 27, 2017.

But, on July 20, 2017, the supervisor: (1) e-mailed the case nurse; (2) learned that the FCE was complete; and, (3) was told that the orthopedic released Register to return to full duty with zero impairment. On July 21, 2017, the supervisor terminated Register’s employment, saying that she should have “reported back to work on 6/29/17” and concluding “it is obvious to me that you no longer wish to be employed here ….” The supervisor failed to recognize that the regular workers’ compensation physician had placed Register off work, and that Register still had not met with the orthopedic to review the FCE results. To make matters worse, Outdoor Aluminum had a three-step progressive discipline policy that it did not follow.

Outdoor Aluminum was able to convince a trial court judge that it did not violate Alabama’s retaliatory discharge statute. See Ala. Code § 25-5-11.1. But, the Alabama Supreme Court found the evidence was sufficient to warrant a jury trial. In particular the Court noted:

Outdoor Aluminum was aware of Register’s injury and the fact that its regular workers’ compensation physician was treating Register. And, that regular physician placed Register off-work through July 27, 20217. The inference seems to be that Outdoor Aluminum should have checked on Register’s status with the regular physician before firing her.
The supervisor’s emails before the FCE “indicate either that he did not believe that Register’s injuries were serious or that he believed that she was exaggerating her injuries to stay out of work.”
Outdoor Aluminum did not comply with its own disciplinary policy. While Outdoor Aluminum argued that it had discretion to deviate from its policy, there was nothing in writing establishing that discretion.
The supervisor was aware that Register was supposed to follow-up with the orthopedic to discuss the results of the FCE. But, Register did not receive a copy of the FCE or meet with the orthopedic before she was fired.

The Register case provides a simple lesson for employers: Go slow before firing an employee who is suffering from an injury, illness or impairment. Yes, employee absences are frustrating. But, state and federal laws are designed to protect employees who miss time for health-related reasons. If you act too quickly, and without all of the relevant information, you could be setting yourself up for a legal claim.

Complaints About Homosexual Discrimination Not Protected by Title VII

July 18, 2018Robert C. Lockwood1 Comment

Title VII homosexual discrimination retaliation Alabama Employment Law — Employees who complain about homosexual discrimination are not protected by Title VII’s anti-retaliation provisions.

In some areas of the country, federal courts have interpreted Title VII of the Civil Rights Act of 1964 to prohibit discrimination on the base of sexual orientation, including homosexuality. However, the Eleventh Circuit Court of Appeals, which interprets federal law for Alabama, has held that sexual orientation is not protected by Title VII. In December of 2017, the United States Supreme Court declined to review the Eleventh Circuit’s position on this issue. Here’s a link to a post that I wrote on that decision: Supreme Court Won’t Review 11th Circuit LGBT Decision.

Although sexual orientation is not protected in the Eleventh Circuit, the court has prohibited discrimination against employees for “failure to conform to gender stereotypes.” Here’s a link to a previous post that discusses the issue: LGBT Issues in the Workplace. In short, employers in the Eleventh Circuit can discriminate based upon sexual orientation, but arguably can’t discriminate because an employee’s manner, attributes, attire, etc. don’t comply with gender stereotypes. As a result, homosexual employees who suffer discrimination are forced to file claims alleging that they suffered discrimination, not because of their sexual orientation, but because of their failure to conform to gender stereotypes.

In Brakeman v. BBVA Compass, No. 2:16-01344-JEO, 2018 WL 3328909 (N.D. Ala. Jul. 6, 2018), Chief United States Magistrate Judge John Ott discussed these issues in the context of a retaliation claim. Krystal Brakeman is gay and married to another woman. She claimed that a co-worker made statements to the effect that Brakeman needed to “talk to Jesus” and “get a man in her life.” Ms. Brakeman complained to a supervisor about those statements. Two months later, she was terminated from employment. Her employer asserted that the termination was based upon separate improper conduct by Ms. Brakeman and a lack of truthfulness during an investigation of that conduct.

