An employee requesting leave under the Family and Medical Leave Act (FMLA) puts a heavy burden of administrative responsibility on an employer. Should the organization later decide to take an adverse action against that employee, its reasons for doing so must be rock solid. Unfortunately for the defendant in Hudson v. Tyson Fresh Meats, Inc., its defense appeared to be built on shifting sands.

Absence reported

On December 28, 2011, the plaintiff didn’t show up for work. He asked his girlfriend, a co-worker, to tell his supervisor that he was sick and would be late or absent. The plaintiff also texted his supervisor that he was having health issues and would be out for a few days.

The company’s attendance policy, which the plaintiff had signed, stated that employees were expected to personally call their direct supervisors to report unplanned absences or lateness. The plaintiff, however, claimed he’d often notified his supervisor of an absence via text.

On January 3, 2012, the plaintiff went to the company with a doctor’s note saying he’d be under a doctor’s care from December 28, 2011, to January 7, 2012, and couldn’t work. The plaintiff also signed a “leave of absence application” and later argued that someone other than him had checked the non-FMLA box on the form rather than the box requesting FMLA leave. The employer granted him non-FMLA leave.

The plaintiff stated that, when he returned to work on January 9, 2012, he was instructed not to perform his duties. He was terminated the next day for allegedly failing to notify his employer that he was going to miss work. The plaintiff sued, claiming that the termination violated his FMLA rights and the company had retaliated against him for taking FMLA leave. A trial court granted the company’s summary judgment motion to dismiss the case, and the plaintiff appealed.

Decision reversed

The U.S. Court of Appeals for the Eighth Circuit reversed the trial court’s decision and remanded the case for further consideration. It found that there was evidence that the plaintiff was discriminated against for taking FMLA leave because his employer had shifted its explanation for why it had terminated the plaintiff.

Originally, the company claimed it had fired the plaintiff for failing to notify his supervisor that he was going to be absent. But it later modified this claim to say that he’d notified the supervisor but failed to do so correctly.

There was also a dispute about whether the company enforced its call-in policy. As mentioned, the plaintiff stated that he’d previously notified his supervisor of absences via text and these notifications had been accepted. In doing so, he presented sufficient evidence to raise a genuine issue of fact as to whether he’d adequately notified the company and was terminated for taking FMLA leave.

Regarding reinstatement, the trial court had concluded that the plaintiff had been restored to his position when he returned to work. Therefore, summary judgment in the employer’s favor was deemed proper on his FMLA-entitled claim. But the appeals court found that, because he wasn’t permitted to work and was recommended for termination that same day, there was a dispute of material fact about whether the plaintiff was actually restored from leave before being terminated.

Warning served

This case should serve as a warning to employers that inconsistencies in their reasons for taking an adverse action against an employee, as well as in enforcing their own employment policies, could lead to a lawsuit and a trial. Be sure to have sound, legally reviewed procedures and policies in place and to enforce them consistently. Doing so is particularly important when FMLA leave is involved. 

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