Any manager can tell you that scheduling and maintaining operations while one or more employees are on leave granted by the Family and Medical Leave Act (FMLA) can be difficult. A recent case, however, points out the pitfalls that can await unwary supervisors who improperly take an employee’s FMLA leave into consideration when making business decisions – or even appear to do so.
Susan Cutcher was an hourly associate for a Michigan Kmart store.1 In 2002, Cutcher’s annual review indicated that she was an excellent employee – she received top or near-top marks in many categories, including customer service, accountability, and teamwork. Her supervisor even noted in her review that Cutcher “provides excellent customer service” and “is courteous and interacts well.” She received similarly high ratings in 2003. In 2004 and 2005, Cutcher’s ratings slipped slightly, but she was still rated as “exceeds expectations” – the second highest rating possible.
In late 2005, Cutcher learned she needed to have surgery, and informed Kmart that she needed to take a leave of absence. Cutcher submitted the necessary paperwork from her doctor, and began a paid short-term disability leave in early December. While she was on leave, Kmart announced a national reduction-in-force, and provided guidelines to each store for conducting layoffs. Cutcher’s store had to reduce its full-time headcount by six.
In December 2005, the store’s manager, with the assistance of two human resources employees, rated every full-time employee. On Cutcher’s evaluation, one of the three wrote “poor customer and associate relations. LOA.” After this evaluation, Cutcher was selected to be one of those employees laid-off. However, had her December 2005 layoff evaluation mirrored her November 2005 performance evaluation, she would have been retained. Cutcher was laid off in January 2006, when she returned from leave.
Cutcher filed suit in federal court, alleging Kmart interfered with her FMLA rights and retaliated against her for taking FMLA leave. The U.S. District Court for the Eastern District of Michigan granted summary judgment in Kmart’s favor, finding there were no genuine issues of fact that would warrant a jury trial, and Kmart was entitled to judgment as a matter of law.
On review of the district court’s grant of summary judgment, the Sixth Circuit Court of Appeals reversed the lower court’s decision. In doing so, the Court found that, despite testimony from the managers at Cutcher’s store that they in no way considered her leave of absence when determining who to layoff, a question of fact on that issue remained that had to be determined by a jury. The Court considered factors including the notation of “LOA” on Cutcher’s December 2005 review, the difference between that review and the one she had been given just a month before, and her supervisors’ admissions that nothing had changed about Cutcher’s performance between the two reviews.
The Sixth Circuit’s opinion should sound a cautionary warning for employers. The FMLA provides that employees who legitimately take advantage of its leave and related protections must not be penalized for doing so. While most employers would assure a court that they had, indeed, not considered the fact that an employee was on FMLA leave (or had recently taken such a leave) when the employer made an adverse decision related to that employee, the court will look not only to the testimony from the decisionmakers but also to any other evidence that may give the impression that such consideration had taken place, such as the “LOA” notation in Kmart’s case.
As to the LOA notation, the supervisors testified that the notation was merely a reminder that Cutcher was on leave and would need to be notified of the layoff upon her return (instead of at the same time as the other laid off employees). The Court, however, held that a jury could believe that the notation was instead intended to single out Cutcher for a poor evaluation because of her leave.
Further, while Cutcher experienced the ultimate “adverse employment action” by being laid off, courts have held that far lesser actions could be considered retaliation for taking FMLA leave. Such actions could include transferring an employee to a non-preferred shift, excluding an employee from meetings, or increasing the amount or intensity of monitoring that employee’s work – among many others.
To protect against a federal lawsuit, employers can take a number of steps. A good first step is to carefully and consistently document an employee’s request for and taking of FMLA leave. Consistently following the same procedures with each and every employee who requests leave can help to eliminate claims of discriminatory treatment, as well as potentially reduce abuse of leave.
Perhaps the most important step, however, is training management staff how to properly respond to an employee’s request for FMLA leave. In addition to knowing how to properly process such a request, managers must be instructed that such employees should be treated as they would have been had they not requested the leave. While this does not insulate an employee from consequences for other conduct at work, it does mean that managers must take care that if they seek to discipline an employee who has taken FMLA leave, they document the reasons for the discipline and make sure those reasons bear no relation to the leave.2
In Cutcher’s case, the simple notation of “LOA” on the review that led to her selection for layoff combined with the unexplained change in her evaluation and the fact that the decision was made while she was actually on FMLA leave were enough for the appeals court to remand the case for a jury trial. Regular management training that includes not only actually avoiding use of an employee’s leave as a consideration when making employment decisions, but also raising awareness of the need to avoid the appearance that the leave was considered, can help employers avoid the situation Kmart now finds itself in.
Lee Ann Rabe
Assistant Attorney General
1 Cutcher v. Kmart Corp., No. 09-1145, 2010 U.S. Dist. LEXIS 2253 (6th Cir. Feb. 1, 2010).
2 Of course, documentation of the rationale for discipline is always a good idea, regardless of whether the employee in question has taken leave.