Ms. Brakeman sued and asserted several theories, including a claim that she was fired in retaliation for complaining about the homosexual-oriented comments of her co-worker. Because homosexual discrimination is not prohibited in the Eleventh Circuit, complaints about homosexual discrimination are not protected. Therefore, Ms. Brakeman argued that she suffered retaliation for complaining about a failure to comply with gender stereotypes. Judge Ott refused to accept that argument, finding that “a plaintiff cannot ‘bootstrap’ an invalid sexual orientation claim into a viable gender stereotyping claim by asserting that homosexuals failed to comply with gender stereotypes because of their homosexuality, real or perceived. …. To hold otherwise ‘would mean that every case of sexual orientation discrimination would translate into a triable case of gender stereotyping.'”

In short, Judge Ott found that Ms. Brakeman was really complaining to her supervisor about homosexual discrimination. And, because homosexual discrimination is not prohibited in the Eleventh Circuit, Ms. Brakeman’s complaints were not protected by Title VII’s anti-retaliation provisions.

At this point, there do not appear to be any decisions from the Eleventh Circuit itself addressing retaliation and gender stereotyping. Nevertheless, Judge Ott’s analysis appears to be a natural extension of the Eleventh Circuit’s position on sexual orientation discrimination. As a result, at least in the Eleventh Circuit, complaints about sexual orientation discrimination are unlikely to be protected by Title VII’s anti-retaliation provisions.

Defense Contractor Whistleblower Protection Act Could Impact Alabama Employers

March 8, 2018Robert C. Lockwood

Defense Contractor Whistleblower Protection Act Alabama Employment Law — The Defense Contractor Whistleblower Protection Act could impact many employers in Alabama.

Alabama employers need to know about the Defense Contractor Whistleblower Protection Act, 10 U.S.C. § 2409. Off the top of my head, I can identify major military bases at Redstone Arsenal, Maxwell Air Force Base and Fort Rucker. Private defense contractors will be an integral part of each such base. Moreover, many of my defense contractor clients based in Huntsville have employees outside Alabama. Thus, they need to be aware of this Act.

In short, the Whistleblower Protection Act protects employees from retaliation if they make complaints about violations related to Department of Defense or NASA contracts, or dangers to public safety. More particularly, the Act provides:

(1)An employee of a contractor, subcontractor, grantee, or subgrantee or personal services contractor may not be discharged, demoted, or otherwise discriminated against as a reprisal for disclosing to a person or body described in paragraph (2) information that the employee reasonably believes is evidence of the following:

(A) Gross mismanagement of a Department of Defense contract or grant, a gross waste of Department funds, an abuse of authority relating to a Department contract or grant, or a violation of law, rule, or regulation related to a Department contract (including the competition for or negotiation of a contract) or grant.

(B) Gross mismanagement of a National Aeronautics and Space Administration contract or grant, a gross waste of Administration funds, an abuse of authority relating to an Administration contract or grant, or a violation of law, rule, or regulation related to an Administration contract (including the competition for or negotiation of a contract) or grant.

10 U.S.C. § 2409(a)(1). The list of persons/entities to whom an employee can complain is extensive. See 10 U.S.c. § 2409(a)(2). Most importantly, employees are protected if they make an internal company complaint to a “management official or other employee of the contractor or subcontractor who has the responsibility to investigate, discover, or address misconduct.”

There have only been a handful of trial court cased dealing with the Whistleblower Protection Act. Even so, one of those case was issued by Judge Abdul Kallon in the Northern District of Alabama late last year. See Devillo v. Vision Centric, Inc., No. 5:15-cv-02211-AKK, 2017 WL 3425465 (N.D. Ala. Aug. 9, 2017).

