About Us  |  About Cheetah®  |  Contact Us

Paying employee full salary to work part-time in lieu of taking FMLA leave may be interference

By Lorene D. Park, J.D.

Though an employer appeared generous in setting up a plan where, in lieu of FMLA leave, an employee would be paid her full salary to work as often as she could while her son was treated for cancer, a federal court in North Carolina found triable questions on whether this constituted FMLA interference because a jury could find the employer discouraged her from exercising rights under the Act. There was also a question whether she was prejudiced because the communication issues for which she was fired might not have arisen had she been on protected leave. Thus, summary judgment was denied on this claim. Her sex discrimination claim failed, however (Alexander v. Carolina Fire Control, Inc., June 18, 2015, Beaty, J.).

The employee was a project manager for a family-owned company that installs fire sprinklers. She did well enough to be promoted, though she received warnings about communicating and being courteous to the general manager (GM) and others. According to the employer, she once “flipped the bird” to the GM (her supervisor) when his back was turned. In January 2009, she was fired for insubordination, but she soon returned as an independent contractor and then resumed her old position by May. She was again warned to improve her communication issues.

In August 2012, the employee’s son was diagnosed with cancer. She informed her employer and was told the company would support her. She was sent an FMLA packet by August 8 and soon met with the two company owners to discuss her employment during her son’s treatment. According to the employee, the owners said there was no reason for her to fill out FMLA forms and they could come up with a plan “outside of the FMLA to work for everybody” so she could continue working and receive a full salary. The employer claimed the owners encouraged her to take FMLA leave but she tearfully said she could not afford unpaid leave. She disputed that statement and further claimed the owners discouraged her from taking FMLA leave.

The plan. The only thing undisputed was that the owners and employee agreed to a plan where the employee would continue to receive her full salary and benefits while working as much as she could during her son’s treatment. The owners would have a laptop set up for her to access the company server and emails, and she would have her company phone. She did not inquire further about her FMLA options but “trusted that the plan . . . was going to be sufficient” where she would not lose her job “for lack of communication that should have been protected by FMLA.”

There were few set expectations under the plan and no set number of hours the employee was expected to work per week. She worked a total of five to ten hours from August 1 through August 17, when she picked up her laptop and started to work remotely. Thereafter she worked approximately 5 to 25 hours per week, although no one tracked her actual hours. She always had her work phone, though, and was in “constant communication” with one of the owners via cell phone and email. According to the employee, there were two phone conversations when one of the owners was “upset” with her “lack of communication” during her remote, part-time work. She testified that he said she was “not communicating fast enough” on her projects. On January 9, 2013, the owners and other managers held a short meeting to discuss the employee’s status and everyone agreed she should be terminated for insubordination stemming from her alleged communication failures. Upon her departure, her 12 to 14 projects were divided among the four other project managers, all of whom were male.

FMLA interference. In her subsequent suit, the employee claimed her employer interfered with her FMLA rights by discouraging her from taking FMLA leave, which led to her termination. Seeking summary judgment, the employer claimed it never denied her FMLA entitlements and she could not show any prejudice resulting from alleged interference. To the court, though, a question of fact existed as to whether the employee was discouraged from taking FMLA leave at the meeting in which she and the owners agreed to a plan where she would be paid her full salary and work as many hours as she could while caring for her son. The employee claimed one of the owners told her that there was “no reason” for her to fill out FMLA paperwork and they could agree to a plan “outside of the FMLA to work for everybody.” She trusted the owners and never inquired further about her FMLA rights or options. From these facts, a jury could infer the employer interfered with her FMLA rights by encouraging her to accept a plan outside the Act’s purview, and discouraging her from invoking specific rights under the FMLA.

Prejudice. The court also found a triable issue as to whether the employee suffered prejudice due to the possible interference. The employer asserted that it paid her full salary and benefits while she worked part-time and also that the court previously dismissed the employee’s FMLA retaliation claim, foreclosing an argument that she was fired in response to her leave. However, the employee’s discharge and resulting consequences could be considered in the context of an FMLA interference claim, and there was a question as to whether her discharge and consequent monetary losses constituted prejudice resulting from an FMLA violation.

Specifically, the employee claimed the plan under which she worked remotely prevented her from communicating effectively and the difficulties, which led to her termination, would not have occurred had she been on intermittent FMLA leave. While on FMLA leave, her in-office time would have been clearly demarcated from her out-of-office leave, during which the employer could not have required her to respond to work communications. Thus, even though the employer appeared quite generous in paying her full salary, there were triable disputes as to her precise communication failures and whether they occurred during a time that would have been covered by the FMLA. Summary judgment was therefore denied on the interference claim.

Sex discrimination and wrongful discharge. The court granted summary judgment on the employee’s Title VII sex discrimination and state law wrongful discharge claims, finding them unsupportable here. It analyzed the claims together, explaining that North Carolina has adopted the Title VII evidentiary standards in evaluating a wrongful discharge claim that is based on sex discrimination. Assessing the employee’s prima facie case, the court concluded that she failed to meet her burden of production in showing that she was performing her job satisfactorily. Her self-assessment that she was meeting the employer’s expectations simply wasn’t enough. Even assuming she met this prima facie element, she failed to show she was replaced by someone outside her protected class. Instead, the undisputed evidence showed that her job duties were distributed among the remaining project managers. And the reassignment of her duties to male coworkers did not raise an inference of sex discrimination.

Even if the employee had made out a prima facie case, she failed to show that the employer’s proffered reasons for her termination were pretextual. Her argument that the reason was unworthy of credence because she would have not been expected to communicate while on FMLA leave only confused the two statutory actions at issue and did not indicate the employer’s reason was pretext for sex discrimination.