Got the Memo—management’s disparaging comments send FMLA retaliation claim to jury

A federal appellate court recently held that a real estate company’s decision to fire a frequently tardy executive assistant for refusing to sign a performance memorandum, amidst her bosses’ negative comments about her need for medical leave, could be evidence of retaliation.

Facts

From 2005 until 2013, Munoz was an executive leasing assistant for Selig Enterprises, a Georgia real estate management company. Munoz reported directly to vice-presidents Jim Saine and Kent Walker. In 2010, Saine and Walker disciplined Munoz for her poor attendance and excessive tardiness. In 2011, Munoz began experiencing reproductive health problems. Munoz claimed that in 2012 she notified Saine and Walker that she may have uterine fibroids and requested an accommodation for her ongoing tardiness, early departures, and partial day absences. Munoz further alleged that in 2013, she notified Saine and Walker that she had been diagnosed with endometriosis and would soon begin treatment. Saine and Walker deny that Munoz advised them of her health condition in either 2012 or 2013. However, it is undisputed that Selig never provided Munoz with FMLA certification documentation or otherwise advised her of her right to request accommodation of her health condition.

Indeed, between 2009 and 2013, Munoz was late for work some 255 times, which she represented to be medically necessary. While Selig was relatively permissive of Munoz’s tardiness, Munoz claimed that her bosses generally disapproved of her need for medical leave. For instance, Munoz stated that, on one occasion upon her late arrival, Saine remarked, “Oh, look what the cat drug in.” And, Walker admitted that he referred to her condition as “female issues” or “female problem(s)” However, both Saine and Walker observed that, in addition to her frequent absenteeism/tardiness, Munoz was insubordinate and often worked on personal matters during working time. 

In May 2013, Saine and Walker issued Munoz a performance memo citing, among other things, her poor attendance/tardiness, misuse of work time, and workplace disharmony, and warning her that failure to improve would result in further discipline. Thereafter, Saine and Walker met with Munoz to discuss those concerns. According to Munoz, the common thread of the meeting was “you’ve been out” and “you’ve been late.” Accordingly, Munoz refused to sign the performance memo under the impression that her endometriosis would necessitate continued absenteeism/tardiness, which might lead to her termination. In addition, Munoz claimed that Saine remarked, “Oh, nobody’s sick that long. You’ve been sick for over a year. Who’s sick that long; over a year you’ve been sick?” However, Saine and Walker denied that Munoz offered a health-related reason for refusing to sign the memo, much less made any reference to endometriosis. 

Munoz, Saine, and Walker hotly contest the underlying facts, namely whether Munoz’s excessive absenteeism/tardiness was primarily due to her illness or instead due to non-health related reasons. However, it is undisputed that Selig terminated Munoz in June 2013 for her refusal to sign the performance memo. 

Legal Analysis

Following her termination, Munoz brought a federal lawsuit against Selig, alleging that the company discriminated against her under the Americans with Disabilities Act (ADA) by failing to accommodate her disability and for firing her because she was disabled. Munoz further alleged that Selig interfered with her rights and retaliated against her under the Family Medical Leave Act (FMLA) by failing to notify her of her leave rights and for firing her for intent to take future leave. Whereas the trial court dismissed the entirety of Munoz’s claims, she appealed the decision to the highest federal court in Georgia, the 11th Circuit Court of Appeals. On review, the Court upheld the dismissal of Munoz’s ADA and FMLA interference claims, but reversed the trial court on Munoz’s FMLA retaliation claim, finding that a jury, and not the Court, must ultimately decide the issue.

Specifically, as to Munoz’s ADA claim, the Court found that Munoz failed to prove that she was disabled within the meaning of the Act. While not deciding whether endometriosis is indeed a disability, the Court observed that Munoz had failed to carry her burden to show that her condition substantially limited her ability to reproduce, which was fatal to her claim. Similarly, regarding Munoz’s FMLA interference claim, the Court opined that Selig’s failure to notify Munoz of her right to take FMLA leave may have interfered with her FMLA rights. However, the Court concluded that Munoz failed to demonstrate that she suffered any resulting harm from Selig’s failure to notify her of her FMLA rights, as the company had provided Munoz with all the leave that she had actually requested.

However, as to Munoz’s remaining FMLA retaliation claim, the Court took a more benevolent view. Concerning Munoz’s assertion that Selig retaliated against due to her continued need for FMLA leave, the Court concluded that Saine’s and Walker’s disciplinary action and disparaging comments about Munoz’s attendance/tardiness were in such close proximity – merely days – to Munoz’s disclosure of her diagnosis, that a reasonable jury might find that a Selig’s reasons for terminating her were a pretext for retaliation. As to Munoz’s assertion that Selig also retaliated against her for refusing to sign the performance memo, the Court reached a similar conclusion, holding that a reasonable juror might find Munoz’s belief that she would be fired for taking additional FMLA leave to be reasonable and thus protected activity under the Act. 

Accordingly, without deciding the merits, the Court observed that there were simply too many disputed issues of fact and therefore a jury trial was necessary to decide whether Selig had actually retaliated against her in violation of the FMLA.

The Takeaway 

Words have consequences, and this case highlights the danger of managerial stray marks about an employee’s health condition and need for medical leave, and the impact they have in creating the appearance of discrimination/retaliation. Whereas Munoz failed to prove that she was disabled, with a few additional facts in the record she would have met her burden, as the ADA takes a liberal view of “disability.” And, Selig’s termination of Munoz could have readily led a jury to decide that Munoz’s termination was due to management’s frustration over her medical condition, particularly when considering the “cat drug in” and “nobody’s sick that long” commentary. Those remarks suggest discriminatory and retaliatory intent, and here Selig was particularly fortunate.

This case also illustrates the notion that an employee’s refusal to sign disciplinary documentation may open the door to an otherwise nonapparent retaliation claim. Whereas an employer may generally discipline or even terminate an employee simply for refusing to sign disciplinary documentation (oftentimes viewed as insubordination), the Court took a different view here. Munoz argued that, in light of comments by and conversations with Saine and Walker, she reasonably believed that the memo interfered with her FMLA rights, and thus her termination for refusing to sign it to be retaliatory act. Based on these facts, the Court held that a jury must determine whether Munoz’s belief was indeed reasonable; and if so, whether her refusal to sign the memo could be deemed protected activity; and if so, whether Selig has a retaliatory motive for terminating her. The Court’s view of the Munoz case should likewise cause employers to pause and reflect before disciplining any employee for refusing to sign performance documentation.

Chris Butler is an employment lawyer with Christopher Butler LLC in Atlanta and may be reached at 404.295.1985 or cbutlerlaw@outlook.com.