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Supervisor thought employee was on workers’ comp leave, did not retaliate for FMLA leave

By Kathleen Kapusta, J.D.

Although it was “true beyond a doubt” a supervisor knew an employee had suffered a serious FMLA-eligible injury, he reasonably believed the employee was out on paid workers’ compensation medical leave, rather than FMLA-designated leave, when he terminated him and thus he could not be held liable for a failure to inquire further into his leave status. Further, his animus toward the employee for his absence was directed exclusively toward his workers’ comp leave, not his concurrent FMLA leave, said the court, also finding no precedent to support the proposition that the employer’s general knowledge of the FMLA designation could override the supervisor’s lack of knowledge. Accordingly, the district court’s finding that the supervisor lacked the requisite knowledge necessary to hold him liable for FMLA retaliation was affirmed (Chase v. United States Postal Service, December 14, 2016, Stahl, N.).

The postal service letter carrier suffered a serious shoulder injury when his vehicle was struck by another car. Despite being discouraged by his supervisor, he applied for workers’ comp. He also applied for and was granted FMLA leave. Pursuant to USPS policy, he opted for a continuation of pay and was fully compensated for the first 45 days of leave, after which he received workers’ comp benefits. When his concurrent FMLA leave expired, he remained on medical leave.

Mocked. On several occasions, the employee’s supervisor publicly mocked him and accused him of faking both this injury and a prior knee injury. For example, he purportedly posted a job opening on the office bulletin board advertising a position for an “injury compensation specialist;” announced “[T]here’s a job posted on the bulletin board for an[] injury compensation specialist since you’re the biggest fraud when it comes to injuries;” and announced on multiple occasions “Can I have the carrier on Route 92 who is faking an injury come to the office, please.”

Arrested. While on leave, the employee was arrested and charged with possessing and intending to distribute cocaine. In notifying his manager about the arrest, the supervisor emailed “[i]t would be nice if we can proceed with something.” The manager forwarded the email to Labor Relations indicating that the employee was “out OWCP [on workers’ compensation] to boot.”

When the employee informed the supervisor the criminal charges would soon be dismissed, the supervisor allegedly threatened him with a workers’ comp fraud investigation if he did not return to work. He was ultimately removed from his job while still on leave. He filed a grievance and before the final arbitration hearing, his criminal case reached a favorable resolution. The arbitrator, however, affirmed his removal, finding evidence he had possessed an illegal drug in violation of USPS policy.

Lower court proceedings. He then sued, asserting claims against USPS for FMLA interference and retaliation. He also asserted several claims against his supervisor but under the Westfall Act, the United States substituted itself for the supervisor. The district court granted summary judgment on all but the FMLA retaliation claim. After a bench trial, the court entered judgment for USPS and the supervisor, finding that they could not have acted with retaliatory animus because the supervisor lacked requisite knowledge that the employee’s leave was protected under the FMLA.

Reasonable belief. On appeal, the court found no evidence that the supervisor knew or should have known the employee was out on FMLA-designated leave. While he knew the employee had suffered a serious injury that was FMLA-eligible, he reasonably believed the employee was out on paid workers’ comp medical leave rather than FMLA-designated leave. Not only did a computer program list the employee as either “injured on duty” or “out on workers’ compensation,” the supervisor testified that he neither received nor saw the FMLA notice allegedly mailed to him.

Further, said the court, he also reasonably concluded that it would not make sense for the employee to take FMLA leave until his paid leave expired because using FMLA leave concurrently with the more advantageous workers’ comp coverage would be redundant.

As to his workplace comments, “inappropriate as they may have been in polite company, or for that matter in employee relations,” they supported the conclusion that the supervisor actually believed the employee was receiving workers’ compensation and had not taken FMLA leave, said the court, in agreement with the district court’s finding that “it was the workers’ compensation leave—not the concurrent FMLA leave—which angered” the supervisor and contributed to the employee’s termination.

While the court observed that actual knowledge on the part of an employer that a particular employee has specifically invoked the FMLA’s statutory protections, as opposed to having taken leave for an injury or other condition which happens to be FMLA-protected, it did not “believe that the district court clearly erred in concluding that the particular chronology and facts of this case rendered” the supervisor’s belief that the employee had declined to invoke FMLA protection a reasonable one.

General corporate knowledge. Finally, the court rejected the employee’s assertion that even if his supervisor reasonably believed he was not out on FMLA leave, USPS had “general corporate knowledge” of the FMLA designation, which bound its conduct as a matter of law. This argument, however, was “inherently flawed” said the court, finding that “precedent does not support his basic proposition that corporate or managerial knowledge can override a decisionmaker’s lack of knowledge in FMLA retaliation cases.”