Jottings By An Employer's Lawyer

Tuesday, August 18, 2009

Ignorance of the FMLA Is No Excuse; In Fact, It Could Be Evidence

That's just one lesson to be learned from the 10th Circuit's decision in DeFreitas v. Horizon Management Corp. (10th Cir. 8/14/09) [pdf]. In reversing the lower court's grant of summary judgment on DeFreitas interference with FMLA claim, the Court noted:

It would be eminently reasonable to believe that an employer who was ignorant of the FMLA—as Mr. Terry admitted he was before Ms. DeFreitas complained of her firing—would engage in the very practice that the FMLA was enacted to prevent [firing employees who missed too much work for medical care].

The opinion is also a good example of how employers can easily get trapped by their own policies and words. Here, although the claimed reason for termination was conduct uncovered while she was out on medical leave for 6 weeks, the Court found that:

  • she had progressed rapidly from entry level to Vice President within two years;
  • there were no written warnings for performance issues;
  • there were numerous written positive comments from various members of management about her performance;
  • although the company had a progressive discipline system that emphasized no employee would be terminated without receiving a written warning and being given a chance to improve, that did not occur;
  • the employer's handbook said that every terminated employee would be given an exit interview including putting in writing the reasons for the termination and the policies that have been broken, but this was not done in her case.

Vince Lombardi said football is two things: blocking and tackling. The absence of written documentation of poor performance and not following your own procedures, might just be the HR equivalent.


What I find surprising is that the district court thought to grant summary judgment on these facts. The timing of the termination just after the employee had disclosed that she would need medical leave -- that timing alone should've been sufficient circumstantial evidence to raise a triable issue of fact. I find it mind-boggling that district court judges continue to dismiss claims even where there is close proximity in time. Then again, that is exactly what the judge did to me in my last FMLA case.
Good points for employer and employees, alike. But, too many times summary judgment has been granted despite the presence of many of these same facts.
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