For any lawyers reading this, there is a slight divergence of authority on the proper method for analyzing Whistleblower Protection Act claims. Judge Kallon followed the lead of other District Court judges and applied the traditional burden-shifting scheme for retaliation claims arising under Title VII of the Civil Rights Act. But, recently, Magistrate Judge Michael Hegarty in Colorado found that the Whistleblower Protection Act contained a statutorily-mandated analysis, which he summarized as follows:

[An employee] will succeed on his claim for retaliation in violation of 10 U.S.C. § 2409 if he demonstrates (1) he engaged in protected activity as described in the statute, (2) the [employer’s] decision maker knew he engaged in protected activity, and (3) his protected activity was a contributing factor in the adverse employment action taken against him, unless (4) [the employer] shows by clear and convincing evidence that it would have taken the employment action despite [the employee’s] protected activity.

Cejka v. Vectrus Sys. Corp., No. 15–cv–02418–MEH, 2018 WL 879522 at *14 (D. Col. Feb. 14, 2018).

Supreme Court Limits Whistleblower Claims Under Dodd-Frank

March 7, 2018Robert C. Lockwood

Whistleblower retaliation Dodd-Frank Alabama Employment law — The Supreme Court limited whistleblower retaliation claims under Dodd-Frank.

The United States Supreme Court recently released an opinion in which it narrowly defined the term “whistleblower” in the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank”). Digital Realty Tr., Inc. v. Somers, No. 16-1276, 2018 WL 987345 (U.S. Feb. 21, 2018). As a result, the Court limited the class of employees who can sue for retaliatory discharge under Dodd-Frank. Under the Court’s interpretation, an employee is only entitled to protection if he or she directly reported violations of Dodd-Frank to the United States Securities and Exchange Commission (“SEC”). Thus, employees receive no protection under Dodd-Frank for reporting violations internally at their company, or to some other source.

Under Section 922 of Dodd-Frank, a “whistleblower” is an individual who provides “information relating to a violation of the securities laws to the [SEC].” Whistleblowers are entitled to protection under Dodd-Frank from retaliation. In attempt to broaden Dodd-Frank’s whistleblower protections, the SEC adopted rules expanding the definition of “whistleblower” to employees who made internal complaints with their employers.

The employee in Digital Realty claimed that he was terminated after he reported alleged violations of the securities laws internally to company management. The employee did not make a report to the SEC, and his employer argued that the claim was barred by the express language of Dodd-Frank. The Ninth Circuit Court of Appeals nevertheless relied upon the SEC’s interpretation and found that the employee was entitled to whistleblower protection.

The Supreme Court’s opinion unanimously reversed the Ninth Circuit. The Court particularly relied upon the clear statutory language of Dodd-Frank, which defined a “whistleblower” as a person who made a report to the SEC. The Court also found that Congress’s “core objective” in Dodd-Frank was “to prompt reporting to the SEC. ”

The Digital Realty decision is a mixed blessing for employers. On the one hand, it limits the circumstances in which an employee can sue under Dodd-Frank. On the other hand, Digital Realty could cause employees to skip internal complaint procedures and proceed straight to the SEC.

ERISA Retaliation: More Limited Than Other Statutes

January 15, 2018Robert C. Lockwood

ERISA whistleblower retaliation Alabmaa Employment Law — ERISA Whistleblowers Have Limited Rights

Employees who are fired for complaining about abuse of their retirement benefits under ERISA have fewer rights than workers who complain about violations of other laws. See Atkins v. Greene County Hospital Board, No. 7:16-cv-00567-LSC, 2017 WL 6383183 (N.D. Ala. Dec. 14, 2017). Marilyn Atkins was employed by Greene County Hospital, which allowed her to participate in a defined benefit pension retirement plan through the Retirement Systems of Alabama. The hospital deducted retirement contributions from the paychecks of all full-time employees like Atkins, and put those funds into the Hospital’s general fund — from which general expenses were paid.

