Why it matters

An individual human resources (HR) director can be liable under the Family and Medical Leave Act (FMLA) as an "employer" under the statute's economic realities test, the Second Circuit Court of Appeals has ruled, reversing summary judgment in favor of the individual and the company. A worker at the Culinary Institute of America took FMLA leave to care for her son after he was diagnosed with type 1 diabetes. Her other son then fractured his leg and she requested more leave as well as a modified schedule for her return to work. The HR director sent a letter saying that her paperwork did not justify her absences and declined to elaborate when the employee requested clarification. The parties were unable to schedule a meeting and the HR director refused to allow the employee to return to work without the proper documentation. When the employee was terminated for job abandonment, she filed suit against the HR director and the Culinary Institute alleging violations of the FMLA. A federal district court granted the defendants' motion to dismiss, but the federal appellate panel reversed. Not only did the HR director control the employee's rights under the statute and appear to have played an important role in the decision to fire her, establishing the potential for individual liability, but the panel found the claims against the employer could move forward as well. The lesson for employers: pay close attention to the statute. The Second Circuit documented months of communications between the parties to emphasize the importance of the employer's mandate to "responsively answer questions from employees concerning their rights and responsibilities under the FMLA." A failure to follow this requirement could lead to liability.

Detailed discussion

Cathleen Graziadio began working as a Payroll Administrator at the Culinary Institute of America (CIA) in 2007. In June 2012, her 17-year-old son was hospitalized as a result of previously undiagnosed type 1 diabetes, and Graziadio informed her supervisor she needed to take a leave to care for him.

When she returned to work a few weeks later, she submitted a medical certification supporting her need for FMLA leave to care for her son. The same day, her 12-year-old son fractured his leg in an accident and underwent surgery. Graziadio again requested leave. In July, she asked to return to work on a three-day schedule through August to care for her sons. She also asked—as she had in prior e-mails—whether the employer needed any further documentation.

But Shaynan Garrioch, CIA's Director of Human Resources, did not respond to multiple calls or e-mails from the employee, who kept asking when she could return to work. Garrioch sent Graziadio a letter stating that her FMLA paperwork did not justify her absences from the workplace and that she needed to "provide updated paperwork to this office which addresses this deficiency" within seven days.

Graziadio responded with a series of e-mails trying to determine what "paperwork" was necessary, explaining that her prior calls and e-mails had not been returned. The HR director sent an informational brochure from the Department of Labor, refused to approve a schedule for Graziadio to return to work, and rejected a note from her son's doctor.

Garrioch then refused to communicate via e-mail and told Graziadio to come in for a meeting. The employee responded that she was "available whenever," to which the HR director asked for specific times. This exchange was repeated over several days. Graziadio retained an attorney and the CIA shut down all communications with the employee. She was terminated one week later for abandoning her position.

Graziadio sued Garrioch and the CIA for interference with FMLA leave and FMLA retaliation. A federal district court judge granted summary judgment for the defendants on both counts and the plaintiff appealed.

The Second Circuit Court of Appeals first addressed Garrioch's individual liability, adopting for the first time the economic reality test used to analyze individual liability in the Fair Labor Standards Act (FLSA) to the FMLA, citing decisions from the Third, Fifth, and Eleventh Circuits, as well as federal courts in Connecticut and New York.

"Under this test, courts ask 'whether the alleged employer possessed the power to control the worker[] in question, with an eye to the "economic reality" presented by the facts of each case,'" the panel explained, considering a nonexclusive and overlapping set of factors, including whether the alleged employer had the power to hire and fire the employee and supervised and controlled work schedules or conditions of employment.

The district court found that Garrioch's relationship to Graziadio did not satisfy any of the factors. But the Second Circuit reached the opposite conclusion, determining that questions of material fact remained as to Garrioch's authority. For example, although traditional hire-and-fire authority rested with a vice president at CIA, Garrioch "appears to have played an important role in the decision to fire Graziadio" and that the HR department handled any employee's return to work after FMLA leave.

"[O]n the overarching question of whether Garrioch 'controlled plaintiff's rights under the FMLA,' there seems to be ample evidence to support the conclusion that she did: deposition testimony and email exchanges demonstrate a) that Garrioch reviewed Graziadio's FMLA paperwork, b) that she determined its adequacy, c) that she controlled Graziadio's ability to return to work and under what conditions, and d) that she sent Graziadio nearly every communication regarding her leave and employment (including the letter ultimately communicating her termination)," the court said. "Indeed, Garrioch specifically instructed [Graziadio's supervisor and a company vice president] that they were not to communicate with Graziadio and that Garrioch alone would handle Graziadio's leave dispute and return to work."

Given the totality of the circumstances, a rational jury could find Garrioch exercised sufficient control over Graziadio's employment to be subject to liability under the FMLA, the panel held, reversing dismissal of the claims against the defendant.

The panel similarly reversed summary judgment on the plaintiff's claims of FMLA interference and retaliation against the CIA. In the process, the Second Circuit formally adopted a standard for the requirements of a prima facie case of interference with FMLA rights: "a plaintiff must establish: 1) that she is an eligible employee under the FMLA; 2) that the defendant is an employer as defined by the FMLA; 3) that she was entitled to take leave under the FMLA; 4) that she gave notice to the defendant of her intention to take leave; and 5) that she was denied benefits to which she was entitled under the FMLA."

Graziadio satisfied all of these elements, the court said, rejecting the district court's position that the CIA did not actually deny leave to care for her son and that she failed to fulfill her obligation to provide an adequate medical certification. Graziadio submitted a medical certification to which Garrioch did not respond or even acknowledge receipt, the panel noted, and repeatedly attempted to cure any deficiencies but was blocked by Garrioch at every turn.

"Under the FMLA, an employee seeking leave need not submit a medical certification unless and until one is specifically requested by her employer," the panel wrote. "Neither the fact that CIA maintained a handbook stating that it required medical certification nor the fact that CIA had recently given Graziadio a Notice of Rights and Responsibilities, which explained the medical certification requirement, sufficed to put Graziadio on notice that medical certification was required for this leave claim."

The CIA did not make a formal request for certification until mid-July, the court added, and even then, Garrioch made a vague request for "paperwork," which "studiously avoided responding to any of Graziadio's pleas for clarification," a reply that may itself run afoul of the FMLA's explicit requirement that employers "responsively answer questions from employees concerning their rights and responsibilities under the FMLA."

Coupled with the "excruciating exchange" of e-mails trying to set up a meeting, the court said a jury could find that Graziadio made sufficient good faith efforts to comply with her employer's requests and that the defendant's conduct—"their imprecision in requesting certification, their failure to answer Graziadio's questions responsively, and their failure to communicate with Graziadio after deeming her doctor's note deficient—relieved Graziadio of any unsatisfied obligation to provide a medical certification to support her leave."

Finally, the panel found it "difficult, to put it mildly," to accept the employer's contention that Graziadio abandoned her job as a non-pretextual reason for her termination. "There is no question but that defendants refused to reinstate Graziadio because she took leave that they declined to approve under the FMLA," the court said. "It requires little imagination to infer that they fired her for the same reason."

The temporal proximity of the plaintiff's termination to her FMLA leave and circumstantial evidence—Graziadio's computer network access was suspended well before her actual termination and testimony from an HR employee that he was instructed to compose a job description for a replacement for Graziadio in early July—warranted reversal on the FMLA retaliation claim as well, the panel said.

To read the opinion in Graziadio v. Culinary Institute of America, click here.