John E. McElligott, Jr., and Christopher J. Piasecki, acting as counsel for a local Louisiana corporation, were recently involved in a case involving the Family and Medical Leave Act. In that case, a former employee filed suit against the corporation alleging that the corporation discriminated against the employee through acts of retaliation by firing the employee after the employee had taken leave under the Family and Medical Leave Act. The following in a synopsis of pertinent Federal and State law issues which were raised by the particular facts of this case, as well as the outcome as determined by the Court.

I. FUNDAMENTALS OF FMLA ACT

The Family and Medical Leave Act (FMLA) was enacted to help working men and women balance between the conflicting demands of work and personal life. It does so by recognizing that there will be times in a person's life when that person is incapable of performing his work duties for medical reasons. Preis v. City of Forth Wayne, 117 F.3d 1022, 1024 (7th Cir. 1997). The FMLA also entitles the employee to take reasonable leave for medical reasons. 29 U.S.C. § 2601 (b)(1).

The FMLA contains two distinct provisions and entitlements in its anti-discrimination clause. See 29 U.S.C. § 2612, 2615; Hodgens v. General Dynamics Corp., 144 F.3d 151, 159 (1st Cir. 1998). The FMLA provides a series of rights to eligible employees. First, the act requires covered employers to provide eligible employees up to twelve weeks per year of unpaid leave for any of the following purposes: the birth, care or placement of a child for adoption or foster care; to care for a close family member with a serious health condition; or when an employee has a serious health condition that makes the employee unable to perform the functions required by his position. See 29 U.S.C. § 2612 (A)(1)(C); Hodgens, 144 F.3d at 159; Preis v. Marathon Cheese Corp., 119 F.3d 330, 333 (5th Cir. 1997).

Second, the FMLA provides for 'intermittent' leave, which allows an employee to take such leave intermittently 'when medically necessary,' such as to attend appointments with a health care provider for necessary treatment of a serious health condition. 29 U.S.C. § 2612(b). An employee can assert a claim under the FMLA by declaring either (1) the employer interfered with, restrained, or denied the exercise of or the attempt to exercise, any right provided for under the FMLA, or (2) that the employer discharged or discriminated against the former employee for utilizing or availing himself of the rights under the FMLA. Williams v. Rubicon, Inc., 98-1743 (La.App. 1st Cir. 9/24/99), 754 So.2d 1081.

II. THE EMPLOYMENT AT WILL DOCTRINE

Louisiana is an 'at will' employment state. Under the employment at will doctrine, employment is for an indefinite term and is terminable at the will of either the employer or employee. Absent a specific contract or agreement establishing a fixed term of employment, an employer is free to dismiss an employee at any time and for any reason without incurring liability. McJamerson v. Grambling State University, through Louisiana Board of Trustees for Colleges and Universities, 2000 WL 1409677 (La. App. 2nd Cir. 2000); Tolliver v. Concordia Waterworks Dist. No. 1, 735 So.3d 680 (La.App. 3rd Cir. 2/10/99), writ denied, 747 So.2d 23 (La.7/2/99); Williams v. Delta Haven, Inc., 416 So.2d 637 (La.App. 2nd Cir. 1982).

Plaintiff's employment with Defendant was on an 'at will' basis. No specific term of employment was fixed and no employment contract existed between plaintiff and Defendant. Accordingly, Defendant argued that it was justified in terminating plaintiff's employ due to his continuous absenteeism and tardiness.

The FMLA provides a narrow exception to the general jurisprudential rule of the employment at will doctrine. Because it is a narrow exception, Courts should look at the surrounding circumstances in determining whether a defendant is liable for terminating an employee. Based on the facts and circumstances surrounding plaintiff's employ with Defendant, Defendant argued that it was justified in terminating plaintiff's employment due to his continued absenteeism and tardiness.

