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Employment Law Alert: Timing and employer’s statements crucial in reviving Plaintiff’s FMLA claim

In the recent Sixth Circuit case of Bryson v. Regis Corp., 6th Cir., No. 06-5137, (8/16/07), the Court revived the Plaintiff’s FMLA claim. The Plaintiff, Karen Bryson, had worked for more than 15 years at a Supercuts hairstyling shop in Lexington, Kentucky. Bryson eventually developed knee problems which required surgery. When Bryson informed her area manager of her knee problems, she was told that the store was too busy to allow her to take time off for surgery. Bryson was eventually granted leave for approximately two and a half weeks, and that period was later extended for approximately nine and a half more weeks. At the end of the twelve-week period, Bryson still could not return to work and Regis claimed that it terminated her for that reason. Bryson filed a lawsuit in state court charging violations of the FMLA retaliation provisions and state law violations. For her state law claims, Bryson alleged that the company violated the KCRA by discriminating against her due to a disability and retaliating against her because she had requested an accommodation for her knee injury. Regis moved for summary judgment, which was granted at the District Court. The Sixth Circuit affirmed as to the KCRA claim but reversed the grant of summary judgment as to the FMLA claim.

A plaintiff can make out a prima facie claim of retaliation under the FMLA by showing that she engaged in activity protected by the statute and experienced an adverse employment action, and that there was a causal connection between the adverse employment action and the protected activity. Here, the court noted that Bryson admittedly submitted the document bearing her March 8 statement that she was unable to work, but the document was not date-stamped by Regis until March 15, five days after the company announced Bryson’s firing. The company’s termination letter did not mention having received Bryson’s medical update, the court said, and the company did not explain what other information supported the statement in the termination letter that “your health care provider has not released you to return to work.” The court said that “summary judgment is inappropriate because there remains a factual question regarding when Regis first learned that Bryson would be unable to return to work in relation to when it decided to terminate her.” The record was “replete with testimony” that her area manager was angry about Bryson’s FMLA leave, the court said, but the record was “unclear as to what exactly Regis relied upon” in deciding to fire Bryson.

This case is a great example of how summary judgment may be denied to an employer, even though the employer here probably abided by the FMLA. The law protects employees who take FMLA leave, and employers should not actively dissuade qualifying employees from using its protections. Moreover, employers should carefully date documents and communicate clearly and promptly with employees regarding lawful actions, such as terminating an employee whose medical leave has expired.



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