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Teacher’s claim he was denied tenure in retaliation for FMLA leave revived; fact issue raised as to whether he worked three hours fewer than minimum required for leave eligibility

A high school teacher who alleged that he was denied tenure in retaliation for taking FMLA leave presented a fact issue as to whether he worked enough hours to be eligible for leave, despite the fact that pursuant to the governing CBA, he worked three hours fewer that the minimum required by the Act, the Second Circuit ruled in reversing summary judgment in favor of the school district (Donnelly v Greenburgh Central School District No 7, August 10, 2012, Lynch, G). The appeals court also found that the lower court erred in ruling that because the teacher failed to show that he was qualified for tenure under the standard applied to colleges and universities, he failed to present a triable issue of fact regarding his FMLA-retaliation claim.

Tenure decision. Hired under a three-year probationary contract, the high school English teacher was assigned to a magnet academy his first year. While there, he had perfect attendance and received the highest overall rating in each of three evaluations. Transferred to a different school for his final two years, he continued to receive good evaluations. In the fall of his third year, however, he took several days of leave in order to recover from gall bladder surgery. When he returned from leave, his performance evaluations began to decline and he received criticism for his excessive absences, including those taken during his medical leave. At the end of the year, his principal did not recommend him for tenure. In denying tenure, the district relied only on the evaluations from the second school.

District court’s decision. Alleging that the district denied him tenure in retaliation for his leave, the teacher sued. Calculating his hours worked exclusively by reference to the CBA, a magistrate judge found that the teacher was not eligible for FMLA leave as a matter of law because he had worked only 1,247 hours in the preceding year, three hours fewer than the minimum required under the FMLA. The magistrate then found that even if he were eligible for leave, he did not show he was qualified for tenure under a standard applied to colleges and universities. Finding the tenure issue dispositive, the district court held that the employee failed to present a triable issue of fact regarding his FMLA claim. It did not address the employee’s eligibility under the Act.

Hours worked. On appeal, the school district argued that pursuant to the CBA, teachers worked 7.25 hours a day. Because the employee was present 172 days in the preceding school year, the district concluded that he worked 1,247 hours; thus he was ineligible for FMLA leave. Stating that the calculation “cannot stop there,” the appeals court turned to 29 C.F.R. Sec. 825.110(c)(1), noting that it specifically rejects the proposition that a compensation agreement, like the CBA in this case, can conclusively determine the computation of hours required for FMLA eligibility unless it accurately reflects all hours an employee has worked for or been in service to the employer. Thus, the number of hours worked is a factual question, and while the CBA can be considered, it is not determinative.

Adopting a standard similar to that expressed by the Sixth Circuit in Staunch v Cont’l Airlines Inc, the court stated that in cases where a plaintiff avers that a relevant compensation agreement, like the CBA, does not accurately reflect all the hours the employee actually worked, the employer has the burden of showing that the employee has not worked the requisite hours. As a result, to succeed on a summary judgment motion, an employer must show that either the hours alleged by the plaintiff could not have occurred or that they are not compensable as a matter of law under the FLSA.

Here, the CBA implicitly acknowledged that on occasion, teachers must work outside of the 7.25 hours anticipated. In addition, FMLA regulations expressly note that full-time elementary and secondary teachers often work outside the classroom or at their homes (29 C.F.R. Sec. 825.110(c)(3)). Moreover, the teacher alleged that he worked a total of 1.5 hours before and after class every day. Finding that this claim alone would be enough to shift the burden to the district, the court observed that, in an evaluation of the teacher, the principal corroborated this claim when he wrote that the teacher regularly arrived early and stayed late in the afternoon working with kids “to ensure their success.” Accordingly, the court stated, if the teacher did in fact work an extra half hour a day beyond what the CBA required, he worked more than the three additional hours he needed to demonstrate FMLA eligibility.

Integral and indispensable activities. The district next contended that even if the hours the teacher claimed to work beyond those required by the CBA were spent on tasks related to teaching, he failed to show that they were devoted to activities that were an integral and indispensable part of his principal activity of teaching. Noting that the line separating integral and indispensable activities from those that are not is not always clear, the court found that the CBA and the regulations establish that a teacher’s principal work activities, such as preparing lesson plans and grading tests, extend beyond the hours worked in front of a class.

The court rejected the district’s argument that because the teacher did not provide details on what he did during the extra hours he claimed to work, he failed to raised a genuine fact dispute about whether he worked three additional compensable hours beyond the CBA’s requirements. “A reasonable jury could conclude that even if a teacher is permitted to go home after seven and a quarter hours, he or she is still required to prepare proper lessons and formulate and grade examinations, and that the District will not accept as an excuse for inadequate lesson plans and ungraded student papers that the teacher did all he or she could in the time required under the CBA.” According to the court, the law does not prevent teachers who work at home from ever counting that time for purposes of FMLA eligibility. Thus, finding that the teacher raised a fact issue regarding whether he was qualified for FMLA leave, the court held that the district was not entitled to summary judgment on this issue.

Retaliation. The district next argued that the lower court correctly ruled that the teacher failed to show that he was qualified for tenure under the standards announced by the Second Circuit’s decision in Zahorik v Cornell Univ, and because he was not qualified for his position, he could not establish a prima facie case of FMLA retaliation. Noting that Zahorik is applicable only in the context of challenges to university tenure denials, the court declined to apply it to teachers denied tenure in the elementary or secondary schools. Rather, the teacher demonstrated that he held the basic qualifications to be eligible for promotion. He held the necessary education and licensing credentials to serve as a teacher and he worked as a teacher for the necessary period of time to be considered for tenure. Of the nine performance reviews he received, he received the highest evaluation possible in six. The remaining three all occurred after he took leave. Consequently, he established that he was qualified for the position.

Finally, the court found that an adverse employment action occurred giving rise to an inference of retaliatory intent. Before his medical leave, the employee’s evaluations were extremely positive; after his leave, the evaluations deteriorated. Moreover, the negative evaluations specifically noted his excessive absences, including those taken pursuant to the FMLA (assuming his eligibility). Thus, the court concluded, the employee established his prima facie case.