March 20, 2018

Employee's claim of constructive dismissal as a result of taking FMLA leave dismissed




Employee's claim of constructive dismissal as a result of taking FMLA leave dismissed
Groening v Glen Lake Community School, USCA, Sixth Circuit, Docket #17-1848

Joan Groening, the superintendent of Glen Lake Community Schools, underwent surgery that required her taking six weeks of Family and Medical Leave Act,  [FMLA] leave. She then returned to work part-time. Later Groening's elderly mother fell ill and Groening took intermittent FMLA leave to care for her throughout the rest of the school year.

When the board told her that it was "hesitant to approve her travel plans for an upcoming conference" Groening submitted a "notice of retirement" to take effect at the end of the following academic year. 

Groening’s contract provided for ninety days of paid leave per year and a payout for any unused days when she retired and asked Groening for a report of the leave she had taken during the then current school year. Groening 's report indicated that her absences on leave, vacation, and business trips totaled twelve weeks. When the board told her that it was "hesitant to approve her travel plans for an upcoming conference" Groening submitted a "notice of retirement" to take effect at the end of the following academic year.

Deciding that it needed to clear up any discrepancies in Groening's leave records before the end of the following school year, the school board voted "to audit the district’s business office"  in order to determine, among other things, any discrepancies in Groening's leave records  before the end of the following school year." 

Groening decided not to wait until the end of the following school year as she had planned and she resigned the day before the auditors sent their report to the board. In her resignation she stated that she had no choice but "to step aside" because of the board’s continued "intent to retaliate against her for her lawful use of leave" and a short time later filed this lawsuit, contending that board retaliated against her because she went on medial leave, which she alleged constituted a violation of FMLA.

FMLA provides that an eligible employee may claim up to twelve weeks of unpaid, job-protected leave per year in connection with, among other things, the employee's recovering from a serious health condition or to care for an immediate family member with a serious health condition. Further, the Act prohibits employers from retaliating against employees who take FMLA leave, or otherwise interfering with their right to do so. 

The federal district court,  finding that Groening could not show she had suffered an adverse employment action as the result of her taking FMLA leave, granted the school district's motion for summary judgment and dismissed Groening's petition. Groening appealed.

The Sixth Circuit Court of Appeals said that to establish a prima facie case that the school district violated  FMLA  Groening was required to show that the board knew she was engaged in FMLA-protected activity and subjected her to an adverse employment action because of it.  Here, said the court, Groening "concedes that the board did not fire, demote, or discipline her for taking leave" but rather she contends that she was constructively discharged. Noting that the Doctrine of Constructive Discharge "is hard to prove," the court explained that in order to prevail in an action alleging constructive discharge the employee must show that  his or her working conditions were objectively intolerable and that her employer deliberately created those conditions  in hopes that they would force her to quit. In contrast, the court observed that the Doctrine does not protect employees who leave their job “in apprehension that conditions may deteriorate later.”

To show that her working conditions were objectively intolerable, Groening claimed that the board [1] subjected her to months of hostility because it believed her absences "was holding up the school district’s business;" [2] "spearheaded an audit that was designed to find evidence of wrongdoing"  and [3] continued to complain that she was not doing her job and was “wasting [its] time” thereby giving her "no choice but to resign."

The court opined that these conditions, even viewed in the light most favorable to Groening, fell far short of showing constructive discharge, explaining that the Sixth Circuit has repeatedly held that an employer’s criticism of an employee does not amount to constructive discharge —"especially when the employer’s criticism is limited to a few isolated incidents, as it was here."

Further, said the Circuit Court, "employers are permitted to investigate their employees for wrongdoing, including wrongdoing related to protected leave." Indeed, notes the decision, "neither an internal investigation into suspected wrongdoing by an employee nor that employee’s placement on paid administrative leave pending the outcome of such an investigation constitutes an adverse employment action”

Concluding that Groening had failed to raise a genuine issue of material fact as to whether her working conditions were objectively intolerable and thus she could not show that she was constructively discharged, the Circuit Court sustained the district court's ruling granting the school board's motion for summary judgment on Groening's retaliation claim.

As to Groening contention that the board interfered with her right to take leave, to a survive a motion summary judgment on this claim Groening must show that (1) she was an eligible employee, (2) the board was a covered employer, (3) she was entitled to take leave, (4) she gave the board notice of her intent to take leave, and (5) the board denied her FMLA benefits or interfered with her FMLA rights. Groening, said the court, failed to establish a genuine issue of material fact with respect to the 5th element required to be demonstrated and sustained the lower court's granting summary judgment in the school district's favor on this branch of Groening's action as well.

Finally, the Circuit Court observed that Groening's remaining arguments "fare no better" and dismissed her appeal.

The decision is posted on the Internet at:

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