Alan Schorrs Employment Case of The Week ending December 7, 2012
Rodriguez v. University of Miami Hospital, (unpublished) (11th Cir. December 5, 2012)
Last week the 11th Circuit issued a head-scratching decision in a Family and Medical Act (FMLA) case, Rodriguez v. University of Miami Hospital. In denying summary judgment in part and granting summary judgment in part, the 11th Circuit imported the ADA concept of essential job function and applied it in a most surprising and illogical fashion.
The Eleventh Circuits decision is poorly written. It is missing key facts and completely misstates others. The facts recited here are reconciled as best as I could from the 11th Circuit opinion and the underlying trial court decision, Rodriguez v. University of Miami Hospital, 2011 WL 3651224 (S.D.Fla. 2011) which also provides spotty facts.
Apparently Plaintiff Iliana Rodriquez was an administrative assistant at University of Miami Hospital since 1997. In 2007, her new boss became Francetta Allen, whose position with the Hospital is not disclosed in either opinion. In any event, Allen allegedly did not communicate with Allen, and started taking away her job duties. The deteriorating relationship caused Rodriguez to worry that she would lose her job. As a result of these worries, Plaintiff began to suffer from anxiety and panic attacks, and began taking medication. Plaintiff's anxiety finally culminated in an outbreak of contagious dermatitis. On October 13, 2009, Plaintiff requested medical leave under the FMLA due to the dermatitis, and her leave was approved by the University. Plaintiff took the leave, and remained on FMLA leave for the full twelve weeks permitted by law. Accordingly, she did not return to work until January 4, 2010.
There is no evidence that Allen ever alerted anyone to any problems with Rodriguezs performance until the day of her return from approved FMLA leave. Nor was it alleged that problems were discovered during her leave. Rather, on the day of Rodriguezs return, she alleges that Allen announced that she could no longer work with Rodriguez and refused to reinstate Rodriguez to her former position. Instead, Rodriguez was placed at a copier and given no duties other than making copies all day long. A meeting was later held. The events of that meeting are in complete dispute, with both parties accusing the other of stating that they could no longer work with the other, and both parties denying the accusation. Rodriguez was fired six weeks after her return on February 15, 2010. Rodriguez sued only under FMLA for both interference and retaliatory discharge.
The Trial Court had found that the Plaintiff could not establish that her work was satisfactory and had granted summary judgment. The 11th Circuit held that the facts were completely disputed and that Rodriguez had clearly demonstrated a prima facie case of FMLA interference in that the Hospital failed to reinstate Rodriguez to her former position without good cause. Accordingly, the 11th Circuit reversed and reinstated the FMLA interference claim. But the opinion then takes a bizarre turn.
The Eleventh Circuit then addressed the retaliation claim. Inexplicably, the Court found that while there was enough evidence to prove that the Hospital interfered with her FMLA reinstatement rights, the Court found that there was no evidence that could possibly support an inference that the termination six weeks later was in any way related to her exercise of FMLA. In doing so, the Court held that Rodriguezs termination was warranted because she could no longer perform an essential job function in that she could no longer work with Allen(!?). The term essential job function is generally used in disability cases to determine whether a disabled employee can perform her work with or without reasonable accommodations. Here, if a supervisor retaliates against an employee for taking leave and thereafter refuses to work with the employee, the employer automatically wins because having the supervisor be willing to allow the employee to work creates an essential job function which the employee has no control over. The Court completely disregarded the clearly disputed facts that Allen had never complained about Rodriguezs performance until after her return from FMLA and that Allen violated FMLA by refusing to reinstate Rodriguez to her position. So the Court affirmed dismissal of the retaliation claim, and now Rodriguez must go to trial arguing only that for six weeks she made copies at the same rate of pay rather than her performing her administrative assistant duties.
I was temporarily heartened by the fact that there was a dissenting opinion by District Judge James D. Whittemore, sitting by assignment on the Circuit Court. But my hope was short-lived as Judge Whittemores dissent insisted that since the problems did not start until the very day that Ms. Rodriguez returned, neither the interference nor the termination could possibly have anything to do with FMLA, and therefore Judge Whittemore reasoned that the entire case should be thrown out.
It is unclear as to why the plaintiffs counsel in this case did not assert a discrimination claim, but Federal Courts are continuing their hostility toward FMLA plaintiffs, and this latest application of the essential job function test to a situation where the supervisor refuses to work with a plaintiff upon her return from FMLA leave is downright frightening. New Jersey attorneys representing FMLA plaintiffs should carefully examine the facts to determine whether there may be other State causes of action, because relying upon FMLA is not only fraught with these kind of dangers, and also permits defendants counsel to remove to Federal Court, which good defense counsel will always do.
Plaintiffs counsel: Robert Newton Harris, The Harris Law Firm Group, PA.
Defendants counsel: Eric David Isicoff, Teresa Ragatz, Susan Virginia Warner, Isicoff, Ragatz & Koenigsberg, PA.
Trial Judge: James Lawrence King, U.S.D.J.
Appellate Judges: Hull and Black, Circuit Judges; Whittemore, District Judge, sitting by designation.