Wednesday, June 15, 2016

Plaintiff with Alcoholism Allowed to Proceed on Disability and FMLA Claims Due to Employer's Suspicious Timing and Statements

A former territory sales rep, Roger Paul Lankford ("plaintiff"), for a business that provides motor oil and other supplies to auto dealers, Four O Corporation and Reladyne, LLC ("defendant"), sued alleging disability discrimination and retaliation under the Americans with Disabilities Act ("ADA") and Ohio's accompanying state law, and interference and retaliation under the Family Medical Leave Act ("FMLA").  The Defendant moved for summary judgment on claims, which the district court denied.

Facts

The plaintiff served as a territory sales rep for the defendant from 2008 until he was terminated on February 17, 2014.  On January 14, 2014, a driver for the defendant made a delivery to a customer and included in that delivery were three cases of oil and twelve oil filters which were described as "no charge--per Paul (the plaintiff)."  The driver asked the customer why the delivery was free and was told that they were a for free oil changes that had been given away.  The driver then inquired with the defendant about this free delivery which made it's way up the chain as the plaintiff's mother was the person to return a coupon for a free oil change.  The defendant had an investigation performed into the free delivery.

On January 28, 2014, the plaintiff informed his supervisor that he wanted FMLA leave to attend an alcohol rehabilitation program.  Plaintiff submitted a leave request, which was approved on January 29, 2014 and he then commenced his 35 day leave on January 30, 2014.  A number of emails were exchanged between and among members of defendant's management on February 5 and 6, 2014 regarding Plaintiff's termination.  Because plaintiff was on approved FMLA leave, it was determined that no action would be taken against him until he returned from his leave.

When plaintiff returned from FMLA leave in mid-February, the defendant arranged a meeting on February 17, 2014 to go over the investigation's findings.  The plaintiff denied issuing coupons to his mother and sister-in-law for free oil changes and claimed no knowledge of how they obtained them.  Nevertheless, the plaintiff was terminated on February 17, 2014.

Plaintiff's FMLA Interference Claims

To establish a prima facie case of FMLA interference, a plaintiff must prove that: (1) he was an eligible employee; (2) the defendant was an employer as defined under the FMLA; (3) he was entitled to leave under the FMLA; (4) he gave the employer notice of his intention to take leave; and (5) the employer denied him FMLA benefits to which he was entitled.  The defendant argued that the plaintiff cannot fulfill the 5th element because he was not "entitled" to his position due to misconduct that was found to exist during his absence.  The district court cited the 6th circuit which has stated:  "[i]f an employer takes an employment action based, in whole or in part, on the fact that the employee took FMLA-protected leave, the employer has denied the employee a benefit to which he is entitled.  Further, the court stated, "Viewing the facts in the light most favorable to plaintiff, the Court finds that a reasonable trier of fact could conclude that Defendants denied Plaintiff FMLA benefits to which he was entitled.  Plaintiff requested FMLA leave on January 28, 2014 to obtain inpatient treatment for his alcohol dependency.  When he returned from leave, he was not reinstated to his position or to an equivalent position, as required by 29 U.S.C. sec. 2614(a)(1)."

Furthermore, the Court noted that the plaintiff set forth evidence indicating that defendant may have used his FMLA leave as a negative factor in their decision to terminate him, which is prohibited.  Specifically, the plaintiff produced emails whereby his supervisors made comments like, "[w]e have too many signs to ignore and not proactively address."  However, just 6 weeks prior, the plaintiff received a positive review from the author of this email.

Plaintiff's FMLA Retaliation Claims

To establish a prima facie case of FMLA retaliation, a plaintiff must show that: (1) he was engaged in an activity protected by the FMLA; (2) his employer knew that he was exercising his FMLA rights; (3) he suffered an adverse employment action; and (4) a causal connection existed between the protected activity and the adverse employment action.  The defendant argued that the plaintiff could meet the 4th element.