III. RETALIATION CLAIMS UNDER THE FMLA ACT

A. General Burden of Proof

Retaliation claims brought pursuant to FMLA are analyzed under the same standards that are applied to retaliation claims brought under Title 7 and other employment discrimination statutes. See Chaffin v. John H. Carter Co., Inc., 179 F.3d 316 (5th Cir. 1999); King v. Preferred Group, 166 F.3d 887, 891 (7th Cir. 1999); Hodgens, 144 F.3d 160; Diaz v. Forth Wayne Foundary Corp., 131 F.3d 711, 712-13 (7th Cir. 1997); Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (7th Cir. 1997). As with other anti-discriminations statutes, 'the employee bears the burden of proving that the employer's actions were motivated by the considerations prohibited by the statute.' Hypes v. First Commerce Corp., 134 F.3d 721, 726 (5th Cir. 1998).

The Fifth Circuit assailed that the burden shifting technique applicable to Title 7 disparate treatment claims also applies to claims of unlawful retaliation under the FMLA Act. See Long v. East Field College, 88 F.3d 300, 304 (5th Cir. 1996), McMillan v. Rust College, Inc., 710 F.2d 1112, 1116 (5th Cir. 1983). Therefore, 'if the plaintiff can establish a prima facie case of retaliation, the burden shifts to the defendant to come forward with a legitimate, non-discriminatory reason for the adverse employment action.' Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998); Chaffin, 179 F.3d at 319-20; Bocalbos v. National Western Life Insurance Company, 162 F.3d 379, 383 (5th Cir. 1998), cert. denied, 120 S.Ct. 175, 1999; Ray v. Iuka Special Mun. Separate School District, 51 F.3d 1246, 1249 (5th Cir. 1995).

'If a defendant advances any legitimate reasons for the adverse employment action, then the plaintiff must produce sufficient evidence that would permit a reasonable trier of fact to find the reason as pretext for retaliation. Sherrod, 132 F.3d at 1122, McDonald Douglas Corp. v. Greene, 411 U.S. 792, 804, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Grizzle v. Travelers Health Network, Inc., 14 F.3d 261, 267 (5th Cir. 1994). 'If a defendant introduces evidence, which if true, would permit the conclusion that the adverse employment action was non-discriminatory, the focus shifts to the ultimate question of whether the defendant unlawfully retaliated against the plaintiff.' Long, 88 F.3d at 305; Grizzle, 114 F.3d at 267. To carry his ultimate burden, 'an employee must show that his/her employer would not have taken the adverse employment action 'but for' the employee's participation in the employment activity.' Scrivner v. Socorro Independent School District, 169 F.3d 969, 972 (5th Cir. 1999); Walton v. Bisco Industry, Inc., 119 F.3d 368, 370 (5th Cir. 1997); Long, 88 F.3d at 305; Ray v. Tandem Computers, Inc., 63 F.3d 429, 435-36 (5th Cir. 1995).

B. An Employee's Prima Facie Case

To establish a prima facie case of retaliation under the FMLA, the plaintiff must show that: (1) he availed himself of a protective right under the FMLA; (2) he was adversely affected by an employment decision; and (3) a causal connection existed between the employee's protected activity and the employer's adverse employment action. Hodgens, 144 F.3d at 161; Randlett v. Shalala, 118 F.3d 857, 862 (1st Cir. 1997). Morgan, 108 F.3d at 1324. The employee must demonstrate that the exercise of his rights under the FMLA was a motivating or determinating factor in the adverse employment action actually taken by the employer, i.e. there must be a causal connection. Hodgens, 144 F.3d at 160; Hypes, 134 F.3d at 726. 'The burden of establishing 'causal link' in the prima facie case is much less onerous than proving 'but-for' causation required for the determination of the ultimate issue of retaliation.' Sherrod, 132 F.3d 1122(A); Long, F.3d at 3059.

IV. LEGAL ARGUMENT PRESENTED TO THE COURT

A. Protected Activity

The first element of a prima facie case is whether the employee availed himself of rights protected under the FMLA. In this case, plaintiff availed himself of rights protected by the FMLA. The plaintiff did have an excuse stating that he had a health condition that rendered him unable to perform the functions of his position and submitted this excuse to Defendant. The plaintiff's employment record reflected that he requested and was granted a leave of absence for an approximate two (2) week period. Thereafter, upon plaintiff's return to work, plaintiff stated that he was able to perform his duties, and actually did perform his duties.

