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4th Circuit Bounces Bank's Request to Dismiss Manager's FMLA CaseAuthored by: Richard J. Morgan, South Carolina Employment Law Letter
John Vannoy worked for the Federal Reserve Bank of Richmond (FRBR) from 1994 until his termination in December 2010. At the time of his termination, he was a project construction manager at FRBR. By the summer of 2010, his supervisors had noticed that Vannoy was having problems with his work and attendance. In July, his direct supervisor reported his concern that Vannoy might be depressed to FRBR's medical director, Dr. Vincent Brugh.
Brugh had previously treated Vannoy for depression and was aware that he had taken antidepressant medications for a long time. As FRBR's medical director, Brugh was responsible for core aspects of the bank's FMLA and Americans with Disabilities Act (ADA) compliance, including evaluating and treating employees, overseeing administration of short-term disability and ADA benefits, working closely with HR on healthand disability-related benefits, overseeing and reviewing applications for FMLA leave, and working with various departments in connection with performance issues potentially related to employees' health problems.
On September 23, 2010, Vannoy saw Mimi Kline, a licensed professional counselor, who diagnosed him with "major depression" and noted his need to be admitted to a 30-day inpatient medical program. Between October 22 and November 15, Vannoy had several unscheduled absences from work, which he cleared informally with his supervisors by text message or e-mail. On November 10, he was admitted to St. Mary's Hospital for psychiatric treatment.
Vannoy's physicians recommended that he enter a 30-day rehabilitation program for treatment of depression and alcohol dependency, but he refused, expressing his concern that taking additional time off work would result in his termination. He was discharged from the hospital on November 13.
Around that time, Vannoy submitted an application for short-term disability leave, which also functioned as a request for FMLA leave. He attached a physician's statement from his primary care doctor that excused him from work from November 10 through December 10. Based on those documents, FRBR notified him that he was eligible for leave under the FMLA through December 10.
Apparently, FRBR sent Vannoy an FMLA notice document commonly referred to as a "rights and responsibilities notice." Such a notice requires the employer to notify the employee about his specific obligations under the FMLA and explain any consequences of failing to meet those obligations. The notice must include, among other things, the employee's right to restoration to the same or an equivalent job upon returning from FMLA leave. The U.S. Department of Labor (DOL) provides a prototype notice of rights and responsibilities for employers to use. FRBR apparently had its own form, which, according to the court, omitted a critical point: the employee's right to the same or an equivalent job upon returning from FMLA leave.
Fearful of losing his job, Vannoy reported to work on November 15 without a doctor's note and long before the end of his approved FMLA leave period. FRBR sent him home with instructions that he couldn't return to work until he obtained a release from his physician. Shortly after that, Vannoy gave FRBR a doctor's note allowing him to return to "full work duty" as of November 15. He returned to work the next day.
On November 18, Vannoy arranged a meeting with his supervisors to follow up with them about his recent hospitalization and ongoing medical issues. Apparently, the FMLA wasn't discussed during the meeting, although Vannoy claims that he was "reassured that his job was not in jeopardy."
On November 30, FRBR sent Vannoy on a three-day work assignment in Baltimore, Maryland. He drove a company vehicle and stayed in a hotel at FRBR's expense, but he didn't report to work on the project. The evidence provides only a hazy account of his purported reason for the three-day absence.
When Vannoy returned to FRBR's Richmond office, he was placed on administrative leave pending a decision in regard to his failure to communicate with his supervisors about his unscheduled absences in Baltimore. On December 16, he was placed on a performance improvement plan (PIP). The PIP contained an employee portion that he was to complete by December 20. On that day, however, he informed his supervisors that he wouldn't be able to report to work.
Upon his return to work the following day, Vannoy received an e-mail from his supervisor instructing him to complete and submit the employee portion of the PIP. Saying that he was unable to complete the PIP, Vannoy left work without authorization and went home. FRBR terminated his employment that day, citing his failure to properly communicate unscheduled time off work and his insubordinate behavior in leaving work despite his supervisor's instructions to complete the PIP.
After his termination and following the exhaustion of his administrative remedies, Vannoy filed a complaint in federal court alleging that FRBR violated his rights under the FMLA and the ADA. The company asked the court to dismiss his claims without a trial, and the district court complied. Vannoy appealed.
On appeal, Vannoy argued that FRBR failed to provide him individual notice of his job protection rights as required by the FMLA. That omission, he contended, affected his ability to take the medical leave he claims he needed.
In considering Vannoy's claim, the court recognized that the FMLA entitles eligible employees to take 12 weeks of leave during any 12-month period for a serious health condition. At the end of the leave period, the employee has the right to reinstatement to his original position or an equivalent job. It is unlawful for an employer to interfere with an employee's exercise of or attempt to exercise any right under the FMLA.
