10/08/2007
Learn from Others' Mistakes -- Recent Sixth Circuit Decision Offers Important Lessons on How to Avoid Retaliation Claims

In August, the Sixth Circuit Court of Appeals issued a decision regarding FMLA retaliation and disability retaliation.  The decision serves as a useful reminder of the Court’s views and of the precautions employers must take when making termination decisions.

Background

In Bryson v. Regis Corp., the plaintiff-employee, Karen Bryson, was terminated after she had knee surgery and used FMLA leave.  Ms. Bryson sued her employer, Regis Corporation, for numerous claims, including FMLA retaliation and disability retaliation.  Regis moved for summary judgment and the lower court granted Regis’s motion in full—dismissing all of the plaintiff’s claims.  If the case had ended there, it would have been a solid victory for Regis.  However, the case did not end there.  Ms. Bryson appealed the lower court’s decision to the Sixth Circuit Court of Appeals. The Sixth Circuit reversed the lower court’s decisions on both her FMLA retaliation claim and her disability retaliation claim, and sent the case back to the lower court for additional court proceedings.

What was the Sixth Circuit concerned about that led it to send the case back to the lower court for further development?  The Sixth Circuit wanted more information about Ms. Bryson’s supervisor’s involvement with her termination; the timing of her termination; and Regis’s response to Ms. Bryson’s request for accommodations.

Facts Presented in Court

Ms. Bryson was a hairstylist and a store manager, and a fifteen-year employee of Regis.  She had knee surgery, and she applied for and was granted FMLA leave for her recuperation period.  At the time Ms. Bryson applied for FMLA leave, her immediate supervisor had a negative reaction to the timing of the surgery, which was during the salon’s busy holiday season.  The supervisor told Ms. Bryson she could not take the time off; asked her to reschedule the surgery (which Ms. Bryson attempted to do but was told she could not); told Ms. Bryson the corporate lawyers would deny her FMLA request; required Ms. Bryson to work on her day off and other unscheduled shifts; and told other employees that she would make sure Ms. Bryson would not be able to keep her job.

Nevertheless, Ms. Bryson had her surgery, and took approved FMLA leave.  Toward the end of her leave, Ms. Bryson called her immediate supervisor and another supervisor to say that she could return to work, but that she needed to be able to do some seated work, as opposed to all standing work.  Regis never responded to Ms. Bryson’s requests.  One day after those phone calls, Regis sent a termination letter to Ms. Bryson, terminating her on the grounds that her doctor had not cleared her to return to work.  However, at the time the letter was sent, Regis had no such notice from Ms. Bryson’s doctor.  It received that notice a week after it sent the termination letter.

Sixth Circuit Decision

In retaliation cases, if the employee demonstrates a prima facie claim of retaliation, the employer must establish a legitimate, non-discriminatory reason for terminating the employee.  Finally, the employee has to prove that the legitimate, non-discriminatory reason for termination is simply a pretext for underlying discrimination.

For her retaliation claims, both under the FMLA and for disability retaliation, Ms. Bryson showed a prima facie claim of retaliation, because she was terminated after she applied for FMLA leave, and after she requested an accommodation of doing seated work.  Regis offered a legitimate, non-discriminatory reason for termination in that Ms. Bryson could not return to work after using her FMLA leave.  However, the Sixth Circuit found several reasons that Ms. Bryson might be able to prove Regis’s stated non-discriminatory reason was simply a pretext:  (1) It was unclear under the facts whether Regis actually knew that Ms. Bryson was unable to return to work at the time it fired her; (2) It was unclear under the facts what role Ms. Bryson’s immediate supervisor played in the ultimate decision to fire her; and (3) Ms. Bryson never received a definite response to her request for accommodations.

If the lower court determines that: Regis fired Ms. Bryson before receiving official notice she was unable to return to work; relied on discriminatory comments from Ms. Bryson’s supervisor in making its decision to terminate her; and/or Regis did not consider Ms. Bryson’s claim for accommodations, then Ms. Bryson could succeed on her retaliation claims.

Learning Points

1. Refer to established company policies.  Regis had several systems in place to track FMLA leave and doctors’ return to work instructions.  However, it terminated Ms. Bryson a week before it received her forms and her doctor’s instructions.  Had Regis waited a few days to receive Ms. Bryson’s paperwork and her doctor’s instructions, it would have had much stronger support for her termination, and a much stronger defense against Ms. Bryson’s retaliation claims.
2. Train supervisors on the importance of protected activity.  Ms. Bryson’s supervisor had such a negative reaction to her request for leave that the Sixth Circuit found that the supervisor’s comments could have been discriminatory, and if Regis relied on that supervisor’s discriminatory comments in deciding to terminate Ms. Bryson, she could establish a case for retaliation.  Remind supervisors of the professional nature with which they should address claims for leave.
3. Respond to an employee’s request for accommodations.  By terminating Ms. Bryson after she requested accommodations but before responding to that request, Regis became vulnerable to a retaliation claim.  When an employee requests accommodation for a disability, that request should be addressed and answered in light of appropriate laws and regulations.