Employee FMLA Retaliation Case Survives Dismissal – How Can You Avoid Similar Problems

August 21, 2017  |   Legal Updates   |     |   Comments Off on Employee FMLA Retaliation Case Survives Dismissal – How Can You Avoid Similar Problems


The court in this case, the United States District Court for the District of South Carolina, was reviewing a Magistrate Judge’s (MJ) recommendation that the Court partially grant and partially deny Defendant Equilon Enterprises, LLC’s (“SOPUS” or Employer) motion for summary judgment. SOPUS objected to portions of the MJ’s Report and Recommendation (R&R). The District court overruled the employer’s objections, and adopted the MJ’s R & R in this case, see below.1

Court’s Decision

In this case, the employee Paul Cannon (Cannon or Employee) asserted that his former employer, unlawfully fired him in retaliation for taking leave guaranteed to him under the Family

Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq.2 The court pointed out that such claims

1 The court laid out the standard of review for the review of the R&R: The R & R has no presumptive weight, and the responsibility for making a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71, 96 S. Ct. 549, 46 L. Ed. 2d 483 (1976). This Court must conduct a de novo review of any portion of the R & R to which a timely, specific objection is made, and the Court may accept, reject, or modify the Magistrate Judge’s findings and recommendations in whole or in part. Id. Additionally, the Court may receive more evidence or recommit the matter to the Magistrate Judge with instructions. Id. A party’s failure to object is taken as the party’s agreement with the Magistrate Judge’s conclusions. See Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985). Absent a timely, specific objection—or as to those portions of the R & R to which no specific objection is made—this Court “must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.’” Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note).

2 Cannon has also asserted a state-law claim against SOPUS for defamation; SOPUS sought summary judgment on that claim as well. Because the employee conceded that he lacked evidence to support the claim, the Magistrate Judge recommended granting

At the first step, the plaintiff must establish a prima facie FMLA retaliation claim. If he does, retaliation is presumed.can be proven using the three-step framework the Supreme Court laid out in McDonnell Douglas Corp. v. Green:3

  1. At the second step, the defendant must produce evidence that rebuts the presumption and provides a legitimate, nondiscriminatory explanation for the adverse employment action. (citation omitted).
  2. If the defendant meets that burden, the third step is for the plaintiff to persuade the factfinder that the defendant’s proffered explanation is merely a pretext for retaliation, which the plaintiff can do “by showing either that the employer’s explanation is not credible, or that the [defendant]’s decision was more likely the result of retaliation.” (citation and quotation marks omitted).

The parties agreed in this case that the first and second steps set forth above had already been satisfied in this case.

The remaining issue was:

“Whether Cannon has come forward with evidence that would allow a reasonable jury to determine SOPUS’s proffered reason for firing him— dishonestly seeking reimbursement for expenses not payable under company policy—is pretext for FMLA retaliation.”

Three Types of Evidence The Court Examined

The Employer objected to the MJ’s reliance on three types of evidence in the record: (1) evidence of temporal proximity; (2) evidence of the Employer misstating facts to the EEOC; and (3) evidence of the Employer inconsistently applying the policy Cannon purportedly violated.

“Double Temporal Proximity”

In his discussion of pretext, the MJ pointed out there was evidence indicating that the employer began investigating Cannon’s expense requests shortly after he said he needed to take medical leave and that it fired him one day after he returned from leave. The employer argued that that the MJ erred in finding this “double temporal proximity” was “sufficient to support a finding of pretext.”

SOPUS summary judgment on the claim. No party objected to that recommendation, and the Court agreed with it. Accordingly, the Court granted SOPUS’s motion as to the defamation claim.

3 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Waag v. Sotera Defense Solutions, Inc., 857 F3d. 179, 192 (4th Cir. 2017).