The employer's motive is an integral part of the analysis in a retaliation claim.  The court noted, that is, "the adverse employment action occurs very close in time after an employer learns of a protected activity, such temporal proximity between the events is significant enough to constitute evidence of a causal connection for the purposes of satisfying a prima facie case of retaliation."  The court then noted that if "some time elapses between these two events," that the plaintiff then must couple temporal proximity with other evidence of retaliatory conduct to establish causality.

The Court found the temporal proximity between plaintiff's request for FMLA leave and his termination is significant as defendant's upper-management did not learn of the FMLA request until February 4, 2014 and, at the latest, determined the plaintiff should be terminated on February 6, 2014.  The Court concluded a reasonable juror could conclude that, because the decision to terminate plaintiff was made almost immediately following his request for medical leave, there was a causal connection between his FMLA leave and his termination.  Further, the plaintiff provided additional evidence of causation in the form of statements made by defendant's managers regarding his termination.

Legitimate, Non-Discriminatory Reason and Pretext

The defendants argued that the reason for the plaintiff's termination was for his giving away three cases of oil and twelve oil filters without approval, which is tantamount to theft, as their legitimate, nondiscriminatory reason ("LNDR") for plaintiff's termination.  Accordingly, the Court noted, the burden shifts to plaintiff to show that this reason is pretext.

Noting that temporal proximity cannot be the sole basis for finding pretext, they noted that the 6th Circuit has found "suspicious timing as a strong indicator of pretext when accompanied by some other, independent evidence."  The Court also noted that the plaintiff preferred other reasons to serve as pretext:  (1) emails circulated between and among members of defendant's management prior to plaintiff's termination; (2) statements made at plaintiff's termination meeting; and (3) statements made following plaintiff's termination.

Some of the language in defendant's emails regarding the plaintiff's termination were too much to overcome:
  • "[w]e have too many signs to ignore and not proactively address."  This email was forwarded to the prevention loss investigator and there was no explanation as to why.  The Court concluded a reasonable juror could conclude that the investigator was assigned with proactively addressing plaintiff's situation by providing a justification to fire him.
  • On February 5, 2014, an email was sent out and a response included, "...but we need to consult with you regarding his rehab condition."  
  • In a follow up email to the February 5th email, a statement was made about how they had a "nice Plan B."  A "Plan B" is a alternative strategy, the court noted, and a reasonable juror could believe that the original strategy, Plan A, was to terminate Plaintiff because he was an alcoholic who needed medical leave.
  • At the termination meeting, on the termination sheet, was written: "Personal Lief in Ruins--Needs Outside Help--Seemed 'High' in conference with David Luke and I..
Plaintiff's ADA Claim

To make out a prima facie case of employment discrimination under Title I of the ADA, a plaintiff must show: (1) he is disabled; (2) he is otherwise qualified for the position, with or without reasonable accommodation; (3) he suffered an adverse employment employment decision; (4) the employer knew or had reason to know of his disability; and (5) the position remained open while the employer sought other applicants or the disabled individual was replaced.  The defendant argued that plaintiff is unable to satisfy the first element because there is no evidence that plaintiff was disabled by his alcohol dependency.

The Court noted that the definition of "disability" is to be construed broadly and that alcoholism can constitute a disability under the ADA.  The plaintiff's medical records demonstrated that his alcohol dependency substantially limited his life activities.  The Court then noted the several and severe symptoms of the plaintiff's alcoholism which made it clear this was a disability that affected a few of his major life activities.

Plaintiff's Retaliation Claim

The defendant argued that the plaintiff did not engage in protected activity.  However, the Court noted that requesting medical leave as an accommodation constitutes protected activity.  The Court also stated that because the plaintiff was terminated soon after this request, that he established a claim for retaliation.

The Court denied the defendant's motion for summary judgment and the plaintiff was allowed to proceed with all 6 of his claims.  The case is Lankford v Reladyne, SDOhio, November 19, 2015, Black, T

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