The Hospital was supposed to send the employee contributions to RSA “around” the tenth of each month, but almost never sent the payments within that time. Moreover, some payments were delayed by as many as three months. Atkins complained about the late payments to the Hospital’s CFO, and also made public complaints to the Hospital’s Board of Directors on October 20, 2015. She was terminated from employment on October 29, 2015 for allegedly violating the Hospital’s “no call/no show” absence policy.

Ms. Atkins sued the Hospital claiming a breach of fiduciary duties under the Employee Retirement Income Security Act (“ERISA”) and for violating ERISA’s whistleblower protections. On December 14, 2017, United States District Court Judge L. Scott Coogler dismissed Ms. Atkins’s claims. Judge Coogler found that Ms. Atkins did not possess standing to sue for breach of fiduciary duty, and even if she did, she failed to prove her claims.

From an employment law perspective, Judge Coogler’s analysis of the ERISA whistleblower claims was more interesting. He found that the anti-retaliation provisions of ERISA are not as extensive as those found in other federal statutes such as Title VII of the Civil Rights Act of 1964. Those statutes protect employees who oppose, report or complain about unlawful practices. In contrast, ERISA only protects persons who provide information in response to an “inquiry.” Thus, Judge Coogler joined several other courts from around the country and found that employees are only protected by ERISA if they “participate, testify or give information in inquiries, investigations, proceedings or hearings.” Ms. Atkins only complained internally at the Hospital, and she did not “participate, testify or given information in inquiries, investigations, proceedings or hearings.” Therefore, Judge Coogler found that she did not possess an ERISA retaliation claim.

ERISA retaliation is a relatively rare claim. Nevertheless, Judge Coogler has provided Alabama employers an additional weapon if they are sued for ERISA retaliation in the future.

Does the First Amendment Protect Employees Who “Take a Knee”?

November 14, 2017November 14, 2017Robert C. Lockwood

First Amendment Alabama Employment Law constitution — Does the First Amendment Provide Protection to Employees in the Private Sector?

I was just driving back to work from lunch and listening to a popular sports talk radio program. The host of that show was addressing the recent issues that have arisen when professional athletes have protested during the national anthem. As part of the discussion, the host quoted extensively from a recent opinion piece by Stan Van Gundy, the coach of the NBA’s Detroit Pistons: “Athletes Who Protest Are Patriots” In particular, part of Mr. Van Gundy’s argument relies upon the First Amendment to the United States Constitution:

Honoring America has to mean much, much more than standing at attention for a song (one which, by the way, contains racist language in later verses). One of the most important freedoms that our military has fought for over two-plus centuries is the freedom of speech. When these professional athletes protest during the anthem, they are exercising one of the very freedoms for which our military men and women fought so valiantly, thus honoring our highest values and, in turn, those who have fought for them.

Please read the entire article. Mr. Van Gundy makes substantial arguments regarding the message that these professional athletes are attempting to convey.

I am not taking a favorable or unfavorable position with regard to these protests. Both sides are passionate about their viewpoint, and I appreciate both sides. But, as a lawyer who practices employment law and regularly defends governmental entities accused of violating the constitution, the continued references to “Free Speech” just bother me.

In the vast majority of circumstances, the First Amendment to the United States Constitution does not provide protection to employees in the private sector. The First Amendment provides that “Congress shall make no law … abridging the freedom of speech ….” The key word here is “Congress.” Statutes and case law have extended the term “Congress” to most governmental entities. But, private employers (including the NFL) are not governmental entities and they are not required to comply with the First Amendment. I made this point in my very first blog post, when I noted that you can fire an employee who keeps yelling “Roll Tide” in the office. As a result, employees who protest in a private workplace run the risk of termination or other adverse consequences as a result of their protests.

I haven’t reviewed the collective bargaining agreement between the NFL Players Association and the NFL. Similarly, I don’t have access to any NFL player’s employment contract. It’s possible that those documents, or some other source of legal rights, protects these players’ ability to protest. But, the First Amendment’s right to Free Speech does not provide them with legal support.