The employer also argued that, for two reasons, the MJ should not have relied on evidence of the proximity between Cannon requesting leave and the employer investigating him. First, the employer argued that because investigating an employee is not an adverse employment action, a close temporal proximity between an employee requesting leave and a company starting an investigation is not probative of pretext. The Court disagreed. The court pointed out that other District Courts analyzing pretext have considered, among other things, “‘[t]he specific sequence of events leading up to the challenged decision.’”5The court held that the employer’s argument misinterpreted the MJ’s analysis. The court held that the MJ did not say that the two instances of temporal proximity were, by themselves, sufficient to create a jury question. Rather, the Judge treated those instances as two pieces of a larger evidentiary landscape that, in the MJ’s view, contained a triable issue of fact on pretext. The District Court held that this was proper.4

The employer next argued the record in this case conclusively demonstrated that it began investigating Cannon before he said he needed to take FMLA leave. The employer pointed out that on August 6, 2013—the day the employee mentioned he needed to take leave—the employee’s supervisor, Thomas de Boer, asked the employee about selling his house in Washington state and requesting reimbursement for internet service at an address outside Cannon’s sales territory. The employer contended that this shows it knew about those issues before Cannon said he needed to take leave.

The Court held that what the employer overlooked, however, was that de Boer asked those questions shortly after Cannon told him he needed to take leave,6 and that, as the MJ noted, the record in this case was at best unclear as to whether employer took any investigatory action on those issues before Cannon mentioned his need for leave. In other words, a jury could reasonably conclude that, although the employer knew before August 6 that Cannon may have acted improperly, it did not take any action on that knowledge until after Cannon made it known he would be taking federally protected medical leave.

Employer’s Representation to the EEOC

The employer next argued that the MJ erred in basing his pretext analysis on the inaccuracy of a representation the employer made to the EEOC in response to the Charge of Discrimination filed by Cannon. After Cannon filed his discrimination charge with the EEOC, the employer responded in its position statement that “[i]n July 2013 and in advance of the [August 6,] 2013 midyear performance discussion, Mr. de Boer reviewed expenses previously submitted by Mr. Cannon and Company owned vehicle mileage reports.” The District Court held that:

4 See Chauncey v. Life Cycle Eng’g, Inc., No. 2:12-cv-968-DCN, 2013 U.S. Dist. LEXIS 140579, 2013 WL 5468237, at *17 (D.S.C. Sept. 30, 2013).

5 Sharif v. United Airlines, Inc., 841 F.3d 199, 205 (4th Cir. 2016) (quoting Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 489, 117 S. Ct. 1491, 137 L. Ed. 2d 730 (1997)).

6 Cannon revealed his diagnosis and need for leave at a dinner with de Boer, and de Boer asked Cannon about those issues in a meeting later that night.

Inconsistent Application of Expense Policypretext.7 The court also dismissed the employer’s argument that a single inconsistency is insufficient to establish pretext. The court held that, to the extent the employer might be arguing that the MJ based his recommendation solely on the inconsistency, the Court disagreed and noted, as discussed above, the MJ based his recommendation on the entire record; the inconsistency was one piece of it that he highlighted in his R & R.

The Court noted that the MJ found there was evidence that the employer was inconsistently

applying its internet expense reimbursement policy in two ways:

First, the Judge pointed out that, although Cannon’s internet expenses probably were never reimbursable, Cannon requested reimbursements for over three years, and yet he was never disciplined for it or questioned about it until after he said he needed to take FMLA leave. In that regard, the MJ also noted that de Boer said that he periodically reviewed summaries of employee reimbursement requests and that requests for internet expenses were not out of the ordinary.

Second, the MJ wrote, Coleman testified that the employer allowed other employees who violated expense policies to repay SOPUS to avoid disciplineprecisely what Cannon offered to do when de Boer accused him of improperly obtaining reimbursements.

(Emphasis added)

The employer argued the MJ should not have viewed this evidence to be probative of pretext. As to the first category of evidence, the employer contended that it believed that Cannon violated the policy and that he did so through deceit. The court agreed there is evidence that, once de Boer took the time to examine Cannon’s reimbursement requests, he believed Cannon had engaged in deceit by covering up the service address on some internet bills. The Court held that evidence, did not negate the other evidence in the record showing that, for years, de Boer knew  Cannon was getting reimbursed for internet expenses and did nothing about it.

