Employers: Probably How Not to Win a FMLA Case

Darrell VanDeusen
Darrell VanDeusen

It’s that time of year when I update my treatise on FMLA/Wage & Hour Law (available as a part of the Labor and Employment Law multi-volume series published by Lexis/ Nexis).  But enough gratuitous self-promotion. 

The FMLA turns 30 years old this year.  It remains hard to argue with the Congressional intent of a desire to “balance workplace and family.”   And, as FMLA jurisprudence has matured over the years, there are now not many FMLA cases that plow new ground.  Yet, while reading nearly every FMLA case decided over the past year, I sometimes find “gems” that can turn into teachable moments.  Here’s one of them.  Canada v. Samuel Grossi & Sons, Inc., 49 F.4th 340 (3d Cir. 2022).

Brief review:  FMLA discrimination/retaliation cases are analyzed under the familiar (at least to employment lawyers) McDonnell Douglas framework.  The reference is to an early Title VII case, McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), which created the three part test of (1) prima facie case, (2) legitimate non-discriminatory reason, and (3) pretext.

Once an employee establishes a prima facie case, the employer bears the burden of production (not proof) to show it had a legitimate non-discriminatory reason for the adverse employment action.  The employee then must present facts that suggest the employer’s stated reason for the decision was really a pretext for intentional discrimination/retaliation.  Many summary judgment decisions in management’s favor rest on the dual findings that the employee cannot establish a prima facie case but, even if they could, there’s no evidence from which a reasonable fact-finder could find the employer’s reason was pretextual.

And that is want happened in the district court here.  Not so, however, when the Third Circuit reviewed the case on appeal.  Remember that because the case involved a motion for summary judgment, the facts as related by the appellate court were viewed in the light most favorable to the plaintiff. 

Joseph Canada worked for Grossi, a Philadelphia steel producer, for 10 years. He suffered from back problems including herniated discs and arthritis.  Canada claimed that management prevented him from accessing FMLA forms and harassed him when he tried to use FMLA.  Eventually, however, he got FMLA forms on his own and notified management when he was taking FMLA leave. 

In early 2019, Canada (who is Black) filed an EEOC charge and then a lawsuit alleging discrimination and retaliation for, among other things, using FMLA leave.  A couple of months later he was fired after one of the company owners “threatened that if he did not drop the lawsuit, ‘I’ll [ ] just have other African-American employees say the opposite of what you’re saying.’”

These facts, no doubt, provide a prima facie case of retaliation.  So what was the employer’s legitimate non-discriminatory/retaliatory reason for the firing?  Here’s what the company said.

The termination resulted from text messages management found on Canada’s cellphone. While Canada was on vacation, Grossi cut the padlock off Canada’s locker and searched it.  Grossi claimed that the lockers needed to be moved that day because they were blocking a surveillance camera. Despite using a forklift to move the lockers, Grossi said that they needed to be emptied.

Because Canada was not at work, a Grossi employee cut the lock off his locker and removed its contents, including Canada’s personal items and cellphone. The HR director saw the cellphone and testified that she believed that the phone may have been a company phone “[b]ecause it’s a Samsung.” Grossi had issued other employees Samsung cellphones.  Then, the HR director guessed the phone’s password on her first try.  Later that day, she searched the phone to “find out if it was a company phone.”

Her review showed messages from more than one year earlier in which Canada appeared to have solicited sex from prostitutes.  Comparing the time records of his text messages to his work hours, but without talking to Canada, management concluded that “he had been soliciting prostitutes while at work and clocked in.”  AHA!  Solicitation of prostitutes during company time apparently violated the company’s “Employee Conduct and Disciplinary Action Policy.”   So, Grossi immediately fired Canada.  Really. That was the story justifying termination.

The district court granted summary judgment for the company, finding that Canada’s arguments “relate to the propriety of the search of plaintiff’s cellphone, not whether defendant terminated plaintiff’s employment for appearing to solicit prostitutes while clocked in and on company property.” Reversing, the Third Circuit stressed that “[w]e look at the totality of the circumstances to determine whether an employer’s proffered nondiscriminatory reason is pretext for a discriminatory motive.”  

The appellate court noted that the company provided no good explanation for why it needed to empty the lockers to move them (recall they used a forklift). It noted that there were lots of other ways (look at the serial number for one) to determine if it was a company phone.  Indeed, it is unclear how searching text messages could show the phone was company property.  Moreover, no one else’s locker or phone was searched.  And let’s not forget Canada’s allegation that one of the company’s owners tried to bully him into dropping his lawsuit.

Here, said the court, there was a “convincing mosaic” of circumstantial evidence that, when taken as a whole and viewed in a light favorable to Canada’s case, could convince a reasonable jury that he was the victim of unlawful retaliation.  In other words, the evidence could support a finding that the search itself was retaliatory.  That was sufficient to get the case past summary judgment and to trial.

The takeaway?  Maybe, just maybe, the employer’s story here consists of the “true facts.” But the Third Circuit correctly said that will be the jury’s call.

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