The FMLA requires employers to provide individual written notice to employees that absences qualify for protection under the Act. There are two types of individual notices an employer must give an employee who may be entitled to FMLA leave: (1) a rights and responsibilities notice and (2) a designation notice. This case involved the question of whether FRBR's notice of rights and responsibilities was legally sufficient.
According to the court, the purpose of a rights and responsibilities notice is to ensure that employers allow their employees to make informed decisions about leave. That purpose is thwarted when the employee hasn't received the statutory benefit of taking the necessary leave along with the reassurance that his employment will be waiting for him, under prescribed conditions, when he is able to return to work. Thus, any violations of the FMLA or the notice regulations constitute "interfering with" the employee's exercise of his rights.
In this case, the notice FRBR sent Vannoy failed to inform him of his right to job restoration at the conclusion of his medical leave. Under the FMLA regulations, a statement of the employee's right to job reinstatement must be included in the rights and responsibilities notice.
Although the court found that for purposes of summary judgment (i.e., a request for dismissal without a trial), Vannoy established that FRBR's notice didn't comply with the FMLA, the matter required additional consideration. The court noted that the FMLA provides no relief for an interference claim unless an employee can show that he suffered harm due to the violation. For instance, the employee might provide evidence that he would have structured his leave differently if he had been given the required but omitted information about his FMLA rights.
The 4th Circuit found there was sufficient evidence that Vannoy returned to work before his medical leave expired, and he would have structured his leave differently had he known that his job was protected. He initially requested medical leave from November 10 through December 10, 2010. That time off was approved; however, he didn't take the month-long leave he had requested and instead returned to work early. When asked in his deposition whether knowing that his job would be there when he returned from medical leave mattered, he stated that it would have made a huge difference because he would have undergone the extended treatment for his illness.
The appellate court noted that assessing the credibility of Vannoy's statements and any countervailing evidence was squarely within the purview of the trier of fact (i.e., the jury). As a result, the court found that it was improper for the district court to have granted summary judgment to FRBR on this claim. Vannoy's allegations of FMLA retaliation and violations of the ADA didn't fare as well on appeal.
In reviewing the FMLA retaliation claim, the court noted that the traditional McDonnell Douglas burden-shifting framework applied. However, even if Vannoy could establish a prima facie, or basic, case of FMLA retaliation, he couldn't prevail on the claim because FRBR had proffered overwhelming evidence that it terminated him because of his misconduct. There were no material factual disputes over that evidence, and the record contains no proof remotely suggestive of pretext (i.e., that FRBR's reason was an excuse for retaliation).
As the court pointed out, the FMLA doesn't prevent an employer from terminating an employee for poor performance, misconduct, or insubordinate behavior. FRBR's legitimate nondiscriminatory reasons for terminating Vannoy included his misconduct in Baltimore, his failure to communicate properly with his supervisors about his unscheduled absences, and his failure to complete the employee portion of the PIP. Vannoy didn't dispute that the Baltimore incident occurred, that he was absent without authorization from work numerous times in 2010, or that he failed to timely complete his obligations under the PIP. Instead, he speculated that FRBR's decision to terminate him was pretextual.
The 4th Circuit found that Vannoy provided no proof that FRBR's reasons for terminating him were a pretext for illegal conduct, stating that an employee's "own assertions of discrimination in and of themselves are insufficient to counter substantial evidence of legitimate non-discriminatory reasons for discharge." The court noted that its role is not to second-guess an employer's legitimate nondiscriminatory basis for terminating an employee when there's nothing in the record to show retaliatory animus.
Vannoy also complained that the district court's summary dismissal of his ADA claims was improper. The appellate court disagreed, stating that the ADA doesn't require an employer to simply ignore an employee's blatant and persistent misconduct, even if his behavior is potentially tied to a medical condition. John Vannoy v. The Federal Reserve Bank of Richmond, 4th Cir., Case No. 14-2375, decided June 28, 2016.
This is a very helpful decision for South Carolina employers that underscores the importance of using the correct forms when you notify employees about their rights under the FMLA. To be sure, had FRBR used the DOL-approved form to provide the notice of rights and responsibilities to Vannoy, he would have had no basis for claiming that his FMLA rights were violated. However, FRBR, like many employers, decided to use another form that didn't include the critical FMLA language. When that happens, the only thing an employee needs to assert is that he was somehow "prejudiced," or harmed, by the lack of information about his job restoration rights.
Because the FMLA requires employers to display an employee rights poster in the workplace and most of you probably have similar FMLA language in your employee handbooks or policy manuals, it seems highly unlikely that an employee could convincingly argue that he wasn't aware of his right to be restored to his job or an equivalent position upon his return from leave. Nevertheless, the lesson to be learned from this case is simple and short: Use the DOL-approved FMLA forms.
For more information on the BLR, click here. For more information on the South Carolina Employment Law Letter, click here.
For more information on the BLR, click here. For more information on the South Carolina Employment Law Letter, click here.