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August 02, 2010

FMLA leave request does not insulate employee from unrelated disciplinary action

FMLA leave request does not insulate employee from unrelated disciplinary action
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/ Copyright © 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

Howard Gipson was employed as a plaint maintenance worker for Vought Aircraft Industries. He also served as the local union president.

In late 2004, Gibson underwent triple-bypass heart surgery. He was granted FMLA leave for the surgery. In October 2005, Gipson was removed as the local union president. Incident to that removal, his successor removed Gipson's personal effects from the union office and placed them in an adjacent lobby with instructions for Gipson to collect them. He did not.

Gipson's shift supervisor subsequently asked Gipson to remove his effects from the lobby. Gipson did nothing. His supervisor asked him a third time to remove his effects. Gipson replied that it was a union-related matter and that he would not comply without a written directive. His supervisor next gave him a verbal directive to remove his effects, and warned Gipson that failure to do so could result in discipline up to and including discharge. Gipson walked away. He went and saw the company nurse. She told him his blood pressure was slightly elevated. Gipson returned to his station, and told his supervisor he wanted to go home because he was in pain and needed his medicine. Gipson was asked one final time by the HR manager to retrieve his effects. Gipson declined stating that he had a very bad headache.

The company terminated Gipson on the spot for insubordination. Gipson sued alleging that his termination was in retaliation for exercising his FMLA rights. The Sixth Circuit disagreed.

The Court found that there was no a casual connection between is exercise of FMLA rights and his termination. The court opined: "As we have stated, an employee may not insulate himself from a pending dismissal by opportunistically invoking the FMLA."

Here, Gipson, the court found, could not demonstrate that his employer would not have dismissed him regardless of his alleged request for FMLA leave. The Court noted Gipson's admission that he flatly disobeyed the direct order of his supervisors, which "is indisputably grounds for termination."

The Court also cited the finding of the arbitrator that, in violation of a known work rule, Gipson failed to comply with his supervisor's three requests to move his effects, all of which were issued before Gipson had voiced his medical concerns to anyone. While he was not terminated until after Gipson asked for a medical pass to leave for the day, he had been warned prior to his request that failure to obey a direct order to move his effects would result in discipline, including discharge.

According to the Court, "the wheels of termination had already been put into motion before Gipson requested leave." A reasonable jury "could not conclude that it was Gipson's request for a medical pass, rather than Gipson's continuing insubordination, that provoked his firing."

Mr. Bosland Comments: Invoking FMLA leave does not protect an employee from unrelated discipline that is already in the pipeline. Note that the court considered the discipline to be in the pipeline even though formal discipline had not been proposed or issued. Rather, the court focused on whether the discipline would have occurred regardless of the employee's request for FMLA leave. In practice, the employer can demonstrate that it would have issued discipline notwithstanding the exercise of FMLA rights based on conduct that pre-dated the employee's invoking the need for FMLA leave.

Of course, by opportunistically invoking the FMLA, Gipson forced his employer to to go through the great time and expense of litigating the case before both an arbitrator and through the courts. Many employers would look to settle such a case. While that might not guarantee that Gipson would return to his job, a settlement to avoid the substantial expense of litigation might have allowed Gipson to resign with a neutral recommendation, and with a few dollars in his pocket.

The decision is posted on the Internet at: http://www.ca6.uscourts.gov/opinions.pdf/10a0420n-06.pdf

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