A recently decided case has significant implications for employers because it will make it easier for employees bringing Family and Medical Leave Act (FMLA) retaliation claims to get to a jury trial. One of the key issues in most retaliation cases is “temporal proximity” – whether the action by the employer came close enough in time to the protected activity to permit a jury to conclude that the action was retaliation for that activity. A recent ruling by the U.S. Court of Appeals for the Eleventh Circuit (the federal appellate court covering Georgia, Alabama, and Florida) clarifies when to begin measuring temporal proximity to evaluate this causation determination in FMLA retaliation cases. The opinion in Jones v. Gulf Coast Health Care of Delaware, LLC explains that temporal proximity must be measured from the end date of the employee’s FMLA leave through the date of the adverse employment action. This holding overrules prior (non-published) decisions measuring the time period from the beginning date of the employee’s FMLA (which was a more favorable analysis for employers).
The case involved Rodney Jones, an activities director at a nursing home. While his job was mostly desk work, he also handled events and programs for the facility’s residents. So, he had to be able to perform some physical activities, such as assisting residents, unloading vehicles, and decorating for parties.
Jones took FMLA leave to repair a torn rotator cuff from September 26 through December 18, 2014. On his last day of leave, Jones’s physician recommended that Jones not engage in physical activities until February 1, 2015, and that he continue physical therapy. Jones then requested light-duty work until he completed his physical therapy. However, his employer denied the request and instead approved 30 days of non-FMLA leave while Jones completed physical therapy.
During this 30-day period, Jones posted pictures on social media of trips to the beach, a theme park, and the mountains. When Jones was fully released by his doctor on January 19, 2015, he returned to work and was confronted by his supervisor with the pictures. The supervisor felt the pictures proved that Jones was able to return to work earlier than January 19. Soon after, Jones was fired.
The Lawsuit and Outcome
Jones sued alleging FMLA retaliation – claiming that he was terminated for taking FMLA leave. In retaliation cases, a “causal connection” between the employee’s use of FMLA and his or her termination (or other adverse employment action) is often shown through a close “temporal proximity” (i.e., a short span of time) between the leave and the adverse action. The closer in time the two events are to one another, the more likely the court is to find that an employee has a viable retaliation claim. As a rule of thumb, more than three months between the two events is generally considered too long to establish causation (baring other facts showing a connection).
In this case, the trial court granted summary judgment in favor of the employer on Jones’s retaliation claim because it measured the temporal proximity time span from the beginning of Jones’s FMLA leave – September 26 — until his termination the following January, which was four months, so too long to establish causation.
The Eleventh Circuit reversed, holding that temporal proximity “should be measured from the last day of an employee’s FMLA leave until the adverse employment action at issue occurs.” The Court reasoned that to hold otherwise would disadvantage employees who take FMLA leave for the full twelve weeks permitted by that law.
What This Means
When an employer needs to take adverse employment action against an employee who has recently taken FMLA-protected leave, the employer should proceed with caution. If the adverse action occurs within three months or less from the end of the employee’s FMLA leave, the employee will have a much easier time establishing an FMLA retaliation claim. In these situations, employers need to carefully evaluate these time periods and always ensure that their legitimate business reasons for their employment decisions are well-documented and accurate, as well as not retaliatory.