11th Circuit Rejects “Target of Opportunity” Argument

October 20, 2017Robert C. Lockwood

target of opportunity retaliation Alabama Employment Law — A “target of opportunity” might work for a B-52 bomber, but it won’t fly in a retaliation case.

Over 20 years ago, a lawyer in a case that I was working on made a “target of opportunity” argument in a retaliation case. He claimed that his client engaged in protected activity more than a year before she was terminated, but that her employer used a later, relatively small instance of misconduct as a “target of opportunity” to get rid of her. According to him, the small instance of misconduct was the first opportunity that the employer was given to retaliate against his client after her protected conduct. In the course of that argument, the attorney eloquently made reference to the movie “Dr. Strangelove,” and it has always been a case that I remembered.

On October 10, 2017, the Eleventh Circuit Court of Appeals issued an opinion that shoots his “target of opportunity” argument out of the sky. See Cooler v. Layne Christensen Co., No. 16-17773, 2017 WL 4512159 (11th Cir. Oct. 10, 2017). Joseph Cooler was an African-American who was subjected to a difficult work environment in which white co-workers would use the “N Word” and call him “boy.” He began dating a white woman in October 2013, and his co-workers increased their hostile treatment of him. Cooler reported the treatment to a supervisor and reported other conduct in October 2013. The supervisors never investigated or followed-up. On May 1, 2014, Cooler was attending an out-of-town training, but missed between 20 and 40 minutes of that training. When confronted, Cooler denied any responsibility. His employer terminated his employment, allegedly for wasting company time and refusing to accept responsibility.

Cooler sued for retaliation, claiming that he was actually fired for his complaints about racial harassment. In retaliation cases, an employee is required to prove that his protected complaints caused his termination. In most cases, causation is proved by close timing between the complaints and the termination. Generally in the Eleventh Circuit, if a termination occurs more than three months after a complaint, causation will be difficult to prove.

In Cooler’s case, at least six months passed between his complaints and his termination, which the Court found “was not close in time to his protected activity.” Thus, Cooler’s attorney attempted to make the “target of opportunity” argument: “[H]e argues he was fired at Layne’s first opportunity to retaliate against him. Cooler explains that he was not disciplined in any way before the training, so missing part of the training was the first opportunity Layne had any excuse to fire him.” The Eleventh Circuit rejected that argument by essentially finding that the missed training was not the first opportunity for retaliation. Instead, Cooler was continuously employed during the six-month period and his employer had “a continuous opportunity to retaliate against him.” Therefore, the Court found that the six-month period was too long, and Cooler’s claim failed for lack of causation.

One word of caution to employers: The Eleventh Circuit did not completely obliterate the potential for a “target of opportunity” argument in future cases. In a footnote, the Court recognized that the “target of opportunity” argument might be successful in situations “where the retaliator just assumed a position of power over the plaintiff.”

Employer “Sick and Tired” of EEOC Charges Not Liable for Retaliation

August 21, 2017Robert C. Lockwood

"sick and tired" EEOC retaliation Title VII — Sometimes, an employer “sick and tired” of EEOC complaints can fire an employee without violating Title VII’s anti-retaliation provisions.

The Eleventh Circuit Court of Appeals recently found that an employer who was “sick and tired” of EEOC complaints was not liable for retaliatory discharge of an employee. Matthews v. City of Mobile, No. 16-13155, 2017 WL 3500052 (11th Cir. Aug. 15, 2017). Cassandra Matthews was employed by the City of Mobile, Alabama as a Public Safety Dispatcher II in the Mobile Police Department’s Communications Unit. When the City received 911 calls, Matthews was responsible for identifying emergencies, dispatching law enforcement officers and notifying officers of any updated information provided by callers.

On November 21, 2012, Matthews dispatched police officers to the scene of a fight. Immediately after dispatching officers, she took a personal phone call. A 911 operator attempted to inform Mathews that a weapon was reported at the scene. But, Matthews did not provide that updated information to the dispatched officers.

