Court Says Timing of Termination Offers Significant Probative Force

John GarnerDMEC News

The Court of Appeals for the Tenth Circuit found that the defendant violated the plaintiff’s rights under the Family Medical Leave Act (FMLA).  The timing of the termination in this case was found to be particularly suggestive since it occurred while the plaintiff was on leave of absence, and just one day after she told the defendant that she would need to take a full six weeks off to recuperate from surgery and could not return sooner.

The case is Nydia Defreitas vs. Horizon Investment Management Corp; James Terry

Nydia DeFreitas (DeFreitas) worked as a manager for Horizon Investment Management Corp (Horizon) for approximately two years.  Her talents were recognized by her employer early on.  She was observed as being “an outstanding leasing agent” “an excellent leasing agent” and someone who had “very good skills related to people.”  She was soon transferred to a more challenging property that had undergone over one million dollars’ worth of rehabilitation.  There she did “very well,” according to her boss.  “You are a dynamite employee,” he wrote her in a November 2004 e-mail.  “We are so glad to have you as part of our team …Thanks for all you do.”  Less than six months after she had begun with Horizon, she was given a raise.

DeFreitas took time off for maternity leave in May 2005.  She returned to Horizon as a “floating manager” entrusted with assisting in the management of several properties.  In the summer of 2005 after being offered a higher paying job by another company, DeFreitas tendered her resignation to Horizon.  Horizon responded by offering her a raise and a promotion to Regional Vice President.  As a result of the offer DeFreitas opted to stay at Horizon, where her management duties increased to include three properties regarded as the company’s most difficult.  DeFreitas worked over 50 hours a week, including nights and weekends.  Her success persisted.  She received emails advising her that even though Edison Place showed a loss in October, “I have got to tell you it is the best number that we have ever had on that property. . . . You are doing super . . . Dynamite job . . . “You are doing an excellent job!” one executive committee member emailed her on November 23, 2005.  The property owner’s son, a member of the homeowners’ association board at Park Place, e-mailed DeFreitas on December 1, 2005:  “Nydia, it’s 10pm at night and you’re still working it, good job!  Thanks for all you do!”

In November 2005, DeFreitas informed her employer that she needed a hysterectomy and would have to take six weeks of leave.  They did not discuss whether the leave would be paid or unpaid.  Later it was suggested that she seek donations of paid sick-leave time from other Horizon Managers; but the suggestion was later retracted when the other employees became upset by the suggestion.  As a result, DeFreitas was told that she would have to take unpaid leave after exhausting her paid sick-leave time.  She was never informed of her FMLA leave rights, nor was she asked to provide any medical certification of her condition.  Although Horizon’s Manual of Operations contained a section on sick leave, it did not contain a section on FMLA.  Horizon claimed they “didn’t know what it was until the situation came up with DeFreitas.”

After her surgery on February 16, 2006, DeFreitas’s surgeon prescribed six weeks of bed rest.  She provided Horizon with daily updates on her condition and informed them that she nonetheless intended to return early.  During one conversation, Horizon expressed concern about the six-week time frame, mentioning that someone else had been able to return to work within only a few days after having the same type of surgery.  While on leave DeFreitas was occasionally sent work to do at home.  On March 9 she called her boss to report the latest checkup with her doctor, advising him that she would not be able to return to work before the prescribed six week period.  He responded by saying, “Oh, you don’t worry about it.  You just get yourself better.  You know, take care of you and the family and, you know, . . . I’ll talk to you later.”  The next day, on March 10, 2006, DeFreitas received an e-mail firing her.

Not convinced that she would have been fired had she not taken leave, DeFreitas sued Horizon; claiming (1) that the firing interfered with her rights under FMLA; and (2) that her boss, a member of The Church of Jesus Christ of Latter-day Saints (LDS), fired her because she was a Catholic, in violation of Title VII of the Civil Rights Act of 1964; and (3) that she was subjected to a work environment that was hostile to those who were not LDS, also in violation of Title VII.  The District Court granted Horizon summary judgment on all three claims.  DeFreitas appealed on her FMLA and religious-discrimination claims.  She did not challenge the dismissal of her hostile-work-environment claim.

Reviewing the claims brought before them, the Appeals Court found it unreasonable to draw an inference that Horizon fired DeFreitas because of her religion, dismissing the supporting evidence on her religious-discrimination claim.  Although the evidence presented by DeFreitas could have possibly sufficed to demonstrate a prima facie case, most of it is was found to be quite weak, leaving the court to conclude that the District Court was correct in its findings.  However, the Court of Appeals was not in agreement with the findings expressed by the lower court on DeFreitas’s FMLA claim.

In establishing her FMLA interference claim, DeFreitas was required to demonstrate that she was entitled to FMLA leave, and that some adverse action by Horizon interfered with her right to take FMLA leave, and (3) that Horizon’s action was related to the exercise or attempted exercise of her FMLA rights.  DeFreitas failed to satisfy the first two elements required to establish an interference claim. The court therefore addressed only whether her firing was related to her taking leave, and whether she would have been fired anyway, regardless of leave.

The Court of Appeals for the Tenth Circuit found the related-to issue easy to resolve.  Whenever termination occurs while the employee is on leave, that timing has significant probative force. (The timing of Smith’s termination, which occurred during leave, also indicated a causal relation between her FMLA leave and her dismissal.). The timing here was found to be particularly suggestive since DeFreitas’s termination occurred just one day after she told Horizon that she would need to take a full six weeks off and could not return sooner.  Moreover, Horizon later told DeFreitas’s prospective employer that the reason for her departure was “illness.”  The court also purported that they found additional evidence that her termination was related to her leave, but felt that the above mentioned reasons would suffice.

Finally, a good deal of evidence to support that DeFreitas was a highly valued employee doing excellent work was found, and Horizon produced no documentary evidence to support any misconduct by Ms. DeFreitas that would result in her being fired, with all of their complaints being inconsistent with one another.

Finding the timing of her termination to be particularly suggestive, the Appeals Court reversed the District Court’s ruling in portion, remanding the FMLA claim for further proceedings.

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