As to the second category of evidence, the employer contended that the MJ erred by relying on Coleman’s testimony that other employees were allowed to avoid discipline by repaying the company because Cannon had not shown that those employees were similarly situated to him. Coleman testified that the “conditions” in which employees repaid the company in lieu of discipline “have varied.”8 The Court pointed out that this answer, viewed in the light most favoring Cannon, was some evidence that at least one of those other employees was similarly situated. The Court therefore disagreed with the employer.9

7 See McFadden v. Stahl Crane Sys., No. 2:13-cv-3039-DCN, 2017 U.S. Dist. LEXIS 48618, 2017 WL 1190870, at *9 (D.S.C. Mar. 31, 2017); see also Smith v. Shenandoah Valley Juvenile Det. Home Comm’n, No. 5:04CV00022, 2005 U.S. Dist. LEXIS 2095, 2005 WL 372262, at *7 (W.D. Va. Feb. 15, 2005).

8 This was quoted from the transcript of Coleman deposition.

9 The Court also dismissed SOPUS argument that the Magistrate Judge erred by focusing exclusively on the three types of evidence discussed above, rather than analyzing the entire record. Please see the full decision for that analysis.

Summary and Important PointsFor all the foregoing reasons the District court found no error in the portions of the R & R to which the employer objected. The Court has also reviewed the remaining portions of the R & R for clear error. Seeing none, the Court will adopted the R & R as its own opinion.


  1. The three elements of a retaliation claims are as follows:
  • The employee engaged in protected activity;
  • The employer subjected the employee to an adverse employment action; and
  • A causal link existed between the protected activity and the adverse action.
  1. The list of what constitutes “protected activity” is very long. There are many types of protected activity you need to be aware of, including but not limited to, the following:
  • Filing a workers’ compensation claim
  • Alleging harassment or discrimination
  • Speaking out against harassment or discrimination against other employees
  • Taking or requesting protected leave, such as family or medical leave, etc.
  • Filing a claim with a state or federal agency
  • Acting as a spokesperson on behalf of other employees regarding terms and conditions of employment
  • Attempting to organize a union
  • Participating as a witness on behalf of another employee’s claims of violations before a state or federal agency
  • Requesting workplace accommodations based on the employee’s disability status
  • Raising issues regarding workplace safety
  • Whistle blowing variety activity

Today’s Update

  1. Applying the foregoing to this case, the court found the following:
  • The protected activity was the request for FMLA leave;
  • The adverse action was the termination of the employee for seeking repayment for expenses that were not payable under the employer’s policy; and
  • The causal link was the timing of the enforcement and the inconsistent past practice of allowing others to re-pay the expensed amount.


This court made it clear the court will look to the “‘[t]he specific sequence of events leading up to the challenged decision” in determining whether there is a connection between the adverse action and the employee’s protected activity.An employee requests a leave, and the employer starts to take a closer look at things the employee has put on his expense report – coincidence? This sound familiar to any of you? In this case, the court held this was something the jury must review and decide in determining whether the three elements of a retaliation claim were present.

  1. You must have that “out of body experience,” which is the ability to look down at what you are doing and ask “how will this look to the court, jury or an arbitrator a year or eighteen months later?” Many times this is hard to do, because you are too close to the facts in your case.
  2. You need to work with your HR staff and experienced employment law counsel to get an objective analysis of how your “sure thing” may look to others – like the jury. The tough questions have to be asked, and the company’s past practices must be scrutinized to insure whatever adverse action may be considered is consistent with past company practice.
  3. Please note, this court held there was no authority that rendered inaccurate statements to a federal agency irrelevant simply because they were not made under penalty of perjury. To the contrary, the Court cited authority for the proposition that inaccurate representations in an EEOC position paper could be used as evidence of pretext. Therefore, it is critically important to make sure what the company says in this context, or any other, be absolutely consistent with the employer’s defense.
  4. It is critical to have a clear and defensible position as to why an employee was terminated when the employee has recently engaged in protected activity. Get advice before you make a final decision.

If you have any questions concerning this email or any other employment law related issues please do not hesitate to contact me by either replying to this email or by telephone at 888-851-1160 or my assistant Nanci Berry at this number.

This update is provided by Gary W. Bethel and Littler Mendelson in order to review the latest developments in employment law. This update is designed to provide accurate and informative information and should not be considered legal advice.

© 2017 Littler Mendelson. All rights reserved.

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