Thereafter, Matthews met with Mobile’s Chief of Police, Michael Williams. Williams transferred Matthews to a Traffic Unit while the Department conducted an investigation of her failure to update the officers. During the meeting, Williams mentioned EEOC complaints previously filed by Matthews and said that he was “sick and tired” of her EEOC complaints. Matthews testified that Williams had her EEOC complaints on his desk during the meeting. Matthews had filed: (1) an EEOC charge in October 2011; (2) a second EEOC charge in February 2012; (3) a federal discrimination law suit in May 2012; (3) a third EEOC charge in October 2012; and, (4) an internal complaint of harassment and discrimination in November 2012.

On January 24, 2013, Matthews received a hearing before a Trial Board of three members — each appointed by Chief Williams. That Board recommended her termination for neglect of duty.

The Eleventh Circuit found that Matthews’ termination was not retaliation for her EEOC complaints. Instead, the Court found that Matthews failed to demonstrate that the reason for termination (taking a personal call while on an emergency dispatch) was a false reason. The Court further found that Williams'”sick and tired” statements were essentially absolved by the involvement of the Trial Board. Even though Williams appointed the Trial Board, Matthews offered no evidence that the Board knew of her EEOC complaints, and the Court concluded that it would be impermissibly speculative to impute any such knowledge.

Matthews represents the extremely rare case where an employer can make reference to an employee’s EEOC charges during termination, and manage to avoid liability for retaliation. For other employers, my advice is to avoid any reference to past discrimination complaints if an employee engages in misconduct worthy of termination.

FMLA: Even a Mistaken Reason Is a Legal Reason for Termination

August 3, 2017Robert C. Lockwood

FMLA Mistake — FMLA: Even a mistaken reason for termination can be a permissible reason.

A recent case arising under the Family and Medical Leave Act (“FMLA”) reinforces the maxim that an employee can be fired for a good reason, a bad reason, or no reason at all — so long as the reason does not violate federal protections. See Neal v. T-Mobile, USA, Inc., No 16-16304, 2017 WL 270354 (11th Cir. Jun. 22, 2017). In Neal, Latasha Neal took FMLA leave and was scheduled to return to work with T-Mobile on December 31, 2012. Even though she exhausted her FMLA leave, T-Mobile extended her leave period to January 10, 2013. Then, Ms. Neal negotiated a further extension with her district manager, Carl Graden, so that she was scheduled to return to work on January 22, 2013. When she failed to return to work on that date, T-Mobile notified Ms. Neal that she had to submit a release-to-return-to-work from her physician by January 25, 2013. If she failed to submit the release within that time, she would be deemed to voluntarily terminate her employment.

On January 25, 2013, Carl Graden called T-Mobile’s leave of absence team, which told him that Ms. Neal failed to submit the release form. So, Graden terminated Ms. Neal’s employment. In reality, Ms. Neal submitted the form, but it was mis-filed. So, Graden’s reason for termination was mistaken. Ms. Neal sued for FMLA retaliation.

The Eleventh Circuit Court of Appeal found that Ms. Neal’s termination was not retaliatory. In particular, the Court relied upon Graden’s testimony that he did not know that Ms. Neal had submitted the return-to-work form, even though other T-Mobile employees did know. This is simply re-enforces a previous blog post where I mentioned that ignorance of a decision-maker can sometimes be a good thing in discrimination actions: Ignorance Can Be A Good Excuse

In a “fair” world, Mr. Graden would change his mind upon learning of the mis-filed form, and re-hire Ms. Neal. But, the FMLA and other federal laws are not necessarily concerned with “fairness.” Instead, so long as an employer makes employment decisions that are not based upon protected characteristics (like FMLA leave), then even unfair terminations are legal.

