If an employee claims her employer interfered with her rights under the Family and Medical Leave Act but she didn’t lose any salary or benefits, can she state an interference claim? In Evans v. Books-A-Million Inc., the Eleventh Circuit says maybe.
Tondalaya Evans, Books-A-Million’s Payroll and Insurance Manager, was to start her maternity leave beginning in September 2006. As her due date approached, however, the new payroll system implementation for which Evans was responsible got delayed to November, so much needed to be done during her leave. According to the opinion, Evans’ supervisor, Sandi Meeks, told Evans that instead of the 10 weeks of maternity leave she had planned, they had decided she needed to work from home and gave her a laptop computer. Although she objected, given that 50 percent of her annual bonus was riding on a successful implementation of the new system, Evans said she bowed to the pressure and agreed to work from home.
The work began the day she got home from the hospital, and Evans worked nearly full-time during her leave, sometimes more than eight hours a day, even going to the office for some meetings. Instead of the short-term disability benefit she had expected during her maternity leave, Evans received her regular salary.
During her leave, Evans felt that Meeks expressed frustration and disappointment with her work. For example, Meeks told Evans the payroll project was unacceptably behind and needed to be completed and got angry when Evans said she couldn’t take on an additional project. After her leave, Evans said Meeks was cold and hostile. Although Evans returned to her Payroll and Insurance Manager position and successfully completed the payroll project, a few months later, she learned she was to be reassigned to a Risk Manager position. When she asked why, Evans said Meeks told her it was because she wasn’t pleased with the payroll system implementation (the one on which Evans worked from home during her maternity leave).
There being two sides to every story, Books-A-Million presented evidence that it made a business decision to have a lower-paid payroll manager and create a risk management position for Evans. The risk management position would be at Evans’ current salary (at least) and had more opportunity for advancement. Evans said she wanted to work in payroll, not in risk management. Books-A-Million told her that she needed to accept the risk management position or leave. They asked her to take some time and think about it. When Evans would not accept the reassignment, she was terminated. Books-A-Million hired a payroll manager (at a lower salary) and a risk manager (at a higher salary).
Evans sued for a variety of claims, including sex discrimination and retaliation under Title VII, discriminatory pay under the Equal Pay Act, failure to provide Consolidated Omnibus Budget Reconciliation Act notice, defamation and FMLA interference and retaliation. She based her FMLA claims on the facts that Books-A-Million required her to work from home during her covered FMLA leave, reassigned her following her leave, and then terminated her. Books-A-Million moved for summary judgment on all but the COBRA claim. With regard to the FMLA claims, Books-A-Million argued that Evans’ claims failed because it paid Evans for her leave, so she could not prove she had been damaged.
The magistrate judge recommended and the district court granted the summary judgment motion in its entirety. Relying, in part, on the Eleventh Circuit’s decision in Demers v. Adams Homes of Northwest Florida Inc., the lower court found that because Evans was paid her full salary while she worked from home, she had not established that suffered any legal damages. The Eleventh Circuit disagreed on the FMLA claims and reversed.
To prove an FMLA interference claim, a plaintiff must show: (1) she was denied a benefit to which she was entitled under the FMLA and (2) the denial prejudiced her in some way. The Eleventh Circuit noted that the Demers decision did not hold that an FMLA plaintiff must demonstrate she is entitled to traditional, as opposed to equitable, relief to survive summary judgment. Instead, the court clarified that Demers “held (only) that the plaintiff failed to articulate any harm suffered from the denial of his FMLA rights.” It went on to note that the U.S. Supreme Court’s decision in Ragsdale v. Wolverine World Wide Inc. did “not suggest, much less conclude, that ‘prejudice’ in the FMLA context is synonymous with ‘legal damages’.”
With regard to the types of damages to which the plaintiff may be entitled, the court noted that the complaint sought injunctive relief, reinstatement and front pay. It further held that there was a dispute of fact as to whether Evans’ reassignment was based on her job performance while she was on leave or whether the reassignment was to an inferior position (even if it was at the same salary). If the jury finds that Evans was harmed, the Eleventh Circuit opined she could be reinstated or receive front pay.
It seems clear that the Eleventh Circuit was willing to look broadly for harm and damages in part because of the facts of the case. Specifically, the court stated, “It seems plain to us that if an employer coerces an employee to work during her intended FMLA leave period and, subsequently, reassigns her based upon her allegedly poor performance during that period, the employee may well have been harmed by the employer’s FMLA violation.”
Although we cannot determine whether this is a trend to provide expanded protection to pregnant workers (similar to the U.S. Equal Employment Opportunity Commission's new Pregnancy Discrimination Act guidance), this could simply be a case of unusual facts resulting in an unusual ruling. The FMLA provides that an eligible employee is entitled to 12 weeks of leave. Requiring an employee to work from home during that leave — even if you pay her — is a potential problem and could result in courts looking hard at alternative harm and damages.
The other lesson from this decision is that employers need to be careful about employees working voluntarily during FMLA leave. Some employees on leave volunteer to work from home or to participate in periodic work. The Eleventh Circuit’s decision makes clear that simply paying employees who work during FMLA leave will not insulate the employer from an interference claim. If an employer is going to permit an employee to work during FMLA leave, it should: (1) be on record as encouraging the employee to take the leave available rather than work, (2) clearly document the employee’s insistence that he or she wants to work during leave and (3) ensure that work performed during the FMLA-leave period does not adversely affect subsequent performance reviews, bonus awards or job assignments.
Republished with permission. This article first appeared in Employment Law360 on September 29, 2014.