by Martin J. Regimbal
In a recent decision from the U.S. 5th Circuit Court of Appeals (which covers Louisiana, Mississippi, and Texas), the court affirmed the dismissal of a former employee’s Family and Medical Leave Act (FMLA) retaliation claim and rejected the employee’s attempt to change her factual allegations to fit a new claim in order to avoid dismissal of her lawsuit.
The court’s decision and reasoning provides further guidance to employers on the employee notice requirement under the FMLA and is likely to prove useful to employers defending FMLA and other federal claims.
In 2009, “Caitlyn” began working as a nurse auditor for Harris Health System, which is considered a subdivision of the state of Texas. In early 2014, Caitlyn was promoted to a management position.
From June 5 through July 21, 2014, Caitlyn took FMLA leave to undergo and recover from a surgical procedure. While still out on leave, she received an e-mail from her supervisor, “Marcella,” explaining that employees Caitlyn supervised had made numerous complaints. The complaints related to Caitlyn’s micromanagement of her subordinates’ employment activities, such as clocking in and out and taking leave, along with concerns that she was being disrespectful to them.
On July 22, the day after Caitlyn returned to work, Marcella informed her that her employees had been moved under the supervision of another manager and that she could either continue as a manager without supervision over any employees or accept a demotion back to the position of nurse auditor.
Caitlyn elected to take the demotion back to her previous nurse auditor position. Marcella informed her own supervisor, Michael Hill, via e-mail that Caitlyn had stepped down, saying that working from home more and not having any managerial responsibilities would allow her the opportunity to be there for her mother, who was undergoing cancer treatments.
In August, Caitlyn requested additional FMLA leave, from August 18 through 24, this time to care for her mother.
In February 2015, Caitlyn filed suit against Harris Health, alleging that her demotion was in retaliation for taking FMLA leave from June 5 to July 21, when she was recovering from her surgery. During her deposition, Caitlyn testified that she believed she had been retaliated against for taking FMLA leave in June and July. She also stated that if she had never taken that leave, she felt she would not have been demoted.
Shortly thereafter, Harris Health asked the court to dismiss Caitlyn’s claim. It asserted that as a subdivision of the state of Texas, it was immune from suit under the FMLA’s self-care provision (i.e., leave for the employee’s own serious health condition).
In response, Caitlyn asked to amend her allegations against Harris Health to assert that her demotion was also related to the leave she took to care for her mother in August 2014, even though the demotion pre-dated that leave.
Such a claim would not be subject to immunity because immunity doesn’t apply to leave under the FMLA’s family-care provision (i.e., leave due to the serious health condition of an employee’s family member as opposed to the employee herself).
Caitlyn based the request to change her allegations against Harris Health on the e-mail Marcella sent to Hill in which Marcella indicated her awareness of Caitlyn’s intention to spend time with her mother while she underwent cancer treatments.
The federal trial court denied Caitlyn’s request to amend and dismissed her original claims. Caitlyn appealed to the 5th Circuit.
Under the Eleventh Amendment to the U.S. Constitution, states are immune from lawsuits for damages unless they waive the defense or Congress passes a law that specifically subjects the states to liability. According to the 5th Circuit, Congress did not intend to subject the states to liability under the FMLA’s self-care provision, but it did intend to impose liability under the family-care provision because of a well-documented pattern of sex-based discrimination in family-care leave policies.
Thus, the appeals court held that the federal trial court had properly dismissed Caitlyn’s claim for FMLA retaliation based on her leave for her own serious health condition in June and July of 2014 on the grounds that Harris Health was immune to such claims.
The 5th Circuit also addressed whether the federal trial court had erred in denying Caitlyn’s request to amend her complaint to assert that her demotion was also related to the need to take leave to care for her mother under the FMLA’s family-care provision, which would not have been subject to dismissal on the basis of immunity.
According to Caitlyn, during a conversation she had with Marcella in May 2014, even before she took leave for her own serious health condition, she had spoken generally about her mother’s illness. Caitlyn asserted that this conversation was sufficient to have placed Harris Health on notice that she would eventually be requesting family-care leave under the FMLA and, therefore, that her demotion was in actuality due to the family-care leave she planned to take in August rather than the self-care leave she took in June and July.
The court rejected Caitlyn’s attempt to play so fast and loose with the facts. While recognizing that an employee may file multiple claims in a lawsuit and may raise alternative theories of liability, the court held that Caitlyn could not represent a fact as both true and false and that doing so does not create a fact issue for a jury to resolve; instead, it creates an ethical issue.
The court noted that Caitlyn’s complaint only alleged that her demotion was the result of her self-care FMLA leave. It also noted that although, prior to her deposition, Caitlyn had obtained a copy of Marcella’s e-mail to Hill reflecting her knowledge of Caitlyn’s mother’s illness, during her deposition, she only testified to her belief that she was demoted because of her self-care leave.
Only after she realized Harris Health was immune from such a claim did she attempt to amend her factual allegations, not just her theory of liability, to assert that she was demoted because of her indicated intent to take family-care leave.
Regardless, the court also held that Caitlyn could not state an FMLA family-care claim because Harris Health was not sufficiently on notice of her need to care for her mother until the day she was informed that she could either accept a demotion or remain in management without subordinate employees.
The court noted that at the time the decision had been made, Caitlyn had not applied for, received, or taken any type of family-care FMLA leave and that her May 2014 conversation with Marcella in which she generally discussed her mother’s condition was not sufficient to put Marcella on notice of her intent to take family-care leave at a later date.
For this reason, the court held that allowing her to amend her allegations would have been futile and that the federal trial court had not erred in denying her request to do so. Alfred v. Harris County Hospital District d/b/a Harris Health System, 2016 WL 7046633 (5th Cir., Dec. 2, 2016).
The court’s decision is beneficial to employers in two regards. First, the court’s reasoning in disallowing Caitlyn to amend her lawsuit to change previously asserted factual allegations can be used by employers in defense of claims beyond just those involving the FMLA.
Employees cannot make contradictory factual assertions to support their claims, which happens frequently in litigation as they seek to conform their allegations to the legal requirements. Second, the court’s opinion provides additional exploration of what does, and does not, constitute sufficient notice to an employer of the need for FMLA leave.
Martin J. Regimbal, a shareholder of The Kullman Firm, and an editor of Mississippi Employment Law Letter, can be reached at 662-244-8824 or [email protected]
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