Contributed by Brandon Anderson
It’s not very often that a federal court rules on an “issue of first impression” (i.e. something that has not previously been ruled on). It is also not very often that a court ruling has multiple “take away” points that may impact future cases. Imagine the unexpected surprise on September 4, 2012, when a U.S. First Circuit Court of Appeals issued a ruling that contained both.
The case, Pagan-Colon v. Walgreens of San Patricio, Inc., involves a rather typical Family and Medical Leave Act (FMLA) retaliation claim. The employee was hospitalized because of a heart problem, underwent surgery, and, within two weeks, he was discharged. The employee alleged that he and his wife frequently updated the employer on the employee’s condition. The employer claimed it requested an explanation for his absence, but never received a response. The employee was discharged for job abandonment. Following the employee’s repeated requests for an explanation and after presenting medical documentation, the employer reconsidered its decision. The employer investigated the incident and because its other employees and management claimed they had no recollection of the employee or his wife contacting them or bringing in medical documentation, the employer discharged the employee for making dishonest statements during the investigation. The jury disagreed with the employer’s conclusions and found in favor of the employee.
Okay, so get to the “issue of first impression” and the other “take aways,” right?
Issue of First Impression: in upholding the jury’s damage award for $47,145 in back pay, the court held that the provision in the FMLA that allows a prevailing employee to recover wages and “other compensation denied or lost” can encompass lost over-time earnings. Apparently the employee worked a lot of overtime—$20,637 of the $47,145 award was for overtime. The method used to calculate the overtime, using the year-to-date average of weekly hours in the months preceding termination, was also upheld by the court.
Take Away 1: The chameleon-like termination reason is bad. The court held that a jury could reasonably find that the employer’s change in reason for termination to be pretext for retaliation. Also, as I’ve harped on before, the timing of a termination can also be evidence of retaliation. Frankly, there could hardly be worse timing than firing someone while he is providing medical documentation and trying to return to work after heart surgery.
Take Away 2: Somewhat surprisingly, considering the facts. The court affirmed the lower court’s denial of liquidated damages, which are allowed unless the employer can prove it acted in good faith and had reasonable grounds for believing the discharge was lawful. The court essentially chalked the matter up to a breakdown in communications at the work location-level that prevented management from learning about the facts in a timely manner. While I would not recommend blaming violations of federal law on a breakdown in communications, if that is what happened, all hope might not be lost.