FMLA: Waiver of Reinstatement Rights By Requesting More Leave

July 31, 2017Robert C. Lockwood

FMLA reinstatement waiver — Employees may be waiving their right to reinstatement by requesting more leave after the expiration of 12 weeks of FMLA leave.

Employees may be waiving their FMLA rights by requesting additional leave at the end of their statutorily-mandated 12-week period. See Jones v. Gulf Coast Health Care of De., 854 F.3d 1261 (11th Cir. 2017). Rodney Jones was an activities director at a nursing home who underwent rotator cuff surgery. His employer had a policy requiring a fitness-for-duty certification before returning from FMLA leave. When Mr. Jones was not medically cleared at the end of his FMLA 12-week period, he requested, and received, an additional 30 days of leave. While on that extended leave, he visited Busch Gardens theme park twice, and vacationed in St. Martin. Upon returning to work Mr. Jones was terminated because his employer believed he was well-enough to work at an earlier point.

The Jones case actually discusses several issues of significance for employers and employees under the FMLA.

Waiver of Rights by Requesting Additional Leave

Mr. Jones’s employer gave him an additional 30-days of leave, but “[s]ignificantly, this additional leave was not an extension of Jones’s FMLA leave.” The Eleventh Circuit stopped just short of announcing a concrete rule on waiver. Nevertheless, the Court is clearly learning towards such a rule: “Relevant caselaw suggests that an employer does not interfere with an employee’s right to reinstatement if that employee is terminated after taking leave in a excess of the 12 weeks permitted by the FMLA.” The Court found that “Jones likely waived his FMLA right to reinstatement by taking an additional 30 days of medical leave ….” Nevertheless, the Court found other reasons to uphold the termination.

Fitness for Duty

“[A]n employee returning from FMLA leave who cannot perform the essential functions of his job due to a physical condition need not be reinstated or restored to another position.” Moreover, an employer may lawfully condition reinstatement upon receipt of a fitness-for-duty certification from a physician. But, the employer must have a uniformly-applied fitness-for-duty policy.

Mr. Jones argued that his employer did not have a uniformly applied policy, because it allowed other employees to return on light duty, but not him. The Eleventh Circuit rejected that argument and placed significant limits on the ability of employees to compare themselves to others. The Court found that comparator employees must be “similarly situated.” And, the employees that Jones compared himself to were not similarly situated because they: (1) held different jobs with different duties; and, (2) were recovering from different maladies.

Retaliation – Time Limits for Causation

While the Eleventh Circuit’s decision with regard to reinstatement significantly limits employees’ rights, another part of the Jones opinion helps employees asserting retaliation. Jones claimed that his termination was not related to his vacations, but was retaliation for seeking FMLA leave. A retaliation claim requires proof that termination was caused by a request for FMLA leave. The most frequent way to prove causation is through temporal proximity — a short period of time between assertion of FMLA rights and retaliation. In the Eleventh Circuit, a period of two or three months between assertion of rights and termination usually satisfies the temporal proximity requirement.

Before Jones, Eleventh Circuit courts were split on whether the time limits for causation begin at the beginning or at the end of the FMLA leave. Remember, FMLA leave is essentially three months of leave. In Mr. Jones’s case, he was fired four months after requesting FMLA leave, but only one month after the end of his FMLA leave.

The trial court found that Mr. Jones’s time began running from the beginning of his request for FMLA leave, and that a delay of four months for termination was too long to establish causation. The Eleventh Circuit reversed that decision and established a new rule for retaliation claims: temporal proximity “should be measured from the last day of an employee’s FMLA leave until the adverse action at issue occurs.” Because only one month passed from the last day of Jones’s FMLA leave to his termination, the Court reversed dismissal of his retaliation claim.

In summary, Jones is a good news/bad news case for employers. On the one hand, the Eleventh Circuit made it more difficult for employees to assert claims for interference with FMLA rights. On the other hand, the Court made it easier to prevail on retaliation claims.