B. Adverse Employment Decision

The second element of a prima facie FMLA retaliation action requires a showing that the plaintiff was adversely affected by an employment decision. Chaffin, 179 F.3d at 319; King, 166 F.3d 891; Bocalbos, 162 F.3d at 383; Hodgens, 144 F.3d at 161. Plaintiff was adversely affected by Defendant's employment decision because he was terminated from his employment due to his undependability, unreliability, and absenteeism. The evidence showed that the leave granted to the plaintiff under the FMLA was not a factor in his termination from employment.

C. Causal Connection

The third element that must be shown to establish a prima facie case of retaliation is a causal connection between the protected activity and the adverse employment action. Chaffin, 179 F.3d at 319; King, 166 F.3d at 891; Bocalbos, 162 F.3d at 383. As to the causation element, the Fifth Circuit has relied upon the content of Title 7 retaliation cases:

'First glance, the ultimate issue an unlawful retaliation case . Whether the defendant discriminated against the plaintiff because the plaintiff engaged in a conduct protected by Title 7 - seems identical to the third element of the plaintiff's prima facie case - whether a causal link exist between the adverse employment action and the protected activity. However, the standards of proof applicable to these questions differ significantly. Long, 88 F.3d at 305(4). The court has observed that the consideration of the three factors may be helpful in determining whether a causal link has been demonstrated at the prima facie case stage: 1) plaintiff's past disciplinary record, 2) whether the employer followed its typical policy procedures in terminating the employee, and 3) the temporal relationship between the employee's conduct in discharge. Nowlin v. RTC, 33 F.3d 498, 507-08 (5th Cir. 1994), Jenkins v. Orkin Exterminating Company, 646 F.Supp. 1274, 1277 (E.D. Texas 1986). (The timing of the adverse employment action can be a significant, although not a necessarily determinative factor.) Mayberry v. Vought Aircraft Company, 55 F.3d at 1086, 1092 (5th Cir. 1995); Hodgens, 144 F.3d 168, 170; Grizzle, 14 F.3d at 268.

V. FACTS OF THE INDIVIDUAL CASE

In this case, the employee's past disciplinary record and personnel file were not unblemished. The record reflected that beginning in the spring of the year of termination, the employee's attendance, attitude and demeanor began to deteriorate. Plaintiff was repeatedly counseled in regards to his absences and tardiness, several months before he sought leave of absence under the FMLA. Plaintiff was hired in a position which demanded punctuality and a great deal of responsibility on the part of the employee. The plaintiff failed to comply with those requirements often putting the Defendant behind schedule and in fear of straining customer relations.

The plaintiff failed to show up for work on five occasions without bothering to notify the Defendant. Throughout the absences and tardiness, the Defendant followed its typical procedures in terminating plaintiff. Plaintiff received several verbal warnings regarding his tardiness and lack of professionalism in the workplace. Such counseling was procedurally in line with the employment guidelines set forth in the employee handbook. Plaintiff was informed that the reason for his termination was due to his undependability in not showing up to work on time and the fact that he failed on five occasions to show up for work without calling his supervisor. Furthermore, the plaintiff's personnel record revealed that for a period of approximately ten months (prior to taking leave), plaintiff had intermittently missed approximately ten (10) hours of scheduled time due to his tardiness and late arrivals to work.

VI. COURT'S RULING

Based on these facts, the Court granted Defendant's Motion for Summary Judgment finding that Defendant had sufficient grounds, i.e., a legitimate non-discriminatory reason, for terminating plaintiff's employment. Plaintiff was not discharged because he took leave under the FMLA. Rather, plaintiff was discharged due to his repeated absences from work and his continuous tardiness. Therefore, plaintiff's claims of retaliation against the Defendant were dismissed by the Court.